text:
    MABEL BROWN v. STATE.
    No. A-10559.
    June 5, 1946.
    (169 P. 2d 772.)

      W. A. Lackey, of McAlester, and M. O. Counts, of Hartshorne, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Paul Gotcher, County Atty., of McAles-ter, for defendant in error.
   BAREFOOT, J.

Defendant, Mabel Brown, was charged in the district court of Pittsburg county with the crime of murder; was tried, convicted of manslaughter in the first degree, and her punishment assessed at four years in the State Penitentiary. From this judgment and sentence she has appealed.

The facts in this case are that defendant Mabel Brown, killed L. C. Funderburk on October 25, 1941, by stabbing her with a pocket knife. Both parties were negro women. Defendant’s husband was named Mitchell Brown. There was some evidence that L. C. Funder-burk had been keeping company with the husband of defendant at different times. On the night of the killing, defendant had gone from her home in McAlester to a nearby barbecue stand. She was accompanied by another woman, and a small child. After purchasing some sandwiches, she started to her home. She met L. C. Funderburk, as she expressed it, “about dusky dark.” It was between 5 and 6 o’clock in the evening.

A number of eyewitnesses testified in behalf of the state. One of them testified that he saw the defendant leaving the barbecue stand, and that he heard her make the statement: “ ‘This news packing is going to be cut out.’ That she was going to stop it.” That soon after this statement was made, witness saw L. C. Funderburk coming down the street, and she cried out, “She stabbed me.” She was bleeding, and asked witness to get her mother, which he did.

Another witness testified that he was operating a barbershop in close proximity to where the killing occurred. That he was sitting in his door and saw defendant pass on the sidewalk between 5 and 5:45 in the evening. That he saw L. C. Funderburk coming down the sidewalk, and that he knew them both and saw them meet. His testimony was:

“Q. When they met, what happened? A. When they met this woman here says, ‘L.C.’ she says, ‘Why do yon dip into my business?’ Something like that. Q. Mabel Brown said that? A. Yes, and all in a minute this girl says, ‘My throat is cut — I been stabbed — I been stabbed to death!’ Q. That was L. C. said that? A. Yes. Q. Did L. C. make any move of any kind? A. I didn’t see any. She didn’t have a chance. Q. Did you see Mabel Brown make any move? A. I saw Mabel Brown — after this girl hollowed ‘I am stabbed’ keep on her direction. Q. Had you seen Mabel Brown make any move with her hands? A. No, sir. Q. It all happened at once? A. All in a minute. Q. What did L. C. Funderburk do? A. She ran — come this way — and fell. Q. Where did she fall? A. Si House’s porch. Q. What did Mabel Brown do? A. I don’t know. She went out in the middle of the street and stopped. Q. What street was that? A. Grand. Q. Grand avenue? A. Yes, sir. Q. Was there anyone with Mabel Brown? A. There was a little girl. I didn’t know who she was. I didn’t recognize her. Q. When they passed the door? A. Yes.”

The night chief of police of McAlester, Ernest Am-brose, testified as to the location of the killing and certain nearby objects. He was called and arrested defendant the night of the killing. He testified:

“Q. Did you have any conversation when you took her in charge? A. She came to the back door of Mr. Hardeman’s home and met me and I said, ‘Well, Mabel, you killed her. She said, ‘She made me.’ I said, ‘Where is your knife?’ And she said, ‘Here it is, Mr. Ambrose’; and she gave me a knife, one of those like colored folks carry, single blade. Q. You indicated on your fingers— how long the blade was? A. I would say three and a half inches.”

Defendant’s testimony as to the killing was as follows :

“Q. You tell the jury in your own way just exactly what happened, what she said, what you said, what she did and what you did, as best you can. A. Well, she said, ‘Mabel,’ I said ‘yes’, she say ‘its true what these niggers are running around here saying I am going with Mitchell.’ And, ‘Its true, I am going with him’, and said ‘What are you going to do about it?’ I said, ‘Not anything I can do about it’, and she said, ‘Oh yes, I am tollin’ you.’ I said, ‘Well, I haven’t never seen you.’ I said, ‘If I ever catch you I’ll let you know what I am going to do about it.’ And she said, ‘You must remember he separated me and my husband — ’ Q. What did you tell her in answer to that? A. I said, ‘No, don’t say that, because he couldn’t go Avith you unless you let him — he is not to blame for that.’ Q. All right, did she have anything in her hand at that time? A. She did, she had a white-handled knife and she was trembling and talking to me. Q. (handing witness an exhibit) Is that the knife? A. Yes, its just like that knife. Q. She was holding it in her hands? A. Yes, she sure did, and I— Q. Wait just a minute — what was the tone of her voice — was it angry or in kindness? She was very angry, and nervous with it. Q. What was next said, if you recall — anything said about a knife? A. I said, ‘What are you going to do — ■ are you going to stab me with that knife?’ I seen she Avas opening it or something- — I was excited so bad — I throAved by sandwich down, run my hand in my pocket and opened my knife. I struck her once to keep her off of me, but didn’t strike to kill her. Q. What did you think about that knife? A. I was afraid of it. Q. Did you believe L. C. Funderburk would cut your life out of you with that knife? Mr. Haile: I want to object to that question, and putting the answer in the witness’ mouth — and being a leading question. The Court: Overruled — overruled, that’s not leading. A. Yes, sir. Q Did you believe she meant to kill you? A. She did. I was really afraid she meant to hurt me.”

For a reversal of tlie case, it is first contended that the court erred in permitting the witness W. E. Kelley to testify in behalf of the state.

This contention is based upon the fact that the name of the witness was not endorsed upon the information prior to the trial. It is revealed that this witness was the justice of the peace before whom the preliminary examination of defendant was had. He was placed upon the witness stand by the state for the purpose of identifying the transcript which he had filed in the court clerk’s office, preliminary to the offering of the testimony of an absent witness. He gave no material testimony in the case. Under these facts, we find that it was not error to permit the name of this witness to be endorsed on the information at the time of the trial, and to permit him to testify as above indicated. 22 O. S. 1941 § 303, and cases cited; Leigh v. State, 34 Okla. Cr. 338, 246 P. 667; Jeffries v. State, 13 Okla. Cr. 146, 162 P. 1137. It is also contended that this witness had a son upon the jury, and for this reason it was error to permit him to testify. This was a matter within the discretion of the trial court, and in the absence of any proof that defendant was prejudiced by the testimony of this witness, we find it was not reversible error.

It is next contended that the court erred in excluding competent and material testimony offered by the defendant.

This contention is based upon the attempt of the defendant to offer evidence that her husband and L. C. Funderburk had been keeping company, and that upon one occasion they had been arrested Avhen found in a room together, and that deceased had entered a plea of guilty, and paid a fine in tlie city court in connection with charges growing out of this offense. The court sustained an objection to this testimony, and the defendant excepted. It is claimed that this evidence was admissible for the purpose of showing that defendant had a motive for taking the life of deceased, and that her plea being self-defense, this testimony was admissible for the consideration of the jury as to who was the aggressor.

We think this evidence was admissible for the reasons above stated, but it has often been held by this court that a case will not always be reversed by reason of the failure to admit evidence, or the admission of evidence that is inadmissible. Such evidence will be considered with reference to the whole record, and it will then be determined whether the refusal to admit, or the admission, of such evidence has denied to a defendant a substantial right.

Here the defendant was charged with the crime of murder. The jury found her guilty of manslaughter in the first degree, and assessed her punishment at four years in the penitentiary, which was the minimum punishment provided by the statute. There can be little doubt but that the jury took into consideration the relation of the parties, which was presented to the jury by other evidence. The testimony of the defendant which went to the jury clearly revealed the reason for her action at the time of the difficulty, and this testimony showed the relationship between the deceased and the husband of defendant. The court permitted the defendant to testify that other parties had called her and told her of threats made against her by the deceased.

The refusal of the court to admit the evidence complained of would come clearly within the harmless error doctrine that has so often been applied in this state. 22 O.S. 1941 § 1068; Jackson v. State, 77 Okla. Cr. 160, 140 P. 2d 606; Rickman v. State, 70 Okla. Cr. 355, 106 P. 2d 280; Johnson v. State, 70 Okla. Cr. 270, 106 P. 2d 149; Cotter v. State, 74 Okla. Cr. 304, 125 P. 2d 777; Reynolds v. Reynolds, 192 Okla. 564, 137 P. 2d 914.

Witnesses for the defendant also testified' that the knife introduced in evidence and identified by defendant was found in the street about 50 or 100 feet from the scene of the difficulty, and that it had blood on it. There was no evidence that defendant had been cut or stabbed.

From the statement of the case, it can be readily seen that there was some conflict as to just what happened at the time of the killing; but we are of the opinion that the evidence is sufficient to sustain the judgment and sentence. A judgment based upon the verdict of the jury will not be set aside merely because there is a conflict in the evidence. It is only when the evidence is insufficient to sustain the judgment and sentence that it will be set aside.

It is next contended that the final argument of the county attorney, and the argument of the assistant county attorney were prejudicial to the rights of the defendant.

The argument of the county attorney was not taken by the court reporter. The statements made by counsel for defendant are such that it is impossible to know the reason for the making of same. One of the statements was, “We are willing to show all of the facts.” The statement of the assistant county attorney is not shown by the record, but counsel stated, “I am going to object to the remarks of the assistant county attorney, and he has just stated to the jury that because of her jealousy she planned to take the life of this woman.” Objection was also made to the reference by the county attorney to the defendant as “a sleek black tigress.” The court sustained an objection to the last statement.

It has often been held by this court that when considering the argument of the county attorney, the whole record will be examined, and unless it is found that the argument, in view of the entire record, is such as to affect the substantial rights of the defendant, or to cause bias and prejudice in the minds of the jury, the case will not be reversed by reason thereof. Defendant in this case was only given the minimum sentence for manslaughter in the first degree. Certainly the jury did not act with prejudice toward defendant. The facts in the instant case do not bring it within the rule announced in the cases cited by defendant.

For the reasons herein stated, the judgment and sentence of the district court of Pittsburg county is affirmed.

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


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    JOHN WALKER v. STATE.
    No. A-10573.
    June 12, 1946.
    (170 P. 2d 261.)

      Don Cameron and W. F. (Bill) Smith, both of Oklahoma City, for plaintiff in error.
    Bandell S. Cobb, Atty. Gen., and J. Walker Field,. Asst. Atty. Gen., for defendant in error.
   BAREFOOT, J.

Defendant, John Walker, was charged in the district court of Oklahoma county with the crime of receiving stolen property; was tried, convicted and sentenced to pay a fine of $100, and to serve 90 days in the county jail. From this judgment and sentence he has appealed.

The only assignment of error urged for a reversal of this case is that the evidence was insufficient to sustain the judgment and sentence, and that the court erred in refusing to sustain a demurrer to the evidence and direct a verdict of not guilty.

There can be and is no controversy as to the law with reference to receiving stolen property in this state. Many cases have been before this court involving this crime, and the cases cited by both the defendant and the state clearly define the crime. 21 O. S. 1941 § 1713, defines the receiving of stolen property as follows:

“Every person who buys or receives, in any manner, upon any consideration, any personal property of any value whatsoever, that has been stolen from any other, knowing the same to have been stolen, is punishable by imprisonment in the penitentiary not exceeding five years, or in the county jail not exceeding six months, or by a fine not exceeding two hundred fifty dollars, or by both such fine and imprisonment.”

The defendant was charged with receiving stolen property, to wit: “One man’s double breasted overcoat * * * of the value of thirty-five dollars, from Chester Leon Myers,” and which was the property of Mrs. Jack Poe.

Chester Leon Myers testified to having entered the home of Mrs. Poe in Oklahoma City, Okla., on the morning of January 14, 1944, between 10 and 10:30, and having stolen the property above described, and other property. He took this property to his place of abode and kept it until about 6 :30 or 7 o’clock in the evening of the same day, when he took the overcoat to the place of business where the defendant was working. The defendant was a bartender working for his wife at No. 30 West Reno street, in Oklahoma City. He sold this overcoat to the defendant for the price of $1. Defendant testified, admitting buying the coat, but said that he paid Myers $3.50 for the same. He denied that he knew it was stolen property.

The undisputed evidence reveals that the coat was stolen and that the witness Chester Leon Myers had been arrested, and convicted of the larceny of many other ar tides of personal property in Oklahoma City, and that many cases had been filed against him, and he had been convicted numerous times. It is also revealed by the record that Myers had on one occasion sold this same defendant a stolen watch for $5, and that his wife had bought other stolen articles from him, such as cigarettes, cigars and candy, and that the defendant knew of these transactions.

It is unnecessary to quote extensively from the record, as the testimony was for the consideration of the jury, and it was their duty to determine from all the evidence in the case whether in their opinion the defendant had knowledge at the time the property was received that it had been stolen, or that he had reasonable grounds to so believe. The record reveals many facts and circumstances which warranted the jury in reaching the conclusion of the guilt of the defendant. This property was bought at a place other than where property of this kind is generally sold. An inadequate price was paid for the same. It was sold near nighttime. The jury had the right to take into consideration the fact that the defendant and his wife had bought other property from Myers, and under suspicious circumstances.

A written statement made by defendant at the time of his arrest, and also statements made by him to the officers, were evidently considered by the jury in determining his guilt. The transaction with reference to the buying of the watch by him and his wife some 14 days prior to the time he bough the coat was significant. The testimony of the defendant himself gave strong indication that he knew that the watch was stolen property at the time of the purchase of the same.

The rule announced by this court in the case of Camp v. State, 66 Okla. Cr. 20, 89 P. 2d 378, 380, has been adhered to in both the early and the late cases of this court. It is there said:

“Under the well defined principles of law, as outlined by the many decisions of this court, it is necessary in a case of this character, not only for the state to show that the goods have been stolen, but it is necessary to show that the party receiving the property had knowledge at the time the property was received that it had been stolen. By this expression it is not meant that it is necessary for the person receiving the same to have actually seen the theft of the property. It is sufficient if the facts are such as to cause an actual belief that the property was stolen. Price v. State, 9 Okla. Cr. 359, 131 P. 1102; 2 Bishop’s New Criminal Law, Section 1138. Some cases have held that a conviction should be sustained if the facts were such ‘that in all probability’ would make the accused believe that the property had been stolen. This doctrine is not upheld in this state. Wingfield v. State, 55 Okla. Cr. 374, 30 P. 2d 930; Weaver v. State, 30 Okla. Cr. 309, 235 P. 635; Wilson v. State, 55 Okla. Cr. 22, 24 P. 2d 296.
“Other cases have held that where the proof would ‘put a man of ordinary intelligence and caution on inquiry,’ that this was sufficient. This doctrine is not upheld by the decisions of this court. Pickering v. United states, 2 Okla. Cr. 197, 101 P. 123; State v. Denny, 17 N.D. 519, 117 N.W. 869.
“The knowledge necessary may be proved by direct or circumstantial evidence, or by both. Within well defined principles of law each case must rest upon the facts of that individual case. By reason of the nature of the crime it is generally necessary for the state to rely upon circumstantial evidence in cases of this character.
“The party who purchases property from utter strangers and receives it under unusual circumstances, and especially where all the facts of the case are passed upon by a jury, and the jury has come to the conclusion after hearing the facts and circumstances, that the defendant had knowledge that it was stolen property, and by so rendering their verdict, it cannot be successfully maintained in an appellate court that defendant did not believe the property was stolen. He was just as guilty if he believed it was stolen property as if he had positive knowledge of that fact. Applying the above principle of law to the facts in the instant case, we would not be justified in reversing this case.”

See, also, Cox v. State, 74 Okla. Cr. 186, 124 P. 2d 432; Pierce v. State, 54 Okla. Cr. 118, 15 P. 2d 603; Lordi v. State, 47 Okla. Cr. 102, 287 P. 1083; Goodwin v. State, 68 Okla. Cr. 381, 99 P. 2d 181; Herren v. State, 72 Okla. Cr. 254, 115 P. 2d 258; Gourley v. State, 49 Okla. Cr. 24, 292 P. 873.

Finding no error in the record, we are of the opinion that the judgment of the district court of Oklahoma county should be affirmed; and it is so ordered.

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


author: JONES, P. J.

text:
    EDDIE DUGGINS v. STATE.
    No. A-10670.
    June 12, 1946.
    (170 P. 2d 266.)

      Meacham, Meacham & Meacham, of Clinton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Eddie Duggins, was convicted in the district court of Custer county of the crime of riot and was sentenced to serve ten years in the Oklahoma State Penitentiary.

From the judgment rendered against the defendant, an appeal was perfected by filing in this court on August 6, 1945, a petition in error with case-made attached.

The Attorney General has filed a motion to dismiss the appeal for the reason that after the appeal was filed herein the defendant was charged by indictment filed in the United States District Court for the Western District of Oklahoma with having committed certain acts 'which were in violation of the laws of the United States, which said acts were alleged to have been committed on or about March 5, 1946; that the defendant was charged by indictment in case No. 15118 with breaking and entering into a United States post office and forgery of government obligations, and was charged by indictment in case No. 15120 with breaking into and entering a post office; that on the 26th day of April, 1946, the defendant, Eddie Duggins, entered a plea of guilty to each of said indictments and was sentenced by the court to serve five years in the United States Penitentiary at Fort Leavenworth, Kan., in each case, said sentences to run concurrently. A certified copy of the indictment and judgment and sentence in each of said cases is attached to the motion to dismiss.

The motion further alleged that the defendant is now incarcerated in the Federal Penitentiary at Leavenworth, Kan., and is unable to respond to any judgment or order of this court, and that for said reason his appeal should be dismissed.

Said motion was' set for hearing and counsel for defendant appeared and admitted that the allegations of fact set forth in the motion to dismiss were true and correct and that the defendant is now incarcerated in the Federal Penitentiary at Leavenworth, Kan.

The case of Hayes v. State, 50 Okla. Cr. 178, 296 P. 988, is similar to this case. In that case, the defendant entered a plea of guilty in the United States District Court for the Northern District of Oklahoma after his appeal had been filed in this court and was committed to serve a term of three years in the penitentiary at Leavenworth, Kan. His appeal was dismissed.

In the recent case of Kuykendall v. State, 82 Okla. Cr. 228, 168 P.2d 142, it is said:

“Where defendant has been convicted and sentenced and perfects an appeal, Criminal Court of Appeals will not consider his appeal unless the defendant is where he can be made to respond to any judgment or order it may render and enter in the case.
“Where convicted defendant appeals and gives bond to stay the execution of the sentence during the pendency of the appeal, and violates condition of the bond by leaving the state without leave of court, it is within the discretion of the Criminal Court of Appeals to proceed to a decision of the cause or dismiss the appeal.
“Where defendant, after conviction of crime of forgery and during pendency of his appeal to this court, loft the State without permission and was indicted for similar offenses ^allegedly committed by him in three different counties in another State, and where proof in support of motion to dismiss appeal shows that at present time defendant is incar car ated in jail in other State and unable to respond to any judgment which Criminal Court of Appeals may render, his appeal will be dismissed.”

It being agreed that defendant is confined in the Federal Penitentiary beyond the jurisdiction of this court and where he could not be made to respond to any judgment this court might render, the appeal is dismissed.

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


text:
    Ex parte W. S. PEAKER.
    No. A-10700.
    June 20, 1946.
    (170 P. 2d 264.)

      Hulsey & Hulsey, of McAlester, for petitioner.
    Eandell S. Cobb, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Claude Hendon, Co. Atty., of Shawnee, for respondent.
   JONES, P. J.

This original action in habeas corpus was instituted by the petitioner, W. S. Peaker, to secure his release from confinement in the State Penitentiary.

The verified petition alleged in substance that on June 22, 1943, the petitioner was sentenced to serve a term of thirty-nine years in the State Penitentiary by the district court of Pottawatomie county on a charge of the crime of rape in the first degree, allegedly committed with his eleven year old daughter on June 17, 1943.

The petition alleges that the petitioner was ignorant and uneducated and had never been in any trouble before his arrest on June 21, 1943; that prior to his arrest he had been drinking to excess for many days, and that because of his drinking he had been having trouble with his wife, which instigated the filing of the complaint.

The petitioner further alleged that he was immediately after his arrest taken before a justice of the peace; that petitioner did not .know anything about his constitutional and statutory rights, and that he was not advised that he was entitled to have an attorney represent him before the justice of the peace; that the only thing said before the justice of the peace was by an arresting officer who told the justice of the peace that petitioner wanted to waive a preliminary examination.

The petition further alleges that the arresting officers informed defendant that he had been charged with raping his 11 year old daughter, and that if he should be tried on said charge that a jury might give him the electric chair, but that if he would go before the district judge and enter a plea of guilty, it would be arranged for him to be given a suspended sentence on account of the fact that he was engaged in war defense work.

That immediately after his arraignment before the justice of the peace, he was taken before the district judge; that the information filed charging him with rape, was read to him and the judge ordered him to be returned on the morning of June 22, 1943, to plead to the information; that he had no attorney at that time, and if the court said anything to him about the nature of the accusation or his right to counsel, he does not remember it; and that he did not intelligently waive any of his constitutional or statutory rights.

The petition further alleged that the petitioner was not guilty of the crime charged against him, and attached to the petition was an affidavit from the mother and the daughter in which they stated that the petitioner was .not guilty of the crime charged against him.

A voluminous response was filed in which the respondent traced step by step all of the events which transpired prior to the arrest of the defendant and after his arrest and commitment to the State Penitentiary. Attached to the response were affidavits of the trial judge, the county attorney, the assistant county attorney, the arresting officers, in addition to the minutes of the proceedings on arraignment of the accused before the justice of the peace, and also at his arraignment before the district court of Pottawatomie county. There were also attached to the petition a signed statement of the defendant given to the county attorney at the time of his arrest wherein he confessed that he had an act of sexual intercourse with his daughter on the occasion in question, and a statement written out in longhand by the daughter of the petitioner at the time of his arrest in which she very vividly described the acts of the petitionei on the night of the alleged attack.

A hearing was had before this court and oral evidence was introduced. In addition, it was agreed that the affidavits and other exhibits attached to the petition and response should be considered as evidence in the case.

It has been many times stated that the purpose of a writ of habeas corpus is not to determine the guilt or innocence of the accused of the crime for which he was convicted and sentenced, but only to determine whether he is restrained of his liberty by due process of law, and whether the court which rendered judgment imposing the sentence was without jurisdiction. In re Maynard, 79 Okla. Cr. 215, 153 P.2d 505; In re Threatt, 79 Okla. Cr. 67, 151 P.2d 816.

The scope of review in a habeas corpus proceeding is limited to an examination of the jurisdiction of the court whose judgment of conviction is challenged. In re Flowers, 71 Okla. Cr. 330, 111 P.2d 509.

This court has held that the remedy of habeas corpus is available where it is shown that in the proceedings resulting in the conviction of the accused his constitutional rights were denied. Ex parte Meadows, 71 Okla. Cr. 353, 112 P.2d 419; Ex parte Stinnett, 71 Okla. Cr. 184, 110 P.2d 310.

After an examination of the evidence in this case, it appears conclusively that the district court of Pottawatomie county had jurisdiction of the person of the accused and of the offense charged. The evidence as to the proceeding’s on the arraignment of the accused shows that he was fully informed of his constitutional and statutory rights. The record also disclosed that after the accused attempted to enter a plea of guilty, the district court refused to accept the plea and postponed his arraignment for 24 hours in which to give the petitioner time to see if he wished to enter a plea of guilty or not guilty. All of the evidence except the statement of petitioner himself shows that conviction of defendant was in' accordance with due process of law, and there is nothing-in. the record to show lack of jurisdiction in the trial court to pronounce the judgment and sentence. The writ of habeas corpus is denied.

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


text:
    In re WILLIAM NELSON SULLIVAN.
    No. A-10712.
    June 20, 1946.
    (170 P. 2d 260.)

      Sid White, of Oklahoma City, for petitioner.
    Randell S. Oobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   BAREFOOT, J.

Petitioner, William Nelson Sullivan, filed his petition seeking his release from the State Penitentiary at McAlester, where he is serving a term of 90 years by reason of the judgment and sentence of the district court of Oklahoma county, where he was tried and convicted of the crime of rape in the first degree. Attached to the petition is a copy of the information and a copy of the judgment and sentence. A demurrer has been filed to the petition by the Attorney General on behalf of the warden of the State Penitentiary.

It is contended by petitioner that the description in the information is wholly insufficient in that it fails to state the age or sex of Hazel Robertson, who was charged with petitioner as a codefendant, and fails to charge whether or not Ada Josephine Robertson (the prosecut-rix) was the wife of Hazel Robertson, and fails to charge which of the two, William Nelson Sullivan or Hazel Robertson, carnally knew the said Ada Josephine Robertson. That by reason of these allegations in the information, the district court of Oklahoma county did not acquire jurisdiction and that the judgment and sentence rendered against petitioner is void, and he is entitled to be discharged from the penitentiary.

It has often been decided by this court that habeas corpus may not be used before or after conviction to test the sufficiency of the indictment or information (Ex parte Prock, 46 Okla. Cr. 239. 287 P. 1091; Ex parte Woods, 7 Okla. Cr. 645, 125 P. 440; Ex parte Spencer, 7 Okla. Cr. 113, 122 P. 557; Ex parte Keel, 62 Okla. Cr. 277, 71 P.2d 313; Ex parte Wright, 78 Okla. Cr. 157, 145 P.2d 772; Ex parte Burnett, 78 Okla. Cr. 147, 145 P.2d 441); and that the writ of habeas corpus cannot take the place of a writ of error or of an appeal. Ex parte Adams, 42 Okla. Cr. 27, 274 P. 485; Ex parte Overby, 43 Okla. Cr. 400, 279 P. 523; Ex parte Herren, 74 Okla. Cr. 154, 124 P.2d 276; Ex parte Tiner, 72 Okla. Cr. 250, 115 P.2d 282.

In Ex parte Burnett, supra, it was said:

“The general rule is that the writ of habeas corpus may not be used either before or after conviction to test the sufficiency of an indictment or information. Where an indictment or information is merely defective, demur-rable, or subject to a motion to quash, or technically insufficient, but may be amended to state the crime sought to be charged, the person held by process based upon it is not entitled to test the sufficiency of the indictment or information, by habeas corpus. Where, however, the indictment or information is fundamentally defective in substance so that it cannot be amended to charge a crime in any manner or form or by any intendment, it is void, and a person held by process based on such void charge is entitled to discharge by habeas corpus.”

And in Ex parte Wright, supra, it is held [78 Okla. Cr. 157, 145 P.2d 773]:

“A petition for habeas corpus will not take the place of an appeal. In such action the court will not review the evidence, but will only determine whether the judgment and sentence was void, or that the court was without jurisdiction to render the judgmént and sentence.”

For the reasons stated, the petition for habeas corpus is denied.

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


text:
    JESSE MITTS v. STATE.
    No. A-10690.
    June 26, 1946.
    (170 P. 2d 563.)

      Frank Hickman, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. G-en., Owen J. Watts, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., of Tulsa, for defendant in error.
   BAREFOOT, J.

The defendant, Jesse Mitts, was charged in the district court of Tulsa county with the crime of murder; was tried, convicted, and given the death penalty. From this judgment and sentence he has appealed.

A short statement of the history of this case is necessary before a consideration of the question raised by the appeal.

The defendant was charged with having murdered Bay Martin in Tulsa county, on December 24, 1944. He was tried for this offense on March 6, 1945, and was convicted by a jury and given the death penalty.

The evidence revealed that defendant killed the deceased with a revolver he had purchased for that purpose a few days prior thereto. He went to the home of Martin, and Avaited at a window for him to undress, then shot through the window, and Martin died as a result of the wound received.

Defendant did not enter a plea of insanity at his trial. After his conviction, and prior to the entering of judgment and sentence, a motion for new trial and a motion in arrest of judgment were filed, and it was stated therein that the defendant was insane. These motions were set for hearing on March 23, 1945, and on that date the inotion for a new trial was overruled; and the question of defendant’s sanity was set for hearing before a jury on April 3, 1945, in compliance with 22 O.S.1941 § 1162, which is as folloAvs:

“When an indictment or information is called for trial, or upon conviction the defendant is brought up for judgment, if a doubt arise as to the sanity of the defendant, the court must order a jury to be impaneled from the jurors summoned and returned for the term, or who may be summoned by direction of the court, to inquire into the fact.”

The trial judge who had presided at the trial of defendant was ready to proceed with the trial before the jury on the sanity question, Avhen the judge who had been elected to the office of district judge in Tulsa county, and who had returned to Tulsa after his discharge from the United States Army, took his oath of office, and ascended to the bench and proceeded with the sanity trial. After defendant had introduced certain evidence of both doctors and laymen before the jury, and had rested his case, the following occurred:

“Mr. Hickman (counsel for defendant) : That is all, your honor: Mr. Gilmer (county attorney) : The state has no proof. The Court: Come up here a minute. (Whereupon followed argument at the bench outside the hearing of the jury, and thereupon the proceedings were continued in the presence and hearing of the jury as follows :) Mr. Gilmer: Comes now the State of Oklahoma, at the conclusion of all the testimony on the part of both the defendant and the State of Oklahoma, and requests the court to advise the jury to return a verdict of sanity. The Court: Overruled. Mr. Gilmer: Exception. The Court: Gentlemen of the jury, this case is a little unusual, as you gentlemen readily understand. You will agree, Mr. Hickman, that this case may be withdrawn from the ■consideration of the jury at this stage of the proceedings? Mr. Hickman: Yes, your Honor. The Court: Now, gentlemen, as I said, this is a matter that as you see is somewhat unusual. I am of the opinion that if I submitted this to you with the evidence that is before you at this time, there was not evidence here, gentlemen, to show that the man is insane presented to you at this time, but I want this man examined by our representatives of our state, and am going to use my efforts to have him committed to the State Sanitarium at Yinita for observation and I don’t think there is sufficient evidence here to submit this question to you. There might be some .Legal problems involved in it, but both the state and the defendant have agreed that this matter may be withdrawn from your consideration and that this man may be sent to an institution for examination. I don’t think that what we have had here would be enough for you gentlemen to say that he is not sane. I just don’t think there is enough there hut still there is — I don’t know whether the matter has been fully explored, whether his mental condition has been fully examined and I want to have that done by disinterested authorities and that is what we will do in the case. So, gentlemen of the jury, you will be discharged from further consideration of this matter and you will see the clerk and he will take care of your compensation. Mr. Gilmer: Will your Honor explain to the jury that the call of the jury was requested? The Court: Yes; Judge Clendinning who heard this matter had some doubt in his mind and you gentlemen had to be called to pass upon the question and to hear additional testimony in the matter, but under the circumstances this happens to be my way of wanting to take care of it. I don’t believe or see how under the evidence the question could be submitted to you, because nobody on the witness stand has said at any time that the man is sane or insane and if that is the case with somebody that knows something about it, I could not expect twelve men to do otherwise. So, gentlemen, you will be discharged from this matter. Thank you very much.”

On May 1, 1945, the court overruled defendant’s motion in arrest of judgment, and sentenced defendant to be electrocuted at the State Penitentiary at McAlester on July 21, 1945. Defendant perfected an appeal to this court on October 25, 1945, by filing case-made and petition in error in the manner provided by law, and this court entered an order staying the execution of defendant pending the appeal.

This case was set for oral argument before this court on March 14, 1946. Briefs have been filed by both the defendant and the state. At the time of oral argument and by briefs of both the defendant and the state, our attention has been called to the fact that on October 10, 1945, pending this appeal and while defendant was being held in tbe death cell at the State Penitentiary at McAlester, the county attorney of Pittsburg county filed a petition in the district court of Pittsburg county alleging that the defendant was at that time insane, and praying that a jury be impaneled in compliance with 22 O.S.1941 § 1005, which is as follows:

“If, after his delivery to the warden for execution, there is good reason to believe that a defendant under judgment of death has become insane, the warden must call such fact to the attention of the county attorney of the county in which the prison is situated, Avhose duty it is to immediately file in the district or superior court of such county a petition stating the conviction and judgment and the fact that the defendant is believed to be insane and asking that the question of his sanity be inquired into. Thereupon, the court must at once cause to be summoned and impaneled from the regular jury list a jury of twelve persons to hear such inquiry.”

Attached to this petition was a letter from Dr. P. M. Adams, medical superintendent of the Eastern Oklahoma Hospital at Yinita, which was as follows: (omitting caption)

“My dear Mr. Conner:
“In reference to Jesse Mitts examined by me at the Oklahoma State Penitentiary September 25, it is my recommendation that this man be removed at. an early date from the penitentiary into this institution for treatment, as he is a definite mental case. It is my opinion that this man might die if he is not given proper psychiatric care, and I think it is necessary that we expedite this man’s removal at an early date.
“He has a history of being discharged from the United States Army on October 18, 1943. The diagnosis at the time of his discharge was Psychoneurosis, mixed type, severe. I have gone into this man’s record very carefully and find that while in the army he had a very severe headache and was hospitalized for several weeks. After being ont of the hospital, the man never was normal again and was finally given his discharge. Up to the time he had this headache, he had been an excellent soldier and had risen to the rank of first sergeant.He was connected with the ground forces of the Air Corps in a very responsible position.
“It is my opinion that this man’s mental condition was caused by his headache, and it is seriously doubtful if he will ever show any improvement in his mental state.
“Trusting this will give you the desired information, I am,” etc.

Thereafter, and on October 17, 1945, a jury was empaneled, and after hearing the evidence, rendered a verdict finding the defendant to be insane, and on October 19, 1945, the defendant was transferred to the Eastern Oklahoma Hospital for Insane at Yinita, Oklahoma, where he is now being held.

After setting up the above facts in the brief filed by . the Attorney General on behalf of the State, it is stated:

“After consideration of all the facts in connection with this cause and sections 1163 and 1163 of Title 22 Oklahoma Statutes 1941, and the law in connection with matters of this kind, the defendant in error has no objection to the court remanding the cause to the trial court with instructions to set aside the judgment and to enter an order postponing the pronouncement of judgment and sentence on the verdict until the defendant recovers his sanity.”

This conclusion is in accord with the contention of the defendant.

For the reasons above stated, this cause is remanded to the district court of Tulsa county, with directions that the judgment and sentence be set aside and an order be entered postponing the pronouncement of judgment and sentence on the verdict until the defendant recovers his sanity. The medical superintendent of the Eastern Oklahoma Hospital, located at Vinita, Oklahoma, is hereby ordered and directed to deliver the defendant to the sheriff of Tulsa county upon his discharge from the Eastern Oklahoma Hospital, to be held by said sheriff subject to the order of the district court of Tulsa county.

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


text:
    VIRGIL McCANN v. STATE.
    No. A-10610.
    June 26, 1946.
    (170 P. 2d 563.)
    Robt. R. Rittenhouse, of Oklahoma City, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Yirgil Pinkston Mc-Cann, was charged in the court of common pleas of Oklahoma county with the unlawful possession of intoxicating liquor, was tried, convicted, and sentenced to serve 30 days in the county jail and pay a fine of $50 and costs, and has appealed.

The only question presented by this appeal is whether a conviction in the municipal court of Oklahoma City is a bar to a prosecution for the same unlawful act in the court of common pleas.

A police officer of Oklahoma City arrested the defendant in possession of nine pints of whisky. The policeman signed a complaint in a municipal court of Oklahoma City charging the defendant with the unlawful possession of whisky in violation of a municipal ordinance. The defendant entered a plea of guilty and was sentenced to pay a fine and costs in the amount of $20. Later, an information was filed in the court of common pleas charging the defendant with the possession of the identical liquor which was involved in the prosecution by the municipal court in Oklahoma City. Upon his arraignment before the court of common pleas, the defendant filed a plea in bar and motion to quash the information in which the question of jeopardy was presented. Thereafter, in all subsequent proceedings during the trial of said case, the defendant properly raised the question that he was twice being placed in jeopardy for the same offense.

In Cumpton v. City of Muskogee, 23 Okla. Cr. 412, 225 P. 562, 563, it is said:

“A prosecution in a city court for a violation of a municipal ordinance which prohibits an act which is also an offense under the general criminal law of the state is not a bar to a prosecution under such state law; such a second prosecution would not be in conflict with section 21 of our Bill of Bights, providing that no person shall ■be twice put in jeopardy for the same offense.
“The violation of a municipal ordinance is an offense against the municipality, and the same facts and circumstances may constitute another and different offense against the state, the same facts constituting different offenses against different governing bodies.”

In the early case of In re Simmons, 4 Okla. Cr. 662, 112 P. 951, the law is established in the syllabus as follows :

“A conviction under an ordinance of a city of the first class for being in possession of intoxicating liquors with intent there to. barter, sell, give away, or otherwise furnish contrary to law is not a bar to a prosecution for the same act under the prohibitory law of the state.”

See, also, the case of In re Monroe, 13 Okla. Cr. 62, 162 P. 233.

The defendant has cited no authority in his brief to support his contention, and in view of the foregoing decisions it is apparent that the plea of double jeopardy was properly overruled.

The judgment of the court of common pleas of Oklahoma county is affirmed.

BABEFOOT, J., concurs. DOYLE, J., not participating.


text:
    VIRGIL McCANN v. STATE.
    No. A-10609.
    June 26, 1946.
    (170 P. 2d 561.)
    Robert R. Rittenhouse, of Oklahoma City, for plaintiff in error.
    George Miskovsky, Co. Atty., and Jack Tellegen, Asst. Co. Atty., both of Oklahoma City, for defendant in error.
   JONES, P. J.

The defendant, Virgil McCann, was charged in the district court of Oklahoma county by information, with the crime of unlawful possession of intoxicating liquor after a former conviction; was tried, convicted, and sentenced to serve 60 days in the county jail and pay a fine in the sum of $500 and costs, and has appealed.

No brief has been filed on behalf of defendant and no appearance for oral argument has been made.

The proof shows that four officers armed with a search warrant searched the premises in control of the defendant and found 37 pints of tax-paid whisky. The proof further shows that defendant has sustained two prior convictions for violations of the prohibitory law in the court of common pleas of Oklahoma county.

We have examined the transcript of the record; the information is sufficient to charge the offense of unlawful possession of intoxicating liquor after former conviction of a violation of the prohibitory law. The evidence is sufficient to sustain the conviction and the instructions properly presented the issues to the jury. Since no appearance has been made in this court on behalf of the defendant, nor brief filed, it is apparent that the appeal is without merit and that the judgment should be affirmed.

It is therefore ordered that the judgment and sentence of the district court of Oklahoma county be and the same is hereby affirmed.

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


text:
    Ex parte LESTER CHRISTENBERRY.
    No. A-10764.
    July 10, 1946.
    (170 P. 2d 871.)

      Steele & Boatman, of Okmulgee, for petitioner.
    Mac Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., and Jack Pitchford, Go. Atty., and L. A. Wallace. Asst. Go Atty, both of Okmulgee, for respondent.
   JONES, P. J.

This is an original proceeding in habeas corpus instituted by the petitioner, Lester Christen-berry, for the purpose of being admitted to bail upon a charge of murder now pending against him in the superior court of Okmulgee county.

The verified petition alleges that the petitioner is restrained in the county jail of Okmulgee county by reason of a commitment issued by an examining magistrate, and that he now stands accused of the crime of murder by information filed in the superior court of Okmulgee county, but that proof of his guilt is not evident nor presumption thereof great. Attached to the petition and made a part thereof is a certified copy of the transcript of the proceedings had in the preliminary examination and also a certified copy of the transcript of the proceedings taken before the district judge of Okmulgee county in an application for bail, which application was denied by the district court of Okmulgee county.

At the time of the hearing before this court, the petitioner took the witness stand and testified at length and was cross-examined by the county attorney of Okmulgee county. The sheriff of Okmulgee county also testified concerning threats made to him by the deceased against the defendant. According to the testimony of the defendant, he shot the deceased in self-defense while the deceased was advancing upon him with a knife. The defendant testified that he shot twice to try to stop the deceased, and then shot a third time to kill him. The proof is undisputed that three shots were fired, and that only one of them took effect in the body of the deceased. The deecased lived about five hours after he was struck by the bullet.

We do not desire to make any comment upon the weight of the evidence, but it is our conclusion after an examination of the transcripts of the record heretofore mentioned and a consideration of the evidence presented in open court that the petitioner has made a sufficient showing to be entitled to bail. Ex parte Shirack, 82 Okla. Cr. 334, 169 P.2d 1022; Ex parte Sherrill, 9 Okla. Cr. 562, 132 P. 508; Ex parte Centell, 38 Okla. Cr. 127, 259 P. 276.

It is therefore ordered that the petitioner be admitted to bail in the sum of fifteen thousand dollars, ($15,000), said bond to be conditioned as provided by law, to be approved by the court clerk of Okmulgee county; that when said bond is given and approved by the court clerk of said county that petitioner be discharged from custody.

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


text:
    HOMER BONNER v. STATE.
    No. A-10539.
    July 10, 1946.
    (170 P. 2d 1020.)
    Sam Y. Colby, of Madill, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., J. Walker Field and Jess L. Pullen, Asst. Attys. Gen. and O. C. Barnes, Co. Atty., Marshall County, of Madill, for defendant in error.
   BAREFOOT, J.

Defendant, Homer Bonner, was charged in the district court of Marshall county with the crime of larceny from the person; was tried, convicted and sentenced to serve a term of one year and one day in the State Penitentiary, and has appealed.

When the appeal in this case was perfected, the Attorney General filed a motion to dismiss the appeal for the reason that the same was not perfected within the six months provided by the statute for the filing of an appeal. Reply to this motion was filed by defendant, and a copy of the judgment of the district court was attached to the reply. An examination of the record reveals that the case-made and petition in error were filed in this court on June 21, 1944, within the six months provided by statute. 22 O.S.1941, § 1054.

A reply was filed by the Attorney General admitting that the record showed that the filing of the appeal had been perfected within the six months provided by the statute, but contended that proper extensions of time had not been procured for the filing of the appeal, and that for this reason the court should only consider the case-made as a transcript and not consider the appeal on its merits. A brief has been filed by defendant, and the state has declined to file brief but is submitting the case on the motion above stated.

We have carefully read the record and find that at the time the case-made was signed by the trial judge, the following language was used in the certificate:

“And it appearing to me that the said case-made has been fully made and served upon the plaintiff within the time fixed by the orders of the court, and that the right to suggest amendments and the service of notice of the settlement of the case-made have each been waived in writing in the case-made by the plaintiff herein * * * said case-made is found to be true and correct, * * * ” etc.

The record in this case reveals that the motion for new trial was overruled on December 27, 1943, and on that date the court entered an order granting 60 days’ extension for the making and serving of a case-made, ten days to suggest amendments and three days to settle same. On February 28, 1944, an order of extension for a period of 60 days to prepare and serve case-made for appeal was signed by the trial court, and in this order it is stated that the time granted in the original order is “insufficient,” arid that an extension - of sixty days from February 27, 1944, is granted. The case-made was prepared and served within the time granted.

The contention that this appeal should be dismissed under the above statement is highly technical. The record in the case reveals that for some reason undisclosed, the regular court reporter was unable to report this case and prepare the record for appeal. During the trial of the case and while the jury was deliberating they were brought into the court and requested that certain testimony be read to them by the court reporter. She was unable to read the same, and the jury was deprived of this right, though it is provided by 22 O.S.1941 § 894, as follows:

“After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony or if they desire to be informed on a point of law arising in the cause, they must require the officer to conduct them into court.. Upon their being brought into court, the information required must be given in the presence of, or after notice to the county attorney and the defendant or his counsel, or after they have been called.”

An examination of this record reveals that it was not reported in the manner contemplated by the statute, but we do not deem it proper to sustain a motion to dismiss the appeal on a technicality such as above stated.

This defendant was charged in the district court of Marshall county with the crime of larceny from the person, of the billfold of E. P. Schneider which contained the sum of $36.98 in currency and checks. The defendant was charged jointly with S. A. Tripplett with the larceny. The defendant Tripplett joined the army and was never prosecuted. After his conviction, the defendant made application to the Pardon and Parole Board for permission to join the army. The board was ready to grant his application, but upon receiving information that his case had been appealed to this court, refused to take action, pending the appeal.

The record further discloses that after the arrest of this defendant, he made bond and was released. His grandfather had made his bond, and when defendant asked him for permission to go to California for the purpose of working in a defense plant, his grandfather asked to be discharged from the bond. This request was granted, and the defendant was taken into custody and by the court ordered sent to the State Penitentiary at McAlester for safe-keeping. This order, which appears in the record, does not give any reason why the same was entered.

While it seems to be the practice for trial courts in some instances to send prisoners to the State Penitentiary for safe-keeping, for good cause shown, we have been unable to find any statute authorizing this procedure. We are not holding that the court did not have the inherent power to enter this order, if there was sufficient cause for doing so; but before such an order is entered, there should be a hearing before the court, and good cause shown therefor.

It is revealed by the record that this defendant remained in the State Penitentiary at McAlester, confined in a cell five by ten feet for a period of nine months, from June 26, 1942 until March 22, 1943, when he made another bond, and was released. He was tried on June 9, 1943, and the trial resulted in a hung jury. He was again tried on December 16, 1943. At this trial he was convicted, and his punishment assessed at one year and one day in the State Penitentiary.

The evidence on behalf of the state was that this defendant and his codefendant, S. A. Tripplett, on the night of January 31, 1942, went to the Top Hat, a beer tavern near Madill, in Marshall county. That E. P. Schneider, the prosecuting witness, was there when they arrived. The three of them were in a booth, drinking beer, and watching the dancing. T. Z. Splawn, a former sheriff of Marshall county, was working at the Top Hat on Saturday night, January 31st. He was a constable at that time. He testified that he saw the defendant and Tripplett, his co-defendant, and Mr. Schneider sitting in the booth, and that he served them beer. That he “saw Mr. Tripplett fooling with Mr. Schneider and heard him say, ‘I can’t get it,” and the defendant said, ‘Let me over there, and I can get it.’ ” That soon after this and between 11 and 12 o’clock he saw the parties go out of the building, and he found in defendant’s pocket the billfold containing “about $36.98,” part in checks, a ten and a five dollar bill, and two or three ones. He returned the pocketbook and contents to Mr. Schneider on Sunday morning. Mr. Schneider did not know he had lost his billfold containing the money until it was returned tO' him at his home, by Mr. Splawn.

The state introduced one other witness who testified to seeing the defendants at the Top Hat, and of drinking beer with them.

Defendant testified that he was 30 years of age. That he supported his widowed mother and family, and that he had been recently engaged in defense work in California, but had returned to Marshall county for his trial. He testified to going with his codefendant Tripplett to the Top Hat on the night of January 31, 1942. That Tripplett “bought a jug — a pint of whisky,” and they hid it on the north side of the building. That they took a ■drink before entering the building. That they saw Mr. Schneider sitting there, and that he was partly drunk, and he asked them to- have a bottle of beer, and that Mr. Schneider then asked them if they wanted another one. That he had his billfold in his hand, and handed it to defendant and told him to take it to the front and get some more beer. Defendant went outside to get another drink of the whisky, and when he did, T. Z. Splawn followed him, and said, “ ‘Hand me that billfold/ and I said, ‘Sure you can have the billfold. Mr. Schneider gave it to me to get some beer.’ And he said ‘No, you bastard, you stole that billfold from Mr. Schneider.’ And he didn’t give me a chance to explain. He takes me to the jail and locks me up.”

From the above statement, it cannot be said that the evidence was insufficient to sustain the judgment. But it can be said after a full consideration of this record, taking into consideration, the fact that this defendant has already served nine months in the State Penitentiary, that justice demands the judgment and sentence in this case be reduced to a period of one day in the State Penitentiary.

The judgment of the district court of Marshall county is therefore modified from a period of one year and one day in the State Penitentiary, to one day in the Penitentiary, and as so modified, is affirmed.

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


text:
    BOOKER T. TARVER v. STATE.
    No. A-10574.
    July 17, 1946.
    (171 P. 2d 269.)

      Robert O. Swimmer, of Oklahoma City, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., Jess L. Pullen, Asst. Atty, Gen., and George Miskovsky, Co. Atty., of Oklahoma City, for defendant in error.
   BAREFOOT, J.

Defendant, Booker T. Tarver, was charged in the court of common pleas of Oklahoma county with the unlawful possession of intoxicating liquor, to wit: One pint of tax-paid liquor. He waived trial by jury, was tried by the court, found guilty, and his punishment assessed at a fine of $50, and 30 days in the county jail, and he has appealed.

The only contention of the defendant is that the amount of whisky found in his possession was one pint, and less than one quart, and that the court should have sustained a demurrer to the evidence and discharged the defendant.

In his brief, the defendant cites 37 O.S.1941 § 82, which provides that the possession in excess of one quart of intoxicating liquor is prima facie evidence of an intent to violate the law; but where the possession is less than one quart, the intent to sell must be proved by the state.

In support of his contention defendant cites the case of Thomas v. State, 70 Okla. Cr. 404, 106 P.2d 836. But the facts in the instant case are very different from those in the Thomas case, and in the case of King v. State, 81 Okla. Cr. 278, 163 P.2d 248.

In those cases there was only evidence of possession of less than one quart. It was found at the residence of the respective parties, and no evidence was shown of former convictions of either of the defendants for a violation of the prohibition laws. There was no evidence to prove an intent to sell or violate the law on the part of either defendant, which is necessary under the law. In the instant case, the liquor was found at defendant’s place of business, a filling station, and was concealed in a plant as testified by one of the officers:

“A. It was in a plant, buried under the concrete floor, in a cream can buried under the concrete floor, in a hole about four inches in diameter at the top of the concrete, and a plug went in the top of that, in the grease room. Q. By plant, you mean whisky plant? A. Whisky plant.”

The two officers who conducted the search of defendant’s premises also testified that it was a place of public resort where people came for the purpose of buying whisky. That the place had been raided many times while defendant was running the same, and that whisky had been found there and defendant arrested and convicted. Defendant, who testified in his own behalf, admitted the finding of 15 pints of whisky there on one prior occasion, and that charges were filed against him in the police court of Oklahoma City, and» he had forfeited his bond. Under this proof, it cannot be said that a proper predicate was not laid for the introduction of this evidence.

While the possession of less than one quart of whisky is not prima facie evidence of an intent to sell the same, or violate the law, yet if one has possession of less than one quart and the evidence is sufficient to show that he had it for the purpose and with the “intention to convey, sell or otherwise dispose of such liquor,” it is a violation of the law.

The court who heard this case without the intervention of a jury was justified, from the evidence introduced, in reaching the conclusion that defendant had possession of the liquor in question for the purpose “to convey, sell or otherwise dispose” of such liquor in violation of the statute. The decision of the court is as binding as the verdict of a jury, and will be respected as such.

The judgment of the court of common pleas of Oklahoma county is affirmed.

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


text:
    LLOYD ALLEN BLACKWELL v. STATE.
    No. A-10549.
    July 17, 1946.
    (171 P. 2d 634.)

      Foy Edwards, of Shawnee, and Sam J. Goodwin, of Pauls Valley, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Ewing C. Sadler, Asst. Atty. Gen., and Claude I-Iendon, Co. Atty., of Shawnee, for defendant in error.
   JONES, P. J.

The defendant, Lloyd Allen Blackwell, was charged by information filed in the county court of Pottawatomie county with the offense of willfully omitting without lawful excuse to furnish necessary food, clothing, shelter and medical attention for his minor children; was tried, convicted and sentenced to serve twelve months in the county jail and pay a fine of $500, and has appealed.

The defendant, Lloyd Allen Blackwell, and his wife, Helen Louise Blackwell, were married in 1930, and of this marriage three children were born prior to the separation of the parties in October, 1942, and another child was born in the month of December, 1942, about two months after the separation of defendant and his wife.

In the year of 1942 the defendant and his family were living at Wayne in McClain county, Okla. In the summer of 1942 the defendant began operating a small garage where he did mechanical work.

Helen Louise Blackwell testified that on October 7, 1942, the defendant left her and the minor children at their home in Wayne and said he was going to his dad’s, who lived in that vicinity; that he left her only $20 to buy clothes for their expected child, which he later returned and took from her. That for many days before he left their home he would change his clothes at the end of his day’s work and leave their home and stay out all night. That when defendant permanently left their home, he packed his clothes and said, “You can go or stay where you please.” That they then owed $46 at the grocery store and their credit was cut off; that she was forced to appeal to her father for help, and her folks then moved her to Wanette. That the moving was paid for by her brother, and her brother and her folks had paid her expenses and provided her and the children with the necessities of life since that date, with the exception of certain things provided for them by the Public Welfare Department. That after defendant had been gone a few weeks, defendant’s father came to see her and offered her $20, but she refused to accept it because it came from him and not from the defendant, and defendant’s father at that time refused to tell her where defendant was living; that she has lived continuously in Wanette in Pottawatomie county with her children, since moving from Wayne, and was never served with any process for a divorce by defendant.

Wyman Blackwell, eleven year old son of defendant, testified that defendant had been gone from home about four days before they moved to Wanette; that his mother begged the defendant to stay and support them when defendant left. That the defendant stayed away from home “most every night” before he left; that the defendant bought him a pair of boots a few days before leaving and told him at that time it would be the last pair he would get. That his father had not furnished him and the other children with any food or clothing since he left.

Other witnesses testified on behalf of the state, corroborating the evidence of Mrs. Blackwell and the eleven year old son of defendant.

The defendant testified in his own behalf that because of business conditions at Wayne he had discussed with his wife about moving to California, but that she refused to go. That he had grocery bills and other indebtedness to meet which he could not pay, and that he thought if he could go to California he could secure work to take care of his family and pay his indebtedness; that he made no preparations to move to California until after his wife’s folks had come and moved her out of his home; that he did not know whether his wife had moved to Norman or Wanette; that after he had gone to California he sent his father $20 out of his first pay check to be paid to his family; that he sent his father $20 more before he heard from his father about his wife refusing to accept the first money. That later he instituted divorce proceedings in Garvin county and got service on his wife by publication. That the next day after the divorce was granted to him, he was married in Texas.

There was considerable other evidence, both on the part of the state and the defendant, which will be hereinafter discussed, as relates to one of the issues raised that the defendant had been denied a fair trial because of the admission of incompetent and irrelevant testimony which was prejudicial to defendant.

The first assignment of error is that the court erred in overruling defendant’s motion to dismiss and his demurrer to the evidence for the reason that the county court of Pottawatomie county did not have jurisdiction of the offense charged against the defendant for the reason that the venue of any offense that was committed was in McClain county,. Okla., where the separation of the defendant and his family occurred.

The defendant bases his argument in support of this proposition that the wife by her voluntary act had moved from the family home provided for her by defendant and had taken her children to another county where the defendant had never been.

This prosecution charged an offense under the terms of the statute which makes it a misdemeanor to wilfully omit without lawful excuse to perform any duty imposed upon a parent by law to furnish necessary food, clothing, shelter and medical attendance for a child. 21 O.S. 1941 § 852.

There is a distinction to be drawn between a prosecution under this statute and one for desertion of the wife or children under the provisions of 21 O.S. 1941 § 851 and § 853.

It has been held that the duty of the parent to support the offspring is a continuing obligation, and is properly tried for the offense in the county where the children became dependent regardless of the residence of the father. Allred v. State, 28 Okla. Cr. 13, 228 P. 788; Dean v. State, 55 Okla. Cr. 356, 30 P.2d 195; Dyer v. State, 58 Okla. Cr. 317, 52 P.2d 1080.

In Allred v. State, supra [28 Okla. Cr. 13, 228 P. 789], it is stated:

“This is a statute providing relief and punishment for the omission of a duty, as distinguished from punishment for the commission of an illegal act. The venue of the action would therefore appear to be in the county in which the failure to do the duty occurred; i.e., the failure to provide for the children.”

In Dyer v. State this court stated in the body of the opinion [58 Okla. Cr. 317, 52 P.2d 1082]:

“The obligation of parents to support their offspring rests upon an entirely different foundation from that upon which the law bases the duty of the husband to support his wife. That obligation is at once legal and natural. It springs as necessarily from the law as from the primal instincts'of human nature. Its consistent enforcement is equally essential to the well-being of the state, the morals of the community, and the development of the individual. Prolonged childhood is a condition of civilization as well as a product of conscience. The child, helpless in extreme infancy and required in the maturer years of its minority to obey the reciprocal duty of serving its parents, is not to be deprived of its natural and legal right of protection and support by its father, because of any family quarrel or of any agreement between husband and wife.”

The authorities relied upon by counsel for defendant were from other jurisdictions and were cases involving desertion of wife or children, and were most all based on the fact that the wife had left the home which the husband had provided for her without good cause, while the husband continued to live in the home, but regardless of the decision in other states, in the case of Allred v. State, supra, this court has specifically passed upon the question raised by defendant contrary to his contention.

The remaining assignments of error may be considered together. They are as follows:

1. Misconduct on the part of the county attorney objected to by defendant at the time.

2. The admission of incompetent and irrelevant evidence over objection of defendant, which prejudiced his rights.

3. Excessive punishment allegedly given under the influence of passion and prejudice.

In the opening statement of the county attorney, among other things, he stated that the proof would show that the defendant had been going with a girl in Pauls Valley who worked in a beer tavern. That the defendant and the girl known as Ozie Baggett left Pauls Valley together and went through Arizona and on to California; that in October, 1943, he returned to Pauls Valley, filed a petition for divorce against his wife, made a false affidavit that he did not know of her whereabouts and secured service by publication. That on December 6, 1943, he obtained a divorce from his wife and took Ozie Baggett to Montague county, Tex., where he was married to her on December 7, 1943.

Counsel for defendant made repeated objections during the opening statements of the county attorney with reference to the defendant’s alleged association with Ozie Baggett, and at the conclusion of the statement of the county attorney, the defendant, through his counsel, moved for a new trial because of the prejudicial and inflammatory statement of the county attorney, which motion was overruled. In the cross-examination of the defendant, the defendant was subjected to a vigorous cross-examination. Many questions were asked and answered over the objection of counsel for defendant. Some of these questions which counsel for defendant argue were prejudicial are as follows:

“Q. When did you meet your present wife? A. I had seen her a few times along about July, 1942. Q. That was before you and your wife broke up? A. I had seen her at that time. Q. You knew her at Pauls Valley where she worked? A. No. Q. Are you acquainted with a man in Pauls Valley by the name of Dewey Dixon? A. Yes. Q. He runs a beer place and restaurant down on Dirty street in Pauls Valley, is that right? A. I don’t know. Q. You know where his place of business is? A. Yes. Q. You know he has been there a long time? A. Yes. Q. You knew your wife when she worked for Dewey? A. I had seen her there, yes. Q. And you met her in the summer of 1942? A. No. Q. What was your last • wife’s name before you married her? A. Ozie Baggett. Q. What was her maiden name? A. Ozie Norman. Q. Did you know Ozie Baggett on or about the 1st day of September, 1942, you said you met her in the summer? A. I knew of her, yes. Q. You had met her and had been with her? A. I did not say I had been with her. Q. You remember when you got your shirt sleeve torn off, did you get it really torn off? A. No. Q. You heard your wife’s testimony about you coming in a few weeks before you left after being out all night, with your shirt sleeve torn? A. I did not come in with my sleeve torn. Q. She testified that you had been in a fight? A. I had not. Q. She testified that a few weeks before the 7th of October, 1942, that you came and got $20 that she had for baby clothes, and on your testimony you said you got it to buy parts? A Yes, sir, Q That was on the 1st of September? A. No it was along about the 1st of October. Q. To refresh your memory, I will ask you if you did not get the $20 and take it to Pauls Valley shortly after the first day of September and pay a $7.50 police fine for Ozie Baggett, under the pains and penalty of perjury, I want you to tell that? Did you take that $20 and out of that pay-ber police fine in Pauls Valley? A. Not out of that $20. Q. What did you pay it out of? A. I loaned her the money to pay the fine. Q. You were not going with her then? A. No. Q. How did you get in touch with her to loan her the money? A. Her sister asked me for it. Q. Did you know she was in jail? A. Yes. Q. Did you know she had been in jail several days? A. No. Q. Where were you when her sister came to you? A. I was in town. Q. What time of day? A. It was one night. Q. Was that the night you got your shirt sleeve torn off? A. No. Q. You got into a fight over a woman? A. I did not. Q. So you really loaned her sister the money? A. Yes, sir. Q. Now, you do know that while she was working for Dewey Dixon or at the beer parlor at Pauls Valley that you had been keeping company with her during that time? Now, you went to California with Ozie Baggett when you left your family? A. No. Q. You left by way of Arizona? A. Yes. Q. You stopped in Phoenix, did you not? A. No. Q. How did you go? A. Travel Bureau. Q. You mean Ozie Baggett was not with you in Phoenix, she was on the travel bureau? A. Yes. Q. Was she in the same car? A. Yes. Q. Were you present with Ozie Baggett when she wrote a card back to Dewey Dixon where she worked in Pauls Valley, where she said that she and Lloyd had been held up in Arizona? A. No. Q. You know that Jim Norman was the one who had the F. B. I. after you and caused you to be questioned through the F. B. I. authorities about having transported Ozie Baggett from Pauls Valley to California, and they asked you about that? A. No. Q. You know Jim Norman is the fellow who did it? A. No. Q. Did you learn it was? A. No. Q. When the F. B. I. questioned you, did they show you a copy of a letter that the county attorney wrote them to ascertain your address? A. No. Q. They did not show you that letter? A. No. Q. You obtained your 3-A draft deferment on the theory that you were supporting your children, is that right? A. Yes. Q. That was your draft status when you went to California? A. Yes. Q. Have you got your papers on you? A. Yes.”

There were many other qeustions asked the defendant along the same line as indicated by the above testimony, and, in addition, the defendant was questioned at length about the procurement of the divorce from his former wife. Objections were repeatedly made by counsel for defendant during this interrogation, but were overruled with exceptions allowed to defendant.

In the case of Washington v. State, 22 Okla. Cr. 69, 209 P. 967, 969, this court reversed a conviction in the county court of Texas county because of admission' of evidence that defendant had attempted to criminally assault one of his children and had been cruel to his wife by whipping her. The prosecution in that case was under the statute herein involved for wilfully failing to provide necessary food and clothing for his minor children. In the opinion it is said:

“It is not our purpose to condone the action and conduct of defendant toward his wife and children. If the testimony of some of his children is true, he was very cruel both to his wife and to them, but that was not the issue in this case. Those were not the offenses for which defendant was being tried. If the officers had been in possession of evidence sufficient to convict of such offenses defendant should have been prosecuted therefor, and evidence of such offenses should not have been injected into a prosecution for willfully omitting to furnish necessary food and clothing for his children.”

In the recent case of Hill v. State, 81 Okla. Cr. 342, 165 P.2d 146, it is held:

“A defendant in a criminal case is entitled to fair treatment in his trial and prosecuting attorney should not be permitted to ask questions which he knows to be illegal for the purpose of prejudicing the defendant in the eyes’ of the jury.”

In this connection see, also, the cases of Watson v. State, 7 Okla. Cr. 590, 124 P. 1101; Rogers v. State, 8 Okla. Cr. 226, 127 P. 365; Corliss v. State, 12 Okla. Cr. 526, 159 P. 1015.

It is evident that a great deal of the evidence brought out on cross-examination of the defendant was wholly irrelevant to the issue as to whether the defendant had wilfully omitted to provide the necessities of life for these minor children The jury, after hearing the evidence above quoted, might be confused as to whether they were trying the defendant for draft evasion, for violation of the Mann Act, 18 U.S.C.A. § 397 et seq., for committing perjury in connection with the testimony in a divorce action, for vagrancy, adultery, or any other of several crimes which the county attorney contended the defendant had committed from the time of his separation from his family to the time of trial.

We are not impressed with the story related by the defendant as to the reason why he had not contributed to the support of his minor children. By his own admission, the defendant for a period of two years had not made any effort to ascertain the whereabouts of his minor children. His wife had borne him a child after his separation, and he had made no inquiry about this youngster’s welfare or whether the child was a boy or girl.

If this were a close case where the question of guilt or innocence of the accused was strongly disputed, the admission of the evidence hereinbefore discussed would have been grounds for a reversal of the conviction. Here, however, the guilt is apparent. This man could be tried over and over again for this offense before a jury who had any regard for their oath as jurors and the result would always be the same. However, since the court did err in admitting this incompetent testimony which certainly was harmful to defendant, we feel that the defendant is entitled to some relief because of this error.

In Hill v. State, supra, we held that where the guilt of the defendant is clear, the admission of prejudicial testimony on cross-examination of defendant will require this court to modify the sentence which was imposed in accordance with the jury’s verdict.

In the instant case, the maximum punishment of one year in the county jail and $500 fine was imposed. Because of the admission of the incompetent evidence, it is our opinion that the judgment and sentence should be modified from one year in the county jail and a fine of $500 to six months in the county jail and a fine of $200.

It is therefore ordered that the judgment and sentence of the county court of Pottawatomie county be reduced from one year in the county jail and a fine of $500 to six months in the county jail and a fine of $200, and the judgment and sentence of the county court of Pottawatomie county as thus modified is affirmed.

BABEFOOT, J., concurs. DOYLE, J., not participating.


text:
    CLIFTON DAVIDSON v. STATE.
    No. A-10558.
    July 25, 1946.
    (171 P. 2d 640.)

      Hubert Hargrave, of Wewoka, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lat-timore, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Clifton Davidson, was charged by information filed in the superior court of Seminole county with the crime of murder, and further charged that the same was a second and subsequent offense; was tried, convicted of manslaughter in the first degree and sentenced to serve 50 years in the State Penitentiary.

On January 22, 1941, the defendant shot and killed one Paul Price in the city of Seminole. After being arrested, the defendant escaped from jail in April, 1941. He was later arrested and returned to the custody of the sheriff of Seminole county on March 8, 1943. The defendant was arraigned in the superior court on said charge of murder on March 18, 1943, and was ordered held without bond. The sheriff was directed to take the prisoner to the State Penitentiary for safekeeping. The defendant was taken to the penitentiary and held in solitary confinement until January 26, 1944, at which time he was returned for the purpose of a hearing on a motion filed by his counsel seeking to dismiss the charge for the reason that the defendant had been denied a speedy trial as provided by law. The motion to dismiss was heard and overruled by the court, and the case was tried to a jury on February 15, 1944.

When the motion to dismiss came on for hearing, at the request of the counsel for defendant, the trial judge stated that the superior court of Seminole county had four terms of court a year. His exact statement as shown by the record is as follows:

“There are four terms. One in January, the next in April, the next in July and the next begins in October.”
“By Mr. Hargrave: Judge, will you state into the record how many jury dockets, civil dockets, you have had since last March? By the Court: Let the record show there has been two jury civil trial dockets here in the superior court of Seminole county, Oklahoma, since the first of March, 1943. By Mr. Hargrave: And that there was no criminal cases set on either docket? By the Court: None on any civil jury docket and no criminal docket has been set in this court since that time.”

The defendant was then sworn to testify in support of his motion to dismiss. He testified that he had been in solitary confinement in the State Penitentiary since being taken there in March, 1943; that at the time of his arraignment he asked the county attorney to give him an early trial; that the county attorney came to the penitentiary in early summer and again talked to defendant, at which time the defendant again asked him for an early trial; that the county attorney said he would do everything he could to get a trial, but that it was at a time of year when farmers were busy and the court did not think it advisable to call them for jury service. The defendant further testified that he had never made application to have the case continued, but that at every opportunity he had requested a speedy trial.

It was stipulated at the close of the defendant’s testimony that there had been no formal written request demanding that the case against defendant be set for trial. No proof was offered on behalf of the state to rebut the evidence offered in support of defendant’s motion to dismiss.

This case is comparable in many ways to the case of Glover v. State, 76 Okla. Cr. 53, 134 P.2d 144, 145. In that case the defendant Glover was taken to the State Penitentiary for safekeeping on June 5, 1940, and he remained there until his trial on June 2, 1941. His counsel presented a motion to dismiss the case for the reason the defendant had been denied his right to a speedy trial. This motion was overruled by the trial court. On appeal this court held that the overruling of the motion to dismiss was reversible error. In the body of the opinion it is said:

“The first assignment of error is that the court erred in overruling the motion of the defendant for discharge, on the ground that he had not been given a speedy trial, as provided by Art. 2, § 20 of the Constitution, and by sections 2670 and 2872, O.S.1931, Okla.Stat.Ann. (1941) Title 22, §§ 13 and 812.
“Article 2, § 20 of the Constitution reads: ‘In all criminal prosecution»?, the accused shall have the right to a speedy, and public trial by an impartial jury of the county in which the crime shall have been committed.’ •X* -X* -X-
“Section 2670, O.S.1931, Okla.Stat.Ann. (1941) Title 22, Section 13, provides: ‘In a criminal action the defendant is entitled:
“ ‘1. To a speedy and public trial. * * *’ And section 2872, O.S.1941, Okla.Stat.Ann. (1941) Title 22, Section 812 is 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.’ *X* -X- *
“The construction of the Constitution and the statutes hereinbefore quoted have been under consideration in the following cases: Ex parte Meadows, 71 Okla. Cr. 353, 112 P. 2d 419; Ex parte Leathers, 66 Okla. Cr. 172, 90 P.2d. 450; Ex parte Warrenburg, 63 Okla. Cr. 125, 73 P.2d 476; Ex parte Wilkerson, 73 Okla. Cr. 32, 117 P.2d 172. * * *
“Presiding Judge Furman wrote a most applicable and forceful opinion in the early case of McLeod v. Graham, 6 Okla. Cr. 197, 118 P. 160, 163. We quote from the opinion:
“ 'This statute relieves trial courts of construing the term "speedy trial” in each and every case wherein it is presented. When it is found that a defendant in any particular case has not been brought to trial at the next regular term of the court in which his case is triable, after the case has been presented therein, it is the duty of the trial court to order the prosecution to be dismissed, unless it appears that the case had been postponed or continued upon the application of the defendant, or unless the state shows good cause (that is, some legal reason) why said case has not been tried, and why said prosecution should not be so dismissed. The evident purpose of these provisions of the Constitution and the statute is to require of the officers of the law that they exercise reasonable diligence in preparing for the trial of criminal cases, and to secure to each person charged with crime a trial as soon after the indictment or information has been filed against them as the prosecution can with reasonable diligence prepare for trial; regard being had to the terms of court.
" 'Any delay caused by operation of the rules of law would constitute good cause for continuing a case beyond a second term of court. Where it appears from the record that a defendant has not been brought to trial at the second term of the court after the prosecution against him has been instituted, and the record does not show that this postponement was caused by the application of the defendant, or with his consent, then the defendant’s right, if he demands it, to have the prosecution against him dismissed becomes absolute, unless good cause is shown by the state why the case should be continued to a subsequent term of the court; and this showing of “good cause” will not be presumed, but must appear in the record of the trial court, or in the answer to the petition for mandamus. Whether or not the cause shown for the further continuance of a prosecution is sufficient is addressed to the discretion of the trial court, and, if the trial court abuses this discretion, it is subject to review upon appeal or in mandamus proceedings. This rule secures to a defendant his right to a speedy trial, upon the one hand, by protecting him from vexatious, capricious, arbitrary, and oppressive delays, and, upon the other hand, it does not preclude the rights of public justice; for, if good cause for a postponement of a trial exists, the requirements of the statute do not apply. Were it not for this rule, an arbitrary and capricious judge could punish a defendant indefinitely by confining him in prison, pending a final trial, or, if the defendant was on bail, such a judge could harass and distress him without limit by keeping a groundless accusation hanging over his head and clouding his good name; while, on the other hand, if good cause exists why a case should be continued from term to term of the court, this cause can be made to appear in the record, and the ends of public justice will be protected.’ * * *
“From the above it will at once be observed that this defendant was not granted a trial, ‘at the next term of court,’ after the information was filed against him. He has been in jail and the state penitentiary since May 26, 1940. Defendant has brought himself clearly within the rule announced by this court in the case of Harris v. Ogden, supra [44 Okla. Cr. 418, 281 P. 316], and other cases. The State at no time assumed the burden cast upon it to give the defendant a speedy trial. In fact, there was unnecessary delay, which entitled the defendant to have his motion for discharge granted on May 22, 1941.”

In the case of Brummitt v. Higgins, 80 Okla. Cr. 183, 157 P.2d 922, the following rules of law were adopted as shown by the syllabus:

“Under provisions of Oklahoma Constitution, the accused in criminal prosecution has the right to a speedy and public trial by an impartial jury of the county in which the crime is alleged to have been committed. Art. 2, sec. 6; Art. 2, sec. 20.
“The word ‘speedy’ as used in the constitutional provision that an accused shall have the right to a ‘speedy’ and public trial by an impartial jury of the county in which the crime shall have been committed, being a word of indeterminate meaning, permits legislative definition to some extent.
“Under the provisions of 22 O.S.1941 § 812, the accused in a criminal prosecution applying for dismissal for unnecessary delay, who is incarcerated, need only show expiration of statutory time and lack of postponement on his application or with his consent. Prosecution must then show legal cause for continuing his trial over statutory time.
“There is no fixed rule for determining the question as to what is meant by the term ‘unless good cause to the contrary be shown.’ 22 O.S.1941 § 812. It is a matter for judicial determination under the facts and circumstances in each particular case.
“Where defendant is on bail, the presumption is that a delay in the trial is caused by or with the consent of defendant, and the record must affirmatively show that he demanded trial or resisted continuance of the case. However, if defendant is not on bail, the law makes the demand for trial for him and the prosecution has the burden of showing that the trial was delayed for some lawful cause.”

It is apparent by reason of the above authorities that the trial court committed reversible error in overruling the motion to dismiss. There is no limitation of time within which ,a prosecution for murder may be commenced. Since a dismissal of the case will not preclude the county attorney from filing another complaint and starting the prosecution anew for this same offense, the defendant has little to gain. 22 O.S.1941 § 817. Ex parte Warrenburg, 63 Okla. Cr. 125, 73 P.2d 476; Brummitt v. Higgins, supra.

But under the Constitution and statutes of the State of Oklahoma, as construed by the authorities above cited, this court has no choice but to remand the case to the superior court of Seminole county with instructions to sustain the motion to dismiss the information filed against the defendant for the reason that the defendant has been denied his right to a speedy trial.

There are other assignments of error in the brief of defendant. The contention of defendant that the trial court committed error in admitting evidence of former convictions in a prosecution for murder under an information charging the crime of murder as a second and subsequent offense has been decided contrary to the contention of the defendant. Johnson v. State, 79 Okla. Cr. 71, 151 P.2d 801, 802, wherein it is held:

“Habitual criminal statute authorizing increased punishment for subsequent conviction should not be used by prosecution in capital felonies, unless it is clear that the Court must charge the jury on some included offense, because there can be no cumulative punishment in a capital case, and statute should not be used to prejudice an accused on trial for his life by admitting evidence of distinct offenses which tend to show the bad character of the accused.
“Trial court may admit evidence of former conviction in murder prosecution where plea of self-defense is interposed and evidence of State shows that included offense of manslaughter in the first degree must be submitted to the jury, provided said prior conviction is charged in the information.
“An information charging all the essential elements of murder is not subject to demurrer, because it further alleges the fact of a prior conviction.”

It is conceded by the Attorney General that instruction No. 6 given by the trial court was erroneous, but it is contended in the state’s brief that the giving of this erroneous instruction was harmless error. The instruction as drawn is confusing and the latter part of the instruction is contradictory to the first paragraph of said instruction. In considering this instruction as a whole, it would appear that it cast the burden on the defendant to prove beyond a reasonable doubt that he killed the deceased in his own self-defense. If this case should be retried under a new prosecution, this instruction should be corrected to cure this apparent defect. The other assignments of error do not appear to have substantial merit.

It is our conclusion, after full consideration of the record' in this case, that the defendant being in custody and not on bail had only to show that he was not brought to trial at the next term of court after the information was filed, that the delay was not on his application or with his consent, and that the burden shifted to the state to show good cause Avhy the defendant had not been tried. The state has wholly failed to sustain this burden.

It is therefore ordered that this case be reversed and remanded to the superior court of Seminole county, Okla., Avith instructions to sustain the motion of the defendant to dismiss the prosecution for failure to give him a speedy trial as guaranteed by the Constitution and statutes of Oklahoma.

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


author: BABEFOOT, J.

text:
    ORA DAVIS SMITH v. STATE.
    No. A-10637.
    July 25, 1946.
    (171 P. 2d 268.)
    Harold S. McArthur, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   BABEFOOT, J.

Defendant, Ora Davis Smith, was charged in the court of common pleas of Tulsa county with the offense of driving a motor vehicle upon the highway of Tulsa county while under the influence of intoxicating liquor. He was tried, convicted, and assessed a fine of $75 and costs, and has appealed.

This case was submitted on May 22, 1946, and defendant was granted 15 days to file a brief, and no brief has been filed.

The evidence on the part of the state reveals that this defendant, on December 30, 1944, was arrested by a member of the State Highway Patrol, driving a pick-up truck on the public highway in Tulsa county, while under the influence of intoxicating liquor. He was placed in jail, where he remained until January 2, 1945, when he was released on hail. He was tried before a jury on March 20,1945, and was convicted and sentenced, as above stated.

We have carefully examined the record, and it reveals that the evidence was sufficient to sustain the conviction. We find that no fundamental errors have been committed, and that the defendant had a fair and impartial trial.

The judgment of the court of common pleas of Tulsa county is therefore affirmed.

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