text:
    Ex parte GRIFFEN.
    No. A-11381.
    March 29, 1950.
    (216 P. 2d 597.)

      Bluford Daniel Griffen, pro se.
    Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for respondent.
   BRETT, J.

This is an original petition in habeas corpus brought by Bluford Daniel Griffen, petitioner, against Clarence P. Burford, warden of the Oklahoma State Penitentiary at McAlester, Okla. In his petition Griffen alleges he is restrained of his liberty by Warden Burford, under a void judgment and sentence issued against him out of the district court of Washita county, Okla., on February 6, 1947. Therein he alleges that the said judgment and sentence was predicated upon a plea of guilty made and entered on said date to a charge of burglary, and his punishment was fixed at confinement in the Oklahoma State Penitentiary for a term of five years, “to begin at and from the time of his delivery to the Warden”. His contention .as to the invalidity of the said judgment and sentence is predicated upon the last-quoted portion of said judgment and sentence.

Further, he alleges that prior to the Washita county judgment and sentence, he was charged in Beckham county with burglary, second degree, to which he entered a plea of guilty, and on which he was sentenced on January 27, 1947, to confinement in' the Oklahoma State Penitentiary at McAlester for a term of five years. The Beckham county sentence being the first imposed, was the one upon which he was delivered into the hands of the warden. He alleges said sentence has been fully executed, and discharged by law on October 27, 1949. He contends that under the terms of the Washita county district court judgment and sentence, that tbe same is void “upon its face and one unknown to law” or by law bas long since expired under its terms, since it was to begin at tbe time of bis delivery to tbe warden. In other words, be says that since be was delivered on both judgments and sentences at tbe same time, the Washita county sentence commenced to run on tbe date of his delivery into tbe bands of tbe warden and bas likewise been discharged. Tbe question thus presented is, Did tbe two noneoncurrent sentences each imposed without regard to tbe other, under tbe terms of tbe Washita county judgment and sentence, run concurrently so that the Washita county judgment and sentence has now been fully discharged.

This question thus raised is answered in tbe case of Ex parte Halbert, 45 Okla. Cr. 167, 282 P. 478, wherein it was said.

“Tbe question presented is: Does a person sentenced to the penitentiary upon different convictions and at different terms of court, wherein the sentence provides that they shall begin upon tbe delivery of the person convicted to tbe warden of the State Penitentiary, serve such sentences concurrently?
“Sections 2303 and 2774, Comp. St. 1921 [21 O. S. 1941 § 61; 22 O. S. 1941 § 976], are as follows:
“ ‘2303. * * * When any person is convicted of two or more crimes, before sentence bas been pronounced upon him for either, the imprisonment to which he is sentenced upon the second or other subsequent conviction must commence at the termination of the first term of imprisonment to which he shall be adjudged, or at the termination of the second or other subsequent term of imprisonment, as the case may be,
“‘2774. * * * If the defendant (shall) have been convicted of two or more offenses, before judgment on either, the judgment may be that the imprisonment upon any one may commence at the expiration of the imprisonment upon any other of the offenses.’
“These statutes were under consideration in the case of Ex parte Bell, 34 Okla. Cr. 354, 246 P. 893, citing Ex parte Smith, 33 Okla. Cr. 175, 242 P. 284; Ex parte Ray, 18 Okla. Cr. 167, 193 P. 635. The substance of the holding in the Bell Case is that where a person is convicted of two or more crimes, before he is sentenced in either, the sentence in the second or subsequent conviction must commence on the termination of the first, unless the judgment and sentence in the second or subsequent conviction expressly provides that it shall run concurrently with the imprisonment for the first conviction. That is, where two or more convictions are had before sentence has been pronounced upon either, the trial court has the power to provide that the imprisonment upon the second or subsequent conviction shall run concurrently with the imprisonment upon the first. This court has nowhere held that the sentences can be made to run concurrently under any other condition. Ex parte Jess O’Daniell, 9 Okla. Cr. 720, 131 P. 963; Ex parte Holden, 31 Okla. Cr. 133, 237 P. 622; Ex parte Smith, 33 Okla. Cr. 175, 242 P. 284; Ex parte Strader, 37 Okla. Cr. 285, 257 P. 1112; Ex parte Hudson, 44 Okla. Cr. 14, 279 P. 711.
“The time fixed for the commencement of the execution of a sentence is not one of its essential elements, and the specifying, in the sentence of the time when it shall commence is in the nature of an award of execution. The essential part of the judgment is the punishment and the amount thereof, without reference to the time when it shall be executed. The time fixed for the execution is directory and not controlling except in cases under sections 2303 and 2774, Comp. St. 1921, above quoted, where a defendant has been convicted of two or more offenses before judgment on either. The rule here applied is that of the common law, in substance that where the judgment and sentence is imposed for a certain term, and where from any cause the time elapses without the imprisonment being endured, it is still a valid, subsisting, and unex-ecuted judgment to be satisfied only by the actual suffering of the imprisonment imposed, unless remitted by death or hy some legal authority. The expiration of time without imprisonment is in no sense an execution of the sentence. Ex parte Eldridge, 3 Okla. Cr. 499, 106 P. 980, 27 L. R. A., N. S., 625, 139 Am. St. Rep. 967; Ex parte Alexander, 5 Okla. Cr. 196, 113 P. 993; Ex parte Holden, supra; Ex parte Smith, supra.
“The only authority- for concurrent sentences under our law must be derived from sections 2303 and 2774, Comp. St. 1921, supra. The power is granted the trial court on the conditions therein named. In all other cases the sentences are consecutive. This case does not fall within the terms of the statute, and the sentences therefore must run consecutively.”

The sections of the statute hereinbefore referred to in Ex parte Halbert, supra, are the same as Title 22, Section 976, and Title 21, Section 61, O. S. A. 1941, respectively. As is said in Ex parte Halbert, supra, the case at bar does not fall within the said provisions. The time fixed for the commencement of the execution of a sentence is not one of its essential elements. The essential part of a judgment is the punishment and the amount thereof. The time fixed for the execution is directory and not controlling except in cases under section 976, Title 22, and section 61, Title 21, O. S. A. 1941. Furthermore, where the time of the commencement of the sentence elapses without imprisonment being endured, it is still a valid, subsisting and unexecuted judgment, which can be satisfied only by the actual suffering of the imprisonment imposed unless a remittitur is effected by death or in some other legal manner. Hence, the Washita county judgment and sentence under the foregoing authorities is valid and subsisting and could not be concurrently satisfied with the Beckham county judgment, but is an independent judgment and sentence which must he satisfied' without regard to the Beckham county judgment and sentence. Stated differently, the said sentences being independently imposed, must be independently served, in the order of their imposition. For all of the foregoing reasons, the writ of habeas corpus is accordingly denied.

JONES, P. J., and POWELL, J., concur.


source: Caselaw Access Project

author: JONES, P. J.

license: Public Domain

text:
    FINLEY v. STATE.
    No. A-10990.
    April 5, 1950.
    (217 P. 2d 189.)
    J. A. Binehart, El Beno, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Basil R. Finley, was charged by an information filed in the county court of Canadian county with the unlawful sale of one pint of whisky to one G. D. Dixson; was tried, convicted, and sentenced to serve 30 days in the county jail and pay a fine of $50.

It is contended for reversal of the conviction that the evidence showed that the arresting officer entered the home of the accused without a warrant and was a trespasser and the court erred in refusing to suppress the evidence of the officer upon motion of defendant.

Clarence Lorenzen, a deputy sheriff, testified that on July 30, 1947, about 6:45 p. m. he went to a filling station on Highway 66 near the outskirts of the city of El Reno with a warrant for the arrest of one Sykes who allegedly was the operator of the station. When Lorenzen arrived at the service station he parked his car in the driveway, and as he proceeded to the door of the station and started in, he saw the defendant lay a bottle of whis-ky on a shelf and saw G. D. Dixson pick up the whisky and place the pint bottle in his pocket. The officer demanded the whisky from Dixson and asked Dixson how much he had paid for it, to which Dixson replied $5.50. Defendant was arrested and taken to jail and asked the arresting officer “if it would be all right to let him lock the doors”.

G. D. Dixson testified that he lived at Union City; that he went to the service station in question on the evening of July 30, 1947 to buy some whisky; that he bought a pint of Old Grandad whisky from a man at the service station; that the man at the station placed the pint of whisky on a shelf in the station and the witness placed the sum of $5.50 on the shelf to pay for the whisky. He had never seen the man who sold him the whisky before that date and refused to identify the defendant as the person who sold him the whisky. He did state that the man who sold him the whisky was present when Officer Lorenzen entered the station and demanded the whis-ky which the witness Dixson had placed in his pocket.

The defendant testified that his home was in Oklahoma City, but on the day he was arrested by Lorenzen he was in charge of Mr. Sykes’ filling station and was staying there and batching while Sykes was away on a trip to Arkansas. He admitted that he was present at the time of the alleged transaction but specifically denied that he sold any whisky to Dixson.

It was the theory of the defendant that the officer entered the station which was also the home of the defendant without a warrant; that he did not see any crime committed in his presence but arrested the defendant and then learned that a misdemeanor had been committed by questioning the alleged purchaser.

The evidence of the state showed that Officer Loren-zen had a warrant for the arrest of Mr;. Sykes who was the operator of the station. Under the authority vested in the officer, he had a right under the warrant to lawfully enter the premises of Sykes for the purpose of making the arrest. When the violation of the liquor law occurred in his presence, the officer had the legal fight and it became his duty to make the arrest for such violation. In Farmer v. State, 86 Okla. Cr. 308, 192 P. 2d 716, 717, this court held:

“Where officer sees a person violating the intoxicating liquor law at a place where the officer has a legal right to be, the officer may without a warrant arrest the person and search his person and immediate possessions for intoxicating liquor.”

Other cases sustaining a conviction upon facts similar to those in the instant case are: Tripp v. State, 73 Okla. Cr. 69, 118 P. 2d 273; Blair v. State, 75 Okla. Cr. 265, 130 P. 2d 545; O’Dell v. State, 80 Okla. Cr. 194, 158 P. 2d 180.

As we view this record the officer had a lawful right to go to the station and enter it for the purpose of inquiring concerning the whereabouts of Sykes, the owner of the státion. Although defendant testified that he was hatching at the station, there was no evidence to show that the room entered by the officer was a part of the living quarters of the defendant. On the contrary, the reasonable inference from the testimony is that the room' which the officer entered was a part of the business place of the station and one in which the public entered freely in their business transactions there at the service station.

The burden of proof is upon the defendant to introduce evidence sustaining his motion to suppress evidence when it is claimed the search and seizure of intoxicating liquor is illegal. O’Dell y. State, supra.

In the instant case the defendant was charged with the unlawful sale of whisky and not With the illegal possession of whisky. The law pertaining to search and seizure is really not herein involved. No search was made of defendant but the seizure of the whisky by the officer was from the person of Dixson. Dixson, of course, was a proper witness against the accused in a charge for making an unlawful sale of whisky and the officer had a lawful right to testify to the things that he saw at the place where he had a lawful right to be.

We find no substantial error in the record and the judgment and sentence is affirmed.

BRETT and POWELL, JJ., concur.


text:
    HARTLEY v. STATE.
    No. A-11171.
    April 5, 1950.
    (217 P. 2d 188.)
    Carder & Carder, Hobart, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Thurlow Walter Hart-ley, was convicted in the county court of Kiowa county for the misdemeanor of driving an automobile on the public highway while under the influence of intoxicating liquor and pursuant to the'verdict of the jury was sentenced to pay a fine of $25 and costs, and has appealed.

No brief has been filed on behalf of defendant and no appearance was made in his behalf at the time the case was assigned for oral argument. Under those circumstances, the record will be searched for fundamental error and if none is found the judgment will be affirmed.

The evidence shows that two officers saw the defendant driving his Buick automobile on the streets in the town of Mountain Park while he was intoxicated. We have found no substantial error in the record. The judgment and sentence of the county court of Kiowa county is accordingly affirmed.

BRETT and POWELL, JJ., concur.


author: BRETT, J.

text:
    DRAKE v. STATE.
    No. A-11146.
    April 5, 1950.
    (217 P. 2d 191.)

      Ryan Kerr and Gore & Gore, Altus, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The defendant below, Floyd Drake, was charged by information, tried by a jury, convicted of the crime of maintaining a public nuisance in Room 427 of the New Orient Hotel in Altus, Okla., on February 14, 1948, where equipment was provided and persons congregated to play at such gambling games as poker played with cards, and craps played with dice, for money, checks, etc. A trial was had in the case on April 6, 1948, and the jury finding the defendant guilty, fixed his punishment at a fine of $500, and judgment and sentence was pronounced accordingly.

The statute under which the charge was laid is § 946, Title 21 O. S. 1941, as follows:

“Any house, room or place where any of the games prohibited by Section 1 of this Act are opened, conducted or carried on, or where persons congregate to play at any such games is a public nuisance and the keepers and managers of any such nuisance, and persons aiding or assisting any such keepers or managers in keeping or managing any such nuisance shall be guilty of a felony and upon conviction, shall be punished by a fine of not less than five hundred dollars nor more than ten thousand dollars or by imprisonment in the State Penitentiary for a term of not less than one year nor more than ten years.”

In the foregoing section 946, Title 21 O. S. 1941, reference is made to the provisions of section 1 of this act which has reference to the provisions of section 941, Title 21 O. S. 1941, which defines the games prohibited by said act. It reads in substance in relation thereto as follows, to wit:

“Every person who opens, or causes to be opened, or who conducts, whether for hire or not, or carries on either poker, roulette, craps or any banking or per centage, or any gambling game played with dice, cards or any device, for money, checks, credits, or any representatives of value, * *

Originally, Floyd Drake and Lee Walker were jointly charged herein but a severance was granted and Floyd Drake appears herein only as the defendant. Preliminary to the hearing herein the defendant interposed a motion to suppress the evidence on the grounds that the same was obtained under an unlawful search and seizure. Evidence was offered on the same, and the sanie was by the court overruled. No question is raised on this appeal by reason thereof. We make reference only to the same because of the fact that the same will be referred to hereafter incidentally to a consideration of the evidence.

The defendant’s first contention is that the evidence is insufficient to support the conviction. In this connection the record discloses on behalf of the state that C. W. Stamey, manager of a construction company, a friend of the defendant, and who lived in Kansas but who had been stopping at the New Orient Hotel about 18 months, testified substantially as follows: That some time in February, 1948, the defendant indicated to Mr. Stamey that he wanted to have a conversation with him, whereupon Mr. Stamey went to Room 427 in the'hotel where the alleged gambling house was operated. Floyd Drake was there alone, he sáid, and seemed to be in somewhat of a disturbed state of mind. He stated to Mr. Stamey he was just wondering whether it paid him to stay, up there, that he “could not make anything”. He further said that defendant, Drake, had reference to the clubroom located at Room 427 in the New Orient Hotel in Altus,. He further stated that Drake was wondering if he had anything that he might do. Mr. Stamey told him he could put him on the big “cat” (meaning a caterpillar tractor),. Mr. Stamey was asked if the defendant stated to him how much he was making in connection with the clubroom, and he said Drake told him about $100 a week was about as much as he could do. Drake said that he was not making as much as he could make at his trade as a welder. The defendant did not cross-examine Mr. Stamey in connection with the foregoing evidence. It is interesting, however, to note the cross-examination of the defendant. He was asked with reference to the conversation with Mr. Stamey, “Q. He told you why take a chance getting in dutch with the law when he could pay you for running a cat out there. He could pay you that much and you could make an honest living, did he tell you that?” The answer in this connection is most revealing, he says, “I can’t remember”.

Jack Kaufman testified that he lived in Altus, said he did not personally know Floyd Drake but had seen him once in Room 427 at the hotel. He testified that he had never seen the defendant engaged in any gambling at the room; that he had never engaged in any but that he had a membership card in the club ; that he had been up there on three different occasions and rolled dice. On these occasions Walker was there but Drake was not.

Next, the state offered Roscoe Meyer who testified he had a membership card which cost him $1, and when he procured it he was provided with a mixed drink. He further said that he later became engaged in a crap game. It was the third time he was in the clubroom. The defendant Floyd Drake and Lee Walker both played in that game.

Yerna May Brady testified that at the time in question she was the bookkeeper at the New Orient Hotel, that she had seen Drake in the lobby of the hotel practically every day but he was not registered at the hotel. She did not know what his business was in the hotel though she had seen him on occasions in Boom 427. She testified that Boom 427 was rented to Walker and as far as she knew to him only.' She further testified that if the defendant had anything to do with the clubroom it was unknown to her.

E. P. Shepard was the next witness called by the state. He testified that he was a club member and that he had been up there twice. He said the occasion for his going was that he went with a party who wanted to get a drink. He said when they went to Boom 427 the defendant, Floyd Drake, was sitting, at a table shuffling cards, that he did not know what the game was that they were playing. He said he did not see any gambling.

The next witness was Albert Kaufman, who testified he lived near Olustee and that his occupation was that of a farmer. He said he had known Floyd Drake for more than 20 years. He further testified that he was a card carrying club member, which membership he bought from Lee Walker for the price of $1, in November, 1947. He said Floyd Drake was present when Walker sold him the card. He too said when he purchased his card he got a drink. The first time he was there he said he gambled but not with Walker or Drake. The second time he was in the clubroom was on or about December 14 about 9 o’clock at night. He said be gambled with Floyd Drake, John Parker and Lee Walker; that be lost about $15 in cash and wrote a check for $50 to cover the balance of his losses. He further testified that when he .went up to the club he had about $15 and when he lost that he wrote a check for $50. He finally lost that and wrote another check for $100. He continued to increase these checks $50 at a time until he had written checks in the total sum of $250. He said he wrote one check for dice in the sum of $50, and one check in the sum of $50 with which to play poker. As he continued to lose and raise the amount of his checks, the checks for $50 and $100, etc., were supposed to have been destroyed. He said he made these checks out to Floyd Drake and that three of these checks came back through his bank account endorsed by Floyd Drake. The $250 check was made out to Floyd Drake. It was made out by him and endorsed by him. He identified the $50 check as made out by Lee Walker. All of the money that was received on these checks was paid out to him by Floyd Drake who apparently was acting in the capacity of banker for the games. He said that one of the $50 checks was not torn up and had been raised to $150. He said that he complained to Lee Walker about this check and told him he would tell the county attorney all he knew about the situation if they did not get him his money, He said he didn’t mind paying his losses, but the $150 check was what he did not like. He said when he would write the check that he would write and give it to Lee Walker. Lee Walker in turn gave it to Floyd Drake and Floyd Drake gave him the money on it. He said after the occurrence he contacted Drake about the situation and Drake would tell him he gave it to Walker and when he would contact Walker, Walker would tell him he gave it to Drake. Kaufman further testified that Floyd Drake and Lee Walker were running the place, and that on three different occasions he had drunk liquor at the club, and that Floyd Drake gaye him some of these drinks; that every time he was up there Floyd Drake and Walker were both there.

The next witness for the state was Robert Bilbrey. He testified that he too was a member of the club and had a membership card which he got from Walker; that he paid $1 for the card and got a drink of some kind; that he thought it had whisky in it. He said some time before Christmas, or in January, he was in a poker game with Drake and with a man by the name of Winfred Lindsey and another man he did not know. He said before the game started Lee Walker pitched a deck of cards on the table. He said he too got a drink there but he did not remember who furnished it. He said Floyd Drake was present when he was there.

Roy D. Baker testified for the state that he had a membership card for which he paid a dollar, and at the time of the purchase of the same he too got a drink which tasted like it contained alcohol. He said he had attended the clubroom on two occasions and Drake was not there.

The next witness for the state was A. B. Boaldin, sheriff of Jackson county. He testified to the raid on the night of February 14, 1948. He said when he raided the place under the authority of a search warrant a poker game was going on in the room between two men by the name of Edwards and Lavender. He said that Walker was not present but Floyd Drake was there and was using the telephone. Under his search warrant he said he seized 24 chairs, 5 tables, the deck of cards they were playing with, dice, leather cups and 4 quarts of whisky.

Witness Edmond Edwards testified that he was a member of the club operated in Boom 427 of the New Orient Hotel, that he purchased his card from Floyd Drake; that at the time he procured his membership they passed him a drink over the bar. He said that the night he was in the clubroom he played poker with a man by the name of Pike and Floyd Drake.

Walter Clounts testified he bought a membership card from Drake for the price of $1, and that he too was served a drink. He said that was his only participation at the club. He said there was no one present at that time except Drake and the negro porter.

John Parker testified that he was not a member of the club but he accompanied A. D. Kaufman, a member of the club, to the same about December 14, 1947. He said while he was there he saw gambling consisting of craps and poker. He said Floyd Drake was engaged in the poker game. He said he remembered Mr. Kaufman writing checks and giving them to Drake during the crap game. Drake cashed the checks and gave the money to Kaufman.

Audie Derryberry said he was not a member of the club but early in February he went to the club with another person and while there he saw Lee Walker and Frank Massey shooting craps and that he too engaged in the game.

Nelson Lavender testified that he was a member of the club and that his card evidencing his membership cost him a dollar but that when he purchased it he got a' drink which could have been an alcoholic drink. He said he had been to the club two or three times and that he was there on the night of February 14, 1948, when the sheriff raided the place, and that on that occasion he saw both Lee Walker and Floyd Drake gambling, and this was the same night that Mr. Pike and an investigator from Oklahoma City was playing.

Parker Brawley testified he was a member of the club, .that he had gambled there on two occasions by playing poker. He said he paid a dollar for his membership card and got a drink with it. He did not remember from whom he bought his membership card.

Halen Saleny testified that he held a membership card which cost him a dollar. He did not remember who sold him the card but said that he was offered a mixed drink but declined it when he 'bought his card. He testified he had played poker in the clubroom with Albert Kaufman and Parker Brawley. He did not recall whether there was a takeoff in the game.

Jimmie Aboussie said he held membership in the club and had been there on several occasions but did not see any gambling while he was there. He said Lee Walker sold him his card, that he was offered a mixed drink but, declined it, and took a Coca Cola or 7-Up instead.

To the foregoing evidence the defendant interposed a demurrer which was by the court overruled. The evidence was entirely sufficient to sustain the trial court in so doing.

The defendant, Floyd Drake, testified in his own behalf. He said that he was a card carrying member, and he joined the club in December, 1947, having purchased his membership card from Lee Walker. He denied having any connection with the management or operation of the club. He further testified that he had only been to > the club six or seven times. However, he admitted that he had gambled there. He admitted he sold several membership cards. In connection with the sale of membership cards Ms testimony was that if anybody came up and wanted a card because he was a club member he would take the dollar. He admitted that he was acting for Lee Walker when he issued these cards, that Walker told him that when he was not there to go ahead and sell the membership cards. He said he did not, know of any other member that sold any membership cards. He said that when he sold these membership cards he took the money and put it in a little cigar box behind the counter. He said that he could not recall that he unlocked this box the night the officres raided the place. He testified he did not get any income out of the place but that “what money I made I gambled a little once in '.a while, and after I made up my losses I didn’t make any money”. He denied he ever sold any whisky in the club but once in a while he sold a club membership and he would give the purchaser a drink. He admitted he had a conversation with Mr. Stamey. He admitted that he was the owner of the .45 pistol which the sheriff found in the clubroom' on the night of the raid. He said that he had taken the pistol out of Ms ear and carried it up to the clubroom. He also said he had been sitting in the poker game the night the sheriff raided the place. To this evidence the defendant moved for a directed verdict, which was properly overruled.

In an analysis of the evidence, it is clear that a gambling place where games with cards and dice such as is defined in § 941, Title 21 O. S. 1941, was being maintained in Room 427 of the New Orient Hotel in Altus as alleged in the information. The evidence is likewise clear and convincing that the same constituted a public nuisance as defined under § 946, Title 21 O. S. 1941. The only other question presented by the record is, Was the evidence sufficient to show the defendant connected therewith as keeper, manager or as a person aiding or assisting the keeper and manager of such nuisance? There are inescapable facts contained in the foregoing summary of the evidence that conclusively point to the defendant’s guilt of being a manager, keeper or an active aid and assistant in the operation of said gambling place. These conclusive facts are positively revealed by his admitted friend, Mr. Stamey, who testified that the defendant told him his interest .in the place netted him the sum of $100 per week. It discloses the defendant was uneasy about his continuing his connection with the gambling place. It further shoAved he was uneasy as to whether it would pay him to stay. Events, of course, proved his apprehension in this regard was well founded. His take of $100 a week for an unemployed welder would not have formed the basis of his apprehension as to whether it would pay him to stay. In this connection his cross-examination to which reference has hereinbefore been made is most revealing. Certainly he would have remembered the admonition given him by Mr. Stamey about talcing a chance in getting in dutch with the law. It is apparent that his faulty memory was prompted by his desire to evade the truth contained in the question. Moreover, the foregoing summary reveals the defendant as an almost constant habituate of the place, selling membership cards, serving alcoholic drinks, as a card shuffler, a participant in games of poker and craps, as the official but untrustworthy banker of the games, as well as being interested to the point of providing personal pistol protection for the place. Finally, it fixes the defendant as the sole person in charge when the raid was made of the place by Sheriff Boaldin.

We hare based the foregoing conclusion upon the evidence offered in the trial of the case in chief. It is interesting, however, to note that in this conclusion, we find confirmation thereof in the evidence offered by the defendant, on the motion to suppress the evidence of the state. Therein we find on cross-examination that Mr. Walker made the following statement:

“Q. What connection did Floyd have? A. He had a small connection, I hired him. Q. He had a working interest in the club? A. Yes, a working interest.”

The foregoing evidence though conflicting as between that offered by the state and the defendant is sufficient to sustain the verdict of the jury. In Jackson v. State, 84 Okla. Cr. 138, 179 P. 2d 924, 925, it was said:

“Where the evidence is conflicting and different inferences may be drawn therefrom, it is the province of the jury to weigh the evidence and determine the facts.”

In the more recent case of Wheaton v. State, 85 Okla. Cr. 132, 185 P. 2d 931, 932, it was said:

“The finding of a jury on a disputed question of fact will not be disturbed on appeal where there is competent evidence in the record to sustain their finding.”

The evidence herein is clearly sufficient to support the jury’s finding that the defendant, Drake, was guilty as charged in the information. This contention is therefore without merit.

Further, the defendant contends that the court erred in admitting evidence of other offenses committed in the operation of the said clubroom. The defendant contends that it was error for the court to permit proof in relation to serving of mixed drinks of alcoholic content to the members, and that the sheriff seized four quarts of whisky at the time of effecting the raid on the club. He further contends that the court erred in admitting evidence in relation to the finding of the .45 automatic pistol in the clubroom which Drake admitted belonged to him. The defendant complains that these facts bore no logical connection to the charge as laid in the information, that of operating a public nuisance. He cites numerous authorities in support of this contention. We find the authorities are not in point for the reason that the serving of intoxicating liquor upon the purchase of membership constituted a part of a scheme and plan of operation of the club. It was admissible as connecting him with the operation and management of the clubroom. The evidence of the sheriff in connection with the seizure of the four quarts of whisky was admissible, as constituting part and parcel of the scheme and plan of operation. Moreover, it was corroborative of the testimony of club members who testified that drinks were served upon the purchase of a club membership by them. It was, admissible as a part of the res gestae or transaction itself in connection with the operation of the club. In Smith v. State, 83 Okla. Cr. 209, 175 P. 2d 348, 349, this court said:

“To the general rule that the admission in evidence of other crimes, either prior or subsequent to the alleged offense is inadmissible, there are, however, certain exceptions which are as well recognized as the rule itself, as, Avhere the eA'idence tends directly or fairly to prove guilt of the crime charged, or to connect one with it, or where the crime charged and other offense are closely related or connected; or where such testimony is for the purpose of shoAving that it was a part of a system or-common scheme or plan;- or when proof of a separate offense is explanatory of the motive or intent of the offender in the commission of the offense charged.”

In Doser v. State, 88 Okla. Cr. 299, 203 P. 2d 451, 454, this court said:

“Evidence of other crimes is competent to prove the specific crime charged when it tends to establish a scheme or plan or as part of a general conspiracy or is a part of the res gestae * *, or where it is so closely linked to the crimé for which accused is on trial as to throw light on it.”

In Bouyer v. State, 57 Okla. Cr. 22, 43 P. 2d 153, 154, this court said:

“Evidence is admissible that tends to prove the defendant guilty of the offense charged, even though it may tend to prove a different offense, when both offenses are so closely related or connected as to form a part of the res gestae.
“Evidence which is, relevant to the issue is not rendered inadmissible by reason of the fact that it tends to prove the defendant guilty of an offense other than the one charged in the information.”

See, also, Carmack v. State, 44 Okla. Cr. 171, 279 P. 964. Evidence of all of these things was closely related to and connected with the maintenance of the public nuisance herein involved and the same was clearly admissible as a part of the scheme and plan, and so closely linked to the crime for which the defendant was on trial as to constitute part and parcel of the crime itself. This contention is therefore without merit.

Furthermore, the defendant complains that it was error to admit the evidence in relation to the ownership of the .45 automatic pistol found in the clubroom. This was admissible as against the defendant in that it tended to show that he had more than an ordinary interest in the operation, and that he desired to have the pistol there for personal protection. If the defendant only ran in and out, as he attempted to lead the jury to believe that he did, then there would have been no reason for him to keep his automatic pistol on the premises as he was doing at the time the raid was made. The pistol may have been kept for the very lawful purpose of protection against hi-jacking or otherwise, but it had a logical connection with the charge of operating a public gambling nuisance and was therefore admissible.

The defendant further contends that the court erred in giving instruction No. 4. The objection to instruction No. 4 goes to the proposition that the trial court did not define a similar offense and did not specify with particularity what the court deemed a similar offense. The defendant contends the jury had no legal knowledge to determine such as a matter of law. While it would have been conducive to clarity for the court to have defined what was intended by the expression “similar offense”, we do not believe the instruction was misleading since the charge for which the defendant was being tried was that of maintaining a public nuisance, in relation to conducting gambling games in which the defendant participated, in the possession of four quarts of whisky and the dispensation of alcoholic drinks, etc., on the premises, all part of the res gestae. There were no other offenses involved in the case other than those incident to the operation of this gambling place. Since the court limited the consideration of this evidence to' the proposition that they could be considered only so far as those facts throw light on the case now on trial, the said instruction was not prejudicial to the defendant’s rights. Under the law the court was duty bound to so limit the said instruction. Smith v. State, 83 Okla. Cr. 209, 175 P. 2d 348. While the instruction may not have been as clear as was possible to make it, in any event, even if error, it was only an error of omission and not positive misdirection. In this connection the defendant should have submitted to the court what addition he desired to make the instruction more specific and comprehensive, and requested that it be given. This he did not do. In the absence of such request a conviction will not be reversed, unless this court is of the opinion in light of the entire record, including the instructions given, that the defendant may have been prejudiced by the instruction complained of. Pulliam v. State, 61 Okla. Cr. 18, 65 P. 2d 426. Such is the situation in the case at bar in relation to instruction No. 4. For all of the above and foregoing reasons, the judgment and sentence herein imposed is affirmed.

JONES, P. J., and POWELL, J., concur.


author: POWELL, J.

text:
    WILSON v. STATE.
    No. A-11115.
    April 5, 1950.
    (217 P. 2d 199.)

      John L. Ward, Jr., of Tulsa, for plaintiff in error.
    Mae Q. Williamson, Atty.. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   POWELL, J.

Lloyd Wilson was charged by information filed in the court of common pleas of Tulsa county with the crime of possession of intoxicating liquors; a mo-' tion to suppress the evidence was filed and overruled. Thereafter, the case was tried to a jury, the defendant was found guilty and sentenced to serve 30 days in the Tulsa county jail, and to pay a fine of $250. The defendant advances four propositions for reversal.

The evidence shows that on March 3, 1948, a deputy sheriff of Tulsa county procured a search warrant to search a 1947 Black Chevrolet Automobile, Oklahoma license 2-58501, it being set forth that said vehicle was being used in secreting, storing and transporting intoxicating liquors. Officer Rains located the car parked, on Eighth and Denver streets, in Tulsa. The car was unoccupied, but the officer opened the car and took the keys out of the ignition and waited for a few minutes for some one to appear. When the defendant arrived at the car, the search warrant was served upon him, and he produced a second set of keys and opened the back of the car, after request by the officer, and 37 pints and 22 fifths, assorted tax-paid whisky was found.

We deem it necessary to consider but two propositions raised by the defendant. His first proposition as to the alleged insufficiency of the affidavit for search warrant has 'been settled adversely to the contentions of the defendant in Hink v. State, 91 Okla. Cr. 85, 216 P. 2d 348.

The Attorney General concedes the validity of the argument of the defendant that the court erred in giving instruction No. 3, and has not filed a brief. The instruction complained of reads:

“You are instructed that the amount of intoxicating liquor found in the possession of the defendant, if you find any was found in his possession, is a proper circumstance for you to take into consideration in connection with all the other facts and circumstances in the case, in determining whether or not it was the intent of the defendant to illegally dispose of said liquor in violation of the prohibitory liquor laws of the State of Oklahoma.
“You are instructed that the possession of more than one quart of whisky is prima facie évidence of intent to sell, but that such prima facie evidence may be rebutted by proof on the part of the defendant that there was no intent on his part to sell the same.”

This instruction was by the court given over the objection and exception of the defendant. An identical instruction as given in the within case was by the court given in the case of Miller v. State, 90 Okla. Cr. 14, 209 P. 2d 890, and the giving of such instruction was held to constitute reversible error, because it placed the burden of proof upon the defendant. The above case, together with the cases therein cited, may be referred to for detailed treatment of the question.

The information in this case was filed March 24, 1948, and the case came-on for trial April 22, 1948. On April 19, 1948, the defendant had filed his written “Demand to Produce Purported Intoxicating Whisky.” Defendant sets out a number of grounds in support of his motion, one being nonconformity by the arresting officer to Tit. 22 O. S.A. § 1261, which reads:

“In all eases where wines,, whisky, beer or other intoxicating liquors mentioned in the Constitution or laws of this State or any personal property used for the purpose of violating any of the prohibitory liquor laws or gambling laws of this state, shall be seized by any officer or person with or without a search warrant, such officer or person is hereby required within five days to- make a written report under oath and file the same with the county clerk of the proper or respective county where the same shall be so seized, which report shall in detail state the name of the officer or person mailing the seizure, the place where seized and an inventory of the property, articles or intoxicating liquors so taken into possession, and within said five days said person is hereby required to deliver the same to the sheriff of the county and take the sheriff’s receipt therefor, in duplicate and such sheriff shall retain the same and all thereof, until the same shall be destroyed pursuant to the orders of the Court. In computing the time, five days, Sundays and holidays shall be excluded and not counted. A duplicate copy of said receipt shall immediately be filed with said county clerk, who shall keep a record of same, provided the sheriff and his deputies shall be required to make the affidavit and issue the receipt and otherwise comply with the provisions of this Act. Provided, that all liquors so seized shall be preserved for use as evidence in the trial of any action growing out of such seizure and all officers seizing any such liquors are hereby required to mark the bottles or containers for identification by writing thereon the date of the seizure and the name of the person from whom seized. The sheriff shall be liable on his bond for the safe keep-rag of all such property so turned over to him under the provisions of this Act.”

The evidence indicates that the liquor in question was bottled, tax-paid whisky, which this court many times has held to be per se intoxicating. There was no contention on the part of the defendant that the liquor was not intoxicating. Nevertheless, the record indicates that the officer neglected to handle the whisky as provided by the above statute. This liquor was taken into possession under authority of a search warrant. The statute providing for the return of the search warrant and the disposition of any intoxicating liquor seized by virtue of a search warrant is Tit. 37 O.S.A. § 85, which reads:

“Upon the return of such warrant, as provided in the next preceding section [Sec. 84 of this title], the judge or magistrate shall fix a time, not less than ten days, nor more than thirty days thereafter, for hearing of said return when he shall proceed to hear and determine whether or not the property and things so seized or any part thereof, were used, or in any manner kept or possessed by any person within this state, with the intention of violating any of the provisions of this act. At such hearing any person claiming any interest in any of the property or things seized, may appear and be heard upon filing a written plea of intervention setting forth particularly the character and extent of his claim; but upon such hearing the sworn complaint or affidavit, upon which the search warrant was issued, shall constitute prima facie evidence of the contraband character of the property and things seized, and the burden shall rest upon the claimant to show, by competent evidence, his property right or interest in the thing claimed, and that the same was not used in violation of any of the provisions of this act, and was not in any manner kept or possessed with the intention of violating any of the provisions of this Act. If, upon such hearing, no person shall appear as a claimant for any of the property and things seized, the judge or magistrate shall thereupon enter judgment of forfeiture in favor of the state without requiring or receiving any other evidence than that contained in the sworn complaint or affidavit upon which the search' warrant was issued; if, upon such hearing, any person shall appear as claimant to the property or things seized, or any portion thereof, the issue of fact thus raised shall be tried in the manner provided by law and judgment shall thereupon be entered accordingly.”

The defendant contends a total lack of compliance by the officers with the above statutes. The evidence seems to support such contention. Counsel states:

“This case is a splendid example of the law enforcement agencies violating various provisions of the law in order to secure a conviction against a citizen of the state.”

We do not find from the record in this case where such noncompliance prejudiced the defendant, there being no dispute over the liquor being intoxicating, or the amount obtained. Such was a material issue in Youngblood v. State, 32 Okla. Cr. 336, 240 P. 1100, and failure to preserve the evidence resulted in a reversal of the conviction. It is our view, however, in the instant case, that the above statutes, as well as Tit. 37 O.S.A. §§ 89 and 90, are to be complied with by the officers with the same degree of care and fidelity as the other provisions of the law with reference to intoxicating liquors. When officers fail to comply with the law, such tends to destroy respect for the law in general. Further, such statutes provide safeguards to prevent seized liquors from again entering channels of commerce or from being consumed by officers and their friends.

Suffice to say, this court, in the case of Grimes v. State, 65 Okla. Cr. 99, 83 P. 2d 410, 420, had for consideration Tit. 22 O.S.A. § 1261, and Title 37 O.S.A. §§ 89 and 90, and in the body of the opinion it was stated:

“There is no doubt but that it was the intention of the legislature by the enactment of the above statutes to not only safe-guard the rights of the citizens of this state in the protection of their property and give them an opportunity to be heard before it was confiscated, but it was also their intention to place a duty and responsibility upon the sworn officers of this state to see that the property which comes into their possession by virtue of the search and seizure laws should be disposed of in the manner provided by law. This principle is clearly illustrated by the facts and the opinion in the case of Hess v. State, supra [81 Okla. 73, 202 P. 310].
“It is further provided by, the statutes of this state, as follows: Section 2651, Oklahoma Statutes 1931, 37 Okla-St. Ann. 91: ‘All sheriffs, constables, marshals:, and police officers, and all county and city attorneys, shall diligently enforce all the provisions of this Chapter. If any such officer shall fail or refuse to do or perform any duty required by the provisions of this Chapter, he shall be removed from office as herein provided. For the purpose of such removal a petition may be filed in the district court of the county wherein such officer resides, in the name of the State, on the relation of any citizen thereof upon the recommendation of a grand jury or on the relation of the board of county commissioners, or of any attorney appointed by the Governor under the provisions of this Chapter.’
“The procedure for removal is prescribed therein.”

By reason of the erroneous instruction given as in this opinion set forth, the within case is reversed and a new trial is granted.

JONES, P. J., and BRETT, J., concur.


author: BRETT, J. BRETT, J.

text:
    BLUEJACKET v. STATE.
    No. A-11165.
    April 12, 1950.
    On Rehearing May 10, 1950.
    (217 P. 2d 848.)
    Frank Hickman, Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The defendant, Bobby Bluejacket, was charged by information, tried by a jury and convicted of the crime of first degree manslaughter against the life of Bill Klein. The information alleged that the defendant, on May 29, 1948, shot Klein with a sawed-off shotgun inflicting upon him mortal wounds which tore away the back part of his head and killed him instantly. The jury found the defendant guilty, and fixed Ms punishment at 99 years in the penitentiary, and the court pronounced judgment and sentence in accord therewith. From this judgment and sentence the defendant perfected this appeal. The case was submitted for the consideration of this court solely upon the record. No briefs were filed in behalf of the defendant or for the state.

We have carefully examined the record and find that it presents one of the most pitiable and uncalled for altercations, resulting in Bill Klein’s death. It is pitiable because of the fact that it presents a tragic picture of misdirected youth, spending its energy in the counterfeit of youthful, gangdom. Two gangs fed by a loyalty wasted upon false idols. Idols exerting an unwholesome leadership over the weaker minds of the gang. One of these idols was Bobby Wilson, 20 years of age (a professional boxer of no mean ability), and apparently the leader of his gang. The other gang was led by Bill Klein, 21 years of age, the victim, an amateur wrestler whose breast was covered with medals of attainment in that field of sports. The defendant herein, Bobby Bluejacket, an Indian boy, was 18 years of age, the stooge to his gang leader, Wilson. Here, as in gangdom, wherever it may be.found, the leader is supposed to rule by braggadacio and bluff, except when unavailing, then he must be the master of force. In event of combat, he is supposed to be bestially brutal, commanding respect of the weaklings who follow him through fear, and demanding loyalty to the point of blind obedience. Bobby Wilson and Bill Klein had cast such roles of leadership for themselves, but they didn’t live up to their billing. They never rose above the level of bluff and spar. Instead it fell to a poor fatherless Indian boy to play the principal part in this tragedy. The record discloses that he possessed a blind loyalty and obedience to a counterfeit leadership. It shows he was swept by the current of events which happened faster than a stooge to crime could assimilate and weigh them. He discovered himself too late, caught in the maelstrom of manslaughter. Such is the disclosure of the 749 page record hereinafter reviewed.

The state produced an array of 16 witnesses, who testified substantially as follows : On Saturday afternoon before the killing on May 29, 1948, Charles Jackson was playing pool with Don Meeker, Bobby Bluejacket, the defendant, Bobby Wilson, and Larry Frazier came into the pool hall. Wilson asked Charley Jackson if he was a friend of Bill Klein, to which the reply was “I am a very good friend”, whereupon Wilson asked him “Will you take a message to him for me? Tell him there is a guy looking for him”, to which Jackson replied “Where will he find the guy”? To the question Jackson asked, Wilson said “out at the Rightway Rink tonight at 8 or 8:30 o’clock.” He was told to tell him not to bring a posse, someone would get hurt. Apparently, the message was conveyed to Bill Klein who the record reveals was of a pugnacious, overbearing, turbulent and violent disposition, given to fighting. Shortly afterwards Bluejacket, Wilson and Frazier met Herbert Spencer outside the pool hall and arranged for a sawed-off shotgun. They went to Spencer’s home and got the gun and brought it back. The gun was in three pieces wrapped up in paper, together with 4 shells. They brought Bluejacket back and let him out in front of the Rialto Theater. They then took the gun wrapped in a funnypaper to Wynn’s hamburger stand at Utica and Pine Streets in Tulsa, Okla. They left it with Mr. Whitehead, who placed it beneath the counter, we presume not knowing what the package contained. They then left and returned later. Frazier asked Mr. Whitehead for the gun. The paper came off the gun and they assembled it right there in the hamburger stand. Frazier then gave the gun to Bluejacket and, according to the evidence, the testimony of Bill Russell Gordon, Bluejacket loaded it with two shells and handed it back to Mr. Whitehead, and asked him to put it back under the counter. Again they left. That evening about 7:30 Robert Klein in response to the dare sent him by Bobby Wilson asked Robert Greer to drive him out to the roller rink. He was accompanied by six or seven of his followers. There he met Bluejacket and asked him if he was Wilson. He was informed that he was not but identified Wilson. In the Wilson crowd was Bluejacket, Frazier, Zuniga and several others.. Upon Wilson being identified to Klein he approached Wilson and they engaged in a conversation. Klein said “I understand you have been looking for me”, the answer was “Yes, I have something I want to settle with you. Come out and stand up and fight like a man”. Whereupon, the record shows Klein pointed to his wrestling medals displayed on his chest and said “This is the way I fight”. Wilson was Avrapping a handkerchief around his hand apparently in preparation to striking Klein. Klein told him to remove it, and Wilson backed up into the hamburger stand. Apparently Klein told him to remove it again and upon his refusal so to do he struck him a backhanded blow. Klein had his other hand in his pocket, and Wilson said “he has got a gun” meaning Klein, and further said to Bluejacket “get that thing, you better come up with the gun”. Whereupon Bluejacket told Mr. Whitehead, the manager of the hamburger stand, to give him the gun. Mr. Whitehead refused and told them to get out, that he did not want any fighting in there, that he would call the police. Wilson and Klein walked out, and Wilson put on some kid gloves. Klein took off his coat and took his pipe out of bis pocket and said “I have no gun. It is a smoking pipe”. While this was going on just outside the stand Bluejacket told Mr. Whitehead to give him the gun, which Mr. Whitehead again refused to do. Bluejacket jumped over the counter and got it. He took it outside and levelled it on Klein. Wilson said “if he starts wrestling, cut him down”. Wilson hit Klein a couple of times. Bluejacket told him several times to stand still, that if he took another step he would kill him. Klein stooped to pick up a rock, held it, and looked at Bluejacket for a little while, putting it down. Klein told Wilson he wanted to get the guy with the gun “nobody is going to hold a gun on me and get away with it”. Bluejacket kept croAvding Klein all of the time as he held the gun on him. The state’s evidence further shows that Bluejacket was admonished by Charley Jackson to put that gun down. Bluejacket told Jackson to get back or he would shoot him. Boland Sanders, another state’s Avitness, said he told Bluejacket not to shoot Klein. Bluejacket said “I am not going to shoot him with one barrel, I will shoot him Avith both”. Klein told Bluejacket to “take the gun off of me”, and he kept telling him to get the gun off him. According to the state’s evidence Klein continued to move back toward the stand, that Bluejacket kept coming forward all of the time. Bluejacket pushed the gun up, it went off when Bluejacket was about tAVO feet from him. It hit him back of the ear and shot off the back part of his head. Bluejacket ran, and said “I didn’t know it was loaded”. In this connection the state offered proof that some one told Bobby Wilson to get between Klein and Bluejacket because the gun was loaded. This statement was made in the presence of Bluejacket. The defendant attempted without success on cross-examination of some of the state’s witnesses to show that Klein carried a gnn all of tbe time. It was vigorously denied by them. The state’s case further discloses that a policeman, who appeared on the scene immediately following the killing, examined the gun and found upon inspection that the left barrel thereof had been fired; that three policemen made a test of the gun and found that immediately after the shooting the left barrel of the gun fired in the killing could be fired with the trigger but the right barrel would not fire. The state’s case further shows that Klein had been a wrestler in Southwestern Institute of Technology, Weatherford, and Oklahoma A. & M. College.

The evidence offered on behalf of the defendant Bobby Bluejacket was produced by seven witnesses. In substance, it was that he had been reared by his mother and that he had never known his father. The record discloses that he had three brothers and one sister. It appears from the record at the age of 10 he had some juvenile trouble and was sent to the Pauls Yalley Training School. Shortly thereafter he was paroled, only to be sent back again. In 1945 he ran away and went to New York City at the age of 15. He lied about his age and registered for the draft and was inducted into the army. Shortly before that one of his older brothers, Dennis, was killed in Romania in the service of his country. His brother, Tommie, Avas captured in the Battle of the Bulge. Finally, when 16 years of age, his true age was discovered and he was discharged from the army. Later, with his mother’s consent he enlisted.

In connection Avith the killing herein invloved it appears that Bluejacket had been told about Bill Klein and Bill Klein’s many fights. It appears from the record that Klein was arrogant, quarrelsome and wanting to fight all the time, many times with boys smaller than he was, and was pictured to have been unmerciful in his attitude. The peculiar thing about the situation herein involved, but illustrative of the gang conflicts, Wilson did not know .Klein and Klein did not know Wilson. Wilson was championing the cause of his gang and Klein defending his conduct on a prior occasion. It appears that on May 27, 1948, LeAvis Rodrigues, a member of Bobby Wilson’s gang, and four other boys belonging to the Wilson crowd, were riding in Kenneth Card’s father’s car being driven by Kenneth Card, whose wife was also in the car. They came up behind another automobile at a stoplight at Third & Boston streets in Tulsa, Okla. At the time they made the stop some girls about 15 years of age were passing doAvn the street and the boys in the Card ear whistled and one of them said “Maybe, when you grow up, we will get acquainted with you”. Immediately Klein, an occupant in the car in front, got out and came back, according to the defense evidence and said “I heard what you said”. He opened the door and jumped in the car and said “Let’s drive out in the county. I am going to whip you all one at a time”. He got out when they stopped in front of the Diamond Bar. He still wanted to fight but none of the occupants of the Card car were inclined so to do. So he left. The defense offered further proof of his violent and turbulent disposition in relation to his fights and willingness to fight, under the limitations and conditions prescribed in Murphy v. State, 72 Okla. Cr. 1, 112 P. 2d 438, and cases therein cited. Also, in Jenkins v. State, 80 Okla. Cr. 328, 161 P. 2d 90, 162 P. 2d 336.

On May 29 Bluejacket, who knew nothing of the Rod-rigues episode with Klein, went to Doc’s pool hall at Third and Boulder, where he met Bobby Wilson and Bud-die Wilson and Rafael Zuniga. From them he heard for the first time about the encounter between Rodrigues and Klein and the other people in the Card car the day before. It was determined that Bobby Wilson would fight Klein at Pine and Utica streets in the vicinity of the Right-way Skating Rink and the Whitehead hamburger stand. (Klein was informed of this fact in the manner as here-inbefore delineated.) A boy by the name of Harrison advised that Klein always carried a .25 automatic pistol. He said Klein drew it on him, and not to have anything to do with him. Harrison subsequently told them he might be bluffed, however, with a gun. The record shows Bluejacket suggested they get a gun, since they believed Klein would be armed. A boy by the name of Spencer, who was present, volunteered an old sawed-off shotgun which they later procured. They were told that Spencer had no shells, but he did find one or two as testified to by Bobby Wilson. It was said they didn’t need them to bluff Klein. As hereinbefore stated in the state’s case, the gun was left at Whitehead’s hamburger stand and later the gun was assembled and replaced under the counter for safekeeping. Bobby Wilson came to the hamburger stand. Shortly thereafter Bluejacket got a coke and went outside. Bluejacket was sitting on the bumper rail in front of the stand when Klein came up and asked him if he was Wilson. He said he was Bluejacket and Klein said “You are not the fellow I am looking for”. When Klein made his appearance he was followed by six other boys, members of his gang. Klein then went to the stand where Bobby Wilson and Zuniga and others were. He asked “Which of you fellows is looking for trouble”. Bobby Wilson said “no one”. The defense evidence discloses that Klein then reached into his pocket as though going for a gun. Wlison told him to take his hand out of his pocket. Klein then pointed to some medals he had won wrestling and said “these entitle me to fight anyway I want to”. Klein’s hand was still in his pocket and Wilson said “grab his left arm, Blue”, and Bluejacket grabbed at Klein’s arm and missed it, and Klein said “O.K., you two guys get out of here, and I mean get out”. Klein then slapped Wilson. Wilson said to Bluejacket “you had better come out with that thing”, Bluejacket said he told Mr. Whitehead to give him the gun and Mr. Whitehead said he would not. Bluejacket said he then jumped over the counter and came out with the gun. Whitehead had ordered them out of the cafe. Wilson and Klein were just outside the door of the hamburger stand. Wilson and Bluejacket told Klein to take his hand out of his pocket. He did and said “you see I don’t have anything”. Bluejacket denied the conversation about the pipe. He then put on his kid gloves, and then they began to fight. All the time Bluejacket held the gun on Klein. They fought for awhile and Wilson said “as far a.s I am concerned the fight is over.' Let’s shake hands and forget it.” Bluejacket said Klein said “I am not going to fight you, I am going to get the boy with the gun, or that son of a bitch over there”. He then walked over and picked up a rock in his right hand and said “I am going to crush your skull with it,” speaking to Bluejacket. Wilson said “Let’s drop the whole thing”, but warned Bluejacket not to turn his back. Bluejacket testified Klein said “I will not let anybody get by with putting a gun on me”. Somebody told Klein to drop the rock, and Klein said “If he shoots me my friends will follow him to the end of the world if they have to to get him”. Bluejacket kept telling him to “drop the rock or I’ll shoot you”, and somebody hollered “you know that gun is loaded, Bobby”. Wilson said “He told Bluejacket to throw the gun down and run. You don’t want any trouble”. Then, “Take the gun and grab a cab and get out of here”. Buddy Wilson said Bluejacket said to Klein “if you don’t drop that rock, I will pull the trigger”. Klein threw up his arm and Bluejacket testified he came up with the gun and hit Klein in the head with it, and it exploded striking him in the ear and tearing the back part of Klein’s head off. Bluejacket said he did not know what he did or said at that time. He further testified he did not pull the trigger, but that the gun was accidentally discharged, and that he had no intention of killing Klein. Moreover, he sought to prove that, on cross-examination of the state’s police officers who tested the gun, that only by being hit, could the gun be discharged. In this way he sought to show that that was the only way that the firing pin would come in contact with the shell and explode the cap. In this connection, Bluejacket admitted on cross-examination he was experienced in the use of firearms; that during his service in the army he had fired .45 automatics, submachine guns, automatic rifles and bazookas. Furthermore, on cross-examination of the defendant, it was disclosed that, in addition to the juvenile record brought out by his counsel in chief, he had been convicted of second degree burglary, petit larceny, and recently had been convicted of assault and battery against his wife.

Such is the record from an evidentiary standpoint. In some particulars the evidence is conflicting, but the conflicts do not extend to any material points. In any event, it was the jury’s province to weigh the same and determine the defendant’s guilt or innocence. In considering the sufficiency of the evidence to support the jury’s verdict, the “Criminal Court of Appeals is limited to ascertaining whether there is a basis, in the evidence, on which jury can reasonably conclude' that defendant was guilty as charged”. Jackson v. State, 84 Okla. Cr. 138, 179 P. 2d 924, 926; Peterson v. State, 86 Okla. Cr. 302, 192 P. 2d 286, and numerous other cases to Same effect. The evidence herein is sufficient from which the jury could reasonably conclude the defendant was guilty of the crime of manslaughter.

We have examined the instructions and find they present the defendant’s theory of his defense, and are otherwise in keeping with the law.

This case presents the hazards incident to membership in a gang, whether it be organized for crime or impulsively bred in undirected high school rivalries. Its temper is uncontrollable and its acts unpredictable. This is necessarily true because a gang insanely acts from impulse and not from reason. Its leadership is generally unblessed by wisdom and its methods seldom peaceable. Its bent is usually destruction and, as in the case at bar, sometimes not even short of death. Men, however, when faced with the temptations of a gang, find their powers of perception circumscribed and their wills watered down. It takes character and courage not. to be swept by the current of the gang, and its unworthy leadership. Unfortunately Bobby Bluejacket was not so disposed. Though intending only to play the role of stooge to the champion, he found himself suddenly cast in the principal role of the killer.

The record being free from prejudicial errors amounting to a denial of a fair and impartial trial, the judgment and sentence of the trial court is accordingly affirmed.

JONES, P. J., and POWELL, J., concur.

On Rehearing.

BRETT, J.

On petition for rehearing, having again reviewed the record herein, and in light of cases of a similar nature, Maloon v. State, 38 Okla. Cr. 34, 259 P. 173; Littleton v. State, 19 Okla. Cr. 461, 200 P. 716; Wing-field v. State, 89 Okla. Cr. 45, 205 P. 2d 320; Hood v. State, 70 Okla. Cr. 334, 106 P. 2d 271, and recognizing that one of tlie objects of modern institutional custody is reformation, and because of the extreme youth of the defendant, he being a mere boy 18 years of age, the judgment and sentence herein imposed, under the authority of Title 22 O.S.A. 1941 § 1066, is hereby modified to a term of 25 years and as so modified is affirmed.

JONES, P. J., and POWELL, J., concur.


text:
    CORNELL v. STATE.
    No. A-11223.
    April 12, 1950.
    (217 P. 2d 528.)

      John W. Tyree, Lawton, and Melton, McElroy & Yaughn, Chickasha, for plaintiff in error.
    Mae Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Delbert Randle Cornell, was charged by an information filed in the district court of Grady county with the crime of murder, was tried, convicted, and sentenced to serve a term of life imprisonment in the State Penitentiary, and has appealed.

The first proposition presented in the brief of defendant is that the trial conrt erred in overruling the plea of former jeopardy filed by defendant.

The plea of former jeopardy is based upon the fact that an information was filed against the accused on February 20, 1947, identical to the information out. of which this conviction was sustained; that on February 21, 1947, the defendant entered his plea of guilty to said information and was sentenced to serve a term of life imprisonment in the penitentiary. A few months after the plea of guilty was entered a habeas corpus action was instituted in this court by the petitioner in which he sought to vacate the judgment and sentence pronounced against him for the reason that he' was an immature youth at the time the plea of guilty was entered; that he was inexperienced in court and no counsel was appointed to represent the accused at the time of his arraignment and plea. Upon a hearing before this court the judgment and sentence was vacated and set aside and the cause was remanded to the district court of Grady county, with instructions to proceed against the petitioner the same as if no arraignment had ever been held. Ex parte Cornell, 87 Okla. Cr. 2, 193 P. 2d 904.

Thereafter the county attorney of Grady county, instead of proceeding to arraign and try the defendant upon the information filed on February 20, 1947, commenced a new prosecution by filing a complaint before a committing magistrate charging the defendant with the crime of murder as aforesaid. After a preliminary examination, the defendant was ordered held to await trial before the district court. Thereafter an information was filed in the district court identical in language with the information filed on February 20, 1947, charging the petitioner with the crime of murder of one Jake Phipps.

Counsel for the defendant assert that the plea of former jeopardy would not have been good under the decisions of this court if the accused had been proceeded against under the old information, but that when the prosecution commenced a new proceeding that the plea of former jeopardy was good.

It seems to be well settled that after a new trial is awarded the accused on his motion or request, it shall place him in the sanie position as if no trial had been had. Duncan v. State, 41 Okla. Cr. 89, 270 P. 335; Watson v. State, 26 Okla. Cr. 377, 224 P. 368, 371. This is in conformity to the Oklahoma Statute which provides:

“A new trial is a re-examination of the issue in the same court, before another jury, after a verdict has been given. The granting of a new trial places the parties in the same position as if no trial had been had.” 22 O. S. 1941 § 951.

In construing this statutory provision our court stated in Watson v. State, supra :

“Section 2753 [22 O. S. 1941 § 951] provides that—
“ ‘The granting of a new trial places the parties in the same position as if no trial had been had.’
“This is clear and conclusive.
“The Legislature has prescribed the grounds upon which a neAV trial may be granted, and has imposed certain conditions on the defendant, one of which is that he shall be deemed to have waived his constitutional protection against former jeopardy.
“The sections above quoted measure the extent of the waiver and fix its necessity, and that necessity is that the party convicted must waive the entire right so as to bring himself Avithin the power of the court to grant him a new trial. He makes Jus motion with the full knowledge of the risk he takes and with all the possible consequences. To obtain a new trial he voluntarily waives a right that neither courts nor the Legislature can take from him— a right that he surrenders for his own benefit, and the exact extent of which is plainly written, as the terms on which it could be done, if his motion is granted.
“It follows that when he files his motion for a new trial he must be deemed to have waived his constitutional right to interpose the plea of having been once in jeopardy.”

In Ex parte Meadows, 70 Okla. Cr. 304, 106 P. 2d 139, this court vacated a judgment on habeas corpus rendered against a youth who had been convicted of a capital offense. In that case the authorities were reviewed as to the effect of vacating the judgment of conviction and this court held that the action was comparable to one where a judgment of conviction Avas vacated on appeal and the cause remanded for a new trial and accordingly in that case we set aside the judgment of conviction and ordered the petitioner Meadows to be tried on the charge that had been filed against him. Later Meadows commenced a second habeas corpus action before this court and in the judgment rendered in that action this court held:

“The remanding of a prisoner for trial, after proceedings upon a plea of guilty have been vacated, is not subject to the objection that he is put in jeopardy tAvice for the same offense.” Ex parte Meadows, 71 Okla. Cr. 353, 112 P. 2d 419, 420.

The rule is stated in 22 C.J.S., Criminal LaAv, §§ 271, 272, as follOAVs:

“It is an established principle of laAv that an accused in a criminal case Avho procures a verdict and judgment against him to be set aside or arrested by the court may be tried aneAV upon the same or another indictment for the same offense of Avhich he Avas convicted, even after be has served a part of tbe sentence imposed on bim in tbe first conviction. * * *
“Where a new trial was granted on motion of accused, and tbe verdict and conviction are set aside, be thereby waived bis right and is estopped to plead tbe former conviction as a bar to another trial on tbe same or a new indictment.”

Tbe county attorney commenced the prosecution anew against tbe defendant for tbe reason that be felt tbe legal reasons assigned for vacating the judgment in tbe district court would also invalidate the proceedings before tbe committing magistrate if defendant bad appeared before tbe magistrate without counsel.

Under tbe law, when this court vacated tbe judgment on tbe plea of guilty entered under the first information which was filed and ordered tbe case remanded for a new trial, the defendant was in tbe same position as if no trial had ever been bad and tbe county attorney could at bis option elect to try tbe defendant under tbe information which bad been filed against bim or be could commence a new prosecution by the filing of a complaint before a committing magistrate. Until an accused is placed in jeopardy the criminal action filed against him can be dismissed and refiled at tbe discretion of tbe county attorney,. subject, of course, to tbe law governing tbe limitation of time within which a prosecution can be instituted. Hembree v. Howell, 90 Okla. Cr. 371, 214 P. 2d 458.

It is next contended that tbe evidence was wholly insufficient to sustain a conviction.

The proof of the state showed that tbe deceased was a farmer living alone in tbe Farwell Community. Tbe deceased and his wife bad separated and deceased to avoid paying support money to bis wife did not carry a bank account but instead carried Ms money in a pocketbook in the bib of Ms overalls.

The defendant was a young man about 17 years of age who had joined the army, but at the time of the homicide he had fled from the army and had been living with one person and another in the vicinity of the home of the deceased for several weeks. He had also spent some time at the home of the deceased where he assisted in the farm chores. The night before the homicide occurred defendant stole a 1942 Oldsmobile automobile in Chickasha. The next day in attempting to drive to the farm of deceased he slipped off of a little bridge crossing a creek and became stuck. One Earl Mutz, a farmer, testified that he came along and pulled the defendant out and the defendant proceeded on to the home of Phipps, the deceased. Later that morning the defendant atid deceased were seen in the field together. Shortly after noon Mr. and Mrs. Glenn Setters, who were well acquainted with the defendant, saw him on a side road driving north at a high rate of speed. About 4 p.m. on that date a neighbor came to the home of the deceased and found him lying on the bed with a bullet hole through his heart. He had been killed by a bullet discharged from a .22 rifle. The billfold of the deceased, his .22 rifle and a leather jacket were all missing. After the death of Mr. Phipps became known a search was instituted for the defendant. He was apprehended several days later in California. Upon his return to Chickasha he signed a written statement detailing at length all of the facts surrounding the commission of the homicide. In this statement he admitted killing the deceased, taking his money and fleeing in the Oldsmobile automobile. He then took the sheriff and other parties to where he had thrown the rifle of the deceased into a creek and after fishing around in the creek the rifle was recovered. There were other witnesses who testified who corroborated many of the things detailed in the confession of the accused, but it is unnecessary to lengthen this opinion by reciting all of this evidence. It is sufficient to state that the evidence was not only sufficient to sustain the conviction of the accused but it overwhelmingly showed his guilt.

It is next contended that the trial court erred in refusing to give two instructions requested by the defendant and in failing to instruct on the defendant’s theory of the case. In the testimony of the defendant at the trial he related that he had agreed with one Alva Fulton, the son-in-law of the deceased, Avhereby he and Fulton were to rob the deceased; that pursuant to this plan he and Fulton entered the home of deceased to perpetrate the robbery but that Fulton instead seized the .22 rifle and killed Mr. Phipps. The defendant stated that after the killing occurred he and Fulton took the billfold of deceased and divided the money.

One of the instructions requested by the defendant was an instruction submitting the issue of assault with a sharp or dangerous weapon, and the other instruction was an instruction submitting the issue of assault and battery. The court correctly refused to submit either of these instructions to the jury. Under the evidence of defendant he was guilty of murder because he admitted that he had conspired with Fulton to rob the deceased and in the course of robbery Fulton had killed deceased. Although defendant denied that he fired the shot that killed Phipps, still he was guilty of murder under the Oklahoma statutes. 21 O.S. 1941 § 701; Valdez v. State, 18 Okla. Cr. 204, 194 P. 451; Sands v. State, 61 Okla. Cr. 206, 67 P. 2d 62; Morris v. State, 68 Okla. Cr. 147, 96 P. 2d 88. In Valdez v. State, supra, this court said:

“While the evidence leaves in doubt whether one or both of the defendants actually fired the shot or inflicted the knife wound that caused the death of the deceased, yet, the evidence showing beyond a reasonable doubt that a conspiracy existed between the defendants to commit the robbery, and that the homicide was incidental to the robbery, it is entirely immaterial whether one or both of them did the actual killing. Both are equally guilty.
“Where parties voluntarily act together in the commission of an act which may result in death to another, and such death ensues therefrom, all such parties so acting together are as guilty of the murder as if they had intended the death of such party. [18 Okla. Cr. 204, 194 P. 455.]

In Carle v. State, 34 Okla. Cr. 24, 244 P. 833, 836, it Avas said:

“It is well settled that, where two or more persons enter into a conspiracy to commit a felony under such circumstances as will, when tested by human experience, probably result in the taking of human life, it is presumed that all understand the consequences, and, if death happens in the prosecution of such enterprise, all are alike guilty of a homicide.”

The instructions given by the court were all that were necessary to be given in this action. There was no defense. The defendant Avas guilty of murder under his own statement.

Lastly, it is contended that the trial.court erred in submitting to the jury the question as to whether the written statement given by the defendant was voluntarily made. Counsel were correct in their contention that when the question as to the voluntary character of a confession is interposed the court should hear the evidence concerning the same in the absence of the jury. The question presented is one of law for the court. If it is determined that the confession is admissible as a matter of law then the defendant is entitled to have the circumstances surrounding the giving of the confession brought before the jury for the purpose of enabling the jury to give whatever weight it might see fit to the confession.

In Pressley et al. v. State, 71 Okla. Cr. 436, 112 P. 2d 809, it is held:

“Where the competency of a confession is challenged on the ground that, if made, it was not voluntary, its admissibility is primarily a question for the court. In the absence of the jury, the court should hear the evidence offered respecting the facts and circumstances attending such alleged confession, and the burden is on the defendant to show that it was procured by such means or under such circumstances as to render it inadmissible, unless the evidence on the part of the state tends to show that fact. If it is held competent, and proof of the same admissible, the defendant is entitled to have the evidence in regard to the facts and circumstances under which it was made given anew to the jury, not that the jury may pass upon its competency or admissibility, but for the purpose of enabling them to judge what weight and value should be given to it as evidence, and the jury may disregard it if they are not satisfied that it was voluntarily made.”

The trial court did not follow the correct procedure but the error was favorable to the defendant. There is nothing in the record to show that the defendant was not given a fair and impartial trial. He was guilty of an unlawful, cold-blooded, premeditated murder, and deserved at least the punishment which was given.

The judgment and sentence of the district court of Grady county is affirmed.

BRETT and POWELL, JJ., concur.


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    Mann v. State MANN v. STATE.
    No. A-11164.
    April 12, 1950.
    (217 P. 2d 547.)
    Prank Hickman, Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   POWELL, J.

The plaintiff in error, Billy Mann, hereinafter called defendant, was convicted in the district court of Tulsa county on a charge of unlawful possession of intoxicating liquor, second offense,. and sentenced to pay a fine of $500, and serve 75 days in the county jail.

The case was tried on May 4, 1948, judgment and sentence entered on May 8, 1948, and the appeal was perfected to this court on November 6, 1948. In July, 1949, defendant requested additional time in which to file brief. This was granted, but no brief was filed. On February 15, 1950, this court entered an order granting defendant ten days from said date in which to file brief. No brief has been filed, and no appearance for oral argument made.

When an appeal is made to this court, and no brief in support of the petition in error is submitted, and no appearance for oral argument made, this court will examine the record for jurisdictional errors, and will read the evidence to determine if it sufficiently supports the judgment, and, if no fundamental error is apparent, the case will be affirmed. See Whitlow v. State, 85 Okla. Cr. 2, 184 P. 2d 253.

We have examined the record and find that it properly charges the offense of unlawful possession of intoxicating liquor, second offense, and have read the evidence and instructions of the court.

We conclude that the evidence sustains the verdict and the judgment. No judicial error is apparent.

The case is therefore affirmed.

JONES, P. J., and BRETT, J., concur.


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    POTTER v. STATE.
    No. A-11091
    April 19, 1950.
    (217 P. 2d 844.)

      Smith & Gasaway, Enid, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Oliver Potter, was charged by an information filed in the county court of Garfield county with the offense of driving an automobile while under the influence of intoxicating liquor, was tried, convicted, and sentenced to pay a fine of $250, and has appealed.

Two propositions are presented in the brief of defendant. First, that the evidence was insufficient to support the conviction; Second, the county attorney was guilty of prejudicial misconduct in his cross-examination of defendant’s witnesses.

The proof of the state showed that about 7 o’clock p. m. one Leslie Becker while driving his automobile on Grand avenue in the city of Enid, Okla., made a right angle turn from Grand avenue onto Main street. Defendant was parked in Ms automobile a short distance down the block in the direction in which Becker’s car was being driven. Defendant backed his car from the curb and struck the Becker car, which impact knocked the defendant’s car back into the curb and the Becker car continued on down the street before stopping near the end of the block. The defendant then backed out from the curb and drove his automobile to where the Becker car was stopped. An argument ensued between the parties as to the amount of damage which had been done to the Becker car. Defendant offered to pay $25 for the damage and Becker demanded $75. Defendant gave Becker his name and address and said that he would agree to pay any damages the next morning which a mechanic would say had been sustained by the Becker car. Defendant then got into his automoible and left. Becker reported the collision to the police and defendant was arrested about one hour and 45 minutes later for the alleged offense of leaving the scene of an accident.

Becker and his sister, who was riding in the automobile with him, testified that in their opinion defendant was intoxicated. The policemen who arrested defendant also testified that in their opinion defendant was under the influence of intoxicating liquor at the time of his arrest.

Defendant denied being under the influence of intoxicating liquor and offered several witnesses to sustain his contention. However, the evidence of the state was sufficient to require the issue of the guilt or innocence of the defendant to be submitted to a jury.

As to the second proposition, it is our opinion that in view of the testimony of defendant the county attorney was justified in asking the ..questions of defendant on cross-examination pertaining to his drinking on various other occasions. However, the other cross-examination of defendant’s witnesses which were complained of was improper.

The principal witness for the defendant was Fred Kent. The defendant testified that he had been visiting in the apartment of Kent just prior to the time he walked down a flight of stairs and got into his automobile when the collision occurred with Becker. Kent verified this evidence and related how he and Becker had been together for about two hours prior to the time Becker left the Kent home.

On cross-examination of Kent the record discloses the following:

“Q. Isn’t it a fact you and Oliver Potter were in the Sanitary Cafe drinking beer all the afternoon? A. No, sir, that is not a fact. Q. Isn’t it a fact, Mr. Kent, that you have gotten intoxicated with Mr. Potter, a number of times? A. Not too many times; we have drank some beer, that is all we have ever drank. Q. How many times have you been picked up by the police department for being drunk? A. Once. Q. I will ask you if on March 7th, 1945, at the hour of 4:00 o’clock p. m., if you were arrested at 200 West Randolph, City of Enid, Oklahoma, as a public drunk and told to get off the street because of your condition, and that you started to order more beer and said you wasn’t disturbing anyone and you were not going home, and then you were taken to the station by the police? Mr. Smith: Wait a minute, we object to that for the reason it is incompetent, irrelevant and immaterial, and does not go to the proof of any allegation of the information and it has no bearing on his credibility as a witness and his reputation not being an issue. It has no bearing on his credibility as a witness. The Court: The objection is overruled. Mr. Smith: Exception. A. No, sir. Q. You understand that you are under oath now, Mr. Kent? A. Yes, sir. Q. You understand that thoroughly? A. Yes, sir. Q. I will ask you if on August 20th, 1945, at the hour of 10:45 p. m., while you were working at the refinery and living at 725 North Central, Enid, Oklahoma, you were arrested again by the City Police for disturbing the peace and being a public drunk? Mr. Smith: I want to assert another reason that this is not proper cross-examination, and this further objection that is it incompetent, irrelevant and immaterial, not within the issues, and is not proper cross-examination. The Court: The objection is overruled. Mr. Smith: Exception. A. My wife had me thrown in for a family quarrel. Q. You wasn’t drunk? A. No, sir, I had drunk a few beers, but I wasn’t drunk. Mr. Smith: The defendant now moves that the County Attorney be instructed to desist from this examination for the reason it is incompetent, irrelevant and immaterial, not within the issues. The Court: The objection is overruled. Mr. Smith: Exception. Q. I will ask you if on August 4th, 1947, at 3 minutes after 10:00 o’clock in the evening of said day, at 2802 East Chestnut, you were brought to town and put in jail for the night for the reason that you were under the influence of intoxicating liquor again and for striking and beating your wife and children? Mr. Smith: That is objected to as incompetent, irrelevant and immaterial, not proper cross-examination, no bearing on the proof of any issue in the case. The Court: The objection is overruled. Mr. Smith: Exception. A. Due to family quarrels and my wife wasn’t home, the police was called to. my place. Q. You did strike and beat her? A. We struck and beat each other. Mr. Smith: The defendant objects to the question and answer for the reason given heretofore. The Court: Overruled. Mr. Smith: Exception. Q. I will ask you if on January 12th, 1948, at 703 North Central, at your home at the hour of 7:00 o’clock p. m., in the evening, you were not under the influence of intoxicating liquor and that you had a further fight with you wife and that you had the police bring a .22 caliber rifle to the police station and lock it up in the vault and leave it there? A. Yes, I did. Mr. Smith: That is objected to as incompetent, irrelevant and immaterial, not proving any issue in the case and not proper cross-ex-animation. Tlie Court: The objection is overruled. Mr. Smith: Exception. A. Yes, sir.”

The general rule is that anything which tends to show bias or prejudice on the part of the witness or anything which shows liis friendship or intimacy toward either of the parties is commonly a proper subject of inquiry. Scott v. State, 72 Okla. Cr. 305, 115 P. 2d 763.

For the purpose of affecting the credibility of a witness he may be asked on cross-examination whether he has been convicted of a crime, but it is highly improper to ask the witness whether he has been arrested or charged with a crime. Storer v. State, 84 Okla. Cr. 176, 180 P. 2d 202; Bradley v. State, 85 Okla. Cr. 288, 187 P. 2d 677; Love v. State, 84 Okla. Cr. 385, 182 P. 2d 793.

The Attorney General in his brief concedes that the cross-examination of the witness Kent relative to arrests and charges 'which had not resulted in convictions were improper and that the objection of counsel for defendant should have been sustained. However, he asked this court to rule that such conduct on the part of the prosecution constituted harmless error.

The facts showing the guilt of the defendant were not very conclusive. On cross-examination of defendant it was shown that he had been convicted and served a term in the penitentiary. This fact undoubtedly played a large part in influencing the jury to return a verdict of guilty. However, the filling station operator, the owner of the cafe, and other individuals, who testified for the defendant, were very firm in their statement that defendant was not under the influence of intoxicating liquor.

The accused in every criminal case is entitled as a ■matter of right to a fair and impartial trial. It cannot be said that a defendant has had a fair and impartial trial where the prosecutor continually asks the defendant or his witnesses prejudicial and incompetent questions. The Constitution of Oklahoma provides that right and justice shall be administered without sale, denial, delay or prejudice. Art. 2, Sec. 6. The questions asked in the instant case were prejudicial and contrary to the constitutional guaranty. For this reason the judgment and sentence of the county court of Garfield county is reversed and the case is remanded so that the defendant may be given a fair and impartial trial.

BRETT and POWELL, JJ., concur.


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    PITTS v. STATE.
    No. A-11211.
    April 19, 1950.
    (217 P. 2d 844.)
    Amos Hall, Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The defendant, J. D. (Red) Pitts, was charged in the court of common pleas of Tulsa county, Oída., with the offense of unlawful possession of intoxicating liquor, to wit, 2 pints of Gordon Gin, 1 pint of Hill & Hill whisky, 1 pint of Sunny. Brook whisky, % pint of James E. Pepper whisky, all tax paid, and % pint of corn liquor nontax paid. The offense was alleged to have been committed on December 10, 1948. The defendant waived a jury, was tried by the court, found guilty and sentenced to 30 days imprisonment and to pay a fine of $50 and costs.

No brief has been filed on behalf of defendant and no appearance was made in his behalf at the time the case was assigned for oral argument. Under those circumstances the record will be searched for fundamental error and if none is found the judgment will be affirmed.

We have examined the record herewith presented and find the information states a cause of action for unlawful possession of intoxicating liquor, and is supported by the evidence, which disclosed not only the possession of the liquor as alleged, but that the defendant was the possessor of a valid and subsisting federal retail liquor dealer’s license. There being no instructions, and the judgment and sentence being valid, and no prejudicial errors appearing in the record, the judgment and sentence of the court of common pleas of Tulsa county, Oklahoma, is accordingly affirmed.

JONES, P. J., and POWELL, J., concur.


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    WILKERSON v. STATE.
    No. A-11183.
    April 19, 1950.
    (217 P. 2d 843.)
    Elmore A. Page, Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   POWELL, J.

Howard Wilkerson was charged in tbe court of common pleas of Tulsa county with the offense of unlawful possession of intoxicating liquor, found guilty by a jury, and sentenced to serve 60 days in the county jail, and pay a fine of $100. From such judgment and sentence an appeal was duly filed in this court.

This case was assigned for oral argument for March 22, 1950, at which time the attorney for plaintiff in error announced in open court that since the appeal was filed, the plaintiff in error had died. The county attorney of Tulsa county was present in court, and agreed that this was correct.

In a criminal prosecution, the purpose of proceedings being to punish the accused, the action must necessarily abate upon his death, and where it is made to appear that the defendant has died pending the determination of the appeal, the cause will be abated.

It is therefore considered, ordered, adjudged and decreed that the proceedings in the aboye-entitled cause to abate, and the cause is remanded to the trial court with directions to enter appropriate order to that effect.

JONES, P. J., and BRETT, J., concur..