text:
    BERT WINIGER v. STATE.
    No. A-8687.
    May 18, 1934.
    (32 Pac. [2d] 952.)
    J. B. Wilkinson, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (J. H. Lawson, of counsel), for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to' as the defendant, was convicted of transporting liquor, and his punishment fixed at a fine of $50 and imprisonment in the county jail for 30 days.

The testimony of the state shows the officers went to the home of Claud Winiger; while there they saw Bert Winiger going north in a car; they followed him, and before they overtook him saw him throw something from his car; they followed the defendant and shot into the air a time or two and defendant stopped and the officers arrested him and brought him back to where they had seen him throw something out of the car and found two half gallon jars of whisky and one or more jars that had been broken. The defendant did not testify.

The defendant has devoted a great deal of time and argued at length the question of the unlawful search and seizure. In the trial of the case the state admitted that it was not relying on the search warrant, notwithstanding the officers’ return on the search warrant stated they went to the place described in the warrant and found and seized two gallons of whisky and one Ford coupe. Why the officers made this kind of a return no one can understand, when all the testimony shows that the whisky was found by the roadside where the officers claim they had seen the defendant throw something from his car.

The only question raised by the defendant in his brief is the admissibility of the evidence secured by the officers, the defendant relying on the question of an unlawful search and seizure.

The defendant has not discussed the question of the defendant committing an offense in the presence of an officer. This question has been before this court many times. In McAdams v. State, 30 Okla. Cr. 207, 235 Pac. 241, 242, this court, in construing the evidence, said:

“At the outset the defendant was merely suspected of having committed or being in the act of committing a misdemeanor, and the attempt to arrest the defendant on suspicion, without a warrant, was illegal. This court does not approve nor wish to seem to encourage peace officers in illegal practices, but here, after the initial illegal attempt to arrest proved futile, and the officers, as found by the jury, saw the defendant in the act of violating the law, they then acquired the right to make the arrest without a warrant. Under the circumstances here the legal and the illegal acts of the officers are separable, and it becomes the duty of this court to sustain the legal portion of the transaction, including the search and seizure incident to the legal arrest. A different question would arise if the evidence conclusively showed that the arrest was for a misdemeanor on suspicion merely and without a warrant, and therefore illegal.” Abbott v. State, 30 Okla. Cr. 98, 235 Pac. 550; Miles v. State, 31 Okla. Cr. 4, 236 Pac. 907.

In Martin v. State, 43 Okla. Cr. 273, 277 Pac. 950, in the syllabus, the court said:

“A peace officer, without a warrant, may arrest a person for any violation of the prohibitory liquor law committed in his presence, and may seize any intoxicating liquor in the possession or immediate presence of the person arrested.”

The officers, while chasing the defendant, acted without authority of law in firing the shots at, toward him, or in the air, and such conduct cannot be commended by this court. However, the proof is conclusive that the defendant is guilty of transporting liquor. The question of the search warrant passed out of the picture when the defendant threw the whisky out of his car in the presence of the officers.

No errors appear in the record.

The judgment of the trial court is affirmed.

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


source: Caselaw Access Project

author: DAVENPORT, J.

license: Public Domain

text:
    BERT HUMBERD v. STATE.
    No. A-8670.
    May 18, 1934.
    (32 Pac. [2d] 954.)
    E. S. Collier, for, plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (J. H. Lawson, of counsel), for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of possession of intoxicating, liquor, and sentenced to pay a fine of $60 and be imprisoned in the county jail for 30 days.

The testimony on behalf of the state shows the officers went tO' defendant’s home with a search warrant, searched his place, and found in a built-in cupboard in a room used for storage purposes a half gallon of whisky, a number of pint bottles, and a funnel.

The defendant, testifying in his own behalf, admitted the possession of the whisky, but denied that the bottles in the cupboard were there for the purpose of being used for the sale, bartering, or giving away of whisky, and stated the funnel was nsed for pouring coal oil from a can into the lamps used around the house. The defendant further stated the bottles were in the room used for storage when he moved to the house, and the whisky was for his own use. This is in substance the testimony.

The first assignment of the defendant is that the court erred in overruling his motion for a new trial. This is all the assignment it is necessary to consider. It is urged by the defendant that the proof is insufficient to sustain a conviction, stating that in order to sustain a conviction of having possession of intoxicating liquors with intent to violate the provisions of the prohibitory liquor laws there must be evidence sufficient not only to prove possession, but also to prove criminal intent.

This court, beginning with the early opinions on down to the present time, has held that where the evidence, and reasonable and logical inferences and deductions to be drawn from it, are sufficient to convince the jury beyond a reasonable doubt of the guilt of a defendant, this court will not disturb the verdict for insufficiency. Pickett v. State, 85 Okla. Cr. 60, 248 Pac. 352; Bond v. State, 53 Okla. Cr. 224, 11 Pac. (2d) 200.

The jury is the exclusive judge of the weight of the evidence, and if there is a clear conflict or it is such that different inferences may be drawn from it,, this determination will not be interfered with unless it is clearly against the weight of the evidence. Richards v. State, 22 Okla. Cr. 329, 211 Pac. 515; Choate v. State, 37 Okla. Cr. 314, 258 Pac. 360; Mayse v. State, 38 Okla. Cr. 144, 259 Pac. 277.

The evidence is sufficient to sustain the judgment. The defendant was accorded a fair and impartial trial. There are no errors in the record.

The judgment is affirmed.

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


author: EDWARDS, P. J.

text:
    NOBLE HEATH v. STATE.
    No. A-8683.
    May 18, 1934.
    (32 Pac. [2d] 955.)
    E. S. Lowther, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Logan county and was sentenced to pay a fine of $100 and to serve 60 days in the county jail. Judgment was rendered on the 28th day of October, at which time the court allowed the defendant 60 days to make and serve case-made and the case-made was served on December 15, and on the same day was settled and signed and filed in the county court, but the appeal was not lodged in this court till February 20, more than 60 days from the date of the judgment. No order extending time to file the appeal in this court was made until December 20, after the case had been settled and signed and filed in the county court. It has been many times held by this court that when the judge of the trial court has settled and signed the case-made and it has been attested and filed in the clerk’s office, it has passed beyond the control of the trial judge and therefore cannot be amended, altered, or changed by any order of his. Sutton v. State, 51 Okla. Cr. 95, 299 Pac. 928. See, also, Wilson v. State, 24 Okla. Cr. 268, 217 Pac. 1057.

The appeal is dismissed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    JESS COATS v. STATE.
    No. A-8694.
    May 18, 1934.
    (32 Pac. [2d] 955.)
    Wm. D. Powell, for plaintiff in error.

      J. Berry King, Atty. Gen.', and Smith C. Matson, Asst. Atty. Gen. (J. H. Lawson, of counsel), for the State.
   DAVENPORT, J.

The plaintiff in error was convicted in the district court of Cotton county of robbery and sentenced to serve a term of five years in the state penitentiary. The parties hereinafter will be referred to as they appear in the trial court.

The substance of the testimony on behalf of the state shows the prosecuting witness, Sam Biggs, was running a restaurant in the city of Walters; that he slept in the restaurant; some time around 3:30 the morning of the 21st of November, 1933, Biggs was robbed of $5; in accomplishing the robbery, Biggs was struck with a piece of lumber about 4 feet long, 4 inches wide, and % inch thick, the result of the wound necessitating Biggs being taken to the hospital and treated by a physician. The proof further shows that after the robbery Biggs’ restaurant was examined and a hatband was found on the floor of the bedroom with blood on it; blood was also found on the piece of lumber alleged to have been used by the robber. The officers, after securing this information, went to the home of George HoAvard and found Howard and Charlie Coats in bed asleep. About 6:15 a. m., the defendant was arrested at the home of a man by the name of Richards, where the defendant’s sweetheart lived.

It is further shown by the evidence that at the time the defendant was arrested he had blood on his shoes and shirt, and that he Avas intoxicated. When defendant was arrested, he tried to explain the blood on his clothing, claiming he had been hit on the side of the jaw causing his mouth to bleed. The testimony further shows that earlier in the evening before Biggs was robbed, the defendant, Charlie Coats, and George Howard had gone to the Biggs restaurant and had stolen a half gallon of whisky.

Biggs claims he was asleep in his restaurant and felt somebody put their hands in his ribs, and that he was unconscious for some time; he was struck about three times on the left arm, and three times across the face; the $5 he lost was taken from his watch pocket in his pants; he was in bed with his shirt and pants on. He saw them find the hatband, and said he had seen it on November 21, 1933, on the floor of his bedroom; it had blood on it which witness said came from his face bleeding.

Witness identified the liquor that had been stolen from him, and stated the money had been taken from him by force and without his permission. Witness further stated he had seen George Howard wearing the hatband found in his room at a Rodeo that was held in Walters on Armistice day.

George Howard testifying on behalf of the state said:

“I have lived in Walters 25 years, in about one block of the Biggs place; I saw the defendant, Jess Coats, the night of the alleged robbery about 1 o’clock in the morning, in a restaurant run by a man named Clark; defendant stated he was going to take a sandwich and some milk to some one; he was gone about fifteen or 20 minutes; I had started north when Coats caught up with me; while we were walking near the Biggs place of business he said, let’s look for Biggs’ whisky; we found the whisky in an open space about five or ten steps from the door of the Biggs building; I saw Biggs at the counter of the restaurant and he looked like he was asleep; he had his head against the west wall, and defendant said, ‘You reckon he has any dough?’ We went back to my room and took a couple of drinks and ate some chicken, it was then about 2 o’clock in the morning; Charlie Coats and I remained at our home; the defendant said he had a date with a girl; he tried on an overcoat of mine and my big hat, and left wearing my hat.” Witness identified the hat worn by the defendant; he also identified the hatband found at the scene of the robbery as being the hatband that was on his hat at the time the defendant left with it. Witness further stated: “I was not at the Biggs restaurant after we got the whisky; when defendant left my home he. took some liquor with him.”

Rachael Richards stated her home was in Walters—

“I have lived two years in the southeast part of town; I know Jess Coats, the defendant; he passed through my room about 12:30 the morning of November 21, 1933, with a bottle of something and a sandwich for nay sister Ruby; at that time I did not see any blood on his clothes or shoes; the defendant roomed at our house; he went out about 15 minutes later and returned home between 3:20 and 4 and went to bed and spent the remainder of the night.”

George Beach stated he was a night watchman at Walters on November 21, 1933; he was called to the north end of town; when he arrived a man by the name óf Stapps told him about a man being knocked in the head; he found Sam Biggs about 3:30 a. m., he saw the hatband in the Biggs place of business, and took Biggs to the hospital; Biggs was covered Avith blood, it looked like his nose was badly injured; Biggs told him he had lost some money.

Tracy Daugherty stated:

“I am a deputy sheriff; 20 minutes before four the morning of November 21, 1933, I received a call from George Beach; I drove to the hospital and saw Beach and the man, iSam Biggs, Avho had been robbed; I made an investigation for the supposed robber, got a description, and finally located him at the Richards home where I arrested him; George HoAvard and Charlie Coats had already been arrested; when we found the defendant he was covered Avith bed clothes; we found the liquor in his room that had been stolen from Biggs; the defendant had on a shirt and a pair of pants; there were blood spots on the front of his shirt and collar, and spots of blood on his shoes; an examination showed there were spots of blood on the collar and sleeve of defendant’s coat; I searched him and found four fl bills and a little change; the collar of the shirt was wet — indicating it had been washed.”

The defendant, testifying in his own behalf, admitted being with the parties when they got the whisky at the Biggs place during the latter part of the night, and claims he had a fight with Biggs, and struck him with a piece of plank but did not rob him— “My brother, George Howard, and myself came to his place to purchase whisky and had a racket there over the whisky that had been stolen”. His brother Charlie Coats testified in substance the same as did the defendant.

George Howard, testifying for the state, stated when defendant left his house he and Charlie Coats remained there; they did not go back to the Biggs restaurant any more that night; defendant wore his hat when he left his home. This is the substance of the testimony.

The first assignment discussed by the defendant is his assignment that the information fails to charge a crime against the defendant. This court has repeatedly held that an information which informs the defendant of the offense with which he is charged with such particularity as will enable him to prepare for his trial, and so defines and identifies the offense that the defendant, if convicted or acquitted, will be able to defend himself in case he is indicted or an information filed against him for the same offense, by pleading the record of a former conviction or acquittal, is sufficient as against a demurrer. The demurrer was properly overruled.

It is next insisted by the defendant that the evidence is insufficient to sustain a conviction. The evidence in this case is circumstantial but every circumstance and fact connected with the robbery points toward the defendant as being the guilty party. The record discloses defendant knew the prosecuting witness, knew the location of his business; went with his brother and George Howard to steal Biggs’ whisky; later on as they passed the restaurant the defendant asked Howard if he thought the fellow had any dough; he later left the Howard home wearing a hat belonging to Howard, the band of which was found in the room where Biggs was sleeping, with blood on it, and on the floor; and also on the board that "Biggs had been struck with; when defendant was taken into custody they found blood stains on his clothing; he had four $1 bills and some small change and Biggs was robbed of five f 1 bills.

This court has passed upon the question of the sufficiency of the evidence so- often that it seems useless to cite authorities. Beginning with the earlier opinions and coming on down to the present' time, it has held that, where the evidence and the reasonable and logical inferences and deductions to be drawn from it are sufficient to convince the jury beyond a reasonable doubt of the guilt of the defendant, this court will not disturb the verdict for insufficiency. Pickett v. State, 35 Okla. Cr. 60, 248 Pac. 352; Underwood v. State, 36 Okla. Cr. 21, 251 Pac. 507; Bond v. State, 53 Okla. Cr. 224, 11 Pac. (2d) 200.

The jury is the exclusive judge of the weight of the evidence, and if there is a clear conflict in the evidence, or it is such that different inferences can properly be drawn from it, this determination will not be interfered with unless it is clearly against the weight of the evidence or appears to have been influenced by passion or prejudice: Cole v. State, 18 Okla. Cr. 430, 195 Pac. 901; Richards v. State, 22 Okla. Cr. 329, 211 Pac. 515.

In Strong v. State, 42 Okla. Cr. 248, 275 Pac. 385, in the second paragraph of the syllabus, this court said:

“A motion for new trial, based on an allegation that the evidence does not support the verdict of the jury, is addressed, first, to the sound discretion of the trial court, who has seen and heard the witnesses testify, and who must necessarily know a great deal more about many facts and circumstances produced at the trial, which cannot be written into a record, than an appellate court can by reading the record after it is written. And when a trial court has considered and passed upon such an issue, it comes to this court only on the* proposition that as a matter of law the verdict is contrary to the evidence.”

The defendant next contends that the court prevented him from having a fair and impartial trial for the reason that the court did not instruct the jury on his theory of his defense. The record shows that the defense of the defendant was that he did not commit the robbery, and that he was not guilty. His contention that he had a fight with the witness Biggs over the stolen property is not a defense to a charge of robbery, therefore, he had no theory upon which the court could predicate an instruction. If the defendant was not satisfied with the instructions of the court, it was his duty to prepare such instructions as he believed applicable to his defense and ask the court to give them, and if the court refuses to give them, to save his exceptions and incorporate his exception in a motion for a new trial, and the question will then be properly before the court on appeal. Merriott v. State, 18 Okla. Cr. 247, 194 Pac. 263.

It is next contended by the defendant that he did not have a fair trial for the reason that two of the jurors who had formerly had commissions as deputy sheriffs served on the jury. The fact that a man called for jury service has at one time prior to the time he is called for jury service held some kind of a deputy sheriff commission does not disqualify him to serve on the jury. The record in this case shows the defendant was tried by a fair and impartial jury.

The record has been carefully examined, and it is the opinion of the court that the defendant had a fair and impartial trial; that the information is sufficient to advise the defendant of the charge against him; that the court properly instructed the jury as to the law applicable to the facts. There are no errors in the record warranting a reversal. The judgment of the trial court is affirmed.

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


text:
    GEORGE CROWELL v. STATE.
    No. A-8640.
    April 14, 1934.
    Rehearing Denied May 25, 1934.
    (32 Pac. [2d] 752.)

      E. W. ,Snoddy, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to- as the defendant, was convicted of an assault with intent to commit rape, and his punishment fixed at one year in the penitentiary. Motion for new trial was filed, considered, overruled, and defendant appeals.

The following is an abstract of the testmony: The defendant was a resident of Alva. On the 23d day of January, 1933, a party was organized by the prosecuting witness composed of the defendant, Mortimer Welch and Mrs. Mary Catherine Marsh. A lunch was prepared by Miss Thompson and Mrs. Marsh furnished the car, and the four composing the crowd drove from Alva to- Waynoka, where the record shows whisky was purchased and the parties indulged in drinking. The defendant and the prosecuting witness had known each other for fifteen years. Miss Thompson at one time lived in the home-of the father of the defendant and attended school at Alva. The defendant became intoxicated. Shortly after midnight they left Waynoka, the complaining witness and Mrs. Marsh testifying it was their intention to- return to Alva. The defendant was driving the car and, instead of going to Alva, went to the ranch of his father several miles away.

The record shows when they reached the ranch house they got out, a fire was built, and they made coffee, and coffee and sandwiches were served to- the entire party; considerable drinking was indulged in by the parties. It is also shown when they got to the ranch the defendant took the keys out of the car and put them in his pocket. It finally developed that the defendant had thrown the keys of the car away, or said he did.

“We looked for the keys where we thought George threw them, but did not find them; after a short while Mortimer Welch took Mrs. Marsh by the arm and started to the car, and I started to go with them, and George grabbed me and held me, and I said, ‘I did not come with you and you let me loose; I screamed and yelled for Mortimer, and George raised his fist or arm and hit me under the chin and knocked me back on the bed; I screamed again and raised up and George said, ‘You raise up again and I aaq.11 knock you down;’ I raised up and he knocked me down again; I thought they would come and help me and I kicked the window out, then George knocked me back on the bed and picked up a chair and said, ‘I am going to kill you,’ he caught me by the wrist and I got away and tried to jump out of the bedroom window, but the screen held me; he grabbed me by the throat and choked me until I could not make a sound; I tried to get out of the door and he would not let me; he told me he had locked the other door so I could not get out; he then struck me or pushed me down; as I fell I saw there was a gun there; George was standing over me, I had scratched him in the eye; I stuck- this gun in his stomach and pulled the trigger, but it was not loaded, and he said, ‘Do you want to go to the pen;’ some way I managed to get up off the floor and George grabbed me by the throat; I was trying to hit him with the gun and scratching him with my left hand; I finally had to drop the gun, it was so heavy.
“He choked me until I was insensible; I fell forward and saw George stumble and hit a stove and it toppled forward and I think the stove pipe fell. George said, ‘You little wild cat, you have gone too long, you need some one to tame you and I am going to be the one to do it;’ he said, ‘I am going to jump right in the middle of you and stomp you to death, I am going to jump in your face and grind my heel;’ I thought if I could only do something to get away, and I said, ‘George, what is it you want’ and he said, ‘Yes, you know what I want,’ and he said, ‘Get from under that bed,’ and I said, ‘Let me up off the floor then,’ and he said, ‘I will cut your throat if you offer to- fight me.’ I picked up a handkerchief and started to wipe his face, and he said, ‘Don’t start anything like that,’ and I said, ‘I am not.’ He started to the kitchen, and I tiptoed out and got in the car with Mort and Mrs; Marsh; I told them George had tried to kill me and to not let him in the car; the door was open and Mrs. Marsh and Mort stepped out. I grabbed Mort and said, ‘Don’t leave me,’ and then he shut the door and said, ‘I have you right where I want you, I am going to screw you; I will see just how good you are;’ just as he started to unfasten his clothes Mort and Mrs. Marsh came back to the right hand side of the car and I think Mort took hold of George; I finally got out; Mort had hold of George and I grabbed Mrs. Marsh and said, ‘Come on, George tried to kill me.’ We ran around a wagon and on through the barn yard and started to hide, and I said, ‘We can’t hide here, if he finds us it will be worse than ever.’ After a while, Mrs. Marsh stopped and I said, ‘I am going on,’ and I left her there; for some time I could not find a place where there was easy walking — it was canyon after canyon — about seven o'clock in the morning I reached Mrs. Jackson’s; I did not know whose place it was; I was exhausted and my ankle was sprained and my knee bleeding; Mrs. Jackson took me in the house and laid me on the bed and gave me water to drink; it was about three o’clock in the morning when 1 got away from the defendant at the ranch house.”

Mrs. Marsh corroborated the prosecuting witness as to their being at the ranch house, ¿nd that part testified to by the complaining witness that occurred in her presence in and out of the house, and corroborated the witness as to the defendant’s face being scratched, and as to the complaining witness leaving the ranch house and running off. Mrs. Marsh further testified that after the complaining witness left the house, and some time before daylight, Mort Welch left the house saying he was going to hunt Juanita; that—

“George Crowell shut the door and grabbed me by the arm and threw me on the bed; I started crying and screaming and hit him as hard as I could, and he said, ‘I fought one wild cat tonight and I will blow your God damned brains out/ and got a gun from over against the wall and laid it on the bed, held my hands and raped me. As soon as I could I got up and ran out doors, and Mort was sitting in the car.”

The defendant, in his testimony, admitted leaving Alva with the complaining witness, Mrs. Marsh, and Mort Welch; admitted everything that occurred along the line from the time he left Alva until they reached the ranch; he stated he got in a fight with the complaining Avitness Juanita Thompson in the house, and slapped her because she was scratching his face and fighting him. He insists the complaining Avitness was mad because she thought Mort Welch Avas paying too much attention to Mrs. Marsh. Defendant denies he attempted sexual intercourse with the prosecuting witness and denies the statement of Mrs. Marsh as to his raping 'her. After the occurrence and the complaining witness got home, it appears from the record that the defendant ran off, left his home, and was arrested at some other toAvn.

The testimony in this case is voluminous, but we have set out all we deem necessary to arrive at the proper conclusion of the law and the facts. All the conflict there is in the testimony is the question as to whether or not the defendant attempted to rape the complaining witness.

The defendant in his first assignment of error states that the trial court erred in overruling his motion for a neAv trial. In his motion for a new trial the defendant states that the verdict was decided by lot, and that it was not a fair expression of the jury; the court misdirected the jury as to matters of law; the court erred in rejecting testimony offered by the defendant; because the verdict is contrary to the law and the evidence; the court erred in giving instructions 2, 3, 4, and 5.

The first proposition argued by the defendant is that the court erred in giving instruction No. 3, which instruction is as follows:

“Any person who is guilty of an assault with intent to commit rape is punishable by imprisonment in the state penitentiary for any period of time not exceeding five (5) years, or in the county jail, not exceeding one year, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment.
“Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, if, first: she resists, but her resistance is overcome by force or violence, or, second: if she is prevented from resistance by threats of immediate and great bodily harm, accomplished by apparent power of execution.
“An assault is any willful or unlawful attempt or offer with force or violence to' do corporal hurt to another.
“A battery is any willful and unlawful use of force or violence upon the person of another.
Assault, or assault and battery shall be punishable by imprisonment in the county jail not exceeding thirty (30) days, or by a fine of not more than $500 nor less than $100, or both, at the discretion of the jury.”

The defendant in his brief discusses at length the above and foregoing instruction and insists that the last paragraph of the instruction is an error sufficient to warrant this court in reversing the case. In the instruction the court tells the jury that assault or assault and battery is punishable by confinement in the county jail not exceeding 30 days, or by a fine of not more than $500 and not less than $100, or both.* at the discretion of the court. The statute for assault or assault and battery fixes the punishment at not exceeding thirty days in jail and a fine of not less than $5 or more than $100, or both, at the discretion of the court.

The defendant was on trial for assault with intent to commit rape, and the jury returned a verdict finding him guilty of the charge and assessing his punishment at one year in the state penitentiary. Assault and battery is an included offense in assault with intent to commit rape, but the jury by its verdict found the defendant was guilty of the offense charged in the information and not of the included offense. The defendant relies on Patterson v. State, 44 Okla. Cr. 298, 280 Pac 862, and Green v. State, 55 Okla. Cr. 12, 24 Pac. (2d) 301, to sustain his contention that the error of the court in defining the punishment for assault or assault and battery is sufficient to entitle him to a reversal.

An examination of the two cases relied upon by the defendant will show the facts in the cases are not in point. In Patterson v. State, supra, the court- submitted to the jury a smaller penalty than was provided by the statute, and the jury assessed a smaller penalty than that fixed by the statute. In Green v. State, supra, the court instructed the jury the minimum punishment for selling liquor to a minor was one year in the penitentiary, when the minimum punishment was thirty days in jail and a fine of $50. In the two cases relied upon by the defendant the court held that it was error for the trial court to give the jury permission to impose a minimum punishment less than that provided by statute, or to instruct the jury that the minimum punishment was greater than that fixed by statute. The contention of the defendant would be good if the jury had found the defendant guilty of assault or assault and battery and fixed his fine at more than $100; but in view of the fact the jury found the defendant guilty of assault with intent to commit rape, the point urged by the defendant is not well taken, as the rights of the defendant were not prejudiced by reason of the instruction as to the penalty for the minor included offense.

The defendant complains that the court erred in refusing to give his requested instruction. In the motion for a new trial the defendant makes no complaint that the court erred in refusing to give the requested instruction as mentioned in the petition in error. The instructions of the court have been considered, and the law contained in the instruction requested by the defendant was fully covered by the charge given by the trial court on the facts in the case. The court did not- err in refusing to give the requested instruction. Wheat v. State, 38 Okla. Cr. 119, 259 Pac. 279.

It is further argued by the defendant that the court erred in law in its fifth instruction. When considered in connection with the other instructions of the court, it does not contain any error. Considering the instructions in their entirety, there is nothing in this instruction to mislead the jury. It is clearly shown that it did not mislead the jury, as the jury arrived at a verdict of assault with intent to commit rape instead of assault or assault and battery. This court has repeatedly held that the instructions must be considered as a whole by the jury in arriving at its verdict. Moore v. State, 25 Okla. Cr. 118, 218 Pac. 1102; Cole v. State, 18 Okla. Cr. 430, 195 Pac. 901.

It is further contended by the defendant that the evidence is insufficient to support a conviction. With this contention we cannot agree. This record presents an unusual condition in a civilized country; here we find a single woman, a married woman, and two men getting together and starting out with a lunch and whisky, and drivtag from place to place visiting acquaintances, and continuing to drink; when they left Waynoka the women say they wanted to go- home. The testimony for the defense shows it was planned by them to- go to a ranch owned by the father of the defendant; the defendant was at the wheel, and instead of going home drove to his father’s ranch, arriving there about midnight, and as shown by the record all the parties got out of the car, coffee was made, and lunch served, and additional drinks were served. Shortly thereafter, whether by agreement between the two men or not, Mort Welch induced Mrs. Marsh to leave the house and go to the car which they had driven to the ranch; a disturbance came up between the complaining witness and defendant who were in the house: the complaining witness says the doors were locked and that defendant knocked her down and a general scuffle and trouble ensued; that she fought and scratched the defendant, and defendant in addition to other statements made said he was going to tame her.

In some way complaining witness got out of the house and rushed to the car where the other parties were; defendant came out and got in the car, over the objections of the complaining witness, and she appealed to Mort Welch to not let him in the car; shortly thereafter Welch and Mrs. Marsh got out of the car, and complaining witness says the defendant grabbed her and they scuffled, and he said he was going to screw her and about the time he got his clothes undone the other parties came back and she got out of the car, and she and Mrs. Marsh started to run away from the place and got as far as the barn, when Mrs. Marsh stopped and the complaining witness went on through canyons and brush, until about 7 o’clock next morning, when she came to the Jackson home. The record discloses an unusual condition; here at the ranch are a number of parties, and by reason of insults offered one of the parties leaves the house; neither the defendant nor Mort Welch attempted to find her or to learn what became of her. The next morning after daylight they drive into town, not knowing what had become of the complaining witness. The jury heard the facts. The testimony as to whether or not the defendant attempted to commit rape on the complaining witness is conflicting; the testimony of the complaining witness is that he did attempt to rape her, and the defendant’s testimony is that he did not. Every fact and circumstance from the time they arrived at the ranch indicate conclusively there was an agreement between Welch and the defendant that the defendant was going to have sexual intercourse with the complaining witness. This court has repeatedly held that when from the oral testimony and surrounding facts and circumstances the jury could reasonably find the defendant guilty, although the oral testimony may be conflicting, this court will not substitute its judgment for that of the jury on the weight and credibility of the evidence and will not disturb the verdict on the ground of the insufficiency of the evidence.

The evidence is sufficient to sustain the judgment. The defendant was accorded a fair and impartial trial. The court properly instructed the jury as to the law applicable to the facts. There are no errors in the record warranting a reversal.

The judgment of the trial court is affirmed.

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


text:
    WESLEY WEBER v. STATE.
    No. A-8672.
    May 25, 1934.
    (33 Pac. [2d] 232.)
    John P. Pendleton, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson and J. H. Lawson, Asst. Attys. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Nowata county of assault with intent to- kill and was sentenced to serve a term, of one year in the state penitentiary.

At the time charged, defendant, armed with a pistol, went to the residence of his tenant, one Wilson, with whom he had had some prior difficulty. He was in a state of intoxication or partial intoxication and engaged in a quarrel with Wilson and ordered him to leave the premises within thirty days. As Wilson started into his house, defendant shot at him three times, barely missing him. A jury was waived and the cause was tried to the court. Defendant testified he was intoxicated to the extent that he had no memory whatever of the shooting. The evidence of the state is also that defendant was intoxicated.

This court in numerous cases has considered the fact or claim of intoxication as a defense or mitigation of crime. It was first discussed in Miller v. State, 9 Okla. Cr. 55, 130 Pac. 813, in which case accused was convicted of manslaughter. The court disposed of the contention by saying there was no error in refusing a requested instruction' since an intent was not an essential element in the crime of manslaughter. In Cheadle v. State, 11 Okla. Cr. 566, 149 Pac. 919, L. R. A. 1915E, 1031, a murder case, it was in effect held that where the accused committed the homicide while so intoxicated he was incapable of forming a premeditated design; that the inability to form an intent would reduce the offense from murder to manslaughter ; and that where there was evidence) of intoxication of defendant to the extent of depriving him of the mental capacity to deliberate or premeditate, the question of intoxication should be submitted to the jury. To the same effect is Tubby v. State, 15 Okla. Cr. 496, 178 Pac. 491. In a later case, Chambers v. State, 16 Okla. Cr. 238, 182 Pac. 714, this court, in substance, held that where a premeditated design to take life had been formed prior to the homicide and the homicide was unprovoked at the time by any cause sufficient to reduce it to manslaughter, the intoxication of accused did not affect therdegree of homicide. That is, a design formed prior to the homicide is not wiped out by the fact of intoxication at the time of the homicide. See, also, Buck v. State, 16 Okla. Cr. 356, 182 Pac. 913; Collier v. State, 17 Okla. Cr. 139, 186 Pac. 963, 12 A. L. R. 839. The defense of intoxication has also been considered in cases of larceny. Huffman v. State, 24 Okla. Cr. 292, 217 Pac. 1070; Derrisaw v. State, 29 Okla. Cr. 377, 234 Pac. 230; Copperfield v. State, 37 Okla. Cr. 11, 255 Pac. 590; Jamison v. State, 53 Okla. Cr. 59, 7 Pac. (2d) 171. In view of section 1798, Okla. St. 1931, this court has announced a liberal rule, probably too liberal.

In the instant case the evidence of intoxication is sufficient to raise the issue and, if tried before a jury, would have required an instruction on the question, but as it was submitted to, the court without the intervention of a jury, the judgment of the court is equivalent to a verdict by the jury finding against defendant on this issue. We cannot say the trial court, from defendant’s actions and conduct and the testimony of the witnesses, was not fully justified in finding the intoxication of defendant was not to that degree which rendered him incapable of forming, the essential intent, and in finding that at the time defendant shot the prosecuting witness he had an Intent to kill.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


author: PER CURIAM.

text:
    RUTH MADDING v. STATE.
    No. A-8676.
    May 25, 1934.
    (33 Pac. [2d] 233.)
    Joe Adwon and Mathers & Mathers, for plaintiff in error.

      J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, hereinafter called defendant, was convicted in the court of common pleas of Oklahoma county, of having the unlawful possession of intoxicating liqour and was sentenced to pay a fine of $50 and to serve a term of 30 days in the county jail. Judgment was entered on November 6, at which time defendant was given 40 days to make and serve case-made. Thereafter further extension of time to make and serve case-made was made by the common pleas court judge, but no order extending the time in which to file appeal was made at any time. In misdemeanor cases the appeal must be taken within 60 days after the judgment is entered unless the court or judge for good cause shown extends the time not to exceed 60 days additional. Section 3192, Okla. St. 1931. Logan v. State, 51 Okla. Cr. 448, 3 Pac. (2d) 748.

The case-made not having been filed in this court until after the expiration of 60 days, the appeal comes too late and this court does not acquire jurisdiction.

The attempted appeal is dismissed.


text:
    ALVIN KISSELBURG v. STATE.
    No. A-8703.
    May 25, 1934.
    (33 Pac. [2d] 236.)

      A. C. Moses, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Paul W. Updegraff, Co. Atty., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of having possession of a still, and sentenced to pay a fine of f 50 and be confined in the county jail for 30 days.

The state, to maintain its allegations, called as a witness W. W. Jennings, who stated he was the sheriff of Cleveland county, on the 17th day of June, 1933, when he went to the home of Alvin Kisselburg, accompanied by Ivan Kennedy; Kisselburg’s home is located about 300 yards south of the Red Oak schoolhouse.

“We went over to where the still was set up and found the still and about two or three barrels of mash near it; there was no whisky at the still; Mr. Kennedy had told me where the still was. We went from there over to where Mr. Kisselburg lived; there was a plain trail from this still to the Kisselburg home; we did not know who lived at the house near where we found the still; Kisselburg and his wife were at home; I knocked on the door and his wife came to the door and said come in; I had a conversation with Mr. Kisselburg at the time with reference to the still and he said the still was his; he had been running it that Sunday morning; that he had run off some whisky, and the whisky was in a keg.”

Ivan Kennedy testified in substance to the same fact as did the witness Jennings.

The defendant testifying in his own behalf denied any knowledge of the still, and denied telling the sheriff that it- was his still; denied he had anything to do with the still or that he told the officers he had run off whisky that Sunday morning before they came to his place. The defendant further stated the trail the officers talked about running from his place to the still passed on through an old field south, and was traveled frequently by other people.

Mrs. Kisselburg, the wife of the defendant, and Harry Jones testified for the defendant, each corroborating the fact that the trail leading from defendant’s house to where the still was found went on through an old field and was traveled by a number of people; Mr. Jones stating his children used it going to and from school.

The defendant says the still was a quarter of a mile from his home, and the state witnesses say it was about one hundred yards from his home. The state’s testimony shows the witnesses knew nothing about who owned the still or had operated it; they claim the defendant told them he had some whisky in the house, and that he had been operating the still that Sunday morning, which is denied by the defendant. This is in substance the testimony in the case.

The defendant insists the court erred in not sustaining his objection to the introduction of any evidence, for the reason that the arrest was unlawful, and the search and seizure was illegal for the reason that no search warrant was issued. The record discloses the still was found a distance from defendant’s home, and not within the curtilage; therefore the contention of the defendant is without merit. This court has repeatedly held that a search warrant is not necessary to search woodlands, pastures, and fields not within the curtilage or close proximity of a dwelling house. Mitchell v. State, 38 Okla. Cr. 167, 259 Pac. 661; Perry et al. v. State, 42 Okla. Cr. 92, 274 Pac. 686; Hogue v. State, 48 Okla. Cr. 298, 291 Pac. 137.

It is next urged by the defendant that the verdict is not sustained by sufficient evidence. While the testimony in this case is largely circumstantial, the circumstances are such as to point directly to the guilt of the defendant. The officers also» testify the defendant told them he had been making whisky that Sunday morning before they came to» his house. There is a direct conflict in the testimony of the state’s witnesses and defendant.

This court has repeatedly held that where the evidence and the reasonable and logical inferences and deductions to» be drawn from it are sufficient to convince the jury beyond a reasonable doubt of the guilt of the defendant, it will not disturb the verdict for insufficiency. Underwood v. State, 36 Okla. Cr. 21, 251 Pac. 507; Bond v. State, 53 Okla. Cr. 224, 11 Pac. (2d) 200.

There are no errors in the record.

The judgment of the trial court is affirmed.

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


text:
    E. C. CAMPION et al. v. STATE.
    No. A-8642.
    April 20, 1934.
    Rehearing Denied May 25, 1934.
    (33 Pac. [2d] 511.)

      Corn & Com, and Mathers & Mathers, for plaintiffs in error.
    J. Berry King, Atty. Gen., and Jesse L. Ballard, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiffs in error, hereinafter referred to as the defendants, were by information jointly charged with a violation of the state election law, jointly tried, and the jury returned a verdict of guilty against each of the defendants on the second count in the information, leaving the punishment to the court. The court sentenced the defendants to the following terms: E. C. Campion, two years in the state penitentiary at Mc-Alester ; E. G. Boyd, two years in the state penitentiary at McAlester; and B. Y. Abercrombie, three years in the state penitentiary at McAlester.

An abstract of the testimony is as follows: A run-off primary was held on July 26, 1932, in Dewey county, Okla.; the names of B. F. Evans and W. W. Mitchell appeared on the official county ballot of Dewey county, as candidates seeking the nomination for the office of county commissioner of district No. 2; 100 official ballots for the Democratic ticket had been furnished by the state election board to the election officers of' Boyd precinct No-. 2; the defendants were members of the precinct election board for Boyd precinct No. 2, B. Y. Abercrombie being the inspector, E. O. Campion the judge, and E. G. Boyd the clerk; the record shows these defendants had had experience in serving as members of the election board.

The record further discloses that of the 100 ballots furnished, 77 were shown by the precinct counters to have been used by the voters at the said election; of the 77 ballots used W. W. Mitchell is credited with having received 36 votes; his opponent B. F. Evans receiving 23 votes, showing that for the two candidates seeking the nomination for county commissioner only 59 of the 77 votes were voted for the two< candidates; there being 18 of the 77 votes cast that were not counted for either of the said candidates.

It is further shown that of the 18 ballots not counted for either of the candidates, 16 of the same had a cross (X) in the square opposite the names of both W. W. Mitchell and B. F. Evans, and Avere considered as mutilated ballots.

It is further shown that the crosses appearing on the 16 ballots were not placed thereon by the voters of the ballots. The testimony of a number of the voters who participated in the primary shows that W. W. Mitchell received a greater number than 36 votes for which he was given credit; 48 citizens testify they voted for W. W. Mitchell, and that they did not vote for any other candidate for county commissioner.

The defendants admit they constitute the precinct election board for Boyd precinct No. 2; that they served as inspector, judge, and clerk in the run-off primary; that W. W. Mitchell and B. F. Evans were seeking the nomination on the Democratic ticket for county commissioner of district No. 2. It is further shown that Campion is the father-in-law of E. G~. Boyd, and that the counters at said precinct election, at the run-off primary, were the wives of the defendants, Abercrombie, Campion, and Boyd. This was a rural precinct and the election was held in Bell schoolhouse; there was a light vote cast; they commenced counting about 4 o’clock in the afternoon. The defendants deny they had anything to do with stamping the ballots, or causing to be placed an “X” in front of the names of Mitchell and Evans on the 16 ballots introduced in evidence, and they further deny they have any knowledge as to who had placed this “X” in front of the names of the two candidates, Mitchell and Evans.

The record contains 435 pages. We have set out the substance of the testimony we deem necessary to refer to in arriving at an opinion as to whether or not the defendants were accorded a fair and impartial trial, and whether the evidence is sufficient to sustain a conviction.

The defendants assign several errors alleged to be sufficient to warrant a reversal of this case. The first assignment discussed by the defendants is, that the court erred in overruling their motion to quash the information. The grounds for the motion to quash the information is that the said defendants have not had a preliminary examination on said charge as provided by law.

The defendants have not waived a preliminary examination; the charge as set forth in the information is different from the charge in said complaint; the magistrate certified, or attempted to certify two separate or distinct crimes; the magistrate did not indorse on the complaint the order signed by him as provided by law, that the crime had been committed; that the said magistrate did not determine that any crime had been committed. The information filed has two counts, the first count charging the defendants with knowingly, willfully, unlawfully, intentionally, feloniously, and corruptly defacing, injuring,, and destroying certain county ballots. The second count charges that these defendants knowingly, willfully, unlawfully, feloniously, negligently, and corruptly permitted a person or persons, whose name or names are unknown to the county attorney, to deface, injure, and destroy the ballots regularly voted at said precinct.

Section 2497, C. O. S. 1921, now section 2806, O. S. 1931, is as follows:

“If, however, it appear from the examination that any public offense has been committed, and that there is sufficient cause to believe the defendant guilty thereof, the magistrate must in like manner indorse on the complaint an order signed by him to the following effect:
“It appearing to me that the offense named in the within complaint mentioned (or any other offense, according to the fact, stating generally the nature thereof), has been committed, and that there is sufficient cause to helieve that the within named A B guilty thereof, I order that he be held to answer the same.”

The defendants argue with great force that the complaint in this case was not signed and indorsed by the magistrate as required by the statute, and therefore the county attorney was without jurisdiction to file the information, and their motion to’ quash should have been sustained, citing’ Steiner v. State, 33 Okla. Cr. 298, 243 Pac. 1002, to sustain their position. In Steiner v. State, supra, the court properly held that there was not a sufficient finding or order of the examining magistrate filed with the clerk of the superior court to give the court jurisdiction. The motion of the defendants in this case would be well taken if the same condition of the record of the examining magistrate appeared as it did in the Steiner Case, but from an examination of the transcript we find the magistrate’s proceedings to have been properly signed by the magistrate, and the certificate to the same properly signed; the certificate of the court sitting as an examining' magistrate certifies that the foregoing is a true statement of all the proceedings had in the above-entitled cause, a true transcript of the docket entries in said cause as same now appears in the preliminary docket in his office.

From this transcript it clearly appears that the examining magistrate found facts from the evidence adduced at the preliminary hearing that a public offense had been committed, and that there was sufficient cause to believe the defendants guilty of the said offense. This transcript of the examining magistrate was sufficient to give the district court jurisdiction and to authorize the county attorney to file an information. The motion of the defendants to quash the information was properly overruled.

The next error argued by the defendants is that the court erred in overruling the demurrer to' the information, the first ground of the demurrer being the information does not state sufficient facts to constitute an offense against the laws of the state of Oklahoma; and the second ground is, that the information does not state an offense, it states two offenses against the laws of the state of Oklahoma. The defendants contend their demurrer should be sustained for the reason that the information fails to state an offense, there being no allegation that the said defendants were duly appointed by any one having the authority to make such appointments and that they were qualified to hold said election. No authorities are cited by the defendants to sustain their position, or to show that the court erred in overruling their demurrer. The information stated sufficient facts in concise language to advise the defendants of the crime charged against them. The court did not err in overruling the demurrer. Section 2886, O. S. 1931; Little v. State, 21 Okla. Cr. 1, 204 Pac. 305; Payne v. State, 30 Okla. Cr. 218, 235 Pac. 558.

Section 2893, O. S. 1931, is as follows:

“Neither presumptions of law, nor matters of which judicial notice is taken, need be stated in an indictment or information.”

In Teague v. State, 13 Okla. Cr. 270, 163 Pac. 954, it is held:

“An information is sufficient, if it pleads every element essential to charge the crime pleaded, in plain, concise, and intelligible language, and apprises the defendant in an intelligible way of precisely what he must be prepared to meet.”

The defendants, in their brief, discuss assignments four and five together. These assignments relate to the admission of state Exhibits 1 and 2, which exhibits show the ballots cast at the primary election, and those claimed to be mutilated. The main argument presented by the defendants is that there was no order of the court permitting the ballot boxes to be opened and allowing the ballots to be used in court as evidence. The exhibits of the state tended to show the condition of the ballots as voted, and to show that one of the candidates, W. W. Mitchell, had not received as many votes as the witnesses 'who testified stated they had voted for- him. The court did not err in admitting the exhibits.

Complaint is made that the court erred in its instructions to the jury. This court has repeatedly held that the instructions must be considered as a whole, and, when considered together, if they fairly and correctly stated the law applicable to the case, they will be sufficient. The instructions of the court when considered together correctly state the law applicable to the facts. If the defendants were not satisfied with the instructions given by the court, they should have submitted instructions covering the points of law they thought were not covered by the court’s instructions. There is some conflict in the testimony. This court has so often held that where there was any competent evidence to sustain the verdict of the jury, though the evidence was conflicting, it would not set up its judgment against the judgment of the jury.

Other errors have been assigned by the defendants but they do not possess sufficient merit to warrant them being considered. The defendants were accorded a fair and impartial trial. The court correctly instructed the jury as to the law applicable to the facts. No errors appearing in the record warranting a reversal, the judgment of the trial court is affirmed.

EDWABD.S, P. J., and CHAPPELL, J., concur.


author: CHAPPELL, J.

text:
    T. C. POPE v. STATE.
    No. A-8661.
    June 8, 1934.
    (33 Pac. [2d] 813.)
    C. E. Hunt and Theodore P. Kuker, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Latimer county of the crime of murder in the killing of one Ellis Atohko, and his punishment fixed by the jury at imprisonment in the state penitentiary for the period of his natural life.

It is not deemed necessary to set out the evidence, because the contention of defendant’s counsel goes to the credibility of the state’s witnesses rather than the weight and sufficiency of the evidence.

It is first contended the trial court erred in refusing to give defendant’s requested instructions on the right of defendant to' carry his gun with him and to have it at the time of the commission of the homicide.

The right of defendant to carry his gun on this occasion and to' be armed at the time of the killing, was merged in his right of self-defense. If he armed himself and went to the scene of the homicide for the purpose of seeking or provoking a difficulty with the deceased and as a result of such arming himself and seeking a difficulty, a difficulty arose between' him and deceased, which resulted in the killing, defendant would not be without fault in bringing on such difficulty, and therefore he would not be entitled to' plead the perfect right of self-defense. If, on the other hand, defendant did not arm himself for such purpose and a difficulty ensued, defendant, being in a place where he had a right to be and without fault, could invoke the perfect right of self-defense. The trial judge in his instructions submitted to the jury the right of defendant to defend himself under the circumstances disclosed by the evidence in the case, and the jury was told without equivocation that defendant could resist and had the right to resist any force or offer of force by deceased which was reasonably calculated to makei defendant believe, viewing the circumstances from his standpoint, that deceased was about to kill him or to' commit some great bodily harm upon him, and that defendant could do this even to the extent of taking the life of deceased if it reasonably appeared to defendant to be necessary.

In Wilkie v. State, 33 Okla. Cr. 225, 242 Pac. 1057, this court held similar instructions sufficient to accord to defendant his right of self-defense.

The instructions in the case at bar were sufficient to cover the law of self-defense from the standpoint of the state’s testimony and that of defendant himself. It was not error, therefore, for the trial court to refuse to give the requested' instructions covering the same issue.

It is next contended the trial court erred in denying the request of defendant to exhume the body of deceased for the purpose of having a post mortem examination to determine the point of entrance and the point of exit of the bullet which caused death.

The record discloses the trial of the case occurred eight months after the killing. No offer was made by defendant or his counsel to have a post mortem examination shortly after the homicide was committed, or at any time prior to the trial of the case. There is m> evidence in the record to show the body of deceased was embalmed prior to its burial, or that it would be in such a state of preservation as to permit an examination from which the evidence sought to be developed could have been obtained with any more accuracy than the testimony of Dr. Booth, who», examined the wounds and probed the same the next day after the killing, and before any burial of the body was made. No doubt the trial court took into consideration the fact that after the body had been interred for eight months under the circumstances disclosed at the trial, it would be so decomposed as to render a proper examination impossible.

Applications of this character are addressed to the sound discretion of the trial court, and its ruling thereon will not be disturbed unless it affirmatively appears from the record that such discretion has been abused. It was not error, therefore, for the trial court to overrule the application.

It is next contended the trial court erred in permitting the jury to separate after they had retired to deliberate on their verdict, and to receive information regarding the defendant and the purported offense outside of that produced at the trial.

The record does not support this assignment of error. In support of the motion for a new trial 'Counsel for defendant introduced the testimony of two men who were incarcerated in the county jail at the time the jury were deliberating on this verdict, to show that one of the jurors stuck his head out of the window, and talked to some person who was on the ground outside of the courthouse. There is absolutely no evidence to show that the jury separated, and the testimony of these two- witnesses fails to disclose that this juror said anything, to anybody outside of the jury room, except one of the witnesses says he heard the juror say, “Yes.” The state in rebuttal introduced the testimony of ten members of the jury, who testified that no misconduct occurred on the part of any member of the jury, and that there was no' communication whatever with any person outside of the jury room. It is apparent, therefore, that there is no merit in this contention.

It is next contended that certain alleged misconduct on the part of the county attorney and on the part of the special prosecuting attorney, Honorable Claud Briggs, should result in a reversal of this judgment.

These assignments of error are contained in the motion for a new trial. The matter complained of occurred at the time the county attorney and special prosecutor were arguing the case to the jury. There was no objection made to any of this argument, nor was the court requested to instruct the jury respecting the same, nor was any exception taken to any ruling of the court respecting any argument made by either the county attorney or the special prosecutor at the time it is contended such improper conduct and argument was made. The only record before this court is one made in support of the motion for a new trial on these alleged grounds. This court has repeatedly held that matters of this kind must be called to the attention, of the trial court at the time the alleged errors occur, and it is too late to raise the question in the motion for a new trial. There must be a recital in the case-made which amounts to a bill of exceptions on questions such as this. Newcomb v. State, 23 Okla. Cr. 172, 213 Pac. 900; Quitman v. State, 35 Okla. Cr. 245, 250 Pac. 441.

It is next contended the trial court erred in the admission, of incompetent, irrelevant, and immaterial testimony, and in permitting the prosecuting counsel to- ask incompetent and prejudicial questions of defendant as to conviction of crime too remote in point of time.

When defendant takes- the witness stand in his own behalf he may be subjected to the same cross-examination as any other witness, and such cross-examination includes, for the purposes of impeachment, the right of the state to interrogate defendant as to whether or not he has ever been convicted of crime. The objection that the questions along this line relate to crimes too remote in point of time goes merely to the weight of such evidence and not to its admissibility. The state introduced- evidence that defendant had been convicted of various crimes from several years back and leading up in point of time not far removed from the commission of the homicide.

Under this assignment it is also contended that it was prejudicial error for the state to cross-examine defendant’s character witnesses as to their knowledge of previous crimes, convictions, and difficulties of defendant. No objection was made to the admission of this evidence at the time the same was received, but later in the trial defendant’s counsel did request the court to take this evidence from the jury, at which time the court sustained defendant’s motion and instructed the jury that they could not consider the evidence. Certainly counsel for defendant cannot, under such circumstances, be heard to complain, when the ruling of the trial court was favorable to them the first time they made any objection to the alleged incompetent evidence. Counsel cannot sit silently by and let evidence of this character go to the jury, and then complain of the action of the trial court in taking the same from the consideration of the jury at their request and later instructing the jury not to consider it.

It is next contended the trial court erred and abused its discretion by preventing defendant from proving the correct manner to serve a writ of replevin, and also in refusing defendant the right to introduce a letter written by Honorable Claud Briggs, special prosecutor, to the estranged wife of defendant.

The question of whether or not deceased was serving the writ of replevin in the correct manner is not involved in the merits of this case. Defendant testified that he knew before he went out to meet deceased and carried his Winchester with him that deceased was at his premises for the purpose of serving a writ of replevin upon him, to get possession of a certain stove that the witness Ras Manes claimed belonged to him. The fact that deceased had a right to' serve the writ in the absence of defendant but elected to' wait until defendant returned to his home before serving same could have no material bearing on the case.

The letter of Briggs to defendant was written long prior to the commission of the offense, and had no tendency to affect any issue in the case, and its admission was therefore properly refused.

Finally, it is contended the defendant should be granted a new trial because of newly discovered evidence,

A new trial on the ground of newly discovered evidence rests within the sound discretion of the trial court. The newly discovered evidence relied upon is merely evidence to impeach the credibility of the state’s witnesses, Has Manes and Mrs. Ras Manes. These two witnesses were the main prosecuting witnesses and had testified at the preliminary examination of defendant some seven months before the trial of the case. Counsel for defendant, therefore, were in possession of the facts to which these witnesses testified in the final trial.

This court has held in a number of cases that a new trial will not be granted to permit the introduction of impeaching testimony. Caple v. State, 3 Okla. Cr. 621, 105 Pac. 681; Ryal v. State, 16 Okla. Cr. 266, 182 Pac. 253; McKenzie v. State, 34 Okla. Cr. 233, 245 Pac. 1005.

The verdict of the jury is amply supported by the evidence, the instructions fully cover the law of the case, and no error was committed during the progress of the trial that would require a reversal of the judgment. The cause is therefore affirmed.

EDWARDS, P. J., concurs. DAVENPORT, J., absent, not participating.


text:
    VIRGIL ROWE v. STATE.
    No. A-8658.
    May 18, 1934.
    Rehearing' Denied June 8, 1934.
    (33 Pac. [2d] 233.)
    John L. Ward and Wayne C. Evans, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and J. H. Lawson, for the State.
   CHAPPELL, J.

Plaintiff in error, herein referred to as defendant, was convicted in the district court of Tulsa county of the crime of assault with intent to do bodily harm with a dangerous weapon, and his punishment fixed by the jury at imprisonment in the state' penitentiary for a term of two- years. .

The evidence of the state was that the defendant was the owner of certain real estate in the city of Tulsa Avhich he rented; that on the day of the shooting he visited these premises and, finding the prosecuting witness, Theodore Jackson, there, and being angered by what he claimed was misuse of the premises, ordered Jackson to leave, and in the argument that followed shot Jackson in the back as he went out of the back door, the bullet passing through his body and coming out at the front, but not causing death.

Defendant, testifying for himself, claimed he fired the shot in his own self-defense, after Jackson had drawn a pistol to shoot him with.

It is first contended, that this evidence is insufficient to support the verdict of the jury.

No witness corroborates him. The testimony of the state and the physical facts support the verdict and judgment.

It is next contended the trial court erred in refusing to permit defendant to introduce competent and material evidence in his defense.

A careful examination of the record discloses that the court permitted the introduction of all evidence offered that was material to the issue.

It is next contended the court erred in permitting, the state in cross-examination of defendants character witnesses to inquire if they had heard of certain other acts which tended to rebut defendant’s claim.of being a.peaceful and law-abiding citizen.

This court has held against the contention of defendant in the following cases: Carroll v. State, 24 Okla. Cr. 26, 215 Pac. 797; Thacker v. State, 55 Okla. Cr. 161, 26 Pac. (2d) 770.

The record disclosing no reversible error, the cause is affirmed.

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


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    ALBERT WILLIAMS et al. v. STATE.

      No. A-8692.
    May 11, 1934.
    Rehearing Denied June 8, 1934.
    (33 Pac. [2d] 234.)
    Ben F. Williams, Homer Cowan, and T. R. Benedum, plaintiffs In error.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Paul W. Updegraff, Co. Atty., for the State.
   CHAPPELL, J.

Plaintiffs in error, hereinafter called defendants, were convicted in the county court of Cleveland county of unlawful possession of intoxicating liquor, and their punishment fixed by the court as follows:

Albert Williams fined $50 and sentenced to BO days in the county jail;

Edgar Oswalt fined $175 and sentenced to 45 days in the county jail.

It is first contended the court erred in overruling defendants’ motion to suppress the evidence because the same was obtained by an unlawful search and seizure.

The evidence of the state was that the officers having a search warrant visited the premises of Edgar Oswalt and searched the house and outbuildings, but found no intoxicating liquor; that a path led from Oswalt’s house about 250 yards down into a cornfield; that following, this trail the officers found a still in operation and saw defendant Williams workng about the still; that upon the approach of the officers he fled; that the officers found several barrels of mash and a ten-gallon keg with about seven gallons of rye whisky in it, in addition to the still, and that they also found tracks made by the wheels of a wagon leading from the still to the house, with a good many grains of rye in the bottom of the wagon box; that after finding the still and the wagon and looking in the wagon and finding the grains of rye, the officers further searched the premises and found about one pint of whisky in the trunk on the back of an automobile belonging to defendant Williams, which automobile was stored in a shed there; that the next day defendant Williams appeared at the county jail to claim his car, and was then arrested.

Defendant Oswalt did not take the witness stand. Williams denied he was at the still, and offered proof he was attending the Fair in Oklahoma City on that day. Evidence was also offered by defendants to show that the still was not located on Oswalt’s premises.

During the progress of the trial the state admitted the search warrant was void, as not being based upon an affidavit, but contended that no search warrant was necessary under the evidence.

This case falls within the rule laid down in Mitchell v. State, 38 Okla. Cr. 167, 259 Pac. 661, where this court said:

“Where the commission of an offense is suspected, a search , of woodlands, pastures, or fields not within the curtilage or close proximity of a dwelling house is not unreasonable, and a search warrant is not necessary.”

In the body of the opinion, this court said:

“Complaint is also' made that the officers made an unlawful.search. No search warrant was necessary for the investigation that led to the finding of the still. It was a brushy woods pasture, an unfrequented place, one-quarter to one-half of a mile from the residence. * * * The officers testified they looked into defendant’s barn and to this extent the search was unwarranted, but this overstepping the right of search does not affect the case.”

To the same effect are: Penney v. State, 35 Okla. Cr. 151, 249 Pac. 167; Perry v. State, 42 Okla. Cr. 92, 274 Pac. 686; Hogue v. State, 48 Okla. Cr. 298, 291 Pac. 137.

In the case at bar, while the search of the house and automobile was unauthorized, that did not affect the right of the officers to search the remote premises under the circumstances disclosed by the evidence.

The right to' complain of an illegal search is personal and not available to one not the owner of the premises or the property searched, or to one who disclaims ownership. White v. State, 33 Okla, Cr. 428, 244 Pac. 450; Penrod v. State, 38 Okla. Cr. 46, 258 Pac. 1052; Hall v. State, 39 Okla. Cr. 254, 264 Pac. 221; Luton v. State, 47 Okla. Cr. 82, 286 Pac. 350.

Defendants baying offered evidence that tbe still was located on premises not owned or controlled by them, and having disclaimed ownership of the property found, under these authorities they are not in a position to raise the question of illegal search, and upon either one of the propositions the court did not err in overruling the objections and admitting the evidence.

Finally, it is contended the evidence is insufficient to sustain the verdict of the jury. There is no merit in this contention.

For the reasons stated, the cause is affirmed.

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


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    Ex parte W. F. MILES.
    No. A-8678.
    June 8, 1934.
    (33 Pac. [2d] 636.)
    W. F. Miles, pro se.
    J. Berry King, Atty. Gen., and Jess L. Ballard, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

This is an original proceeding in habeas corpus. Petitioner alleges he is illegally restrained of his liberty in the state penitentiary; that he ivas sentenced by the district court of Tulsa county to serve a term of one year and to pay cost in the sum of |85.60; that his confinement in the penitentiary began on the 13th day of November, 1933.

The contention appears to be that the court was without jurisdiction to sentence petitioner because of irregularity of the verdict and on account of the failure of the trial judge to require the jury to assess the punishment; that the verdict does not conform to- the law, in that it does not assess a fine in addition to imprisonment. Attached to the petition is a certified copy of the verdict, the judgment and sentence, and the court’s instruction. From this we conclude that the proceedings were irregular, but we do not find the court was without or lost jurisdiction. If this were before the court on appeal, it is likely reversible error would appear. Habeas corpus cannot be resorted to in place of an appeal. The petitioner will be entitled to his discharge when he shall have served the term of one year and discharged the cost assessed. Time may be shortened by deduction for good time, if such shall be allowable.

The writ is denied.


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    C. B. SHERRILL v. STATE.
    No. A-8685.
    June 8, 1934.
    (33 Pac. [2d] 636.)
    Victor O. Waters, for plaintiff in error.

      J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was by information jointly charged with Rimer Gilman and Jim Champion of the crime of grand larceny, was tried with Rimer Gilman, convicted, and sentenced to serve a term of four years in the state penitentiary.

The record shows the defendant, C. B. Sherrill, is the only one that appealed from the judgment. The case-made, with petition in error attached, was filed in this court on February 26, 1984; no brief has been filed in support of defendant’s assignment of error.

A careful examination of the record shows no fundamental errors. The evidence is sufficient to support a verdict of conviction. The defendant Jim Champion testified for the state. The value of the wheat alleged to have been stolen is $28. Considering the facts disclosed by the record and the circumstances, it is the opinion of this court that the punishment is excessive and should be modified from a, term of four years’ imprisonment in the state penitentiary to two years, and, as modified, the judgment is affirmed.

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


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    JACK COLLINS v. STATE.
    No. A-8663.
    June 19, 1934.
    (33 Pac. [2d] 1118.)
    E. M. Anderson, for plaintiff in error.

      J. Berry King; Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, hereinafter referred to’ as defendant, ivas convicted in the district court of Rogers county of grand larceny, and was sentenced to serve a terni of one year in the state penitentiary.

• The appeal, was filed in this court on December 19, 1933. No' brief has been filed in support of the appeal. No fundamental or jurisdictional error appeal's. The appeal is without merit.

. The case is affirmed.


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    CHARLIE CHASTAIN v. STATE.
    No. A-8723.
    June 19, 1934.
    (33 Pac. [2d] 813.)
    ■F. A. Greene, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, hereinafter called defendant, was convicted in county court of McIntosh county of possession of intoxicants and was sentenced to pay a fine of $100 and to serve 90 days in the county jail.

No notice of appeal was served, nor was same waived by Attorney General.

Appellant in a criminal case must serve written notice on court clerk and county attorney. Section 3193, Oída. Stat. 1931. ■ ■ ■

It has been many times held by this court that where no notice is served, this court acquires no jurisdiction. Sharer v. State, 40 Okla. Cr. 420, 269 Pac. 511; Brown v. State, 55 Okla. Cr. 11, 23 Pac. (2d) 719; Burgess v. State, 18 Okla. Cr. 574, 197 Pac. 173; Lutke v. State, 37 Okla. Cr. 18, 255 Pac. 719.

The attempted appeal is dismissed.


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    KENNETH JOHNSON v. STATE.
    No. A-8636.
    June 22, 1934.
    (33 Pac. [2d] 812.)
    J. H. Long;, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Stephens county of robbery with firearms, and was sentenced to life imprisonment in the state penitentiary. At the time charged, the State National Bank of Marlow was robbed of about $4,300 by four persons who came to the bank in two automobiles. One remained outside with a revolver, while three entered the bank and with revolvers held up two employees in charge and some customers who were in the front of the bank. One of the three, identified as the defendant, remained in the lobby outside the bank fixtures and directed the proceedings. Two others went behind and secured the money, after which they locked the employees and several customers in the vault. While taking the money, one of the robbers touched an alarm system which connected with certain other places outside, and, as the three came out, citizens, warned by the alarm system, attempted to interfere, and a considerable fusillade of shots followed, but no one was hit. As the robbers left, they forced two boys who were outside the bank to' go with them as hostages, or as shields to prevent any one shooting at the party. The fifth member of the party was outside the town with another car which furnished the means of escape. The identification of defendant is positive. The defense is an alibi. It is not contended the evidence is insufficient.

Argument is made that the court erred in permitting four jurors who were depositors of the bank to sit in the tidal of the case. No authorities in support of the contention are cited. This court in Mathews v. State, 19 Okla. Cr. 153, 198 Pac. 112, 113, held:

“The mere fact that a prospective juror is a depositor in the bank interested in the prosecution of the defendant will not disqualify such juror, where it is not shown that his business relations are such as might influence his verdict or cause the bank to oppress him or place him at the mercy of the bank.”

In 35 C. J. § 337, p. 322, it is stated:

“* * * ,So the mere fact that a, person is a depositor in a bank does not, ipso facto, disqualify him to serve as a juror in cases where the bank is interested or is the injured party in the criminal prosecution. * * *”

See, also, Elliott v. State, 77 Fla. 611, 82 So. 139. We see no reason for modifying the rule stated in the Mathews Case.

The principal argument made is that the punishment assessed is too severe and indicates passion and prejudice, and that this court, as a matter of justice, should reduce it. In support of this claim, defendant asserts there is no showing defendant engaged in the shooting immediately following the robbery, and, since no one sustained any physical hurt, it is so excessive as to amount to a miscarriage of justice. The extreme punishment in a case of robbery with firearms may be death. Section 2543, Okla. Stat. 1931. It is questionable whether this court would sustain the extreme penalty of death in a case of robbery where no person was injured in the consummation of the robbery. But the assessing of life imprisonment in an extremely aggravated case of robbery, as appears from the evidence here, although no one sustained physical hurt, is not per se excessive. The evidence here establishes the criminal character of defendant and his associates and their readiness, by the use of firearms, to kill any one who might interfere with their designs to rob the banking institution, and to kidnap and endanger the life of others in making their escape. It was a matter of good fortune rather than any good purpose on the part of defendant and his associates, that no one was hurt in the commission of this crime. Justice does not require a reduction of punishment by this court.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


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    R. B. CARPENTER v. STATE.
    No. A-8623.
    April 14, 1934.
    Rehearing Denied June 22, 1934.
    (33 Pac. [2d] 637.)
    Geo. H. Giddings, Sr., and R. H. Morgan, for plaintiff in error.
    J. Berry King, Atty, Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, for convenience hereinafter referred to as the defendant, was convicted of the larceny of an automobile and sentenced to serve a term of five years- in the state penitentiary, and appeals.

An abstract of the testimony shows N. J. Fuqua, of Duncan, .Stephens county, Okla., owned a Chevrolet sedan, and on the night of August 7, 1932, he and his wife attended a show at the Palace Theatre in Duncan, leaving their car parked on Main street; when they came out about 10 o’clock the car was gone; when he left the car, he left the windows and ignition locked; the next time he saw what he identified as his car was in Purcell, Okla., in a garage; the car he examined in the garage had the same kind of casings he had on his car; the figure 2 on the motor number had been changed, or mutilated and looked like an 0; the witness identified an aluminum plate on the dashboard under the hood of the car which showed a job No. 32559, and a body No. K1272, these being the same numbers on his bill of sale; the original number of his car was 3271568, and when he examined the car in the garage at Purcell, the number 2 had been changed to O.

Orin Johnson, the sheriff of McClain county, stated he knew the defendant, Bussell Carpenter; that on the 15th day of September, 1932, he and a Mr. Wilson were driving on the highway near where the defendant lived and saw the defendant driving the Chevrolet car alleged to have been stolen; while they were driving near the defendant’s home, the defendant passed them one or more times driving the Chevrolet car the state claims was owned by Mr. Fuqua, and Mr. Fuqua testified it was stolen or taken without his knowledge or consent; two or three days after the defendant was seen driving the car near his home, a number of officers went to Mr. McCurdy’s home, where they found the defendant; the reason they went to the McCurdy home was the car was parked in front of the McCurdy house; the defendant was not there at the time the officers arrived, which was about midnight.; the defendant showed up at the McCurdy home about daylight; the witness had not seen him come, but he was arrested, and they took possession of the car on reports that it had been stolen. The defendant stated he bought the car from a man named Wilder, whom he had met in Oklahoma City. Witness further stated defendant did not give very satisfactory statements as to how he came into possession of the car; defendant stated he traded a model A Ford in on the deal and had given a difference of $342, securing the amount by a note and mortgage, but defendant did not remember the provisions of the mortgage and could not tell when or where the payments were to be made, but stated they were to be made when he got the money.

Purman Wilson, county attorney of McClain county, stated he had known Russell Carpenter practically all his life; on the 19th of September, 1932, when the car was taken from the defendant, he went with Sheriff Johnston to the Carpenter home, and on to the McCurdy place where they found the car, and defendant was arrested; the defendant stated he had never seen the man J. W. Wilder before and had never seen him since he made the trade; that he had traded an old car and paid $342 and given a mortgage to secure this amount, but did not know if it had been recorded. Witness further stated when he took the car he checked the motor number, and it was 3071568.

Witness N. J. Fuqua was recalled, and on further cross-examination by the defendant stated he had seen the job number and body number only on the bill of sale; that he did not have the bill of sale with him at the trial and had never examined his car to look for any number on it.

Miss Erline Webster, called as a witness on behalf of the defendant, testified she was working, in the agent’s office, at Norman August 9,1932, and. they issued a license tag and certificate of title to J. W. Wilder on his application, the certificate being 3071568; that on the 10th of August, 1932, Wilder, accompanied by the defendant, Russell Carpenter, and a lady came to her office at Norman; the man who accompanied the defendant was the same man who had given his name as J. W. Wilder on the 9th, when she had issued him a license tag. Witness: further stated when the man gave her his name as Wilder he stated he was a car salesman from Missouri, and asked how he could sell a car in Oklahoma. Witness could not identify the defendant’s wife as the lady with the defendant and Wilder when they came to her office at Norman on August 10th.

Mrs. E. B. Carpenter, wife of the defendant, testified the man gave his name as Wilder who* sold the car to her husband; that he came back about a month after the sale Avas made to collect a payment on the car, and her husband paid him the balance of $275; that was the last time she saw the man. The wife of the defendant testified she and her husband spent the entire evening at the home of Mr. McCurdy’s near their place, and attended an ice cream supper the night of August 7th, the night it is alleged the car was stolen. Several witnesses were called to establish an alibi for the defendant, and all stated positively that the defendant was at the home of McCurdy from about dark the evening of August 7, 1932, up until 10:30 or 11 o’clock, some stating an hour later.

The defendant did not testify. The foregoing is, in substance, the testimony of both the state and the defendant.

It is not disputed by the defense that the car found in the possession of the defendant is the car that was taken from the witness Fuqua, but it is insisted by the defense that the defendant had nothing, to do with taking the car and kneAV nothing about it being a stolen car; that the defendant purchased the car from a man who represen ted himself to be J. W. Wilder, from Missouri; the statement the state claims to have been made by the defendant tO' the sheriff and county attorney of McClain county indicates that defendant had traded an old model •A Ford to a man by the name of Wilder and promised to pay $342 in money, making a note and mortgage to secure the payment, but he did not know when the note was to be paid, and did not know whether the note and mortgage had been recorded. The wife of the defendant, in her testimony, says that some time after they bought the car Wilder came to their home and her husband paid him the balance due on the car.

Seven errors have been assigned by the defendant as grounds for reversal. These errors will be considered as presented by the defendant in his argument.

The defendant in his argument urges that the court erred in giving its sixth instruction, which instruction is as follows:

“You are instructed, gentlemen, that when the fact of the theft has been shown, and the question is whether or not the defendant committed it, his possession, if you find beyond a reasonable doubt, he had possession thereof, of the stolen property at a time not too long after the stealing is circumstance for the jury to consider and weigh in connection with all the other facts in the case. Its significance will vary with its special facts, and with the other facts in the case, among which are the nearness or remoteness of the proved possession of the stolen property; the nature of the property as passing rapidly from hand to hand, or not, together with such other facts and circumstances as would reasonably influence the opinion Of the jurors as to- the guilt or innocence of the defendant.”

The defendant insists that this instruction is erroneous in that it fails to use the word “unexplained.” In Jackson v. State, 22 Okla. Cr. 338, 211 Pac. 1066, 1067, in the sixth paragraph of the syllabus, the court said:

“Where there is evidence tending to explain the possession of defendant of stolen property, the trial judge should give an instruction covering this theory of defense. Such theory is not covered by an instruction relating wholly to inferences of fact arising from unexplained possession.”

This court has repeatedly held that the possession of recently stolen property unexplained is a circumstance to be considered and given such weight as the jury may see fit, and the jury is the sole judge as to what weight shall be given the circumstances, and, even if the defendant makes no attempt at the explanation of the possession, the jury would not be authorized to convict unless from all the facts and circumstances of the case it believed the defendant guilty. Chrisman v. State, 22 Okla. Cr. 52, 209 Pac. 656; Blumhoff v. State, 29 Okla. Cr. 4, 231 Pac. 900.

In Shaw v. State, 13 Okla. Cr. 511, 165 Pac. 617, in the first paragraph of the syllabus, this court in part said:

“Possession alone is not sufficient proof of the crime to warrant a conviction, when a reasonable explanation of the possession of same is made and the circumstances tend to support the explanation.”

The defendant insists that it was the duty of the court, when it instructed the jury on the possession of recently stolen property, to have given an affirmative instruction to the jury as to the effect of this explanation and its reasonableness, if they found it was reasonable.

Instruction 6, complained of by the defendant, is a correct instruction as far as it goes, but it does not fully instruct the jury as to the law applicable to the defense of the defendant and his explanaiton of the possession of the recently stolen property. ’ If, when the court instructed the jury, the defendant desired an additional instruction upon his theory of the case it was his duty to have prepared the same and requested the court to give it. In Ford v. State, 52 Okla. Cr. 321, 5 Pac. (2d) 170, 171, this court held:

“If the defendant desires special instructions in the trial of a criminal case, he is required by the provisions of our criminal procedure to present in writing to the court the instructions desired, and it is not error for the trial court to omit to instruct upon every possible question under the defendant’s theory of the case, when he has not requested such instructions.”

The defendant further complains that the court erred in giving instruction No. 10. Ah examination of that instruction shoivs that it is an approved instruction of this court, and has been followed in substance since the case of Tucker v. Territory, 17 Okla. 56, 87 Pac. 307, was decided by this court.

There are other errors assigned by the defendant and urged as grounds for reversal of this case. A careful study of the record shows they are Avithout merit, and that it is not necessary to discuss them in detail. Considering the instructions of the court in their entirety, the court correctly stated to the jury the law applicable to the facts in the case. When the record is studied, the explanation .made by.the defendant Avhen the car was found in his possession clearly shows he is not stating the facts.. It is the same old story, the defendant claims he purchased the car from a man by the name of Wilder, but he does not know' Avhere Wilder lives. He claims Wilder stated he lived at a certain number on Annabaxter street, in the city of Joplin, Mó'. The testimony shows that Annabaxter street'does not have the number given by the defendant. The number of the motor of the car had been changed, and every fact and circumstance tends to show the guilt of the defendant.

Under the testimony in this case, the jurors under their oath could not have done other than find the defendant guilty. There are no errors in the record that justify this court in reversing this case.

The judgment is affirmed.

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


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    JOHN BYNUM v. STATE.
    No. A-8704.
    June 22, 1934.
    (33 Pac. [2d] 1118.)
    Raymond Barry, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (J. H. Lawson, of counsel), for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Harmon county of the unlawful possession of a still, and his punishment fixed by the jury at a fine of $50 and imprisonment in the county jail for a period of 30 days.

It is first contended the trial court erred in overruling defendant’s motion to suppress the evidence.

Defendant filed a timely motion to suppress the evidence and submitted the affidavit for search warrant and the warrant with the return thereon to the trial court, at which time the motion to suppress was denied.

An examination of the affidavit discloses that it alleges facts sufficient to authorize the issuance of the search warrant and that the search warrant was in proper form and duly served as required by law. Under the following authorities the evidence obtained by the search warrant was properly admitted: Baker v. State, 28 Okla. Cr. 408, 231 Pac. 320; Reutlinger v. State, 29 Okla. Cr. 290, 234 Pac. 224; Ray v. State, 43 Okla. Cr. 1, 276 Pac. 785; McNew v. State, 44 Okla. Cr. 129, 279 Pac. 978.

Other errors are complained of, but they are not of sufficient importance to require a separate discussion.

The cause is therefore affirmed.

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


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    JOHN DICKSON v. STATE.
    No. A-8706.
    June 28, 1934. .
    (34 Pac. [2d] 607.)
    Finney & Cook and C. D. Wilkinson, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of McCurtain county of larceny of an automobile, and sentenced to serve a term of 15 years in the state penitentiary. The principal contention made is that under the record the punishment assessed is excessive and that justice requires a modification.

We are convinced that under the testimony the conviction should be sustained. The judgment is therefore modified by a reduction of sentence from 15 years in the penitentiary to 5 years, and, as modified, the case is affirmed.