text:
    C. W. ABBOTT et al. v. STATE.
    No. A-10306.
    June 7, 1944.
    (149 P. 2d 514.)

      George H. Giddings and Jack Tellegen, both of Oklahoma City, S. E. Dunn, of Tulsa, and David Tant, of Oklahoma City, for plaintiffs in error.
    Randell S. Oobb, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Dixie Gilmer, Go. Atty., of Tulsa, for defendant in error.
   BAREFOOT, J.

The defendants, O. W. Abbott and James Fletcher, were jointly charged in the district court of Tulsa county, Olda., with the crime of larceny by fraud; were tried, convicted and sentenced to serve terms of five years in tlie State Penitentiary, and have appealed.

These defendants were charged under Tit. 21 O. S. A. 1941 § 1701, which is as follows:

“Larceny is the taking of personal property accomplished by fraud or stealth, and with intent to deprive another thereof.”

It is also provided by § 1709 of said title:

“If the thing stolen consists of any evidence of debt or other instrument, the amount of money due thereon or secured to be paid thereby and remaining unsatisfied, or which in any contingency might be collected thereon, or the value of the property the title to which is shown thereby, or the sum of which might be recorded in the absence thereof, as the case may be, shall be deemed the value of the thing stolen.”

See State v. McCray, 15 Okla. Cr. 374, 177 P. 127.

The charging part of the information is as follows:

“That C. W. Abbott and James Fletcher, and each of them, on the eighth day of November, A. D. 1940, in Tulsa County, state of Oklahoma, and within the jurisdiction of this Court, did unlawfully, fraudulently and feloniously, while acting together and in concert each with the other, take, steal and carry away, without the consent of the owner thereof, a certain check in the sum of $1000 and of the value of $1000, in good and lawful money of the United States of America,” etc.

For a reversal of the case, it is contended:

“First Proposition. Where an information charges a particular offense, a conviction cannot be had upon evidence of another and distinct offense, not included within the charge.
“Second Proposition. It is error for the prosecuting attorney, in the opening statement, to charge the defendant with collateral crimes or to impute that the defendant is guilty of other crimes which cannot be proved.
“Third Proposition. A prosecuting attorney cannot state his personal opinion as to defendant’s guilt or state facts not provided by evidence or otherwise get before the jury that which amounts to the prosecuting attorney’s own opinion and testimony.”

The consideration of the first proposition necessitates a review of the evidence offered by both the state and the defendants.

There was some conflict in the testimony, but the court having submitted this issue to the jury, and they by returning a verdict of guilty have decided this issue in favor of the state and against the defendants, we are therefore bound by the verdict of the jury, unless it is such that is contrary to the law, or the evidence is insufficient to sustain the same. In this light, the record reveals: That the prosecuting -witness, Mrs. Nancy Dickinson, who at the time of the tidal was a resident of Tulsa', was a widow and had previously lived at Pawhuska, in Osage county. Her deceased husband had been a member of the Osage Tribe of Indians, and she and her two minor children, both of whom were crippled, had inherited from his estate a considerable sum of money, the exact amount not being revealed by the record. Both of the defendants were residents of Oklahoma City, the defendant Abbott being ostensibly engaged in the automobile business, and the defendant Fletcher in the oil business. Abbott first went to Pawhuska in the early part of 1940, and was introduced to Mrs. Dickinson by Nate Jones, who had a garage in Pawhuska, and in whose garage the automobile of Mrs. Dickinson had been placed for repairs. It was said that Abbott was to become the manager of the Jones garage. He immediately cultivated the acquaintance of Mrs. Dickinson, in an attempt to sell her a new automobile, and during this time began talking to her about making an oil investment. The evidence reveals that she was absolutely ignorant of the oil business, and had no knowledge of business investments. Knowing that she had settled the .estate of her husband, he told her, “I am going to have an estate settled and I am going to put all my money in the oil business.” A short while thereafter he took the defendant Fletcher to her place and introduced him. Negotiations were immediately begun to get her in the oil business. The defendant Fletcher exhibited to her a check for $15,000, and told her he represented the Gulf Oil Company, and that the check was given to him by his company to pay for an oil lease in Rogers county. He expressed great interest in Mrs. Dickinson, and especially in her crippled children, whom he desired to help; and proposed that if his friend Abbott and Mrs. Dickinson could purchase the proposed lease in Rogers county for less money than the $15,000, he would endorse the check to them, and they could have the opportunity to make some money, and he would thereby help both of them. He finally proposed that she go with them to near- Claremore, in Rogers county, to see the party who was going to sell the lease. Both defendants went to her place about nighttime, and she accompanied them to near Claremore, on at least two occasions. They there contacted the party from whom they proposed to purchase the lease. All of this procedure was very evasive and not at all understood by Mrs. Dickinson. It was represented to her that the party was not very desirous of selling the lease. They met a party at Claremore the next day, but according to the testimony of Mrs. Dickinson, “he did not seem like the same fellow” they had met the night before. She testified: “But he did get in the back end of the car and said he was going to withdraw that right away if we didn’t go ahead and get the lease.” Defendant Fletcher told her he wanted to help his friend Abbott and her. 1-Ie said: “that baby is in a cast, I sure feel sorry for him, and anything I could ever do, I sure want to do, because I sure do love him.” With reference to the $15,000 check, which he had, she testified:

“A. What he said. Now this $15,000 he said he didn’t care hisself. He said, ‘You know I can’t do nothing myself, I am for the Company. I get my salary, whether I do anything or not.’ But he said, ‘I am supposed to take this $15,000, that is what they allowed for that. And you and Abbott can step into this, and if you can get it cheaper, that is up to you and Abbott. He is a good friend of mine and what I have heard,’ be said, ‘I want to try to help you out.’ ”

It was understood that defendant Abbott was to secure his part of the $2,000 to be paid for the lease from Oklahoma City, and that he wired for the same. After they returned from Claremore, defendant Abbott went to the home of Mrs. Dickinson, and in an excited manner, said, “You sure got to get me that check.” Defendant Fletcher was with him, and she gave them the check for $1,000, made payable to the defendant Abbott. Fletcher said he could not take it, because he was in the company. When the check was given, defendants had her mark thereon, “For loan.” She testified: “Well he said put that on there because he wouldn’t be suspicioned at the bank.” Abbott then told her, “I will get the lease. I will have to work with that fellow and get a lease and then I will record it.” She testified: “That is what he said time and again, when I asked him about the lease, he couldn’t get it released some way.”

We might here state that the prosecuting witness was asked with reference to the securing of other large sums of money by defendants from Mrs. Dickinson as further payments on this identical lease, on the pretense that they had to pay more for the lease in order to obtain the same. The court sustained an objection to this testimony for the reason that other charges had been filed against these defendants covering those items. We shall make reference to this testimony when considering other contentions of the defendants. But we state here that in our opinion this evidence was clearly admissible as being a part of the same plan and scheme to secure the funds of the prosecuting witness by the defendants.

After the check for $1,000 had been secured by defendants, they executed a promissory note to Mrs. Dickinson for the sum of $1,000, bearing 6 per cent interest. Mrs. Dickinson later placed this note in the hands of her attorney for collection and it was there at the time the matter was called to the attention of the county attorney, and these charges preferred. The night before the case was called for trial, defendants paid to her attorney the sum of $500 cash in full settlement of the note, and had her endorse thereon, “Paid in full. 2-3-42. Nancy Dickinson.”

Both defendants testified and denied much of the testimony of Mrs. Dickinson, but also admitted a great part of the same. It was their contention that Mrs. Dickinson had loaned them the money in question for the purpose of investing the same in the oil business. That they had invested it in the drilling of an oil well in Shackelford county, Texas, and that it had been lost. Both admitted that no lease was ever bought in Rogers county, Okla. They contended that the agreement was that the profits from the Shackelford county well were to be divided between defendant Abbott and Mrs. Dickinson, and that the note was .security to repay her if .she lost her money. Defendant Fletcher admitted on cross examination to having been previously convicted of a felony. Defendant Abbott never at any time put up bis part of tbe money for tbe lease, as agreed. At the request of tbe defendants, the jury was instructed that if they believed from tbe evidence that the money was a loan, that they should return a verdict of not guilty.

Under this statement of the evidence, it is contended by defendants that the evidence may be sufficient to establish the crime of obtaining money under false pretense, but under no theory of the law can it be said that the evidence constitutes the crime of grand larceny.

This contention is so fully answered by a decision of the Supreme Court of California, in a well considered opinion in a case where the facts are so identical with the facts here, that we quote therefrom. People v. Hennessey et al., 201 Cal. 568, 258 P. 49, 54:

“While the indictment in this case may well have alleged that the acts charged therein constituted obtaining money or property by false pretenses, we are not prepared to say that they do not constitute grand larceny. Unquestionably, the evidence is sufficient, and we must assume the jury found that the defendants entered into an agreement to obtain the possession of money and property by resorting to fraudulent methods which bear the appearance of trick or device. There can be but little doubt that the investors parted with the possession of their money influenced by the representations that it would be used by the defendants in promoting' the enterprise to a conclusion in good faith. The money unlawfully obtained could not have been used for the purpose for which it was supposedly acquired, and as the investors believed it would be used for the reason that there was nothing upon which it could have been expended. There being no contract in existence, a fact well known to the defendants, the moneys that came into their possession were not expended in carrying forward the enterprise which the investors intended it should aid. We are satisfied that the jury was warranted in finding a preconceived design on the part of the defendants to appropriate said moneys to their own use in furtherance of a plan and system at the time they obtained possession thereof, accomplished by means of trick and device, and therefore their acts may be classed with that species of crimes denominated larceny. People v. Delbos, 146 Cal. 734, 81 P. 131; People v. Shwartz, 43 Cal. App. 696, 185 P. 686; People v. Edwards, 72 Cal. App. 102, 236 P. 944; 17 R. C. L. 13 and 14.
“Where a false representation is made under a general plan and purpose to obtain property, it is not necessary to show that a distinct representation was made in each following act if it appears or can fairly be inferred that the first false representation was still operating upon and influencing the mind of the person imposed upon. It is only in those cases where it may be fairly presumed that the first false representation has ceased to operate npon the mind of the person thus imposed upon, or where there is some evidence tending to show that the first false representation had been removed, that full proof of the representation must again be made. In the instant case there is no doubt that under each count the possession of the money furnished by the person alleged to have been defrauded was obtained by the representation of the defendants, made either directly by them or as a direct result of the false, representations which they designedly caused to be put into circulation, as to the existence of the commission contract. Other false representations shown by the evidence were made as an aid to the accomplishment of the main purpose.
“That other offenses similar to the one charged in the indictment are provable against a defendant to show scienter in cases where the criminal intent is the gravamen of the charge, as in cases of fraud, is too firmly established by the decisions of this state to require a citation of cases. In the instant case we must assume that the possession of money was obtained with a criminal intent by means of trick and device. The owners of the property surrendered possession of their money with the understanding that it was to he used in the accomplishment of a definite object by the defendants. It was not so nsed. In such cases the title does not pass. The implied finding as to the intent of the defendants cannot be disturbed by this court.”

In the instant case the verdict of the jury justifies the finding that the defendants entered into a plan, scheme and conspiracy to secure the funds of this widow for the purpose and with the intent to appropriate them to their own use and benefit. They preyed upon her ignorance of business affairs, and not only held out hope of her being rewarded financially, but that they were interested in the recovery of her crippled children. Not a cent of the money which' they received was ever put into an oil lease in Rogers county, Okla., nor did the defendant Abbott ever put up any money as promised. The $15,000 check was never turned over to the defendant Abbott or Mrs. Dickinson. As stated in the California case above_ cited, she parted with her funds upon the express promise and belief that it was to be used in connection with funds of the defendant Abbott to be used in buying a Rogers county lease, and that the proceeds of the $15,000 check which the defendant Fletcher had exhibited to her would be turned over to her and the defendant Abbott. The money was not used for the purpose for which it was acquired and for this reason the title to the same had not and did not pass from her to the defendants, and defendants with the intention at all times of appropriating the same to their own use, were guilty of grand larceny by fraud, and not of obtaining money under false pretense.

In the case of People v. Miller, 169 N. Y. 339, 62 N. E. 418, 421, 88 Am. St. Rep. 546, a case where the facts are very similar, the court said:

“There can be no doubt that the complainant delivered the money to the defendant for the purpose of speculation, with the understanding that the deposit should be returned Avith the accumulated profits; and had the defendant actually used the money in speculation, however improvident or reckless, and lost, his act would not amount to larceny. But it is plain that he never intended to use the money in speculation. The sole purpose of the pretense and device referred to was to enable him to get possession of the money of others, and to appropriate it to his OAvn use. The jury could have so found, and their verdict imports such a finding. The jury were authorized to find, and by their verdict have found, that the complainant did not intend to part with the title or the possession of the money, but merely to give the defendant the custody of it for the purposes specified. . . .
“Larceny, as defined by section 528 of the Penal Code, embraces eArery act which was larceny at common law, besides other offenses which were formerly indictable as false pretenses or embezzlement. The offense of larceny at common law is established by proof on the part of the prosecution showing that the defendant obtained possession of the property by some trick, fraudulent device, or artifice, animo furandi, with the intention at the time of subsequently appropriating it to his oavu use. This proposition is well sustained by authority in this and other courts both before and since the enactment of the Penal Code. . . . We think that the jury could find upon the proofs in this case, and must be deemed to have found by their verdict, that the defendant received the money in question by means of trick, device, or artifice, with the intention at the time of appropriating it to his own use. The manner in which the defendant obtained possession of the money was none the less a fraudulent device, trick, or artifice because his operations were conducted upon a large scale, and assumed some of the forms of business. It Avas plainly intended from the beginning and at every stage of the defendant’s operations to get possession of the money of others by means of fraudulent devices, and then appropriate it to his OAvn use. This was larceny at common law, and is still larceny under the Penal Code.. ..
“The distinction between larceny, false pretenses, and embezzlement was concisely stated in the brief opinion of the court in Com. v. Barry, supra: Tf a person honestly receives the possession of the goods, chattels, or money of another upon any trust, express or implied, and, after receiving them, fraudulently converts them to his own use, he may be guilty of the crime of embezzlement, but cannot be of that of larceny, except as embezzlement is by statute made larceny. Tf the possession of such property is obtained by fraud, and the owner of it intends to part with his title as well as his possession, the offense is that of obtaining property by false pretenses, provided the means by which they are acquired are such as in law are false pretenses. Tf the possession is fraudulently obtained, with intent on the part of the person obtaining it, at the time he receives it, to convert the same to his own use, and the person parting with it intends to part with his possession, merely, and not with his title to the property, the offense is larceny.’ In this case the complainant’s money was not obtained by the defendant by such means or representations as in the criminal law constitute false pretenses. But the jury could have found that he did obtain the money by means of a fraudulent device, with the intent on his part at the time he received it to convert it to his own use, and also that the complainant intended to part with her possession, merely, and not with the title; and so the verdict convicting the defendant of larceny was warranted by the evidence.
“ . . . The evidence in the case really permitted but one inference as to the defendant’s purpose, and that was that he intended to appropriate the money at the time he received it, and whatever intention is imputable to him must necessarily have existed at the time that the money was delivered to him. The jury could not have found upon the evideuce that he then received it innocently or rightfully, and that during the seven or eight days that followed, preceding the collapse, formed for the first time the intention of converting it to his own use. There was nothing in the proof to authorize the jury to find that the intent to steal was formed subsequent to the receipt of the money Manifestly, be entertained that purpose at the time that the money was delivered to him, or he never entertained it. Moreover, the exceptions referred to, we think, come fairly within the scope of section 542 of the Code of Criminal Procedure, which requires the court to give judgment without regard to technical errors or defects, or exceptions which do not affect the substantial rights of the parties.”

And in Towns v. State, 167 Ind. 315, 78 N. E. 1012, 1013, 119 Am. St. Rep. 501, it is said:

“The reason of the rule is thus stated: ‘Where the defendant, with a preconcerted design to steal the property, obtains possession of it by fraud, the taking of it is larceny, for the reason that, as the fraud vitiated the transaction and left the title in the original owner, he still retains a constructive possession of the goods, and a conversion of them by the defendant is such a trespass to that possession as makes larceny.’ ”

See, also, 32 Am. Jur. 920, section 31.

We have examined the cases cited by defendants: Harris v. State, 15 Okla. Cr. 369, 177 P. 122; Michelin v. State, 66 Okla. Cr. 241, 90 P. 2d 1081: Roberts v. State, 66 Okla. Cr. 371, 89 P. 2d 979, 92 P. 2d 612; Brown v. State, 18 Okla. Cr. 509, 196 P. 967; Dobson v. State, 74 Okla. Cr. 341, 126 P. 2d 95; State v. Detloff, 201 Iowa, 159, 205 N. W. 534; also later cases from this court touching upon this issue: Riley v. State, 64 Okla. Cr. 183, 78 P. 2d 712; Hagan v. State, 76 Okla. Cr. 127, 134 P. 2d 1042; Welch v. State, 78 Okla. Cr. 180, 146 P. 2d 141.

The facts in these cases are not applicable to the facts here. In most instances, not only the possession but the title to the property had passed, and for that reason it was held that the defendant was guilty of obtaining property by false pretense, and not larceny. Here there was no intention of delivering the title to the check, only for a specific purpose, and the defendants at no time carried out this purpose, but at all times had in their mind the intent to use the proceeds of the fl,000 check for the purpose of appropriating the same to their own use and benefit. The check was obtained by fraud of the gravest bind. The defendants were guilty of larceny by fraud, as alleged in the information.

With reference to the second proposition, as herein-before quoted, it is contended that certain statements made by the county attorney in his opening statement to the jury were prejudicial to the rights of the defendants. This statement was as follows:

“Now the testimony will be that Abbott went over there and he came back after this trip with this story to Mrs. Dickinson, that this fellow was a little vague, and he was wishy-washy on that, he would talk a thousand dollars and the next day he would take five thousand dollars, and that when he took the thousand dollars over there, that the man wasn’t willing to part with the lease for a thousand dollars, but he did give him the thousand dollars as a down payment, and he thought for a couple thousand dollars more, or twenty-five hundred dollars more, I am not sure, the testimony will clear that up, that he could close the deal.
“So, two or three weeks later he got another twenty-two hundred dollars check from Mrs. Dickinson. This twenty-two hundred dollar check he told Mrs. Dickinson he was going to take up and offer to this man.
“And he left and returned and reported that he had been to Claremore, and that this fellow up at Claremore was getting a little difficult, so he gave him twenty-two hundred dollars, but he needed a little more money, that he didn’t quite make the deal with that, and that he explained to Mrs. Dickinson why this man needed more money—
“Mr. Dunn: If the court please, we object to these statements for the reason that they are not part of this case. They are not entitled to be introduced in this case, absolutely foreign to it. The Court: Well, unless it is connected with the facts in this case, it will be stricken. Overruled. Mr. Gilmer: I might say to your Honor that it is our contention that this is a part of a general plan and scheme. Mr. Dunn: The difficulty about this is, your Honor, they are charged in separate actions, separate cases. The Court: Yes, that is true. The jury will be advised, unless it is that character of transaction, not to consider anything except the matter involved in this charge. Overruled at this time. Mr. Dunn: Exceptions.”

It may be stated that when this evidence was offered that the court sustained an objection to the same, evidently upon the well-recognized principle of law that where a defendant is charged with one crime, evidence of the commission of other and independent crimes may not be introduced in evidence against him. But the court by this ruling failed to consider the equally well-recognized exceptions to this general rule, which made this evidence admissible in this case. In the case of Boyer v. State, 68 Okla. Cr. 220, 97 P. 2d 779, 790, this court stated:

“As a general rule, evidence of other offenses, though of the same nature, is not admissible for the purpose of showing that the defendant is guilty of the particular offense charged. To this rule, however, there are well-settled exceptions. Those applicable to the question presented * * * in this case, are as follows:
“‘(a) Evidence of other offenses similar to that charged is relevant and admissible, when it tends to prove some element of the one charged, as when it shows or tends to show guilty knowledge or intent in the commission of the offense charged.
“‘(b) Evidence that tends directly to prove the defendant’s guilt is not rendered inadmissible because it proves or tends to prove him guilty of another and distinct offense..
“‘(c) Evidence of a different offense from the one charged is admissible when both offenses are so closely linked or connected as to form a part of the res gestee.
“‘(d) Evidence of other offenses is competent to prove the specific offense charged when it tends to establish a systematic scheme or plan embracing the commission of two or more offenses so related to each other that proof of one tends to establish the other, or to connect the defendant with the commission of the offense charged.’ ”

See, also, the following cases: Koontz v. State, 10 Okla. Cr. 553, 139 P. 842, Ann. Cas. 1916A, 689; State v. Rule, 11 Okla. Cr. 237, 144 P. 807; Reniff v. State, 53 Okla. Cr. 448, 13 P. 2d 592; Herren v. State, 75 Okla. Cr. 251, 130 P. 2d 325; Nemecek v. State, 72 Okla. Cr. 195, 114 P. 2d 492, 135 A. L. R. 1149; Chappell v. State, 74 Okla. Cr. 213, 124 P. 2d 742.

These cases held that where the evidence is a part of a scheme and plan, and so connected with the crime with which defendant is charged, and between the same parties, and especially where it was committed in connection with the same crime of which the defendant stands charged, that the evidence is admissible. The court did not permit this evidence to be submitted, but sustained an objection to the same.

Under these circumstances, it can not be said that the defendants were prejudiced by reason of the statement of the county attorney in his opening statement.

The third contention is that the closing argument of the county attorney was such as to prejudice the jury, and an expression of his personal opinion of the guilt of the defendants. This argument is given in full in the case-made. We have carefully read and reread the sanie. There are some expressions therein which are not deductions from the evidence, hut strong appeals for the conviction of the defendants. In some of the instances, we are constrained to believe that the court should have instructed the jury not to consider the argument, instead of saying that they were the triers of the facts from the testimony. But in view of the record in this case, we do not think that the jury was unduly prejudiced in their verdict by reason of the closing argument of the county attorney. The facts in this case justified the jury in rendering the verdict they did. We have carefully read the cases cited by defendants, where this court has reversed cases by reason of the closing argument of a county attorney. .Also a number of cases where the argument has been sustained. The decisions on these questions are generally based upon the facts of the individual cases. We do not find in this case that the defendants have been prejudiced, but that they have had a fair and impartial trial, and that the judgment and sentence of the district court of Tulsa county should be affirmed.

It is so ordered.

JONES, P. J., concurs. DOYLE, J., not participating.


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    E. H. CLARK v. STATE.
    No. A-10294.
    June 14, 1944.
    (149 P. 2d 994.)

      “Raymond A. Trapp, of Blackwell, Tom L. Irby, of Ponca City, and Brnce B. Potter, of Blackwell, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Fred Hansen, Asst. Atty. Gen., and Roy 15. Grantham, Co. Atty., of Newkirk, for defendant in error.
   BAREFOOT, J.

Defendant, E. H. Clark, was charged in the district court of Kay county with the crime of larceny of an automobile, was tried, convicted and sentenced to serve a term of six years in the State Penitentiary, and has appealed.

In his brief defendant presents two propositions for reversal of this case:

“First Proposition. All evidence obtained by unlawful and unreasonable search and seizure is inadmissible in the trial of an accused.
“Second proposition. The -taking of an automobile for the purpose of taking tires and accessories therefrom, but without intent to permanently deprive the owner of the automobile, does not constitute tbe crime of larceny of an automobile.”

Consideration of the first proposition necessitates a short statement of the facts.

Defendant was charged with the larceny of an auto- . mobile from the possession of R. A. Parker, in Ponca City, Kay county, on the night of July 15, 1941, the same being the property of Laura M. Parker, the mother of R. A. Parker. On the night of July 16th, or early morning of the 17th, this car was found on the side road about 60 miles from Ponca City, stripped of wheels, tires, heater, radio, seat covers and other accessories. On the night of July 16th four farmers in Pawnee county were returning to their homes and saw two automobiles that had left the main highway, and were stopped about a mile and a quarter from the road. These cars attracted their attention. Without giving unnecessary details, their testimony was that they observed that one of the cars was being stripped, and the lights of the other were being used in this work. They saw a man and a woman at the cars. The farmers drove on past the ears, and two of them secreted themselves near a bridge, and when the man and woman left the scene, secured the number of the car they were driving, which was 8-3766. They then notified Sheriff Ray Owens of Pawnee county, who immediately went to the scene, located and inspected the stripped car, then went to Ponca City for the purpose of making an investigation. There he found that the car had been stolen from the streets of Ponca City on the night of July 15th, and that the tag, No. 8-3766 on the car that was seen leaving the scene, had been issued to E. H. Clark, 500 McFadden Drive, Ponca City. Sheriff Owens, in company with Captain Joe Donahoe and another police officer of Ponca City, went to the above address on the night of July 17th for the purpose of investigation. With reference to this, the evidence of Captain Donahoe, Sheriff Owens and the policeman was that Captain Donahoe knocked at the door and the wife of the defendant answered. He asked to see Mr. Clark, and he came to the door. Captain Donahoe asked him what kind of a car he had, and he told him a ’39 Ford. He then asked him what the license number was. Defendant hesitated, and when asked the second time, he told him it was 8-3766, the same number as that of the car seen to leave the scene where the car had been stripped. Captain Donahoe then said to the defendant, “I would like to see the car.” Reed Wittmer, the police officer who accompanied Sheriff Owens and Captain Donahoe, testified: “He told him he would like to see the car. He asked him if it was there, and he said it was in the garage. He told him he would like to see it. He hesitated a little bit like— and then he said, ‘All right,’ but he said he didn’t have the keys, he started to take him around the house to the garage, and he said he would have to go through the house and unlock it from the inside.” The officers went direct to the front of the garage, and the defendant went back into the house, and opened the garage doors from the inside. They immediately saw two wheels and tires on the left side of the garage, one at the right and two against the wall, and Officer Donahoe asked the defendant twice where he got them. He made no reply. Officer Wittmer testified: “Well, he asked him where he got the tires and he didn’t answer, didn’t say anything he just stood there blank, and he said, We'will have to take you’ and he still didn’t say anything, he never replied, we went ahead and looked in the car.”

The defendant and his wife were both arrested and taken to police headquarters. Defendant made a statement in the presence of the officers admitting taking the car; that he and his wife stripped it as hereinbefore stated; that when the car was stolen on the night of July 15th, he took it to his garage and kept it there until the night of July 16th, then drove it to the place where it was found; that his wife accompanied him in his car, and that after stripping the car, they returned home in his car.

It is upon this testimony, which is a fair statement of the evidence, that defendant contends the search of his garage was unlawful, for the reason that the officers did not have a search warrant at the time. It is contended by the state that defendant, after the officers arrived at his residence, voluntarily gave his consent for them to examine the garage, and thereby waived any right for the issuance of a search warrant.

Defendant in his brief relies upon the case of Smith v. State, 34 Okla. Cr. 434, 246 P. 1109, and the federal case of United States v. Rembert, D. C., 284 F. 996, as authority to sustain his contention. A careful reading of these cases will at once reveal that they do not sustain this contention. In the first place, the Smith case was on charging the unlawful possession of one and a half pints of whisky. The place of business of the defendant was searched, and also her living rooms. No intoxicating liquor was found on the premises, but three pop bottles containing whisky were found among a stock of pop cases and empty bottles behind the building. The officers at the time had a search warrant to search the premises, but the court found that it was obtained on information and belief, and the state then contended that defendant had waived her right for the necessity of a search warrant by saying, “Go ahead and search. There is no whisky here.” The search warrant was a “John Doe” warrant, and did not contain the name of defendant. Under the circumstances above stated, the court held that defendant had not waived her constitutional right to have a valid search warrant for the purpose of searching her premises. Under facts similar to this, we have often held that the right of defendant was not waived. Herron v. State, 39 Okla. Cr. 346, 265 P. 147; Thomas v. State, 40 Okla. Cr. 98, 267 P. 278; Shockley v. State, 35 Okla. Cr. 437, 251 P. 514; Mullins v. State, 75 Okla. Cr. 417, 133 P. 2d 239; Wilkerson v. State, 37 Okla. Cr. 43, 256 P. 63; Denton v. State, 62 Okla. Cr. 8, 70 P. 2d 135; Wilson v. State, 38 Okla. Cr. 409, 262 P. 501. In each of these cases it will be noted that the officer informed the defendant of his having a search warrant, and of his intention to search his premises, and that the statement of defendant was held not to be an invitation to search his premises, but rather that he did not intend to resist search when informed that the officer had a warrant, and intended to search. In all of these cases it will also be noted that defendants were charged with a misdemeanor.

The facts in the Smith Case are not comparable with the facts in the instant case. There the charge was a misdemeanor, a violation of the prohibition law. Here the defendant Avas suspected of having committed a felony, and the officers had strong, reasonable circumstances to believe defendant had committed the felony. There the officers had a “John Doe” search warrant, which was illegal. Here the officers did not have a search warrant, but were merely making an investigation of a felony with strong eviddence to support it. At the time of going to defendant’s premises, there was no intent to search the same, and officers only asked the defendant the kind of automobile he owned. Upon answering, he was told by the officer that he Avould like to see the same, and his reply was, “All right.” He voluntarily opened the doors to his garage, and permitted the officers to enter, and upon seeing certain property therein, defendant was immediately placed under arrest. Under this state of facts, can it be said that the search of defendant’s garage was illegal and void to the extent that the property found therein could not be introduced'in evidence? The defendant, if he had seen fit to do so, could have demanded of the officers that they procure a search warrant. This would have given them an opportunity to do so, but instead of this, he told them it would be “all right” to look at the car in the garage, and he voluntarily went into his house and away from the officers, and opened the garage doors from the inside and admitted them. It certainly occurs to us that under this state of facts, defendant waived any right he had to require a search warrant before permitting the officers to examine the car in the .garage. It is contended that because the officers were in uniform, and had badges and were already on defendant’s premises, that his reason for not objecting was that he knew it would be useless. In answer to this it may be said that he made no objection, but agreed that it would be “all right,” and opened the garage doors. It is the testimony of the officers, and admitted by the defendant, that the officers did not intend to search the premises at the time of going thereon. It was only after the defendant revealed that he owned a Ford car, and that it bore the license tag number of the car which officers knew to be that of the car seen leaving the scene of the stripped car. The argument that defendant was not placed under arrest until after the garage was opened and the wheels and tires were seen by the officers, is very technical. It is true that the officers did not say, “You are under arrest” until at that time, but no doubt if defendant had made any attempt to escape he would have been detained by the officers although they had not made open declaration of his arrest.

In defendant’s brief are cited many cases in which the rule is announced that after one has been placed under arrest the officers have the right to search his person and immediate presence without the necessity of procuring a search warrant. Sallee v. State, 54 Okla. Cr. 217, 17 P. 2d 520; Loftin v. State, 60 Okla. Cr. 183, 62 P. 2d 664; King v. State, 73 Okla. Cr. 404, 121 P. 2d 1017; Smith v. State, 52 Okla. Cr. 315, 4 P. 2d 1076; Brumley v. State, 69 Okla. Cr. 122, 100 P. 2d 465; Simons v. State, 69 Okla. Cr. 265, 101 P. 2d 852, and other cases.

The federal case of United States v. Rembert, cited in the Smith Case, supra, gives an exhaustive review of the Federal cases touching upon the question of when it is necessary to procure a search warrant under the Federal practice. Many of the reasons given have application to state practice. Tn that case Judge Hutcheson, after a review of both state and federal authorities, comes to the conclusion that the officers had the right under the facts and circumstances presented to search the automobile of the defendant without the necessity of procuring a search warrant, and that the property found therein could lawfully be introduced in evidence against the defendant. This authority is exhaustive and gives many reasons for the rules announced that have application to the facts in the instant case.

In the recent case of Camp v. State, 70 Okla. Cr. 68, 104 P. 2d 572, we have had occasion to discuss a question very similar to the one here presented. The syllabus in that case reads:

“For the purpose of preserving the peace and to prevent crime, a peace officer or private citizen may make reasonable inquiry of persons coming under his observation or brought to his knowledge under circumstances which reasonably suggest that a crime has been or is about to be committed. The right to immunity from a'search and seizure without a search warrant may be waived.
“Where police officers stop a person for the purpose of making inquiry as to certain actions which look suspicious and ask and are given permission to examine a package in the automobile, such permission on the part of the accused constitutes a waiver of his constitutional right to immunity from a search and seizure without a search warrant.”

An examination of that case reveals that two Oklahoma City policemen had knowledge of the theft of eight chickens from a packing company in Oklahoma City. They saw a known thief take a large bundle into the place of business of the defendant. Shortly thereafter, they saw the defendant place a similar package in his wife’s car, which was in front of his place of business. The police officers (who did not have a search warrant) stopped Mrs. Camp, wife of defendant, as she drove away, and asked permission to examine the package, to which she consented, as the officers testified. Mrs. Camp testified that she did not invite the officers to get into her car. She made no statement as to whether or not she gave them permission to examine the package, but stated that they ordered her to drive to the police station. The issue involved was the admissibility of the evidence as to the search of said car, and package, and the seizure of the stolen chickens. Judge Jones, in delivering the opinion of the court, said:

“The defendant’s chief contention is that, the court erred in permitting certain police officers to testify as to their search of the automobile of the defendant’s wife and as to the chickens found therein, over the objection of the defendant, as the same was an unlawful search and seizure in violation of the constitutional rights of the defendant.
“It is stated in Hargus v. State, 58 Okla. Cr. 301, 54 P. 2d 211, 212:
“ ‘For the purpose of preserving the peace and to prevent crime, a peace officer or private citizen may make reasonable inquiry of persons coining under Ms observation or brouglit to his knowledge under circumstances which reasonably suggest that a crime has been or is about to be committed.’
“Mrs. Camp had certainly come under the observation of the officers, and there was sufficient reason to believe that a crime had been or was about to be committed. The officers were justified in stopping her and making inquiries.
“Officer Harbolt testified that Mrs. Camp gave him permission to examine the package. This testimony is uncontradicted.
“It has been held in Hurst v. State, 25 Okla. Cr. 102, 219 P. 151, and in Gaines v. State, 28 Okla. Cr. 353, 230 P. 946, that the right to immunity from a search and seizure without a search warrant may be waived.
“No unlawful search and seizure has been shown, and the testimony complained of was admissible.
“There is a conflict in the testimony, but there is ample evidence in the record to sustain the conviction.”

See, also, the case of Jones v. State, 33 Okla. Cr. 369, 244 P. 456.

From the statement above made, we are of the opinion that the court did not err in overruling the motion of the defendant to suppress the evidence in this case by reason of the fact that the officers did not have a search warrant to enter the garage of the defendant, and that the defendant waived any right he may have had to the searching thereof.

With reference to the second proposition submitted by defendant, we are of the opinion that there is nothing in the evidence to substantiate the fact that defendant only intended to take the tires and accessories from the Ford automobile, and did not intend to steal the car. The car was taken from the streets of Ponca City on the night of July 15, 1941, without the consent of the owner. It was kept in defendant’s garage until the next night, and then taken by defendant and his wife to a place 60 miles distance therefrom, in another county, and a mile and a quarter from the highway, in a secluded spot, where the wheels were removed, and it was stripped of its valuable parts. There was no attempt on the part of the defendant to deliver it back to the owner, nor did he give any information as to its whereabouts. Under this evidence the jury was justified in finding that the defendant had stolen the automobile without the consent of the owner, and with the unlawful intent to deprive the owner thereof.

In defendant’s brief attention is called to 21 O. S. A. 1941 § 1787, which is as follows:

“From and after the passage of this Act, it shall be unlawful for any person or persons to loiter in or upon any automobile or motor vehicle, or to deface or injure such automobile or motor vehicle, or to ‘molest, drive, or attempt to drive any automobile, for joy riding or any other purpose, or’ to manipulate or meddle with any machinery or appliances thereof without the consent of the owner of such automobile or motor vehicle.”

In support of his contention, defendant cites the case of Saferite v. State, 67 Okla. Cr. 229, 93 P. 2d 762, and that of Hughes v. State, 61 Okla. Cr. 40, 65 P. 2d 544. The facts in these cases do not in any way bring them within the facts of the instant case, and we do not think the statute above quoted is applicable to the facts here presented. The facts do not justify a belief that the automobile in the instant case was taken only for the purpose of molesting the same, but rather for the purpose of appropriating it to the use and benefit of the defendant, and depriving the owner thereof.

For the reasons above stated, the judgment of the district court of Kay county is affirmed.

JONES, P. J., concurs. DOYLE, J., not participating.


text:
    LAWRENCE J. DIEHL v. CITY OF SHIDLER.
    No. A-10308.
    June 21, 1944.
    (150 P. 2d 76.)

      John W. Tillman and Fred A. Tillman, both of Pawhuska, for plaintiff in error.
    A. J. Wildman, City Atty., of Shidler, and Bert Law-ton, of Pawhuska, for defendant in error.
   BAREFOOT, J.

Defendant, Lawrence J. Diehl, was charged in the municipal court of the city of Shidler with the violation of a city ordinance; was tried, convicted and fined in the sum of $10 and costs, which amounted to $9.50; appealed to the, county court of Osage county where he was tried, convicted and assessed the same fine as in the municipal court. From this judgment he has appealed.

This case is the outgrowth of the alleged violation of an ordinance of the city of Shidler, in Osage county, known as an occupational tax ordinance. -The ordinance was passed by the city council on- July 7, 1933, after the terms of the same had been discussed with a committee of business men, who agreed to the amount that should be assessed each business enterprise. The tax was for the purpose of raising revenue, as distinguished from regulatory measures enacted under the police power of municipalities.

Many preliminary motions and contentions were made by the defendant, both in the municipal court and in the county court. Counsel for the city also raised the question that the appeal was not perfected in the manner provided by law.

We do not deem it necessary or proper to consider all of the various motions. Many of them are very technical, and do not affect the merits of the case.

The ordinance under consideration provided for levying an annual occupational tax upon every kind of business in the city. Section 2 provided the amount to be paid by the different kinds of business, and provided that:

“All retail stores employing more than one clerk shall pay an additional tax of Ten Dollars on the basis of each additional clerk regularly employed therein.”

Section 5 of the ordinance was as follows:

“It shall be unlawful for any person, firm or corporation to engage in any business, trade or occupation as set forth and defined in Section 2 of this ordinance without having first obtained a license therefor, and any person, firm or corporation who shall conduct any business, trade or occupation so defined, without having first obtained a license therefor, shall be deemed guilty of a misdemeanor and upon conviction therefor shall be fined in any sum not less than one ($1.00) dollar nor more than nineteen ($19.00) dollars and costs of prosecution; Provided each and every day that any person, firm or corporation shall violate any of the provisions of this ordinance, it shall be deemed a separate offense.”

Defendant’s place of-business was taxed in the sum of $40 per year. He paid this tax for several years, but did not do so for the years 1939, 1940, and a part of 1941, and charges were preferred against him in the municipal court by reason of such failure, with the result hereinbefore stated.

The law giving the city of Shidler the right to pass an ordinance of this kind is 11 O. S. 1941 § 651, which is as follows:

“'The city council shall have authority to levy and collect a license tax on * * * merchants of all kinds, grocers * * *' : Provided, however, that all scientific and literary lectures and entertainments shall be exempt from taxation, and also all concerts and musical or other entertainments given, exclusively by citizens of the city.”

This provision was placed in the ordinance passed by the city of Shidler.

The sworn written complaint of the city clerk, filed against the defendant in the municipal court, charged him with the violation of “Occupational tax ordinance No. 78, as defined in section No. 2.”

It is contended by defendant that the charge in the complaint is so indefinite and uncertain that it does not charge an offense; that section 2 of the ordinance contains many provisions setting out the amount of tax to be paid by those engaged in different occupations; and that defendant’s motion to quash the complaint should have been sustained.

It may be true that the complaint could have been more specific, but it is also true that this court and other courts are very liberal in construing the allegations of a complaint filed in a municipal court for the violation of a municipal ordinance; the same exactness is not required in charges such as here involved as in criminal offenses filed by information or indictment. We think the complaint fairly charges the defendant in such manner that he understood the charge on which he was being tried.

It is further contended that the ordinance in question is discriminatory. The evidence as it appears in the record does not sustain this contention. Defendant had paid this tax for a number of years without complaint. The amount of the tax to be paid was set by a committee of business men who appeared before and assisted the members of the city council in fixing the rate. In the case of Ex parte Marler, 140 Okla. 194, 282 P. 353, the Supreme Court of this state discusses the question of the right of municipal authorities to impose a license tax for the purpose of raising revenue. Also see the case of Ex parte Dickison, 138 Okla. 266, 280 P. 797, and Bradley v. City of Richmond, 227 U. S. 477, 33 S. Ct. 318, 57 L. Ed. 603.

During the trial of this case in the county court, the city was permitted to amend the complaint by inserting therein the words, “Section 2.” It is contended that this was error for which the case should be reversed. By the terms of 39 O. S. 1941 § 494 it is provided:

“All proceedings and actions before a county or justice court for a public offense of which such courts have jurisdiction, must be commenced by complaint, under oath setting forth the offense charged with such particulars of time, place, persons and property as to enable the defendant to understand distinctly the character of the offense complained of, and to answer tlie complaint. The complaint, if found insufficient, may be amended to any extent necessary to conform to the facts proven: Provided, However, that if it be made to appear to the court, by the affidavit of the defendant, that by reason of such amendment he cannot safely proceed to trial, he shall be allowed time sufficient to prepare his defense to the complaint as amended, and for that purpose the cause may be continued.”

And 22 O. S. 1941 § 304 provides:

“An information may be amended in matter of substance or form at any time before the defendant pleads, without leave, and may be amended after plea on order of the court where the same can be done without material prejudice to the right of the defendant; no amendment shall cause any delay of the trial, unless for good cause shown by affidavit.”

Under the liberal rule of practice as to complaints in municipal courts as heretofore announced, we are of the opinion that defendant was not prejudiced by permitting the amendment during the trial,.and that the trial court did not abuse its discretion in permitting it to be made. Fisher v. State, 58 Okla. Cr. 157, 50 P. 2d 754; Herren v. State, 72 Okla. Cr. 254, 115 P. 2d 258.

It is strenuously contended that the city did not properly prove the ordinance. This contention is based upon the fact that the original ordinance as passed by the city coxxncil was not introduced in evidence, but a printed copy which had been pasted in the ordinance book, and certified to by the clerk, was introduced, and that this was insufficient.

The evidence revealed that the original ordinance had been lost. That the copy introduced was the printed copy that was taken from the newspaper and pasted in what was known as the ordinance hook. This was the procedure followed with reference to ordinances in the city of Shidler. The city clerk testified that he was present when the original ordinance was passed, and that the published copy was identical with the original, and that the original had been lost. Under these circumstances, we are of the opinion that the ordinance was properly proved and that the court did not err in permitting the printed copy in the hands of the city clerk to be introduced in evidence.

It is provided by 12 O. S. 1941 § 493 as follows:

“Printed copies of any of the ordinances, resolutions, rules, orders and by-laws of any city or incorporated town in this state, purporting to be published by authority of such city or incorporated town or manuscript copies of the same, certified under the hand of the proper officer, and having the corporate seal of such city or town affixed thereto shall be received as evidence.”

In the case of Whitson v. City of Ada, 171 Okla. 491, 44 P. 2d 829, it is said :

“Where an ordinance passed by a municipality acting within its authority has been in existence for many years, during which time its validity has not been questioned, it will be presumed to have been properly enacted and published, until the contrary is proven.”

■ It is further contended that the penalty clause of the ordinance in question, which provides: “shall be fined in any sum not less than One Dollar nor more than Nineteen Dollars and the costs of prosecution” renders the ordinance unconstitutional and void, for the reason that under this provision one could be fined more than $20, when the costs are included. Cases are cited in support of this proposition. Ex parte Johnson, 20 Okla. Cr. 66, 201 P. 533; Ex parte Bochmann, 20 Okla. Cr. 78, 201 P. 537, and cases cited in these opinions. We have examined all of the cases, and find that in each instance the defendant was fined in an amount that exceeded $20. In the instant case defendant was only fined $10 and costs, which amounted to $9.50, or a total of $19.50.

It has been held that where imprisonment is provided, one is entitled to a trial by jury. The record reveals that in the instant case the defendant waived his right to trial by jury, and agreed to try his case to the court. No cases have been cited where the fine and costs were less than $20.

For the reasons herein stated, the judgment of the county, court of Osage county is affirmed.

JONES, P. J., concurs. DOYLE, J., not participating.


text:
    KENNER LEE v. STATE.
    No. A-10318.
    July 19, 1944.
    (150 P. 2d 766.)

      Jesse J. Todd, of Mangum, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Jack Sasseen, Co. Atty., Greer County, of Mangum, for defendant in error.
   BAREFOOT, J.

Defendant, Kenner Lee, was charged in the county court of Greer county with the crime of unlawful possession of intoxicating liquor, towit: 72 pints of tax-paid whisky; was tried, convicted and sentenced to pay a fine of |50 and to serve 30 days in the county jail, and has appealed.

This charge is the outgrowth of a search of defendant’s premises located in Greer county, by Tom Owen, sheriff, under a search warrant issued out of the office of a justice of the peace.

In the execution of the search warrant, three cartons, containing 72 pints of tax-paid whisky, were found by the sheriff and his deputies in the back of defendant’s automobile, which was standing on defendant’s premises.

The search warrant did not expressly authorize the search of the automobile, in direct terms, but stated, after specifically describing the premises: “* * * including the residence, barns, sheds, cribs, dngonts, and other outbuildings on said lands and premises and places where * * *” liquor is being possessed by defendant for the purpose of “selling, bartering, giving away and otherwise furnishing intoxicating liquors, * * *” in violation of the prohibition laws of the state.

It is contended by defendant that by reason of the word “automobile” not being mentioned in the search warrant, and the whisky being found therein, that the court erred in refusing to sustain the motion of defendant to quash the search warrant, and in permitting the liquor found by reason thereof to be introduced in evidence.

To place such a construction upon the terms used in the search warrant as above quoted would to our minds be placing a very technical construction thereon. The premises described in the search warrant was farm property, consisting of a number of acres. Defendant had resided there for a number of years. The automobile in which the whisky was found belonged to him. It was standing about 10 or 15 feet from his home. The search warrant used the terms “premises,” and “places,” and it was evidently intended that all objects located on the premises could be searched under the terms thereof. Kansas City Breweries Co. v. Kansas City, 96 Kan. 731, 153 P. 523; State v. Rogl, 100 Kan. 590, 164 P. 1165. The whisky might have been found in an old stove located on the “premises.” Could it, then, be successfully contended that the search was illegal because the term “stove” was not included in the search warrant? Obviously not. Defendant did not testify in the case, and the only evidence introduced by him was the search warrant.

The case of Boardwine v. State, 64 Okla. Cr. 49, 76 P. 2d 1081, decided by this court, is almost similar to the facts here presented. There the search warrant was for the search of a certain barn or warehouse. No mention was made of an automobile. A large amount of liquor, 5,520 pints, was found in the barn. Eighteen pints of whisky were found in an automobile standing on the same premises. Defendant testified that the 18 pints of whisky found in the automobile belonged to him, but denied the ownership or possession of the 5,520 pints found in the barn or warehouse. It was contended that the evidence obtained under the search warrant, because it did not mention the automobile, should have been suppressed. This contention was not upheld.

The search warrant did not show that it had been filed in the justice court where it was issued, and it is contended that this is error that would cause reversal. It is revealed by the record that the search warrant was introduced in evidence by defendant and not by the state. No complaint or exception was taken to it during the trial of the case. It was not even presented by the motion for neiv trial, and was first raised in the brief of defendant.

For the reasons above stated, we are of the opinion that the judgment of the county court of G-reer county should be affirmed; and it is so ordered.

JONES, P. J., concur. DOYLE, J., not participating.


author: JONES, P. J.

text:
    In re ORAL DAVIS.
    No. A-10546.
    July 19, 1944.
    (150 P. 2d 367.)

      Jack Cecil Wheeler, of Oklahoma City, for petitioner.
    George Miskovsky, County Attorney, Oklahoma County, of Oklahoma City, for respondent.
   JONES, P. J.

This is an original proceeding in habeas corpus wherein the petitioner seeks his release from confinement in the Oklahoma county jail, at Oklahoma City.

The agreed facts upon which this cause was submitted, briefly stated, are as follows:

On May 16, 1943, petitioner, while drunk and fighting, was arrested at a tavern by certain officers of Oklahoma county, and later charged by information filed in the court of common pleas of Oklahoma county with the crime of obstructing an officer. A plea of guilty was entered to this charge, and the defendant was sentenced to serve one year in the county jail. Several months later, while the defendant was a trusty, he walked off from certain work which he had been assigned to perform outside the jail, and was a fugitive for about three weeks. Upon his re-arrest, he was charged by information filed in the court of common pleas of Oklahoma county with the crime of escape from the county jail. Upon arraignment of the defendant, without counsel, he entered a plea of not guilty. Upon the same day, the public defender of Oklahoma county came to defendant’s cell and informed him that he had been sent by the trial judge to confer with the defendant, and to tell him that if he would enter his plea of guilty to the charge of escaping from the county jail, that the judge would provide that his sentence commence on November 30, 1943, so that it would terminate with the expiration of his sentence of one year previously pronounced against him on the other charge.

That the defendant was taken before the trial judge, and the trial judge informed him that he had probably been treated too harshly when the sentence on the first charge was pronounced against him, and that he, the trial judge, had authority and jurisdiction to provide that a sentence upon a plea of guilty to the escape charge should run concurrently with the original charge, and that if he would plead guilty, he would so provide in the judgment and sentence.

The petitioner, relying upon the representations of the trial judge, entered his plea of guilty to the charge of escaping from the county jail, and the trial judge, in accordance with his representation to the defendant, did provide that the sentence commence on November 30, 1943.

The petitioner has fully completed the service of his sentence of one year, pronounced upon the plea of guilty to the charge of obstructing an officer, and has served approximately 60 days upon the six months sentence pronounced against him upon the escape charge. There the sheriff of Oklahoma county refuses to recognize the order of the. court directing that the sentence in the second case run concurrently with the sentence in the first case, and is unlawfully detaining said petitioner.

It is admitted by counsel for petitioner and for the respondent that a misrepresentation of the defendant’s rights and of the consequences of his plea of guilty was made by the trial judge at the time the sentence in the second case was pronounced against petitioner.

We think the facts in this proceeding are very similar to the facts in the case of Ex parte Robnett, 69 Okla. Cr. 235, 101 P. 2d 645, and the case of Ex parte Pennington, 71 Okla. Cr. 263, 110 P. 2d 923.

In the cases of In re Flowers, 71 Okla. Cr. 330, 111 P. 2d 509; In re Gable, 73 Okla. Cr. 155, 118 P. 2d 1035; Ex parte Doll, 73 Okla. Cr. 34, 117 P. 2d 547, and other cases cited therein, it is held:

“Before the court has jurisdiction to provide that sentences shall run concurrently, the convictions, or pleas of guilty, must have been sustained in both cases before sentence has been pronounced in either.”

In Ex parte Robnett, supra, it is stated:

“Where the evidence shows that the county attorney and district judge promised the defendant that if he would plead guilty to a charge then pending against him the judgment and sentence which would be pronounced would run concurrently with a sentence which had theretofore been imposed upon the defendant, but suspended during his good behavior, and which promises were impossible to fulfill by the court for the reason that the court was without authority to provide that said sentences should run concurrently, and where the evidence further shows that the defendant was without the advice of counsel and would not have entered his plea except for the representations made by the trial judge and county attorney, this court on a habeas corpus proceedings may inquire into the proceedings and order the defendant discharged from custody or vacate the judgment and remand the same to the trial court for further proceedings thereon.”

In the body of the opinion, it is stated:

“Clearly, if it is the duty of the court to advise the defendant of the consequences of his plea and the court accordingly makes certain promises which cannot lawfully be carried into execution, a plea of guilty thus obtained is contrary to the spirit of the Bill of Rights of our Constitution. The petitioner was young, ignorant, and inexperienced ; he had a right to rely upon the representations made to him by the county attorney and concurred in by the trial judge. Under such circumstances it is our opinion that the judgment and sentence pronounced in cause numbered 3596 is null and void, and that the petitioner is unlawfully restrained of his liberty and imprisoned by reason thereof without due process of law.”

It is our conclusion, based upon the above authorities, that the judgment pronounced against the petitioner in the escape case is void, and the petitioner is unlawfully restrained of his liberty without due process of law. It therefore follows that the judgment should be vacated, and the proceedings remanded to the trial court, where the defendant may be tried on the merits of said escape case.

It is therefore ordered that the judgment and sentence pronounced in case No. 7239 in the court of common pleas of Oklahoma county be and the same is hereby vacated and set aside.

It is further ordered that the sheriff of Oklahoma county hold the said Oral Davis pending the disposition of the offense alleged against him in said cause No. 7239, in the court of common pleas of Oklahoma county, or until he is otherwise discharged by the making of bail, in accordance with the law as provided in such cases.

BAREFOOT, J., concurs. DOYLE, J., not participating.