text:
    In re ALF KEY.
    No. A-10960.
    Jan. 28, 1948.
    (189 P. 2d 619.)
    Frank Grayson, of Oklahoma City, and Kirksey Nix, of McAlester, for petitioner.
    Mac Q. Williamson, Atty. Gen., Fermon Hatcher, County Atty., of Pauls Yalley, and Anita Ellerbee, Asst. County Atty., Garvin County, for respondent.
   BRETT, J.

The petitioner, Alf Key, was charged in Garvin county, Okla., with the crime of murder. At the preliminary examination he was held to the district court without bail and information was filed against him in the district court of Garvin county, August 7, 1947, and said Alf Key is now confined in the county jail of Garvin county, at Pauls Valley, Okla.

Application was made to the district court of Garvin county for a writ of habeas corpus and a hearing had thereon and the petitioner, Alf Key, was denied bail.

He has filed his application in this court for a writ of habeas corpus stating that he is not guilty of the crime of murder, as charged, and that proof of his guilt of the charge of murder is not evident nor that the presumption thereof great. ' This petition was heard by agreement of the parties in this court on October 27, 1947.

It is unnecessary to give a detailed statement of the testimony presented at the hearing before this court. A transcript of the testimony and evidence taken at the preliminary examination and in the district court, on application for writ of habeas corpus, was introduced and oral testimony was also heard by. this court. The evidence in the transcript from the proceedings below and the oral testimony taken in this court are sufficient to raise the presumption of a probable case of accidental and not a premeditated and intentional homicide. Upon a careful examination of the evidence and all of the facts, we are of the opinion that proof of petitioner’s guilt is not evident nor the presumption thereof great.

For the foregoing reasons the petitioner is entitled to the writ and the same is hereby granted and said petitioner Alf Key is ordered to be released from the county jail of Garvin county upon the giving of bail in the sum of $20,000 to be approved by the court clerk of Garvin county*

In keeping with this order, the writ is hereby granted to the above petitioner in compliance with the order as above stated.

BAREFFOOT, P. J., and JONES, J., concur.


source: Caselaw Access Project

author: BAREFOOT, P. J.

license: Public Domain

text:
    W. B. CRUSE v. STATE.
    No. A-10838.
    Jan. 28, 1948.
    (187 P. 2d 235.)

      C. C. Williams, of Potean, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., and Joseph W. Foster, County Atty., of Poteau, for defendant in error.
   BAREFOOT, P. J.

The defendant W. B. Cruse was charged in the county court of Le Flore county with the offense of contributing to the delinquency of a minor; was tried, found guilty and his punishment fixed at 60 days in the county jail and a $200 fine, and appeal has been filed.

Defendant was tried before a jury, and verdict of guilty returned on September 25, 1946. On motion of the defendant, sentence was postponed until October 14, 1946, and on that date defendant filed a motion for new trial, which motion was overruled and defendant was sentenced. He gave notice of appeal, and was released on bond.

There appears in the case-made an order extending time to prepare and serve the case-made, which order is dated December 5, 1946, allowing the defendant 30 days additional time to perfect his appeal. On the same day, December 5, 1946, the case-made was served on the county attorney, the usual stipulation was signed by the attorneys, and the case-made was signed and settled by the trial judge, but was not filed (with petition in error) with the Clerk of the Criminal Court of Appeals until February 21, 1947, 129 days after the date of judgment.

The Attorney General has filed a motion to dismiss the appeal on the ground that the same was not taken within the time allowed by the statute. To this motion the attorney for defendant has filed a response, in which he admits that the appeal was not filed within the time allowed by law, bnt states that he, the attorney, became ill and the delay was unavoidable.

As this court has said upon numerous occasions, we are reluctant to dismiss appeals in criminal cases, and will not do so upon technicalities, but when the appeal has not been filed within the time prescribed by law, this court does not have jurisdiction to consider the appeal.

Tit. 22, O. S. 1941 § 1054 provides:

“In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered; Provided, however, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days.”

This section of the statute, prescribing the manner in which an appeal can be taken, is mandatory, and a failure to file the appeal in the appellate court within the time allowed by law is fatal to the appeal. Green v. State, 7 Okla. Cr. 5, 129 P. 1037, and numerous later cases.

There is no provision of.law which vests this court with discretion to hear and determine appeals on the merits when they are not taken within the time prescribed by statute. Howey v. State, 9 Okla. Cr. 453, 132 P. 499; Newton v. State, 38 Okla. Cr. 217, 260 P. 84; King v. State, 68 Okla. Cr. 145, 96 P. 2d 95; Bullard v. State, 73 Okla. Cr. 238, 119 P. 2d 870; Wilkerson v. State, 76 Okla. Cr. 152, 134 P. 2d 998; Miller v. State, 78 Okla. Cr. 112, 144 P. 2d 120, and many other cases.

Petition in error and case-made not having been filed in this court within 120 days after the rendition of judgment, this being a misdemeanor conviction, the motion of counsel for tbe state to dismiss tbe attempted appeal must necessarily be sustained.

Tbe attempted appeal herein is therefore dismissed, and the cause is remanded to tbe trial court, with directions to enforce its judgment and sentence.

JONES and BRETT, JJ., concur.


author: BRETT, J.

text:
    Ex parte GRAYSON.
    No. A-11006.
    Feb. 4, 1948.
    (187 P. 2d 232.)

      Cecil E. Robertson, of Muskogee, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for respondent.
   BRETT, J.

The petitioner, Lewis Grayson, was tried and convicted by a jury in the district court of Muskogee county, Okla., on a charge of first degree rape and his punishment was fixed at death in the penitentiary at Mc-Alester', Okla. In conformity with the verdict of the jury, the court pronounced formal judgment and sentence on December 12, 1945, fixing the penalty at death by electrocution to be executed in the penitentiary on March 13, 1946. From this judgment and sentence the petitioner perfected an appeal to this court in which the judgment and sentence was affirmed as ihe same appears in Grayson v. State, No. 10722, 85 Okla. Cr. 266, 188 P. 2d 696. In this opinion a new date was fixed by this court for the petitioner’s execution, the same being March 26,1948.

Thereafter, the petitioner filed this application for writ of habeas corpus, alleging in substance that he was being unlawfully detained in the penitentiary. To this petition the Attorney General made response that the petitioner was being restrained not by order of the trial court, but on the order of the Criminal Court of Appeals, awaiting execution under its orders.

: The petitioner’s contention is predicated upon the following grounds: That the order of commitment, judgment and sentence, and the death warrant issued on the 12th day ,bf. December 1945, under which he is. how imprisoned, are . void for the reason that the number of days from December 12, 1945 (the date of judgment) to March 13, 1946 (the date fixed for execution of the sentence) is ninety-one (91) days and one day in excess of the statutory limitation. This contention is predicated upon the provisions of Title 22 O. S. A. §1001, which provides as follows, to wit:

“When judgment of death is rendered, the judge must sign and deliver to the sheriff of the county a warrant duly attested by the clerk, under the seal of the court, stating the conviction and judgment and appointing a day on which the judgment is to be executed, which must be not less than sixty nor moré than ninety days from the time of the judgment and must direct the sheriff to deliver the defendant within ten days from the time of judgment to the warden of the state prison at McAlester, in this state, for execution.”

In support of his contentions, the petitioner relies upon Noel v. State, 17 Okla. Cr. 308, 188 P. 688, wherein the trial court fixed the date of execution at fifty-six (56) days from'the date of judgment, or four (4) days less than the minimum of sixty (60) days provided by the statute. In that case this court held that the death warrant based upon the judgment so designating the time for execution fifty-six days after judgment was invalid. It is quite clear that the decision in the Noel case turned upon the proposition that the death warrant based on the judgment and sentence therein was in the nature of an increase or in excess of punishment to that provided by statute. That is true because that order shortened his lease on life. Such is not the case here. This conclusion is based upon the language of Judge Doyle in the body of the opinion, wherein he says, at page 314:

“As a general rule, an extension of time within which the execution may take place after the sentence of death is a mitigation, and not an increase of punishment. In this case the court fixed the date of execution within the minimum time prescribed by the statute.”

It therefore follows that the Noel case does not apply to the case at bar, since the extension of time herein involved, in excess of 90 days, was a mitigation and not an increase of punishment. Furthermore, the error was rendered nugatory by the petitioner’s act of invoking the jurisdiction of this court. It is apparent that Judge Doyle recognized this distinction when he quoted from Lowenberg v. People, 27 N. Y. 336, a case involving a similar situation and applicable to the one at bar, as follows :

“The convict having procured a stay of proceedings until the day of execution had passed, the error had, by his own act, become wholly immaterial, and he could not require the Supreme Court to reverse a judgment otherwise unobjectionable, on account of a separable addition thereto, void in itself, and which the lapse of time had rendered wholly nugatory.”

Moreover, we are of the opinion that it was not the intention of Judge Doyle in the Noel case, supra, to give that case the broad meaning contended for by the petitioner to the effect that the ';time of execution of judgment and sentence is part of the judgment itself. This position is made apparent by reference to a later case, Washington v. State, 32 Okla. Cr. 392, 241 P. 350, wherein. this court said at page 394:

“The judgment is determined by the jury in their verdict, and upon the verdict, which must be strictly followed, the court enters judgment. The judgment in this case was that the defendant should suffer death for the crime by him committed as determined by the verdict of the jury. The time within which the judgment shall be executed is fixed by statute (section 2784, Comp. St. 1921) at not less than 60 nor more than 90 days from the time of the judgment. The judgment is the adjudication of guilt and the fixing of the punishment. The time of the execution of the sentence in a capital case is a part of the execution of the judgment rather than a part of the judgment itself. It is a consequence which the law attaches to the judgment. The refixing or resetting of the time for execution, where for any reason the judgment of death has not been executed, is a merely ministerial act * *

Even though the defendant had stood on the judgment, sentence, and death warrant, as made and issued by the lower court, and sought relief by habeas corpus in this court, this court could not have granted his release on the defective death warrant, but, at most, could only have, issued an order directed to the lower court, to fix another day for the execution within the limits of 60 to 90 days. Here, the petitioner did not elect to stand on the day fixed in the judgment and sentence and death warrant for his execution; instead, he perfected an appeal in cause No. A-10722, referred to supra. Thus, he elected to stay the judgment and sentence for execution of the death warrant, and to invoke the jurisdiction of this court, by perfecting his appeal. In State v. Armstrong, 45 Ore. 25, 74 P. 1025, the Oregon Supreme Court said:

“Further proceedings thereon were suspended pending the appeal, but the defendant was held and is in custody under the original warrant directing his execution. The officer cannot execute the warrant, it is true, not because it has expired, but because , the day fixed ,by the court has passed, the same as if the prisoner had escaped, or, for some other reason not affecting the validity , of the judgment, the day appointed had been allowed to pass without the execution of the judgment. In such case the authorities are agreed, so far as we have been, able to discover, that it is the duty of the court or. officer vested by law with the power of fixing the day for the execution of the sentence to assign a new day, and the resentencing of the defendant or the issuance of a new warrant are not required.” * * * As was said by “Mr. Chief Justice Fuller in Re Cross, 13 Sup. Ct. 109, 36 L. Ed. 969 — that in such case it becomes ‘the duty of the court to assign, if there had been no other disposition of the case, a new time for execution.’ ”

To the same effect is State v. Wilkins, 72 Ore. 77, 142 P. 589, and People v. Sloper, 198 Cal. 601, 246 P. 802.

It is fundamental that habeas corpus is the remedy by which inquiry is made into the cause of restraint of a person. This situation presents the inquiry, will habeas corpus lie under the contentions of the petitioner in the case at bar? We do not think so. When, by the petitioner’s own act of invoking the jurisdiction of this court by appeal, a stay of the proceedings was procured until the day of execution had passed, the error he now complains of becomes wholly immaterial and cannot be made the basis for relief by habeas corpus. Such must be the rule since the original warrant of execution, having spent itself by lapse of time due to the petitioner’s own acts, his present restraint is not by reason of the trial court’s warrant of execution, but, by reason of this court’s order directing the restraint of the prisoner for execution pursuant to the mandate of this court affirming the death sentence imposed by the trial court.

This being true, the time for execution of the sentence not being a part of the judgment itself but only part of the execution of the judgment and constituting merely a ministerial act, and, jurisdiction of this court having been invoked and being then in force in cause No. A-10722 (Grayson v. State), it then became the duty of this court to assign a new time for execution, as has been done in numerous other cases, where the time for execution bad expired. In this connection, see Tuggle v. State, 73 Okla. Cr. 208, 119 P. 2d 857, wherein this court said:

“The original time for execution having passed, owing to the pendency of this appeal, it is considered, ordered, and adjudged by this court that the judgment and sentence of the district court of Garvin county be carried out by the electrocution of the defendant. * * *”

See, also, Bingham v. State, 82 Okla. Cr. 5, 165 P. 2d 646, and numerous other cases.

The writ of habeas corpus is therefore denied.

BAREFOOT, P. J., and JONES, J., concur.


text:
    J. D. GENTRY v. STATE.
    No. A-10846.
    Feb. 4, 1948.
    (189 P. 2d 626.)
    Wm. H. Lewis, of Oklahoma City, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., and Warren H. Edwards, County Atty., Oklahoma County, of Oklahoma City, for defendant in error.
   BAREFOOT, P. J.

Defendant, J. D. Gentry, was charged in the court of common pleas of Oklahoma county with illegal possession of intoxicating liquor, to wit: 27 pints of whisky. He was tried, found guilty, and his punishment assessed at 30 days in jail and $300 fine, and he has appealed.

Defendant in his brief states:

“The defendant has raised various assignments of error, but the sole question in this case is whether or not the trial court erred in overruling the defendant’s motion to suppress the evidence and determination of that question by this honorable court is in the judgment of the defendant the decisive question to be decided.”

Thereafter, defendant filed a supplemental brief in which, for the first time, he raises objection to instruction No. 5, given by the trial court. Further mention will be made of this instruction.

Two city policemen made the arrest, and at the hearing on the motion to suppress, the defendant and one of the policemen testified.

On the trial of the case, the state offered four witnesses, namely, the two police officers who made the arrest, Nash Setzer, evidence man from the county attorney’s office, and one deputy sheriff. Defendant offered no evidence.

The two police officers testified that they knew the defendant well; that on the date in question they saw the defendant drive into an alley and watched him as he turned in back of a two-story rooming house, and saw him go in at a back door. They knew where defendant lived, and he did not live at this address. There was no driveway and no fence, and defendant had driven Ms car in the yard, back of the house, located at No. 22 Northwest Tenth Street, in Oklahoma City. The officers pulled their car in directly behind that of the defendant, and waited for him to come out of the house. He came out, with a large paper bag in his arms.

Policeman Jack Caldwell testified:

“A. We drove in the alley and in back of his car. He came out of this house, 22 Northwest- Tenth, at the back door, carrying a paper sack. He started to get in his car, and I asked him what he had. He brought it back to the car and handed it to me, and said, ‘A little whisky.’ ”

There were six pints of whisky in the sack, and defendant was arrested at this time. The witness further testified that he asked defendant if he had any more whis-ky in the house, and he said “Yes,” and handed witness the key to the door. They went in the room, and found a box, in the middle of the floor, with 27 pints of whisky, and took the 33 pints to the office. Witness admitted that they did not have a search warrant, either for the person, automobile or room of the defendant.

The other police officer, H. T. Taylor, corroborated Mr. Caldwell, but stated that when the defendant came out of the house with the sack and saw the officers, he came back to the car and handed the sack in the car to them, saying: “Here it is.” He did not recall hearing Mr. Caldwell ask him what he had in the sack.

Nash Setzer, the special investigator from the county attorney’s office, identified a certified copy of a Federal liquor stamp, issued: “To J. D. Gentry, Business: “retail liquor dealer. Address: 15 N. W. 5th Street, Oklahoma City” where the defendant, on the motion to suppress, admitted that he had lived for three years.

L. H. Kolb identified the 33 pints of whisky introduced as that turned to the sheriff’s office by the city police. The two police officers also identified the whisky.

The defendant, on the motion to suppress, testified that he and his wife had some trouble about January 1, 1946, and he rented the room at the address where the liquor was found; that he stayed there a short time, and still had some clothing in the room, but was living at his home at the time the arrest was made. He testified: “Well, I had a few clothes that I kept with me, and I had. a little whisky.” He testified that when he went out to get in his car, the officers were parked back of his automobile and wanted to know what he had in the sack; that no one could see what was in the sack; and that the whis-ky he had in the sack and that in the room was his. He testified:

“Q. And you knew they were police officers as soon as you saw them, did’nt you? A. Yeah; I recognized who they were when they drove up behind me and asked me what I had there. Q. And you just walked over to the car and handed them the liquor and they arrested you? A. There wasn’t much I could do about it. * * * A. Well, that’s just how it happened. Q. Anyway, you didn’t make any objection to them having the liquor, did you? A. I don’t make any objection to any officer of the law, to any officer of the law. I do what they say.”

He then testified that he gave them the key to the back door of his apartment. When asked: “You didn’t make any objection to that, did you?” defendant answered: “No, sir.”

From the above statement it is obvious, under the many cases decided by this court, that the defendant was committing a misdemeanor in tlie presence of the officers, and it was unnecessary for them to secure a search warrant prior to arresting him. It is unnecessary to unduly lengthen this opinion by quoting from the many cases, and we only cite a few of them. Dean v. State, 63 Okla. Cr. 385, 75 P. 2d 900; McElroy v. State, 76 Okla. Cr. 10, 133 P. 2d 900; Barfield v. State, 68 Okla. Cr. 455, 99 P. 2d 544; Young v. State, 71 Okla. Cr. 112, 108 P. 2d 1028 and cases cited therein; Tripp v. State, 73 Okla. Cr. 69, 118 P. 2d 273; Blair v. State, 75 Okla. Cr. 265, 130 P. 2d 545; Mitchell v. State, 73 Okla. Cr. 184, 119 P. 2d 99; Scott v. State, 84 Okla. Cr. 171, 180 P. 2d 196; Camp v. State, 70 Okla. Cr. 68, 104 P. 2d 572.

We have carefully examined the cases cited by defendant, and the facts therein are clearly distinguishable from the facts here presented.

In defendant’s original brief filed in this case, no complaint is made to the instructions of the court given in this case. In a supplemental brief, it is urged that this case should be reversed by reason of the giving of instruction No. 5. This was an instruction similar to one given in the case of Hughes v. State, 85 Okla. Cr. 25, 184 P. 2d 625, cited by defendant. An examination of the record reveals that no exception was taken to the giving of this instruction in the instant case, as there was in the Hughes case. It has often been held that the failure to except to the giving of an instruction constitutes a waiver of the right to question the same. Neither in the motion for new trial nor the petition in error is there question raised to the instructions given in this case.

Finding no error in the judgment of the court of common pleas of Oklahoma City, the same is affirmed.

JONES and BRETT, JJ., concur:


author: JONES, J.

text:
    F. E. BRISTOW v. STATE.
    No. A-10800.
    Feb. 4, 1948.
    (189 P. 2d 629.)
    E. Moore, of Coalgate, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, P. E. Bristow, was tried and convicted in the county court of Coal county on a purported charge of driving an automobile on a public highway while under the influence of intoxicating liquor, and was assessed a fine of $100.

The defendant is entitled to be sustained on two of the propositions presented by the appeal. The demurrer to the information should have been sustained, and the evidence is insufficient to support the conviction.

In the caption to the information, it alleged that the defendant committed the offense of “Driving an automobile while under the influence of intoxicating liquor”, but in the charging part of the information it is alleged:

“That P. E. Bristow in the County and State aforesaid, on the day and year aforesaid, did wilfully, wrongfully, knowingly and unlawfully, drive a certain automobile, a 1929 Dodge Sedan, 46 Oklahoma, 65-572, on Highway No. 31, (State Highway No. 31), northeast of the city of Coalgate, Oklahoma, and south of the Caney Bridge on said Highway, contrary to the form of the statutes, in such cases made and provided, and against the peace and dignity of the State.”

In the case of Allen v. State, 63 Okla. Cr. 16, 72 P. 2d 516, 519, this court stated:

“An information is divided into four parts: (1) The caption; (2) the commencement; (3) the charge; and (4) the conclusion. The substantial part of the information is the charging part.
“No information is insufficient by reason of a defect or imperfection in the matter of form, which does not tend to the prejudice of the substantial rights of the defendant on the merits. Section 2892 (22 Okla. St. Ann. § 410).
“The statute dispenses with mere formality and technicality, hut the requirement that the information must be direct and certain as it regards the party charged, the offense charged, and the particular circumstances of the offense charged, is imperative. Section 2884 (22 Okla. St. Ann. § 402).”

In Bruning v. State, 63 Okla. Cr. 1, 72 P. 2d 393, this court held, first syllabus:

“The introductory paragraph of an information is ordinarily equivalent to a mere descriptive label, and a wrong name given to the crime in that part of an information is an irregularity only, and not fatal. The charging part of the information must be looked to, to determine the character of the offense.”

In the body of the opinion in said case it is stated:

“It appears that the name given to the crime charged in the information is forgery in the first degree, but by the charging part the defendants are charged with forgery in the second degree.
“A mistake in this particular is an irregularity and is not fatal. The introductory paragraph of an information is ordinarily equivalent to a mere descriptive label. Vickers v. U. S., 1 Okla. Cr. 452, 459, 98 P. 467.
“A wrong name given to a crime in the preliminary part of an information is an irregularity only, and is not fatal. The charging part of the information must be looked to, to determine the character of the offense. Kelly v. State, 12 Okla. Cr. 208, 153 P. 1094.”

See, also, Ex parte Conway, 84 Okla. Cr. 118, 179 P. 2d 699.

It would seem when measured in the light of the above authorities that the failure of the information to charge that the defendant was under the influence of intoxicating liquor at the time he drove his automobile on the highway, renders it fatally defective and the demurrer should have been sustained.

However, the principal contention of the defendant is that the evidence is insufficient to sustain the conviction. Only two witnesses testified for the State and no evidence was offered on behalf of defendant. These two witnesses were highway patrolmen who did not see the automobile of defendant until after it had overturned on the side of the road. Their testimony, was short. Since their testimony was substantially identical, we shall quote only from the first witness Which was called. After testifying that he arrested defendant .on June 7, 1946, the patrolman testified:

“Q. Tell the court and the . jury just what .you saw and what you did. on that occasion? A. I was here in the county jail down heré working on art accident, arid they told. us there was another accident out toward Cottonwood, so. w.e rushed to. town, and when we got there, there was a car turned over on the highway this , sideof the bridge, and we had information it belonged to Mr. Bris-tow; and some 30 minutes later we found him at Paris’s house. . Q. Was he at the car when you fblind him? . A. He was not. Q. What was his condition, as to... being drunk or sober, when you discovered him? A. . He was drunk. Q. You did not see him drive the car? A.' I did not. He said he had driven it, so did Paris.' Q. They made the statement that Prank Bristow Was driving the car when it turned over? A. That is correct. That-is all.”

There was no testimony by any witness who saw the defendant immediately before the accident to describe his condition or to state what his actions were immediately before Or after the accident occurred. The highway patrolmen testified that they saw the defendant ¿t the homé of one Paris about 30 minutes after they had examined the car which turned Over on the highway. Theré was rio proof as to what time had elapsed from the time the defendant had overturned his automobile until the patrolmen arrived at the scene. There are just too many leaks in the proof of the state and too much evidence is dependent upon surmise, speculation and suspicion. It may be true that the defendant was operating his automobile while in á drunken condition, but the closest the state came to proving it was . a statement by the patrolmen' that he was drunk when they found him which was about 30 minutes after they had investigated .the áccident without any showing at all as to how long it had been since the car allegedly driven by defendant had left the road.

Because'of the insufficiency of the evidence to sustain the conviction, the judgment of: the county court of Coal county is reverséd and the defendant is discharged.


text:
    STATE v. EARL CLAUDE MOYERS.
    A-10548.
    Feb. 11, 1948.
    (189 P. 2d 952.)

      Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for plaintiff in error.
    Guy H. Sigler, of Ardmore, for defendant in error.
   JONES, J.

The defendant, Earl Claude Moyers, was charged by information filed in the county court of Carter county with a violation of that portion of § 303, Tit. 47, O. S. 1941, which provides as follows:

“No person shall operate a motor vehicle on any high: way of this State during the time for which the license of said person as a driver or operator has been suspended or revoked.”

A jury was waived and the cause submitted to the county court upon a stipulation of facts. Thereafter the court filed a journal entry of judgment finding defendant. not guilty of said misdemeanor and discharging him. The state then appealed upon a reserved question of law.

In the case of State v. Waldrep, 80 Okla. Cr. 230, 158 P. 2d 368, 369, it is held:

“In a criminal case the State may appeal to this court: First, from a judgment setting aside an indictment or information; second, upon an order .of court arresting judgment; and, third, upon a question, reserved by the State. An appeal upon a question reserved by the State does not bring up any part of the trial or proceedings of the case, except the question reserved..and the judgment of acquittal, and if such question reserved is decided in favor of the State, it simply settles that question of law and does not affect the verdict of acquittal.”

In the journal entry of judgment, the trial court made the following findings:

“That the petitioner, Earl Claude .Moyer, is a reputable law-abiding citizen of Carter county, Oklahoma; that at the time he entered plea of guilty in Durant, Oklahoma, to the charge of drunken driving that he had had a drink of liquor at ten o’clock a. m., and that the accident leading to the filing of this charge occurred at four o’clock p. m.; that he was also charged with reckless driving and paid a fine therefor; that the evidence does not show that he was intoxicated or that he was guilty of drunken driving, and tends to show that he entered pleas of guilty in these two cases to avoid delay; that no notice was given to him by the Commissioner of Public Safety, and that he had no opportunity to defend himself; and it appears from the evidence that the Commissioner of Public Safety abused his discretion in revoking the license of this petitioner and that said revocation should be set aside and license restored.”

Under the stipulation of facts, it is shown that the State Commissioner of Public Safety entered an order suspending the driver’s license of defendant for a period of one year, after he had been furnished with a certified copy of the'judgment showing that defendant had entered a plea of guilty in the city court of Durant, Oklahoma, to driving a motor vehicle while under the influence of intoxicating liquor. After the order óf suspension of the driver’s license was made by the Commissioner, the defendant, pursuant to the provisions of: Tit. 47, §:300, ,0..-S. 1941, filed' a petition in. the connty court asking that court to review the action of the Commissioner in suspending thé license and further praying that the county court restore the driver’s license to the defendant. After the journal entry of judgment was rendered by the county, court, the' Commissioner of Public Safety appealed to the district court, and it was during the period of time between-the order of the county court restoring the driver’s' license of the defendant and the time béfore the appeal was heard in the district court that the defendant drove his automobile on the public highways of Carter county,' which was the basis for the action herein filed.

It is the contention of the state that the order of the county court restoring the driver’s license to the defendant was stayed by operation of law pending the decision of the appeal by the Commissioner to the district court.

In the brief oh behalf - of the state, a determination is sought ¿s to the legal effect of the judgment and order of the county court setting aside the order of suspension of the Commissioner of Public Safety after the Commissioner of .Public Safety had taken an appeal from such order and judgment of the county court to the district court and said appeal duly lodged in said district court.

A decision of this question necessarily involves the construction of a number of statutes of this state in existence at the time of the alleged crime concerning the issuance of drivers’ -licenses by the Commissioner of. Public Safety, and orders of suspension, denial and cancellation of said, drivers’ licenses, together with the procedure authorized by law for appeals taken by operators and chauffeurs from such orders, all of which are found under chapter 9, section 271 to 311, Title 47,. O. S. 1941.

Section 296 of Title 47 reads as follows:

“(a) Whenever any person is convicted or pleads guilty in any court to an offense involving the use of a motor vehicle, such court shall make immediate report to the Commissioner of Public Safety setting forth the name of the offender, the number of the operator’s or chauffeur’s license, and the penalty imposed.
“(b) The Commissioner of Public Safety may in his discretion suspend or revoke the licenses of such person, such suspension or revocation being in addition to the punishment imposed by the court.
“(c) Any person whose license is so suspended or revoked under the provision of this Section shall have the right of an appeal as otherwise provided for in this Act.”

Section 297 reads as follows:

“The Commissioner shall not suspend a license for a period of more than one (1) year and upon revoking a license shall not in any event grant application for a new license until the expiration of one (1) year after such revocation.”

Section 298 reads as follows:

“The Commissioner upon suspending or revoking a license shall require that such license and the badge of any chauffeur whose license is suspended or revoked shall be surrendered to and be retained by the Commissioner except that at the end of the period of suspension such license and any chauffeur’s badge so surrendered shall be returned to the licensee.”

The sections of the statute above quoted vest discretionary powers in the Commissioner of Public Safety, which powers have been held to be executive and ministerial, and not judicial. Gentry v. Blinn, 184 Okla. 9, 84 P. 2d 27; Ashcraft v. State, 68 Okla. Cr. 308, 98 P. 2d 60; Commonwealth v. Funk, 323 Pa. 390, 186 A. 65.

Section 300 of Title 47, reads as follows:

“Any person denied a license or whose license has been canceled, suspended, or revoked by the Commissioner, except where such cancellation or revocation is mandatory under the provisions of this Act, shall have the right to file a petition in the county court within thirty (30) days thereafter for a hearing in the matter in the county wherein' such person shall reside, and such county court is hereby vested with original jurisdiction, and it shall be its duty to set the matter for hearing within thirty (30) days, written notice being given to the Commissioner, and thereupon to take testimony and examine into the facts of the case, and to determine whether the petitioner is entitled to a license, or is subject to suspension, cancellation, or revocation of license under the provisions of this Act. Appeals may be heard from the order, decision or judgment of the county court to the District Court sitting in and for such county. The District Court is hereby vested with final appellate jurisdiction in all cases arising under the provisions of the Section.”

This section of the statute, which was in force at the time of the commission of the offense charged under section 303, Title 47, provides for an appeal, which has been many times held to be a civil proceeding as distinguished from criminal, and also a special proceeding, and the power and authority of the court thereunder held to be strictly limited to the jurisdiction and authority therein expressly conferred. See: Gentry v. Blinn, supra; Ashcraft v. State, supra; Commonwealth v. Funk, 323 Pa. 390, 186 A. 65, supra; Commonwealth v. Cronin, 336 Pa. 469, 9 A. 2d 408, 125 A. L. R. 1455; Appeal of Oesterling, 347 Pa. 241, 31 A. 2d 905; Bureau of Highway Safety v. Wright, 355 Pa. 307 to 312, 49 A. 2d 783, 785.

It appears that the Oklahoma statutes above quoted were patterned after and follow almost verbatim the language of the statutes of the State of Pennsylvania on this subject. The Secretary of Revenue of the State of Pennsylvania performs the same duties relative to the suspension and revocation of drivers’ licenses as is performed under Oklahoma statutes by the Commissioner of Public Safety.

In the case of Bureau of Highway Safety, Appellant, v. Wright, supra, it is stated:

“Upon an appeal from a suspension by the Secretary of Revenue of an operator’s license, it is not only the duty of the court to hear de novo the witnesses for the Commonwealth and those for the licensee, but it is also the court’s duty to determine anew (from the testimony taken) whether the operator’s license should be suspended’: See Commonwealth v. Funk, supra, 323 Pa. [390] at page 399, 186 A. 65, 69, quoted in like connection a number of times and uniformly followed. No determination, so supported, was made by the court below. On the contrary, the learned hearing judge found, and the findings are fully supported' by the testimony, that the licensee Vas guilty of reckless driving’ and that ‘the officer making the arrest would have been derelict in his duty had he not made the arrest.’ Such findings necessarily operated to justify the suspension of the license. As we said in Oesterling’s Appeal, supra, 347 Pa. [241], at page 243, 31 A. 2d 905, 906, in quoting from Commonwealth v. Funk, supra: ‘ “Suspension of the licensee’s operating privilege is authorized * * * when the secretary finds upon sufficient evidence that the offenses enumerated have been committed. * * * The secretary of revenue, fulfills , the statutory mandates by holding the hearing and by finding (upon sufficient evidence) that the (licensee has) violated the motor vehicle laws of this Commonwealth.” ’ The lower court’s reinstatement of the license, in direct denial of its own relévant and supported findings, amounted to an abuse of discretion. The jurisdiction conferred by Sec. 616 of the Vehicle Code, [75 P. S. § 193], upon courts of common pleas does not authorize them to act either arbitrarily or capriciously with respect to the reinstatement of- a suspended license. There must be a justifiable factual basis for the court’s action in the premises.”

In the case of Gentry v. Blinn, supra, 184 Okla. 9, 84 P. 2d 30, the Supreme Court of Oklahoma stated:

“The power conferred upon the Commissioner to revoke the license is administrative and not judicial. Commonwealth v. Funk, supra, and as we view it the law may be exercised in the manner and to the extent provided and required by the statutes * * *.”

In the case of Ashcraft v. State, supra, 68 Okla. Cr. 308, 98 P. 2d 68, this court quoted with approval from the case of Gentry v. Blinn, supra, and stated:

“This order (of suspension) should be entered by the Commissioner of Public Safety when the record is certified to him by the court after final conviction as above outlined.”

In the absence of a statute conferring greater powers upon the reviewing court, as a general proposition, courts may review administrative determinations only in casqs where:

1. Such determination is without or in excess of statutory powers and jurisdiction of the administrative authority. H. F. Wilcox Oil & Gas Co. v. State, 162 Okla. 89, 19 P. 2d 347, 86 A. L. R. 421.

2. A power has been extended in an arbitrary or unreasonable manner so as to virtually transcend authority conferred. Dismuke v. United States, 297 U. S. 167, 56 S. Ct. 400, 80 L. Ed. 561.

3. Where from the record there appears evidence of fraud or abuse of discretion, then - such determination constitutes an ábuse of discretion. Morris v. Duby, 274 U. S. 135, 47 S. Ct. 548, 71 L. Ed. 966.

4. Such determination is in disregard to the fundamental rules of due process of law. Gray v. Powell, 314 U. S. 402, 62 S. Ct. 326, 86 L. Ed. 301.

These principles have been applied by the courts of many states in construing the provisions of the statutes of such states regulating the issuance and suspension of drivers’ licenses. See Burgess v. Mayor et al., 235 Mass. 95, 126 N. E. 456; Commonwealth v. Cronin, 336 Pa. 469, 9 A. 2d 408, 125 A. L. R. 1455.

In the findings of the county court, it was stated that the court found that the petitioner was a reputable citizen and had only taken one drink of intoxicating liquor about five hours previous to his pleading guilty to drunken driving, and that under the evidence the court found that he was not guilty of drunken driving; but he further found that the defendant was charged with reckless driving and paid a fine therefor. There was no finding by the county court that the defendant was not guilty of reckless driving. The county court further stated in its findings that no notice was given to defendant and he had no opportunity to defend himself before the Commissioner and concluded “that the Commissioner of Public Safety abused his discretion in suspending his driver’s license”.

The county judge acted mistakenly in his conclusion that the Commissioner had abused his discretion, because no notice and an opportunity to appear before the Commissioner had been given to the accused. Tit. 47 § 296, O. S. 1941, expressly gives the Commissioner authority and discretionary power whenever he is furnished with a record from any court showing a plea of guilty or conviction of any offense involving the use of a motor vehicle upon the highways, to suspend or revoke the driver’s license. Nowhere in the statutes have we found any requirement to give the licensee any-notice of hearing before the Commissioner may take such action. The acts of the Commissioner are purely executive and administrative and not judicial.

It is well to direct attention to the fact that during the 1947 legislative session, §§ 296 and 300, supra, were amended. Laws 1947, P. 318, §§ 9, 10, 12. This amendment was adopted after the appeal herein was lodged and was foi* the evident purpose of clarifying some of the questions here raised.

'The amendment to section 300, supra, enlarges the authority of the county court upon appeal by providing:

“Upon said hearing said court shall take testimony and examine into the facts and circumstances of the offense of which said licensee was convicted or plead guilty, and determine whether said facts justified said conviction or judgment upon which said order of suspension or denial of license was issued by the Commissioner, and to also determine whether, from such testimony and said licensee’s previous driving record in the operation of a motor vehicle, said order of suspension was for a longer period of time than such facts warrant. In case the court finds that said conviction or denial of license was not justified, the court may sustain said appeal, vacate the order of the Commissioner, and direct that said license be restored to the petitioner, or the court may, in case he determines the conviction was justified, but that the period of suspension was too long, enter an order modifying the same.”

Said section further provides that the licensee may stay or supersede any order or suspension made by the Commissioner by executing a bond in the sum and in the amount prescribed by the statute. When this bond is executed, the order or suspension is superseded until the appeal becomes final. If the bond is not executed, then the order of the Commissioner remains in effect until the appeal is heard in the county court. If no supersedeas bond is made but on appeal the county court, after a hearing reinstates the license, then the driver may again legally operate his automobile even though an appeal- is taken by the Commissioner to the district court. If no super-sedeas bond is made pending the appeal to the county court and the driver loses on his appeal, he may thereafter appeal to the district court and under the statute he may supersede or stay the order of the Commissioner pending the decision in the district court. These provisions of the statute passed after the appeal was lodged in the instant case have clarified the question raised as to the effect on the order of the county court reinstating a license of an appeal to the district court by the Commissioner.

The statute, Tit. 47, § bOO, O. S. 1941, makes no provision for a hearing de novo in an appeal from the judgment of the county court to the district court. In the absence of a statutory provision authorizing the hearing of the case de novo on appeal to the district court, the appeal to such court should be by transcript and the district court would be limited to an examination of the record to determine whether the findings of the county court are supported by competent evidence and to correct any conclusions of law erroneously made. Bureau of Highway Safety v. Wright, supra.

In view of the present enlarged provisions of the Code above shown, and in further consideration of the fact that the defendant herein has been acquitted and finally discharged, we feel that it is unnecessary to discuss the second proposition presented by counsel for the state as to the effect of the appeal by the Commissioner to the district court from the order of the county court reinstating the license of the accused. Since the defendant was discharged and the rendition of any opinion would not have any bearing upon future prosecutions because of the passage of the later act clarifying this proposition, we feel that this question is moot and no expression of this court is necessary.

BAEEFQQT, P. J., and BRETT, J., concur.


text:
    Ex parte CHESTER F. HIBBS.
    No. A-11004.
    Feb. 18, 1948.
    (190 P. 2d 156.)

      Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for respondent.
   BAREFOOT, P. J.

Petitioner, Chester F. Hibbs, has filed his petition for a writ of habeas corpus, seeking Ms release from the State Penitentiary at McAlester, where he is'now confined by reason of a judgment and sentence of the district court of Oklahoma county, entered on November 28, 1938, wherein he was convicted of the crime of first degree burglary, after former conviction of a felony, and sentenced to the State Penitentiary for 99 years. The former convictions alleged were a conviction of the crime of robbery with firearms on November 28, 1928, in cause No. 6693 in the district court of Oklahoma county; a conviction of the crime of attempted rape on November 28, 1928, in cause No. 6692 in-the district court of Oklahoma county; and a conviction of the crime of lar-' eeny of an automobile on November 28, 1928, in cause No. 6697, in the district court of Oklahoma, in which petitioner was sentenced to the State Penitentiary in all of said cases.

Defendant has filed his petition in Ms own behalf, but evidently had legal assistance in the preparation of the same. He bases his contention for the writ upon the grounds that his conviction was in violation of art. 14, § 1 of the United States Constitution, which guarantees to every citizen “the equal protection of the laws/’ and in violation of the Fifth Amendment to the Federal Constitution in which it is provided that no person may be /‘compelled, in any criminal case to be a witness against Mmself.”

Those propositions may be considered, together.

Attached to the petition is a copy of the information filed in the district court of Oklahoma county on October 23, 1833, charging petitioner with the crime of burglary in the first degree after former conviction of a felony; also a copy of the warrant of arrest, and a copy of the judgment and sentence.

This petitioner first filed Ms petition for writ of ha-beas corpus in the district court of Pittsburg county. To that petition the Attorney General, on behalf of the respondent, the Eton. Clarence P. Burford, warden of the Chats Penitentiary, filed a response (copy of wMch is also attached to the petition herein), getting up the judgment and sentence as a reason for the confinement of petitioner in the penitentiary; and further states:

“For further return to the writ issued herein, respondent says and states that by the allegations of said petition filed herein no jurisdictional matters are raised and that all material allegations raised by said petitioner should- have been raised by appeal, and are not propositions that can be legally raised by application for writ of habeas corpus.
“That respondent denies each and every material allegation made and contained in said petition except such as are shown by this return to be admitted.”

Petitioner in Ms brief, which is a part of the petition, attempts to attack that part of Tit. 21 O. S. 1941 § 51, which permits a greater punishment of a person who is a second offender, as being" unconstitutional by reason of the "provisions above stated, and that it also constitutes “cruel and unusual punishment” which is prohibited by the Eighth Amendment to the Constitution of the United States.

The Oklahoma statute (Tit. 21 O. S. 1941 § 51) in question is as follows:

“Every person who, haying been convicted of any offense punishable by imprisonment in the penitentiary, commits any crime after such conviction, is punishable therefor as follows:
“1. If the offense of which such person is subsequently convicted is such that upon a first conviction an offender would be punishable by imprisonment in the penitentiary for any term exceeding five years, such person is punishable by imprisonment in the penitentiary for a term not less than ten years.
“2. If such subsequent offense is such that, upon a first conviction the offender would be punishable by imprisonment in the penitentiary for five years, or any less term, then the person convicted of such subsequent offense is punishable by imprisonment in the penitentiary for a term not exceeding ten years.
“3. If such subsequent conviction is for petit larceny, or for any attempt to commit an offense which, if committed, would be punishable by imprisonment in the penitentiary, then the person convicted of such subsequent offense is punishable by imprisonment in the penitentiary for a term not exceeding five years.”

It will be noted that subsection 1 of this statute provides that if the offense of which a person is subsequently convicted is such that upon a first conviction the punishment would be by imprisonment in the penitentiary for any term exceeding five years, “such person is punishable by imprisonment in the penitentiary for a term not less than ten years.” This is the minimum punishment permitted, but not the maximum. It Avas by reason of this provision that petitioner was given a sentence of 99 years. It may be noted that the evidence revealed that petitioner had on three previous occasions been convicted of a felony. It was no doubt by reason of this fact that the jury assessed the heavy penalty against the petitioner.

.The constitutionality of this statute has heretofore been upheld by this court in the cases of Williams v. State, 56 Okla. Cr. 245, 37 P. 2d 658, Spann v. State, 69 Okla. Cr. 369, 103 P. 2d 389, and many cases cited therein.

It is unnecessary to quote from these cases. See, also, the exhaustive Notes in 58 A. L. B. 20, and 82 A. L. E. 345, where the question of the constitutionality and construction of enhancing penalty statutes for second or subsequent offenses is fully discussed. See, also, the late cases from this court: Broyles v. State, 83 Okla. Cr. 83, 173 P. 2d 235; certiorari denied 329 U. S. 790, 67 S. Ct. 358; In re Bibbins, 82 Okla. Cr. 234, 168 P. 2d 311; Salisbury v. State, 80 Okla. Cr. 13, 156 P. 2d 149; Solomon v. State, 79 Okla. Cr. 93, 151 P. 2d 944; Ex parte Shockley, 78 Okla. Cr. 101, 144 P. 2d 118; Baker v. State, 64 Okla. Cr. 169, 78 P. 2d 320; Ex parte Moore, 60 Okla. Cr. 419, 65 P. 2d 201.

The answer to all of the contentions presented by the petitioner will be found by reading the above cases. In all of these cases, the principle has been announced that the habitual criminal statute does not create or define a new or independent crime, but describes circumstances under which one found guilty of a specific crime may be more severely penalized because of his previous convictions. Taylor v. State, 82 Okla. Cr. 49, 166 P. 2d 108.

We have carefully examined the cases cited in petitioner’s brief, and they are in accord with the principles announced above. The record in no way discloses that petitioner was denied “the equal protection of the law” or compelled to be a witness against himself, or that be received “cruel and unusual punishment” in contravention of the Constitution of the United States.

The defendant in this case received a sentence of 99 years in the penitentiary. This is, of course, a long sentence, but the Legislature of this state, in 1943, 1945 and. 3947, created a Lardón and Parole Board, and. one of the duties of this board is to make recommendations to the Governor of the state as to pardons and paroles of those confined in the criminal institutions of this state. This board is now organized and under its rules and regulations frequent visits are made to the penal institutions of the state for the purpose of making investigations of the inmates thereof, and as to whether recommendations should be made to the Governor for their pardon or parole.' This avenue is open to this petitioner, and all others, subject to the rules and regulations provided by said board. It is provided by the Act of 1947, p. 348, § 1, Tit. 57 O. S. 1947 § 332.7, cumulative edition:

“It shall be the duty of the f Mi-don and Parole Officer, with or without application being made, to cause an examination to be made at the penal institution 'where the person is confined, and to make inquiry into the conduct and the record of the said person during his confinement in said penal institution, and thereafter said Pardon and Pardon Officer shall report to the Pardon and Parole Board Ms findings, which shall be considered as a basis for consideration of said person for recommendation to the Governor for parole.”

This is a very fine provision of the law, and affords an opportunity to petitioner and all others who are confined in the penal institutions of this state to present their cases to an eminently qualified board for proper consideration — a board which may not only consider “justice”, to' which the courts are limited, but may extend “mercy”, as the facts in each individual case may justify. Kennedy v. State, 66 Okla. Cr. 318, 92 P. 2d 384; Abby v. State, 72 Okla. Cr. 208, 114 P. 2d 499, 115 P. 2d 266; Kidd v. State, 76 Okla. Cr. 213, 136 P. 2d 210; Murphy v. State, 72 Okla. Cr. 1, 112 P. 2d 438; Mannon v. State, 68 Okla. Cr. 267, 93 P. 2d 73; Cunningham v. State, 70 Okla. Cr. 131, 105 P. 2d 264; and Lewis Grayson v. State, 85 Okla. Cr. 266, 188 P. 2d 696.

We are of the opinion that the petition for writ of habeas corpus should, be denied. It is so ordered.

JONES and BRETT, JJ., concur.


text:
    ALEX RAWLS v. STATE.
    No. A-10790.
    Feb. 18, 1948.
    (180 P. 2d 159.)

      J. W. Dixon, of Marietta, and Champion & Fischl, of Ardmore, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Bam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Alex Rawls, was charged by information filed in the district court of Love county with the crime of attempted rape, was tried, convicted and sentenced to serve the minimum term of seven and one-half years imprisonment in the State Penitentiary, and has appealed.

There are a large number of assignments of error in the brief of defendant. As will be hereinafter shown, it is apparent that this case will have to be reversed and remanded. For that reason, we have only undertaken to discuss those questions raised in the brief of the defendant which might again arise upon another trial.

The defendant was charged with attempted rape upon one Wilma Marie Hartman, a six year old girl, who lived near Burneyville, on February 7, 1946. The case was tried on March 26, 1946, and resulted in a hung jury. On April 16, 1946, the case was assigned for a second trial, commencing on April 29, 1946. On April 23, 1946, the defendant filed a motion to disqualify the sheriff. On that date he served a copy of the motion on the county attorney and notified him at that time that he was preparing a motion for a change of venue and was procuring supporting affidavits. That he would present the motion for change of venue at the same time he presented the motion to disqualify the sheriff. At that time, it was agreed that the motions would be presented on Thursday, April 25th. However, upon investigation they learned that the district judge was out of the county presiding at the trial of some litigation in an adjoining county and would not return to Love county until Friday, April 26, 1946. It was thereupon agreed to present the motions to the judge on that date. The motion for change of venue together with 100 supporting affidavits was filed on Friday, April 26, 1946. However, the district judge had been delayed in bis return to Love county and the motions which had been filed were not presented to Mm until Saturday morning, April 27, 1946.

The record discloses that counsel for the defendant made a long statement as to why he thought the venue should foe changed to another county, and that at the conclusion of his statement the court denied the motion to change the venue and stated:

“I know most of these people who signed these affidavits. I have sixty men coming in here, the only way to tell about that is to examine the jurors, this Mr. JBoley, that is one on here, he is a juror and he has asked me to be excused. I don’t remember if I excused him or not. He did not give as a reason that he was disqualified as a juror, but merely stated sometMng about having to drive the school bus.”

In the written order signed by the district judge, it is stated:

“Thereupon, the Court hears the motion of the defendant for change of venue. The defendant introduced Ids affidavits in support of his motion for change of venue, including the affidavits of N. A. Banders and Oscar Parker and approximately one hundred other citizens of Love County. The State offers no affidavit or evidence to contradict the allegations of said motion for change of venue or the affidavits in support thereof. The Court, having heard said matter, finds that said motion for change of venue should be and is hereby overruled; to which action of the Court the defendant excepts.”

The motion for change of venue filed by the defendant together with the affidavits of N. A. Banders and Oscar Parker read as follows:

“Comes now the defendant, Alex Bawls, and moves the Court to grant Mm a change of venue in this case and to send this ca.se to some other county in the State of Okla-boma for trial because this defendant cannot bave a fair and impartial trial in Love County, for the following reasons:
“This defendant was arrested on or about the 16th day of February, 1946 charged with assault with intent to rape one Wilma Marie Hartman, a six year old girl, the daughter of Mr. and Mrs. Charles Hartman, who live near Burneyville in Love County. Said offense is alleged to bave taken place in front of the home of said child on the afternoon of February 7, 1946. The fact that said charge was filed against this defendant was published in the Marietta Monitor, a newspaper of general circulation in said county. Within less than thirty days this case was set for trial in the District Court and the fact that it v/as set for trial was published in said paper. The case was tried on March 26, 1946 and resulted in a hung jury and a mis-trial was declared on March 27, 1946. The trial attracted a large crowd which filled the courtroom and people from all over Love County were in attendance.' The fact of the hung jury was published in said paper. Since said trial said case has been discussed all over Love County, which is a small county, and tills discussion has aroused ■and created a sentiment against this defendant throughout the county, which prevents Mm from having a fair and impartial trial to which he is entitled to under the Constitution of this State. The feeling against this defendant in said county runs so high that people have been heard to say that they thought he ought to be mobbed and hung.
“Defendant says that he is not guilty of the charge against him and is entitled to be tried before a fair and impartial jury and in a county where he can get a fair and impartial trial.
“In support of this motion for change of venue, defendant attaches and submits herewith the affidavits of N. A. Sanders and Oscar Parker, who, at the request of this defendant, contacted several hundred citizens of this County to determine the sentiment in the County against this defendant, and attaches hereto 100 affidavits signed by reputable citizens, residents and voters of this County who have stated that they have a fixed opinion with reference to this case and that this defendant cannot have a fair and impartial trial. In addition to these affidavits the defendant further states that the said N. A. Sanders and Oscar Parker in contacting several hundred citizens of Love County found that such a high state of feeling had been worked up against the defendant that upon approaching various and sundry citizens they met resentment upon even asking them to sign the affidavit and that most of the citizens approached made the bare statement in an indignant manner that they would not have anything to do with the case at all.
“Defendant says that he is a married man with wife and three children; that he is 40 years of age and lives at Marietta, Oklahoma. That the character of the crime with which he is charged is repulsive and such as to engender the high state of public feeling against one charged with such crime and the same has been talked about and discussed all over Love County, especially since said first trial, and the fact that the case is again set for trial only thirty-two days after the first trial is evidence in the minds of lots of people that the officials of Love County believe him to be guilty and that he should be convicted. This is especially true because it has been the custom in Love County for many years to hold not more than one or two terms of jury a year and where more than one term is held a year they have been several months apart. So the fact that two jury terms of Court are being held within thirty days of each other has aroused and created sentiment against this defendant. It is a known fact in Love County that this defendant’s case was the only criminal case on the March docket for trial and that there are only three cases, including this case, set for trial on the April docket.
“For all of which reasons defendant asks that he be granted a change of venue herein.
“Alex Rawls
“Subscribed and sworn to before me this 26th day of April, 1946.
“(SEAL) Robert Miller, Notary Public.
“My commission expires: June 7, 1949.”
“Endorsed as follows: Piled in District Court — Love County, Oklahoma — Apr. 26, 1946
“John C. Wicker, Court Clerk.
“Attached to said motion for change of venue appears the Affidavit of N. A. Sanders and Oscar Parker, together with one hundred other affidavits, in words and figures following:
“State of Oklahoma, Love County, ss.
“N. A. Sanders and Oscar Parker, being duly sworn on oath, say that they are both residents of Love County, Oklahoma and have lived in said county for more than 25 years each. That they know Alex Rawls and in his behalf, between April 20, 1946 and April 25, 1946, contacted several hundred persons in Love County to ascertain from them whether or not any such persons, all of whom were residents of Love County, had fixed opinions with reference to the case of State of Oklahoma against Alex Rawls, in the District Court of Love County, Oklahoma, in which said Alex Rawls is charged with attempting to assault the little Hartman girl near Burney-ville. That these affiants talked to several hundred residents of said county and that only two or three of the people they talked to said that they thought Rawls could get a fair and impartial trial in Love County. That approximately ninety of the people they talked to signed affidavits stating that they had fixed opinions in the case and that they did not believe Rawls could get a fair and impartial trial in Love County; that the affidavits were read to each of the signers before they were signed by them. Practically every person they had talked to had heard of the case, knew about it and had heard it discussed. Among those whom these affiants talked to who did not sign affidavits were the following residents of Love County, wbo made tbe remarks opposite the name of each:
“Jack Nichols, Greenville: Heard lot about it, in such mess didn’t want to have anything to do with it.
“E. R. Gentry, Highway 77, near Hickory Bridge: Didn’t want to get mixed up in case.
“Frank Shellenberger, Marietta: Knew defendant and prosecuting witness — messed up deal- — didn’t want to have anything to do with it. ’
“Jim Bosley: Looks to me like he is in bad fix.
“Charley Hogue, Overbrook: Didn’t want have anything to do with it — messed up affair — knew both parties.
“A. L. Page: Don’t want to express myself or have anything to do with it.
“Win. Jones, Marietta, Route 1: Afraid to have anything to do with it.
“Dabney Colston: Don’t want to have anything to do with it.
“Ernest Davenport -and Lee McBride, Rubottom: Had fixed opinion, but wouldn’t sign.
“Ed Monroe: Didn’t want anything to do with case.
“Jodie Porter: Would not have anything to. do with case.
“Wm. Adair: Didn’t want to have anything to do with it.
“Ell Hudson, Thackerville: Had reason for not signing.
“Jesse Porter, Orr: Don’t want to have anything to do with it.
“Charles Gibson and John Harris, Leon: Don’t think he can get a fair trial.
“George Newell, Simon: Didn’t want to have anything to do with case.
“W. J. Gilbert, Leon: Don’t think he can get fair trial. One of his friends advised him not to sign affidavit — said it would ruin him. Afterwards sent word would sign affidavit.
“Fred Jessup, Eastman Route: He ought to be punished severely.
“John Aken, Burneyville: Fixed opinion — didnft want to sign.
“Fred Furrh, Rubottom: Thought ought to be sent penitentiary — would help go with mob to mob him.
“Raymond Furrh, Rubottom: Thought guilty.
“Jim McDaniel, Rubottom: Thought guilty and ought to be in penitentiary.
“J. J. Carnahan, Courtney: Said looked like guilty.
“Mr. Hutto, Marietta: Can’t sign — he’s guilty as hell —might as well go on.
“J. M. Teafenteller, Courtney: Thought he was guilty-
“Howard Lone, Rubottom: Fixed opinion.
“Bob Barrett, Rubottom: Knew too much about it to be signing anything.
“Clarence Cathey, Bellsville: Sentiment pretty strong against Rawls.
“That only one or two of said parties said they believed Rawls could have a fair and impartial trial in said County.
“R. A. Sanders
“O. M. Parker
“Subscribed and sworn to before me, the undersigned notary public, on this 26th day of April, 1946. “(Seal) Robert Miller, Notary Public.
“My commission expires: June 7, 1949.
“Endorsed as follows: Filed in District Court — Love County, Oklahoma — Apr. 26, 1946
“John C. Wicker, Court Clerk."

The supporting affidavits of 98 men attached to the motion read substantially the same, ¡in addition to giving the names, addresses, and length of residence of each affiant in Love county, the-affidavits substantially state that they have heard much discussion about the case against; the defendant, Bawls, and each of the affidavits concluded with this statement:

“Affiant has a fixed opinion as to the guilt of Bawls in this case and from what he knows and has heard others pay lie does not believe Bawls can get a fair and impartial tria] in Love County."

By statute it is provided :

“Any criminal cause pending in the district court may, at any time before the trial is begun, on the application of the defendant be removed i'.mt the county in which it is pending to some other county in said judicial district, whenever it shall appear in the manner hereinafter provided, that the minds of the inhabilasts of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein. Such order of removal may bo made on the application of the defendant by petition, setting forth the facts, verified by affidavit, if reasonable notice of the application be given to the county attorney and the truth of the allegations in such petition be supported by the affidavits of at least three credible persons, who reside in said county. The county attorney may introduce counter affidavits to show that the persons making affidavits in support of the application are not credible persons and that the change is not necessary, and may examine the witnesses in support of said application in open court in regard to the truth of said application; and if it be made to appear by the affidavits and examination of witnesses that a fair and impartial trial cannot be had in the county, a change shall be granted and the order made by the court. * * *” Tit. 22 O. S. 1941 § 561.

This statute has been before this court for consideration numerous times. It is now well settled that the granting or refusing of a change of venue is a matter resting with the sound discretion of the trial court to be disposed of in furtherance of substantial justice; and that the action of the trial court will not be disturbed unless there is an abuse of discretion. Johnson v. State, 55 Okla. Cr. 55, 24 P. 2d 1018; Jewell v. State, 41 Okla. Cr. 389, 273 P. 336; Newton v. State, 56 Okla. Cr. 391, 40 P. 2d 688; Hollingsworth v. State, 50 Okla. Cr. 164, 297 P. 301; Sweet v. State, 70 Okla. Cr. 443, 107 P. 2d 817: Abby v. State, 72 Okla. Cr. 208, 114 P. 2d 499, 115 P. 2d 266.

It is also well settled that an application for change of venue comes too late where presented without reasonable notice to the county attorney so as to enable Mm to make preparation to resist the application by procuring counter affidavits or otherwise if he so desires. Caples v. State, 3 Okla. Cr. 72, 104 P. 493, 26 L. R. A., N. S., 1053; Goss v. State, 24 Okla. Cr. 383, 218 P. 339.

In this connection it is well to note that even though the motion was not presented to the trial court for action until Saturday April 27, 1946, just two days before the case was set for hearing on Monday, April 29, 1946, that the county attorney raised no question of lack of notice and made no objection to having the motion presented at that time, it having been shown by counsel for defendant that he was given notice on Tuesday, April 23, 1946, of the defendant’s intention to present a motion for a change of venue at the earliest opportunity that it could be heard.

In the case of Quinn v. State, 54 Okla. Cr. 179, 16 P. 2d 591, this court, in defining what is meant by the term abuse of discretion of the trial court in passing on a motion for a change of venue, stated:

“By ‘abuse of discretion’ is meant a clearly erroneous conclusion and judgment; one that is clearly against the logic and effect of such facts as are presented in support of the application, or against the reasonable and probable deductions to be drawn from facts disclosed on the hearing.”

In the body of the opinion in that case this court stated that the defendant had made a prima facie showing entitling him on its face to a change of venue. The state contested the motion for change of venue and filed 143 counter affidavits.

In the body of the opinion this court stated:

“The counter showing made by the state not being-sufficient to overcome the prima facie case made by the defendant, it was an abuse of discretion for the trial court to refuse to grant a change.”

In all of the cases that we have examined on the point at issue, we have found that the prosecution made a showing by examination of the individuals who signed the supporting affidavits of the defendant, or by filing counter affidavits or in some manner presented evidence to overcome the prima facie case made on behalf of defendant.

In the instant case, the county attorney, during the discussion at the time the motion for change of venue was presented, did not say one thing. He did not present any counter affidavits in opposition to the defendant’s motion, nor make any other statement in opposition to the motion for change of venue. Under this state of record, this court is left with only one question to determine, and that is whether the motion for a change of venue on its face presented a prima facie case entitling the defendant to a change of venue. We conclude that it does.

We have carefully examined the addresses of the various affiants, and have found that these men lived at different' places throughout Love county. Included in the list of supporting affidavits on behalf of the defendant are affiants who lived in the towns of Marietta, the county seat, Leon, Oswalt, Courtney, Thackerville, Jimtown, Simon, Burneyville, Overbrook, Eastman, and Pike, and there were also men living on rural routes out of some of the towns, including men who lived on six different rural routes out of the county seat of Marietta. Counsel for the defendant stated to the court the affiants were good citizens and fairly represented every section of the county. There is no statement of the court or evidence in the record to refute this assertion.

In addition, the record discloses that before the jury of twelve men were selected, 22 jurors were excused by the court because they had a fixed opinion as to the guilt or innocence of the defendant and that the defendant exhausted all of his peremptory challenges. The record also shows that of the twelve men selected as jurors, all of them stated on voir dire examination that they had heard the case discussed. Two of the jurors remaining on the jury stated at the beginning of the voir dire examination that they had an opinion as to the guilt or innocence of the defendant, but further in their voir dire examination stated that they did not have such fixed opinion but that they could disregard it and render a verdict based upon the law and evidence.

As an illustration of the tenseness that pervaded the courtroom, the juror Greenwood testified:

“Q. Have you heard anything about the facts in this case? A. Yes, sir, twelve or fifteen maybe. Q. Have you formed or expressed an opinion in this case? A. No, sir. Q. Have you ever told anyone what you thought ought to be done in tbe case? A. I told a few what I would do if it was a girl of mine.”

This juror was excused by the court, but his statement that he had told what he would do if it was his girl made in the presence of the other prospective jurors was damaging to the defendant.

Of the twelve jurors finally selected to determine the case, besides the two above mentioned who had formed an opinion which they said they could disregard, if chosen as jurors, the state of mind of the others is best illustrated by the response of the juror Gilcrease to the question: “Q. Have you formed an opinion in this case? A. No, sir, I have only heard what is going on over the country.” We have chosen this statement as typical of the response made by each of the jurors as they each testified that they had heard considerable about the case, but they were allowed to sit as jurors because they did not disqualify by stating that they had a fixed opinion as to the guilt or innocence of the accused.

It was said in Abby v. State, supra [72 Okla. Cr. 208, 114 P. 2d 500] :

“In this day of paved highways, the wide use of rural telephones, daily papers, and radios, the mere fact that the inhabitants of a county have read and heard of the commission of a crime does not disqualify them. To warrant a change of venue, it must be made to appear they have a fixed opinion as to the guilt or innocence of an accused to the extent that he cannot have a fair trial by an impartial jury.”

In determining whether the trial court abused Ms discretion, we have found the following authorities defining the phrase “discretion of court”:

In Bolt v. Morris, 168 Okla. 528, 34 3 P. 2d 581, the Supreme Court of Oklahoma defined the phrase, “discretion of court,” as follows:

“Phrase ‘discretion of court/ as applied to granting and denying new trials, means legal discretion to he. exercised in discerning course prescribed by law according to principles ascertained by adjudged cases, and always for purpose of giving effect to will of lav/.”

In the case of Abbott v. L’Hommedieu, 10 W. Va. 677, “discretion” is defined as follows :

“To say that granting’an application rests To discretion’ does not mean that it may be granted or refused at the mere will or pleasure of the judge, but that he is to exercise a sound judicial judgment. In the interest of justice and prudence.”

The following quotation from Ex parte Chase, 4-8 Ala. 803, 810, is enlightening: infrequently is not, I add an extract from an opinion, in a case of national importance, by-one of our country’s greatest men, and ablest and purest judges, Chief Justice Marshall says: ‘Courts are mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion; a discretion to be exercised in discerning the course prescribed by law, and when that is discerned it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the Avill of the judge; always for the purpose of giving effect to the will of the Legislature, or, in other words, to the will of the law.’ Osborn v. United States Bank, [22 U. S. 738, 866], 9 Wheat. 738, 866, 6 L. Ed. 204. Whatever may have been the construction of this important statute heretofore, it is now evidently unwise longer to keep so indispensable a right as that of a fair and impartial trial, in a criminal case, under the uncertain security of a power so uncontrollable and liable to error as mere judicial discretion — a power that may possibly be misdirected by a fit of temporary sickness, an extra mint julep, or the smell or looks of a peculiar overcoat, or things more trivial than these, which may imperil the due course of justice in the administration of the law.

“ ‘The discretion of a judge is the law of tyrants: it is always unknown; it is different in different men; it is casual, and depends upon constitution and passion. In the best it is often-at times capricious; in the worst it is every vice, folly, and madness to which human nature is liable.’ I Bouv. Lav/ Diet, vide ‘Discretion/ page 473. This may be to some extent an extreme statement of the objection, but every practitioner of experience well knows that it is not without much truth. The writer of this opinion has known a popular judicial officer grow quite angry with a suitor in his court, and threaten him with imprisonment, for no ostensible reason save the fact that he wore an overcoat made of wolf skins. Moreover, it cannot be safely denied that mere judicial discretion is sometimes very much interfered with by prejudice, which, may be swayed and controlled by the merest trifles, such as the toothache, the rheumatism, the gout, or a fit of indigestion, or even through the very means by which indigestion is frequently sought to be avoided. In further illustration of what judicial discretion ought to be, but not
“The word ‘discretion,’ when applied to a court of justice, means sound ‘discretion’ guided by law. It must be governed by rule, not by humor; it must not be arbitrary, vague or fanciful, but legal and regular. Jarrett v. High Point Trunk & Bag Co., 142 N. C. 466, 55 S. E. 338.”

In the case of Sweet v. State, supra [70 Okla. Cr. 443, 107 P. 2d 820], it is stated:

“The presumption of law is that a defendant can get a fair and impartial trial in the county in which the offense was committed; and if this is not true, the burden is upon the defendant who seeks a change of venue to establish his right thereto. Davis v. State, 53 Okla. Cr. 411, 12 P. 2d 555; Goss v. State, 24 Okla. Cr. 383, 218 P. 339; Maddox v. State, 12 Okla. Cr. 462, 158 P. 883.
“On a motion for a change of venue, if upon the examination of the affidavits and counter-affidavits, and the examination of the witnesses in support of the application in open court, the court is convinced that a fair and impartial trial cannot be had in the county, then and under those conditions it is mandatory that he grant a change of venue, but not otherwise. He sits in judgment on that question just as any other question of fact that might be submitted to him, and unless it is clear that he has abused his discretion, or committed error in his judgment his finding and judgment will not be disturbed by this court. Warren v. State, 24 Okla. Cr. 6, 215 P. 635; Wright v. State, 12 Okla. Cr. 443, 158 P. 290; Gentry v. State, 11 Okla. Cr. 355, 146 P. 719; Sayers v. State, 10 Okla. Cr. 233, 135 P. 1073; Edwards v. State, 9 Okla. Cr. 306, 131 P. 956, 44 L. R. A., N. S., 701; Watson v. State, 9 Okla. Cr. 1, 130 P. 816.
“By an abuse of discretion is meant a clearly erroneous conclusion and judgment; one that is clearly against the logic and effect of the facts presented in support of and against the application. Johnson v. State, 1 Okla. Cr. 321, 97 P. 1059, 18 Ann. Cas. 300; Black v. State, 3 Okla. Cr. 547, 107 P. 524; Turner v. State, 4 Okla. Cr. 164, 111 P. 988; Starr v. State, 5 Okla. Cr. 440, 115 P. 356; Tegeler v. State, 9 Okla. Cr. 138, 130 P. 1164.”

It is our conclusion, based upon the above authorities, that the defendant made a prima facie showing in his motion for change of venue, which in the absence of any counter affidavits or counter showing of some nature was sufficient on its face to entitle him to a change of venue, and that the action of the court in overruling the motion without requiring some showing from the county attorney was arbitrary, oppressive and constituted an abuse, of discretion.

It is further contended that the court erred in permitting the county attorney to surrender the duties of his office to John Steele Batson, and permitting the said John Steele Batson to prosecute the defendant in so called public service.

The record does not sustain the defendant in this contention. The county attorney expressed to the court the reasons for the appearance of Mr. Batson on behalf of the prosecution. The record discloses that the county attorney retained control of the prosecution and examined the witnesses on behalf of the state. The county attorney did not surrender the prosecution to outside interest as contended by the defendant. We have found nothin?' improper at all about the appearance of Mr. Bat-son as a Special Prosecutor. Por a statement of the duties of a county attorney, reference is made to the case of Perry v. State, 84 Okla. Cr. 211, 181 P. 2d 280.

It if! unnecessary to discuss the assignments relating to the alleged misconduct of the county attorney stating Ids personal opinion as to the guilt of the accused while a witness or of the alleged improper argument of the Special Prosecutor.

This court has spoken many times about what constitutes prejudicial arguments and in the retrial of this case, we feel quite sure that the alleged prejudicial statements will not be repeated. We refer particularly to the statement by the Special Prosecutor that the defendant had made Ms money in the “black' market” when there was no evidence at all to support such a rash assertion.

We have examined the instructions which were given and also those refused. The instructions which were given were substantially correct and included the essence of the requested instructions. In this connection, we refer to the cases of Kitchen v. State, 66 Okla. Cr. 423, 92 P. 2d 880; and Easter v. State, 74 Okla. Cr. 114, 123 P. 2d 691, in which cases this court reviewed the law applicable to charges of attempted rape and assault with intent to commit rape. If these two cases are followed, the trial court will have no difficulty in giving proper instructions 'on these two offenses.

Counsel for the defendant does not dwell upon any alleged errors in the instructions which were given and in the brief of the state the instructions are not mentioned. However, since this question was one of the assignments of error presented in the petition in error and brief of defendant, we have examined the instructions to see whether they substantially stated the law and we find that they do so.

For the reasons hereinabove stated, the case is reversed and remanded, with directions to grant a change of venue, and that the court to which the case is transferred proceed with an immediate trial of the case in accordance with this opinion.

BAREFOOT, P. J., and BRETT, J., concur.