text:
    MARTIN ARMOUR v. STATE.
    No. A-9773.
    April 23, 1941.
    (112 P. 2d 1116.)

      Ward, Justus & Ward, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen and Sam H. Lattimore, Asst. Attys. Gen., for defendant in error.
   JONES, J.

The defendant, Martin Armour, was charged jointly with Raymond Pilgrim and Edgar Armour by indictment on April 17, 1939, in Tulsa county, with the crime of robbery in the second degree. Defendant was) granted a severance, was tried in the district court of Tulsa county, convicted, and sentenced to serve a term of two years in the State Reformatory at Granite, from which judgment and sentence he appeals to this court.

The defendant contends that:

(1) The trial court erred in overruling, his demurrer to the indictment.

(2) The trial court erred in refusing to instruct the jury to acquit the defendant.

(3) The verdict and judgment are contrary to the evidence and the law.

Section 1931, O. S. 1931, 21 Okla. St. Ann. § 1435, states:

“Every person who breaks and enters in the day time or in the night time, either:
“1. Any building within the curtilage of a dwelling house, but not forming a part thereof; or,
“2. Any building or any part of any building * * * in which any property is kept, with intent to steal therein or to commit any felony, is guilty of burglary in the second degree.”

The indictment is as follows:

“* * * j;n gaid Tnlsa County, and State of Oklahoma, on the 22nd day of March, in the year of our Lord, One Thousand Nine Hundred and Thirty-Nine, and prior to the finding of this indictment, Raymond Pilgrim, Edgar Armour and Martin Armour and each of them, did then and there unlawfully, willfully, burglariously and feloni-ously, in the nighttime, break and enter into a certain building located at 801 East 1st Place, in the City of Tulsa, Oklahoma, and being then and there occupied by and in the possession of Nichols Wire Sheet and Hardware Company, a corporation, by breaking open the outer doors and windows of said building, with the felonious and bur-glarious intent then and there upon the part of said defendants and each of them, to steal therein, by then and there taking, stealing and carting away, without the consent of the owner thereof, certain personal property of value in said building kept and contained, the property of the said Nichols Wire Sheet and Hardware Company, a corporation, with the unlawful and felonious intent then and there upon the part of said defendants, and each of them, to deprive the owner thereof permanently and to convert the same to their own use and benefit. * * *”

As to the defendant’s contention that this indictment is subject to demurrer, he cites the case of Simpson v. State, 5 Okla. Cr. 57,113 P. 549, in which it is stated:

“(a) An indictment for burglary, whether at common law or under statute, must allege every fact and circumstance necessary to constitute the offense, including time, place, ownership, and description of the premises.”

An examination of the indictment reveals that it sets out the breaking and entering of a specified building. It charges an intent to steal personal property of value, deprive the owner thereof, and to convert said property to the use of defendants. It states the time of the offense as March 22, 1939, in the nighttime; the place as Tulsa, Oklahoma ; the ownership of the building, as occupied by and in the possession of said hardware company (Simpson v. State, supra); and describes the premises as a building at 801 East 1st Place in which personal property belonging to said hardware company was kept and contained.

In Jackson v. State, 31 Okla. Cr. 30, 237 P. 129, 130, a case of burglary in the second degree, this court held:

“An information which, construed under the ordinary rules of construction, states all the essential elements of the crime charged sufficiently to enable a person of common understanding to know what is meant, and with sufficient particularity to enable a defendant to prepare for his trial, and to píead the judgment in bar, if again informed against for the same offense, is sufficient.”

In his brief, defendant cites at length passages from Corpus Juris and Corpus Juris Secundum relating to buildings “not adjoining to- or occupied with a dwelling-house” and “other buildings.” Our statute (sec. 1931, supra) states positively “any building within the curtilage of a dwelling house, but not forming a part thereof; or” “any building,” etc.

This court has never held that it was necessary under section 1931, supra, to aver that the building was not adjoined to a dwelling house, but in charging an offense under either of sections 1927, O. S. 1931, 21 Okla. St. Ann. 1431, or 1928, O. S. 1931, 21 Okla. St. Ann. 1432, the statutes dealing with burglary of the dwelling, it is necessary to allege that the building is a dAvelling house. And 'quoting from 12 C. J. S., Burglary, § 35 (d), page 695:

“Where the burglary statute punishes the crime irrespective of the location of the building, it is not necessary to allege that it- Avas one not adjoining to, or occupied as, a dwelling house.”

In 9 C. J., Burglary § 71 (6), page 1040, it is stated:

“Under a statute punishing the breaking and entering of any ‘building’ or any ‘house,’ it has generally been held that the indictment, if it describes the premise» by a term which does not necessarily imply a building or a house, must go- further and allege that they were a building or.a house. But this is not necessary where the term used necessarily implies that the premises were a building or a house.”

We are of the opinion that defendant’s demurrer to the sufficiency of the information was properly overruled, since this information contains all of the essential allegations necessary to constitute the crime of second-degree burglary to make it good upon its face, sufficiently informs the defendant of the charge upon which he would have to defend, and bars any future action for the same offense. See Dean v. State, 48 Okla. Cr. 117, 289 P. 793; Wiles v. State, 52 Okla. Cr. 162, 3 P. 2d 245; Hames v. State, 54 Okla. Cr. 341, 20 P. 2d 915.

The undisputed evidence is that Edgar Armour, brother and codefendant of Martin Armour, the defendant in this case, worked as a truck driver for the Nichols Wire Sheet & Hardware Company, and that the two brothers were, staying in the same room.

The evidence offered by the state was to the effect that on March 22, 1939, Lester Little, who had charge of the company’s money, hid $86 for safekeeping in a pile of composition roofing in the building. A marked $2 bill, which had been in the company’s possession for a period of time, made up a part of the $86. The building was locked on the inside. On the morning of the 23d, when Carl Poss, the manager, came to work, he found that the lock on the front door, which could not be locked from the outside without a key, was unfastened. The money was missing.

Sometime in the early morning of March 24th, the defendant was arrested by the city police for drunkenness. Officers searched his room and found, hidden in a flower ■pot, two $5 bills and the marked $2 bill. Defendant claimed the money. About 6 o’clock the same morning, he told Officers Smith and Kerns that on the evening of the burglary he, Edgar Armour, and Kaymond Pilgrim were all on the truck and came into the hardware building at the same time. Defendant stayed in the warehouse when it was closed. Edgar and Pilgrim left and returned between 7:30 and 8 o’clock; defendant had unlocked a door; the other two1 came in, and they searched until they found the money. They took $30, which were divided evenly.

After that they went to the room occupied by defendant and Edgar Armour. Edgar and Pilgrim went back to the hardware company, came back with more money, and gave defendant $12 more.

Later, on the morning of the 24th, defendant made a statement, which was taken by a stenographer, before Officers Miller and Terrill. After having made the statement, defendant refused to sign it. The statement in substance is the same as the testimony of the officers as to the conversations with defendant.

This statement amounts to a confession on the part of the defendant of a conspiracy between him and his two codefendants to burglarize the building in question in accordance with a plan which was carried out by leaving the defendant on the inside of the building, hidden so that the other workers would not know he was there when the building was closed. That after all of the people employed at the building were gone, the defendant unlocked a side door for the purpose of letting his two codefendants enter when they returned after dark. They did return, enter the building, and find the money, as related in the paragraph hereinabove set forth.

All of the officers were of the opinion that defendant was sober at the time he made his statements.

Defendant testified that he was drunk, sick, and wanted to go back to bed when he made the statements. He did not deny making the statements, but said that he did not remember what he had told the officers. He denied knowing anything about or1 having anything to do with the •burglary. He denied knoAving anything about the $12 concealed in the room he was occupying.

This court has held that where evidence discloses facts from which the jury may legitimately deduce either of two conclusions, a motion to advise verdict should be denied. Plemons v. State, 53 Okla. Cr. 263, 10 P. 2d 285; Radke v. State, 17 Okla. Cr. 230, 187 P. 500.

The trial court did not err in refusing to give defendant’s requested instructions to acquit.

Section 2902, O. S. 1931, 22 Okla. St. Ann. § 432, provides:

“* * * all persons concerned in the commission of a felony, av!) ether they directly commit the act constituting the offense, or aid and abet in its commission, * * * must be prosecuted, tried and punished as principals, and no additional facts need be alleged in any indictment or information against such an accessory than are required in an indictment or information against his principal.”

In Lumpkin v. State, 25 Okla. Cr. 108, 219 P. 157, 158, it is stated:

“It is a familiar principle that a breaking, necessary to constitute the crime of burglary, may be by any act of physical force, however slight, by Avhich obstruction to entering is forcibly removed, and the opening of a closed door-in order to enter a building may constitute a breaking. * * *”

In Raymer v. State, 41' Okla. Cr. 263, 272 P. 488, this court held:

“While the breaking and entry may be shown by circumstantial evidence, there must be some proof, either direct or circumstantial, that the building was in fact broken into within the meaning of the statute defining burglary.” Citing 9 C. J., page 1076, § 133; 4 R. C. L., p. 416, §§ 3 and 4.

In 4 R. C. L., p. 417, § 3, it is stated:

“* * * In order to constitute an actual breaking within the sense of the term as used in the law of burglary, the action of the accused must have been such as would, without additional effort, have made an entry possible.”

In the case at bar, there was a plan to burglarize which contemplated action by all three conspirators. The defendant, Martin Armour, entered the building, hid until it was locked, unfastened the lock on a door from the inside, and allowed his codefendants to enter, after which the money was stolen.

It is not necessary for this court to decide whether or not the entering of an open building during business hours with intent to commit a "felony, and hiding in such building until it is locked for the night, is a breaking and entering, under section 1931, supra; or, if such entry is breaking and entering, it would support a charge of “breaking open the outer doors and windows.” Nor is it necessary to determine whether the defendant’s entering an open building during business hours, accompanied by a servant of the business, with the intent to steal, being concealed until the building is locked for the night, unlocking a door and holding it open for the servant to pass into the building, is a breaking and entering under our statute.

Where defendant has unlocked a door, which remains closed, the opening of the door and entering by his cocon-spirators, under the circumstances presented in this case, is sufficient to- sustain the charge against the defendant of “breaking open the outer doors and windows,” under the above statutes and holdings of this court.

There is ample evidence in this case from which the jury could have found the defendant guilty of burglary in the second degree. Money was stolen from a locked building; part of the money was found in the room occupied by the defendant; defendant made two extrajudicial confessions before numerous witnesses.

In Hart v. State, 57 Okla. Cr. 372, 48 P. 2d 337, it was held:

“Evidence of possession of the stolen property by defendant soon after the burglary was committed, when supplemented with other facts inconsistent with the idea that the possession was honest, is sufficient to sustain a conviction for burglary.”

Finding no errors of sufficient importance to require reversal, the judgment of the district court of Tulsa county is hereby affirmed.

BAREFOOT, P. J., concurs. DOYLE, J., absent.


source: Caselaw Access Project

author: BAREFOOT, P. J.

license: Public Domain

text:
    ROLAND BAYNE v. STATE.
    No. A-9788.
    April 23, 1941.
    (112 P. 2d 1113.)

      Mae Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and L. J. York, Co. Atty., of Stillwater, for the State.
    Walter Mathews, of Cushing, for defendant.
   BAREFOOT, P. J.

Defendant Roland Bayne was charged jointly with Clifford Thompson in the district court of Payne county with the crime of attempt to kill, was tried separately and convicted and sentenced to serve one year in the reformatory at Granite, and has appealed.

The information in this case was filed under Oklahoma Statutes 1931, section 1873, O. S. A. title 21-, sec. 652, which is as follows:

“Every person who intentionally and wjrongfully shoots, shoots at, or attempts to shoot at another, with any kind of firearm, airgun or other means whatever, with intent to kill any person, or who commits any assault and battery upon another by means of any deadly weapon, or by such other means or force as is likely to produce death or in resisting the execution of any legal process is punishable by imprisonment in the penitentiary not exceeding ten years.”

The court, in his instructions to the jury, instructed on the above statute and also on two included statutes, Oklahoma Statutes 1931, section 1870, O. S. A. title 21, sec. 645, which is as follows :

“Every person who, with intent to do bodily harm, and without justifiable or excusable cause commits any assault upon the person of another with any sharp or dangerous weapon, or who, without such cause, shoots or attempts to shoot at another, with any kind of firearm or airgun or other means whatever, with intent to injure any person, although without intent to kill such person or to commit any felony, is punishable by imprisonment in the penitentiary not exceeding five years, or by imprisonment in a county jail not exceeding one year.”

And, also, Oklahoma Statutes 1931, sections 1865, 1866, and 1868, O. S. A. title 21, sections 641, 642, and 644, which are as follows:

(1) “An assault is any willful and unlawful attempt or offer with force or violence to do a corporal hurt to another.”
(2) “A battery is any willful and unlawful use of force or violence upon the person of another.”
(3) “Assault, or assault and battery, shall be punishable by imprisonment in a county jail not exceeding thirty days, or by a fine of not less than five dollars or more than one hundred dollars, or both, at the discretion of the court.”

The jury returned the following verdict:

“We, the jury, being duly sworn and empaneled in the above-entitled case, do on our oaths find the defendant, Roland Bayne, guilty of the crime of assault with intent to do bodily harm, as charged in the information but we are unable to agree upon the punishment.”

The court sentenced the defendant to serve one year in the reformatory at Granite.

It is contended that the punishment inflicted is not authorized by the verdict or by the law, it being contended that, under the verdict and judgment based thereon, the defendant was only found guilty of an assault, and that tbe court erred in giving defendant a sentence of one year in tbe reformatory at Granite. Defendant in bis brief cites two cases from tbis court in support of tbis contention. Feaster v. State, 15 Okla. Cr. 366, 177 P. 124; Polk v. State, 15 Okla. Cr. 324, 176 P. 538. We first refer to tbe case of Vineyard v. State, 22 Okla. Cr. 76, 209 P. 783, 784, wbicb expressly overrules tbe first syllabus of tbe case of Polk v. State, supra. In tbis opinion Judge Matson says:

“The first paragraph of tbe syllabus in tbe Polk Case is too broad in statement, in conflict with earlier decisions of tbis court, and is expressly disapproved.”

The first paragraph deals with tbe question here involved.

Tbe later cases of tbis court have uniformly held that tbe statutes above quoted are included offenses and that a charge under tbe first will include an offense under tbe second and third, and that it is the duty of tbe court to so instruct tbe jury when tbe facts justify. Clemons v. State, 8 Okla. Cr. 452, 128 P. 739; Horton v. State, 35 Okla. Cr. 80, 248 P. 878; Wheeler v. State, 66 Okla. Cr. 127, 90 P. 2d 49; Ponkilla v. State, 69 Okla. Cr. 31, 99 P. 2d 910.

Tbe Vineyard Case is also in direct conflict with tbe Feaster Case, and while not specifically named therein, it virtually overrules tbe decision in that case.

As stated above, tbe defendant was in tbe instant case charged under Oklahoma Statutes 1931, section 1873, O. S. A. title 21, section 652. In tbe case of Coleman v. State, 16 Okla. Cr. 579, 194 P. 282, 283, tbe verdict of tbe jury was in almost identical terms with the verdict rendered in tbis case. It stated:

“ ‘We, the jury impaneled, sworn, and charged in the above-entitled cause, do upon our oaths find the defendant guilty of an assault to do great bodily harm as charged in the information herein, and leave his punishment to the court.”

The court says:

“The sufficiency of the verdict to sustain the judgment is raised for the first time in this court. It is now urged that the verdict is not responsive, and is too indefinite and •uncertain to sustain the judgment rendered.
“By section 5926, Rev. Laws [1910], 22 Okla. St. Ann. § 919, it is provided:
“ ‘If the jury render a verdict not in form, the court may, with proper instructions as to the law, direct them to reconsider it, and- it cannot be recorded until it be rendered in some form from which it can be clearly understood what is the intent of the jury.’
“By section 5927, 22 Okla. St. Ann. § 920, it is, among other things, provided:
“ ‘But no judgment of conviction can be given unless the jury expressly find against the defendant, upon the issue.’
“The verdict is not in proper form; but, when considered in connection with the charge in the information and the instructions given by the court, it is sufficiently definite and certain as to- the offense of which the defendant was convicted, and is in fact a verdict of guilty of assault with a dangerous weapon with intent to do bodily harm.
“It is well settled that a. verdict will not be held void for uncertainty if its meaning can be determined by reference to the record-proper. Bowlegs v. State, 9 Okla. Cr. 69, 130 P. 824; Walker v. State, 11 Okla. Cr. 339, 127 P. [895] 896.
“Says Mi*. Bishop:
“ ‘The language of the verdict, being that of “lay people,” need not follow the strict rules of pleading, or be otherwise technical. Whatever conveys the idea to the common understanding will suffice, and all fair intend-ments will be made to support it.’ 1 Bish. New Cr. Proc. (4th Ed.) § 1005.
“While the verdict is defective, its language expresses! the intention and purpose of the jury to find the defendant guilty of assault with a dangerous weapon with intent to do ‘bodily harm as charged in the information herein,’ and the defendant should have objected to the verdict when returned, which would have called the attention of the court to its defective form and given opportunity for its correction; and, having failed to do this, the defendant waived the defects in the form of the verdict.”

There can be no question but that it was the intention of the jury in the instant case to find the defendant guilty of a violation of Oklahoma Statutes 1931, section 1870, O. S. A. title 21, sec. 645, although the words of the statute, “without justifiable or excusable cause” or “with any sharp or dangerous weapon”, are not stated in the verdict. As stated by Mr. Bishop as above quoted: “Whatever conveys the idea to the common understanding will suffice, and all fair intendments will be made to support it.”

The evidence in this case is conflicting. It reveals that the codefendant Clifford Thompson had just returned from serving a sentence in the Granite Reformatory on the date of this affair1. He met the defendant at the home of a friend, and they then went to the home of Clifford Thompson’s mother looking for his wife, from whom there was some estrangement. He was there told that she probably was at the home of the prosecuting witness, Harvey Benton. They went to his home and, according to the evidence of the state’s witnesses, they did not knock at the door and did not make it known that they were there. About 10 o’clock p. m., Harvey Benton went outside the door, and according to his evidence was attacked by both defendant and Ms codefendant Clifford Thompson. That they both attacked him and both cut him with a knife. That he felt both knives strike him at the same time. The mother of the prosecuting witness, his brother-in-law and a child of 15, who was in the house at the time, all testified that no one knocked at the door, and that when they heard Harvey Benton scream they ran out, and he was lying on the ground and they saw the defendant and Clifford Thompson standing near the scene, and that the defendant grabbed Clifford Thompson and they ran away. The evidence of Dr. John W. Martin was that the prosecuting witness had been cut in three different places. They were skin cuts and lacerations, a small wound in the right side and chest, a long scratch across the back, and another wound on the right leg. Three or four stitches were taken in one of the wounds, but they were not serious, and the prosecuting witness attended highschool in Cushing the next day.

The prosecuting witness, his mother and his brother-in-law testified that the defendant and Harvey Benton had been good friends, and that defendant never had any motive in attacking him. The defendant testified that, when they went to the home of the prosecuting witness, his codefendant Clifford Thompson knocked on the door and asked if his wife was there, and that he replied: “It isn’t none of your damned business”, and that they started, to fight, and that the only participation of himself was that he tried to separate them. That he did not at any time cut the said Harvey Benton. That he did not have a knife, and that after the difficulty was over and the persons in the house came to the door, he got hold of Clifford Thompson and got him to> leave the premises. The next day a knife was found in the toilet where one of the witnesses had seen his codefendant Clifford Thompson throw the same. Officers testified that when they arrested the parties in the morning at Clifford Thompson’s home after the difficulty, they were in bed and the defendant was intoxicated, and that they had trouble in arresting him. His explanation of this was that he was asleep and not easily awakened.

Max Rosson, who was with the defendant and Clifford Thompson when they went to the home of Clifford Thompson’s grandmother, testified to a conversation between these parties in which he stated: “They were talking about going down and beating Harvey up, and I got them back up in the house and got them to gn back up to my place.”

He did not know which one made this statement. He testified they had been drinking whisky and pop. The evidence also revealed that the defendant had at one time been convicted of petit larceny and of assault and battery. It will be observed that the evidence is conflicting, and under the uniform holding of this court, the judgment and sentence will not be set aside under these circumstances. The jury did not assess the punishment, but it was assessed by the court.

We have carefully weighed the evidence and have come to the conclusion that justice would be best subserved by modifying the judgment and sentence to 120 days in the county jail of Payne county, and it is so ordered.

JONES, J., concurs. DOYLE, J., absent.


text:
    JOE T. McKINSEY v. STATE.
    No. A-9813.
    April 23, 1941.
    (112 P. 2d 1112.)

      Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Gen., and Nelson Crow, Co. Atty., of Watonga, for the State.
    Glen O. Morris, of Oklahoma City, for defendant.
   BAREFOOT, P. J.

Defendant, Joe T. McKinsey, was charged in the county court of Blaine county with the crime of defrauding a hotelkeeper, which is a misdemeanor; was tried, convicted and sentenced to pay a. fine of $100, and he has appealed.

A motion has been filed by the state to dismiss the appeal. It was filed on April 9, 1940, and the same was properly served on the 9th day of April, 1940. No response to this motion has been filed. It is claimed the appeal should be dismissed for the reason:

“That the judgment and sentence of the trial court was rendered on the 22nd day of November, 1939, and this appeal was filed in the office of the clerk of this court on February 12, 1940, more than 60 days after the date of the judgment and sentence, and there was no order of the trial court extending the time in which said appeal might be filed.”

It is contended, this being an appeal from conviction of a misdemeanor', that the same must be taken within 60 days after the judgment is rendered and that the order of the trial court which extended the time for preparing and serving the case-made did not extend the time for perfecting an appeal.

Oklahoma Statutes 1931, section 3192, O. S. A. title 22, section 1054, provides in part as follows:

“In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered: Provided, However, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding 60 days. * * *”

We are citing, the following cases from this court which has heretofore construed this statute: Stumpf v. State, 6 Okla. Cr. 159,117 P. 648; Wilson v. State, 24 Okla. Cr. 268, 217 P. 1057; Pippin v. State, 52 Okla. Cr. 333, 4 P. 2d 1076. These cases are directly in point and hold that an order extending'; the time to make and serve case-made does not automatically extend the time to file the appeal.

We are not in sympathy with a construction of a statute which technically prevents a defendant from having a hearing upon the merits of his case after an appeal to this court. But counsel for defendant have made no attempt to brief this case, although the same was filed here on the 12th day of February, 1940.

The rule having been established by the previous decisions of this court and many times followed, it is ordered that the appeal in this case be dismissed.

JONES, J., concurs. DOYLE, J., absent.


text:
    JOE HUTSON v. STATE.
    No. A-9809.
    April 30, 1941.
    (112 P. 2d 1109.)

      Mac Q. Williamson, Atty. Gen., and Hugh Conway, Co. Atty., of Enid, for tbe State.
    Frank W. Herndon, of Enid, for defendant.
   BAREFOOT, P. J.

Defendant was charged in tbe county court of Garfield county with tbe unlawful possession of intoxicating liquor, to wit: 60 pints of wbisky; was tried, convicted and sentenced by tbe court to pay a fine of $100 and serve 60 days in tbe county jail, and bas appealed.

Eleven assignments of error are made, but only two are relied upon:

(1) That tbe court erred in refusing to sustain tbe motion of tbe defendant to suppress tbe evidence for the reason that no search warrant was had by tbe officers at the time of finding tbe whisky in defendant’s automobile.

(2) That tbe court erred in refusing to sustain tbe motion to dismiss, because defendant was not tried at tbe term of court following his arrest.

Tbe facts, as revealed by tbe record, were that defendant had on the 8th day of May, 1938, parked his automobile on tbe public streets of Enid. Some party called tbe two police officers who went to tbe scene and found the car parked. A fluid was leaking from tbe rear of tbe car, and the officers examined the same and, by the use of their senses of sight and smell, ascertained that it was whisky. They examined the car and found therein 60 pints of tax-paid liquor. One bottle had been broken, and the whisky was leaking from the rear of the car. They had no search warrant to search. Under the circumstances it was not necessary for them to have one. This court, in the recent case of Arnold v. State, 70 Okla. Cr. 203, 105 P. 2d 556, has passed upon a case in which the facts are almost identical with the facts in the instant case. The second and third syllabus are as follows:

“2. The constitutional provision against unreasonable searches and seizures does not preclude the making of a seizure without a warrant previously procured of intoxicating liquor, where the liquor is dripping from the automobile and is fully disclosed to the eye.
“3. An offense is committed or attempted dn the presence of an officer’, within the meaning of the statute providing that a peace officer may, without a warrant, arrest a person for a public offense, committed or attempted in his presence, where such officer is apprised by any of bis senses that a misdemeanor is being committed by tbe person arrested prior to the arrest.”

See, also Matthews v. State, 67 Okla. Cr. 203, 93 P. 2d 549.

The court did not err in refusing to sustain the motion to suppress the evidence offered in this case.

Defendant’s second assignment of error is that he was refused a speedy trial as provided by Oklahoma Statutes 1931, section 2872, O. S. A. title 22, section 812, which provides as follows :

“If a defendant, prosecuted for a public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of court in which the indictment or information is triable after it is filed, the court must order the prosecution to be dismissed, unless good cause to' the contrary be shown.”

The facts as revealed by the record are that an information was filed against defendant in the county court of Garfield county on the 16th day of May, 1938, and that defendant executed an appearance bond on May 21, 1938, and was at liberty on said bond until he was tried on October 10, 1939. There was a term of county court in Garfield county in November, 1938, but for some reason defendant’s case was not set on that docket. There was) no jury docket in January, 1939, by reason of the lack of court funds, and the next term of court was held in October, 1939, at which time defendant was tried. It is the contention of the defendant that he should have been tried at the November, 1938, term. Defendant testified at the hearing of the motion to dismiss, as follows:

“Q. Do you recall the date that you came in to the county judge’s office to make bond? A. On the 21st of May. Q. At that time did you have a conversation with the county judge, Judge Crowley? A. Yes, sir. Q. Was there a discussion as to when this case would be set down for trial? A. He said he would like to have it in the November term. Q. Did you make any statement to him in regard to what you wanted? A. I told him I would like to have it as soon as I possibly could. Q. Did you demand a trial at that term of Court? A. I told him I would: like to have it, yes, sir. Q. Did he indicate to you then, or state to you, what he intended to do about it? A. He said he wanted to clean up his docket, wanted all cases closed. Q. He assured you at that time that you would be tried at the November term of Court? A. Yes, sir. Q. Now have you ever at any time asked for a continuance of this case? A. I never heard any more from it. Q. You were ready and willing to be tried at the November term of court? A. Wanted to be, yes, sir. Q. Any continuance that was made was made by the State or the county judge? A. I don’t know. Q. Did they ever call you at any time? A. No sir, never called me.”

The defendant was then asked:

“Q. Did you ever come into his office and demand that he set that case down? A. I never saw him any more. Q. Were you living here in Enid during November and December, last year? A. Yes, sir. Q. Did you see the paper where we were going to have a term of county court? A. I never saw it in the paper. * * * Q. You didn’t talk to your attorney about getting ready for your trial? A. No, sir, that was what I had him for. Q. Did he get in touch with you? A. No, sir, * * * Q. You never did demand any trial? A. No, sir, no more than what I told him, I told him I was ready for trial and would like to get it over with.”

The eases from this court in construing the above statute have uniformly held that where a person was on bond, the burden was on him to show that he had demanded trial or that he had objected to a continuance from term to term. We do not think the evidence on the part of the defendant in the instant case was such that brought him within this rule. It is contended by defendant that it is not necessary to show a written demand under the statute. But, be this as it may, it is necessary to make such a showing that will reveal to the court that defendant is asking and demanding' a trial or resisting a continuance thereof. The mere fact that he informed the court at the time he made bond that he would be ready for trial at the nest term, and that the court informed him he wanted to get rid of the case, is not such a demand as contemplated by the statute. The record does not reveal that he presented himself at the November, 1938, term of the county court and demanded to be tried. As a matter of fact, he testifies that he did not appear there and made no demand of the court for trial at that time, and he was at liberty on bond. See Francis v. State, 26 Okla. Cr. 82, 221 P. 785; Stroud v. State, 57 Okla. Cr. 273, 47 P. 2d 883; Rose v. State, 53 Okla. Cr. 41, 6 P. 2d 1072; Seitsinger v. State, 50 Okla. Cr. 299, 297 P. 312; State ex rel. Davis v. Bayless, Judge, 38 Okla. Cr. 129, 259 P. 606; Ex parte Clyde Meadows, 71 Okla. Cr. 353, 112 P. 2d 419.

For the reasons above stated, the judgment and sentence of the county court of Garfield county is affirmed.

JONES, J., concurs. DOYLE, J., absent.


text:
    ROB BATEMAN v. STATE.
    No. A-9804.
    May 7, 1941.
    (113 P. 2d 398.)

      Mac Q. Williamson, Atty. Gen., and M. F. Hudson, Co'. Atty., of Idabel, for the State.
    C. D. Wilkinson, of Idabel, for defendant.
   BAREFOOT, P. J.

Defendant Rob Bateman was charged in the county court of McCurtain county with the unlawful possession of intoxicating liquor, to wit, about one quart of whisky; was tried, convicted, and sentenced to pay a fine of $100 and serve 30 days in the county jail, and has appealed.

The court has not been favored by an oral argument in this case or by the filing of a brief. We have examined the petition in error and have read the record, and find that the evidence is insufficient to sustain the judgment and sentence.

The evidence revealed that defendant, in company with a number of other parties, went in a truck belonging to Mr. McDonaison to a dance near Clear Lake in Mc-Curtain county. Two constables were present at the dance and saw defendant sitting in a truck near the home where the dance was in progress. The truck belonged to Ed Crawford, who- had also taken several parties to the dance. They approached the truck and opened the door and saw a quart bottle about two-thirds full of whisky and arrested the defendant, and this charge was filed and defendant convicted as above stated. The officers testified that the bottle was about two-thirds full, being less than a quart. The defendant testified that the officers took him from the truck and searched him and then went to the truck and found the liquor. That the McDonalson truck in which he had come to the dance had left and that he asked permission to* ride home in the Ed Crawford truck, and when this was obtained he had gotten into* the truck. That he did not know there was any whisky there and that the whisky did not belong to him. Several witnesses testified that they had accompanied the defendant to the dance in the truck and he did not have any whisky. They also testified that they had seen several parties getting into and out of the truck during the evening. It was parked in the yard near the' house in which the dance was being held. The defendant testified that at one time he had pleaded guilty to a violation of the liquor laws.

The court did not instruct the jury upon the question of unlawful possession of intoxicating liquor as provided by Oklahoma Statutes 1931, section 2627, O. S. A. title 37, sec. 31, but only instructed upon the question of keeping in excess of one quart, of intoxicating liquor as provided by Oklahoma Session Laws 1933, chapter 153, section 3, O. S. A. title 37, sec. 8'2. This statute has reference to the evidence introduced in any given case and is not the statute making it a crime to* have the possession of intoxicating liquor. This statute would have no application to the facts here involved for the reason that the evidence of the state only showed that the amount of liquor found in the possession of defendant was less than one quart. Thomas v. State, 70 Okla. Cr. 404, 106 P. 2d 836; Knighton v. State, 64 Okla. Cr. 322, 79 P. 2d 1030; Barksdale v. State, 34 Okla. Cr. 91, 244 P. 828; Byers v. State, 46 Okla. Cr. 358, 287 P. 1075; Reed v. State, 24 Okla. Cr. 305, 217 P. 1058; Haltom v. State, 58 Okla. Cr. 117, 50 P. 2d 744. The giving of this instruction was prejudicial to the rights of the defendant for the reason that the evidence did not justify it.

For the reasons above stated the judgment of the county court of McCurtain county is reversed.

JONES, J., concurs. DOYLE, J., absent.


author: JONES, J.

text:
    TOM HATLEY v. STATE.
    No. A-9793.
    May 7, 1941.
    (113 P. 2d 396.)
    R. N. Linville, of Elk City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

The defendant contends in his assignments of error that:

(1) The trial court erred in overruling defendant’s motion to suppress testimony.

(2) The verdict is not supported by the evidence.

Defendant argues that the evidence should have been suppressed for the reasons that the affidavit for search warrant was made on mere conclusions and that the affidavit and search warrant did not set out definitely the location of the car or allege the place kept or place from which the whisky was transported or the place to which it was transported.

The affidavit for search warrant states, on oath of af-fiant, that whisky, beer, and alcohol are being transported by defendant “in a 1932, Model B, Ford Coupe, bearing Oklahoma License Tag No'. LD 327 P on the streets of Elk City and on the public highways in said county,” and that affiant “has observed this car closely for more than two weeks and that the said Tom Hatley has been seen taking cases out of the car that appear to contain intoxicating liquor and delivering them to other people.”

The search warrant described the automobile as: “A 1932 Model B, Ford Coupe, operated by Tom Hatley on the streets of Elk City, Oklahoma, and on the public high-Avays in said Beckham (County).”

This court stated in Spikes v. State, 65 Okla. Cr. 251, 85 P. 2d 327, that if the affiant had seen the defendant enter a car with a package Avhich he believed Avas intoxi-eating liquor, the fact should be set out in the affidavit and was a basis upon which legally to issue the warrant. The affidavit in the case at bar shows sufficient probable cause for the issuance of the search Avarrant.

Defendant’s car Avas positively described; and it is unnecessary to state the place from which the whisky was transported to its final destination, since it has been held that the only proof necessary for conviction is that defendant willfully conveyed the whisky along the highway. Jentho v. State, 19 Okla. Cr. 434, 200 P. 251. The affidavit Avas sufficient, and the court did not err in overruling defendant’s motion to suppress the evidence.

The information charges the defendant with conveying and transporting “certain spirituous, vinous, fermented, malt and intoxicating liquor, to wit: 22 - % pint bottles of whisky from a point unknoAvn to the informant in Beckham county, Oklahoma, to a point one mile north and three miles Avest of Elk City.”

Deputy Sheriff John B. Holley, the only Avitness called in this case, testified in behalf of the state that he found defendant one mile north and one mile Avest of town; that defendant attempted to break bottles with one hand while driving the car AArith the other. When he was finally stopped and the search Avarrant served upon him, there were three bottles of liquor left unbroken. These three bottles Avere offered in evidence, along Avith the necks of 18 or 19 other bottles and some pieces of glass, all of Avhieh Avere taken from defendant’s car when he Avas arrested. Witness testified that the bottles contained liquor and that the car had the odor of liquor about it. All through his testimony witness used the word “liquor” and not the word “whisky” as set out in the information; and it is the contention of defendant that such evidence constitutes a variance from the facts alleged in the information.

In the case of Brashears v. State, 38 Okla. Cr. 175, 259 P. 665, 666, this court held:

“A variance in a criminal case is an essential difference between the accusation and the proof. A variance is not material unless it is such as might mislead the defense or expose a defendant to being put twice in jeopardy for the same offense.”

See, also, Woods v. State, 22 Okla. Cr. 365, 211 P. 519.

The three unbroken bottles of liquor, taken from the defendant’s car, were in evidence before the jury; the court instructed them that they must find that, the defendant transported the “whisky” as alleged in the information before they could return a verdict of guilty. There is no material variance shown here, and the evidence is amply sufficient to support the verdict.

The case is accordingly affirmed.

BAREFOOT, P. J., concurs. DOYLE, J., absent.


text:
    C. L. TACKER v. STATE.
    No. A-9789.
    May 7, 1941.
    (113 P. 2d 394.)

      Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Lewis It. Morris, Co. Atty., of Oklahoma City, for the State.
    Laynie W. Harrod, of Oklahoma City, for defendant.
   BAREFOOT, P. J.

Defendant C. L. Tacker was charged in the court of common pleas of Oklahoma county with the crime of unlawful possession of intoxicating liquor, to wit, 48 pints of nontax-paid liquor; was tried before the court without the intervention of a jury, convicted and sentenced to pay a fine of $50 and serve 30 days in the county jail, and has appealed.

The only error complained of is that the court erred in overruling the motion to suppress and exclude the testimony offered by the state. This contention is based upon the alleged illegality of the search, the liquor having been found by the officers in a car driven by Jim Owens and in which defendant was riding. The search was made on the public streets of Oklahoma City by two police officers who were following the car and who arrested Jim Owens] for speeding prior to the search of the car. He afterwards paid a. fine of $10 in the police court upon this charge. When the car was stopped and after Jim Owens was placed under arrest, as above stated, the officers raised the turtle back to the car and found therein 48 pints of nontax-paid' whisky. The defendant, C. L. Tacker, claimed the ownership of the whisky, and Owens claimed ownership of the car, the defendant stating that Owens knew nothing of the whisky and Owens corroborating this statement. Owens was not held in connection with the possession, of the whisky.

The contention of defendant is without merit:

(1) Because the search was legal without the necessity of any warrant, having been made pursuant to a legal arrest. Skinner v. State, 65 Okla. Cr. 371, 87 P. 2d 341.

(2) This defendant is in no position to question the legality of the search of the automobile for the reason that he disclaimed ownership and control thereof.

This court has in many decisions stated that the constitutional provision guaranteeing one immunity from unlawful search and seizure is personal, and accused will not be heard to' object that the search of the property or premises of some third person is a violation of his constitutional rights. Bynum v. State, 40 Okla. Cr. 352, 268 P. 993; White v. State, 33 Okla. Cr. 428, 244 P. 450; Williams v. State, 35 Okla. Cr. 171, 249 P. 433; Penrod v. State, 38 Okla. Cr. 46, 258 P. 1052; Boardwine v. State, 64 Okla. Cr. 49, 76 P. 2d 1081; Strickland v. State, 40 Okla. Cr. 94, 267 P. 672; Dyer v. State, 61 Okla. Cr. 202, 66 P. 2d 1104; Stump v. State, 66 Okla. Cr. 391, 92 P. 2d 616.

The Bynum and White” Cases, supra, both involved the search of automobiles. The federal courts have followed this rule. Remus v. United States, 6 Cir., 291 F. 501; Williams v. United States, 10 Cir., 66 F. 2d 868, and cases cited. The courts of last resort of other states have also passed upon this question. Neece v. State, 89 Ind. App. 122, 165 N. E. 920; Lovern v. State, 140 Miss. 635, 105 So. 759; State v. Fenley, 309 Mo. 520, 275 S. W. 36; Duke v. Commonwealth, 201 Ky. 365, 256 S. W. 725.

Finding no error, the judgment of the court of common pleas of Oklahoma county is affirmed.

JONES, J., concurs. DOYLE, J., absent.


text:
    STATE v. ASHER BRADY SCHAVE.
    No. A-9782.
    April 30, 1941.

      (113 P. 2d 203.)
    Mac Q. Williamson, Atty. Gen., and Lewis R. Morris, Co. Atty., and Walter Marlin, Asst. Co. Atty., both of Oklahoma City, for the State.
    Judd L. Black, of Oklahoma City, for defendant.
   BAREFOOT, P. J.

Defendant Asher Brady Schave was charged in the district court of Oklahoma county with the crime of forgery in the second degree, was tried before the court without a jury and found not guilty, and the state has appealed on a reserved question of law.

Two propositions are presented:

“First. The court erred as a matter of law in holding the evidence insufficient to support the charge, and acquitting the defendant.
“Second. The court erred in excluding the oral statement of the defendant, Asher Brady Schave, offered in evidence by plaintiff.”

The statute upon which the information was based was Oklahoma Statutes 1931, section 2126, O. S. A. title 21, sec. 1578, which is as follows:

“Every person who with intent to defraud, has in his possession any forged, altered or counterfeit negotiable note, bill, draft or other evidence of debt issued or- purporting to have been issued by any corporation or company duly authorized for that purpose by the laws of this state or of any other state, government or country, the forgery of which is hereinbefore declared to be punishable, knowing the same to be forged, altered or counterfeited, with intent to- utter the same as true or as false, or to cause the same to be so- uttered, is guilty of forgery in the second degree.”

The evidence on the part of the state was that defendant was arrested by two police officers in Oklahoma City who had picked him up on a vagrancy charge and held him in the city jail for what they termed “investigation”. He had recently returned from McAlester Penitentiary, where he had served a year for drunken driving. It was also- charged in the information that he had been formerly convicted of a felony in Oklahoma county on a charge of larceny by fraud. At the time of his arrest there was found on bis person a certain check which was as follows, to wit:

“Seaboard Petroleum. Co. of New York, N. Y.
No. 38560
March 22, 1939.
Pay To The Order Of: R, B. English f4700.00 Forty-seven Hundred and No/100 . . . Dollars Union Bank And Trust Co.
New York, N. Y.
Treasurer’s Check
E. H. Rogers,
Cashier
Vice President
Countersigned: W. R. Hodges.”

Attached to this check was an oil and gas lease on 223 acres of land in Lee county, Texas, the terms of which it is unnecessary to here state. While being held in the city jail and without being permitted to have counsel or consult with anyone, he was questioned by the city police, and a written statement was prepared by one of them, and when presented to defendant, he refused to sign the same. This unsigned statement was offered in evidence by the state. It was as follows:

“Statement of
“Asher Schave, age, 34, of 110 E. 6th, Oklahoma City, Oklahoma, relative to a forged check found on his person.
“Oklahoma County, ) „„ “State of Oklahoma, j
“I, Asher Schave, make the following statement of my own free will and accord without threat or promise on the part of any one concerned, having been advised that what I may say herein may be used as evidence in the event criminal charges are filed:
“I have been out of McAlester about two weeks. I finished doing one year for Drunken Driving. Since that time, I have been living at 110 E. 6th, this city. About two nights before I got in jail, this time, I was at 131 E. 6th, which is a pool hall and beer garden. Ed Sweeney and a boy by the name of Bob and a couple of other men whose names I do not care to' divulge, and, I, were sitting at a table together. The boy named Bob, pulled a lease on some property in Lee County, Texas, No. 33560, and a check attached to it paid to the order of B. B. English, dated March 22, 1939, to the amount of $4700.00 signed by E. H. Bogers, Cashier, Vice-President, Countersigned by W. B. Hodges, of the Seaboard Petroleum Company of N. Y., N. Y. This check was drawn on the Union Bank and Trust Company of New York, and is entitled a 'Treasurer’s Check.’ The boy called Bob put this lease and check out on the table, and I picked it up and put it in my pocket, and kept it there until I was arrested. Also1, at the time I was arrested, I had a .32 Owl Head revolver No. 84187. I do not know any of the men whose names appear on this check. We were all sitting around this table drunk, and 'Bob’ pulled this lease out of his pocket and fell over on the table. I then picked it up and did not even know I had it until I was arrested.
"I, Asher Schave, have read the above and foregoing statement, made1 by me in the presence of witnesses in the Detective Bureau of the Oklahoma City Police Department this 13'th day of June, 1939, and do hereby state that all the facts contained herein are truth to- the best of my knowledge, so help me God.
"Signed-

The court sustained objections to the introduction in evidence of this statement for the reason it was unsigned and defendant refused to sign it. The state then attempted to prove by the officers that the statements made therein had been made to them by the defendant. The refusal of the court to permit the introduction in evidence of the unsigned statement and the refusal of the court to permit the officers to testify he had told them the statements made therein were true, and that the court erred in finding the defendant not guilty, and discharging him, are the errors complained of in this appeal.

In the first place, where a jury is waived and the case is tried before the court, the weight and credibility of the evidence as determined by the court is the same as if determined by a jury, and it will be given the same force and effect. Ex parte J. C. King, 42 Okla. Cr. 46, 274 P. 682; O. S. A. Constitution, section 20, article 7.

Under the statute above quoted, the possession of a “forged, altered or counterfeit negotiable note, bill, draft or other evidence of debt” with intent to defraud, “knowing the same to be forged, altered ,or counterfeited, with intent to utter the same as true or as false, or to cause the same to be so uttered”, is forgery in the second degree. Under this statute the main ingredients that are necessary are “possession”, “intent” and “knowledge”. It is true that from the fact of possession there may arise a presumption that there was an “intent” or a “knowledge”, but in the last resort this is a question for a court or jury to decide, as to whether the evidence in its final analysis is sufficient to supply the “intent” and the “knowledge”. The court, after hearing the evidence in this case, came to the conclusion that it was insufficient to establish an intent on the part of the defendant to use the draft or check found in his possession for an illegal purpose. It is not for this court to say that the court was wrong in coming to this conclusion. The evidence revealed no overt act on his part in which he attempted to utter or pass the instrument. The statement which he refused to sign and the statement of the officers nowhere showed any attempt on his part toward the uttering or passing, or that he forged the instrument found in his possession. It is true a gun was found in his possession at the time of his arrest, and that he had served a previous term in the penitentiary and, as the trial court suggested, he probably “ought to be put in the penitentiary”, but the evidence did not reveal his guilt under the law, and he was discharged. We do not find that the court erred as a matter of law in holding the evidence insufficient to support the judgment and acquitting the defendant.

As above stated, we do not think the court erred in refusing to admit in evidence the unsigned statement offered by the state under the facts and circumstances in this case; and did not err in refusing to permit the officers to testify that defendant had made statements to them which they had written into the unsigned statement which he refused to sign. The court came to the conclusion that the statements were not voluntarily made and that they were made under duress and were therefore inadmissible. Miller v. State, 13 Okla. Cr. 176, 163 P. 131, L. R. A. 1917D, 383. In this we find no error. The statement does not constitute a confession, but it admits the possession of the check or draft and gives an explanation of how he came in possession of the same. It admits his having been in the penitentiary and of being released therefrom two weeks prior thereto. The same could have been admitted in evidence, yet the court would be justified in coming to the conclusion that defendant was not guilty under the law and should be discharged.

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

JONES, J., concurs. DOYLE, J., absent.


text:
    MIKE MALADIN v. STATE.
    No. A-9783.
    April 30, 1941.
    (113 P. 2d 201.)

      L. G. Brewer, of Sayre, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Mike Maladin, was charged' by information on August 18, 1939, in the county court of Beckham county, with selling two gin fizzes; was tried, convicted, and sentenced to serve a term of 30 days in the county jail and to pay a fine of $50 and costs, from which judgment and sentence he appeals to this court.

Defendant contends that the trial court erred in overruling his demurrer to the information.

The information, in part, is as follows:

“* * * One Mike Maladin and Rita Moore late of the County aforesaid, on or about the 17 day of August 1939 in the County of Beckham and State of Oklahoma, did then and there unlawfully, knowingly, willfully, intentionally, and wrongfully, sell, barter, give away, and otherwise dispose of two drinks of intoxicating liquor, commonly called gin fizzes, to Richard Roe, a person whose true name is unknown to affiant. * * *”

Defendant demurred to the information on the ground that the statutory words “which contain more than three and two-tenths (3.2%) per cent of alcohol, measured by weight, and which is capable of being used as a beverage” were not set forth in said information. Demurrer was overruled.

Defendant was charged under Session Laws of 1933, ch. 153, p. 338, § 2, 37 Okla. St. Ann. § 1, which does not define what shall be considered as an intoxicant. Our courts, however, have held that liquors per se, such as brandy, gin, whisky, wine, and alcohol, would be considered as intoxicating; but in charging the sale of preparations, mixtures, and compounds, other than liquors per se, under said statute, it is necessary to allege that such liquors “contain more than three and two-tenths (3.2%) per cent of alcohol, measured by weight, and which is capable of being used as a beverage.” Saddler v. State, 36 Okla. Cr. 412, 255 P. 719; Parker v. State, 39 Okla. Cr. 25, 262 P. 1075; Skelton v. State, 31 Okla. Cr. 343, 239 P. 189.

An alleged gin fizz cannot be called a liquor per se, since it is a mixture, like a lemon sour, which is not made by a standard formula, is not generally offered for sale in this jurisdiction, and which has not become so well known as to have a general reputation as to its intoxicating character. Davis v. State, 71 Okla. Cr. 82, 108 P. 2d 200; Richardson v. State, 21 Okla. Cr. 393, 208 P. 1052.

In passing upon this case, we direct attention that it has been held that an information, which charges that the accused did “sell, barter, give away, and otherwise furnish” intoxicating liquor, charges only a sale or barter; the “give away, and otherwise furnish” feature is considered as surplusage where specific facts are not pleaded. Jenkins v. State, 11 Okla. Cr. 168, 145 P. 500; Tracy v. State, 9 Okla. Cr. 532, 132 P. 692.

The phrase “otherwise dispose of,” which was used in this information, is not contained in the statute, and in many respects is a weaker phrase than “otherwise furnish.” There was a complete failure of proof as to a sale or barter of the two alleged gin fizzes on the part of the defendant.

The information as prepared was defective, and the demurrer thereto' should have been sustained.

The defendant makes many other assignments of error, but it is only necessary that we consider one of them.

It is alleged that the proof is insufficient to sustain a sale of intoxicating liquor.

The state introduced the testimony of only one witness, the sheriff of Beckham county, to prove the alleged sale. The sheriff testified that he went to the defendant’s cafe about 11 o’clock at night. That he parked his car on the outside of the cafe, and saw a. girl bring some drinks on a tray and distribute them to folks in a car. That he seized two of the drinks, took them into the place of business, and set them down, and walked through a door into a little dance hall, where there were a man and a lady sitting at a table drinking. That he went over and found some glasses of liquid on the table, and tasted of it, and determined that it contained gin or alcohol. That he took the two glasses he found on the table and poured the liquid contained in them into a pint bottle, together with the liquid contained in the other two glasses taken from the car on the outside of the cafe.

As to the nature of the drinks and the alleged sale, the sheriff testified concerning the defendant:'

“Q. Did he tell you whether or not he had mixed them himself? A. No, sir. * * * Q. Sheriff, do you know who those individuals were that you spoke of sitting there at the table? A. No, sir. Q. Did you ask them? A. No, sir. Q. Did you make any effort to- find out who they were at all? A. No, sir. Q. But there was more than one of them? A. There was a man and a lady. Q. Did you see this defendant, Mike Maladin, mix these drinks? A. No-, sir. Q. Did you see him put any lemon juice or seltzer water or ice or anything like that in these drinks? A. No; sir. Q. Did you see him receive any pay for these drinks that you have alleged in there? A. No, sir. Q. Did he tell you he received pay for them? A. No, sir.”

The defendant is not charged with the unlawful possession of intoxicating' liquor or with maintaining a public nuisance, but the state relies specifically upon the fact that the information charges defendant with a sale of liquor.

A sale is a transfer of property from seller to buyer for a consideration or price in money, paid or promised; an agreement by which a title passes from one and vests in the other. Reed v. State, 3 Okla. Cr. 16, 103 P. 1070, 24 L. R. A., N. S., 268.

In Stevens v. State, 31 Okla. Cr. 376, 239 P. 273, this court held:

“To. sustain a charge of selling intoxicating liquors, there must be proven a consideration paid or promised by or in behalf of a purchaser to or in behalf of a seller, and a delivery of the thing sold.”

No. other proof was offered by the state other than what is hereinabove set forth. It is clear that the state has failed to prove a sale. There are probably sufficient circumstances to show that the alleged liquor was mixed in the defendant’s cafe, hut the proof is wholly insufficient to prove a sale.

The vigilant enforcement of the prohibition laws is to be commended; yet if a conviction is to be sustained, it must be based upon facts from which a legitimate deduction of guilt can be had. The proof does not show that the defendant sold intoxicating liquor to anybody. All it does show is that a man and a woman were sitting at a table, drinking a liquid which contained some alcohol. There is nothing to indicate that the defendant parted' with the alcohol, if he ever had it, for a consideration.

For the reasons hereinabove stated, the judgment of the county court of Beckham county is reversed.

BAREFOOT, P. J., concurs. DOYLE, J., absent.


text:
    PASCHAL SANDERS et al. v. STATE.
    No. A-9786.
    April 30, 1941.
    (113 P. 2d 198.)

      Bishop, Bishop & Seay, of Seminole, and Billingsley & Kennerly, of Wewoka, for plaintiffs in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendants, Paschal Sanders and J. C. London, together with Jess Williams, were charged by information, on June 6,1938, in the district court of Pottawatomie county with the crime of burglary in the second degree, and upon pleas of guilty were each sentenced to serve a term of three years in the State Penitentiary, from which, judgment and sentence they appeal to this court.

The only contention of defendants is that the court erred in refusing to allow them to withdraw their pleas of guilty and enter pleas of not guilty for the reason that they ■have a defense, entrapment.

The record shows that on June 30, 1938, defendant Sanders entered his plea of not guilty; that he was granted permission on April 6, 1939, to withdraw his plea of not guilty and to enter a plea of guilty; that at all times he was represented by counsel.

The defendant London, with advice of an attorney, entered a plea of guilty on April 11, 1939.

The time for pronouncing judgment and sentence against each of the defendants was postponed to June 5, 1939. On that date the defendants, through their counsel, advised the court that they wished to introduce evidence in mitigation of the offense charged against the defendants, and the court accordingly postponed the. pronouncement of judgment and sentence to June 12, 1939.

On that date the defendants introduced testimony which tended to show that the former sheriff of Pottawatomie county had framed with one Roy Yoder to procure the defendants to burglarize a building so that the sheriff could catch them and secure publicity just before the primary election in 1938. The former sheriff denied the alleged entrapment.

After the court had heard all of the evidence, counsel for defendants requested permission to withdraw their pleas of guilty and enter pleas of not guilty for the; reason the proof affirmatively showed that the defendants would not be guilty of the crime of burglary because of entrapment.

In denying their motion, the court made the following statement :

“The joint motion of the defendants just made to withdraw the former plea of guilty for the purpose of entering a plea of not guilty is denied for the following reasons:
“First, this case has been set for trial regularly at least twice before a jury. On the first occasion representation was made in court by the county attorney and the then sheriff that these hoys were aiding the officers in apprehending one Williams wlm had escaped from the Pottawatomie county jail. The court on the first occasion continued the case for that reason.
“On the second occasion when the case was set for trial both men were represented by counsel prior to the setting of the trial, and on a day prior to the day the cases were set for trial counsel approached the court and discussed the matter of withdrawing the former plea of not guilty for the purpose of entering a plea of guilty and — I may be wrong in this — stated to the court they would like to introduce some evidence in mitigation, suggesting an entrapment. The court granted that request for a hearing, and the same was continued from time to' time until it came on for hearing this day, and on this day court convened at 10 o’clock in the morning and the witnesses were produced by the defendants and by the state until the hour of 3 o’clock, and no suggestion was made of withdrawing the former plea of guilty until after this testimony had been taken.
“The court believes these men have been adequately represented before this court for more than a year.
“The motion is therefore denied.”

It has been held that where officers or those acting under them first suggest the commission of the criminal act or lure the accused into the commission of such acts, that sound public policy will not uphold a conviction. Warren v. State, 35 Okla. Cr. 430, 251 P. 101; Rider v. State, 53 Okla. Cr. 393, 12 P. 2d 552; Shouquette v. State, 25 Okla. Cr. 169, 219 P. 727; Wooten v. State, 70 Okla. Cr. 292, 106 P. 2d 132.

In Kemp v. State, 35 Okla. Cr. 128, 248 P. 1116, 1118, this court said:

“It has been the uniform holding of this court that, where a plea of guilty is entered through inadvertence, ignorance, or without deliberation, the court should be liberal in permitting it to be withdrawn and a plea of not guilty substituted. * * * Where the court fails to fully advise a defendant of his rights and the consequences of his plea, and through ignorance, inadvertence, or influence a plea of guilty is entered, and application to withdraw is made before judgment, the court should permit it to be withdrawn.” Sloan v. State, 54 Okla. Cr. 324, 20 P. 2d 917; Jenkins v. State, 6 Okla. Cr. 516, 120 P. 298.

In the case of McAtee v. State, 39 Okla. Cr. 10, 262 P. 703, the accused, represented by counsel, upon arraignment entered a plea of not guilty with the understanding that a demurrer to the information was to be filed and considered. When the case came on for trial more than a year later, defendant asked leave to- withdraw his plea of not guilty, which the court permitted. The demurrer to the information was overruled, and the court directed that the former plea of not guilty be again entered. Defendant then asked to withdraw the plea of not guilty and enter a plea of guilty, which motion was granted. A few days later defendant requested the court to allow him to withdraw his plea of guilty and enter a plea of not guilty for the reason that he had been led by counsel to believe that he did not have a defense, but was at that time of the opinion that he had a good defense. The court, upon the day set for judgment and sentence, heard testimony of the defendant upon his motion, overruled the same, and sentenced defendant.

It was held in that case:

“The granting or denying of permission to withdraw a plea of guilty, and to substitute a plea of not guilty, is a matter within the sound discretion of the trial court, and its action must be upheld unless an abuse of such discretion clearlv appears.” Rudolph v. State, 32 Okla. Cr. 265, 240 P. 761.

This court stated in Hart v. State, 29 Okla. Cr. 414, 233 P. 1095, 1096:

“A defendant should not be allowed to trifle with the court by deliberately entering a plea of guilty one day, and capriciously withdrawing it on the day set for pronouncing judgment. * * *”

The decisions of this court clearly state that in order to uphold the contention of an accused that a trial court has abused his discretion in refusing to allow a plea of guilty to1 be withdrawn and a plea of not guilty substituted therefor, it must be apparent from the record that the plea has been made unadvisedly, through ignorance, inadvertence, influence, or without deliberation, and that there is a defense that should be presented to a jury.

The defendants and their counsel knew at the time the pleas of guilty were entered what the testimony would show as to the alleged entrapment. Counsel for defendants were thoroughly familiar with the law regarding the defense of entrapment. The defendants have a defense that' could be presented to the jury; but after a year’s deliberation, at all times with the advice and assistance of counsel, it is apparent that the defendants acted deliberately, and not through ignorance, inadvertence or influence. Under the facts presented by this record, we do not think that the trial court abused his discretion in denying their application to withdraw their pleas of guilty.

On the other hand, it appeal's that the defendants, while they were out on bond, were of material assistance to the officers of Pottawatomie county in their endeavor to capture an escaped convict. The former record of each of the defendants is bad; but owing to the assistance which they rendered to the chief of police of Seminole and the sheriff of Pottawatomie county, and the fact that these officers indicated, in their testimony that they had extended promises to the defendants to do all in their power to secure leniency for them in the burglary case involved herein, we feel that the ends of justice would best be met by modifying the sentence imposed upon the defendants to two years in the State Penitentiary.

It is therefore ordered that the sentence of three years in the State Penitentiary be modified and reduced to two years in the State Penitentiary, and the judgment and sentence of the district court of Pottawatomie county, as thus modified, is accordingly affirmed.

BAREFOOT, P. J., concurs. DOYLE, J., absent.


text:
    ETHEL POTTS v. STATE.
    No. A-9801.
    May 21, 1941.
    (113 P. 2d 839.)

      Frank Hickman, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Douglas Garrett, Co: Atty., of Muskogee, for the State.
   BAREFOOT, P. J.

Defendant, Ethel Potts, was charged jointly with Mary Davis in the district court of Muskogee county with, the crime of “larceny from a building”, was tried, convicted and sentenced to serve a term of six months in the penitentiary, and has appealed.

The statute upon which the information in this case was based is Oklahoma Session Laws 1937, chapter 15, article 7, p. 14, secs. 1 and 2; O. S. A. title 21, secs. 1723 and 1724, which are as follows:

(1) “Any person entering and stealing any money or other thing of value from any house, railroad car, tent, booth or temporary building shall be guilty of larceny •from the house. Larceny from the house is declared to be a felony.”
(2) “Any person convicted of larceny from the house shall be punished by imprisonment in the State Penitentiary for a period of time not to exceed five (5) years.”

For reversal of this case it is contended: First, that the trial court erred in overruling defendant’s demurrer to the information and in overruling the motion to quash the information as amended and in overruling the demurrer to the information as amended. Second, the verdict and judgment are contrary to law and are not supported by sufficient evidence.

The record reveals that the preliminary complaint filed in the justice of the peace court charged that the defendant : “* * * did, then and there, knowingly, willfully, wrongfully, stealthily and feloniously enter a building, located at 411 West Broadway street, in the city of Muskogee, Muskogee county, Oklahoma, the same being J. C. Penny & Company, and then and there a place where personal property was and is kept, with the unlawful, stealthful and felonious intent on the part of the said Ethel Potts and Mary Davis to take, steal and carry away, without the knowledge and consent and against the will of the said J. C. Penny & Company, certain personal property * * *,” but did not allege that defendant stole any money or property therefrom. The defendant waived preliminary hearing, no evidence being taken, and was held to answer in the district court. The county attorney filed an information in the district court charging the alleged offense in the same language as set forth in the preliminary complaint. The defendant filed a demurrer thereto on the grounds that the facts stated in the information did not constitute a felony under the statutes of the state. The day the case was set for trial the court permitted the county attorney to' amend the information by interlineation and by inserting the words, “did take and steal personal property situated therein.” Motion to quash the amended information was filed which set forth five grounds, as follows:

“(1) That said information, as amended, does not substantially conform to the requirements of the statutes.
“(2) That these defendants have never been afforded a preliminary trial or hearing upon the charge contained in said information, as amended, nor waived such preliminary hearing.
“(3) That the charge contained in said information, as amended, is not the charge for which defendants were held to answer by the preliminary magistrate.
“(4) That neither the preliminary complaint nor the transcript of the preliminary magistrate shows what offense these defendants were held to answer for, and that therefore the county attorney is without authority to file any information in this court.”

When this motion was overruled, a demurrer to the amended information was filed, overruled and exceptions saved. It is contended that the above errors were sufficient to cause a reversal of this case.

It will be noted that the statute above quoted and upon which this prosecution is based requires that before one can be charged thereunder, there must be an “entering and stealing”. The statute does not include an “intent to steal.” In this it is different from the burglary statute, Oklahoma Statutes 1931, sec. 1931, O. S. A. title 21, sec. 1435, which provides:

“Every person who breaks and enters in the day time or in the night time, either: * * *
“2. Any building or any part of any building, booth, tent, railroad car, vessel or other structure or erection in which any property is kept, with intent to steal therein or to commit any felony, is guilty of burglary in the second degree.”

In this statute it states, “with intent to' steal therein”. No doubt when the original complaint and information was filed in this case the county attorney had in mind the above statute. It will be noted that the statute here under consideration does not make an “intent to steal” a crime, and the complaint originally filed, in the justice of the peace court and the information filed in the district court did not state facts sufficient to constitute a crime under the statute. Under this statute one might enter a house with the intent to steal, but unless he actually stole money or property, no crime was committed.

It has been the holding of this court that, where one is charged in a justice of the peace court by preliminary complaint and an examining trial has been had and the defendant held to the district court, the county attorney is authorized to file an information in the district court upon any reasonable charge which the facts at the preliminary examination justify, and that if a preliminary is waived, as was done in this case, he may file an information in substantial compliance with the complaint filed before the justice of the peace. Rickman v. State, 70 Okla. Cr. 355, 106 P. 2d 280; Little v. State, 21 Okla. Cr. 1, 204 P. 305; Wade v. State, 18 Okla. Cr. 592,197 P. 180; Johnson v. State, 21 Okla, Cr. 17, 204 P. 311.

The demurrer and motion to quash the amended information raises the question that the amendment by inter-lineation in the instant case permitted the information to state a crime when in truth and in fact no crime was charged in the original information. With this contention we are inclined to agree. This seems to be in accord with the universal holdings, not only of this court, but of authorities in general. See notes, 7 A. L. R. 1516, 68 A. L. R. 928, 101 A. L. R. 1254. People v. Cockrill, 62 Cal. App. 22, 216 P. 78; Cockrill v. People of California, 268 U. S. 258, 45 S. Ct. 490, 69 L. Ed. 944; Commonweath v. Cooper, 264 Mass. 378, 162 N. E. 733, 734. In the last case cited the court says:

“Here was a presentment by the grand jury which, set out no offense. As it was framed originally the court was without jurisdiction to try the defendant or to sentence him. That question could have been raised at any stage of the proceedings. The court of its own motion would be bound to take notice of it. Commonwealth v. Connor, 155 Mass. 134, 29 N. E. 204; Commonwealth v. Andler, 247 Mass. 580, 582, 142 N. E. 921.
“The amendment offered and allowed was not ‘in relation to' allegations’ of the so-called indictment because there were no' allegations in any proper sense in the indictment as presented by the grand jury. It was a piece of waste paper so far as concerned the charge of any crime. The amendment inserted ‘allegations’ where there were no pre-existing allegations. Manifestly the amendment was not ‘in relation to * * * particulars,’ because there can be no particularization of something nonexistent. What happened was that the defendant began his trial upon a presentment by the grand jury which charged him with no crime whatever. He need not call a witness or take the stand in order to be entitled as a matter of right to a discharge. In the midst of the trial, by virtue of the allowance of the amendment offered by the district attorney, the defendant was confronted with the charge of a felony' of considerable magnitude, a crime for which he could be prosecuted only upon an indictment by the grand jury. Jones v. Robbins, 8 Gray [Mass.] 329; Commonwealth v. Horregan, 127 Mass. 450; Opinion of the Justices, 232 Mass. 601, 602, 123 N. E. 100. It is impossible in these circumstances that the defendant would not be prejudiced in his defense.’ ”

Oklahoma Statutes 1931, section 2830, O. S. A., title 22, sec. 304, provides as follows:

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

In construing this statute this court has always given thereto a liberal construction and has generally held that amendments to an information were permissible, especially if based on a technicality. But we have never held that where the information fails to state facts sufficient to constitute a crime, an amendment may be made which permits a crime to be alleged and which causes material prejudice to the rights of the defendant. We have also held that an information which alleges a crime may not be amended to charge a defendant with another and separate crime from the one alleged in the original information and one that was not an included offense.

In the case of Kelly v. State, 12 Okla. Cr. 208, 153 P. 1094, 1097, in any early opinion, Judge Doyle rendering the opinion, said:

“Under the provision of the Constitution already quoted, the defendant in a criminal case has the right to be informed as to the acts which he has committed which constitute his supposed crime; he cannot be charged in the preliminary complaint and in the information with one offense, and upon his trial be convicted of another different offense, unless the same is included in the offense charged and embraced within the allegations of the information.”

In Little v. State, 21 Okla. Cr. 1, 204 P. 305, the court says:

“In prosecutions for felony by informations, no amendment to the information in the trial court is permissible, either before or after plea, which has the effect of charging an offense for which no preliminary examination had been given or waived by the defendant.”

In Rickman v. State, 70 Okla. Cr. 355, 106 P. 2d 280, 281, Judge Jones in delivering the opinion of the court says:

“Where the defendant waives the right to a preliminary examination, and no evidence is offered by the state, the charge in the information must be substantially as that stated in the preliminary complaint.”

And:

“Where the defendant waived a preliminary examination and no proof was taken by the state, a motion to quash an information should be sustained if the allegations contained in the information vary in some material matter from those set forth in the criminal complaint.”

In the case of Paul v. State, 41 Okla. Cr. 164, 272 P. 485, Judge Edwards in the syllabus says:

“Where a charge of felony is made before a committing magistrate and the accused Avaives a preliminary examination and is held for the action of the district court for the charge contained in the preliminary complaint, the county attorney is authorized to file an information charging the offense defined in the preliminary complaint. Under section 2512, Comp. Stat. 1921, 22 Okla. St. Ann. § 304, such information may be amended in the district court so long as the amended information charges substantially the same offense as that charged in the preliminary complaint.”

But in the body of the opinion he states:

“If the record before us disclosed that the amended information charged an offense different from that charged in the preliminary complaint upon which the preliminary Avas Avaived, this case Avould necessarily be reversed.”

In the case of White v. State, 23 Okla. Cr. 198, 214 P. 202, the amendment Avas permitted because a crime was charged, although imperfectly, in the original information, but in the case at bar the original information did not charge a crime under the statute.

In the case of Arms v. State, 49 Okla. Cr. 34, 292 P. 76, 77, it is said:

“It is, of course, not permissible to allow an amendment to change the nature of the offense or to charge a different - offense.”

It will thus be seen that, while a case involving the identical facts of the case at bar has not been before this court, the principle involved has many times been considered. It appearing that the original information not having charged a crime under the statute, this court erred in permitting an amendment to be filed by interlineation on the day the case was set for trial which so changed the information that it charged a crime under the statute. The record was protected by. the filing of a motion to quash and by a demurrer to the amended information. The same should have been sustained.

It is also urged that the amended information fails to allege facts sufficient to constitute a crime under the statute upon which this prosecution is based, it being contended that the statute names five specific places where it is unlawful to enter and steal money or property, viz., “any house, railroad car, tent, booth or temporary building”, and that it was not the intent to include therein a building such as a store where people are invited to enter and trade at all times. While it is not necessary to pass upon this question at this time, in view of what we have heretofore stated, we will say that this raises a very serious question, and there is much doubt in our minds that the Legislature intended to include a store in this enumeration. If they did, it would have been very easy for them to have so stated. If they did so intend, it would mean a wiping out of existence the petit larceny statute of this state when property was stolen from a store building. The property alleged to' have been stolen in the instant case was two dresses of the value of $13.80, but if an orange of the value of five cents or any other property of a value less than $20 had been stolen, the party would be guilty of a felony and would be sent to the penitentiary. We think there is grave doubt as to whether it was the intention of the Legislature that the terms of this statute should include a building operated as a store where the public is invited to enter and trade. It becomes unnecessary to consider the question of the sufficiency of the evidence in this case.

For the reasons above stated the judgment of the district court of Muskogee county is reversed.

JONES, J., concurs. DOYLE, J., absent.


text:
    JERRY SMILEY v. STATE.
    No. A-10036.
    May 21, 1941.
    (113 P. 2d 838.)
    Rupert E. Martin, of Ardmore, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Jerry Smiley, was charged jointly with one John Groves in the district court of Carter county by information on December IB, 1940, with the larceny of an automobile, was tried, convicted and sentenced to serve a term of five years in the State Penitentiary, from which judgment- and sentence he appeals to this court.

The only contention made by defendant herein is that the evidence is insufficient to support the judgment and sentence.

The evidence introduced by the state showed that a maroon colored, 1939 Model Ford car, the property of Sid Harrell, was taken from where it was parked in front of Harrell’s home sometime during the night of November 19th or early morning of November 20, 1940.

Darrell Briggs, a filling station attendant in the outskirts of Ardmore, testified that the defendant, with another man whom he was unable to identify, drove into the filling station where he was working early in the morning of November 20th, ordered some gasoline, and after he had filled their tank, they drove off without paying for it. Two policemen were just across the street from the filling station at the time this occurred, and at Briggs’ request they started a chase after the automobile which the defendant was driving. According to the testimony of the policemen, they were only about a quarter of a mile behind the defendant and his companion, but were unable to overtake the car before it was abandoned four or five miles south of Ardmore.

It had been raining at the time of these occurrences, and the roads and fields were wet and muddy. Two or three hours later on the same morning, the defendant was arrested in Ardmore by the Ardmore police. His clothes were wet and muddy. The owner of the automobile which was stolen identified the vehicle which had been abandoned as his automobile, and the filling station attendant positively identified the defendant as the person who was driving the stolen car.

John Groves was not identified as the other man with defendant. The court sustained a demurrer to the sufficiency of the evidence as to Groves, but overruled the demurrer as to the defendant.

The defendant offered no evidence in his own behalf.

In considering the sufficiency of the evidence, the function of this court is limited to ascertaining whether there is a basis in the evidence on which the jury could reasonably conclude that accused is guilty as charged. There is abundant evidence in this case from which the jury could logically and reasonably conclude that defendant committed the offense charged. Whitten v. State, 25 Okla. Cr. 447, 221 P. 115; Carroll v. State, 55 Okla. Cr. 197, 28 P. 2d 588.

The case is accordingly affirmed.

BAREFOOT, P. J., concurs. DOYLE, J., absent.


text:
    HERMAN ALLEN v. STATE.
    No. A-9757.
    May 21, 1941.
    (113 P. 2d 835.)

      Robert W. Hoyland, of Guthrie, for defendant.
    Mac Q. Williamson, Atty. Gen., and Hugh J. Adams, Co. Atty., of Guthrie, for the State.
   BAREFOOT, P. J.

Defendant Herman Allen was charged in the county court of Logan county with the crime of unlawful possession of intoxicating liquor, to wit: seven and one-half pints of whisky; was tried, convicted and sentenced to pay a fine of $50 and serve 30 days in the county jail, and has appealed.

It is first contended that the court erred in admitting, over the objections of defendant, incompetent, irrelevant, immaterial and prejudicial evidence. This contention is based upon evidence of certain witnesses offered by the state who were neighbors and lived in the vicinity of the defendant’s residence. They testified that defendant’s residence had the general reputation of being a place of public resort and the reputation of being a place where intoxicating liquors were sold.

The general rule that has heretofore been announced by this court, that evidence of the general reputation of defendant’s home as being a place where intoxicating liquors are sold, is Admissible, only upon the laying of a proper predicate showing the home was a place of general or public resort. In the instant case, this is exactly what the evidence revealed. The witnesses lived in close proximity to the residence of defendant. They testified that they had observed a large number of people going, to and from the premises at all times of the day and night. That they had seen a large number of cars parked there on many occasions, and that people had been seen coming] from there in an intoxicated condition. One of the neighbors testified to people coming to her home and asking the way to defendant’s home and making inquiry for whisky. Among the witnesses produced by the state was Rev. J. Harvey Mitchell, pastor of the Tabor Baptist Church, who testified that he had observed people in large numbers going to and from these premises at all hours of the day and night and had seen as high as seven automobiles at one time, and that the place had the general reputation of being a place where intoxicating liquors were sold.

Several witnesses for defendant testified that the defendant was a hard working man and was working regularly on W. P. A. projects, and that his general reputation was good. The defendant testified that he had served many years in the United States Army and had been injured and gassed while in France, and that the liquor found on his premises was to be used for himself and to give to his friends, and that he had never sold liquor to anyone. He also testified it was necessary for him to drink liquor on account of his nervous condition.

The evidence on the part of the state revealed that the officers searched the home of the defendant in the city of G-uthrie on the 22nd day of May, 1939, and found therein seven and one-half pints of whisky. This whisky was concealed in different rooms in the house. There were three different plants behind the sills in the bedrooms. They had been specially constructed and had hinges on them so that they could not be detected or opened unless one knew how to do so. Defendant admitted that he had constructed these plants and that they were constructed to place liquor therein, but claimed it was for his own use. He at first told the officers there was no whisky there, and when they found it, his explanation was that it was up to them to find it. He told the sheriff of Logan county as follows:

“A. He told me later that he wanted to see Mr. Hoy-land, said he was working on WPA and was going to have to make arrangements to get out on bond. I said something to him about that making a pretty good contact for him in his business, working on the WPA, and he said, ‘No, I don’t sell them. I sell to quite a few white people.’ He said in some cases where it was fellows he owed he traded it out with them.”

In the case of Buckley v. State, 69 Okla. Cr. 285, 102 P. 2d 619, the facts were somewhat similar to the facts in this case. In the second syllabus the court says:

“When evidence is first offered by the state to' establish the fact that one’s private residence is being used as a place of storage of intoxicating liquor for the purpose of sale, or is being used as a place of public resort, it is then permissible for the state to introduce evidence to show the general reputation of the premises, where the owner thereof is charged with the unlawful possession of intoxicating liquor.”

The earlier cases establishing this rule are cited and quoted from. It is unnecessary to repeat them.

It is further contended that this case should be reversed because of the cross-examination of defendant’s witnesses by the county attorney. These witnesses were placed upon the stand as character witnesses and were asked by the county attorney if they had heard about defendant’s conviction for assault and battery in police court; if they had ever heard of the story of the trouble in 1930 when he was charged with obtaining money under false pretenses; and when he was in trouble in Tulsa in 1922 for grand larceny.

The defendant, when on the stand in his own behalf, testified to having been fined $20 in the police court with reference to possession of whisky. There was also' some evidence with reference to the charge of obtaining money under false pretenses. The question of permitting the county attorney to- cross-examine witnesses of defendant who had testified to his good character and reputation is discussed, and the cases from this state and other jurisdictions are cited in the case of Long v. State, 61 Okla. Cr. 274, 67 P. 2d 980. It is there stated:

“It is permissible, on cross-examination of a witness who' has testified to the good character of a defendant, to show the sources of his information, and particular facts may be called to> his attention, and he may be asked if he ever heard of them. This is especially true as to< offenses of the same character with which he stands charged. This is permissible, not for the purpose of establishing the truth of such facts, but to- test the credibility of the witness, and to ascertain what weight or value is to be given to his testimony.”

In the case of Jackson v. State, 67 Okla. Cr. 422, 94 P. 2d 851, it is stated:

“When a defendant takes the witness stand he is subject to cross examination by the same rules that govern other witnesses. If asked if he did not make some specific statement to a certain individual and he denies it, the state should, if available, produce the party to whomi the statement was made. In the absence of bad faith this is not necessarily reversible error.”

Prom an examination of the record in this case, it will be noted that there was a direct conflict in the evidence as to the character and reputation of defendant. The defendant’s record as a soldier is to be commended, but his violation of the law cannot be upheld.

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

JONES, J., concurs. DOYLE, J., absent.