author: EDWARDS, P. J. CHAPPELL, J.

text:
    HARRY W. COULSON v. STATE.
    No. A-7050.
    Opinion Filed Aug. 16, 1930.
    (291 Pac. 152.)

      J. M. Springer and John Adams, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Logan county of manslaughter in the first degree and was sentenced to serve a term of 12 years in the state penitentiary.

Defendant was charged with the murder' of one Willie House in the city of Guthrie. The testimony for-the state discloses a state of facts about as follows: Deceased, a negro youth, and four other negro boys were sitting on a projection of a building at a street corner as defendant and one Richardson were passing. That defendant was in an intoxicated condition. As he was opposite deceased he ordered him to get up, and as he started to rise defendant struck him a blow on the neck with his fist; he staggered a short distance, fell, and died in some 30 minutes. This is substantially the testimony of the companions of deceased. Defendant testified that, as he and Richardson passed the place where deceased and his companions were sitting, he was talking with Richardson and said to him, in substance, he would take him to the park in his automobile, but it had been stolen by a negro; that deceased then jumped up and called him a “white son-of-a bitch,” and he turned back to him and deceased struck him two or three times, and he then struck deceased, knocking him- against a fire plug and walked away, not knowing the effect of the blow. That he had no- intention of killing him and struck in self-defense. This is corroborated by the testimony of Richardson. Thus a sharp conflict is presented by the evidence.

The contention is made that the county attorney in his argument made a prejudicial statement as follows: “The county attorney wants a conviction, the court wants a conviction and the jury should want to convict the defendant.” This assignment is not sustained by the record. The argument was not taken by the reporter, and the record does not show that this statement was made, nor any objection to it, if made. The first mention of improper argument is in the motion for new trial, where the statement is set out. It is settled by numerous decisions of this court that improper argument must be objected to and a motion to strike from the consideration of the jury. It is not sufficient to incorporate it in a motion for a new trial. Saunders v. State, 4 Okla. Cr. 264, 111 Pac. 965, Ann. Cas. 1912B, 766; Miller v. State, 9 Okla. Cr. 255, 181 Pac. 717, L. R. A. 1915A, 1088; Richards v. State, 22 Okla. Cr. 329, 211 Pac. 515; Stout v. State, 41 Okla. Cr. 42, 270 Pac. 90; Halsey v. State, 42 Okla. Cr. 221, 275 Pac. 405.

It is nest contended that the court erred in giving instructions Nos. 9 and 11. Instruction No. 9 tells the jury, in substance, that, if the homicide was caused by an assault and battery by defendant upon deceased without any design to effect death, defendant would be guilty of manslaughter in the first degree. Instruction No. 11 tells the jury, in substance, that if they find beyond a reasonable doubt that defendant provoked the difficulty without any intent to kill or inflict serious injury, but for the purpose of chastisement, and, so acting, killed the deceased, he would be guilty of manslaughter. The instructions complained of are not materially erroneous. Taking the instructions as a whole, in the absence of any request for additional instructions upon the points complained of, they fairly state the law of the case.

It is also urged that the court erred in overruling the motion for a new trial on the ground of newly discovered evidence. In support of this motion defendant produced a witness, Horace L. Moad, who testified that he was a farmer, twenty-two years of age, living with his father three miles north of Guthrie. That he was on the crossing about 50 feet from the scene of the difficulty; saw the deceased sitting on the projection of the building, and saw defendant and Richardson passing by; heard them talking, but could not understand what they said, but heard the deceased call defendant a “big white son-of-a-bitch” and saw the ensuing fight. His testimony on this point corroborated in full the testimony of defendant and Richardson. He testified further that he knew none of the parties; had never seen them before; that he did not tell defendant or his counsel of his having seen the difficulty until after the trial. But since a motion for a new trial on this ground is addressed to the sound discretion of the trial court and the testimony of the witness is cumulative, and with due diligence the defendant should have known of the presence of this witness at the scene of the homicide, there was no error in overruling the motion.

The principal complaint made is that the court admitted incompetent evidence which prevented defendant from having a fair trial. This contention is directed to evidence introduced by the state of the good character of deceased as a peaceable and law-abiding citizen. The defendant made no attack at any time against the character of deceased. The issue is thus squarely presented whether or not in a homicide case, where the plea is self-defense, the state may offer evidence of the good character of deceased where his character has not been attacked by defendant. This precise question seems never to have been considered by this court. Where a defendant introduces evidence tending to show the turbulent, violent, and quarrelsome character of the deceased, it is, of course, competent for the state in rebuttal to show good character in these particulars. However, it is held that, where evidence of bad character is elicited on cross-examination from a witness for defendant this does not justify evidence by the state of good character. Barrett v. State, 86 Tex. Cr. R. 101, 215 S. W. 858. There is some division in the authorities upon ibe question here presented. A few cases hold that in a homicide ¿ase, where the plea is self-defense, and there is evidence in support showing an unprovoked attack by deceased, this authorizes evidence by the state that the character and reputation of deceased wag that of a peaceable and quiet citizen, although defendant has not attacked his géneral character in this respect. 30 C. J. 233, note 45. The leading case supporting this view is Thrawley v. State, 153 Ind. 375, 55 N. E. 95, 97, where it is said:

“* * * On behalf of appellant no reputation witnesses were produced to show that the character of deceased for peaceableness was bad. Appellant did not testify, but his defense was that he killed deceased in a hand-to-hand encounter, in the proper defense of his person from an apparently felonious assault by deceased. On rebuttal the state proved the good reputation of deceased for peaceableness. * * * But the evidence of the state in support of the charge against appellant was such an attack upon his character for peace as to authorize him to introduce his good character as a substantive fact, involved in the transaction, in disproof of the charge, without the state’s consent. So the evidence of appellant in support of the charge against deceased was such an attack upon his character for peace as to authorize the state to introduce his good character as a substantive fact, involved in the transaction, in disproof of the charge, without appellant’s consent. * * *”

This case was severely criticized in Carr v. State, 21 Ohio Cir. Ct. R. 43, and in Kelly v. People, 229 Ill. 81, 82 N. E. 198, 200, 12 L. R. A. (N. S.) 1169, 11 Ann. Cas. 226, in which latter case it was said:

“The Supreme Court of Indiana, in Thrawley v. State, 153 Ind. 375, 55 N. E. 95, has determined this question the other way, holding that the reputation of the deceased for peaceableness is admissible as original evidence against one charged with murder where self-defense is relied upon. That decision does not appear to be supported by any authority, and we are not impressed with the reasoning upon which the conclusion rests. In Carr v. State, 21 Ohio Cir. Ct. R. 43, in commenting on this case, it is said that the Supreme Court of Indiana is alone in holding such evidence competent. Onr own investigation will not justify ns in a statement so broad, and we therefore prefer to limit our observation to this: that it appears to us that the decision in Indiana is opposed to the great weig'ht of authority on this question.”

The Supreme Court of Kansas in the case of State v. Potter, 13 Kan. 414, in an opinion by Brewer, J., held this line of evidence incompetent, saying:

“On the tidal and before closing their case the prosecution was permitted over objection to ash witnesses who had testified that they knew the deceased, this question: ‘State if you knew his general reputation for being a peaceable, quiet and law-abiding citizen.’ And the witnesses testified that he was a peaceable, quiet and law-abiding man. No attack was made by defendant at any time during the trial on the character of the deceased, and no attempt to show that he was a quarrelsome or turbulent man. The question then is fairly presented, whether the prosecution on a trial for murder may, in the first instance, and as a part of their case, show the character and reputation of the deceased. We do not understand counsel for the state as claiming that such testimony is admissible in all cases, but only in cases where there is a doubt as to whether the killing was done in self-defense, and where such testimony may serve to explain the conduct of the deceased and is therefore fairly a part of the res gestae. In such cases it is said that the authorities hold that the defendant may show the bad character and reputation of the deceased as a turbulent, quarrelsome man. See among other authorities, Franklin v. State, 29 Ala. 14; State v. Keene, 50 Mo. 357; Wise v. State, 2 Kan. 429 [85 Am. Dec. 595]; People v. Murray, 10 Cal. 309. And if the defendant may show that the deceased was a known quarrelsome, dangerous man, why may not the state show that he was a known peaceable, quiet citizen? The argument is not good. The books are full of parallel cases. The accused may in some cases show his own good character. The state can never in the first instance show his bad character. A party can never offer evidence to support a witness’ credibility until it is attacked. The reasons for these rules are obvious. Such testimony tends to distract the minds of 'the jury from the principal question, and should only be admitted when absolutely essential to the discovery of the truth. Again, the law presumes that a witness is honest, that a defendant has a good character, and that a party killed was a quiet and peaceable citizen, except so far as the contrary appears from the testimony in the case; and this presumption renders it unnecessary to offer any evidence in support thereof. No authorities have been cited sustaining the admission of such testimony, and the following are in point against it: Ben v. State, 37 Ala. 103; Chase v. State, 46 Miss. 707; Pound v. State, 43 Ga. 128. * * *”

In State v. Reed, 250 Mo, 379, 157 S. W. 316, 318, in discussing this point, the Supreme Court reversed the trial court and said:

“* * * The point at issue is not free from difficulty. The contentions of both the state and defendant are supported by respectable authority, and at first impression we felt like we would be glad to adopt the views of the learned trial judge, but, upon more careful reflection, we fear that, to do so, we would be making a precedent which would open up a Pandora’s box of collateral issues to be let into every case, and thereby confuse juries even more extensively than under our present system. There are always many collateral issues that resourceful attorneys could inject ino all kinds of suits, and which might throw some indirect light upon the real issue tendered by the parties. For instance, in a case where one man sues another for debt, if the plaintiff were permitted to prove that the defendant bears the reputation of refusing to pay his just debts, that evidence would work very advantageously in favor of plaintiff, or if, in the same kind of a case, the defendant were allowed to prove that the plaintiff bears the reputation of a contentious individual, habitually suing people upon unjust or illegal claims, the effect of such evidence would likely be disastrous to plaintiff. While evidence of the character mentioned would apparently tend to establish or disprove specific issues, it would, in reality, tend to prevent just verdicts by clouding the real issues with purely collateral issues, which would draw the minds of the triers of fact away from the direct, legal, and competent evidence in the case, which they should consider most diligently in arriving at their verdicts.
“It is undoubtedly true that a law-abiding citizen is much less likely to commit, or attempt to commit, crime than a man whose conscience is seared by the commission of many crimes; yet it is likewise true that many very grave crimes are committed by people who have theretofore borne a good reputation, so that evidence of a prior good reputation is not a very potent shield against a charge of having committed a specific crime, though a jury might think differently where the evidence is conflicting and the issue arose collaterally. We take judicial knowledge of the fact that it is a great deal less difficult to prove a good reputation on the part of a witness or litigant than to impeach his reputation, for the simple reason that evidence of bad reputation is usually founded upon acts of wrongdoing or moral turpitude, and is of an affirmative character, while evidence of good reputation may be, and usually is, of a negative character, simply showing that the neighbors of a party whose reputation is in issue ha. v'e not heard anything said derogatory of his conduct. 40 Cyc. 2648.”

Other enlightening authorities upon this point are: 3 Greenleaf on Evidence, § 27; Elliott Ev. § 2722; McClain Criminal Law, Yol. 1, § 423; Bishop Crim. Proc. Yol. 2, § 612; People v. Murray, 10 Cal. 310; Bullock v. State, 73 Tex. Cr. R. 419, 165 S. W. 196; Parker v. Commonwealth, 96 Ky. 212, 28 S. W. 500; State v. Eddon, 8 Wash. 292, 36 Pac. 139.

It appears that the evidence complained of may reasonably have brought about the verdict, and the error in admitting it requires a reversal.

The case is reversed and remanded.

DAVENPORT, J., concurs.

CHAPPELL, J.

(dissenting). I cannot concur in tbe majority opinion for two reasons: First, because the evidence was not incompetent.

The evidence of the state was that the defendant and one Richardson were both drunk, and the defendant stopped opposite the deceased and ordered him to get up, and that, as deceased started to get up in response to the command of the defendant, defendant struck deceased a blow on the neck with his fist; that deceased staggered a short distance to the north and fell, and died within 20 or 30 minutes as the result of a broken neck caused by the blow struck by defendant.

Defendant claims that he made a remark to Richardson as he passed these negro boys that he would take him down to the park in his automobile, but that same had been stolen by a nigger. That thereupon deceased jumped up from the place where he was sitting and said to the defendant, “Who are you calling a nigger, you white son-of-a-bitch,” and that thereupon deceased struck defendant two or three blows with his fist, and that defendant only struck deceased once with Ms fist in his own self-defense.

The court permitted the state, in rebuttal to this claim that the deceased made a violent and unprovoked attack upon the defendant, to introduce evidence that the deceased was of quiet and peaceable character. Defendant contends that this was error, for the reason that the defendant had not put the character of the deceased as a peaceable and quiet citizen in issue.

The question presented is whether or not in a homicide case, where the issue of self-defense is presented, and the defendant and bis witnesses testify to facts that make the deceased the aggressor and show an unprovoked attack by deceased on the defendant, that lays a sufficient predicate to authorize the state in rebuttal to introduce evidence of the character of the deceased as a peaceable and quiet citizen to rebut the inference that as such citizen he would not likely make the attack as testified to by the defendant and his witnesses.

On this question the authorities are divided, and this court now for the first time passes upon same. Soane authorities hold that before evidence of this kind is admissible in rebuttal it is necessary for the defendant to have made a direct attack upon the reputation of the deceased as a peaceable and quiet citizen. There are other authorities, however, which hold that, where the defense is self-defense and where the evidence of the defendant and his witnesses is that the deceased made an unprovoked attack upon defendant and that deceased was the aggressor, this evidence sufficiently raises the issue of the character of the deceased to entitle the state in rebuttal to show that the deceased was a peaceable and quiet citizen.

In the case of Fields v. State, 134 Ind. 46, 32 N. E. 780, the court said:

“Where defendant, on trial for murder, testifies that deceased assaulted him, and that he apprehended great injury from the assault, the peaceable character of deceased may be shown in rebuttal.”

In the case of Thrawley v. State, 153 Ind. 375, 55 N. E. 95, 97, that court said:

“On behalf of appellant no reputation witnesses were produced to show that the character of deceased for peace-ableness was bad. Appellant did not testify, but his defense was that he killed deceased in a hand-to-hand encounter, in the proper defense of his person from an apparently felonious assault by deceased. On rebuttal the state proved the good reputation of deceased for peace-ableness. * * * The character for peace of each of them was presumed to be good, in the absence of evidence. But the evidence of the state in support of the charge against appellant was such an attack upon his character for peace as to authorize him to introduce his good character as a substantive fact, involved in the transaction, * * '"'without the state’s consent. So the evidence of appellant in support of the charge against deceased was such an attack upon his character for peace as to authorize the state to introduce his good character as a substantive fact, involved in the transaction, in disproof of the charge, without appellant’s consent.”

In Fields v. State, supra, Fields squarely raised the very question presented by Thrawley, and the court said:

“The defendant testified that the deceased assaulted him, and that he apprehended great injury to life or limb from the assault. On rebuttal the court permitted the state to prove that the deceased was a peaceable, quiet man. This was not erroneous.”

On the question as to whether or not deceased was in fact the aggressor, this evidence was admissible in negation of appellant’s declaration that he was, just as evidence of appellant’s good character for peace would have been received in disproof of the state’s evidence that appellant was the aggressor. See, also, State v. Wilkins, 72 Or. 77, 142 Pac. 589; McKie v. State, 165 Ga. 210, 140 S. E. 625; Ferguson v. State, 138 Tenn. 106, 196 S. W. 140; Webster v. State, 207 Ala. 668, 93 So. 545; State v. Holbrook, 98 Or. 43, 188 Pac. 947, 192 Pac. 640, 193 Pac. 434; Commonwealth v. Castellana, 277 Pa. 117, 121 A. 50.

Where there is evidence that the homicide was committed in self-defense, or the evidence is wholly circumstantial and the character of the transaction is in doubt, the character of the deceased is competent. State v. Banner, 149 N. C. 519, 68 S. E. 84; Green v. State, 143 Ala. 2, 39 So. 362; Wells v. State, 18 Tex. App. 417; Heffington v. State, 41 Tex. Cr. R. 315, 54 S. W. 755; Spangler v. State, 41 Tex. Cr. R. 424, 55 S. W. 326; Fields v. State, 134 Ind. 46, 32 N. E. 780; Thrawley v. State, 153 Ind. 375, 55 N. E. 95; State v. Wilkins, 72 Or. 77, 142 Pac. 589; McKie v. State, 165 Ga. 210, 140 S. E. 625; State v. Morey, 25 Or. 241, 35 Pac. 655, 36 Pac 573; People v Anderson, 39 Cal. 703; Bowlus v. State, 130 Ind. 227, 28 N. E. 1115; Cook v. State, 5 Ala. App. 11, 59 So. 519; State v. Jones, 48 Mont. 505, 139 Pac 441; Barnett v. State, 76 Tex. Cr. R. 555, 176 S. W. 580.

There is no division of authorities upon the question that the state may not introduce evidence of the character of the deceased until the defendant puts the question in issue. The division arises upon the question of what evidence is necessary to put the character of the deceased in issue. The authorities relied upon in the majority opinion are to the effect that self-defense and proof by defendant of an unprovoked attack by deceased are not sufficient to put the character of the deceased in issue, while the authorities cited in this dissenting opinion hold to the contrary.

Under the Constitution and laws of the state of Oklahoma and the liberal construction put thereon by this court, I am of the opinion that this court should follow those authorities which adopt the more liberal rule and should hold that the evidence introduced by the state was competent under all of the facts and circumstances as detailed by the defendant and his witnesses in his defense.

The second reason why I cannot agree with the majority opinion of the court is that, even if the evidence was incompetent, that furnishes no sufficient ground for a reversal of the case.

Section 2822, C. O. S. 1921, provides:

“No judgment shall he set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.”

Under the provisions of this section, this court may reverse the case on one of two grounds: First, when there is a miscarriage of justice.

The facts in this case disclose a wanton and unprovoked attack by a full-grown man upon a defenseless sixteen year old colored boy, which resulted in the almost immediate death of the boy. The defendant had a fair trial; the evidence amply supports the verdict of the jury; and the errors of law complained of are all technical and without merit. To reverse this case will cause a miscarriage of justice and defeat the very purpose for which section 2822, supra, was enacted and set at naught the many holdings of this court beginning with George v. U. S., 1 Okla. Cr. 307, 97 Pac. 1052, 100 Pac. 46, and coming down through all the decisions of this court to this date.

Second. This court may reverse a case where the defendant has been deprived of a constitutional or statutory right.

There is no statute nor constitutional provision in Oklahoma making the evidence complained of in this case incompetent. The rule contended for by defendant and supported by the majority opinion of this court is wholly case law, except in the state of Texas, where same is regulated by statute. The defendant was not deprived of a statutory nor constitutional right by the admission of this evidence, and such error, if any, furnishes no ground for a reversal of the cause.

For the reasons stated, I cannot concur in the majority opinion of this court reversing the case.


source: Caselaw Access Project

author: EDWARDS, P. J.

license: Public Domain

text:
    THEODORE COLE v. STATE.
    No. A-7686.
    Opinion Filed Aug. 16, 1930.
    (291 Pac. 141.)
    Joe Simpson and Joe Hufford, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was charged in the district court of Tulsa county with the crime of robbery with firearms. He entered a plea of guilty, and his punishment was fixed at the death penalty. The prosecution is under the provisions of section 1784, Comp. St. 1921, and chapter 44, Session Laws 1925, which latter act fixes the maximum punishment at death and the minimum at imprisonment in the penitentiary for five years. The record of the proceedings is brief. The information in substance alleges that defendant, with two others with firearms, did, by threats to take the life of one Earl Leeper, and by putting him in fear, take from Ms person and immediate presence a watch of the value of $25 and $412 in money. At the time of arraignment, defendant appeared; was represented by counsel appointed by the court. His counsel at the time informed the court that defendant was seventeen years of age. The trial judge questioned defendant at some length, eliciting the information that, while he claimed to be seventeen years of age, he had been married some six months or longer and had participated in numerous offenses against the law. The following appears:

“Mr. Hufford: I represent Theodore Cole over there. This boy here is just a seventeen-year-old kid and he desires at this time to enter a plea of guilty and throw himself on the mercy of the court. This boy respectfully asks your Honor to have mercy on his misguided, misspent young life, and he is pleading guilty at this time.
“The Court: Let your record show, Mr. Reporter, that the defendant, Theodore Cole, is represented in open court by Mr. Hufford. Now, Theodore Cole, you have heard what Mr. Hufford said, did you?
“Theodore Cole: Yes, sir.
“The Court: He is your lawyer?
“Theodore Cole: Yes, sir.
“The Court: Have you talked the matter over with him?
“Theodore Cole: Yes, sir.
“The Court: Is it your desire to plead guilty to this offense, Theodore?
“Theodore Cole: Yes, sir.
“The Court: Are you guilty?
“Theodore Cole: Yes, sir.
“The Court: Just what happened out there? Did you hold this fellow up with a gun?
“Theodore Cole: I held him up with a gun and taken his money.
“The Court: Have you ever been in any trouble before, Theodore?
“Theodore Cole: Well, I have been in a little trouble often-times, not as bad as this.
“The Court: Have you ever served any time in a penitentiary?
“Theodore Cole: No, sir, well, I did in Little Rock, Arkansas, about a month and a half, and I was transferred here.
“The Court: For what?
“Theodore Cole: On this charge here.
“Mr. Wallace: He was convicted in Arkansas for stealing an automobile, isn’t it, Mr. Coffey?
“Mr. Coffey: I think so.
“Mr. Wallace: And sentenced to two years down there and then the sheriff, Mr. Evans, knowing the warden down there, persuaded him to return him to Tulsa. I believe that is correct, isn’t it, Mr. Evans?
“Theodore Cole: They didn’t have no right to stick me. It was the county that stuck me. The Government was supposed to stick me.
“The Court: Were you convicted there and sentenced to two years, Theodore?
“Theodore Cole: Yes, sir; I pleaded guilty.”

After the plea of guilty had been entered and the sentence imposed, a motion to permit defendant to withdraw his plea and to enter a plea of not guilty was filed. It appears from the record that the plea of guilty was advisedly made after consultation with his nearest relative and his counsel. It does not appear that there was any promise of leniency made, nor is it claimed in such motion that defendant is not guilty. The court did not abuse his discretion in denying the motion to set aside the judgment and to allow the plea of guilty to be withdrawn.

The brief filed in behalf of defendant does not ask for a reversal, but is directed solely to a plea for a modification of the sentence imposed. The laws of this state provide the death penalty for three crimes: Murder; rape in the first degree; and robbery with firearms. The extreme punishment for the latter crime came into the law by chapter 85, Sess. Laws 1923, and was no doubt enacted to meet a condition wherein robbery with firearms, or hijacking as it came to be called, became all too prevalent. Certain and speedy punishment for crime and not occasional extreme and disproportionate punishment must be resorted to by society to protect itself. Kelley v. State, 47 Okla. Cr. 1, 288 Pac. 1001.

The death penalty can hardly be justified in a case of robbery where no personal injury results. Particularly is this true in the ease of a youthful offender, although he may have a criminal record. Brown v. State, 39 Okla. Cr. 406, 266 Pac. 491.

Under all the circumstances of this case, the punishment assessed is excessive and unreasonable. Justice requires that the judgment be modified by reducing the punishment from the death penalty to 15 years in the penitentiary.

As modified, the case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


author: DAVENPORT, J.

text:
    TOM GOSSETT v. STATE.
    No. A-7573.
    Opinion Filed Aug. 29, 1930.
    (291 Pac. 575.)
    Darnell & LaRue, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of selling one pint of whisky to R. J. Smith, and was sentenced to pay a fine of $200 and be imprisoned in the county jail for a period of 60 days, from which judgment the defendant has appealed to this court.

R. J. Smith was called as a witness for the state, and, in substance, testified he was acquainted with the defendant, Tom Gossett; that on the 8th day of September, 1928, he was at defendant’s place of business on the highway-west of Arapaho, and bought a pint of whisky from the defendant, paying $2 for it.

On cross-examination, witness admitted he was specially hired to detect violators of the prohibition laws, and claims he Avas getting $10 per day and expenses, which included money to buy whisky from the parties. The cross-examination further discloses he had been engaged in this business of detecting those he claims were violators of the prohibitory laws in different counties throughout the state. His brother D. E. Smith testified, in substance, to the same facts as R. J. Smith testified to; each admitting they were special detectives or hirelings going around over the country soliciting individuals to- sell them whisky or violate the prohibition laws.

The defendant says he did not sell the state witnesses any whisky; that they came to his house one night and called him out of bed, and he went out and got them some gasoline or oil and sold them what they wanted, but he did not sell any whisky to them; that, if any whisky was had there, it was whisky the witnesses had with them. In the trial of the case, many statements were made by the court and objections sustained, which prompts the defendant in his appeal to say that he did not secure a fair and impartial trial.

The defendant has assigned five errors alleged to have been committed by the trial court during the trial of his case. The defendant first discusses the third assignment' of error, which is as follows:

“The- court erred in not allowing the defendant the proper latitude in cross-examination of paid detectives, who appeared as witnesses in said cause.”

The record has been carefully examined, and while there were many questions propounded to the state witnesses by the defendant, to which objections were sustained, under the circumstances the court should have granted the defendant a great deal more latitude in his cross-examination than he did grant.

In Grim v. State, 32 Okla. Cr. 297, 240 Pac. 1093, in the third paragraph of the syllabus, this court said:

“In prosecutions under the liquor laws, it is proper to allow a searching cross-examination of spotters, private detectives, or paid informers for the purpose of showing their interest in the case before the court, and thereby affecting their credibility.”

In this case the testimony is contradictory. The evidence on behalf of the state against the defendant is the testimony of the Smith brothers, both of whom admit they were each receiving $10 per day and expenses, including money to buy whisky, and that they were hired for the sole purpose of spotting violators of the liquor laws and making witnesses of themselves.

The record in this case shows that the two witnesses for the state testify as to the purchase of a pint of whisky; they called at the home of the defendant at a late hour in the night and got him up, and claim to have bought the whisky from him. The defendant denies he sold the whisky. This brings about a direct conflict in the testimony, and the jury found for the state. This court, where the testimony is conflicting, will not disturb the verdict of the jury, but, in view of the testimony in the record showing that these spotters were hirelings brought into the state to try to detect law violators, and in view of the further fact that the quantity of whisky alleged to have been purchased is small, and in view of the further fact the court restricted the defendant in his cross-examination of the paid informers and did not permit the defendant to fully cross-examine them for the purpose of showing their interest before the court and jury, and thereby affecting their credibility, we believe that a fine of $100 and 30 days in jail is sufficient under all the circumstances in the case, and the judgment is modified to a fine of $100 and 30 days’ imprisonment in the county jail, and, as so modified, is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


author: PER CURIAM.

text:
    BILL VOWELL v. STATE.
    No. A-7549.
    Opinion Filed Aug 16, 1930.
    (290 Pac. 1119.)
    Justin Hinshaw, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Cleveland county on a charge of maintaining a public nuisance, and his punishment fixed at a fine of $50 and confinement for a period of 30 days in the county jail.

The appeal in this case was filed in this court on the 13th day of September, 1929. No briefs have been filed on behalf of plaintiff in error and no appearance was made for oral argument.

Upon a careful examination of the record, we find no errors depriving the appellant of any substantial rights.

The evidence being sufficient to support the the verdict, the cause is affirmed.


text:
    J. P. BAILEY v. STATE.
    No. A-7519.
    Opinion Filed Aug. 16, 1930.
    (290 Pac. 1115.)
    Bolen & Parris, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Pontotoc county on a charge of having unlawful possession of intoxicating liquor, to wit, two half-gallon jars of whisky, and his punishment fixed at a fine of f 50 and 30 days in the county jail.

The appeal in this case was filed in this court on the 26th day of August, 1929. No briefs have been filed on behalf of the plaintiff in error, and no appearance was made for oral argument.

Upon a careful examination of the record we find no errors depriving the appellant of any substantial rights.

The evidence being sufficient to support the verdict, the cause is affirmed.


text:
    DELMO CARTER et al. v. STATE.
    No. A-7552.
    Opinion Filed Aug 16, 1930.
    (290 Pac. 1115.)
    Guy D. Talbot, for plaintiffs in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

Plaintiffs in error were convicted in the county court of Alfalfa county on a charge of transportation of intoxicating liquor, and the punishment of each fixed at a fine of $50 and confinement in the county jail for a period of 30 days.

The appeal in this case was filed in this court on the 16th day of September, 1929. No briefs have been filed on behalf of the plaintiffs in error, and no appearance was made for oral argument.

Upon a careful examination of the record we find no errors 'depriving the appellants of any substantial rights.

The evidence being sufficient to support the verdict, the cause is affirmed.


text:
    ADDIE BARNETT v. STATE.
    No. A-7477.
    Opinion Filed Aug. 16, 1930.
    (290 Pac. 1111.)

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

Plaintiff in error was convicted in the county court of Garfield county on a charge of having unlawful possession of intoxicating liquor, and her punishment fixed at a fine of f500 and confinement in the county jail for a period of six months.

The appeal in this case was filed in this court on the 24th day of July, 1929. No briefs have been filed on behalf of plaintiff in error and no appearance made for oral argument.

Upon a careful examination of the record, we find no errors depriving the appellant of any substantial rights. The evidence being sufficient to support the verdict, the cause is affirmed.


text:
    ADDIE BARNETT v. STATE.
    No. A-7364.
    Opinion Filed Aug. 16, 1930.
    (290 Pac. 1110.)

      L. C. McLean, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Garfield county on a charge of having the unlawful possession of intoxicating liquor and was sentenced to pay a fine of $500 and to confinement in the county jail for a term of six months.

The state has filed a motion to dismiss, from which it appears that the defendant, after conviction, was at large upon a supersedeas bond; that she has left the state of Oklahoma, is a fugitive, and her whereabouts are unknown.

It is settled by many decisions of this court that where a defendant has been convicted and perfects an appeal to this court, this court will not consider his appeal unless he is where he can be made to respond to any judgment or order which may be rendered in the case. Where a defendant becomes a fugitive from justice pending the determination of his appeal, this court upon proper motion will dismiss the same.

The case is dismissed.

DAVENPORT and CHAPPELL, JJ., concur.


author: CHAPPELL, J.

text:
    CHARLIE HARRIS v. STATE.
    No. A-7560.
    Opinion Filed Aug. 16, 1930.
    (290 Pac. 1110.)

      Hargis & Yarbrough and Frank Leslie, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error was convicted in the county court of Osage county on a charge of pointing a pistol, and his punishment fixed by the court at a fine of |50 and imprisonment in the county jail for a period of 90 days. The judgment was entered on the 5th day. of April, 1929, and the record for appeal was lodged in this court on the 20th day of September, 1929.

An appeal from conviction for a misdemeanor must be filed in this court within 60 days from the date of the rendition of the judgment, unless the court for good cause shown makes a proper order extending the time of the appeal, which extension cannot exceed 60 days. In any event, the appeal must be filed in this court within 120 days from the time of the rendition of the judgment. In the case at bar the appeal was not filed in this court until 168 days after judgment was rendered.

For the reason stated, the appeal is dismissed.

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


text:
    O. R. BILLS v. STATE.
    No. A-7576.
    Opinion Filed Aug. 16, 1930.
    (290 Pac. 935.)
    Darnell & La Eue, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Custer county on a charge of selling intoxicating liquor, and his punishment fixed at a fine of $150 and 60 days in the county jail.

The evidence of the state was that the defendant sold a pint of whisky to one K. J. Smith on the 6th day of September, 1928. This evidence was corroborated by the witness D. E. Smith, who is a brother of the witness E. J. Smith. These witnesses were employed by the officers of Custer county to procure evidence of the violation of the liquor laws of the state. The trial court allowed defendant’s counsel to' vigorously cross-examine these witnesses, overruling all objections of the state, except that the witness was not permitted to answer questions of defendant’s counsel in substance as follows: If he had not participated in a street fight at Custer City; if he had not appeared at a blacksmith shop in Custer City with a bottle of whisky and asked different persons to drink out of it; and if he had not hired L. Lewis and his wife to make some beer for him. The court sustained objections to these questions as not proper cross-examination, incompetent, and immaterial.

The defendant, testifying for himself, denied that he sold the witness Smith any intoxicating liquor. His wife testified that no person bought any whisky there on that day.

The defendant first contends that this evidence is insufficient to support the verdict of the jury. The credibility of the witnesses and the weight to be given their testimony is for the jury, and where there is competent evidence to support the verdict of the jury, this court will not disturb such verdict.

The defendant next contends that the court erred in overruling his challenge to the jury panel, for the reason that the witnesses for the state in the case at bar had testified in the trial of three other cases against other defendants at the same term of court, and such jurors were thereby prejudiced and would be disqualified to sit. This challenge to the panel was overruled and six of the regular jurors called into the box. The court permitted the defendant to very rigidly examine the jurors on their voir dire, and they all answered positively that the fact that the Smiths had been witnesses in other cases would not influence them in their verdict in the case at bar. Defendant exercised two of his peremptory challenges and passed the jury. After the jury had been sworn, the defendant renewed his challenge to the panel, for the reason previously stated in this opinion, which challenge was overruled by the court.

In the case of Schrimpsher v. State, 32 Okla. Cr. 371, 241 Pac. 201, 202, this court said:

“Where it is made to appear that certain jurors called for the trial of a defendant sat in a previous trial of the same defendant on a similar charge, and where it appears that some of the controverted questions of fact in the case in which they are called as jurors are the same as in the case previously tried, and to be established in whole or in part by the same witnesses, such jurors are not ‘impartial,’ within the meaning of the statute and Constitution, and the permitting of such jurors to remain on the panel is an abuse of discretion, requiring a reversal.”

See, also, Popp v. State, 44 Okla. Cr. 220, 280 Pac. 478; Moffitt v. State, 45 Okla. Cr. 440, 283 Pac. 1027.

It will be noted that in Schrimpsher v. State and Moffitt v. State, supra, it was the same defendant being tried before practically the same jury; but we know of no rule that disqualifies a juror because of the fact that he has heard the testimony of witnesses in other cases at the same term of court, where the same witnesses are to be uesd in the trial of the case then about to be submitted to the jury, and counsel for defendant cite no authorities in point.

The evidence being sufficient to support the verdict of the jury, and the errors of law complained of being without merit, the cause is affirmed.

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


text:
    ROSS AUSTIN v. STATE.
    No. A-7522.
    Opinion Filed Aug. 16, 1930.
    Rehearing Denied Sept. 20, 1930.
    (290 Pac. 1115.)
    Champion, Champion & Pischl, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Carter county on a charge of having unlawful possession of intoxicating liquor, to wit, one pint of corn whisky and 32 pints of choctaw beer, and his punishment fixed at a fine of f50 and confinement for 30 days in the county jail.

The appeal' in this case was filed in this court on the 28th day of August, 1929. No briefs have been filed on behalf of the plaintiff in error, and no appearance made for oral argument.

Upon careful examination of the record, we find no errors depriving the appellant of any substantial rights.

The evidence being sufficient to support the verdict, the cause is affirmed.


text:
    E. B. HIBBITS v. STATE.
    No. A-7502.
    Opinion Filed Aug. 23, 1930.
    (290 Pac. 1116.)

      E. Y. Rakestraw, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Kiowa county on a charge of having unlawful possession of intoxicating liquor, and his punishment fixed at a fine of $50 and confinement in the county jail for a period of 30 days.

The appeal in this case was filed in this court on the 8th day of August, 1929. No briefs have been filed on behalf of the plaintiff in error, and no appearance was made for oral argument.

Upon a careful examination of the record we find no errors depriving the appellant of any substantial rights.

The evidence being sufficient to support the verdict, the cause is affirmed.


text:
    WILLIAM J. DEAN v. STATE.
    No. A-7428.
    Opinion Filed Aug. 23, 1930.
    (290 Pac. 1116.)
    John W. Whipple, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error was convicted in the county court of Payne county on a charge of maintaining a place where intoxicating liquor is kept and sold, and his fine fixed by the jury at a fine of $250 and imprisonment in the county jail for a period of 90 days.

But one question is presented by this appeal, and that is the sufficiency of the evidence to support the verdict. A careful examination of the record discloses sufficient competent evidence to support the verdict of the jury-

No error being apparent, the cause is affirmed.

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


text:
    J. E. BAILEY v. STATE.
    No. A-7450.
    Opinion Filed Aug. 23, 1930.
    (290 Pac. 1109.)
    Perry J. Morris, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Ellis county on a charge of having unlawful possession of 15 gallons of whisky, and his punishment fixed by the court at a fine of $500 and imprisonment in the county jail for a period of six months.

The evidence of the state was that they had a search warrant, and on searching the premises of the defendant found a keg covered up near the garage with a small amount of whisky in it, another keg under the chicken coop with a small amount of whisky in it, and about a quarter of a mile from the house, in a wheat field, they found a keg buried in the ground containing about 15 gallons of whisky; that tracks made with shoes similar to those worn by the defendant led from the defendant’s house to the keg.

The state identified the three kegs and they were offered in evidence without objection on the part of the defendant. Defendant did not take the witness stand, but offered evidence of his good character and sought to show that the keg of whisky found on his premises was buried under a wire fence about one-half on his premises and one-half on somebody else’s.

On cross-examination the witnesses for the defendant admitted they had heard that he had been arrested in Higgins, Tex., which is about a mile and a half from the place searched by the officers, for violation of the prohibitory liquor laws of Texas. One witness testified that the defendant told him he had been arrested at Higgins for violation of the liquor laws.

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

Defendant next contends that the court erred in permitting the sheriff in rebuttal to testify that he had been told that defendant had been arrested in Higgins, Tex., for violation of the prohibitory liquor laws. The admission of this evidence was improper, but since the defendant had put his character in issue, and since his own witnesses on cross-examination had admitted that he had been arrested in Higgins, for violation of the prohibitory liquor law, the admission of the evidence of the sheriff could not have injured the defendant.

The other errors complained of by defendant being without substantial merit, the cause is affirmed.

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


author: DAVENPOBT, J.

text:
    DON BIG ELK v. STATE.
    No. A-7443.
    Opinion Filed June 21, 1930.
    Rehearing Denied Aug. 23, 1930.
    (290 Pac. 420.)

      John W. Tillman, Fred A. Tillman, and Welcome D. Pierson, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPOBT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of driving an automobile while intoxicated, and his punishment fixed at confinement at the state reformatory at Granite for a term of one year and to pay a fine of $50 and costs, from which judgment the defendant has appealed.

The evidence on the part of the state, in substance, shows that on the 14th day of September, 1928, the defendant was driving a car on the public highway between the cities of Wynona and Pawlmska, Osage county, Okla., and while so driving he was drunk and ran into the automobile being driven by a Mr. Shanks; that the defendant wobbled back and forth from one side of the road to another in his car and appeared to have lost control to such an extent that he turned his car across the road and ran out of the road across a ditch and remained there for some time; that he went to sleep in his car with the car in gear and ignition turned on; that Mr. Shanks drove to Paw-huska and reported the condition of the defendant, and officers came out and took him into custody.

At the close of the state’s testimony, the defendant filed a general demurrer to the evidence, which demurrer was overruled, and the defendant duly excepted.

Twenty-two errors have been assigned by the defendant as grounds for reversal of this case. The first assignment is error of the court in overruling defendant’s motion for a new trial. In the discussion of the assignments of error the defendant consolidates and argues the fifth, seventh, eighth, thirteenth, and fourteenth together. The defendant urges that the argument of the county attorney and his assistant to the jury was grossly improper and unwarranted and did injuriously affect the rights of the defendant, insisting that in the argument the assistant county attorney did not argue the facts but requested the jury to permit the court to fix the punishment, and that the jury did return a verdict finding the defendant guilty, leaving the punishment to the court.

Prom an examination of the record we fail to find any requested instruction to direct the jury, if it should find the defendant guilty, to assess the punishment. In the absence of any special request by the defendant asking the court to instruct the jury that if it should find the defendant guilty, it should assess the punishment, it was not error for the jury to- return a verdict guilty, leaving the punishment to the court, as required by section 2751, C. O. S. 1921.

The defendant in presenting his argument in support of the eighth assignment urges that the statement of the court, “And it being further within the knowledge of the court from the record of the court, that the defendant herein has heretofore and in the period of six months prior hereto, entered a plea of guilty to a similar offense as charged in the information,” was a statement prejudicial to the rights of the defendant, citing, in support of his contention, State v. Hyde, 234 Mo. 200, 136 S. W. 316, Ann. Cas. 1912D, 191.

An examination of the record shows that the remark attributed to the court by the defendant was made after the jury had returned its verdict into court finding the defendant guilty, and could not in any way whatever influence the jury in arriving at its verdict. It may be that in passing sentence on the verdict returned by the jury and fixing the term of imprisonment that the court took into consideration the fact that the defendant had previously been convicted of a similar charge.

Many errors are presented by the defendant in this case, and they have been carefully considered, and the authorities cited in support of the same have been read with great care. From the reading of the record and the errors assigned, and the authorities cited in support of the same, we fail to find any error in the record of sufficient merit to warrant a reversal of this case. The defendant was accorded a fair and impartial trial. The instructions to the jury were as fair to the defendant as the facts in the case justified. Finding no fundamental or prejudicial errors sufficient to warrant a reversal, the judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    J. H. COATNEY v. STATE.
    No. A-7447.
    Opinion Filed June 28, 1930.
    Rehearing Denied Aug. 23, 1930.
    (290 Pac. 420.)
    L. M. Gensman, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was. convicted in the county court of Comanche county on a charge of having unlawful possession of intoxicating liquor, and his punishment fixed at a fine of $500 and confinement in the county jail for 180 days.

The evidence of the state was that the officers, having a search warrant, searched the premises of the defendant and found 104 gallons of whisky in a room in the southeast corner of the house. Defendant contends that the following description in the affidavit and search warrant is insufficient:

“Dwelling house, out-buildings and premises, same being a two-story white house on the N. W. % of section 25, twp. 2N., range 12W., being the first house south of the Bennett property, the same being the premises of Homer Coatney.”

The evidence of the defendant was that the house was not a white house but a light yellow one. This description was sufficient to authorize the search of the clef on 1-ant’s premises. The defendant did not take the witness stand. The record is silent as to the service of the warrant, the officers testifying that they v ent to- the promises, found the defendant there, exhibited the search warrant, and searched the premises; that the only comment the defendant made was to say that the warrant was no- good. The presumption of law is that the officers did their duty and served the warrant. All the inferences to be drawn from the surrounding circumstances were that the warrant was served on the defendant. The defense is purely technical, based on the sole question of the insufficiency of the affidavit and search warrant, and is without merit. For the reasons stated, the cause is affirmed.

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


text:
    L. A. WIYGUL v. STATE.
    No. A-7370.
    Opinion Filed July 5, 1930.
    Rehearing Denied Aug. 23, 1930.
    (290 Pac. 418.)
    I. L. Strange, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPOBT, J.

The plaintiff in error, for convenience referred to- as the defendant, was convicted of embezzlement and his punishment fixed at imprisonment in the state penitentiary for one year. Motion for new trial was filed, considered, and overruled, and defendant duly excepted, and by petition in error and case-made attached appealed to this court.

The facts, in substance, as disclosed by the state and the defendant, are that on January 23, 1923, W. E. McKinney, administrator of the estate of a sister of Charles M. Gasway, forwarded to Charles M. Gasway a check for $200 representing his distributive share in his sister’s estate. It appears that Gasway took the check to his home and with some other papers put them away and failed to cash the check, and on or about December, 1927, found the check, which was drawn on the American National Bank of Fort Towson, Okla., and immediately presented it for payment, and a Mr. Hall, who was the cashier of the American National Bank of Fort Towson, refused payment on the check for the reason that the check was dated nearly five years prior to the date of its presentation, and expressed a desire to investigate the matter before paying the check.

At the time Mr. Gasway presented the check to the bank for payment, the defendant was a practicing attorney, and Mr. Gasway called at his office and advised the defendant that he had presented the check to the bank and payment had been refused, and. the prosecuting witness says that he advised the defendant the money was due him from his sister’s estate and that he had with him some papers, Avhich he showed to' the defendant so the defendant would know the money was due him. The prosecuting witness says he employed Mr. Wiygul to collect the check from the bank for a fee of $10. It is admitted that the defendant collected the money from the bank, and defendant says that Gasway came to his office and told Mr. Hall, the cashier of the bank, told him that the check was no good; that Mr. Gasway was mad when he came to his office, and he told Mr. Gasway he did not believe the check could be collected; and that Mr. Gas-way threw the check do wn on his desk and said he would rather the defendant would have the money the check called for than for the bank to have it and for him to collect it, if he could, and to keep the money. The defendant then says he told Gasway to indorse the check, and that Gasway indorsed the check and left it with the defendant in his office. This is, in substance, all the testimony material to the issue in this case.

The defendant has assigned six errors alleged to have been committed by the court in the trial; the first being the court erred in overruling his motion for a continuance. The defendant’s motion for continuance was based on the ground of the absence of Ben Cline, a material witness, and set forth what he expected to prove by Cline, who had been subpoenaed, but was absent from the county at the time the case was called for trial.

This court has repeatedly held that an application for continuance on account of an absent witness is addressed to the sound discretion of the trial court, and unless there is a manifest abuse of such discretion, the judgment and conviction will not be reversed because a continuance was denied. Sanders v. State, 38 Okla. Cr. 386, 262 Pac. 216.

It is the duty of the defendant, before he applies for a continuance, to exhaust all his legal remedies to obtain the presence of his witness, and this must affirmatively appear in the application for the continuance; otherwise the application will be bad upon its face. McCarter v. State, 14 Okla. Cr. 305, 170 Pac. 712.

There is no showing in the record that the defendant, when his witness failed to appear, asked the court for an attachment to compel the attendance of the absent witness. It is further shown that the absent witness had testified in the preliminary trial and the record of his testimony was available to the defendant.

The court did not abuse its discretion in overruling the defendant’s motion for a continuance.

It is next contended by the defendant that the trial court erred in permitting’ improper contradiction of the defendant in rebuttal by the state witness. A careful study of the record in this case shows that the only controversy between the state and defendant was the one question, Did the prosecuting witness Gas way, when he went to defendant’s office with the unpaid check, indorse the same and give it to the defendant with the statement that if he could collect it to collect it and keep the money, or did he go to defendant’s office for the purpose of having the defendant collect the money due on the check for him, for which he was to pay the defendant $10? The record discloses that the defendant collected the money shortly after the check was delivered to him by the prosecuting witness. We hold that the cross-examination of the defendant, and the rebuttal testimony offered by the state to show that shortly after the defendant received the check he had money in his pocket and made a statement to the witness Henderson that he could not pay him for the reason that this money belonged to a client for whom he had collected it, in view of the record in this case, did not prejudice the rights of the defendant. The conflict in the testimony was settled by the jury, the jury by its verdict found the defendant guilty of having collected the $200 due upon the check the prosecuting witness delivered to him, and when the prosecuting witness demanded the money failed to pay it. The testimony, though conflicting, is sufficient to sustain the judgment. The instruction of the court was fair to the defendant, as the facts stated in the record would justify. There is no error in the record of sufficient merit to warrant a reversal of this case. The defendant was accorded a fair and impartial trial.

The judgment is affirmed.

EDWARDS, P. J., concurs. CHAPPELL, J., not participating.


text:
    W. A. KELLEY v. STATE.
    No. A-7419.
    Opinion Filed June 28, 1930.
    Rehearing Denied Aug. 23, 1930.
    (290 Pac. 417.)
    H. W. Morgan, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Caddo county on a charge of having, possession of a still worm, and his punishment fixed at a fine of $100 and confinement in the county jail for a period of 60 days.

The evidence of the state was that the officers went to defendant’s premises and without a search warrant searched the timber about 150 or 200 yards east of defendant’s house; that defendant was working- in a cotton field near the house; that one of the officers watched the defendant from a distance, and that he called one of his little girls to him, and she walked down to a little pond, about 150 or 200 yards from where defendant was working, and threw a worm of the still into the lake; that the officers found mash barrels and other things showing operation of a still; that the officers then arrested the defendant and took him to the house; that some one dumped a large amount of whisky from the window upstairs and the officers caught a half gallon.

Defendant on cross-examination admitted that he knew the still was there, admitted that he had whisky in his house, admitted that he had seen the mash barrels and the furnace where the still had been operated, but denied that he owned it or had anything to do with its operation. Defendant testified that the still was found on his premises and outside of his curtilage, and that the officers made no' effort to search the house or any part of his premises except this woodland and pond where this still was found.

The principal question presented is the right of the state to' search premises; of the character testified to by the defendant, without a search warrant. The following cases support the right of the officers to search: Merck v. State, 35 Okla. Cr. 160, 249 Pac. 163; Penney v. State, 35 Okla. Cr. 151, 249 Pac. 167; Mitchell v. State, 38 Okla. Cr. 167, 259 Pac. 661; Perry v. State, 42 Okla. Cr. 92, 274 Pac. 686.

The evidence obtained under the search being admissible and sufficient to support the verdict of the jury, the cause is affirmed.

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


text:
    ODA BROWN v. STATE.
    No. A-7377.
    Opinion Filed June 28, 1930.
    Rehearing Denied Aug. 23, 1930.
    (290 Pac. 416.)
    George W. Miller, for plaintiff in error.
    The Attorney General, and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Kay county on a charge of driving a car while intoxicated, and his punishment fixed at imprisonment for eight months and 10 days in the state penitentiary.

The evidence of the state was that the defendant, accompanied by an Indian woman named Martha Eschel-man, was driving in an automobile on the public highway near the Ponca Indian Agency; that defendant and the woman were both intoxicated and that the car was wobbling from one side of the road to the other; that the avo-man was a Ponca Indian woman, and Mr. Snyder, the superintendent, accompanied by Mr. Little, pursued the car for about two miles and finally forced defendant to stop by locking his fender to the running board of defendant’s car. Pour witnesses for the state testified that defendant was drunk at the time he was driving his car upon the public highway. Defendant defended on the ground that he had not been drinking, but that the car was old and the steering wheel was loose, which caused his car to wobble.

Defendant first contends that the evidence is insufficient to support the verdict of the jury. All the state’s witnesses testified that he was drunk, one of them testifying that he smelled liquor on defendant’s breath. This evidence was sufficient to justify the jury in finding that defendant was intoxicated while driving a car.

Defendant next contends that the punishment is excessive. The jury fixed his punishment at imprisonment in the penitentiary for eight months and 10 days. They might have fixed his punishment at one year in the penitentiary and a fine of $2,000. This is just the ordinary case of a drunken man driving an automobile on the public highway and thereby endangering the lives of himself, those in the car with him, and the lives of other persons using the highway. When all the facts and circumstances in the case are considered, the punishment is not excessive.

For the reasons stated, the cause is affirmed.

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


text:
    F. O. STRONG v. STATE.
    No. A-7311.
    Opinion Filed June 5, 1930.
    Rehearing Denied Aug. 23, 1930.
    (290 Pac. 1119.)

      I. H. Lookabaugh, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted of the crime of transporting intoxicating liquor in the county court of Blaine county, and his punishment fixed at a fine of $50 and confinement in the county jail for a period of 30 days.

The appeal in this case was filed in this court on the 13th day of March, 1929. No briefs have been filed on behalf of plaintiff in error and no appearance was made for oral argument.

A careful examination of the record discloses that the evidence is sufficient to support the verdict of the jury.

No error being apparent depriving the appellant of any substantial right, the cause is affirmed.


text:
    CHARLEY PRINCE v. STATE.
    No. A-7550.
    Opinion Filed Aug. 16, 1930.
    Rehearing Denied Aug. 23, 1930.
    (290 Pac. 1118.)
    A. M. Reinwand, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Comanche county on a charge of having: unlawful possession of intoxicating liquor, and his punishment fixed at a fine of $50 and confinement for a period of 30 days in the county jail.

The appeal in this case was filed in this court on the 14th day of September, 1929. No briefs have been filed on behalf of plaintiff in error and no- appearance was made for oral argument.

Upon a careful examination of the record, we find no errors depriving the appellant of any substantial rights.

The evidence being sufficient to support the verdict, the cause is affirmed.


text:
    WILLIE HOOPER et al. v. STATE.
    No. A-7460.
    Opinion Filed July 19, 1930.
    (290 Pac. 1116.)
    L. A. Pelley, for plaintiffs in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiffs in error,- hereinafter called defendants, were convicted in the district court of Jackson county of larceny of domestic fowls and were each sentenced to serve a term of one year in the state penitentiary.

The judgment was entered in January, 1929, and the appeal was lodged in this court in July, 1929. No briefs in support of the appeal have been filed. The evidence sustains the verdict and judgment, and no fundamental nor jurisdictional error is apparent.

The case is affirmed.


text:
    HARRY KNOWLES v. STATE.
    No. A-7425.
    Opinion Filed June 21, 1930.
    Rehearing Denied Aug. 23, 1930.
    (290 Pac. 1116.)
    Wells & Greer, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error was convicted in the county court of Seminole county on a charge of having unlawful possession of 11 gallons of corn whisky, and his punishment fixed by the jury at a fine of $200 and imprisonment in the county jail for a period of 30 days.

But one question is presented by this appeal, and that is the sufficiency of the evidence to support the verdict. Prom a careful examination of the record, we find there is sufficient competent evidence to support the verdict of the jury.

No error being apparent, the cause is affirmed.

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


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    W. C. McDONAL v. STATE.
    No. A-7293.
    Opinion Filed March 29, 1930.
    Rehearing Denied Aug. 23, 1930.
    (290 Pac. 1117.)

      George L. Zink, 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 Kiowa county on a charge of transporting intoxicating liquor, and was sentenced to pay a fine of $300 and to serve a term of 30 days in the county jail.

The case was tried in October, 1928, and the appeal was lodged in this court in February, 1929. No briefs in support of the appeal have been filed.

Under all the circumstances shown we are of the opinion that the fine is excessive and should be reduced to the sum of $100.

As modified, the case is affirmed.


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    CECIL PIKE v. STATE.
    No. A-7574.
    Opinion Filed Aug. 23, 1930.
    (290 Pac. 1117.)
    Darnell & La Rue, 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 Custer county on a charge of selling intoxicating liquor, to wit, one pint bottle of whisky, and his punishment fixed at a fine of $200 and confinement in the county jail for a period of two months.

The appeal in this case was filed in this court on the 26th day of September, 1929. No briefs have been filed on behalf of the plaintiff in error, and no appearance was made for oral argument.

Upon a careful examination of the record we find no errors depriving the appellant of any substantial rights.

The evidence being sufficient to support the verdict, the cause is affirmed. '


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    STATE v. A. J. WELCH.
    No. A-7808.
    Opinion Filed Aug. 23, 1930.
    (291 Pac. 144.)
    George M. Callihan, Co. Atty., Harlan T. Deupree, Asst. Co. Atty., and Smith C. Matson, Asst. Atty. Gen., for the State.
    A. J. Welch, pro se.
   PER CURIAM.

The defendant in error was charged in the district court of Oklahoma county with the crime of adultery. He filed a motion to dismiss in the nature of a motion to set aside the information. This motion was sustained and the case dismissed. The state has attempted to appeal by a transcript. Where an appeal is by transcript, there is brought before this court only the record proper, which is defined by section 2777, Comp. St. 1921, as follows:

“When judgment upon a conviction is rendered, the clerk must enter the same upon the minutes, stating briefly the offense for which the conviction has been had, and must immediately annex together and file the following papers, which constitute a record of the action.
“First. The indictment and a copy of the minutes of the plea or demurrer.
“Second. A copy of the minutes of the trial.
“Third. The charges given or refused, and the in-dorsements, if any, thereon; and,
“Fourth. A copy of the judgment.”

Where it is sought to have this court review any question which does not appear on the face of the record proper, it is necessary that the appeal be by case-made. Hodges v. State, 38 Okla. Cr. 259, 259 Pac. 1056; Preston v. State, 40 Okla. Cr. 403, 269 Pac. 507.

The attempted appeal is dismissed.


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    ELIGA BELL v. STATE.
    No. A-7577.
    Opinion Filed Aug. 29, 1930.
    (295 Pac. 1119.)
    Darnell & La Rue, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error was convicted in the county court of Custer county on a charge of having unlawful possession of one pint of whisky, and. his punishment fixed by the jury at a fine of $200 and imprisonment in the county jail for a period of 60 days.

But one question is presented by the appeal, and that is the sufficiency of the evidence to support the verdict. From a careful examination of the record we find there is sufficient competent evidence to support the verdict of the jury.

No error being apparent, the cause is affirmed.

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


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    A. E. PINNICK v. STATE.
    No. A-6994.
    Opinion Filed Jan. 25, 1930.
    Rehearing Denied Aug. 29, 1930.
    (290 Pac. 1113.)
    W. B. Richards, for plaintiff in error.

      J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted on a charge of embezzlement, and his punishment, fixed at two years in the penitentiary. Motion for new trial was filed, considered, overruled, exceptions saved, and the case appealed to this court.

The state, to sustain its allegations, called O. M. Kramer, the party whose money the defendant is alleged to have embezzled. Kramer testified that he had' employed the defendant to represent him in a lawsuit and to collect and remit to him for rentals for property belonging to him, located in the town of Yale, Olda., where the defendant was located, engaged in the practice of law; Kramer lived in the city of Bristow, Okla.; that the defendant collected money for him, sent him checks which were protested by the banks on which they were drawn for insufficient funds. The record further showed defendant had not accounted to the prosecuting witness for the amount of money collected from the tenants of the witness Kramer’s property, though Kramer had requested payment. Defendant does not deny he collected the money he is charged with embezzling, but contends that he told Kramer he would pay him, and that Kramer replied that he would send the defendant to the penitentiary. The foregoing is, in substance, the testimony.

Nine errors are assigned and argued by the defendant. However, no authorities are cited in support of his contentions. The first and ninth assignments are as follows :

“1. That the court erred in overruling plaintiff in error’s motion for a new trial.”
“9. That the evidence is not sufficient- to sustain the verdict.”

These two assignments will he considered together, as they relate to the same question, the insufficiency of the evidence to sustain the judgment.

Section 2121, C. O. S. 1921, defines embezzlement as follows:

“Embezzlement is the fraudulent appropriation of property by a person to whom it has been entrusted.”

This charge was based on section 2124, which reads as follows:

“If any person being a trustee, banter, merchant, broker, attorney, agent, assignee in trust, executor, administrator or collector, or being otherwise entrusted with or having in his control property for the use of any other person, or for any public or benevolent purpose fraudulently appropriates it to any use or purpose not in the due and lawful execution of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose, he is guilty of embezzlement.”

Sections 2127 and 2130 read as follows:

“A distinct act of taking is not necessary to constitute embezzlement, but any fraudulent appropriation, conversion or use of property, coming within the above prohibitions is sufficient.”
“The fact that the accused intended to restore the property embezzled is no ground of defense, or of mitigation of punishment, if it has not been restored before an information has been laid before a magistrate, charging the commission of the offense.”

The undisputed testimony shows that the defendant had collected rents for several months and failed to account to the prosecuting witness, Kramer, for the moneys due him from said collections. During the several months Pinnick acted as agent for Kramer, his collections amounted to something like $300. The charge in the information is for embezzlement of $81.50, which, as shown by the testimony in the record, was a part of the money collected from the tenants of Kramer, which the said defendant had failed to pay to the witness Kramer. The proof in this case is amply sufficient to sustain the conviction.

It is further urged by the defendant that the information is insufficient to charge the crime of embezzlement. Upon an examination of the record we find that the defendant did not attack the information by a demurrer in the trial court. The record discloses that after the trial the information was attacked by the defendant by a motion in arrest of judgment. However, the defendant, in filing his assignments of error, failed to include his motion in arrest of judgment as one of the errors assigned. No demurrer having been filed to the information in the trial court, the failure of the defendant to include in his assignments of error the action of the court in overruling his motion in arrest of judgment, the question of the sufficiency of the information is not properly before this court for review.

After a careful examination of the information, we hold that, under the former rulings of this court, the information properly charged the crime of embezzlement. Morrison v. State, 7 Okla. Cr. 242, 123 Pac. 169.

The defendant urges that improper testimony was admitted, which related tO' a wide range of transactions and sums of money other than that charged in the information, and he urges that the proof should have been confined to the single transaction charged in the information.

In the case of Miller v. State, 13 Okla. Cr. 176, 163 Pac. 131, L. R. A. 1917D, 383, this court held:

“Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish: First, motive; second, intent; third, the absence of mistake or accident; fourth, a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; fifth, the identity of the person charged with the commission of the crime on trial.”

We have carefully examined the record and the argument of the defendant, and find that the information sufficiently charges the crime of embezzlement; that the court properly instructed the jury as to law; that the testimony is sufficient to sustain the conviction.

In view of the fact that the amount alleged to have been embezzled by the defendant is a small amount, we believe that the ends of justice will be properly met by a modification of the sentence from a term of two years to a term of one year in the penitentiary, and, as so modified, the judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


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    IVAN SHERWOOD v. STATE.
    No. A-7567.
    Opinion Filed Aug. 29, 1930.
    (290 Pac. 1112.)

      John W. Whipple, for plaintiff in error.
    The Attorney General,. for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Payne county on a charge of having unlawful possession of intoxicating liquor, and his punishment fixed by the jury at a fine of $250 and imprisonment in the county jail for a period of six months.

The evidence of the state was that the officers procured a search warrant to search the premises at 621 East Maple street, in the town of Cushing,, in Payne county, and that on searching these premises they found the defendant asleep in one of the rooms and found four gallons of whisky in the same room. That at that time defendant said that was all the whisky he had. The officers also found some glass fruit jars and other paraphernalia, and later, on searching the defendant’s car, which was setting on the street in front of the house, they found some empty bottles and a funnel. The officers testified that they had seen the defendant come to this house a short time before the warrant was obtained, but that they had no knowledge that it was where he lived. The defendant did not take the witness stand and offered no' evidence, and there is nothing in the record to establish the fact that the premises searched were the residence of the defendant.

Defendant moved to suppress the evidence for tbe reason that the search warrant did not contain his name nor any other name but merely a description of the premises.

In the case of Eoss v. State, 38 Okla. Cr. 252, 260 Pac. 90, this court held that it was not absolutely essential that the affidavit set out the name of the owner or occupant.

Certainly, if the name of the owner or occupant may be omitted from the affidavit, they may also be omitted from the search warrant.

The evidence being sufficient to support the verdict of the jury and the errors of law complained of being without merit, the cause is affirmed.

EDWAEDS, P. J., and DAYENPOET, J., concur.


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    WALTER SMITH v. STATE.
    No. A-7400.
    Opinion Filed June 28, 1930.
    Rehearing Denied Aug. 29, 1930.
    (290 Pac. 1108.)

      John L. Hodge and Sigler & Jackson, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was jointly charged with Edwin Suggs and Charlie Henderson, with the crime of stealing live stock, was tried separately and convicted and sentenced to serve a term of two years in the penitentiary. Motion for new trial was filed, considered, overruled, and exceptions saved, and the case appealed by petition in error and case-made. This is a companion case to Suggs v. State, 46 Okla. Cr. 340, 285 Pac. 985.

The substantial facts are that at the time it is alleged the cattle were stolen Smith was buying cattle for Edwin Suggs; the defendant was also present at Charlie Henderson’s place on the night the cattle were loaded and shipped to Oklahoma City; the defendant assisted in loading the cattle into the trucks. It is contended on behalf of the defendant that the cattle that were shipped had been bought by him from the prosecuting witness Jack Roberts earlier in the summer and he had been pasturing them near the Charlie Henderson place, and the night it is alleged the cattle were stolen, he together with another party drove the cattle a distance of about four miles to the home of Henderson, where the cattle were loaded into the trucks before daylight and hauled to Oklahoma City by parties hired for that purpose, and sold to the packing house in Oklahoma City.

About the only question to be determined in this case is the question raised by the defendant that the testimony is insufficient to sustain the conviction. An examination of the record in this case, and in the case of Suggs v. State, supra, affirmed by this court February 15, 1930, discloses practically the same state of facts, and it is not deemed necessary to set them out in full in this case. The jury heard all the evidence and found against the contentions of the defendant upon the question of the cattle being taken, and upon the question of the identity of the cattle the testimony is conflicting. This court has held so many times that it is not necessary to cite authorities, that the jury was the sole and exclusive judges of the evidence, and the weight it would give to the testimony, and the credibility of the witnesses, and if there is any competent testimony to sustain the conviction the judgment would not be reversed on that question alone.

Many errors have been assigned by the defendant, but from an examination of them it is held they do not possess sufficient merit to warrant a reversal of this case. The defendant was accorded a fair and impartial trial by a jury of his peers. The court substantially instructed the jury as to the law. Finding no reversible error, the judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


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    Ex parte BESSIE SIMPKINS.
    No. A-7960.
    Opinion Filed Aug. 29, 1930.
    (290 Pac. 1118.)
    J. W. Bolen, for petitioner.
    J. Berry King, Atty. Gen., and J. W. Dean, Co. Atty., for respondent.
   DAVENPORT, J.

The petitioner, Bessie Simpkins, filed her verified petition in this court on August 25, 1930, showing that she is unlawfully imprisoned in the county jail of Pontotoc county, state of Oklahoma, by the sheriff of said county. She avers that she is not guilty of the crime of murder as charged, and the proof of the guilt of the crime charged is not evident nor is the presumption great; that heretofore she made application to the district court in and for Pontotoc county for bail on said charge, and said application has been denied. The testimony in support of the petitioner’s application is attached to- case No-. A-7909.

The issuance of the writ of habeas corpus has been waived by J. W. Dean, county attorney for Pontotoc county, Okla.

After a careful examination of the transcript of the evidence, it is adjudged that the petitioner is entitled to be admitted to- bail, and the amount of bail to be given is fixed at the sum of f5,000; said bond to be conditioned as provided by law, and to be approved by the court clerk of Pontotoc county.

EDWARDS, P. J., and CHAPPELL, J., concur.


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    JACK McCREW v. STATE.
    No. A-7514.
    Opinion Filed Aug. 29, 1930.
    (290 Pac. 1117.)
    L. T. Cook, for plaintiff in error.

      J. Berry King, Atty. Gen., for the State,
   PER CURIAM.

Plaintiff in error was convicted in the county court of McClain county on a charge of having unlawful possession of intoxicating liquor, and his punishment fixed at a fine of $200 and confinement in the county jail for a period of 60 days.

The appeal in this case was filed in this court on the 22d day of August, 1929. No briefs have been filed on behalf of plaintiff in error and no appearance was made for oral argument.

Upon a careful examination of the record we find no errors depriving the appellant of any substantial rights.

The evidence being sufficient to support the verdict, the cause is affirmed.


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    VIRGIL COX v. STATE.
    No. A-7575.
    Opinion Filed Aug. 29, 1930.
    (291 Pac. 160.)
    Darnell & La Rue, 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 on a charge of selling intoxicating liquor, and his punishment fixed by the jury at a fine of $150 and 30 days in the county jail.

The evidence of the state was that the defendant sold a pint of whisky to one R. J. Smith on the 29th day of August, 1928. This evidence was corroborated by D. E. Smith, who is a brother of the witness R. J. Smith. These witnesses were employed by the officers of Custer county to procure evidence of the violation of the liquor laws of the state. The trial judge allowed defendant’s counsel to carefully cross-examine these witnesses on their place of residence, their occupation, the amount they were being paid for their services and generally on all matters brought out by the state, but he refused to permit the defendant to cross-examine these witnesses on whether they participated in a street fight at Custer City, and if they had not taken a bottle of whisky to a blacksmith shop in Custer City and asked different persons to drink out of it, and if they had not hired one Lewis and wife to make some fieer for them. The trial court sustained objections to questions along this line as not being proper cross-examination, incompetent, and immaterial. The defendant, testifying for himself, denied that he had sold the witness Smith any intoxicating liquor.

The defendant contends that the evidence was insufficient to' support the verdict of the jury, but this contention is without merit.

Defendant next contends that the court erred in overruling his challenge to the jury panel, for the reason that the witnesses for the state in the case at bar had testified in the trial of three other cases against other defendants, for other offenses, at the same term of court, and that such jurors were thereby prejudiced and would be disqualified to sit. This challenge to the panel was overruled and six of the regular jurors called into the box. The court permitted defendant’s counsel to carefully examine the jurors on their voir dire and they all answered that the fact that the Smiths had been witnesses in other cases would not influence their verdict in the case at bar.

Defendant challenged the juror Dave Hughes for cause, because the juror stated his acquaintance with the defendant would prevent him from giving the defendant a fair trial. This juror was excused by the court. Defendant challenged the juror J. A. Powers for cause, for the reason that the juror stated he would rather not sit in the trial of the case. After further examination by the court, this challenge for cause was overruled. Defendant exercised none of his peremptory challenges and made no objection to the jury being sworn to try the cause.

In the case of Bills v. State, 48 Okla. Cr. 233, 290 Pac. 935, this court had under consideration the precise question raised by the defendant in the case at bar, in which the court said:

“Jurors who sat in the trial of a criminal case wherein certain witnesses testified, are not thereby disqualified to sit as jurors in the trial of another case against a different defendant, tried at the same term of court, where such witnesses will testify for the state in reference to' a different offense and at a different time.”

The evidence being sufficient to support the verdict of the jury, and the errors of law complained of being, without substantial merit, the cause is affirmed.

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


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    RAY DAINE v. STATE.
    No. A-7579.
    Opinion Filed Aug. 29, 1930.

      (291 Pac. 136.)

    L. C. McLean, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of the crime of having in his possession 72 pints' of home brew, containing more than one-half of 1 per cent, of alcohol by volume, with intent to sell, barter, give away, or otherwise furnish the same to others, and was sentenced to pay a fine of $50 and be imprisoned in the county jail for 60 days, from which judgment and sentence the defendant has appealed.

The testimony on behalf of the state shows that Charles Allen and E. J. Peel went to defendant’s home with a search warrant and searched his premises and found 72 pints of home brew; that the same was analyzed by Earl Cary, a chemist, and showed that it contained 4.4 per cent, alcohol measured by volume.

The defendant testified in his own behalf and admitted he had a number of bottles of home brew, but denied it was for the purpose of selling, giving away, or otherwise furnishing the same to others. There is no' proof on the part of the state of the sale of any of the home brew found in the defendant’s borne and under the floor of his home. The quantity the defendant had on hand is prima facie evidence of his intent to barter, sell, give away, or otherwise furnish the same to others in violation of the law.

The defendant has assigned several errors alleged to have been committed by the trial court. The defendant urges that the court erred in overruling his motion to’ suppress the evidence secured by reason of the search warrant, for the reason that the affidavit upon which it was based is insufficient. The affidavit is positive in form, and was sufficient to predicate the issuance of the search warrant by the magistrate. It is true that in the trial of the case the officer making the affidavit for the search warrant showed that he knew nothing, about what was stated in the affidavit for the search warrant, but this court has repeatedly held that, where the statements in the affidavit are positive in form, the question of the sufficiency of the affidavit cannot be raised in the trial of the case. The evidence in this case is sufficient to sustain the verdict of the jury. The court properly instructed the jury as to the law.

No errors appearing in the record of sufficient merit to warrant a reversal, the judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


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    ED LEATHERS v. STATE.
    No. A-7503.
    Opinion Filed Aug. 29, 1930.
    (291 Pac. 138.)

      Geo. L. Zink, 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 Kiowa county on a charge of unlawful transportation of whisky, and his punishment fixed at a fine of $50 and confinement for 30 days in the county jail.

The evidence of the state was that the officers saw the defendant and Joe Redman stop their truck near a culvert, about a quarter of a mile from the town of Snyder; that two men got out of the truck and got something from under the culvert; that they followed these men with the truck to Snyder and into a garage; that defendant Leathers got out of the truck and walked to the back of the garage and hid something under a bench; and that on search of the place they found a half pint of whisky. Later the officers went back to the culvert and found a half-gallon jar of whisky under it.

The defendants denied that they knew anything about the whisky under the culvert. The defendant admits that he was near the culvert with Joe Redman, his codefendant, and that they returned in the truck to the garage in Snyder. Defendant admits that he went to the back of the garage, but denies that he took any whisky with him.

Defendant contends that the evidence is insufficient to support the verdict of the jury. There is a sharp conflict in this evidence. This court has many times held that where there is a conflict in the evidence it will not reverse the case where there is any competent evidence to support the verdict of the jury.

There being sufficient competent evidence in the record to support the verdict of the jury, the cause is affirmed.

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


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    DICK CANTERBERRY v. STATE.
    No. A-7178.
    Opinion Filed Sept. 6, 1930.
    (291 Pac. 145.)
    Geo. W. Martin, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The judgment was entered on the 1st day of June, 1928, and the record for appeal was lodged in this court on the 1st day of October, 1928. An appeal from a conviction for a misdemeanor must be filed in this court in 60 days unless the trial court, for good cause shown, makes proper orders of extension. Any extensions the court may make cannot exceed 60 days additional. Therefore the appeal must be filed in this court within 120 days from the date of judgment. Section 2808, C. O. S. 1921.

The record discloses no extension of time by the court in which to file said appeal, and the same was not filed in this court until 122 days after the judgment was rendered.

When an attempted appeal is not filed in this court until after the expiration of the time fixed by law, this court acquires no jurisdiction.

For the reason stated, the appeal is dismissed.

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