text:
    O. B. WHEELER v. STATE.
    No. A-6139.
    Opinion Filed May 12, 1928.
    (267 Pac. 282.)

      L. F. Robertson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of selling intoxicating liquor to B. E.. Slagle, and sentenced to serve a term of 60 days in the county jail and pay a fine of $200 and cost. Motion for a new trial was filed and overruled, and defendant has appealed to this court.

B. E. Slagle, a witness for the state, testified that on the 21st day of October, 1925, he bought a pint of whisky from the defendant. He also testified that he was an undercover for certain citizens, whose names the court did not permit him to give in evidence, who were trying to catch parties charged with the offense of selling intoxicating liquor. Slagle testified that he bought the pint of whisky on the 21st day of October, but did not turn it in to the sheriff until the 7th of October. The record discloses that Slagle was what might be termed a professional witness; that is, he had been the prosecuting witness in many cases.

The defendant entered his plea of not guilty to the charge of selling whisky to Slagle on the 21st of October, 1925, and showed conclusively by reputable witnesses, who were uncontradieted, that he was not in Moreland on October 21, 1925, but was in Waynoka, a distance of about 30 miles away from Moreland. Several witnesses testified to having seen the defendant in Waynoka on October 21, 1925, the day witness Slagle testified he bought the whisky in Moreland from the defendant. It was further shown that the reputation of the witness Slagle in the community in which he had formerly lived was bad for truth and veracity.

Several errors are alleged to have been committed in the trial of the case, but the only one we deem necessary to consider is the one urged by the defendant, that the verdict is not sustained by sufficient evidence. 'In this we fully agree. This court has repeatedly held that, where there is competent evidence,- though conflicting, to sustain the verdict of the jury, it would not disturb the verdict, but in this case it is conclusively shown that the witness Slagle, who testified to having purchased the whisky from the defendant, has been successfully impeached by reputable witnesses.

The record is full of errors committed by the court over the objection of the defendant in permitting certain questions to be propounded to defendant’s witnesses, and also errors committed by the county attorney in his interrogation of the Witnesses, over the objection of the defendant, but in the view we take of this record, that there is not sufficient testimony to sustain the verdict, We do not deem it necessary to set out in detail the errors committed in the trial. There being no competent evidence to sustain the verdict and sentence, the case is reversed and remanded.

DOYLE, P. J., and EDWARDS, J., concur.


source: Caselaw Access Project

author: EDWARDS, J.

license: Public Domain

text:
    OTTO STRICKLAND v. STATE.
    No. A-6174.
    Opinion Filed May 12, 1928.
    Rehearing Denied June 9, 1928.
    (267 Pac. 672.)

      Claude Nowlin, Conner & Conner, L. C. McLean, and P. R. Haunstein, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, for brevity hereinafter called defendant, was convicted in the district court of Garfield county on a charge of having the unlawful possession of narcotics, and was sentenced to serve a term of three years in the state penitentiary.

On the date charged, certain officers with a search warrant went to the residence of defendant in the town of Garber and made a search of the house, but found nothing of an incriminating nature therein. Some of the party then searched a chicken house about 20 yards from the residence-, and buried in the floor under the dirt and manure they found a box, and within it a tin cigar box containing ■ thirty-six cubes of morphine, each cube containing approximately one grain. The officers testified that defendant was thereupon arrested, and stated that the morphine was his, and his wife had no connection with it; further that defendant offered $500 or $600 if they would release him. The defendant testified that he did not have possession of the chicken house in Which the narcotic was found, but when he rented the residence house the chicken house was reserved, and had not been delivered to him, and he had never been within it. He denied the testimony of the officers that he admitted ownership of the morphine, denied any knowledge of it, and testified that the conversation in reference to the $500 or $600 was in the nature of an offer of bail for his release.

Counsel for defendant have exhaustively briefed their contention that the search warrant is invalid, for several reasons not necessary to recite here. In line with the general trend of the authorities, it has been held by this court frequently that the right to complain of an illegal search is personal, and one accused of crime will not be heard to complain that the person, premises, or property of another has been invaded by an illegal search. White v. State, 33 Okla. Cr. 428, 244 P. 450; Hardy v. State, 35 Cr. 124, 248 P. 874; Williams v. State, 35 Okla. Cr. 171, 249 P. 433; Klaber v. State, 35 Okla. Cr. 238, 250 P. 142; Penrod v. State, 38 Okla. Cr. 46, 258 P. 1052; Hall v. State, 39 Okla. Cr. 252, 264 P. 221. Since defendant denied possession or control of the chicken house, these authorities dispose of the entire contention that the search warrant is invalid.

It is next argued that the county attorney in his cross-examination of defendant and his witnesses was guilty of misconduct, and that the trial court made statements in the presence of the jury prejudicial to defendant. Under this assignment, several questions of the county attorney are set out which defendant contends are prejudicial. We have examined this with care, and the zeal of the county attorney in some instances pushed the cross-examination rather far. The trial court some two or three times in ruling upon an objection made statements in explanation or expressing his view on the admissibility of the evidence. This court has frequently said that the trial court should rule on the objections without comment which would tend to convey to the jury any impression of the opinion of the court. Some of the statements had better been omitted, but not every remark of a trial court, even though erroneous, requires a reversal. It has been necessary in many instances for this court to reverse convictions on account of the statements made by the trial judge in the course of the trial. With these decisions in mind, we have considered carefully the matters objected tec, and have concluded that under the record defendant is clearly proven guilty, the punishment is not excessive, and the errors in the trial are not of such gravity as to have affected the trial or the verdict of the jury. They present no ground for a reversal.

The case is affirmed.

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


author: DAVENPORT, J.

text:
    J. W. COLE v. STATE.
    No. A-6289.
    Opinion Filed May 12, 1928.
    (267 Pac. 280.)

      Wm. M. Williams, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Greer county, Okla., on a charge of operating a motor vehicle while under the influence of intoxicating liquor, and was sentenced to pay a fine of $400 and cost. Motion was filed for a new trial, and was overruled and exceptions saved. From the judg-ment and sentence, the defendant has appealed to this court. A petition in error was filed on the 1st day of July, 1926.

Under the rules of this court, where an appeal is not supported by brief, and no appearance is made for the plaintiff in error, it is assumed that the plaintiff has abandoned the appeal or it is without merit.

A careful examination of the record discloses that the information charges an offense; that the evidence tends to support the charge; that the instructions of the court were fair to the plaintiff in error; and that there are no fundamental errors affecting the rights of the defendant.

The judgment is affirmed.

DOYLE, P. J., and EDWARD'S', J., concur.


text:
    FRED THOMAS v. STATE.
    No. A-6114,
    Opinion Filed May 12, 1928.
    (267 Pac. 278.)

      Claude A. Niles, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the county court of McIntosh county of the crime of manufacturing wine, and was sentenced to 30 days in the county jail and a fine of $100 and cost. To reverse the judgment, defendant has appealed to this court.

It appears from the testimony on behalf of the state that the officers, before going to the residence of defendant, went to a justice of the peace by the name of Duffy for the purpose of ■ obtaining .a search warrant. Glenn Price, who was a deputy sheriff, testified to finding about 15 gallons of what he called wine in defendant’s residence. R. H. Russell and H. W. Counts testified, in substance, to the same facts aá Glenn Price. There is no dispute as to what the officers found in defendant’s residence; at least, there is no question but what it was some kind of grape juice, fermented or unfermented. During the progress of the trial when the state sought to introduce evidence of the searching of defendant’s home, the defendant objected to the introduction of the testimony on the ground that it had not been shown that the witness was armed with the proper search warrant when he went to defendant’s residence. This objection was overruled by the court and exceptions allowed. A similar objection was interposed to the evidence of each of the witnesses on behalf of the state as the objection that was interposed to the evidence of R. H. Russell’s testimony.

On cross-examination, the witness Glenn Price was asked the following questions and gave the following answers:

“Q. You told him, Mr. Price, that you had a search warrant? A. Yes, sir.
“Q. From whom did you obtain that?
“Mr. King: We object to the question as incompetent, irrelevant, and immaterial, for the reason that the state in this case is not relying upon the serach warrant, but upon the consent of the defendant for the officers to make the search. (The objection was overruled by the court and exceptions allowed the plaintiff.)
“A. I obtained it from Leonard Cannon:
“Q. Is Mr. Cannon & judicial officer? A. He is working as a stenographer on the behalf of Mr. Duffy.
“Q. He was the stenographer in Mr. Duffy’s office and issued the search warrant and signed Mr. Duffy’s name to it? A. Well, Mr. Duffy’s name was signed to •the search warrant.
“Q. But you are not sure it was signed when it was issued? A. I did not notice whether it was signed or not.
“Q. Mr. Duffy was not there? A. No, sir.
“Q. The search warrant was filled out there in your presence with Mr. Duffy’s name purported to be signed to it? A. Yes, sir.
“Q. Don’t you know Mr. Cannon signed Mr. Duffy’s name? A. I could not swear to it.
“Q. Mr. Duffy did not sign it? A. Not unless he signed it before it was filled out.”

The testimony of the defendant and his wife shows that, when the officers came to his house where he had been working, one of the officers told him he had a search warrant and wanted to search his house; defendant told them all right, to go ahead. On rebuttal, the officers undertook to show that the defendant waived his right under the search warrant and pen mitted them to search his house, and for that reason it was not necessary to have a valid search warrant. This is the usual testimony in these cases where the officer goes out with a search warrant and searches the home; he' goes into court and testifies that the defendant told him all right, to go ahead and search.

The defendant in this case has assigned several errors alleged to have been committed by the trial court, and specially urges his sixth assignment of error:

“That the court erred in admitting testimony of all of state’s" witnesses, for the reason that said witnesses were officers of the law operating under an illegal search warrant.”

Section 7009, C. S. 1921, gives the judges of courts of record and justices of the peace the authority to issue a search warrant.

In this case, the warrant, if issued at all, was not issued by a judge of a court of record or a justice of the peace, but by a stenographer who worked in the office of a justice of the peace, and was issued without authority of law and void, and could not be used as a valid warrant for the purpose of invading the sacred portals of the defendant’s home to search it, and any evidence procured by reason of the search warrant was unlawfully procured, and the defendant’s objection to the introduction of the same should have been sustained.

This court has had the- question of the waiver of defendant’s rights before it so many times that it seems useless to take time to cite authorities on that question, but, in order that the courts may clearly understand what this court has held, we cite the following cases: Smith v. State, 34 Okla. Cr. 434, 246 P. 1109; Franklin v. State, 34 Okla. Cr. 269. 246 P. 889; Whitford v. State, 35 Okla. Cr. 187, 249 P. 430.

In the view we take of this record we do not deem it necessary to consider the other errors complained of. There being no competent evidence to sustain the sentence and judgment, the case is reversed and remanded.

DOYLE, P. J., and EDWARDS, J., concur.


text:
    EMMETT MALONE v. STATE.
    No. A-6422.
    Opinion Filed May 12, 1928.
    (267 Pac. 486.)

      Sam H. Crossland, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as defendant, was, in the district court of Tulsa county, convicted under an information filed in said court January 26,1926, the charging part of which is as follows:

“That Emmett Malone on the 10th day of April, A. D. 1925, in Tulsa county, state of Oklahoma, and within the jurisdiction of this court, did unlawfully, willfully and feloniously carnally know and have sexual intercourse with one Mildred Murry, a female person and not the wife of him the said Emmett Malone; the said Mildred Murry being then and there under the age of 15 years, to wit, 14 years of age.”

Motion for new trial was filed and overruled and exceptions saved; judgment and sentence was entered April 24, 1926, sentencing the defendant to serve a term of one year in the penitentiary of Oklahoma. To reverse the judgment an appeal by case-made was perfected and filed in this court.

The testimony on behalf of the state is in substance as follows:

Mildred Murry testified:

She was attending Whittier school in April, 1925. That she knew the defendant, Emmett Malone: had known him for more than a year. She did not know he was a married man. That she was 14 years of age. She saw the defendant at the Whittier school the last of March or the first of April, 1925. When school was out he was out near the gate, and she got in the car and went up the road. “He acted all right and never said a word like he was bad or anything. He never at any time made any representations to me. The second time he taken me out the Dawson road a mile or two and had intercourse with me. Before he had that I asked him where we were going, and he said he was going to drive off the road a piece. He said, “We are going to have an intercourse,’ and I knew that I could not defend myself.”

On cross-examination the witness testified:.

That she met the defendant at Joe Hanner’s dance; “I danced one set; I did not meet defendant’s wife at the dance. The first time the defendant came to the schoolhouse was about the 1st of March, 1925. He was in a Ford coupe the first time, and the next time he came in a Studebaker. I understood all about what the word ‘intercourse’ meant. I was not 16 years old at the time he had intercourse with me. I did not! tell Mrs. Leona Walker, Clyde Dunham, and Mrs. Temple-ton that I was 16 years of age. I had intercourse with the defendant four or five times. It was about the 3d of August, 1925, when I told my mother. They found out, and I told them about it. Templeton had been writing me letters in Kansas to my cousins out in Kansas, and my aunt got hold of one of the letters. Mother read it, and they asked me about it. I told her all about it. Yes, sir; something happened from this intercourse. It was a disease. I don’t know whether Malone gave it to me or Mr. Templeton. • I went to the county attorney’s office and asked Mr. Luther Lane, the assistant county attorney, to dismiss the case. I told him there was nothing to it, and I don’t want to proceed with it. Emmett Malone wasn’t guilty as alleged in the information. I never had any conversation with Josephine Hanner and Clura Murry and tell them Emmett Malone did not have sexual intercourse with me. I never talked with them about the case. No, sir; I did not talk to my sister-in-law and Joe Hanner. I never made a statement at Josephine’s house that if I had to tell about having intercourse with anybody I wouldn’t know who to lay it on to.”

On redirect examination the witness stated:

That the conversation she had with the assistant county attorney, that Mr. and Mrs. Clyde Durner was present. ‘T made a statement to Mr. Lane and said Emmett Malone wasn’t guilty, but the reason I made it was his sister and her husband came out to the schoolhouse and told me that Emmett’s wife said she had all the papers ready to send me to a reform school if I did not get them to release this case. That is the reason I made this statement. The case was reinstated on motion of my parents and me, too. The last time I had intercourse with the defendant was some time in May; I don’t know the date. I have had intercourse with Templeton. This venereal disease developed after I hád intercourse with Templeton, and I can’t say whether Templeton or Malone; it was one of the two. It was about the 28th day of July when I had intercourse with Templeton. It was in December, 1925, when I first noticed I had the venereal disease; had intercourse with Templeton twice. Templeton and Malone are the only two men I had intercourse with.”

Dr. Malcom McKellar testified that he was a physician and surgeon, and was during the year 1925; that the latter part of the year he made an examination of Mildred Murry; that the hymen had been ruptured, but he could not tell how long or the cause of the rup« ture; the most common thing of a rupture is intercourse..

Dan Murry and Mary Murry, called as witnesses,, each testified that Mildred Murry was born August 3, 1910. Anna Barnes testified to having seen the defendant come to the Whittier school; she did not know how many times, but in answer to direct question from the county attorney she stated she had seen him more than once.

The defendant in his own behalf was called, and testified in substance as follows:

His name was G. E. Malone; he knew Mildred Murry; “met her at a dance at Albert Hanner’s about a year ago; Mr. and Mrs. Walker, Mr. and Mrs. Tem-pleton, and my wife attended the dance; other people attended; Mrs. Hanner or Mrs. Conway one introduced me to Mildred Murry; I was sitting by my wife with my baby in my arms when I was introduced to her; I never had intercourse with Mildred Murry; I went by Whittier school one time, but not for the purpose of picking her up; I was on my way to Bartlesville, and as I passed the schoolhouse she and her little sister got in the car and I drove them up near their home and put them out and went on to Bartlesville. I never picked her up> again, nor did I ever carry her out on the road anywhere and have sexual intercourse with her at this time she stated; I never did have intercourse with her.”

On cross-examination he stated:

He was never with her at any other time excepting at the dances, and “I did not pick her up and drive her home; I was never with her at Muskogee; nor was' I ever with her at Sapulpa or Beggs; never did register with her. I knew they lived quite a little ways from the school, and I had plenty of room in the car to give-them a lift; her little sister was with her; I had been introduced to her at Mr. Hanner’s dance and I knew they lived over there; the parties that were present when I was introduced to her at .Hanner’s were Mr. and Mrs. _ Templeton, Mr. and Mrs. Walker, Mr. and Mrs. Tennis, and Mr. Hanner and Josephine, his wife, and my wife and baby; and Mrs. Murry was there with Mildred. I remember where I met Mildred because it was at the dance; I believe it was Mr. Hanner or Mrs. Han-ner that introduced me to her; the deed I was going after was to be recorded at Bartlesville; I went on to Bartlesville after I had taken Mildred home; the reason I did not take her to the house was she said this was plenty far enough; I never took her off the Dawson road, the hard-surface road to a dirt road back away out in the woods, nor did I ever give her any money to go away anywhere; nor did I tell her to go to Arkansas or any other place.”

Mrs. William Walker, testified:

That she was at the dance at Josephine and Albert Scanner’s and that Mildred Murry was there; Emmett’s wife was introduced to Mildred that night; she was introduced as Mrs. Malone; “Emmett held the baby; my daughter Lenora was there that night; Mildred stated that night in my presence that she was 16 years of age.”

And on cross-examination witness stated who was present at the Hanner home and who heard Mildred make the statement that she was 16 years of age.

Mrs. Templeton was called as a witness in behalf of defendant and testified in substance that Emmett Malone was her brother; that she was a sister of Mrs, Walker; that she knew Mildred Murry; that she attended a dance at Albert and Josephine Hanner’s about August, 1924; Mildred stated that night in my presence that she was 16 years old.

Evelyn Durner was called as a witness and testified:

That she was a sister of the defendant, Emmett Malone; that she attended the dance at Albert and Josephine Hanner’s about a year ago last August; Mildred Murry attended the dance; Mrs. Walker also was there that time; Mildred stated that she was 16 years old; Emmett Malone, wife and baby, also was at the dance that night; Mildred met all of the parties that were there; Mildred played with Emmett’s baby; it was in August, 1924; “I remember her statement because she was so small I could not believe she was 16.”

'Josephine Hanner, called as a witness, stated:

“There was a dance at my house, and Emmett Malone and his wife attended; Mildred Murry also attended; this dance was in August, 1924; we also had one in April, last spring; Mildred mentioned her age at the first dance; she stated she was 16 years old; there was just two lots between where they lived and my home; Clura Murry and I was at Mildred’s home, and Mildred stated she had been intimate with several men; that there was at least a half a dozen.”

On cross-examination witness stated:

“Mildred mentioned no names; .1 was at the dance and heard Mildred say she was 16 years of age; Emmett Malone was not in the kitchen at the time she made this statement.”

Mr. A. A. Wells, called as a witness, testified as to the previous good character of the defendant.

The defendant was recalled in his own behalf and denied that he had ever had any venereal disease, and also denied that he had ever owned or driven a iStude-baker.

Dr. C. C. Noblock was called, and testified in substance that he made a thorough examination of the defendant and that there was no traces shown in the blood of the defendant that he had been afflicted with any venereal disease.

Albert Hanner, called on behalf of defendant, stated that there was a party at his house in the summer of 1924 and spring of 1925; that Mildred Murry attended one or both of them; he would not be positive as to whether or not she attended both; Emmett Malone was there, and Emmett’s sisters.

. Evelyn Durner, called as a witness, testified for the defendant in substance:

That she was in the county attorney’s office some time last year when Mildred Murry told Luther Lane, one of the assistant county attorneys, that Emmett Malone was not guilty and wanted to dismiss the case; “I met her up there; I did not tell her or any one in her presence that if she did not dismiss the case we had papers all ready to send her to a reform school; Mildred stated her mother was going to send her to a reform school if she did not bring the charge against Emmett Malone; I went to the Whittier school to see the girl; I did not threaten her or say one word to her; I went to see what she would say about it; I did not tell her if she did not come in and fix it. up I would send her to the reform school; I asked her what about it and if she thought Emmett was guilty, and she said ‘No/ and I said. ‘Then why don’t you go down and dismiss it?’ I don’t remember the exact words she told Luther Lane, but she told him to drop the charge; and he asked her why, and she said because he was not guilty; she said it was another fellow; she did not name the other fellow in my presence; she told me it was some high school boys.”

Clyde Durner, called as a witness, stated:

He knew Mildred Murry just by seeing her; “I saw her at a dance once; I also saw her in the county attorney’s office; she stated that Emmett wasn’t guilty; she stated that some other boys took her out of town and she did not feel like sticking somebody who wasn’t guilty; she was prosecuting Emmett Malone because her father and mother threatened to send her to the reform school if she did not.”

On cross-examination witness stated:

“I don’t know Luther Lane when I see him; he might be a young man; she was talking to two or three different ones when I was there; they were talking to a young fellow and an old like fellow in the county attorney’s office. I went to see her to see if Emmett Malone was guilty, and she sáid ‘No.’ She said she wanted to drop the charge against him. I went out to the schoolhouse, where she signed a statement desiring to dismiss the case.”

The defendant has assigned twelve errors alleged to have been committed by the trial court. In his brief he urges as grounds for reversal his second assignment. The first error assigned by the defendant is as follows:

“That the court erred in overruling plaintiff in error’s motion for a new trial. To which ruling of the court plaintiff in error at the time excepted and still excepts.”

Under the first assignment of error may be grouped and considered all of the errors urged, as his motion for a new trial included them all. The defendant contends that the trial court erred in admitting against the defendant incompetent and immaterial evidence, but nowhere in the brief does he set out in full or in substance the testimony alleged to have been improperly admitted by the court, only making reference in his brief to pages of the case-made; an examination of the pages of the case-made referred to by the defendant fails to disclose any incompetent and irrelevant testimony permitted by the court to go to the jury over the objection of the defendant.

Defendant urges in his brief that the verdict of the jury was arrived at as a result of passion and prejudice against the plaintiff in error. The record does not disclose there was any bias or prejudice on behalf of any of the jurors, and the verdict of the jury shows there was none, as the jury assessed the minimum punishment provided by the statute.

Defendant urges that the case should be reversed for the reason that the prosecuting witness Mildred

Murry was contradicted on several points by other witnesses. The witness was corroborated by her father and mother as to her age at the time the alleged cohabitation took place. She was corroborated partly by the defendant — at least to the extent that after he met the prosecuting witness at the Hanner dance he had on one occasion driven by the schoolhouse and took her in his car and drove her down near her home. The witness is further corroborated by Anna Barnes, who attended Whittier school and who testified she saw the defendant on more than one occasion drive away from the school with the prosecuting witness in his car. Anna Barnes testified that the first time he came to the school he drove a Ford coupe, and after that a Studebaker.

It is true the record discloses that the prosecuting witness went to the county attorney’s office and asked Luther Lane, one of the assistants, to dismiss the case, The witness explaining why she did this, claiming that it was reported to her that the wife of the defendant had papers ready and was going to try to send her to the reform school. It is denied by witnesses for the defendant that defendant’s wife made any such statements, or that any one informed the prosecuting witness that the wife of the defendant made the statements. It is clear from the record, however, that an effort was being made to have the prosecution stopped, as the record discloses that parties went to the school where the prosecuting witness was attending school and got her to sign a statement asking that the case be dismissed and from there went to the law office of a Mr. Wilson; then to the county attorney’s office. The record further discloses that when she signed the statement she made some statement as to what would probably be done to her by her parents if she asked the case be dismissed.

It is strongly urged by the defendant that the prosecuting witness had 'been impeached as to her age and as to the statement as to the number of parties she had had intercourse with, and that for that reason the case should be reversed. It is true the prosecuting witness made no complaint against the defendant and perhaps never would have made complaint but for the fact that a letter written by some one to the prosecuting witness fell into the hands of her aunt, and the aunt sent the letter on to the mother of Mildred Murry, and when the mother inquired of her regarding these facts she told what had taken place.

It is also urged by the defendant that in the trial of the case the court made unfair and improper remarks in the presence of the jury which would materially prejudice the rights of the defendant. We have carefully examined the record, and while there are some statements of the court that perhaps were not necessary for the court to make, in each instance it was in explanation to questions of the counsel for the defendant, and invited by questions by the counsel of defendant. The court should refrain from allowing his actions or remarks to indicate to the jury his opinion on the credibility or character of any witness, or the guilt or innocence of the defendant. In this case we fail to find where any remark of the court in any way whatever indicated to the jury his opinion on the validity or invalidity of the testimony offered, of the credibility or character of the witnesses, or the guilt or innocence of the defendant. Shields v. State, 32 Okla. 'Cr. 344, 240 P. 661.

It is also contended by the defendant that the evidence is insufficient to sustain a conviction; that the trial court erred in not directing a verdict of not guilty at the conclusion of the case. The evidence is conflicting. The testimony of the prosecutrix is positive as to the acts of intercourse. The testimony of the defendant is equally positive in denial thereof. Therefore it was for the jury to determine the weight of the testimony and the credibility of the respective witnesses. This court has repeatedly held that a conviction for rape may stand on the uncorroborated testimony of the prose-cutrix. In this case conviction is not based alone on uncorroborated testimony. There are many facts in the record corroborating the testimony of the prosecutrix ánd showing the guilt of the accused.

A settled rule of this court is that where there is any evidence in the case from which the jury could reasonably believe that ^fche defendant was guilty of the offense of which he is convicted, the verdict of the jury will not be disturbed on the ground of the insufficiency of the evidence.

An examination of the record discloses that the defendant had a fair and impartial trial; that no bias or prejudice is shown ¿gainst him by the jury in returning its verdict; that the court did not commit error in his remarks during the trial of the case; and that the law was properly submitted to the jury, and that no prejudicial errors were committed.

The judgment and sentence is affirmed.

DOYLE, P. J., and EDWARDS, J., concur.


text:
    REX CLINKENBEARD v. STATE.
    No. A-6155.
    Opinion Filed May 12, 1928.
    (267 Pac. 485.)

      C. H. Wyand, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of selling one-half gallon of whisky to one Ike Lewis, and sentenced to imprisonment in the jail for 40 days and to pay a fine of $50. Motion for new trial was filed and overruled and exceptions saved, and defendant has appealed to this court.

The information in this case was filed on the 29th day of August, 1924, and the case was not called for trial until the 1st day of December, 1925. The record discloses that on November 30, 1925, the defendant appeared in court and filed his motion to dismiss the cause for the following reason: That more than four terms of the court have elapsed since this cause was filed in the above-named court; that is to say, that the information was filed in said court on August 29, 1924, and since the filing thereof there has been the October, 1924, term of court, the January, 1925, the April, 1925, term, a.nd July, 1925, term of said court, and that said cause was continued over from term to term without the consent of this defendant. The motion of the defendant to dismiss was overruled by the court, and defendant excepted.

On the 1st day of December, 1925, the case was called for trial, and the trial proceeded and resulted in a conviction of the defendant. It is urged by the de» fendant that the court erred in overruling the motion to dismiss the case, for the reason that more than four terms of court have elapsed since the information had been filed against the defendant, and the continuing of the case from term to term was made over his objection and without his consent. The state did not attempt to show any reason why the case had not been called for trial, and the question this court has to consider is, Should the motion of the defendant to dismiss have been sustained?

■Section 2913, C. O. S. 1921, is as follows:

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

In Culver v. State, 11 Okla. Cr. 4, 141 P. 26, in which this question was involved, the court after quoting section 6096, Kevised Laws 1910, which is the same as section 2913, C. O. S. 1921, said:

“We are inclined to think that the action of the court in continuing the case over the May term without-requiring the state to show cause operated as a discontinuance. Where no valid reason exists, or legal ground is shown by the state for the continuance, the granting of the same is a matter within the sound discretion of the court.”

Further on the court said:

“A defendant indicted for, or charged by information with, a public offense, whose trial has not been postponed upon his application, is entitled to his discharge for failure to try his case within the statutory time, in the absence of any good reason for further delay. The statute is for the purpose of carrying into effect the constitutional guaranty of a speedy trial." McLeod v. Graham, 6 Okla. Cr. 197, 118 P. 160.

In Smith v. State, 27 Okla. Cr. 294, 227 P. 901, in the first paragraph of the syllabus, in discussing the provisions of section 2913, the court says:

“It is enough for the accused to show that the time fixed by the statute, after information filed, has expired, and that the cause was not postponed on his application."

If there was any cause for holding him for a 'longer time without trial, it was for the prosecution to show it. In this case the motion of the defendant shows the date of the filing of the information and the date of the terms of court that had passed after the information was filed before his case was called for trial. The state did not controvert the allegations of his motion to dismiss, or make any effort to do so. It was therefore error to deny defendant’s motion to dismiss.

There are other errors assigned by the defendant, but in the view we take of the record we do not deem it necessary to consider them. It follows that the judgment should be reversed, with directions to discharge defendant.

DOYLE, P. J., and EDWARDS, J., concur.


text:
    JACK LEBO v. STATE.
    No. A-6181.
    Opinion Filed May 12, 1928.
    (267 Pac. 288.)

      Sigler & Jackson, H. W. Broad'bent, and Ralph Rawlings, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, who for brevity will hereinafter be referred to as defendant, was convicted in the district court of Murray county on a charge of assault with intent to rape and was sentenced to serve a term of 2i/2 years in the state penitentiary and to pay a fine of $500.

It appears from the record that at the time charged defendant, a young man about 19 years of age, took the prosecutrix, Lorynne Slaughter, who was in her seventeenth year, riding in an automobile; that the car was stopped not far from town on a highway and there defendant sought to have sexual intercourse with the prosecutrix, who resisted and made an outcry. The prosecutrix testified that she was driving the car, and, not being a good driver, killed the engine, and defendant then took the keys and put them in his pocket, put his hands upon her, and bruised her, and attempted to have intercourse with her; that they remained there an hour and a half or two hours. Several cars passed while the parties were on the highway and at one time two boys passing beard a sound from the car which they thought was a call, returned by the car, but there was no further outcry. Several cars from Davis went out to search for prosecutrix. Two police officers went in one of the cars. Just before they reached the place where the car was parked, it was started and driven into town to the place where prosecutrix was staying. The police officers followed her there and had an interview with her. She then charged defendant with having attempted to rape her. According to her own testimony, neither her dress nor her underclothing was torn; and, if rape by force was attempted, there appears no reason why she could not have called to, and have procured, assistance from cars passing. A careful consideration of the entire record leads us to believe that defendant did not attempt to rape the prosecutrix by use of force sufficient to .overcome her resistance, but sought rather by persuasion and advances to procure her consent to an act of intercourse; that when he was unable to procure her consent, and his advances were repulsed by the prosecutrix, they were not pushed to the extreme of attempting by force to overcome her resistance. The record taken all together clearly makes out a case of aggravated assault and battery. Rose v. State, 32 Okla. 294, 240 P. 754,

The judgment is modified from an assault with intent to rape to an assault and battery, and the punishment fixed at the maximum fine of $100 and 80 days in the county jail. As so modified, the case is affirmed.

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


text:
    MEL MADDEN v. STATE.
    No. A-6157.
    Opinion Filed May 12, 1928.
    (267 Pac. 286.)
    C. H. Wyand, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, herein-aftér called the defendant, was convicted in the county court of Woodward county, on a charge of possession of intoxicating liquor with the unlawful and willful intent to sell said liquor, and was sentenced by the court to serve a term of 60 days in the county jail and to pay a fine of $100.

The record discloses that on the 23rd .day of June, 1925, John J. Bouquot, sheriff of Woodward county, made application to H. B. King, county judge, for a search warrant in which he asked that a search warrant issue to search the residence, buildings, and other places on township 21, range 18, section 2, belonging to Mel Madden. The search warrant was issued which described the premises as township 21, range 18, section 2, Woodward county, Okla., as the place to be searched, and alleged that whisky, wine, and beer were unlawfully being kept by one Mel Madden for the purpose of selling.

When the state called its witnesses, the defendant interposed an objection to the testimony as to the search made by the officers, for the reason that the application for the search warrant and the search warrant were insufficient to give the officers authority to search the residence and home they had searched, which objection was overruled by the court and defendant saved an exception.

Testimony on behalf of the state from the sheriff and one or two other witnesses show they went out in the country, and by virtue of a search warrant they had in their possession searched some premises where the family of the defendant was residing, including the residence, outbuildings, and curtelage. To all of this testimony the defendant objected, and his objection was overruled, and defendant excepted.

The proof shows conclusively that the description of the property in the application for the search warrant and in the search warrant was not the description of the property searched by the officers. The defendant occupying the south half of section 3, range 18, township 21, and not occupying any portion of section 2, in township 21, range 18, nor did he have any interest whatever in the lands described in the search warrant, or the buildings thereon. The defendant denied any knowledge of any whisky being on his premises; stated that he had been harvesting and had a number of harvest hands employed, and that if they had any whisky there he did not know it.

At the close of all the testimony, the ■ defendant again renewed his objections to the testimony introduced by the state, on the ground that it had been unlawfully procured by reason of a search warrant that did not direct the officers to search the premises they had searched. The court overruled his motion, and defendant saved an exception.

Section 7012, C. O. S. 1923., provides:

“That no warrant shall issue but upon probable cause, supported by oath or affirmation describing * * * the place to be searched, and the person or thing to be seized.”

Section 7009 provides that, when it shall be made to appear to any judge of any court of record, or justice of the peace, that there is probable cause to believe that liquor is being kept for the purpose of violating the prohibitory laws, such officer may “issue a warrant, directed to any peace officer in the county, * * * commanding him to search the premises described and designated in such complaint.”

Article 2, sec. 30, of the Constitution, is as follows:

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

It will be seen from a reading of the application for the search warrant and the search warrant that the description given therein of the place to be searched is different from the place that the evidence in the case shows that the officers did search.

In Cornelius, on Search and Seizure, page 320, the author, in discussing this particular matter in paragraph 118, says:

“Where the premises sought to be searched are described by certain street numbers, obviously such a description will not authorize the search of some other street number; the description of the premises at 601 of a certain street did not authorize the search of 603 on that street, even though such premises were owned by the same individual, the search was held to be illegal.”

In the case of People v. Musk, 221 Mich. 578, 192 N. W. 485, it is said:

“A warrant to search the premises at 926 Eiwood avenue is not authority to search a residence at 932 Ei-wood avenue.”

A careful consideration of the record shows that the application for the search warrant does not contain the necessary allegations to justify the search made of the home of the defendant, as the affidavit and search warrant did not contain the necessary allegations, and the testimony shows that the officers did not search the premises described in the affidavit and search warrant, but went to another section of land and searched it. The search warrant introduced in evidence does not authorize the officers to search section 3, township 21, range 18, and their action in searching section 3 was without authority, and any evidence procured by reason of such action was unlawfully procured, and defendant’s objection to its admission should have been sustained.

Other errors are assigned by the defendant, but in the view we take of the record it is not necessary to consider them. There being no evidence on behalf of the state other than the evidence procured by the search warrant of properties not named in the search warrant, the objection of the defendant to the introduction of the evidence should have been sustained. There being no competent evidence to sustain the judgment and sentence, the judgment of the trial court is reversed and remanded.

DOYLE, P. J., and EDWARDS, U., concur.


author: PER CURIAM.

text:
    Ex parte AB PETTY.
    No. A-7005.
    Opinion Filed May 16, 1928.
    (267 Pac. 286.)
    H. W. Sitton, for petitioner.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

Ab Petty filed his petition in this court on May 7, 1928, alleging his unlawful imprisonment and restraint of his liberty by E. R. Young, sheriff of Stephens county, at Duncan, Okla. Attached to and made a part of the petition is a transcript of the proceedings had before the county court of said county, wherein the petitioner is charged with the murder of one Andrew Thomas, alleged to have been committed in said county on or about the 31st day of March, 1928, and the testimony of the defendant taken after the writ of habeas corpus was filed in this court.

The transcript discloses that, upon a preliminary-examination, the county judge committed said petitioner without bail on the offense charged to await the action of the district court thereon. At the hearing, it was contended by the petitioner that he was entitled to bail upon the testimony of the state, and upon the evidence in his behalf, for the reason that the proof is not evident or the presumption great. It is also set forth that an' application was made to the district court of Stephens county for bail and was denied. The determination and conclusion of the court in each case is based upon a settled rule of this court that, upon application for bail by writ of habeas corpus after commitment for a capital offense, the burden is upon the petitioner to show facts sufficient to entitle him to bail, when these facts do not appear from the evidence adduced on the part of the prosecution.

Upon a review of the record, it is the opinion of the court that the petitioner upon his application is not entitled to bail. Bail is therefore refused.


text:
    CHAUNCY RHODES v. STATE.
    No. A-6137.
    Opinion Filed May 19, 1928.
    (267 Pac. 490.)

      M. Bristow, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff' in error, hereinafter called the defendant, was convicted in the.county court of Caddo county, Okla., on a charge of having possession of intoxicating liquor with intent to sell, barter, give away, and otherwise dispose of the same, and was sentenced to imprisonment in the county jail for a period of 30 days, and to pay a fine of $100. Motion for new trial was filed and overruled. The defendant duly excepted, and has appealed to this court.

The record discloses that the affidavit by George G. Nixon for a search warrant was positive in form, describing the premises of the defendant to be searched; the last paragraph in the affidavit stating that the af-fiant had watched the place of defendant, and had seen a number of persons who drank whisky going into the building on said premises with Chauncey Rhodes and coming therefrom, and that affiant believed they were obtaining whisky on said premises. Upon this affidavit a search warrant was issued, and a search of defendant’s chicken house and outbuildings made, and four and one-half pints of whisky was found.-

Before the trial, defendant filed a motion to suppress the evidence procured by the search warrant, setting out various reasons why the evidence was inadmissible. This motion was overruled. The ruling of the court is assigned as an error. The defendant has discussed all of his assignments of error under the first assignment “that the court erred in overruling his mo. tion for a new trial.”

The defendant urges that the affidavit is an affidavit on information and belief, though the first paragraph of the affidavit is positive as to what is being done by the defendant in the buildings that were searched by the sheriff, and that no evidence obtained by such search was admissible, and urged that, upon the motion to suppress, it was disclosed by the sheriff that he had no positive knowledge of the violation of the law when he made the affidavit upon which the search warrant is based.

The affidavit made by the prosecuting witness in this case contained positive averments as to the things that were being done by the defendant in violation of the prohibitory laws. It is difficult for this court to understand why an officer of the law will make an affidavit as to a positive fact without any knowledge whatever as to a law violation. Officers sworn to enforce the law should make careful investigation, and, where facts are known to them, should without hesitancy make such affidavits as are necessary to properly investigate and to bring the parties to justice who are violating the law.

Whether true or untrue, the affidavit was sufficient in this case to justify the issuing of a search warrant. The purpose of an affidavit for a search warrant is the same as an affidavit verifying a complaint for a warrant of arrest, and for the protection of citizens against unlawful searches and seizures, and to comply with the Constitution and statutory requirements that a search warrant shall be issued upon probable cause supported by oath or affirmation. Article 2, § 30, state Constitution.

This court, in Phillips v. State, 34 Okla. Cr. 52, 244 P. 451, held:

“The truth of an affidavit to procure a search warrant, positively sworn to, is not an issue in the trial of a case in which evidence procured by such search warrant is offered.” Cahill v. State, 38 Okla. Cr. 236, 260 P. 91.

The sufficiency in form or substance of the affidavit or search warrant may be challenged by motion to suppress the affidavit and warrant, or by an objection to the evidence at the time it is offered by the state, but, where an affidavit sufficient in form is filed, it is the duty of the magistrate to determine judicially if there is probable cause for believing a violation of the law as stated in the affidavit exists. If the magistrate determines there is probable cause, and issues a search warrant sufficient in form and substance, which is properly executed by the officer to whom it is directed, its validity cannot be attacked by proof outside the record that the facts stated in positive terms in the affidavit were in fact made upon information and belief.

The defendant in this case urges that he did not have anything to do with the whisky found in his chicken house, nor does he know how it got there, but he admits he was occupying it with his chicken feed and tools, and that he had a key to the house and claims that on one occasion he loaned the key to another man, who, it seems, hurriedly left the place about the time the sheriff was searching it, and caught a train out of town, and has not been heard from since.

After a careful examination of the entire record and argument of the defendant, we find no error prejudicial to the ■ rights of the defendant; the defendant’s motion to suppress the evidence and his motion for a new trial was properly overruled; the instructions of the court correctly stated the law. Finding no error in the record, the judgment and sentence is affirmed.

DOYLE, p. J., and EDWARDS, J., concur.


text:
    U. S. CONLEY v. STATE.
    No. A-6135.
    Opinion Filed May 19, 1928.
    (267 Pac. 491.)
    John B. Ogden, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted in the county court of Carter county of selling intoxicating liquor, and sentenced to imprisonment in the county jail for a term of 60 days and to pay a. fine of $100 and costs. Motion for new trial was filed and overruled; exceptions saved, and defendant) .appealed [to this court.

Clyde Culberth, called as a witness on behalf of the state, testified in substance as follows: That he was employed by one of the deputies to go out and see if he could detect some parties selling whisky; that he went to defendant’s home, and asked defendant if he had any whisky; that defendant told him he did not have any whisky, but would see if he could find some, and got in the car with the witness, and rode a short distance with him, and went away from the car, and, after a while, came back, and sold the witness some whisky. Witness claimed there were two more parties in the car with him at the time, but neither of the other parties was called by the state as a witness.

Dwight Bell, a witness for the state, over the objection of the defendant, was permitted to testify as follows:

“Q. How long have you been acquainted with this defendant? A. 'Some three or four years.
“Q. Do you know where he lived on the 30th day of May, 1925? A. Yes, sir.
“Q. I will ask you if you know on the 30th day of May the reputation of his place as to whether it was a place where whisky was bartered, sold, or otherwise disposed of?
“Mr. Ogden: The defendant by and through his counsel objects, for the reason it is improper, incompetent, irrelevant, and immaterial, and is only asked by the county attorney for the purpose of trying to prejudice the defendant in the eyes and minds of the jury, and asks the court to reprimand the assistant.
“Court: I will not do so.
“Mr. Ogden: Let the record show we objected to the remarks of the court.
“Q. Is that reputation good or 'bad ? A. It is bad.
“Mr. Ogden: We respectfully move the court to strike the testimony from the consideration of the jury. Incompetent, irrélevant, and immaterial.
“Court: Overruled.
“Mr. Ogden: To which action of the court defendant excepts.”

The third assignment of error is as follows:

“That the court committed error in permitting the state to offer testimony as to the general reputation of this plaintiff in error’s home being a place where intoxicating liquor could be bought.”

It is urged by the defendant that the court, over his objection, committed error in permitting the state to offer testimony as to the general reputation of his home being a place where intoxicating liquors could be bought, and that the ruling of the court in permitting the testimony to be introduced constituted prejudicial error. The defendant argues that he was being tried on a specific sale, and not for possession of intoxicating liquor with intent to sell. It is argued by the defendant that, if he had been on trial for the possession of intoxicating liquor with intent to sell, the evidence permitted to go to the jury would not have been competent until the proper predicate was laid by showing that his place was a place of public resort.

In Westfall v. State, 30 Okla. Cr. 115, 235 P. 270, this court held:

“That where a person is prosecuted on a charge of having possession of liquor with the intent to sell, and the proper predicate is laid, the general reputation of the place where the liquors are found is competent and admissible. Davis v. State, 16 Okla. Cr. 372, 182 P. 908; Bland v. State, 18 Okla. Cr. 514, 196 P. 732. This line of evidence is admitted in that class of cases as tending to prove the intent with which the intoxicating liquors are kept, but where a single sale is charged the intent is not an ingredient of the offense, and the reason for admitting evidence of reputation does not apply. It follows that the admission of such evidence is erroneous/’

It is further argued by the defendant that, if the court had excluded from the consideration of the jury the testimony as to the general reputation of his home, the jury would not have rendered a verdict of guilty on the testimony of state witness Clyde Culberth, contradicted as it was by the testimony of those who were at the home of the defendant the night the witness Culberth claimed he bought the whisky. The state offered no testimony to show that the home of the defendant was a place of public resort or that people congregated there at all hours of the day or night.

In Miller v. State, 36 Okla. Cr. 277, 253 P. 1039, the court uses this language:

“This 'court has repeatedly held that, before * * * the general reputation of a place may be received as evidence in a case of unlawful possession, it must be shown that the place itself was a place of public resort, not merely that it bore such reputation.” Yakum v. State, 30 Okla. Cr. 184, 235 P. 253; Welch v. State, 35 Okla. Cr. 2, 246 P. 1113.

The evidence in this case charges a specific sale, and it was error for the court to permit the state, over the objection of the defendant, to show the general reputation of defendant’s home as a place where intoxicating liquors were sold. The testimony in this case is conflicting on the question of the sale. The witness Clyde Culberth, who testified on behalf of the state, discloses the fact that he was an employed witness to go out and try to detect parties violating the prohibitory laws, and is what might be termed a hired man or a public witness. The other parties that Culberth claims were with him at the time the purchase was made were not called as witnesses. The testimony of defendant’s witnesses contradicted witness Culberth by showing they were at the home of defendant before the witness claims he came to defendant’s home, and they remained there, some of them until daylight the next morning, sitting up- with a grandchild of the defendant that was very sick; that they were neighbors of the defendant, and they testify that the defendant did not leave his home that night with any one; and that he did not leave his home from the time they went there until the time they left the next morning about daylight. The record discloses that they did not have any interest in the result of the trial, and were only neighbors of the defendant.

The state offered no evidence whatever as to the home of the defendant being a place where people congregated, or to show that it was a place of public resort, -or that intoxicating liquor was being kept for the purpose of bartering or selling, or giving away, the same. If the testimony complained of by the defendant had been excluded from the jury, no one can tell what the verdict of the jury would have been, and, before evidence on behalf of the state would be admissible on the question of the general reputation of the defendant’s home, it must be shown that the place itself was a place of public resort, and not merely that it bore such a reputation. We think the objection of the defendant to the testimony of the state on the question of the reputation of his home was well taken, and that the court erred in not sustaining the same.

For the reasons herein stated, the case is reversed and remanded.

DOYLE, P. J., and EDWARDS, J-, concur.


text:
    H. S. POSTEN v. STATE.
    No. A-6065.
    Opinion Filed May 19, 1928.
    (267 Pac. 493.)

      L. D. Williams and W. W. Holloway, for'plaintiff in error.
    George F. Short, Atty. Gen., and J. Berry King, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, for brevity hereinafter called defendant, was convicted in the superior court of Okmulgee county on a charge of receiving stolen property and was sentenced to pay a fine of $100 and to be imprisoned in the county jail for a term of six months.

From the record it appears that late in October, 1924, three rugs were shipped from New York City over the St. Louis & San Francisco Railway Company to a consignee at Henryetta, Okla. A short time later, at Henryetta, it was discovered that these rugs were missing from the car in which they were shipped. Some three months after they were missed one of these rugs was found by certain officers on the floor of defendant’s home in Henryetta. The evidence is that these officers went to the home of defendant, told him they had no search warrant, but were loking for stolen property; defendant told them they might search. Upon their discovering the rug defendant stated he had purchased it at Tulsa. The officers returned the next day and took away, as stolen property, the rug, which was identified by make, stock number, and pattern. Harve Powell for the state testified, in substance, he was serving a term in the penitentiary for burglary of a box car; that he had been well acquainted with defendant for several years; that he and two other persons, Davis and Jones, burglarized the box car and took thé three hugs, and they were divided; however, he did not know of his own knowledge that one of the rugs was sold to defendant, One other of the rugs was found at the home of the witness Powell and one at the home of Fan •Davis. Defendant did not take the stand. His wife testified, in substance, that she bought the rug in question from some person who looked like a foreigner who came to her premises in October preceding the time the rug was found there in February and paid him $15 for it; that her husband never asked her where she got the rug, but she told him she bought it. One of the officers, in rebuttal, testified that at the time the rug was discovered in the home of defendant, the witness Mrs. Posten stated she had bought it on the installment plan and could get receipts showing where she had made payments on it.

The first contention made is that the court erred in refusing to quash the information. At the preliminary the justice of the peace before whom it was held made a finding of probable cause, but in his certificate certifying the cause to the superior court he failed to include a statement of a finding of probable cause, as required by section 2497, Comp. St. 192:1. Upon objection being made the state asked permission to correct the certificate, which was done; the justice testifying that the certificate was made in conformity to his finding and that it was omitted in the original certificate by oversight. This court, in the case of Norwood v. State, 14 Okla. Cr. 637, 169 P. 656, held:

“After a justice of the peace has certified to the court the record of a preliminary examination of an accused person held by him for trial upon a charge of crime, he may, upon motion to quash the information for failure to indorse upon the original complaint that he found a crime had been committed and that defendant was probably guilty thereof, by leave of the court and before the trial commences, complete such record by making said indorsement where the same is not inconsistent with the transcript of the record as previously made and certified.”

The same holding in subtsance is made in Bradshaw v. State, 16 Okla. Cr. 624, 185 P. 1102. There was no error in permitting the amendment of the certificate and thereupon overruling the motion to quash.

It is further argued that the court erred in admitting incompetent evidence. This was directed to some evidence that other stolen property was discovered at defendant’s home at the same time the rug was discovered. The evidence upon this point was slight, and, even if inadmissible, is not of sufficient importance to warrant a reversal. It was probably admissible. See Starr v. State, 7 Okla. Cr. 574, 124 P. 1109.

Some other matters are discussed in the briefs; all have had attention, but none of them are of sufficient importance to require any special discussion. The evidence, though circumstantial, is ample to support the verdict and judgment.

The case is affirmed.

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


author: DAVENPORT, 'J.

text:
    W. E. RILEY v. STATE.
    No. A-6409.
    Opinion Filed May 19, 1928.
    (267 Pac. 494.)

      J. Q. A. Harrod, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, 'J.

The plaintiff in error, hereinafter called the defendant, was convicted in the county court of Caddo county, Okla., on a charge of having possession of a whisky still for the unlawful purpose of manufacturing distilled spirits, and sentenced by the court to confinement in the county jail for 180 days, and to pay a fine of $500. Motion for a new trial, was filed and overruled, exceptions saved, and appeal perfected.

The evidence, in substance, is as follows: H. C. Diehl testified that he was the owner of the place on which the still was alleged to have been found; that the. defendant had the place rented for that year, but that defendant was not on the place when the still was found, and that he had not seen the defendant on the place, since Mr. Oney had been on the place: that witness had gotten Mr. Oney to work the cotton on the place.

George Nixon, sheriff, testified to going to the place and finding an L-shaped dugout that had a large still in it, with two pressure tanks and a barrel of mash. Defendant, Riley, was not on the place, but he learned he was in Oklahoma City with his family. Witness came to Oklahoma City and arrested defendant, and on the way back, in conversation with him, defendant told the witness that he had sold out and did not have anything to do with the place, and knew nothing about the still being on the place. The still indicated that whisky had been made in it; could not tell anything about when the whisky was made. In the bottom of the still was a gallon or two of mash, and also some stuff that had not drained out. As to the operation of the still, that is purely guess work on my part, or how long it had been there; do not know exactly, because it was connected up and a barrel was full of mash. We arrested one Oney boy and held him for a little while and turned him loose.

Bob Dutcher, William Miligan, and Bud Kerr, testified, in substance, to the same facts as George Nixon, the sheriff,, did. All of the witnesses stating that the defendant was not on the place at the time they mad© the search and seizure, and that when the defendant was arrested he stated that he had sold out and had nothing further to do with the place or anything on the same.

At the close of the state’s evidence, the defendant entered the following demurrer:

“Comes now the defendant and demurs to the evidence on the part of the state, for the reason that the same is insufficient to show that the defendant has been guilty of any offense whatever.”

The demurrer was overruled, and defendant excepted to the ruling of the court. The defendant then moved the court to instruct the jury to return a verdict of not guilty, which motion was denied, and defendant duly excepted.

The defendant called Henry Haynes as a witness, who testified that he lived three-fourths of a mile fro® the defendant during the two years defendant had lived on the Diehl farm, that he knew his general reputation for a law-abiding citizen, and that it was good. On cross-examination he said he did not know as to when Mr. Riley sold out, and that he did not know who was in charge of the place at the time the search was made.

Another Mr. Haynes was called, and testified, in substance, that Mr. Riley had lived near them two years; that he did not know the man to whom defendant sold; that defendant had been gone from the place in the neighborhood about two or three weeks when the search was made; that he knew his reputation as a law-abiding citizen, and that it was good.

Defendant, called in his own behalf, testified that there was no still on the place when he left it; that he never did have a still on the place while he lived on it; the roads the officers testified were made on the place were there when he rented it; that he sold out his interest in the crop, stock, and implements on the 20th day of May, prior to the time the officers claim to have searched the farm in June; that after he sold out he had nothing further to do with the place, nor did he have any interest in anything further on the place; that he sold to a man by the name of Jenks, and that Jenks brought one of the Oney boys with him when he came to the place. Defendant further stated that he did not know where Jenks was, and denied that he stated to the sheriff that he had been on the place two days before the search was made. •

On cross-examination, he stated he did not know who put the still in the cave; that he positively did not know anything about it at all. He- was asked:

“Have you ever been convicted of violating the pro-hifoitory laws? A. No, sir; I never was arrested. I was out at the farm during the time I was farming sufficient to cultivate the crops. I came to Oklahoma City to visit my family on Saturday nights, and usually returned Sundays.”

The defendant was excused and subsequently recalled for further cross-examination by the county attorney, and stated that he did not have the Oney boy on 'the farm looking after his stuff, and that he told the sheriff he had sold out, but he did not remember telling the sheriff that he had sold to the Oney boys; that he sold out to Jenks. The witness was then excused. The testimony was closed, and the defendant moved the court to direct the jury to return a verdict of not guilty. Again the state asked permission to reopen the case to ask defendant further questions, which was granted, and the county, attorney propounded the following questions:

“Q. Did you build that cave there on that place? A. No, sir.
“Q. Who did? A. I don’t know.
“Q. That cave was not there when you went on that place? A. I suppose it was.
“Q. Did you swear it was? A. No, sir. There was a cave there on the place; there in the woods; the cave I saw was 16 by 8 feet; if the cave you have reference to was put there last February, I don’t know it.”

The witness Diehl was recalled by the state and asked when the cave was put on the place; he said he had never seen it before the raid; I could not say that the cave was there six months ago.

The case was again reopened on motion of the defendant, and the defendant called to the stand and questioned further. The following questions were submitted to him:

“Q. Was there any still on the place when you moved there? A. No, sir.
“Q. Was the cave over there when you moved there? A. The old cave?
“Q. That cave down where the road led to? A. No, sir.
“Q. You don’t know whether there was a still there or not? A. No, sir.”

The foregoing is, in substance, all the testimony introduced.

The first, seventh, and the ninth assignments of errors may be grouped together, as they relate to the sufficiency of the evidence. The eighth alleges “error of the court in not instructing the jury on circumstantial evidence.”

The eighth assignment will first be considered by the court. It is not denied that the defendant sold his interest in the stock, implements, and crops on the place on May 20th, prior to the search alleged to have been made on the 10th day of June; that the defendant, when the search was made, was living in Oklahoma City, where his family had been residing, and was not on the place or anywhere about the place when the search was made. The proof further shows that two men by the name of Oney were on the place at the time the search was made, and one of them was taken into custody by the sheriff and kept for a short while and then released, neither of whom were called as witnesses in this case. The testimony of the owner of the farm shows that he did not know of the still being on the place or the cave mentioned in the testimony being there. The neighbors living near the farm testified without contradiction as to the reputation of the defendant as to being a good law-abiding citizen.

The county attorney, on cross-examination, without any objection on the part of defendant, asked the defendant the following question: “If he had ever been convicted of a violation of the prohibitory laws;” and the defendant answered, “No, sir; I have never been arrested.” The state was bound by the answer of the defendant. There was no testimony of a contradictory character to show that he had been convicted.

The defendant insists that the testimony in this case is purely circumstantial, and that it was the duty of the court to instruct the jury on the law as to circumstantial evidence even though no request by the defendant was made for such an instruction. In the motion for a new trial, defendant raised the question that it was the duty of the court to have instructed the jury as to the law on circumstantial evidence, which motion was overruled.

The only evidence in any way tending to connect the defendant with the still found was the fact that he had been cultivating the place where the still was found for two years prior to the search of the farm. The evidence of the defendant is undisputed that he had sold out several days before the search was made and had no further interest whatever on the place. Defendant cites the following authorities to sustain his position that it was the duty of the court in this case to have instructed the jury on circumstantial evidence:

In Matthews v. State, 8 Okla. Cr. 676, 130 P. 125, in the first syllabus, the court says:

“Where the case depends on circumstantial evidence alone, the court should instruct the jury that they should acquit the defendant, unless the circumstances proven are of such a conclusive character as to exclude every other reasonable hypothesis save that of the defendant’s guilt.”

In Willard v. State, 26 Tex. App. 126, 9 S. W. 358, the court said:

“This conviction is based wholly upon circumstantial evidence, and the court, having failed to instruct the jury with regard to that character of evidence, committed error for which the conviction must be set aside.”

See Polanka v. State, 38 Tex. Cr. R. 634, 28 S. W. 541.

In this case the court did not instruct the jury with reference to circumstantial evidence, nor did the defendant request the court to give such an instruction. We think that, in view of the testimony in this case, an instruction upon circumstantial evidence should have been given, but, as no request was made by the defendant for an instruction on circumstantial evidence and no exceptions reserved to the failure of the court to give an instruction on circumstantial evidence, we do not feel that the case should be reversed on that ground.

It is further urged by the defendant that the testimony in this case is insufficient to sustain the verdict. Upon an examination of the entire testimony, we are not satisfied that the circumstances proven are of such conclusive nature as to preclude any other reasonable hypothesis save that of the guilt of the defendant.

The judgment of the lower court is therefore reversed and remanded.

DOYLE, P. J., and EDWARDS, J., concur.


text:
    WALTER DICKOVER et al. v. STATE.
    No. A-6212.
    Opinion Filed May 19, 1928.
    (267 Pac. 671.)

      C. R. Reeves and Wm. H. Lewis, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error, hereinafter called defendants, Were convicted in the county court of Oklahoma county on a charge of having the unlawful possession of intoxicating liquor. Defendants Everett Dickover and Lloyd Sturgus were each sentenced to pay a fine of $50, and to be confined in the county jail for a term of six months. Walter Dickover was fined $50, and sentenced to serve a term of 90 days in the county jail.

The record discloses that at the time charged two officers made something of a general raid in the neighborhood of Wright Station, some 16 miles southeast of Oklahoma City. About a mile distant, and on another section of land from the residence of Walter Dickover, where all the defendants resided, they found a still and some mash. There were some tracks leading from this still to an abandoned section line and from that on to the place of Dickover, which the officers testify they followed to the Dickover house. There they found defendant Sturgus in bed and arrested him, took him to Oklahoma City, and procured a search warrant and returned to the Dickover place. They searched the Dickover house without finding any incriminating evidence, but not far from the house in some bushes found four empty barrels.

While they were there, the other defendants, Walter and Everett Dickover, came up in a car. The officers looked in the turtleback of the ear, and found three sacks of sugar and a bushel of rye. They then took the Dickovers, and went to where they had found the still, and, while further searching about, there found two five-gallon jugs of whisky in the underbrush, 25 or 30 yards from the still. The search warrant with which the officers returned to- the Dickover place is challenged, and, under the record, it appears to be invalid, as the affidavit called for the northeast quarter of section 22, and the search warrant called for the northeast quarter of section 23. The Dickovers lived on section 22. There was some evidence of the discovery of the error in the search warrant, and the correction before it was issued by the justice of the peace. Its validity is questioned for other reasons. The evidence is not clear, but we think it immaterial, for the reason that the whisky upon which the charge is based was a mile from the Dickover home on a different tract of land, and in 'woodlands where a search might legally be made without a search warrant.

The officers testified the tracks at the still corresponded to the tracks of the three defendants, although the evidence is that one of the officers suggested to Sturgus that he had changed his shoes; the inference being that his shoes did not correspond with the tracks. There is no evidence that the tracks where the whisky was found, if any, corresponded with the tracks of defendants. There is no evidence that any of the defendants were ever seen in the immediate vicinity where the still and whisky were found, or going to or returning therefrom. The finding of the sugar in the back of the car is a circumstance pointing to the guilt of the defendants, and we have a strong suspicion they were connected with this or some other whisky or still, as, no doubt, did the jury, but the evidence, being entirely circumstantial, is not of such a conclusive character as to exclude any reasonable hypothesis than the guilt of defendants. We are constrained to hold the evidence insufficient to sustain the judgment.

The case is reversed and remanded.

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


text:
    HARRY LUSTER v. STATE.
    No. A-6856.
    Opinion Filed May 19, 1928.
    (267 Pac. 1118.)
    L. A. Wallace, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

This appeal is from a judgment and sentence of the district court of Okmulgee county, rendered July 1, 1927, on a plea of guilty entered to an information, charging that in said county, on the 17th day of May, 1927, the defendant, Harry Luster, did unlawfully, willfully, and feloniously shoot at one W. M. Shelton, and Bert Martin with a pistol, with the felonious intent to kill said persons. The petition in error and transcript of the record proper was filed in this court on December 28, 1927. On May 15, 1928, the plaintiff in error, by his counsel of record, L. A. Wallace, filed in this court a motion to withdraw and dismiss his appeal herein. Which motion is sustained, and the appeal herein is dismissed, and the cause remanded to the lower court, with direction to enforce its judgment. Mandate forthwith.


author: DOYLE, P. J.

text:
    JOE DOBBINS v. STATE.
    No. A-6136.
    Opinion Filed May 19, 1928.
    (267 Pac. 678.)
    John B. Ogden, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

Appellant was convicted on information charging him with the possession of intoxicating liquor, and in accordance with the verdict of the jury was sentenced to pay a fine of $50 and imprisonment in the county jail for 30 days.

To reverse the judgment, appellant assigns as error the admission of evidence which was obtained in executing a search warrant illegally issued.

The record shows that J. A. Salyer made affidavit before J. A. Cameron, justice of the peace in the city or Wilson, alleging “that in Carter county, on the 6th day of June, 1925, the above-named defendant, Mrs. Dobbins at No. - street, in a certain building described as follows: Residence in Sec. 21, 4 S, 2 W, about 250 yards N. & W. of Humble Warehouse in Carter county.” Then follows the usual form as to possession. And the same day a search warrant issued to J. A. Salyer, and reciting that “Mrs. Dobbins and John Doe, whose real name is not known, has sundry liquors, whisky, choc beer, and other intoxicants at No.-street, in a certain building described as the one-story residence,” etc.

The return thereon is signed, “J. A. Salyer, Constable-Sheriff.”

The evidence shows that J. A. Salyer and W. W. Holder went to the home of Mrs. Dobbins, the mother of appellant; that appellant was not there; that they searched Mrs. Dobbins’ three-room residence, finding 48 bottles of choc and one-half pint of whisky. They then went to where appellant was working, and arrested him.

All the state’s evidence was admitted over the objection of counsel for appellant, on the ground that the search warrant was illegally issued, and during the trial the question was saved for review by motion to strike and demurrer to the evidence.

It is contended that the search warrant was void, because the application therefor runs in the name of Mrs. Dobbins only, and gives no reason for omitting her first name, and that the search warrant runs in the name of Mrs. Dobbins and John Doe; that neither complaint nor warrant properly describes the place to be searched, that the same are void because in conflict with the provision of the bill of rights, “and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be, the place to be searched and the person or thing to be seized” (Const, art. 2, § 80) ; and that the same was issued in violation of section 7013, C. S. 1921, providing:

“No warrant shall be issued to search a private residence, occupied as such, unless it, or some part of it, is used as a store, shop, hotel, boarding house, or place for storage, or unless such residence is a place of public resort.”

Upon a careful examination of the record, we are satisfied that the evidence offered by the state was incompetent, because the same was obtained by an illegal search under a void search warrant, the same having been issued upon an affidavit insufficient to authorize the magistrate to act upon it. Sprinkle v. State, 36 Okla. Cr. 36, 251 P. 614; Vice v. State, 36 Okla. Cr. 18, 251 P. 509; Langham v. State, 35 Okla. Cr. 57, 248 P. 349; Jones v. State, 35 Okla. Cr. 91, 249 P. 354.

For the reasons stated, the judgment is reversed.'

EDWARDS and DAVENPORT, JJ., concur.


text:
    WALTER McKEE v. STATE.
    No. A-6457.
    Opinion Filed May 26, 1928.
    (267 Pac. 681.)
    W. F. Brumfield, for plaintiff in error.
    . Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Walter McKee, was tried and convicted and his punishment fixed at a fine of $150 and confinement in the county jail for 30 days on an information charging that he did have in his possession one-half gallon of whisky with the unlawful intent to sell the same. From the judgment an appeal was perfected by filing in this court a petition in error with case-made.

No brief has been filed and no appearance made in behalf of plaintiff in error in this court. The errors assigned question the sufficiency of the information and the sufficiency of the evidence to sustain the verdict.

The information is sufficient and an examination of the record fails to disclose any error in the admission or rejection of evidence or in the instructions given to the jury, and the evidence is clearly sufficient to sustain the verdict.

The judgment of the lower court is accordingly affirmed.


text:
    S. C. LAMBERT v. STATE.
    No. A-6085.
    Opinion Filed May 26, 1928.
    (267 Pac. 679.)
    Titus & Talbot, 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 Alfalfa county on a charge of selling intoxicating liquor and was sentenced to serve a term of '30 days in the county jail and to pay a fine of $200.

The record discloses that at the time charged two young men, Tittle and Landon, were trucking well casing from the south part of Alfalfa county to some point in Kansas. They stopped at the city of Cherokee about noon and there met two other young men, Clark and Woods, of whom they inquired if they knew where they could get something to drink. Woods and Clark went in search of intoxicants, but failed to find any, and soon returned. They then directed Landon and Tittle to meet them at a certain point about six miles north, and they left in a Ford car, and Tittle and Landon drove their trucks to the place appointed, and there met Woods and Clark, who had a gallon bucket of wine. All drank of this wine, and they decided they wanted some more, so Landon and Woods went to the home of defendant a mile or so distant, and there purchased another gallon of wine, Landon paying for it. Tittle and Landon became thoroughly intoxicated and Tittle with the truck he was driving had a collision with a Ford car. . Defendant denied that he made the sale and offered some further testimony. Although conflicting, there is ample evidence to warrant the jury in finding defendant made a sale of the wine as charged. The weight and credibility of the evidence was for the jury and the verdict will not be disturbed for insufficiency. It is also argued that there was misconduct in the trial in the court permitting the county attorney during the recess to take the witness Landon to the scene of the transaction, which enabled him to identify the house at which the wine was purchased as the house of defendant. No authorities in support of this contention are cited and this fact presents no ground for reversal.

The case is affirmed.

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


text:
    E. J. COLE v. STATE.
    No. A-6525.
    Opinion Filed May 26, 1928.
    (267 Pac. 678.)
    J. Earl Smith, H. S. Hines, and Howard F. Wilson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, E. J. Cole, hereinafter called the defendant, was convicted of the crime of bank robbery with firearms, in the district court of Kay county, Okla., and was sentenced to a confinement in the state penitentiary for a term of 10 years. Motion for new trial was filed and overruled, and defendant duly excepted. From the judgment and sentence so rendered, the defendant appeals. '

The defendant has filed no brief supporting his assignment of errors, although the time for filing the brief has long since passed, and various extensions of time to file the brief have been granted. Where no briefs are filed, the court will examine the record proper, and, where no prejudicial error is apparent, the judgment of the trial court will be affirmed.

After a. careful examination of the record, the court finds that the information is sufficient; that the testimony is sufficient to support the verdict; that the instructions fairly stated the law applicable to the case and were fair to the defendant; and it appears that the defendant was otherwise accorded a fair trial.

The judgment of the trial court is affirmed.

DOYLE, P. J., and EDWARDS, J., concur.


text:
    D. M. SMITH v. STATE.
    No. A-6158.
    Opinion Filed May 26, 1928.
    (267 Pac. 682.)
    C. H. Wyand, 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 Woodward county on a charge of having the possession of whisky with intent to violate the prohibitory liquor law, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

The record is very brief. From the evidence it appears that on the date charged there was a fair at the town of Woodward, and in the nighttime the defendant and another went to a ear which was parked along with many others, and defendant took from behind the cushion of the seat a half-pint bottle of whisky, and he and the other person took a drink out of it. Soon thereafter he was arrested, and on the following day a charge of drinking in a public place was lodged against him in the county court, to which charge he pleaded guilty and paid a fine of $50 and costs. This charge of possession was then filed against him. A plea of former jeopardy based on the charge of public drinking was made, which plea the court excluded.

It is impossible to tell from the record for what offense defendant was convicted. The instructions to the jury enumerate all of the offenses as they are enumerated in section 7009, Comp. St. 1921. The manufacturing, selling, bartering, giving away, or furnishing liquors or substitutes therefor; the manufacturing, selling, bartering, giving away, of furnishing any liquids or compounds of any kind containing as much as one-half of 1 per cent, of alcohol, and capable of being used as a beverage; the shipping or conveying of liquor from one place to another; the soliciting the purchase or the advertising; the having possession of any such liquors with the intention of violating any of the provisions of such chapter. The jury was not told for which of the enumerated offenses the defendant was on trial. No particular offense is defined to them, nor are they told what facts they must find before they can return a verdict of guilty. The verdict is no more definite; it simply finds the defendant guilty. It does not state of what oírénse defendant Is guilty, nor does it refer to the charge in the information. The evidence might sustain a charge of having possession of whisky, the transporting of whisky, or the giving away or furnishing of whisky. It is settled by many decisions of this court that the trial judge, without request, should instruct the jury on all the essential elements of the offense. Roberts v. State, 36 Okla. Cr. 28, 251 P. 612. The instructions should give the law of the case, including a definition of the offense sufficient to inform the jury what facts are necessary for the .proof to establish in order to justify them in finding a verdict of guilty. Brock v. State, 6 Okla. Cr. 23, 115 P. 1026; Wilkerson v. State, 37 Okla. Cr. 43, 256 P. 63; Snelling v. State, 30 Okla. Cr. 280, 235 P. 943.

The case is reversed and remanded.

DOYLE, P. J., and DAVjENPORT, J., concur.