author:
JONES, J.
      DOYLE, J.

text:
    MRS. OREN GOLDEN v. STATE.
    No. A-10004.
    Sept. 11, 1942.
    (129 P. 2d 202.)

      Meacham, Meacham & Meacham, of. Clinton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Mrs. Oren Golden, was charged in the county court of Beckham county with the unlawful possession of intoxicating liquor, was tried, convicted, and sentenced to serve 30 days in the county jail and pay a fine of $100, from which judgment and sentence an appeal has been taken to this court.

It is contended that the search of the automobile in which the liquor was found was made without a search warrant and was an unlawful search, and defendant’s motion to suppress the evidence presented to the court before the trial commenced should have been sustained.

The court’s ruling on the motion to suppress the evidence was correct for two- reasons. First, the car in which the liquor was found was standing in the driveway of a filling station; the whisky was lying on the seat of the coupe automobile in plain sight, with the exception that the coat which defendant had on her body partially covered the whisky. The sheriff drove into the filling station and noticed that the tags on the automobile had been changed. When he walked over to inquire of the defendant as to why the tags had been changed he saw the whisky in the seat of the car. An offense was thus committed in his presence and no search warrant was necessary. Saffa v. State, 75 Okla. Cr. 19, 128 P. 2d 241; Franklin v. State, 71 Okla. Cr. 115, 109 P. 2d 239; Sands v. State, 36 Okla. Cr. 55, 252 P. 72; Barfield v. State, 68 Okla. Cr. 455, 99 P. 2d 544, and other cases therein-decided.

The defendant likewise could not raise the question of the legality of the search for the reason that she testified that the car did not belong to either her or her husband, but belonged to a young man whose name she refused to divulge. In Tacker v. State, 72 Okla. Cr. 72, 113 P. 2d 394, 395, which is a case involving the search of an automobile, and in which opinion many other decisions are cited, it is held:

“Constitutional provisions guaranteeing one immunity from unlawful search and seizure is personal, and one accused will not be heard to object that the search of the property or premises of some third person is a violation of his constitutional rights. Oklahoma Statutesl Annotated, Constitution, article 2, sec. 30.”

It is next contended that the court erred in giving instruction No. 5, which reads as follows:

“If you should find, beyond reasonable doubt, that on or about the date given in the information in this case, that the defendant, Mrs. Oren Golden had the possession of the whisky as charged in said information, then and in that event, you should find the defendant guilty of the offense charged, but if you have a reasonable doubt as to the ownership and possession of the whisky mentioned in this information, then and in that event you should find the defendant not guilty and so say by your verdict.”

The error apparent on the face of this instruction is the failure of the court to instruct the jury as to the intent with which the possession must be had. Possession of liquor without the intent to sell is not an offense under the laws of Oklahoma. The intent with which the possession is had is a material element of the offense which must be proved by the state the same as the other elements of the offense. The defendant herein contended that the whisky belonged to her husband; that she had found it and was moving it away to force her husband to quit the liquor business; that when she loaded the whisky into' the automobile she noticed she had a low tire and pulled into the filling station to put some air in the tire. This defense probably did not sound very convincing to the jury, but it would make the intent with which the possession was had the one issue for the jury to determine, and when the court charged the jury that if they should find that the defendant had possession of the liquor, she would be guilty, the court committed error. We have carefully read the instructions as a whole and in none of them do we find the court specifically instructing the jury that the burden was upon the state to prove defendant had possession of the liquor with the unlawful intent to' sell, barter, give away, or otherwise furnish the same, in violation of the laws of Oklahoma.

In the case of Stump v. State, 66 Okla. Cr. 391, 92 P. 2d 616, 620, the court instructed the jury as follows:

“You are instructed, that if you find from the evidence beyond a reasonable doubt, that the defendant herein did on or about the date alleged in the information or any time within three years prior to- the filing! of the information, have in his possession any spirituous, vinous, fermented or malt liquors or imitation thereof, or substitute therefor; or any liquor or compound of any kind or description, whether medicated or not which contains more than three and two-tenths (3.2%) per cent of alcohol, measured by weight and which is capable of being used as a beverage; whisky is presumed to be intoxicating and needs no further proof, then and in that event it will be your duty to convict the defendant, otherwise you will acquit him.”

In the body of the opinion Judge Doyle stated, with reference to the giving of this instruction:

“This instruction was not a correct statement of the law and was fundamentally wrong.

“With what intent a person keeps intoxicating liquors is always a question of fact for the jury, to be determined upon consideration of the evidence. * * *

“The possession without an intent to sell or convey does not constitute an offense any more than an intent to sell or convey without possession would constitute an offense.”

For other cases in which the giving of instructions similar in form to that complained of herein was held to be reversible error, see Jenkins v. State, 28 Okla. Cr. 249, 230 P. 293; Caffee v. State, 11 Okla. Cr. 485, 148 P. 680; Klaber v. State, 35 Okla. Cr. 238, 250 P. 142.

It is our conclusion that the giving of this instruction was prejudicially erroneous, and, in the absence of any other instruction clarifying the duty of the state to prove the intent with which the possession is had, this cause must be reversed and remanded to the county court of Beckham county for a new trial.

It is so ordered.

BAREFOOT, P. J., concurs and DOYLE, J., concurs specially.

DOYLE, J.

(concurring). In the case of Caffee v. State, 11 Okla. Cr. 485, 148 P. 680, 681, we said:

“The courts hold that existing rules of evidence may be changed at any time by the lawmaking power when exercised within constitutional limitations. The Legislature has frequently changed the rules of evidence, and declared that certain facts, when shown, shall constitute prima facie evidence of guilt. With what intent a person keeps intoxicating liquors is always a question of fact for the jury, to be determined upon a consideration of all the evidence. In the determination of that question they are required by the statute to consider the keeping of a certain amount of intoxicating liquors as prima facie evidence of an unlawful intent. But that evidence may be rebutted by other evidence in the case, whether shown by evidence on the part of the defense, or by the state in connection with the evidence proving the possession. With such evidence, the jury must also take into consideration the presumption of the innocences of the accused until the contrary is proved beyond a reasonable doubt. It does not change the rule in all criminal cases that: ‘Before a conviction can be had, the jury must be satisfied from the evidence beyond a reasonable doubt of the affirmative of the issue presented in the accusation that the defendant is guilty in the manner and form as charged in the indictment or information.’ 3 Rice on Ev. par. 259, and cases cited.” (And see Wigmore, Ev. par. 1354.)

In the case of Klaber v. State, 35 Okla. Cr. 238, 250 P. 142, 143, it is said:

“This instruction was erroneous, amounting to the shifting of the burden of proof to the defendants. Assuming that possession of the whisky by the defendants was proved, there were two presumptions for the consideration of the jury, the presumption of innocence, and a contrary statutory presumption or inference arising from the possession of an excessive quantity. In the case of Sellers v. State, 11 Okla. Cr. 588, 149 P. 1071, it was held that an instruction like this was reversible error. The evidence in its entirety, including all the presumptions, should, as a whole, he submitted to> the jury.”

Obviously, the instruction was not a correct statement of the law. It was fundamentally wrong and prejudicial to the rights of the defendant, in that it deprived the defendant of the benefit of the presumption of innocence, and is a comment on the weight of the evidence.


source: Caselaw Access Project

author: BAREFOOT, P. J.

license: Public Domain

text:
    Ex parte MARTIN LUTHER STEEL.
    No. A-10311.
    Sept. 16, 1942.
    (129 P. 2d 208.)
    Robert Wimbish, of Ada, for petitioner.
    Mac Q. Williamson, Atty. Gen., Jesse Pullen, Asst. Atty. Gen., and R. J. Shive, Co. Atty., of Perry, for respondent.
   BAREFOOT, P. J.

Petitioner, Martin Luther Steel, has filed in this court his petition for a writ of habeas corpus, alleging that he is unlawfully imprisoned and restrained in the county jail of Noble county, Okla., by Merl Harman, sheriff of said county.

To1 this petition the sheriff has filed a response. Attached to the petition is a copy of the evidence taken at the preliminary hearing in Noble county, where petitioner stands charged with the crime of murder by information filed in the district court on the 30th day of July, 1942.

We have carefully reviewed the record, which contains the evidence of the two eyewitnesses to the homicide and the evidence of the petitioner, who was placed on the stand at the preliminary hearing, and other witnesses, and have come to the conclusion that the facts justify that petitioner be permitted bail pending his trial in the district court.

Inasmuch as this case is to be tried in the district court, we refrain from a discussion of the evidence.

An order was made by the court at the time of hearing on the 11th da.y of August, 1942, admitting petitioner to bail in the sum of $10,000, said bond to be filed, and approved by the court clerk of Noble county, and, upon the approval of said bond, petitioner to be discharged by the sheriff of Noble county. This order is now confirmed.

JONES, J., concurs. DOYLE, J., dissents.


author: BAEEFOOT, P. J.

text:
    WILLIAM R. VINCENT v. STATE.
    No. A-10084.
    Sept. 16, 1942.
    (129 P. 2d 214.)

      Mac Q. Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Lewis E. Morris, Co. Atty., of Oklahoma City, for the State.
    J. Forrest McCutcheon, of Dallas, Tex., for defendant.
   BAEEFOOT, P. J.

Defendant, William E. Vincent, was charged in the district court of Oklahoma county with the crime of unlawful possession of intoxicating liquor and, as a second offender, was tried, convicted and sentenced to pay a fine of fl,000, and serve six months in the penitentiary, and has appealed.

This case involves the same defendant as the case of William R. Vincent v. State, 75 Okla. Cr. 116, 129 P. 2d 196. These cases were the outgrowth of searches and seizures of intoxicating liquor at defendant’s place of business, “The Alamo Courts”, on the 5th day of October, 1949. By reason of the facts stated in that case, it will be unnecessary to give but a brief statement here. It was alleged in the information as follows:

“On the 5 day of October, A. D., 1949, in Oklahoma County, State of Oklahoma, William E. Vincent, whose more full and correct name is to your informant unknown, then and there being, did then and there wilfully, unlawfully and feloniously commit the crime of illegal possession of whisky after former conviction. For that he the said defendant did then and there unlawfully, wilfully, and wrongfully and feloniously have the possession of a certain quantity of intoxicating liquor, to wit; ten pints of whisky, the said having the possession! of said intoxicating liquor as aforesaid being then and there with unlawful, wilful, wrongful and felonious bartering, selling and giving away and otherwise furnishing the same to divers persons unknown, and the said offense of illegal possession of whisky was then and there committed after the defendant had formerly been convicted of violating the prohibition laws of the State of! Oklahoma, to wit; Charge #4472, now pending in the Common Pleas Court in and for Oklahoma County, Oklahoma; charge #4321, wherein defendant plead guilty July 14, 1940, in the Common Pleas Court the defendant receiving a sentence of 60 days in the County Jail and $100.00 fine; also in the following numbered charges wherein the defendant did, on the said 15th day of July, 1940, plead guilty receiving a sentence of sixty days and a fine of $100.00 in each, being numbers 4312, 4209 and 4116; contrary to- the form of the statutes in such case made and provided against the peace and dignity of the State of Oklahoma”.

This prosecution is under Oklahoma Statutes 1931, section 2632, O. S. A. (Stat. 1941), Title 37, § 12, which is as follows:

“For the second and all subsequent convictions for the violation of any of the provisions of this act, the penalty shall be a fine of not less than fifty ($50.00) dollars, nor more than two thousand ($2,000.00) dollars, and by imprisonment of not less than thirty (30) days in the county jail, nor more than five (5) years in the State Penitentiary, and it shall be mandatory upon the trial judge in cases where anyone has been convicted under any provision of this act, to pronounce sentence within ten days from the date of conviction.”

It is first contended that the court erred in overruling the demurrer of the defendant to the information. This contention is based upon the fact that the information, in pleading the former convictions, does not allege that they were committed in any county or in Oklahoma and that they were, therefore, not clear, concise and unambiguous and did not inform the defendant of the crime with which he stood charged nor the court in' which the prior offense is alleged to- have been charged.

It may be true that the information is not full and complete as it might he hut this is a very technical objection. Oklahoma Statutes 1931, section 2892, Oklahoma Statutes Annotated (Stat. 1941), Title 22, § 410, is as follows:

“No- indictment or information is insufficient, nor can the trial, judgment, or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of! the substantial rights of the defendant upon the merits.”

It is unnecessary to cite the many cases from this court in which this statute has been construed. It has often been held that the true test of the sufficiency of an indictment or information is not whether it might possibly have been made more certain but whether it alleges every element of the offense intended to be charged and sufficiently apprises defendant of what he must be prepared to meet. Clark v. State, 63 Okla. Cr. 138, 73 P. 2d 481. In the instant case the information charges the defendant with the unlawful possession of intoxicating liquor on a certain date, to wit, Oct. 5, 1940; that this possession was “after the defendant had formerly been convicted of violating the prohibition laws of the .State of Oklahoma”. It then charges “to wit, Charge #4472, now pending in the Common Pleas Court in and for Oklahoma County, Oklahoma”. Of course defendant could not be convicted as a second offender by reason of the fact that there was a charge pending against him and in which there had not been a final judgment and sentence. If this was the only charge made, the demurrer to the information should have been sustained. But it is further alleged “Charge #4321; when defendant plead guilty July 14th, 1940, in the Common Pleas Court, the defendant receiving a sentence of sixty days in county jail and a one hundred dollar fine”. The information' also charging in the same manner three other cases, in which the number of the case was given and the amount of the fine and jail sentence imposed. We think these allegations should be construed together with the allegations above stated where it was alleged in the information that “defendant had formerly been convicted of violating the prohibition laws of the State of Oklahoma” and “in the Common Pleas Court in and for Oklahoma County, Oklahoma”. There can be no question but that upon reading the above information defendant was apprised with what crime he was charged and that it was in such terms that a second offense could not be made against defendant growing out of the same facts. Scott v. State, 40 Okla. Cr. 296, 268 P. 312; Cotton v. State, 22 Okla. Cr. 252, 210 P. 739; Price v. State, 9 Okla. Cr. 359, 131 P. 1102; State v. Feeback, 3 Okla. Cr. 508, 107 P. 442; Warren v. State, 24 Okla. Cr. 6, 215 P. 635. It of course would have been better pleading if it had been charged after each case referred to that it had occurred in Oklahoma county, Oklahoma, but for the reasons above stated and the decisions of this court in construing the statutes above quoted, the information was good against a general demurrer.

The next contention is that the court erred in overruling defendant’s motion to suppress the evidence, because the officers did not have a search warrant. The facts with reference to this have been, fully stated in the case of William R. Vincent v. State, 75 Okla. Cr. 116, 129 P. 2d 196, to which reference has heretofore been made. The defendant sold one pint of whisky to certain state officers for the sum of one dollar and a half. He was standing in front of his place of business when this sale was made. The officers immediately placed him under arrest and informed the other officers of the fact that he had been placed under arrest. These officers then searched defendant’s premises and found the nine pints of whisky in a plant in a flower bed on defendant’s premises. Under these facts it was unnecessary for the officers to procure a search warrant., They had arrested defendant and had the right under the law to- search him and his immediate surroundings. They had seen him go toward the plant to get the whisky which was sold to- the officers and under these circumstances the search was proper. We suggest, however, that it would have been better pleading had the county attorney filed a charge against this defendant with the sale of intoxicating liquor, instead of possession. The question raised as to- the search warrant would have been eliminated had the defendant been charged with sale of intoxicating liquor, instead of possession.

It is next contended that the judgment and sentence is in violation of the constitutional rights of the defendant and contrary to the law and the evidence. This question has been decided against the contention of the defendant in the prior case, heretofore cited.

Finding no- error, the judgment and sentence of the district court of Oklahoma county is affirmed.

DOYLE and JONES, JJ., concur.


author: JONES, J.

text:
    RAY MINTER v. STATE.
    No. A-10130.
    Sept. 16, 1942.
    (129 P. 2d 210.)

      Arney & Barker, of Clinton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and G. C. Loving, Co. Atty., and Norris Mitchell, Asst. Co. Atty., both of Clinton, for defendant in error.
   JONES, J.

The defendant, Ray Minter, was charged in the district court of Custer county with the alleged offense of “attempted murder,” was tried, convicted and sentenced to- serve twelve years in the State Penitentiary and has appealed.

There are many assignments of error set forth in the brief of the defendant filed herein. It is. not necessary to separately discuss each of these alleged errors, as most of them are directed to the proposition that the county attorney erroneously charged the defendant with attempted murder under the general attempt statute (section 1822, O. S. 1931, 21 O. S. 1941 § 42), when he should have charged the defendant under the provisions of section 2439, O. S. 1931, 21 O. S. 1941 § 832.

The information, omitting1: formal parts, reads:

“That on or about February 12, 1941, in the County of Custer, Bay Minter, then and there being, did then and there, wilfully, wrongfully, unlawfully, intentionally, maliciously, and feloniously and with premeditated design to effect the death of one, Myrtle Minter, a person then and there being, did deposit in and upon certain, food which the said Myrtle Minter, had prepared for her lunch and which she intended to eat, a quantity of certain deadly poison known as ‘Bat poison’ which poison contained among other things phosphorus, which he the said Bay Minter then and there knew to be a deadly poison and he the said Bay Minter then and there knowing that the said Myrtle Minter had prepared and intended to eat said food, with the intent on the part of him the said Bay Minter that she eat the said food containing said poison, and thereby produce the death of the said Myrtle Minter; but that said Bay Minter was prevented in the perpetration thereof and was intercepted therein by the discovery of the said poison before it was actually administered to- the said Myrtle Minter; that by the said acts by the said defendant in placing said poison in and upon said food he wrongfully, unlawfully, wilfully, feloniously and maliciously intended to kill and murder the said Myrtle Minter, contrary to the form of the Statutes in such cases made and provided and against the peace and dignity of the State.”

Upon arraignment of the defendant in the district court he properly questioned the validity of the information. by a demurrer and later by a motion to dismiss tbe information for the reason that the defendant had been charged under the wrong statute.

The information was purportedly drawn under the provisions of section 1822, O. S. 1931, 21 O. S. 1941 § 42, supra, which provides, in part, as follows:

“Every person who attempts to commit any crime, and in such attempt does any act toward the commission of such crime, but fails, or is prevented or intercepted in the perpetration thereof, is punishable, where no provision is made by law for the punishment of such attempt as follows:

“1. If the offense so attempted be punishable by imprisonment in the penitentiary for four years or more, or by imprisonment in a county jail, the person guilty of such attempt is punishable by imprisonment in the penitentiary, or in a county jail, as the case may be, for a term not exceeding one-half the longest term of imprisonment prescribed upon a conviction for the offense so attempted.”

Defendant contends he should have been charged under section 2439, O. iS. 1931, 21 O. S. 1941 § 832, which provides:

“Every person wlm willfully mingles any poison with, any food, drink or medicine, with intent that the same shall be taken by any human being to1 his injury, and every person who willfully poisons any spring, well or reservoir of water, is punishable by imprisonment in the penitentiary not exceeding ten years, or in a county jail not exceeding one year, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment.”

The proof of the state in support of their information shows that the defendant and his wife, Myrtle Minter, were separated at the time of the commission of the alleged offense herein. Myrtle Minter was employed at a laundry, in Clinton, while the accused was living on a farm north of Gotebo. That on February 12, 1941, about 9:0Q a. m., the defendant came to the automobile belonging to his wife and in which she had left some sandwiches for her lunch. The defendant was seen at that time and place to take out the lunch of his wife, place something, in it and return it to the automobile, after which he left the premises. The party who saw the defendant tampering with his wife’s lunch notified Myrtle Minter, who, in turn, notified the police officers, who made an examination of the sandwiches and found a powdery substance appearing on them.

A chemical analysis showed that the food was poisoned with a powdery substance which largely consisted of phosphorus. The defendant was arrested that same day and in the glove compartment of his automobile was found a tube of rat poison containing a large amount of phosphorus and similar to the substance found on the lunch of Myrtle Minter.

The defendant did not testify, but evidence was introduced tending to show that he was at another place at the time of the commission of the alleged crime, and also-some evidence was introduced in an effort to show the insanity of the accused at the time of the commission of the alleged offense.

No effort has been made to give a detailed statement of the evidence, but the above abbreviated summary is sufficient to show the nature of the testimony relied upon by the state for a conviction, and is sufficient for the purpose of ascertaining whether the county attorney erroneously charged the defendant.

We have been unable to find any case in Oklahoma where the crime charged against the defendant is that of “attempted murder” under section 1822, O. S. 1931, supra. There have been many other attempted crimes charged under this statute, but no attempted murder charge. This is probably true because we have other specific statutes dealing with “Attempts to Kill.” See Title 21, chapter 21, O. S. 1941. Under said chapter we find the offense of attempt to kill by administering poison (§ 651); the offense of assault and battery with intent to kill with a deadly weapon (§ 652); and a third statute punishing all other’ offenses of assault with intent to kill (§ 653). The defendant could not be properly charged under section 651, supra, for the reason that the poisoned food was not actually taken by any person.

Section 1773, O. S. 1931, 21 O. S. 1941 § 11, provides :

“If there be in any other chapter of the laws of this State a provision making any specific act criminal and providing the punishment therefor, and there be in this Penal Code any provision or section making the same act a criminal offense or prescribing the punishment therefor, that offense and the punishment thereof, shall be governed by the special provisions made in relation thereto, and not by the provisions of this Penal Code.”

This, statute supports the contention of defendant that it was the intention of the Legislature, where specific acts are named as criminal in a statute, that an accused should be prosecuted under the terms of the special statute, even though the county attorney might, by some stretch of the imagination, conclude that the acts which were committed might possibly be covered by a general statute.

In addition to this statutory provision, the latter1 part of section 1822, O. S. 1931, supra, under which this action is brought, provides: “* * * where no provision is made by law for the punishment of such attempt, * *

There was a statute specifically providing for the punishment to be inflicted for acts such as were alleged to have been committed by defendant, and under the plain terms of the provision here quoted the charge should have been filed under the specific statute and not under the terms of section 1822, O. S. 1931, supra.

We are not unmindful of the rule that where the same acts are made criminal by two or more specific sections of the Code the county attorney may elect under which statute he will prosecute. Waldrep v. State, 74 Okla. Cr. 428, 127 P. 2d 860; Landrum v. Statae, 60 Okla. Cr. 259, 63 P. 2d 994. The general attempt statute, by its own terms, applies only where there is no other provision of law for the punishment of such attempt. In the instant case we have one statute only dealing particularly with such acts as are alleged to have been committed by defendant It appears doubtful if the Legislature ever contemplated that such an offense as “attempt to murder” should ever be filed under section 1822, O. S. 1931, supra, because of the indefiniteness of the punishment which may be assessed. That is why the many other statutes were passed directed at various acts which might constitute “attempts to kill.” However, it is not necessary for us to determine this question herein, because under the wording of section 1822, O. S. 1931, supra, it only applies where no provision is made by law for punishment of such attempt.

Section 2439, O. S. 1931, supra, specifically applies to a person who> mingles poison with food with intent that the same shall be taken by any human being to hisi injury. It is contended by the state that by reason of the use of the term “injury” in said statute that it does not include such an offense as was committed by the defendant for the reason that it is clearly shown that he had an intent to kill his wife. We think, however, that ■the word “injury,” as used in the statute, is broad enough' to include in its scope the word “kill,” and that the county attorney should have filed his information against accused under this statute.

We cannot understand why the county attorney would seek to prosecute under the “attempt” statute where he has a statute clearly dealing with acts such as are alleged to have been committed by defendant. The county attorney was evidently motivated by his desire to have inflicted on the defendant a greater punishment than could be assessed under the terms of section 2439, O. S. 1931, supra, and would rather take a chance on having his case reversed than to proceed under a statute which clearly applies to such acts as were committed. If he had charged the defendant under the proper statute, there would have been no confusion as to what instruction the court should have given in regard to the punishment which might be assessed the defendant. In the instant case the court instructed the jury that they should, if they found the defendant guilty, assess the punishment at any term in the penitentiary not exceeding 15 years. Clearly, there was no statutory authority for such an instruction. Under section 1822, O. S. 1931, supra, the maximum punishment which could be assessed by the jury would be one-half the longest term of imprisonment prescribed upon a conviction for the offense attempted, which, in this case, if the theory of the county attorney is correct, would be one-half of life imprisonment. The court may not, where the punishment for the offense, if completed, is life imprisonment, fix any definite period of time in his instructions limiting the maximum punishment which may be assessed. There are other assignments of error, particularly with reference to' other instructions which were given, which have considerable merit, but such questions will not arise if the defendant is correctly charged under the proper statute in a new proceeding.

For the reasons above given, it is ordered that the judgment of the district court of Custer county be, and the same is hereby, reversed, with instructions to dismiss the charge of “attempted murder” filed against the defendant.

It appearing to this court that the defendant is now incarcerated in the State Reformatory at Granite, where he stands committed by reason of the judgment and sentence pronounced against him herein^ it is therefore ordered that the warden of the State Reformatory be, and he is hereby, directed to deliver to the sheriff of Custer county at the State Reformatory the said defendant, Ray Minter, and the sheriff of Custer county is directed to keep the said Ray Minter in his custody pending the filing of a charge of willfully poisoning food under the terms of section 2439, O. S. 1931, 21 O. S. 1941 § 832, or until he is discharged by the making, of bail, or otherwise, as provided by law.

BAREFOOT, P. J., and DOYLE, J., concur.


text:
    Ex parte TED HUNT.
    No. A-10321.
    Sept. 16, 1942.
    (129 P. 2d 208.)

      Sam J. Goodwin, of Pauls Valley, for petitioner.
    M. J. Ewert, Co. Atty., and Richard E. Sims, Asst. Co. Atty., both of Pauls Valley, for respondent.
   JONES, J.

Ted Hunt filed a verified petition in this court alleging that he is unlawfully imprisoned and restrained in the county jail of Garvin county at Pauls Valley by Claud B. Swinney, sheriff of said county.

The petition further alleges that petitioner is restrained by reason of a commitment from the county judge of Garvin county committing said petitioner to jail to be held to answer the charge of murder after a preliminary examination had been held before said county judge.

That your petitioner has presented an application for bail to the district judge of Garvin county, and that' bail has been denied. The petition further alleges that the petitioner is not guilty of said charge of murder; that the proof is not evident, nor the presumption thereof great that he is guilty of murder. Attached to the petition and made a part thereof is a certified transcript of the testimony taken at the preliminary examination and a certified transcript of the testimony taken before the district judge upon the application for bail. Also attached are certain affidavits to be considered by this court in the disposition of this cause.

A rule to show cause was issued and a response filed by the sheriff of Garvin county alleging that he was holding the said Ted Hunt in jail pursuant to a commitment for the crime of murder as alleged in the petition filed herein.

All parties concerned appeared before this court, and, by agreement, the case was submitted upon the evidence shown by the exhibits attached to the petition.

We have carefully examined the evidence. It would serve no useful purpose to review the testimony, and, in view of the fact that the petitioner will be tried before a jury, to do so might possibly be prejudicial to him.

Section 8 of article 2, Oklahoma Constitution, provides :

“All persons shall be bailable by sufficient sureties, except for capital offenses when the proof of guilt is evident, or the presumption thereof is great.”

It is established by many decisions of this court that upon application for bail upon writ of habeas corpus, after commitment for a capital offense by an examining magistrate, the burden is upon petitioner to show facts! sufficient to entitle him to bail, when those facts do> not appear from the evidence adduced on the part of the prosecution. Ex parte Smith, 2 Okla. Cr. 24, 99 P. 893; In re Fraley, 3 Okla. Cr. 719, 109 P. 295, 139 Am. St. Rep. 988; Ex parte Garvin, 18 Okla. Cr. 17, 192 P. 363; Ex parte Looper, 12 Okla. Cr. 437, 158 P. 290.

The petitioner has faded to sustain the burden of showing facts or circumstances tending to justify, excuse, or mitigate the offense, and we concur with the finding of the district court that the petitioner is not entitled to bail.

The writ is refused and bail denied.

BAREFOOT, P. J., concurs. DOYLE, J., absent.


author: DOYLE, J.

text:
    Ex parte DELBERT RYAN.
    No. A-10315.
    Sept. 16, 1942.
    (129 P. 2d 204.)

      F. E. Riddle and R. R. Linker, both of Tulsa, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   DOYLE, J.

The petition for writ of habeas corpus shows that the cause of the alleged unlawful restraint by Garland Marrs, sheriff of Tulsa county, is for delivery to- G. W. Williams, sheriff of Comanche county, Kan.,, upon a requisition from the Governor of that state, and such requisition has been honored and the warrant of the Governor of this state for the delivery of petitioner has been issued and served upon petitioner.

The petitioner alleges that he is now and has been a bona fide resident of the town of Jenks, in the county of Tulsa, with his family for the last past 12 years.

Petitioner denies that he is a fugitive from justice and denies that he has committed any crime against the laws of the State of Kansas, and denies that he has fled said state to prevent arrest and trial upon any criminal charge.

Petitioner avers that the application and matters set forth therein, in the extradition proceedings, fail to allege facts complying with the acts of Congress, and the Constitution of the United States, and that said matters alleged fail to comply with the laws of the State of Oklahoma, authorizing his detention and return to the State of Kansas. That the complaint and warrant charging the crime of grand larceny and burglary of the Coldwater Co-op. Oil Company was based upon affidavits which are insufficient in law to justify or warrant the retention of petitioner; that said papers show on their face that the proceedings were not instituted in good faith, and petitioner further avers that the affidavit or information attached to- the extradition papers as filed before the justice of the peace of Coldwater, Comanche county, Kan., are not authenticated in the manner provided by law and are insufficient under the law to warrant said extradition proceedings and the delivery of petitioner to the agent of the State of Kansas. The petition concludes! with prayer that this court grant the writ of habeas corpus, and that he be discharged from such unlawful imprisonment.

It is contended that upon the proceedings- had the petitioner is shown not to be a fugitive from justice.

On August 11, 1942, petition was filed in this court, and on the same day presented to the writer, the other two members of the court, on vacation, being absent from the jurisdiction. The writ was denied, and a rule to show cause why the writ should not be awarded as prayed for was entered and made returnable August 19th. That pending the determination of the application petitioner to be released from custody on bond in the sum of $2,000, to be approved by the court clerk of Tulsa county.

On the return day the Attorney General filed a demurrer to the petition, on the ground that the same does not set forth facts entitling -petitioner to any relief, which was overruled, and said cause reassigned for August 31st.

On August 31st, all parties, appearing, the cause was orally argued. At the close of the argument and upon consideration by the court, it was held that upon the undisputed facts petitioner is a fugitive from justice from the demanding state and the showing made in support of the extradition proceedings was sufficient. The writ was denied and petitioner remanded to the custody of the respondent to be dealt with as the law directs in extradition cases. The opinion of the court later to be filed.

Opinion

Section 5278 of the Revised Statutes of the United States, 18 U. S. C. A. § 662, provides that:

“Whenever the executive authority of any state or territory demands any person as a fugitive from justice, of the executive authority of any State or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other' crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, it shall be the duty of the executive authority of the State or Territory to which such person has fled to cause him to be arrested and secured,” etc.

To what extent is the action of the executive in issuing the warrant of extradition open to review? It will be observed that the statute confers no. authority upon the courts. Such authority as we exercise must be derived from our general power to protect the individual citizen from unlawful arrest. Clearly, we may not in the exercise of this restricted power enter upon a trial of the alleged offender. We cannot try the question of his guilt or innocence.

The rule appears to be that the courts may loot into the papers before the Governor and determine whether upon their face a crime is charged; but beyond this the court cannot go in determining the fact of the petitioner’s guilt or innocence. Hurd, Habeas Corpus, § 621; Moore, Extradition, § 632.

A charge of crime by information has in many cases been held to be a compliance with the federal statute, supra, requiring the production of a copy of the “indictment found or an affidavit made before a magistrate.” 112 Am. St. Rep. 135.

In the case Matter of Strauss, 197 U. S. 324, 25 S. Ct. 535, 536, 49 L. Ed. 774, Mr. Justice Brewer, speaking for the court, said:

“Under the Constitution each state was left with full control over its criminal procedure. No one could have anticipated what changes any state might make therein, and doubtless the word ‘charged’ was used in its broad signification, to cover any proceeding which a state might see fit to* adopt by which a formal accusation was made against an alleged criminal. In the strictest sense of the term a party is charged with crime when an affidavit is filed, alleging the commission of the offense, and a warrant is issued for his arrest; and this is true whether a final trial may or may not be had upon such charge. It may be, and is, true, that in many of the states some further proceeding is, in the higher grade of offenses at least, necessary before the party can be put upon trial, and that the proceedings before an examining magistrate are preliminary, and only with a view to the arrest and detention of the alleged criminal; but extradition is a mere proceeding in securing arrest and detention. An extradited defendant is not put on trial upon any writ which is issued for the purposes of extradition, any more than he is upon the warrant which is issued by the justice of the peace directing his arrest.”

In re Gundy, 30 Okla. Cr. 390, 236 P. 440, this court held:

“A complaint or information duly verified, may form the basis of an extradition proceeding, where it is a proper method of charging crime in the state where committed.”'

Further held that:

“Under the statute requiring that the Governor certify the authenticity of the complaint on which he demands extradition, without specifying how the Governor is to be satisfied that the complaint on which he acts isl authentic, the question of the authenticity of the complaint is for his own determination, and his certificate to the fact alone is required.”

And that:

“The proceedings being regular in form, it is incumbent upon the petitioner for habeas corpus, seeking to defeat extradition, to establish that he is not a fugitive from justice.”

In the opinion we said:

“To. be a fugitive from justice within the meaning of the federal law it is sufficient that such person legally charged in the demanding state with the commission of a crime within said state, when sought to be subjected to its criminal process for said offense, has left its jurisdiction and is. found within the jurisdiction of another state upon whose executive requisition is made. When it is shown that a person is in due and legal form charged with a crime in one state, and that he was corporeally present in that state at the time of the commission of ■the crime charged, it is then conclusively established that such person is a fugitive from justice within.the meaning of the Constitution.”

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

In the instant case it was the opinion of the court that upon the undisputed facts, the petitioner is a fugiive from justice from the demanding state, that the proceedings had were clearly sufficient, and that his arrest and detention is not in any way illegal. The writ of habeas corpus was and is accordingly denied, and the respondent, Garland Marrs, sheriff of Tulsa county, was directed to surrender said petitioner into the custody of G. W. Williams, Agent of the State of Kansas.

BAREFOOT, P. J., and JONES, J., concur.


text:
    Ex parte MORRIS BREWER.
    No. A-10267.
    Sept. 16, 1942.
    (129 P. 2d 199.)

      Morris Brewer, in pro. per.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   DOYLE, J.

Petitioner, Morris Brewer, filed Ms application for a writ of habeas corpus in this court by mail, on May 5, 1942, wherein it is alleged that he is unlawfully held and restrained of his liberty in the State Penitentiary at McAlester, by Warden Fred Hunt, under an order of commitment issued by the district court of Washita county, on or about the 15th day of December, 1941, upon a judgment rendered in said court upon the verdict of a jury finding said petitioner guilty of the crime of burglary in the second degree, returned in said court on the 24th day of November, 1941.

It is alleged in his petition that on or about the 9th day of October, 1941, upon a preliminary examination held before the county judge of Washita county as an examining magistrate, he was ordered bound over and held for trial in the district court of said county.

That his constitutional rights upon his trial in said court were denied as provided by article 2, secs. 7, 17, and 20 of the State Constitution, and article 14, sec. 1, of the Amendments of the Constitution of the XT. S. A.

That September 30, 1941, petitioner was arraigned and entered a plea of not guilty before the said judge of the county court, and on October 9th, the county attorney filed an amended information, charging petitioner with burglary in the second degree, second offense; upon which he had a preliminary examination.. That the district court on November 10th ordered the county attorney to file an amended information in said court charging the petitioner with burglary in the second degree, omitting second offense. That he was denied compulsory process to obtain witnesses who would testify in his behalf. That the name William F. Corey, at that time an inmate of the U. S. Reformatory at El Reno, was endorsed as a witness on the amended information. Corey, a material witness for the defendant, did not appear at the trial.

Petitioner further alleges that the jurors were not selected as by law provided and during the progress of the trial the court allowed the jurors to separate and go to their homes over and against the petitioner’s objections.

That petitioner alleges there was no evidence to sustain or warrant a conviction of burglary in the second degree.

The petition concludes with prayer that this court will issue and enter an order requiring the State of Oklahoma show cause why petitioner’s judgment and sentence should not be declared null and void on the grounds that petitioner has been denied his constitutional rights.

On May 22nd respondent, Warden, filed a demurrer to the petition “for the reason that the same does not state facts sufficient to justify the granting of the writ prayed for. As shown by said petition, petitioner was duly tried and convicted, and the questions attempted to be presented in this proceeding should,, if possessed of any merit, have been brought before this court by appeal.”

The well-established rule is that, where a defendant is charged by proper complaint or information with a felony and has a hearing before a committing magistrate, who' finds the crime charged to have been committed, and further finds there is probable cause to' believe defendant committed it, and thereafter an information charg;ing such crime is lodged in the proper court, the defendant cannot be discharged on habeas corpus on the ground that the evidence adduced at the preliminary is insufficient tO' show that a felony has been committed or there was sufficient cause to believe the defendant guilty thereof. Ex parte Burroughs, 10 Okla. Cr. 87, 133 P. 1142.

In such cases the defendant has a right to raise this question in the court where the information is pending and by proper plea or motion to quash and set aside.

Section 4893, Rev. Laws 1910, section 693, O. S. 1931, O. S. A. title 12, § 1342, provides:

“No court or judge shall inquire into the legality of any judgment or process, whereby the party is in custody, or discharge him when the term of commitment has not expired in either of the cases following: . . .

“Second. Upon any process issued on any final judgment of a court of competent jurisdiction; or, . . .

“Fourth. Upon a warrant or commitment issued from the district court-, or any other court of competent jurisdiction, upon an indictment or information.”

Under the foregoing section, subdivisions second and fourth, quoted above, this court is prohibited in proceedings by habeas corpus from examining the proceedings or record in the lower court in the cases mentioned.

Many times this section, including the above subdivisions, has been before this court. It has uniformly been held that the provisions of this section limiting the scope of inquiry apply only where the court has jurisdiction to> render the particular judgment. Ex parte Sullivan, 10 Okla. Cr. 465, 138 P. 815, Ann. Cas. 1916A, 719; Ex parte Grant, 32 Okla. Cr. 217, 240 P. 759.

Under this section habeas corpus cannot be used to test sufficiency of indictment or information.

Where a petitioner is imprisoned under a judgment of conviction for crime, unless the court was without jurisdiction to render the particular judgment, and the judgment is void and not merely voidable, relief cannot be had by habeas corpus, however1 numerous and gross may have been the errors committed during the trial or in the proceedings preliminary thereto1. Ex parte Benefield, 31 Okla. Cr. 1, 236 P. 625; Ex parte Barnette, 29 Okla. Cr. 80, 232 P. 456; Ex parte Autry, 58 Okla. Cr. 88, 50 P. 2d 239.

The writ of habeas corpus does not deal with errors or irregularities which render proceedings voidable merely but such only as render them absolutely void.

The review of a judgment of conviction and imprisonment by writ of habeas corpus is limited to the questions: Had the court which rendered the judgment jurisdiction of the offense and of the person convicted? Or did the court in the course of the proceedings which resulted in the judgment lose jurisdiction to render a valid judgment and sentence? Ex parte Lyde, 17 Okla. Cr. 618, 191 P. 606.

It follows, for the reasons stated and the authorities cited, that the demurrer to the petition is well taken and should be sustained.

Wherefore, the application for the writ is denied and the case dismissed.

BAREFOOT, P. J., and JONES, J., concur.


text:
    Ex parte PAUL NYE.
    No. A-10191.
    Sept. 23, 1942.
    (129 P. 2d 614.)
    W. N. Redwine, of McAlester, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   BAREFOOT, P. J.

Petitioner, Paul Nye, has filed a petition seeking his release from the State Penitentiary, at McAlester, where he is confined by reason of the judgment and sentence of the district court of Le Flore county, pronounced upon a plea of guilty entered on the 3rd day of February, 1941.

It is alleged in the petition that petitioner is illegally restrained of his liberty as follows:

“Petitioner avers that on the 3rd day of February, 1941, petitioner was charged in Le Flore County, Oklahoma, by information of having committed rape, on a female by the name of Pauline Thompson, 12 years of age, which charge was set forth in the information filed in the District Court of Le Flore County on the 3rd day of February, 1941, and on the same day, to-wit: February 3, 1941, said petitioner was arraigned before the] trial judge of Le Flore County and called upon to plead to said information. Petitioner states that he did not have a lawyer to- represent .him at the time he was called upon to plead to said information, that he was not advised by the trial judge that if he did not have a lawyer employed to represent him and was not able to employ one the court would appoint a lawyer to represent him. Petitioner states that he was not financially able to employ one, and uneducated, and ignorant of the law, and when said petitioner was called upon by the court, said petitioner plead guilty to said charge and was sentenced by the trial judge to 20 (Twenty) years in the penitentiary located at McAlester, Oklahoma.

“Petitioner further states that he did not have a list of witnesses first served upon him by the state, neither; did he have a copy of the information filed against him served upon him before being called upon to1 plead to said charge. Petitioner states that he was not advised by the court that he could take time to plead if he so desired and the petitioner did not know that he, under the law, was entitled additional time to plead said information. Petitioner further states that when he plead] guilty of said charge the court then and there and without postponing the sentence for two days sentenced petitioner for 20 (Twenty) years in the Penitentiary as aforesaid.

“Petitioner further states that the information filed against him charging him with a Capital crime and that he was entitled, under the law, to have said case postponed two' days before being sentenced after he plead guilty, which was not done. Petitioner further states that he was not advised by the trial judge of any of his statutory or constitutional rights at the time he was calledj upon to plead to said charge.

“Petitioner further states that under the facts herewith set forth, the judgment of the court sentencing, him to the Penitentiary for 20 (Twenty) years was null and void and the commitment issued committing said Petitioner to the Penitentiary was null and void and the court had no authority or jurisdiction to pronounce sentence and judgment against petitioner under the facts he has above stated.”

Upon the filing of the above petition an order was entered denying a writ of habeas corpus, but ordering a rule to' show cause. A reply was filed by the Attorney General on behalf of the Honorable Fred Hunt, warden of the State Penitentiary. In said response a general denial of all the allegations of the petition was made and it was further stated:

“Respondent states that the said Paul Nye is incarcerated in the Oklahoma State Penitentiary pursuant to a judgment of the District Court of Le Flore County of date February 3, 1941, committnig said Paul Nye to said Penitentiary to serve a term of 20 years; that said judgment and sentence was duly and legally pronounced; that a preliminary information had been filed on December 30, 1940, before the County Judge of said county as examining magistrate; that said Paul Nye was arrested and confined in the county jail and had the privilege of ¡and did confer with counsel; that January 31, 1941, was fixed as the date for preliminary hearing; that on said date said Paul Nye, after being fully advised of his rights, waived preliminary and entered a plea of guilty; whereupon order was entered binding him over to the District Court of said county. That said Paul Nye had the opportunity to- and did confer with his father and brothers. That on February 8, a transcript and information having been filed in the District Court the said Paul Nye appeared before the District Court and after being advised of all of his constitutional and statutory rights as to benefit of counsel and trial, and after reading of the information to him, entered a plea of guilty to said charge and expressed his readiness to have sentence pronounced; whereupon judgment and sentence was pronounced.”

Attached to- the response are affidavits of Judge William S. Hall, the district judge who sentenced the defendant, Clyde E. Whisenant, the court clerk of Le Flore county, Johnnie Davis, a deputy sheriff of Le Flore county, who was present in court at the time defendant was sentenced, Foster Windham, who was the county attorney of Le Flore county and present a.t the time defendant waived a preliminary hearing, and when he was sentenced in district court. In the affidavit of the county attorney a statement of the facts is presented. Also attached to the response is a copy of the complaint filed in the justice of the peace court, also a transcript of the proceedings before the justice of the peace at the time he waived preliminary. In this transcript it is stated:

“Now on this 31st day of January, 1911, at ten o’clock a. m. comes on for hearing the arraignment and- preliminary examination of Paul Nye, charged by information herein with the crime of Rape in first degree, and the State of Oklahoma, being represented by its attorney, Honorable Foster Windham, and the defendant being preesnt but not represented by an attorney, was fully advised of his rights under the law to have- an attorney to represent him, and stated that he had talked to- several attorneys and did not care to be represented, and the rights of a defendant were fully stated both by the County Attorney and by the Court; and the defendant was duly arraigned and stated that he desired -to enter his plea of guilty, and was again admonished by the Court that such a crime as charged in the information could carry either life imprisonment or a, death penalty, and said defendant stated that he fully understood such matters,, and said defendant then stated that he desired to- enter his plea of guilty; and defendant was then advised of his rights to have a preliminary examination and further stated that he desired to waive such hearing and to be bound over to answer the charge in the District Court of Le Flore County, Oklahoma;

“It is therefore by the Court ordered, adjudged and decreed that said defendant be and he is hereby held to answer such charge of Rape in the first degree in the District Court of Le Flore County, Oklahoma, and that he be and is hereby committed to the Sheriff of Le Flore County, Oklahoma, to be held without bail.”

Also attached to the response is a copy of the information filed in the district court and a copy of the judgment and sentence.

In the nature of a reply an affidavit of petitioner was filed in Avhich he denies statements contained in the affidavits; also an affidavit by Dutch Altes.

The above constitutes the record and the issues. No transcript of the record, with the evidence, if any was •taken before the district court of Pittsburg county when application was made for writ of habeas corpus in that court, is presented. No evidence was taken before this court at the time of the submission of the case.

Petitioner bases his right to a writ of habeas corpus: upon the decision of this court in the case of Ex parte Meadows, 70 Okla. Cr. 304, 106 P. 2d 139, 147. However, the facts in that case are materially different from the facts in the instant case. There the defendant was a minor. A preliminary was waived in Tillman county on April 29, 1932, and defendant sentenced on the same day, April 29, 1932. On the same date he was taken to Comanche county and was, on the 30th day of April, 1932, arraigned before a justice of the peace, an information was filed against him in the district court and' on the same day, April 30, 1932, he was arraigned in the district court and sentenced to serve a term of forty (40) years in the penitentiary for robbery with firearms. He had relatives in this state but no opportunity was given him to consult with them. In the instant case a preliminary complaint was filed against the defendant on December 30, 1940, and the date of his preliminary hearing was set for January 31, 1941. He remained in jail until February 3, 1941, at which time he entered his plea of guilty. In the Meadows Case there was no showing by the record before the justice of the peace that defendant was asked with reference to his desire to have counsel. In the case at bar the record, as shown by the transcript of the justice of the peace, hereinbefore referred to, reveals that all of his constitutional and statutory rights were protected.

In the Meadows Case, supra, it is stated:

“In this connection, we wish to state that no general abstract rules can be set forth which apply to every case, but the question as to whether or not the judgment and sentence has been passed in conformity with the Constitution and statutes depends upon the facts in each particular case.”

Since the decision was rendered in the Meadows Case, this court has had before it two cases in which the facts as revealed in the instant case are almost identical. These are the cases of In re Bradley, 72 Okla. Cr. 107, 113 P.2d 611, and Ex parte Wooldridge, 72 Okla. Cr. 292, 115 P.2d 284. It is unnecessary to quote at length from these decisions. They may be read by those who desire to do so. It is held in these cases that where a petition for habeas corpus is filed in this court and the allegations of the petition are to be taken as evidence before the court, we will also consider the affidavits of the officers and other witnesses who were present and had knowledge of the facts at the time of the sentencing of the defendant. Certainly it can ndt be argued that the allegations of the petitioner will be taken as true and the affidavits of the officers be not considered. In the Bradley Case, supra [72 Okla. Cr. 107, 113 P.2d 615], it is said:

“The judgment and sentence, attached to the position, is on the printed form generally used throughout the state by the various county attorneys in connection with the sentencing the defendants upon pleas of guilty in felony cases. This printed form does not state whether the defendant was advised as to his right to have counsel appointed to represent him nor to have time within which to plead to the information placed against him, nor is any reference made therein to any statement by the court advising the defendant of any of his legal or constitutional' rights”.

Of course it would be better to make this record more full and complete by reciting the exact facts with reference to the guarantees given to a defendant under the statutes and the Constitution, but as further stated in the Bradley Case:

“These minutes are not as full as they should have been under the facts as disclosed by the affidavits of the court attaches who were present at time of the arraignment and plea of guilty by the petitioner. The presumption created by the absence of the recital of the waiver of these rights in the minutes of the court and in the journal entry of judgment and sentence, however, has been overcome by the testimony of the court officials, which shows that the proceedings upon the arraignment of the defendant were regular, and that the court had jurisdiction to pronounce judgment and sentence against the accused upon his plea of guilty”.

The question of the waiver of these statutory and constitutional rights has been settled by the early decisions of this court, which have been followed by the later decisions. It is unnecessary to quote from these so we merely give citations: Starr v. State, 5 Okla. Cr. 440, 449, 115 P. 356; State v. Frisbie, 8 Okla. Cr. 406, 127 P. 1091; Ex parte Gilbert, 71 Okla. Cr. 268, 111 P.2d 205; Ex parte Bradley, 72 Okla. Cr. 107, 113 P.2d 611. It has also often been decided that one has the right to enter a plea of guilty in this state and receive his sentence and thereby waive the right to a trial by jury. See cases above cited. Also, in the case of Ex parte Barton, 32 Okla. Cr. 41, 239 P. 944, 945, it is said:

“Courts in dealing with minors of the age of 18 years charged with a felony where such minors appeal withoul counsel, parent, or friend, should carefully guard their constitutional and statutory rights in all matters of procedure. Under such circumstances it would seem appropriate for the court to exercise the duties in the nature of a guardian for minor defendants in order that no injustice may inadvertently result. But a failure to so safeguard the rights of accused minors, while it might amount to reversible error on an appeal, will not be sufficient to deprive the trial court of its jurisdiction over such minors so as to give the accused a remedy by habeas corpus in this court.”

“To determine whether these petitioners have a right to relief by habeas corpus this court must first consider whether the court which rendered the judgment had jurisdiction of the subject-matter and of the persons, and whether during the course of the proceedings the trial court lost jurisdiction of either. Ex parte Hill, 12 Okla. Cr. 335, 156 P. 686; Ex parte Lyde, 17 Okla. Cr. 618. 191 P. 606 ”.

In the case at bar the record reveals that defendant remained in jail for 34 days after his arrest and before his preliminary hearing; that he talked to several attorneys ,and that at the time of his preliminary trial he informed the court that he did not want an attorney but desired to enter his plea of guilty. It is further revealed that the father and brothers of defendant consulted with him while in jail, and prior to his entering his plea of guilty, and, after reviewing the facts, decided that it would be better for him to enter a plea of guilty than to attempt to stand trial in the district court.

As stated above, the affidavit of the county attorney reveals the facts under which petitioner was charged and by an examination thereof it is readily seen why a plea of guilty might be entered in this case, instead of standing trial. The crime with which he was charged provides a maximum punishment of death or by imprisonment in the penitentiary for a period of his natural life. In the instant case petitioner received a sentence of 20 years and is confined in the State Penitientiary. He has the right under the law to apply for a writ of habeas corpus to this or any other court which has jurisdiction; but in cases of this character this court should not be called upon to decide conflicting questions of fact as to what really transpired at the time of the sentencing of a defendant.

The Constitution of this state has provided for executive clemency by pardon and parole. Article 6, §10. This power, under the Constitution, has been lodged in the Governor of the state. He is provided with an opportunity for a complete examination of the facts, and, if it is justifiable, relief may be granted. It is only when the judgment and sentence is absolutely void that relief may be had in the courts by habeas corpus and, while the courts will act when justice and the law require, yet such action should not he taken upon slight provocation or technicalities, long after one has been sentenced and is serving the same. Such action as this, after witnesses have disappeared or' died, would only lead to- the discharge of many who have been rightfully imprisoned and have not fully paid the penalties for the crimes which they committed.

After a careful examination of the record, we are of the opinion that the petition for habeas corpus should be denied and it is so ordered.

DOYLE and JONES, JJ., concur.


text:
    JESS ROWLAND v. STATE.
    No. A-10047.
    Sept. 23, 1942.
    (129 P. 2d 609.)

      Wm. D. French and Cornelius Hardy, both of Tishomingo, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen.-, for defendant in error.
   JONES, J.

The defendant, Jess Rowland, was charged by information filed in the district court of Johnston county with the crime of larceny of domestic animals, was tried, convicted and sentenced to serve four years in the State Penitentiary, and has appealed.

It is first contended that the court erred in overruling the motion to quash the information for the reason that no proper transcript showing a preliminary trial for the defendant, or that he had waived a preliminary trial and been ordered held to await the action of the district court, had ever been filed in said proceedings.

Evidence was taken at the time of the presentation of this motion and it was disclosed that the defndant and two other persons jointly charged with him were personally present on October 16, 1939, and that all three of the accused persons, including the defendant, waived a preliminary hearing and were bound over to the district court. On the back of the complaint appears the following:

“It appearing to me that the offense set forth in the foregoing complaint, to-wit: Larceny of Domestic Animals has been committed and there is sufficient and probable cause to- believe the said Jess Rowland guilty thereof, I hereby order that he be held to answer said charge in the district court of Johnston County, Oklahoma, and that I hereby fix his appearance bond at the sum of $1,000.00.”

The alleged error complained of is the failure of the justice of the peace to sign this order binding the defendant over to await trial in district court in compliance with sections 2806 and 2812, O. S. 1931, 22 O. S. 1911 § 261, 276.

It is well settled by many decisions of this court that where one is charged in the district court by information and desires to raise the question of not having had a preliminary examination or question a defect in the transcript of the justice of the peace, this should be done by a motion to quash the information presented before any plea is made to the information. It is likewise well settled that where a defendant voluntarily enters a plea of guilty or enters a plea of not guilty and goes to trial, he waives any right he may have had to question the fact that he did not have a preliminary examination or that the transcript filed by the justice of the peace is insufficient. Sparks v. State, 71 Okla. Cr. 430, 112 P.2d 434; Williams v. State, 6 Okla. Cr. 373, 118 P. 1006.

When such a question is raised, a question of fact is presented to the trial court as to whether there was a preliminary examination or a waiver thereof and a judicial determination by the examining magistrate that a felony has been committed and that there is probable cause to. believe that defendant is guilty thereof. If the district court, after a hearing, makes a finding on these questions and further finds that all proeeednigs before the magistrate were regular but that the transcript filed by the justice of the peace fails to. satisfactorily show the conditions, precedent to the institution of an action in the district court, he should allow the justice of the peace to correct such transcript so as to speak the truth.

In the case of Looper v. State, 42 Okla. Cr. 341, 276 P. 503, it is held:

“The failure of the committing magistrate to indorse his findings and order in the first instance on the preliminary complaint is not jurisdictional, and, where the proper order has been made and entered on his docket and is! shown by the transcript transmitted to- the district court, that in itself is sufficient to show jurisdiction”.

In Newcomb v. State, 23 Okla. Cr. 172, 213 P. 900, it is stated:

“Upon motion to set aside the information on the ground that the examining magistrate had not held the defendant to. answer the charge, the trial court may permit such magistrate to. correct his indorsement on the preliminary information filed with the court clerk to speak the truth and to rectify an apparent clerical error.”

In the instant case there is no dispute that the defendant actually appeared and waived a preliminary examination and was held to await the action of the district court and that an order was made reciting such facts. Under such circumstances the trial court did not err in allowing the justice of the peace to place his signature on said order when the question was raised in the district court.

It is next contended that the court erred in permitting! the county attorney, over the objection of the defendant, to amend the information by changing the date-of the alleged commission of the offense from the 16th day of October, 1939, which was three days after the filing of the information, to the 16th day of August, 1939.

The preliminary complaint filed against the defendant alleged that the crime was committed on August 16, 1939. The information was filed on October 13, 1939, and it is apparent that the insertion of the date October 16, 1939, in the information, which is an impossible date, was purely a clerical error.

In the recent case of Ex parte Williams, 70 Okla. Cr. 377, 106 P.2d 524, this court held:

“Where the indictment, as presented by the grand jury, gives the date of the alleged offense as subsequent to the presentment and filing of the indictment, the insertion of said date will be considered a clerical error; and the county attorney, with permission of the court, may amend the indictment by showing, the true date of the alleged offense.”

If such a ruling is applicable to an indictment, which is presented and filed by a grand jury, then surely the same rule of law would apply to an information, which is prepared and filed by a county attorney.

It is next insisted that the court erred in allowing Rena Rowland to testify as a witness on behalf of the state over the objection of the defendant as to her competency, for the reason that the said Rena Rowland was the wife of defendant.

When this objection was interposed at the time this witness was called to testify, the jury was excused and a hearing was had out of the presence of the jury. Rena Rowland testified that she had formerly been the wife of the defendant but that they had been divorced for about two years and that she was no longer his wife. She denied having cohabited with him as man and wife or of having held herself out to the public as his wife since the rendition of the divorce. She admitted having come to the home of defendant, where defendant and children of the witness were living, for the purpose of visiting with her children.

Two of the children testified that when she came to their home she slept with defendant and cooked the meals the same as she had formerly done before the divorce was granted. The defendant did not testify on this controverted point. After the hearing was completed the court allowed the witness to testify.

It is the contention of defendant that after the parties were divorced a common-law marriage was entered into between them. Common-law marriages are recognized in the state of Oklahoma. Hughes v. Kano, 68 Okla. 203, 173 P. 447; Baker v. Jack, 112 Okla. 142, 241 P. 478; In re Love’s Estate, 42 Okla. 478, 142 P. 305, L.R.A.1915E, 109. However, in all of the above cases it is settled that before a common-law marriage may exist, there must be a mutual agreement between the parties in praesenti to be a mutual come husband and wife, and, pursuant to such contract, enter into and thereafter maintain a marriage relationship.

The witness testified specifically that there was no marriage relationship between herself and defendant after the divorce was granted, and that there was no marriage contract entered into between .them. The defendant remained silent on this question. Under such a state of facts, the court did not err in allowing this witness to testify. She may have cohabitated with her former husband, as related by the children, but a meretricious relationship without a mutual agreement to be man and wife will not support the contention of defendant’s counsel that their’s was a common-law marriage. In Nichols v. State, 50 Okla. Cr. 409, 298 P. 886, 887, it is stated:

“A woman called by the state as a witness against her co defendant charged with the crime of murder is hot incompetent to' testify against such codefendant, even though she may have cohabited with the defendant, where the evidence shows there was no agreement to marry and no marriage, either common-law or ceremonial.

“The burden of proof of incompetency of a witness rests upon one who raises such question.”

Lastly, it is contended that the court erred in instructing the jury that the witnesses for the state, Raymond Claud Hulsey and Plez Rowland, were accomplices of the defendant, and the further contention is made that if they were such accomplices the evidence was insufficient as a matter of law to corroborate their testimony and sustain a conviction of defendant.

The instruction complained of reads as follows:

“In this case, Gentlemen of the Jury, the State relies upon the testimony of Claud Hulsey and Plez Rowland, together with other facts and circumstances in evidence, to establish the fact of the taking of the cattle in question, and the connection of the defendant, Jess Rowland, therewith. In this connection you are instructed that the testimony of the said Claud Hulsey and Plez Rowland show them to be accomplices, and before you will be authorized to convict the defendant upon the testimony of accomplices you must be satisfied that the testimony of such accomplices has been corroborated by such other evidence as tends to connect the defendant with the commission of the offense charged, and such other evidence is insufficient in corroboration if it merely shows the commission of the offense or the circumstances thereof.”

This instruction is a clear and correct statement of the law applicable to- the facts shown by the record and is such an instruction as we have approved many times in similar cases. Waldrep v. State 74 Okla. Cr. 428, 127 P. 2d 860; Lizar v. State, 74 Okla. Cr. 368; 126 P. 2d 552; Mills v. State, 73 Okla. Cr. 98, 118 P. 2d 259; Hathcoat v. State, 71 Okla. Cr. 5, 107 P. 2d 825; Moody v. State, 13 Okla. Cr. 327, 164 P. 676; Hewett v. State, 38 Okla. Cr. 105, 259 P. 144; Hensen v. State, 69 Okla. Cr. 273, 101 P. 2d 1060. In Henson v. State, supra, it is stated:

“Evidence corroborative of an accomplice need not directly connect the defendant with the commission of the crime; it is sufficient if it tends to connect him with its commission.

“Evidence corroborating an accomplice and tending to connect the defendant with the commission of the crime need not be direct, but may be circumstantial only.

“It is not essential that the corroborating evidence shall cover every material point testified to by the accomplice or be sufficient alone to warrant a verdict of guilty. If the accomplice is corroborated as to one material fact or facts by independent evidence tending to connect the defendant with the commission of the crime, the jury may from that infer that he speaks the truth as to all. Such corroborating evidence; however, must show more than the mere commission of the offense or circumstances thereof.”

In addition to instruction No. 6, the court further instructed the jury as follows:

“You are told, Gentlemen of the Jury, that an accomplice is one culpably implicated in the commission of a crime of which the defendant is accused, in other words an associate, one who knowingly and voluntarily cooperates or aids or assists in the commission of the crime. He is one with criminal intent, acts with others and participates in the commission of a crime. In this connection you are told that mere knowledge that a crime has been committed and concealment of such knowledge, does not make one an accomplice, unless he aided or participated in the offense. He is not made an accomplice by mere concealed knowledge of crime, and the mere presence at, acquiescence in or silent consent to the commission of an offense, is not, in absence of duty to act, sufficient to make a perison an accomplice. Therefore you are told that if you find that other witnesses, not mentioned in these instructions, were accomplices in the crime that was committed, if you find that a crime was committed, then and in that event the testimony of such other accomplices must be corroborated by other evidence as tends to: connect the defendant with the commission of the offense charged, as more fully set out in paragraph six of these instructions, before you would be authorized to return a verdict of guilty in this case.

“You are further told, Gentlemen of the Jury, that one accomplice cannot corroborate another accomplice, but the corroboration must be testimony independent of that of the accomplices.”

In applying the above rules to the evidence herein to determine whether there is sufficient evidence corroborative of the accomplices, we find the following facts proved, in addition to other circumstances which tended to corroborate the testimony of the accomplices:

The two accomplices testified in detail concerning the agreement to steal the cattle, the trip by the three parties, including the defendant, to the premises where the cattle were stolen, the driving of the cattle to the defendant’s lot where they were loaded into defendant’s truck, transported to Oklahoma City and sold and the money divided. Rena Rowland, ex-wife of defendant, and Mrs. Plez Rowland, the wife of one of the accomplices, each testified to being present at the Jess Rowland house and of overhearing a conversation between Jess Rowland, Hulsey and Plez Rowland wherein the defendant suggested that they could make some easy money by stealing cattle. They further testified to the three parties leaving the Jess Rowland place to go and steal the cattle, and Rena Rowland testified that the cattle were brought back by Jess Rowland and the other two parties to the Jess Rowland place after dark and were loaded into Jess Rowland’s truck and that Jess Rowland said at that time that they were going to the city to sell them. That after the defendant returned from Oklahoma City he told Rena Rowland that the cattle had brought $66.

The testimony of these two witnesses was sufficient to corroborate the testimony of the accomplices, but, in addition, we have certain conversations between the defendant and the accomplices while they were in jail which were overheard by an officer, which while standing by themselves, would not have been sufficient to corroborate the testimony of the accomplices, but were strong circumstances to be considered along, with the other testimony.

Also, we have the testimony of the man from whom the cattle were stolen and the officers who- tracked the cattle from the lot where they were stolen across several pastures to where they were loaded at the highway in front of the defendant’s house. The officers testified that in making their investigation they found the pick-up truck of defendant hidden in the woods and that it showed evidence of having had cattle in it recently.

The defendant did not testify and no proof was offered in his behalf.

We have carefully examined the record and have not found any errors other than such minor errors as generally creep into the trial of a criminal case, but which are not of material importance and are insufficient to justify a reversal of the judgment of conviction.

The judgment of the district court of Johnston county is therefore affirmed.

BAREFOOT, P. J., and DOYLE, J., concur.


text:
    Ex parte JAMES MONROE BROWN.
    No. A-10259.
    Sept. 23, 1942.
    (129 P. 2d 608.)
    A. L. Battenfield, of Pryor, for plaintiff.
    Mac Q. Williamson, Atty. Gen. and Sam. H. Lattimore, Asst. Atty. Gen., for respondent.
   BAREFOOT, P. J.

Petitioner, James Monroe Brown, filed in this court his petition for a writ of habeas corpus alleging that he is “unlawfully restrained and imprisoned in. the State Penitentiary at McAlester”; that the cause of said imprisonment is by reason of a judgment and sentence entered in the district court of Mayes county on the 10th of March, 1941. A certified copy of the judgment and sentence is attached to the petition.

Petitioner contends that the judgment and sentence is “false, untrue and absolutely void” for the reason that the judgment and sentence was not passed upon him on the 10th day of March, 1941; that he was not in Mayes county on that date and was not in the state of Oklahoma, but that he was in the State of Washington and in the. United States Army at Fort Lewis; that petitioner left the State of Oklahoma in the year 1940 and went to the State of California and was not in the State of Oklahoma until he was returned by a deputy sheriff of Mayes county in the month of May, 1941, when he was taken straight to the State Penitentiary of Oklahoma from Fort Lewis, Wash.

To this petition a response has been filed by the Attorney General on behalf of the Honorable Fred Hunt, warden of the State Penitentiary, in which it is alleged:

“Respondent alleges and states that the said petitioner was duly charged, tried and convicted in the District Court of Mayes County, Oklahoma, at the July term of court 1939 in cause No. 1102 and pending in said court. That the said defendant filed a motion for a new trial, which was duly heard and overruled on the 3rd day of July, 1939, at which time the defendant was present together with counsel in open court, and was thereupon sentenced to serve a term of four and one-half years in the Oklahoma State Penitentiary. That defendant gave notice of intention to appeal from said conviction, and was granted sixty days in which to make and serve case-made, and appeal bond fixed at $1,000.00. That said bond was given and approved on the 26th of July, 1939, and defendant released from' custody. All of which facts are shown by duly certified copies of the minutes of said district court, appeal bond and judgment and sentence hereto attached.

“Respondent further alleges that petitioner herein did not perfect his appeal from conviction, but departed from the State of Oklahoma and became a fugitive from justice. That he was not apprehended until May, 1941, at which time he was arrested pursuant to said sentence and delivered to said state penitentiary where he is now held to serve said term of four and one-half years. That the clerk in making out the commitment, upon which the defendant was transported by the Sheriff and delivered to said state penitentiary, through a mistake wrote in the wrong dates, and made said commitment to recite that the defendant had been sentenced on the 10th of March, 1941, defendant having in fact been sentenced on July 3, 1939, as above set forth.”

Attached to this response is a copy of the original judgment entered in the district court of Mayes county on the 3rd day of July, 1939, and a certified copy of the supersedeas bond filed by the defendant at the time of entering his appeal.

No reply has been made by petitioner to the response of the warden. No evidence has been taken.

It seems to- us that a reading of the petition and response is a sufficient answer to- the petition filed. Certainly if this defendant failed to perfect his appeal to this court in the manner provided by law, and absented himself from the state, he was subject to arrest and confinement in the penitentiary of this state in order to- satisfy the judgment and sentence that had been rendered against him in Mayes county on July 3, 1939. We can see no-reason why, under the facts and circumstances, he should not have been taken direct to the ¡State Penitentiary for the service of the sentence of which he had been convicted. The mere fact that the court clerk made a clerical mistake as to- the date when he was sentenced should not permit the release of petitioner by habeas corpus. It is the judgment of the court that the petition for habeas corpus should be denied, and it is so- ordered.

DOYLE and JONES, JJ., concur.


text:
    JOE QUICK v. STATE.
    No. A-10025.
    Sept. 23, 1942.
    (129 P. 2d 604.)

      Robert R. Rittenhouse, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   BAREFOOT, P. J.

Defendant, Joe Quick, was charged in the court of common pleas of Oklahoma county with the crime of unlawful possession of intoxicating liquor, to wit, 58 pints of tax-paid liquor, was .tried before the court, a jury having been waived, was convicted, and sentenced to pay a fine of $50 and to- serve 80 days in the county jail, and has appealed.

The only error presented is that the court erred in its refusal to sustain the motion of defendant to suppress the evidence obtained under the search warrant for the reason that it was illegal and void. This contention is first based upon the fact that the search warrant was issued upon an affidavit of an officer and the name inserted therein was “John Doe” and that the place to be searched is “D X Filling Station, located on the Northeast corner of the intersection of Reno and May Avenue Street in Oklahoma County, Oklahoma.”

We have had occasion in the recent case of Vincent v. State, 75 Okla. Cr. 116, 129 P. 2d 196, to discuss the use of the name “John Doe” in search warrants in this state. See, also, Smith v. State, 30 Okla. Cr. 144, 235 P. 273. In the case at bar, as in the Vincent Case, the searth warrant was for the purpose of searching the premises described in the affidavit and search warrant, rather than a search of defendant’s person.

There can be no question that the description of the premises, as shown by the affidavit and search warrant, is sufficient for the purpose of searching the “D X Pilling Station”, located “on the Northeast corner of Reno and May Avenue Street in Oklahoma County, Oklahoma.”

The real contention of defendant is that evidence on the motion to suppress, which was heard prior to the trial, was that defendant resided in the “D X Pilling Station,” or in a room in connection therewith, and that this room constituted the home or private residence of defendant, and that the affidavit, and search warrant issued thereon, were insufficient to justify the search of defendant’s home or private residence; that all of the intoxicating, liquor found by reason of the search was found in the home of defendant and not in the D X Pilling Station proper.

On the motion to- suppress, evidence was offered by defendant of R. P. Pinley, who was the officer that made the affidavit, and that made the search, with the assistance of two Oklahoma City policemen. The other evidence offered was by the defendant, Joe Quick. There were introduced in evidence four pictures, the originals of which are attached to- the case-made. These pictures were taken some time after the search and seizure, but reveal both the outside and inside views of the premises.

The affidavit for the obtaining of the search warrant contains statements that the premises described were a place where intoxicating liquors were being had and possessed for the purpose and intent of selling the same in violation of law and “is using the above described property in connection with and in aid thereof.” It further contains the statement:

“Affiant further states that the above described premises is a place of public resort where divers persons congregate for the purpose of buying, selling, drinking and offering for sale intoxicating liquors and where intoxicating liquors are manufactured, bartered, stored and given away in violation of the prohibitory laws of the State of Oklahoma and constitutes a public nuisance.”

This affidavit was properly sworn to by the officer before John Connolly, Jr., a justice of the peace. The defendant assumed the burden on the motion to suppress and placed upon the witness stand R. P. Finley, the officer who made the affidavit for the search warrant and who conducted the search. He testified that he was working for the Governor as a state investigator; that he also held a commission as a city policeman of Oklahoma City but was not acting by reason of temporary leave to serve the state as a state investigator. After testifying to the securing of the search warrant and the finding of 58 pints of tax paid whisky, he testified that it was found under an old desk in a room where a bed was located, with very little household furniture.

The defendant testified that he occupied the “D X Filling ¡Station”, as described in the search warrant, and that the liquor obtained by the search belonged to him. He further testified that he and his wife resided at the premises and that it was the only home he had; that the liquor was found in the room occupied by him as his home. On cross-examination he described minutely the location and description, both outside and inside of the premises, explaining from the pictures that had been introduced in evidence, and also from a map which was introduced in. evidence. He attempted to show to the court that there were two buildings, one occupied by tbe filling, station and the other as his home. This was based principally upon the fact that the roofs of the two buildings were of separate material. His testimony was, and the pictures reveal, that when you entered the filling station there was an open door space leading into- the room which he said he occupied as a home. The only entrance to this room was through the filling station. Officer Finley, at the trial of the case, testified more particularly with reference to the description of the room where the liquor was found, as follows:

“Q. How much whisky did you find there? A. I believe the information shows 58 pints. Q. And where was it in the filling station? A. Well, it was setting under' a desk I believe. Under the desk and some back in the corner by the desk. Q. And did you have a conversation with Mr. Quick about whose whisky it was? A. He said it was his.”

On cross-examination he testified:

“Q. Mr. Finley, the liquor you found out there. Some of it was in the corner of the room, you say. That wasn’t the front room, was it? A. When you open the door — step out of the drive way of the filling station there is a desk there. Q. There was a bed, was there not? A. I believe there is. Q. And cook stove? A. There is a little old square top stove. Q. Well, there is a cook stove there? A. Could be used as a cook stove. Q. What else in there? Rocking, chair? A. I don’t remember a rocking chair. Probably some chairs. Q. Table in there? A. I don’t remember. The desk and a chair and stove I believe is about all that is in the room; and he had some oil. Q. That is the room that opened off of the front room of the filling station, is it not? A. Just as you step1 out of the drive way of the filling station. Q. Opened off of that room? A. Yes. Q. That is all.”

The defendant testified at the trial to the same facts as on the motion to suppress the evidence.

The statute which gives authority to search a private residence is Oklahoma Statutes 1931, section 2639, O. S. A. (Stat. 1941), Title 37, § 88, and is as follows:

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

It occurs to us that the terms of the affidavit for the search warrant, above quoted, and which was sworn' to positively, are sufficient upon Avhich to base the issuance of a search of a private residence and especially is this true where one’s residence is situated as the facts in this case reveal. This affidavit, with the facts surrounding, it, would justify the finding that this place was being used as a “store”, “shop” or “place for storage.” The affidavit also recites in positive terms that it was being used “as a place of public resort.” The room which defendant used as his home was being used in connection Avith his business. A door space, at Avhich there wasn’t even a door, was the only connecting entrance between the filling station proper and the room occupied as a home or private residence by the defendant. There was no other entrance to this room except through this opening that led from the filling, station. There was very scant furniture in the room, no groceries of any kind or description. Located in this room were oil drums used in the business of the filling station. A desk was also located therein and it was in and around this desk that the 58 pints of tax paid liquor was found. Defendant’s wife Avas not present at the time the search was made. Nothing was said by the defendant to the officers that his private residence was being searched. We think that the court had the right to consider these facts and circumstances when the motion to1 suppress the evidence Avas presented. He evidently, came to the conclusion that the use of the room where the liquor was found was a subterfuge for the purpose of permitting defendant to- unlawfully dispose of intoxicating liquor. The evidence justifies this conclusion.

Finding no error in the record, the judgment of the court of common pleas of Oklahoma county is affirmed.

DOYLE and JONES, JJ., concur.


author: BABEFOOT, P. J.

text:
    JOE QUICK v. STATE.
    No. A-10026.
    Sept. 23, 1942.
    (129 P. 2d 607.)
    Robert R. Rittenhouse, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   BABEFOOT, P. J.

Defendant, Joe Quick,, was charged in the court of common pleas of Oklahoma county with the crime of unlawful possession of intoxicating1 liquor, to wit: twelve pints and four half pints of tax-paid liquor, on the 28th day of June, 1940, was tried, by the court, a jury having been waived, convicted and his punishment assessed at a fine of $50 and to serve 30 days in the county jail and has appealed.

The facts in this case are identical with the facts ,in the case of Joe Quick v. State, 75 Okla. Cr. 176, 129 P. 2d 604, this day decided by this court. Both cases have been briefed together and it is agreed by all parties that the facts and questions of law are identical. Upon the authority of the decision in that case, the judgment and .sentence of the defendant in this case is affirmed.

DOYLE and JONES, JJ., concur.