text:
    FRANK HYDE v. STATE.
    No. A-4177.
    Opinion Filed Nov. 26, 1923.
    Rehearing Denied Jan. 22, 1924.
    (221 Pac. 787.)
    (Syllabus.)
    1. Rape — Evidence Sustaining Conviction of Rape in First Degree. In a prosecution for rape, evidence reviewed, and held sufficient to sustain conviction of rape in the first degree.
    2. Appeal and Error — Witnesses—Incompetqncy of Witness on Ground of Mental Unsoundness for Court — Discretion of Court. Where objection is made to the competency of a witness to testify on the ground of mental unsoundness, it is the province of the trial court to determine the witness’ competency, and its decision will not be disturbed unless a clear abuse of discretion is shown by the record.
    3. Witnesses — Incapacity to Testify not Implied from Incapacity to Give Legal .Consent to Carnal Intercourse. Incapacity to give legal consent to the commission of an act of carnal intercourse does not necessarily imply incapacity to thereafter correctly and truthfully narrate the facts constituting the commission of the act.
    4. Same. The fact that the state accuses a defendant of rape in having accomplished an act of sexual intercourse with a female who was at the time of unsound mind and incapable of giving legal consent does not per se establish incompetency of such female to testify against the accused.
    5. Trial — Competency of Witness for Court — Credibility for Jury. In a prosecution for rape, where it is alleged the female was incapable through unsoundness of mind of giving legal consent, after the court has determined that the prosecutrix is competent to testify as a witness, the credibility of the witness immediately becomes a question to be determined by the jury.
    Appeal from District Court, Jefferson County; Cham Jones, Judge.
    Frank Hyde was convicted of rape in the first degree, and he appeals.
    Affirmed.
    In the information in this case filed in the district court of Jefferson county on August 6, 1921, Frank Hyde was charged with the crime of rape in the first degree, in that he did in said county, on or about the 3d day of April, 1921, have sexual intercourse with a female, to wit, Floy Parker, then and there not his wife, and then and there being incapable through unsoundness of mind of giving legal consent. Upon his trial the jury found him guilty, and assessed his punishment at imprisonment in the penitentiary for a term of 15 years. From the judgment rendered on the 12th day of September, 1921, and a resulting sentence in accordance with the verdict to imprisonment in the penitentiary for a term of 15 years, he appealed by filing in this court on January 28, 1922, a petition in error with case-made.
    The first witness for the state, Mary Parker, testified that she had lived in Waurika about 12 years, having moved here from Coalgate; that at the- date alleged defendant’s home was about a mile from her home; that her daughter, Floy, is not bright, and her mental condition was caused by an attack of spinal meningitis when she was six years old; that during the past three years it was her daughter’s habit to visit defendant’s wife about once- each month; that she usually walked, and defendant brought her home twice in a ear, once in January, and again on April 3, 1921; that her daughter also visited Mrs. Hyde in May and June this year; that her daughter, Floy, is now pregnant; that, owing to her physical and mental condition, her daughter, Floy, had never attended school and was blind for one year; that her daughter was not able to remember facts and experiences as they happened, but could remember people that she had met; that her daughter was not in the habit of visiting any one except defendant’s wife; that she will be 23 years old the 22d of this September.
    The state called as its second witness the prosecutrix, Floy Parker, and after she wás sworn counsel for the defendant requested to be allowed to inquire into her mental condition to determine whether she was a competent witness, which was allowed, and the jury excused
    Examined by counsel fqr the defendant, Floy Parker testified :
    "My name- is Floy Parker. I live in the north part of town. There is a trial going on here'now because my papa and mamma told me so; they are trying the case against Frank Hyde. I do not know what it means to take an oath, and I know nothing about the legal or moral obligation of an oath. My papa and mamma told me to tell the truth all the time. I never went to school. I do not know how to tell the time of day, nor the week, month, or year. I do not know what the commission of a crime means, and know nothing about penalties fixed for crimes. I do know there is such a thing as a crime, and I do know that some things are criminal.”
    Cross-examined by counsel for the state, she stated:
    “I am 23 years old the 22d day of this month. I have lived here in Waurika about 15 years. We moved here from Coalgate. I have known Frank Hyde about 5 years. I used to go to his place about once a month. Frank Hyde’s wife’s name is Daisy. It has been about three months since I last visited there. If I tell a lie the bad man would get me. There is a good man; his name is God. I remember people I meet, and I am able to tell things that happen, and things I see. I know what I am called to testify about, and I will tell the truth.”
    Dr. Maupin testified:
    “I have been sitting in court during the examination of Floy Parker, and have observed her, and from this observation of her, and from her answers to questions propounded to her, I would say she was of unsound mind.”
    Dr. Collins testified to the same state of facts, and that in his judgment she was of unsound mind.
    Thereupon counsel for the defendant objected to Floy Parker testifying as being incompetent to testify by reason of her mental condition, which objection was overruled, exception allowed, and the jury recalled.
    Against the defendant’s objection the witness Floy Parker testified:
    “My name is Floy Parker. I live in the north part of town, Rock Island addition to Waurika, with my mamma and papa. I have one sister; she is at home. I have no brothers. I will be 23 years old the 22d day of this month. Before coming to Waurika we lived at Coalgate. I have known Frank •Hyde for about 4 years, and I know his father. His wife’s name is Daisy Hyde. They live up by the Methodist Church. I have been going over there to visit her about once a month, for 4 years. I usually go on Sunday, because she works in a laundry during the week. The last time I was there was in June. She was living then at Mr. Hyde’s, the old .man. I visited her before that in May, and I visited her on the 3d day of April, and Frank Hyde brought me home in the car. We got home about 6 o’clock. When I was leaving he said to Daisy, his wife, ‘I am going to town, and will carry Floy on home as I go.’ After we got into the ear he said, ‘Floy, I was going out to Dr. Derr’s to look at a cow, and if you want to go it will be a nice ride ’; so I said, ‘All right.’ After we got out there and looked at the cows we started home, and came to a log. We got out and talked a while. He told me to lay down, and he got on top of me, and put something in me. Of course I did not know what he was going to do. He took his pants down- and took my clothes up, and put his privates into my privates. I did not know what he was doing. We got up and got in the car and started home. When we got home about sundown nobody but papa and mamma was there. Nobody ever touched me but Frank Hyde. I didn’t want him to do it. I never did tell any one about it. It was the 4th day of July when I told mamma about it. The doctor was there that day, and made an examination. Mamma told me to tell the truth. I know what it is to swear the truth, and I am telling the truth. If I didn’t tell the truth the bad man would get me.”
    On cross-examination she stated:
    “I looked on the calendar. It was on the 3d day of April. I can sometimes tell the days and dates on the calendar, and my mamma told me it was on the 3d day of April that Frank Hyde brought me home. We left Frank Hyde’s place between 5 and 6 o’clock. He said, ‘We will rest a while, and let the engine cool.’ We got out and sat down on the log and talked a long time. Then he made me lay down,' and he got on top of me. We stayed down about 15 minutes. He told me not to say anything about it. It did not hurt me until I got home. Then it began to hurt me, and has hurt me ever since. As I said before, that man is the only man that ever bothered me. There were two gates to open, and; we went through both of them. He said' it was Dr. Derr’s farm. I don’t know what the nature of an oath means. I don’t know what this trial is for.”
    Dr. Ashinhurst testified:
    “I have known Floy Parker about 10 years. I examined her the 3d day of this month, and found that she was 4 or 5 months advanced in pregnancy. Dr. Browning assisted me.”
    R. J. Parker testified:
    “I am the father of Floy Parker. She never visited any one by herself except Mrs. Hyde. She seemed to have her mind fixed to visit Mrs. Hyde once each month, usually on Sunday. Frank Hyde brought her home on Sunday, the 3d day of April, about 5:30 p. m. No one was with them. I was in the yard, and my wife went out and assisted Floy out of the car.”
    Walter Beatty testified:
    “I know the defendant, Frank Hyde, and Floy Parker. On Sunday evening, April 3d, I was coming from my father-in-law’s, two miles south of town. My wife and Tom Beatty and his mother were in my car. Frank Hyde and Floy Parker passed us in a car going north. It was somewhere about 5 o’clock in the afternoon. Dr. Derr’s pasture is about 3 miles south of Waurika.”
    Mrs. Laura Beatty testified:
    “I lived across the street from the Parkers’. I was with my husband and son. We were coming from my father’s about 5 o’clock Sunday, April 3d, and I saw Floy Parker with a man in a car that passed us, my husband' remarked the man was Frank Hyde. The defendant sitting there is the man.”
    At the close of the evidence counsel for defendant demurred to the evidence on the ground that it is insufficient to warrant a conviction, and moved the court to instruct the jury to return a verdict of acquittal, which the court refused to do. \
    Daisy Hyde testified:
    “I was formerly the wife of Frank Hyde. We have been divorced. I now live with his parents. On the 3d day of April Floy Parker spent the day at our home. Between 4 and 5 o’clock I asked Frank if he would go with me to take this Parker girl home. Frank and the little Dishman girl got in the front seat, the Parker girl got in the back seat with me, and Frank drove to the Parker girl’s home. I got out of the ear with her, and went into the yard, but I did not see Mr. or Mrs. Parker. I left the Parker girl in the yard, and got in the car and we returned to our home.”
    John Dishman testified:
    “The defendant married my sister. I live across the road from his father. On the 3d day of April, about 4 o ’clock, I saw defendant working on his car in front of his father’s house, and my little girl asked her mother for permission to go with her uncle and aunt. I did not see her around the house for the next 30 minutes.”
    Mrs. John Dishman testified:
    “The defendant is my brother, on the 3d day of April, between 4 and 5 o’clock, my daughter, Iris, 8 years old, asked me to let her go with her uncle. About 30 minutes later defendant drove up to the house with Iris in the seat beside him.”
    Iris Dishman testified:
    “I am 8 years old. On the 3d day of April I rode with my Uncle Frank and Aunt Daisy up to Mr. Parker’s, when they were taking the Parker girl home, and it was close to 5 o’clock in the afternoon.”
    Loyd Warren testified:

      “On Sunday, the 3d' day of April, I was at Frank Hyde’s place, and saw defendant and a little girl in the front seat and Mrs. Hyde and the other girl in the back seat. It was between 4 and 5 o’clock when they drove off.”
    R. Gf. Hyde testified:
    “Frank Hyde is my son. On Sunday, the 3d day of April, I heard my son’s wife ask him if he minded carrying Floy Parker home. About 10 minutes later his little niece, Iris, left the house with him.”
    The testimony of the defendant in his own behalf is as follows:
    “I have lived in Waurika since 1903. My parents live here. I have known Floy Parker since 1916. I recall that on the 3d day of April, 1921, I was working on my car in front of my father’s house. About 5 o’clock Mrs. Daisy Hyde, my former wife, came and asked me if I would take the Parker girl home. I told her if I would get my car fixed I would. It is just a block from my father’s place to my former wife’s home. I got the car fixed, and with the little girl, Iris, I drove to Daisy’s home, and Daisy and the Parker girl came out and got in the car, and I drove to the Parker home. Daisy got out with the Parker girl, and in a short time came back and got in the car, and I drove toi Daisy’s home. I would say that it took 30 minutes to make the trip. I was never alone in a car with Floy Parker, and I was not south of town with her. I never had connection with her as she testified. ’ ’
    In rebuttal nine witnesses testified seeing Frank Hyde, defendant, and Floy Parker, the two alone in a car Sunday evening, April 3, 1921.
    The testimony in the case is very voluminous, covering several hundred pages, but we deem the foregoing statement sufficient to present the questions raised.

      Bridges & Vertrees and' J. H. Harper, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

(after stating the facts as above). This appeal is from a judgment of conviction for rape in the first degree, punishment having been assessed at imprisonment in the penitentiary for the term of 15 years. The information charges that in Jefferson county, on or about the 3d day of April, 1921, Frank Hyde, “did then and there willfully, unlawfully, and feloniously have and accomplish an act of sexual intercourse with a female, to wit, .Floy Packer, then and there not his wife, and then and there being incapable through unsoundness of mind of giving legal consent,”

It is contended on the part of the defendant that, in any view which may reasonably be taken of the testimony of the prosecutrix, it was insufficient to warrant or sustain the verdict, for the reason that, if the prosecutrix was so weak-minded and mentally unsound as to render her incapable of giving legal consent to the act charged, she must have been, for the same reason, incapable of giving competent testimony concerning the commission of such act.

Rape is defined in our Penal Code as follows:

“Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances:
# * # * # *
“Third. Where she is incapable through lunacy or any other unsoundness of mind, whether temporary or permanent of giving legal consent.”

Section 1834, Comp. Stats. 1921.

Our statute provides:

“The following persons shall be incompetent to testify: First. Persons who are of unsound! mind at the time of their production for examination.” Section 589, Comp. Stats. 1921.

At the trial the state produced as a witness the prosecutrix, Floy Parker, and after she was sworn counsel for defendant asked permission to inquire into her mental condition to determine whether or not she was a competent witness. The jury retired in charge of a bailiff. Counsel for defendant thereupon proceeded to examine the witness; then counsel for the state cross-examined her. Counsel for defendant then offered the testimony of two doctors, who testified that witness was of unsound mind. The court ruled that Floy Parker was a competent witness, and over defendant’s objection her testimony was admitted. The statute does not undertake to prescribe or define the amount or degree of mental unsoundness that must exist in order to disqualify the witness. The question of competency is one of law, and must be determined by the court.

In Adams v. State, 5 Okla. Cr. 347, 114 Pac. 347, it is said:

“When a witness is objected to on the ground that he or she is incompetent by reason of want of intelligence, it is the province of the trial court to determine the witness’ competency, and its decision will not be reviewed unless there is a clear abuse of discretion, or the court admits or rejects the witness upon an erroneous view of a legal principle.”

In Walker v. State, 12 Okla. Cr. 179, 153 Pac. 209, it is said:

“Under the statute, when a witness is objected to, on the ground of incompetency by reason of nonage, or want of intelligence, it is the province of the trial court to determine ■the witness’ competency, and its decision will not be reviewed unless there is a clear abuse of discretion, or the court admits or rejects the witness npon an erroneous view of a legal principle. * * * In this case no question seems to have been made as to the witness’ capacity to receive just impressions respecting the facts upon which she was to be examined. While she stated that she did' not understand the nature of an oath, as possibly many an adult might do if required to define the nature of the crime of perjury, we are satisfied that she understood the difference between right and wrong and the danger of false swearing, and that she was of sufficient intelligence to appreciate the conditions in which she was placed. Courts of justice should regard substance, not words, and a child that has an adequate sense of the impropriety of falsehood does understand the nature of an oath in the proper, sense of the term, even though she may not know the meaning of the word ‘oath,’ and may never have heard that word used.”

In the case of State v. Simes, 12 Idaho, 310, 85 Pac. 914, 9 Ann. Cas. 1216, the precise question was determined by the Supreme Court of Idaho. In the opinion it is said:

“Since no conviction can be had without the state establishing beyond a reasonable doubt that the female was of unsound mind at the time of the commission of the alleged offense, and every presumption must be resolved in favor of the accused until overcome by legal and competent evidence, it would seem to follow, as a logical conclusion, that the prosecutrix, when produced as a witness, should, in the eye of the law, stand on the same footing as any other witness, sharing the same credit for sanity and competency as is prima facie accredited to all persons. The defendant in such a case, if he is going to enter a plea of not guilty and stand a trial, must thereupon proceed upon the presumption which the law accredits him. He cannot go to trial on the plea that he is innocent, and, the moment .the state produces a witness against him, interpose an objection based upon the theory that the state has already established by its pleading, one of the material and essential facts against him. When a witness is produced it is a right and privilege accorded to the adverse party to object to the examination of such witness upon the ground of incompetency to testify. The question of competency is clearly one of law and must be determined by the court. Section 7883, Rev. St. 1887; Wigmore on Ev. § 497; 2 Elliott on Ev. § 753; Underhill, Cr. Ev. § 203; Cannady v. Linch, supra; Holcomb v. Holcomb, 28 Conn. 177. There is no fixed or established rule for determining such question. It seems, however, to be the usual practice, and, we think, the proper and orderly way to proceed, for the court to examine the witness for the purpose of ascertaining his condition of mind and ability to truthfully and correctly narrate the facts concerning which he is called to testify; and, in the determination of this fact, it may often be found proper and necessary to call other witnesses to testify. After the court has determined' that the witness offered is competent to testify, the question of his credibility immediately becomes a matter for the consideration and determination of the jury. The mental condition of a witness, as manifested by him on the witness stand, almost invariably influences the jury as to the weight they will give his testimony. The manner in which a witness tells his story, the advantages he appears to have had for gaining accurate information on the subject, the accuracy and retentiveness of his memory, his capacity for consecutive narration of acts and events, his apparent frankness and intelligence, and numerous other considerations, all go to make up the sum total of credibility that the jury will give to the evidence of any particular witness. It should be borne in mind, too, that the mental capacity of the female to give her consent to the act for which the defendant is prosecuted is a question of fact for the jury to determine along with all the other questions of fact submitted to them by the evidence. Counsel for appellant argues, however, that, if the prosecutrix was so weak-minded and mentally unsound as to render her incapable of giving an intelligent assent to the violation of her person, she must have been, for the same reason, incapable of giving competent testimony concerning the commission of that act. While there is apparent reason for such an assumption, and in many eases it would undoubtedly be true, we don’t think the position tenable as a rule, nor that the latter conclusion necessarily follows the existence of the former fact. It would seem that a female, although of mature years, and fully developed physically, might be so far insane and mentally deranged as not to realize or appreciate the impropriety or effect of the illicit act, and still might be capable of giving a substantially correct and truthful statement of the occurrence and conditions under which it took place. Incapacity to give intelligent and legal consent to an act does not necessarily imply incapacity to thereafter correctly narrate the facts constituting the commission of the act.”

After much investigation we have reached the conclusion that the rule supported by reason and the weight of authority is that incapacity to give legal consent to the commission of an act of carnal intercourse does not necessarily imply incapacity to thereafter correctly and truthfully narrate the facts constituting the commission of the act; and the fact that the state accuses the defendant of rape in having accomplished an act of sexual intercourse with a female not his wife, who was at the time of unsound mind and incapable of giving legal consent, does not per se establish the incompeteney of such female to testify against the accused.

In this case the record discloses such facts as convince us that the prosecutrix was competent to testify. We accordingly hold that the court did not err in overruling the objections made to her competency, and that the court properly permitted her to testify. The credibility of the witness was properly left to the jury, and has been determined by them.

The weight of the evidence was a question for the jury under the instructions of the court, which gave the defendant the benefit of all reasonable doubt, and we are not prepared to say that the verdict is not supported by the evidence.

In conclusion we simply add that the most careful examination of this record has revealed nothing that gives us the right to say that the- interests of justice require a new trial.

It follows that the judgment of the district court of Jefferson county must be affirmed; and it is so ordered.

MATSON, P. J., concurs.

BESSEY, J., absent, and not participating.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    SAM FRANCIS et al. v. STATE.
    No. A-4276.
    Opinion Filed Dec. 22, 1923.
    Rehearing Denied Jan. 22, 1924.
    (221 Pac. 785.)
    (Syllabus.)
    1. Appeal and Error" — Court Presumed to Continue Case for Lawful Cause) — Right to Dismissal for Delay in Trial — Burden on Accused to Show Laches of State. In the absence of a proper record affirmatively showing the contrary, the presumption is that the court had continued the case for a presumably lawful cause. The burden was on the defendant, in support of his motion to dismiss, to show that the laches was on the part of the state through it's prosecuting officers; otherwise the presumption is that the delay was caused by or with the consent of the defendant himself, and when on bail he must demand a trial or resist the continuance of the case from term to term. A defendant who has never demanded or been refused trial is not entitled to a discharge under the constitutional provision (article 2, § 20) and the statutory provisions (sections 2913 and 2914, Comp. St. 1921).
    2. Arrest — Arrest Without Warrant by Officers Seeing Operation of Stills. Officers who saw the defendants operating moonshine stills had the authority to arrest them and seize the stills and appliances without a warrant.
    3. Evidence — Searches and Seizures — Seizure Without Search Warrant of Still Operated in Open Valid — Admissibility of Evidence. Seizure without a search warrant of two moonshine stills, operated in the open, held not to violate Bill of Bights, § 30, which prohibits ‘^unreasonable searches or seizures,” and the stills and utensils seized and the testimony of the officers in relation thereto were admissible.

      4. Same — Intoxicating Liquors. Where the possession of intoxicating liquor is open and obvious, no search warrant is necessary,'and the liquor seized and the testimony of the officers in relation thereto were admissible.
    5. Intoxicating Liquors — Evidence Sustaining Conviction for Unlawful Manufacture. In a prosecution for manufacturing intoxicating liquor, evidence held sufficient to sustain the verdict and judgment of conviction.
    Appeal from County Court, Harmon County; E. C. Abernathy, Judge.
    Sam Francis and another were convicted of the unlawful manufacture of whisky, and they appeal.
    Affirmed.
    C. H. Madden, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

In the information in this ease filed in the county court of Harmon county December 24, 1921, Sam Francis and Emery Felty were charged with manufacturing com whisky. Upon their trial on the 27th day of January, 1923, they were found guilty, and their punishment fixed at confinement in the county jail for 30 days and a fine of $350 each. From the judgment rendered on the verdict they appeal.

When the case was called for trial the defendants filed a motion to dismiss on the ground that they were not brought to trial at the next term of court after the information was filed; that the continuances from term to.term were not procured by them, and their trial has been arbitrarily delayed without consideration of the substantial rights of the defendants under the Constitution of the state and the statutes in such cases made and provided; which motion was by the court overruled and exception allowed.

Bill of Bights, § 20, of the Constitution, declares that:

“In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed.”

The Code of Criminal Procedure provid'es as follows:

“If a defendant, prosecuted for a public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of court in which the indictment or information is triable after it is filed, the court must order the prosecution to be dismissed, unless good' cause to the contrary be shown.” Comp. Stats. 1921, § 2913.
“If the defendant is not prosecuted or tried, as provided in the last two sections, and sufficient reason therefor is shown, the court may order the action to be continued from term to term, and in the meantime may discharge the defendant from custody, on his own undertaking or on the undertaking of bail for his appearance to answer the charge at the time to which the action is continued.” Section 2914.

It has been repeatedly held by this court that the constitutional guaranty of a speedy trial may be waived by consenting to continuances, and by the failure of a defendant enlarged on bail to present himself as required by the conditions of his bond and demand a trial.

In Parker v. State, 7 Okla. Cr. 238, 122 Pac. 1116, 124 Pac. 80, it is said:

“Where a defendant wishes to avail himself of the• provisions of our statute above quoted, he must demand a trial and object' to a postponement or continuance of the case. If he does not do this, he will be held in law to have waived his right to demand a dismissal of the case on the ground of such postponements. Where he does this, the burden is then on the state to prove that good cause existed for the postponements complained of.”

In Weeks v. State, 16 Okla. Cr. 443, 183 Pac. 932, it was held:

“In the absence of a proper record affirmatively showing the contrary, the presumption is that the court had continued the case for a presumably lawful cause. The burden was on the defendant, in support of his motion to dismiss, to show that the laches was on the part of the state through its prosecuting officers; otherwise, the presumption is that the delay was caused by or with the consent of the defendant himself, and when on bail he must demand a trial, or resist the continuance of the case from term to term. A defendant, who has never demanded or been refused trial, is not entitled to a discharge under the constitutional provision (article 2, § 20) and the statutory provisions (sections 2913 and 2914, Rev. Laws 1921).”

See Ex rel. Eubanks v. Cole, District Judge, 4 Okla. Cr. 25, 109 Pac. 736; Ex rel. Bailey v. Holden, County Judge, 25 Okla. Cr. 206, 219 Pac. 961; Bowes v. State, 7 Okla. Cr. 316, 126 Pac. 580; Head v. State, 9 Okla. Cr. 356, 131 Pac. 937, 44 L. R. A. (N. S.) 871.

The evidence shows that the sheriff, two deputies, and another man, while searching for moonshine stills in a pasture near the north line of Harmon county, found two copper stills in a ravine; the stills were running with a fire under each, both were full of mash, and whisky was dripping from the coils into jars; there were three barrels near by, one full, one two-thirds full, and one about a third full of mash, and some jars containing about two gallons of whisky. The defendants were standing by. The officers seized the stills, the mash, and the whisky, they arrested the defendants, and Francis said that if they had been 24 hours later they would not have caught them. Felty said that it was his first offense; that times were hard, and that they needed a little money, and thought they would run off some and sell it and have some Christmas money.

It appears that the nearest house was about one-half mile distant, and that the pasture belonged to Jack Francis, but it does not appear that Jack Francis was in any way connected with the stills or related to the defendants. It also appears that the officers did not have a search warrant. The stills, mash, and whisky seized were offered in evidence. The defendants did not testify.

The 'defendants objected to this evidence on the ground that it had not been seized under a search warrant, and for this reason moved the court to withdraw from the consideration of the jury the testimony of the officers' and the evidence so obtained without a search warrant.

It is urged that, as the officers who found the stills were not at the time in possession of a search warrant conferring upon them lawful authority to search for and seize the stills, mash, and whisky, their testimony was incompetent, and the evidence so obtained was incompetent, in that it was admitted in violation of the constitutional guaranty against self-incrimination (Const, art. 2, § 21), and also of the constitutional guaranty that "the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches or seizures shall not be violated” (Const, art. 2, § 30), citing Hess v. State, 84 Okla. 73, 202 Pac. 310.

On the record before us we think the evidence in question was properly admitted. It is true that the officers did not have a search warrant, but likewise true that they made no search of any building, premises, or land belonging to the defendants. Furthermore, there was nothing in the evidence showing any right in the defendants to occupy the pasture with their stills. The stills and their operation were exposed to the view of any person that might pass by, and the defendants had no better right to operate the stills on the land than the officers of the law had to enter it. The unlawful operation of the stills was seen by the officers; it was an offense committed in their presence; hence the possession of a search warrant was unnecessary. The officers had the authority to seize the stills, mash, and whisky without a warrant, and to arrest the defendants.

In Ricketts v. State, 23 Okla. Cr. 267, 215 Pac. 212, it is said:

“The constitutional provision [article 2, § 21] guarantees no greater privilege than that all persons, whether parties or extraneous witnesses, shall be free fro'm compulsion by legal process, to give self-incriminating testimony. The principal purpose of the provision was to prohibit compulsory examination of prisoners before trial or upon trial, for the purpose of extorting unwilling confessions or declarations implicating them in crime. It could reach further only in exceptional and peculiar cases coming within the purpose and spirit of the inhibition.”

Manifestly the facts of this case do not bring it within the rule that would make it incompetent as evidence announced in the ease of Hess v. State, 84 Okla. 73, 202 Pac. 310, or the case of Gore v. State, 24 Okla. Cr. 394, 218 Pac. 545.

In Bowling v. Com., 193 Ky. 642, 237 S. W. 381, it was held that:

“Seizure without warrant of a moonshine still maintained in the open, on land belonging to defendant’s' father, without the father’s consent or knowledge, held not to violate Bill of Rights, Ky. § 10, and Const. U. S. Amend. 4, regarding unreasonable searches and seizures, where the still was located by seeing smoke, and without search of building or premises belonging to defendant, and the property seized and officer’s testimony relating thereto was admissible.”

In Royce v. Com., 194 Ky. 480, 239 S. W. 795, it was held that:

“Where the possession of intoxicating liquor is open and obvious so that any one within reasonable distance can readily and plainly see it, no search warrant is necessary, and the evidence thus obtained may be received upon the trial of the accused. ’ ’

What has been said disposes of the questions argued; and, finding nothing in the record to indicate that the defendants were in any respect deprived of a fair trial, the judgment of the trial court is affirmed.

MATSON, P. J., and BESSEY, J., concur.


author: PER CURIAM.

text:
    OLIVER BRANNON v. STATE.
    No. A-4176.
    Opinion Filed Sept. 8, 1923.
    Rehearing Denied Jan. 22, 1924.
    (221 Pac. 1118.)
    Appeal from County Court, Payne County; Raymond H. Moore, Judge.
    Oliver Brannon was convicted of a violation of the prohibitory liquor laws, and he appeals.
    Affirmed.
    Higgins & Berton, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

Appeal from the county court of Payne county. Conviction for unlawful possession of intoxicating liquor'. Sentence, fine of $500 and imprisonment in the county jail for 180 days. Judgment rendered December 10, 1921. Petition in error and case-made filed in this court January 23, 1922. Examination of the record and consideration of the errors, assigned and argument made in support of the same discloses no error committed by the trial court sufficient to. authorize a reversal of this judgment, and the same is therefore affirmed.


text:
    CLARENCE BARTON v. STATE.
    No. A-4357.
    Opinion Filed Jan. 22, 1924.
    (222 Pac. 272.)
    (Syllabus.)
    1. Arrest — Arrest Without Warrant of Operators of Still. Officers who saw defendant operating a moonshine still had the authority to arrest him and seize the still and appliances without a warrant.
    2. Evidence — Searches and Seizures — Seizure Without Search Warrant of Still Operated in Open not Unlawful — Admissibility of Evidence. Seizure without search warrant of a moonshine still operated in the open held not to violate Bill of Rights, § 30, which prohibits "unreasonable searches or seizures,” and the still and utensils seiz'ed and officers’ testimony relating thereto were admissible.
    3. Intoxicating Liquors — Evidence Sustaining Conviction for Unlawful Manufacture. In a prosecution for manufacturing intoxicating liquor, evidence held sufficient to sustain the verdict and judgment of conviction.
    Appeal from County Court, Canadian County; W. N. Wallace, Judge.
    Clarence Barton was convicted of unlawfully manufacturing intoxicating liquors, and be appeals.
    Affirmed.
    Babcock & Trevatban, for plaintiff in error.
    George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for the State.
   DOYLE, J.

Under an information charging appellant, Clarence Barton, with unlawfully manufacturing intoxicating liquor, to wit, six gallons of whisky, and alleging the process of manufacturing said whisky, appellant was tried and convicted and his punishment fixed at confinement in the county jail for six months and a fine of $500. From the judgment rendered in pursuance of the verdict, he. appeals.

The errors assigned are that the court erred in the admission of evidence, and in rejecting .certain testimony, and in the instructions given, and in refusing requested instructions, and in overruling motion for a new trial.

The following facts are undisputed: Will Lamb, a constable, in company with three other officers, after having secured a search warrant authorizing them to search S. W. quarter of section 15, township 13 north, range 7 west, I. M., said land owned by Mr. Carter, proceeded to the place. This land was all pasture. There was a deep canyon on the land'. The officers proceeded into this canyon and came upon appellant armed and operating a large still. The officers were enabled to locate the still by the smoke ascending from the fire by which it was. operated, and upon reaching it found it in full operation. It had a cooker with a capacity from 50 to 60 gallons. Near by were 16 barrels of mash, and about 6 gallons of whisky had already been distilled. When appellant saw the officers approaching, he ran away. Two of the officers chased him down the canyon, and several shots were fired. He stopped and gave himself up. They brought him back to where the still was, and appellant suggested to Lamb that he “let him out of this.” He admitted operating the still and gave as a reason that he was in debt and was simply trying to get by.

Counsel for appellant objected to any evidence being admitted for the reason that the search warrant was illegal; that it was not served on appellant; that it was not delivered to the officer to whom it was directed.

The search warrant was directed to the sheriff of Canadian county. The search warrant, however, was never used.

It appears from the record that appellant had no greater right to operate the still on the land than had the officers of the law to enter it, and the unlawful operation of the still by appellant was seen by the officers, and was an offense committed in their presence. Therefore they had the authority to arrest him and seize the still and appliances without a warrant or without serving the search warrant.

In Francis v. State, 26 Okla. Cr. 82, 221 Pac. 785, it was held by this court that seizure without warrant of a moonshine still, operated in the open, was not in violation of Bill of Rights, § 30, which prohibits “unreasonable searches or seizures,” and the property seized and officers’ testimony relating thereto were admissible.

Upon the record in this case it would subserve no useful purpose whatsoever to write an opinion specifically considering counsel for appellant’s contentions and our reasons for overruling them.

We deem it sufficient to say that upon a consideration of the whole ease we are of opinion that no error prejudicial to appellant was committed on the trial.

The judgment of the lower court is accordingly affirmed.

MATSON, P. J., and BESSEY, J., concur.


text:
    J. K. INMAN v. STATE.
    No. A-4285.
    Opinion Filed Jan. 24, 1924.
    (222 Pac. 271.)
    (Syllabus.)
    Homicide — Evidence Sustaining Conviction for Shooting Another, with Intent to Kill. In a prosecution for shooting another with intent to kill, evidence examined, and held sufficient to sustain verdict and judgment of conviction, and that no material error was committed on the trial.
    Appeal from District Court, Grady County; Edward Dewes Oldfield, Special Judge.
    J. K. Inman was convicted of shooting another with intent to kill, and he appeals.
    Affirmed.

      Holding & Herr, for appellant.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this ease charges that in Grady county, on or about the 10th of Septmber, 1920, J. K. Inman did shoot one J. T. Collops with a pistol, with intent to kill. Upon the trial the jury found him guilty of assault with intent to kill, and assessed his punishment at imprisonment in the penitentiary for a term of 10 years. From the judgment rendered in accordance with the verdict an appeal was perfected by filing in this court, on April 8, 1922, a petition in error with case-made.

The facts briefly stated are that on the date alleged, appellant was in the town of Alex, and purchased some gasoline at the store of Cruse & Co., from R. A. Thomas, a clerk who was in charge of said store, and gave in payment of said gasoline a check made payable to J. W. Jackson and indorsed by Jackson. Shortly afterwards Thomas became alarmed about the válidity of the check, and, after making some inquiries and investigation, reported the matter to J. T. Collops, town marshal of the town of Alex, who, after having received a description of appellant and his companion, pursued and overtook them on the public highway about 3 miles north of Alex.

J. T. Collops testified:

“I, with Ed Standfield, Bill Miller, and a boy, started after them in a Ford car. When we overtook them, defendant’s car stopped; the man with him got out of the car. I said to defendant, ‘I am an officer and you have to go back to Alex, you are charged with passing some bad checks.’ We talked there perhaps 5 minutes. I told him I was city marshal of Alex and a deputy sheriff. Finally he said, ‘ all right. ’ He pushed himself over in the car and came up with an automatic pistol. I grabbed it. It went off. It tore my hand here. I threw my gun over, and the man standing there grabbed my arm. I walked backwards with him and went behind the car. I saw defendant getting out of the car, but before I could do anything there was a shot and a crash. The shot paralyzed me. It struck me near the backbone. I never knew anything more. When I came to nobody was there.”

The errors assigned are that the court erred in overruling defendant’s plea in abatement, erred in its rulings in the admission and rejection of evidence, and erred in giving its charge to the jury.

We have examined the record, and our conclusion is that not one of the contentions made by counsel for appellant can be ' sustained. The record • presents not one proposition of law which is novel, and which has not been time and again decided by this court, and it would subserve no useful purpose whatsoever to write an opinion specifically considering the contentions made and our reasons for overruling them.

It is our opinion that the case was fully submitted to the jury, that defendant had a fair trial, and the evidence showed defendant’s guilt beyond any and all question.

The judgment of the district court is therefore affirmed.

MATSON, P. J., and BESSEY, J., concur.


text:
    OSCAR GRAHAM v. STATE.
    No. A-4324.
    Opinion Filed Jan. 24, 1924.
    (221 Pac. 1049.)
    (Syllabus.)
    Intoxicating Liquors — -Evidence Sustaining Conviction for Unlawful Possession. In a prosecution for having possession of intoxicating liquor with intent to sell the same, evidence held sufficient to sustain the verdict and judgment of conviction, and that no reversible error was committed on the trial.

      Appeal from County Court, Cotton County; J. C. Norman, Judge.
    Oscar Graham was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.
    D. B. Madden and Walter Hubbell, for plaintiff in error.
    George F. Short, Atty Gen., and N. W. Gore and G. B. Fulton, Asst. Attys. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of the county court of Cotton county, rendered in pursuance of a verdict convicting Oscar Graham on a charge that he did have in his possession four pints of whisky with intent to sell the same, and fixing his punishment at a fine of $50 and confinement in the county jail for 30 days.

The errors assigned question the sufficiency of the evidence to sustain the verdict and alleged improper remarks by the county attorney in his argument of the case.

The evidence shows that J. D. Kerr, sheriff of Cotton county, together with Frank Bowles, undersheriff, and C. C. Campbell, went to defendant’s residence in the town of Temple for the purpose of searching the same for intoxicating liquor; the sheriff told defendant that' they had a search warrant for his place; the defendant asked what for, and then said that he did not have anything, but to go ahead and search. The officers found a quart bottle about half full of red whisky, which defendant said was bought by him for his wife a few years before; that that was all he had. However, the officers continued their search and found a fruit jar about three-fourths full of corn whisky. They placed the fruit jar on the table in the dining room, then went into an adjoining room. Defendant went with them, and making some remark about his keys went back into the dining room and “grabbed” the fruit jar; the officers intercepted him, and he pitched the jar outside, stating that he was trying to get rid of the “damn stuff.” Part of the liquor was spilled, but about a pint was saved. The officers also found about three dozen little brown bottles.

J. D. Graham, an officer, Frank Bowles, and J. D. Kerr each testified that they knew the reputation of defendant’s residence, and that it had the reputation of being a place where intoxicating liquors were kept and sold.

The defendant did not offer any testimony.

We have carefully read the record, and are fully satisfied that no error prejudicial to the defendant was committed on the trial, and that the evidence is sufficient to sustain the verdict. It would subserve no useful purpose to write an opinion specifically stating the contentions of counsel for defendant and our reasons for overruling them.

Our conclusion is that the judgment must be affirmed.

MATSON, P. J., and BESSEY, J., concur.


text:
    FRANK GRAHAM v. STATE
    No. A-4323.
    Opinion Filed Jan. 28, 1924.
    (222 Pac. 273.)
    (Syllabus.)
    Intoxicating Liquors — Unlawful Sale — Insufficiency of Evidence. In a prosecution for selling- intoxicating liquor, evidence reviewed, and held insufficient to support a verdict of guilty.
    Appeal from County Court, Cotton County; J. C. Norman, Judge.
    Frank Graham was convicted of a violation of the pro- ' hibitory liquor law, and he appeals.
    Reversed.
    D. B. Madden and Walter Hubbell, for plaintiff in error.

      George F. Short, Atty. Gen., and N. W. Gore and G. B. Fulton, Asst. Attys. Gen., for the State.
   DOYLE, J.

The plaintiff in error was convicted upon an information charging that he did sell one pint of corn whisky to O. L. Davis for $4. The jury failed to agree upon the punishment. The judgment of the court was that defendant be confined in the county jail for a period of 60 days and pay a fine of $200. To reverse the judgment he has appealed to this court.

There is but a single question which we think requires discussion on this appeal, and that is the insufficiency of the evidence to sustain the conviction.

It appears that defendant, Frank Graham, had resided in the town of Temple for about 14 years. . The complaining witness, O. L. Davis, is a barber and had been so employed in the town of Temple for a short time prior to the 10th day of July, 1921. On that day said Davis was arrested by Deputy Sheriff J. D. Graham for transporting liquor. Shortly after his arrest he was left alone with Officer Carty, while Officer Graham went to telephone the sheriff. During Graham’s absence Davis told Carty that he had purchased the whisky found in his possession from a negro. When Graham returned, Davis went with the officers to the negro section of Temple, and there pointed out a negro as the man that sold him the whisky. The negro was arrested and held until Davis decided that he was mistaken in the man, they took him back a second time to the negro section of the town, and he pointed out another negro as the man, and the officers arrested and likewise released him also. On the same day Davis was placed in the county jail of Cotton county at Walters. Three days later he swore to an information charging defendant, Frank Graham, with selling him the whisky in question.

It is undisputed that, in consideration of Ms making said complaint and testifying on behalf of the state in this case, said Davis was promised immunity by the county attorney, and was released' after defendant’s conviction.

It further appears that on the 8th day of September, 1921, this case was called for trial, and both state and defendant announced ready, and a jury was sworn to try the case. After both state and defendant made their opening statements to the jury, the complaining witness, Davis, was called to testify, but he did not respond and could not be found. Thereupon the court dismissed the jury, and defendant agreed that the case be continued for the term. .

Two or three months later the said Davis was apprehended and brought back to Cotton county, and held in the county jail until the case was tried, on the 20th day of February, 1922.

O. L. Davis testified:

“I bought one pint of corn whisky from defendant in the barn, and paid him $4 for it. I was walking up the street when Officer J. D. Graham arrested me, I told Officer Graham that I bought it from Frank Graham. I did not tell Officer Carty that I got it from a negro.”

His cross-examination shows that he had been convicted of burglary in Montague county, Tex.

The only other witness for the state, Officer J. D. Graham, testifies that witness Davis did not tell him that he got the wMsky from defendant, Graham.

The state rested, and defendant moved for a directed verdict, which was overruled.

Defendant testified in his own behalf and denied the charge made by the complaining witness, and his testimony was in no manner weakened or impeached.

J. W. Davis testified:

“I live at Sunset, Tex. I have known O. L. Davis all his life. I am acquainted with his reputation in the community where.he resides for truth and veracity, and that reputation is bad. I am here on cotton business.”

A. B. Davis testified:

“I live at Sunset, Tex. I am with King-Collie out of Dallas. I have known O. L. Davis all his life. I am acquainted with his reputation for truth and veracity, and it is bad. I have heard maybe a hundred people say it was bad. He was charged with perjury in Texas.”

W. A. Carty testified:

“I insisted on 0. L. Davis telling me where he got the whisky, and he refused. I put the inquiry this way, ‘Did you get it from a negro or white man?” and he says, ‘negro.’ And I says, ‘We will just go and hunt the negro,’ and we got into the car and passed a negro by the section house. He said, ‘There is the negro,’ and I made the negro.get in the car and took them back to the city hall. I says, ‘Davis, are you sure this is the negro?’ He says, ‘I don’t believe that is the negro, but I believe I would know him.’ We went and got another negro that he pointed out in the crowd as the man, and brought him back, again I asked him, ‘Are you sure this is the negro?’ and he says, ‘No; that is not the negro,’ and we just gave up.”

The foregoing is a fair resume of the testimony in the ease. An analysis of the same leads to the conclusion that the verdict of the jury was the result of passion or prejudice and not of that calm and deliberate consideration of the testimony .which the law requires.

It is the well-settled doctrine in this state that a conviction based upon the uncorroborated testimony of a self-confessed criminal, who admits in his testimony that he was receiving immunity by reason of such testimony, will be reversed, when such witness is impeached for truthfulness' and flatly contradicted by other witnesses, whose credibility is not impeached. Mask v. State, 2 Okla. Cr. 283, 101 Pac. 293; Shive v. State, 7 Okla. Cr. 693, 126 Pac. 579.

In Groves v. State, 23 Okla. Cr. 336, 214 Pac. 736, we said:

“While this court is to the fullest extent committed to the doctrine ‘that the credibility of witnesses and the weight and value to be given their testimony is a question solely for the jury’s determination,’ yet this court will not hesitate to reverse a judgment of conviction where the evidence is not sufficient to support the verdict, or where the evidence in the case so greatly preponderates in favor of the defendant that upon careful consideration thereof there remains such grave and serious doubt of the guilt of the defendant that leads to the conclusion that the verdict of the jury is the result of passion or prejudice, and not of that calm and deliberate consideration of the evidence which the law requires.”

One of the established modes of impeaching a witness is by proving that he has made statements out of court, contrary to his testimony. ' In this ease that was done by the only other witness for the state; also by the testimony of Officer Carty.

It also appears that he absconded when the case was first called for trial, and defendant voluntarily waived the question of jeopardy, and on his trial presentel as complete a defense as any man, however innocent, would ordinarily be able to present.

In our' opinion the evidence in this case is clearly insufficient to sustain the conviction. •

Accordingly the judgment is reversed.

MATSON, P. J., and BESSEY, J., concur.


text:
    WALTER BAREFIELD v. STATE.
    No. A-4354.
    Opinion Filed Jan. 28, 1924.
    (222 Pac. 274.)
    (Syllabus.)
    Intoxicating Liquors — Evidence Sustaining Conviction for Unlawful Sale. In a prosecution for selling intoxicating liquor, evidence reviewed, and held sufficient to sustain the conviction.
    Appeal from County Court, Stephens County; G. T. Burrows, Judge.
    Walter Barefield was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.
    Wilkinson & Saye, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton and N. W. Gore, Asst. Attys. Gen., for the State.
   DOYLE, J.

Appellant, Walter Barefield, was convicted upon an information charging that he did sell one pint of whisky to R. T. Brown, for the sum of $5. The jury failed to agree upon the punishment. The judgment of the court was that appellant be confined in the county jail for 30 days and pay a fine of $100. He has appealed from the judgment rendered upon such conviction.

The only question presented is the sufficiency of the evidence to sustain the conviction.

•R. T. Brown testified:

“I bought a pint of whisky on the 16th day of December, 1921, from Walter Barefield,, paid $5 for it, and turned it over to I. B. Gossett, chief of police. He was in Dick Hedrick’s service car across the street from the police station when he sold me the whisky. He said he was working out a fine for selling whisky, on the county road at the time. It was between 8 and 9 o’clock at night.”

I. B. Gossett, chief of police, testified:

"Between 8 and 9 o’clock at night on the day alleged, I saw R. T. Brown in company with Walter Barefield, across the street from the police station. Shortly afterwards, Brown brought me a bottle of whisky which I marked.”

As a witness in his own behalf, appellant testified:

"I did not sell this pint of whisky to R. T. Brown. I was upstairs in jail on the 16th day of December. On the 8th day of December I pleaded guilty to unlawful possession of whisky, and on the 8th, 9th, and 10th I went out and worked on the road. On the 11th I was put in jail and was not out until December 31st, except about 15 minutes one day about Christmas.”

John C. Davis, undersheriff, testified that he kept the records of the sheriff’s office; that the jail calendar shows that Walter Barefield was committed on the 10th and released on the 31st day of December, and the feed bill shows the same. Both records were offered in evidence.

In rebuttal, B. C. Young, constable in the city of Duncan, testified :

"I have known Barefield six or seven years. I saw him in the early part of the night of December 16th, across from the police station on Main street. I saw R. T. Brown later with a pint of whisky.”

E. H. Rhyne, sheriff, testified:

"About the time it is charged that Barefield sold R. T. Brown a pint of whisky, Barefield was on the road a day or two. After I learned that he was charged with having sold this whisky, I ordered that he be put back in jail.”

It is the province of the jury in a criminal ease to try the issue joined by a plea of not guilty, and if the evidence of the state uncontradieted will support a conviction, this court will not ordinarily interfere with the verdict against the defendant.

Considering tbe ease from every viewpoint, it appears that defendant was convicted upon substantial evidence, and the record discloses no prejudicial error.

The judgment is, accordingly, affirmed.

MATSON, P. J., and BESSEY, J., concur.


text:
    WILLIE FORD v. STATE.
    No. A-4389.
    Opinion Piled Jan. 30, 1924.
    (222 Pac. 278.)
    (Syllabus.)
    Homicide — Evidence Sustaining Conviction for Manslaughter in First Degree. In a prosecution for murder, evidence held sufficient to support the verdict of manslaughter in the first degree, and no material error was committed on the trial.
    Appeal from District Court, Creek County; Lucien B. Wright, Judge.
    Willie Ford was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.
    Thompson & Smith, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charges that in Creek county, on or about the 1st day of August, 1920, Willie Ford, Ike Garrón, and Leroy Powers did kill and murder one Thomas Thomas, by shooting him with a shot gun. Upon his separate trial, the jury returned a verdict finding appellant, Willie Ford, guilty of manslaughter in the first degree, assessing his punishment at imprisonment in the penitentiary for a term of 25 years. He has appealed from the judgment rendered upon such conviction, but there has been no appearance in his behalf on his appeal.

Tbe assignments of error relate to the instructions given upon the defense of insanity, alleged improper remarks of the county attorney in his argument of the case, and the sufficiency of the evidence to sustain the verdict. The facts which are undisputed, or which the evidence tends to prove, are:

That Thomas, the deceased, with his wife and five children, lived on the Garrón farm, a few miles west of Depew. Appellant, with his wife, lived in another house on the place. On. the date alleged deceased was chopping cotton, and returned to the house about 4 o ’clock; taking a bucket in each hand, he started to the well, which is about 30 yards from the house. Before reaching the well he was shot by appellant, the charge entered the back of the head. Death was instantaneous. His widow testified:

“I heard the report of a gun, and ran to the door. I saw Willie Ford with a shotgun in his hands, chasing him. I saw him shoot, and my husband fell.”

Oklee Turner testified:

“Mr. Garrón was sick at Miller’s, and I took him home. I was there about two hours. I saw Tom Thomas coming with a water bucket in each hand. Willie Ford was standing in the east door; his wife was washing near the smokehouse; when the man came up he spoke to us all and went on to the well. Willie Ford went into the house and came out with a shotgun in his hands, going towards the well; the man dropped the buckets and started to run, and Willie Ford shot at him, and he ran across the potato patch and fell. When he got up and started on, Willie Ford ran up and shot him, and the man fell. Willie Ford came back to the house and told his wife to get his clothes. I was ready to go, and Willie Ford and Leroy Powers got in the buggy with me. I left them at Miller’s.”

Another witness testified that he heard the shooting, and went oyer there, and found Tom Thomas dead, with a shotgun wound in the back of his head about the size of a half-dollar.

For the defense, Della Ford testified:

“I am the wife of Willie Ford; on the afternoon before the day; of the shooting, I was at home alone; my husband and Sarah Duncan and Roy Powers had gone to town; they returned that night about 10 o’clock. I was crying, and I told my husband that Tom Thomas had raped me, and he went to crying.”

Dr. B. C. Schwab, a physician and surgeon, in answer to a hypothetical question, based upon the facts as testified to by the wife of the defendant, stated that in his opinion defendant was temporarily insane when he fired the fatal shot.

Dr. G. C. Croston, a physician and surgeon, answered a similar hypothetical question by saying:

"I would judge that he was momentarily insane at the time he fired the fatal shot.”

In rebuttal, Jess Watley testified that on the following day, after Tom Thomas was killed, in the town of Depew, he had a conversation with Della Ford, wife of the defendant, in the presence of Sarah Duncan, wherein he asked her why her husband shot Thomas, and she said it was on account of the girl Homa, who had been cursing Thomas’ children, and Thomas got mad at her.

While appellant is not represented in this court, we have gone through the record, and find it free from substantial error. Under the evidence, this defendant might well have been convicted of murder. The case appears to have been fairly tried and submitted to the jury by instructions, not only free from all reversible error, but free from reasonable criticism.

The judgment of the lower court is therefore affirmed.

MATSON, P. J., and BESSEY, J., concur.


author: MATSON, P. J.

text:
    S. G. GROSS v. STATE.
    No. A-4341.
    Opinion Filed Jan. 31, 1924.
    (222 Pac. 275.)
    (Syllabus.)
    1. Homicide — Army Record of Deceased to Rebut Evidence of His Bad Character. The admission in evidence of the enlistment record and discharge of the deceased, to rebut evidence introduced by the defendant attacking the general character of the deceased for peace and as a law-abiding citizen, held not to be reversible.
    2. Witnesses — Inquiry as to Mental Attitude as Foundation for Impeachment. An inquiry touching the mental attitude or state of feeling of a witness is a proper foundation for impeachment.
    3. Homicide — Refusal of Testimony as to Character of Deceased’s Place of Business, Harmless, after Admitting Testimony of Reputation as Violent and Quarrelsome. Where self-defense was claimed, and the trial court permitted the defendant to introduce evidence of the general bad reputation of the deceased as a violent, turbulent, and quarrelsome man, the refusal of the trial court to permit the defendant further to prove that the place of business conducted by the deceased was a place of public resort, in which lewd white women congregated, and that intoxicating liquors were sold therein, was harmless.
    4. Instructions Approved. The instructions as a whole are held to fully cover the law of the case, in a manner as fair to the defendant as the evidence warranted, and, further, they are held to be unambiguous and not misleading or contradictory.
    Appeal from District Court, Tulsa County; Albert C. Hunt, Judge.
    S. G. Gross was convicted of manslaughter in the first degree, and sentenced to serve a term of 18 years in the penitentiary, and he appeals.
    Affirmed.
    Burns, Joyce & Hulett, for plaintiff in error.

      George F. Short, Atty. Gen., and N. W. Gore and J. Roy Orr, Asst. Attys. Gen., for the State.
   MATSON, P. J.

This is a prosecution by indictment, returned into the district court of Tulsa county on the 29th day of September, 1920, charging S. G. Gross and H. J. Green with the crime of murder, alleged to have been committed on the 25th day of September, 1920, in Tulsa county, Okla., by shooting one Clem "Williams, and on a separate trial the defendant Gross was found guilty of manslaughter in the first degree, and punishment" fixed by the jury as above stated. Judgment was rendered November 10, 1921, and petition in error and case-made were filed in this court April 29, 1922.

Defendant S. G. Gross was a negro police officer of the city of Tulsa at the time of the homicide, and the deceased Clem Williams, was engaged in running a wagon and feed yard, with a short-order restaurant, at No. 9 South Lansing street in the city of Tulsa. The wagon yard and restaurant of deceased was located on the regular beat of this defendant when on duty as police officer. The testimony of the defendant tends to show that on the night of September 25, 1920, some time between 11 o’clock and midnight, the defendant was in the act of passing the wagon yard operated by the deceased. The wife of the deceased was at that time standing in the gate of the wagon yard, and defendant claims that he looked into the wagon yard and noticed a boy in the wagon yard hand a package of some kind to the deceased, and that his codefendant, Green, who was a constable, was with him at that time; that defendant had been advised by the police department that the wagon yard and eating place conducted by the _ deceased was a place of questionable repute, and that, when he noticed this boy hand deceased the package, he requested Green to come with him into the wagon yard and iieíp investigate; that upon investigation defendant found a paper sack sitting by an automobile; that this sack contained a quart bottle of corn whisky; that the defendant picked up said package; that about that time deceased came out of the building and walked up to defendant and asked him what was going on; that deceased immediately walked around defendant to the right side of defendant and grabbed the sack and bottle out of defendant’s hand and said, “You black son of a bitch, what are you going to do with that,” and immediately threw the bottle at defendant; that the defendant dodged the bottle and then deceased stepped back and slapped his hand to his hip pocket; thereupon defendant fired one shot at deceased, which killed him instantly.

The testimony on the part of the state’s witnesses is somewhat at variance with that given by the defendant. They testify that the defendant entered the wagon yard and commenced to search about the place looking for whisky; that defendant and Green accosted the boy, and defendant asked him what he was doing dodging around; that about this time deceased came out of the restaurant and asked the negro officers what they wanted in his place, and said that, if the boy had done anything, he was working for him, and that he (Williams) would stand good for anything that he had done; that about that time a gun was drawn on the boy, and that Alberta Williams, the wife of the deceased, hollered, “Don’t shoot that boy;” whereupon, the defendant turned on the deceased and fired one shot, which took effect slightly below the heart, and caused almost instant death.

Cy Boyd, a merchant policeman, who was on duty at that time, and had been in the wagon yard and restaurant just a few minutes before the shooting, was about a half a block away when he heard a shot, and he immediately ran back to the wagon yard and arrived there very shortly after the shooting. Defendant contended that the deceased threw a bottle of whisky at him just before he placed his hand on his hip pocket as if to shoot, and Boyd testified that he saw no broken whisky bottle or saw no whisky immediately after the shooting; that he found the neck of a broken bottle near the fence of the wagon yard, but that it looked as if it had been lying there for weeks. The witness C. 0. Logan, for the defendant, testified that he saw some evidence of whisky on the sidewalk just outside of the wagon yard fence.

The theory of the state was that the defendant was a trespasser on the premises of the deceased, that, although an officer, he at the time of the killing was making an illegal search of the deceased’s premises, and that the killing was entirely unnecessary and without justifiable cause. The theory of the defendant was that the shooting was in his necessary self-defense.

A synopsis of the testimony of each witness is not necessary to be incorporated in this opinion.

It is first contended that the trial court erred in admitting certain incompetent, irrelevant, and immaterial testimony in rebuttal.

This assignment relates to the admission in evidence of the enlistment record and discharge of the deceased from the United States army. The purpose of its admission was to rebut evidence offered by the defendant, attacking the general character of the deceased for peace and as a law-abiding citizen.

While this evidence perhaps had no great bearing upon the issue of the general character of the deceased for the above .traits of character, it forms no good basis for the reversal of this judgment. A reading of the record before us convinces us that this killing was entirely unnecessary and incompatible with the duties of a police officer, and that the statement of the defendant himself, as to the circumstances under which the killing occurred, was not such as to absolve him from blame. Under such circumstances, by express provision of section 2822, Compiled Statutes 1921, this court is not authorized to reverse a judgment of conviction on the ground (among others) of the improper admission of evidence.

What is said in respect to the first assignment of error is clearly applicable to the second assignment of error, to the effect that the court erred in permitting Alberta Williams, the wife of the deceased, to testify that the deceased had served in the army.

It is next contended that the trial court erred in permitting the state to ask the defendant on cross-examination if he had not stated to the witness Cy Boyd, about a month prior to the shooting, on Lansing and Hodge street, in the city of Tulsa, “I will have to kill three or four of these son of a bitches here before I can get along with them,” to which question the defendant answered, “No, sir.” On rebuttal, the witness Boyd was called to the stand, and over the objection of the defendant was permitted to testify that on the occasions stated the defendant did testify to that effect.

We are of the opinion that the matter contained in the question propounded was material to the issues joined, and such as the defendant could be impeached upon. The alleged conversation occurred in the immediate vicinity of where the shooting took place, just about a month before the shooting. While the threat was somewhat general in its nature, it was for the jury to say whether or not the deceased was intended to be included within the class of those whom the defendant designated as “son of a bitches" living in that neighborhood. McDaniel v. State, 8 Okla. Cr. 209, 127 Pac. 358.

An inquiry touching a witness’ mental attitude or state of feeling is a proper foundation for impeachment. 7 Encyclopedia of Evidence, p. 86.

It is next contended that the trial court erred in excluding certain competent and material evidence offered in behalf of the defendant. The court refused to let the witness R. Webb answer the questions: “What kind of a business did they carry on in the wagon yard?” also “Do you know whether or not the Farmers’ wagon yard was a place.of public resort?” and also “Do you know whether or not it was a place where lewd women congregated and where intoxicating liquors were sold?”

After objection had been sustained to each of these questions, counsel for defendant offered to prove by the witness Webb:

“That the Farmers’ wagon yard, on and prior to the 25th day of September, 1920, and during the time it was conducted by the deceased, Clem Williams, was a place of public resort, in which lewd white women congregated, and that intoxicating liquors were sold there by the deceased, and that it was commonly known as a notorious place.”

The court excluded this evidence, to which counsel for the defendant objected. The trial court permitted the witness, however, to testify that he was acquainted with the general reputation of the deceased as a violent, turbulent, quarrelsome man, and that such reputation was bad.

We fail to see wherein an exclusion of this proffered evidence had any material effect on the result of this trial. The shooting occurred on that part of the premises known as the wagon yard, and the only persons present were the deceased and his wife, the defendant, and a boy who worked for the deceased, and the defendant’s companion officer. There is no contention on the part of the defendant that he entered said premises for the purposes of quelling a riot or other disturbance of the peace. The defendant was permitted himself to testify as to his own knowledge of the premises and of its reputation. That a wagon yard is a place of public resort goes without saying. The reputation of the place as a place where lewd women congregated was immaterial under the issues in this case. As to whether or not it was a place where intoxicating liquors were sold was also immaterial, but the defendant himself was permitted to testify that it was known as such a place. It is the opinion of the court that whatever was relevant to be proved by the offer as to the witness Webb was subsequently proved by other evidence, and it is equally apparent that the evidence excluded could not have changed the result. This assignment, therefore, presents no good ground for reversal of the judgment. Addington v. State, 8 Okla. Cr. 703, 130 Pac. 311.

The remaining assignments of error relate solely to the instructions contained in the general charge of the court. Numerous of these instructions were not objected to in the trial court. To enter into a lengthy discussion of these various assignments of error would prolong this opinion to an unnecessary length. The writer of this opinion has carefully read the entire charge. The trial court fully covered the law of the case in a manner as fair to the defendant as the evidence warranted. The instructions as a whole are not ambiguous, misleading, or contradictory, but correctly • state the law of the ease. They were sufficient in every respect, and gave the defendant the full benefit of his plea of self-defense, and covered also in a manner very favorable to him the law relative to his right as an officer to make an arrest.

As we view the evidence in this ease, there is very little justification for this homicide. The defendant, although a police officer, clearly transcended his duties as such, and at the time of the killing was, under the statutes of this state, a trespasser on the premises of the deceased. The amount of force employed by him was apparently unnecessary. The deceased was unarmed. Under the state’s evidence, this homicide was murder, and under the defendant’s own testimony this judgment could not be reversed, without doing violence to those well-known principles of law which point the duty of one engaged in a conflict to avoid the necessity of attack, if possible, and to use only such force as is necessary to prevent injury to himself. To hold that the defendant was entirely blameless in bringing on the occasion which resulted in the killing of the deceased would constitute a travesty on the law of self-defense.

The judgment is affirmed.

BESSEY and DOYLE, JJ., concur.


text:
    ED NEIVAR v. STATE.
    No. A-4365.
    Opinion Filed Feb. 2, 1924.
    (222 Pac. 279.)
    (Syllabus.)
    Intoxicating Liquors — Attempt to Unlawfully Manufacture — Sufficiency of Evidence. Record examined, and held: (a) That a prosecution will lie under section 2297, Compiled Statutes 1921, for the offense of attempting - to manufacture intoxicating liquor; (b) that the information was sufficient to charge the offense of • attempting to manufacture whisky; (c) that the evidence was sufficient to sustain the verdict and judgment.
    Appeal from County Court, Canadian County; W. M. Wallace, Judge.
    Ed Neivar was convicted of an unlawful attempt to manufacture whisky, and he appeals.
    Affirmed.

      Babcock & Trevathan, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   MATSON, P. J.

This is a prosecution by information filed in the county court of Canadian county on the 19th day of November, 1921, charging the defendant, Ed Neivar jointly with one J. S. Wilson, with the crime of unlawfully attempting to manufacture intoxicating liquor, to wit, whisky, alleged to have been committed in said county on the 17th day of November, 1921.

The assignments of error attack the sufficiency of the information and the sufficiency of the evidence.

Under the first assignment of error it is contended that there is no such crime known to the laws of this state as an attempt to manufacture whisky, also that if such be a crime the information is insufficient as to allegations of fact to sustain the conviction for such a crime.

The case of State v. Thomason, 23 Okla. Cr. 104, 212 Pac. 1026, is authority to the effect that a prosecution will lie for an attempt to manufacture whisky under section 2297, Compiled Statutes 1921. The information in the instant ease contains allegations to the same effect as the information in the Thomason Case, supra, which is held to be a good charge of attempting to manufacture intoxicating liquor. We hold, therefore, that the trial court did not err in overruling the motion in arrest of judgment on the ground of the insufficiency of the information.

The evidence in this case is somewhat voluminous. The court has read the entire transcript of the evidence. The conviction is based to a large extent on the testimony of the codefendant, J. S. Wilson, who may or may not have been an accomplice. Proper instructions were . submitted to the jury on the issue of accomplice testimony and the necessity of its having to be corroborated.

We deem is unnecessary to enter into a lengthy discussion of the circumstances tending to strongly corroborate the testimony of Wilson. The crowded condition of the court’s docket precludes the writing of extended opinions in misdemeanor eases. The statute does not require the court to give a written opinion in misdemeanor cases. We deem it sufficient to say that after careful consideration of the evidence in this case we deem the circumstances amply sufficient to constitute a legal corroboration of the accomplice’s testimony. The inferences deducible from such circumstances were for the jury, and the function of this court is limited to ascertaining whether there was basis in the evidence for a reasonable inference of guilt. State v. Brown, 114 Kan. 699, 220 Pac. 174; Whitten v. State, 25 Okla. Cr. 447, 221 Pac. 115.

The judgment is affirmed.

BESSEY and DOYLE, JJ., concur.


author: BESSEY, J.

text:
    In re OPINION OF THE JUDGES. In re HOYT HOWINGTON.
    No. A-5010.
    Opinion Filed Feb. 2, 1924.
    (222 Pac. 280.)
   Opinion of the Judges of the Criminal Court of Appeals in response to a request of the Governor relative to the conviction of Hoyt Howington of the crime of murder.

Honorable M. E .Trapp, Governor of the State of Oklahoma —Sir:

In response to your official communication of January 29, 1924, addressed to this court, asking for an opinion as provided in section 2786, Compiled Statutes 1921, in the matter of the conviction of Hoyt Howington of the crime of murder in the district court of Oklahoma county on the 24th day of January, 1924, by judgment of said court sentenced to be put to death by electrocution on the 4th day of April, 1924, within the walls of the state penitentiary at McAlester, we hereby respectfully submit the following opinion of the Judges:

BESSEY, J.

The record submitted by you is what is known under our practice as a case-made, a complete record of each successive action of th'e trial court at the trial, including the testimony taken. Prom this it appears that the person convicted has served written notice of his intention to appeal from the judgment of the trial court to this court, which under the Constitution and laws of this state he may do at any time within six months from January 24, 1924, and that steps have been taken to complete the appeal.

You are therefore advised that if the appeal is not lodged in this court before April 4, 1924, in order to accord the accused his statutory right to appeal within six months, the execution of the sentence of death should be postponed to some daté after July 24, 1924.

If in the meantime the appeal is perfected and filed in this court, that will automatically give the accused the right of a further suspension of the execution of sentence until the merits of the appeal are finally heard and determined.

MATSON, P. J., and DOYLE, J.. concur.


text:
    GEORGE BOSWELL v. STATE.
    No. A-4313.
    Opinion Filed Feb. 4, 1924.
    (222 Pac. 707.)
    (Syllabus.)
    1. Intoxicating Liquors — Searches and Seizures — Constitutional-Right to Immunity from Unauthorized Search and Seizure-Waiver. The constitutional right to immunity from an unauthorized search and seizure may be waived. Held, that the declarations and conduct of the accused constituted such waiver.
    2. Trial — When Refusal to Instruct on Circumstantial Evidence not Erroneous. Ordinarily, where there is strong direct evidence supporting a conviction, the refusal to instruct the jury on circumstantial evidence constitutes no error.
    Appeal from County Court, Greer County; Jarrett Todd Judge.
    George Boswell was convicted of the illegal manufacture of whisky, and he appeals.
    Affirmed.
    A. M. Stewart and H. H. Edwards, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

At 11 o’clock on the night of the 29th of April, 1920, six officers went to the home of the defendant, a farmer, and called him from his bed to the door, where they told him that they had come to search his premises for a whisky still. The defendant replied, “All right; help yourselves.” These officers had no search warrant and no warrant for the arrest of the defendant. They proceeded to search the premises and found a barrel of fermented grain and sugar (or some sweet substance) near a hog lot, and another barrel half full of the same kind of mixture in an outhouse. The search was continued until daylight. While the defendant’s wife was preparing breakfast for the officers the defendant called the sheriff aside and said to him, “You needn’t search any more; I’ll just tell you where it (the still) .is.” He then told them that the still was at Mr. Vance’s, a neighbor, nearby, and that he and Mr. Vance had carried the mash from the half full barrel in the outhouse over to the still to “boil and make up.” The officers then proceeded to the Vance premises, where they found a hidden still and a quantity of whisky that had just been run off. Edward Hines, a deputy sheriff, corroborated the sheriff’s story, stating that the defendant went with them over to the still on the Vance place and showed them where it was; that it was in a pit dug Tinder the barn and under a haystack, with an entrance through a trap door; that Boswell told Vance he had just as well tell where it was; that Vance then offered to show them, and went with some of them and with Boswell to the place where it was found. While this was going on Vance told the officers, in the presence of Boswell, that he brought the mash from over at Boswell’s. These facts were in several particulars corroborated by the other officers.

It was the theory of the state, supported by this evidence, that the defendant and Vance were interested together in the manufacturing of whisky, that the defendant made and caused to be fermented the mash on his premises, and that Vance and the defendant together conveyed it to the still on the Vance premises, where the process of distillation was carried on.

The defendant says the conviction should be set aside: First, because the evidence supporting it was procured by an illegal search and seizure. Second, Because the court refused to give a requested instruction on circumstantial evidence. Third. That the evidence is insufficient to support the verdict.

The testimony shows that the defendant knew the sheriff and some of the other officers; that when the sheriff told him that they had come there to search for a still the defendant said, “Help yourselves.” It is true the officers were armed and came there in the nighttime, but there is nothing to show that any threats were made or- that the permission to make the search was due to intimidation. The inference fairly deduced from the evidence is that the defendant knew that there was no still upon his premises, and, with a feeling of security that none would be found, gave the officers permission to make the search. After the mash was discovered and it was ascertained that it contained sugar and possibly other ingredients to facilitate fermentation, the defendant then informed the officers where the still could be found, and in effect admitted that he was interested in its operation. Under these and the other circumstances disclosed in the record we hold that the right of immunity from search and seizure was waived.

It is next contended that the court erred in refusing to give an instruction on circumstantial evidence. We think this contention is without merit. The court instructed the jury upon the law of aiding and abetting, or being indirectly interested in the commission of the offense charged. The testimony of the sheriff and deputy sheriff that the defendant admitted that he was interested was direct evidence, not circumstantial. Under these circumstances there was no error committed in refusing to instruct the jury on circumstantial evidence.

Likewise the third assignment of error must be rejected. The defendant admitted his guilt, and other circumstances indicated that he was interested in the still and its operation.

The judgment of the trial court is affirmed.

MATSON, P. J., and DOYLE, J., concur.


text:
    J. V. COOK v. STATE.
    No. A- 4405.
    Opinion Filed Feb. 9. 1924.
    (222 Pac. 703.)
    Appeal from County Court, Canadian County; W. M. Wallace, Judge.
    J. Y. Cook was convicted of unlawfully conveying intoxicating liquor, and punishment fixed at a fine of $500 and 6 months’ imprisonment in the county jail, and he appeals.
    Modified and affirmed.
    E. T. Barbour, for plaintiff in error.

      George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for the State. ■
   PER CURIAM.

This is an appeal from a judgment of conviction, rendered in the county court of Canadian county on the 8th day of April, 1922, wherein the defendant was convicted of the crime of unlawfully conveying intoxicating liquor, to wit, whisky, and his punishment assessed as above stated. Petition in error and case-made were filed in this court on July 12, 1922. The facts are substantially as follows: Several officers, who were looking for whisky runners, had stationed themselves at a point along the public highway northwest of the city El Reno, in Canadian county, and about three-quarters of a mile south of the bridge over the North Canadian river. These officers had. stopped a car and were in the act of searching it, or had just searched it, when the defendant drove up, coming from the north toward El Reno. Seeing the officers, the defendant stopped his car, threw a sack containing a jug of whisky out of his ear, attempting to break it on the side of the car, and, failing to do so, he jumped out of the car and broke the jug by stamping on it with both of his feet. One of the officers who saw this immediately told the defendant to put up his hands, and also told him that he was under arrest. The officers picked up the broken parts of the jug from the ground and found portions of the jug that contained whisky, and also could smell whisky where it had saturated the sack surrounding the jug, and where it had run onto the ground. When arrested, the defendant made the remark that he had a right to haul his own whisky. The officers all swore that the jug was a gallon jug, and that the contents of the same was corn whisky, and from the amount spilled that apparently the jug was full before the defendant broke it.

This evidence was practically uncontradicted. The defendant did not take the witness stand in his own behalf. The only defense interposed by the defendant was in support of his reputation as a law-abiding citizen, several witnesses who lived in the community where the defendant lived testifying that they had known the defendant for a number of years and that he bore a good reputation as a law-abiding citizen. Among other instructions given, the trial court instructed the jury that if it could not agree upon the punishment the court would assess the punishment. The jury returned a unanimous verdict finding the defendant guilty, but failed to assess the punishment. Under such circumstances the trial court, assessed the maximum penalty against the defendant.

The brief filed in behalf of the defendant presents no new or intricate legal questions for decision. Not a single authority is cited in support of any of the grounds relied upon for reversal. There is merit in but one contention, and that is that the judgment should be «modified. The infliction of the maximum penalty upon a first offender who bore a good reputation as a law-abiding citizen, after the jury were unable to agree upon the punishment, does not meet with our approval. In this instance the court deems it proper to exercise that power, lodged in it by the Legislature, to modify the sentence and judgment.

It is therefore ordered, considered, and adjudged that the judgment imposing a fine of $500 and imprisonment for a term of 6 months against the defendant in this case be modified to provide a fine of $200 and imprisonment in the county jail for a period of 60 days.

As so modified, the judgment is affirmed.


author: PER CURIAM. PER CURIAM.

text:
    CAL THOMPSON v. STATE.
    No. A-4258.
    Opinion Filed Oct. 29, 1923.
    On Rehearing Feb. 9, 1924.
    (222 Pac. 568.)
    (Syllabus.)
    On Rehearing.
    Trial — Failure to Define Term in Sufficient Given Instructions, in Absence of Request, not Error. Where given instructions as a whole fairly cover the law of the case, the failure of the court to define a term therein, in the absence of a request so to do, held not reversible error.
    Appeal from County Court, Garfield County; E. L. Swigert, Judge.
    Cal Thompson was convicted of the unlawful possession of intoxicating liquor, and he appeals.
    Modified and affirmed.
    E. F. Smith, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

Appeal from the county court of Garfield county. Conviction on a charge of having unlawful possession of intoxicating liquor. Punishment fixed by a jury at a fine of $500, and imprisonment in county jail for six months. Judgment rendered in accordance with verdict December 1, 1921. Petition in error and case-made filed in this court March 21, 1922.

The only errors assigned and supported by argument and the citation of authority are that the court erred in overruling the demurrer to the information, and also the motion in arrest of judgment. These assignments of error relate solely to the sufficiency of the information to state an offense.

The information is based on section 7002, Compiled Statutes 1921, which in part provides:

"It shall be unlawful for any person, individual or corporate, to manufacture, sell, barter, give away, or otherwise furnish except as in this chapter provided, any spirituous, vinous, fermented or malt liquors, or any imitation thereof or substitute therefor; or to manufacture, sell, barter, give away, or otherwise furnish any liquors or compounds of any kind or description whatsoever, whether medicated or not, which contain as much as one-half of one per cent, of alcohol, measured by volume, and which is capable of being used as a beverage, except preparations compounded by any licensed pharmacist, the sale of which would not subject him to the payment of the special tax required by the laws of the United States; or to ship or in any way convey such liquor from one place within this state to another place therein except the conveyance of a lawful purchase as herein authorized; or to solicit the purchase or sale of any such liquors, either in person or by sign, circular, letter,. card, price list, advertisement or otherwise, or to distribute, publish, or display any advertisement, sign or notice where any such liquor may be manufactured, bartered, sold, given away, or otherwise furnished, or to have the possession of any sneh liquors with the intention of violating any of the provisions of this chapter.”

The charging part of the information is as follows:

“One Cal Thompson and S. R. Roblinson, whose more full and true name is unknown, did then and there unlawfully and willfully have in their possession a quantity of intoxicating liquor, to wit, about twenty-five (25) gallons of corn whisky, containing more than one-half (%) of one (1) per cent, of alcohol by volume, with intent of the said persons, Cal Thompson and S. R. Roblinson, whose more full and true name is unknown, to violate the prohibitory liquor laws of the state of Oklahoma, and with the intent to sell, barter, and furnish to others in violation of the prohibitory liquor law, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Oklahoma.”

The information is sufficient under the holdings of this court in the following cases: Flowers v. State, 8 Okla. Cr. 503, 129 Pac. 81; Anderson v. State, 7 Okla. Cr. 491, 124 Pac. 86; Childers v. State, 4 Okla. Cr. 237, 111 Pac. 958; State v. Feeback, 3 Okla. Cr. 508, 107 Pac. 442.

Judgment affirmed.

On Rehearing.

PER CURIAM.

Counsel for plaintiff in error have filed a petition for rehearing, with the further request that, if the same be overruled, the court again review the evidence and modify the judgment, because it is apparent from the record that the verdict assessing the maximum penalty was probably the result of passion and prejudice.

The petition for rehearing calls attention to one ground for reversal not supported by argument and authority in the brief filed in behalf of plaintiff in error, and not considered by the court in the original opinion, although assigned in the petition in error as ground for reversal. This assignment of error relates to the failure of the trial judge to define the term “prima facie” evidence. No request was made by counsel for plaintiff in error that the court define this term. In the absence of such request, the charge as a whole fairly covering the law of the case, we do not think this, of itself, a sufficient reason for reversing the judgment.

The plaintiff in error was a first offender against the laws of this state. The maximum penalty was imposed against him. The circumstances under which the offense was committed were not such as to aggravate its character or to demand the maximum penalty against a first offender. We think it apparent that a certain amount of passion and prejudice must have occasioned the verdict. For that reason the court has reached the conclusion that the judgment should be modified to provide a fine of $250 and imprisonment in the county jail for a period of 30 days.

It is therefore considered, ordered, and adjudged that the judgment of the trial court, assessing a fine against the plaintiff in error in the sum of $500, and that he be imprisoned in the county jail for a period of 6 months, be, and the same is, hereby modified, to provide a fine of $250 and imprisonment in the county jail for a period of 30 days.

As modified, the judgment is affirmed.