text:
    In re JAMES HOLMES.
    No. A-1102.
    Opinion Filed April 25, 1911.
    Petition for habeas corpus.
    Writ denied and petitioner remanded.
    Edward A. Wagner, for petitioner.
    The Attorney General, A. F. Moss, and W. H. Zwick, for respondent,
   PER CURIAM.

James Holmes on April 20, 1911, filed in this court a petition for writ of habeas corpus, verified by his oath, which, omitting the formal parts, reads as follows:

"Petition.

“In re James Holmes, Petitioner.

“Tour petitioner, James Holmes, represents and states to this Honorable court that he is restrained of his liberty and is unlawfully imprisoned and restrained in the county jail of the county of Oklahoma, at the city of Oklahoma City, state of Oklahoma, by Jack Spain, sheriff of the said Oklahoma county, state of Oklahoma.

“That the cause of said restraint and unlawful imprisonment, according to tbe best knowledge and belief of your petitioner, is his recommitment to the custody of the said sheriff of Oklahoma county, under and by reason of a record of conviction on April 6, 1911, by a trial jury in the district court of Oklahoma County which said jury after trial of your petitioner upon information charging him with the crime of murder upon said information, and after hearing the evidence submitted upon the part of the State of Oklahoma, and upon the part of your petitioner, and the law submitted by the said court pertaining to said crime and governing said jury in its consideration of said evidence, rendered its verdict of guilty as charged in said information and assessed the punishment therefor against your petitioner at death, which said information, verdict and assessment of punishment was and is wholly unwarranted in law, is without the jurisdiction of the said district court and was and is null, void and of no effect, for the reason that all process and proceedings thereon were in contra-Mintion of the Constitution and laws of the United States and were contrary to and in violation of the personal rights of your petitioner as a citizen of the United States.

“That the specific grounds upon which your petitioner bases his application for the granting of this writ by your honorable court are:

“1. That the information under which your petitioner was charged with the crime of murder, and under which he was held to answer for said crime of murder, was null, void, and of no effect for the reason that said crime is -a capital or infamous crime and the said holding of your petitioner to answer therefor in the district court of Oklahoma county, in the state of Oklahoma, on information instead of on presentment Or indictment of a grand jury, was in contravention of and repugnant to, the mandatory provision contained in the first declaration of Artic’e V of the Amendments of the Constitution of the United States.

“2. That section 17 of article II of the Constitution of the State of Oklahoma is null, void and of no effect, in so far as it conflicts with said declaration of Article V of the Amendments to the federal Constitution pertaining to the prosecution and punishment of any person charged with the crime of murder or with any other capital or infamous crime,, unless on presentment or indictment of a grand jury, and the said district court was without jurisdiction, therefore, to try this petitioner for the crime charged, except on such presentment or indictment.

“3. That the third paragraph of section 2268, in conjunction with section 2-275 and 6715 of the Compiled Laws of Oklahoma, under which your petitioner was prosecuted and convicted of the crime charged in said information in said district court, are null, void and of no effect and said district court was without jurisdiction to try your petitioner thereunder, -for the reason that said laws ov sections specified contravene the penal laws of the United States defining murder, and the penal laws of the United States prescribing the punishment therefor, by abridging a constitutional privilege or immunity of your petitioner accorded and guaranteed to. him iby the second declaration contained in section 1 of article XIV .of the Amendments of the United ‘States Constitution.

“Wherefore, your petitioner prays your honorable court to grant a writ of habeas corpus and that he be discharged without further delay from the unlawful imprisonment and punishment to which he is now subjected as aforesaid. JAMES HOLMES, Petitioner.”

On April 22nd the writ was allowed by Doyle, Judge, and made returnable April 25, 1911, before the court. At which time respondent appeared and produced the body of said petitioner in open court, and made return setting forth that the detention of said .petitioner was by reason of the judgment and sentence of the district court of Oklahoma county. Which judgment and sentence was made a part oí said return. After hearing the argument of counsel and being fully advised in the premises, it was then and there ordered and adjudged ■by the court that the writ .of habeas corjras be discharged; that said prisoner be remanded to the custody of the respondent sheriff of Oklahoma county. The questions raised have been fully considered and determined by this court in the case of In re McNaught, 1 Okla. Cr. 528, 99 Pac. 211, and by the Supreme Court of this state in the case of Ex parte McNaught, 1 Okla. Cr. 260, 100 Pac. 27.


source: Caselaw Access Project

author: PER CURIAM

license: Public Domain

text:
    W. R. KELLY v. GEORGE W. FERGUSON.
    No. A-1095.
    Opinion Filed May 2, 1911.
   PER CURIAM

This is a petition for a writ of mandamus to require Hon. George W. Ferguson, county judge of Blaine county, Oklahoma, to disqualify himself from acting as judge in the trial of a cause pending in the county court of Blaine county, Oklahoma, wherein petitioner is charged with the offense of criminal libel. This is a companion case to the case of Kelly v. Ferguson (ante), which was decided by this court on the 4th day of April, 1911. The parties to both cases are the same and the facts relied upon in both cases are the same, except that petitioner is charged with being guilty of criminal libel upon two separate and distinct persons in the different cases. The decision of this court in the cause decided on the 4th day of April is decisive of the question presented in this case. The writ of mandamus will therefore issue as prayed for.


author: PEE. OUR'IAM

text:
    JACK LAWSON v. STATE.
    No. A-573.
    Opinion Filed May 9, 1911.
    Appeal from Canadian County Court; !H. L. Fogg, Judge.
    Jack Lawson was convicted of violating the prohibitory law, and appeals.
    Appeal dismissed.
    W. A. Maurer, for plaintiff in error.
    Ohas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for defendant in error.
   PEE. OUR'IAM

Plaintiff in error was convicted of unlawfully conveying intoxicating liquors from one point in this state to another point therein, and sentenced to pay a fine of fifty dollars and costs and ibe confined for thirty days in the county jail. Judgment was rendered on the 13th -day of November, 1909, at which time he was given 60 days by the trial court within which to perfect his appeal in this court. The case-made contains an order, which is not signed by the county judge, purporting to extend the time ten days for perfecting the appeal in this court. The appeal was filed on the 24th day of June, 1910, more than seventy days after date of the judg'ment. The attorney General has filed a motion to dismiss on the ground that the appeal is not perfected in the time allowed by law. The motion is well taken, and the appeal accordingly dismissed, with directions to the trial court to enforce the judgment and sentence.


author: PER CURIAM.

text:
    O. P. DYCHE v. STATE.
    No. A-264.
    Opinion Filed May 9, 1911.
    Appeal from Alfalfa County Court; F. M. Gustin, Judge.
    George W. Partridge, for appellant.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The information in this ease charged the appellant with wrongfully having in his possession and carrying for the purpose of selling the same from the railroad station of the Orient Railroad to the railroad station of the town of Carmen in the county of Alfalfa, state of Oklahoma, certain malt liquors, to wit, beer. Counsel for appellant demurred to this information upon the ground that it charged two separate offenses. The information is not carefully drawn, but we think that the evident purpose of the pleader was to charge the appellant with the offense of illegally conveying malt liquor from one place in the state to another place in the state and that’ this was reasonably apparent from the language of the information. A person cannot carry liquor from one place in the state to another place in the state without having such liquor in his ipossession. The fact that the information charged that appellant intended to sell the beer so carried was altogether unnecessary, and was therefore surplusage. The evidence in the case' was conflicting, and if the witnesses for the state are to be believed, their testimony fully sustains the verdict of the jury. The charge of the court, if anything, was more favorable to the defendant than the law authorizes. The punishment of the defendant was assessed at a fine of $100 and imprisonment for a period of 30 days. The judgment of the lower court is affirmed.


text:
    BOB WARD v. STATE.

      No. A-557.
    Opinion Filed May 9, 1911.
    Appeal from Superior Court, Muskogee County; Farrar D. McLain, Judge.
   PER CURIAM.

This is a companion case to No. 515, J. C. Collins, plaintiff in error, v, State of Oklahoma, defendant in error (ante), decided at the last term of this court. For the reasons given in that case, this cause is reversed and remanded, with directions to the court below to grant a new trial.


text:
    J. W. NELSON v. STATE.
    No. A-626.
    Opinion Filed May 9, 1911.
    Appeal from Olcmulgee County Court, M. W. Alexander, Judge.
    F. F. Lamb, for appellant.
    Smith C. Matson, Asst. Atty. Gen., for the 'State.
   PER CURIAM.

On the 30th day of October, 1909, appellant was convicted in the county court of Okmulgee county for a violation of the prohibitory liquor raw. His punishment was assessed at a fine of $400 and 120 days’ imprisonment in the county jail. The transcript of the record was not filed in this court until the 28th day of February, 1910, which was 121 days after the judgment of conviction. Under our statute an appeal in a misdemeanor case must be perfected within 120 days from date of judgment, and no court has power to extend the time for perfecting an appeal after said 120 days has expired. As this time had expired -before the transcript of the record was filed in this court, this- court did not acquire jurisdiction of the case, and the appeal is therefore dismissd.


text:
    I. HODGE v. STATE.
    No. A-540.
    Opinion Filed May 9, 1911.
    Appeal from Pontotoc County Court; Joel Terrell, Judge.
    Duke Stone and Galbraith & McKeown, for appellant.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Appellant was convicted for unlawfully pointing a weapon at another and his punishment was assessed at a fine of $50 and three months’ imprisonment. Upon the trial of this cause the court instructed the jury that if they were satisfied from the evidence that the defendant did not point the pistol at the prosecuting witness, they should return a verdict of not gui ty. Instructions similar to this have been repeatedly condemned by this court. See Weber v. State, 2 Okla. Cr. 329; Rea v. State, 3 Okla. Cr. 270; Clendenning v. State, 3 Okla. Cr. 540. Counsel for appellant reserved an exception to this instruction. For this error in the instruction of the court, the case is reversed and remanded.


text:
    ALLISON JONES v. STATE.
    No. A-534.
    Opinion Filed May 9, 1911.
    Appeal from Canadian County Court; H. L. 'Fogg, Judge.
    E. T. Barber and J. M. Frame, for appellant.
    Smith C. Matson, Asst. Atty Gen., for the State
   PER CURIAM.

Appellant was convicted for a violation of the g-aming laws and his punishment was assessed at a fine of $150. The Attorney General has suggested to the court that since appellant perfected his appeal to this court the appellant has died. The prosecution in this case is therefore abated.


text:
    In re LEFLY BLACK and DOCK BLACK.
    No. A-546.
    Opinion Filed May 9, 1911.
   PER CURIAM.

The application for writ of habeas corpus in this case is dismissed for want of prosecution.


text:
    ARCHIBOLD CLARK v. STATE.
    No. 242.
    Opinion Filed May 9, 1911.
    Appeal from Oklahoma County Court; Sam Hooker, Judge.
    Pruiett & Sniggs and E. G. McAdams,. for appellant.
   PER CURIAM.

Appellant was convicted for a violation of the prohibitory liquor law and his punishment was assessed at 40 days’ imprisonment and a fine of $400. The information m this cause charged 'the defendant with two separate and distinct offenses, to wi.-The sale of intoxicating liquors and having intoxicating liquors in his •possession with the intention of selling the same. That' two separate and distinct offenses cannot be joined in one and the same information or indictment has been repeatedly decided by this court. See Bonitzer v. State, 4 Okla. Cr. 354; Colon Cochran v. State, 4 Okla. Cr. 379. But even without these decisions we would be compelled to hold that this information is bad for duplicity, because section 6699 of Snyder’s Comp. Laws of Okla. 1909 in express terms declares that the information or indictment must charge but one offense. The court should therefore have sustained the demurrer filed -by appellant to the information upon the ground of duplicity.


text:
    TOM HERNDON v. STATE.
    No. A-635.
    Opinion Filled May 9, 1911.
    Appeal from Pittsburg County Court; B. P. -Hammond, 'Special Judge.
    -Cad Mathis and T. D. Taylor, for appellant.
    Smith C. Matson, Asst. Atty Gen., for the State.
   PER CURIAM.

This is an attempted appeal from a conviction for violating the prohibitory liquor law, where the punishment of the appellant was assessed at a fine of $50- and 30 days’ confinement in the county jail. What -purports to be the case-made is not settled and signed by the judge who tried said cause. There is no transcript of the record in this cause. The appeal is therefore dismissed and the cause is remanded, with directions to the counts^ -court of Pittsburg county to proceed with the enforcement of its judgment.


text:
    TOM OWENS v. STATE. WILLIAM E. DELEHANT v. STATE. PAUL RIAL v. STATE.
    Nos. A-533, 560, 594.
    Opinion Filed May 9, 1911.
   PER CURIAM.

These are companion cases to No. A-515, J. C. Collins, plaintiff in error, v. State of Oklahoma, defendant in error (ante), decided at the last term of this court. For the reasons given in that case, these eases are reversed and remanded, with directions to the court -below to grant each of the plaintiffs in error a new trial.


text:
    BUS CATON v. STATE.
    No. A-536.
    Opinion Filed May 9, 1911.
    Appeal from Murray County Court; Harry W. Fielding, Judge..
    Bus Catón was convicted of violating the prohibitory law, and appeals.
    Appeal dismissed.
    C. B. Kendrick and Ira M. Roberts, for plaintiff in error.
    Chas. West, Atty. Gen., and ¡Smith C. Matson, Asst. Atty. Gen., for defendant in error.
   PER CURIAM.

Plaintiff in error was convicted at the November-term of the county court of Murray county on a charge of unlawfully-conveying whisky from one place in this state to another place therein, and judgment was announced against him on the 10th day of November, 1909, at which time he was allowed sixty days within; which to perfect an appeal to this court. The appeal was not filed within the sixty days, and for that reason this court is without jurisdiction to review the same The appeal is dismissed and the county-court of Murray county directed to enforce the judgment and sentence..


text:
    JAMES ARRINGTON v. STATE.
    No. A-555.
    Opinion Filed May 9, 1911.
    Appeal from Dewey County Court; S. M. Byars, Judge.
    James Arrington was convicted in the county court of Dewey-county on a charge of selling intoxicating liquors and appeals.
    Appeal dismissed.

      Robert Adams and Harry Smith, for plaintiff in error.
    Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for defendant in error.
   PER CURIAM.

Plaintiff in error was tried and 'Convicted at the September term of the county court of Dewey county on a charge of selling intoxicating liquors. Judgment was rendered against him on the 25th day of September, at which time, the court gave sixty days in which to prepare and serve case-made, taut no timé was fixed by the court in which the appeal should be perfected in this court. It would therefore be necessary for the appeal to be perfected within the time provided by the statute. Section 6948, Snyder's Statutes, requires that appeals in misdemeanor cases must be perfected within sixty days after judgment is rendered; unless the trial court for good cause extends such time. No such order was made in this case. The Attorney General has filed a motion to dismiss the appeal on the ground that it was not perfected within the time allowed by law. The motion is well taken and is sustained. The appeal is dismissed with directions to the county court of Dewey county to enforce the judgment and sentence.


author: ARMSTRONG, Judge.

text:
    JOE LANDERS v. STATE. BEN KREBS v. STATE.
    Nos. A-564, 565.
    Opinion Filed May 9, 1911.
    Appeal from Pontotoc County -Court; Joe Terrell, Judge.
    ■Plaintiffs in error in the above numbered cases were convicted of violations of the prohibitory law, and appeal.
    Appeal dismissed.
   ARMSTRONG, Judge.

The Attorney General has filed the following motion to dismiss the appeals in these cases:

"Comes now Charles West, Attorney General, and appearing specially and for the purposes of this motion only, moves the court to dismiss the appeal herein for the following reasons: Pirst, Because no notices of appeal were served on the clerk of the court or county attorney within the time prescribed by section 6948, Compiled Daws of Oklahoma, 1909, Snyder. The judgment of conviction having been rendered on September 14, 1909, for a misdemeanor and no notices of appeal served until January 17, 1910.' 'Second. Because the record shows (page 24) that this judgment of conviction 1'or a misdemeanor was rendered on the 14th day of September, 1909, and that the petition in error and case-made were not filed in this court until the 21st day of January, 1910, and after the longest time allowed by section 6948, supra, in which an appeal may be perfected from a judgment for conviction for misdemeanor had expired. Wherefore, the Attorney General says that this court is without jurisdiction in this case except to dismiss the appeal. Respectfully submitted, Chas. West, Atty Gen. Smith C. Matson, Asst; Atty. Gen.”

The grounds stated in the motion are well taken The motion is sustained, and the appeals dismissed, with directions to the trial court to enforce, the judgments and sentences.

FURMAN, Presiding Judge, and DOYLE, Judge,- concur.


text:
    WALTER MICKLE v. STATE.
    No. A-323.
    Opinion Filed May 16, 1911.
    Appeal from District Court, Haskell County; A. T. West, Judge.
    Walter Mickle was convicted of grand larceny and appeals.
    Order that the proceedings abate.
    Guy L. Andrews, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the district court of Haskell county of the crime of grand larceny and sentenced to imprisonment in the state penitentiary for three years. Judgment and sentence was pronounced and entered on the 4th dav of January, 1910. From which judgment an appeal was taken by filing in this court on July 5th, 1910, a petition in error with case-made. Since the appeal was taken, before the final submission of the cause, to wit, April 29, 1911, plaintiff in error departed this life. His death having been suggested, the proceedings abate. It is therefore considered that the proceedings in this action do abate, and ic is so ordered.


text:
    J. W. WILLIS v. STATE.
    No. A-338.
    Opinion Filed May 16, 1911.
    Appeal from Stephens County Court. W. H. Admire, Judge.
    J. W. Willis was convicted of conveying intoxicating liquors from one place in this state to another .place therein, and appeals.
    Reversed and remanded.
    Ei E. Morris, for plaintiff in error.
    F. S. Caldwell, for defendant in error.
   PER CURIAM.

The undisputed facts in this case show that the plaintiff in error was conveying a portion of an interstate shipment of intoxicating liquors from Waurika, in Jefferson county, Oklahoma, along the public highway to Comanche, in 'Stephens county, Oklahoma. There is no contention that the liquor was intended for any purpose other than for the personal use of the plaintiff in error.

The facts disclosed by this, record do not constitute a public offense. The judgment of the court below is reversed, and the cause remanded.


text:
    HOMER COFFEY v. STATE.
    No. A-554.
    Opinion Filed May 16, 1911.
    Appeal. from Cleveland County 'Court; W. I. Jackson, Judge Pro Tempore.
    Homer Coffey was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    B. P. Wolf and Williams &' Williams, tor plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for defendant in error.
   PER CURIAM.

There are no material errors in the record, and the judgment of the lower court is affirmed.


text:
    A. G. CROSS v. STATE.
    No. A-556.
    Opinion Filed May 16, 1911.
    Appeal from McClain County Court; E. E. Glaseo, Judge.
    A. G. Cross was convicted at the January, 1909, term of the county court of McClain county on a charge of violating the prohibitory law, and appeals.
    Appeal dismissed.
    Smith C. Matson, Asst. Atty. Gen., and Ben Franklin, county attorney of McClain county, for defendant in error.
   PER CURIAM.

A motion to dismiss the appeal in this case, supported by proper affidavits, on the ground that the plaintiff in error is a fugitive from justice, has been filed. No appearance was entered by brief or upon argument on behalf of the plaintiff in error. The motion is well taken, and is sustained. The appeal is dismissed.


author: PER. CURIAM.

text:
    MRS. E. V. SMITH v. STATE.
    No. A-561.
    Opinion Filed May 16, 1911.
    Appeal from Custer County Court; A. H. Latimer, Judge.-
    Mrs. E. V. Smith was convicted of violating the prohibitory law and appeals.
    Reversed and remanded.
    Holcomb & Bulow, for plaintiff in error.
    S-mith C. Matson, Asst. Atty. Gen., for defendant in error.
   PER. CURIAM.

Mrs. E. V. Smith was convicted of having intoxicating liquors in her possession for the unlawful purpose of selling the same, at the January, 1909, term of the county court of Custer county, and sentenced to pay a fine of four hundred dollars and be confined in the county jail sixty days.

The first assignment of error raises the sufficiency of the information, the charging part of which is as follows:

“That Mrs. E. V. Smith, more full name unknown, late of the county of Custer and state of Oklahoma, on or about the 3rd day of October, in the year of our Lord one thousand nine hundred and eight (1908), at and within the said county and state did then and there unlawfully have the possession of intoxicating liquors, to wit: about one-half barrel of beer with the intention of violating the provisions of article 3, section 1, of Senate Bill No. 61 of the laws of Oklahoma.”

There are many objections that can be and are urged to this information, and nothing can be said to justify it. In the first place a Senate Bill is never a law until passed by both Houses of the Legislature and approved by the Governor, or allowed to become a law without his signature. If an information or indictment charging a violation of the provisions of a Senate Bill, numbered 61, is filed with a court, by what process of elimination or reasoning we are to determine the particular Senate Bill contemplated is not suggested. There have been a dozen or more such bills and a number of laws on the statute 'books that came into existence by reason of having been enacted and originally numbered Senate Bill 61 by the Legislature. The information is entirely too indefinite. The demurrer should have been sustained.

There are other errors urged raising questions which this court has already passed upon, and it is unnecessary to consider them here.

The judgment of the trial court is reversed, and this cause remanded with directions to the county court of Custer county to sustain the demurrer to the information.


text:
    WILLIAM CARPENTER v. STATE.
    No. A-568.
    Opinion Filed May 16, 1911.
    Appeal from Canadian County Court; H. L. Fogg, Judge.
    William Carpenter was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    R. B. Forrest, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for defendant in error.
   PER CURIAM.

Appellant was convicted at the October, 1909 term of the county court of Canadian county on a charge of having in his possession intoxicating liquors with intent to sell the same, and was sentenced on the 27th day of November, 1909, to pay a fine of two hundred dollars and costs, and be confined in the county jail for three months. The appeal was perfected in this court on the 22nd day of January, 1910. No appearance for argument was made by counsel for appellant, and no briefs have been filed. The judgment is affirmed for want of prosecution under rule 4 of this court, with directions to the county court of Canadian county to enforce the judgment and sentence.


text:
    ALEX NOWLIN v. STATE.
    No. A-598.
    Opinion Filed May 16, 1911.
    Appeal from Pittsburg County Court; R. W. Higgins, Judge.
    Alex Nowlin was convicted of violating the prohibitory law, and appeals.
    Appeal dismissed.
    Jas. R. Miller, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for defendant in error.
   PER CURIAM.

Plalintiff in error was convicted in the county court of Pittsburg county at the October term, 1909, on a charge of selling intoxicating liquors, and on the 14th day of October judgment was entered against him assessing a fine of one hundred dollars and costs, and imprisonment in the county jail for two months, at which time he was given sixty days to prepare and serve case-made. Time was given within which to suggest amendments, and settling of the case-made, and plaintiff in error was given ten days after the settling of the case-made to file his appeal in the Criminal Court of Appeals. On the 6th day of January the court entered an order extending the time to the 20th day of January in which to make and serve the case-made, and again fixed the time for suggesting amendments and settling the same, and allowed ten days from the date of settling for perfecting the appeal in this court. The case-made was signed and settled on the 28th day of January, 1910. The appeal was filed in this court on the 9th day of February, 1910, more than ten days after the date the case-made was signed and filed, and more than sixty days from the date of the judgment. The Attorney General has filed a motion to dismiss the appeal on the ground that it is not perfected within the time allowed by the order of the court or the statute. The motion is well taken and is sustained. The appeal is accordingly dismissed, with directions to the trial court to enforce the judgment and sentence.


text:
    WALTER MACHEN v. STATE.
    No. A-572.
    Opinion Filed May 16, 1911.
    Appeal from Tulsa County Court; N. J. Gubser, Judge.
    Walter Machen was convicted of violating the prohibitory law, and appeals.
    Appeal dismissed.
    D. M. Martindale, for plaintiff in error.
    S'mith C. Matson, Asst. Atty. Gen., for defendant in error.
   PER CURIAM.

Plaintiff in error was convicted on the 20th day of November, 1909, on a charge of unlawfully furnishing intoxicating liquor, and on the 24th day of November, thereafter, was sentenced by the court to pay a fine of one hundred twenty-five dollars and .costs, and to be imprisoned in the county jail-for a period of thirty days, at which time he was given thirty days to make and serve case-made. Ten days were allowed for amendments, five days for settling, and appeal to -be perfected in this court within fiften days after such settlement. The appeal was not perfected by case-made, but comes by transcript, and was filed in this court on the 24th day of January, 1910, more than sixty days after the entering of the judgment. The record shows no order of the court extending the time within which to perfect the ■ appeal. The Attorney General has filed a motion to dismiss the appeal on the ground that it was not perfected within the time allowed by the statute or the' order of the court. The motion is well taken and is sustained. The appeal is disnr'ssed, with directions to the county court of Tulsa county to enforce the judgment and sentence.


author: PER 'CURIAM.

text:
    BERT WAITS v. STATE.
    No. A-633.
    Opinion Filed May 16, 1911.
    Appeal from Wagoner County Court; W. T.- Drake, Judge.
    Bert Waits was convicted of violating the prohibitory law, and appeals.
    Appeal dismissed.
    Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for defendant in error.
   PER 'CURIAM.

The judgment in this case was entered on the 1st day of November, 1909, at which time plaintiff in error was given forty days to prepare and Serve case-made. On December 4th he was given a further extension of sixty days to make and serve the case-made, but the order does not extend the time for filing the petition in error in this court. Notice of appeal was not served within the statutory period. The case-made was filed in this court on the 2nd day of March, 1910, one hundred twenty-one days after the rendition of the judgment. The petition in error and case-made were not filed within the time allowed by law, ,and notice of appeal was not served within said time. This court is, therefore, without jurisdiction to review the appeal, and the same is dismissed.


text:
    PETE SMITH v. STATE.
    No. A-240.
    Opinion Filed May 16, 1911.
    Appeal from Carter County Court; I. R. Mason, Judge.
    William Pfiefter, for .appellant.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Appellant was found guilty of a violation of the prohibitory liquor law, and his punishment was assessed at a fine of $100 and 60 days’ confinement in the county jail. The state’s evidence made out a plain case of the sale of beer as charged in the information. The defendant’s evidence was in direct conflict from that of the state. It is the province of the jury to settle the question of the credibility of witnesses, and having decided in favor o£ the state, we see on reason why we should interfere and set their verdict aside. We find no error in the record, and the judgment of the lower court is therefore affirmed.


author: PER OURIAM.

text:
    DAVID COLLINS v. STATE.
    No. A-532.
    Opinion Filed May 16, 1911
    Appeal from Tulsa County Court; N. J. Gubser, Judge.
    Warren D. Abbott and George T. Brown, for appellant.
    •Smith C. Matson, Asst. Atty. Gen., for the State.
   PER OURIAM.

Appellant was convicted for a violation of the prohibitory liquor law and his punishment was assessed at a fine of $50 and confinement in the county jail for a period of 30 days. Only one witness was placed upon the stand on the trial of this cause. He testified that he was the sheriff of Tulsa, county, Oklahoma, and that he was the same party who had made a charge against the defendant on the 3rd day of July, 190'9, for unlawful conveying intoxicating liquor from ¿First and Main streets to the alley on North Pirst street between Boston avenue and North Main street in the city of Tulsa. He testified that he went into a joint to search it and found a number of whisky glasses which had the odor of whisky upon them; that the defendant wasi behind the bar leaning against the bar; that ■while he was searching the joint the defendant ran around the corner and the witness followed him to the corner of the alley and there arrested him, and the defendant had upon his person four one-half pint bottles of whisky, two bottles of which were sealed and which had the corks pulled out and part of the whisky was gone from one of the bottles, and that the defendant, when arrested by the witness, was at the alley on North First street; that the defendant had traveled some 200 feet after leaving the joint before the witness arrested him. No evidence was offered on behalf of the defendant. This makes a clear ease of unlawfully conveying intoxicating liquors as charged in the information. Under this evidence the jury could not do otherwise than convict the appellant. We find no error in the record, and the case is therefore affirmed.


author: CHAPPELL, J.

text:
    LOY WINTON v. STATE.
    No. A-7509.
    Opinion Filed Jan. 24, 1931.
    (295 Pac. 400.)
    Earl A. Brown, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Carter county of the possession of one pint of com whisky, and his punishment fixed by the jury at a fine of $50 and imprisonment in the county jail for 30 days.

The state called but one witness, who testified that he saw the defendant on the side of the running board of a car, and that defendant, being crippled with infantile paralysis, rolled off the side and around in front of the car and started to pour out a pint of whisky, that he took the bottle away from defendant, and that about one-half of the whisky was left in the bottle. The state offered no evidence other than the one-half pint of whisky to establish the intent of defendant.

¡Section 1, ch. 123, Session Laws 1923-24 (2d Ex. Sess.), makes the possession of intoxicating liquor in excess of one quart prima facie evidence of intent to violate the law.

It is unlawful to possess any quantity of intoxicating liquor with intent to sell the same. Where the amount is less than one quart, the state must establish that intent, the same as any other material fact in the case.

In the case at bar, the quantity being insufficient to make a prima facie case, and the state having offered no proof of unlawful intent, the evidence was insufficient to support the verdict of the jury.

For the reason stated, the cause is reversed.

DAVENPORT, P. J., and EDWARDS, J„ concur.


text:
    E. P. HAMPTON v. STATE.
    No. A-7670.
    Opinion Filed Jan. 24, 1931.
    (295 Pac. 398.)

      Amos T. Hall, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county of the crime of rape in the first degree, and his punishment fixed by the jury at imprisonment in the state penitentiary for 30 years.

The defendant contends that the state’s evidence was insufficient to support a verdict of guilty.

The evidence of the state was sufficient to establish that the defendant, a negro, about 38 years of age, committed rape upon the person of Willie Mae Martin, a 12 year old negro girl.

The defendant next contends that the court erred in permitting the state to introduce incompetent, irrelevant, and immaterial evidence, and in excluding competent, relevant, and. material evidence offered on bebalf of tbe defendant.

An examination of tbe record discloses that tbe matters complained of are without any substantial merit, and could not bave influenced tbe jury one way or tbe other in arriving at tbe verdict.

Defendant next contends that tbe court erred in limiting tbe time of argument.

Tbe record discloses tbe following proceedings:

“The Court: I will limit tbe argument to 20 minutes on tbe side.
“Mr. Hall: We except.
“Mr. Coffee: I don’t believe the court can.
“Tbe Court: I think I can.
“Mr. Hall: We except and ask that tbe reporter be required to take tbe argument.”

iSection 2687, C. O. S. 1921, provides, among other things:

“Tbe court may permit one or more counsel to address tbe jury on tbe same side, and may arrange tbe order in which they shall speak, but shall not without tbe consent of tbe attorneys limit the time of their arguments.”

In tbe case of Williams v. State, 14 Okla. Cr. 100, 167 Pac. 763, this court said:

“Where tbe record shows that before tbe argument was commenced the court, over tbe objection of counsel for defendant, limited tbe argument to one hour on a side, and it does not affirmatively appear that counsel for defendant was unable to complete bis argument within tbe time allowed, ‘and that tbe court stopped and refused to permit further argument at tbe conclusion of one hour, no prejudicial error is shown. Under such a state of tbe record this court must presume that an hour on each side was sufficient time to complete the argument, or else if not sufficient that the court at the conclusion of one hour further extended the time.”

Trial courts should not limit the argument without consent of counsel. Where the court announces that it will limit arguments, counsel should proceed until stopped by the court and thereupon cause the record to affirmatively sho w that he was not permitted to conclude his argument to the jury.

In the case at bar, the record merely discloses that the court announced before argument began that he would limit it to 20 minutes on a side, but there is nothing to show that the court actually did so. Without a showing in the record to the contrary, this court- will presume either that counsel finished his argument within the time or that the court permitted him to continue until the argument was completed.

The defendant next contends that the court erred in refusing to require the stenographer to take and transcribe the arguments of counsel.

The record discloses that the defendant made application to have the arguments taken, and the application was denied by the court. Thereafter it appears that counsel for defendant objected to certain remarks of counsel for the state, and that these remarks were taken and transcribed by the stenographer.

Section 3065, C. O. S. 1921, requires the court reporter to take down in shorthand and correctly transcribe, when required, all the proceedings upon the trial of any case, and that attorneys in any case may request the court to order the stenographer to take and transcribe all the statements and proceedings in the case. A refusal of the court to permit, or, when requested, to require, any statement to be taken by the stenographer, or transcribed after being taken, upon the same being shown by affidavit or other direct and competent evidence, to the Supreme Court, shall be deemed prejudicial error, without regard to the merits thereof.

In Tudor v. State, 14 Okla. Cr. 67, 167 Pac. 341, 342, this court said:

“When a record discloses the fact that the court failed to comply with this mandatory provision of the statute, a reversal will follow as a matter of course in this court, unless the whole record discloses facts sufficient to enable the court to determine the merits of the proposition counsel were endeavoring to save.” ■

In Smith v. State, 34 Okla. Cr. 318, 246 Pac. 883, this court said :

“Section 3065, Comp. St. 1921, providing that the refusal of the court to permit or require any part of the proceedings in the trial of a case to be taken or transcribed after being taken shall be deemed prejudicial error without regard to the merits, should be construed in connection with section 2822, the harmless error statute, since the latter statute was adopted subsequent to the enactment of section 3065.
“When the record discloses that the court failed to permit or require a part of the argument of counsel for the state to be taken, such action on the part of the court is error; and, unless the whole record discloses facts sufficient to enable the court to determine the merits of the proposition counsel were endeavoring to save, a reversal will follow.”

In the case at bar, counsel for defendant succeeded in getting enough of the objectionable argument in the record to enable the court to pass upon the question. It was error for the trial court to refuse to have all the argument taken, but, since the evidence of the state clearly establishes the guilt of defendant, the error does not require a reversal of the case. Substantial justice will be done defendant by reducing his punishment from 30 to 15 years in the state penitentiary, the minimum punishment for such offense.

For the reasons' stated, the judgment is modified, and the punishment fixed at fifteen years in the penitentiary, and, as modified, the cause is affirmed.

DAVENPORT, P. J., and EDWARDS, J., concur.


author: DAVENPORT, J. PER CURIAM.

text:
    J. W. BECK et al. v. STATE.
    No. A-7635.
    Opinion Filed Nov. 29, 1930.
    As Modified on Denial of Rehearing Jan. 24, 1931.
    (295 Pac. 226.)

      Champion, Champion & Fischl, for plaintiffs in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiffs in error, hereinafter called the defendants, were charged by information that the said defendants J. W. Beck and W. W. Wise were driving an automobile while under the influence of intoxicating liquor, on the public highways of Carter county, Oklahoma, to wit, upon the Berwyn-Sulphur highway, from Young’s store on said highway to Berwyn, and did knowingly, willfully, wrongfully, and unlawfully obstruct and resist an officer, the said Don Gilliam, while in the due and lawful performance of the duty of said office. Defendants were convicted, and each sentenced to pay a fine of $500 and 'be imprisoned in the county jail for one year. From which judgment and sentence the defendants have appealed.

The testimony, in substance, on the part of the state is that J. E. Doyle, Don Gilliam, Jim Young, and Sol Ridge were at the Young store on or about the 16th day of May, 1929. J. E. Doyle said the defendants came by in their car and one of them was bent over the steering wheel; they may have been drinking; the defendant Wise got out of the car and came into the store a little awkward.

On cross-examination the witness Doyle said he would not say the defendants were drunk or drinking; he did not see them drink, nor did he see any whisky.

Jim Young said he would say they were drunk. On cross-examination he stated he did not see any whisky, nor did he hear anybody gay anything; that one of them came into the store and bought a bottle of soda pop and put it in his pocket and went out; there was no scrap or trouble; the constable did not try to arrest them.

Don Gilliam stated:

“I was at the Young store at the time the defendants came by and I noticed they were drinking; they were walking all right but pretty full; they stopped and bought a bottle of soda pop and went on west; I did not talk with them at the time or make any effort to arrest them; after they left I borrowed a gun and went out to arrest them and overtook them on a bridge at the top of a hill; Wise got out and started an argument and one of the men got the gun and gave it to one of the other men with him; one of the men held my head back over the seat and was beating me; they beat me around until I did not know anything; they took the distributor cap off my car and left me there; they unloaded my gun and threw it down; the defendant Beck was drunk at the time; I was acting as an officer and they resisted arrest.”

On cross-examination the witness denied he was drinking; “I never saw the boys take a drink nor did I see any whisky; the defendant Beck held a gun on me.”

The defendant Wise testified he was with the defendant Beck when he stopped at Milo and got Dr. Hill; they got some whisky on the road—

“The defendant Beck was not present when we got the whisky; I had taken two drinks; we stopped at the store and bought some pop, Dr. Hill wanted a cold drink; the defendant Beck never got out of the car; the officer arrested me and told Doc to get in and drive the car; Beck was'driving and said he was not going to let Doc drive because Doc was drinking; Beck and I wanted to prove to Mr. Gilliam we were not drunk; when we got to his car he was sitting on his gun; he grabbed his gun and I grabbed it; he said he was going to make Hill drive the car; the other fellow got Gilliam around the neck and hit him; I did not strike or hit him; when he got his gun I got his arm; Beck took the cartridges out of the gun.”

The defendant Beck testified and admitted he was out on the road with the other parties mentioned in the record, but denied he had any whisky that day—

“We was at the Jim Young store; stopped there four or five minutes; the next thing we knew a Buick drove up beside us and stopped us and Mr. Gilliam said he would have to take me to Berwyn; I asked why, and he said, Tor the disturbance you raised at the store;’ as Gilliam made a move to get his gun Thomas grabbed him around the neck from the back seat, and told him to let go of the gun; I told Thomas not to hit him any more. Thomas is now in the Muskogee jail so I am informed.”

The defendant has assigned several errors alleged to have been committed by the court in the trial of his case. Section 1568, C. O. S. 1921, makes it a misdemeanor to resist an officer by force or violence. The statute is as follows:

“Any person who knowingly resists, by the use of force or violence, any executive officer in the performance of his duty, is guilty of a misdemeanor.”

The first proposition discussed by the defendant is that the information is duplicitous, and is indefinite, vague, and uncertain. An examination of the record shows that the defendants went to trial without raising any objection to the information by a demurrer, and this court has repeatedly held that where the defendant goes to trial, and for the first time objects to the information on appeal, the objection should be overruled if by any in-tendment, inference or presumption the information can be sustained. Hoyl v. State, 7 Okla. Cr. 344, 123 Pac. 700; Brashears et al. v. State, 38 Okla. Cr. 175, 259 Pac. 665; Anderson v. State, 21 Okla. Cr. 193, 207 Pac. 977.

The information in this case states sufficient facts to advise the defendants of the charge against them, and the contention of the defendants as to the information not being sufficient is without- sufficient merit to justify a reversal.

The second proposition urged by the defendant is that the information attempts to charge a crime of attempting to resist an officer, and is fatally defective in this, that it does not charge that the defendants knew Don Gilliam was an officer at the time of the commission of the offense, and the defendants insist that it is an essential element of the crime charged against them that they knew the prosecuting, witness was an officer at the time they had the fight with him and beat him up, and that the demurrer of the defendants, at the close of the state’s testimony and at the conclusion of all the testimony, should have been sustained, for the reason that there is no- allegation in the information that the defendants knew the prosecuting witness was an officer at the time of the trouble. Citing, in support of their contention, Ratcliff v. State, 12 Okla. Cr. 448, 158 Pac. 293.

Prom an examination of the authority cited in support of this contention, it clearly appears that the authorities cited in support of the contention are not in point, and the demurrer of the defendants to the evidence was properly overruled.

The third contention urged by the defendants is that, if guilty of anything, they are guilty of the crime of assault, and battery, or obstructing an officer. This contention is not well taken, as the proof clearly shows that the defendants resisted an officer by beating him up and disarming him, and refusing to go with him as directed and asked to do at the time, when the prosecuting witness acting in his capacity as an officer attempted to arrest them.

The fourth contention of the defendants is that the court erred in its instructions to the jury. After a careful reading of the instructions in their entirety, they substantially state the law applicable to' the facts in the case. The defendants contend the court erred in overruling their motion for a continuance. An examination of the motion set forth in the record shows that due diligence was not used in attempting to secure the evidence of the absent witness, and for that reason we hold, the motion for continuance being within the discretion of the trial judge, this court will not reverse a case unless the record clearly shows the court abused that discretion. The record does not show any diligence on the part of the defendants to secure the testimony of the absent witnesses, and the motion for continuance was properly overruled.

An examination of the records shows that the defendants were accorded a fair and impartial trial. The court substantially advised the jury as to the law applicable to the facts in the case. No fundamental or prejudicial errors appearing in the record, the judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.

On Petition for Rehearing.

PER CURIAM.

The original opinion in this case was rendered November 29, 1930. Petition for rehearing was filed December 11, 1930.

The court, after considering the testimony and record in the case, denies the petition for rehearing. After a careful examination of the record, it appears that the sentence imposed in this case is excessive. It is therefore ordered that the sentence of one year in jail and a fine of $500 be modified to a sentence of six months in jail and a fine of $250.


text:
    E. A. CALDWELL v. STATE.
    No. A-7650.
    Opinion Filed Jan. 3, 1931.
    Rehearing Denied Jan. 24, 1931.
    (295 Pac. 231.)
    James Shakelford (Logan iStephenson and Ethel M. Proffitt, on the brief), for plaintiff in error.
    J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Okfuskee county of the crime of assault with intent to kill, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of two years.

The evidence offered by the state and the defendant is voluminous. Without setting out the evidence of the state, it is sufficient to say that it supports the verdict of the jury, and the case must be affirmed unless the errors of law complained of by the defendant are sufficient to require a reversal of the case.

Defendant first contends that the court erred in admitting certain incompetent evidence in behalf of the state.

The defendant had offered evidence to show what Peters, the man who was shot, had said shortly after being shot. The statement was taken in writing by an attorney to he used as a dying declaration in case of the death of Peters. This statement was introduced by the defendant, and the state in rebuttal was permitted to show that the statement was not a full and complete one, and that at the same time Peters said that defendant shot him, and that Geo. W. Perry was present. While the evidence was not admissible as a part of the res gestae, or dying declaration, yet it was admissible on rebuttal in order that the state might get before the jury all that Peters had said at that time. Rhea v. State, 104 Ark. 162, 147 S. W. 463.

Defendant next complains that the court erred in admitting the testimony of Beatrice Pittman, who testified that she was the first person to reach Peters after he was shot, having run about two blocks to where she found him wounded and still lying in the street, and that he told her that defendant shot him and that Geo. W. Perry was with him. This evidence was admissible as a part of the res gestae. Johnson v. State, 1 Okla. Cr. 349, 97 Pac. 1059, 18 Ann. Cas. 300; Nail v. State, 18 Okla. Cr. 40, 192 Pac. 592; Looper v. State, 42 Okla. Cr. 341, 276 Pac. 503.

Declarations, to he a part of the res gestae, need not he precisely coincident in point of time with the principal fact. Price v. State, 1 Okla. Cr. 358, 98 Pac. 447; Borden v. State, 36 Okla. Cr. 69, 252 Pac. 446.

Defendant next contends that the court erred in refusing to permit the stenographic notes of the testimony of H. C. Glaze to be read to the jury.

Glaze had been a witness in the preliminary and his testimony had been taken by the court stenographer but not reduced to writing. Glaze had been subpoenaed as a witness for the defendant, and was present at the trial on the day before he was called as a witness, but was not present at the time he was called to testify. Defendant’s counsel then stated to the court that the witness had been subpoenaed and had been there, but was gone because he was sick, and asked leave to have the stenographer read the notes of his testimony. The state objected on the ground that no sufficient predicate had been laid for the admission of such testimony.

In the case of Weil v. State, 47 Okla. Cr. 88, 287 Pac. 752, this court said:

“Where a witness has testified at a former trial, or at a preliminary hearing, and the defendant had an opportunity to cross-examine him, the evidence so given may be read as the evidence of the witness at a subsequent trial where the witness is dead, is out of the jurisdiction of the court, or his whereabouts is unknown, or his presence with due diligence cannot be obtained, or where he is sick and unable to testify.”

See, also, De Bose v. State, 18 Okla. Cr. 557, 197 Pac. 176.

No proper predicate having been laid for the introduction of this evidence, it was not error for the trial court to refuse to permit the same to be read to the jury.

Defendant next complains of the conduct of Attorney J. H. Nolan, taking, part in the trial of the case. There is nothing improper in private counsel employed by interested parties appearing in a case and assisting in the trial thereof, as long as the county attorney or other proper prosecutor retains charge of the case. There is nothing in the record to indicate that the special counsel was guilty of any conduct prejudicial to the rights of the defendant.

Defendant next contends that the court erred in overruling his motion for a new trial on the ground of newly discovered evidence. A motion for new trial on the ground of newly discovered evidence is addressed to the sound discretion of the trial court. The presumption is that the discretion was properly exercised, and the ruling of the trial court will not be disturbed except for an abuse of this discretion. Peters v. State, 35 Okla. Cr. 367, 250 Pac. 1032; McColloch v. State, 45 Okla. Cr. 442, 283 Pac. 1026.

Some of the affidavits attached to the defendant’s motion for a new trial were to the effect that a state witness had made the statement to each of them that she did not know, who shot Peters.

In Bowlegs v. State, 9 Okla. Cr. 69, 130 Pac. 824, this court said:

“A verdict should not be set aside because of affidavits being filed in support of motion for new trial, showing that the affiants had heard a witness for the state make statements directly contrary to- such witness’ testimony in the trial.”

Defendant also attached to his motion an affidavit regarding a letter purporting to have been written by Peters to one Ethel Battiste, and purporting to have been written by Bertha Tipton, a stenographer, at the dictation of Peters. The affidavit was not made by the stenographer, but was made by one Geo. W. Perry.

When defendant claims that he has discovered a witness who will testify to something new, he should procure the affidavit of such witness, instead of procuring the affidavit of some other person Avho swears that he heard such new witness say so and so. Hurst v. Territory, 16 Okla. 600, 86 Pac. 280.

The showing made by the defendant in his motion for a new trial on the ground of newly discovered evidence being insufficient to require a new trial, the trial court did not err in overruling the same.

Defendant complains of other errors, but none of them are sufficiently material to require a separate discussion of them in this opinion.

For the reasons stated, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    ED NANCE v. STATE.
    No. A-7467.
    Opinion Filed Jan. 17, 1931.
    Rehearing Denied Jan. 24, 1931.
    (294 Pac. 1097.)

      Sid White and Leo. J. Canavan, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, having waived a jury, was found guilty by the county court of said county, and his punishment fixed by the court at a fine of $100 and imprisonment in the county jail for 30 days.

When the case was called for trial, the state and the defendant stipulated and agreed that a jury would be waived and the case heard solely upon the question of the sufficiency of the affidavit and search warrant to1 authorize the officers to1 search the premises of the defendant. It was further stipulated that the officers would testify that on a search of said premises they found seventy-four gallons of whisky, and that, if the court should hold that the affidavit and search warrant was sufficient, then the defendant was guilty, and the court should assess the punishment at a fine of $100 and imprisonment in the county jail for 30 days.

In pursuance of such stipulation and upon examination of the affidavit and search warrant, the court held them sufficient, found the defendant guilty, and assessed the punishment accordingly.

It would serve no good purpose to set out the affidavit and search warrant in this opinion, because of their length. It is enough to say that they were sufficient on their face to authorize the search of the premises of defendant and the seizure of the liquor complained of.

For the reasons stated, the cause is affirmed.

DAVENPORT, P. J., and EDWARDS, J., concur.


text:
    JESS DAY v. STATE.
    No. A-7615.
    Opinion Filed Jan. 24, 1931.
    (295 Pac. 397.)
    H. W. Morgan, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Caddo county of the crime of unlawful possession of intoxicating liquor, and his punishment fixed by the jury at a fine of $500 and imprisonment in the county jail for six months.

The evidence of the state was that they had a search warrant to search the residence buildings, and premises described as the northeast quarter of section B, township 7 north, range 9 west I. M., in Caddo county; that the defendant was not the owner of these premises; that when they went to the premises to' search, the defendant was there and that upon searching the premises they found no liquor; that the car was setting in the yard, and when the officers asked permission of defendant to search the car he said it was not his. The officers did not search the car at that time, but later, on searching it, they found three quarts of whisky in the car.

Defendant filed a motion to suppress this evidence and, as a witness for himself, testified:

“Q. Did the grip belong to you in the car? A. No, sir.
“Q. Neither the grip that had liquor nor the car that had liquor belonged to you? A. No.
“Q. Who did they belong to ? A. To my brother.
“The Court: Say the car didn’t belong to you? A. No-, sir.”

Since neither the car nor the contents were the property of the defendant, according to his own evidence, he could not raise the question of the legality of the search and seizure. Hunter v. State, 43 Okla. Cr. 138, 277 Pac. 952; Vale v. State, 43 Okla. Cr. 158, 277 Pac. 608; Gibson v. State, 44 Okla. Cr. 83, 279 Pac. 908.

The court therefore did not err in overruling defendant’s motion to suppress the evidence.

The errors of law complained of being without merit, and the evidence being sufficient to support the verdict of the jury, the cause is affirmed.

DAVENPORT, P. J., and EDWARDS, J., concur.


author: CHAPPELL, J. PER CURIAM.

text:
    W. W. BABBS et al. v. STATE.
    No. A-7497.
    Opinion Filed Dec. 13, 1930.
    As Modified on Denial of Rehearing Jan. 24, 1931.
    (295 Pac. 393.)
    Carroll J. Moody and Yerker E. Taylor, for plaintiffs in error.
    Tbe Attorney General, for the State.
   CHAPPELL, J.

Plaintiffs in error, hereinafter called defendants, were convicted in tbe county court of Garvin county of tbe crime of conspiracy, and tbe punishment of each of tbe defendants fixed by tbe jury at a fine of |200 and imprisonment in tbe county jail for a period of six months.

The evidence of the state was that the defendants conspiring together procured the arrest of one Wesley Dennis upon the false and malicious charge that he had unlawful possession of a certain still; that said still was placed upon the premises of said Wesley Dennis by the defendants conspiring together for the purpose of unlawfully procuring and bringing, about the unlawful prosecution and conviction of said Wesley Dennis. The defendants did not take the witness stand and offered no evidence.

Defendants first contend that the court erred in overruling their motion to quash the panel of the jury, for the reason that the sheriff was biased and prejudiced against the defendants.

It appears from the record that in impaneling the jury the regular panel of jurors was exhausted, and the court directed W. A. Rose, the sheriff, to summon three jurors from the body of the county. Thereupon defendants dictated an objection into the record challenging the panel because the sheriff’s name was indorsed on the information and he was a material witness for the state, and was thereby disqualified to> summon such jurors. The copy of the information in the record does not have indorsed on it the name of W. A. Rose, the sheriff, and he was not sworn and did not testify in the case.

In the case of Dumas v. State, 19 Okla. Cr. 413, 201 Pac. 820, this court said:

“Where the appellant interposed in the trial court a challenge to a special venire of talesmen on the ground that they were summoned by the sheriff, and that said sheriff’s name was indorsed on the information as a witness against defendant, and there is no showing in the record that the sheriff was a material witness against defendant, and, on the contrary, it appears that the sheriff was not produced and did not testify as a witness against defendant, it cannot be said that tbe trial court, in the absence of such a showing, committed error prejudicial to defendant in overruling the challenge.”

The challenge to the panel not having been made as required by law, and it not appearing that the sheriff was a material witness os was used to testify in the case, it was not prejudicial error for the trial court to overrule such challenge.

Defendants next contend that the court erred in admitting incompetent, irrelevant, and immaterial testimony.

It appears from the record that after the arrest of Wesley Dennis, the officers became convinced that the charges made against him by the defendants in the case at bar were based upon prejudice and false. Thereupon, such officers obtained search warrants for the premises of the defendants and searched the same for intoxicating liquor.

There is a dispute in the evidence as to how certain shoes used by the officers for comparing the tracks found about the still were obtained; the officers claiming that the shoes were turned over to them by the defendants, while defendants deny this. The shoes were not introduced in evidence, but the officers did testify that the tracks found near the still were made by shoes similar to those they had obtained from the defendants, but that they did not kno w who was wearing the shoes at the time the tracks were made.

Defendants argue that this evidence was inadmissible for the reason that it was obtained by an unlawful search and seizure. Since there is a dispute as to how the shoes were obtained and since they were not offered in evidence by the state, the question of unlawful search and seizure does not properly enter into the case. At most, it could only be said that this evidence was a circumstance tending to connect the defendants with the placing of the still upon the farm of Dennis before filing charges against him.

Defendants complain of other errors, but they are all without substantial merit.

The evidence being sufficient to support the verdict of the jury and the errors of law complained of not being fundamental, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.

On Petition for Rehearing.

PER CURIAM.

iSince the filing of the original opinion, counsel have filed a petition for rehearing, among other things contending that if the judgment is affirmed the punishment assessed is excessive under all the circumstances. The prosecution has suggested to the court that under all the circumstances the punishment is excessive, and upon further consideration the judgment is modified by reducing the fine assessed from $200 to $50 as to each defendant.


author: DAVENPORT, P. J.

text:
    RUSSELL BROWN v. STATE.
    No. A-7569.
    Opinion Filed Jan. 24, 1931.
    (295 Pac. 394.)

      Brown & Brown, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Carter county, Qkla., of the crime of larceny of one Chrysler automobile, and was sentenced to serve a term in the state penitentiary at McAlester for a term of five years, from which judgment the defendant has appealed to this court.

The defendant’s appeal was filed in this court on July 19, 1929. No brief has been filed on behalf of the defendant, and no reason is shown why a brief has not been filed. No request has been made for oral argument. Where the record shows no brief has been filed for the defendant and no appearance made for oral argument, the court will consider the appeal is without merit or has been abandoned.

An examination of the record shows there are no fundamental or prejudicial errors. The judgment is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


author: EDWARDS, J.

text:
    EARL PHILLIPS v. STATE.
    No. A-7651.
    Opinion Filed Jan. 24, 1931.
    (295 Pac. 395.)

      R. S. Howe and E. A. Blythe, for plaintiff in error.
    J. Berry King, Atty. Gen., for the Státe.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Choctaw county of having the possession of a still, and was sentenced to serve 30 days in the county jail and to pay a fine of $50.

Judgment was entered on August 8, 1929, at which time an order of extension was made allowing 40 days to prepare and serve case-made but no extension of time within which to file the appeal in this court. Thereafter, on September 16, a further extension of time to' make and serve case-made was entered, but no extension of time within which to file an appeal in this court. The appeal was lodged in this court on November 18, 1929, more than 60 days from the date the judgment was entered. Under the provisions of section 2808, Comp. St. 1921, an appeal from a conviction for a misdemeanor must be lodged in this court within 60 days from the time the judgment was entered, unless the court extended the time not exceeding 60 days additional. There having been no order of extension, this court does not acquire jurisdiction.

The appeal is dismissed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


author: PEE CUEIAM.

text:
    ALLIE CHLOUBER v. STATE.
    No. A-7726.
    Opinion Filed Jan. 24, 1931.
    (295 Pac. 395.)

      E. H. Morgan and Sam L. Wilhite, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PEE CUEIAM.

The plaintiff in error, hereinafter referred to as the defendant, was convicted in the district court of Caddo county, Okla., of the crime of larceny of a calf and was sentenced to' serve a term of two' years in the state penitentiary at McAlester. From this judgment the defendant has appealed to this court.

The defendant’s appeal was filed in this court on February 8, 1930. No brief has been filed on behalf of the defendant, and no reason is shown why a brief has not been filed. No request has been made for oral argument. Where the record shows that no brief has been filed for the defendant and no appearance made for oral argument, the court will consider the appeal is without merit or has been abandoned.

An examination of the record shows there are no fundamental or prejudicial errors.

The judgment is affirmed.


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    LIZZIE MILLER v, STATE.
    No. A-7757.
    Opinion Filed Jan. 31, 1931.
    (295 Pac. 620.)
    M. D. Hartsell, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Muskogee county of the crime of manslaughter in the first degree, and her punishment fixed by the court at imprisonment in the state penitentiary for a period of eight years.

The defendant contends, first, that the court erred in overruling her motion for a new trial on the ground of newly discovered evidence. Attached to the motion was the affidavit of one John York, a merchant policeman of Muskogee, who swore that he went to the place of the homicide shortly after the killing and that he discovered an open knife on the floor close to where the deceased was lying, and that he saw the daughter of the deceased pick up this knife, close it up and put it in the pocket of the deceased before he was taken away to the hospital. He also made affidavit that J. L. Barton, another officer, was with him.

Barton was called as a witness by the state, and testified that he arrived at the place of the homicide immediately after same occurred, and that defendant had no knife or weapon. York was in and out of the courtroom during the trial. While the affidavit alleges diligence to discover this evidence, the facts stated in the motion are insufficient to show that diligence required by law. In passing on the motion for a new trial, the trial court said:

“I know of no error that has been committed during the trial of this case. The only proposition raised in the motion for a new trial is the purported newly discovered evidence, it is claimed the witness York will testify to. My attention has been called to the fact that York was in and out of the courtroom at different times during the progress of the trial. If York saw the knife as it is claimed he did it was certainly his duty to at the time take charge of it, and if he knows the facts that it is claimed in this motion and affidavit he knows it was certainly his duty to make these facts known to either the county attorney or to counsel for the defense. In my opinion the testimony of an officer of the law who saw and knows what it is claimed he saw and knows, and who- did not report the facts to those who' were entitled to know such facts, would be entitled to but little weight if he would testify to what it is claimed in the motion he would testify to if a new trial were granted, and in my opinion his testimony, given under the circumstances that exist, would not have changed the result of the trial, and the motion for a new trial is therefore overruled.”

The granting of a new trial on the ground of newly discovered evidence is within the sound discretion of the trial court. The presumption is that the discretion was properly exercised, and the ruling of the trial court will not be disturbed except for an abuse of this discretion. Peters v. State, 35 Okla. Cr. 367, 250 Pac. 1032; McColloch v. State, 45 Okla. Cr. 442, 283 Pac. 1026.

It has also been held that a new trial on the ground of newly discovered evidence would not be granted unless there was reasonable probability that the new evidence would change the result, should the new trial be granted. Stilwell v. State, 18 Okla. Cr. 10, 192 Pac. 253; Ray v. State, 35 Okla. Cr. 332, 250 Pac. 438.

The showing being insufficient to support the motion for a new trial, the court did not err in overruling the same.

The defendant next contends that the case should be reversed because of alleged misconduct of the county attorney. The only showing of the alleged remarks of the county attorney is contained in the case-made in an exhibit marked “Exhibit B” attached to the motion for a new trial. There is no recital in the record that these remarks were ever made. This court has repeatedly held that alleged errors of this kind must be contained in the case-made by recital or by bill of exceptions and not only by reference in the motion for a new trial. Irvine v. State, 10 Okla. Cr. 4, 133 Pac. 259 ; Gaines v. State, 18 Okla. Cr. 526, 196 Pac. 719; Stout v. State, 41 Okla. Cr. 42, 270 Pac. 90.

Defendant next contends that the trial court erred in admitting incompetent evidence.

The trial court permitted the state to read the testimony of the witness Curtis Lewis, which was given at the preliminary examination. This was permitted on the showing made by the state that the witness was absent; that he was the common-law husband of Ethel Lewis; that he had testified at the preliminary and had been cross-examined by the defendant; that a subpoena had been issued for him on the 21st day of September, 1929, to appear on October 22d, the date set for the trial, and that the sheriff made a return on October 21st that the witness could not be found. It appears also that the sheriff was in possession of information as early as October 3, 1929, that this witness was probably in Oklahoma county. The county attorney claims that he had no knowledge of this fact.

By the exercise of some diligence he could have discovered the same in ample time to have procured a subpoena for the witness to be issued in Oklahoma county. In view of the fact that he did not do this, there is very meager showing of diligence to procure the testimony of the witness. Lewis was an eye-witness to the killing, but his testimony was cumulative to that of his wife’s who was present at the trial. The showing made by the state was not sufficient to entitle it to introduce the evidence of the absent witness. The case was proved substantially by the other witnesses, who' were present at the trial, and their evidence made out a clear case of murder, while she was only convicted of manslaughter. The evidence being merely cumulative to that of other witnesses to the crime, the defendant was not materially prejudiced by the admission of the same.

A judgment of conviction will not be reversed on the ground of improper admission or exclusion of evidence unless, after an examination of the entire record, it appears that there has probably been a miscarriage of justice or a substantial violation of some constitutional or statutory right of the defendant. White v. State, 34 Okla, Cr. 424, 246 Pac. 1114.

The evidence of the state was sufficient to justify 'the jury in finding the defendant guilty of murder. The jury found her guilty of manslaughter in the first degree, and the court fixed her punishment at imprisonment for eight years in the penitentiary. Upon the whole record, the defendant was clearly guilty.

For the reasons stated, the cause is affirmed.

DAVENPORT, P. J., and EDWARDS, J., concur.


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    JOHN DABBS v. STATE.
    No. A-7318.
    Opinion Filed Jan. 31, 1931.
    (295 Pac. 622.)
    E. E. Ammons, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

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

The record discloses that at the time charged two officers went to the place of defendant and made a search. One of the officers testified:

“* * Q. Tell the jury what was found, Mr. Waddle, on that occasion. A. Well, we found four barrels of whisky beer down west from John’s house; I judge between a quarter and half a mile; I don’t know the exact distance from John’s place — his house. * * *
“Q. Do you know, Mr. Waddle, just what land this beer was on in regard to who was in control of that land; whether John Dabbs was, where the beer was found? A. No, I don’t know whether it was on the farm he lived on or not. There was a wire fence on the back of the field, and we crawled through this wire fence in the edge of the woods on a branch but I don’t know whether it belonged to the farm he lived on or not. * * *
“A. Possibly 100 yards from where we crawled through the wire fence, the best of my recollection. * * *
“Q. There are people who live nearer to the beer than he does, don’t they? A. I couldn’t say whether they did or didn’t. I don’t know whether there was any other house nearer to it or not. I couldn’t say. * * *”

The witness Kirkpatrick testified substantially to the same effect. These were the only two witnesses used by the state. Defendant denied his guilt. The evidence being entirely circumstantial, it is insufficient to sustain the judgment. It raises a very strong suspicion of defendant’s guilt, but falls short of excluding any other reasonable hypothesis.

The case is reversed.


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    LOIS BURTON v. STATE.
    No. A-7589.
    Opinion Filed Jan. 31, 1931.
    (295 Pac. 622.)

      Joe iS. Eaton, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the superior court of Okmul-gee county of the crime of grand larceny, and her punishment fixed by the jury at imprisonment in the state penitentiary for a period of two years.

Defendant contends, first, that the court erred in overruling her demurrer to the evidence of the state as being insufficient to support the verdict of the jury, for the reason that the state failed to prove the venue.

The evidence given by C. E. Bainbridge, prosecuting witness, upon the subject of venue, is that he lived at 1420 E. Seventh street; that the defendant worked for him as a maid; that certain property was stolen from his home; that his family consisted of his daughter, his uncle and himself; that on the day of the larceny the uncle had gone to Sapulpa, and his daughter was in school “here in Okmulgee”; that ht went home about 5 o’clock, and discovered the loss of the property; that the defendant came to his home to work about 7 o’clock in the morning and left at 11:30 or 12, and came back in the afternoon about 4:30 or 5 o’clock; that the property found in the place where defendant was staying was the property stolen from his home.

On cross-examination, Bainbridge testified that he lived at 1240 East Seventh street; that among the articles stolen was some butter, and that he was not the only one in Okmulgee who had butter; that the goods stolen from him were found at 1112 East Randolph street.

Defendant testified that she lived at 1112 East Randolph street, in the city of Okmulgee; that she had formerly worked for the prosecuting witness; that the officers came to her home and found the property claimed by the prosecuting witness there and in a house across the street.

This court has repeatedly held that venue does not have to be proved beyond a reasonable doubt and that it may be proved by circumstantial evidence. Gritts v. State, 6 Okla. Cr. 534, 118 Pac. 673, 120 Pac. 669; Edwards v. State, 25 Okla. Cr. 167, 219 Pac. 427; Cole v. State, 34 Okla. Cr. 366, 246 Pac. 653; Groh v. State, 30 Okla. Cr. 396, 236 Pac. 435; McColloch v. State, 45 Okla. Cr. 442, 283 Pac. 1026.

The evidence in this case is sufficient to establish the venue.

Defendant next contends that the court erred in admitting certain evidence against the defendant obtained by the officers at 1112 East Randolph street, in Okmulgee, and in the house across the street, without a search warrant.

The evidence of the state was that a part of the stolen goods was found in a house across the street from where the defendant was arrested, and that, when the officers went to the place where defendant was staying, and were admitted to the house by her sister, they arrested the defendant and found other of the stolen goods at that place. None of the articles seized were introduced in evidence; the complaining witness and the officers testifying to the finding of the goods and identifying them as the property of the prosecuting witness. The objection of the defendant that this evidence was inadmissible is without any merit. Defendant complains of other errors, but they are in substance included in the errors considered in this opinion, and are without substantial merit.

The evidence being sufficient to support the verdict of the jury, and the errors complained of not being fundamental, the cause is affirmed.

DAVENPORT, P. J., and EDWARDS, J., concur.


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    J. H. BOWEN v. STATE.
    No. A-7540.
    Opinion Filed Jan. 31, 1931.
    (295 Pac. 623.)
    Bridges & Ivy, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Jefferson county on a charge of having the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $100 and to serve 90 days in the county jail.

At the time charged, certain officers with a search warrant to search the property of one Epperson on lots 11 and 12, block 46, Bingling, went to the place described in the warrant and made a search. At about this time defendant and his son were on an adjacent lot in a Ford car. The officers searched this car and found some whis-ky in the turtle-back. Mr. Adams, one of the officers, testified:

“Q. Did you search Mr. Bowen’s car on June 1,1929? A. Yes, sir.
“Q. Did you have a search warrant to' search that car? A. No, sir.
“Q. How come you to search that car without a warrant? A. Just as we were getting out of the car after we had drove up there, I went around that way where the car Was and the old gentleman was walking away from it, and the boy was in it and he started to start, that is how come me to search it.
“Q. You didn’t see anything before you searched it? A. No, sir.
“Q. You had no evidence of the liquor in the car? A. No, sir.* * *
“Q. You saw nothing in the car? A. No'.
“Q. You didn’t know any liquor was in the car? A. No', sir.
“Q. You had to unlock the turtle-back? A. Yes, sir.
“Q. After you unlocked the turtle-back you discovered the liquor? A. Yes, sir. * * *”

The testimony of other witnesses was substantially to the same effect; it discloses a search of defendant’s automobile without any search warrant and not as an incident to the arrest of defendant or upon any showing of probable cause, but at most on a slight suspicion. The finding of whisky in the car could not legalize a search so made. In view of article 2, § 30, state Const., the search of the houses, persons, and effects of the citizen on the showing here made cannot be justified.

The case is reversed.

DAYENPORT, P. J., and CHAPPELL, J., concur


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    FRANK HINTZ v. STATE.
    No. A-7722.
    Opinion Filed Jan. 31, 1931.
    Bishop & Short, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called the defendant, was convicted in the district court of iSeminole county, Okla., of the crime of murder, and his punishment was assessed at imprisonment for life in the state penitentiary at McAlester, from which judgment the defendant has appealed to this court.

In this case the defendant was charged with the killing of Lee Miller, on the 4th day of July, 1929, at an ice dock in the city of Seminole, Seminole county, Okla.

It is not deemed necessary to set out the record in full. However, a careful examination of the record shows that some controversy took place between the defendant and the deceased at the home of the defendant shortly before the killing; that the deceased lived in a tent about eight or ten feet from the defendant’s home, and boarded with the defendant; that the deceased left the home of the defendant and went to an ice dock some distance away. Later on the defendant got in his car and drove to the ice dock, and parked his car near the dock,' got out of the car, and started towards the ice dock. The deceased got behind a pillar on the platform of the ice dock, and the defendant went up on the platform and used some kind of vile epithets, and told the defendant he was going to kill him. The testimony further tends to show that the defendant chased the deceased around the pillar where the deceased had hidden from the defendant, and finally they came together and clinched. The defendant fired two shots, and the deceased fell. ¡Several eye-witnesses testified that after the deceased fell the defendant fired two or three more shots at or into the body of the deceased.

This is in substance the testimony of the state. The defendant did not take the stand, but called his wife, Lillie Hintz, as a witness. She testified in substance that the trouble between the defendant and the deceased arose at their home over an insult the deceased offered to Lillie Hintz, the wife of the defendant. She testified that the deceased had put his arms around her and forced a kiss ■upon her, and that, when she told her husband, the deceased struck her and also' knocked her husband down and then left the house.

The son of the defendant was also called, and he to' some extent testified to the same facts as his mother, Lillie Hintz.

The testimony clearly shows that the killing of the deceased by the defendant was premeditated, and that the defendant had followed the deceased to the ice dock with the premeditated design to kill the deceased. The court in his instructions correctly stated the law as applied to the facts in the case.

After a careful examination of the record and the instructions of the court, we hold that the defendant was accorded a fair and impartial trial, and that there are no fundamental or prejudicial errors in the record.

The judgment is affirmed.

CHAPPELL and EDWARDS, JJ., concur.


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    H. N. SMITH v. STATE.
    No. A-7707.
    Opinion Filed Jan. 31, 1931.
    (295 Pac. 256.)

      John T. Levergood, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted on a charge of transporting intoxicating liquor, and was sentenced to' imprisonment in the. county jail for 30 days and to pay a fine of $150 and costs, from which judgment the defendant has appealed.

The testimony on behalf of the state is, in substance, as follows:

J. W. Hand testified:

“I was undersheriff at Shawnee on the 24th day of September, 1929. About 8:30 or 9 o’clock at night I went south of the filling station some 50 or 60 feet and sat down in the weeds. An automobile drove up in front of the filling station. Mr. Brown, who ran the filling station, came to the front of the station and went to' the car, and some one handed him a sack from the car, and Brown walked with the sack to within a few feet of me, set the sack down and went back to the station. The sack contained whisky. I picked the sack up and returned to the station with it. I was watching the filling station and the car. A man got out of the car and walked to the front of the building. The man got out of the car at the time Brown was approaching me with the whisky. When I got to the station, the defendant, H. N. Smith, was in front of it. The defendant is the man that got out of the car. I placed the whisky in the sheriff’s office, but some one stole the key and broke into the locker and the whisky is gone. I smelled the contents of the bottle, and it was whisky.”

The defendant, testifying in his own behalf, stated:

“I have lived in Shawnee for three or four years. The evening I was arrested I drove to a filling station. The proprietor, Mr. Brown, and his brother borrowed my car to go to their supper. While they were gone I sat on a bench in front of the filling station and was not back of the filling station with my car prior to- the time J. W. Hand appeared. The Browns returned in about 30 minutes. About the time they returned Fred Turner drove up to- the front in a Buick sedan. I was talking to Mr. Turner when Mr. Hand came up. Hand searched me but found no' liquor on me. I did not know the Browns were bringing any liquor back in the car.”

Neither of the Brown boys nor Fred Turner was called as a witness for the defendant.

Several errors have been assigned by the defendant; the first being that the court erred in overruling, the objection of the plaintiff in error to- the juror N. P. Hugh-banks as being prejudiced to plaintiff in error’s rights. The defendant, in his brief, does not discuss the first assignment of error. From an examination of the record we hold that the rights of the defendant were not prejudiced by reason of the juror N. P. Hughbanks serving on the jury.

The only question argued and discussed by the defendant is the question of the sufficiency of the evidence to sustain the judgment. The testimony in this case is conflicting. This court has repeatedly held that, where there is a conflict in the evidence, that is a question for the jury. In this case the jury decided the conflict in favor of the state and found the defendant guilty.

The defendant was accorded a fair and impartial trial. The court correctly advised the jury as to the law applicable to the facts in the case.

The evidence is sufficient to sustain the judgment, and the case is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


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    W. C. WOOLEY v. STATE.
    No. A-7672.
    Opinion Filed Jan. 31, 1931.
    (295 Pac. 626.)
    Frank Hickman, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The petitioner in error, for convenience hereinafter referred to as the defendant, was convicted upon a charge of larceny of an automobile and was sentenced to imprisonment in the state penitentiary for a term of 20 years. Motion for a new trial was filed, considered, overruled, objections saved, and the defendant has appealed.

The evidence, in substance, on the part of the state shows that Charles W. Morris, on the 13th day of February, 1929, parked his automobile on a public street in the city of Tulsa, in the evening while he attended, a picture show. The automobile was taken, and about 50 days thereafter was found in the possession of the defendant. At the time this car was stolen it had a Kansas registration tag on it; when it was recovered it had on it an Arkansas registration tag.

The prosecuting witness did not see any one steal his car, and there is no positive testimony showing who did drive the car away from where the prosecuting witness had parked it. When the car was found the defendant was in it in the city of Tulsa. The defendant was arrested and taken to the police station and tried to make his escape, but was caught and taken to prison.

The record further shows that at the time of the defendant’s arrest a man and woman were arrested as they came up to the car in which the defendant was sitting. The man who was arrested with the defendant gave the name of Louie Humphries and testified as a witness for the state, stating that the defendant was driving this Hudson car when he and his woman friend were picked up by the defendant a short time prior to their arrest. Hum-phries stated the defendant had told him a few hours before his arrest that the Hudson car had been in a garage at Little Rock, Ark.

The defense was an alibi. The defendant did not testify. Several errors were assigned by the defendant alleged to have been committed by the court in the trial of his case.

The first error argued by the defendant is: “The evidence in this case is insufficient to support the verdict and judgment.”

The defendant contends that the only evidence on the part of the state tending to show his guilt is the possession of the automobile some 50 days after the theft, considered in connection with his failure to explain his possession. Under the law possession of recently stolen property unexplained is a circumstance that may be considered by the court and jury tending to show the guilt of the defendant. The testimony further tends to show that when this car was stolen it had a Kansas registration tag on it, and when recovered the car had an Arkansas license tag, ■which tag was shown tO' have been issued for a Nash coupe that was stolen from Little Rock, Ark. The defendant had been seen driving a Nash car in Tulsa prior to the date of his arrest. Recently stolen property is not necessarily conclusive of the guilt of the defendant, but where the defendant offers no explanation as to how he came into the possession of the car it may he considered as a circumstance tending to show the guilt of the defendant. The testimony contained in the record is sufficient to warrant the jury in finding the defendant guilty.

There are other errors assigned by the defendant but they do not possess sufficient merit to warrant a reversal. From an examination of the testimony in this case, and the circumstances surrounding the recovery of the car, and the trial of the defendant in this case, we believe the punishment inflicted is excessive and should be modified from 20 years in the penitentiary to 10 years, and, as modified, the judgment is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


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    NICHOLAS F. MOSS v. STATE.
    No. A-7554.
    Opinion Filed Jan. 31, 1931.
    (295 Pac. 627.)
    Mathers & Mathers, for plaintiff in error.

      J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was charged with larceny of an automobile and was sentenced to served a term of five years in the state penitentiary at McAlester, and to pay the costs of the prosecution. Prom which judgment and sentence the defendant appealed.

The petition in error, with case-made attached, was filed in the clerk’s office of this court, on August 26, 1929. No brief has been filed, nor has any one appeared to argue the case for the defendant. Where no counsel appears and no briefs are filed, this court will examine the pleading; instructions of the court, and the exceptions taken thereto ; the judgment and sentence; and, if nO' prejudicial errors appear, will affirm the judgment.

After an examination of the pleadings, the instructions of the court, the judgment and sentence, the court finds that no prejudicial errors occurred in the trial of the case sufficient to authorize a reversal of this judgment.

The judgment of the lower court is therefore affirmed.

EDWARDS and CHAPPELL, JJ., concur.