text:
    ROY DENMARK v. STATE.
    No. A-9537.
    June 30, 1939.
    (92 P. 2d 586.)

      Tant & Flinn, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, P. J.

The information in this case charged the defendant, Roy Denmark, jointly with Bob Jefferson, with having on the 27th day of March, 1987, in Oklahoma county, possession of 744 pints of whisky with the unlawful intent to sell the same. The defendant, Denmark, on his separate trial before the court, both parties having waived a jury, was convicted. Motion for new trial was duly filed and overruled on February 21, 1938. Thereupon the court sentenced the defendant to confinement in the county jail for 60 days and to pay a fine of $100 and the costs.

On June 22, 1938, an appeal from the judgment was taken by filing in this court a petition in error with case-made and proper proof of notices. No briefs have been filed and no appearance for oral argument made.

Where the defendant appeals from a judgment of conviction and no brief in support of the petition in error is submitted, and no appearance for oral argument made, we do not consider it the duty of this court to go into a careful examination of the evidence to determine whether or not the trial court erred in the admission or rejection of testimony. This court will examine the record for jurisdictional errors. If no fundamental error appears, the judgment will be affirmed.

We have examined the record and find that the information is sufficient to charge the offense of unlawful possession of intoxicating liquor. The evidence is amply sufficient to sustain the judgment and sentence, and no testimony was given by the defendant or by any witness in his behalf. Both parties rested at the close of the case for the state. On the record before us, we have discovered no error which would warrant a reversal of the judgment, and it appears that the defendant was accorded a fair and impartial trial. The judgment of the lower court is accordingly in all things affirmed.

BAREFOOT and DAVENPORT, JJ., concur.


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    W. R. TUCKER v. STATE.
    No. A-9396.
    June 30, 1939.
    (92 P. 2d 595.)

      Billingsley & Kennerly, of Wewoka, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Hubert Hargrave, Co. Atty., of We-woka, for the State.
   BAREFOOT, J.

The defendant was charged in Seminole county with the crime of murder; was tried, convicted of manslaughter in the first degree, and his punishment assessed by the jury at ten years in the penitentiary, and has appealed.

This charge is based upon the fact that defendant, on the night of October 26, 1936, while under the influence of intoxicating liquor, and in the operation of his automobile, killed Hugh Reynolds, a special deputy sheriff, upon Highway No. 270, between Seminole and Shawnee, and in Seminole county.

The facts were that many people were returning from a football game, and an accident had occurred on the highway and two young students had been killed. The officers had been summoned to the scene, and several officers, including the deceased, Hugh Reynolds, were engaged in clearing the traffic, where the accident had occurred. Cars were lined up along the highway on both sides of the wrecked cars, for a distance of from 100 to 200 yards. The defendant, who was accompanied by a man by the name of Turner, was driving on said highway, with the intention of going to a nearby dance hall. Instead of lowering his speed defendant drove through the line of cars at a high rate of speed. Witnesses testified that he was going 35 to 40 miles per hour, and in disregard to the signals of the officers, and especially the deceased, who had a flashlight, and tried to signal him down. He struck the deceased and pinned him between defendant’s car and one of the wrecked cars. When told by the officers he had killed a man, defendant said: “To hell with him, I have got to get out of here,” and tried to start his car several times. Many witnesses testified that defendant was not only under the influence of intoxicating liquor, but that he was drunk and staggered when attempting to walk. He was finally taken to the police station, and officers, and also a physician, who was called to examine him, testified that he was not only under the influence of liquor, but was drunk, and they could detect it upon his breath.

Other witnesses, who had seen him a short while before the collision, testified to his being under the influence of liquor, and witnesses testified that shortly after the collision he stated that he had several drinks prior thereto. There was also found in his car, immediately after the collision, an empty whisky bottle from which could be detected the smell of whisky and also two empty soda pop bottles.

The defendant testified that he had not drunk any whisky; that he was not under the influence of intoxicating liquor; that he had only drunk one bottle of beer during the day; that he was driving only 25 miles an hour; that he did not see the lights, only the ones which blinded him, and that it was impossible for him to stop his car after he saw the danger. Other witnesses, testifying for defendant, testified that he was not under the influence of intoxicating liquor, in their opinion, at the times they saw him just before the collision. Others testified to his good character and reputation prior to the filing of this charge against him.

It is urged by defendant that this case should be reversed for the reason:

First. The court erred in failing to submit to the jury an instruction upon manslaughter in the second degree.

Second. Because of error in certain instructions given by the court.

With reference to the first assignment of error, no case is cited in defendant’s brief to support his contention. The record discloses that no instruction was prepared by counsel covering this proposition, and refused by the court, only a suggestion or request to the court that an instruction be given submitting to the jury manslaughter in the second degree. It will be noted that the information in this case charged the defendant with the crime of murder. It has often been held that this covers the lesser degrees of manslaughter in the first and second degrees. Philby v. State, 64 Okla. Cr. 1, 76 P. 2d 412, and cases reviewed therein.

The information further sets out in this case the manner of how the homicide was committed, viz., that while defendant was under the influence of intoxicating liquor and operating a certain motor vehicle upon the public highway, he drove the same upon the body of the deceased, and as the result of the wounds received deceased was killed.

The statutes of this state, Oklahoma Statutes 1931, § 10324, 47 Okla. St. Ann. § 93, provides:

“It shall be unlawful for any person who is under the influence of intoxicating liquor, or who is a habitual user of narcotic drugs, and the having on or about one’s person or in said vehicle of said intoxicating liquor is prima facie evidence of a violation of this act, to operate or drive a motor vehicle on any highway within this state, as defined in section 1, of this act, and any person violating the provisions of this section shall be deemed guilty of a felony and shall be punished by imprisonment in the penitentiary not more than one year, or by fine of not more than two thousand ($2,000.00) dollars, or by both imprisonment and fine.”

The statute defining murder, Oklahoma Statutes 1931, § 2216, 21 Okla. St. Ann. § 701, provides:

“Homicide is murder in the following cases.
“1. When perpetrated without authority of law, and with a premeditated design to effect the death of the person killed, or of any other human being.
“2. When perpetrated by any act imminently dangerous to others and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual.
“3. When perpetrated without any design to effect death by a person engaged in the commission of any felony.”

The statute defining manslaughter in the first degree, Oklahoma Statutes 1931, § 2223, 21 Okla. St. Ann. § 711, is as follows:

“Homicide is manslaughter in the first degree in the following cases:
“1. When perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor.
“2. When perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon; unless it is committed under such circumstances as constitute excusable or justifiable homicide.
“3. When perpetrated unnecessarily either while resisting an attempt by the person killed to commit a crime, or after such attempt shall have failed.”

It will be noted that the above statutes state that a killing of a person while engaged in the commission of a felony is murder, and while engaged in a misdemeanor is manslaughter in the first degree. The evidence in this case would have amply justified the jury in finding defendant guilty of murder under the above statute, but, as is often the case in the deliberation of juries, the defendant was given the benefit, and the jury only found him guilty of manslaughter in the first degree. It has often been held by this court that where a defendant is convicted of a lesser degree, the verdict will not be set aside because he should have been convicted of a higher degree. The error, if any, is to his benefit, and he therefore cannot complain. Berry v. State, 54 Okla. Cr. 154, 18 P. 2d 285; Philby v. State, 64 Okla. Cr. 1, 76 P. 2d 412. See, also, the following late cases of this court construing the principles of the statute quoted: Clark v. State, 63 Okla. Cr. 138, 73 P. 2d 481; Williams v. State, 63 Okla. Cr. 234, 74 P. 2d 632; Haithcock v. State, 63 Okla. Cr. 276, 74 P. 2d 641.

It has often been held by this court that it was the duty of the trial court to instruct on the law of manslaughter if there is any evidence that the alleged crime might have been done under circumstances that would reduce the crime from murder to manslaughter. Hopkins v. State, 4 Okla. Cr. 194, 108 P. 420, 111 P. 947; Ryan v. State, 8 Okla. Cr. 623, 129 P. 685. In the case of Updike v. State, 9 Okla. Cr. 124, 130 P. 1107, 1110, the court says:

“This makes it the duty of the trial court to give to the j ury such instructions as the court may think necessary for their information in giving their verdict. This vests the matter of the instructions to be given in the discretion of the trial court. It is true that this discretion is subject to review upon appeal, but it will not be disturbed unless the record presents a clear case of abuse of discretion. No conviction should be reversed for the failure of,the trial court to instruct upon any given issue, unless from the testimony in the case it appears that an honest and intelligent jury could legitimately arrive at a conclusion favorable to the defendant upon such issue. We fail to find any evidence in this record upon which an intelligent and honest jury could have convicted appellant of manslaughter in the second degree. The action of the trial court in giving the instruction complained of is therefore not error.”

As stated by the court in that case, there is nothing in the record in this case which required the court to instruct the jury upon manslaughter in the second degree. We do not think it would have been error for the court to have done so, but the verdict of the jury in this case reveals that had the court done so it would have had no effect upon the verdict for the reason that a punishment of ten years in the penitentiary was assessed by the jury. Under the law they had the right to have assessed a minimum penalty, upon conviction of manslaughter in the first degree, for a period of four years. Had they assessed this minimum punishment, the contention of defendant would be more tenable.

It has often been held by this court that it is unnecessary for the court, in a murder case, to give an instruction submitting the question of manslaughter in the first or second degree, where that issue is not raised by the evidence. Newby v. State, 17 Okla. Cr. 291, 188 P. 124; Collins v. State, 22 Okla. Cr. 203, 210 P. 285, 30 A. L. R. 811, and cases cited therein.

Defendant’s second assignment of error is that the court erred in giving to the jury instruction No. 8, which was as follows:

“Gentlemen of the jury, in this case the defendant has submitted testimony directed at proving his good reputation as a citizen of this county and state. Now in this connection you are instructed that such evidence of previous good character is competent in favor of the defendant to show that he would not be likely to commit the crime charged against him; but if from all the evidence the jury are satisfied beyond a reasonable doubt the guilt of the defendant then it is the jury’s duty to find the defendant guilty notwithstanding he has previously borne a good reputation as a quiet, peaceable, law-abiding and sober citizen. One always having lived an honest upright life and been a peaceable, sober and law-abiding citizen is not likely to commit a crime as if it were otherwise, and proof of good character may in many cases be sufficient to create a reasonable doubt of guilt although no such doubt could have existed except for such good character. But in this connection you are advised that evidence of good character can only be considered in connection with all the other evidence, facts and circumstances shown in the trial, and if, after considering all the evidence, including that of good character, the jury entertains no reasonable doubt of guilt they should convict, and that notwithstanding the evidence of former good character.”

It is contended that by this instruction the defendant was deprived of his right to have the jury “believe beyond a reasonable doubt,” that he was guilty before he could be convicted. We do not so interpret this instruction. Similar instructions have often been approved by this court, and by the Supreme Court of the United States. Hughes v. U. S., 5 Cir., 231 F. 50, certiorari denied, 242 U. S. 640, 37 S. Ct. 112, 61 L. Ed. 541; Morris v. Territory, 1 Okla. Cr. 617, 99 P. 760, 101 P. 111; Cannon v. Territory, 1 Okla. Cr. 600, 99 P. 622; Coleman v. State, 6 Okla. Cr. 252, 118 P. 594; White v. U. S., 164 U. S. 100, 17 S. Ct. 38, 41 L. Ed. 365; 10 A. L. R. 108 (Note) ; Wilson v. State, 3 Okla. Cr. 714, 109 P. 289.

The above instruction fully and fairly presented the question of defendant’s evidence of good character to the jury for their consideration, together with the other evidence in the case.

The facts in this case present a picture which, if it was possible, should be brought forcibly before every man, woman, and child in this state who drive an automobile. We see it enacted every day, though not with such fatal results as happened in this case. Only a few years ago a locomotive engine which runs only upon tracks was considered a dangerous instrumentality, and only those were permitted to operate it who were tested, skilled and experienced with its every part and mechanism. Today men, women and children, who not only have no experience, but without any examination as to their physical fitness or qualifications, are permitted to handle a deadly, dangerous, high-powered automobile upon the crowded streets and thoroughfares of this state. They are not only not operated in a careful, prudent manner, with due regard to the rights of others, but at least 10 per cent, of those who drive do so with utter disregard for the rights of the other fellow. They seem to have but one point of view, and that is they will run faster when you give them more gas, and they have but one desire, and that is to be ahead of the other fellow. This was the picture of the scene at the time of this homicide. In returning from a football game, by reason of fast and careless driving, a wreck had occurred upon the highway and two young students had been killed. Officers, in the discharge of their duty were seeking to clear the traffic. There was a blaze of light at least 200 yards on each side of where the cars had been wrecked, so that anyone in his right senses, and with any regard for the rights of the general public, could not help but know that the operation of his car through that line at an excessive rate of speed was dangerous and hazardous, not only to himself but to many others; but notwithstanding the fact that officers were standing in the line of traffic with flashlight in hand, giving signals to “stop, look, and listen”, the defendant not only under the influence of intoxicating liquor, but, according to the testimony of several witnesses, drunk, and staggering, plowed his way through the traffic at a rate of 35 or 40 miles per hour, grazing one officer as he passed, and hurling the deceased to his death. Not only did he not know what he had done, but when told, his remark was: “To hell with him, I have got to get out of here”. And his business which made it necessary for him “to get out of there” was that he was going to a dance hall about two miles away.

If it was not for the tragedy enacted, one might say that the one who is generally in the greatest hurry at the street intersections of the cities and towns of Oklahoma is generally going down town for a “coke”. Cases like this always have their sad surroundings, but the sadness comes too late. The defendant is a man 50 years of age. Luckily, he has no family. The deceased, whom he killed during the wild ride as related, was his personal friend. He had supported him for sheriff during the recent election in Seminole county. No doubt the jury took these facts into consideration and returned a verdict of guilty of manslaughter in the first degree, instead of murder, as the facts would have justified. Williams v. State, 63 Okla. Cr. 34, 74 P. 2d 632. Our only hope is that the tragedy of this case may set an example in Seminole county, and the other counties of this st%te, that the citizenship in general may know that this court stands ready to enforce the law against those who, while drunk, or under the influence of intoxicating liquor, so drive their automobiles in violation of the laws of this state, and especially when they kill, maim, or murder their fellowmen.

The judgment of the superior court of Seminole county is hereby affirmed.

DOYLE, P. J., and DAVENPORT, J., concur.


author: DOYLE, P. J.

text:
    DAVE WILLARD v. STATE.
    No. A-9535.
    June 30. 1939.
    (92 P. 2d 600.)

      Clay Snodgrass, of Altus, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam Lattimore, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

On information charging that in Greer county on the 13th day of October, 1937, Dave Willard did have in his possession 14 pints of whisky and 5 pints of gin, with the unlawful intent to sell the same, he was tried and convicted. Motion for new trial was duly filed and overruled on February 17, 1938; thereupon the court in accordance with the verdict of the jury sentenced the defendant to be confined in the county jail for 30 days and to pay a fine of $60.

From the judgment he appealed by filing in this court June 17, 1938, petition in error with case-made.

The only question presented on this appeal is as to whether or not the court erred in overruling the defendant’s motion to suppress the evidence.

When the case came on for trial, the defendant filed a motion to suppress the evidence on grounds which may be summarized as follows: That the evidence was illegally obtained by means of an unlawful search of defendant’s residence, in that the search warrant did not run “in the name of the State of Oklahoma”; that the search warrant was void, in that it authorized the search of more than one place, and “that the affidavit for the search warrant was not filed before the magistrate”; that said search was illegal and unreasonable under section 30 of art. 2 of the state Constitution, Okla. St. Ann.

In support of the motion to suppress, Herschal Ross, court clerk, testified that defendant’s Exhibit “A” was the affidavit for search warrant on which the information in this case was filed. Asked if it bears any filing marks, answered: “No.” Exhibit “A” admitted in evidence solely for the purpose of the motion to suppress. The caption is as follows:

“State of Oklahoma, County of Greer: ss.
“In The Justice Court in and for Mangum District, Greer County.”

The place to be searched is described in said affidavit as follows:

“That the North one half of Block twenty four Powers Second Addition to the City of Mangum, West of the Indian Meridian, in Greer County, Oklahoma, including the residence, barns, sheds, cribs, dug-outs and other out buildings on said lands.”

And further reciting:

“That the said Dave Willard willfully and unlawfully has said intoxicating liquors stored in his said residence and in the other said place for said unlawful purposes; That said residence and said premises are places of public resort.”

The witness handed defendant’s Exhibit “B,” stated that it was the search warrant on which the search and seizure was made, as charged in the information. Asked to state if it has any filing marks on it showing filing in the office of the court clerk, answered “No.”

The caption of the warrant, Exhibit “B,” is as follows:

“Before J. N. Caddel, Justice of the Peace, Mangum, Oklahoma. The State of Oklahoma v. Dave Willard. Search Warrant.” The warrant following the caption begins as follows: “The State of Oklahoma, to the sheriff, any deputy sheriff, constable or other peace officer of Greer County, State of Oklahoma, Greetings.”

Dave Willard, the defendant, in support of the motion to suppress, testified:

“I live at 1117 North Oklahoma Avenue, I occupy 50 feet North and South, and 100 feet west; Charley Warren lives west of the alley on the west side of that block.”

On cross-examination he stated that his house was the only house on the north half of block 24.

At the close of the hearing, the court made the following ruling:

“This court rules it is not necessary to file the affidavit for search warrant and the warrant in this court.
“The second ground to suppress evidence is that the defendant lives on the North 50 feet of the east half of block 24. The court knows and takes judicial knowledge of the public record that the alley mentioned separates two entirely different blocks, and that the property of Charley Warren across the alley is an entirely different block; therefore the court rules that the description of the land is sufficient. Motion to suppress overruled. Exceptions.”

The defendant’s first contention that the search warrant was fatally defective in that it did not run “In the name of the State of Oklahoma,” is in the face of the record destitute of merit. We deem it unnecessary to point out the difference between this warrant and other instruments involved in the decisions cited by counsel. The same are fully reviewed and distinguished in the opinion of this court in the case of Handley v. State, 65 Okla. Cr. 268, 85 P. 2d 436, holding that:

“A search warrant which reads ‘In the Name of the State of Oklahoma’ and which was in identical terms with the search warrant used in the statute, ran in the name of the state of Oklahoma as provided by statute and by the section of the Constitution providing that the style of all writs and processes shall be ‘The State of Oklahoma.’ Okla. St. Ann. Const, art. 7, § 19; 12 Okla. St. Ann. § 51; 22 Okla. St. Ann. § 1226.”

The defendant’s second contention, that the search warrant was void in that it authorizes a search of more than one place, is frivolous. There is nothing in the record to support this contention.

The defendant’s third contention, that as the affidavit for the search warrant shows upon its face that the same was never filed before' the magistrate the search warrant was void, is without merit. A paper is said to be filed when it is delivered to the proper officer, and by him received to be kept on file. 1 Littleton 113; 1 Hawk. Pl. Cr. 7, 207.

Since the word “file” means to deposit in a court or public office a paper or document, filing consists of delivery of the same to the proper officer for the purpose of being kept on file by him in a proper place.

In the sense of a statute requiring the filing of a paper or document, it is filed when delivered to and received by the proper officer to be kept on file. The word carries with it the idea of permanent preservation of the thing so delivered and received; that it may become a part of the public record. It is not synonymous with deposit. People v. Peck, 67 Hun, 560, 22 N. Y. S. 576.

It follows that the defendant was not prejudiced by failure to make the usual indorsement of “filed” and date of filing on the affidavit which was in fact filed and kept on file in the office of the justice of the peace, and the neglect or mistake of the magistrate to indorse the proper date of filing thereon does not affect the validity of the affidavit.

From an examination of the entire record, it appears that the defendant was accorded a fair and impartial trial. The evidence of guilt is conclusive and no material error is apparent. The judgment and sentence appealed from is, therefore, affirmed.

BAREFOOT and DAVENPORT,' JJ., concur.


text:
    DAVE WILLARD v. STATE.
    No. A-9536.
    June 30, 1939.
    (92 P. 2d 602.)
    Clay Snodgrass, of Altus, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam Lattimore, Ásst. Atty. Gen., for the State.
   DOYLE, P. J.

On information charging that in Greer county on the 27th day of January, 1938, Dave Willard did have in his possession eight pints of whisky with the unlawful intent to sell the same, he was tried and convicted. Motion for new trial was duly filed and overruled on February 17, 1938; thereupon the court, in accordance with the verdict of the jury, sentenced the defendant to be confined in the county jail fon 30 days and to pay a fine of $50 and the costs.

From the judgment he appealed by filing in this court on June 17, 1938, petition in error with case-made.

The assignments of error are that the court erred in overruling the defendant’s motion to suppress the evidence, and that the verdict is not supported by and is contrary to the law and the evidence.

The question presented on the first assignment is identical with the question decided in the case of Dave Willard v. State, 66 Okla. Cr. 344, 92 P. 2d 600, opinion this day handed down, holding adversely to the contention made.

The evidence shows that on the date alleged three officers went to the home of the defendant with a search warrant to look for intoxicating liquor. The warrant was served on the defendant. In making the search no liquor was found in the house of the defendant, but in their search of the premises they looked into a car, a Plymouth two-door sedan, parked about 15 feet back of the house, and saw some whisky bottles and a spade; the bottles were wrapped in paper sacks and the sacks had been torn from two or three of the bottles. The sacks were wet and muddy. The defendant was present when the officers seized the 8 pint bottles of whisky found in the car, and the same were identified and introduced in evidence on the trial of the case.

Each of the officers testified to their personal knowledge the defendant was the owner of the car in which the liquor was found.

At the close of the state’s evidence, the defendant interposed a demurrer thereto, on the ground that the same was obtained through an unlawful and unreasonable search of the defendant’s premises, and that the evidence was insufficient to support a conviction. The demurrer was overruled and exception allowed.

The defendant did not testify and no witness was called on the part of the defense.

Upon the record before us, it appears that the verdict of the jury is fully sustained by the evidence. The trial was in all respects fair, and we are unable, after careful examination, to find anything in the record to warrant us in interfering with the verdict and judgment of conviction.

The judgment appealed from is accordingly affirmed.

BAREFOOT and DAVENPORT, JJ., concur.


author: DAVENPORT, J.

text:
    J. C. LEE v. STATE.
    No. A-9448.
    June 30, 1939.
    (92 P. 2d 591.)

      Clyde G. Pitman and Randall Pitman, both of Shawnee, for plaintiff in error. ■
    Mac Q. Williamson, Atty. Gen., and Jess Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error was by indictment charged with the sale of intoxicating liquor, was tried, convicted, and sentenced to pay a fine of $50, and to be imprisoned in the county jail for 30 days. From the judgment and sentence, the defendant has appealed.

Fifteen errors have been assigned by the defendant as grounds for reversal of his case.

In his second assignment, the defendant avers that there was prejudicial error in the said record and proceedings in the following particulars, to wit:

“1. The court erred in overruling plaintiff in error’s affidavit and request for a change of judge and in refusing to certify his disqualifications in said cause, from which said ruling of the court plaintiff in error has suffered material prejudice.”

The second assignment, supra, is the only error it is deemed necessary to consider.

Before the case was called for trial, the defendant filed an application asking the county judge, the Honorable Thomas M. Stevens, to disqualify as the trial judge in this case, alleging in part as follows:

“That he is disqualified to act as the trial judge in the above styled and numbered cause, and respectfully requests this honorable court to certify his disqualification herein and for grounds of said application states

The defendant alleges that since about the 1st of January, 1933, the defendant’s attorney, Randall Pitman and Thomas M. Stevens have been associated together in the practice of law in the city of Shawnee; the said Randall Pitman being city attorney, and said Thomas M. Stevens being assistant city attorney; and that during the time herein mentioned and up until the 17th of June, 1937, Randall Pitman and Thomas M. Stevens officed together, used the same suite of offices, telephone number, and stenographer. The defendant further alleges that they were not full partners, but closely associated, and continually advised and counseled together in all matters of litigation handled by either party during said time. Defendant further states that during the month of April, 1937, he employed Clyde G. Pitman as his attorney in the above-styled and numbered case, and shortly thereafter said Clyde G. Pitman and the defendant, J. C. Lee, came to the office of Randall Pitman and Thomas M. Stevens, and employed Randall Pitman as additional counsel for the defendant; that Thomas M. Stevens was not connected with the matter as attorney for the defendant; but he entered into a full and complete discussion of the law involved in the matter and facts with Randall Pitman; and advised and counseled with him as to how the defense should be conducted; that the said Pitman and Stevens acted together; determined the law they deemed applicable to the facts in the case together; and the said Randall Pitman informed and disclosed to Stevens confidential information that he had received from his client, J. C. Lee; and that Thomas M. Stevens formed and expressed an opinion as to the guilt or innocence of the said defendant, Lee, and the charge involved in the action.

The defendant alleges that the said Thomas M. Stevens, now county judge of Pottawatomie county, Okla., is biased and prejudiced in his case, and is disqualified to act as a fair and impartial judge herein, and should certify his disqualification.

The defendant in this case further asks that, in the event the said Thomas M. Stevens does not certify his disqualification, the defendant be given 48 hours in which to apply to the Criminal Court of Appeals of this state for a writ of mandamus compelling the disqualification of said judge, and requests that said cause be continued for 48 hours that he may have an opportunity to file said action for writ of mandamus in the Criminal Court of Appeals.

No response or denial was made by Judge Thomas M. Stevens to the allegations in the application asking him to disqualify; nor did the state offer anything to contradict the sworn statements of the defendant’s petition.

The application of the defendant asking the judge to disqualify was immediately overruled, and also his request for time to present a petition to the Criminal Court of Appeals was denied.

The court then overruled a motion of the defendant to quash the indictment or information, and ordered the trial to proceed.

The failure of the trial judge, Thomas M. Stevens, to make a response to the motion of the defendant leaves the application undisputed and undenied by the trial judge, Thomas M. Stevens. The defendant bases his contention that the judge should be disqualified upon the provision of the Bill of Rights:

“The courts of justice of the state shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice.” Const. art. 2, sec. 6, Okla. St. Ann.

By the provisions of the Constitution quoted, the people have prohibited a judge from trying a case in which he is prejudiced favorably to one of the parties or against another. The procedure prescribed by our statutes, where a judge refuses to admit his disqualification in a criminal case, is as follows:

“Any party to any cause pending in a court of record may in term time or in vacation file a written application with the clerk of the court, setting forth the grounds or facts upon which the claim is made that the judge is disqualified, and request said judge so to certify, after reasonable notice to the other side, same to be presented to such judge, and upon his failure so to do within three days before said cause is set for trial, application may be made to the proper tribunal for mandamus requiring him so to do.” Section 2915, O. S. 1931, 22 Okla. St. Ann. § 575.

When the application is presented as provided by our statutes, if the judge concedes that he is disqualified, he certifies the disqualification as requested. If he refuses to admit his disqualification or fails to make the certificate, the defendant may file a petition for a writ of mandamus to require him to disqualify. The question of his disqualification will then be determined by this court on the petition, the response thereto, and the proof.

When the application is filed, it should state the facts upon which he claims the judge is prejudiced, and must set them forth in the original application, so that the judge may know upon what the claim is based. McCullough v. Davis, District Judge, 11 Okla. Cr. 431, 147 P. 779; Whitfield v. Walden, District Judge, 31 Okla. Cr. 332, 239 P. 266.

As was said in Ex parte Owens, 37 Okla. Cr. 118, 258 P. 758, 803:

“Under the declaration of article 2, § 6, Bill of Rights, that ‘Right and justice shall be administered without sale, denial, delay, or prejudice,’ as well as by the unwritten dictates of natural justice, the courts of this state are commanded to administer justice without prejudice.”

In the case of State ex rel. Conley et al. v. Parks, 32 Okla. Cr. 61, 239 P. 941, 942, it is said:

“Prejudice is a state of mind which is ordinarily not capable of being proven by direct and positive evidence. It can generally be proven only by the circumstances, environment, association, relationship, and conduct of the person who entertains it. It is often not known to be held by the person entertaining such prejudice; that is to say, one may have a prejudiced state of mind upon a subject, against an idea, cause or person, and be wholly unconscious that he had any prejudice. In fact, upon casual thought, we are aware that many persons are prejudiced upon public questions, in matters of politics or religion, or on many other subjects, and by reason of such prejudice incapable of giving a dispassionate consideration to such question, and at the same time be totally unconscious that he is prejudiced, and would be quick to repudiate a suggestion that his state of mind is other than fair and open.”

The constitutional provisions which guarantee to every person charged with crime a trial without prejudice as relates to the presiding judge, do not include the opinion of the judge as to guilt or innocence of the defendant.

The provisions contemplated mean the presence of such a state of mind or feeling as might prevent him from giving the defendant a fair trial.

Our courts should maintain the right of every litigant to an impartial and disinterested tribunal for the determination of his rights. All are. interested in the integrity, independence, and impartiality of the judiciary, the most important and powerful branch of our government.

Judges presiding over the courts should be unbiased, impartial, and disinterested in the subject matter in litigation, and it is of the utmost importance that all doubt and suspicion to the contrary be jealously guarded against, and if possible completely eliminated, to the end that we maintain and give full force and effect to the high ideals and salutary safeguards written in the organic law of the state. State ex rel. Mayo v. Pitchford, District Judge, 43 Okla. 105, 141 P. 433; Robertson v. Bozarth, Judge, 87 Okla. 102, 209 P. 742.

It is important that the laws should be enforced, and violations thereof punished; but it is still more important that, as far as possible, every person accused of an offense should have a trial before a fair and impartial judge. Fisk v. Venable, Judge, 61 Okla. Cr. 360, 68 P. 2d 425.

The question here submitted and discussed for our consideration is not whether the petitioner is guilty or innocent of the offense charged. Petitioner may be guilty, but this does not furnish an excuse for the refusal of the respondent to vacate the bench.

After careful examination of the application of the defendant, and the failure of the trial judge, Thomas M. Stevens, to file any response or to deny the allegations, it is our opinion that, upon the undisputed facts, the application for a change of judge in the petitioner’s case on account of the prejudice of the judge should have been granted.

For the reasons herein stated, this case is reversed and remanded to the trial court, with directions to Thomas M. Stevens, trial judge, to certify his disqualification.

DOYLE, P. J., and BAREFOOT, J., concur.


author: DAVENPORT, J. BAREFOOT, J.

text:
    H. P. MORRIS v. STATE.
    No. A-9528.
    June 30, 1939.
    (92 P. 2d 603.)
    For former opinion, see 65 Okla. Cr. 220, 90 P. 2d 452.
    Person E. Woodall and Justin Hinshaw, both of Norman, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   DAVENPORT, J.

The petition of the defendant for rehearing is sustained, and the law and facts reconsidered.

The record in this case discloses that it was filed in this court on May 31, 1938; that the case was submitted on the record September 25, 1938; the case was considered by this court; and it was found that no briefs had been filed in support of the plaintiff in error’s assignments.

Where no briefs are filed in support of assignments of error of the plaintiff in error on appeal, the court assumes that the appeal has been abandoned or the counsel representing the plaintiff in error has reached the conclusion that there are no errors in the record sufficient to warrant a reversal.

After the opinion was filed, counsel for the defendant H. P. Morris filed a petition for rehearing, and a brief in support of the same.

The facts in this case are very brief:

On the 5th day of November, 1937, the defendant was in the city of Norman.

H. L. Sanderson, in substance, testified that on the date mentioned someone gave him information that there was a whisky peddler in town; that he started out to see if he could find him, and finally saw a man go into a place of business with a bundle under his arm; that he later contacted another city officer by the name of Joe Starzer, and told him what he had heard. They started out to find the whisky peddler.

Sanderson further states that he was walking up the street, and that he saw a man sitting in a car at the curb, reading a paper. He went and beckoned to Starzer, and called him out, and said, “There is a man sitting up there in that car.” They walked up to the car. Sanderson, going to the part nearest the driver’s seat, looked in the car, but could not see anything until he opened the door and pulled an overcoat to one side, which afterwards developed that it was spread over some whisky in the car. He did not see this until after he had gone to the car, and talked to the man sitting in the car; and further states that he did not see any whisky or anything but the overcoat in the car, until he moved the overcoat.

The testimony shows that this was a Tudor Chevrolet car. The testimony further shows that the whisky was on the floor of the car in the rear of the front seat.

Starzer says that when he stepped off the sidewalk and started toward the car, he saw the neck of a bottle of whisky sticking out, which was on the floor of the car in the rear of the front seat.

Neither of the officers had a search warrant for the defendant; nor had either of them a warrant for his arrest.

When they started out to look for the man supposed to have whisky, they did not know whom they were searching for. When they saw the defendant sitting in his car reading a newspaper, he was not disturbing the peace or any one in the city of Norman, but quietly sitting there in the car.

The foregoing is the substance of all the testimony it is deemed necessary to recite.

Seven errors have been assigned by the defendant.

The first and second assignments raise the question as to whether or not the court erred in admitting the state’s testimony over the objections of the defendant, and refused to suppress the evidence of the state, secured without a search warrant to search the car of the defendant, or without a warrant for his arrest.

The testimony discloses the car in which the defendant was sitting at the time his car was searched was a Tudor Chevrolet car. To see anything from the front of the car in the rear of the front seat, it is necessary to open the door of the car and look over the back of the front seat. It is not probable that any one on the outside of the car could look in and see a small package of any kind on the floor of the car in the rear of the front seat. The officers had no authority to put the defendant under arrest, or to search his car at this time, and no offense, as shown by the testimony in' this case, was being committed by the defendant in the presence of the officers.

He was quietly sitting in his car on the street; and they went out for the purpose of finding somebody that was thought to be a whisky peddler, without any description of the man or without any warrant of arrest or justification.

In Whitford v. State, 35 Okla. Cr. 22, 247 P. 424, the court in the first paragraph of the syllabus stated:

“Where the offense is not a felony, an officer cannot arrest without a warrant, unless the offense was committed or attempted in his presence.”

In the second paragraph of the syllabus the court stated:

“Where the officer does not know of the act constituting the offense, it is not committed in his ‘presence.’ ” Wallace v. State, 49 Okla. Cr. 281, 294 P. 198, and authorities therein cited.

The Attorney General has presented an argument insisting that the petition filed for rehearing in this case should be denied, and cites in support of his argument Boardwine v. State, 64 Okla. Cr. 49, 76 P. 2d 1081. We have examined the authority and find that it is good law, but that it does not fit the facts in the case being considered.

Bayne v. State, 42 Okla. Cr. 152, 274 P. 1095, cited by the Attorney General, is also a case in which this court properly held the search valid for the reason the facts showed that in entering the premises the officers could smell the mash cooking, and from their sense of smell could tell it was whisky mash.

The authorities cited by the state in support of the conviction of the defendant have been carefully read and studied. We hold that they are not germane to the issue in this case, and that the search in this case was an unlawful search and seizure. There being no evidence, other than that procured by the unlawful search by the officers without a search warrant to search the defendant’s car, and without a warrant for his arrest, his arrest and the search of his car was unlawful.

The motion to suppress was properly taken and should have been sustained. There being no competent testimony to sustain the conviction, the judgment of the trial court is reversed, with directions to dismiss the case, unless the county attorney has other competent evidence to present to the court.

DOYLE, P. J., concurs. BAREFOOT, J., dissents.

BAREFOOT, J.

(dissenting). It is not often that the views of the members of this court are not unanimous. I cannot concur altogether with the views expressed in the foregoing opinion, and for that reason I am compelled to express my views herein. Knowing that this question will come before this court for consideration many times, I desire, in a few words, to express my views thereon. In the first place, the members of this court are in perfect accord on practically all aspects of the “search and seizure law.” That this law should be strictly construed, and that officers of the law should not be permitted, by reason of their official capacity, to invade the private rights of citizens of this state in the protection of their homes, automobiles, and places of business. The officer, for his own protection, and the protection of the rights of the citizens, should, before attempting to search these premises, secure a search warrant and return the same in the manner provided by law. Grimes v. State, 65 Okla. Cr. 99, 83 P. 2d 410; McHenry v. State, 61 Okla. Cr. 450, 69 P. 2d 90; Denton v. State, 62 Okla. Cr. 8, 70 P. 2d 135.

In the case under consideration, the officers of the law could have, with very little inconvenience to themselves, secured a search warrant before searching defendant’s automobile, and this question would not have been presented to this court. Officers, which includes the judges, county-attorneys, and police officers, should have no desire, in their zeal to enforce the law, but to do so in a manner that the constitutional and statutory rights of the citizens of this state be properly protected. There should be, and I am sure is, a desire on their part to want to protect those fundamental rights. In writing a decision construing the law, it should and ought to be the aim of the judiciary to protect the rights of the humblest citizen as well as those who sit in the seats of the mighty, and while it is well recognized that the search and seizure laws of this state should receive a strict construction, I do not believe they should receive a technical construction which would deprive an honest, faithful, energetic officer of an opportunity to enforce the law against those who seek by ingenious means to violate the same, thus permitting those who violate the law to escape punishment through a technical construction.

This court has, by its previous decisions in many opinions, followed the general rules of law in making several important exceptions to the general rule as to the necessity of securing a search warrant, and permitting an officer to search without one. Among those well defined exceptions are:

1. When a crime is committed in the presence of an officer, even though it be a misdemeanor.

2. Where one is lawfully arrested, the officer may search such person, and seize anything found upon him, or in his immediate control, the possession of which is unlawful.

To justify the search of a person and immediate surroundings of the person arrested, the arrest must be done in good faith and not as an excuse or subterfuge for search otherwise unlawful.

A quotation from the case of Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 282, 69 L. Ed. 543, 39 A.L.R. 790, to which reference will hereafter be made, is stated:

“In the passage of the supplemental act through the Senate Amendment No. 32, known as the Stanley Amendment, was adopted, the relevant part of which was as follows:
*****
“This amendment was objected to in the House, and the judiciary committee, to whom it was referred, reported to the House of Representatives the following as a substitute :
*****
“In its report the committee spoke in part as follows:
“ ‘It appeared to the committee that the effect of the Senate amendment No. 32, if agreed to by the House, would greatly cripple the enforcement of the National Prohibition Act and would otherwise seriously interfere with the government in the enforcement of many other laws, as its scope is not limited to the prohibition law, but applies equally to all laws where prompt action is necessary. There are on the statute books of the United States a number of laws authorizing search without a search warrant. Under the common law and agreeable to the Constitution search may, in many cases, be legally made without a warrant. The Constitution does not forbid search, as sóme parties contend, but it does forbid unreasonable search. This provision in regard to search is as a rule contained in the various state Constitutions, but notwithstanding that fact search without a warrant is permitted in many cases, and especially is that true in the enforcement of liquor legislation.
“ ‘The Senate amendment prohibits all search or attempt to search any property or premises without a search warrant. The effect of that would necessarily be to prohibit all search, as no search can take place if it is not on some property or premises.
“ ‘Not only does this amendment prohibit search of any lands, but it prohibits the search of all property. It will prevent the search of the common bootlegger and his stock in trade, though caught and arrested in the act of violating the law. But what is perhaps more serious, it will make it impossible to stop the rum-running automobiles engaged in like illegal traffic. It would take from the officers the power that they absolutely must have to be of any service, for if they cannot search for liquor without a warrant they might as well be discharged. It is impossible to get a warrant to stop an automobile. Before a warrant could be secured the automobile would be beyond the reach of the officer with its load of illegal liquor disposed of.’ ”

As I read the record in the instant case, two police officers of the city of Norman had certain information that a bootlegger was in town. Certain conversations had between them when the defendant was not present were permitted to be introduced. I do not think this evidence was admissible. There is some doubt as to its being sufficiently prejudicial to reverse this case. One of the officers had seen the defendant carrying a package under his arm which the circumstances showed he believed to be a package of whisky. Afterwards the defendant was seen by one of the officers sitting in his automobile on the main street of Norman, reading a newspaper. The two officers approached defendant on opposite sides of the car. One of the officers was the chief of police, who engaged the defendant in conversation. The other officer, a patrolman, looked through the glass window of the automobile and saw the neck of a bottle of whisky. The bottle was partly covered with an overcoat. He opened the car door and found two packages, one containing five pints, the other six pints of whisky. He immediately arrested the defendant and he and the liquor were turned over to the sheriff of Cleveland county. The same was present and offered in evidence in the case. The evidence of the chief of police was to the effect that he did not see the liquor. The other officer testified positively that he saw the liquor, and knew it was liquor, before he opened the door and made the arrest. There was some evidence offered at the trial that the officer who claimed to have seen the whisky and made the arrest of defendant, at some time prior to the trial, had made an affidavit that he did not see the whisky before making the arrest. This was denied by the officer. The affidavit was not produced at the trial, defendant claiming that it has been destroyed, and the officer that he did not make it. It is unimportant as to the issues involved in this court.

The evidence also disclosed that defendant had made certain statements at the time of his arrest in which he claimed he had purchased protection, and had paid somebody $200 for same. These matters were for the proper consideration of the jury but can not affect the decision here. The jury, under proper instructions of the court, convicted defendant and assessed his punishment at a fine of $100 and 30 days in jail.

My view of the law as applied to the facts in this case is that under the evidence and circumstances here shown the officers had the right to seize the liquor and arrest the defendant without the necessity of having a search warrant. As previously stated, and I now wish to reiterate that, I think it is the best practice for the officer to secure a search warrant where it is possible to do so, even though there be circumstances which give him the right to search without the necessity of securing the same. This for his own protection and for the protection of the defendant; but, as stated under the facts and circumstances of this case, I do not consider it was necessary. Under the facts the question of whether the liquor was seen by the officer prior to the seizure and arrest of defendant was a question of fact for the consideration of the jury, under proper instructions of the court. I do not intend to say that officers should be permitted to search the automobiles of persons without a search warrant unless there are facts and circumstances which justify this right, as herein indicated, but when these facts and circumstances are such that justify, he is certainly justified in taking this step. This is in conformity with the decisions of this court and the courts of other states and the nation. Boardwine v. State, 64 Okla. Cr. 49, 76 P. 2d 1081; McAfee v. State, 65 Okla. Cr. 65, 82 P. 2d 1006; Skinner v. State, 44 Okla. Cr. 271, 280 P. 851; Ott v. State, 65 Okla. Cr. 317, 86 P. 2d 341; Spikes v. State, 65 Okla. Cr. 254, 85 P. 2d 327; Smith v. State, 52 Okla. Cr. 315, 4 P. 2d 1076; Wallace v. State, 49 Okla. Cr. 281, 294 P. 198; Gambill v. State, 45 Okla. Cr. 281, 283 P. 262; Washington v. State, 37 Okla. Cr. 415, 259 P. 150; Callahan v. State, 42 Okla. Cr. 425, 276 P. 494; Dean v. State, 63 Okla. Cr. 385, 75 P. 2d 900; Miles v. State, 31 Okla. Cr. 4, 236 P. 907; McBride v. United States, 5 Cir., 284 F. 416; United States v. Sebo, 7 Cir., 101 F. 2d 889; Scherie v. United States, 305 U. S. 251, 59 S. Ct. 174, 83 L. Ed. _; Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A.L.R. 790.

In the Carroll Case, it is said:

“We here find the line of distinction between legal and illegal seizures of liquor in transport in vehicles. It is certainly a reasonable distinction. It gives the owner of an automobile or other vehicle seized under section 26, in absence of probable cause, a right to have restored to him the automobile, it protects him under the Weeks [Weeks v. U. S., 232 U. S. 383, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177] and Amos [Amos v. United States, 255 U. S. 313, 41 S. Ct. 266, 65 L. Ed. 654] Cases from use of the liquor as evidence against him, and it subjects the officer making the seizures to damages. On the other hand, in a case showing probable cause, the government and its officials are given the opportunity which they should have, to make the investigation necessary to trace reasonably suspected contraband goods and to seize them.
“Such a rule fulfills the guaranty of the . Fourth Amendment. In cases where the securing of a warrant is reasonably practicable, it must be used and when properly supported by affidavit and issued after judicial approval protects the seizing officer against a suit for damages. In cases where seizure is impossible except without warrant, the seizing officer acts unlawfully and at his peril unless he can show the court probable cause. United States v. Kaplan (D. C.) 286 F. 963, 972.
“But we are pressed with the argument that if the search of the automobile discloses the presence of liquor and leads under the statute to the arrest of the person in charge of the automobile, the right of seizure should be limited by the common-law rule as to the circumstances justifying an arrest without a warrant for a misdemeanor. The usual rule is that a police officer may arrest without warrant one believed by the officer upon reasonable cause to have been guilty of a felony, and that he may only arrest without a warrant one guilty of a misdemeanor if committed in his presence. Kurtz v. Moffitt, 115 U. S. 487, 6 S. Ct. 148, 29 L. Ed. 458; Bad Elk v. United States, 177 U. S. 529, 20 S. Ct. 729, 44 L. Ed. 874. The rule is sometimes expressed as follows:
“ ‘In cases of misdemeanor, a peace officer like a private person has at common law no power of arresting without a warrant except when a breach of the peace has been committed in his presence or there is reasonable ground for supposing that a breach of peace is about to be committed or renewed in his presence.’ Halsbury’s Laws of England, vol. 9, part. 111, 612.
“The reason for arrest for misdemeanors without warrant at common law was promptly to suppress breaches of the peace (1 Stephen, History of Criminal Law, 193), while the reason for arrest without warrant on a reliable report of a felony was because the public safety and the due apprehension of criminals charged with heinous offenses required that such arrests should be made at once without warrant. Rohan v. Sawin, 5 Cush. (Mass.) 281. The argument for defendants is that, as the misdemeanor to justify arrest without warrant must be committed in the presence of the police officer, the offense is not committed in his presence unless he can by his senses detect that the liquor is being transported, no matter how reliable his previous information by which he can identify the automobile as loaded with it. Elrod v. Moss [4 Cir.] 278 F. 123; Hughes v. State, 145 Tenn. 544, 238 S. W. 588, 20 A. L. R. 639.
“So it is that under the rule contended for by defendants, the liquor, if carried by one who has been already twice convicted of the same offense, may be seized on information other than the senses; while if he has been only once convicted it may not be seized unless the presence of the liquor is detected by the senses as the automobile concealing it rushes by. This is certainly a very unsatisfactory line of difference when the main object of the section is to forfeit and suppress the liquor, the arrest of the individual being only incidental as shown by the lightness of the penalty. See Com. v. Street, 3 Pa. Dist. & Co. R. 783. In England at the common law the difference in punishment between felonies and misdemeanors was very great. Under our present Federal statutes, it is much less important and Congress may exercise a relatively wide discretion in classing particular offenses as felonies or misdemeanors. As the main purpose of section 26 was seizure and forfeiture, it is not so much the owner as the property that offends. Agnew v. Haymes [4 Cir.] 141 F. 631, 641, 72 C. C. A. 325. The language of the section provides for seizure when the officer of the law 'discovers’ anyone in the act of transporting the liquor by automobile or other vehicle. Certainly it is a very narrow and technical construction of this word which would limit it to what the officer sees, hears or smells as the automobile rolls by and exclude therefrom when he identifies the car the convincing information that he may previously have received as to the use being made of it.
“We do not think such a nice distinction is applicable in the present case. When a man is legally arrested for an offense, whatever is found upon his person or in his control which it is unlawful for him to have and which may be used to prove the offense may be seized and held as evidence in the prosecution. Weeks v. United States, 34 S. Ct. 341, 232 U. S. 383, 392, 58 L. Ed. 652 [655], L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Dillon v. O’Brien, 16 Cox, C. C. 245; [20 L. R. Ir. 300, 7 Am. Crim. Rep. 66]; Getchell v. Page, 103 Me. 387, 69 A. 624, 18 L. R. A., N. S., 253, 125 Am. St. Rep. 307; Kneeland v. Connally, 70 Ga. 424; 1 Bishop, Criminal Procedure, § 211; 1 Wharton, Criminal Procedure, 10th Ed., § 97. The argument of defendants is based on the theory that the seizure in this case can only be thus justified. If their theory were sound, their conclusion would be. The validity of the seizure then would turn wholly ori the validity of the arrest without a seizure. But the theory is unsound. The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law. The seizure in such a proceeding comes before the arrest as section 26 indicates. It is true that section 26, title 2, provides for immediate proceedings against the person arrested and that upon conviction the liquor is to be destroyed and the automobile or other vehicle is to be sold, with the saving of the interest of a lienor who does not know of its unlawful use; but it is evident that if the person arrested is ignorant of the contents of the vehicle, or if he escapes, proceedings can be had against the liquor for destruction or other disposition under section 25 of the same title. The character of the offense for which, after the contraband liquor is found and seized, the driver can be prosecuted does not affect the validity of the seizure.
“This conclusion is in keeping with the requirements of the Fourth Amendment and the principles of search and seizure of contraband forfeitable property; and it is a wise one because it leaves the rule one which is easily applied and understood and is uniform. Houck v. State, 106 Ohio St. 195, 140 N. E. 112, accords with this conclusion. Ash v. United States [4 Cir.], 299 F. 277, and Milam v. United States [4 Cir.], 296 F. 629, decisions by the Circuit Court of Appeals for the Fourth Circuit take the same view. The Ash Case is very similar in its facts to the case at bar, and both were by the same court which decided Snyder v. United States [4 Cir.], 285 F. 1, cited for the defendants. See, also, Park v. United States (1st C. C. A.) 294 F. 776, 783, and Lambert v. United States (9th C. C. A.) 282 F. 413.”

The court further said:

“In the light of these authorities, and what is shown by this record, it is clear the officers here had justification for the search and seizure. This is to say that the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient in themselves to warrant a man of reasonable caution in the belief that intoxicating liquor was being transported in the automobile which they stopped and searched.”

In this case the opinion of Chief Justice Taft expresses the opinion and cites the authorities supporting the contention of the right to search automobiles under certain circumstances without the necessity of securing a search warrant. Justice McReynolds, in a dissenting opinion, expresses the thought of the opposition, and cites the authorities sustaining his position. My views are in accord with the expression of Chief Justice Taft in the Carroll Case, and the opinions expressed in the other cases above cited, and the opinions to which reference is made in those cases.


author: BAREFOOT, J. BAREFOOT, J.

text:
    ROBERT ROBERTS v. STATE.
    No. A-9541.
    April 21, 1939.
    Rehearing Denied June 30, 1939.
    (89 P. 2d 879; 92 P. 2d 612.)

      Smith & Siler, of Oklahoma City, and Frank Hickman, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., of Tulsa, for the State.
   BAREFOOT, J.

Defendant was jointly charged with Morris Symonds and Roy Rankin, with the crime of “directing a riot,” in Tulsa county, on July 9, 1937; was granted a severance, tried, convicted, and sentenced to serve a term of five years in the penitentiary, and has appealed.

This is a companion case of Morris Symonds v. State, 66 Okla. Cr. 49, 89 P. 2d 970, this day decided by this court. In the opinion in that case the facts here involved are fully presented. The errors assigned are practically the same and it therefore becomes unnecessary to review them.

The evidence which connected defendant with the riot in Tulsa on the night of July 9, 1937, was as follows:

Y. T. Campbell testified that he was a motorcycle officer in the city of Tulsa. That on the night of the riot he saw defendant at Chapman’s grocery store while the riot was in progress, but did not see him take any active part therein.

J. L. Burkhead testified that he was employed as a special officer at the Ketchum Hotel. That he saw defendant there at the time of the riot. He testified as follows:

“Q. Tell what happened and what was said, in regard to your gun, please, sir? A. Well, Roberts just asked me to surrender my gun — wanted to take it, and I says, ‘No, that gun don’t leave my holster, only in case of necessity’. I says, ‘It will be all right just like it is’, and, I says, ‘As far as that gun is concerned, there will be no gun play around here.’ Q. You kept the gun? A. Yes, sir. Q. What was the next thing you saw Roberts do? A. He left me and went towards the entrance of the stairway, leading upstairs. Q. The stairway leading upstairs? A. Yes, sir. Q. You don’t know whether he went upstairs, or not? A. No, sir, I don’t. There were too many people around.”

Henry Ketchum testified he was the owner of the Ketchum Hotel.

As to the conduct of defendant, he said:

“Q. What did you see and hear ? A. I was on the fourth floor, and on coming down, I heard a lot of voices and it sounded like as a crowd, and I came down the stairs, to investigate, and when I got on the second floor, I should say there was about 50 or 75 men in the hotel. I stood there and watched them coming up until they got up — about 250 men. I knew they were having labor trouble, yet I did not know whether these men were craftsmen — I did not know who they were. I thought, maybe they were there to chari-vari a bridal couple, and I stood amongst them, and finally Mr. Roberts appeared on the scene, and in the middle of the mezzanine floor, there was a lot of lumber being used— Q. Was that on the mezzanine floor? A. Yes, sir, mezzanine floor — second floor, and this lumber was used by the Long-Bell Lumber Company in putting in our ducts for the air conditioning system. Q. You were installing it, at that time? A. Yes, sir, the Long-Bell Lumber Company was under contract— Q. All right. A. —and Mr. Roberts, when he came up there, this lumber was covered with canvas, and he throwed the canvas back and gave them some sticks about lxl, and he was passing them out to the crowd. I was about 50 feet away and could not hear what he said, but he began giving these sticks — gave them to the men pointing to the celotex duct, and these men grabbed these sticks and began punching out all these holes, and I then called the police station, and by the time I got through calling them, they had proceeded up to the second, third, fourth, fifth, sixth and seventh floor punching out every piece of duct work in the building.”

Roy Hyatt, chief of police of Tulsa, testified he was present when the Jones grocery store was torn up. With reference to defendant, he said:

“Q. Do you know Robert Roberts, the defendant in this case? A. Yes, sir. Q. Did you see him there at Jones’ place that night? A. I did. Q. Did you have any conversation with him there that night? A. I did. Q. State to the court and jury what the conversation was, as nearly as you remember it, at this time ? A. I talked with Bob with reference to the actions that had gone on — told him and some of the others that were there that they were absolutely not going to tear up this man’s property. I said, ‘Now, you have done enough damage in Tulsa and we, as officers, are not going to stand for any more of this destruction of property.’ At that time, Bob said, ‘That is right,’ and there were some other boys there, and Bob says, ‘Boys, we have put enough heat on Roy tonight,’ and, he said, ‘Roy, will you take your men and leave, if we leave?’ Q. Who said that? A. Bob Roberts. Q. All right. A. And he said, ‘all right,’ and he said, ‘Boys, we will go to Newblock Park and disperse,’ and they left, at that time, and I took my boys and came back to town.”

On cross-examination, he testified as follows:

“Q. Did Bob say this, or this in substance to you: That if you would get your men to leave, he could, probably, get his men to leave, without any trouble? A. No. He says to me, ‘Will you take your men and leave, if I take mine and leave? Q. After he talked to you, he had to go back in the middle of this mob, didn’t he? A. Yes, sir. Q. And talk to the men in there? A. Yes, sir. Q. Then, they left, after that? A. Yes. Q. They didn’t leave, until after that time? A. No; they didn’t leave until after he had talked to these other men.”

Ralph Hyde, a police officer, testified as follows:

“Q. Do you know Bob Roberts, the defendant in this case, when you see him? A. Yes, sir. Q. Did you see him out there at Chapman’s store that night? A. I did. Q. Just what was he doing, as far as you know, out there that night? A. When the difficulty first started, they were on the east end of the store, and we got them to quit throwing, and Roberts and another fellow went to the west end of the store and started it all over again. Q. Started what? A. Throwing rocks and bottles through the glass. Q. Was there glass windows there? A. Yes, sir. Q. And they got to throwing rocks and bottles through these windows? A. Yes, sir. Q. Did you see any others there that you know? A. No, sir.”

Morris Symonds, a joint defendant, testified he saw defendant at the Ketchum Hotel at the time the riot was in progress.

Defendant, testifying in his own behalf, said: That he had lived in Tulsa since 1912. That he was a moving picture machine operator. That on the night of July 9, 1937, someone, whom he did not know, called him over the phone, asking him to come to a meeting at the courthouse, “that there was a bunch of men that was in a little bit of a bad humor.” That he got someone to relieve him about 8:30, and he started to the courthouse, and in passing the Ketchum hotel, he saw a crowd of about 250 men there. That he went inside of the hotel and talked to the state’s witness Jim Burkhead. He said:

“Q. Just tell the jury and court the substance of the conversation you had with Jim Burkhead? A. I thought, possibly, he was going to try to force these men out with his gun, in as much as he was an officer, and I advised him to stand there and be quiet and not make any attempt to use a gun in any way, and I would see if I could get the men to leave,”

He further testified that he went to the second floor where damage was being done by the men, and tried to get them to quit. He denied handing any of them anything, or directing them, as testified by the state’s witness, Ketch-urn. He testified further that he did not go to the Long Bell Lumber Company, Chapman’s store, or the Roxie Theatre, but that he did go to Jones’ Grocery, and that he saw Roy Hyatt, chief of police, and had a conversation with him, as follows:

“Q. Tell the jury what you told Roy? A. I told Roy it would be hard for me to get the men away as long as the policemen were there, but if he would take his men and leave, I felt sure I could talk to these men and get them to leave, which they did. Q. Did you know the fellows in that gang? A. No, sir. Q. What did you have to do, after you had the conversation with Roy? A. Just talked to them and explained that ‘you boys have done enough damage — let’s go on and leave — let’s forget the matter and leave,’ and they did.”

He further testified that he did not personally know any of the persons who were engaged in the riot.

From the above statement of the testimony, it will be seen there is a direct conflict between the evidence of the state and the defendant. As stated in the Symonds Case, this was a question for the jury to pass upon, and they did so and returned a verdict of guilty. Under the law, this court would not be justified in setting aside that verdict on the grounds it was insufficient. The jury did not believe defendant’s testimony. If they had they would have acquitted him.

The legal questions raised in defendant’s brief are practically the same as raised in the Symonds Case. We have carefully re-examined the authorities cited in defendant’s brief, and we do not find any error which would justify a reversal of this case.

As to the judgment and sentence we are of the opinion that the same should be modified as in the Symonds Case, and it is therefore ordered that the judgment and sentence in this case be modified from a term of five, years in the penitentiary, to a term of two years, and as thus modified the judgment of the district court of Tulsa county is affirmed.

DOYLE, P. J., and DAVENPORT, J., concur.

On Motion for Rehearing. Motion Overruled.

BAREFOOT, J.

Counsel for defendant, at the time of oral argument on rehearing, and in his brief, contends that in the original opinion the specification of errors complained of in this case were not properly considered, and that they were different from the errors presented in the Symonds Case, Symonds v. State, 66 Okla. Cr. 49, 89 P. 2d 970. Every error presented by counsel was considered when the original opinion was written, but for the reason that the court did not consider it advisable to lengthen the opinion of the court by referring to every specification of error raised by counsel we did not specifically refer thereto. However, we have again considered the errors specified.

The first contention that the court erred in failing to sustain a demurrer to the information and to the evidence for the reason that defendant was charged in the information with “directing a riot,” and not with simply the charge of “riot” cannot be sustained. The case of Johnson v. State, 16 Okla. Cr. 428, 183 P. 926, cited by counsel, is in no way in conflict with this holding. When properly construed it is in harmony with this decision. From a reading of the statute, which is quoted in the original opinion, it will be noted that in the first section thereof what constitutes a riot is defined. 21 Okla. St. Ann. § 1311. The first part of the section uses the words “any use of force or violence.” The second part says “or any threat to use force or violence if accompanied by immediate power of execution.” This constitutes a compound offense, as stated in the case of Perkins v. State, 35 Okla. Cr. 279, 250 P. 544, 546, 49 A.L.R. 1129, where the court says:

“Riot at common law, and under provisions of sections 2006 and 2007, Comp. St. 1921, is a compound offense, including some of the essential elements of a criminal conspiracy, involving the execution of an agreement, express or implied, between three or more persons,” etc.

The court further says:

“Concerted action need not be shown by specific declarations ; frequently, the manner of showing concerted action is by circumstantial evidence.”

Further the court says:

“Again, applying the rules of evidence applicable to conspiracy, it is not necessary that an unlawful act be perpetrated in accordance with their prearranged plan; but, if executed unlawfully, pursuant to a criminal conspiracy, the offense is deemed to have been committed by each and all of the coconspirators, unless there is proof tending to show that some one or more of them actively withdrew from the conspiracy. Under the circumstances shown, the several members of this mob stood by and acquiesced in this flogging, and it cannot be said that the offense was committed by the two persons who did the actual beating, independent of the others.”

There was no proof of an actual conspiracy in the Perkins Case, only as circumstances may have been considered, as in the instant case.

Judge Furman, in the case of Crawford v. Ferguson, 5 Okla. Cr. 377, 115 P. 278, 279, 45 L.R.A., (N.S.), 519, after quoting the riot statute, says:

“It matters not how good their intentions may be, if three or more persons, without authority of law, combine together, and by threats to use force or violence if accompanied by immediate power of execution, seek to accomplish any unlawful purpose, they are guilty under the law of riot, and liable to be imprisoned in the state penitentiary for any period not less than three years.” Cochran v. State, 4 Okla. Cr. 379, 111 P. 974.

The statute under consideration, and under which the information was filed in this case, was taken by this state from Dakota. In the case of State v. Page, 15 S. D. 613, 91 N. W. 313, 314, the Supreme Court of that state had under consideration this identical statute. The defendant was charged with the crime of riot (a) by carrying at the time of the assault “a dangerous weapon, to wit, a strong and heavy whip, some 6 feet in length.” The court held that a whip was not a “deadly or dangerous weapon,” but the court, after quoting the statute defining riot, Comp. Laws Dak. 1887, § 6677, and subdivision 3 of the next section, says: “The information in this case was drawn under this subdivision of the section,” and says further: “as will be noticed, the statute is a highly penal one. When the party is found guilty of carrying a deadly or dangerous weapon, or is disguised, at the time of the commission of the offense, he is punishable for a felony.” Also: “One convicted of an ordinary riot, in which no other crime was committed, and in which the party engaged carried no deadly or dangerous weapon, and was not disguised, is declared to be guilty of a misdemeanor.”

It will thus be seen that the South Dakota Supreme Court, in construing this identical statute which was taken from that state, draws the same distinction as to the different sections of the statute, as did the trial court in the instant case. In that case defendant was charged with committing a riot, and at the time of carrying “a dangerous weapon, to wit, a strong and heavy whip, some six feet in length.” Under the statute the question of misdemeanor was not involved, and was not submitted to the jury. Only the charge in the information should be considered, as in the instant case the charge that defendant “directed, advised, encouraged, or solicited other persons, who participated in the riot, to acts of force or violence.” This is the only charge to which defendant could have been held accountable under the allegations of the information in this case.

It is true that under the law of this state a person shall be charged with only one offense, and can be convicted only of the charge alleged against him, but our statute also provides, Oklahoma Statutes, 1931, sec. 3097, O. S. A., title 22, sec. 916, that:

“The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged.”

Our statute defines robbery as the wrongful taking of personal property, etc. 21 Okla. St. Ann. § 791, St. 1931, § 2542. Another section of the statute defines what constitutes conjoint robbery, 21 Okla. St. Ann. § 800, St. 1931, § 2552, but this court has held that those statutes are statutes of classification, not definition, and that the robbery defined therein is that defined by the general definition. The mere fact that the charge was “conjoint” robbery would not change the offense from that of robbery, as defined by the statute. Simpson v. State, 40 Okla. Cr. 58, 266 P. 783; Wissinger v. State, 39 Okla. Cr. 324, 264 P. 631; Fisher v. State, 54 Okla. Cr. 109, 16 P. 2d 267.

The defendant in this case could have in no way been prejudiced or suffered the loss of any substantial right, by reason of the charge of “directing a riot.” It limited the charge against him as to that specific provision of the riot statute. Kelly v. State, 12 Okla. Cr. 208, 153 P. 1094; Cochran v. State, 4 Okla. Cr. 379, 111 P. 974; Smith v. State, 7 Okla. Cr. 4, 120 P. 1031.

The proposition of defendant in his brief on rehearing that “What we contend for is this: Even though a defendant directed or advised others to acts of violence he cannot be guilty of riot unless he himself participates in the riot itself,” is answered by the testimony in this case, as quoted in the original opinion, which shows that defendant not only directed, advised, and encouraged the same, but actually participated therein, by the throwing of rocks through the windows and handing instruments to others to be used in the destruction of property.

Counsel, in his brief, says:

“In concluding our argument on this first proposition we respectfully ask the court, should it decide this contention against us, to point out what words are found in the information to the effect that this defendant or any of the defendants named in the information participated in the riot.”

The answer to this is the information itself, which provides:

<<* * * (jjjj unlawfully, willfully, riotously and felon-iously, while acting in concert each with the other, solicited, directed, advised and encouraged a great number of other persons, consisting of more than three, whose names to the county attorney are unknown, in riotous acts and use of force and violence and threats to use force and violence, accompanied by immediate power of execution, and in concert of action, and confederated together with a common purpose and intent and without authority of law, going upon the streets of the city of Tulsa. * * *”

This allegation, coupled with the evidence that defendant not only directed, advised and encouraged, but actually participated therein, is a complete answer to the question propounded. To contend that the above allegation does not charge the participation in the riot is to place a technical construction thereon, which is forbidden by the law of this state.

It is next contended that the court erred in giving instruction No. 4, which was as follows:

“You are instructed that any use of force of violence, or any threat to use force or violence, if accompanied by immediate power of execution, by three or more persons acting together and without authority of law, is riot.”
“You are further instructed that any person who directed, advised, encouraged or solicited other persons who participated in the riot, to acts of force or violence, is punishable by imprisonment in the penitentiary for not exceeding 20 and not less than 2 years.”

It is contended that this instruction did not inform the jury that it was necessary for the defendant to participate in the riot before he could be convicted. This contention wholly ignores the first paragraph of this instruction. Under the first section, 21 Okla. St. Ann. § 1311, if the jury found under the evidence, as they had a right to find, that defendant used “force or violence,” or made any threat to use the same, with immediate power of execution, he would be guilty of committing a “riot.” The second section, 21 Okla. St. Ann. § 1312, provided that if he “directed, advised, encouraged or solicited other persons,” etc., he would be punishable as subdivision 4 provided. Certainly there was no error in this instruction. This instruction, under the law, must be construed in the light of all the instructions, and especially with reference to instruction No. 10, which was as follows:

“You are instructed that all persons concerned in the commission of a crime, whether they directly commit the act constituting the offense, or only aid and abet in its commission, whether present or not, are principals and equally guilty.”

And also instruction No. 7, which was as follows:

“You are instructed that if you find from the evidence, beyond a reasonable doubt, that the defendant threatened with force or violence any of the parties mentioned in this information, that fact in itself would not warrant a conviction on this charge, unless you further find beyond a reasonable doubt that the defendant directed, advised, encouraged or solicited other persons who participated in the riot to acts of force or violence.”

And also instruction No. 8, which was as follows:

“You are instructed that if you find from the evidence that the defendant was at the Ketchum Hotel, or at any other place, you cannot convict him unless you find beyond a reasonable doubt that he directed, advised, encouraged or solicited other persons who participated in the riot to acts of force or violence; and you are instructed that if you have a reasonable doubt thereof, it will be your duty to resolve that doubt in favor of the defendant and acquit him.”

All of these instructions as a whole clearly protected the rights of the defendant as shown by the evidence in this case. They emphatically told the jury unless he committed the acts as defined by subdivision 4, of the statutes, and, as charged in the information, he would not be guilty. Under our statute, one who aids or abets another in the commission of a crime is guilty as a principal. Oklahoma Statutes, 1931, section 1808, O.S.A., title 21, sec. 172, is as follows:

“All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals.”

Defendant next complains of the court’s instruction No. 5, which was a charge on circumstantial evidence. We fail to see how this charge could have have prejudiced the rights of defendant. It would be more in his favor than against him. There was both direct and circumstantial evidence in this case.

In instruction No. 6, the court instructed the jury upon the question of “alibi.” Counsel claims that defendant did not present this defense. We fail to see how this charge could have prejudiced the rights of defendant. It may not have been necessary to give it, but it certainly was not prejudicial in any way to his substantial rights. The same principle is true as to instructions Nos. 7 and 8, to which defendant objected. If the evidence in this case had not shown that a “riot” was committed, and that defendant not only participated therein, but that he aided, advised and encouraged those who did participate therein, the contention of defendant would not be without merit, but the evidence showed these things. As stated in the original opinion in the Symonds Case:

“Judged by the rules above quoted, and applying the facts to the instant case, it cannot be denied that under the law a riot was carried on in the city of Tulsa on the night of July 9, 1937. Men who had the right to join any organization, which they believed would assist them in bringing about a better living condition for themselves and their families; one that would bring them shorter hours and better wages; one that under the law gave them the right of collective bargaining; the right to strike; the right to picket; and the right to use every lawful and legitimate means to secure these rights from their employer; that gave them every right guaranteed by the principles and policies of the American Federation of Labor, should exercise these rights in a lawful manner, and not resort to ‘riot,’ and unlawfully destroy the property of others by taking the law into their own hands. Our sympathy is with the man who labors, and who takes a step by the joining of an organization which assists him in the securing of better living conditions, a living wage, and shorter hours of employment, to the end that he may spend more time with his family, but under the law these rights should be secured in a lawful manner, and should not be by resort of taking the law into one’s own hands, and willful destruction of property, as the evidence here discloses.”

Finding no error, it is the opinion of the court that the motion for rehearing should be overruled, and it is so ordered.

DOYLE, P. J., and DAVENPORT, J., concur.