text:
    ELY SARRATT et al. v. STATE.
    No. A-9335.
    March 25, 1938.
    (77 P. 2d 1188.)

      Dale Brown, of Coalgate, for plaintiffs in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiffs in error, the defendants in the trial court, were by information charged with an assault upon one Leonard Williams with a deadly or dangerous weapon, to wit, a knife; were tried jointly, convicted and each sentenced to serve one year and one day in the state penitentiary at McAlester. Motion for new trial was filed, considered, overruled and defendants excepted.

The only question presented by the defendants is the question of the sufficiency of the evidence. The testimony shows the defendants and Leonard Williams and other parties were attending a meeting at Pleasant Hill schoolhouse, in Coal county, Okla., on the night of June 17, 1934; about the time Leonard Williams and other parties came out of the building Ely Sarratt, one of the defendants, called Leonard Williams, and Williams turned and walked over to where Ely was; following a short conversation with reference to what Ely had heard Williams had said about him, Ely Sarratt and Leonard Williams engaged in a fight.

Leonard Williams in his testimony states Ely Sarratt hit him an overhanded lick with a pistol; Ely Sarratt denies that statement and says he did not have a pistol, but states he called Leonard Williams off to one side and that in the conversation he told Williams he heard he had been making some remarks about him, and Williams told Ely Sarratt whoever told him he was making remarks about him was a lying s. o. b. The defendant Ely Sarratt admits he struck Williams with his fist but denies he hit him with a pistol. Williams says he did.

Cecil Williams, a brother of Leonard Williams, testified he was near the door of the schoolhouse when Ely Sar-ratt called Leonard off, and Cecil says Ely struck Leonard Williams with a pistol; that Willie Sarratt ran in and struck Leonard Williams with something, he did not know what it was; he then grabbed Willie Sarratt by the shoulder, and Willie went to cutting on him. Cecil says the difficulty occurred between 20 and 30 feet from the door of the schoolhouse; that Willie Sarratt cut him across the face and on the arm.

Dorothy Ross testified:

“I was outside of the schoolhouse and was facing in a different direction and when I turned around I did not hear what was going on or see any weapon; it was dark and I was not so terribly close to them.”

Wanda Ross stated she heard Ely Sarratt call Leonard Williams off to one side, and saw Ely hit the first lick: “I was not close enough to see what kind of a weapon he used.”

Wesley Williams stated he saw the fight, and saw one of the Sarratt boys hit one of the Williams boys: “I could just kinda see a bulk; after the fight started it was general; I was about 22 feet away.”

Ely Sarratt testifying in his own behalf stated he hit Leonard Williams with his fist.

“My brother Willie Sarratt came up and hit Williams, I did not hear my brother say anything.” Ely denies he had a pistol.

Willie Sarratt testified he used a knife, but claims he did so in self-defense; that he cut both Leonard and Cecil Williams.

Ollie Jones testifying for the defendants contradicted the defendants and other witnesses who testified for the state, and says positively that Ely did not call Leonard Williams from the door.

The testimony of Ely Sarratt admits he called Leonard Williams off to one side and asked him about what he heard he had been saying about him. The foregoing is the substance of the testimony.

The only errors assigned by the defendants are:

“1. Said court erred in admitting evidence on the part of the defendant in error.
“2. Said court erred in refusing to rule out incompetent and legal evidence on the part of the plaintiff in error.
“3. The verdict is not supported by the evidence.”

The case has been briefed by the defendants, Ely Sar-ratt and Willie Sarratt, and by the state. The only question argued briefly by the defendants is that the evidence is insufficient to sustain the conviction. The state in its brief argues that the evidence is sufficient to sustain the conviction. Neither the defendants nor the state cite any authorities in support of their contention. It therefore becomes necessary for the court to carefully read the record to determine the weight of the evidence and the credibility of the witnesses. The testimony as to whether or not the defendant Ely Sarratt struck Leonard Williams with a pistol is the only conflict in the evidence. It is admitted that Ely Sarratt called Leonard Williams off and they engaged in a fight, Ely insisting he struck Leonard Williams with his fist, and Williams insisting he struck him with a pistol. No one disputes the fact that Willie Sarratt entered into the fight and used his knife.

The jury heard all the testimony, and saw the witnesses on the stand and observed their demeanor. It was for the jury to say whom they would believe or disbelieve. If there is a fair conflict in the evidence or it is such that different inferences can properly be drawn from it, the determination of the jury will not be interfered with unless it is against the weight of the evidence or appears to have been influenced by passion or prejudice. The jury was in a better position to pass upon the truth of the witnesses’ statements than is an appellate court.

The jury found the defendants guilty and assessed their punishment. Under the law and facts the jury verdict should not be set aside. Powell v. State, 11 Okla. Cr. 615, 150 P. 92; Queen v. State, 35 Okla. Cr. 412, 250 P. 935; Clemmer v. State, 56 Okla. Cr. 354, 40 P. 2d 37; Houston v. State, 63 Okla. Cr. 49, 72 P. 2d 526; Phillips v. State, 63 Okla. Cr. 172, 73 P. 2d 879; Coppage v. State, 62 Okla. Cr. 325, 71 P. 2d 509; A. Goodnight v. State, 62 Okla. Cr. 382, 71 P. 2d 789.

There is nothing in the record to show that the jury was influenced by passion or prejudice. Section 3062, O.S. 1931, 22 Okla. St. Ann. § 834, in part is as follows:

“The questions of fact are to be decided by the jury.”

The defendants were accorded a fair and impartial trial. There are no errors in the record warranting a reversal. The judgment of the trial court is affirmed.

DOYLE and BAREFOOT, JJ., concur.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    WILLIE SMITH v. STATE.
    No. A-9353.
    May 13, 1938.
    (79 P. 2d 616.)
    B. C. Franklin, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

The defendant, Willie Smith, was convicted of uxorcide. In accordance with the verdict of the jury on December 19,1936, the court sentenced him to imprisonment for life. To reverse this judgment he appealed by filing in this court on June 19, 1937, a petition in error with case-made.

The information charged Willie Smith with the murder of Essie Lee Smith by shooting her with a pistol in Tulsa county on the 29th day of April, 1936.

The assignments of error are based on exceptions taken to rulings of the court on the admission and exclusion of evidence, and question the sufficiency of the evidence to support the verdict and judgment of conviction.

The evidence for the state shows that on April 29, 1936, between the hours of 11 and 12 p.m., Essie Lee Smith was shot near the home of her parents, Mr. and Mrs. B. C. Tip-ton, at the corner of Peoria and Pine streets, in the city of Tulsa.

From the effects of the gunshot wounds she died May 7, 1936; her death was due to a hemorrhage from the large sub-clavian vein, just beneath the collarbone; the vein was severed.

It appears the defendant and the deceased were married July 5, 1934, and that they separated three or four months before her death; that on the night of the tragedy she left the bus going south on Peoria, in front of her father’s store, walked west on Pine to the walk leading into her father’s house, and there received the fatal shots.

B. C. Tipton, her father, testified that he was in his place of business and heard three shots fired, and heard his daughter scream; that he ran out the back door and saw his daughter lying on the sidewalk, ran to her and she said, “Oh, Daddy, Bill shot me — he done killed me”; that it was about 20 feet from the back door of his store to where his daughter was lying. He further testified that his daughter and her husband had separated and she had been making her home with him.

W. P. Carter testified that he was returning from the Century Club on the night of April 29th, at about 12 o’clock, and passing the Peoria and Pine intersection, he heard a gun fire, and saw a man standing over a woman shooting; that Talmadge Hughes was driving the car and went on about a block before he stopped the car; they left the car and walked back; when they got there the man who fired the shots was gone.

Talmadge Hughes testified that they left the Century Club between 11 and 12 o’clock; he was driving the car; that when he heard the first shot he looked and saw a woman fall on the sidewalk, and saw a man leaving, running southwest across Pine street.

Flora Temer testified that she lived at 1242 East Pine, and heard the screams and heard three shots; it was 11:30 or 12 o’clock; that she rushed out on the street and a man in his shirt sleeves ran by her going west, and passed within five feet of her; that she recognized him, he was Bill Smith; that she rushed to the girl who was lying near the corner of her father’s store building; that Mr. Tipton, the girl’s father, was there; that she was not personally acquainted with Bill Smith, but knew him as the dead girl’s husband; that she said “Essie Lee, is that you?” Essie Lee said, “Yes — come get me — I am shot”. Witness said, “Who shot you?” and Essie Lee said, “Bill.” Witness said “Bill who?” she said, “Bill Williams — my husband shot me.” Recalled, she testified that she made a mistake in the name “Bill Williams,” Essie Lee said, “My husband, Bill Smith, shot me.”

Buster Richardson testified that he left his mother’s home on Owasso to catch the bus at the corner of Owasso and Pine, and there he saw a man running across Pine to Owasso street; as the man passed witness asked him, “Is some one shooting up there?” and he said, “A man shot a woman”; that he could not say who the man was.

Herbert Friday testified that he was on the corner of Pine and Owasso on the night of April 29th and heard one shot and two more right after it, then a man came around that corner, and passed by him; one of the boys said, “Who was that shooting around there?” the man said, “Some man is shooting a woman,” and the man was sticking a gun in his pocket, and that man was Bill Smith.

John Burnett testified that he was a deputy sheriff of Tulsa county; that the defendant, Willie Smith, was apprehended in Chicago, 111.; and that he returned him from Chicago to Tulsa on the 9th of November, 1937.

This was substantially the state’s case.

As a witness on his own behalf, the defendant testified that he was married to Essie Lee Smith July 5,1934, in Tulsa ; that in April, 1936, he was living at 511 North Detroit, Mrs. Watson’s place, and had been working for the Oliver-Davis Oil Company eight or nine years, and quit work that evening around 7 o’clock; that his wife had called him up that afternoon, and said, “Come to my mother’s tonight — I want to talk to you.” That after quitting work he went out to his aunt’s, Mrs. Chamberlain’s house, dressed in a unionall suit and striped service cap. That he left there about 10 o’clock, and went on to see his wife at her mother’s; that he came south on Owasso two blocks, then turned east to Peoria, and went down Peoria to Pine street, then turned west on Pine to Mrs. Tipton’s home; that there were two men and a woman standing at the walk that leads into his home. One of the men said, “Here he is now,” and made a pass at him; he grabbed this fellow, and two or three shots fired, and in the scuffle the other fellow hit him on the head; one shot hit him on the knee. The woman screamed and he recognized her as his wife. After the last shot he broke away and ran across the street and went south on Peoria to Eleventh street. There he caught a van and went on to St. Louis with this van. Bob Richardson was driving the van. They first stopped at Springfield, Mo., next morning about 10 o’clock. There he treated the wound on his knee. After reaching St. Louis, he remained there about two hours, caught a bus, and went on to Chicago. There he was under treatment two weeks for the injury to his leg, then went to work and continued until he was arrested November 8th. That he did not resist returning with Mr. Burnett, deputy sheriff. That he never owned a pistol, and did not have a gun that night. That he did not see Flora Temer that night, and did not speak to any person after leaving there until he caught the van. That in Chicago he went under the name of Leroy Harris. That he did not know that his wife had been shot unt?: his arrest in Chicago.

On the part of the defendant Mrs. Doveil Chamberlain testified that she is Willie Smith’s aunt, lived at 2128 North Owasso, Tulsa. That her mother, her husband, two daughters, and two stepsons lived there with her. That Willie Smith came to her home that night just after dark and left there between 10 and 11 o’clock. On leaving he said he was going by to see Essie Lee, his wife. That she had telephoned him to come that night to see her. That he was wearing a work suit, coveralls.

Gladys Davis testified that she lives with her mother, Mrs. Chamberlain, and the defendant was out at their house that evening; left there a little after 10; that he was wearing a blue and white coverall suit.

Several character witnesses qualified and testified that the defendant’s reputation as a peaceable law-abiding citizen in the community where he lived was good.

Durcilla Watson testified that she lived at 511 North Detroit; that the defendant lived at her place from about the 1st of December until April 30th; that his wife lived with him after they first moved there, and he continued to stay there after she left him.

In rebuttal Joe Smith testified that he saw Essie Lee Smith, early in the evening at her father’s place, and later, about 11:30, saw her getting off the bus on the corner of Peoria and Pine; that she went west on Pine, in the direction of her home, and a few seconds later he heard the three shots fired.

Walter Taylor testified that he was standing in the front door of Tipton’s place and saw Essie Lee Smith, Mr. Tipton’s daughter, get off the bus; that she walked west on Pine beside the building, then he heard the shots fired; that some one screamed just as the gun fired, and he ran around there and saw her lying on the sidewalk, then ran back to call the ambulance.

It follows from the foregoing review that the facts and circumstances of the case are sufficient to remove every rational doubt and convince the mind that the defendant is guilty of the offense as charged.

Counsel for the defendant contends that the court erred in admitting the testimony of the witnesses B. C. Tipton, father of the deceased, and Flora Temer, a next-door neighbor, as to statements made by deceased, “no proper foundation having first being laid therefor, a dying declaration, and the same being clearly no part of the res gestae.”

Obviously, the statements testified to by the two witnesses were of the very highest importance in the case, and were clearly admissible as a part of the res gestae.

In Morehead v. State, 12 Okla. Cr. 62, 151 P. 1183, Ann. Cas. 1918C, 416, we said (page 1184) :

“On a trial for murder, declarations of the deceased made under such circumstances as will raise the reasonable presumption that they are the spontaneous utterances of thought created by or springing out of the homicidal act, and made so soon thereafter as to exclude the presumption that they are the result of premeditation and design, and without knowledge of which the principal fact might not be properly understood, are admissible as part of the res gestae.”

In Dodd v. State, 29 Okla. Cr. 311, 233 P. 503, it is said:

“It is not possible to define the term ‘res gestae’ by any exact definition which will fit all cases. The term in a general way may be defined as the circumstances, facts, and declarations which grow out of the main fact and shed light upon it and tend to explain it, are voluntary and spontaneous, and made at a time so near, either prior or subsequent to the main act, as to exclude the idea of deliberation or fabrication.”

And see Cook v. State, 27 Okla. Cr. 215, 226 P. 595; Chastain v. State, 46 Okla. Cr. 123, 287 P. 826.

A careful examination of the record fails to disclose any material errors in the rulings upon evidence or the instructions given by the court, and, giving due weight to every consideration urged by counsel for the defendant, our conclusion is that the defendant had a fair and impartial trial, and was properly convicted.

The judgment appealed from is therefore affirmed, and it is so ordered.

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


author: BAREFOOT, J.

text:
    SANK BURKS v. STATE.
    No. A-9289.
    May 13, 1938.
    (79 P. 2d 619.)

      0. A. Brewer, of Hugo, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Ralph K. Jenner, Co. Atty., of Hugo, for the State.
   BAREFOOT, J.

The defendant was charged with the crime of murder in Choctaw county on the 8th day of April, 1936, was tried, convicted of manslaughter in the first degree, and his punishment assessed by the jury at 30 years in the penitentiary, and from this judgment and sentence he has appealed.

The first assignment of error is that the trial court was without jurisdiction for the reason, the verification of the original complaint filed before the preliminary examination was not taken by the magistrate, but by a deputy court clerk. The complaint was sworn to before “F. M. Caldwell, Court Clerk, H. H. Wallace, Deputy.” The contention being that such complaint should have been sworn to before the county judge, who was the acting examining magistrate; and that the verification by the court clerk rendered the same fatally defective. To support this contention defendant cites the cases of Bowes v. State, 7 Okla. Cr. 316, 126 P. 580; Ex parte Owen, 10 Okla. Cr. 284, 136 P. 197, Ann. Cas. 1916A, 522.

In the Bowes Case the original information had been filed in the county court charging the defendant with a misdemeanor. It was sworn to before a notary public. This was the information upon which the defendant was to be finally tried. In the case at bar the verification was of the complaint filed prior to the preliminary examination, and while the court, in the body of the opinion in the Bowes Case, stated that such verification would be unauthorized, this question did not enter into the disposition made of the case and no reference thereto is made in the syllabus. The court uses the expression that a notary public is an officer of the civil and commercial law and is unknown to the criminal law. Such is not true with reference to the court clerk, he being the clerk of the court who files and takes care of both civil and criminal cases and who administers oaths in all cases. State ex rel. v. Lauver, Judge, 26 Neb. 757, 42 N.W. 762.

In the Ex parte Owen Case, supra, which was an extradition proceedings, the affidavit upon which the extradition was based had been sworn to before a notary public. This court held that such verification was not sufficient. Defendant, in his brief, says:

“That this is the consensus of best authority is shown by the fact that the federal extradition laws have made such mandatory before extradition will lie.”

In the first place the federal statutes, 18 U.S.C.A. § 662, requires as a basis for extradition “a copy of an indictment found or an affidavit made before a magistrate,” which language is stronger than that of our own statutes, and as stated by Judge Furman, in the Owen Case (page 199) :

“This proceeding being based upon a federal statute, we are not at liberty to follow the rule of construction which we apply to our own state statutes, because the common-law doctrine of a strict construction of penal statutes is adhered to by the Supreme Court of the United States, and, under this rule, no person can be deprived of a single right or punished for any offense unless the act complained of, and the proceedings thereon, come strictly within the letter as well as the spirit of the law.”

Many of the statutes now in force in the state of Oklahoma have repudiated the old common-law doctrine of a strict construction of all proceedings in criminal cases. Some of these statutes are the following: Okla. St. 1931, § 2883, Okla. St. Ann. tit. 22 § 401; Okla. St. 1931, § 2891, Okla. St. Ann. tit. 22, § 409; Okla. St. 1931, § 3206, Okla. St. Ann. tit. 22, § 1068; Okla. St. 1931, § 3210, Okla. St. Ann. tit. 22, § 1273; Okla. St. 1931, § 2890, Okla. St. Ann. tit. 22, § 408. The early decisions of this court in construing some of the above statutes, and especially the opinions of Judge Furman, the first Presiding Judge of this court, have held that no such strict interpretation should apply. In the case of Price v. State, 9 Okla. Cr. 359, 131 P. 1102, Judge Furman says (page 1104) :

“Under the old common-law doctrine of strictly construing criminal law and all proceedings in criminal cases, and that an indictment or information should be certain to a certain intent in every particular, the objection now urged to this information would undoubtedly be good. But these doctrines have long since been repudiated in the state of Oklahoma. It is true that an indictment should be reasonably certain as to the offense charged in order that the defendant may not be surprised and may be able to prepare to make his defense, and also to enable him to plead a judgment of acquittal or conviction in bar to a subsequent prosecution for the same offense. This is all that a defendant is in reason and justice entitled to. If an indictment is couched in such language as to enable a person of common understanding to know what is intended, it is all that the law requires.” Hughes v. State, 7 Okla. Cr. 117, 122 P. 554; Williams v. State, 14 Okla. Cr. 100, 167 P. 763; Turner v. State, 8 Okla. Cr. 11, 126 P. 452; Bowes v. State, 8 Okla. Cr. 277, 127 P. 883.

The courts have not been technical in construing the federal statutes as will be observed by a reading of the following cases: Compton v. Alabama, 214 U.S. 1, 29 S. Ct. 605, 53 L. Ed. 885, 16 Ann. Cas. 1098; In re Keller, D. C., 36 F. 681; Gugenhine v. Gerk, 326 Mo. 333, 31 S.W. 2d 1; Id., 282 U.S. 810, 51 S. Ct. 180, 75 L. Ed. 726; Ex parte Davis, 333 Mo. 262, 62 S.W. 2d 1086, 89 A.L.R. 589; United States v. Baumert, D. C., 179 F. 735; 25 C. J. 264.

The record in the case at bar reveals that the preliminary complaint was filed in the office of the court clerk on the 9th day of April, 1936. The defendant was brought before the court, acting as an examining magistrate, and at the time of his preliminary examination, April 13,1936, although represented by counsel, no objection was raised as to the sufficiency of the complaint or of the verification thereof. After being bound over to the district court a petition for writ of habeas corpus was filed in this court asking for bail. In this petition he alleges that he had been charged with murder; that he had a preliminary hearing before the county judge as an examining magistrate, and had been bound over to the district court, and in this petition no question was raised as to the sufficiency or validity of the complaint. The first .attack upon the sufficiency of the affidavit was made when his case was called for trial in the district court, nearly seven months after his preliminary examination had been held, and he had been bound over to the district court. This court, in the case of Steiner v. State, 33 Okla. Cr. 298, 243 P. 1002, held:

“Where an unverified complaint charging a felony is filed before a magistrate, it is insufficient to authorize the issuance of a warrant, but, if a warrant is issued on such complaint, and a defendant apprehended and arraigned and submits to the jurisdiction of the magistrate, and has a preliminary trial on such complaint without challenging its sufficiency for lack of verification, such defect is waived.”

But whether there was a waiver on the part of the defendant or not, we are of the opinion that the court did not err in overruling the motion of the defendant to quash the information filed in this case for the reasons above stated.

Section 2755, Okla. Stats. 1931, Okla. St. Ann. title 22, § 171, is as follows:

“When a complaint, verified by oath or affirmation, is laid before a magistrate, of the commission of a public offense, he must, if satisfied therefrom that the offense complained of has been committed, and that there is reasonable ground to believe that the defendant has committed it, issue a warrant of arrest.”

Section 13442, Okla. Stats. 1931, Okla. St. Ann. Const., § 30, art. 2, provides:

“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized.”

It will be noted there is nothing in the above statute which indicates the officer before whom the oath or affirmation is to be taken. It could well be argued that the statute infers that the complaint when “laid before a magistrate” may have been previously verified by oath or affirmation taken before some other officer authorized to administer oaths. We certainly think it would be a most technical construction of the statute to say that the court clerk, or his deputy, who are not only authorized to take oaths, but who administer the oaths to witnesses, both in the trial of civil and criminal cases, is not such an officer that can properly swear a party to a complaint which is laid before the court as an examining magistrate. If any presumption is indulged, it should be that the court was present and directed that it be done. Under our statute, and for the further protection of the defendant, it is provided that no warrant shall issue for the arrest of a defendant until the county attorney shall indorse upon the information the following: “I have examined the facts in the foregoing complaint and recommend that a warrant do issue.”

And this indorsement appears on the complaint as shown by the record in this case, duly signed by the county attorney of Choctaw county. We call attention to the following authorities upon this proposition (State v. Freeman, 59 Vt. 661, 10 A. 752) ; the court says (page 753) :

“As to the first point, it appears that an oath was taken, but it was by an officer authorized by statute to administer oaths (R. L. § 4555), other than the magistrate who issued the warrant. The constitution (chapter 1, art. 11) forbids the issuing of any warrant without oath or affirmation first made. State Treasurer v. Rice, 11 Vt. 339. Must such oath be taken before the magistrate issuing the warrant, or may it be taken before another magistrate? The statutes are silent on the point. The substantial thing required in the constitution is that the complaint be on oath. There is nothing in the form of the oath upon which the magistrate issuing the warrant is called upon to pass. Any form from which the idea can be collected is sufficient as ‘taken and sworn before me.’ 1 Bish. Crim. Proc., § 231; Com. v. Bennett, 7 Allen [Mass.] 533; Com. v. Wallace, 14 Gray [Mass.] 382. The complaint must adequately charge an offense. Bish Crim. Proc., § 230, and cases there cited. Therefore the magistrate must see the complaint, in order to determine whether it furnishes sufficient foundation for a warrant. It stands like a capias in civil process issued upon affidavit. The right to the capias depends on compliance in the affidavit with the statutory requirements; therefore the magistrate must see it, in order to pass on its sufficiency, as held in Muzzy v. Howard, 42 Vt. 23; but the oath to it may be before another officer authorized to administer oaths. So we think it may be as to a complaint.”

In the case at bar it appears from the record that the warrant was issued by the county judge on the day the complaint was filed, and that it recited the fact that the complaint upon oath had been made before him.

In the case of Carrow v. People, 113 Ill. 550, the court says:

“Construing the statute, as, perhaps, should be done, with reference to the sixth section of the Bill of Rights, which declares ‘no warrant shall issue without probable cause/ the affidavit filed in this cause does show probable cause for filing the information, and the subsequent arrest of defendant. It is a matter of no consequence before whom the affidavit was made. It is not essential it should have been made before the judge of the county court that granted leave to present the information. In this case the affidavit was sworn to before a justice of the peace, and that is sufficient, if it- satisfied the judge to whom it was presented there was ‘probable cause’ for filing the information. More that that the law does not require for the security of the citizen against unwarrantable prosecutions. Myers v. People, 67 Ill. 503.”

As a second assignment of error it is contended by defendant :

“That the verdict, judgment and sentence is contrary to law, on account of the fact, that a second information was filed after the first information was quashed and set aside, without an order of the court directing the filing of said second information.”

The record discloses that an information was filed against the defendant on September 9, 1936, in Choctaw county, charging him with murder. On September 28, 1936, defendant filed a motion to quash the information:

“For the reason of the fact that the county attorney had no authority to file an information, because there has been, and is no transcript properly certified to of the proceedings of an examining magistrate.”

The record does not disclose that this motion was acted upon by the court, but it does disclose that a transcript, including the original complaint with the findings and order of the magistrate duly indorsed thereon, had been filed in the district court on April 14, 1936. Defendant’s contention seemed to be that certain testimony which was taken down in shorthand at the preliminary, and afterwards transcribed, was not filed in the district court. This testimony was filed in this court when application for bail was made, and after-wards, when the question was raised prior to the trial of the case, was filed in the trial court. Without any order being made on the above motion, the county attorney, on the 30th day of September, 1936, filed an information in the district court against the defendant, which is in practically the identical terms of the information filed on September 9, 1936. There is not only no substantial difference in the two informations, but they are literally the same. On October 1, 1936, defendant was arraigned, and was given 24 hours in which to plead, and was served in open court with a copy of the information with a list of the witnesses and their post office addresses indorsed thereon. This was the information filed September 30, 1936, and on which defendant was afterwards tried. On October 2, 1936, defendant filed a motion to quash the information filed on September 30,1936, setting up the same grounds as in his motion filed on September 28,1936, and the further reason: “That there is no properly verified complaint before a magistrate and no complaint whatever against him.”

The defendant afterwards and on the 5th day of October, 1936, filed an additional written motion which he labeled “Motion to set aside and quash information and against jurisdiction.” This motion set out more fully the same questions raised by the prior motion. It was signed and sworn to by the defendant. The defendant also on the 5th day of October, 1936, filed a general demurrer to the information. On this same date, and at the request of counsel for defendant, evidence was taken upon the hearing of the motion to quash. The state also took evidence and placed the defendant on the stand and asked him if he understood the contents of the motion to quash which he had signed and he said he did.

From the above statement we think it is clear that defendant waived any right he may have had for a ruling upon his motion to quash filed September 28, 1936. It has been held in the case of Lancaster v. State, 2 Okla. Cr. 681, 103 P. 1065:

“An information may be amended before announcing ready for trial without leave of the court.”

Section 2830, Okla. Stats. 1931, Okla. St. Ann. tit. 22, § 304, provides:

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

From the above statement it will clearly be seen, there was no material prejudice to the right of the defendant by the filing of an amended information, for the very good reason that the terms of the information filed September 9, 1936, and September 30,1936, were practically identical.

We do not think the court erred in overruling the motion to quash the information with respect to the filing of the transcript of the evidence in the district court. No prejudice to the defendant is shown, and the court ordered it filed, and it was filed before the trial of the case and defendant’s counsel had the benefit of the same at the trial.

Under defendant’s third assignment of error, he complains of the fact that the defendant was placed upon the witness stand, and asked the question as above indicated on the motion to quash the information. This proceeding was had in the absence of the jury, and the only question asked the defendant was, if he understood the motion which he signed and to which he replied that he did. Nothing was asked him with reference to the facts involved in the case. We do not think there was any error in this ruling.

It is further contended under this assignment that defendant was prejudiced because there were no negroes on the jury. An examination of the record fails to disclose any effort on the part of defendant to show that there had been any discrimination against him. When this matter was presented to the court when the case was called for trial, no evidence was offered; when counsel for defendant made his motion, the county attorney said:

“The jury list as submitted by the jury commissioners is admitted in evidence. It is agreed that the jury list does not contain the name of any negro; that there are some negro personal tax payers in Choctaw county. By the Court: Overruled on that ground. By Mr. Brewer: Exception. We want to ask for a postponement or a continuance of the trial of the defendant until a proper jury can be selected. By the Court: Overruled, exception. Anything else? By Mr. Brewer: I imagine we will announce ready for trial.”

It has often been held that the mere fact that the jury was composed solely of white men is no ground of challenge of the panel. Peters v. State, 22 Okla. Cr. 245, 211 P. 427; McIntosh v. State, 8 Okla. Cr. 469, 128 P. 735; Franklin v. State of South Carolina, 218 U. S. 161, 30 S. Ct. 640, 54 L. Ed. 980.

Defendant’s fourth assignment of error is that the court admitted incompetent testimony. This objection is based upon the introduction of certain testimony of a witness by the name of Willie Jones, who testified at the preliminary examination, and who was not present at the trial, but whose evidence was taken and transcribed and read to the jury, over the objection and exception of defendant. The state, before introducing this evidence, placed witnesses upon the stand to show that a subpoena had been issued in Choctaw county for this witness and returned “Not found.” Officers testified that they had searched for him at his usual place of residence; had made inquiry among his friends, and from what they could learn he had gone to Texas to pick cotton. One of the officers testified that he went to the town in Texas, where he had been informed the witness had gone, and that he could not locate him. Another officer testified to hearing that the witness had gone to Commerce, Tex., and was not to be found in Choctaw county. The stenographer, who took and transcribed the notes, testified they were correctly taken and transcribed. Counsel for defendant, and who represented him at the trial, was present at the preliminary examination, and cross-examined the witness. We do not believe that the court erred in permitting the introduction of the evidence of this witness under these circumstances. Mason v. State, 60 Okla. Cr. 398, 64 P. 2d 1238, 1240, and cases cited therein.

The other evidence offered by defendant, and of which defendant complained of not being permitted to introduce, was with reference to a certain officer having some trouble in attempting to arrest deceased on some former occasion. This testimony was unimportant, and nothing in the record shows that defendant had ever heard of this incident. His other objection to the introduction of the testimony has been examined, and we fail to find anything of a substantial nature, whereby defendant was denied any substantial right.

His fifth assignment of error is that the court refused to give certain requested instructions. Without lengthening this opinion by quoting in full, the first requested instruction was, that if the defendant abandoned the conflict that he would then have the right of self-defense. The facts did not justify the giving of this instruction. There was no evidence to show that deceased had provoked the difficulty, and nothing to show that defendant had abandoned it. The second requested instruction was with reference to the committing of an overt act, and defining an overt act. The testimony of the defendant himself does not show an overt act on the part of the deceased. We have examined the instructions given by the court. They fully presented the law of self-defense, which was the defense presented by defendant. They were fair and protected his substantial rights. The proof on behalf of the state showed that defendant, after having a controversy with deceased over a card game at defendant’s place of business, had sent another party to his home for his gun, and that it had been delivered to him; that he followed the defendant, making inquiry with reference to where he was, and finally located him in a pawn shop, where deceased had been examining revolvers, but did not purchase one, and the proof shows that they had been returned to the showcase; that defendant entered, and with gun drawn demanded that deceased put up his hands, and deliver to him certain money which he claimed deceased had picked up at a card game in defendant’s place of business just prior to the difficulty; that he jammed the gun into deceased’s stomach, and, when he handed him the money, he backed toward the door and shot deceased while he had his hands raised. Defendant himself testified that as he went to the door someone hollered “Look out,” and that he turned and saw something shining in deceased’s hand, and his gun fired; that he did not intend to shoot deceased. He did not even see a gun in deceased’s hand, according to his own testimony, and does not testify of any overt act on the part of deceased. He was indeed fortunate that his counsel was able to have the jury only find him guilty of manslaughter in the first degree. A verdict of murder would have been upheld under this evidence.

Finding no error, the judgment of the district court of Choctaw county is affirmed.

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


text:
    GEORGE MAYBERRY et al. v. STATE.
    No. A-9411.
    May 20, 1938.
    (79 P. 2d 1027.)
    Justin Hinshaw, of Norman, for plaintiffs in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiffs in error were jointly charged, tried and convicted upon an information charging that in Cleveland county, on the 26th day of May, 1937, they did then and there conjointly have in their possession a whisky still, with the unlawful intent to violate the prohibitory liquor laws of the state of Oklahoma. 37 Okla. St. Ann. § 1 et seq.' The jury failed to fix the punishment. Motion to vacate and set aside the verdict and grant a new trial was duly filed, considered and overruled. Exceptions allowed.

The court sentenced George Mayberry to pay a fine of $75 and to imprisonment in the county jail for 45 days, and sentenced Dude Mayberry to pay a fine of $50 and to imprisonment in the county jail for 30 days.

C. I. Adams, Key Durkee, deputy sheriffs, and Hamilton Stufflebean, night jailor, testified that they went to the woodlands 13 miles northeast of Lexington, near the Davis schoolhouse, looking for a still, and about a quarter of a mile south and east from the home of the defendants they found a coal oil barrel used as a still and an iron worm, and they destroyed the barrel; that tracks led from the still to the highway, then down the section line highway, about 200 yards to the homes of the defendants, on each side of the highway. That under Dude Mayberry’s house they found two oil pressure tank burners that could be used for working a still; that they could not testify whether or not the still was found on the premises of the defendants.

Key Durkee testified that tracks leading from the still went across an old field to the section line road and went down the road about 200 yards to where the defendants lived; that tracks left the road to George’s house, and tracks turned to Dude’s house across the road; that two burners were found under Dude’s house. That they did not have a search warrant.

George Mayberry, as a witness in his own behalf, testified that he lived a quarter of a mile east of the Davis schoolhouse ; that the officers came up the road that day, one went to his brother’s house across the road, another turned into his house. The officer said he found a still over there, pointing to the top of a hill about a quarter east and nearly a quarter south of his house on Womack’s place; that he had never seen a still or a part of a still at that place, and did not know what the officers found was there, did not know who put it there. The officers asked him: “Have you been making whisky over there?” and he answered, “I have not.” That he was never before arrested but one time, that was 10 years before, and that time he entered a plea of guilty to a violation of the prohibitory law.

Dude Mayberry, as a witness in his own behalf, testified that his house was across the highway from his brother George’s house, that he was not at home the day the officers were there; that he had been living on the place about six months and the two burners that the officers found under the house were there when he moved there. That the place where the officers found the still was Womack’s; that he had never seen a still there, had nothing to do with it, knew nothing about it, and had never been arrested before in his life.

Jess Rollins testified that he had lived in that community 34 years, knew the defendants, George and Dude Mayberry, all their lives, and knew their general reputation in that community as to being peaceable law abiding citizens, and that reputation was always good.

Albert Love testified that he lived at the Davis schoolhouse, knew the defendants for the past five years and knew their general reputation in the community as to being peaceable law abiding citizens, and that reputation was good.

Reed Blancett testified that he lived east of the Davis schoolhouse, had known these boys all their lives, and knew their general reputation as to being peaceable and law abiding citizens, and it was good.

In rebuttal the state recalled Key Durkee. Asked if he knew the general reputation of the defendants as to being peaceable law abiding citizens answered.:

“We have had lots of complaints. By the Court: Objection sustained. Just answer ‘yes’ or ‘no’. Answered: Yes, and it was bad.”

C. I. Adams, recalled in rebuttal, testified that he had known the boys for 15 or 20 years, knew their reputation in the community as to being peaceable law abiding citizens. Asked: “Is that reputation good or bad.” Answered: “It is bad. They make whisky.” Motion to strike the last remark sustained.

The main question presented is whether the evidence is sufficient to sustain the verdict.

Our examination of the record convinces us that the evidence was not sufficient to sustain the verdict.

The state failed to prove that the place where the still was found was in the possession or under the control of the defendants, or that the still was their property, or that they ever had possession of the same. It was not disputed that the still was found on the Womack place.

The state relied on circumstantial evidence for a conviction.

It appears from the record that the court failed to instruct on the law applicable to circumstantial evidence, and this fact probably accounts for the verdict rendered.

The authorities all hold, and without dissent, that where circumstantial. evidence is relied upon for conviction this necessitates the trial court, when requested, to give the law applicable thereto in its instructions to the jury.

While it does not appear that such an instruction was requested, nevertheless, the defendants were entitled to have the case submitted to the jury on instructions fairly applicable to the evidence in the case. And where the evidence is so weak and unsatisfactory, as in this case, the record should be free from prejudicial error to avoid a reversal of the conviction.

The rule as stated in 12 Cyc. 633, is:

“Where the prosecution relies solely upon circumstantial evidence, the court must always instruct upon the nature of circumstantial evidence. Such evidence should be expressly defined, and the rule governing its effect concisely stated.”

In cases of circumstantial evidence it is necessary that all the facts and circumstances essential to a conviction be proved beyond a reasonable doubt.

Where the evidence is wholly circumstantial and the facts and circumstances in evidence are of such a character as to fairly permit an inference consistent with innocence, it cannot be regarded as evidence sufficient to support a conviction. Adams v. State, 38 Okla. Cr. 173, 259 P. 665.

Under this rule the evidence tending to connect these defendants with the offense charged is wholly insufficient to support the verdict, and for this reason the judgments herein appealed from are reversed.

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


text:
    ROY STALEY et al. v. STATE.
    No. A-9282.
    May 20, 1938.
    (79 P. 2d 818.)

      Walter Henneberry and Edward Crossland, both of Tulsa, for plaintiff in error.
    Mae Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., and Holly L. Anderson, Co. Atty., of Tulsa, for the State.
   BAREFOOT, J.

The defendants were charged with opening and conducting gambling games in Tulsa county, on the 3rd day of December, 1935, were tried, convicted and sentenced to pay a fine of $1,000 each, and serve a sentence of five years in the penitentiary, and have appealed.

The first four assignments of error are considered together as they involve the same questions of law. It is contended that the information filed fails to charge a public offense, and that the court erred in overruling the demurrer thereto, and in overruling defendant’s motion in arrest of judgment.

The statute under which defendants were charged was Oklahoma Stats. 1931, § 2190, Okla. St. Ann., tit. 21, § 941, and was as follows :

“Every person who opens, or causes to be opened, or who conducts, whether for hire or not, or carries on either poker, roulette, craps or any banking or percentage, or any gambling game played with dice, cards or any device, for money, checks, credits, or any representatives of value, or who either as owner or employee, whether for hire or not, deals for those engaged in any such game, shall be guilty of a felony, and upon conviction thereof, shall be punished by a fine of not less than $500, nor more than $2,000, and by imprisonment in the state penitentiary for a term of not less than one year nor more than ten years.”

The charging part of the information filed under this section of the statute was as follows:

“On the 3rd day of December, 1935, did unlawfully, willfully, knowingly and feloniously, while acting in concert each with the other, opened and caused to be opened and conducted, gambling games, to wit: Roulette, crap games played with dice, ‘21’ games played with cards and other gambling devices, at the Sheridan Club, where A. B. Anderson, and divers other persons, whose names to the County Attorney, are unknown, played for money, checks, credits and other representatives of value, contrary, etc.”

It is contended by defendants that the information “fails to charge that A. B. Anderson and divers other persons played for money, checks, credits, or other representatives of value on any of the games charged to have been opened or conducted by the defendants.” To sustain this contention it is urged that “the word ‘where’ has reference to place and means ‘at which place’ ”. Which place is the Sheridan Club. The state, on the other hand, contends “that the word ‘where’ signifies the game or games played by A. B. Anderson and signifies the game or games in which the said Anderson played for money, checks, credits or other representatives of value.” The brief of the state calls attention to the fact that a comma follows the words “Sheridan Club” and immediately following is the words “Where A. B. Anderson and divers other persons * * * played for money, checks, credits and other representatives of value, etc.” Whatever construction may be placed upon the statute and the wording of the information, the contention of the defendants is highly technical. The courts of this state have never been favorable to such technical construction of the statutes and informations and indictments filed thereunder. The charging part of the information is in practically the words of the statute, and is certainly sufficient to inform the defendants of the nature of the charge made against them. It is the opening of the gambling house, and the permitting of gambling by means of certain devices, which are played for money, checks, credits and other representatives of value, which the state statute intends to prohibit. All of these elements are charged in the information in fairly clear concise language and are sufficient in our opinion as against the demurrer filed in this case.

The case of Leach v. State, 17 Okla. Cr. 322, 188 P. 118, gives a complete history of the gambling statutes of this state and upholds the constitutionality of the Act of 1916, under which defendants were prosecuted. It is useless for us to reproduce the same.

We have examined the case of Brown v. State, 5 Okla. Cr. 41, 113 P. 219, cited by defendant. This information was filed under a different statute from the one now in effect. In that case the information did not charge the party who was playing the game to have played for money or representatives of value. In the instant case the information charges that “A. B. Anderson and divers other persons * * * played for money * * *, etc.”

The case of Johnson v. State, 10 Okla. Cr. 597, 140 P. 622, overrules the case of Brown v. State, supra, and the same judge who wrote the opinion in the Brown Case, says (page 625) :

“For the benefit of the prosecuting attorneys and the people of the state as well, we may say that any person interested directly or indirectly in conducting a gambling game in Oklahoma, whether as owner, or whether as employe, or whether as a matter of accommodation, either for hire or without hire, is subject to indictment and conviction under the statute supra. An information charging such offense or offenses might well be drawn in the language of the information here under consideration, and proof that such game was conducted as alleged will be sufficient to sustain a conviction.
“We have not overlooked the fact that there are authorities which sustain a more strict construction, but in Oklahoma the statute law requires a liberal construction as against a strict construction. * * *”

However, it will be noted that this statute has now been amended as shown by the sections of the statute above quoted.

Five assignments of error are next urged by defendants and considered together. They are that the verdict of the jury is contrary to, the evidence and contrary to law. Under this contention it is maintained that the evidence did not show that the gambling games were open and conducted “for money, checks, credits or other representatives of value”, and that the evidence was insufficient to sustain the conviction. The evidence disclosed the following facts:

George Collins and T. Van Woody testified that they were investigators for the state of Oklahoma; that as such officers they secured a search warrant, and in company with Jack Bonham, an investigator from the county attorney’s office, searched the Sheridan Club, near Tulsa, on the morning of December 4, 1935; they found there decks of cards, a bushel or two of poker chips, tables, poker tables, crap tables, chuck-a-luck game, a wire basket which you turned, a lot of dice, a roulette wheel, and different kinds of tools to work on dice, and “just about everything you would find in an up to date modern gambling hall”, also papers in the office where “they had been figuring the different cuts and splits.”

George Pickford testified that he was a colored porter at the Sheridan Club; that he was employed by Roy Staley, one of the defendants, and received $7 per week, which was paid him in cash; that he had seen the defendants Cecil Byrd and George L. McCullough just working around seeing that everything was going all right; had seen Cecil Byrd dealing the cards and had seen Mr. McCullough in his private office; that Mr. McCullough had ordered him to move the gambling tables on the night of December 3, 1935, and with the assistance of others he did so; that he took orders from all of the defendants.

A. B. Anderson testified that he was in the kodak finishing business in Tulsa; that he visited the Sheridan Club on the night of the 3d of December, 1935; that he bought roulette wheel chips, paying cash for them, and played at the roulette wheel; that he saw the defendants, McCullough and Byrd, there that night, and Cecil Byrd was what you call the cashier at the dice table; that the chips which he had were cashed by someone whom he did not know.

Harry Deweese testified that he was working for the police department; that he was employed as “bouncer” at the Sheridan Club from April 20, 1935, to September 4, 1935; that he was employed by Ned Vandeventer and paid $5 a night; that he knew the defendant McCullough and that he took care of the gambling casino; that he saw the defendant, Cecil Byrd, dealing dice; saw the defendant, A. E. Van-deventer, dealing and working at the stick at the dice or crap table; that the defendant, Roy Staley, took care of the kitchen and dining room; that he had seen bets as high as $100 a throw; that defendant, George L. McCullough, had an office and was the boss; that he took orders from all of the defendants, and was paid by all of them at different times; that when playing was over for the night the four defendants would go into the office of George L. McCullough for the purpose of having a conference and settlement of the day’s business, and that he would remain outside and wait and would return with them to Tulsa.

C. J. Harry testified that he was an official court reporter for Tulsa county; that he reported the case of State v. Tyree Parks, which was tried in the district court on January 29, 1936, on the charge of murder; that at the trial George L. McCullough was called as a witness by the defendant and that he took down in shorthand his evidence, and he was permitted to read the evidence given by the defendants at that trial. This evidence showed that George L. McCullough was interested in the Sheridan Club on the 3rd day of December, 1935; that he owned one-seventh interest in the profits; that he had been interested to this extent for a period of about six or seven months. This witness also testified that the defendant Roy Staley testified in this case that he was interested in the operation of the Sheridan Club near Tulsa on December 3, 1935; that he leased the club on the 26th of March, 1935; that the lease was taken in his name and he managed the club and had a four-sevenths interest therein; that the defendant, Cecil Byrd, testified in the case that he had been connected with the Sheridan Club about seven months and that his duties were “looking after the gambling, or helping look after it”; that he received 15 per cent of the profits and this applied to the sale of food and gambling both; that the defendants Staley, McCullough and Vandeventer were associated with him in the business; that in addition to the fifteen per cent of the profits which he received, he also received $10 per day for his services.

Carey S. Cowart testified that he was an official court reporter for Tulsa county; that he reported the case of State of Oklahoma v. Cecil Byrd, which was tried on March 10, 1936. His testimony was similar to the testimony of the witness C. J. Harry, as to the testimony of some of the defendants. He read the testimony of George L. McCullough in which he stated that he owned a one-seventh interest in the Sheridan Club on December 3, 1935.

S. C. Edmister testified to being a lawyer and drawing a lease which was introduced in evidence, and that the defendant, Roy Staley, leased the property on which the Sheridan Club was located for one year from March 29, 1935.

Marvin Overstreet testified that he was employed at the Sheridan Club to watch cars; that he was employed by defendant, Roy Staley, and paid $2 per night.

Harry Andrews testified that he received $5 per day; that he was employed by Roy Staley but was paid by different ones, including the defendants, George L. McCullough, Cecil Byrd, and A. E. Vandeventer; that he had seen gambling being conducted in said club; that after the raid on December 4,1935, he was employed by the defendant A. E. Vandeventer to go back out there and go to work.

J. L. Burkhead testified that he was employed by Roy Staley to work at the front door of the Sheridan Club; that it was his duty to keep out “drunks and undesirables” and to handle the spot light for the floor show; that he was paid at different times by defendants McCullough, Byrd, and Sta-ley.

Michael O’Coole testified that he was employed as director of the orchestra at the Sheridan Club and the orchestra received from $250 to $300 per week; that he saw gambling games being conducted there while he was there.

Harry Deweese was recalled and testified that Mr. A. E. Yanderventer was working there at the crap table and explained the method of conducting gambling games and how they were operated at the Sheridan Club.

The defendants offered no evidence. A mere statement of the above evidence is a sufficient answer to the contention that the judgment is not supported by the evidence. It shows conclusively that defendants were the owners and operators of the Sheridan Club in Tulsa county, and that gambling games of different character had been opened and operated by defendants for a period of seven or eight months; that the profits had been split by the defendants; that many people gathered there for the purpose of gambling in violation of the law.

A. B. Anderson testified directly to having paid for the checks which he bought for the purpose of gambling, and that when he departed the same were cashed by someone whom he did not know. This evidence, together with the other evidence in this case, is sufficient to show that gambling was being conducted “for money, checks, credits and other representatives of value”. The evidence of the court reporters was objected to by the defendants. The court sustained this objection as to each defendant only permitting it to be introduced as against the defendant who had given the evidence. Counsel then objected to the evidence as against that defendant for the reason that the notes had not been transcribed by the court reporter. We do not think there is any merit in this contention. The court reporter was the official reporter for the district court, and read the questions and answers asked from the shorthand notes which he had taken at the time of the trial. It will be noted that the evidence by each of the defendants was in a case where they were not defendants, and were not on trial, with the exception of the defendant, Cecil Byrd. Their evidence was voluntary, and they were placed upon the stand by the defendants and not by the state. If these defendants had refused to testify upon the grounds that evidence which they would give might tend to incriminate them, and had claimed their constitutional or statutory rights, and had then been forced to testify, over their objection and exception, there might be some merit in their contention. The general rule undoubtedly is that if a defendant has voluntarily testified in some other proceeding, such testimony may be used against him as an admission, in a criminal case. Anderson v. State, 8 Okla. Cr. 90, 126 P. 840, Ann. Cas. 1914C, 314; Martin v. State, 46 Okla. Cr. 411, 287 P. 424, 85 A.L.R. 512; Czarlinsky v. U. S., 10 Cir., 54 F. 2d 889; State v. McPherson, 77 Ore. 151, 149 P. 1021; State v. Rathie, 101 Ore. 339, 199 P. 169, 200 P. 790.

Counsel for defendants next assigns four errors, and in his brief says:

“These assignments of error can be treated as one for the sake of argument, in view of the fact that they are so closely associated and aligned that the same argument applies to each.”

Under these assignments of error, it is contended that the court erred in refusing to permit the defendants to have a jury trial, and the trying of defendants without the empaneling of a jury. The facts are that defendants were jointly informed against on the 29th day of December, 1935; they were arraigned on the 3rd day of January, 1936, and entered their pleas of not guilty. On the 21st day of February, 1936, the case was by order of the court set for trial on March 11, 1936. It was then stricken from the assignment on several different occasions, and finally set for trial on the 2d day of May, 1936. On this date an agreement was entered into in open court by the state, who was represented by the county attorney and the Assistant Attorney General, and the defendants in person and their counsel, whereby each of said defendants, in consideration of the continuing of said case to September 15, 1936, agreed to waive their right of severance, and also waive, their right to trial by jury, and agreed that their case might be tried by the court without the intervention of a jury. This agreement was entered on the minutes of the court by the judge then presiding, and each of the defendants was asked in person if he waived these rights and he answered “yes”. On the 10th day of September, 1936, the case was set for trial on the 23d day of September, 1936. On the 22d day of September, 1936, counsel who had represented defendants were permitted to withdraw as counsel. On the 23d day of September, 1936, an order was entered setting the case for trial on the following day, September 24,1936. On this date defendants, by other attorneys who had been retained by them, filed a demurrer to the information which was overruled, and the defendants then entered pleas of not guilty, and demanded a severance, and on same date filed a written demand for a jury trial. On the same date attorneys representing defendants filed an affidavit asking for a continuance of the case for one week, stating that they had been employed after 9 p.m., September 22, 1936, when other attorneys, who had theretofore represented defendants, had been permitted to withdraw, and that they had not had an opportunity to prepare the case for trial, and interrogate the 31 witnesses endorsed on the information. This motion was by the court overruled and the defendants excepted. Attorneys for defendants then presented an application asking that they be permitted to withdraw the waivers which had theretofore been filed, and that they be permitted to have a jury trial. This application set up the fact that a jury was in attendance on the court, and the granting of this request “would not prejudice the state or delay or impede the cause of justice, if they should be allowed to withdraw the waivers theretofore filed by them at a former term of court”. This motion was overruled by the court, to which defendants excepted, and they were placed on trial before a regular judge of the Tulsa county district court, but one different than the one before whom they had entered their waivers.

It is strongly contended by the defendants that the court erred in overruling the motion for continuance for one week, and refusing the application for permission to withdraw the waivers, and forcing them to trial before the court without the intervention of a jury. With reference to the continuing the case, under the decisions of this court, that was a matter which was in the judicial discretion of the court, and unless it is shown that there was an abuse of this discretion, this court will not interfere with the decision of the trial court. Under the facts presented, we cannot say there was an abuse of this discretion. The case had been continued on several different occasions. The state could not be held responsible for the withdrawal of defendants’ counsel the day before their case was called for trial. It would be setting a dangerous precedent to say that this was a cause for continuance as a matter of law. The court was present and knew the surrounding circumstances and was in a better position to pass upon this question than an appellate court. We do not find that the court erred in overruling the motion for continuance.

The question of the court in refusing to permit the withdrawal of the waiver of trial by jury, and granting the defendants a jury trial under the circumstances as revealed by the record in this case presents a more serious question. Defendants, in support of their contention, cite the following cases: Morrison v. State, 31 Okla. Cr. 11, 236 P. 901; Campbell v. Powell, 76 Okla. 286, 185 P. 328; Sharrock v. Kreiger, 6 Ind. T. 466, 98 S.W. 161, 165; Cain v. State, 102 Ga. 610, 29 S.E. 426; People v. Molinet, 13 Misc. 301, 34 N.Y.S. 1114; Cross v. State, 78 Ala. 430; People v. Standish, 185 Ill. App. 485; State v. Touchet, 33 La. Ann. 1154; Dean v. Sweeney, 51 Tex. 242. The state cites the following authorities: 35 C.J. p. 222, § 140, p. 201, § 111, p. 223, § 141; Logan v. State, 86 Ga. 266, 12 S.E. 406; McClellan v. State, 118 Ala. 122, 23 So. 732; State v. Bannock, 53 Minn. 419, 55 N.W. 558; Edwards v. State, 45 N.J.L. 419; Lanahan v. Heaver, 77 Md. 605, 26 A. 866, 20 L.R.A. 759; Boslow v. Shenberger, 52 Neb. 164, 71 N.W. 1012, 66 Am. St. Rep. 487; Trainor v. Heath, 67 N.H. 384, 29 A. 846; Heacock v. Lubukee, 108 Ill. 641; Hawes v. Clark, 84 Cal. 272, 24 P. 116.

We have examined all of the above authorities, and many more not cited. At first blush it seems there is a direct conflict in the authorities presented, and to a certain extent this is true. It will be noted that part of the cases are based upon crimes which are known as misdemeanors and some upon felonies, but the courts do not generally draw a distinction as to whether one is on trial for a misdemeanor or felony. Many of the cases are based upon municipal statutes or from courts that have been especially created, and almost all of the cases are based upon provisions of the Constitution or statute which have special local application. For this reason many of them do not apply when read in connection with the provisions of our statute and Constitution. Pri- or to statehood and the adoption of the Constitution of this state, the Territorial Supreme Court passed directly upon this question in the case of In re McQuown, 19 Okla. 347, 91 P. 689, 11 L.R.A., N.S., 1136. Chief Justice Burford, in a very interesting and elaborate opinion, goes into the history of the right to waive a trial by jury by a defendant, and comes to the conclusion that under the statutes in force in Oklahoma prior to statehood, that one who is charged with a crime triable by a jury at common law is required by statute to be tried by a jury, and cannot waive such right, and that a judgment rendered on a plea of not guilty without the intervention of a jury is void. Since this decision was rendered the Oklahoma Constitution has been adopted, and among its provisions is the following, article 7, § 20, Okla. St. Ann. Const. art. 7, § 20:

“In all issues of fact joined in any court, all parties may waive the right to have the same determined by jury; in which case the finding of the judge, upon the facts, shall have the force and effect of a verdict by jury.”

In the case of Cowden v. State, 5 Okla. Cr. 71, 113 P. 202, this court has held that the above constitutional provision is self-executing and applies to criminal cases as well as civil cases, and where the defendant waives a trial by jury, the state consenting, all questions of fact are for the court, and the court is authorized to try the question of the guilt of the accused on a plea of not guilty. This case has been followed in the subsequent decisions of this court. In re Opinion of the Judges, 6 Okla. Cr. 18, 115 P. 1028; In re Wilkins, 7 Okla. Cr. 422, 115 P. 1118; Wise v. State, 28 Okla. Cr. 324, 230 P. 930; Morrison v. State, 31 Okla. Cr. 11, 236 P. 901; Ex parte King, 42 Okla. Cr. 46, 274 P. 682.

Did the court err in refusing defendants the right to withdraw their former waiver and request that they have the right of a jury trial, after a demurrer which they had filed had been overruled, and did the court abuse its discretion in refusing a jury trial under the facts in this case? In the first place, the record nowhere discloses that permission was given to defendants to withdraw their plea of not guilty and file a demurrer to the information. It simply shows the filing of the demurrer to the information and the overruling of the same. If the court did orally grant such permission, it was evidently for the purpose of permitting counsel to save the record and with no intention of permitting a withdrawal of the former agreement to waive a severance and to waive a jury. We do not think as a matter of law this action of the court would be such an action that would set aside the waiver heretofore made by the state and the defendants. By the terms of the agreement both the state and the defendants obtained valuable rights. The defendants were granted a continuance from May 2, 1936 to September 24, 1936, which was a valuable right. The state was saved the expense of trying five separate cases, and the expense of a jury trial. After a careful review of the authorities, we are of the opinion that the defendants had the right to waive a severance and the right to a jury trial, and that by filing a demurrer they were not entitled as a matter of law to have the agreement, which had theretofore been made in open court, set aside. But the record in this case reveals that a jury was in attendance on the court and had been for the last ten days, and that if the jury had been permitted to sit in this case there would have been no delay, and they would have been permitted to pass not only upon the guilt or innocence of the defendants, but would have had the right to assess the punishment, and in this instance, while defendants may not have been entitled to a jury trial as a matter of law, the state would not have been prejudiced or delayed or the cause of justice impeded. Under the circumstances as revealed by the record we think it would have been much better for the court to have exercised its discretion in favor of the defendants and permitted the jury to pass upon their guilt or innocence and assess the punishment. This discretion should be more zealously guarded in a criminal case than in a civil case. We, however, do not hold as a matter of law that they had this right. The evidence in this case shows that the defendants were conducting a gambling house in violation of the laws of this state. It does not show that defendants have ever had any prior convictions. Under the circumstances it is our opinion that substantial justice will be done, both to the state and to the defendants, instead of reversing this case, to modify the judgment from a fine of $1,000 and five years in the penitentiary, to a fine of $1,000 and two years in the penitentiary.

As thus modified, the judgment of the district court of Tulsa county is affirmed.

DOYLE, J., concurs. DAVENPORT, P. J., absent and not participating.


text:
    NED VANDEVENTER v. STATE
    No. A-9283.
    May 27, 1938.
    (79 P. 2d 1032.)

      Walter Henneberry and Edward Crossland, both of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., and Holly L. Anderson, Co. Atty., of Tulsa, for the State.
   BAREFOOT, J.

The defendant, Ned Vandeventer, was charged by indictment returned by a grand jury of Tulsa county, with the crime of opening and conducting gambling games; was tried, convicted and sentenced to pay a fine of $1,000 and to serve a term of five years in the penitentiary.

This is a companion case of Roy Staley et al. v. State, 64 Okla. Cr. 302, 79 P. 2d 818, decided by this court on the 20th day of May, 1938. The questions of law presented are identical with the questions presented in that case and it becomes unnecessary to again review them.

The defendant was charged by indictment with opening up and conducting gambling games in violation of Oklahoma Statutes, 1931, section 2193 (Okla. St. Ann., Tit. 21, see. 941), on December 2, 1935, at “The Oaks”, situated on Highway No. 64, in Tulsa county, Okla.

The record reveals that defendant operated and managed this place from some time in September, 1935, until December 2, 1935, the date charged in the indictment. That it was conducted as a night club and gambling hall, and gambling was permitted there. That different persons were employed and paid by defendant, just as in the Roy Staley Case. An orchestra was employed, and meals were also served. Gambling tables and other paraphernalia used in a gambling house were set up, and the evidence showed that people resorted there for the purpose of gambling at the different games. That the playing was for “money, checks, credits and other representatives of value”. The defendant was seen there handling the different games, and selling and cashing the checks, and acting as the manager in charge. The evidence was sufficient to sustain the conviction of the defendant.

For the reasons stated in the case of Roy Staley et al. v. State, we are of the opinion that the judgment in this case should be modified from a fine of $1,000 and five years in the penitentiary, to a fine of $1,000 and two years in the penitentiary, and with this modification the judgment of the district court of Tulsa county is affirmed.

DOYLE, J., concurs. DAVENPORT, P. J., absent and not participating.


text:
    Ex parte BURT BLANCETT.
    No. A—9515.
    May 20, 1938.
    (79 P. 2d 817.)
    Reily & Reily, of Shawnee, for petitioner.

      Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Fred Cunningham, Pardon and Parole Atty., for the State.
   BAREFOOT, J.

The relator has been taken into custody upon a warrant issued by the Governor of this state, upon a requisition of the Governor of Michigan, upon the ground that he is a fugitive from justice from that state.

The record shows that relator is charged with the crime of rape. The relator questioning the legality of his detention sued out a writ of habeas corpus in this, court, alleging that said restraint is illegal and unauthorized, in that he is not a fugitive from the state of Michigan, and that he has not committed any crime against the laws of Michigan, and is not guilty of the crime of rape as charged therein, and should not, therefore, be permitted to be returned to that state. It was also contended by petitioner that the information which is attached to the papers filed in this case is insufficient to constitute a crime against the law.

We have carefully examined the complaint and a copy of the Michigan statutes, which is attached to the proceedings; also an affidavit of the prosecuting witness, and find that the proceedings are regular in every way, and that the information is in proper form. The petitioner does not deny that he was in the demanding state on the date of the commission of the alleged offense.

It is, therefore, the opinion of this court that this writ should be denied, and that the relator be remanded to the custody of the sheriff of Pottawatomie county, and by him turned to Frank Portwood, as agent of the state of Michigan, as shown by said proceedings.

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


text:
    EDMUND HARDIN v. STATE.
    No. A—9425.
    May 20, 1938.
    (79 P. 2d 816.)
    John Steele Batson, of Marietta, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Edmund Hardin, was tried and convicted in the district court of Love county for the crime of larceny of domestic animals, second offense, and in accordance with the verdict of the jury was sentenced to serve a term of ten years in the penitentiary. The judgment and sentence was rendered on July 3,1937.

The information properly charged that Edmund Hardin, in Love county, on or about the 23d day of April, 1937, did then and there feloniously take, steal and carry away two milk cows, one the property of Mrs. Asa Walden, the other the property of Mr. C. N. Brown. And further charged that said Edmund Hardin had previously been convicted:

“Mar. 10, 1927 — Carter County — for burglary — plea of guilty — 2 years.
“May 22, 1929 — Harmon County — Larceny of Automobile — plea of guilty — 5 yrs.
“Aug. 2, 1929 — Muskogee County — Larceny of Automobile — Plea of guilty — 10 years.”

No brief has been filed, and no appearance for oral argument made, and we are not advised what plaintiff in error relies upon for a reversal.

Where the defendant appeals from a judgment of conviction, and no brief in support of the petition in error is filed, and no appearance for oral argument made, this court will, examine the record for jurisdictional errors, and will read the evidence to ascertain if it reasonably supports the verdict, and, if no fundamental error is apparent, the judgment of conviction will be affirmed.

We have examined the information, the instructions of the court, to which no objection was made or exception taken, and have discovered no error which will warrant a reversal of the judgment. We find the evidence amply supports the verdict.

Upon the record before us our conclusion is that the appeal is without merit. The judgment of the district court of Love county is accordingly affirmed.

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


text:
    BILL KNIGHTON v. STATE.
    No. A—9410.
    May 27, 1938.
    (79 P. 2d 1030.)

      C. L. Hill, of Wewoka, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, J.

Upon information filed in the county court of Seminole county, charging that on or about the 7th day of May, 1937, in said county, Bill Knighton, did unlawfully have in his possession 1% pints of whisky, with the unlawful intent to sell, barter, give away or otherwise dispose of the same, he was tried and convicted, and his punishment assessed at a fine of $50 and confinement for 30 days in the county jail.

Motion for new trial was duly filed, presented and overruled.

To reverse the judgment rendered on the verdict June 29, 1937, he appeals.

The defendant contends that the judgment should be reversed for the following reasons: That the court erred in overruling the motion to suppress the evidence; that incompetent evidence was admitted to the prejudice of the defendant, and that the verdict of the jury is contrary to the law and the evidence.

The state called but one witness, Bud Gordon, who testified that he was a constable in Seminole county, and with Eric Nicholson and Boss Rhea, in executing a search warrant went to the defendant’s place in Seminole county, a mile west and a half mile north of the Mekusukey Mission.

That the defendant’s dwelling house had a lunch counter where he sold 3.2 beer and lunches; that he found there on a table a quart bottle a little over half full of whisky and some gin in a glass. That he asked the defendant if that was all the whisky he had. Defendant said “Yes.”

He further testified as follows:

“Q. Does that place bear the general reputation of being a place where liquor is kept and sold.”

Objection overruled. Exception.

“A. Yes, sir. Q. Have you ever had occasion to go out there before and search for liquor, Bud ? A. Yes, sir.”

On cross-examination he stated that his information was from what some of the officers told him; that he did not know what the reputation of the place was among the folks in that neighborhood.

Redirect.

“Q. You told Judge Hill that you hadn’t talked to any of the neighbors out there, do you know the general reputation of that place among any of the people over on that side of the county? Objection overruled. Exception. A. Yes, sir.”

The state rests. Thereupon defendant demurred to the evidence on the ground that the same is insufficient to sustain a conviction. Demurrer overruled. Exception.

As a witness in his own behalf, the defendant testified that he was present when Constable Gordon searched his place; that there was a little less than a pint of whisky in a bottle on a table in the kitchen, that he had for his own personal use, and a little gin in a glass on the table. That he saw the officers coming in at the gate and had plenty of time to destroy the whisky but he had it there for his own personal use; that he with his family had lived at that place for five years.

On cross-examination he stated that he ran a barbecue stand, served sandwiches, and chicken dinners, had a beer license and served beer, did not sell intoxicating liquors. Before moving on the place he railroaded for 25 years; that he one time had pleaded guilty to unlawful possession of liquor.

Jack Mitchell, deputy court clerk of Seminole county, over defendant’s objections was permitted to identify an information filed in the county court of Seminole county, July 28, 1935, charging the defendant with unlawful possession of intoxicating liquor, and the commitment issued on a plea of guilty, committing Bill Knighton to the county jail for 30 days and to pay a fine of $50.

To justify or sustain a conviction of having possession of intoxicating liquor with intent to violate any provision of the prohibitory liquor law, there must be evidence sufficient, not only to prove possession, but also to prove criminal intent.

There was no competent evidence showing unlawful intent. The mere possession of intoxicating liquor, without intent to convey, sell or otherwise dispose of such liquor, is not a crime.

The statute (sec. 2626, Sts. 1931) as amended, Session Laws, 1933, ch. 153, sec. 3, p. 339, 37 Okla. St. Ann. § 82, provides that the keeping in excess of one quart of.any spirituous, vinous, fermented or malt liquors, which contains more than 3.2 per cent, alcohol, measured by weight, “shall be prima facie evidence of an intention to convey, sell or otherwise dispose of such liquors.”

In the instant case it was an undisputed fact that the amount of whisky seized was only about one pint.

To prove unlawful intent the state attempted to show the general reputation of the defendant’s place. The questions asked were leading and suggestive. However, the witness for the state did not qualify as knowing the general reputation of the defendant’s place, and for this reason the court erred in overruling the defendant’s objections.

.The word “reputation” when unqualified in common parlance means “general reputation”. What peace officers say to one another about a man’s place is not reputation. Reputation is what people generally in the community say of a place. Tarbutton v. State, 57 Okla. Cr. 442, 48 P.2d 877.

“ ‘Reputation’ is said to be the common knowledge of a community,” and “ ‘Reputation’ is defined to be the concurrence of many voices to the same fact.” 7 Words and Phrases, First Series, p. 6119.

It is not necessary to consider the other questions presented. For the errors indicated, and because the evidence is insufficient to sustain the verdict, the judgment of the lower court is reversed.

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


text:
    Ex parte HENRY FARVE.
    No. A—9505.
    May 27, 1938.
    (79 P. 2d 1034.)

      Henry Farve, for himself.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for the State.
   BAREFOOT, J.

The petitioner, Henry Farve, has filed in this court his original application for writ of habeas corpus, and as grounds therefor states: That he is unlawfully imprisoned, detained, confined, and restrained of his liberty by Jess F. Dunn, warden of the Oklahoma state penitentiary, at McAlester. His grounds for such contention being based upon the following allegations: He was received at the McAlester penitentiary, on May-28, 1927, and was admitted as No. 17654, from Carter county, to serve a term of one year and one day for grand larceny. That under the provisions of the Oklahoma Statutes, 57 Okla. St. Ann. §§ 110, 138, 232, for allowance of time for good behavior, and work time, it is alleged he should have completed the time to which he had been sentenced in a period of seven months and two days. That he was required to serve approximately four months and one day for court costs which caused his discharge on April 29, 1928, instead of December 29, 1927, and such confinement for costs was illegal and without authority under the law. Defendant, while serving the one year sentence for grand larceny, had a case before the Criminal Court of Appeals affirmed, wherein defendant was charged with the crime of rape, and sentenced to serve a term of 15 years in the penitentiary. Without being discharged petitioner was dressed in on this charge as of date of April 29, 1928, and contends that it should have been as of December 29, 1927, for the reasons above indicated. During the time petitioner was serving the 15 year sentence as No. 18921, and on June 6, 1932, he escaped from prison, and was absent for a period of 17 days, being returned on June 23,1932, but the record does not disclose that any time was deducted by the warden, with the exception of the 17 days he was absent. Petitioner escaped a second time on April 10,1933, and was absent for five days, being returned on April 15, 1933. For this infraction of the rules, the warden took 12 days’ good time in addition to the five days’ absence, or a total of 17 days. This would have been a total of 34 days to be added to petitioner’s time. Under the statute above indicated petitioner would have served his 15 years’ sentence in seven years, three months, and five days. According to petitioner’s contention his time under his 15 year sentence should have expired on April 4, 1935, and with the addition of the 34 days assessed by the warden by reason of his escapes, the date would have been May 10, 1935. Before the expiration of petitioner’s sentence for 15 years as No. 18921, he was convicted of grand larceny and sentenced to serve a term in the penitentiary of four years. He claims that he was marked “Received on this charge as of date of April 18,1936,” and it should have been as of date of May 10, 1935, for the reasons above stated. Under the statutes above referred to he would have served the four years sentence in two years, three months, and seven days, and that he should have been released on August 17, 1937. The records of the penitentiary show that he was not to be released until August 17, 1938.

The decisive question as to whether petitioner is at this time being unlawfully restrained primarily depends on whether or not he is chargeable with the four months and one day served on his first sentence for the costs in that case. This sentence was completed on the 28th day of April, 1928. Up to and prior to the 3d day of October, 1935, the date of the decision in the case of Ex parte Red Autry, 58 Okla. Cr. 88, 50 P.2d 239, it had been the holding of this court that when a judgment in a criminal action imposes confinement in the state penitentiary, and in addition thereto a fine and costs, that the defendant, at the termination of the confinement specified, may be held in prison until such fine and costs are paid at the rate of a dollar a day. Ex parte McCoy, 45 Okla. Cr. 52, 281 P. 813. Under section 2, Oklahoma Statutes 1931 (Okla. St. Ann. tit. 12, sec. 2), it is provided:

“The common law, as modified by constitutional and statutory law, judicial decisions and the condition and wants of the people, shall remain in force in aid of the general statutes of Oklahoma.”

Under this section the judicial decisions of this court were the law until the same were overruled and set aside. The law therefore as stated in the case of Ex parte McCoy, supra, was the law in this jurisdiction until the same was overruled and set aside by the decisions of this court in the case of Ex parte Autry, supra, decided on the 3rd day of October, 1935. It follows therefore that the sentence of petitioner having been fully served prior to the time of that decision, he would not be entitled to the credit claimed, and to his discharge on the 29th day of December, 1927, but rather on April 29, 1928. The date on which he was accepted on his 15 year term.

It is contended by the state in its response to the rule to show cause in this case that under the provisions of section 5341, Okla. Stats. 1931 (Okla. St. Ann. Tit. 57, sec. 138), that a convict who has “recorded against him a violation of the laws of the state cannot be allowed any deduction for good time”, and any attempt on the part of the warden, or entry in the prison records to the contrary, is without authority and void. No authority is cited to substantiate this proposition, and a careful reading of the above statute does not bear out this construction. The last section of the statutes states:

“Provided, however, that no convict shall be entitled to deduction for good time as herein provided in the event he has been guilty of misconduct or violation of the prison rules and regulations, unless relieved therefrom, by the warden

With reference to the 15 year sentence of petitioner, the record reveals that he was discharged on this charge on April 18,1936, and that he was received on the four year sentence on this same date. These prison records completely refute the idea that petitioner was being held the full time for the 15 year sentence by reason of his having escaped or broken the prison rules. We find no specific statute in this state which forfeits the good time allowed prisoners for good behavior and work while in prison, except as above quoted, and a fair construction of that section is that this is a matter for the discretion and consideration of the warden, to be entered upon the permanent records of the prison.

Under those records if there be no further cause petitioner will be entitled to his discharge on the 17th day of August, 1938.

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


author: PER CURIAM.

text:
    Ex parte RICHARD BRUNER.
    No. A—9523.
    May 27, 1938.
    (79 P. 2d 1029.)
    Joe S. Eaton, of Okmulgee, for petitioner.
    Jess L. Pullen, Asst. Atty. Gen., for the State.
   PER CURIAM.

Petition filed on behalf of said Richard Bruner alleges in substance that he is illegally restrained of his liberty by John Lenox, sheriff of Okmulgee county, that the pretense of said restraint is that your petitioner on the 20th day of May, 1934, on a preliminary examination had before H. D. Reed, justice of the peace in and for the city of Okmulgee, was held to answer on a complaint charging the crime of larceny from the person. Thereupon, by direction of the county attorney, the sheriff arrested petitioner on another charge, and petitioner demanded that said charge be immediately filed, that he be given an opportunity to furnish bail; that his request was refused; that petitioner on the following day filed an application for writ of habeas corpus in the district court of said county, and in obedience to said writ said court fixed his bond in the sum of $3,000, for his appearance before the district court on the 24th day of May, which bond was immediately given and approved, and he was released.

That on the 23rd day of May, on a charge of attempted robbery, filed before said justice of the peace, said petitioner was committed and has remained in said county jail. That on the 26th day of May a hearing was had upon said petition for writ of habeas corpus; testimony taken, at the conclusion of said hearing the writ was denied. That petitioner is now being held, bond fixed at $2,500, on said charges; that he is unable to furnish said bond.

Attached to said petition copies of said complaints filed before said justice, marked Exhibits “A” and “B”, also copies of the commitments issued.

No transcript of the testimony taken before the committing magistrate or the district court has been filed with said petition, and no hearing has been had upon the second complaint filed, and the same is now pending and undetermined before said magistrate.

Upon filing of the petition the respondent appeared by counsel and interposed a demurrer to the same. At the conclusion of the argument the cause was submitted.

Upon a consideration of the record presented in support of the application we are of opinion that it is sufficient to sustain the commitments, and that the demurrer to the petition should be sustained.

It is, therefore, considered, adjudged and ordered that the writ be denied.