author: PER CURIAM.

text:
    Ex parte SAMUEL HARBOR THOMPSON.
    No. A-9467.
    March 17, 1938.
    (77 P. 2d 757.)
    Mathers & Mathers, of Oklahoma City, for petitioner.

      Mac Q. Williamson, Atty. Gen., and R. E. Shelton, Co. Atty., for respondent.
   PER CURIAM.

This is an original petition in habeas corpus, in which the petitioner, Samuel Harbor Thompson, alleges that he is unlawfully restrained of his liberty by Stanley Rogers, sheriff of Oklahoma county, Okla. The petitioner further alleges that he is restrained without authority of law. An alternative writ was issued, returnable March 17,1938, at 10 o’clock a. m. at the Criminal Court of Appeals’ courtroom, in the Capitol Building, Oklahoma City, Okla.

A response , was filed admitting the petitioner was in custody at the time the petition was filed, alleging he had been legally tried in the district court of Grady county, Okla., and sentenced to imprisonment in the state penitentiary at McAlester, Okla., for a period of three years; that the sentence was imposed upon the defendant on January 7, 1930; that a commitment was issued to the sheriff of Grady county, Okla., and before the sheriff had transmitted the prisoner to the pentitentiary at McAlester, and between the 1st and 8th day of February, 1930, petitioner escaped from the county jail of Grady county, Okla., and he is now in custody under the original conviction and sentence to be transmitted to the penitentiary at McAlester, Okla., to serve the term of his sentence.

Testimony was taken, and after reading the petition and response, and hearing the testimony and argument of counsel for petitioner and respondent, and considering the facts, the court is of the opinion that the petitioner is not entitled to the relief prayed, for. The rule to show cause is therefore discharged and the writ denied, and petitioner remanded to the sheriff of Oklahoma county, Okla.


source: Caselaw Access Project

author: DAVENPORT, P. J.

license: Public Domain

text:
    BENNETT BOWDRY v. STATE.
    No. A-9359.
    March 18, 1938.
    (77 P. 2d 753.)
    John Howard Payne, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, referred to in this opinion as the defendant, was by information charged with having possession of intoxicating liquor with the unlawful intent to barter, sell, give away, and otherwise furnish said liquor to other parties.

The defendant waived a jury and was tried by the court, found guilty, and sentenced to be confined in the county jail for 30 days and to pay a fine of $200 and costs. The record was properly preserved and the defendant appealed from the verdict of the trial court to this court.

Before the case was called for trial, the defendant filed a motion to suppress the evidence and exclude the testimony of the state, for the reason, “(1) that all the evidence upon which said information was based was illegally obtained by unlawful search of the automobile of this defendant by the officer, or the officers, without being authorized to make said search by any search warrant, as required by law; (2) the defendant also moves the court to make order excluding the articles and things seized as evidence, and to exclude the evidence and testimony of the person, or persons and the officer, or officers who made the seizure in all matters relating to such seizure, on the ground that said seizure was made by force and without law.”

The motion was on the 2d day of March, 1937, heard by the court, the defendant testifying that he lived at 1105 N. E. 15th street, Oklahoma City, Okla.; then on the 11th day of November, 1936, he was about 10 miles this side of Blanchard, in Grady county, Okla.

“A highway patrolman drove up behind me and blew his siren and I drove over to the side of the road and stopped; he asked me if my name was Martin, and I told him it was Bowdry; he took the license number on the car and said it was a whisky car; he said I was under arrest and searched the car; he did not have a search warrant, said he did not have one, I was under arrest. There was no other officer with him; at the filling station we were advised we were in Grady county, and he called the sheriff and waited about an hour; Mr. Bond and another man (indicating) came out and I came into Chickasha in their car.”

On cross-examination defendant stated:

“I was never drunk in my life; I had taken a drink, probably as much as two ounces; I did not do any reckless driving before the officer arrested me. I usually drive 45 or 50 miles an hour and that was the rate I was driving when he stopped me. There was a woman in the car with me, I had picked her up, she was going to Oklahoma City; I did not know her name; just before the officer stopped me I did not take a drink nor did I make an unnecessary swerve in the road.” The officer found whisky in the car.

The state called J. W. Wheeler, patrolman of the State Highway Department, who stated he arrested Bowdry; he had been helping a woman fix a flat:

“We put the tire in the car and went to the filling station to have it fixed; about a quarter of a mile south of the filling station defendant made a drive across the highway, he was traveling north and went plumb across the highway; I stopped him just the other side of the filling station for what I called reckless driving; he was drinking some, I don’t know that he was drunk; he offered me a drink of whisky. I put him under arrest before I searched the car; yes sir, for reckless driving; I also arrested him for being a drunk driver. I told him he was under arrest; he asked me if I had a search warrant and I told him he was under arrest; I could not see the liquor before I searched the car; the reckless driving was committed in my presence.”

On cross-examination witness stated he lived at Norman and was an employee of the state highway commission as a highway patrolman:

“I arrested the defendant about 5:30 the evening of November 11,1936; he was driving in front of me and drove clear across the highway but did not get off the pavement and then came back to his own side; there was no other car or truck close to us; I smelled whisky on his breath. He is being tried for illegal possession of liquor and not for reckless driving; he did not try to speed away; he could have stopped sooner; I asked him his name and later asked him if it was Martin, he told me it was Bowdry; he told me himself he had whisky; he asked me if I had a search warrant and I told him I did not have one; I told him he was under arrest. I afterward called Sheriff Bond, of Chickasha, and he and Mr. Sweeney came out to the filling station.”

The motion to suppress the evidence was by the court overruled, and the defendant was given an exception. Both parties waived a jury and tried the case to the court.

J. W. Wheeler in the trial of the case testified in substance the same as his testimony on the motion to suppress. The defendant asked him if he had a search warrant and “I told him I did not need any; I asked him what he had in the car and he said I could look in there and see. I searched his car and found whisky in it. The woman with him stayed around there a few minutes; I talked to her in the presence of the defendant; she said the defendant picked her up the other side of Chiekasha, and said he offered her a drink; after I searched the car I called Sheriff Bond, at Chiekasha.”

The defendant asked the court to exclude all the testimony of this witness Wheeler because the testimony is entirely based upon an illegal search and seizure because it was secured without a search warrant and is therefore illegal and void, which motion was overruled, and the defendant excepted.

Sheriff Bond, of Chiekasha, stated that the witness Wheeler turned the defendant over to him and he brought him into Chiekasha. The defendant objected to the sheriff testifying as to what was turned over to him for the reason that it was an illegal search and seizure and void, and not admissible as testimony in this case, or considered, which was overruled and defendant excepted.

Sheriff stated he found liquor in the car but did not examine it or count it, he put the defendant in jail and took the liquor to the sheriff’s office and stored it there.

“I could detect the odor of liquor on his breath; in my judgment he was under the influence of intoxicating liquor; the sheriff turned over to me a pint bottle, if I remember right, maybe a little more than one-fourth of the contents, one-third or one-fourth.”

At the conclusion of the sheriff’s testimony the defendant interposed the same motion to strike the sheriff’s testimony as he did to strike the testimony of the witness Wheeler, which motion was overruled and the defendant saved an exception.

Claude Sweeney testified he was a United States Deputy in the Eastern District of Oklahoma: “I went with Sheriff Bond to bring the defendant Bennett Bowdry; I saw some whisky in the car.” This statement was objected to by the defendant on the same grounds as he objected to the testimony of the witnesses Wheeler and Bond. The woman said the defendant tried to get her to drink with him, he had picked her up on the road; they were all standing around the car, about four or five feet away; “I could smell whisky on his breath. I drove defendant’s car into Chickasha and the sheriff took the defendant into Chickasha in his car.”

At the close of the state’s evidence the defendant demurred to the same for the reason that the witness secured the same by an illegal search and seizure, which motion was overruled and exceptions saved. The defendant did not offer any testimony.

Several errors have been assigned by the defendant as grounds for reversal of his case, but in his brief he discusses only two:

“1. Said court erred in overruling plaintiff in error’s motion to suppress the evidence and exclude the testimony, etc.
“2. Said court erred in overruling defendant in error’s motion for a new trial.”

The defendant at length discusses these assignments. No brief has been filed in behalf of the state, nor is there any reason given why the brief has not been filed.

The only question for this court to decide is the question, Is the method used by the highway patrolman to search the car of the defendant, and in stopping the defendant on the public highway when he was driving along the highway lawful? Great stress is placed by the state witness Wheeler on the fact that defendant had a woman in the car with him. It is true there is no testimony introduced by the defendant as to whether the woman he had in the car had asked him to fix a flat for her or not, but the highway patrolman, Wheeler, had a woman in the car with him and was driving her somewhere to fix a flat for her or to have the flat fixed. The record does not disclose why there should be any jealousy between the defendant in this case and the witness Wheeler as each of them had their woman, and there is no testimony that defendant tried to interfere with the woman the patrolman had with him in his car. The testimony shows the patrolman rushed up in all pomp and splendor and blew his siren and stopped the defendant on the highway where he finally put the defendant under arrest and the woman stayed around for a short while and left, yet the testimony of the state officers show that from the time Wheeler phoned the sheriff at Chickasha, it was an hour or more before they came out there. The patrolman was standing close enough to hear the woman say the defendant offered her a drink; they were only four or five feet away from the car at the time the woman made the statement. Witness Wheeler claims her statement was made in the presence of the defendant.

Any statement made by the woman who was in the car with the defendant after the patrolman Wheeler had stopped the defendant and began a search is immaterial to the question involved in this case.

This court has repeatedly held that where the offense is not a felony, the officer cannot arrest without a warrant unless the offense was committed or attempted in his presence, and that where the officer does not know of the act constituting the offense, it is not committed in his presence. Leary v. State, 61 Okla. Cr. 298, 67 P. 2d 972, and authorities therein cited.

Patrolman Wheeler admits he did not have a warrant to search the car of the defendant or to arrest the defendant. The only testimony that he gives to justify his act in stopping the defendant on the highway is that he arrested him for reckless. driving, but his own testimony clearly contradicts that fact, as he admits the defendant was not driving at a rapid rate of speed at the time he stopped him; in other words, the defendant was driving slow enough so that the prosecuting witness had no trouble in catching up with him and stopping him. The witness tries to sustain his position by stating he was following the defendant when he drove his car to the left side of the pavement, but did not go off the slab, and then went back to the right side; at that time the witness admits there were no cars near the defendant meeting him or following him; that statement of the patrolman is not sufficient to sustain his arrest of the defendant for reckless driving, for the reason that if it be admitted, which it is not, that the defendant did drive over to the left-hand side of the slab and back to his side, would not constitute reckless driving within the meaning of the law.

Section 2780, Okla. Stat. 1931, 22 Okla. St. Ann. § 196, is as follows:

“A peace officer may, without a warrant, arrest a person:
“1. For a public offense, committed or attempted in his presence.
“2. When the person arrested has committed a felony, although not in his presence.
“3. When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.
“A. On a charge, made upon reasonable cause, of the commission of a felony by the party arrested.”

There is no contention by the witness Wheeler, who was a highway patrolman, that he could see the defendant had whisky in his car at the time he stopped him upon the public highway without a warrant for his arrest or to search his car. The patrolman’s effort to justify his unlawful act that the defendant was driving recklessly or intoxicated is not sustained by his own testimony, but there is no contention that the defendant was intoxicated or drunk at the time he stopped him. An officer seeking the enforcement of one law should not violate another in order to accomplish his purpose. Such conduct brings the administration of justice into disrepute and shows a subversion of peace and good order. When the officer stopped the defendant on the highway and searched his car, he did so without any legal authority and the search and seizure was an unlawful violation of the defendant’s rights as guaranteed him by the laws and the Constitution of the state of Oklahoma, art. 2, § 30.

Where an officer does not know of the act constituting the offense, it is not committed in his presence. The defendant may be guilty, but he is entitled to a fair and impartial trial and to have all incompetent testimony excluded.

There is no competent or legal evidence in the record to support the conviction. The evidence offered by the state was secured by an unlawful search and seizure. The motion of the defendant to suppress the evidence should have been sustained and the case dismissed on the ground that there was no competent evidence to sustain a conviction. Tucker v. State, 62 Okla. Cr. 406, 71 P. 2d 1092; Leary v. State, 61 Okla. Cr. 298, 67 P. 2d 972.

The judgment of the trial court is reversed and the case remanded with directions to discharge the defendant.

DOYLE and BAREFOOT, JJ., concur.


author: BAREFOOT, J.

text:
    W. M. WILLIAMSON v. STATE.
    No. A-9334.
    March 25, 1938.
    (77 P. 2d 1193.)
    W. E. Rice, of Ponca City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and O. B. Martin, Co. Atty., of Newkirk, for the State.
   BAREFOOT, J.

An information was filed in Kay county charging defendant with the crime of murder. He was tried and convicted of manslaughter in the first degree, and was sentenced to serve 21 years in the penitentiary. From this judgment and sentence he has appealed.

Defendant, in his brief, relies upon two assignments of error:

“First: That the constitutional guaranty and right of the defendant that ‘No person shall be compelled to give evidence which will tend to incriminate him * *’ was violated, and
“Second: That thereby the defendant did not have a fair trial and has been denied substantial justice.”

Both of these propositions may be considered together. The record in this case reveals that one Thad Tucker ran a barbecue stand in Ponca City, and that Amos Keath was working for him; that Nathaniel Kelley was running a beer garden in the same city, which was known as “Dixie Hill,” and where various gambling games were being carried on; that defendant, W. M. Williamson, was working for Nathaniel Kelley at his place of business; that in the early morning hours of September 17, 1936, Thad Tucker left his place of business in company with Amos Keath and Gerald Wood, going to the place known as “Dixie Hill,” where defendant was working. Several of the parties played at various gambling games, and finally a poker game was started in an adjoining room. Nathaniel Kelley, Amos Keath, Gerald Wood, and the defendant were in this game. All of the parties were negroes, with the exception of Gerald Wood, who was dealing the cards. In dealing one of the hands all of the parties had laid down their hands except Nathaniel Kelley and Amos Keath, when a dispute arose with reference to permitting the cards to be cut; Nathaniel Kelley stating that the cards had been crimped by Gerald Wood the dealer, and demanding that they be cut, and Amos Keath contended that they should not be. This dispute grew to such an extent that it broke up the game. It seems that Keath took the money that was on the table and Nathaniel Kelley left the place and went to his home and secured a pistol for the purpose of returning and demanding of Amos Keath that he give him his money back. While this argument was going on, the defendant left the room where the card game was being conducted, and went behind the bar in the adjoining room, and started to take a pistol from a drawer. He was asked by Thad Tucker, “Let’s not start anything,” but a little later placed the pistol in his pocket, and went to the front door of the building as he says for the purpose of going across the street to phone for the officers. Just prior to this Nathaniel Kelley had returned with his gun and met Amos Keath in the street and said to him, “I want my money back that I bet on the game that he had his gun in his hand at the time. Amos Keath replied, “Well here is the money,” and held it out in his hand, and as Kelley reached for it Keath grabbed his gun and in the scuffle that ensued Keath threw Kelley down, and as he did so the gun fired into the ground. Keath secured possession of Kelley’s gun. The defendant testified that he heard the report of the gun and stepped to the front porch, and started to step off of the porch, and that the first thing that he noticed, Keath was standing in the street facing him, and said to the defendant, “Put down that gun,” and defendant said, “Put down your gun,” and immediately the shooting started. The evidence does not disclose which of the parties shot first. The defendant himself testified he did not know who fired the first shot. Defendant shot five times, and Keath emptied his pistol. He ran about a block, where he fell and, as the result of the shot fired by defendant, died. The evidence showed that the shot which killed deceased entered the back and lodged near the heart. The defendant returned to the beer joint, reloaded his gun, and came back to the front porch. The defendant was immediately arrested and placed in the city jail. He was held in custody until a coroner’s inquest was held on the afternoon of the same day by the county attorney of Kay county. An attorney appeared at the city jail and asked permission to interview the defendant, which was denied by the chief of police on instructions of the assistant county attorney. It was stated at the trial by the county attorney that the attorney who appeared at the jail did not represent defendant, but told him that he was only interested in Nathaniel Kelley, whom it seems had also been arrested and was being held in jail. At the coroner’s inquest defendant was placed upon the witness stand and testified, and his evidence was taken down in shorthand and transcribed. The county attorney stated that he informed the attorney that the coroner’s inquest was going to be held, and that he told him he was only interested in Nathaniel Kelley. At the coroner’s inquest the defendant was not informed of his constitutional rights with reference to giving his testimony, but made no objection to testifying. It might here be said that the testimony given by defendant at the coroner’s inquest and that given by him at the trial of the case was substantially the same. The court, in the absence of the jury, heard statements of attorneys and refused to permit the evidence offered at the coroner’s inquest to be admitted by the state, stating in his opinion it was an involuntary statement of defendant. When defendant was placed on the witness stand, the court permitted the county attorney to cross-examine defendant with reference to the statements made at the coroner’s inquest, and to introduce as a part of his cross-examination of defendant certain questions and answers asked defendant at the coroner’s inquest. The permitting of the introduction of this evidence on cross-examination of defendant is the principal error relied upon by defendant for a reversal of this case. In support of this contention he cites the following cases: Harrold v. Oklahoma, 8 Cir., 169 F. 47, 17 Ann. Cas. 868, reversing the same case reported in 18 Okla. 395, 89 P. 202, 10 L.R.A., N.S., 604, 11 Ann. Cas. 818; Scribner v. State, 9 Okla. Cr. 465, 132 P. 933, Ann. Cas. 1915B, 381; Faucett v. State, 10 Okla. Cr. 111, 134 P. 839, L.R.A. 1918A, 372; Pryor v. State, 34 Okla. Cr. 131, 245 P. 669; Skeen v. State, 61 Okla. Cr. 188, 66 P. 2d 1106, 1112.

At the trial of the case at bar, the county attorney produced the decision of the territorial court in the Harrold Case, but it was not known that this case had been reversed by the Circuit Court of Appeals at that time. While this court is not bound by the decisions of the federal courts, our respect for the ability and the soundness of the decisions of those courts would cause us to give great weight to the law as announced by them. We have carefully read and reread the opinion of Judge Burford of the territorial Supreme Court, and the opinion of Judge Sanborn of the Circuit Court. We think that a clear distinction is to be drawn between the facts in that case and the facts in the instant case. In the Harrold Case, the cross-examination of the witness was permitted with reference to certain alleged “confessions” made by the defendant, which were procured by a promise of prosecuting officers that certain leniency would be granted the defendant and certain cases against him dismissed if he would sign a confession. It was held that by reason of these circumstances this was an “involuntary” statement. The same was true in the Faucett Case. In the case at bar, defendant was called as a witness and testified voluntarily, notwithstanding the statement of the trial court that in his opinion it was an involuntary statement. Under the authorities it was a voluntary statement. Snyder v. State, 59 Ind. 105; Davidson v. State, 135 Ind. 254, 34 N.E. 972; Clough v. State, 7 Neb. 320; Green v. State, 124 Ga. 343, 52 S.E. 431; People v. Mollineux, 168 N.Y. 264, 61 N.E. 286, 62 L.R.A. 193; State v. Gilman, 51 Me. 206. Involuntary statements are ones that are extracted by any threats of violence, or obtained by direct or implied promises, or by the exertion of improper influence. There is nothing in the record in this case to show that any inducement of any kind was offered defendant. He made no objection to the giving of his testimony. It was not against his interest, but was practically the same as offered by himself at the time of the trial. Under the evidence of the defendant himself, the jury would have been warranted in finding him guilty. His evidence clearly showed a case of mutual combat. There was no question of involuntary confession in this case. The law presumes that a party who is called upon to testify as a mere witness knows his rights. He may decline to testify to anything that may tend to incriminate him. This the defendant could have done had he chosen to claim his privilege. Having failed to do so, he cannot now complain.

There was a time when a defendant was not permitted to testify in his own behalf, and because of the denial of this right the courts in the early days rightfully established the rule that a confession made by a person could not be used against him if the same was secured by fear, under duress, or through promises of leniency or immunity. The admission, in order to be introduced, should have been made voluntarily. The reason for the rule was based upon the fact that defendant, not being permitted to testify in his own behalf, was therefore not permitted to deny or explain the statements that were attributed to him. Now the defendant is permitted to testify the same as other witnesses if he desires to do so. The reason for the former rule no longer exists. There is no sound reason why a defendant who voluntarily becomes a witness in his own behalf should not be subjected to the same rule applied to other witnesses with reference to cross-examination. He should weigh the consequences and determine the result before he goes upon the witness stand. If he is unable to withstand the cross-examination by reason of statements he has made, or evidence he has given at a former hearing, it is his privilege to not present himself as a witness and be subjected to cross-examination. It therefore follows that the constitutional rights of the defendant have not been violated while on cross-examination, to interrogate him with reference to statements or evidence which he has given, where such statements or evidence tends to impeach or discredit him.

As before stated, the statement made by the defendant at the coroner’s inquest was practically the same statement made at the trial of the case. Many of the questions had reference to the conduct of defendant when he left the poker game and procured the pistol. Other questions were with reference to when he pulled his gun from his pocket after going on to the porch. His statements at the inquest and on the trial were about the same. Very little material difference. The cross-examination with reference to the time of the actual shooting was as follows:

“Q. Let me ask you this question, Willie; did you see Amos Keath and Kelley having their scuffle out there? A. No, sir. Q. I will ask you if you were asked this question at the coroner’s inquest: ‘Did you see Amos and Kelley have their tussle over a gun?’ And you answered: ‘Yes.’ A. No, sir. Q. You were not asked that question and didn’t make that answer? A. No, sir. Q. I will ask you if you were asked this question: ‘You heard a shot?’ And you answered, ‘Yes, I looked around and he said, put your gun down, and I said, put yours down.’ A. Yes, I heard a shot when I was going off of the porch and had a hold of that post on the side of the porch, and stepped down, I heard a shot and I looked around and saw somebody running and I just looked on around to see who it was shot, and I saw Keath had his gun on me, and I pulled my gun out of my pocket, and he said, ‘Put your gun down,’ and I said, ‘Put yours down.’ Q. I asked you if you were asked this question? ‘You heard a shot?’ And you answered, ‘Yes, I looked around and he said put your gun down, and I said, put yours down.’ A. Yes. Q. You gave that answer? A. Yes.”

While there is a clear distinction to be drawn from the facts in the Harrold Case and the case at bar, if we were adopting a rule to be adhered to by this court, we think the rule as announced by Judge Burford of the territorial Supreme Court is supported by the authorities and the better reason. An examination of the authorities cited, and especially the decisions of the Supreme Court of the United States, are in harmony with the rule that, when a defendant takes the witness stand in his own behalf, he waives his constitutional privilege of silence, and that the prosecution has the right to cross-examine him upon his evidence in chief the same as any ordinary witness, and to the same extent. Sawyer v. United States, 202 U. S. 150, 26 S. Ct. 575, 50 L. Ed. 972, 6 Ann. Cas. 269; Fitzpatrick v. United States, 178 U. S. 304, 20 S. Ct. 944, 44 L. Ed. 1078; Asher v. Territory, 7 Okla. 188, 54 P. 445; Hyde v. Territory, 8 Okla. 69, 56 P. 851. While there is a conflict of opinion, the American courts generally hold to the rule that this cross-examination should be confined to the matters connected with and relating to the subjects about which the witness has been examined in chief. Yet the rule has been liberally construed so as to allow facts to be inquired into which are reasonably connected with or will tend to affect the testimony in chief, or which will tend to affect the character or credit of the witness. Rea v. Missouri, 17 Wall. 532, 21 L. Ed. 707. The other cases cited, when carefully read, do not sustain the contention of the defendant, but rather support the rule as announced herein. The Skeen Case, which is also cited by the state, passes upon the identical question here involved. In that case a coroner’s inquest was held, and defendant, before any complaint had been filed against him, testified, as did the defendant in this case. When he testified at the trial, the state, on cross-examination, was permitted to contradict his testimony by evidence given by him at the coroner’s inquest. This was held permissible; the court holding:

“We have carefully examined the authorities cited by defendant upon the proposition that the court erred in admitting incompetent testimony by permitting the state to offer the coroner and certain persons who were on the coroner’s jury, and allowing them to testify in rebuttal to testimony given by the defendant. While the verdict of the coroner’s jury might not have been admissible, as shown by the authorities cited, New York Life Insurance Company v. Gibbs, 176 Okla. 535, 56 P. 2d 1179; Spiegel’s House Furnishing Co. v. Industrial Commission, 288 Ill. 422, 123 N.E. 606, 6 A.L.R. 540, we think, however, that these cases do not cover the point involved in this case. The evidence here was offered in rebuttal of that given by the testimony of the defendant, and the authorities hold that evidence thus given in rebuttal is clearly admissible. See 28 Ruling Case Law, 640; Pollard v. State, 201 Ind. 180, 166 N.E. 654, 84 A.L.R. 779; Hollywood v. State, 19 Wyo. 493, 120 P. 471, 122 P. 588, Ann. Cas. 1913E, 218; People v. Devine, 44 Cal. 452; People v. Smith, 134 Cal. 453, 66 P. 669.
“The courts are not in harmony as to whether this evidence is admissible when offered by the state as a part of its evidence in chief, but as rebuttal testimony we think under the law the evidence was properly admitted.”

We have carefully read the decisions above quoted and find that the rule there announced is in harmony with the rule announced by practically all of the courts. An elaborate note discussing this identical question and citing cases from many states is found in 70 L.R.A. 33. A careful reading of those cases reveals that as stated in the Skeen Case there is some conflict of authority as to the admissibility of evidence taken at a coroner’s inquest as a part of the state’s evidence in chief, but at page 43 of the note it will be noted that the decisions are practically unanimous that for the purpose of impeachment or rebuttal the evidence is admissible. Jones v. State, 120 Ala. 303, 25 So. 204; Woods v. State, 63 Ind. 353; State v. Van Tassel, 103 Ia. 6, 72 N.W. 497; Steele v. State, 76 Miss. 387, 24 So. 910; State v. Punshon, 133 Mo. 44, 34 S.W. 25; Rounds v. State, 57 Wis. 45, 14 N.W. 865; People v. Hong Ah Duck, 61 Cal. 387; Tuttle v. People, 33 Colo. 243, 79 P. 1035, 70 L.R.A. 33, 3 Ann. Cas. 513; Garrett v. St. Louis Transit Co., 219 Mo. 65, 118 S.W. 68, 16 Ann. Cas. 688.

Defendant in his brief insists that no coroner’s inquest should have been held in this case; that, by reason of Okla. Stats. 1931, § 4179, Okla. St. Ann. tit. 19, § 466, p. 193, an inquest should not be held unless the cause of the death is unknown, and cites the case of Faucett v. State, 10 Okla. Cr. 111, 134 P. 839, L.R.A. 1918A, 372, as upholding this contention; that in the instant case the cause of the death of Amos Keath was known, and the purpose of the county attorney in holding the inquest was for the purpose of securing the testimony of the defendant. If this be true, we desire to express our disapproval of this practice. The statute provides that an inquest shall not be held “unless the cause of the death is unknown,” and the statute should be obeyed. The record does not reveal why the coroner’s inquest was held in this case. It seems to us that a preliminary examination should have been held and the county attorney could have there secured the information necessary for the purpose of filing a proper information. At this preliminary examination defendant could have, if he desired, had counsel to have advised him as to his constitutional rights. However, from a consideration of all the facts in this case, we do not believe the fact that a coroner’s inquest was held when it should not have been would justify a reversal of this case. This defendant seemed to have adopted the theory that by reason of his employment by Nathaniel Kelley it became his bounden duty to enter into any difficulty which Kelley might have. The dispute between Kelley and Keath was no part of his, yet he armed himself and at the very first opportunity entered the difficulty demanding of Keath that he “put down his gun,” and when he refused to do so fired immediately. The deceased was shot in the back and the bullet lodged near the heart. He seemed to have adopted the principle if there is going to be a fight I have just got to get into it. Human life cannot be sacrificed in this way. A good and lawful jury of his home county has said he must pay the penalty. The instructions of the jury have been examined, and they covered the law of the case in an able manner fully protecting the rights of the defendant. There were no exceptions to the instructions of the court.

No error has been committed which would justify us in interfering with this verdict, and the judgment of the district court of Kay county is therefore affirmed.

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


author: DOYLE, J.

text:
    TED GERNER v. STATE.
    No. A-9211.
    March 25, 1938.
    (77 P. 2d 1190.)
    For former opinion, see 62 Okla. 206, 70 P. 2d 1112.
    Norman H. Wright and George Miller, both of Oklahoma City, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case filed in the district court of Muskogee county, January 3, 1936, in substance charged that Ted Gerner in said county on or about the 30th day of March, 1935, did feloniously take, steal, and carry away without the knowledge or consent of the owner, Glynn Campbell, one 1934 Model Chevrolet coach, of the value of $400. Upon arraignment the defendant entered a plea of not guilty.

The record shows that when the case was called for trial, April 7, 1936, the defendant waived his right to a jury trial and it was agreed by and between the parties to try the case to the court. That on April 8th, the defendant filed a motion for ne-vy trial on the ground of “error of the court in overruling the defendant’s demurrer to the evidence of the state, and that the verdict is contrary to law and the evidence.” On April 17th, a motion for new trial was heard and overruled. Thereupon the court rendered judgment and sentenced the defendant, Ted Gerner, to serve a term¡ of five years in the state penitentiary at McAlester, and to pay the costs.

From this judgment the defendant appealed, but no brief was filed nor appearance made in this court, and the case was submitted on the record. The judgment was affirmed. Gerner v. State, 62 Okla. Cr. 206, 70 P. 2d 1112. Motion for rehearing was duly filed in this court, and after the hearing a rehearing was granted. Various errors are assigned and argued.

An examination of the record discloses that no objection was made to any ruling of the trial court in the admission or exclusion of testimony. The rule is well settled that only those questions can be considered on appeal, unless jurisdictional, which were raised in the trial court on exceptions taken, and unless incorporated in the motion for a new trial, will not be considered on appeal. Dew v. State, 11 Okla. Cr. 581, 149 P. 917.

Upon the record before us the only question presented is the sufficiency of the evidence to support the conviction.

The testimony shows that Glynn Campbell, living in Muskogee, on March 30,1935, owned a 1934 Model Chevrolet coach; he parked it on Okmulgee street, Muskogee, in front of the Plaza- Hotel and went into Nick’s Cafe; it was raining and he remained in the cafe about an hour; when he came back, his car was gone. He immediately notified the police. The car was found in Oklahoma City in possession of the police department. Mr. Campbell identified the car by various special marks. He also had the title to the car. When the car was taken from him it had a 1934 license place tag; when he found it in Oklahoma City it had a 1935 license on it. The carburetor had been changed and that the serial number, motor number, and license number were all completely changed. He testified he did not know of his own knowledge who stole the car.

Fred Walker testified that he had known the defendant for four or five years; that the defendant was a garage mechanic; that about August 6, 1935, witness was arrested and taken to the Oklahoma City police station, where he made a written statement; that about three weeks before said time the defendant asked him to take the Chevrolet Six and drive it until the man who owned it called for it, and the defendant drove the Chevrolet out to his place and delivered it to him; that he kept it for two weeks, then the defendant called on him and told him to leave it in the parkway of the Brown Hotel, 1414 North Broadway, Oklahoma City; that he complied with said request and left the car in the rear of said hotel; that while he had the car a man, whom he later learned was Bill Wakefield, came for the car, but he did not let him have it; that the defendant did not tell him he owned the car, but merely told him he could use it until the man called for it.

J. W. Wakefield testified he had lived in Oklahoma City for 28 years; he identified a statement he made at the police station on April 5, 1935, at that time he was living at the Brown Hotel, 1414 North Broadway; that the defendant is an automobile mechanic and they worked in the same garage 321 West Reno; that one night shortly after dark, in the early part of July, 1935, the defendant came to the Brown Hotel and asked him to take a ride; that he thought he was alone, but when they got out to the old Buick car, a man in the driver’s seat was introduced to him as Charley, whom he later identified as Frank Mabry; that they drove to Fifth and Stiles streets, and stopped behind a black 1935 Chevrolet coach, and the defendant asked him to favor him by driving it to the Brown Hotel and parking it in the rear and keep the same for him until he called for it; that he did as requested and parked the said car back of the Brown Hotel; that the defendant called him later that night and said he would see him the following day; that some time after the defendant told him to sell the car.

He further testified that he and the defendant rented a garage at 3712 North Western avenue, May 28, 1935; that the defendant loaned him $15 to pay the first month’s rent, and also loaned him the tools; that they both worked there, each collecting for his own work; that he did not know that any of the numbers had been changed on said ,ear until informed by the officers.

James R. Sullivan testified he was special agent of the Automobile Protection Bureau, and made some investigation of the theft of Glynn Campbell’s automobile. Was present April 4, 1935, when the officers took charge of the car, located in a parking yard in the rear of the Broadway Central Hotel. They took it to the Grand Avenue Garage and held it for the police department; that he inspected the motor number and the secret motor number and found that they had been changed, and fictitious numbers placed over the original numbers, and also the transmission number, and the car did not bear the serial plate, and the rear axle number of the car had been changed. Thereafter Mr. Campbell came to Oklahoma City and identified this car as the car that was stolen from him.

T. R. Husted testified that he was a lieutenant in the police officers in Oklahoma City, and he arrested the defendant on a charge of larceny of a 1935 black Chevrolet coach that was stolen at Guthrie, and for a car that was stolen from Chickasha, and for the Campbell car in question; that he knew of Frank Mabry; that he is now dead; that he did not know whether or not the defendant had been tried in the Guthrie and Grady county cases.

At the close of the evidence for the state a demurrer was interposed on the ground that the evidence was insufficient to warrant a conviction. After hearing the argument of counsel, the court overruled the demurrer.

The defendant, as a witness in his own behalf, testified that he came to Oklahoma City in May, 1930; that he met Bill Wakefield two or three months after he arrived here; that he worked as a mechanic for the Blue Bird Cab Company until May 1933, when the cab company went out of business. Thereafter he operated a business of his own in the same building, 321 West Reno. He denied stealing the automobile in question and denied knowing or having anything to do with Frank Mabry, deceased, at the time of the trial. He admitted that he was arrested and taken to Guthrie, but was released without any charges being filed against him. He admitted that he was arrested and taken to Chick-asha and held there two days under investigation, but was released without charges being filed against him. He further testified that Bill Wakefield had a car, that he did not know whether it was the same one or not, and asked him if he could sell it for him, and a few days later he asked Fred Walker if he would be interested in a good automobile. Walker said, “Yes,” bring it over; that he delivered the car to Walker; that a couple weeks later Wakefield asked him if Walker was going to buy this car, if he was not he wanted it back. That he talked to Walker about it and Walker said he didn’t think he wanted to trade. Later Wakefield asked him to have the car brought back to the hotel; that he himself told Mr. Walker to take it back to the Brown Hotel and leave it there; that he did not know that it was a stolen car; that he did not examine it to see if the numbers were changed. With reference to the garage at 3712 North Western, he testified that he merely loaned Wakefield the money to pay one month’s rent and let him use his tools; that he left and went to Illinois, returning about the latter part of June; that the only work he did at the Wakefield garage was on his own car; that in March, 1935, a service truck of the O. G. & E. ran into him, for which settlement was made with him.

It was stipulated and agreed that Dr. J. B. Binkley, of Oklahoma City, if present, would testify that he was treating the defendant for an injury to his spine on March 30, 1935; that Dr. Phil E. White, of Oklahoma City, would if present testify that he was treating the defendant, Ted Gerner, for an injury to his spine on the 30th day of March, 1935.

That Mr.-Nelson, of Oklahoma, if present, would testify that he was an insurance adjuster, representing the O. G. & E. Company; that in attempting to negotiate a settlement with the defendant for personal injuries sustained by said defendant in an automobile accident, March 19, 1935, he saw and communicated with the defendant almost daily until April 8, 1935.

In rebuttal, T. R. Husted, recalled, testified that with other officers he made a search of the garage at 3712 North Western avenue, operated by the defendant and Bill Wake-field, and found a die for changing motor numbers, a little affair operated on a wheel; had all the numbers “1” up to “0.”

Bill Wakefield, recalled, testified that the defendant was supposed to be buying and selling cars, and had another black Chevrolet coach, that was not the car taken from Glynn Campbell, and the defendant had asked him try to sell that; later Jerry McNeill was arrested for stealing that car.

On cross-examination he stated that in addition to the car the defendant was on trial for, he had two other cars, one taken at Chickasha and one at Guthrie.

It was the theory of the state that the defendant procured the car to be stolen. The defense was innocent possession and an alibi.

In the case of Ex parte King, 42 Okla. Cr. 46, 274 P. 682, this court held:

“Under the provisions of section 20, art. 7, of the State Constitution, a defendant in a felony case may waive the right to have the facts determined by a jury, and they may be submitted to the judge. In such case, the finding of the judge upon the facts shall have the force and effect of a verdict by a jury.”

The rule repeatedly announced by this court is that it has no power to reverse a judgment of conviction, upon the ground that the verdict is not supported by the evidence, unless there is no substantial evidence tending to show guilt of the defendant, or the evidence fails so far to support the verdict that the necessary inference is that the jury must have acted from partiality, passion, or prejudice.

In Shields v. State, 32 Okla. Cr. 344, 240 P. 661, 665, court said:

“The presumption arising from the possession of recently stolen property is one of fact and not of law. It is a circumstance for the jury to consider and weigh along with all the other evidence in the case. If the possession is unexplained, or if it is unsatisfactorily explained, or the explanation, even though plausible, is not believed, the jury will accord it such weight as they deem right and proper. They are the sole judge as to its weight, and when such fact with the other facts and circumstances in evidence, when given due weight, satisfy the jury beyond a reasonable doubt of defendant’s guilt, it is sufficient to sustain the verdict. Slater v. U. S., 1 Okla. Cr. 275, 98 P. 110; Davis v. State, 7 Okla. Cr. 322, 123 P. 560; Gunter v. State, 16 Okla. Cr. 476, 184 P. 797; Cheeves v. State, 18 Okla. Cr. 480, 196 P. 726; [Spann v. State, 19 Okla. Cr. 9, 197 P. 531]; West v. State, 19 Okla. Cr. 355, 198 P. 99.”

And see Hart v. State, 57 Okla. Cr. 372, 48 P. 2d 337; Jamison v. State, 59 Okla. Cr. 62, 56 P. 2d 905; Drew v. State, 61 Okla. Cr. 48, 65 P. 2d 549; McDonald v. State, 59 Okla. Cr. 318, 58 P. 2d 345; Maples v. State, 59 Okla. Cr. 324, 58 P. 2d 963; Chesser v. State, 63 Okla. Cr. 84, 73 P. 2d 191.

Where the inference of guilt can be reasonably drawn from the evidence, this court will not pass upon the weight of the evidence in order to determine whether the defendant is guilty as charged.

There is competent evidence tending to support every material fact stated in the information, and it was for the trial court to judge the weight of the evidence. We cannot substitute our judgment for that of the trial judge.

It is argued by his counsel that the testimony of the defendant and the testimony in support of the alibi is un-contradicted and unimpeached, and for this reason he assumes that the trial judge should have believed their testimony.

The rule as stated in Cyc. is as follows:

“The jury are not bound to believe testimony because it is uncontradicted and not directly impeached. The jury may consider the inherent improbabilities of the statements of the witness, and they may be of such a character as to justify'them in disregarding his testimony, although uncon-tradicted by direct testimony. He may be contradicted by the fact that he states as completely as by adverse testimony, and there may be so many omissions and improprieties in his evidence as to discredit his whole story.” 12 Cyc. 486.

And see Lacy v. State, 61 Okla. Cr. 421, 68 P. 2d 878; Wainscott v. State, 8 Okla. Cr. 590, 129 P. 655.

It is only where the evidence obviously does not warrant the inference of guilt that this court will interfere.

The judgment of conviction herein is therefore affirmed.

DAVENPORT, P. J., and BAREFOOT, J., concur.