text:
    GEORGE PRYOR v. STATE.
    No. A-5268.
    Opinion Filed April 21, 1926.
    (245 Pac. 669.)
    W. N. Redwine, for plaintiff in error.
    George F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

Appellant, George Pryor, was convicted upon information charging him and .one Lee Bryant jointly with the crime of robbery, committed with the use of firearms, and in accordance with the verdict of the jury he was sentenced to a term of 25 years in the state penitentiary.

In support of the contention of counsel for appellant that the judgment should be reversed and a new trial ordered, numerous errors are assigned. The following statement of the material facts will answer the purpose of our consideration of.the appeal:

Reuben Jones, a colored man, conducted a small confectionary in the east part of the city of McAlester, and lived in the same building. On the 11th day of August, 1923, about 11:30 p. m., three men entered the front door of the store. One stood inside the door while the others robbed Jones of, about $25. After committing the robbery, the two men ran out the door. Jones picked up a gun, and fired at the man standing inside the door, and he fell upon the floor. Jones followed with a Winchester rifle, and fired three or four more shots at the robbers while they were getting into a Ford car. About an hour later the sheriff was notified that two men were in a dying condition about four miles south of the city. Acting on this information he went there, and found Chester Pryor and Lewis Bryant mortally wounded. He called an ambulance, and brought them to All Saints Hospital at McAlester, where both died within two days.

It appears that appellant, George Pryor, Chester Pryor, his brother, Lee Bryant, and Lewis Bryant, his brother, were that day camped about four miles south of McAlester. The next day appellant and Lee Bryant were arrested at Atoka.

Reuben Jones testified that he was in his store about 11:30 p. m., and; his wife was in the back room, when three fellows came in. One stood inside the. door. The other two asked for sodas, and, as he turned around, one said “Stick them up,” and hit him over the head with a pistol. The other reached to the cash drawer. His wife opened the back room door, and one of the robbers struck at her with a pistol, then pushed him into the back room, saying, “Don’t you move or I will shoot you.” The other stood at the door all the time. When the two rushed out he picked up his gun and shot at the man at the door, and he dropped down on the floor, and he did not see him any more. That he followed them out the front door, and they commenced shooting, and rushed across to where a car was parked. Then he fired three or four more shots in their direction. That he only saw three men there. That the night before two men came into the store and appellant was one of them. That appellant was the man that stood guard inside the door. That they took from him $20 or $30 in silver and greenbacks.

His wife testified that she was in an adjoining room, and, hearing a racket, opened the door, and saw appellant standing inside the front door, and saw two men pushing her husband towards her. One of the men told her to get back in the room, and the other pushed her husband into the room. The other one took the money out of the drawer. That she saw her husband fire at the man standing inside the door.

The defense interposed was an alibi. It appears that the Pryor brothers and the Bryant brothers were driving from Muskogee to Dallas, Texas, where the Pryor brothers lived, in appellant’s Ford car. When they reached McAlester they drove south about four miles, where they camped for a day. About sundown on the night of the tragedy Lee Bryant and his brother, Lewis, and Chester Pryor drove to the city. Appellant remained at the camp. They told appellant they would be back about 10 o’clock. When they did not return at that hour appellant waited a while, and then started towards the city, and when he reached the Jefferson Highway he saw some persons fixing a car,-and they asked him if he knew anything about fixing their car. While he was working on this car, Lee Bryant and his brother and appellant’s brother, came along, he called to them, then got into his car and drove to the camp. The two boys that were shot were in a dying condition, and stated they got into trouble at McAlester. Appellant went to a farm house near by, and told the man about the boys’ condition, and asked him to telephone for a doctor. The farmer telephoned for a doctor, and also telephoned the sheriff’s office.

Pat Smythe testified that his mother lives near Atoka; met appellant several times in Dallas; was on his way from Muskogee to Dallas in Tom Parker’s car with another fellow named Starks; that they reached McAlester about 10 o’clock, stopped there a while, and went on south, and had car trouble about three miles out; that, while they were working on the car, appellant came up, and he asked him if he knew anything about a Ford; that while they were there another car came by, appellant said, “I believe that is my car now,” and called to them. They stopped, and some one in the car said, “Come on, George, quick.” Appellant went to the car and got in, and that was the last he saw of him. They went on, and the other car turned into the side road.

J: S. Starks testified that he met Tom Parker and Pat Smythe in Muskogee, and arranged to go to Dallas with them on the morning of August 11th; they reached Mc-Alester between 9 and 10 o’clock; were there about an hour; then went on south, and had car trouble about three and one-half miles out; that the first time he ever saw appellant he was coming up the road while they were trying to fix the car; that Smythe seemed to know him, and asked him what was the matter with the car, and he insisted on helping fix it. When Mr. Parker started the motor, a car came along, and appellant remarked that it sounded like his car, and he hollered. The car stopped; he walked over and got in; and the car turned down the side road.

As a witness in his own behalf, George Pryor testified that he was driving from Tulsa to Dallas, and with his brother met the two Bryant boys at Muskogee. They wanted to go as far as Durant with him. On the evening of August 10th they camped about four miles south of McAlester, and about three-quarters of a mile off the Jefferson Highway. That he did not return to McAlester after they reached the camp. That the next day about sundown the three boys went to town. About 10:30 he walked up to the Jefferson Highway, and met a fellow he knew, Pat Smythe, who was having some car trouble. Two men he did not know were there. That after he helped to start the engine his car came by, and he hollered to the boys, and walked over to his own car. Lee Bryant told him that the boys were shot. That he took the wheel and drove on to camp. Then they took the boys out and put them on quilts. The boys told him that they had a shooting scrape with a negro, and asked him to get help for them, and then asked him to leave, saying they did not want him to be mixed up in the trouble; that he went to a farmhouse 150 yards from the camp, and had a man there ’phone for a doctor. The man said that when he called the doctor he would come and take care of the boys until Hie doctor got there. That with Lee Bryant in his car he drove to the Jefferson Highway, and headed south, and, after going some distance, the car ran into a ditch and turned over. That he changed his trousers and shirt, and left his coat there, and took his grip with him, and Lee Bryant left his grip there. That they walked on out past Savanna, and laid down to sleep, woke up, and went on to Kiowa, there took the train, and at Atoka the officers took them from the train.

Lee Bryant testified that as codefendant he pleaded guilty. That his age is 20 years, and his mother lived at Durant. That Chester Pryor and his brother, Lewis Bryant, went into the store, and he stopped at the door. Then Chester pulled a gun on this fellow Jones. That they left George Pryor at the camp about sundown and drove to the city. On the way back George Pryor was standing by a car on the road. They stopped, and he got in, and they went on to the camp, and there took the wounded boys out of the car. That they told them to go on away and not get mixed up1 in the trouble. That they went to a farmhouse, and had a man there call a doctor, and then went on.

■Cross-examination is as follows:

“Q. I will ask you, Lee, to read that statement and see if you made that statement? (Objection overruled.) A. I made the statement, but it was not true.
“Q. I will ask you, Lee, if on Sunday night following that robbery on Saturday night, if you made this statement in substance to Will Anderson and myself in the county jail? (Objection overruled. Exception allowed.) A. You told me you would get me out of it if I would plead guilty and furnish evidence against Pryor, you said you would get me a suspended sentence.”

Whereupon the following statement was admitted in evidence and read to the jury by the county attorney:

“Chester Pryor, Lewis Bryant, George Pryor, and myself came down from Muskogee on Friday night, August 10, 1923. We went down there Friday night. Saturday morning we came to McAlester and got some groceries, and then went back to the camp out from Frink switch. About sundown Saturday evening we, Chester Pryor, Lewis Bryant, George Pryor, and myself, drove to McAlester and parked. We loafed around in McAlester until about 11 o’clock Saturday night. We then went out in the east end of town to nigger town to stick the Jones Confectionary up. We parked across the street from the Jones Confectionary. I stayed in the car. Chester Pryor, Lewis Bryant, and George Pryor went over to stick the .man up. They were gone just a short while until I heard some shooting. Chester Pryor and Lewis Bryant crawled back to the car. We helped them in the car. I drove away for about two blocks. Then George Pryor drove on. We went back to the camp, and we stayed with Chester.Pryor and Lewis Bryant until they were cold in death. They were going to die, and they asked us to go on and not to tell our mothers about what had happened. George Pryor and I went and called a farmer, and told him to call the doctor and help, and then we left. We went south until the car turned over, and George Pryor and I walked to Savanna. We got something to eat south at Savanna at a store, and caught a ride into Kiowa, and caught the train at Kiowa, and we were taken off the train at Atoka and brought back.
“Dated this the 12th day of August, 1923.
“[Signed] Lee R. Bryant.
“Witness: Will Anderson.”

The first error assigned by counsel on the record is based upon the opening statement of the case by the county attorney. The record shows that, after reading the information to the jury, the county attorney stated:

“The defendants have both been arraigned on the charge contained in this information, and Lee R. Bryant has entered his plea of guilty, and George Pryor entered a plea of not guilty.
“Mr. Redwine: Object to the statement of the county attorney that Lee R. Bryant entered a plea of guilty as being an improper statement to be made to the jury.”

An admission by one of two persons charged with crime as to his own guilt is not evidence against the other. A confession, even though by a plea of guilty, is not admissible in evidence as such against any but himself. 1 Green. Ev. (13th Ed.) 233; Wharton, Crim Ev. § 699.

It follows that the statement was improper, and upon the objection made the court should have directed the jury not to consider the same. Another assignment of error is based on the admission of the statement or confession of Lee Bryant, codefendant, on his cross-examination. It is elementary that the confession of an accused is not admissible against him, unless it is a free and voluntary confession.

Involuntary confessions are rejected because they “have no just and legitimate tendency to prove the fact, admitted, hence they are not competent- for any purpose.” Com. v. Morey, 1 Gray (Mass.) 461.

Mr. Russell says:

“But a confession in order to be admissible must be free and voluntary. That is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence, because under such circumstances the party may have been influenced to say what is not true and the supposed confession cannot safely be acted upon.” 3 Russell on Crimes, book V, c. 4, §' 1.

Mr. Joy says:

“The object with which the law admits a confession in any case in evidence is to obtain truth. The only ground on which a confession is rejected is that the circumstances under which it was obtained have a tendency to falsehood; and therefore the object with which it is admitted, instead of being secured, is likely to be frustrated. If any hope or fear acts upon the mind of the prisoner, and induces him to make an untrue confession, such confession is more likely to defeat than to secure the ends of justice.” Joy on Confessions, 51.

The general rule that the credibility of a witness may be impeached by proof that he has made statements relevant to the issues out of court, contrary to what he has testified to at the trial, does not apply to involuntary confessions. The weight of authority is that it is error to use an incompetent confession as a basis for cross-examination.

In State v. Rogers, 39 P. 219, 54 Kan. 683, it was held that—

“The admissions or confessions of an alleged cocon-, spirator with the defendant in the commission of crime, made after the offense had been fully consummated, and the criminal design fully carried out, are inadmissible on the separate trial of the defendant for any purpose.”

In the case of Shephard v. State, 59 N. W. 449, 88 Wis. 185, Chief Justice Orton, delivering the opinion of the court, says:

“The confession is just as objectionable as evidence, and as incompetent and hurtful, when offered in one way as in another. If no other evidence on the ground of contradicting the defendant as a witness could be found, he had better have gone uncontradicted than that his legal rights as a prisoner should be so violated, and his conviction obtained by such unlawful testimony. The object is to get the confession in evidence. It cannot be done directly, but it can be done indirectly. It cannot be used to convict, but it can be used to contradict, the defendant and in that way it is used to convict him all the same. We cannot adopt such a principle or practice in the administration of criminal law. It is unreasonable as well as unjust. This evidence was inadmissible on the familiar ground that a witness cannot be cross-examined and contradicted in respect to matters not admissible in evidence as part of the case. Whart. Cr. Ev. 484.”

That the statement or confession of the codefendant in this case was not voluntary is undisputed. That its admission was prejudicial cannot be doubted. The complaining witness testified that the robbery was perpetrated by three men; that when he fired the fatal shots he only saw three men at the car parked across the street. Two of those men were killed, and the third, codefendant in this case, pleaded guilty. There was no evidence offered in the case showing that four men participated in the robbery other than the statements made in this confession. The court did not instruct the jury that the statement was not a free and voluntary confession, and that it must not be considered by them in determining the question as to the guilt or innocence of the defendant on trial, or that this co defendant’s confession, even though by a plea of guilty, was not admissible in evidence as such against the defendant on trial. The error in its admission, therefore, cannot be said to have been cured by the instructions of the court.

We deem it unnecessary to consider the other assignments of error. As a new trial must be granted because of the admission.of the incompetent testimony above referred to, there is no occasion for us to determine whether the verdict was against the- weight of the evidence.

For the errors indicated* the judgment appealed from is reversed.

The warden of the penitentiary will surrender appellant, George Pryor, to the custody of the sheriff of Pittsburg county, who will keep him in custody until discharged therefrom according to law.

BESSEY, P. J., and EDWARDS, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ex parte J. F. CROWELL.
    No. A-6160.
    Opinion Filed April 21, 1926.
    (245 Pac. 1114.)
    Grant Gillespie, for petitioner.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for respondent.
   PER CURIAM.

On behalf of J. F. Crowell, a duly verified petition for writ of habeas corpus was filed in this court April 5, 1926, alleging that petitioner is illegally restrained of his liberty and unlawfully imprisoned in the county jail of Okmulgee county by the sheriff of said county. A demurrer was interpósed, and thereupon the cause was dismissed, on the motion of counsel for petitioner.


author: EDWARDS, J.

text:
    P. G. WAMPLER v. STATE.
    No. A-6147.
    Opinion Filed April 22, 1926.
    (245 Pac. 69.)
    A. W. Turner, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Ottawa county on a charge of having possession of whisky with intent to sell, and his punishment fixed at a fine of $500 and confinement for a period of 90 days in the county jail.

The record discloses on the 29th day of November, 1925, a constable, with two other persons, had a warrant, and were looking for a son of defendant, and stopped near a mine shaft about 500 or 600.feet from his residence, and later went to the residence, and discovered near it in a chat pile several bottles of whisky.

The evidence is that the defendant is an old, man, 65 years old, and that he boarded with his son. The only evidence tending to connect defendant with the whisky is as follows: The witness L. Johnson testified:

“Q. Where was you when you saw him? A. Well, he was around back of the house, back of a chicken coop or hoghouse, and picked up something, supposed to be whisky. We seen him stoop down and pick up something and taken it to the front, an dwe figured the whisky was there, and went down there and found it.
“Q. What kind of a looking object was it you saw him pick up? A. We judged it was a bottle.
“ From the position you were in what would you say it looked like? A. Looked like a bottle.
“Q. Then what did you do? A. Well, we went over and dug up seven or eight quarts of whisky and two half pints.”

And on cross-examination be further testified:

“Q. You saw him get something back there? A. No; we didn’t know what; just saw him kicking around there.
“Q. You don’t know what he got there? A. No; I’m not positive it was whisky.
“Q. And you don’t swear it was whisky, do you? A. No, sir.”

The witness Earl Thompson, who was with the witness Johnson, testified:

“Q. At any time you were there did you see Mr. Wampler, go out of the house? A. I don’t remember whether I did or not. * * *
“Q. You hadn’t seen him — Mr. Wampler — do a thing, had you? A. No.”

Defendant denied any knowledge of or connection with the whisky found on the premises. The defendant ■complains that the court erred in refusing to permit the jury to view the premises; it being his contention that the witnesses for the state could not see the ground at the place they found the whisky from the place they testified they were watching.

The motion for a new trial on the ground of newly discovered evidence has attached to it several affidavits; two of them being by deputies of the sheriff, and two others members of the jury that tried the case. We incline to the view, however, that the evidence offered as newly discovered merely seeks to contradict the evidence of the state, and, being in a measure cumulative of the evidence of defendant, that the overruling of the motion was discretionary with the trial court and is not reversible error.

It is further contended that the evidence is insufficient to sustain the verdict. The connection of the defendant with the whisky found is not direct and positive, but inferential. The two witnesses for the state who testified on this point do not agree, and the third witness was not questioned at all upon this point. The evidence raises a strong suspicion of the guilt of the defendant, but falls short of that conclusive character necessary to convict in a criminal case and is insufficient to sustain the judgment.

The case is reversed and remanded.

BESSEY, P. J., and DOYLE, J., concur.


text:
    R. H. O’LEARY v. STATE.
    No. A-5541.
    Opinion Filed April 24, 1926.
    (245 Pac. 667.)
    I. H. Lookabaugh, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

This appeal is from a judgment of the county court of Blaine county, rendered on the verdict of a jury finding the defendant, O’Leary, guilty of unlawful possession of intoxicating liquor and fixing his punishment at a fine of $100 and confinement in the county jail for 30 days.

The errors assigned are in substance as follows: That the court erred in overruling defendant’s challenge to the open venire, on the ground that the sheriff who summoned the jury was a witness for the state; that the court erred in refusing counsel for defendant to ask jurors on their voir dire examination if they were members of the Ku Klux Klan, as a basis for an intelligent exercise of the peremptory challenges; and that the verdict of the jury is not sustained by sufficient evidence and is contrary to law.

The evidence for the state was to the effect that Charley Myers, deputy sheriff, and George Hamel, city marshal, of Canton, stopped the defendant and searched him, and the defendant dropped two bottles containing whisky on the ground.

The defense was a denial of the possession, of the whisky, corroborated by one or two witnesses, who were present when the search was made. The prosecution admitted that the search was made without a search warrant and without a warrant for the arrest of the defendant.

The questions presented here are the same as in the case of Roof et al. v. State, 34 Okla. Cr. 145, 245 P. 666, opinion this day handed down.

It also appears that 'all the evidence in the case was obtained by the officers by unlawful search and seizure.

For the reasons given in the opinion in the Roof Case, and the conviction having no sufficient foundation to support it without the use of evidence, which had been unlawfully obtained, the judgment of the lower court is reversed and case remanded, with direction to discharge the defendant.

BESSEY, P. J., and EDWARDS, J., concur.


author: DOYLE, J.

text:
    JOHN ROOF et al. v. STATE.
    No. A-5542.
    Opinion Filed April 24, 1926.
    (245 Pac. 666.)

      I. H. Lookabaugh and T. U. Cooke, for plaintiffs in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

Upon an information against R. D. Pike, John Roof, and Reed Roof, charging them with manufacturing intoxicating liquor, the defendant Pike pleaded guilty. Appellants were placed on trial, and a mistrial resulted. On their second trial the jury returned a verdict finding them guilty and fixing the punishment of each at a fine of $50 and confinement in the county jail for 30 days. To reverse the judgment they appeal.

A number of errors are assigned and argued, but one or two of which it is deemed necessary to notice:

That the court erred in overruling the defendants’ challenge to the special venire on the ground that S. E. Sutherland, sheriff, a witness for the state, E. M. Pearson, undersheriff, a witness for the state, and F. G. Bergman, deputy sheriff, and a witness for the state, who summoned the jury, were each biased 'and prejudiced against them in this case. The objection was overruled. Exception allowed.

That the court erred in refusing to permit counsel for the defendants to examine jurors on their voir dire as a basis for an intelligent exercise of peremptory challenges.

The record shows that the court refused to permit the following question to be asked of each juror:

“Q. Do you now belong or have you ever belonged to an organization known as the Ku Klux Klan?
“The County Attorney: Objected to as incompetent, irrelevant, and immaterial.
“The Court: Sustained. -Exception.”

After the defendants had exercised all their peremptory challenges, the record recites:

“Counsel for the Defense: Now, the defendants object to going to trial before this jury for the reason that the same is composed of members drawn and summoned on open venire; that according to the information and belief of the defendants every member of this jury, or at least the majority of them, are members of what is known as the Ku Klux Klan; that the court has refused to allow the defendant to inquire into the question as to whether they are members of that organization, and for that reason the defendants were unable intelligently to exercise their peremptory challenges, and because of the fact that it was summoned by the sheriff or undersheriff or deputy sheriff, witnesses in the case, who are all biased and prejudiced and disqualified to fairly select the jurors of the special panel to try this case. The objection was overruled. Exception allowed.”

The truth of the grounds of challenge seems to have been admitted.

A person accused of crime has by the Constitution and laws of Oklahoma a right to a trial by an impartial jury. Our Criminal Code provides:

“When the panel is formed from persons whose names are not drawn as jurors, a challenge may be taken to the panel on account of any bias of the officer who summoned them, which would be good ground of challenge to a juror. Such challenge must be made in the same form, and determined in the same manner as if made to a juror.” Section 2665, C. S. 1921.

It is essential to the fair and impartial administration of justice that an open or secial venire shall be summoned by an officer who is not disqualified by reason of interest, bias, or prejudice.

In Lyde v. State, 21 Okla. Cr. 426, 209 P. 226, it is said:

“This statute is well calculated to guard against hand-picked juries by officers who might be inclined to select individuals whose inclinations and prejudices would cause them to favor a conviction. This court has rfecently held, in the case of Liddell v. State, 18 Okla. Cr. 87, 193 P. 52, 16 A. L. R. 405, in a well written opinion by Judge Matson, that it is essential to the fair and impartial administration of justice that an open or special venire of jurors should be summoned by an officer who is not disqualified by reason of interest, bias, or prejudice, and that where the sheriff who serves the open or special venire of jurors is a material witness for the state, and a challenge to the panel of such open venire is interposed, it is prejudicial and reversible error for the trial court to overrule such challenge, citing Koontz v. State, 10 Okla. Cr. 553, 139 P. 842, Ann. Cas. 1916A, 689. This principle has also been stated and upheld in Shepherd v. State (Okla. Cr. App.) 192 P. 235; Hisaw v. State, 13 Okla. Cr. 484, Harjo v. United States, 1 Okla. Cr. 590, 98 P. 1021, 20 L. R. A. (N. S.) 1013.”

It follows from what has been said that the challenge to the panel should have been sustained.

By numerous decisions of this court it is held that Refusal to permit jurors to answer defendant’s question whether they belong to the Ku Klux Klan, for the purpose of laying a foundation for peremptory challenge of jurors, is reversible error. Menefee v. State, 30 Okla. Cr. 400, 236 P. 439; Cummings v. State, 32 Okla. Cr. 274, 240 P. 1078; Raymer v. State, 32 Okla. Cr. 385, 241 P. 499.

The statute confers upon one accused of a misdemeanor the right of exercising three peremptory challenges. Section 2671, C. S. 1921. A peremptory challenge, as defined by the statute, “is an objection to a juror for which no reason need be given, but upon which the court must excuse him.” Section 2670..

The right of challenge comes from the common law with the trial by jury itself, and has always been essential to the fairness of trial by jury. In conferring this right the law gives effect to the natural impulse to eliminate from the jury, not only persons who are rendered incompetent for some of the disqualifying causes named in the statute, but persons who by reason of politics, religion, environment, association, or appearance, or by reason of the want of information with reference to them, the defendant may object to their services upon the jury to which the disposition of his life or liberty is submitted.

For the errors indicated, the judgments appealed from are reversed and the case remanded for further proceedings in accordance with law.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    G. W. GOWER v. STATE.
    No. A-5485.
    Opinion Filed April 24, 1926.
    (245 Pac. 67.)

      W. B. Toney, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of the county court of Hughes county, rendered on the verdict of a jury finding the defendant, G. W. Gower, guilty of transporting intoxicating liquor, and fixing his punishment at a fine of $150 and confinement in the county jail for 30 days. The errors assigned relate to rulings of the court in the admission of evidence.

The undisputed facts testified to by three witnesses for the state are that B. R. Templeman, Roy Reed, and Mitchell Compier, deputy sheriff, were attending a picnic and had information from an unknpwn party that defendant, Gower, was coming to the picnic with intoxicating liquor; that they concealed themselves about eight miles east of Holdenville and waited for Gower to come along, and about 8 o’clock that night he came along the road, and they threw their car in' front of his and crowded him into the ditch, and then searched his person and found a bottle of whisky, and searched the car and found another bottle of whisky. They each testified that they had no search warrant or warrant for the arrest of defendant.

The testimony of each witness was admitted over the objections of the defendant that the same was incompetent, having been obtained by search of defendant’s person and car without a search warrant, and at the close of the state’s evidence the defendant moved to> strike all the evidence obtained by reason of said search and seizure, on the ground that the same was made in violation of his constitutional rights.

That all the evidence offered by the state was incompetent is not open to question under the decisions of this court. It has been repeatedly held that no search of the person or seizure of any article found thereon can be made on mere suspicion that the person is violating the prohibitory liquor laws, having intoxicating liquor in his possession, or without a search warrant, unless and until the alleged offender is in custody under a warrant of arrest, or shall be lawfully arrested without a warrant as authorized by law. Keith v. State, 30 Okla. Cr. 168, 235 P. 631.

The fact that defendant was conveying liquor, not being discoverable without a search, the offense of- conveying was not committed in the presence of the officers, and they had no authority to arrest him therefor without a warrant, and the search of his person and of his car was unlawful, .because made without a search warrant and not as an incident to a lawful arrest.

We hold, therefore, that the evidence challenged in this case was taken by the officers by unlawful search and seizure and contrary to Bill of Rights, § 30, and was improperly received in evidence against the defendant in violation of his rights under section 21, Bill of Rights.

The defendant’s conviction, having no sufficient foundation to support it without the use of evidence which had been unlawfully obtained, must be reversed.

Judgment reversed and cause remanded, with direction to discharge the defendant.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    LENTON LACEFIELD v. STATE.
    No. A-5484.
    Opinion Filed April 24, 1926.
    (245 Pac. 70.)
    W. B. Toney, for plaintiff in error.
    Smith €. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

On information charging that he did unlawfully convey intoxicating liquor, plaintiff in error, Lenton Lacefield, was tried and found guilty, and, in accordance with the verdict of the jury, was sentenced to pay a fine of $50 and to be confined in the county jail for 30 days. From the judgment he appeals, and assigns as error that the verdict is contrary to the law and the evidence, and that the court erred in the instructions to the jury, and erred in refusing requested instructions.

D. D. Mauldin, constable, and S. E. Mauldin, as witnesses for the state, testified that they saw the defendant driving on the highway in Hughes county towards the town of Stuart, and just before they met him he broke a one-half gallon jar which he was carrying in his car, and when he smashed it they picked up a part of the broken jar and found that it contained corn whisky.

The defendant, as a witness in his own behalf, testified that he found the whisky on the mountain about half a mile north of the iron post, and put it in his car, and when he saw the officers he broke the jar.

On his own statement, the defendant is guilty as charged, and, the jury having fixed the minimum punishment, it would serve no useful purpose to review the instructions excepted to.

The judgment of the trial court is therefore affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    LEE FINES v. STATE.
    No. A-5296.
    Opinion Filed April 24, 1926.
    (245 Pac. 66.)
    H. J. Mackey, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error hereinafter called defendant was convicted in the county court of Oklahoma county on a charge of transporting liquor, sentenced to pay a fine of $250, and to be confined in the county jail for a period of three months. The evidence discloses that certain police officers went to a rooming house on West Grand avenue, Oklahoma City, conducted by defendant and his wife, and while there saw defendant on the stairway near his room, and testified they observed the prints of bottles in his coat, and thereupon, without a warrant or search warrant, arrested and searched him, and found two bottles of whisky on his person. The defendant objected to the introduction of this evidence as being obtained by an illegal search. This was error. The constitutional guaranty against unlawful search forbids the invasion of the residence or the search of the person on mere suspicion.

The case is reversed and remanded, with instructions to dismiss.


text:
    ED McHENRY v. STATE.
    No. A-5100.
    Opinion Filed April 24, 1926.
    (245 Pac. 1001.)
    A. J. Stevens and Mauntel & Spellman, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Woods county on a charge of driving an automobile while intoxicated, and sentenced to serve a term of six months in the state penitentiary and to pay a fine of $300.

Defendant contends first that the law under which the prosecution was had (section 3, c. 16, Session Laws 1923), is unconstitutional as being in violation of section 57, art. 5, of the Constitution. This contention has been ■decided adversely to defendant in the case of Simpkins v. State (Okla. Cr.) 249 P. 168.

The complaint is next made that there is no sufficient proof of intoxication. The evidence is that early in the morning on the 30th day of July, 1923, the sheriff saw defendant and some others in an automobile on the streets of Alva, arrested defendant on the claim that he was intoxicated, and took him to jail. The evidence of intoxication is as follows:

The witness Martin testified:

“Q. I will ask you if you saw Mr. McHenry on or about the 30th day of July, 1923 ? A. I did.
“Q. Just go ahead and tell the court and jury about where you saw him and what time of day it was, all the circumstances surrounding this occurrence, where you saw Mr. McHenry? A. I left my home on Barnes avenue about 7 o’clock in the morning; right around that time. I was driving west on Barnes avenue. As I came down along about Third street, along in there somewhere, I seen Ed McHenry and Jess Downard and Shorty Parker drive by in a Marmon car, and I went down there, the next block I think it was, and turned around and followed them. They went east and turned south on a street right east of the canyon, the east part of town; I don’t know just what the name of that street is now. I followed them down that street to Normal street. As they turned to go on Normal street, I ran my car ahead of them and stopped them, placed Ed McHenry under arrest, and brought him back to town.
“Q. Did you have any conversation there at that time with these men? A. Yes, sir, * * *
“Q. Do you remember Mr. McHenry taking any part in the conversation over there at Farris? A. Well, I don’t remember now whether he did or not. * * *
“Q. Hugh, did you search the car out there on Normal street? A. I don’t believe I did.
“Q. Did you look into it? A. I looked into it; I got into the car.
“Q. Did you find anything? A. No, sir.
“Q. Any liquor? A. No, sir. * * *
“Q. How fast were they going, Hugh? A. Oh, I judge about 10 or 12 miles an hour.
“Q. Who was driving? A. Ed McHenry.
“Q. Was he going down the road straight? A. Well, fairly straight, I guess; I drove down another block, I think it was, before I turned.
“Q. The car wasn’t swerving back and forth down the road, was it? A. No; I think he was driving it pretty straight down the street. * * *
“Q. Did he stagger any? A. No; I think he got out and stood by the car. * * f
“Mr. Martin, will you describe to the jury Mr. McHenry’s condition at the time when you stopped the car out there on Normal street? A. Yes, sir. He was intoxicated. * * *
“Q. Did you smell any liquor on his breath at that time, Mr. Martin? A. Yes, sir.
“Q. Now, how could — can you describe his actions, Mr. Martin, if any? A. Yes; I could tell he was intoxicated by the looks of the man and the way he talked and the way he smelled.
“Q. Did he talk sensibly, Mr. Martin? A. Well, about the sum and substance of the conversation was Í asked him what he was doing up there. He said he was looking for Sam Corey. I told him Sam Corey lived at Waynoka; he didn’t live out there in the weeds. We talked back and forth. Of course, he claimed he wasn’t intoxicated. We didn’t have much conversation. I stayed there only a short time.
“The Court: You say you could tell from the way he looked he was intoxicated. Tell us how he looked that indicated to you that he was intoxicated? A. Well, by his eyes-; that would be about the only way I could explain it; that I could just look at him and tell he was drunk, like looking at any drunk man; I don’t know how I could explain the look he had. * * *”

The witness Farris, who was called by the sheriff to the place of arrest to take charge of the defendant, testified:

“Q. Did you have any conversation with Mr. McHenry at that time or was there any conversation in which he took a part? A. Well, I don’t remember that Ed said anything at that time.
“Q. Did you observe his condition at that time, Mr. Farris? A. Well, he was under the influence of intoxicating liquor.
“Q. Now state the facts about his appearance and his actions, Mr. Farris, that lead you to that conclusion. A. Well, really the appearance and expression of his eyes showed the fact that he was under the influence of intoxicating liquor more than any other thing.
“Q. What did you do then, Mr. Farris? A. Mr. Martin asked me to bring the boys on down here to the courthouse. I got into the car with Ed McHenry, Jess Downard, and Parker and came down to the courthouse.
“Q. Did you order Ed to drive you down? A. Well, I told him we would come down to the courthouse. Yes; he got under the wheel.
“Q. He got under the wheel and you got in behind ? A. I believe that is right.
“Q. And he brought you all around one block south of your house, did he? A. Yes, sir; that is right; one block south, a block west, and back north a block. * * *
“Q. Did you search the car after you got to the courthouse? A. No, sir; I didn’t.
“Q. Do you know whether there was any liquor in it, of your own knowledge? A. Well, I didn’t see any in it.
“Q. There was not? A. Well, I would say there' wasn’t any in it. * * *
“Q. When he drove you back up town, he drove down the road all right, didn’t he, Brad? A. Yes; he drove all right, drove very slow, but he drove all right. * * *
“Q. Yes; but when you got out of the car here at the jail, he walked down all right, didn’t he? A. He walked down all right; yes, sir. * * *
“Q. Well, did you note any difference in his driving this car then than otherwise? A. Well, I don’t know; this is the first time I ever rode in the car with him. * * *”
The witness Cameron, who was jailer and received defendant shortly after his arrest, testifiéd:
“Q. I will ask you if you know whether or not at that time Mr. McHenry was intoxicated or under the influence of intoxicating liquor? A. I considered him drunk. * * *
“Q. Well, did you have any conversation with him at that time? A. I just spoke to him and from the fumes of whisky and the way he looked, I considered, him drunk. * * *
“Q. And you say you judge he was drunk because you smelled liquor on him? A. Yes, sir; and his appearance. * * *
“Q. Well, what else did you observe about him; did he stagger down there in the jail? A. No; I can’t say that he did.
“Q. Did you hear him say anything; did he say anything to you out of the ordinary? A. No; I didn’t talk to him but mighty little. * * *”

Defendant testified in his own behalf that on the night in question he was operating a, cafe in the city of Alva, which closed about 1 o’clock, and about that time one Covalt came up with a car, and a traveling man there desired to make a drive to Avard to catch a train, and defendant, Parker, and Downard were going along with Covalt. Defendant testified that Covalt decided he would not go, and asked defendant to drive; that he made the drive to Avard, waited some time at the depot, and after the train left they drove back, and on the road had car trouble, which delayed them, and, when they finally returned to Alva, it was early in the morning, and, as one of the party was to go to work at 7 o’clock, they started tq drive out to the end of the pavement and back, when they were accosted by the sheriff. He testified that he was not intoxicated and had not drunk any liquor from the time he left the restaurant until arrested, and that there was none in the car that he knew of. He also offered the evidence of Dr. Simons, who was called to the jail, and examined defendant about 10:30 to determine whether or not he was intoxicated, and testified that he was sober. Defendant also offered the evidence of Fred Parker, who was in the car with him on the trip, who corroborated the testimony of defendant fully, and who testified that there was no whisky in the car on that night and that defendant nor any of the party bad been drinking.

There was offered also the evidence of Joe Covalt, in substance, that he came to the residence of defendant on the night in question about 1 o’clock and delivered the car to him to make the trip to Avard; that he saw no indication that defendant was drinking; and that there was no liquor in the car. Also defendant offered the evidence of Worth Clark that he saw defendant at the courthouse early on the morning of the arrest, observed his condition, and saw nothing to indicate that defendant was intoxicated.

This court has adopted the rule that, where the evidence reasonably supports the verdict, its weight and credibility is for the jury, and, in the absence of unusual circumstances, it will not set aside a judgment for insufficiency of the evidence; and this is true, although the evidence may be conflicting or such that different inferences might be drawn; But where the verdict is clearly against the weight of the evidence or appears to have been influenced by passion or prejudice, or where the jury could not rationally find the guilt of a defendant, the court will set aside a verdict as not sustained by the evidence. Here the evidence is that the defendant was driving at a very moderate rate of speed; no circumstances indicating intoxication were testified to either in the manner of driving, the talk, or actions of defendant. No liquor was found about the car, and several witnesses, who appeared to be disinterested and were in a position to know, testified. that defendant was not drinking. The officer to whom defendant was delivered at the time of his arrest seated himself in the back of the car and directed defendant to drive through the streets to the jail. This confutes his statement that defendant was intoxicated..

From a consideration of all the evidence, we think the evidence did not reasonably prove the intoxication of defendant. The judgment should be reversed for insufficiency of the evidence..

The case is reversed and remanded, with instructions to the lower court to dismiss.

BESSEY, P. J., and DOYLE, J., concur.


text:
    EVA JACOBS v. STATE.
    No. A-5494.
    Opinion Filed April 24, 1926.
    (245 Pac. 1115.)

      Mounts & Chamberlin and W. H. Hussey, for plaintiff in error. .
    The Attorney General, for the State.
   PER CURIAM.

Upon motion of the plaintiff in error, and upon a showing made that said plaintiff in error has served most of the sentence imposed by the trial court, because of inability to give an appeal bond after taking her appeal to this court, the appeal in this cause is dismissed.


text:
    O. O. SPRINKLE v. STATE.
    No. A-5435.
    Opinion Filed May 1, 1926.
    (245 Pac. 901)
    W. R. Withington, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Carter county on a charge of having possession of intoxicating liquor with intent to violate the prohibitory law. The record discloses that on the 25th day of June, 1924, the defendant and two other men were seen near the Confederate Home out of Ardmore. The defendant concealed an armful of bottles near the road. He took a tow sack filled with bottles of “choc” beer, and, when called to by the officers, dropped it and fled. There was testimony that one of the officers had a bottle of the seized liquor analyzed, and it contained 7 per cent, alcohol.

The defendant contends that the search of the sack carried by defendant in which were bottles of beer was illegal; that the officer did not know that defendant had intoxicants in the sack; and .that the search was on mere suspicion, citing: Killian v. State, 30 Okla. Cr. 201, 235 P. 625; Keith v. State, 30 Okla. Cr. 168, 235 P. 631; Crossman v. State, 28 Okla. Cr. 198, 230 P. 291; Powell v. State, 32 Okla. Cr. 244, 240 P. 1080; Severns v. State, 31 Okla. Cr. 231, 238 P. 217; Jokosh v. State, 193 N. W. 976, 181 Wis. 160.

The holding as announced in the cases cited may be summarized by saying that the search of the person cannot be made on the mere suspicion that the person is violating the liquor law. The record in this case does not bring it within that rule. A part of the evidence on this point is as follows:

“Q. What did Sprinkle do when you got there? A. He had an armload of bottles, and hid them under a little hickory bush.
“Q. Where did he get them? A. Out of the turtle back of a Studebaker roadster; put the bottles under the bush; got a tow sack, with a bunch of bottles in it; started down the hill west, the tow sack on his shoulder, both hands ahold of it. I hollered at him; he looked back; and run down the hill west.
“Q. What did you do? A. Told Hudson to put the sack in the car. He said it wasn’t his. I put it in the car; brought Hudson and Talley back to town.
“Q. Did you see what was in that sack? A. After I got to jail— * * *
“Q. Fact is, you do not know it was beer? A. Could smell it, mighty strong. * * *
“Q. Could you smell it through the tin and glass? A. One of them was broken; saw it whenever I took it out to jail.
“Q. When one of them was broken you could smell something; you could not tell for sure it was choc beer? A. Yes, sir.
“Q. You did not taste it? A. No, sir.
“Q. You could tell by the smell? A. Yes, sir.
“Q. You are just going by the smell? A. Yes, sir.”

The witness Dunn testified:

“Q. Tell the court and jury how you came to see him? A. Mr. Hignight and a fellow by the name of Pope and I were out two miles west of here, and on a hill where some bushes were we found some choc beer out there. We backed off from it a little piece, and sat down, and stayed there about 20 minutes. Mr. Sprinkle walked up to it, and we arrested him.
“Q. Did you do anything with the Choctaw beer? A. Arrested him. Him and I drank a bottle of it.
“Q. What was the condition of the choc with reference to being hot or cold? A. Cold; there was cracked ice there.
“Q. Did you know how much Choctaw beer .there was there? A. 25 or 30 bottles, maybe more; maybe not that much. * * *
“Q. Did you find any other Choctaw beer or bottles there? A. Yes, sir.
“Q. Where? A. Up the hill.
“Q. Where were they? A. Half gallon white bottle, 40 or 50 steps; half gallon in the road, in the open; several empties in some bushes. * * *”

There is also other evidence along the same line. It appears that, in addition to the beer in the sack, there was beer and ice out in the open with a large number of bottles apparently ready to distribute to the trade. When defendant dropped his sack of choc and fled, he was in no position to complain that the officer then examined the sack and testified to its contents. The liquor discovered itself.

In the case of Munson v. Commonwealth, 256 S. W. 393, 201 Ky. 274, it was said:

“We do not think, under the facts in this case, that a search warrant was necessary to justify the arrest of Perry Munson, who was caught carrying a suitcase filled with liquor, because the liquor discovered itself. The suitcase was wet with it, and gave off odors, indisputable evidence of the liquor it contained. True, the officers had gone to the premises for the purpose of searching the home of Pack Munson, but had not done so; not then having been admitted to the house, when appellant, Perry Munson, sprang from the rear door and ran down through the garden carrying the suitcase. He threw the suitcase away before he was caught. * * * And the officers found it, and discovered that it contained whisky and arrested appellant. The evidence was therefore competent. * * *”

This was a sufficient showing' of an offense in the presence of the officers to authorize an arrest and the search. Some claim is also made that there is insufficient identification of the liquor analyzed. We do not agree with this contention. The identification is bungled somewhat, but is sufficient. It is also urged that the punishment is excessive, but the evidence apparently is that defendant was prepared to dispense intoxicants at retail, and the punishment was in the discretion of the jury.

The ease is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    VICTOR TAPEDO v. STATE.
    No. A-5452.
    Opinion Filed May 1, 1926.
    (245 Pac. 897.)

      Bristow & McFadyen, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and V. P. Crowe, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Caddo county upon a charge of murder, and his punishment fixed at imprisonment for life.

The record discloses that defendant was a young man about 24 years of age, a member of the Kiowa Tribe of Indians; married to Eloise Patterson, also a member of the tribe. They had living one child about four years of age. Prior to the 17th day of May, 1924, another Indian named Kaulaity had been paying attention to the wife of defendant; she went riding with him and on one occasion spent the night with him at Hobart; apparently they had been guilty of adultery. The defendant knew of this relation, had worried over it, and had tried to prevent his wife from associating with Kaulaity. About two weeks before the homicide, he assaulted and beat deceased and broke her arm and one finger. A few days before the homicide he had attempted to borrow a gun, and stated at the time he figured on killing his wife and Kaulaity. On the night of the 17th of March, defendant and wife stayed at the home of Edgar Topah and his wife, Esther Lone Wolf. The next morning about 7:30, defendant went to the premises of J. E. Fest and borrowed from him a shotgun, saying he wanted it to kill chaparrals, and he went in the direction of the Topah home. The deceased was in bed, and defendant shot her through the head, killing her instantly. He then went, with the gun, into an adjoining room and told Hazel Lone Wolf he had killed his wife. He next went to the field, where Edgar Topah was, gave the gun to Topah, and told Topah to kill him because he had killed his wife. When Topah refused, he asked him to give back the gun so that he could kill himself. He then went to the house, got a butcher knife to kill himself, which Topah took from him. On the Saturday before the homicide, deceased and defendant were together at Carnegie, and deceased in the presence of defendant stated she wanted to get a divorce from defendant because he treated her so mean and whipped her.

The defense was insanity. The defendant testified that he learned some time before the homicide that his wife had been associating .with Kaulaity, and this had affected his mind so that he could hardly sleep or eat; that it seemed like he was blind part of the time; that at the time of the prior injury to his wife he did not know whether he intended to hurt her or not; he did not know whether or not he went to borrow a gun a few days before the homicide; did not know what happened on the morning of the homicide, and the first he remembered after the killing was at his brother-in-law’s; believed that he got the gun from Fest, but seemed like it was dark, and did not know whether he killed deceased or not. On the matter of insanity, there was considerable evidence on the part of defendant indicating that defendant was excited and acted crazy. This was sharply rebutted by the state.

The assignments of error argued in the brief may be stated as follows: The admission of incompetent evidence on the part of the state. Error of the court in instruction No. 4. Error in the closing argument of the county attorney. Misconduct of the jury. These assignments will be considered in the order presented.

Under the first assignment it is contended that the evidence of a previous assault of the defendant upon the deceased is proof of a different crime and prejudicial. The previous relations of the parties, ill treatment, and previous assaults and difficulties in homicide cases, where they are not too remote, are generally admissible as showing motive and intent, explaining the mental attitude of the parties, and as throwing light on the offense for which the defendant is being tried; it generally being said that such evidence should be restricted so that the jury may consider it only for the limited purpose for which it is admitted. Miller v. State, 13 Okla. Cr. 176, 163 P. 131, L. R. A. 1917D, 383; Koontz v. State, 10 Okla. Cr. 559, 139 P. 842, Ann. Cas. 1916A, 689; Smith v. State, 3 Okla. Cr. 629, 108 P. 418. Here a serious assault was proven only 13 days prior to the homicide, and as the cause of the trouble between defendant and deceased continued down until it culminated in the homicide, the previous relations are so closely interwoven that it was clearly admissible as tending to shed light upon the killing.

There is also complaint made that the court permitted evidence of the relation of defendant with another woman. This evidence was admitted in rebuttal, and apparently on the theory that as the defense was made that defendant was temporarily insane at the time of the killing by reason of the misconduct of his wife, it was proper to show his relations with another as rebutting the inference to be drawn from his claim of insanity. In the case of Coffeen v. State, 22 Okla. Cr. 212, 210 P. 288, it is held that where emotional insanity .is pleaded, claimed to be due to the discovery of the infidelity of the wife, it may be shown in rébuttal that defendant also had been guilty of misconduct as tending to show the condition of his mind and to rebut the inference that the mental shock or strain was sufficiently great to unseat his reason. Much the same holding is made in the case of Tingley v. State, 184 P. 599, 16 Okla. Cr. 639. In instruction No. 12, the court limits this evidence to that purpose. The admission of the evidence as limited is not error. Under this assignment is also urged that, in offering evidence as to defendant’s state of mind, the court unduly restricted defendant and sustained objection to evidence offered and permitted the introduction of the same class of evidence by the state. This is directed to opinion evidence touching the sanity of defendant. We have closely scrutinized the record on this point, and conclude that the apparent difference in the ruling of the court is due to the failure of defendant to lay a proper predicate before asking the opinion of the witness. That is, failure to show sufficient observation or previous acquaintance on" which to base an opinion. In cases where insanity is interposed as a defense, opinion evidence on insanity must be based upon facts submitted as a foundation for such opinion. Mere conclusions, without a showing of facts upon which such conclusion may logically be drawn, are regarded as insufficient. Queenan v. Ter., 11 Okla. 261, 71 P. 218, 61 L. R. A. 324; Lee v. State, 30 Okla. Cr. 14, 234 P. 654.

It is next argued that the court erred in instruction No. 4. This instruction informs the jury that they are the sole and exclusive judges of the credibility of the witnesses and the weight of the evidence, and advises them that in determining the weight and credit they will give to the testimony of any witness, they may take into consideration, the fairness and candor or lack thereof of any witness, his interest, bias, or prejudice, his means and opportunity of knowing the facts to which he may have testified, and then concludes:

“* * * And in this connection you are instructed that if you find and believe from the evidence that any witness has willfully testified falsely as to any material matter of fact, you may disregard the testimony of said witness."

This court on numerous occasions has condemned instructions in which the jury were informed that they may disregard the testimony of a witness unless corroborated by other credible testimony, for the reason that a jury may disbelieve and disregard the testimony of the witness even though it be corroborated. See Williams v. State, 9 Okla. Cr. 206, 131 P. 179; Sims v. State, 7 Okla. Cr. 7, 120 P. 1032; Cole v. State, 18 Okla. Cr. 430, 195 P. 901. The giving of the objectionable instruction referred to in these various cases is not necessarily reversible error. In the instant case, while we do not approve of the form of the instruction given, it will be noted that the jury are told they may disregard the testimony if they believe the witness has testified falsely and no mention of corroboration is made.

Complaint is next made of misconduct of the special counsel for the state in the closing argument. The record upon this point shows the following objection to the county attorney reading from the statutes:

“Mr. Bristow: Comes now the defendant and objects to the county attorney reading from the statutes of the state of Oklahoma when the court has fully instructed the jury as to the law in the case. That if the defendant’s attorneys made any statement in regard to the insanity of the defendant, that it was this: That the court could protect the public against a person who was insane. * * *
“Mr. Pruett: The argument that the attorney for the state is making at the present time is in response and directly in reply to that part of the statement of the attorney for the defendant where he said the defendant could he taken care of by the court—
“Mr. Bristow: I said if he was acquitted for reason of insanity at the time the crime was committed. * * *
“Mr. Pruett: That if they found him not guilty by reason of insanity, it was the duty of the court to submit the defendant to an examination and hold him until he was discharged thereby, and the statement that I make at this time is that is not the law. It is not claimed by the defendant in this case at this time that the defendant is insane at this time, but only that he was insane at the time of committing the homicide, and that the law now being read to the jury is to show that there is not law to commit the defendant to an asylum at this time, if the jury returns a verdict of not guilty by reason of insanity.”

Upon the conclusion of the argument, the court instructed the jury on this point in these words:

“Gentlemen of the jury, the attorney for the defendant and the attorney for the state have both told you what in their judgment would be the future of the defendant under the law, should you find him not guilty by reason of insanity. This is a question you are not called upon to determine, and you will arrive at your verdict under the evidence introduced and the instructions of the court given you, without regard to that question.”

We gather from this that defendant’s counsel in arguing the insanity of defendant said, in substance, to the jury that in case defendant was acquitted by reason of insanity, the state could take care of the situation. The attorney for the state in answering this attempted to inform the jury, by reading the statute covering1 the disposition of insane, what might be done with an insane person. The argument of both was not a matter to be submitted to the jury. The court should have excluded it, but not having done so, he did the next best thing by advising the jury that it was no concern of theirs. We do not see how this was prejudicial to defendant. -

Lastly, it is argued that there was misconduct of the jury before the case had been finally submitted to them. It is made to appear that in the course of the trial Chief Ahpeahtone, a witness for defendant, testifying by interpreter, said in referring to defendant’s mental condition that, “He had eyes like a coyote or wolf.” Arthur Owens, one of the jurors, during an intermission and before the case was finally submitted, asked Lewis Ware this question: “What do the Indians mean by their testimony when they say, ‘His eyes looked like a coyote or drunk man’s,’ ” and Ware told him, “It could mean he was crazy or excited or nervous.” This was the extent of the showing upon this assignment. The juror testified that this statement did not affect him; that he decided on the testimony.

The action of the juror was misconduct, and in capital cases where, after the case is finally submitted to the jury, and there is a showing of misconduct, the presumption is that it is prejudicial, and the burden is on the state to show that no injury could have resulted therefrom to the defendant. Before the final submission of the case to the jury, the burden to show prejudice from an alleged misconduct is on defendant. We think it cannot be said that there is any substantial showing of prejudice by reason of the question asked by the juror of the witness, but in the trial of capital cases the jury generally should be held together during the entire course of the trial, and in the discretion of the court they may be permitted to separate before the case is finally submitted to them; but in such case the court should particularly impress upon them that they must not converse among themselves or with any one else, or permit any conversation in their hearing or presence concerning the case. We strongly condemn the action of the juror. However, the fact of the killing of deceased by defendant in the manner stated being undisputed, and the evidence of insanity, as we view the evidence, being so insubstantial, the showing of misconduct did not affect the verdict, nor deprive the defendant of any constitutional or statutory right, and is not of sufficient importance to warrant a setting aside of the verdict.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


author: BESSEY, P. J.

text:
    R. C. EVANS v. STATE.
    No. A-5427.
    Opinion Filed May 1, 1926.
    (246 Pac. 912.)
    Wm. E. Foreman, Jas. H. Sykes, and Franklin H. Griggs, for plaintiff in error.
    The City Attorney, for the State.
   BESSEY, P. J.

The plaintiff in error, R. C. Evans, here designated the defendant, was found guilty of the illegal transportation of whisky, with his punishment fixed at a fine of $100 and 60 days in jail.

The testimony discloses that certain peace officers searched the car of the defendant without a search warrant while the car was standing in a public alley in Tulsa. They found 45 pint bottles of whisky in the car. Some of this they found while the car stood in the alley, before the defendant came up, and the major portion they recovered as the defendant was in the act of driving away. The defendant had backed his car and moved about four or five feet when apprehended. The officers did not know whether the whisky was placed in the car at this point or not.

Under the laws of this state a private conveyance may not be searched on suspicion without a search warrant. With a proper search warrant, based upon an affidavit setting forth facts showing probable cause for believing that the car contains liquor, a car may be searched, as a building or rooming house.

In this case the officers’ suspicions were well founded, but that will not justify the unlawful search or purge it of its illegality. The law recognizes that the evils flowing from indiscriminate searches on mere suspicion are greater than the evil of an occasional escape of the guilty, made possible by the rule prohibiting searches and seizures on suspicion only.

For the reasons stated, the judgment of the municipal criminal court of Tulsa is reversed, with instructions to dismiss the cause.

DOYLE and EDWARDS, JJ., concur.


text:
    JOHN COOKSEY v. STATE.
    No. A-5447.
    Opinion Filed May 1, 1926.
    (245 Pac. 1001.)

      Percy Powers, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, P. J.

The plaintiff in error, John Cooksey, designated the defendant, was charged with the illegal possession of a still worm, a part of a still used in the manufacturing of whisky. The jury, by a majority verdict, found him guilty as charged, and the court fixed his punishment at the minimum prescribed by the statutfe— 30 days in the county jail and a fine of $50.

Under authority of a search warrant, the sheriff and his deputy found on the premises of the defendant, in his absence, two small copper tubes hidden in some cotton seed in a seed house or granary. Later they found in a dugout two copper wash boilers, in crates, not unpacked, but just as they came from the mail order house. These were not addressed to the defendant, but to one John Mabry. Across the highway, on the premises of another, they found two sacks of sugar in a shed.

When the officers apprised the defendant of what they had found, the defendant and his wife denied ownership of the articles, and said that they were probably the property of Mabry, and placed where they were found by him. It was shown that Mabry had been there with his car twice that day, and that when he learned that the officers had made the seizure he fled, and at the time of the trial his whereabouts was unknown.

The circumstances shown by the state’s evidence raised a grave suspicion against the defendant, but we cannot say that the circumstantial evidence excluded every .reasonable hypothesis except that of the defendant’s guilt. It seems clear that either John Mabry or the defendant, or possibly both, intended to use this copper tube to make a still, but the circumstances alone are not sufficient to fasten guilt upon the defendant under the established rules as to circumstantial evidence.

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

DOYLE and EDWARDS,-JJ., concur.


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    ORIE SMITH v. STATE.
    No. A-5385.
    Opinion Filed May 1, 1926.
    (245 Pac. 906.)
    W. Shearer Brown and P. A. Gavin, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Muskogee county on a charge of robbery with firearms, and sentenced to serve a term of 25 years in the state penitentiary.

The case was tried in October, 1924, and the appeal lodged in this court January 5, 1925. No briefs have been filed, and no appearance for oral argument made. Where an appeal is prosecuted to this court, and no brief in support of the petition in error is submitted, and no appearance for oral argument made, this court will examine the record for jurisdictional errors, and will read the evidence to ascertain if it reasonably supports the judgment. If no fundamental errors appear, the case will be affirmed.

We have examined the record and find that it properly charges the offense of robbery with firearms. The record discloses that on the date charged in the information the defendant, in the nighttime, while engaged in burglarizing a mercantile establishment, was detected by Bates, the proprietor. The defendant immediately shot and seriously wounded Bates, and then escaped with some of the merchandise.

The evidence fully sustains the verdict and judgment, and no jurisdictional error is apparent.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    EARL SHANKS v. STATE.
    No. A-5548.
    Opinion Filed May 1, 1926.
    (245 Pac. 907.)

      Ed Crossland, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Appellant, Earl Shanks, was convicted of having possession of intoxicating liquor with intent to sell the same., and, in accordance with the verdict of the jury, was sentenced to pay a fine of $100 and to be confined in the county jail for 30 days.

To reverse the judgment, • appellant assigns as grounds the insufficiency of the affidavit upon which the search warrant issued, and the invalidity of the search warrant, and that the evidence offered by the state tending to prove the guilt of appellant was incompetent, because said evidence was obtained through such illegal search warrant.

The evidence offered to support the motion to suppress shows that the affidavit and search warrant issued thereon describes the place as one box house on the northeast quarter pf sec. 21, tp. 17, R. 13 E. and all outbuildings, and that appellant resides on the northeast quarter of sec. 21, tp. 17, R. 14 E., that the place searched was 6 miles east of the place described in the affidavit and search warrant. Upon the undisputed facts, the motion to suppress should have been sustained. Emmons v. State, 33 Okla. Cr. 40, 241 P. 1107.

The admission of the evidence obtained by such search warrant, over timely objection, as made in this case, was prejudicial error.

The judgment is therefore reversed.


text:
    HARRY WELLS v. STATE.
    No. A-5304.
    Opinion Filed May 1, 1926.
    (245 Pac. 1007.)
    Jno. L. Ward and Geo. Paschal, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county on a charge of robbery with firearms, and sentenced to serve a term of 25 years in the state penitentiary.

On the night of the 27th day of October, 1923, one Gilmer, a street car conductor, was held up and robbed on his car in the suburbs of the city of Tulsa. The robbery was done by two persons — one of whom was partially masked with a handkerchief covering his nose and the lower part of his face; the other was unmasked. A few days thereafter the defendant with another was charged with the crime. The codefendant, charged as John Doe, proved to be one Edgar Minson, who at that time was a convict serving a term in the Granite Reformatory for robbery and was on leave of absence. Minson turned state’s evidence, and defendant was convicted upon his testimony and some corroborating evidence which is rather unsatisfactory, but sufficient to satisfy the requirements of the law in relation to evidence of accomplices.

Complaint is first made that defendant is prosecuted under the conjoint robbery statute (section 1793, Comp. St. 1921), and it is contended that this is repealed by chapter 85, Session Laws 1923. The prosecution is under the latter statute, which does not repeal the former, nor does the latter repeal section 1784, Comp. St. 1921, defining robbery. While the title of chapter 85, supra, purports to be an act defining robbery, yet, as the title calls attention to the subject-matter of the act and comprehends but one subject, that of robbery, it is sufficient. It is merely a statute of classification, and provides an enlarged punishment for robbery committed by the use of firearms or other dangerous weapons. In this connection it is pertinent to state that the Legislature of 1925, by chapter 44, again amended the law and fixed the minimum punishment at 5 years instead of 25 years, as in chapter 85, supra. Chapter 44 of the Session Laws of 1925 is also a statute of classification and not definition. Richards v. State, 22 Okla. Cr. 199, 210 P. 295; Randall v. State, 38 Okla. Cr. 262, 243 P. 983.

It is next argued that the court erred in permitting the state to offer in evidence a statement made in the presence of defendant while he was in custody, charging him with this crime, which he did not at the time contradict. This court has several times held that a person in custody on a charge of crime is not called upon to contradict a statement prejudicial to him made in his presence, and though such statements are not contradicted they are not admissible in evidence against him. Section 21, art. 2, of the state Constitution; Gillespie v. State, 5 Okla. Cr. 546, 115 P. 620, 35 L. R. A. (Ñ. S.) 1171, Ann. Cas. 1912D, 259; Ellis v. State, 8 Okla. Cr. 522, 128 P. 1095, 43 L. R. A. (N. S.) 811; Towery v. State, 13 Okla. Cr. 216, 163 P. 331, L. R. A. 1917D, 491; Saunders v. State, 33 Okla. Cr. 336, 244 P. 55.

Where the record clearly shows this, it may be prejudicial error sufficient to reverse the case. But here, after it was shown that the charge was made and not contradicted, it was further shown on cross-examination of the witness that the statement was not heard by defendant, and that he was not in a position to deny such accusation. Under these circumstances, he could not have been prejudiced.

Lastly, it is contended that the court erred in instruction No. 10, which is as follows:

“You are instructed that the prosecution in this case has used the testimony of a witness who was culpably implicated in the commission of the crime with which the defendant is accused; that is, one who knowingly and voluntarily co-operated or aided or assisted in the commission of the crime with which the defendant is accused. You are instructed that such witness is in law what is known as an accomplice, and you are instructed that a conviction cannot be had upon the testimony of an accomplice, unless such witness be corroborated by such other evidence which tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense, or the circumstances thereof, but such other evidence, to be sufficient to corroborate the evidence of an accomplice, must tend to connect the defendant with the commission of the crime of which the defendant is accused.”

By this instruction the court informed the jury as a matter of law that the witness Minson was an accomplice of the defendant. Minson had testified that he and defendant committed the robbery. Defendant denied seeing Minson on the day of the robbery, denied that he was with him or had any connection with the crime charged, and offered evidence tending to prove an alibi. This was a direct and irreconcilable conflict between the testimony of the claimed accomplice and the defendant. If the evidence of the accomplice was to be believed by the jury, the evidence of defendant must be disbelieved. It, therefore, was a question of fact whether or not defendant was an accomplice of the witness Minson and a matter to be submitted to the jury for their determination as a question of fact. The assumption by the court in the instruction No. 10 that defendant was an accomplice invaded the province of the jury to the prejudice of defendant. It amounted to a statement by the court that the evidence of Minson was true and the evidence of defendant not true.

In Cudjoe v. State, 12 Okla. Cr. 246, 154 P. 500, L. R. A. 1916F, 1251, it was held:

“Where the evidence is conflicting as to whether a witness participated in committing the crime charged, the question as to whether or not such witness is an accomplice, is one of fact for the jury. But where the acts and conduct of the witness are admitted, it becomes a question of law for the court to say whether or not those ■ acts and facts make the witness an accomplice.”

See also, Moore v. State, 14 Okla. Cr. 292, 170 P. 519; McKinney v. State, 20 Okla. Cr. 131, 201 P. 673.

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

BESSEY, P. J., and DOYLE, J., concur.


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    ORVAL GARDNER et ux. v. STATE.
    No. A-5297.
    Opinion Filed May 1, 1926.
    (245 Pac. 911.)
    Wright & Gill, for plaintiffs in error.
    Geo. F. Short, Atty Gen., for the State.
   PER CURIAM.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Oklahoma county on a charge of maintaining a place where liquors were kept for the purpose of sale. The evidence upon which a conviction was had was obtained under a search warrant issued by the police judge of Oklahoma City. Under the prohibitory liquor law, a search warrant may be issued only by judges of courts of record and justices of the peace (section 7009, Comp. Stat. 1921), and, where a search warrant in a liquor case is issued by a police judge, it is a nullity, and evidence obtained by it should be excluded on timely objection. Terry et al. v. State, 31 Okla. Cr. 91, 237 P. 465; Reinhart v. State, 32 Okla. Cr. 109, 240 P. 139; Cook v. State, 33 Okla. Cr. 54, 242 P. 277. In this case motion to suppress the evidence before entering upon the trial was made, and objection made at the time evidence was interposed.

For the reasons assigned, the case is reversed and remanded, with instructions to dismiss.


text:
    ERNEST FORD v. STATE.
    No. A-5424.
    Opinion Filed May 1, 1926.
    (245 Pac. 909.)
    Sigler & Jackson, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, P. J.

Ernest Ford, plaintiff in error, here referred to as the defendant, was convicted of having illegal possession of whisky, with his punishment assessed at 30 days in jail and a fine of $50.

The evidence shows that the defendant and one Red Jones jointly operated a public rooming house on the second floor of a certain building in Ardmore; that of.fleers searched the premises under authority of a search warrant, and in a locked compartment at the foot of the rear stairs, where the water heater for the rooming house was operated, they found 11 gallons of whisky. ’The defendant denied that the whisky was his, and stated that he had no key to this compartment, but that Red Jones had a key.

The defendant urges that the whisky seized in this heating plant room on the ground floor of this building was taken in an illegal search and seizure, and that the evidence so secured was therefore inadmissible.

The evidence shows that this rooming house was a place of public resort, and subject to search under proper process. It shows that this heating plant room was a part of the rooming house premises. Ordinarily, a search warrant covers the curtilage and appurtenances of the place described. Moreover, a rooming house is not clothed with the protection accorded a private residence.

The element of unlawful intent was sufficiently stated in the instructions, and the evidence was sufficient to establish all the elements of the offense charged.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    ERNEST FORD et al. v. STATE
    No. A-5423.
    Opinion Filed May 1, 1926.
    (246 Pac. 909.)

      Sigler & 'Jackson, for plaintiffs in error.
    The Attorney General, for the State.
   BESSEY, P. J.

The plaintiffs in error Ernest Ford and Neiville Elliott were each convicted of the unlawful possession of whisky. The punishment of Ford was fixed at a fine of $250 and 90 days in jail; that of Elliott at a fine of $100 and 6 days in jail.

The private residence of defendant Ernest Ford was searched by peace officers, who there found iy% gallons of whisky. The search warrant was predicated upon the following affidavit:

“State of Oklahoma, Carter County — ss.;
“W. C. Keirsey, being duly sworn, says that Ernest-, on the 21 day of March, 1924, in the county of Carter and state of Oklahoma, did then and there unlawfully have in his possession, with intent to sell or otherwise dispose of the same, in violation of law, certain intoxicating liquor, to wit: Intoxicants, and the property of the said defendant, Ernest Kurst, and that he, the said W. C. Keirsey, suspects that said property is concealed in his residence, 1511 N. W. in the city of Ardmore, Oklahoma.
**W. C. Keirsey.
“Subscribed and sworn to before me this 21 day of March, 1924. „
“D. W. Butcher,
“Justice of the Peace.”

This affidavit is defective in two particulars: First, the affiant states that he “suspects” that whisky was at the private residence described; and, second, the affidavit does not state that this residence, or any part of it, was a shop, store, hotel, boarding or rooming house, place of storage, or a place of public resort.

Under the law of this state (section 7013, Comp. Stat. 1921), a private residence cannot be searched for alcoholic liquor, unless it comes within one of the exceptions above stated, and the magistrate had no jurisdiction to issue a search warrant for a private residence without such showing. Likewise, a magistrate is without jurisdiction to issue a search warrant predicated upon suspicion only, and where the magistrate has no such authority the search warrant issued by him is a nullity, under which a peace officer cannot legally act in any capacity. This is not an arbitrary rule of this court; it is in compliance with the express provisions of our statutes.

The judgment of the trial court is reversed.

DOYLE and EDWARDS, JJ., concur.