text:
    JOHN MAYBERRY v. STATE.
    No. A-8080.
    Opinion Filed Sept. 5, 1931.
    (2 Pac. [2d] 976.)

      H. A. Johnson, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Noble county of murder and was sentenced to life imprisonment.

At the time charged, defendant and his wife, Melissa Mayberry, negroes, had been married about two years. About a week prior to' the homicide they had a controversy and defendant had not been staying at the home. Late on the .Sunday afternoon of the tragedy, Nathaniel Johnson, a grown son of deceased by a former marriage, was at a hotel and became intoxicated. Defendant and his wife assisted him to their home and he fell into a drunken slumber. About an hour and a half later, and after dark, he awoke and defendant and his wife engaged in a quarrel. As a climax, defendant fired two shots from a pistol, one of which inflicted a wound upon the wife from which she died in some 30 minutes. The son of deceased, the only eyewitness other than defendant, testified that defendant deliberately shot deceased. Defendant testified that when the stepson, Johnson, awoke he threatened defendant and attempted to attack him with a knife and that the shots were fired for the purpose of intimidating and preventing Johnson from assaulting him; that the shooting of deceased was entirely accidental. There are various facts and circumstances not recited. The court submitted to the jury the issues of murder, manslaughter in the first degree, justifiable homicide by an accidental killing, and self-defense.

Complaint is made of error in the court’s instruction No. 10. This correctly defines murder as applied to the facts in this case, and concludes:

“* *. * In the event you find defendant guilty, you should also> by your verdict assess the punishment to be inflicted; which punishment shall be by imprisonment in the state penitentiary for life, or that the defendant shall suffer death as prescribed by law, in the discretion of the jury.”

The point sought to be made is that from this instruction the jury must have understood they could assess no punishment other than death or life imprisonment; that it is misleading in not telling the jury the foregoing punishment applied to murder only. If this instruction were considered alone, the argument might have some weight; but the excerpt quoted is from the instruction defining murder. Following this is an instruction defining and submitting manslaughter in the first degree and stating the punishment for this lesser degree of crime. Following this is a definition of justifiable homicide as applied to the facts. In addition, the jury are told they must not select any one of the instructions, but all must be construed together in harmony with each other. The verdict finds defendant guilty “of murder.” The assignment is without merit.

It is argued instruction 17 is erroneous. This instruction is:

“When an attack has been made by one person upon another and the person making the attack or any other person is killed, in determining whether the killing is excusable, if the person killed is an innocent- bystander, the nature and purpose of the attack, the existence of or appearance of danger and the extent thereof, the amount or degree of force necessary and sufficient to be used to avoid the apparent or threatened danger, and all the facts and circumstances in the case must be viewed and considered from the standpoint of the person doing the killing, at the time of the killing, and from no other standpoint, and if, when viewed from his standpoint, providing the facts support it, or if you have a reasonable doubt thereof, it reasonably appears that the act of the defendant was necessary to prevent death or great bodily harm to himself, such would constitute excusable homicide.”

It is contended this instruction requires it to reasonably appear to the jury that the act of defendant was necessary to prevent death or bodily harm to defendant, and not that it appeared reasonably necessary to the defendant to act as he did. This argument overlooks the fact that they are told they must view the situation from defendant’s standpoint. The jury are the triers of the facts. They are not bound to accept the testimony of defendant that he believed himself in danger, but it is for the jury to say, viewing the situation from defendant’s standpoint, whether or not his claimed apprehension was reasonable. Turner v. State, 4 Okla. Cr. 164, 111 Pac. 988; Mulkey v. State, 5 Okla. Or. 75, 113 Pac. 532; Fixico v. State, 39 Okla. Cr. 95, 263 Pac. 171; Lemmons v. State, 39 Okla. Cr. 383, 265 Pac. 652; Whisenhunt v. State, 40 Okla. Cr. 50, 266 Pac. 792; Lary v. State, 50 Okla. Cr. 111, 296 Pac. 512.

Instruction 17, supra, is to be considered in connection with No. 21, which is also challenged. This instruction is in substance that where a defendant seeks to justify a killing on the ground that the act from which death resulted was in his necessary self-defense, it must reasonably appear to him at the time that he was in danger of losing his life or suffering great bodily harm. Substantially the same instruction has been approved several times by this court.

Complaint is made that the court erred in refusing several requested instructions of defendant. The principle embodied in these various requests are sufficiently covered by the charge of the court, and. the charge of the court as a whole fully and fairly covers the law of the case. There was no error in refusing the requested instructions. Hawkins v. State, 24 Okla. Cr. 82, 216 Pac. 166; Hamilton v. State, 38 Okla. Cr. 62, 259 Pac. 168; Wheat v. State, 38 Okla. Cr. 119, 259 Pac. 279.

Finally, it is urged the county attorney was guilty of prejudicial misconduct in his argument to the jury. This objection first appears in the motion for a new trial. There is no recital in the record nor is there any bill of exceptions by the trial judge that the argument complained of was made The argument is not embodied in the record nor showing that counsel objected at the time and moved to exclude the argument from the consideration of the jury. The court at the time of overruling the motion for a new trial made a finding against defendant’s contention. Where argument is not taken in shorthand and embodied in the record, the finding of the trial court recited in the record is binding on this court. Moody v. State, 13 Okla. Cr. 327, 164 Pac. 676; Richards v. State, 22 Okla. Cr. 329, 211 Pac. 515, 516.

Upon a consideration of the entire record, we are convinced the evidence amply sustains the judgment and that the record is free from prejudicial error.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    BILL BARBER v. STATE.
    No. A-8060.
    Sept. 5, 1931.
    (2 Pac. [2d] 975.)
    Clay Snodgrass, for plaintiff in error. .
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Jackson county of the crime of selling intoxicating liquors, and was sentenced to pay a fine of $75 and serve a term of 45 days in the county jail, and has appealed.

The petition in error and transcript of the record were filed in this court on January 9, 1931. No further appearance has been made by the plaintiff in error, nor any further extension of time asked in which to file brief in support of the assignments of error.

We have carefully examined the record,- and find the information properly charges -the offense. The defendant was accorded a fair and impartial trial. No' fundamental errors appear in the record sufficient to warrant a reversal.

The judgment of the trial court is affirmed.


author: CHAPPELL, J.

text:
    L. B. HARRIS v. STATE.
    No. A-7994.
    Sept. 5, 1931.
    (2 Pac. [2d] 975.)
    S. R. Harper and Chas. G. Ozmun, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Comanche county of the crime of murder, and her punishment fixed by the jury at imprisonment in the state penitentiary for the term of her natural life.

The record discloses that on the 13th day of August, 1929, the defendant shot and killed one Ted Culver, in the town of Lawton; that deceased was a member of the Oklahoma National Guard attending the annual encampment at Ft. Sill; that in company with three other soldiers he visited the cafe of the husband of defendant; that some difficulty arose there between the soldiers, and that defendant shot deceased in the back with a revolver, and that he died shortly after receiving the wound.

Judgment was entered on the 3d day of April, 1930; the appeal was filed in this court on the 2d day of October, 1930.

No briefs in support of the appeal have been filed, and no appearance for oral argument was made at the time the case was submitted. Where an appeal from a conviction for a felony is prosecuted to this court and is not supported by brief or oral argument, this court will examine the record for jurisdictional or fundamental errors, and will read the evidence to ascertain if it reasonably supports the verdict and judgment. If no such errors appear, and the evidence supports the verdict and judgment, the case will be affirmed.

On account of the gravity of the case, we have examined the record with care and find no jurisdictional or fundamental error.

The evidence supporting the verdict of the jury, the cause is affirmed.

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


text:
    FRED MOBBS v. STATE.
    No. A-8066.
    Sept. 5, 1931.
    (2 Pac. [2d] 974.)

      I. O. Correll and Robert N. Allen, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Atoka county of the crime of unlawful possession of intoxicating liquor, and his punishment fixed by the court at a fine of $100 and confinement in the county jail for a period of 30 days.

The evidence of the state was that the officers had a search warrant and on searching defendant’s premises found five or six gallons of Choctaw beer; that they drank some of it and that it was intoxicating, one of the officers testifying that he felt the effects of it after drinking it, and all testifying to their experience with Choctaw beer and to the fact that it was intoxicating; that defendant’s place was a place of public resort and that its reputation as being a place where intoxicating liquors were kept for sale was bad.

Defendant testifying for himself admitted that he had the beer, but claimed that it was not intoxicating and that he had it for his own use. On cross-examination he admitted that he had previously been convicted of violation of the prohibitory liquor laws.

Defendant contends first that the evidence is insufficient to support the verdict of the jury. This contention is without any merit.

Defendant next contends that the court erred in overruling his motion to suppress the evidence obtained by the search, for the reason that the affidavit was made on information and belief.

The jury were excused. The state produced the affidavit and the warrant. Defendant then sought to cross-examine the officer who made the affidavit, for the purpose of showing that he had no actual information upon which to base his affidavit. When the state objected, the trial court examined the affidavit and warrant and overruled defendant’s motion.

In Ray v. State, 43 Okla. Cr. 1, 276 Pac. 785, this court said:

“Where the affidavit and search warrant are sufficient on their face, the evidence obtained by the search is admissible, and the court will not permit the accused, after the warrant lias been executed, to show that the statements in the affidavit are not true, or to raise any question as to the accuracy or source of the affiant’s information or the means by which it was obtained.”

See, also, Herren v. State, 49 Okla. Cr. 223, 293 Pac. 276.

Defendant’s motion to suppress was properly overruled.

Defendant next contends that the court erred in sentencing him on the same day that the jury returned its verdict.

Neither the defendant nor his counsel made any objection at the time judgment and sentence was pronounced, nor did they allege in their motion for new trial that the court was without authority to pronounce such judgment and sentence, and they did not in their petition in this court complain of such alleged error.

Errors occurring during the trial cannot be considered unless they were incorporated in the motion for a new trial, and. thereby submitted to' the trial court, and its ruling thereon excepted to, and afterward assigned for error, unless such error is fundamental. Ledgerwood v. State, 6 Okla. Cr. 105, 116 Pac. 202; Mitchell v. State, 7 Okla. Cr. 563, 124 Pac. 1112; Dew v. State, 11 Okla. Cr. 581, 149 Pac. 917; Brashears v. State, 38 Okla. Cr. 175, 259 Pac. 665.

The record presents no question for this court upon the legality of the judgment and sentence pronounced against the defendant.

A careful examination of the record discloses no fundamental error, and the cause is affirmed.

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


author: DAVENPORT, P. J.

text:
    R. C. ALCORN v. STATE.
    No. A-8119.
    Sept 5, 1931.
    (2 Pac. [2d] 973.)

      Jas. A. Embry, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error was convicted in the county court of Lincoln county of having possession of intoxicating liquor, to wit, 16 half pints of corn whisky, containing more than one-half of 1 per cent, alcohol, measured by volume and capable of being used as a beverage, with the intent then and there on the part of the said Ik C. Alcorn to- sell, barter, give away, or otherwise furnish same, and his punishment fixed at 30 days in jail and a fine of $50. Prom which judgment the defendant appeals.

The petition in error and case-made was filed in this court on the 23d day of March, 1931. No further appearance has been made by the plaintiff in error, nor any further extension asked for time to file brief in support of the assignments of error.

Where no brief is filed and no- personal appearance made, this court presumes that the appeal is without merit or has been abandoned. We have carefully examined the record and find that the- information properly charged an offense; that the defendant was accorded a fair and impartial trial; that no fundamental or prejudicial errors appear in the record.

The judgment of the trial court is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    NORMAN ALLEY v. STATE.
    No. A-8120.
    Sept. 5, 1931.
    (2 Pac. [2d] 973.)
    J as. A. Embry, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error was convicted in the county court of Lincoln county of having possession of intoxicating liquor, to wit, three pints of corn whisky, containing more than one-half of 1 per cent, alcohol, measured by volume, and capable of being used as a beverage, with the intent then and there, on the part of the said Norman Alley, to sell, barter, give away, or otherwise furnish the same, and his punishment fixed at confinement in the county jail for a period of 60 days and a fine of flOO and costs of the prosecution. Prom which judgment the defendant appeals.

Petition in error and case-made were filed in this court on the 23d day of March, 1931. No' further appearance has been made by the plaintiff in error, nor any further extension asked for time to file brief in support of the assignments of error.

Where no brief is filed and no personal appearance made, the court presumes that the appeal is without merit or has been abandoned. We have carefully examined the record and find the information properly charged an offense; tha.t the defendant was accorded a fair and impartial trial; that no fundamental or prejudicial errors appear in the record.

The judgment of the trial court is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    HOMER COATNEY v. STATE.
    No. A-7963.
    Aug. 28, 1931.
    Rehearing Denied Sept. 5, 1931.
    (2 Pac. [2d] 604.)
    L. M. Gensman, for plaintiff in error.

      J. Berry King, Atty. Gen., and Ed. Crossland, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, Avas. convicted in the district court of Comanche county of the crime of perjury, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of five years.

The evidence of the state Avas that the defendant Avas charged in the county court of Comanche county Avith the crime of transportation of intoxicating liquor; that said cause Avas called for trial and Avas being tried in said court; that the defendant Avas duly SAvorn by the court clerk of said county to testify' in said trial in his own behalf, and testified as follows:

“Q. After you turned west and got down to the road and went west, did you at any time throAV any whisky out of that car? A. No, sir. Q. Did anybody in the car throAV Avhisky out of that car? A. No, sir. Q. Did anybody in the car throw it out? A. No, sir.”

That said evidence was material in the trial of said case and was false and untrue and known by the defendant to be false and untrue at the time he gave the same.

Thereupon the state called the officer who arrested defendant, who testified that he pursued this car and arrested him, and that whisky was being poured out of the car and flew back in his face; that a jar was thrown out of the car, and that Avhen he succeeded in stopping the car there was a fruit jar lid in the car with some whisky in it, and that this lid fitted the jar thrown out of the car; that defendant was driving the car; that the floor and the right-hand side of the car were saturated with whisky. This officer was corroborated by the testimony of two officers who came to assist him.

Defendant did not take the witness stand.

Defendant complains first that the court erred in permitting the state to amend the information.

The amended information was filed on the 11th day of March. Trial was had on the 31st day of March. The original information set out the evidence of the defendant as follows:

“Q. After you turned west and got down to the road and went west, did you at any time throw any whisky out of that car? A. No sir. Q. Did anybody in the car throw it out? A. No, sir.”

The language in the amended information was:

“Q. After you turned west and got on down the road and went west, did you at any time throw any whisky out of that car? A. No, sir. Q. Did anybody in the car throw whisky out of that car? A. No, sir. Q. Did anybody in the car throw it out? A. No, sir.”

.Section 2512, O. O. S. 1921, provides:

“An information may be amended in matter of substance or form at any time before the defendant pleads, without leave, and may be amended after plea on order of the court where the same can be done without material prejudice to the right of the defendant; no1 amendment shall cause any delay of the trial, unless for good cause shown by affidavit.” Elkins v. State, 29 Okla. Cr. 175, 233 Pac. 491; Orum v. State, 45 Okla. Cr. 193, 282 Pac. 899; Rich v. State, 46 Okla. Cr. 242, 284 Pac. 903; Potter v. State, 47 Okla. Cr. 254, 288 Pac. 362.

It was not error for the trial court to permit the state to amend the information.

Defendant next contends that the court erred in giving an oral instruction to' the jury.

It appears from the record that the court gave the regular written instructions, and that the jury retired to consider their verdict. That later, through the bailiff, they made known to the court their desire to be brought into court, whereupon they were brought in, the defendant and his counsel being present, the state being present by the county attorney, and the following proceedings were had:

“By the Court: I understood you wanted to ask a question. Juror: Judge, there seems to be a question as to the meaning of the word Throw’ — some seems to think there is a question as to the meaning of the word Throw’. If a man would kick it out or push it out or drop it out or some other way besides throw it out, would that be the same as throwing it out of the car? By the Court: I take it it would mean the same thing, anyway he got it out of the car. Juror: He is asking the direct question, Judge, if you will excuse me. By the Court: Suppose if it were pushed out, it would be the same thing; if it were pushed out or shoved out it would be the same thing, or dropped out, it would be the same thing as thrown out, or if it were kicked out or pushed out. Juror: If it was poured out on the floor board would that be the same thing as being thrown out, according to the way the question was asked? By the Court: Let me see what the question was. Do you have the instruction with you? Juror: Yes, sir. By the Court: Under the question there I would say if someone were to pour it out like taking a dipper or something of that kind, pouring it out the window, it would be throwing it out. For instance if someone dumped out — if someone took a bottle of whisky and poured it out the window, that would be throwing it out, throwing it out the window. I am not saying as to whether he did anything like that; I am not passing on the guilt or innocence, I am just merely talking as to whether the taking and pouring it out a window would constitute a throwing out. It would. I will make that of record so if I am wrong the matter may be taken up on appeal. By Mr. Gensman: To' which the defendant objects as to form and as to the law therein stated. The Court: Overruled. Mr. Gensman: Exception. Hereupon the jury retired, in the custody of the sworn bailiff, for further deliberation.”

The explanation given by the court was of the meaning of the word “throw.” According to Webster’s New International Dictionary, this word when used in connection with the word “out” means to cast out, to reject, to discard, to expel, and the meaning of the word given by the court would come within the terms of this definition. The court did not attempt to pass upon or express any opinion as to> whether such act had been committed; told the jury that he was not saying whether defendant did anything like that, and that he was not passing upon his guilt or innocence. This explanation was certainly not such as required or amounted to the giving of an instruction. While the defendant took exception to the court’s explanation, he did not state his reason for objecting that the instruction was oral and he did not present this question to the court in his motion for a new trial and does not allege it as a ground of error in this court.

In Rea v. State, 3 Okla. Or. 281, 105 Pac. 386, 106 Pac. 982, this court, in substance, said error of the trial court in giving instructions orally will not be reviewed on appeal, unless presented to the trial court in motion for a new trial.

In Bird v. State, 22 Okla. Or. 268, 210 Pac. 925, 926, in the body of the opinion, this court said:

“While ordinarily we do not mean to approve of the giving of oral explanations: of written instructions, pending the deliberations of the jury, yet under the circumstances here, where there were no specific objections to the giving of oral explanations, and where the explanations given did not amount to a material modification of tlie written instructions, the irregularity will be considered as waived.”

Defendant next contends that the court erred in refusing him additional peremptory challenges.

The record discloses that one Kinsey was called into the jury box, and on his examination it developed that he was a candidate for sheriff. Thereupon, the defendant challenged him for cause, which the trial court denied.

Thereupon Fred Heinz was called into' the jury box, and on his voir dire examination it developed that he had served as a juror in the federal court several years prior to being called, in a case where defendant was being tried in the federal court, but that the offense was not the same as the one charged now. Thereupon, defendant challenged the juror for cause, which was denied by the court.

Before the jury was finally impaneled, these prospective jurors were peremptorily challenged by defendant, and other jurors were called into the box, after which defendant used all of his peremptory challenges. There is nothing in the record to indicate that any objectionable juror was forced upon the defendant, and nothing to indicate that the rights of the defendant were prejudiced by refusal to grant additional peremptory challenges.

Defendant next complains of misconduct of the county attorney in his argument to the jury.

Only a part of the argument is taken. It appears from the part taken that the state was answering, argument previously offered by defendant’s counsel as to certain witnesses. Defendant contends that this argument indirectly referred to the fact that defendant had failed to take the witness stand. The argument is not subject to this criticism.

Defendant complains of other errors1, but they are all without' substantial merit.

For the reasons stated, the causei is affirmed.

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


text:
    JOE JOHNSON v. STATE.
    No. A-8086.
    Sept. 5, 1931.
    (2 Pac. [2d] 972.)
    Justin Hinshaw, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of the possession of intoxicating liquor, with the intent to barter, sell, give away, or otherwise furnish to others, and was sentenced to pay a fine of $500 and to be imprisoned in the county jail for six months. Motion for new trial was filed, considered, and overruled, and the defendant duly excepted.

The state, in order to sustain its allegations, over the objection of tbe defendant, offered in evidence the affidavit for the search warrant and the search warrant, which affidavit for the search warrant and the search warrant, omitting the captions and jurats, are as follows:

“Be it remembered, That on this day, before me, the undersigned, county judge in and for Cleveland county, state of Oklahoma, came W. W. Jennings, who, being by me duly sworn, deposes and says, that the prohibitory liquor laws of the state of Oklahoma have been and are being violated by reason of the facts, towit:
“That in and upon the premises hereinafter described, and the buildings situated thereon, intoxicating liquors, to wit: Whisky, wine, beer, have been and are now being unlawfully manufactured, possessed, kept, stored, used, sold, bartered and disposed of; and a still, mash, vats, barrels, and other containers, designed and intended for use in the unlawful manufacture of' intoxicating liquors are kept and used, said premises and buildings being described as follows, towit:
“708 Lahoma .St., City of Norman, Okla., same being a place of public resort.
“Being premises of Hazel Brown, and being situated in the county of Cleveland, State of Oklahoma.”
“The State of Oklahoma,
“To Frank Boggs, Sheriff of Cleveland County, Oklahoma, or tO' any Deputy therein:
“Whereas, complaint on oath, and in writing, supported by affidavit has this day been made before me, George Allen, County Judge in and for said County and State, by W. W. Jennings alleging that the prohibitory laws of the State of Oklahoma are being violated by reason of the following facts, towit:
“That in and upon the premises hereinafter described and the buildings situated thereon, intoxicating liquors, towit: Whisky, wine, and beer have been, and are now being unlawfully manufactured, possessed, kept, stored, used, sold, bartered and disposed of; and other articles designed and intended for use in the unlawful manufacture of intoxicating, liquors are kept and used, said premises and buildings being described as follows, towit:
“708 Lahoma St., City of Norman, Okla., same being a place of public resort.
“Being the premises of Hazel Brown and being situated in the County of Cleveland, State of Oklahoma.”

The defendant alleges that the court erred in overruling his motion for a new trial and in the admission of incompetent evidence. The recitations in the application for the search warrant and the search warrant were with reference to the offense charged, and the introduction of the affidavit for the search warrant and the search warrant as independent evidence was error prejudicial to the rights of the defendant. Bruner v. State, 44 Okla. Cr. 425, 281 Pac. 319.

It is not- necessary to consider the other errors assigned. For the error herein mentioned, the case is reversed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    THEODORE GROSS v. STATE.
    No. A-8112.
    Sept. 5, 1931.
    (2 Pac. [2d] 971.)

      Tom C. Greer, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the district court of Blaine county of forgery in the second degree, and his punishment fixed at imprisonment in the state penitentiary for a period of one year, and costs of this prosecution, from which judgment the defendant has appealed.

The petition in error and case-made was filed in this court on the 17th day of March, 1931. No further appearance has been made by the plaintiff in error; nor any further extension of time asked in which to file brief in support of the assignments of error.

We have carefully examined the record, and find the information properly charges the offense. The defendant was accorded a fair and impartial trial. No fundamental errors appear in the record sufficient to warrant a reversal.

The judgment of the trial court is affirmed.


text:
    REO STURTZ v. STATE.
    No. A-8108.
    Sept. 5, 1931.
    (2 Pac. [2d] 971.)

      P. L. Long, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Wagoner county of the crime of robbery with firearms, and his punishment fixed by the jury at imprisonment in the state penitentiary for 30 years.

The evidence of the state was that the defendant, Ealph Ehodes, and Eddie Cowden committed the crime of robbery with firearms by robbing the Security National Bank of Coweta, in Wagoner county; that Ehodes and Cowden entered the bank and committed the robbery; that the defendant was the driver of the car and did not enter the bank; that a short time after the robbery, Tulsa county officers met defendant, Ehodes, and Cowden in a car drviing towards Tulsa; that the officers turned and followed the car driven by defendant for several miles; that when one of the officers signaled with his whistle for defendant to stop the car, the occupants of the car fired on the officers; that the officers returned the fire, wounding Ehodes. and that thereupon defendant, Ehodes, and Cowden abandoned the car and fled into the timber on the creek bottom; that at about dark defendant and Ehodes were arrested together, and when questioned if they were the robbers of the Coweta Bank they answered that they were the men they were looking for. Defendant, Ehodes, and Cowden were positively identified.

Defendant did not take the witness stand, and offered no evidence.

In their trial held just prior to the trial of the defendant, Rhodes and Cowden were found guilty and given 50 years in the penitentiary.

On June 25th, this case was orally argued, but no briefs have been filed. We have read the evidence and find it sufficient to support the verdict of the jury.

A careful examination of the record discloses no' fundamental errors. The cause is therefore affirmed.

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


author: EDWARDS, J.

text:
    MORRIS QUINN v. STATE.
    No. A-8100.
    Sept. 5, 1931.
    (2 Pac. [2d] 970.)
    R. R. Rittenhouse, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county of tlie theft of an automobile, and was sentenced to serve a term of 15 years in the penitentiary.

The record discloses that at the time charged defendant, a young man about 20 years, of age, and two other young men, stole an automobile at Tulsa and were apprehended with it near Sand Springs. Defendant and his companion at the time they were apprehended by the officers were disarmed. After they were taken to Tulsa, and when in the elevator for an upper floor to be confined, defendant drew a pistol concealed on his person, which the officers had not found, thrust it against one of the officers, and threatened to kill him, but was. prevented. Defendant did not take the stand, and offered no testimony.

The main contention is that the court erred in permitting the state to. offer testimony of the difficulty in the elevator. The state insists this evidence was admissible as showing an attempt to escape. Evidence of resistance to arrest, flight, escape or attempt to escape, is generally held admissible as showing a consciousness of guilt. The presumption arising from such conduct may be rebutted, and it is for the jury to say whether or not the conduct is due to a consciousness of guilt. 1 Wig. on Ev. 276; People v. Talbe, 321 Ill. 80, 151 N. E. 529; Cox v. State, 25 Okla. Or. 252, 220 Pac. 70. The surrounding facts and circumstances in this case render this evidence competent. Unexplained as it was, the jury must have believed the attempt to use the pistol was in an attempt to escape.

It is also, argued the punishment is excessive. If the record disclosed no more than the bare theft of an automobile, we should agree with counsel that it is too severe, and modify the judgment. However, we have judicial knowledge of the fact, evidenced by the press daily, that robberies, hijacking, and such crimes are of almost daily occurrence. Defendant and his companions being heavily armed when apprehended with this stolen automobile and his desperate attempt to escape indicate the theft of this car was but preparatory to the commission of further crimes.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    HENRY C. ROMINES v. STATE.
    No. A-8003.
    July 31, 1931.
    Motion to Review Denied Sept 5, 1931.
    (2 Pac. [2d] 969.)
    L. M. Gensman, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was charged by information in the county court of Comanche county with possession of intoxicating liquors, and on a plea of guilty the court sentenced the defendant to serve a term of 45 days in the county jail and pay a fine of $100 and costs. The defendant’s plea of guilty was. entered on the 17th day of July, 1930, and on the 16th day of September, 1930, the defendant filed his motion to withdraw his plea of guilty; which motion was on the 16th day of September, 1930, overruled and defendant duly excepted. Notice of appeal was given, and the defendant has appealed to this court.

The defendant in his motion to withdraw his plea states in support of the same that at the time he entered his plea of guilty he Avas not able to procure counsel and the court did not advise him of his right to have counsel; that he was informed by the arresting officer that it was merely a case of possession and that a small fine would only be assessed against the defendant; that he was arrested by federal officers McNeal and Reddick; that as he was arrested by federal officers he understood the federal law would apply and that only a small fine would be assessed ■ against him where there was only a charge of possession of intoxicating, liquor; and relying upon the representation made to him he entered his plea of guilty; that since he entered his plea of guilty he learned he was laboring under a misapprehension of the law, and that the minimum punishment for such an offense is a $50 fine and incarceration in the county jail for a period of 30 days.

The motion of the defendant to withdraAV his plea of guilty is verified, but upon an examination of the record there is nothing to show that the promise was made to him by any person connected with the county court of Comanche county having authority to make such a promise. The defendant states in his motion to withdraw his plea that he did not know whether the whisky found in the car was intoxicating or not; he had nothing to do with it; that the whisky was discovered by the federal officers, after an unlawful search and without a search warrant or writ of any kind or description; that he did not own or possess the whisky and is not guilty of any other offense against the laws of the state of Oklahoma or the laws of the United States.

The defendant insists that the court erred in not sustaining his motion to withdraw his plea of guilty. No testimony was taken, and the only facts the court had to guide it was the charge in the information which was duly and regularly filed. A motion to withdraw a plea of guilty has been held by this court in many cases to be addressed to the sound discretion of the trial court. The defendant in his motion to withdraw his plea of guilty relies on his inexperience and want of knowledge of the law. The defendant entered his plea of guilty more than 60 days before he was called before the court to receive his sentence, and his motion to withdraw his plea of guilty was filed on the day he was sentenced. A conviction and sentence, based upon a plea of guilty, will not be disturbed unless there appears a clear abuse of the court’s discretion. Kemp v. State, 35 Okla. Cr. 128, 248 Pac. 1116; McAtee v. State, 39 Okla. Cr. 10, 262 Pac. 703; Daugherty v. State, 51 Okla. Or. 104, 299 Pac. 925; Ney v. State, 51 Okla. Or. 187, 300 Pac. 417, and Conarro v. State, 51 Okla. Or. 314, 1 Pac. (2d) 837.

The motion of the defendant to1 withdraw his plea of guilty and enter his plea of not guilty does not state sufficient grounds to warrant a reversal of this case. There is nothing in the record to show that the trial court abused its discretion in overruling defendant’s motion to withdraw his plea of guilty.

In view of the condition of the record in this case, we believe that the punishment imposed on the defendant is excessive, and that the judgment should be modified to confinement in the county jail for 45 days and a fine of $50, and as modified the judgment is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


author: EDWARDS^ J.

text:
    R. E. JOHNSON v. STATE.
    No. A-8014.
    Aug. 15, 1931.
    Rehearing Denied Sept. 5, 1931.
    (2 Pac. [2d] 601.)
    Vance & Bliss and Hugh M. Bland, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS^ J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Muskogee county of larceny by fraud, and was sentenced to serve a term of four years in the penitentiary.

At the time charged defendant was manager of a gin belonging to the Muskogee Gin & Cotton Company. The evidence for the state discloses that he fraudulently issued a check on the gin company signed by himself as manager to one L. C. Cochran, in the sum of $128.30, that the cheek was not given for cotton, but was issued to Cochran without consideration on a prearranged plan by which Cochran would receive and cash checks and divide the proceeds with defendant. Cochran, who had pleaded guilty to the same charge and was serving a term in the penitentiary, testified for the state fully sustaining the charge.

Complaint is first made that the court erred in permitting the county attorney, after the trial had begun, to amend the information. The information alleged the owner of the money appropriated to be “Muskogee Gin and Cotton Company, a partnership composed of Muskogee Cotton Oil Company, a corporation, P. A. Norris and G. W. Croisant.” During the course of trial, the county attorney, by leave of court, amended the information to allege the “partnership was composed of Muskogee Cotton Oil Company, a corporation, Choctaw Cotton Oil Company, a corporation, and G. W. Croisant.”

Prosecuting, officers should ascertain the necessary facts as to ownership before informations are filed. Amendments after the trial has begun should be allowed only when it can be done without prejudice to the rights of an accused. Section 2512, Comp. St. 1921; Lowe v. State, 7 Okla. Cr. 32, 121 Pac. 793; Leyerle v. State, 31 Okla. Cr. 179, 237 Pac. 871; Robards v. State, 37 Okla. Cr. 371, 259 Pac. 166; Orum v. State, 45 Okla. Cr. 193, 282 Pac. 899.

Tbe amendment is one of form only, and could not have been prejudicial to defendant. The money obtained by the check in question belonged to the Muskogee Gin & Cotton Company. The actual condition of the legal title is of no particular consequence. Little v. State, 21 Okla. Cr. 1, 204 Pac. 305. Sec. 2560, Comp. Stat. 1921.

The contention is next made that there is no' corroboration of the testimony of Cochran, the accomplice. The corroboration is largely circumstantial. Corroboration by circumstances is sufficient. Moody v. State, 13 Okla. Cr. 327, 164 Pac. 676; Winfield v. State, 18 Okla. Cr. 257, 191 Pac. 609. While not attempting to- enumerate all, these circumstances may be noted: That several other checks were issued by defendant to Cochran under similar conditions tending to1 prove a plan or scheme at about the time the check in question was issued. Also defendant wrote Cochran, and on an occasion or two met him at the bus station as he came to Muskogee for the different checks. Further, defendant deposited in a bank at Muskogee $440 during the month of October, only $75 of which was a salary payment.

Lastly, it is urged that the court erred in not instructing the jury they could not convict upon the testimony of an accomplice unless corroborated. This court has frequently held that, when a defendant requests an instruction in the language of section 2701, Comp. St. 1921, it is error for the court to- refuse it. Logan v. State, 23 Okla. Cr. 316, 214 Pac. 944; Hewett v. State, 38 Okla. Cr. 105, 259 Pac. 144. No exceptions were taken to the instructions given, nor was there any request for any addi tional instruction. If counsel for a defendant are of the opinion that additional instructions should be given the jury, they should present them to the court in writing, with the request that they be given. Where no objection is made or exception taken to the instructions given by the- court, and no request for additional instructions, error cannot be predicated upon the failure of the court to give any particular instruction. Sparks v. State, 34 Okla. Cr. 373, 245 Pac. 1061; Regier v. State, 30 Okla. Or. 299, 235 Pac. 936; Duncan v. State, 41 Okla. Cr. 89, 270 Pac. 335; Carmichael v. State, 44 Okla. Cr. 160, 279 Pac. 515; Battles v. State, 45 Okla. Cr. 242, 282 Pac. 689.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    BARNEY BRIGHT v. STATE.
    No. A-8063.
    Aug. 21, 1931.
    Rehearing Denied Sept. 5, 1931.
    (2 Pac. [2d] 600.)
    Morris & Wilhite, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called the defendant, was convicted of having possession of mash fit for distillation, and sentenced to pay a fine of $250, and he imprisoned in the county jail for six months, and has appealed. The testimony on behalf of the state in substance is that on March 9, 1929, the sheriff and his deputies went on a tract of land with a search warrant, and searched the barn and premises leased and controlled by the defendant. They found ten barrels of mash, some empty barrels, and a copper cooker and some other articles. The officers stated the articles were such as could be used in a still.

The defendant admitted that he had possession of the.premises in question; that he had been keeping some cattle on the premises; that he had some hay in the chicken house near the barn. The defendant denied any knowledge or ownership of the cooker or the articles the officers claim they found that could be used as a still, and denied he had anything to do with the mash in question or the barrels found by the officers. The defendant stated that a man by the name of Smith had been occupying the house on the lease near the barn where the mash was found. Smith was not called as a witness. The defendant’s home was about a mile from the place where the officers claim they found the mash.

The defendant further testified that he had not been on the premises for some weeks prior to the finding of the distillery and the mash. The state offered some testimony tending to show that the defendant was on the leased premises the day prior to the day the officer found the mash. The testimony further shows that the other parties charged with the defendant had been tried and acquitted. There is no positive testimony connecting defendant with the crime for which he was tried and convicted. All of the testimony of the state is circumstantial.

Several errors have been assigned by defendant as grounds for reversal. The only errors deemed necessary to consider are the first and sixth assignments, which are as follows:

“1. Said court erred in overruling the motion of the plaintiff in error for a new trial.
“6. The verdict and judgment are cruel and excessive.”

It is urged by the defendant that the testimony is insufficient to sustain the judgment, citing in support of his contention paragraph 6 of section 2754, C. O. S. 1921, which requires the granting of a new trial where the verdict is contrary to the evidence. In this case the jury by its verdict found there was sufficient testimony to convict. This court has passed upon this question repeatedly and held that, where there was any competent evidence from which the jury could reasonably and logically find the defendant guilty, though conflicting or such that different inferences may reasonably be drawn therefrom, it would not substitute its judgment on the question of fact or weight of the evidence for that of the jury. Shields v. State, 32 Okla. Or. 344, 240 Pac. 661.

In Tennison v. State, 32 Okla. Or. 257, 240 Pac. 323, this court held:

“Where the evidence is conflicting, and that in behalf of the prosecution such that if believed by the jury a verdict of guilty should result, a judgment of conviction will not be reversed on the ground that the verdict is contrary to the evidence.”

The evidence in this case is sufficient to sustain the judgment. The court properly instructed the jury as to the law of circumstantial evidence and the facts as shown by the record. ,So far as the record in this case shows, this is the first time the defendant has been charged with a crime. Considering all the circumstantial evidence and the facts surrounding the same, it appears that the verdict of the jury is excessive, and that the ends of justice would be properly met by a modification of the sentence to a fine of $150, and three months in jail, and, as modified, the judgment is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    TOLLIE BROWN v. STATE.
    No. A-7774.
    July 11, 1931.
    Rehearing Denied Sept. 5, 1931.
    (2 Pac. [2d] 595.)
    Bishop & Short, and Phillips & Lamore, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was by information charged with the crime of murder, was convicted of manslaughter in the first degree, and was sentenced to serve a term of thirty years in the state penitentiary at Mc-Alester. From the judgment and sentence, defendant has appealed.

The appeal was filed in this court on March 26, 1930. No brief has been filed on behalf of the defendant. Several errors have been assigned as grounds for reversal of this case. After a careful examination of the record, the errors do' not possess sufficient merit to warrant a reversal. Finding no fundamental or prejudicial errors in the record, the judgment is affirmed.

EDWAEDS and CHAPPELL, JJ., concur.


text:
    BEN LANGLEY v. STATE.
    No. A-8078.
    Aug. 28, 1931.
    Rehearing Denied Sept. 12, 1931,
    (2 Pac. [2d] 604.)
    Darnell & LaEue, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Custer county of the unlawful transportation of intoxicating liquor, and his punishment fixed by the court at a fine of $100 and imprisonment in the county jail for thirty days.

The evidence of the state was that J. W. Cooke, a deputy sheriff aud policeman in the town of Clinton, observed the defendant and Arthur Jones, a porter at the Hawks Hotel, in conversation; that this officer concealed himself in the alley in the rear of the hotel; that in about fifteen minutes defendant drove into the alley in his car and got out and went into the hotel, carrying a package under his coat; that he went upstairs to the public toilet on the second floor; that the officer was following immediately behind him, but unseen by the defendant; that the porter opened the toilet door and defendant took from under his coat the package and set it down on the floor of the toilet; that the officer could see that it was whisky, and took it up from the floor and arrested the defendant; that the package contained a half gallon of whisky. The whisky was identified and introduced in evidence.

Arthur Jones, the porter, testifying for the state, admitted talking to the defendant, and that defendant went to the toilet with a package under his coat, but denied he knew it was whisky.

Defendant, testifying for himself, admitted the possession and transportation of the whisky, but claimed the officer took it from his person and from under his coat, without his consent and without waiting for him to set it down in the toilet.

The defendant raises but one question, and that is the admissibility of this evidence.

There is a conflict in the evidence. This was for the jury. The defendant having admitted the possession and transportation of the liquor, as testified to by the officer, the jury were justified in disbelieving his explanation of wbat occurred in the toilet and believing that of the officer.

The evidence of the state shows that the liquor was obtained in a public place, in the presence of the defendant, after the officer had seen defendant deposit it upon the floor of the toilet. No search warrant or warrant of arrest was necessary in that kind of a case.

For the reasons stated, the cause is affirmed.

EDWARDS, J., concurs. DAVENPORT, P. J., absent.


text:
    W. O. MORGAN v. STATE.
    No. A-8029.
    Aug. 28, 1931.
    Rehearing Denied Sept. 12, 1931.
    (2 Pac. [2d] 603.)

      E. M. Carter, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Lincoln county of the crime of perjury, and his punishment fixed by the jury at imprisonment in the state penitentiary for ten years.

Defendant was charged with the crime of perjury committed in the trial of Golden McCollum, charged with robbery with firearms of the First National Bank of Prague, Okla.

The evidence in this case and the questions of law arising are practically the same as in Billy McCollum v. State, 52 Okla. Cr. 28, 2 Pac. (2d) 291, decided by this court on the 21st day of August, 1931, wherein the said Billy McCollum was charged with the crime of perjury committed in the trial of Golden McCollum, and in which case there is a synopsis of the evidence and a full discussion of the questions of law involved.

The evidence being sufficient to support the verdict of the jury, and the questions of law having been decided adversely to the defendant in Billy McCollum v. State, supra, the cause is affirmed.

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


text:
    FLORENCE DALE v. STATE.
    No. A-8049.
    Aug. 28, 1931.
    Rehearing Denied Sept. 12, 1931.
    (2 Pac. [2d] 607.)
    H. A. Johnson, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Noble county of having the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of flOO and to serve 60 days in the county jail.

At the time charged, certain officers with a search warrant went to the residence of defendant, which was also a rooming house, made a search, and found four half-gallon jars of whisky concealed in a washbench upon which a tub of wash water was sitting. Defendant was a married woman, but at the time her husband had been incarcerated in the jail for some 10 days. ,She denied possession or knowledge of the whisky.

It is argued there is not sufficient proof of defendant’s possession, but that the presumption is that the whisky was in the possession of her husband. The title of the real estate was in the wife, and they operated the rooming house together. While living together, there is no presumption either one was in possession to the exclusion of the other. Section 1516, Comp. St. 1921, has no application in this case. The concealment of the whisky in the place where it was found and the fact that a tub of water was sitting on top of the loose board concealing it fully justified the jury in finding defendant had the possession. We see no reason to disturb the verdict of the jury.

The case is affirmed.

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


text:
    Z. D. COMBS v. STATE.
    No. A-8102.
    Sept. 12, 1931.
    (2 Pac. [2d] 1037.)
    F. R. Blosser, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of arson in the second degree, and his punishment fixed at imprisonment in the penitentiary for the term of one year and one day; and he appeals.

The record in this case was filed in this court March 9, 1931; no brief has been filed in support of the defendant’s assignment of errors.

A careful examination of the record discloses no fundamental error, and the evidence is sufficient to sup-' port the verdict of the jury. The case is therefore affirmed.

EDWARDS and CHAPPELL, JJ., concur.


author: CHAPPELL, J. EDWARDS, J.

text:
    JACK COMBS v. STATE.
    No. A-7830.
    Sept. 5, 1931.
    Dissenting Opinion Sept. 12, 1931.
    (2 Pac. [2d] 1037.)
    Cheatham & Beaver, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the superior court of Creek county of the crime of grand larceny, by the jury, who returned the folloiving verdict:

“We, the Jury impaneled and sworn in the above entitled cause, do1 upon our oaths, find the defendant guilty of grand larceny, and fix his punishment at eighteen months in the penitentiary, and we recommend that he be paroled to any person or institution who' will take him in charge and provide whatever operation or medical attention, if any, be necessary.”

Defendant assigns and argues numerous errors, but for the purpose of this opinion it will only be necessary to consider the second assignment, which is:

“The court erred in permitting the transcript of testimony of Ellis Abraham and Mrs. Ellis Abraham, taken at-the preliminary hearing, to be read to the Jury, and to be received in evidence at the trial of the defendant.”

It appears from the record that the preliminary complaint was filed against the defendant on the 17th day of April, 1929, and a warrant duly issued for the arrest of the defendant; that on the 19th day of April, 1929, a preliminary hearing was had before the magistrate who issued the warrant. It further appears from the record that, when defendant was arraigned, the following proceedings were had:

“Mr. Cameron: Jack, are you ready for preliminary hearing? Jack Combs: Yes, sir. The Court: Jack, have you an attorney? Jack Combs: No. The Court: Are you going to get any? Jack Combs: Well, they wouldn’t let me call up at Sapulpa.' Mr. Cameron: If you want one we will give you time now to employ one. Jack Combs: I guess I don’t want one.”

Thereupon the state introduced its evidence, and at the conclusion of the testimony of each witness the following proceedings were had:

“The Court: Jack, do you want to ask the witness any questions? Jack Combs: No'.”

Thereupon, at the close of the state’s evidence, the following proceedings were had:

“The Court: Jack, do you want to take the witness stand? Jack Combs: Well, I guess so. The Court: Just tell what you know about this business.”

Thereupon the defendant gave a brief detail of how a man named Frank Schrivener asked him to get him a radio and how he went and got this one and was to have $20 for it. And thereupon the county attorney cross-examined the defendant and made him go into minute detail and tell all of the transaction.

At the time of the trial, the state filed an affidavit showing that the witnesses Ellis Abraham and Mrs. Ellis Abraham, who had testified at the preliminary examination, were out of the state and their presence could not be procured in the trial of the case, and asked the court for leave to read the transcript of the evidence of these witnesses to the jury, to which defendant objected' for the reason that defendant was not represented by counsel and did not conduct a cross-examination of the witnesses, and that the admission of this testimony would be to deny him his constitutional right to be confronted by the witnesses and to have them cross-examined by counsel.competent to conduct such examination.

Article 2, § 20, Constitution of Oklahoma, provides:

“In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in Avhich the crime shall have been committed: Provided, that the venue may be changed to some other county of the state, on the application of the accused, in such manner as may be prescribed by law. He shall be informed of the nature and cause of the accusation against him and have a copy thereof, and be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his behalf. He shall have the right to be heard by himself and counsel; and in capital cases, at least two days before the case is called for trial, he shall be furnished with a list of the witnesses that will be called in chief, to prove the allegations of the indictment or information, together with their post-office addresses.”

Section 2349, C. O. S. 1921, provides:

“In a criminal action the defendant is entitled:
“First. To a speedy and public trial.
“Second. To be allowed counsel, as in civil actions, or to' appear and defend in person and with counsel; and
“Third. To produce witnesses on his behalf, and to be confronted with the witnesses against him in the presence of the court.”

The general rule is that, when a witness has testified at one trial and defendant has had an opportunity to cross-examine him, and upon a subsequent trial said witness is dead or absent from the state, his testimony taken at the first trial may be used by the state. 16 Corpus Juris, 839.

For a full discussion of this question, see Williams v. State, 42 Okla. Or. 319, 276 Pac. 515.

The general, if not the universal, holding of the courts is that the essential purpose of the constitutional provision is to secure to' the accused the right to cross-examine, and, if he has once enjoyed that right, no constitutional provision is violated by admission of the evidence of such witness who is dead or absent from the state at the subsequent trial.

In Blagg v. State, 36 Okla. Or. 337, 254 Pac. 506, this court said:

“The accused may Avaive his constitutional right to meet the AAdtnesses face to face.”

This general rule of course presupposes sufficient mental capacity in the defendant to understand the import of the proceedings and to comprehend the necessity of counsel to protect him in his constitutional and statutory rights.

In the case at bar the evidence is that the defendant Avas shot in the nose Avhen he Avas about eleven years of age and some hard substance Avas lodged in his head, and that since that time he had been at times irrational and mentally incompetent and possessed of a mania for taking the property of other people apparently without any definite purpose or idea of ownership or responsibility. The verdict of the jury practically amounts to a finding of criminal insanity.

The only evidence offered by the state to prove the corpus delicti was that of the absent witnesses, the transcript of Avhose testimony was read to the jury over the objection of defendant, and without which evidence the defendant could not have been convicted. It cannot be said in cases of this kind that the same rule applies, but rather that defendant’s lack of mental capacity and the fact that he was not represented by counsel would render such evidence inadmissible.

If the defendant had been represented by counsel and had an opportunity to cross-examine the witness and failed to do so, he could not complain, and the evidence would have been admissible. But the facts in the case at bar are far different to those covered by the general rule, in that defendant was not represented by counsel and in that the whole record, including the verdict of the jury, indicates that he was of unsound mind and unable to cross-examine the witnesses or to waive his right to counsel. It was reversible error, therefore, for the court to admit this evidence over defendant’s timely objections.

For the reasons stated, the cause is reversed.

DAVENPORT, P. J., concurs.

EDWARDS, J.

(dissenting). I am unable to assent to the majority opinion. Defendant was charged with grand larceny. He had a preliminary trial at which the state introduced testimony of witnesses and defendant testified in his own behalf. He was held for the district court. An information was filed and came on duly for trial in the district court. The defense was insanity, or rather that defendant was a confirmed kleptomaniac. At the trial two material witnesses for the state were absent. The state made a sufficient showing, and a transcript of the testimony of the two witnesses taken at the preliminary was admitted in evidence. The jury returned its verdict finding defendant guilty, and in addition added a recommendation, which the majority opinion treats as surplusage. The case is reversed, because a transcript of the testimony of the witnesses taken at the preliminary was introduced in evidence. This opinion overturns two well-settled rules of this court, each supported by a long line of authorities: First, that this court will not reverse a case on the weight of the evidence where there is substantial evidence supporting the verdict. Second, where a witness has testified at the preliminary and defendant had the 'opportunity to cross-examine the witness, and his testimony is preserved, if the witness, Avith proper diligence cannot be produced at the final trial, a transcript of his testimony so taken is admissible. The verdict of the jury is a finding against defendant’s claim of insanity and a finding that he is responsible for the crime committed. The majority opinion holds that, because defendant did not have the ability to cross-examine the witnesses introduced at the preliminary, the transcript of their testimony is not admissible, and because the court admitted it he is therefore entitled to a new trial. This decision sets at naught the many decisions of this court announced from its existence till the present time that the jury are the triers of the facts and their verdict will not be disturbed on the weight of the evidence when there is any evidence to sustain it. It invades the province of the jury and decides that defendant was not mentally qualified to cross-examine the witnesses at his preliminary trial. If this case is to be followed, the transcript of an absent witness would never be admissible in a case where a defendant did not have an attorney at his preliminary examination, unless the defendant were himself an attorney and capable of cross-examining the witnesses.

The majority opinion quotes article 2, § 20, of the Constitution, and section 2349, Comp. St. 1921, that a defendant is entitled to counsel and to a speedy trial. The record and the opinion shows that the magistrate offered defendant time to procure counsel if he wanted it, and he answered: “I guess I don’t want one.” .There is no provision in this state for the appointment of counsel for an accused before a committing magistrate, and yet the majority opinion uses this language:

“If the defendant had been represented by counsel and had an opportunity to cross-examine the witnesses and failed to do so, he could not complain, and the evidence would have been admissible.”

If this is the law, defendant who expects to interpose the well-worn plea of insanity, or, as in this case, “the irresistible impulse to steal,” should always appear before the committing magistrate without counsel, for, by the rule announced in this case, the testimony of the witnesses taken at the preliminary in such case would not be competent against him in the final trial.

For these reasons, I dissent.


text:
    FRANK GRIFFIN v. STATE.
    No. A-8089.
    Sept. 12, 1931.
    (3 Pac. [2d] 239.)
    D. B. Madden and Walter Hubbell, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Beck-ham county of the crime of murder, and his punishment fixed by the jury at imprisonment in the state penitentiary for life.

.Joe Pounds, Jess Brown, and defendant were jointly-charged with the murder of O. H. Phillips, sheriff of Beck-ham county. Pounds entered a plea of guilty and was sentenced to life imprisonment in the state reformatory at Granite. A severance was granted and defendant Jess Brown put upon trial first. The jury found him guilty and fixed his punishment at life imprisonment in the state penitentiary, and thereafter defendant was placed on trial and was also found guilty by a jury and his punishment fixed as above stated.

The evidence in the case at bar is practically the same as that in Brown v. State, 52 Okla. Or. 110, 3 Pac. (2d) 237, decided at this sitting of the court, except that the defendant Griffin took the witness stand and testified in his own behalf.

Defendant contends that the evidence is insufficient to support the verdict of the jury, for the reason that the testimony of Joe Pounds, the accomplice, was not corroborated.

This case is stronger than the one against Brown, for the reason that defendant having taken the witness stand, the state was enabled to get in evidence a statement containing admissions made by defendant shortly after the commission of the homicide, which statement was taken in writing, signed by defendant and sworn to. In this statement defendant made admissions which strongly tend to connect him with the commission of the offense.

For a full discussion of the additional facts tending to connect defendant with the commission of the offense, and for authorities supporting the holding that the accomplice was sufficiently corroborated, see Brown v. State, supra.

It is also contended that the trial court erred in permitting the state to prove in this case, in effect, that the codefendant Jess Brown had a motive for killing Phillips. Proof of motive for a killing is not indispensable to a conviction, but in this case proof of motive was proper in view of the fact that the state relied upon circumstantial evidence to a large extent to show facts that corroborated the accomplice Joe Pounds and tended to connect the defendant with the crime.

When the state connected Griffin with Brown and connected them both with Pounds in the killing, then proof of motive on the part of either or both of them became competent, because proof of motive on the part of any principal in a crime is competent as against all, where they act in concert. Anything that impels the act of one of them is admissible against all, where it is also shown that they acted together in the commission of the crime. Irvin v. State, 11 Okla. Or. 301, 146 Pac. 453.

In Hall v. State, 37 Okla. Cr. 4, 255 Pac. 716, 717, this court said:

“Where one of the defenses interposed is that defendant did not commit the crime, evidence tending to establish a motive on the part of the defendant to commit the crime is properly admitted.”

In People v. Grow, 16 Cal. App. 147, 116 Pac. 369, that court said :

“The motive with which a crime is committed is always material and a proper subject of inquiry. That it is established by proof of collateral matters prejudicial to defendant does not render the evidence incompetent.” State v. Reed, 53 Kan. 767, 37 Pac. 174, 42 Am. St. Rep. 322.

In State v. Finch, 54 Or. 482, 103 Pac. 505, 506, that court said:

“Where the defendant’s act in killing deceased arose from the persistence of deceased’s prosecution of defendant, resulting in his suspension from practice as an attorney, the record showing the charges preferred by deceased as prosecutor for the State Bar Association against defendant, accusing him of drunkenness while trying a case in court, the issuance of checks on a bank where he had no funds, and of unlawfully affixing a notarial seal to certain pension papers, etc., was competent as evidence of motive, though it showed defendant was guilty of other offenses.”

Proof having been made of conspiracy and other proof made that Brown, the codefendant, had a motive, the state then proved that the deceased sheriff had on the day of the homicide raided the premises of defendant, thereby also establishing a motive for the defendant to participate in the killing of the sheriff.

When one joins with others in a conspiracy to kill, he will not be permitted to disavow the motive that any of his coconspirators may have had for committing the crime. When he joins the conspiracy he adopts as his own all previous acts and declarations of his coconspira-tors and the motive or motives that influenced them to act are chargeable to him likewise if he aids them in the act. His willingness to act with them must of necessity be held an adoption by him of the moving causes of the crime.

This evidence was competent to show willingness on the part of each to join the others in the act, and tends to explain and throw light on the acts and conduct of each of these defendants on the afternoon and evening of the homicide.

This killing is one of the most diabolical crimes in the history of this state. Defendant and his conspirators were fortunate to escape the death penalty.

For the reasons stated and upon the authority of Brown v. State, the cause is affirmed.

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


text:
    JESS BROWN v. STATE.
    No. A-8074,
    Sept. 12, 1931.
    (3 Pac. [2d] 237.)
    Gipson & Minton, C. L. Clearman, and M. L. Minton, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Beck-ham county of the crime of murder, and his punishment fixed by the jury at imprisonment in the state penitentiary for life.

Joe Pounds, Frank Griffin, and defendant were jointly charged with the murder of O. H. Phillips, sheriff of Beckham county. Joe Pounds entered a plea of guilty and was sentenced to life imprisonment in the state reformatory at Granite. A severance was granted the defendant Jess Brown and Frank Griffin, and each in separate trials found guilty of murder and sentenced to life imprisonment in the state penitentiary. Neither the defendant nor his codefendant, Frank Griffin, testified in this case.

Defendant contends first that the evidence is insufficient to support the verdict of the jury, for the reason that the testimony of Joe Pounds, the accomplice, was not corroborated.

An examination of the record discloses that the testimony of Joe Pounds is corroborated by that of his brother and sister to the effect that they were present at the home of Jess Brown and Frank Griffin, codefendant, on the afternoon that this murder was committed that night; that there was a discussion as to the conduct of the sheriff in making raids on the premises of Brown and Griffin; that they left Joe Pounds at the home of the defendant at about 4 o’clock in the afternoon of the day upon which the homicide was committed; that defendant, Pounds, and Griffin had been drinking and discussing the conduct of the sheriff and his deputies towards each of them. This evidence places all of the defendants together shortly before the homicide was committed.

Pounds is further corroborated by his sister, Mrs. Albert Schlecht, who testified that Pounds was at her home only a short time before the homicide was committed, endeavoring to obtain a pistol, and that some one was with him whom she took to be defendant.

Pounds testified that he went to the Rock Island Depot to try to procure a pistol, and is corroborated by the night ticket agent, Lauderdale, who testified that Pounds was there on that night trying, to borrow a pistol, and that he came there in a Chevrolet car. It is undisputed that Pounds, Prank Griffin, and defendant were all riding around at that time in a Chevrolet car.

Pounds testified that the defendant and Prank Griffin accompanied him to the city of Sayre and waited in an automobile parked on the west side of Brown’s grocery store while he went to the courthouse and killed the sheriff. He is corroborated by Julius Brown, who testified that the defendant and Frank Griffin were in the city of Sayre, about the time the homicide was committed, in an automobile parked on the west side of Brown’s grocery store.

Pounds testified that after the shooting of the sheriff, he hurried down to where the defendant and Griffin were waiting for him in the parked car, and is corroborated by Henry Newby, night watchman of Sayre, who testified that he saw Pounds coming from the direction of the courthouse to the direction of Julius Brown’s grocery store immediately after the killing.

Pounds testified that immediately after the killing, he and defendant and Griffin went to Erick and stopped at a filling station and drank some water out of the hose. He is corroborated by Mrs. Minor, who was in charge of the filling station, and who testified that at about 10 o’clock that night three men came to the filling station in a car and stopped and drank some water out of the hose at the station.

Pounds testified that they went to Erick to arrange an alibi and returned to1 defendant’s home. He is corroborated by the two Atkinson boys, who testified that they were present at the defendant’s house on the night of the killing and there first learned that Sheriff Phillips had been killed a short time before that; that defendant said that the officers had been there and he was afraid they were trying to implicate him in the killing and asked these two boys to testify that they had seen him in Erick that night.

Section 2701, C. O. ,S. 1921, while providing that a conviction cannot be had upon the testimony of an accomplice unless such testimony is corroborated, only requires such corroboration as tends to connect the defendant with the commission of the crime. This section does not require that the corroborative evidence directly connect the defendant with the commission of the crime. This corroborative evidence need not be direct, but may be circumstantial only. Moody v. State, 13 Okla. Or. 327, 164 Pac. 676.

It is not essential that the corroborating evidence shall cover every material point testified to by an accomplice, or be sufficient alone to warrant a verdict of guilty. When an accomplice is corroborated as to some material fact, or facts, by independent evidence tending to connect the defendant with the commission of the crime, the jury could from that infer that he spoke the truth as to all. Davis v. State, 18 Okla. Or. 453, 196 Pac. 146; McCurdy v. State, 39 Okla. Cr. 310, 264 Pac. 925.

In Underwood v. State, 36 Okla. Cr. 21, 251 Pac. 507, 509, this court said:

“The law prescribes no standard for the strength of the corroborating evidence, and there is a failure to corroborate only if there be no evidence legitimately having that effect.”

In Haas v. State, 37 Okla. Cr. 335, 257 Pac. 1115, this court said:

“Where there is evidence in corroboration of an accomplice, tending to connect a defendant with the commission of the crime charged, the sufficiency of such corroborating evidence is for the jury.”

In Key v. State, 38 Okla. Cr. 169, 259 Pac. 659, this court said:

“Where the sufficiency of the evidence to corroborate an accomplice is challenged, this court will take the strongest view of the corroborating testimony that such testimony will warrant, and, if it can say that there is corroborating evidence tending to connect the defendant with the commission of the offense, it will uphold the verdict.”

Considering the evidence of Pounds in connection with the testimony of numerous other witnesses who testified for the state, and the inference properly to1 be drawn from the facts and circumstances in evidence, it is apparent that as a matter of law there is evidence, both direct and circumstantial, that tends to connect the defendant with the commission of the crime. The weight to be given such evidence was for the jury.

Measured by the standard laid down in the authorities above cited, there is sufficient corroboration to support the evidence of the accomplice, Pounds.

Defendant next contends that the court erred in admitting incompetent evidence of other crimes committed by this defendant.

It appears from the record that the court permitted the state to prove that the defendant had a short time before the homicide been convicted in the county court of Beckham county of violation of the prohibitory liquor laws, and that the deceased, C. H. Phillips, the sheriff of that county, was the main witness against defendant. The court also permitted the state to show that at the time of the commission of the homicide, there was another prosecution pending against defendant in the county court of Beckham county for an alleged violation of the prohibitory liquor laws of the state, and that the deceased Phillips was the main prosecuting witness.

The court permitted evidence to be introduced showing that the deceased sheriff had, on certain occasions, by virtue of search warrants, searched the premises of defendant for intoxicating liquors, prior to the institution of the prosecutions above referred to. All of this evidence was competent as tending to show motive on the part of the defendant to get the deceased Phillips, the sheriff, out of the way, that he might carry on his unlawful traffic in intoxicating liquors in that county. The mere fact that this evidence incidentally showed the conviction of the defendant as a part of the previous activities against him did not render the same incompetent, since it tended to show the motive on the part of the defendant to commit the crime.

In Harrell v. State, 43 Okla. Or. 278, 278 Pac. 404, this court said:

“Evidence which tends to throw light on the guilt or innocence of a defendant, or which tends to show motive or intent for the commission of a crime, or which has some logical connection with the crime charged, is not inadmissible because it may also tend to show accused guilty of some other crime.”

To the same effect are: State v. Rule, 11 Okla. Cr. 237, 144 Pac. 807; Johnson v. State, 22 Okla. Cr. 332, 211 Pac. 425; Jackson v. State, 42 Okla. 86, 274 Pac. 696; Carmichael v. State, 44 Okla. Cr. 160, 279 Pac. 515.

Defendant next contends that the county attorney was guilty of misconduct in his argument to the jury, in that his argument was calculated to arouse the passion and inflame the minds of the jury against the defendant.

This alleged improper conduct refers particularly to the argument of counsel relative to defendant’s connection with the illegal traffic in intoxicating liquor. The evidence upon which counsel’s argument was based was admissible as tending to establish motive. The record does not contain the argument of defendant’s counsel. We are therefore unable to determine from the record whether this argument was in answer to propositions advanced by defendant’s counsel, or whether counsel was attempting to draw proper deductions from defendant’s evidence.

The trial court might well have confined this argument to narrower limits, but since it did not do so-, we must look not only to the argument, but to- the whole record to determine the probable effect of the argument. While portions of the argument were improper, the error is not sufficient to- require a reversal of the case.

Defendant next contends that the court erred in failing and refusing to give proper instructions upon the necessity of corroboration of the testimony of an accomplice.

In the case of Hendrix v. State, 22 Okla. Cr. 230, 210 Pac. 734, this court approved instructions given in that case on the question of accomplices and corroborating evi-deuce in substance in the language of the instructions given in the case at bar.

This court- has repeatedly held that instructions in a criminal case must be considered as a whole, and that, when so considered, if they correctly state the law of the case, they are sufficient.

We have carefully examined the record and considered the briefs and arguments of counsel, and, finding no fundamental error, the cause is affirmed.

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


text:
    FRANK SHOCKLEY v. STATE.
    No. A-8058.
    Sept. 12, 1931.
    (3 Pac. [2d] 236.)
    M. P. Hudson, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was by information jointly charged with Bill Kemp of having in their possession a still, was convicted, and the defendant Shockley was sentenced to pay a fine of $50 and imprisonment for 30 days in the county jail, and appeals.

The testimony is sufficient to' sustain the judgment. There are no fundamental errors in the record possessing sufficient merit to warrant a reversal.

The judgment is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    WILLIE A. JONES v. STATE.
    No. A-8054.
    Sept 12, 1931.
    (3 Pac. [2d] 236.)
    M. F. Hudson, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of having possession of two gallons of whisky, and sentenced to imprisonment in the county jail for a term of 30 days, and to pay a fine of $100, and appeals.

The testimony is sufficient to sustain the judgment. There are no fundamental errors in the record possessing sufficient merit to warrant a reversal. The judgment is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    STEPHEN O. BLANKENSHIP v. STATE.
    No. A-8118.
    Sept. 19, 1931.
    (3 Pac. [2d] 1116.)
    Finis M. Walker, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of manslaughter in the first degree, and his punishment fixed at confinement in the state penitentiary for a period of thirty-five years at hard labor, and appeals.

The record in this case was filed in this court March 20, 1931. No brief has been filed in support of the defendant’s assignment of errors.

A careful examination of the record discloses no fundamental error, and the evidence is sufficient to support the verdict of the jury.

The case is therefore affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    JIM ERWIN v. STATE.
    No. A-7806.
    Sept. 19, 1931.
    (3 Pac. [2d] 1117.)

      Robert N. Allen and Ralls & Ralls, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to' as the defendant, was convicted of the crime of bank robbery with firearms, and his punishment fixed at confinement in the state penitentiary for a term of five years, and to pay the costs of this action, and appeals.

The petition in error and case-made was filed in this court April 10, 1930; no brief has been filed in support of the defendant’s assignment of errors.

A careful examination of the record discloses no fundamental errors, and the evidence is sufficient to support the verdict of the jury.

The case is therefore affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    BEN SCHOOLCRAFT v. STATE.
    No. A-8075.
    Sept. 19, 1931.
    (3 Pac. [2d] 241.)

      Darnell & LaRue, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Ouster county of the unlawful possession of a still, and his punishment fixed by the court at a fine of $200 and imprisonment in the county jail for 60 days.

Defendant filed a timely motion to suppress the evidence for the reason that the same was obtained by the unlawful search of his premises without a search warrant.

The evidence on the motion to suppress was that some one called the sheriff’s office, saying, that a fight was going on at a certain place; that the sheriff and two of his deputies went to this place, but whatever difficulty had been there was over when they reached the place; that there was a ten-gallon keg in the yard which had been upset and puddles of whisky in the yard; and that there was a strong smell of whisky in, the air. No- arrest was made. The sheriff went into the house without a warrant of arrest or search warrant, testifying that he was searching for somebody who was supposed to be beaten up in the house; not finding any person, he came to- the door of the basement under the house; defendant’s wife was standing on this door and ordered the sheriff not to go into the basement; that upon a threat of arrest the wife stepped off of the door and the sheriff looked down into the basement and saw a still and mash; that he waited there while one of his deputies went and obtained a search warrant.

Section 30, art. 2, of the Bill of Rights, provides:

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

Section 7013, C. O. S. 1921, provides:

“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.”

This court, in considering the constitutional provision and the statute above cited, has many times held that a search and seizure made in a home, without a warrant, under circumstances similar to those in the case at bar, is illegal, and evidence so obtained is inadmissible.

The state contends that since, after discovering the stuff, the officers obtained a search warrant, that cured the defect and made the search legal.

The difficulty about this case is that the search was all completed before the search warrant was obtained, and only the seizure accomplished by means of the warrant. If the acts of the sheriff up to- the time of obtaining the search warrant were authorized by law, then no search warrant was necessary, and the obtaining of one could not make that legal which was illegal prior to the obtaining of the search warrant.

It is difficult to understand why the county attorney did not file a charge against the defendant for unlawful possession of the intoxicating liquor found by the sheriff in the yard. No search warrant was necessary to obtain this evidence, and the same would have been admissible in the trial of a case for the unlawful possession of this intoxicating liquor.

The search and seizure of the still having been made in violation of law by the unlawful search of defendant’s home, and this being all the competent evidence there is in the case, the cause must be reversed.

For the reasons stated, the cause is reversed and remanded, with directions to the county court to dismiss the same. The county attorney is ordered and directed to file an information against the defendant charging him with unlawful possession of the intoxicating liquor found in the yard, and the county court is directed to proceed with the trial of said case in accordance with this opinion.

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


text:
    STERLING HARRIS v. STATE.
    No. A-8085.
    Sept. 19, 1931.
    (3 Pac. [2d] 241.)
    Ralls & Ralls, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Defendant contends that the description in the affidavit for the search warrant and in the search warrant is insufficient, for the reason that it neither names the county nor state in which the property is located, and otherwise describes the place as:

“The filling, station and lunch room of Sterling Harris located just east of Highway No. 73 and just south of the new bridge across North Boggy Creek on said Highway No. 73.”

This court has many times held this kind of a description insufficient.

The only evidence in the case having been obtained by the unlawful search of defendant’s premises, it was reversible error for the trial court to overrule defendant’s motion to' suppress the evidence.

The cause is therefore reversed.


text:
    Ex parte ROBERT LEWIS et al.
    No. A-8213.
    Sept. 19, 1931.
    (3 Pac. [2d] 242.)
    F. E. Sides, for petitioners.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Petitioners allege that they are restrained of their liberty and are unlawfully imprisoned and restrained in the county jail of Oklahoma county by the sheriff of said' county, under an unlawful and void commitment issued by Carl Trau'b, a justice of the peace of said county; that petitioners have been confined in the county jail of Oklahoma county since the 10th day of July, 1931, and have long since served the necessary time to cancel their fines and costs under the law.

Order to show cause was duly served upon the sheriff and the county attorney of Oklahoma county.

No response having been made to the verified application of petitioners, the allegations thereof are taken to be true and the writ allowed.

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


text:
    JOE KELLY v. STATE.
    No. A-8117.
    Sept. 19, 1931.
    (3 Pac. [2d] 244.)
    R. R. Rittenhouse, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Creek county of the crime of obtaining merchandise and money from Humes Drug Company, by means of a false and bogus check, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of two years.

Defendant in Ms brief says that there is only one assignment of error deemed essential to a determination of the issue in this case on appeal, and that is his No-. 4, which reads as follows:. “Said court erred in admitting, over the objection of plaintiff in error, certain incompetent, irrelevant and immaterial testimony and evidence, which testimony and evidence was introduced for the purpose of prejudicing the minds of the jury against said defendant, plaintiff in error here.”

The particular contention of defendant is that the court erred in admitting in evidence exhibits which were found on the premises of defendant, after he had been incarcerated in jail and several months after the commission of the offense.

The objection of the defendant and his argument in his brief made to- the competency and relevancy of this evidence are directed against its weight and not against its admissibility. The finding of these particular exhibits, which were so- closely connected with the commission of the crime, on the premises owned by this defendant, was a circumstance that the jury had a right to consider, and the fact that these exhibits were not discovered by the officers when the search ivas made and were not discovered until after Masters and Christy, codefendants, had been released from jail, are all facts the jury had a right to consider in determining the weight which should be placed upon the evidence, but in no way affected its admissibility.

Defendant also contends that the court erred in admitting in evidence certain statements made by the co-defendants, Masters and Christy, after the checks were cashed and after the money and merchandise had been obtained and after the crime had been completed.

The record does not support this contention.

An examination of the record discloses that the errors complained of are without any substantial merit.

For the reasons stated, the cause is affirmed.

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


text:
    KEENER LEE v. STATE.
    No. A-8111.
    Sept. 19, 1931.
    (3 Pac. [2d] 243.)
    W. B. Garrett and Percy Powers, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of having possession of intoxicating liquor with intent to sell, barter, give away, or otherwise furnish to others, and was sentenced to pay a fine of |250 and he imprisoned in the county jail for ninety days, from which judgment the defendant has appealed.

The testimony on behalf of the state, in substance, tends to show that the officers went to the defendant’s home with a search warrant to search his premises and found the defendant at home. A. B. Williams stated he went with Mr. Tittle to defendant’s place; when they got within 150 yards of the house they saw the defendant lying on the porch; the defendant got up and went into the house; they drove up and stopped, and Mr. Tittle got out first. The defendant interposed objections to the introduction of the testimony for the reason that the information fails to state a crime against the laws of the state of Oklahoma, and then moved the court to suppress any evidence on the grounds that the search warrant described the property to be searched as the southeast quarter of the southeast quarter of section 23, township 26 north, range 21, when in fact the true description is the north one-half of the southeast quarter of section 20 that is occupied by the defendant. The search warrant did not describe the place on which the defendant resided, and the search warrant is illegal and insufficient. An admission on behalf of the county attorney was then incorporated in the record, which is as follows:

“It is admitted by the County Attorney of Greer County, Oklahoma, that at the time of the search and seizure that none of the officers of Greer County, Oklahoma, had any warrant for the arrest of the defendant Kenner Lee, and neither did the officers have any valid search warrant for the property where the whisky was found and seized.
“Hollis Arnett, County Attorney,
“Greer County, Oklahoma.”

Under this admission of the county attorney it is clear that any evidence secured at the defendant’s home was inadmissible, and the objections of the defendant should have been sustained to any evidence of the finding of any whisky on the person of the defendant, or the place, as they admit they had no search warrant for the defendant’s person and no legal search warrant to search where the whisky was found. The defendant testified in his own behalf, and stated positively that the whisky alleged to have been found some distance from his house was not his whisky, that he did not put the whisky where it was alleged to have been found, and that he knew nothing about it.

The defendant has assigned five errors alleged to have been committed by the trial court — the first assignment being that the trial court erred in overruling the motion for a new trial; the third being that said judgment is not supported by the evidence. These two assignments will be considered together, as they cover all the questions raised in the record.

It is urged by the defendant that there is no competent testimony to sustain the conviction, first for the reason that, when the officers came to his home with the search warrant where he was sick, they had no warrant to search his person, and that his person was searched by the officers and a small quantity which he had in his pocket was taken from him. There was no other whisky found on the premises described in the search warrant, and there is no testimony to directly connect the defendant with the actual or constructive possession of the whisky alleged to have been found a distance from the home of the defendant in a pasture or weeds. The defendant denied any connection with it whatever.

After a careful consideration of all the testimony in this case, and the circumstances surrounding the whisky alleged to have been found, we do not believe the testimony sufficient to show, beyond a reasonable doubt, the defendant owned or had actual or constructive possession of the whisky. The only suspicious circumstance that has any tendency to connect the defendant with the whisky is that it was alleged to have been found near the tract of land controlled by the defendant, or within 200 yards of the defendant’s house. This is a suspicious circumstance, but the question to be determined is, Is there sufficient testimony to sustain the conviction? In order to do so, we must infer that the whisky claimed to have been found by the officers a distance away from the defendant’s home was in his possession, as. the proof does not show that it was.

In this case there is a suspicion of guilt, but we hold the evidence falls far short of that convincing character that warrants a conviction of guilt: It will be observed there is no direct evidence that the defendant had actual or constructive possession of the whisky. Circumstantial evidence is legal, and, if it is of such quantity and quality to establish the defendant’s guilt, it will sustain a conviction. We hold the evidence in this case is insufficient to support the judgment. Mahaffey v. State, 44 Okla. Cr. 29, 279 Pac. 704.

The judgment of the lower court is reversed.

EDWARDS and CHAPPELL, JJ., concur.