text:
    J. E. WISSINGER v. STATE.
    No. A-6242.
    Opinion Filed Jan. 21, 1928.
    Rehearing Denied March 10, 1928.
    (264 Pac. 631.)

      Thomas I. Munroe and Franklin H. ■ Griggs, for plaintiff in error.
    Edwin D'abney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county on a charge of robbery and was sentenced to serve_a term of 10 years in the state peni-t tentiary.

The record discloses that on August 22, 1925, 'a filling station on the outskirts of Tulsa, in charge of one Johnny Crowell, was held up and about $25 taken from the cash register. A few days later defendant was arrested, charged with the offense. He is identified by Crowell as the person who committed the robbery. Defendant denied his guilt and offered evidence tending to prove an alibi.

It is contended that the information is insufficient and is based on' section 1784, Comp. St. 1921, and following sections of the Compiled Statutes 1921 which defendant contends is repealed by chapter 85, Session Laws 1923, as amended by chapter 44, Session Laws 1925. This court, in the case of Wells v. State, 34 Okla. Cr. 179, 245 P. 1007, held that chapter 85, Session Laws 1923, is a statute of classification and not of definition and does not repeal the former law; that the law of 1923 merely provides an enlarged punishment for robbery committed by the use of firearms, and the amendment thereof (chapter 4s4 of the Session Laws 1925) is also a statute of classification and not definition. We find no substantial error by reason of any defect in the information nor in the instrúctions defining the offense charged and stating the punishment applicable.

It is also argued that there is no proof of certain essential elements of the offense charged, in that there is no proof that force was used, and that the element of fear is not proven, as Crowell, the employee in charge of the station robbed, testified that when defendant pointed a pistol at him he was not afraid. There is evidence that defendant pointed a pistol at 'Crowell and required him to open the cash register and then took from the cash register the money. In the case of Ross v. State, 31 Okla. Cr. 143, 237 P. 469, an employee and custodian of the money of the robbed bank, testified she was not afraid of the person committing the robbery, this court held:

“Where a pistol is pointed in a threatening manner at an owner or custodian of money who thereupon permits it to be taken, such act is ‘robbery’ although the custodian or owner may not be in actual fear, since fear is presumed where such act is committed, violently and against the will of the person robbed.”

Lastly, it is earnestly contended that there is prejudicial error in the comments of the county attorney during the trial and in his argument calling attention to the failure of defendant to produce his wife as a witness. The evidence for the state is that the person who committed the robbery came to the station in a Ford coupe and had with him a woman who remained in the car while the person who committed the robbery got out of the car, and had gas and oil put in it before committing the robbery. Defendant testified that on the night the robbery took place he was accompanied by his wife, who was driving with him in his car. He introduced witnesses who testified they saw him that night accompanied by his wife. The wife of defendant was present in the courtroom during the trial, but was not called as a witness. Coun'sel for the state called attention to this fact which is the basis of the contention made. Defendant relies upon the authority of Stutsman v. Ter., 7 Okla. 490, 54 P. 707, decided by the Supreme Court of the territory long prior to statehood. That case, in substance, holds that on account of the sanctity of the marital relations if a husband for any reason does not offer his wife as a witness in his behalf, it is no evidence against him and no inferences arise from such failure. That was an extreme rule even at that time. This court has materially changed the rule announced in the following cases: Rhea v. Ter., 3 Okla. Cr. 231, 105 P. 314; Hampton v. State, 7 Okla. Cr. 291, 123 P. 571, 40 L. R. A. (N. S.) 43; Manning v. State, 7 Okla. Cr. 367, 123 P. 1029.

In the case of Hopkins v. State, 11 Okla. Cr. 391, 146 P. 919, this court, in discussing a comment made for failure to call a codefendant, said:

“The Attorney General’s brief cites the cases of Manning v. State, 7 Okla. Cr. 367, 123 P. 10129, and Hampton v. State, 7 Okla. Cr. 291, 123 Pac. 571, 40 L. R. A. (N. S.) 43, wherein this court held that the failure of the defendant to call his wife as a witness, where the facts show that she would be a material witness in his behalf, is a proper subject of comment to the jury by counsel for the state. The doctrine of those cases is not in point. Our statute (section 5882, Rev. Laws 1910) authorizes the wife to be a witness for the husband, and his failure to produce her, where the facts show she would be a material witness for him, is, both upon principle and authority, a legitimate subject for criticism on the part of the state. See Graves v. U. S., 150 U. S. 118, 14 S. Ct. 40, 37 L. Ed. 1021.”

The wife cannot be called as a witness to testify against her husband except for offenses committed against her person, but she is a competent witness in his behalf in all cases, and where as in this case the evidence discloses that the wife was with her husband at the time of the offense charged and might be a material witness, his failure to call her as.a witness is a proper subject of comment.

The court, however, was in error in excluding testimony of defendant presumably to explain why he did not call his wife as a witness. The record discloses the following :

“* * * By Mr. Munroe (attorney for defendant) : Q. Now, Whitey, you are not on good terms with your wife, are you?
“Mr. Hickman: We object as incompetent, irrelevant, and immaterial.
“The Court: Sustained.
“Mr. Munroe: He has tried all day to call the attention of the jury to the fact his wife is sitting over here.
“The Court: Never mind what he did. .
“By Mr. Munroe: Q. You and your wife have had some trouble? A. Yes, sir.
“Q. She is on unfriendly terms with you?
“Mr. Hickman: That is objected to as incompetent, irrelevant, and immaterial.
“The Court: Sustained.
“By Mr. Munroe: Q. You haven’t seen her since you have been in jail?
“Mr. Hickman: Objected to as incompetent, irrelevant, and immaterial.
“The Court: Sustained.
“Mr. Munroe: That is all.
“Mr. Hickman: That1 is all. * * *”

Where the wife of a defendant might become a material witness in his behalf and she is not placed upon the stand by him, an inference arises that her evidence would be unfavorable. In such case he has the right to explain her absence or his reason for not placing her on the stand. Here, however, he did not follow up his question by any offer of proof and it may be that the trial court was not apprised of his purpose in asking the question.

It is well settled that, where error is assigned on account of the ruling of the trial court in excluding evidence, there must be an offer of proof, so this court can determine whether or not it was material and proper testimony, and whether or not defendant was injured by its exclusion. Upon an examination of the entire record it appears that defendant was fairly tried, the evidence sufficiently sustains the verdict, and no prejudicial error is made to appear.

The case is affirmed.

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


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    IVAN J. SHERWOOD v. STATE.
    No. A-6179.
    Opinion Filed March 16, 1928.
    (265 Pac. 148.)

      A. V. Dinwiddie, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

On information charging that on the 24th day of July, 1925, Ivan J. Sherwood did convey one pint of whisky from in front of the Thompson Cafe in the city of Cushing to the intersection of Harrison avenue and Broadway in said city, he was tried and convicted, and the jury failed to agree upon, the punishment. Motion for new trial was duly filed and overruled, and he was sentenced to pay a fine of $350, and to imprisonment in the county jail for 60 days. To reverse the judgment, he appeals.

This conviction is based upon evidence obtained by peace officers in executing a search without a warrant of arrest or search warrant and appellant contends that the same was illegally secured. It appears from the record that the same was admitted over appellant’s objections on this ground.

A. L. Bryan testified that he saw appellant get into his car and he started to go; that witness jumped on the car as he was taking his second gear, and he ran his hand down into appellant’s 'bosom and grabbed a bottle of whisky, and told him that he was under arrest; that he did not have a search warrant.

It must be taken as settled in this state that no search of the person or seizure of any article found thereon can be made on mere suspicion that the person is violating the prohibitory liquor laws in having intoxicating liquor in his possession, or without a search warrant, unless and until the alleged offender is in custody under a warrant of arrest, or shall be lawfully arrested without a warrant as authorized by law. Keith v. State, 30 Okla. Cr. 168, 235 P. 631; Crossman v. State, 28 Okla. Cr. 198, 230 P. 291; Russell v. State, 25 Okla. Cr. 423, 221 P. 113.

The search and seizure detailed in the record was an invasion of the constitutional rights of appellant.

On the authority of the cases cited, the judgment in this case is reversed, with direction to dismiss.

EDWARDS and DAVENPORT, JJ., concur.


text:
    MILFORD CHANDLER v. STATE.
    No. A-6208.
    Opinion Filed March 17, 1928.
    (264 Pac. 924.)
    Jas. A. Embry, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the state.
   DOYLE, P. J.

On information charging that Milford Chandler did have possession of one-half gallon of corn whisky with the unlawful intent to sell the same, he was tried and convicted and his punishment assessed at a fine of $50 and imprisonment in the county jail for 30 days. From the judgment rendered on the verdict, he appeals, The sole question presented is whether the evidence was sufficient to sustain the verdict.

The testimony of John 'Caruthers, chief of police of Stroud, is, in substance, that with Dick Knuckles, a deputy sheriff, they arrested the defendant about a mile north of Stroud; that at the time he was standing in the road with a quart of whisky in one hand and a half gallon in the other. The whisky so seized was identified and introduced in evidence. On cross-examination he stated that there was a lady with the defendant at the time and they arrested her also. Then the defendant stated that it was his whisky and they turned the lady loose.

As a witness in his own behalf the defendant testified that the lady came into the drug store at Stroud where he was working and asked him to go to the country with her in a car; that he went with her; that the whisky was in a gunny sack and he helped her put it into a fruit jar; that she did not tell him that she was going after whisky until they were out north of town; that he told the officers that it was his whisky in order to protect the girl.

The credibility of a witness may be impeached by proof that he has made statements relevant to the issues out of court contrary to what he has testified to at the trial.

It is obvious that the case was one for the consideration of the jury. The trial was in all respects fair, and we are unable to find anything in the record sufficient to war» rant us in interfering with the verdict. The judgment is therefore affirmed.

EDWARDS and DAVENPORT, JJ., concur.


author: PEE CURIAM.

text:
    SAMMY SIMMS et al. v. STATE.
    No. A-5556.
    Opinion Filed March 17, 1928.
    (265 Pac. 146.)
    Geo. H. Giddings, Sr., W. D. Cope, and E. T. Barbour, for plaintiffs in error.
   PEE CURIAM.

Plaintiffs in error, Sammy Simms and Bertha Jackson, were jointly charged, tried, and convicted on an information for possession of 35 gallons of Choctaw beer, ten gallons of wine and one gallon of whisky with the unlawful intent to sell the same. From the judgment rendered on the verdict, an appeal was perfected by filing in this court April 4, 19'25, a petition in error with case-made. On April 1, 1926, permission to withdraw the record for a period of ten days at risk of plaintiffs in error was granted by Bessey, presiding judge, which record has never been returned to this court, and no response has been made to orders of the court directing the return of the same.

On April 12, 1926, brief was filed. On June 11, 1926, supplemental brief was filed.

Plaintiffs in error, having failed to cause said record so withdrawn to be returned as ordered, "have waived their right to have their appeal herein determined.

It is therefore ordered and adjudged that the appeal herein be dismissed, and the cause remanded, with direction to cause its judgment therein to be carried into execution.


author: EDWARDS, J.

text:
    Ex parte JOHN Q. ADAMS.
    No. A-6678.
    Opinion Filed March 17, 1928.
    (265 Pac. 147.)
    John Q. Adams, in pro. per.
    Edwin Dabney, Atty. Gen., and Smith 'C. Matson, Asst. Atty. Gen., opposed.
   EDWARDS, J.

This id an original proceeding in habeas corpus brought by petitioner in proper person. The petition and exhibits attached disclose that in 1919 petitioner was convicted in the district court of Marshall county for a felony, and sentenced to serve a term of 10 years in the state penitentiary. An appeal was taken to this court, and on January 27, 1922, the judgment was affirmed. Adams v. State, 21 Okla. Cr. 448, 209 P. 189. He was, on September 30, 1919, committed to the state penitentiary under said judgment and sentence. After some time, he made an appeal bond; obtained his release pending the determination of his appeal. During the time he was at liberty on this appeal bond he was convicted in the district court of Stephens county for a felony, and was sentenced to serve a term of seven years in the state penitentiary. No appeal was taken from this latter judgment, and he was committed to the penitentiary upon commitment issued thereon. Thereafter he filed an original petition in habeas corpus in this court, alleging that the district court of Stephens county was without jurisdiction; the venue being in another county. This court, in Ex parte Adams, 27 Okla. Cr. 322, 227 P. 844, denied the writ, for the reason that the return on the rule to show cause made by the warden of the penitentiary disclosed that petitioner was held by virtue of the judgment and sentence from Marshall county.

The petitioner here contends that he is in fact held under the judgment and sentence of ten years from the district court of Marshall county, but that the records of the penitentiary show him to be held under the judgment and sentence from Stephens county, which he contends is invalid. He prays that this court discharge him or order the warden to correct his record to show petitioner is held under the judgment and sentence from Marshall county. The sentence of the district court of Marshall county has not yet expired, and, upon the theory of petitioner, he is not entitled to his discharge at this time even if the judgment and sentence from Stephens county be, as he contends, invalid. We have no authority to order any corrections of the records of the penitentiary, if such order were proper.

The writ is denied without prejudice to the right of petitioner to test the validity of the judgment and sentence of the district court of Stephens county when the judgment from Marshall county shall have expired.

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


author: PER CURIAM.

text:
    FRED BRUGAL v. STATE.
    No. A-5829.
    Opinion Filed March 17, 1928.
    (265 Pac. 146.)

      Morgan, Osmond & Morgan, for plaintiff in error.
   PER CURIAM.

Plaintiff in error, Fred Brugal, was convicted in the county court of Caddo county, and was sentenced to pay a fine of $100 and confinement in the county jail for 60 days. From the judgment, an appeal was perfected. On October 31, 1926, permission to withdraw the record at the risk of plaintiff in error was granted. September 21, 1926, cause was submitted on the record. October 20, 1926, a brief was filed. However, the original record as withdrawn by plaintiff in error has never been returned to this court, and no response made to orders of the court directing the return of the same.

Plaintiff in error, having failed to return the record so withdrawn as ordered, has waived his right to have the appeal determined.

It is therefore ordered and adjudged that the appeal in the above entitled and numbered cause be dismissed, and the cause remanded to the trial court.


text:
    L. L. HOWARD v. STATE.
    No. A-5891.
    Opinion Filed March 17, 1928.
    (265 Pac. 149.)

      Morgan & Morgan and Brown, Brown & Williams, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Carter county of manslaughter in the first degree, and his punishment fixed at confinement in the state penitentiary for a term of 25 years.

A brief summary of the facts disclosed by the record are about as follows: On April 18, 1925, defendant and his wife resided in the family of the wife’s father, Joe Pearson, at the town of Hewitt. Some two years or more before that time, prior to the marriage of defendant, Pearson had lived on a farm belonging to Andrew Greenwood, the deceased. During the time he resided there, on one occasion deceased and defendant had a quarrel. On the day of the homicide Greenwood and Ed Glenn went to the Pearson home, and, when they arrived there, Alton Lightsy and a daughter of Pearson were in front of the home in an automobile. Glenn and Greenwood drove up near, and remained in their ear for some little time. Pearson and his wife came out, and the parties talked together apparently entirely amicably. Defendant and his wife were away from home at the time, and soon came in walking, and, as they passed, Greenwood spoke to defendant, and, after he had gone into the house, called to him and said he wanted to see him. Defendant came out of the house, and walked in between the two cars, and the evidence is that Greenwood, who was in the car, laid his hand on his shoulder, and defendant began immediately cutting him with a large knife, inflicting three wounds, from which Greenwood died the following day. Greenwood was in his shirt sleeves, and unarmed. There was evidence that he had been drinking, and evidence that he had made threats against defendant.

Glenn testified that, after defendant passed into the house, Greenwood said he wanted to talk with him; that defendant came out of the house, around back of Lightsy’s car, which was two or three or four feet from Glenn’s car in which deceased was sitting, and said: “What do you want, Andy?” (referring to deceased). Deceased said: “I just want to talk with you, Karo” (a nickname for defendant) , and laid his hand on his shoulder. When he did, that defendant struck him three times with a knife; that deceased did not attempt to get out of the car.

Lightsy, who was in the other car, testified for defendant, in substance, that he was in a car with Pearson’s daughter; that Greenwood and Ed. Glenn drove up in another car, and stopped about five or six feet from him, and Pearson and his wife came out, and the parties talked, and then defendant and his wife came up and went into the house, and, after they got to the house, Greenwood called to the defendant, and asked him to come out — that he wanted to see him; that he did not hear them say anything further, and did not see the blows struek.

Defendant testified: That there was a state of ill feeling between deceased and himself. That he had learned of threats made by the deceased, and that he had several times left places to avoid trouble; that on the day of the homicide he and his wife came home and passed deceased and Glenn in a car, and Lightsy and the Pearson girl in another. As they went into the house, deceased spoke to him, and he nodded in response. After he'had gotten into the house, he heard deceased call, and Mr. Pearson said that Andy called him. That he went out and said: “Now listen, Andy,” and deceased threw his hand out, grabbed him, and started to pull him up to him, and he got out his knife and started to cut him. That he could not see his hand or what he was doing, and did not know what he had in his hand. On cross-examination he said:

“* * * Q. And still you knew on this occasion you had to kill him to keep him from doing you bodily harm? A. No, sir; I didn’t mean to kill him. Q. You stated a while ago you cut him because he hit you or took hold of you. A. I didn’t cut him because he caught me. I cut him because I didn’t know what he was going to do to me, and I felt like my life was in danger. Q. He had caught hold of you? A. I felt him. Q. He had caught hold of you before you cut him? A. Yes, sir. Q. You knew he didn’t have anything in his hand? A. I didn’t know it. Whenever he grabbed me to him, I cut him. Q. In other words, when he reached his hand out there on you, you cut him? A. If you had been there, you wouldn’t have thought he laid his hand on you. Q. You already had this knife ready? A. I got it ready while he was fixing to grab me. Q. He waited a while before he grabbed you? A. I walked up, and he reached out for me, and whenever he did I stuck him. * * * Q. You were mad when you went out there? A. Yes, sir; I was mad. Q. How long before this cutting affair was it that you had seen Greenwood — how long before that? A. Well, I suppose it has been eight or ten months, or something like that. * * * Q. Greenwood made no effort to get out of this car? A. Yes, sir. Whenever he went to get me he raised kind of up towards me. Q. That is the only act ,of getting out of the car that you saw him do? A. Yes, sir. * * *”

The evidence of the state, we think, clearly makes out a case of manslaughter in the first degree, and the evidence of defendant discloses an unnecessary homicide without any sufficient provocation or reasonable ground for apprehension that deceased was about to take his life or do him any serious bodily injury.

It is first contended that there was misconduct of the' counsel for the state prejudicial to the right of defendant. This is directed at questions propounded to defendant on cross-examination concerning some difficulty he had had with his father-in-law. This line of questioning was improper, but the record fails to show that any objection was made to it.

Attached to the motion for a new trial is an affidavit of one of defendant’s counsel that John B. Ogden, special counsel for the state, in the course of his argument, made the statement that defendant had abandoned his wife and had taken a pistol and run the father of his wife away from home. There is no showing in the record that exceptions were made to this argument, or that counsel requested it to be taken down by the court reporter, or that there was any request that it be stricken and withdrawn from the jury. When improper argument is made, it is the duty of counsel to object at the time, and to request the trial court to have a stenographer take down in shorthand the objectionable statements; then, if the court refused, the statements may be shown by affidavit. The matter must be presented to the court at the time, and he be given an opportunity to rule upon the matter. Unless this is done, the matter is not properly before this court. Irvine v. State, 10 Okla. Cr. 4, 133 P. 259; Miller v. State, 9 Okla. Cr. 255, 131 P. 717, L. R. A. 1915 A, 1088; Brannon v. State, 33 Okla. Cr. 206, 243 P. 259; Smith v. State, 34 Okla. Cr. 318, 246 P. 883.

It is next argued that the trial judge made statements in the presence of the jury tending to discredit the testimony of defendant’s wife. It appears defendant had invoked the rule excluding the witnesses, and, when the wife was called, objection was made that she had violated the rule and remained in the courtroom. Upon preliminary examinations, it appeared that this witness had violated the rule, and had heard a part of the state’s testimony. The court stated to go ahead and take her testimony, but that no other witness would be permitted to testify who had violated the rule. The court was in error in making this statement, but we fail to see how it was materially prejudicial. Defendant having invoked the rule, and the wife being a most material witness, they should have seen that she was duly excluded. There is nothing in this proceeding that affected the fairness of the trial.

Complaint is next made of errors in the court instructions Nos. 14 and 15. Although the trial judge permitted counsel to note exceptions after the conclusion of the trial, which appear on five .of the instructions, no objections or exceptions are indorsed on either instruction 14 or 15. They are not so fundamentally erroneous as to require a reversal. Where no objection is taken to the instructions of the trial court, they will not be examined by this court for the purpose of discovering other than fundamental error. Russell v. State, 17 Okla. Cr. 164, 194 P. 242; Stiles v. State, 39 Okla. Cr. 173, 264 P. 226.

Finally, it is argued that the court gave an oral instruction upon the subject of the unwritten law.' It is, in substance, that in this state there is no such thing as the unwritten law, and that the jury are to be directed and guided by the instructions of the court which embody the written law of the state applicable to the case on trial. Exceptions were taken to this supplemental instruction, not because it was oral, but of its substance. We condemn the giving of oral instructions. It is contrary to the statute, and, where exceptions are taken to the giving of oral instructions, this court will scrutinize them closely, and, where it appears that they are erroneous and prejudicial to the defendant, we will unhesitatingly reverse a case for that reason. Counsel for an accused on trial, however, also owe a duty to the court to except and preserve the record according to the rules of law so that matters objected to may properly be presented to this court for review. When that is not done, they waive error other than fundamental error.

Opon a consideration of the whole case, it appears that the defendant, even upon his own testimony, is guilty of manslaughter in the first degree; that there is no miscarriage of justice; and that the assignments of error argued do not require a reversal.

The case is affirmed.

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


text:
    TOM GOOD v. STATE.
    No. A-6415.
    Opinion Filed March 20, 1928.
    (264 Pac. 920.)

      M. Bristow and H. W. Morgan, for plaintiff in error.
    Edwin- Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Tom Good, was convicted on a charge that he did sell one pint of whisky to W. F. Dunaway for $2, the jury leaving the punishment to be assessed by the court. Motion for new trial was duly filed and overruled, and he was sentenced to pay a fine of $200 and to imprisonment for 60 days in the county jail. From the judgment he appeals.

The errors assigned question the sufficiency of the evidence to support the verdict and assert that the punishment imposed was excessive.

The testimony of W. F. Dunaway and Walter Sledge, deputy sheriffs, shows that with Bickerstaff, another deputy sheriff, they visited the defendant’s restaurant in the town of Apache; Bickerstaff claimed to be sick, and they asked the defendant for some whisky; that Dunaway paid him $2 for a pint of whisky.

As a witness in his own behalf, Tom Good testified that he had lived in Apache 25 years, during which time he conducted a farm, blacksmith shop, and now a restaurant; that, when these parties came in, there was not a drop of whisky in the house, that they asked him if he could get them some whisky, and he told them he did not know where they could get any whisky; that they went out, and about an hour later came back and said, “You can get us some whisky, we have got to have it,” and he told them he did not know where to get it; that later two of them came back and ordered another lunch, and said the other fellow could not come, “he has gone down on us,” and, as a favor, he went across the street and got a pint of whisky for them.

Several witnesses testified that they knew the reputation of the defendant in that community as a law-abiding citizén for many years, and that reputation was good.

It has been repeatedly held by this court, where the defendant claims that he merely acted as the agent of the purchaser in procuring prohibited liquor, such claim will not constitute a defense. It rather shows that he is guilty upon his own testimony. Lamm v. State, 4 Okla. Cr. 641, 111 P. 1002; Buchanan v. State, 4 Okla. Cr. 645, 112 P. 32, 36 L. R. A. (N. S.) 83.

It follows that the evidence is clearly sufficient to sustain the verdict. However, in view of the disclosures in the record, we are impelled to the conclusion that substantial justice requires a modification of the judgment.

It is therefore considered that the sentence of the lower court be, and is hereby, modified by assessing the punishment at imprisonment for 30 days in the county jail and to pay a fine of $50, and said fine, if not paid, to be satisfied by imprisonment, as provided by law, and thus modified, the judgment of the county court is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    ADA HOOKS v. STATE.
    No. A-6414.
    Opinion Filed March 20, 1928.
    (265 Pac. 145.)

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

On information charging that in Caddo county, on October 5, 1925, Ada Hooks did have in her possession one-half gallon of whisky with the unlawful intent to sell the same, she was convicted, and was sentenced to pay a fine of $50, and to confinement in the county jail for 30 days. From the judgment she appeals.

The only question raised by this appeal is the sufficiency of the evidence to sustain the verdict.

Bruce Poolaw testified: That he was a Kiowa Indian. Had a commission as a special deputy sheriff, and, with Charles Akoneto, an Indian boy, and Douglas Sipes, a white boy, he asked the defendant if they could get any whisky, and she asked them how much they wanted. He said he wanted to get a pint. That she went and came back with a half gallon of whisky, and said she wanted $12 for it, and he arrested her and took the whisky;

As a witness in her own behalf, Ada Hooks testified that she met Bruce Poolaw and the others at a neighbor’s house, and the Indian boy said, “We want to buy some whisky; I am sick, I need some”; that she told him that she did not have any to sell, and they followed her into the house, and she said, “My husband has some, and I will give you a drink if you have to have it,” and she picked the jar up. and set it on the table, and Poolaw took his pistol out, and told her to come on; that she did not offer to sell the whis-ky; and that it was her husband’s whisky.

Our examination of the evidence, including the admissions of the defendant, leaves no doubt in our minds as to the sufficiency of the evidence to support the verdict.

Finding no error in the record, the judgment appealed from is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    W. F. HERRON v. STATE.
    No. A-6184.
    Opinion Filed March 20, 1928.
    (265 Pac. 147.)
    Eaton & Cavanaugh, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, W. F. Herron, was sentenced to serve a term of 6 months in the county jail and to pay a fine of $500 for the unlawful possession of intoxicating liquor. To reverse the judgment.he appeals.

The evidence shows that on the day alleged, under authority of a search warrant, four officers visited defendant’s home, a little south and east of Kusa, and searched the house and premises.

When the case was called for trial, the defendant objected to the introduction of any testimony being given by the officers whose names are indorsed on the information, for the reason that the search and seizure was made by these officers under a void search warrant, issued upon an affidavit which was legally insufficient. In support of the motion the affidavit and search warrant were offered in evidence, which motion was overruled.

M. L. Lairmore, deputy sheriff, testified that he laid the search warrant on the table, and the defendant said, “You have me, you don’t need it.”.

E. T. Mitchell, deputy sheriff, testified that when they entered the house Lairmore said, “I have a search warrant,” and the defendant said, “You don’t need it for me.”

The court in its instructions to the jury stated that the search warrant introduced in evidence in this case, being based upon an insufficient affidavit, is void, and that the search and seizure made thereunder would be in violation of the constitutional and statutory rights of the defendant, but further instructed the jury that, if the officers, without using any coercion upon the defendant, were invited into his home by the defendant voluntarily and authorized to make a search, a search and seizure made under and by virtue of such invitation would be legal and the evidence procured thereby would be admissible.

Upon the undisputed facts it appears that the search and seizure in this case was an unlawful trespass, and the statement by the defendant as testified to by the officers did not constitute a waiver of his constitutional and statutory rights.

In the case of Smith v. State, 34 Okla. Cr. 434, 246 P. 1109, it is said:

“There is much conflict of authority as to what constitutes a waiver of defendant’s constitutional rights in search and seizure cases. We think the rule supported by reason and the weight of authority requires the state, where objection is properly made, to show that defendant waived his constitutional rights by freely and voluntarily consenting to the search.”

And in the Smith Case it is held:

“A statement by defendant when officers showed her a liquor search warrant to ‘go ahead and search’ did not waive defendant’s constitutional rights, where the search warrant was unlawfully issued, since it is not to be construed as an invitation to search the premises, but rather as a statement of the intention not to resist search under the warrant.”

On the authority of the Smith 'Case and the cases cited, the judgment of the lower court is reversed and the cause remanded, with directions to dismiss.

EDWAEDS and DAVENPOET, JJ., concur.


author: DAVENPORT, J.

text:
    Ex parte F. E. WARREN.
    No. A-6770.
    Opiniin Filed March 24, 1928.
    (265 Pac. 656.)
    See, also, 25 Okla. Cr. 358, 220 P. 1118.
    Leverett Edwards, for petitioner.

      Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for respondent.
   DAVENPORT, J.

This is an original application to this court for a writ of habeas corpus, in which the petitioner, F. E. (Ed) Warren, alleges that he' is restrained of his liberty, and that he is unlawfully imprisoned in the penitentiary by John Q. Newell, warden; that he was committed to the state institution by the district court of Le-Flore county in 1920 to serve a term of life imprisonment for murder. Petitioner says:

“That this sentence was iby the Governor of the state, on or about ’September 14-, 1923, commuted to a term of six years. The commutation referred to was in writing, unconditional in form, to take effect immediately, and was signed by J. C. Walton, Governor; attested by R. A. Sneed, secretary of state, sealed with the seal of the state of Oklahoma, and duly and regularly accepted by Ed Warren; the same being regularly delivered to him for his benefit and to others in his behalf. Petitioner says that Ed Warren has served more than his full term of six years and is entitled to his liberty. Petitioner further says that said unlawful restraint is to his best knowledge and belief based upon a certain communication purported to be an order and revocation issued on or about the 10th day of November, 1923, signed by one J. C. Walton, Governor, but petitioner states that said order of revocation, is now and has been at all times void and of no effect; that there is no authority of law for such communication; that the said Walton had no jurisdiction, no power, and no authority to make the same, or give it any force or effect, but it is absolutely void and should be canceled and held for naught.”

Upon the allegations of the petitioner a writ was duly and regularly issued and served upon the warden of the penitentiary, and a return was duly made by the warden, as respondent, to the petitioner’s allegations, the response being:

“First. Respondent denies each and every material allegation of the petition, and demands strict proof thereof.
“Second. For further return on the said writ respondent states the facts to be as he understands them, as follows:
“That on or about the 4th day of September, 1920, the said petitioner, Ed Warren, was received into the state penitentiary of Oklahoma, on a commitment for the crime of murder, from the district court of LeFlore county, for a term of life imprisonment, and that your respondent is now holding the said petitioner under the said commitment. That in the month of December, 1922, this petitioner applied to Hon. J. B. A. Robertson, then Governor of the state of Oklahoma, for executive clemency, which said petition, was acted upon by Hon. J. C. Walton, Governor of the state of Oklahoma, in the month of September, 1923, by issuing a commutation of the sentence of this petitioner from life imprisonment in the penitentiary to a term of 6 years. Said commutation is hereto attached and made a part of this return, marked Exhibit A. That thereafter, on the 10th day of October, 1923, and before the taking effect of the expiration of the term of imprisonment'of six years as stated in the purported commutation of sentence, the said J. C. Walton, then the duly qualified and acting Governor of the state .of Oklahoma, revoked said commutation of sentence and recalled and canceled the same, and filed said revocation of commutation in the office Of the secretary of state, which said revocation of commutation was attested by R. A. Sneed, secretary of state, under the great seal of the state of Oklahoma, on the 10th day of October, 1923, which said commutation of sentence is attached hereto marked Exhibit B and made a part hereof. And the said original with the cancellation of the same, indorsed on the face thereof, are hereto attached marked Exhibits C and D.
“Further, respondent says that the said purported commutation of sentence was procured by fraud on the part of the petitioner and others in his behalf, and that the same was revoked by the said J. C. Walton, Governor of the state of Oklahoma, on the 10th day of October, 1923, before the date said commutation would take effect and before this petitioner acquired any rights thereunder, for the reason that the same was procured by fraud on the part of the said petitioner and others in his behalf.

On November 30, 1927, the petitioner filed a demurrer to the return of the respondent to the writ of habeas corpus, which demurrer, omitting the caption is as follows:

“Comes now Ed Warren and demurs to the return or answer of the warden made on the writ in this case, and for cause of said demurrer says that the said return does not state facts sufficient to authorize said warden to exercise any restraint over the person of this petitioner.”

That part of section 10, art. 6, of the Constitution, that we deem necessary to quote, is as follows:

“The Governor shall have power to grant, after conviction, reprieves, commutations, paroles, and pardons for all offenses, except cases of impeachment, upon such conditions and with such restrictions and limitations as he may deem proper, subject to such regulations as may be prescribed by law.”

It appears from the record in this case that the Governor, acting within his authority, commuted the sentence of the petitioner from life imprisonment to six years; that at the time of the commutation the prisoner was serving a life sentence; that the commutation was duly signed 'by the Governor, attested by the secretary of state, with seal attached, and delivered to a representative of the petitioner, who in turn delivered it to the petitioner, and petitioner filed the same with the warden of the penitentiary; and the warden entered the same of record showing the sentence of the petitioner had been commuted from life imprisonment to six years. After the commutation had been accepted by the petitioner and filed with the warden and his record made showing the commutation of sentence to six years and the prisoner had served several days, the Governor issued an order attempting to cancel and revoke the ■commutation.

The question to be determined is, Has the Governor of this state the power to revoke a commutation or pardon ■after it has been duly accepted and delivered to the petitioner, or his representative, and after the record in the penitentiary show the commutation or pardon?

In the case of Jones v. Sneed, 101 Okla. 295, 225 P. 700, the court uses this language:

“Syl. 3. A pardon or commutation is a mere matter of grace, and until this act of clemency is fully performed, neither benefit nor rights can be claimed under it. Simple intention on the part of the executive to bestow a pardon confers no right, and is perfectly nugatory until the intention may be said to be fully completed. This intention may be said to be fully completed when the pardon is signed by the executive, properly attested, authenticated by the seal of the state, and delivered, either to the person who is the subject of the favor or to some one acting for him or on his behalf. Whenever these things are done, the grantee or donee of the favor becomes entitled as a matter of right to all the benefits and immunities it confers, and of which he cannot be deprived by revocation or recall.”

In Ex parte Reno, 66 Mo. 266, 27 Am. Rep. 337, Reno was granted commutation of sentence which was shown to have been received at the penitentiary and a record entry made of it. The Governor granting the commutation retired from office, and the incoming Governor issued a general order attempting to revoke all pardons or commutations signed by his- predecessor and not delivered. The ■court in its first syllabus says:

“A pardon or commutation of sentence takes effect, and the recipient of executive clemency cannot be deprived of its benefits and immunities by a subsequent revocation, when it has been signed by the executive, properly attested, authenticated by the seal of the state, and delivered either to the recipient, or to some one acting for him, or on his behalf.”

In the case at bar it is apparent that the petitioner when he received the commutation did all that was possible for him. to do by filing the same with the warden of the penitentiary, having the record show that his sentence had been changed from life imprisonment to six years, and went on his way to finish up the term of his imprisonment. He had been in prison since 1920, something like three years. There was nothing further the petitioner could do but continue his service until the expiration of the time under the new sentence that he had received iby the act of the Governor, and from the time of receiving of the commutation he was entitled to the benefits of the prison rules as applicable to the new sentence.

In the case of State ex rel. Murphy v. Wolfer, Warden of the Prison, 127 Minn. 102, 148 N. W. 896, L. R. A. 1915B, 95, the court says:

“It is well settled that a commutation of a sentence is a substitution of a less for a greater punishment. After commutation the commuted sentence is the only one in existence, and the only one to be considered. After commutation, the sentence has the same legal effect, and the status of the prisoner is the same, as though the sentence had originally been for the commuted term.” Johnson v. State, 183 Ala. 79, 63 So. 123.

In re Hall, 34 Neb. 206, 51 N. W. 750:

“It is well settled that a full, unconditional pardon takes effect upon delivery either to the person who is the subject of the favor, or to some one acting for him or in his behalf.”

After delivery the pardon cannot be revoked except for fraud. Ex parte Sam Stewart, 11 Okla. Cr. 400, 146 P. 922; Ex parte Crump, 10 Okla. Cr. 133, 135 P. 428, 47 L. R. A. (N. S.) 1036; Ex parte Nelson Hawkins, 10 Okla. Cr. 396, 136 P. 991.

The order of the Governor ordering the commutation canceled and set aside was made without the petitioner's knowledge or consent, and, so far as shown by the record, without any information on behalf of the Governor excepting a newspaper report. In this case the respondent sets up and attempts to justify his holding of the petitioner in custody on the ground that the commutation was secured by fraud and that the Governor had the authority to revoke the same.

The record in the pardon and parole office shows many recommendations for executive clemency for the petitioner and individual letters. There are also a number of protests, but from a careful examination of all the testimony in the case, the recommendations and requests on file for clemency, and of the protests, there is not sufficient evidence to show that when the Governor signed the commutation and delivered the same that fraud was practiced upon him. Nor is there any evidence in the record sufficient to show that when the Governor attempted to revoke the commutation he had any evidence before him showing fraud had been practiced in securing commutation. The evidence shows that the petitioner had nothing to do with the preparing of the application or the securing of indorsements. Petitioner knew there Was a sentiment against him securing executive clemency in the county where the alleged offense took place. The respondent offered some testimony by Mr. Babb, who had assisted in the prosecution when the prisoner was tried, but, when thoroughly analyzed, it shows that Mr. Babb, as prosecutor, and some other citizens of LeFlore county, had protested the granting of executive clemency.

The Attorney General in his brief has argued at length the question of fraud, and the right of the Governor to revoke the commutation where fraud was practiced upon the Governor. This is unquestionably the law, and if the facts showed such a contention as presented by the brief of the Attorney General, then the petitioner in this case would stand before this court on a right claimed by him that had no foundation.

After a careful examination of the authorities cited by the Attorney General, we do not think they apply to the facts in this case. The demurrer of the petitioner to the response, we think, should be overruled, it being a general demurrer, the respondent pleading a revocation of the commutation upon which the petitioner relies for relief.

Having reached the conclusion that in the-case before us there is not sufficient evidence to show fraud in procur-' ing the commutation, the action of the Governor in revoking the commutation is without authority of law and void. The prisoner having served out the full term to which his sentence was commuted, his further imprisonment is illegal and he is entitled to be discharged from the imprisonment of which he complains.

Writ granted.

DOYLE, P. J., concurs.

EDWARDS, J., not participating.


text:
    R. L. M. BLAKEMORE v. STATE.
    No. A-6420.
    Opinion Filed March 24, 1928.
    (265 Pac. 152.)
    L. A. Wallace and Floyd Wheeler, for plaintiff in error: >

      Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Ok-mulgee county on a charge of perjury and was sentenced to serve a term of 8 years in the state penitentiary.

The record discloses that defendant was called as a witness for the state in a certain prosecution for petit larceny before a justice of the peace. On being called by the state, he testified that certain automobile casings, the alleged subject of larceny, were taken from an automobile in his possession without his knowledge or consent. He was later called as a witness for the defendant and then testified that the casings were taken with his knowledge and consent, and that his former testimony was false. The information charges that the first testimony given by him is false. It is first contended that the evidence is not sufficient to sustain the verdict and judgment. An examination of the record discloses that there is no evidence of the falsity of the defendant’s testimony other than his own statement. The state relies on the fact that the defendant testified as alleged and then admitted that this testimony was false. The defendant in the prosecution before the justice of the peace was not called. This is not sufficient. This court has several times held that an extrajudicial confession is not alone sufficient to establish the corpus delicti. Shires v. State, 2 Okla. Cr. 89, 99 P. 1100; Frazier v. United States, 2 Okla. Cr. 657, 103 P. 373; Choate v. State, 12 Okla. Cr. 560, 160 P. 34, L. R. A. 1917A, 1287; Henry v. State, 14 Okla. Cr. 189, 169 P. 658; Francis v. State, 16 Okla. Cr. 543, 185 P. 126; Brown v. State, 18 Okla. Cr. 509, 196 P. 967. See, also, Underhill’s Crim. Ev. §§ 240, 241.

The proof on the part of the state is proof only that defendant testified to one state of facts and then testified to a different state of facts. The rule is well established that a conviction for perjury cannot be had on the contradictory sworn statements of a defendant. The state must allege which of the two statements is false, and then must prove its falsity by sufficient evidence to satisfy the quantitative rule.

In the case of Schwartz v. Com., 27 Grat. (Va.) 1025, 21 Am. Rep. 365, the court held:

On a trial for perjury, evidence simply that the defendant had at one time sworn to one state of facts, and after-wards changed his testimony, and admitted that he had sworn falsely, testified in direct contradiction of his first statement, is not sufficient to justify his conviction. The prosecutor must prove which of the two statements is false, and must corroborate the true statement of the prisoner by independent evidence; i. e., by evidence other than his own statements and declarations.

This court in the case of Shoemaker v. State, 29 Okla. Cr. 184, 233 P. 489, in considering a somewhat similar state of facts held:

“A conviction for perjury cannot be had upon proof alone that accused made contradictory statements under oath. The state must prove by extrinsic evidence that the statement upon which the prosecution is founded is false.”

Numerous cases are cited in support of the rule there announced. See People v. McClintic, 193 Mich. 589, 160 N. W. 461, L. R. A. 1917C, 52; State v. Burns, 120 S. C. 523, 113 S. E. 351, 25 A. L. R. 414; Billingsley v. State, 49 Tex. Cr. R. 620, 95 S. W. 520, 13 Ann. Cas. 730; Paytes v. State, 137 Tenn. 129, 191 S. W. 975, L. R. A. 1917C, 954; Smith v. Com., 180 Ky. 240, 202 S. W. 635, L. R. A. 1918E, 927.

'Since there is insufficient evidence to satisfy the requirements of the law, the conviction cannot stand.

The case is reversed and. remanded.

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


text:
    VICTOR FRASIER v. STATE.
    No. A-6047.
    Opinion Filed March 24, 1928.
    ((265 Pac. 149.)
    I. H. Lookabaugh, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Blaine county on a charge of selling whisky, and was sentenced to serve 60 days in the county jail and to pay a fine of $100.

The only assignment of error argued in the brief is that the evidence is insufficient to sustain the judgment. Briefly stated, the evidence shows the following state of facts: At the time charged, a dance was held at the home of one Rehlen. The undersheriff drove to the place, and remained seated in his car. Soon defendant and two young men, Payne and Foster, came out near the car and stopped. Defendant reached under a sweater he was wearing, and drew out a pint bottle, delivered it to Payne, and received in exchange some money. About this time the deputy sheriff approached and informed the parties he would take charge of that. Payne, who had received the bottle from defendant, broke it on the wagon wheel by which they were standing, but the deputy sheriff recovered a fragment of the bottle containing a small quantity of liquid, which he testified was whisky. Payne and Foster were unwilling witnesses, but testified substantially as did the deputy sheriff that they had purchased a bottle of something to drink from defendant, and gave him $2.25 for it, when the deputy sheriff approached. Defendant did not take the stand, and offered no testimony. There is nothing in the contention that the evidence is insufficient. The jury could have arrived at no other verdict than of defendant’s guilt.

The case is affirmed.

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


text:
    Ex parte CLAUD ANDREWS.
    No. A-6938.
    Opinion Filed March 24, 1928.
    (265 Pac. 144.)
    E. W. Schenk and Sigler & Jackson, for petitioner.

      Edwin Dabney, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for respondent.
   DOYLE, P. J.

Claud Andrews filed in this court on March 16, 1928, a petition wherein he alleges that he is illegally restrained of his liberty and imprisoned in the county jail of Love county by Sam Randolph, sheriff of said county; that he so held under a commitment issued by T. R. Thompson, justice of the peace of Love county, at Marietta, based upon a preliminary examination held by him, and upon a complaint wherein petitioner and others are jointly charged with the murder of S. C. Long, sheriff of Love county, in said county on the 25th day of January, 1928, and that he is held under another commitment issued by said justice of the peace upon a preliminary examination held by him upon a complaint wherein petitioner and others are charged with robbing with firearms the Love County National Bank of Marietta on the 25th day of January, 1928.

Petitioner avers that he is not guilty of the crime of murder as charged, and that the proof of his guilt of the crime of murder is not evident, nor the presumption thereof great, and further avers that he is not guilty of the crime of robbery with firearms, as charged, and that the proof of his guilt of said crime is not evident, nor the presumption thereof great. Attached to said petition is a transcript of the testimony taken upon the preliminary examination.

It is also averred that he filed an application for bail before Asa E. Walden, district judge of Love county district court, and that said district judge denied bail. It is also averred that the only testimony against him is the purported confession or statement made by him to the officials investigating the above causes. It also appears that infor-mations have been filed in said causes in the district court of Love county.

Under section 8, art. 2, of the Constitution, one accused of a capital offense may be admitted to bail after the information has been filed, prior to trial, if the proof of guilt is not evident, nor the presumption thereof great. Lacy, Ex parte, 20 Okla. Cr. 440, 203 P. 1050.

The court should, however,' proceed with extreme caution in exercising the power to admit to bail in this class of offenses. The filing of an information charging a capital offense, where the defendant has not been admitted to bail, is prima facie evidence that the proof of guilt is evident and the presumption thereof great.

The settled rule of this court is that, upon an application for bail by writ of habeas corpus, the burden is upon the petitioner to show facts sufficient to entitle him to bail, and if, upon a consideration of all the evidence introduced on the application for bail, the court is of the opinion that it is insufficient to create a reasonable doubt of the petitioner’s guilt of a capital offense, bail will be refused. In re Bean, 17 Okla. Cr. 576, 190 P. 1091; Ex parte Sipe, 22 Okla. Cr. 303, 210 P. 1039.

It would serve no useful purpose to review the testimony, and, in view of a trial before a jury, to do so would possibly be prejudicial to petitioner. We deem it sufficient to say that upon the record before us the petitioner is not entitled to be admitted to bail as a matter of legal right. We do not know what may be shown upon the final trial.

The writ is denied, and bail refused.

EDWARDS and DAVENPORT, JJ., concur.


text:
    DORSEY PARNELL v. STATE.
    No. A-6301.
    Opinion Filed March 24, 1928.
    (265 Pac. 660.)

      George L. Zink, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Kiowa county on a charge of transporting intoxicating liquor, and was sentenced to pay a fine of $400 and to serve 120 days in the county jail.

It is first contended that the evidence is insufficient to sustained judgment. Briefly stated, the evidence for the state discloses the following state of facts: On the date charged, Jack Ball, a deputy sheriff, was driving on the public highway from the town of Roosevelt toward the city of Hobart. While driving north, he saw two cars on the highway ahead of him, one closely following the other, one a Dodge roadster and the other a Ford touring. They went out of sight over a ridge, and, as the officer came over the hill, he saw the cars stopped side by side. He saw a man take a carton with a gunny sack around it from the Dodge car and put it in the back of the Ford. He recognized the defendant as driver of the Dodge car. Immediately after transferring the package, the two cars started away, the Dodge in the lead. The officer was unable to overtake the Dodge car, but did secure the number from its license plate. He overtook the Ford, and in the back seat of it was a carton wrapped with a gunny sack, with the remains of five jars broken, the sack saturated with whisky, whisky in the bottom of the car and on the running board, and a small quantity in the fragments of the jars. He arrested the occupants of the Ford, and soon after on his return to Roosevelt defendant was apprehended. Defendant admits that he was driving on that road, saw the Ford car, but denies that he conveyed whisky or delivered it to the occupants of the Ford car. Three young men who were in the Ford car testified. Two said in substance: That they were on the highway, as testified to by the officer. They saw some one in a Dodge roadster, and stopped him and asked for a pump. They were not sure it was defendant. He did not deliver anything to them. That about a quarter or half a quarter from where they stopped the Dodge car they found the carton by the side of the road. One of them admitted he had been convicted for transporting this liquor. The third occupant of the Ford car testified in part as the others, but was not sure but what the carton was picked up at the same place where the Dodge stopped. The evidence of these witnesses does not appear to be candid, and must have so impressed the jury.

It is argued that the evidence is insufficient to sustain the judgment. The evidence is conflicting, but, if the testimony of the deputy sheriff is to fee believed, it is sufficient. Where there is evidence from which the jury may reasonably and logically find the guilt of the accused, the weight and credibility of the evidence is for the jury. They see and observe the witnesses on the stand, and are in a position to determine who should be believed. This court will not substitute its judgment for that of the jury in any such case on controverted questions of fact.

Complaint is next made that the court erred in refusing defendant’s request for an instruction on circumstantial evidence. This request is that the state relies in part on cir-eumstantial evidence, then follows the usual language in an instruction on this class of evidence. This is not a case depending on circumstantial evidence, and it is only where the state relies solely on circumstantial evidence that the court is required to give an instruction. There was no error in the court refusing to give the charge requested. No reason to disturb the judgment is apparent.

The case is affirmed.

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


text:
    J. L. (TOOTS) ARMSTRONG v. STATE.
    No. A-6224.
    Opinion Filed March 24, 1928.
    (265 Pac. 663.)
    Bland & Davis and C. F. Gowdy, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, P. J.

The information in this case charged that in Nowata county, on or about the 19th day of April, 1925, J. L. (Toots) Armstrong, Alf Allen, J. A. Allen, and Clarence Allen did commit the crime of stealing chickens as defined in Penal Code 2119, C. S. 1921, in that they did feloniously in the nighttime take, steal, and carry away 36 chickens from the messuage and premises upon which the dwelling house of Samuel T. Michener was situated; said chickens being the personal property of said Michener, and of the value of $31.

Appellant, Armstrong, asked and was granted a severance and upon his separate trial the jury returned a verdict finding him guilty as charged, but failed to agree upon the punishment.

Motion for new trial was duly filed and overruled and by the judgment of the court appellant, Armstrong, was sentenced to imprisonment in the state penitentiary for a term of 18 months. From the judgment he appeals.

It is contended in this court that the- verdict is not sustained by sufficient evidence, and that it is contrary to law, because there was no evidence tending to corroborate the accomplice testimony given by two of the defendants as witnesses for the state.

The undisputed facts as shown by the state’s testimony, which was all the testimony offered in the case, are about as follows:

That on the night of the day alleged, 36 Rhode Island red chickens, the property of Sam Michener, were stolen from the chicken house on his place, about a half mile east of the city of Nowata. The chicken house was locked, but the staples holding the padlock were drawn by the thieves. The next morning the stolen chickens were sold by two of the defendants to a poultry house in Vinita.

The defendant 'Clarence Allen testified that his home was 9 miles east of Nowata; that on Sunday afternoon he was at Toots Armstrong’s place; that Alf Allen and Ike Allen were there and just after dark they all left in a Ford car to go to Nowata; that about a half mile east of Nowata and about 300 yards from the Michener place, Armstrong left the car; that they went on into town and had lunch at the Busy Bee Cafe; that witness bought some chili to take to Armstrong, and they returned to■ where they left Armstrong, and he gave him the chili; that after eating the chili, Alf Allen, Armstrong, and witness took some sacks out of the car, and, leaving Ike Allen in the car, they went to the chicken house in Mr. Michener’s yard and got about 30 chickens; that, returning to the car with the chickens, they drove to Armstrong’s home and after waiting there about an hour all four started to Vinita in the Ford car with the chickens; that just before they got to Vinita, Ike Allen and Toots Armstrong got out of the car, and, with Alf Allen, he drove into Vinita and sold the chickens to a poultry house and received a check for $32.50, payable to F. H. Taylor; then witness drove to a filling station and had oil and gasoline put in the car and there cashed the check.

The testimony of the defendant J. A. (Isaac) Allen was substantially the same as that given by Clarence Allen.

J. A. Thomas testified that he lives west of Vinita 3y2 miles; that he was driving a horse and buggy, going west, when a Ford roadster passed him, loaded with chickens on each side; that a few days before some men in a car killed a turkey of his, and put it in their car, and, as it seemed to be the same car, he followed. At Big Cabin Creek bridge two of the men got out; one had a gunny sack, and went over the fence into the brush; he went on to Vinita and found where the chickens were sold and where they cashed the check, then notified the sheriff, and stayed there until the sheriff went and brought one of the men' back; that the defendant on trial, Armstrong, was the man that got out of the car with the gunny sack.

Harry Campbell, sheriff of Craig county, testified that on the 19th day of April he went out on Elm creek as directed by the witness Thomas and found the defendant Alf Allen in the brush near the road and nearby was a Ford roadster; that about a quarter of a mile east he picked up the defendant Toots Armstrong, and with him Isaac Allen and took them to Vinita.

The appellant did not testify.

It is true the law forbids the conviction of one accused of crime upon the uncorroborated evidence of an accomplice and the corroboration, is not sufficient if it merely shows the commission of the offense or the circumstances thereof. Section 2701, C. O. S. 1921. Here, however, the evidence shows that these defendants were together in a car, carrying the stolen chickens. The undisputed circumstances and facts in evidence tend strongly to connect appellant with the commission of the offense.

The law prescribes no standard for the strength of the corroborating evidence and the weight of such corroborating evidence is a matter for the jury.

After consideration of the evidence in this case, we are clearly of the opinion that the same is legally sufficient to support the verdict.

It is also insisted that the court erred in refusing certain instructions and in giving certain instructions.

After an examination of the instructions given by the court and those refused, we are convinced that the objections argued in the brief are without merit. The instructions given fully and fairly covered the law of the case and it is the settled rule in this jurisdiction that it is sufficient if the instructions taken as a whole substantially presented the law of the case.

Upon a consideration of the whole case, no reversible error is found, and the judgment of the court below is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    JOHN DOBBS v. STATE.
    No. A-6264.
    Opinion Filed March 26, 1928.
    (264 Pac. 661.)

      I. C. Sprague, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The information in this case charged John Dobbs and Lev Dobbs with the murder of one Make Brodie, alleged to have been committed in McCur-tain county on or about the 25th day of July, 1925, by cutting and stabbing him with a knife. There was a severance of trial asked for and granted.

On his trial appellant, John Dobbs, was convicted of murder and his punishment fixed by the jury at life imprisonment. A motion for new trial was duly filed and overruled, and judgment rendered in accordance with the verdict. From the judgment he appeals.

It is contended in this court that the evidence did not warrant the verdict, and that numerous errors were committed upon the trial, which entitled him to a reversal of the judgment.

The following brief statement of the facts will be sufficient to make clear the contentions made:

Appellant, 20 years of age, lived with his father and codefendant six or seven miles north of the town of Valliant; the deceased, Make Brodie, aged about 50 years, lived in the same neighborhood. He left his home on the morning of the 25th day of July in a wagon, accompanied by his son, 9 years old, to go to Valliant. When they passed the home of the defendants, Lev Dcvbbs was standing on the porch, and appellant was driving up some horses; overtaking George Collins, the deceased invited him to ride. Shortly after, appellant and his father passed them on the road; they were riding horseback. Brazil Burton, 14 years old, was riding oh the same horse with appellant. After passing the wagon of the deceased, the defendant stopped by the side of the road, and appellant started to fix the saddle girth on his father’s horse. When the deceased came by, appellant spoke to him and an altercation started.

Jim Brodie, son of the deceased, 9 years old testified: That when the wagon stopped Mr. Collins got out. John Dobbs came up to the wagon and said he heard my father had been telling around that he whipped him at the schoolhouse and his father would not own up to it. Then John Dobbs picked up a rock and threw it at his father, and his father got out of the wagon, and John Dobbs cut him with a knife.

George Collins testified: That when the wagon was passing the defendants John Dobbs motioned to witness to get out, and he jumped out. Then Lev Dobbs said to his son John, “Now, John, stop him, stop him, get him out;” and John Dobbs hollered “Hey, Brodie, hold up there, stop, 1 heard that you were going to whip me; now is the time to do it.” Mr. Brodie said, “I never said I was going to whip you, and I don’t want any trouble.” Then witness crossed the fence and turned and saw John Dobbs “make a throw,” and witness went on.

The evidence further shows that the deceased had a wound between the second and the third rib and another wound two inches to the left of that, between the third and fourth rib, and that his death occurred in a few minutes after he fell.

Jack Harbin testified for the defense, and the substance of his testimony was to the effect; That he was driving to Valliant, and saw Lev and John Dobbs pass a wagon, and after going about a quarter of a mile they stopped by the roadside under the shade of a tree. That in the wagon were Make Brodie, his little boy, and George Collins. That when the wagon stopped George Collins got out. That witness was then 150 yards behind the wagon, and saw John Dobbs pick up something about the size of his fist, and he started to throw. Then Lev Dobbs put his hand up, and John Dobbs dropped the rock. Then John picked up the rock and threw it at Mr. Brodie, and Mr. Brodie got out of the wagon, and they began to fight. Witness was then about 60 yards behind the wagon. That John Dobbs was backing up, and Mr. Brodie was following. Then Mr. Brodie threw up his arms, staggered, and fell. John .Dobbs turned away, and got on his horse, and witness came up and carried Mr. Brodie under the shade of the tree. That he did not see any knife in Mr. Brodie’s hand, and did not see any knife on the ground.

Brazil Burton testified: That after they passed Mr. Brodie’s wagon his uncle Lev Dobbs stopped to fix his saddle girth. That while there Mr. Brodie’s wagon passed them. That John Dobbs said, “I want to see that fellow;” and when the wagon stopped George Collins got out, and John Dobbs walked up to the wagon and said to Mr. Brodie, “I want to see you a minute.” That he saw John throw something at the wagon before Mr. Brodie got out.

Lev Dobibs testified: That he and his son John started on horseback to Valliant, and they passed Mr. Brodie’s wagon, then stopped in the shade of a tree to fix his saddle girth. When the wagon came up, George Collins jumped out and ran past him and said, “I don’t believe I would have any trouble with him.” Then Mr. Brodie threw his line down and said, “Now is as good a time as I will ever get.” That when Mr. Brodie started to get out of the wagon, his son John picked up a rock and said to Mr. Brodie, “Don’t get out of that wagon;” and witness told his son to drop that rock, and said to Mr. Brodie, “Go on, Mr. Brodie, go on.” That Mr. Brodie jumped out of the wagon and advanced on his son with a knife. That his son was backing up and fighting all the time. Then he saw Mr. Brodie fall. That his son John had a knife in his hand.

As a witness in his own behalf, appellant testified: That he had a difficulty with Mr. Brodie at the Lone Star schoolhouse, and later at the schoolhouse Mr. Brodie called him a liar and wanted to fight, and he told Mr. Brodie that he did not want to have to have any trouble with him, that he was not able to fight him, and Mr. Brodie said, “You are going to quit talking about me, if I hear any more of this, I will cut your damn head off.” That he started to town that morning with his father. They passed Mr. Brodie’s wagon and stopped in the shade of a tree to fix a saddle girth, when Mr. Brodie’s wagon came by. George Collins jumped out and walked towards them and said, “I would not have any trouble with him;” then went on over the fence. That Mr. Brodie appeared to be very angry, and said, “Now is as good a time as I will ever have to get that damn son of a bitch.” Then he picked up a rock and told Mr. Brodie not to get out of the wagon, and his father walked between him and the wagon and told him to throw down the rock, and said to Mr. Brodie, “Dont get out of the wagon.” That Mr. Brodie started to jump out, and he again.picked up the rock, then threw it, and Mr. Brodie struck at him with a knife and missed him, then struck him again, and the knife cut through his clothes and cut him on the shoulder. That he believed he was going to take his life, and he cut him as he went backwards from him. Then Mr. Brodie staggered and fell. ■

L. S. Cotteral testified that he assisted in putting the body of the deceased in the car, and saw eight or ten feet to the north of where the body was lying the handle of a broken knife.

In rebuttal, J. R. Jones, sheriff testified that he arrested appellant the day of the killing; that appellant took off his shirt, and he examined him; that he had a scratched place on his arm that looked like where a pin had scratched him.

Against the objections of counsel for. appellant, the trial court permitted the state to introduce in rebuttal the shirt worn by the deceased at the time he was cut and stabbed by appellant' to show that the cut marks corresponded with the location of the wounds on the body of the deceased.

Bill Fowler testified that he helped to take off the shirt worn by the deceased at the time he was Stabbed, and identified the shirt, and the same was produced before the jury for their inspection. Counsel for appellant objected, for the reason that the name of this witness was not endorsed on the information, and for the further reason that the state had closed its case and rested.

It is first contended that the trial court erred in admitting this evidence, and numerous authorities are cited to support this contention. Whatever the rule may be in other jurisdictions, it is settled in this state that on the trial for murder, where the plea is self-defense, clothing worn by decedent at the time of the homicide is admissible in evidence for the purpose of showing the location of the wounds. Saunders v. State, 4 Okla. Cr. 264, 111 P. 965, Ann. Cas. 1912B, 766, note; Morris v. State, 6 Okla. Cr. 29, 115 P. 1030; Brantley v. State, 15 Okla. Cr. 6, 175 P. 51; Jones v. State, 17 Okla. Cr. 561, 190 P. 887; Burton v. State, 16 Okla. Cr. 602, 185 P. 842.

This clothing was properly introduced in rebuttal, in that it clearly tended to rebut any inference arising from the defendant’s own testimony that he acted in self-defense.

The state is not required to endorse the names of witnesses whose testimony is made permissible or necessary in rebuttal by reason of the evidence of the defendant. Bigfeather v. State, 7 Okla. Cr. 364, 123 P. 1026.

It is next contended that the trial court erred in refusing to permit appellant to prove that at the Lone Star schoólhouse in June, before this tragedy in July, .some relatives of the deceased made threats and demonstrations against appellant. The question argued is not presented by the record, and no offer as to what the witness would testify to was made.

The only other question argued by counsel is the sufficiency of the evidence to sustain the verdict of the jury. We have read the record with care, and we conclude that, when the jury had proceeded so far as to find the witnesses for the state worthy of belief, any other verdict other than the one returned would have been a reproach upon the administration of justice in the state.

Finding no prejudicial error in the record, the judgment of the trial court is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


author: DAVENPOET, J.

text:
    ARNOLD WILLINGHAM v. STATE.
    No. A-6046.
    Opinion Filed March 28, 1928.
    (265 Pac. 772.)

      Grigsby v. Grigsby, for plaintiff in error.
    George F. Short, Atty. Gen., for the State.
   DAVENPOET, J.

The plaintiff in error, hereinafter called the defendant, was convicted, and in accordance with the verdict of the jury was sentenced to pay a fine of $50, and to be confined in the county jail for 30 days, on an information charging that the defendant unlawfully and willfully transported and conveyed intoxicating liquor, to wit, about two pints of whisky containing more than one-half of 1 per cent, of alcohol, measured by volume, capable of being used as a beverage, from a point unknown to affiant to a point on the public highway section line north of the town of Noble, in Cleveland county, Okla.

The defendant has assigned seven errors alleged to have been committed by the court in the trial of the case. It appears from the evidence that the defendant and some other parties were found by the sheriff and a deputy, on the public highway, and that the defendant showed evidence of intoxication; that on the seat of the car in which the defendant and his companions were in control was a pint bottle of whisky. After this whisky had been recovered by the sheriff they looked into the back part of the car and found some more whisky, or some kind of compound. They arrested the defendant and took him to town. The testimony in behalf of the defendant was that while he stopped on the highway to fix a tire on the car a man came along and stopped, and they bought the whisky or compound from the man who stopped, and they did not transport it any distance. This, in substance, is the testimony.

It is urged by the defendant that his motion for a new trial should have been sustained, and that the court committed errors in refusing to give certain instructions requested by the defendant, and refusing to sustain the defendant’s motion to suppress the evidence, and in overruling defendant’s objection to the introduction of certain evidence, and in overruling defendant’s motion for an instructed verdict of not guilty.

The-only conflict in the evidence of the state and defendant is the conflict as to whether or not the defendant had transported the liquors found in his possession. After hearing the testimony of the witnesses and instructions of the court, the jury found the defendant guilty of transporting liquors. Where there is any credible evidence to warrant a jury in finding a verdict of guilty, even though the evidence is conflicting, this court will not disturb the verdict. Finding no prejudicial errors in the record affecting the substantial rights of the defendant, the judgment is affirmed.

DOYLE, P. J., concurs.

EDWARDS, J., not participating.


text:
    W. G. DOBBS v. STATE.
    No. A-6169.
    Opinion Filed March 28, 1928.
    (265 Pac. 658.)

      A. L. Herr, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and ¡Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was by information in the county court of Grady county charged with the offense of willfully and unlawfully having in his possession intoxicating liquor, to wit, 8% gallons of whisky, with the unlawful and willful intent on the part of him, the said Dobbs, to barter, sell, and otherwise dispose of said liquor to other persons.

Defendant waived a jury and was tried by the court, convicted, and in accordance wih the conviction was sentenced to pay a fine of $350 and be confined in the county jail of Grady county for a period of 60 days; and that he be further confined in the said jail of Grady county until the fine and costs were paid. To the judgment and sentence the defendant duly excepted, and the case is here on appeal.

When the case was called for trial the defendant requested the court to allow him to take testimony as to the validity of the affidavits upon which the search warrant was issued, which request was granted. The testimony on behalf of the state is, in substance, as follows:' Clint Munkus stated that he had lived in Chickasha for more than two years; that he was a deputy sheriff on the 18th day of December, 1925; that on said date he went down to Rush Springs; that he saw the defendant, W. G. Dob'bs; that he was at defendant’s residence, and that he went on the inside of the residence; that he had a search warrant, and identified the search warrant; that the search warrant was delivered to him by Judge Moore; when the affidavit for the search warrant was offered as evidence, the defendant objected on the ground that the affidavit for the search warrant was wholly insufficient to authorize the issuance of the search warrant; that it stated no facts showing probable cause for believing intoxicating liquors were stored in or about defendant’s residence, but stated mere conclusions, which objections were overruled and defendant duly excepted. Witness further stated;

“That I walked in and spoke and asked if he was Mr. Dobbs, and he said ‘Yes,’ and I told him who I was, and he said he knew me, and I said I had a search warrant for this place and started to take the search warrant out of my pocket, and he said, ‘Go ahead, I know you are going to search the place anyway.’ I told him I just wanted him to know I had the search warrant, and he said, ‘Go ahead and search.’ We found 8y2 gallons of whisky. [The statement of the witness was objected to by the defendant and overruled, and exceptions duly saved.] We got 8y2 gallons of whisky under the floor of his house; it seemed to be under what was used as a bedroom; my best recollection is there was three planks cut in two.”

On cross-examination he could not call to memory the lot and block where the defendant was located.

Jim Bond was called as a witness and testified, in substance, to the same facts as Munkus. At the close of the state’s testimony the defendant moved to strike the evidence relating to the finding of the liquor by witness Munkus and Bond; for the reason that the same was found under and by virtue of an insufficient warrant, and for the further reason that there is a total lack of testimony showing that the premises searched were the premises described in the search warrant.

The defendant has assigned six errors alleged to have been committed by the court in the trial of this case. They may be considered together as they all relate to the objections to the testimony introduced on behalf of the state, on the ground that the testimony was unlawfully procured by reason of a search.warrant based on an affidavit, the allegations of which were insufficient to give the court jurisdiction to issue a search warrant, and to the overruling of defendant’s motion for a new trial. The affidavit to obtain a search warrant in this case was made by Clint Munkus, and omitting the caption and indorsement, is as follows:

“That there is now located in the residence and on the premises of W. G. Dobbs, on lots 21 and 22, block 53, at Rush Springs, Grady county, Okla., and that such place is being used as a place of public resort and the storage and manufacture of quantities of malt, vinous, spirituous, and fermented liquors and imitations’ thereof and substitutes therefor, and that said liquors, imitations, and substitutes are kept for an unlawful purpose and to be disposed of in violation of the prohibition laws of the state of Oklahoma.”

It is urged by the defendant that the language in the affidavit is insufficient upon which to base a search warrant. The statements in the affidavit upon which the search warrant is based were positive; whether the witness knew the facts he was testifying to when he made the affidavit is a question that need not be decided by this court. The defendant has cited the case of Hannan v. State, 29 Okla. Cr. 203, 233 P. 249. The affidavit in this, case and the affidavit in the Hannan Case differ materially in their allegations: First, in the name and description of the intoxicating liquor; and third, in describing the place where intoxicating liquors were being kept.

In Smith v. State, 30 Okla. Cr. 134, 235 P. 273, this court held an affidavit sufficient where it was made in positive language as to the alleged violation of the laws. The statements in the affidavit being positive as to the alleged violation, we hold they are sufficient to give the court jurisdiction to issue a search warrant. The defendant’s motion to suppress the evidence was properly overruled by the court. The evidence is sufficient to sustain the judgment and sentence.

From a careful examination of the entire record, we believe that the ends of justice would be properly met by a modification of this sentence from $350 fine and cost and 60 days in jail to a $100 fine and 30 days in jail. The judgment as so modified is affirmed.

DOYLE, P. J., concurs.

EDWARDS, J., not participating.


text:
    WESLEY DAVIS et al. v. STATE.
    No. A-6039.
    Opinion Filed March 28, 1928.
    (265 Pac. 651.)
    Thos. Norman, for plaintiffs in error.
    Edwin Dabney, Atty Gen., for the State.
   DAVENPORT, J.

The plaintiffs in error Wesley Davis and A. A. Davis, hereinafter called the defendants, were convicted, and, in accordance with the verdict of the jury, were each sentenced to pay a fine of $500 and cost, and to be confined in the county jail for six months, on an information charging that they had in their possession certain spirituous liquors, vinous liquors, fermented liquors, and intoxicating liquors, to wit, one pint corn whisky, with the unlawful intent then and there on the part of them, the said Wesley Davis and A. A. Davis, of selling, bartering, giving away, and otherwise furnishing the same. To reverse the judgment defendants appeal and assign as errors certain rulings of the court in admitting incompetent evidence ; the verdict is contrary to law, and is not sustained by the evidence; court erred in overruling defendants’ motion for a new trial.

It appears from the evidence that the defendants lived out a short distance from Ardmore, and that on the evening of the alleged offense Carl Holden and W. C. Keirsey, deputy sheriffs, went to the home of the defendants, and when they drove up to the home there were some cars out in front of the house; the deputy sheriffs stated they came up to about 60 or 75 yards of the house and saw A. A. Davis go south across the prairie to a little creek; that he was gone a short while and came back; the moon was kindly shining; that when they saw A. A. Davis coming back to the car they moved up closer, and when they rushed up to the car the young man broke a pint of whisky on the car; there were other parties at the cars out in front of the house, Dan Nall, Harris Powell, a man by the name of Wells, and Dan Miller. The witness stated that the whisky broken was corn whisky. The witness testified that the defendant Wesley Davis had a pitcher of ice water, and that he went to the car where they claimed the other defendant broke the pint of whisky. This is in substance the testimony on behalf of the state.

Dan Nall and Alec Powell were called as witnesses on behalf of the defendants and testified they were at the home of the defendants the evening the officers came there, and that Dan Miller’s car and the cars in which the witnesses had gone there were stopped in front of the gate; that the defendants were talking, and that one of the witnesses wanted water, and Wesley Davis went in to get some water and came out with some ice water and a glass in his hands, and about that time the officers rushed up with their flash lights and arrested the parties; each of the witnesses testifying they did not see any whisky there that evening, did not hear any bottle broken, nor did they smell any whisky, and that one of the officers told them they were being arrested for loitering. Both defendants took the ■ witness stand in their own behalf and recited the incident óf the different parties coming to their home; each denying that he had any whisky there on that occasion, or knew anything about there being any whisky there; they did not smell any whisky; and defendant A. A. Davis specially denied that he broke a bottle of whisky on the car of Dan Miller. Wesley Davis testified that, when they took the parties in custody and told them they had to come to town with them, he went behind his house and waited until they had left with the parties they had arrested and then went in his house and went to bed, and next morning got up and went into town and made his bond. This in substance is the testimony in behalf of the defendants.

It has been a universal holding of this court that, where there is any credible evidence though conflicting to justify the jury in rendering a verdict of guilty, it would not disturb the verdict; but, where there is no competent evidence to sustain the verdict, the court has repeatedly held that it was error for the court to sustain a verdict and impose a sentence upon the defendants.

The quantity of whisky alleged to have been found in this case is not sufficient to make it prima facie evidence of intent to sell against the defendant A. A. Davis. There is no testimony whatever that Wesley Davis had possession of any whisky, or that he knew the other defendant had possession of any. To justify or sustain a conviction of having possession of intoxicating liquor with intent to violate any provision of the prohibitory liquor law, there must be evidence sufficient, not only to prove possession, but also to prove criminal intent. 'When the verdict is manifestly contrary to the evidence, or a conviction is based on entirely insufficient evidence, the judgment or conviction will be reversed.

After a careful examination of the record, we hold the testimony is insufficient to sustain a conviction. For the errors indicated, the judgment of the lower court is reversed.

DOYLE, P. J., concurs.

EDWARDS, J., not párticipating.


text:
    W. F. LEMMONS v. STATE.
    No. A-6209.
    Opinion Filed March 29, 1928.
    (265 Pac. 652.)

      Warren & Warren, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Appellant, W. F. Lemmons, was tried and convicted of the crime of manslaughter in the first degree for the killing of Flin Harlow, on the 25th day of September, 1925. The jury fixed his punishment at imprisonment in the penitentiary for a term of 10 years. Judgment was rendered in accordance with the verdict, and he appeals.

It appears from the record that no objections were taken on the trial to rulings of the court, no instructions were requested by the defendant, and no exceptions were taken to the instructions given by the court to the jury, but upon the argument of this appeal it was contended that the judgment should be reversed because the evidence was insufficient to sustain the verdict of the jury.

It appears that appellant, aged about 60 years, lived five or six miles north of Hugo, upon a farm; that on the day of the tragedy nine or ten white men and two or three colored men were at the defendant’s place, some were playing cards, and there was some drinking going on; that just before sundown an altercation arose between appellant and the deceased in the house, and in the scuffle appellant pulled his gun, an automatic pistol, and struck the deceased over the head with it.

Henry Black took the pistol from appellant, who then picked up a shotgun and went out the front door, saying that he was going to kill the deceased. A minute or two later the deceased went out through the kitchen door and appellant shot him with the shotgun, the charge passing through his left arm and into his body under the arm, killing him almost instantly, The deceased, a man about 30 years old, was unarmed. There were at least a dozen men present when the fatal shot was fired. Six or seven of the eyewitnesses testified for the state.

A. M. Spear, sheriff, testified that he went out to the place of the killing that night and examined the body and found a deep wound over the left ear and a gunshot wound under the left arm.

For the defense, Jess Spiegel testified that he was appellant’s nephew; that he went to appellant’s house that afternoon and Flin Harlow, the deceased, was with him; that a difficulty arose between appellant and the deceased, and, assisted by Henry Black, witness separated them; that in the scuffle Henry Black took appellant’s pistol from him and dropped it on the floor, then Arthur Hopper picked up the pistol and ran out the door with it; that when appellant got up he asked where the gun was, then went to the foot of the bed, picked up his shotgun and went out the front door, saying: “I am going to kill the son-of-a-bitch.” ' Witness then told the deceased not to go out, that his uncle was going to shoot. The deceased then went to the kitchen door and his uncle told him if he came out he would kill him; that he was holding the deceased, but he pulled loose and went out the kitchen door and was walking towards his uncle when he was shot.

As a witness in his own 'behalf appellant testified that Flin Harlow came into the house and grabbed hold of him and was using awful bad language; that he asked him to turn him loose and go out of the house and he would not do it; that some of those present took the deceased off of him, then he got up and picked up his shotgun and went out and started towards the spring, and the deceased came out through the kitchen door and started to head him off'; that he told him to stop, not to come any closer, and he just kept coming; that he was afraid of him, and, knowing that if he got hold of him he would kill him, he fired the shot, but he did not want to kill him.

His cross-examination showed that he had been convicted of shooting a man in Texas, for which he had served a term in the Texas penitentiary.

Our Penal Code provides that homicide is justifiable when committed by any person in resisting any attempt to murder such person or to commit any felony upon him, or when committed in the lawful defense of such person, when there is a reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and imminent danger of such design being accomplished. Section 1754, C. S. 1921.

In order to justify the assault and to slay an assailant, within the meaning of this section, there must be an apparent design on the part of such assailant to either take the life of the person assaulted or the infliction of some great personal injury, and, in addition thereto, there must be reasonable ground for believing that there is imminent danger of such design being accomplished. The use of a deadly weapon is justifiable for the purpose only of preventing an unlawful and violent attack on one’s person of such a nature as to produce a reasonable expectation or fear of death or great bodily injury about to be inflicted. Lee v. State, 33 Okla. Cr. 370, 244 P. 455.

The bare belief of one assaulted that he is about to suffer death or great personal injury will not, of itself, justify him in taking the life of his adversary. There must exist reasonable ground for such belief at the time of the killing, and the existence of such ground is a question of fact for the jury. Hunt v. State, 29 Okla. Cr. 255, 233 P. 506.

In the case of Rogers v. State, 12 Okla. Cr. 456, 158 P. 637, we said:

“The law places too high an estimate upon human life to justify it being snuffed out by a mere whim of either cowardice or anger. And where there is nothing in the facts to justify the accused in believing, at the time of the homicide, that he was in danger of great bodily harm or his life was in imminent peril, the plea of self-defense is of no avail.”

Appellant, from all the record discloses, had a fair and impartial trial, and we think that he ought to be thankful that the jury dealt so leniently with him.

Finding no error in the record, the judgment appealed from is affirmed.

EDWARDS and DAVENPORT, JJ., concur.