text:
    C. F. KERKER v. SUPERIOR COURT OF POTTAWATOMIE COUNTY et al.
    No. A-6476.
    Opinion Filed Sept. 9, 1927.
    (259 Pac. 146.)
    F. H. Reily and J. H. Reily, for petitioner.
    Randall Pitman and Roy F. Lewis, for respondents.
   EDWARDS, J.

This is an original proceeding for a writ of prohibition against the superior court of Pottawatomie county and L. G. Pitman, judge.

This cause is presented on the petition with exhibits attached,-the response with exhibits, various affidavits, and certified copies of the records. From this record it appears that an information was pending in the county court of Pottawatomie county charging petitioner with having the possession of whisky with the unlawful intent to violate the prohibitory liquor law. On November 18, 1926, a motion to quash such information was presented which was sustained by the court. Thereupon the county attorney stated that he would dismiss every case on the docket, to which the county judge answered “All right.” Later the county judge gave written notice to the county attorney, in substance, that if he wished to dismiss any cases he should file his dismissal in writing. The county attorney then filed a written dismissal of all cases pending in the county court, including the case against petitioner. So far as we can determine from the record, no action thereon was taken by the county judge, and the cases are yet on the docket of the county court. A dismissal cannot be made by the county attorney, but must be made by an order of court. Sections 2916, 2917, Comp. Stat. 1921; Smallwood v. State, 14 Okla. Cr. 125, 167 P. 1154. On November 27 the county attorney filed an information in the superior court of Pottawatomie county charging petitioner with the crime of having possession of whisky with intent to violate the prohibitory liquor law, being the identical offense in reference to which the proceedings recited had been had in the county court. Thereafter the case came on for trial in that court, the jury returned its verdict finding defendant guilty and fixing his punishment at a fine of $500 and confinement in the county jail for a term of 60 days. The court then fixed a time to pass sentence, pending which this proceeding was instituted to prohibit that court and the judge thereof from passing sentence. The question for our determination, then, is, Does the pendency of a prosecution in one court having jurisdiction of the offense constitute a bar to a prosecution in another court having concurrent jurisdiction?

The statutes of this state do not forbid a prosecution in the same court or in a different court of concurrent jurisdiction where jeopardy has not attached. Section 21, art. 2, of the state 'Constitution, in part reads:

“* * Nor shall any person, after having been once acquitted by a jury, be again put in jeopardy of life or liberty for that of which he has been acquitted. Nor shall any person be twice put in jeopardy of life or liberty for the same offense.”

Sections 2435, 2436, and 2290, Comp. Stat. 1921, are statutory provisions relating to jeopardy.

Jeopardy does not attach until a person is put on trial before a court of competent jurisdiction under an information or indictment sufficient in form and substance to sustain a conviction and a jury has been impaneled and sworn. In re McClaskey, 2 Okla. 568, 37 P. 854; Schreiber v. Clapp, 13 Okla. 215, 74 P. 316; Dupree v. State, 14 Okla. Cr. 369, 171 P. 489.

The statutes of some of the states have settled this question by providing that, where different courts have concurrent jurisdiction of an offense, in certain contingencies one or the other shall have exclusive jurisdiction. This is illustrated in the case of State v. Chinault, 55 Kan. 326, 40 P. 662. The question here is not that which arises where the federal court and the state court have concurrent jurisdiction of the same offense. Where that situation arises, a rule of comity is followed by which the court first acquiring jurisdiction retains it until the jurisdiction is exhausted. This was stated by Taft, C. J., in the case of Ponzi v. Fessenden, 258 U. S. 254, 42 S. Ct. 309, 66 L. Ed. 607, 22 A. L. R. 879, where it is said:

“The forbearance which courts of co-ordinate jurisdiction, administered under a single system, exercise towards each other, whereby conflicts are avoided, by avoiding interference with the process of each other, is a principle of comity, with perhaps no higher sanction than the utility which comes from concord; but between state courts and those of the United States, it is something more. It is a principle of right and of law, and therefore, of necessity. It leaves nothing to discretion or mere convenience. These courts do not belong to the same system, so far as their jurisdiction is concurrent; and although they co-exist in the same space, they are independent, and have no common superior. They exercise jurisdiction, it is true, within the same territory, but not in the same plane; and when one takes into its jurisdiction a specific thing, that res is as much withdrawn from the judicial power of the other, as if it had been carried physically into a different territorial sovereignty.”

In civil cases the right of the court first acquiring jurisdiction is frequently regulated by statute, and the rule as announced in civil cases is not always equally applicable in criminal matters. Ewing v. Mallison, 65 Kan. 484, 70 P. 369.

The language used in some of the cases apparently bears out the contention of petitioner, but on an examination of such cases we find none directly in point. There appears to be an abundance of authority sustaining the position of respondent. In the case of Irwin v. State, 117 Ga. 706, 45 S. E. 48, it is held:

“In a criminal proceeding, the pendency of a former indictment for the same offense is no ground for a plea in abatement or in bar, although the accused may have been arraigned thereon and have filed a plea. Doyal v. State, 70 Ga. 134; Clark’s Crim. Proc. 115, 377, 407, and cases cited; Archb. Crim. Pr. & Pl. 336; Case of Swan & Jefferies, Foster’s Crown L. 105. Where several indictments for the same offense are pending against the same person, it is immaterial upon which he is first tried. Whenever he has been acquitted or convicted upon any one of them, he can plead such acquittal or conviction in bar of prosecution of any of the others.”

The same rule is announced in Harris v. State, 11 Ga. App. 137, 74 S. E. 895.

In Commonwealth v. March (Pa.) 94 A. 142, the court in syllabus said:

“That an indictment found against accused by a previous grand jury for the same offense was undisposed of did not preclude a trial of defendant under the later indictment.”

In Bartley v. State, 53 Neb. 310, 73 N. W. 744, it was held:

“In a prosecution for the crime of embezzlement, the pendency^ against the accused of a former information in the district court of another county, charging him with embezzlement of the same property within that county, is no ground for abatement.”

The rule here announced finds support also in the following cases: Nickolopolous v. Emery, Sheriff, 59 Utah, 588, 206 P. 284; Nash v. State, 73 Ark. 399, 84 S. W. 497; Carter v. State, 44 Tex. Cr. R. 312, 70 S. W. 971; State v. Goddard, 162 Mo. 198, 62 S. W. 697; Haas v. State, 8 Ind. App. 488, 36 N. E. 54; Gravett v. State (Ala. App.) 65 So. 850. See, also, Thompson v. United States (C. C. A.) 202 F. 401, 47 L. R. A. (N. S.)206.

This court in the case of Reed v. Territory, 1 Okla. Cr. 481, 98 P. 583, 129 Am. St. Rep. 861, held:

“(a) The fact that an indictment or information is pending against a defendant will not, of itself, prevent a grand jury from finding another indictment against the defendant for the same offense.
“(!b) The pendency of an indictment or information against a defendant, when there has been no jeopardy upon it, cannot be pleaded, either in abatement or bar to a second indictment or information for the same offense.
“(c) The pendency of an indictment or information, when there has been no jeopardy upon it, cannot be set up as ground for continuance, when trial is sought on a new indictment or information presented against the defendant for the same offense.”

In the body of the opinion the court said:

“* * * It is almost universally recognized that a grand jury can find a valid indictment against a defendant, notwithstanding the fact that another indictment or. informaion is pending against the accused for the same offense, and the pendency of the other indictment or information, when there has been no jeopardy on it, cannot be pleaded either in abatement or in bar of the second indictment. The indictment having been legally returned into court, it was the duty of the court to dispose of it, just as if the information was not pending. * * *”

See, also, Hensley v. State, 34 Okla. Cr. 345, 246 P. 886.

Having reached the conclusion that the pendency of the prior action is not a bar to a prosecution and may not be pleaded in abatement or bar to the later action it follows that the superior court might proceed to trial in the later action, and a conviction, if otherwise regular, is valid. This conviction is, of course, a bar to the action in the county court. The writ of prohibition is denied.

DOYLE, P. J., concurs.

DAVENPORT, J., absent, not participating.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    JOHN IVEY v. STATE.
    No. A-6230.
    Opinion Filed Sept. 17, 1927.
    (259 Pac. 275.)
    L. A. Wallace, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, P. J.

Appellant, John Ivey, was convicted on a charge of unlawful possession of intoxicating liquor and in accordance with the verdict of the jury was sentenced to pay a fine of $500 and serve a term of 6 months in the county jail. To reverse the judgment he appeals.

The record shows that when the case was called for trial appellant filed a motion to suppress the evidence because the same was obtained by an unlawful and unauthorized search and seizure, which motion was overruled.

John Russell, sheriff, testified substantially as follows: That with his deputy, Earnest Hulsey, he raided the defendant’s barber shop on Fourth street, Okmulgee, on September 10, 1925, between 3 and 4 o’clock in the afternoon; defendant had a customer in the chair and he told him that he would like to look him over. Defendant said, “All right.” That Hulsey passed into the back room and found a paper bag full of half pint bottles of whisky and identified the paper bag and the whisky found there. That they arrested him and put him in jail. He further testified that before he went to the barber shop he sent two boys to the place where the defendant was rooming to search his rooms and they had a search warrant.

The evidence was introduced over defendant’s objections.

Earnest Hulsey, deputy sheriff, was not called as a witness.

M. L. Lairmore, deputy sheriff, testified that on September 10th, armed with a search warrant, he went to the rooms occupied by John Ivey as his residence and searched the same. The court sustained a motion to strike testimony of this witness.

The state rested, and defendant moved for a directed verdict of not guilty on the ground that the evidence in the case was secured without a search warrant in violation of defendant’s constitutional rights, which motion was overruled; exceptions allowed.

John Ivey, in his own behalf, testified: That he conducted a two-chair barber shop at 805 West Fourth street. That about 3 o’clock in the afternoon -Sheriff Russell and his deputy, Hulsey, came in. Hulsey came in first and said, “Hello,” and went into the back room. Russell came in behind him and sat down. Witness was shaving a customer,. In a few minutes Hulsev came out and said, “Here it is.” Russell said, “I am looking for John Ivey.” Witness said, “That is me.” Russell said, “I will have to take you to jail.” Witness said, “All right.” That he let the man out that he had started to work on and Russell took him to jail. That the officers did not produce a search warrant. That he did not see the whisky and did not put it there and did not own the whisky. That a barber named Ball that had been around there for a day or two brought the sack in that afternoon and set it down in the room. That Ball worked for him about two weeks. That he was a married man, had lived in Okmulgee 7 or 8 months, coming there from Wichita Falls, where he lived 10 years). That he had never been convicted of an offense.

We deem it sufficient to say that in our opinion the court’s finding that the defendant waived his constitutional rights is not sustained by the evidence. The Bill of Rights guarantees:

“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated.” Const. art. 2, § 30.

The question here presented is essentially the same as that considered and determined in the case of Smith v. State, 34 Okla. Cr. 434, 246 P. 1109.

For the reasons stated in the opinion in -the -Smith Case, supra, and authorities quoted, we hold that the evidence challenged in this case was obtained by an unlawful search and seizure made by the officers in violation of section SO of the Bill of Rights above quoted.

It seems that appellant about two months ago was surrendered by his bondsmen and is now confined in the county jail under said sentence.

For the reasons stated, the judgment of the lower court is reversed, with direction to discharge the defendant.

EDWARDS and DAVENPORT, JJ., concur.


author: EDWARDS, J.

text:
    G. W. WHEAT v. STATE.
    No. A-6087.
    Opinion Filed Sept. 17, 1927.
    (259 Pac. 279.)
    Wilkinson & Hudson, for plaintiff in error.

      Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Pittsburg county of assault with intent to kill and was sentenced to serve a term of 2y2 years in the state penitentiary.

The record discloses that Tom Owen, a deputy sheriff, acting on some information, made a search for violations of the liquor law in some hilly country near the Canadian river. While so engaged, he came upon Will Wheat, a son of defendant, and two other men. He arrested Wheat, who had in his possession 6 half-gallon fruit jars of whisky. The other two men fled. It is the theory of the state that one of these men was defendant, and there is evidence tending to sustain this theory;. The evidence for the state is that an hour or two later, while returning with Wheat under arrest, defendant, with a shotgun, stepped from behind a tree and shot Owen. Owen returned the fire, and some 6 or 7 shots were exchanged. Defendant fled from the scene of the shooting and was arrested late that afternoon. Defendant admits the shooting, but contends that it was in his own necessary self-defense; that his meeting with Owen was casual, and upon his appearance Owen fired 2 shots at him before defendant returned the fire. These controverted questions of fact were submitted to the jury.

The first contention argued is that the court admitted incompetent and prejudicial evidence on the part of the state. This is directed to the testimony that defendant’s son was in the possession of whisky and was arrested just prior to the shooting. This testimony is not directly relevant to the issue, but it certainly tends to explain and throw light upon the transaction. The theory of the state is that defendant and Will Wheat were jointly engaged in the transaction that resulted in the arrest of Wheat, and that the shooting of Owen was the result of the arrest of Wheat. Under this view, the arrest of Wheat was an integral part of the transaction and furnished a motive for the shooting. There is testimony from two witnesses tending to beiar out the state’s contention that defendant was one of the two men who fled from the scene at the time Will Wheat was arrested. Further, the inference arising from this testimony makes the evidence complained of a part of the res gestae, as it is well settled that evidence is admissible as a part of the res gestae although it may tend to prove a different offense, where the different offense is so closely linked with the offense charged as to form a connected transaction, or where the evidence of the former explains or sheds light on the latter.

Complaint is next made that the court erred in permitting a witness to testify that some four days prior to the offense charged Will Wheat had stated, in substance, that Owen had interfered with their business and he was going to get the big “son of a bitch.” As stated, there was some evidencé of an acting together by defendant and his son, Will Wheat. Will Wheat had testified to a state of facts which would have justified defendant in shooting Owen. Owen had testified to a state of facts making defendant the aggressor and the shooting without provocation. The acts and conduct of a witness and statements made by him inconsistent and at variance with his testimony may be shown for the purpose of affecting his credibility. The state had a right to inquire about the interest, motive, and feeling of the witness Will Wheat and to inquire concerning any conspiracy, connection, or interest of defendant in the transaction for which Will Wheat was arrested. This evidence also tended to impeach the testimony of the witness Will Wheat and to show his interest, bias, and feeling.

Lastly, it is contended that the court erred in refusing defendant’s requested instructions 2 and 3. These requested instructions present defendant’s theory, in substance, that if he was assaulted by Owen that he had the right to defend himself and repel the attack with such force as reasonably appeared necessary. These requested instructions present defendant’s theory and are substantially correct. However, the substance of these requests is covered by the court’s instructions Nos. 4 and 5, and where instructions which contain a correct statement of the law are requested, there is no error in refusing them if the principle of law requested is covered by the court’s general charge. Smith v. State, 14 Okla. Cr. 250, 174 P. 1107.

The case is affirmed.

DOYLE, P. J., concurs.

DAVENPORT, !J., absent, not participating.


author: BESSEY, P. J.

text:
    Ex parte MIKE DEAL.
    No. A-6426.
    Opinion Filed Sept. 22, 1927.
    (259 Pac. 282.)
    G. W. Cornell, for petitioner.
    Bond, Hatcher & Bond, for respondent.
   BESSEY, P. J.

In the petition for writ of habeas corpus it is averred that Mike Deal is illegally restrained of his liberty by the sheriff of Washita county. The cause of restraint.as alleged is by virtue of an executive warrant issued by the Governor of this state on requisition from the Governor of Tennessee.

Upon presentation of the petition, the writ issued, returnable Oictober 28, 1926, at which time respondent appeared in court with the petitioner. On behalf of the petitioner it was alleged that the affidavit, as shown by a certified copy of the same, was insufficient to charge a crime against the petitioner, and that the order of his arrest and detention was therefore illegal and void.

At the conclusion of the argument it was the opinion of the court that the affidavit upon which the request of the Governor of Tennessee for the requisition warrant from the Governor of the state of Oklahoma was wholly insufficient to charge an offense within the meaning of the statute of the United States, relating to requisitions (18 USCA §§ 651-668), in that said affidavit failed to state the name of the owner of the property, the character of the property, or the date of its alleged removal from the state of Tennessee, or facts sufficient to show that a crime had been committed or that the petitioner was a fugitive from justice.

For the reasons stated, it is adjudged and ordered that the writ be allowed, and the petitioner be discharged from custody.

DOYLE and EDWAEDS, JJ., concur.


text:
    Ex parte L. N. BROWN.
    No. A-6619.
    Opinion Filed Sept. 22, 1927.
    (259 Pac. 280.)

    Blanton, Osborn & Curtis, for petitioner.
    The Attorney General and Mac Q. Williamson, for respondents.
   DOYLE, P. J.

The petition for writ of habeas corpus shows that the cause of restraint, as alleged, is by virtue of an executive warrant issued by the Governor of the state of Oklahoma on a requisition made by the Governor of the state of Kansas.

It is averred that the purported affidavit is insufficient in law to charge the commission of an offense against the laws of the state of Kansas and is insufficient to charge a crime against this petitioner, and that the order of arrest and detention is illegal and void. That application has heretofore been made to Tom P. Pace, Judge of the Fourteenth Judicial District, for a writ of habeas corpus, <and that upon a hearing thereof said writ was denied.

The writ issued to respondents R. D. Blanton, sheriff of Garvin county, and E. R. Chapin, agent of the state of Kansas, returnable May 25, 1927.

A certified copy of the original affidavit filed in said court on May 18, 1927, is as follows:

“In the City Court of Wichita, in and for Wichita City Township, in said County and State. The State of Kansas v. L. N. Brown.
Affidavit.
“State of Kansas, Sedgwick County — ss:
“-, being duly sworn, on oath and says that on the 1st. day of April, A. D. 1927, in the county of Sedgwick and state of Kansas, one L. N. Brown did then and there unlawfully, feloniously, intentionally, and with the intent to cheat and defraud the mortgagee, the Commercial Investment Company, a corporation, organized and existing under and by virtue of the law, conceal the following personal property, to wit: 0>ne Hudson brougham automobile, motor No. 419234, serial No. 723098, of the value of $1,786, on which said personal property there was a valid and existing mortgage in the sum of $1,298 theretofore given by the said L. N. Brown to the said Commercial Investment Company, as aforesaid, the said Commercial Investment Company having a lien on all of said property by virtue of said mortgage and note secured thereby in the amount of $1,298; that there is now due and owing on said note and mortgage the sum of $1,049; that both said note and said mortgage are valid and subsisting obligations and in full force and effect; that said mortgage is, in words and figures, as follows, to wit:
“That the said L. N. Brown concealed the said personal property with the intent then and there to cheat and defraud, and did then and there cheat and defraud, the said Commercial Investment Company, as aforesaid, out of the said sum of $1,049, contrary to.
“William H. Jordan.
“Subscribed and sworn to before me this 18th day of May, 1927. H. T. Dedrick, Judge of the City Court of Wichita, in and for Wichita City Township, Sedgwick County, Kansas.”

Annexed to the complaint is a copy of the purported mortgage, which is unsigned, and which does not recite that the same was given by petitioner, L. N. Brown, or any other person.

It is well settled that the question as to whether the person demanded and detained on an extradition warrant is substantially charged with a crime is a question of law, which on the face of the papers is open to inquiry on writ of habeas corpus. Ex parte Wildman, 14 Okla. Cr. 150, 168 P. 246.

Unless the affidavit, the complaint or information charges the person sought with the commission of a crime, it is fatally defective, and a warrant for his extradition is unauthorized. Ex parte Offutt, 29 Okla. Cr. 401, 234 P. 222; Ex parte Hill, 34 Okla. Cr. 120, 245 P. 663.

In Roberts v. Reilly, 116 U. S. 80, 6 S. Ct. 291, 29 L. Ed. 544, it is held that the papers must make it appear that the person demanded is substantially charged with a crime against the laws of the state from whose justice he is alleged to have fled by an indictment or affidavit, certified by the Governor as authentic.

In the instant case, it was the opinion of the court that the affidavit or complaint as shown by the petition and the respondents’ answer was insufficient to charge petitioner with the commission of any offense, in that it omitted the name of the complaining witness and the verification was insufficient, and that for this reason the warrant for his extradition was unauthorized.

For the reasons stated, it was adjudged and ordered that the writ be allowed and petitioner be discharged from custody.

EDWARDS and DAVENPORT, JJ., concur.


text:
    Ex parte LEE CENTELL.
    No. A-6743.
    Opinion Filed Sept. 22. 1927.
    (249 Pac. 276.)
    Momau Pruiett and W. H. Warren, for petitioner.
    J. H. Lawson, Asst. Atty. Gen., and Leroy Cooper, Asst. County Atty., of Tecumseh, for respondent.
   DOYLE, P. J.

Petitioner, Lee Centell, filed in this court on August 29, 1927, a petition wherein he avers that he is illegally restrained of his liberty by Frank Fox, sheriff of Pottawatomie county; that his unlawful imprisonment consists in this, to wit: That a warrant of commitment was illegally issued by J. J. Dutton, justice of the peace, Tecumseh township, said county, upon a preliminary examination had upon a complaint wherein petitioner, Lee Centell, D. L. Ellard, and Delmar Hull were charged with the crime of murder, alleged to have been committed by stabbing and cutting one Ellis Baker, in said county, on August 24, 1927; that by information filed in the superior court of Pottawatomie county he is charged with the murder of said Ellis Baker; that under the evidence introduced on his preliminary examination, the proof of his guilt is not evident nor the presumption thereof great; and petitioner is not guilty of the crime of murder; that after his arraignment in the superior court of Pottawatomie county and after entering his plea of not guilty, he made application to said court to be admitted to bail, which application was by said court denied.

A rule to show cause was entered and issued, returnable August 31st before this court, at which time the cause was submitted upon the transcript of the testimony taken before the committing magistrate and the argument of counsel.

The transcript discloses the fact that Ellis Baker was killed in the town of Earlsboro, in said county, on the date alleged; that the defendant, Delmar Hull, following a fight with the deceased in a certain house in said town, followed him out to where a car was parked on the street and there stabbed him several times. The evidence tends to show that petitioner and the other defendant, Ellard, were present and in a measure aided the defendant, Hull, in the commission of the homicide.

Without expressing any opinion upon the weight of the evidence or the culpability of the various parties accused of this homicide, we are of the opinion that the evidence adduced upon the preliminary examination was sufficient to warrant committing petitioner for trial for the crime of murder. We are -also of the opinion that under the testimony submitted the petitioner herein should be allowed bail.

It is therefore ordered that petitioner be admitted to bail in the sum of $20,000, bond to be conditioned as by law required, to be approved by the court clerk of Pottawatomie county; that when such bond is given and approved by the court clerk of said county the petitioner shall be discharged.

EDWARDS and DAVENPORT, Jtf., concur.


author: DOYLE, J.

text:
    STATE ex rel. A. P. DAVIS v. WAYNE W. BAYLESS, District Judge.

      No. A-6406.

      Opinion Filed Sept. 22, 1927.
    (259 Pac. 606.)
    Chari °s Skalnik, for petitioner.
    Edwin Dabney, Atty. Gen., N. B. Johnson, County Atty., and H. Tom Eight, for respondent.
   DOYLE, J.

On application for writ of mandamus it appears from the application and the return to the rule issued to show cause why the writ should not issue that on September 13, 1924, an information was filed in the district court of Rogers county, charging jointly C. E. Young, A. P. Davis, E. M. Jones and M. O. Conner with having killed and murdered one Homer McMillan, in said county, on the 1st day of October, 1924; that on November 19, 1924, the case was called for trial, the state announced ready and the defendants each asked a severance, which was granted, and the state elected to put C. E. Young on trial; on November 24th, the jury, having deliberated for some time, informed the court that they were unable to agree and were by the court discharged.

At that time it appeared that the amount in the .court fund was insufficient to try the petitioner herein, or either of his codefendants, and on said 24th day of November said cause was stricken from the assignment; it appears that petitioner A. P. Davis was admitted to bail and released on bond prior to October 1, 1924, and continuously since said time has been at liberty under bond.

On October 26, 1925, said cause was again set for trial on November 17, 1'925, and on said day the cause proceeded to trial as to the defendant Young, and he was convicted of manslaughter and sentenced to imprisonment for a term of 4 years.

Thereupon the cause against petitioner was called for trial and his attorneys of record, John Ward and A. W. Kelley, announced in open court that they no longer represented the defendants Davis and Jones. At said time the state announced ready for trial, the petitioner Davis was called and was not present. No bond forfeiture was taken, and the cause was continued as to Davis and Jones for the term and dismissed as to Conner on motion of the state.

The regular terms of court in said district No. 2 in Rogers county, as provided by law, are the third Mondays of April and November of each year.

The petitioner avers that the said trial at said terms of court were not postponed or continued upon his application, and that he never consented to a postponement or continuance of the same.

The petition further avers:

“That said case was again set for trial for the 16th day of June, 1926, at which time it was not tried, and that on the 26th day of June he appeared in open court and filed his motion to dismiss said cause for the reason that more than two terms of the district court were held after the said information was filed, and that the trial of said cause was postponed for all of said terms of court by the prosecution, without any good cause shown by the prosecution, a copy of which motion is annexed to the petition; that on the 21st day of September, 1927, said motion to dismiss was presented and was by the court overruled, and a dismissal of said cause denied.”

And he further averred that for the reasons stated he has been prejudiced in his constitutional right to a speedy trial.

In conclusion, petitioner prays that an order be made ordering Wayne W. Bayless, Judge of the District Court, Judicial District No. 2, Rogers County, to forthwith dismiss said cause pending against him, the said A. P. Davis.

Bill of Rights, art. 2, § 20, of the Constitution declares that:

“In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed.”

The Code of Criminal Procedure provides:

“If a defendant, prosecuted for a public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of court in which the indictment or information is triable after it is filed, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown.” Section 2913, C. S. 1921.

The established rule in this state is that, in the absence of a proper record affirmatively showing the contrary, the presumption is that the court had continued the case for a presumably lawful cause. The burden was on the defendant, in support of his motion to dismiss, to show that the laches was on the part of the state, through its prosecuting officers; otherwise, presumption is that the delay was caused by or with the consent of the defendant himself, and when on bail he must demand a trial or resist the continuance of the case from term to term. A defendant who has never demanded or been refused trial is not entitled to a discharge, under the constitutional provision (article 2, § 20) and the statutory provisions (section 2913, C. S. 1921). Francis v. State, 26 Okla. Cr. 82, 221 P. 785; Weeks v. State, 16 Okla. Cr. 443, 183 P. 932; Bowes v. State, 7 Okla. Cr. 316, 126 P. 580; Ex rel. Eubanks v. Cole, District Judge, 4 Okla. Cr. 25, 109 P. 736.

On October 18, 1926, at the conclusion of the argument of counsel, the court held that on the undisputed facts good cause for the continuance had been clearly shown, and the motion to dismiss the prosecution against the petitioner was by the lower court properly denied; that for the reasons stated the writ must be denied.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    J. I. McKEE v. STATE.
    No. A-6094.
    Opinion Filed Sept. 24, 1927.
    (259 Pac. 607.)

      Lee G. Gill, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson. Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Lincoln county of manslaughter in the first degree and was sentenced to serve a term of 7y2 years in the state penitentiary.

A brief statement of the facts appearing in evidence is about as follows: Defendant was an oil field worker residing at the town of Stroud; he had formerly been convicted of a felony in the state of Texas. On the day of the homicide he took his wife to a well at which he was working, and later she returned home in a taxi driven by one Knuckles, and soon thereafter defendant went to his home and found Knuckles there standing at the door talking with his wife. Defendant was angered and kicked Knuckles out of the house and here contends Knuckles had insulted his wife. Later in the evening defendant and one Vance went from defendant’s house down town, and during the evening a claim was made that Vance or defendant had short changed a storekeeper and Knuckles took it upon himself to require them to adjust the matter, and thereby the ill feeling between Knuckles and defendant was further intensified. While defendant and Knuckles were walking down the main street of Stroud in front of the Pullman Cafe defendant, who was in front, suddenly whirled and fired three shots at Knuckles, one of which struck Ross King, a bystander, in the head, from which he died. Defendant testified that he acted in self-defense; that he looked over his shoulder and saw Knuckles making a move as if to draw a pistol and that he then whirled and fired the shots at Knuckles. Pending trial defendant twice broke jail, but was recaptured.

Several assignments of error are presented, but only one is insisted upon in the brief; that is, that the trial court erred in permitting two witnesses, B. H. Wag-goner and E. E. Cole, to testify in chief. The list of names served contained that of B. H. Waggoner and - Cole. The name Cole does not contain any initial or any information whether the witness was male or female. No post office followed either name. Defendant raised this objection at every stage of the proceeding and declined to answer ready for trial for this reason.

Section 20 of article 2 of the Constitution of Oklahoma is in part as follows:

“* * * In capital cases, at least two days before the case is called for trial, he shall be furnished with a list of the witnesses that will be called in chief, to prove the allegations of the indictment or information together with their post office addresses.* * *”

This provision of the Constitution is so plain we do not understand why a prosecuting officer will insist on putting a defendant on trial in a capital case without having complied with it. Nor do we understand why a trial judge will require a defendant to go to trial where the objection is timely made without requiring it to be complied with. To do so is a pulpable error both on the part of the prosecuting attorney and the trial judge. It is not a sufficient answer for a county attorney to say thatffie does not know the name or address of a witness to be called in chief. It is a part of his business to know and the processes of the state are available to him to ascertain them. At least, if he does not know and is not able to ascertain he should so describe the witness and so give his place of residence or location that a defendant could not be misled and would have the same information as the state as to the identity, residence, and whereabouts of the witness. Waggoner and Cole were eyewitnesses to the shooting; neither had testified at the preliminary. This court in construing this clause of the Constitution has held that a defendant confined in jail does not have to demand a list of the witnesses; the Constitution makes the demand for him, and the trial court is without authority to force him to trial until this provision has been complied with. Goben v. State, 20 Okla. Cr. 220, 201 P. 812. See, also, Mullen et al. v. State, 28 Okla. Cr. 218, 230 P. 285; Spess v. State, 13 Okla. Cr. 277, 164 P. 131; Howington v. State, 30 Okla. Cr. 243, 235 P. 933.

We have also held that this provision should be construed in the reason and spirit of the Constitution and may be waived. State v. Frisbee, 8 Okla. Cr. 406; 127 P. 1091; Addington v. State, 8 Okla. Cr. 703, 130 P. 311; Franklin v. State, 9 Okla. Cr. 178, 131 P. 183; Galbert v. State, 12 Okla. Cr. 571, 160 P. 332; Tallon v. State, 22 Okla. Cr. 89, 210 P. 309.

The only question for our determination is whether this error requires a reversal. Under a federal statute (18 USCA § 562) requiring the delivery to defendant two days before trial a list of witnesses to be produced by the prosecution, this court held that it was error to permit a witness to testify where the witness’ name had not been served on defendant, but that the error was not reversible where the testimony of the witness was cumulative. Havill v. United States, 5 Okla. Cr. 334, 115 P. 119. That is the situation here. Other witnesses whose names with post office addresses were correctly given in the list served testified fully as to all the circumstances of the homicide. The evidence of the two witnesses objected to was cumulative. Except for this fact the error presented would require a reversal. The record discloses clearly the guilt of defendant; the punishment assessed appears to be light under all the circumstances shown.

The case is affirmed.

DOYLE, P. J., concurs.

DAVENPORT, J., absent, not participating.


text:
    WALKER FOREMAN v. STATE.
    No. A-6176.
    Opinion Filed Sept. 23, 1927.
    (259 Pac. 605.)

      Clark Nichols, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State!
   DOYLE, P. J.

Walker Foreman was convicted on an information charging the “possession of 100 gallons of a compound mixture, mash, wort and wash known as whisky beer, fit for distillation and for the manufacture of whisky,” and in accordance with the verdict of the jury was on February 13, 1926, sentenced to pay a fine of $100 and confinement in the county jail for 30 days. From the judgment an appeal was taken by filing in this court on April 12, 1926, petition in error with case-made1,.

The Attorney General has filed a motion to dismiss for the reason that the said Walker Foreman, plaintiff in error, left the jurisdiction of the court and is now outside of the state of Oklahoma in the state of Missouri as appears from the affidavits of Milam M. King, county attorney, and Ed Allen, deputy sheriff of McIntosh county.

The affidavits attached show that said plaintiff in. error has been for. the past year outside the state of Oklahoma and is now in Kansas City, Mo.; that at the time of the final submission of this cause on briefs May 30, 1927, said plaintiff in error was absent from the state.

Under repeated decisions of this court it is held that where a defendant, who has been convicted and sentenced, perfects an appeal, this court will not consider the appeal unless the defendant is where he can be made to respond to any order or judgment which may be rendered in the case, and where a defendant makes his escape from the custody of the law and becomes a fugitive from justice, pending the determination of his appeal, the same will be dismissed. Boswell v. State, 14 Okla. Cr. 336, 170 P. 1175; Christman v. State, 22 Okla. Cr. 67, 209 P. 969.

Plaintiff in error having failed to controvert the motion to dismiss the appeal and it being conceded that he has left the jurisdiction of the state of Oklahoma and cannot be made to respond to any affirmative judgment or order which may be rendered in the case, the appeal herein is dismissed. Mandate forthwith.

EDWARDS and DAVENPORT, JJ., concur.


text:
    HENRY HILDEBRAND v. STATE.
    No. A-6099.
    Opinion Filed Sept. 24, 1927.
    (259 Pac. 601.)
    Wieck & Armstrong, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Kay county on a charge of selling intoxicating liquor, and was sentenced to pay a fine of $250 and to serve 90 days in the county jail.

There is evidence, although it is not overwhelming, which, under the holding of this court, that the weight and credibility of the evidence is for the jury, is sufficient to sustain the verdict. The defendant, however, offered testimony that he was not at the place of the sale at the time charged, sharply conflicting with the evidence for the state. The principal contention argued is that the court admitted incompetent evidence prejudicial to defendant, without which the defendant would not have been convicted. This assignment of error is directed to testimony offered by the state that the Oxford Rooms, in the town of Tonkawa, where the sale is alleged to have taken place, bore a bad reputation as a place where intoxicating liquors were sold.

Where a defendant is prosecuted for maintaining a place where intoxicating liquors are unlawfully kept for the purpose of violating the prohibitory law, the reputation of the place as one where intoxicating liquors are kept and sold may be shown. The offense in such case is a continuous one, and the character of the place is an element of the offense, it being said that this constitutes a method by the keeper for advertising purposes and as an asset and source of revenue to his unlawful business. Hurst v. State, 25 Okla. Cr. 102, 219 P. 151; Glover v. State, 25 Okla. Cr. 227, 219 P. 725; Hill v. State, 27 Okla. Cr. 73, 224 P. 736.

Where, however, the offense charged is not a continuing offense, the character and reputation of the place where the offense is charged to have been committed is not an element and is not admissible. Where the offense •charged is based upon a single specific transaction, such as a transporting or a sale, the general reputation of the defendant or the reputation of the place where the offense is charged to have been committed is not admissible. Tindell v. State, 18 Okla. Cr. 721, 196 P. 555; Hill v. State, supra.

Without this incompetent evidence the jury might not have found defendant guilty. After the admission of this evidence the trial judge evidently concluded that he had erred in admitting it and attempted to instruct the jury to disregard it by his instruction No. 6, as follows :

“You are further instructed in this case that the court permitted Witnesses Hodges, Rader, and Long to testify in rebuttal as to the reputation of the Oxford Rooms, the place where it is alleged in the information that the defendant sold to Carl Lembacker one pint of whisky. Said testimony was to the effect that the witnesses were acquainted with the general regulation of the Oxford Rooms as to being a place where intoxicating liquors were kept, sold, and given away, and that the reputation was bad. You are instructed not to consider this testimony in arriving at your verdict, for the reason that there was no testimony by the defendant, or his witnesses, that the said Oxford Rooms was a place where whisky was not kept for sale or given away.”

This attempt to strike out the evidence seems to place the burden on the defendant to prove that the Oxford Rooms was not a place where whisky was kept for sale. To say the least, it is confusing and ineffective.

For the reason assigned, the case is reversed and remanded.

DOYLE, P. J., concurs.

DAVENPORT, J., absent, not participating.


text:
    Ex parte W. W. JENNINGS.
    No. A-6588.
    Opinion Filed Sept. 24, 1927.
    (259 Pac. 600.)

      Hardie & Grim, for petitioner.
    Sigler & Jackson, for respondent.
   DOYLE, P. J.

Petition for writ of habeas corpus filed in this court April 28,1927, shows: That petitioner, undersheriff of Cleveland county, received from Geo. P. Church, justice of the peace of Moore, in said county, a warrant for the arrest of Theo Torgerson, on a charge of driving on the public highway at a greater speed than 35 miles an hour. On March 22, 1927, he arrested said Torgerson at Ardmore. On the same day A. E. Walden, judge of the district court of Carter county, issued a writ of habeas corpus, directing petitioner to produce the body of said Torgerson before said court on April 4, 1927, and released said Torgerson on bail pending the hearing. That petitioner being advised by the county attorney of Cleveland county that said warrant was illegal, in that it did not run in the name of the state of Oklahoma, it would be useless to resist the granting of the writ. On said return day the writ was allowed and the petitioner, Torgerson, discharged. That on March 23, 1926, a warrant issued out of the county court of Cleveland county, based upon an information filed by the county attorney, commanding the arrest of said Theo Torgerson for the same offense; the case in the justice court having been previously dismissed by the said county attorney. That said warrant was placed in the hands of this petitioner for service and he executed the same by arresting said Theo Torgerson on the 27th of April, 1927, on which date he executed an appearance bond to appear before the county court of Cleveland county on the llfh day of July, 1927, and was discharged from custody. That on the 27th day of April, Sigler & Jackson filed an application in the district court of Carter county for an order to cite this petitioner for contempt in arresting said prisoner upon the same charge upon which he was discharged by writ of habeas corpus. A copy of said application is annexed to the petition.

Petitioner alleges that said restraint is illegal and unauthorized by reason of the foregoing facts, and for the further reason that the judge of said district court had no jurisdiction of the subject-matter of this petition, and was wholly without power to issue the order commanding the arrest of petitioner, and that the action by said judge in issuing said order was without authority of law and void.

On the return day the respondent filed answer, setting forth that immediately upon receiving the rule to show cause he complied with the order of the court and released the said W. W. Jennings on his own recognizance, and further answered that on the 28th day of April came on to be heard the citation for contempt against W. W. Jennings, and he, having pleaded not guilty, requested the court to give him five days in which to file a response, which was by the court granted and the case set for trial May 8th, and the court fixed the appearance bond in the sum of $500, and said Jennings was ordered to be held in custody by the sheriff until said bond was made and approved by the clerk of this court.

The application for order to cite for contempt, after reciting the foregoing facts, concludes as follows:

“That the said Jennings in so arresting the said petitioner violated the orders of the court and the said Jennings should be cited by the court to show cause why he should not be punished for contempt. The petitioner prays the court to make an order directing the said Jennings to be arrested and held to answer the charge of contempt of the orders of this court, as hereinbefore set out. [Signed] Sigler & Jackson, Attorneys for Petitioner.”

The case was submitted for decision upon the petition, the answer, and the return to the writ.

It is insisted by counsel for petitioner that the record shows want of jurisdiction to issue the citation which brought the petitioner before the court, because the facts stated in the application for the citation do not constitute a contempt of court, and that said application was not verified and no affidavit or statement under oath was made in support thereof.

In Emery v. State, 29 Okla. Cr. 29, 232 P. 128, we said:

“It is essential to the validity of proceedings in contempt, subjecting a party to a fine and imprisonment, that they show a case in point of jurisdiction within the provisions of the law by which such proceedings are authorized.”

In Nichols v. State, 8 Okla. Cr. 550, 129 P. 673, we said:

“Criminal contempts are prosecuted to preserve the power and vindicate the dignity of the courts, and to punish the offender.” By “the issuance of attachment or rule to show cause, a criminal action is commenced and the accused is entitled to all the constitutional guaranties in criminal prosecutions, as provided by section 20 of the Bill of Rights, Const. art. 2.”

■ In Wofford v. State, 33 Okla. Cr. 288, 243 P. 988, it is held:

“Under Const. art. 2, § 25, and Comp. St. 1921, § 1699, a proceeding to punish for indirect contempt must be instituted by affidavit, complaint, or information, setting forth the facts, or by a statement of them in writing by the court or judge thereof. The accused must then be notified in writing of the accusation, and have a reasenable time for defense, and upon demand shall have a trial by jury.”

It is the settled rule that there must be contempt in order to justify punishment for that offense. In our opinion, the facts stated in the application do not constitute a contempt of court.

The county attorney of Cleveland county was not precluded from dismissing the charge pending against Torgerson before the justice of the peace and thereafter filing an information in the county court against said Torgerson, and the service of the warrant of arrest by petitioner did not constitute a contempt of said district court.

An examination of the record discloses that, upon his second arrest in the city of Ardmore, said Torgerson asked the petitioner to take him before a magistrate • in Carter county to be admitted to bail as provided by statute (section 2452, C. S. 1921) for his appearance before the county court of Cleveland county. There is no question about the fact that his request was granted and said Torgerson gave bail and was thereupon discharged.

On the record before us, and for the reason stated, we are of the opinion that said district court was without jurisdiction in the proceedings had in committing the petitioner. Accordingly the writ is allowed and the petitioner discharged.

EDWARDS and DAVENPORT, JJ., concur.


author: EDWAKDS, J.

text:
    HENRY MAYSE v. STATE.
    No. A-5859.
    Opinion Filed May 28, 1927.
    Rehearing Denied Sept. 24, 1927.
    (259 Pac. 277.)

      John W. Tillman, Fred A. Tillman, and Welcome D. Pierson, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   EDWAKDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county on a charge of manslaughter in the second degree, and was sentenced to the state penitentiary for a term of three years.

About 8 o’clock in the evening on the date charged in the information, Arnold Peck, with his mother, Mrs. Josie Peck, was driving a Ford coupe south on Hudson street, Oklahoma City. As he came to the intersection of Fourth street and Hudson, a large car with four persons in it drove along Fourth street, going east, at a speed estimated from 25 to 35 miles per hour, and ran the stop line, and had a collision with the coupe driven by Peck. This collision tore a front wheel from the coupe, turned it over, and as a result Mrs. Josie Peck received injuries which resulted in her death the following day.

It is first contended that the information is insufficient; it being argued that the state sought to chargemanslaugher by one engaged in the commission of a misdemeanor, such misdemeanor being the violation of section 2, c. 16, Session Laws 1923, defining an offense for any person to drive an automobile at a speed greater than fifteen miles per hour in approaching a street intersection where the driver does not have an unobstructed view of 150 feet. The charging part of the information in part reads:

“* * * Henry Mayse * * * did then and, there willfully, unlawfully, wrongfully, and feloniously commit the crime of manslaughter in manner and form as follows, to wit: That is to say, the said defendant * * *did then and there willfully, unlawfully, wrongfully, and feloniously drive and operate a certain automobile, to wit, a Studebaker touring car, at a high and excessive rate of speed, to wit, approximately 25 miles per hour, in a manner endangering the lives and property of others, at and near the intersection of certain highways, to wit, Fourth street and Hudson avenue, in Oklahoma City, said -county and state he, said defendant, not having an unobstructed view of 150 feet while approaching said intersection, and while so driving said automobile as aforesaid, he, said defendant, did then and there willfully, unlawfully, wrongfully, and feloniously and recklessly strike with said automobile a certáin Ford coupe, in which said Ford coupe one Josie Peck then and there was riding, then and there and thereby inflicting certain mortal wounds upon the body of her, said Josie Peck, of which mortal wounds she, said Josie Peck, did linger, and lingering did on the 29th day of January, A. D. 1925, die. * * *”

Defendant in effect asserts that, since the state intended to charge manslaughter in the first degree by one engaged in the commission of a misdemeanor, and since this court in Missel v. State, 33 Okla. Cr. 376, 244 P. 462, held invalid the act of the Legislature in attempting to define this misdemeanor as too indefinite, the information fails to charge any offense. As the defendant was convicted of manslaughter in the second degree, it is immaterial whether or not the information correctly charges first degree manslaughter, if it sufficiently charges manslaughter in the second degree. Loundenback v. Territory, 19 Okla. 199, 91 P. 1030, 14 Ann. Cas. 988. Manslaughter in the second degree is defined in section 1745, Comp. Stat. 1921, as follows:

“Any killing of one human being by the act, procurement or culpable negligence of another, which, under the provisions of this chapter, is not murder, nor manslaughter in the first degree, nor excusable or justifiable homicide, is manslaughter in the second degree.”

The allegation that defendant drove an automobile at a high and excessive rate of speed, approximately 25 miles per hour, in a manner endangering the lives and property of others at the intersection of the streets named, and did recklessly strike the Ford coupe in which the said Josie P'eck w;as riding, inflicting wound,s which caused her death, is a sufficient charge that the death of Josie Peck was by the culpable act of defendant. Nail v. State, 33 Okla. Cr. 100, 242 P. 270. The further allegation that the act occurred at a street intersection, where the view was not unobstructed, may be treated "as a further statement of negligence or as surplusage.

It is next argued that the evidence is insufficient to sustain the verdict and judgment. The particular deficiency stressed is that it is not shown that defendant was driving the car which collided with the Ford coupe and caused the death of Josie Peck. The collision occurred at night. The witnesses in the main agree that a large car containing four men collided with the coupe, and that the large car did not stop, but drove rapidly away. One witness testified that he thought it was a Studebaker. A police officer testified that he came upon the scene shortly after the collision; that he had the first three numbers of the car, and on returning to the station found defendant there with the car which had been in a collision. It was proven that at about this time defendant was driving a large Studebaker, containing three other men; that it had a collision, and was considerably injured on the left side. Shortly after defendant reported a collision at police headquarters. The county attorney testified that the following day defendant told him he had taken a drink or two, and was driving across this street when the collision occurred. There are some other incidental circumstances. Neither defendant nor any of the persons with him in the car testified. The evidence is circumstantial, but sufficient to satisfy the requirements of the law. When there is sufficient evidence, although circumstantial, to sustain the verdict and judgment, this court will not reverse on the ground of insufficiency.

It is next contended that the instructions are erroneous; it being argued that the evidence made a case of manslaughter in the first degree or nothing, and that the instruction on the law of manslaughter in the first degree was prejudicial. This relates generally to the first assignment of error, just considered and disposed of by what is said there.

The final complaint is that the court erred in excluding evidence offered by defendant. It appears that one Bentley was used as a witness by the state, and on cross-examination defendant sought to show that he had been arrested on a charge of obtaining money under false pretense and had been released without bail, which offer was excluded. It is urged in substance that this was material, as affecting the credibility of this witness, as showing his desire to ingratiate himself with the prosecuting officers. This, we think, would be a rather strained view of the evidence and surrounding circumstances, particularly as his evidence was along the same line as that of several other witnesses, and it might have been stricken or omitted without affecting the state’s case. If the evidence was competent for the purpose offered, which is extremely doubtful, it would not warrant a reversal. Porter v. State, 8 Okla. Cr. 64, 126 P. 699; Slater v. U. S., 1 Okla. Cr. 275, 98 P. 110.

Viewing the entire record, it is sufficiently proven the defendant was driving the automobile that collided with the Ford coupe. He had been drinking. He drove, without stopping, into the street intersection. He drove rapidly away after the collision, indicating he knew himself at fault; for it cannot be contended that a collision such as this could have been unknown to him and the other occupants of the car. The result to defendant is serious, but there is sufficient proof of culpable negligence. The defendant had a fair trial, and there has been no miscarriage of justice.

The case is affirmed.

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


text:
    CHICK BLANTON v. STATE.
    No. A-6090.
    Opinion Filed Sept. 24, 1927.
    (259 Pac. 655.)

      A. W. Turner, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Ottawa county on a charge of maintaining a public nuisance and was sentenced to pay a fine of $100 and to serve 30 days in the county jail.

The information charges in substance that defendant maintained and operated a public dance hall as a nuisance at a concrete block building, formerly a bottling works, so as to annoy, injure, and endanger the comfort and safety and to offend the decency of the neighborhood. The record discloses that defendant operated and maintained a public dance hall on the road between Cardin and Picher in the building described, at which there gathered a large crowd of men and women of a rough character. That vulgar talk, cursing, black-guarding, drinking on the part of some of those attending the dance and loitering in and around where it was being conducted was common; that women from the dance hall retired away from the building for lewd purposes — all to the annoyance and offense of the neighborhood. Excerpts from the evidence of several different witnesses show the following state of facts:

“* * * Q. What did you see as to the manner in which the dance, or around the dance was being conducted on this occasion? A Well, I don’t know; I know as to the crowd, I would call it a pretty rough crowd.
“Q. What would you say as to the talk and so forth? A. Well; nothing unusual to hear vulgar talk.* * *.
“Q. I don’t know how far back that lot goes.
“Q. You were with whom that night? A. Mr. Simpson and Mr. Lucky.
“Q. How far away from that dance hall did you hear that vulgar and loud talking? A. Well, the crowd was there, some of them standing clear back to 30 or 40 steps from there.
“Q. Did you arrest those people who were making that talk? A. No, sir.
“Q. Why? A. Because I couldn’t tell who it was; fellow threw a whisky bottle through a windshield and went out to see who it was and couldn’t find out that.
“Q. How long is that dance hall? A. About '50 feet.
“Q. Do you know the length of those lots out there? A. No, sir.
“Q. That was to the rear of the dance hall? A. Yes, sir.
“Q. Now, where was this arrest made? AT The only ■ arrest I made was arresting this man here.
“Q. Was he misconducting himself at that time? A. No; I wouldn’t say he was.
“Q. He was there running that dance? A. Yes, sir.
“Q. What kind of a manner was they talking in? A. Well; you could hear cussing there and blackguarding in there. * * *
“Q. At the time or any time you were there, I will ask you, and you may state if you know, whether or not you saw any drunk person or persons under the influence of liquor in the dance hall. A. Well, I seen people that I would say were intoxicated.
“Q. And where were they, Mr. Warner? A. Some of them were dancing and some of them mingling around the crowd. * * *
“Q. I will ask you whether or not there was anything peculiarly wrong with the crowd? A. Well; I have arrested quite a number out there.
“Q. Men or women? A. Well, mostly men and some women.
“Q. What did you arrest them for, Mr. Anderson? A. Well; I arrested men for being drunk, and I arrested women outside the building.
“Q. How far from the building? A. Well; about 100 yards. * * *
“Q. Now these women you arrested about a hundred yards from this dance hall, had^you seen them in the dance hall at — ? A. Yes; they had been dancing.
“Q. And they had gone out about a hundred yards from the building? A. Yes, sir.
“Q. For what did you arrest them? * * *
“Q. You don’t know? A. Well; I know, but I don’t want to say.
“Q. Was it lewd conduct or indecency? A. Yes.
“Q. Now, when these women left would men go With them? A. Yes.
“Q. After they left would they later return to the dance hall? A. Yes; they would go out to the car and sit in them awhile and then come back to the dance hall.
“Q. How many men would you say you have arrested in there, Mr. Anderson, for being drunk of intoxicated? A. Well, I guess a dozen or more; he would ask us many times when a man was drunk to take them away. * * *
“Q. Do you know how these people had come up there. A. They come out of the dance hall — saw them come out of the dance hall with two boys, and the boys had a couple of bottles of pop.
“Q. Do you know where they bought that pop ? A. Well; in front I guess.
“Q. They sell pop there? A. Yes, sir; and they went out on behind the car, and the boys had a half pint of whisky, and they passed the bottle around, and I made a run and got the bottle; it was whisky.
“Q. What other arrests did you make out there? A. Arrested a boy and girl for lewd conduct.
“Q. Where were they arrested? A. Well; hundred or hundred twenty-five feet west of the building.
“Q. I will ask you whether or not you had seen them at the time ? A. I did — saw the woman come out of the dance hall. * * *
“Q. Your feeling for this man is not particularly kind, is it, and hasn’t been for some time? A. Not since his wife got out there and cussed me one time and threatened to throw a hammer at us; said, ‘you big son-of-a-bitch, we are going to stomp your brain out if you don’t stop interfering with our business.’
“Q. Now, these men that were out in front of this house out there cussing, you don’t know whether they had been at the dance or not, do you? A. Yes, sir; I saw them come from there. * * * A. Well, one particular night — first they parked their cars in front of our house there and there was two couples came from.the dance hall and they was in some kind of an argument about where they would go to, and I heard what one girl said, she said, ‘this God damned hole we are in — let’s go to Quapaw.’
“Q. What was further said? A. This girl said, ‘We don’t know where we will go.’
“Q. Who was with these two women. A. Two men.
“Q. What else did you see or hear there on any dance nights? A. Well; just heard yelling and the noise and the cursing and the cars leaving all the time.
“Q. How late in the night would this continue. A. Well; I couldn’t swear that because I didn’t get up to see; one night it was 11 o’clock I know.
“Q. On any other occasion I will ask you whether or not you heard any loud talking or anything — ever see any fights? A. No, sir.
“Q. Ever hear any men fighting? A. I have heard them cussing over there, but I couldn’t say Whether it' was a fight or who it Was.
“Q. I believe you testified you live three doors south of the dance hall and you heard them cussing down at your place? A. Yes, sir.
“Q. On how many occasions did you hear that? A. Three or four times.
“Q. And that was on a dance night? A. Yes, sir.
“Q. Was that the voice of men or women? A. Sometimes men and once a woman. * * *”

There is considerable other evidence of the same general nature in proof of conduct even more offensive, which demonstrates the character of the place and the manner in which it was conducted.

Sections 7870, 7871, and 1958, Comp. St. 1921, define a nuisance as follows:

“A nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either:
“First. Annoys, injures or endangers the comfort, repose, health, or safety of others; or,
“Second. Offends decency.; or,
“Third. Unlawfully interferes with, obstructs or tends to obstruct, or renders dangerous for passage, any lake or navigable river, stream, canal or basin, or any public park, square, street or highway; or,
“Fourth. In any way renders other persons insecure in life or in the use of property.
“A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon the individuals may be unequal.”
“Any person who maintains or commits any public nuisance, and the punishment for which is not otherwise prescribed, or who willfully omits to perform any legal duty relating to the removal of a public nuisance, is guilty of a misdemeanor.”

The defendant contends he is not responsible for any misconduct that took place outside of the building in which the dance was conducted; that the admission of such evidence was prejudicial; that since the information charges the nuisance at a particular building, the scope of the inquiry is limited to the building — citing 29 Cyc. p. 1285, par. 720, and 20 R. C. L. p. 486, par. 99.

In a prosecution for maintaining a public nuisance, it is not necessary that the information designate the particular place of the commission of the offense other than to charge it to have been committed in the county. That is, the rule of pleading is no more definite in charging a nuisance than in charging any other offense under the statute. However, it is not improper to charge the offense to have been committed at a particular designated place, and when so charged an independent nuisance committed at some other place will not sustain the charge. A material variance between the allegation and the proof in this respect would be fatal. This means no more, however, than saying that where one offense is charged in an information a conviction cannot be had by proof of another offense. State v. Kelly, 22 N. D. 5, 132 N. W. 223, Ann. Cas. 1913E, 974.

Under these provisions of the statute and the evidence, it is apparent that the dance hall and its environs was a public nuisance of an outrageous character. A dance hall is not per se a nuisance, but may become such by the manner in which it is conducted and by the conduct of the persons assembled in and around it. The proof is not restricted to what occurs within the building at which the nuisance is charged to be maintained, but acts constituting a nuisance and having an evident connection and relation to the offensive matter charged as a nuisance occurring adjacent to and about the building 'so near as to constitute a part of the nuisance charged are competent. The fact that those who gathered at this place at the invitation of defendant did not commit all their offensive acts within the building but a number of them were committed outside does not preclude the state from offering testimony of what occurred outside, wheré it is shown that those guilty of the offensive acts gathered at and about the dance hall as spectators and participants. When that was shown the evidence was competent and while in each instance the proof may not have been specifically offered that the offensive acts were committed by spectators and participants gathered at the dance, sufficient was shown on this point to render the other evidence on the same point not connected inconsequential error.

The case is affirmed.

DOYLE, P. J., concurs.

DAVENPORT, J., absent, not participating.


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    DAN MAY v. STATE.
    No. A-6097.
    Opinion Filed Sept. 24, 1927.
    (259 Pac. 604.)
    Loofbourrow & Loofbourrow, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Beaver county on a charge of having the unlawful possession of intoxicating liquor and was sentenced to pay a fine of $150 and to serve 40 days in the county jail.

The evidence on the part of the state discloses that at the time charged the defendant, who operated a service car out of the town of Liberal, Kan., carried some passengers to the town of Turpin, in Beaver county. "Certain officers heard defendant negotiating with a young man named Dickerson and approached and attempted to arrest him, whereupon he broke a jar of whisky. Owen Young testified:

“* * * Q. State what that conversation was? A. Well they were standing there north of me, and I heard Mr. May say, T can’t sell it to you without the money.’ And the Dickerson boy says, ‘I’ll pay you tomorrow,’ and he said, ‘No.’ * * * A. He pulled a jar out of his pocket — it didn’t come clean out, but he raised it up so I could see it in there, and about that time I stepped out. * * * I walked out there and told him to consider himself under arrest, and he run from me. He ran around a car, and run about 10 feet, and broke the jar on a car wheel. I saw it hit the car wheel.
“* * * Q. How far were you from the defendant, Dan May, when he broke the jar? A. I was right there.
“* * * Q. Did you smell any liquor at that time? A. Yes, sir.
“* * * Q. Well, when did you smell that liquor? A. I smelled it right there.
“* * * Q. Are you positive that was whisky in that jar? A. It smelled like whisky.
“Q. But you don’t know whether it was whisky? A. Yes, sir; I know it Was whisky because I could smell it.”

Albert Ross testified:

“* * * Q. I will ask you to state what that conversation was? A. I heard this one man ask Mr. May— he says, ‘Have you got any whisky,’ and Mr. May says, T have the whisky if you’ve got the money,’ and he said he didn’t have any money. * * * Mr. May started from Where he was, he started northwest, and Mr. Young stepped out and said he was under arrest and started after him. They ran out in the street, and Mr. Young got him, and about that time I heard a crash of something breaking.”

C. E. Dale testified:

“* * * Q. I wish you would tell the first thing you saw? A. Well, the first thing I saw two men came out between some automobiles. I was out in the street. They were going about as fast as they could go. Finally Mr. Young caught Mr. May. About the time he caught him or just before he laid his hand on him, there was a crash of a bottle.
“Q. Did you see who threw the bottle? A. I couldn’t tell for sure.
“Q. Did you examine where the bottle struck? A. It was only a few steps from where I was standing, and I had a flashlight in my pocket so I took a look at it.
“Q. Are you able to say positively that it was whisky? A. Yes, sir.
“Q. What kind of a bottle was that? A. Well, as near as I could tell from what there was left of it, it looked like a quart bottle.”

J. B. McNew testified:

«.« * * Tfig first thing I seen of it, I was on the west side of the street and I seen a couple of men running pretty close together and I stopped. - I was a little bit south. * * * As he run, he run through in between some cars and turned south. I just stood still, and they run up pretty close to me. About that time Mr. Young caught up with him. He pulled something out of his pocket and threw it to the ground. It looked like a bottle, and I could smell the fumes of whisky as soon as it hit the ground.

Defendant testified in his own behalf and denied that he had any whisky, but testified that he had a pistol on his person and threw it under the car in order that it might not be found on him. There was some evidence tending to corroborate his testimony. It has uniformly been held by this court that, where there is evidence from which the jury may reasonably and logically find a defendant guilty, although the evidence may be conflicting, the weight and credibility of the evidence is for the jury, and this court will not disturb their verdict for insufficiency.

The case is affirmed.

DOYLE, P. J., concurring.

DAVENPORT, J., absent, not participating.


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    L. E. ROBERTS v. STATE.
    No. A-6095.
    Opinion Filed Sept. 24, 1927.
    (259 Pac. 653.)
    Phillips & Phillips, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Átty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, upon a charge of assault with intent to kill, was convicted in the district court of Bryan county for an assault and battery and his punishment fixed at a fine of $100 and confinement for 30 days in the county jail.

The defendant has made some suggestions in his brief in reference to the jury in connection with the Ku Klux Klan. There is not one word in the record in reference to the Klan, and this claim is wholly unsupported. Some further argument is made in the brief that the defendant has been twice put in jeopardy, in that he pleaded guilty before a justice of the peace for an assault and battery prior to the filing of the complaint upon which the information in the case was later predicated. There is evidence that the defendant pleaded guilty before a justice of the peace for the offense here charged., but it is further shown by defendant’s own testimony that this fine was returned to him by the justice. No formal plea of former jeopardy was made, and, even if the payment of the fine and subsequent return to defendant by the justice of the peace constituted jeopardy, there is no showing that any complaint was filed with the justice of the peace upon which defendant pleaded guilty or that the justice of the peace had jurisdiction.

The only assignment properly before us is that the evidence is not sufficient to sustain the verdict and judgment. We do not deem it necessary to recite the evidence. It is sufficient to say that, while it is to some extent conflicting,- there is an abundance of testimony to sustain the judgment; and where there is testimony sustaining a judgment, although conflicting, its weight and credibility is for the jury, and its verdict will not fie set aside in this court for insufficiency.

The case is affirmed.

DOYLE, P. J., concurs.

DAVENPORT, absent, not participating.


text:
    VOL COOKSEY v. STATE.
    No. A-6034.
    Opinion Filed Sept. 26, 1927.
    (259 Pac. 604.)
    Percy Powers, for plaintiff in error.
    Edwin Dabney, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and W. M. Williams, Co. Atty., of Mangum, for the State.
   DOYLE, P. J.

Plaintiff in error, Vol Cooksey, was tried and convicted for the offense of unlawful possession of intoxicating liquor, and in accordance with the verdict of the jury was sentenced to pay a fine of $500 and be confined in the county jail for 6 months. From the judgment an appeal was perfected by filing in this court petition in error with case-made on February 20, 1927.

Counsel for the state have filed a motion to dismiss the appeal, “for the reason that the said defendant, Vol Cooksey, is a fugitive from justice, having made his escape from the county jail of Greer county, Okla., on the 4th day of September, 1927, in which jail he was then being incarcerated to serve a sentence of $250 and a term of 60 days imprisonment, on a judgment affirmed by this 'court in cause No. A-6083, 37 Okla. Cr. 348, 258 P. 1059, and that the whereabouts of the said Vol Cooksey is at this time unknown, and that he cannot be found and be made to perform any judgment that may be rendered by this court in this appeal. All of which appears from the affidavits of W. M. Williams, county attorney of Greer county, Okla., attached to this motion and made a part hereof.”

It is the settled rule in this jurisdiction that where it is shown that the plaintiff in error is a fugitive from justice, or has left the jurisdiction of the state of Oklahoma, and cannot be made to answer any judgment upon the merits of his appeal which may be rendered by this court, the appeal will be summarily dismissed. Young v. State, 16 Okla. Cr. 116, 180 P. 872; Bradley v. State, 19 Okla. Cr. 473, 200 P. 788; Daley v. State, 23 Okla. Cr. 355, 214 P. 941.

Upon the uncontroverted facts plaintiff in error, Vol Cooksey, has waived the right to have his appeal in the case considered and determined. The appeal herein is therefore dismissed. Mandate forthwith.

EDWARDS and DAVENPORT, JJ., concur.


text:
    JESS DOWNARD v. STATE.
    No. A-6262.
    Opinion Filed Oct. 1, 1927.
    (259 Pac. 662.)

      H. A. Noah, for plaintiff in error.
    Edwin Dabney, Atty Gen., Smith C. Matson, Asst. Atty. Gen., and C. E. Wilhite, County Atty., for the State.
   DOYLE, P. J.

The information in this case charged that in Woods county, on or about the 15th day of January, 1'926, Jess Downard, the defendant, “then and there being wilfully, intentionally and unlawfully did have the possession of certain spirituous liquor, to wit, corn whisky, with the willful and unlawful intent on the part of him, the said Jess Downard, to then and there sell, barter, give away and furnish the same, contrary to,” etc.

On the trial appellant was found guilty and his punishment assessed at a fine of $500 and imprisonment in the county .jail for 6 months. From the judgment rendered on the verdict, he appeals.

The errors assigned question the sufficiency of the information to charge an offense and the sufficiency of the evidence to sustain the verdict. Obviously the information is sufficient, and the demurrer thereto was properly overruled.

The evidence for the state shows that appellant drove to the Crouse place, northeast of Alva, after dark, and as the officers approached the car he took a jug from the car and broke it on a tree.

The witness Wood for the state testified that Mr. Johnson, Ralph Heaton, and himself were going from the house as the car drove up, and Jess Downard got out of the car and walked to the front, “I turned the flash light on my car and saw Jess Downard with something in his hand, and he threw it against a tree; I went right on up, and part of the jug was lying there, and the side of the tree was wet and smelled of liquor.”

C. T. Johnson, deputy sheriff, testified:

“I went over and found a jug broken against a tree, I picked up a part of the bottom of the jug that had a little liquor in it and scooped some up off of the sand. Mr. Downard was standing there. I had a flash light.”

The testimony of Ralph Heaton was, in substance, to the same effect.

As a witness in his own behalf appellant testified:

“I was in Alva and went out to the Paul Crouse place with Mrs. Lash in her automobile; we went under the viaduct, and she stopped the car; I got out and went about twenty feet and picked up an empty stone jug and put it in the car; then we went on to Crouses; when we arrived there, the officers appeared and I threw the jug away; it was empty but I didn’t want to have anything like that around in the position I was in.”

The case having been submitted to the jury upon correct instructions, it was the peculiar province of the jury to pass upon the credibility of the witnesses and the weight of the testimony, and under well-settled rules we cannot disturb the verdict where there is substantial evidence to support it.

Finding no prejudicial error, nothing remains for this court to do but to affirm the judgment, and that is accordingly done.

EDWARDS and DAVENPORT, JJ., concur.


text:
    L. M. GALLEA v. STATE.
    No. A-6106.
    Opinion Filed Oct. 1, 1927.
    (259 Pac. 661.)

      O. F. Mason, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Appellant was convicted on a charge that he did have in his possession four pints of whisky with the unlawful intent to sell the same, and in accordance with the verdict of the jury was sentenced to pay a fine of $50 and be confined in the county jail for 30 days. From the judgment an appeal was perfected by filing in this court, March 6, 1926, petition in error with case-made.

No brief has been filed in support of the errors assigned, which question the sufficiency of the evidence to support the verdict.

The state relied for this conviction upon the testimony of L. M. Wolsey, deputy sheriff, to the effect that about 9 o’clock at night, in the town of Picher, he was walking down the street with Mr. Wolf, another officer, and saw the defendant throw two half pints of whisky down; one bottle broke, and one did not; that they followed him into the house.

As a witness in his own behalf, defendant denied that he was on the street or that he had possesion of the bottles of whisky, and stated that he saw the officers when they passed the house, chasing some man, then they entered his house. His testimony was corroborated by that of his wife, who testified to substantially the same facts.

It is obvious that the case was one for the consideration of the jury, and it is not for this court to pass on the credibility of witnesses and the weight of their testimony. .

Finding no material error in the record, the judgment is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    JIM MITCHELL v. STATE.
    No. A-6093.
    Opinion Filed Oct. 1, 1927.
    (259 Pac. 661.)
    D. E. Ashmore and A. W. Anderson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Okfuskee county on the charge of having the unlawful possession of a still, and was sentenced to pay a fine of $500 and to serve a term of 90 days in the county jail.

The record discloses that defendant had leased for agricultural purposes, and was in possession of certain premises upon which a still in operation was found. Defendant testified that he subleased the land on which the still was found to one Middleton. At the time the still was found, both defendant and Middleton were at it, apparently participating in its operation. Defendant and Middleton were jointly charged, but(a severance had been taken. Middleton sought to take all the responsibility, and testified that the still was his property. The jury evidently did not believe the testimony of defendant and Middleton that Middleton alone was in possession of the still. The facts and circumstances were sufficient that the jury might reasonably and logically find the defendant guilty.

Complaint is also made that the officers made an unlawful search. No search warrant was necessary for the investigation that led to the finding of the still. It was in a brushy woods pasture, an unfrequented place, one-quarter to one-half of a mile from the residence. Merck v. State, 35 Okla. Cr. 160, 249 P. 163; Penney v. State, 35 Okla. Cr. 151, 249 P. 167. The officers testified they looked into the defendant’s barn and to this extent the search was unwarranted, but the overstepping the right of search does not affect the case. No reason to interfere with the verdict of the jury is apparent. The case is affirmed.

DOYLE, P. J., concurs.

DAVENPORT, J., absent, not participating.


text:
    GUS KEY v. STATE.
    No. A-5642.
    Opinion Filed Oct. 1, 1927.
    (259 Pac. 659.)
    Sigler & Jackson and Lydiek & McPherren, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Carter county on a charge of receiving stolen property, and was sentenced to serve a term of five years in the state penitentiary.

The information charges, in substance, that defendant received from “Candy” Renfro and Raymond Garrett, for a consideration of $200, an automobile which had previously been stolen from F. K. Hamilton, defendant at the time knowing the same to have been stolen. Renfro was the principal witness for the state. He testified, in substance, that he had an arrangement with defendant to steal him an automobile; that he went to Dallas, Tex., and there stole a Ford coupe and drove it to defendant’s garage in Ardmore, and the next day, with Raymond Garrett, he went to defendant’s house, changed the numbers on the car and made some changes in the equipment; that he sold the car to defendant for $200, though it was of a reasonable market value of about $550. Thereafter he several times saw defendant and his wife driving the coupe, which had been repainted by Abbott Brady. A deputy sheriff testified that one F. K. Hamilton identified the car, and that it was turned over to him and removed from the county; that the motor numbers had been changed. Abbott Brady testified that he had repainted three Ford cars for Garrett and Renfro, but did not testify that the car in question was one of them. An automobile mechanic testified that he examined the car and was not able to swear that the motor numbers had been changed. Another witness testified he had seen the car; that it looked like it had been repainted. Still another witness testified that he saw Garrett and Renfro working on a Ford coupe, fixing to change a tire at defendant’s garage about the time testified to by Renfro. The assistant county attorney testified that the car in question was turned over to Hamilton, who resided at Tulsa.

The evidence for the defendant sharply contradicted the testimony for the state. Defendant testified that he bought the car from one Grover Williams on April 4, and produced a bill of sale of that date. There was some other evidence not necessary to recite which tends to support his testimony,

Various assignments of error are argued in the brief, among which it is contended that the court erred in refusing to quash the information; in refusing an instructed verdict at the close of the state’s evidence; in commenting upon the evidence in the hearing of the jury; in certain of the instructions; in refusing requested instructions; in excluding evidence offered by the defendant; in improper argument by the county attorney; and, lastly, that there is no sufficient corroboration of the testimony of the accomplice Renfro.

We have examined the record with care, and have considered the briefs upon the various assignments of error. Most of the contentions are without merit, and a discussion of them would not be profitable. However, in the closing argument, the county attorney went entirely outside the record and commented on matters not before the jury. But this, standing alone, is not sufficiently serious to require a reversal. The final assignment of error that the evidence is insufficient and the testimony of the accomplice Renfro not sufficiently corroborated, presents a serious question. It is generally held that the person who steals property is not an accomplice of the one who receives the property knowing it to be stolen, that the larceny and the receiving are independent" crimes. Mayes v. State, 11 Okla. Cr. 61, 142 P. 1049; Pringle v. State, 32 Okla. Cr. 187, 239 P. 932.

The exception to this general rule is that, where the thief and the receiver of stolen property conspire together in a prearranged plan for one to steal and deliver the property to the other, and pursuant to such plan one does steal and deliver to the other, the receiver is an accomplice of the thief, and the thief is an accomplice of the receiver. Logan v. State, 23 Okla. Cr. 316, 214 P. 944; Motsenbocker v. State, 29 Okla. Cr. 305, 233 P. 487; Brownell v. State, 33 Okla. Cr. 323, 244 P. 65.

The conviction here rests, of course, on the testimony of Renfro. If his testimony is to be believed, he is an accomplice of defendant, and, under the provisions of section 2701, Comp. Stat. 1921, must be corroborated by other evidence which tends to connect defendant with the commission of the offense. If this has not been done, the conviction cannot be upheld. It is not required that the testimony of an accomplice be corroborated in every essential necessary to be proven to establish defendant’s guilt, and, where the jury has convicted a defendant upon the testimony of an accomplice, where there is independent evidence tending to connect the defendant with the commission of the offense, this court will take the strongest view of the corroboration that the evidence will warrant. But there must be some corroboration which tends to connect the defendant with the commission of the offense. There is no testimony other than that of Renfro that the car in question was in fact stolen. Renfro testified that he stole the car at Dallas. There is a hearsay statement of one Hamilton, who purports to reside at Tulsa, that the car was stolen from him there. He, however, was not called as a witness, and it appears that a subpoena sent by the state to be served upon him at Tulsa has been returned showing no such strwt number as given by him nor such person there. The statements of Hamilton, whatever they may have amounted to, are not proof of anything. There is no corroboration of the testimony of Renfro of any previous agreement with defendant; no corroboration that he delivered the car to defendant. There is a slight corroboration by Carl Holden, a deputy sheriff, that, when the car was taken from defendant, the motor numbers had been changed, although an automobile mechanic who applied tests to ascertain if the numbers had been changed testified that he was unable to say that they had in fact been changed. We do not find any sufficient corroboration tending to connect defendant with the crime charged.

It follows that the case must be reversed and remanded.

DOYLE, P. J., concurs.

DAVENPORT, J., absent, not participating.


text:
    W. A. ADAMS v. STATE.
    No. A-6101.
    Opinion Filed Oct. 1, 1927.
    (259 Pac. 665.)
    Hill & Criswell, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, P. J.

On information charging W. A. Adams and May Adams with transporting intoxicating liquor from a point unknown in Seminole county to a point on a section line about one-fourth mile north of Wewoka, they were jointly tried. May Adams was acquitted, and the appellant was found guilty as charged, and in accordance with the verdict was sentenced to pay a fine of $300 and to be confined in the county jail for 120 days.

The main, if not the only, question presented is whether the evidence was sufficient to sustain the verdict.

The testimony of Sia Cope, policeman, Bob Chandler and C. F. Aldridge, deputy sheriffs, is to the effect that they went to a camping place about half a mile north of Wewoka and told appellant that they wanted to search his car and he told them to help themselves; that they did not find anything in the car, but across the fence in a field nearby they found 3 or 4 gallons of whisks; that they did not have a search warrant.

As a witness in his own behalf, W. A. Adams testified that he camped across the bridge just north of Wewoka that evening just before sundown; that he did not have any whisky in his possession; that after he went into camp a man came up and wanted to sell him some whisky and he told him that he did not want any; that about 9 o’clock the officers came and searched his car; that he did not see any whisky, and he did not place any liquor inside the fence; that he was on his way to Cromwell and was never before arrested.

May Adams, wife of the defendant, testified that she was with her husband, and they did not have any intoxicating liquor in their possession; that after they went into camp a man came there and asked her husband if he wanted to buy some liquor and he told him “No”; that she would guess it was between 40 and 50 feet from the road to the fence.

It is well settled that where circumstantial evidence alone is relied upon, the circumstances must be such as to preclude every reasonable hypothesis other than that of the guilt of the defendant of the offense charged, in order to sustain the conviction. Tro v. State, 27 Okla. Cr. 418, 228 P. 530.

The circumstances here relied upon do not meet this requirement and do not, in our opinion, prove possession.

The judgment of the lower court is accordingly reversed.

EDWARDS and DAVENPORT, JJ., concur.