text:
    Ex parte B. E. ANDREWS.
    No. A-6758.
    Opinion Filed Feb. 29, 1928.
    (264 Pac. 638.)
    Walter Mathews, for petitioner.
    Smith C. Matson, Asst. Atty. Gen., for respondent.
   PER CURIAM.

Petitioner alleges that he is unlawfully imprisoned in the county jail of Lincoln county by M. T. Ridpath, sheriff of said county; that he appeared before the county court of said county in' the cause styled State of Oklahoma v. B. E. Andrews, No. 3392, wherein he is accused of a violation of the prohibitory law; that he was admitted to bail in the sum of $500; that his bond was filed and approved; that said cause has been continued from term to term on his motion; that on the ;16th day of August, 1927, he was apprehended by the sheriff aforesaid and brought before the court, when said court made an order that he give additional bail in the sum of $1,000, and ordered petitioner committed to jail until such additional bail is given; that by virtue of this order he is now held in custody; and that said bail in the sum of $1,000 is unreasonable and excessive.

For the purpose of an application to reduce bail on habeas corpus, after information filed, the courts must assume that the defendant is guilty of the offense charged. Ex parte McClellan, 1 Okla. Cr. 299, 97 P. 1019.

The doctrine is well settled that this court will not grant a reduction of bail on habeas corpus unless the amount fixed is clearly excessive. Ex parte Caveness, 3 Okla. Cr. 205, 105 P. 184.

It follows that the demurrer interposed to the petition should Ibe sustained. It is so ordered, and the cause dismissed.


source: Caselaw Access Project

author: DAVENPORT, J.

license: Public Domain

text:
    CHARLES R. JONES v. STATE.
    No. A-6238.
    Opinion Filed Feb. 29, 1928.
    (264 Pac. 638.)
    Lowry Law Offices, by Brown Moore, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as defendant, was by information filed in Payne county, Okla., charged with the crime of transporting spirituous liquor, to wit, one pint of whisky, from a certain place in the state, to the county attorney and affiant unknown, to another place in this county ,and state, to wit, in a public highway between the southeast quarter of the southwest quarter, section 13, township 19 north, range 2 east of Indian Meridian, and the northeast quarter of the northwest quarter of section 24, township 19 north, range 2 east just across from the northeast comer of the Fairlawn Cemetery, in Payne county, Okla.

Defendant entered his plea of not guilty; a jury was impaneled, and, after hearing the evidence, argument of counsel, and instructions of the court, and after considering the verdict, returned into court the following verdict:

“State of Oklahoma v. Charles R. 'Jones. Verdict. We, the jury, duly impaneled and sworn to well and truly try the issues in the above-entitled cause, do upon ■our oaths find the defendant guilty as charged in the information and fix and assess his punishment at a fine of $- dollars, and imprisonment in the county jail of Payne county, Qkla., for a period of - days. 0. Johnson, Foreman.
“Cannot agree on punishment.”

The testimony offered by the state, in substance, is .as follows: Eugene Standerfer testified that he lived east of Stillwater something like a half mile on the Albert Pike highway, in the southeast corner of the southwest quarter on the north side of the road east of Stillwater; that he saw the defendant, Charles R. Jones, on the 21.0th day of January, 19.26, drive out by his place; that he drove down the road about 40 steps from where the witness was and took something out of his car; that he turned the car around; that about 5 minutes later witness went down the road where defendant’s car stopped and got a pint Ibottle of whisky; that he -took it down and gave it to the sheriff; witness says that it was the defendant that drove out there; witness had lived in that locality for several months, was raising chickens, said he had known the defend- and 5 or 6 months when he saw him; that he knew defendant’s boy; that he had not informed any officer before he got the whisky that he claims to have found down in the road where he claims defendant stopped his car; he did not tell the officer when he went to town that he saw Charley Jones plant the whisky there, nor did ¡he tell any one; was almost sure it was Charley Jones when he drove by. “I took the number of his car and it was the same identical car.” He attempts to identify the car as having some tom places in the top; he did not tell any one when he brought the whisky to town that Charley Jones had put the whisky out in the weeds by the road.

C. M. Poole, a witness for the state, testified that he saw the defendant drive out near where it was alleged the whisky was found, and scratch around in the weeds, and later some one came out and scratched around, and then got in the car and came back to town; that he knew the witness Eugeiie Standerfer; that the witness delivered to him in town a pint of whisky; he identified the bottle by the cork in the bottle and said it was the same kind. Witness Poole admitted that he carried a special commission as an officer at the time; he had known defendant about five years, never heard of him manufacturing whisky, but that he knew the defendant had a reputation for drinking; he never saw the defendant with whisky.

At the close of the state’s testimony the defendant demurred:

“First. To the evidence of the state as being wholly insufficient to establish that this defendant committed any offense against the laws of the state of Oklahoma.
“Second. And for the further reason that it is wholly insufficient to establish that any offense was committed against the laws of the state of Oklahoma.
“Third. As being wholly insufficient to justify a verdict of guilty, as against this defendant, of the charge contained in the information in this case, and moves the court that the jury be instructed that the state has failed to establish the material allegations of the information in this action, and that they return a verdict on the evidence of the state of not guilty.”

Which motion and demurrer was overuled by the court, and defendant duly excepted. The evidence in this case is purely circumstantial.

We will consider the fourth -and ninth assignments of errors together, as they relate to the same matter; the assignments being as follows:

“(4) That the vérdict in said cause is contrary to the evidence and not supported by the evidence.”
“(9) That the court erred in overruling the defendant’s demurrer to the evidence of the state as a matter of law, to which ruling of the court the defendant at the time excepted, and which exception was1 toy the court allowed as shown by the record in said cause.”

It is a universal rule of law that whatever is necessary to allege in the information, it is necessary to prove. The allegation in the information is that the defendant transported the liquor from a certain place in the state, to the county attorney and affiant unknown, to a certain place near a certain cemetery; this was a necessary allegation, and if the state expected to establish the charge in the information it was necessary to prove by competent testimony that, if any whisky at all was transported toy the defendant, it was transported from a place unknown to a definite place in the state. Brown v. State, 18 Okla. Cr. 509, 196 P. 967; Kelley v. State, 31 Okla. Cr. 51, 236 P. 915; McKay v. State, 190 S. W. 653; Brennan v. State, 32 Okla. Cr. 284, 240 P. 1084; Aycock v. State, 32 Okla. Cr. 302, 240 P. 1081; Cobbs v. State, 17 Okla. Cr. 704, 186 P. 1009; Tice v. State, 18 Okla. Cr. 32, 192 P. 434.

The court in 'his instruction 5 advised the jury:

“That the state relied for a conviction on what is known as circumstantial evidence, and in this matter you are instructed that, to warrant a conviction upon circumstantial evidence, each fact necessary to the conclusion must be proved by competent evidence beyond a reasonable doubt, and that all of the facts and circumstances proved should not only be consistent with the guilt of the accused, but consistent with each other and inconsistent with any other reasonable hypothesis or conclusion than that of their guilt, and sufficient to produce in your minds the reasonable moral certainty that the accused comngtted the offense charged against him, and you are instructed that when the circumstances are sufficient under this rule herein given you, they are competent and are to be regarded by you as competent for your guidance as direct evidence.”

Upon consideration of all the evidence in this case we are of the opinion it is wholly insufficient to warrant a verdict of guilty, and the court erred in overruling defendant’s demurrer to the evidence and his motion in arrest of judgment and for a new trial. The gist of.the offense charged in the information in this case is a conveyance from one place to another. The word “place” has a variable meaning. As used in the statute, it means “region” or “locality.”

In Proctor v. State, 8 Okla. Cr. 587, 129 P. 77, the court said:

“On the essential ingredient of the offense charged * * * there must be a conveyance from a place beyond the premises of the defendant.”

There are other errors assigned and argued by the defendant, but the view w'e take of the case we do not deem it necessary to consider them. The case is reversed and remanded.

DOYLE, P. J., and EDWARDS, J., concur.


author: DOYLE, P, J.

text:
    ADA HOOKS v. STATE.
    No. A-6125.
    Opinion Filed Feb. 29, 1928.
    (264 Pac. 640.)
    M. Bristow, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, P, J.

Appellant, Ada Hooks, and Love Walker were convicted of the crime of transporting intoxicating liquor, the jury leaving the punishment to ibe fixed by the court. From the judgment and sentence of 30 days in jail and a fine of $100, Ada Hooks appeals.

The only question raised by this appeal is the sufficiency of the evidence to sustain the verdict.

George Nixon, sheriff, testified that on the morning of the 3d day of November, 1925, he saw appellant driving a Ford car, and when she saw him “she pulled it wide open.” He followed, and appellant or the other woman in the car with her threw out two or three fruit jlars that contained whisky.

As a witness in her own behalf, appellant denied that she had any whisky or fruit jars in her car, and denied that any jars were thrown from her car that morning.

. Love Walker, codefendant, testified that she was riding with Adla Hooks, and did not see any whisky in the car, and did not see Ada throw any whisky out.

The credibility of the state’s witness was a question for the jury, and, where he testifies to the incul-patory facts, it cannot be said that there was no substantial evidence to support the verdict.

Finding the evidence sufficient and no prejudicial error of law occurring iat the trial, the judgment appealed from is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


author: DOYLE, P. J.

text:
    Ex parte T. L. CROWELL.
    No. A-6780.
    Opinion Filed Feb. 20, 1928.
    (264 Pac. 642.)
    Beets, Bessey & McIntosh, for petitioner.

      Edwin Dabney, Atty Gen., Smith C. Matson, Asst. Atty. Gen., and J. K. Wright, Co. Atty., and K. D. Mitchell, Asst. Co. Atty., for respondent.
   DOYLE, P. J.

The petition shows that petitioner is held by the sheriff of Oklahomla county by virtue of a warrant of commitment made by a justice of the peace of Oklahoma City, in said county, purporting upon its face to 'hold petitioner to answer upon the charge of bigamy, as defined 'by chapter 119, p. 166, Sess. Laws 19f25, amendatory of section 510, C. O. S. 1921.

It is laverred that the complaint is insufficient to charge the crime as defined by said act, and that, under the evidence introduced on said examination, petitioner was entitled to have been discharged from custody, because said evidence was not sufficient to show the commission of the crime of 'bigamy or any other crime, and was not sufficient to show problable cause, which will more fully appear from the stipulation which is hereunto annexed and made a part hereof.

The complaint, which is not verified, charges that:

“On the 16th day of May, A. D. 1927, in Oklahoma county, state of Oklahoma, T. L. Crowell, whose more full land correct name is to your informant unknown, then and there being, did then and there willfully, unlawfully, and feloniously commit the crime of bigamy in manner and form as follows, to wit: That is to say the said defendant, in the county and state aforesaid, and on the day and year aforesaid, then and there being, did then and there wilfully, unlawfully, and feloniously enter into marriage relation on the 16th day of May, 1927, in the state of Texas, with one Anna McDonald; that said defendant on siaid date had a living wife in the state of Oklahoma, from whom he had obtained a divorce on the 14th day of May, 1927; and that, after said marriage with Anna McDonald, he and the said Anna McDonald removed to the state of Oklahoma to establish a home there within a period of six months from the date of said divorce, contrary to,” etc.
“Stipulation.
“Comes now T. L. Crowell through his (attorneys, Beets, Bessey & McIntosh, and the state through the county attorney and agree as follows, to wit: That at the examining trial before Hon. Leo B. White, justice of the peace, the substance of the testimony produced in the above-entitled cause was as follows: Annie Crowell, being produced by the state as a witness, testified that her name was Annie Crowell; that she had married the defendant, T. L. Crowell, on the 16th day of May, 1927, at Shamrock, Tex.; and that they continued to live at Shamrock, Tex., until she moved to Oklahoma City and now claims Oklahoma City to be her residence. As a part of her testimony, there was also introduced a copy of divorce decree between T. L. Crowiell and his former wife, Christine Elizabeth Crowell, dated May 14, 1927. Proof of the divorce by Cliff Myers, court clerk, and the original decree waived by defendant. That thereupon, the state rested and the defendant rested, and that this was all the evidence introduced.”

Signed by counsel for petitioner and counsel for the state.

Chapter 119 provides in part as follows:

“And it shall be unlawful for any person who has a living husband or wife to marry another person in any other state within six (6) months from date of decree of ’ divorcement granted in this state and cohabit with such second husband or wife in this state during said period.”

In Wilson v. State, 16 Okla. Cr. 471, 184 P. 603, it was held that the penal provisions of section 510 of C. O. S. 1921 are directed solely against remarriage of either party to a divorce proceeding to any . other person within six months immediately subsequent to the decree of divorce, and it was further held that, where one of the parties to said decree within the prohibited period marri.es another person without the state, and subsequently returns and - cohabits with such person within this state, the subsequent cohabitation not being the gist of the offense defined by said statute, there is no jurisdiction to prosecute thereunder in the state.

It will be observed that the amendment of siaid section 510 makes cohabitation within six months the gist of the offense. The complaint herein failed to charge cohabitation and no proof was offered tending to show that petitioner cohabited with his second wife in this state.

It is the well-settled doctrine in this state that a preliminary exlamination before a committing magistrate is not a trial, and an order of commitment issued thereon is not “a process issued on a final judgment,” and that the courts exercise a supervising jurisdiction over the proceedings of a committing magistrate by means of habeas corpus, and inquire into the legality of the commitment and the question of probable cause. Ex parte Johnson, 1 Okla. Cr. 414, 98 P. 461; Ex parte Beville, 6 Okla. Cr. 145, 117 P. 725. Where there is no legal or competent evidence to sustain it, an order of commitment to hold for trial before the district court is void, and petitioner will be discharged on habeas corpus. Ex parte Turner, 3 Okla. Cr. 168, 104 P. 1071.

There being no evidence offered tending to show that the petitioner cohabited with his second wife in this state, it follows from what has been said that the petitioner is unlawfully imprisoned, and he is therefore discharged from the custody of the sheriff.

EDWARDS and DAVENPORT, JJ., concur.


author: PER CURIAM.

text:
    In re ERNEST TURNER.
    No. A-6744.
    Opinion Filed Feb. 29, 1928.
    (264 Pac. 1118.)
   PER CURIAM.

Petition for writ of habeas corpus brought by Octave Turner, on behalf of her son, Ernest Turner,- alleging that Ben B. Dancy, sheriff of Oklahoma county, unlawfully restrains Ernest Turner for nonpayment of court costs, accruing on a conviction for misdemeanor, Wherein said Ernest Turner was convicted and sentenced to serve 30 days in the county jail. A demurrer to said petition was interposed and sustained.


text:
    HARRELL v. GRUNERT, Judge.
    No. A-6888.
    Opinion Filed Feb. 29, 1928.
    (264 Pac. 1118.)
    Sigler & Jackson, for petitioner.
    The Attorney General, for respondent.
   PER CURIAM.

On January 30, 1928, counsel for petitioner filed with the clerk of this court a petition for an alternative writ of mandamus. Said petition . was set for hearing on February 2. On that day counsel for petitioner filed ¡a motion to dismiss, which was sustained, and the cause dismissed.


text:
    Ex parte EUPHRASIE FORREST.
    No. A-6514.
    Opinion Filed Feb. 29, 1928.
    (264 Pac. 1118.)
    Ben F. Williams and Pruiett & Mathers, for petitioner.
    The Attorney General, for respondent.
   PER CURIAM.

The petition herein was filed by A. B. Forrest on behalf of his wife, Euphrasie Forrest. It is averred that Euphrasie Forrest is confined in the Oklahoma Central State Hospital at Norman, Oklahoma, and has been so confined therein since the 17th day of May, 1923; that said Euphrasie Forrest was committed to said institution by the proper authorities of Cotton county, Oklahoma; that she has completely recovered, and is at this time sane, and is therefore illegally detained and restrained of her liberty by Dr. D. W. Griffin, superintendent of said institution. It is further averred that petitioner is a farmer, living at Dumont, Texas, and desires to take his wife back to their home; that they have two minor children, who need the care and attention of their mother, the said- Euphrasie Forrest. The material facts in the case, as shown by the testimony taken upon the hearing, are in substance that George Hicks, about 23 years of age, eloped with petitioner’s daughter, a schoolgirl 15 years of age, attending school at Walters; that a few months latei the couple returned to the home of petitioner at Walters, and a few minutes afterwards George Hicks was shot and killed by petitioner’s wife.. Petitioner and his wife were both charged with the murder of Hicks. Upon a hearing on the issue of insanity, Mrs. Forrest was adjudged insane and committed to the State Hospital for the Insane at Norman. A few months later she gave birth to a child. It was further shown that Mrs. Forrest has fully recovered from her mental mialady. The respondent Dr. Griffin, as a witness, admitted that Mrs. Forrest had fully recovered from her mental malady. The county attorney of Cotton county having announced that the case against Mrs. Forrest was dismissed, land the court finding that the mental condition of Mrs. Forrest is normal, it was ordered and adjudged that the writ be awarded, and that she be discharged.


author: EDWARDS, J.

text:
    ROY BRANNON v. STATE.
    No. A-6015.
    Opinion Filed March 3, 1928.
    (264 Pac. 835.)

      James A. Embry and Joe Brewster for plaintiff in error.
    Geo. F. Short, Atty. Gen., and J. Berry King, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Lincoln county on a charge of robbery and was sentenced to serve a term of 5 years in the state penitentiary

On September 16, 1925, the Bank of Kendrick was robbed by two persons, who, with revolvers, Jield up the two employees working in the bank and took labout $1,600 in money. This took place between 1:30 and 2 o’clock in the afternoon. While the robbery was taking place, a Ford touring car was standing at the rear, near the sidewalk, with a man seated at the wheel. When the two who entered the bank came out, they went to this car and it was immediately driven away. The two men who entered the bank and took the money were indentified as Earl Bogus and Jewel Albert Bridges. It is the theory of the state that defendant was the man who was at the wheel and drove the car. The money taken was in currency except about $291 in coin. The coin was in a money sack or bag having the name of the bank on it. Madge Harris, a young woman who was employed in a store near the bank, piassed along the sidewalk by the parked car about the time the two men came out of the side door of the bank. She saw the man sitting at the wheel of the car, and, while not positive,- testified that to the best of her knowledge it was the defendant. Alva Hicks was dragging the road north of Kendrick soon after the bank was robbed. A Ford touring car answering in all particulars the description of the car parked near the bank, passed him going north at a high speed; it was compelled to slow down somewhat on account of the sandy condition of the road and because of ia curve about the time it was even with him. He testified that, to the best of his knowledge and belief, defendant was the driver of this car. The evidence is not incompetent because not positive. A witness need not be absolutely certain in his testimony as to the identification of defendant, to render the testimony competent. That goes to the weight rather than the competency. 6 Ency. Ev. 932; People v. Young, 102 Cal. 411, 36 P. 770.

That night the defendant, Bogus, and Bridges were arrested in the town of Yale at the house of Don Robinson. Robinson was not at home, and when the officers came to the place defendant, who is a cripple, was seated on the porch. Bridges was standing near by, and Bogus Was found in the house under the bed. There was another person there, referred to as Fred Davis, he ran from the house and made his escape, exchanging shots with the officers in doing so. Where he ran across an adjoining lot an automatic pistol and a sack of the same description as the sack taken from the Kendrick bank, containing forty of fifty dollars in coin, was found the next morning. In the house three automatic shotguns loaded with shells of chilled shot, and lalso three Smith and Wesson revolvers, were found. $3'08 in currency was taken off the person of Bridges, and about $500 in currency was in the padding in the top of the crutch carried by defendant. The defense is an alibi. Defendant testified and introduced evidence tending to corroborate him that on the day of the robbery he was at Pawnee, (about 55 miles from Kendrick, until about the time of the robbery; that he left there, went to Bristow and from there Went to Yale; he reached Yale about 4 o’clock; that he had with him on the trip one Ketch Harmon; that he had business with Robinson and went to his place, and as he wias not at home he left for some time and returned again; that Bogus, Bridges, and Davis came later; that he had no connection with them. Neither Robinson nor Harmon were called as witnesses.

It is argued that incompetent evidence whs admitted for the state, prejudicial to his rights. That is directed to the search without a, search warrant which led to the finding of the arms and ammunition in the Robinson house where defendant was arrested. As this house belonged to Robinson and was not the residence of defendant, he cannot be heard to complain of any search of it, even if the search were unreasonable. The objection can be made only by one whose private rights have been invaded. Ratzell v. State, 27 Okla. Cr. 340, 228 P. 166; Penrod v. State, 38 Okla. Cr. 46, 258 P. 1052; Hall v. State, 39 Okla. Cr.—, 264 P. 221.

It is also claimed that the search of the crutch of defendant and the finding of the money concealed therein is an invasion of his constitutional rights as an unreasonable search and seizure. When the officers first went to the house of Robinson, one of them at the time knew of the bank robbery; they arrested defendant, Bridges, and Bogus. The search of the crutch was not made until the following morning, a portion of the money had been recovered in the house, some of it on an adjoining lot, and it was believed by- the officers that defendant, Bridges, and Bogus were connected with the robbery. An arrest without a warrant may be made by even a private person when a felony has in fact been committed and such person has reasonable cause to believe the person arrested to have committed it. Section 2477, Comp. St. 1921. When a person has been legally arrested, either by an officer or a private person, as an incident of such an arrest he may be searched and articles found in his possession which may. be used in the commission of crime or connected with the offense, or which may be used as evidence against him or weapons or things which may assist the escape, may be seized. Davis v. State, 30 Okla. Cr. 61, 234 P. 787; Keith v. State, 30 Okla. Cr. 168, 235 P. 631.

The arrest of defendant under the circumstances shown was legal, the search of his person, and the crutch in his possession, were not in violation of any constitutional right, and the evidence obtained by such search so far as relevant is competent.

The statute under which defendant is prosecuted (chapter 44, Session Laws 1925) has as its maximum punishment the death penalty. In a capital case the defendant is entitled, under the térms of the Constitution, art. 2, § 20, to he served with a list of the witnesses to be used in chief two days before the trial. This list was not served. But in open court defendant’s counsel, referring to the failure to furnish a list of the witnesses, siaid :

“We are not going to make an objection on the part of the defendant, Roy Brannon.' We- will waive the service of the list of witnesses and demand a severance and announce ready for trial. * * * ”

In the course of the trial the state indorsed the name of J. F. Alford as a witness on the information. If defendant had stood on his constitutional right to have a list of the witnesses served, we assume the list, if served, would have contained the name of this witness, for he hád béen served with subpoena and an affidavit requiring his attendance outside the county of his residence had been filed. This was a matter of record at the time the waiver was made, and the waiver must be construed to apply to this witness as well as the witnesses whose names were indorsed, for if a list of the witnesses had been served it would have been immaterial whether or not they were indorsed on the information. Defendant in his testimony admits the truth of the testimony of Alford. It is not prejudicial.

It is also argued that in the opening statement of the county attorney in which he failed to state the plea qf the defendant is misconduct requiring a reversal. Sections 2687, 2822, Comp. 'St. 1921.

The reading of the information and statement of the plea is to apprise the jury of the charge and the issue made thereon. It is a formality to simplify the proceeding. The omitting to state the plea where the trial is had without objection on this ground, 'and, where the court instructs the jury that the plea of not guilty puts in issue the allegations of the information, no prejudice can possibly result from the failure to state the plea. It is error without injury. Harris v. State, 14 Okla. Cr. 490, 173 P. 958. Gibson v. State, 27 Okla. Cr. 75, 224 P. 736.

Some complaint is made that the court in the course of the trial questioned witnesses. This is not particularly stressed, but we have examined the record on this point and find that the court did ask. some questions of witnesses. There was no extended examination, and the court did not persistently examine or cross-examine. The questions appear to be proper for the purpose of clearing up the testimony of the witness in a few instances. There is nothing to indicate that he took the role of a prosecutor, but throughout the trial he appears to have conducted himself in a manner entirely in keeping with his position.

Lastly, it is contended that the evidence is insufficient to sustain the verdict and judgment. Except for the evidence of the witness Madge Harris on the point of identification of defendant as the driver of the car parked near the bank, the evidence is circumstantial. It is well settled that, in order to support a verdict in a criminal case based upoxi circumstantial evidence, the circumstances relied upon, considered all together, must do more than render probable the guilt of an accused, but they must not only be consistent, with the guilt of the accused, but inconsistent with any reasonable hypothesis other than his guilt, and sufficient to convince the jury beyond a reasonable doubt that the accused committed the crime for which he is on trial. Where, however, a conviction is based on circumstantial evidence and approved by the trial judge, it will not be set 'aside on appeal if there is a reasonable basis in the. evidence upon which the jury may” conclude- as reasonable men that the defendant is guilty of the crime charged. Bennett v. State, 26 Okla. Cr. 24, 222 P. 705.

While the evidence is conflicting, it is shown here that the defendant is in a measure identified by two witnesses as the driver of the car which was at the bank during the robbery and in which the robbers escaped. About five hours later he was arrested, under circumstances which seem conclusive that he knew of the robbery, in company with two men who are positively identified as the ones who entered and robbed, the bank. There is the further circumstance that in the padding of his crutch about $500 in currency was found with no satisfactory explanation made. The circumstances are not numerous, but they are consistent with his guilt and inconsistent with any other reasonable hypothesis or conclusion.

The case is affirmed.

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


text:
    FRANK WHISNANT v. STATE.
    No. A-8000.
    Opinion Filed March 3, 1928.
    (264 Pac. 837.)

      W. C. Hall, for plaintiff in error.
    Edwin Da'bney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, referred to herein as the defendant, was charged in the county court of Hughes county, Okla., with the crime of having in his possession mash fit for distillation and a still worm. The information charged that in Hughes county, November 27, 1924, “Frank Whisnant did unlawfully have in his possession a quantity of mash fit for distillation apd a still worm.” To this information the defendant filed a demurrer. The demurrer was heard and considered by the court, and overruled, and defendant reserved an exception. A jury was impaneled, and testimony on behalf of the state taken, which, in substance, is as follows:

Bert Wallace testified that he lived, at Bilbys; that he- knew the defendant, Whisnant, on the 27th day of November, 1924; that the defendant lived on N. V. Bilby’s place; that he was at the defendant’s house on or about the 27th day of November, 1924, and that we found a barrel of mash; that it was directly in front of defendant’s house, about 75 or 100 yards from the house in a garden; the house had a yard fence around it and the garden was outside of the yard; the barrel was about, three-fourths full; it was buried; I saw the defendant there that day; L. Noble and N. V. Bilby were with me; the defendant came to the front door; we went to the barrel of mash and came back to the house and called him and he did not answer, and then we saw him run up the hill; we did not say anything to him, but ran after him.”

On cross-examination witness stated that he did not drink any of the mash; lie just tasted it; he did not know what the mash contained; he did not taste enough to make him drunk; that he had no effect from it whate.ver, nor did he analyze it; he knew it was mash; it was sour; he- also stated that the defendant did not leave the house until he saw them go to the mash barrel.

Sam Turner, witness for the state, testified in substance to the same facts as did the witness Bert Wallace, except that witness Turner stated he was sheriff of Hughes county; that he had a search warrant; that the mash was fit for distillation, that it was a 40 or 50 gallon barrel, and that it was about one-half or one-third full; he tasted it; he did not get any backfire ; nor did he have it analyzed. On redirect examination he stated in reply to a question by the county attorney: “You know it was fit for distillation? Yes, sir.” Defendant’moved that the answer of the witness to the question be stricken on the ground that the witness had already stated that he did not drink enough to detect any physical effect, and that he had no reason to state that it was fit for distillation. The objection was overruled and defendant duly excepted. This was all the testimony on behalf of the state. At the close of the testimony the defendant demurred to the evi-dencé of the state and moved the court to instruct the jury to render a verdict of not guilty because of thé fact that the state wholly failed to produce any evidence to support a verdict against the defendant duly dence to support a Verdict against the defendant, which motion was overruled, and the defendant duly excepted.

The jury, after hearing the instructions of the court and the argument of counsel, retired to consider of its verdict, and on the same day returned into court a verdict finding the defendant guilty as charged in the information, and assessing his punishment at a fine of $100 and costs, and confinement in the county jail for a period of sixty days. Motion for a new trial was filed and overruled and the defendant has appealed to this court for a reversal of the sentence and judgment imposed upon him.

The defendant has assigned eight errors alleged to have been committed by the trial court. We will first consider the second assignment of error, which is as follows: “(2) Error on the part of the court in not sustaining demurrer of plaintiff in error to the information.” An examination of the information show’s that it charges two separate and distinct offenses in one count. The question for this court to decide, Is the defendant’s exception to the overruling of the demurrer well taken? The next question is, Does the information charge sufficient facts to place the defendant on trial for possession of mash fit for distillation, or of having in his possession a, still worm? Section 1, p. 43, c. 42, Session Laws 1923-24, is as follows:

“It shall be unlawful for any person, or persons, within this state to manufacture, ferment or possess, any' compound mixture, mash, wort, or wash fit for distillation, or for the manufacture of beer, wine, distilled spirits, or other alcoholic liquors, the sale, barter, giving away or otherwise disposing of which is prohibited by the laws of the state of Oklahoma.”

The section of the law hereinabove quoted is peculiarly drawn in this, that it prohibits the possession of mash fit for distillation; then it prohibits the possession of mash fit for the manufacture of beer, wine, distilled spirits, or other alcoholic liquors, the sale barter, giving away or otherwise disposing of which is prohibited by the laws of Oklahoma. The information charges in the language of the statute and is sufficient.

The next question then is, Is the testimony of the state sufficient to convict the defendant of having in his possession mash “fit for distillation.” Our statute does not define what ingredients are necessary to constitute mash, and we must therefore look to other authorities for its definition. ' Webster’s International Dictionary defines mash as follows:

“(1) Crushed malt, or meal of rye, wheat, corn, etc., steeped and stirred in hot water to form wort; (2) a mixture of grain, meal, or the like, and hot water fed warm to animals; (3) to subject crushed malt to the action of hot water by heating and stirring to prepare an extract known as wort; (4) to convert into a mass; to reduce to a soft pulpy state by heating or pressure; to bruise; to crush.”

2 Bouv. Daw Diet. 1237 (3d Ed.) defines fit as: “Suitable, appropriate.”

Distillation is defined by Webster’s International Dictionary:

“(1) As an act, or process to distill, or that which is fit for distillation. (2) ,a.n operation of drawing off gas or vapor from liquids or solids, as to hold in retort or still and condensing all or some of the products in 'a cool receiver or condenser.”

The testimony hereinabove referred to of two of the witnesses shows that they claim the barrel they found w’as mash, one saying it was sour. There is no evidence in the record showing what the liquid substance found in the barrel was composed of, or whether or not any of the ingredients necesshry to make mash fit for distillation was used.

This court, in the case of Thomas v. State, 34 Okla. Cr. 49, 244 P. 816, held that, where the defendant had assembled in 5 or 6 barrels a liquid quantity of a semi-liquid substance composed of meal, water, sugar, and yeast, under circumstances indicating that the mixture was made for fermentation and distillation of whisky, it was mash and fit for distillation within the meaning of the section of the law set out in this opinion.

We believe the manifest purpose of the section oi the statute quoted herein is to punish persons assembling ingredients for fermentation, preparatory to, and for the purpose of, manufacturing distilled or other alcoholic liquors, and we believe that in order to comply with the statute the proof should show what ingredients were in the mixture that the state claims was mash, or at least some of the ingredients necessary to make mash were in the barrel. We do not think the bare statement of the witness that what was found was mash is sufficient to sustain a conviction' under the information in this case, but that it is necessary that the proof should go further and show some of the ingredients in the barrel necessary to come within the definition of mash.

We will next consider the following assignment:

“Error of the court in giving instruction 8, which instruction submitted to the jury the question of the still worm being in the possession of plaintiff in error. There was no evidence direct or indirect to show the possession of the still worm by the plaintiff in error.”

Instruction No. 8 complained of is as follows:

“(8) You are further instructed that, if you 'believe from the testimony beyond a reasonable doubt that the defendant, Frank Whisnant, in Hughes county, Okla., on the 27th day of November, 1924, or any other time between the 5th day of February and the 6th day of December, 1924, had in his possession a quantity of mash fit for distillation and a still worm, as charged in the information, it will be your duty to find the defendant guilty, and so to declare by your verdict. On the other hand, if after a fair and impartial consideration of all the testimony in the ease, considered along the instructions of the court, there is a reasonable doubt in your, minds as to the guilt of the defendant as charged in the information, it will be your duty to acquit the defendant, and so to declare by your verdict.”

The instruction is not applicable to the evidence in this case; there being no evidence whatever that the defendant was found in possession of a still worm. It is the duty of the court to properly instruct the jury as to the law applicable to the evidence which has been introduced in the case, and, where the evidence fails to establish the allegations in the information, the court should so advise the jury. In this case the instruction complained of evidently misled the jury, as it returned a verdict finding the defendant guilty, as charged in the information. From the form of the verdict returned by the jury no one can tell whether the jury convicted the defendant of having possession of mash fit for distillation, or having possession of a still worm, or having possession of both.

The instruction of the court was misleading and prejudicial to the rights of the defendant. There are other errors assigned by the defendant, but We do not deem it necessary to discuss them.

For the reasons herein stated, the case is reversed and remanded.

DOYLE, P. J., and EDWARDS, SF., concur.


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    GEORGE GREGG v. STATE.
    No. A-6121.
    Opinion Filed March 3, 1928.
    (264 Pac. 840.)
    Howard F. Wilson, for appellant.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Appellant, George Gregg, was convicted on a charge of selling intoxicating liquor and in accordance with the verdict of the jury was sentenced to confinement in the county jail for 60 days and to pay a fine of $200. From the judgment an appeal was taken by filing in this court, on March 20, 1926, a petition in error with case-made, but there has been no appearance in behalf of appellant in this court.

Without the aid of oral argument or briefs we have carefully examined the record. The evidence by the state’s witnesses clearly and . directly established the offense against appellant. On the other hand, the evidence by the appellant, which was also supported and corroborated by the testimony of. other witnesses, was clearly sufficient, if believed, to have authorized the jury to acquit him. It was peculiarly a question of fact to be settled by the jury and the lower court.

Finding the record free from substantial error, and it appearing that the defendant had a fair trial, the judgment appealed from is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


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    SAM WATKINS v. STATE.
    No. A-6220.
    Opinion Filed March 3, 1928.
    (264 Pac. 922.)
    W. Shearer Brown, for plaintiff in error.
    Edwin Dabney, Atty, Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error was convicted of forgery in the second degree. In due time he filed a motion for new trial, which was overruled. Thereupon he was sentenced to the penitentiary for a term of six years in accordance with the verdict of the jury. From the judgment and sentence he has appealed to this-court.

The information, in substance, charged that Sam Watkins, alias Charley Dodson, did offer for sale, exchange, and deliver to H. C. House a forged check on the Security National Bank of Muskogee for the sum of $8.7.50.

The errors assigned question the sufficiency of the evidence to support, the verdict, and complain that the punishment imposed is excessive.

The plaintiff in error, unable to give an appeal bond, was delivered into the custody of the warden of the penitentiary at McAlester and the appeal taken as that of a poor person; he is not represented in this court by counsel, but has by letter to the clerk of this court asked that the sentence be modified.

The testimony in the case shows that the forged check was offered in payment for a suit of clothes.

While the plaintiff in error is not represented in this court we have carefully examined the whole record and find it free from substantial error. However, we think that the punishment imposed is excessive.

Our Criminal Procedure Act provides:

“The appellate court may reverse, affirm or modify the judgment appealed from, and may if necessary or proper, order a new trial.” Section 2820, C. O. S. 1921.

It seems to have been the intention of the Legislature to vest this court with the power to modify the judgment appealed from by reducing the sentence when such a course would be in furtherance of justice, and conduce to the humane administration of the law. Kilgore v. State, 10 Okla. Cr. 446, 137 P. 364.

Upon the record before us we have concluded to modify the sentence to the extent of reducing it to imprisonment in the penitentiary for a term of four years, and, thus modified, the judgment will be affirmed.

EDWARDS and DAVENPORT, JJ„ concur.


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    FRANK BORNHEIM v. STATE.
    No. A-5985.
    Opinion Filed March 3, 1928.
    (264 Pac. 921.)
    Wilkerson & Hudson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the' State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as defendant, was ' by information charged in the county court of Pittsburg county, Ókla., with having possession of 4>y2 gallons of Choctaw beer, with the unlawful intention then and there to sell the same.

Before the case was called for trial the defendant filed his motion to suppress the evidence obtained by reason of the search and seizure based upon a search warrant issued by E. E. West, justice of the peace, the affidavit for which was made on information and belief. The motion of the defendant was by the court overruled and defendant duly excepted. A jury was impaneled and sworn to try the issues, and after hearing the evidence introduced over the objection of the defendant, and argument of counsel, and instructions of the court, returned a verdict finding the defendant guilty and fixing his punishment at 75 days in the county jail, and a fine of $200'. Motion for new trial was filed, considered, and overruled, and defendant reserved an exception.

All the evidence introduced by the state was procured by reason of a search warrant issued upon the affidavit of G. E- Hanes, who made the affidavit on information and belief and without any actual knowledge of affiant that the defendant was violating the prohibitory laws of the state of Oklahoma.

The second and eighth assignments of errors will be considered together, as they relate to the same question:

“(2) That the court erred in overruling the plaintiff in error’s motion for a new trial.”
“(8) The court erred in permitting the state to introduce testimony as to the materials found on said premises, for the reason that no proper affidavit for search warrant and no proper search warrant was issued and the officers making the raid at said place were trespassers and said search was oppressive and contrary to law.”

All of the evidence introduced by the state was procured by reason of the search warrant issued by E. E. West, justice of the peace, based upon an affidavit of G. E. Hanes, who made the affidavit upon information and belief and without any actual knowledge that the defendant was violating the prohibitory laws of the state of Oklahoma.

G. E. Hanes testified as a witness for the state, and failed to disclose he had any knowledge that the defendant had violated the prohibitory laws up until the time he went to the defendant’s home, together with others, for the purpose of searching defendant’s home. Nothing was found at defendant’s home but what was designated as choc beer, and the evidence is indefinite as to whether or not it was intoxicating. There is no evidence that any one of the witnesses drank a sufficient quantity to tell whether it had an intoxicating effect.

The defendant urges that the affidavit upon which the search warrant was based was void and insufficient, not being in compliance with the Constitution of the state relating to search and seizure; that the statements made in the affidavit that affiant had probable cause for believing that intoxicating liquor was being manufactured for the purpose of selling, bartering, giving away, and otherwise furnishing the same made on information and belief only, and does not set forth facts sufficient to establish grounds for probable cause for believing they exist as provided under our statute. This court is of the opinion that the objection of the defendant to the introduction of the testimony procured under a search warrant based upon the affidavit was well taken, and that all the testimony that the state had was .testimony unlawfully procured.

There :are other assignments of error argued by the defendant, but the view we take of this case We do not deem it necessary to discuss them. There is no legal testimony to support the verdict of the jury and judgment based thereon.

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

DOYLE, P. J., and EDWARDS, J., concur.


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    J. H. LEWIS v. STATE.
    No. A-6192.
    Opinion Filed March 3, 1928.
    (264 Pac. 840.)
    J. C. Norman, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, J. H. Lewis, was convicted on a charge of unlawful possession of intoxicating liquor, 'and, in accordance with the verdict of the jury, was sentenced to confinement in the county jail for 60 days and to pay a fine of $150. He prosecutes this appeal for a reversal of the judgment on the ground that the court erred in admitting evidence illegally. obtained by an unlawful search of his home. •

The testimony of C. 0. Hooper, sheriff, and Bill Stapp, deputy, shows that they visited the home of the defendant and without a search warrant forced an entrance into a smokehouse and there found several jars containing whisky.

The sheriff testified that when defendant objected, he told the defendant that he was going to look in there, and he pulled the staples out and opened the door and found the jars-containing whisky in the smokehouse; that he told the defendant that he was responsible, and if there was any damages, he would pay the same.

The record shows that the state’s evidence was admitted' over defendant’s objections, and when the state rested there was a motion for a directed verdict in his favor on the ground that all the evidence offered in the case was obtained by means of an illegal search.

The rule is well settled in this state that, where defendant is charged with possession of intoxicating liquor with unlawful intent to sell the same, and the liquor or evidence of the defendant’s possession thereof has been secured by a search of his home without a search warrant, neither the liquor so seized nor the evidence of the possession thereof so acquired is admissible against him. Jones v. State, 36 Okla. Cr. 180, 253 P. 310; Smith v. State, 34 Okla. Cr. 434, 246 P. 1109.

The mere fact that a man is an officer, whether of high or low degree, gives him no more right than is possessed by an ordinary private citizen to enter and search the private premises of another for evidence of crime without a legal warrant procured for that purpose.

It follows from what has been said that the evidence challenged in this case was taken by the officers by an unlawful search and seizure contrary to section 30, Bill of Rights. For this reason the jury should have been advised to return a verdict of acquittal.

The judgment of the lower court is reversed, and cause remanded, with direction to dismiss.


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    OSCAR LAWRENCE v. STATE.
    No. A-5997.
    Opinion Filed Feb. 11, 1928.
    (264 Pac. 214.)
    Wilkinson & Hudson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Pittsburg county on a charge of pointing a gun and was sentenced to serve a term of 3 months in the cbunty jail and to pay a fine of $50.

The prosecution is based on section 1999, Comp. St. 1921. The charging part of the information is as follows:

“* * * That Oscar Lawrence, in the county and state aforesaid, on the day and year aforesaid, did willfully, wrongfully, and unlawfully point a deadly weapon, to wit, 38 Winchester, No. 304597, 38 W. C. F., to and at one Wallace Creasy and other persons, in the town of Alderson, Okla. * * *”

The record discloses that on the night of October 1, 1925, a meeting of union miners, who were on strike, was held in the streets of Alderson. Defendant, a negro, had been a member of the union, but had abandoned the strike and had resumed work. At this meeting an altercation arose between defendant and others and a fight resulted. Defendant left the scene, went to his residence, and returned toward the meeting with a'gun. He was seized by some of the persons present at the meeting, and the gun taken from him, and he was arrested, charged with this offense.

V|arious errors are assigned and argued in the brief of defendant, but as the record in the trial court was not preserved by proper objection and exception they are waived. The claim that the information is duplicitous and that defendant was tried for more than one offense, however, is preserved in the record. It will be seen by referring to the information that defendant is charged with pointing :a gun at Wallace Creasy “and other persons.” It is not alleged that in one and the same act he pointed a gun at Wallace Creasy and others. The information in this particular is duplicitous. One may be guilty of 'a single offense in pointing a gun at various persons, as where it should be pointed at a crowd of persons. The information should be clear, however, that the pointing is one and the same act. The evidence on the part of the state shows a pointing of the gun at different persons at different times during the latter part of the difficulty. We are not able to say from the record that the defendant was tried for a single offense. On the contrary, it appears that more than one offense was covered by the state’s evidence. It is, of course, fundamental that a defendant cannot be put on trial for more than one offense at the same time. Section 2558, Comp. St. 1921.

The ease is reversed and remanded.

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


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    CHARLEY GREEN v. STATE.
    No. A-6256.
    Opinion Filed Feb. 11, 1928.
    (264 Pac. 215.)
    See also, 39 Okla. Cr. 143, 263 P. 680.
    C. C. Williams, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

On information charging that in Le Flore county, on the 18th day of July, 1925, the defendant, Charley Green, did sell one quart of whisky to Bud Ward for $2.50, he was convicted, and his punishment fixed at a fine of $100, and confinement in the county jail for 60 days. From the judgment rendered in pursuance of the verdict, he appeals on the sole ground that the evidence was not sufficient to sustain the verdict.

The testimony of the complaining witness, Ward, supports the allegations' of the information.

As a witness in his own behalf, the defendant denied that he sold the whisky, and offered testimony tending to impeach the credibility of the state’s witness, Ward. The credibility of the state’s witness was a question for the jury, and, where he testified to the sale, it cannot be said that there was no substantial evidence to support the verdict.

The instructions, to which no objection was made, fairly covered the law of the case.

Finding no prejudicial error, the judgment appealed from is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


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    ARTHUR L. MURRAY v. STATE.
    No. A-6240.
    Opinion Filed Feb. 11, 1928.
    (264 Pac. 215.)

      J. R. Hannah, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the county court of Bryan county, Okla., on a charge of unlawful possession of intoxicating liquor, and Was sentenced to confinement in the county jail for 30 days, and to pay a fine of $50 and costs.

The defendant prosecutes an appeal to this court for a reversal of the judgment on the grounds that the court erred in not sustaining the demurrer of the defendant to the evidence of the state on the ground that the evidence was illegally admitted and was illegally obtained by an unlawful search of the defendant’s home. The evidence on the part of the state shows that the premises searched was the residence of the defendant. It is contended by the state that some one went before Justice of the Peace H. M. Young and made an affidavit for a search warrant, describing the place to be searched as “a four-room house, 3 east of Bennington, in Bryan county.”

On the trial of the case the affidavit could not be found, but a copy of an affidavit in blank, which they state was the same form that Was used in this case, was set out; the copy of said blank is as follows:

“Affidavit for Search Warrant. •
“-, being first duly sworn on oath, states that there is probable cause to believe and that he does believe that - has and keeps whisky and intoxicating liquor and machinery and distills for making the same and - in his possession in his residence and on his premises- described as follows: -. Wherefore he prays that a search warrant may be issued for the search of said residence :a,nd premises for said property, and that the matter may be dealt with according to law.
“Subscribed and sworn to before me this the - day of-, 192 — .
“-, Justice of the Peace.”

The defendant has assigned seven errors alleged to have been committed by the trial court, but the only assignments that we deem necessary to consider are assignments 1, 2, and 5, which are as follows:

“(1) The court erred in overruling the motion of plaintiff in error for new trial.
“(2) The said court committed error in not sustaining motion of defendant in error.”
“(5) The court committed an error in admitting incompetent, irrelevant, and immaterial testimony and evidence on the part of the plaintiff in error, which wlas duly excepted to by plaintiff in error during the trial of said cause.”

These three assignments of error may be considered together as they relate to the sufficiency and competency of the testimony to sustain the judgment and sentence of the court. The testimony on behalf of the state tends to show that C. L. Shoemake, a deputy sheriff, went before Justice of the Peace H. M. Young and made an affidavit for a search warrant, and that the witness Shoemake, in company with Special Deputy W. C. Baxter went to the home of defendant, and searched his residence, and found a quantity of whis-ky. The state offered no testimony other than the testimony procured by witnesses under what they claim to be a search warrant. It is argued by the defendant that the search warrant did not properly describe the premises, and that the affidavit for the search warrant did not allege the place to be searched was the home of the defendant, and that a portion of it was used as a business house, shop, or place of storage where whisky was manufactured, bartered, sold, and given away.

A careful examination of the record and the copy of the form of affidavit that, it was alleged, was made for the search warrant shows that if the affidavit was made, it was made on information and belief and does not attempt to comply with the statute or the decisions of this court, nor does it contain the necessary allegation necessary to be stated in an affidavit on which to base a search warrant to search the residence and home of the defendant.

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

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

In Duncan v. State, 11 Okla. Cr. 217, 144 P. 629, it was held that, under the statute (section 7013, Compiled Statutes 1921), “no officer is authorized to search a private residence occupied as such, or any portion thereof, unless it or some part of it be used as a store, shop, hotel, boarding house or place of storage, or unless such residence is a place of public resort,” and “no magistrate in this state has the power to issue n search warrant to search” a private residence occupied as such, “unless it is made clearly to appear that such private residence comes within the exceptions stated in” said section. Foster v. State, 27 Okla. Cr. 270, 226 P. 602; Hannan v. State, 29 Okla. Cr. 203, 233 P. 249; Coatney v. State, 30 Okla. Cr. 270, 235 P. 942.

If the affidavit was made in the form of State’s Exhibit C, it was insufficient to give the justice of the peace jurisdiction to issue a search warrant, and the testimony for the state was incompetent and inadmissible as having been obtained by a search of the defendant’s home under authority of an illegal search warrant. Objection to the admission of the state’s evidence at the time it was offered by the state should have been sustained, and the demurrer of the defendant to the evidence was well taken.

There being no competent testimony to sustain the verdict and sentence, the judgment of the trial court is reversed and remanded.

DOYLE, P. J., and EDWARDS', J., concur.


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    E. B. ALLEN v. STATE.
    No. A-6267.
    Opinion Filed Feb. 11, 1928.
    (264 Pac. 217.)

      L. A. Pelley, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was charged by information in the county court of Jackson county, Okl:a., on the 21st day of March, 1925, “with the possession of four gallons and one pint of corn whisky, with the unlawful intent to sell, barter, and furnish the same contrary to the form of the statute in such cases made and provided and against the peace and dignity of the state.”

Prior to the plea of the defendant, the defendant appeared by counsel and filed a motion to exclude the articles seized and evidence obtained by the officers, alleging that it' had been obtained unlawfully and illegally, under and by virtue of a void search warrant; which motion was heard by the court and overruled, and defendant duly excepted. The defendant demurred to the information, which demurrer was considered by the court and overruled, and defendant duly excepted. Defendant entered his plea of not guilty, a jury was impaneled, and at the close of the testimony the defendant demurred to the testimony of the state on the ground that' the testimony fails to sustain the allegation, and on the further ground that the testimony is wholly insufficient to sustain the verdict.

The jury after hearing the argument and instructions of the court retired to consider the verdict, and thereafter and on the same day returned into court its verdict, finding the defendant guilty, and left the punishment to be assessed to the court. Motion for new trial was filed and overruled, and defendant reserved an exception. Upon the verdict rendered the court imposed a sentence of 75 days in jail and a. fine of $300 and all costs of the action. The defendant prosecutes an appeal to this court for a reversal of the judgment.

When the state started to introduce its testimony a stipulation was entered into between the attorney representing the defendant and the state, which stipulation is as follows:

“Now, on this 12th day of October, 1925, at a regular day of the October, 1925, term of the county court of 'Jackson county, Okla., this cause comes on for hearing on motion of the defendant, E. B. Allen, to exclude the articles seized and the evidence obtained by virtue of a certain search and seizure had under a complaint for a search warrant and the warrant issued thereon by the judge of the county court of Jackson county, Okla., J. M. Williams, on the 16th day of March, 1925, on the premises of said defendant.
“It is admitted by counsel for plaintiff and defendant that copies of the original complaint and search warrant issued thereon may be, and the same are hereby introduced in evidence instead of the originals which are at this time misplaced, said copies being attached to defendant’s motion filed herein and now before the court.
“It is further admitted that the defendant, E. B. Allen, does not live at or own the premises 'at 700 South Benson street in Altus, Okla., but that said defendant lives at 612 South Benson street in Altus, Okla., and that the dugout searched and in which it is alleged whisky was found at the time is located in the 600 block on South Benson street, Altus, Okla.
“And the court having heard said motion, the evidence introduced and admitted in support thereof and being fully advised in the premises, finds that said motion is not well taken and that the same should be and is hereby in all things overruled, to which order, ruling, and judgment of the court the defendant excepted then and there, and exceptions were by the court .'allowed.”

The copy of the application for the search warrant stipulated by the parties shows that the affidavit for the search warrant was made by Jess Harris, who wias not called as a witness on behalf of the state, and so far as this record shows was never brought to court to testify as to any facts upon which he based his statement for a search warrant. In the affidavit of Harris for the search warrant the premises described to be searched is 700 South Benson street, Altus, Jackson county, Okla. The search warrant issued by J. M. Williams, county judge, describes the place to be searched :as No. 700 South Benson street, in a certain -building described as follows: Three room frame house in Altus, Okla. Neither the application for the search warrant nor the affidavit for the search warrant recites the necessary facts to authorize the court to issue a search warrant to search the residence of the defendant. Both the application for the search Warrant and the search warrant call for the searching of a building at 700 South Benson street. The stipulation of the county attorney and the attorney for the defendant, which is made a part of the testimony, and which has been set out in this opinion, shows that E. B. Allen did not ' live at 700 South Benson street, but that he did live' at number 612 South Benson street, Altus, Okla. — an entirely different location and some distance from the description in the affidavit for the search warrant and the search warrant.

We will first consider assignment 5, which is as follows:

“5. The said court erred in admitting incompetent and. illegal testimony and evidence against the plaintiff in error during the trial of said cause over the objection of plaintiff in error, to which plaintiff in error at the time objected and saved his exceptions.”

There is no testimony introduced against the defendant in this case except the testimony of R. F. Good-loe and J. L. English, who were officers and went to the house of the defendant — ia.ll admitted it to be his residence — and searched the same, which was located at 612 South Benson street, when the affidavit that had been filed and the search warrant that was issued was based upon an affidavit describing 700 South Benson street, and the stipulation filed by both the state and the defendant shows that the 700 South Benson street and the 612 South Benson street is not one and the same piece of property, but are some distance from each other. The affidavit falls far short of the requirements of section 7013 of the Compiled iStatutes of 1921, and a search warrant based upon such an affidavit would not warrant the parties searching the home of the defendant even though he did live at 700 South Benson street. Russell v. State, 25 Okla. Cr. 423, 221 P. 113; Duncan v. State, 11 Okla. Cr. 217, 144 P. 629; Foster v. State, 27 Okla. Cr. 270, 226 P. 602; Hannon v. State, 29 Okla. Cr. 203, 233 P. 249; Coatney v. State, 30 Okla. Cr. 270, 235 P. 942.

Article 2, § 30, of the Constitution, is as follows:

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

It will be seen from the reading of the application for the search warrant that the description given therein of the place to be searched is different from the place that was searched. In Cornelius on Search and Seizure, p. 320, the author, describing this particular matter, in paragraph 1/18 states:

“Where the premises sought to be searched are described by a certain street number, obviously such a description will not authorize the search, of some other street number; thus, a description of the premises at No. 601 of a certain street did not authorize a search of number 603 on that street even though such premises were owned by the same individual and the search was held to be illegal.” State v. Malarky, 57 Mont. 132, 187 P. 635.

In the case of People v. Musk, 221 Mich. 578, 192 N. W. 485, it is said that a warrant to search the premises at 926 Elwood Avenue is not authority to search a residence at 932 Elwood Avenue.

A careful examination of the record shows that the affidavit made by 'Jess Harris did not contain the necessary allegations to justify search being made of the home of the defendant, as the affidavit did not contain the necessary allegations, and the record discloses that the officers did not search the premises called for in the search warrant based upon an insufficient affidavit, but went to another place and searched it. The affidavit was insufficient ¿o give the court jurisdiction to issue a search warrant, and the testimony secured by reason of the search warrant was incompetent, inadmissible and unlawfully obtained. The variance in the description and search warrant for the search of certain premises, known and numbered 700 South Benson street, is insufficient authority for the search of defendant’s residence at 612 South Benson street.

The motion of the defendant to suppress the evidence of the state before he went to trial was well taken, and his objection to the admission of the evidence at the time it was offered during the trial should have been sustained. There being no competent testimony to sustain the sentence and judgment, the judgment of the trial court is reversed and remanded.

DOYLE, P. J., and EDWARDS, J., concur.


text:
    STATE ex rel. SHORT, Atty. Gen., v. WHITE.
    No. A-6002.
    Opinion Filed Feb. 13, 1928.
    (264 Pac. 647.)

      George F. Short, Atty. Gen., Y. P. Crowe, Asst. Atty. Gen., and J. K. Wright, Co. Atty., for the State.
    Roy St. Lewis, U. S. Atty., for respondent.
   DOYLE, P. J.

This case originates in this court by an application for a writ of habeas corpus ad pros-equendum, duly verified and filed in this court by George F. Short, Attorney General, as follows: :

“Your petitioner, the state of Oklahoma, by George F. Short, Attorney General of the State of Oklahoma, represents and states to this honorable court that on the 27th day of November, 1925, one Art Neff, whose more true name is unknown, committed the crime of manslaughter in the county of Oklahoma, state of Oklahoma; and that a preliminary information was filed against the ■ said Art Neff in the justice court in and for Oklahoma City justice district, Oklahoma county, state of Oklahoma, before W. P. Hawkins, justice of the peace of said district, on the 28th day of November, 1925, charging the. said Art Neff with the crime of manslaughter in said county and state, a copy of said preliminary information being attached hereto, marked ‘Exhibit A,’ and made a part hereof.
“That a warrant for the arrest of the said Art Neff was duly issued on and pursuant to said preliminary information on the 28th day of November, 1925, addressed to the sheriff or any constable of said county, for the arrest of said Art Neff for said crime, a copy of which warrant is attached hereto, marked ‘Exhibit B,’ and made a part hereof.
“That said warrant for the arrest of said Art Neff was duly and regularly placed in the hands of the duly elected, qualified, and acting sheriff of the county of Oklahoma, state of Oklahoma, for service upon the said Art Neff; but that the said sheriff, since said date, has been and is now unable to. serve the said warrant upon the said Art Neff, or to arrest and take isto custody the said Art Neff because, since the issuance of said warrant aforesaid, the said Art Neff has at all times been and now is held in the custody and under the control of the United States government and subect to the supervision and control of the Attorney General of the United States, the said Art Neff being so 'held by virtue of a judgment and sentence imposed upon him on the 28th day of November, 1925, by the United States District Court for the Northern District of Oklahoma, confining him to the federal penitentiary at Leavenworth, Kan., to serve a sentence of eighteen months in said federal penitentiary.
“Your petitioner further states and shows that the said Art Neff should be returned to Oklahoma county, state of Oklahoma, to answer said charge of manslaughter aforesaid at this time and before the expiration of his federal sentence imposed by the federal District Court aforesaid, because delay in his trial on said charge of manslaughter would greatly aid him to escape punishment therefor through the disappearance of witnesses, and because of their memory becoming less accurate, and the said Art Neff would thereby be furnished an opportunity to avoid the full expiation of his crimes.
“Your petitioner further states that if and while the said Art Neff is held under the custody of the officers of the state of Oklahoma for trial on the charge aforesaid, he will be kept safely from escape or from danger, that he may be returned to the United States government to finish serving his sentence so imposed by said sovereignty aforesaid, after the completion of his said trial by the state of Oklahoma on the charge of manslaughter aforesaid; and that, if convicted upon said manslaughter charge, the sentence imposed therefor may date from the expiration of the sentence imposed by the federal court aforesaid.
“Your petitioner further states and shows that the Attorney General of the United States has consented that the said Art Neff may be surrendered to the authorities of the state of Oklahoma, that he may be tried on the charge of manslaughter aforesaid.
“Your petitioner further states and shows that the said Art Neff is now in the custody of Ewers White, United States marshal for Western District of Oklahoma, .at Guthrie, Okla., within the territorial confines of the state of Oklahoma, and within the territorial jurisdiction of this court.
“Wherefore your petitioner prays your honorable court to grant a writ of habeas corpus ad prosequendum for the said Art Neif, and that he, the said Art Neff, be remanded to the custody of the sheriff of Oklahoma county, state of Oklahoma, that he may be prosecuted upon the said charge o-? manslaughter aforesaid by the state of Oklahoma, and that he may do and perform the things enjoined upon him by the courts of the state of Oklahoma.”

In response to the writ the respondent filed the following reply:

“Return to Writ.
“Comes now Ewers White, United States marshal for the Western District of the state of Oklahoma, and for his return to the writ of habeas corpus ad prosequen-dum issued herein, states:
“That said Art Neff was placed in his custody on the 12th day of January, 1926, upon delivery from the representative of the warden of the United States penitentiary located at Leavenworth, Kan., pursuant to an order of Hon. John H. Cotteral, Judge of the United States District Court for the Western District of Oklahoma, dated January 9, 1926. A copy of which order in writing is attached hereto.
“In response to the petition and in obedience to the writ of habeas corpus ad prosequendum issued herein, by and with the advice and consent of the Attorney General of the United States and the United States district attorney for the Western District of the state of Oklahoma, I have this day delivered the said Art Neff to the custody of the sheriff of Oklahoma county, Okla., who stands responsible for his safe-keeping, pending his return under proper orders of the court, to the authorities of the United States of America. Ewers White,' United Sta es Marshal for the Western District of Oklahoma.”

In this case the proceedings had were in conformity with the decision of the Supreme Court of the United States, in the case of Ponzi v. Fessenden, 258 U. S. 254, 42 S. Ct. 309, 66 L. Ed. 607, 22 A. L. R. 879. Mr. Chief Justice Taft, delivering the opinion of the court, said:

“We live in the jurisdiction of two sovereignties, each having its own system of courts to declare and enforce its laws in common territory. It would be impossible for such courts to fulfill their respective functions without embarrassing conflict unless rules were adopted by them to avoid it. The people for whose benefit these two systems are maintained are deeply interested. that each system shall be effective and unhindered in its vindication of its laws. The situation requires, therefore, not only' definite rules fixing the powers of the courts in cases of jurisdiction over the same persons and things in actual litigation, but also a spirit of reciprocal comity and mutual assistance to promote due and orderly procedure.
“One accused of crime has a right to a full and fair trial according to the law of the government whose sovereignty he is alleged to have offended, but he has no more than that. He should not be permitted to use the machinery of one sovereignty to obstruct his trial in the courts of the other, unless the necessary operation of such machinery prevents his having a fair trial. He may not complain if. one sovereignty waives its strict right to exclusive custody of him for vindication- of its laws in order that the other may also subject him to conviction of crime against it. Re Andrews (D. C.) 236 F. 300; United States v. Marrin (D. C.) 227 F. 314. Such a waiver is a matter that addresses itself solely to the discretion of the sovereignty making it, and of its representatives with power to grant it. * * *
“In the case at bar, the federal District Court first took custody of Ponzi. He pleaded guilty, was sentenced to imprisonment, and was detained under United States authority to suffer the punishment imposed. Until the end of his term and his discharge, no state court could assume control of his body without the consent of the United States. Under statutes permitting it, he might have been taken, under the writ of habeas corpus, to give evidence in a federal court, or to be tried there, if in the same district (section 753, Rev. Stat.; Comp. Stat. § 128:1; 3 Fed. Stat. Anno. (2d Ed.) p. 462), or be removed by order of a federal court, to be tried in another district (section 1014, Rev. Stat.; Comp. Stat. § 1674; 2 Fed. Stat. Anno. (2d Ed.) p. 654), without violating the order of commitment made by the sentencing court (Ex parte Bollman, 4 Cranch, 75, 98, 2 L. Ed. 554, 562; Ex parte Lamar (C. C. A.) 274 F. 160. 164 (24 A. L. R. 864). This is with the authority of the same sovereign which committed him.
“There is no express authority authorizing the transfer of a federal prisoner to a state court for such purposes. Yet we have no .doubt that it exists and is to be exercised with the consent of the Attorney General. In that officer, the power and discretion to practice the comity in such matters between the federal and state courts is vested. * * *
“But it is argued that when the prisoner is produced in the superior court, he is still in the custody and jurisdiction of the United States, and that the state court cannot try one not within its jurisdiction. This is a refinement which, if entertained, would merely obstruct justice. The prisoner, when produced in the superior court, in compliance with its writ, is personally present. He has full opportunity to make his defense exactly as if he were brought before the court by its own officer. State v. Wilson, 38 Conn. 126, 136. The trial court is given all the jurisdiction needed to try and hear him by the consent of the United States, which only insists on his being kept safely from escape or from danger,' under the eye and control of its officer. This arrangement of comity between the two governments works in no way to the prejudice of the prisoner or of either sovereignty.”

Upon his preliminary examination the prisoner, Art Neff, was held to answer to the district court of Oklahoma county, as provided by law. On information filed in the district court of said county defendant was placed on trial on February 9, 1926, and was by a verdict of a jury found guilty of manslaughter in the first degree and his punishment fixed at imprisonment in the penitentiary for the term of twelve years. Motion for new trial was duly filed and overruled and judgment rendered in pursuance of the verdict. Thereafter by proper orders the prisoner was remanded to the custody of the United States marshal for the Western District of the state of Oklahoma.

EDWARDS and DAVENPORT, JJ., concur.


author: DAVENPORT, 'J.

text:
    FRANK TITSWORTH v. STATE.
    No. A-6247.
    Opinion Filed Feb. 14, 1928.
    (263 Pac. 1115.)
    A. V. Dinwiddie, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, 'J.

The plaintiff in error, Frank Titsworth, hereinafter called the defendant, was convicted in the district court of Logan county of the crime of grand larceny, and was sentenced to serve a term of one year and one day in the penitentiary, and defendant duly excepted. From the judgment and .sentence so rendered, defendant appeals.

There has been no brief filed on behalf of the defendant, although the time for filing the brief has long since passed. Where no brief is filed, the court will examine the record proper, and, where no prejudicial error is apparent, the judgment of the trial court will be affirmed.

After a careful examination of the record, the court finds that the information is sufficient; that the testimony is sufficient to support the verdict; that the instructions fully stated the law applicable to the case and were fair to the defendant; that no prejudicial error was committed by the trial court; and that the defendant was accorded a fair trial.

The judgment of the trial court is affirmed.

DOYLE, P. J., and EDWARDS, J., concur.


author: PER CURrAM.

text:
    LAWRENCE LYTTON v. STATE.
    No. A-6177.
    Opinion Filed Feb. 18, 1928.
    (264 Pac. 228.)
    See, also, 31 Okla. Cr. 369, 239 P. 270.

      Moss & Farmer and H. R. Young, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURrAM.

■ Plaintiff in error, Lawrence Lytton, was convicted of manslaughter in the first degree, and his punishment assessed at imprisonment in the penitentiary for a term of four years.

The information charges that in Tulsa county, on September 1, 1925, he did kill and murder one George Lemons by shooting, him with a pistol.

From the judgment rendered in pursuance of the verdict, an appeal was perfected by filing in this court on April 18, 1926, petition in error with case-made.

After the final submission of the case, his counsel of record have filed in this court a motion to dismiss the appeal herein, which motion is sustained.

It is therefore adjudged and ordered that the appeal herein be and the same is dismissed and the cause remanded to the trial court forthwith, with direction to cause its judgment to be carried into execution.


author: DAVENPOET, J.

text:
    ADA BLEVINS v. STATE.
    No. A-6173.
    Opinion Filed Feb. 20, 1928.
    (264 Pac. 634.)

      H. T. Church, for plaintiif in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPOET, J.

The plaintiif in error, hereinafter called the defendant, was convicted in the county court of Tulsa county, Okla., on a charge of unlawful possession of 'intoxicating liquor, and was sentenced to pay a fine of $50 and imprisonment in the county jail for a period of 30 days. Defendant prosecutes an appeal to this court for a review of the judgment and sentence, and alleges a number of errors committed by the trial court as grounds for a reversal of this case.

The testimony on behalf of the state shows that Ada Blevins and her husband resided in Sand Springs, Okla., that J. H. Smitherman, who was a deputy sheriff, had been watching their house and on one or more occasions had seen men and women come from the house, some of them in an intoxicated condition. Smitherman made the affidavit for a, search warrant, which affidavit states positive facts as to the grounds for the search warrant; the house was searched and one quart of com whisky was found and several bottles that witnesses designate as Choctaw beer were found. Staley Webb testified, in substance, to the same facts that witness J. H. Smitherman testified to. H. E. Eowe testified that the chemical analysis showed that the Choctaw beer contained 6.9 per cent, of alcohol, measured by volume.

The defendant in her own behalf testified, in substance, that she Was the wife of Charley Blevins; that on the 7th day of May, 1924, they lived at Sand Springs; that J. H. Smitherman on the 7th day of May, 1924, came to where she was living at Sand Springs, about 5:30 in the afternoon; that her husband was not at home; that'there was only one man present at the house when the officers came, and he had been living with them for some time; that his name was Bennie, but she did not know his other name, that there were four women at her house; they were playing cards when the officers came; that she did have a quart of whisky in the house which a man by the name oif Floyd had brought there and told her to give it to Blevins, her husband; that the whisky had only been in the house since about 3 o’clock the same afternoon the officers searched it; that it was corn Whisky; that she probably had two gallons of choc beer; that her husband had made it; that the beer was made for them to drink, and they had not sold beer to any one.

The first error assigned by the defendant is as follows:

“(1) That the court erred in overruling defendant’s motion to suppress the evidence sought to be offered and introduced by the state, for the reason that the same had been obtained and procured by illegal search and seizure of the private residence and premises of the defendant, in violation of the defendant’s constitutional rights against unlawful search and seizure, to which ruling of the court defendant duly excepted at the time.”

It is strongly argued by the defendant that the affidavit did not state sufficient facts to give the court jurisdiction to issue the search warrant, and that by reason of that fact the search and seizure was illegal. The affidavit for the search warrant states positively the facts necessary to be stated in the affidavit to give the court jurisdiction to issue the search warrant. At the hearing of defendant’s motion to suppress and' exclude the evidence secured under the search warrant, the testimony of Smitherman was taken, and, upon cross-examination, in reply to the following questions, gave the following answers:

“Q. What circumstances did you see there, Smitherman? A. I have seen people going to and from the place in a drunken condition.
“Q. How frequently did you see them going there? A. Every time I was over there to watch the place.
“Q. You obtained all these facts before you filed this affidavit? A. Certainly did.
“Q. They were matters of your own personal knowledge and not hearsay at the time you filed it? A. Yes, sir.”

In support of defendant’s motion to suppress, the defendant has cited a number of authorities, but, upon examination- of them, we find the facts are not the same as in this case.

Under the laws of this state (section 1, c. 123, p. 144, Session Laws 1923-24) —

“The keeping in excess of one quart of any spirituous, vinous, fermented or malt liquors, or any imitation thereof, or substitute therefor; or any liquor or compounds'of any kind or description whatsoever, whether medicated or not, which contains as much as one-half of one per cent, of alcohol, measured by volume, and which is capable of being used as a beverage,” is “prima facie evidence of an intention to convey, sell or otherwise dispose of such liquors.”

The motion of the defendant to suppress the testimony was properly overruled. There are other errors assigned by the defendant, but upon careful examination of the record we hold that the errors assigned did not prejudice the rights of the defendant. A careful examination of the evidence shows that it was sufficient to sustain the verdict and judgment. From a consideration of the whole case the guilt of the defendant is clearly proven. The punishment assessed by the jury in this case is the minimum.

There being no error prejudicial to the rights of the defendant, the judgment and sentence is affirmed.

DOYLE, P. J., and EDWARDS, J., concur.


text:
    A. W. HALL v. STATE.
    No. A-5947.
    Opinion Filed Feb. 20, 1928.
    (264 Pac. 221.)
    M. D. Hartsell, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Muskogee county on a charge of having the possession of whisky mash fit for distillation, and was sentenced to pay a fine of $50, and to serve 30 days in the county jail.

Briefly stated, the record discloses that on the forenoon of the day charged the sheriff and others procured a search warrant, and made search of defendant’s residence and immediate surroundings. They found no incriminating evidence. That afternoon they returned to defendant’s farm, and, while in a pasture 150 yards or farther from his residence, searching along a small creek, they detected the smell of mash, which they followed to an old house in the pasture. ■ The front of this house was padlocked, and the rear door was. fastened with a wire. There was an adjoining room unfastened, which they entered, and, looking through a crack in the door, saw some barrels of mash and a still inside. They unfastened the door, entered, and discovered eleven full barrels of whisky mash, a coal oil reservoir, tank, burner, a cooling system, a sack of sugar, and other things indicating the manufacture of whisky. They testified the smell of the mash was discernible 60 to 100 feet away from the building. There was also evidence that in the forenoon, when at the residence of defendant, they inquired of him about this building. In substance he informed them that no one lived there; he was using it for a cow stable. There was also evidence that a dim trail or road led from this house toward the residence of defendant.

The defendant testified that some time before he had rented the house to one Miller, who had occupied it up to about this time. He suspected Miller was making whisky there, as he had smelled the mash. He had not known Miller before renting the house to him; did not know whether he had a family or not. He. further testified he had a cow in the pasture there, some time milked her in the -stall near the house, watered her at the well there, and kept feed in the back room, but never peeped in; that, when the officers inquired in the forenoon in reference to the house, he did not tell them that Miller lived there, but told them he had been using the house for a stable.

It is first -argued that the evidence, being entirely circumstantial, is insufficient to sustain the verdict and judgment. We are not able to agree with this contention. The circumstances exclude any reasonable hypothesis of innocence, land conclusively p-r’ove .that defendant either had possession of the mash and operated the still, and that Miller, if he had any connection with it, was a mere assistant, or they operated it together. Defendant’s explanation of the presence of the still on his land, near his house under the circumstances, is wholly unreasonable, and the jury was warranted in giving it little credence.

It is next urged that a statement of the county attorney in his argument is prejudicial. In the course of the argument counsel for defendant objected as follows:

“Mr. Hartsell: We object to the remark of the county attorney that: ‘Ordinarily when we try a case once, and it is not decided by a jury, we very seldom try it again.’ The defendant objects to that remark, and moves the court to admonish the jury to not consider it at all.”

This was overruled, and the county attorney further stated that the testimony of defendant was different to what it had been at a former trial, and for this reason he knew he was guilty. This was objected to, and the court admonished the county attorney to confine his argument to evidence in the case, and not to speculate on what the evidence was, or tell what the ' evidence was, in the former case. That there had been a former trial was shown by the evidence, but the testimony of defendant at such trial was not brought out. Eeference to it was improper.

It is insisted that much of the state’s evidence was incompetent, as having been procured by an illegal search of the house where the mash was found. The house was no part of defendant’s residence, or the curtilage or immediate surroundings, according to defendant’s own testimony, _ was not in his possession at the time, but was rented to one Miller, and he was not in a position to complain. Penrod v. State, 38 Okla. Cr. 46, 258 P. 1052.

Lastly, complaint is made that the court erred in instruction No. 8, in which the jury are instructed, in substance, that the officers had no right to search the premises where the mash is claimed to have been found, unless they should find that the officers knew an offense was being committed in their presence in the building in question, but, in the event they should find that the offense was not committed in the presence and within the knowledge of the officers, the search was illegal, the evidence inadmissible, and the defendant should be acquitted, but, if they should find beyond a reasonable doubt that a crime was committed in the presence of the officers with their knowledge, the evidence would be admissible. This instruction is involved and improper. Generally, the admissibility of evidence is not a matter for the jury, but a matter for the court, and it is for him to say whether or not it is admissible. The only effect of this instruction, however, is to weaken the evidence and minimize its probative force. While the instruction is erroneous, it is not prejudicial to defendant.

Upon a consideration of the whole case, the guilt of. defendant is clearly proven, the punishment assessed is the minimum, and such errors as are disclosed by the record are not so materially prejudicial as to require a reversal.

The case is affirmed.

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