text:
    GERTRUDE SEIVER v. STATE.
    No. A-9069.
    Aug. 21, 1936.
    (60 Pac. [2d] 403.)

      R. L. Busey for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was by information jointly charged with Earnest Baird with transporting intoxicating liquor; the defendant waived a jury; was tried by the court- and found guilty, and sentenced to imprisonment in the county jail for 30 days, and to pay a fine of $50. Motion for new trial was filed, considered, overruled, and the defendant duly excepted.

The testimony on behalf of the state shows that the sheriff, Harve Ball, and a deputy, Bill Gaddy, went to the home of the defendant; failing to find her at home they drove on and along the highway, where they met the defendant and Earnest Baird in a car; they halted them, got out and searched the car; neither of the officers had a warrant to search the car in which the defendant was riding or to arrest either the defendant or Earnest Baird.

In the direct examination a leading question was asked one of the state witnesses, if they had information that the defendant was out there, evidently meaning some point in or near Holdenville, and he answered, “Yes.” The court refused to permit the witness to tell the source of his information. When the officers searched the car, they found a quantity of whisky in the car. They admit they did not see it and did not smell the odor of whisky until they approached the car and opened the door. One of the state witnesses attempts to justify his action by saying he saw a bottle with a small quantity of whisky in it before he opened the door. The surrounding circumstances and the actions of the officers do not justify this statement. If the search of the car in which the defendants were riding was a legal search, then the defendant was properly tried and convicted.

The defendant, in her motion for a new trial and in her assignments of errors, among other errors alleges:

“That the court erred in overruling her motion to strike the evidence of the arresting officer.” And: “That the court erred in allowing incompetent, irrelevant and immaterial evidence to be presented, to which the defendant duly excepted at the time.”

After a careful examination of the record and the testimony contained therein, it is only necessary to consider the two assignment of errors set out herein. The first question to be determined is the question, Was the search of the car in which the defendant was riding a lawful or unlawful search and seizure? Both the officer's admit they went out to the home of the defendant for some purpose not disclosed by the record, and, finding the defendant away from home, they secured in some way information as to where the defendant had probably gone, and proceeded on their way out the road in the direction the information they claimed to have received advised them the defendant might be found. The source of that information is not disclosed, for the reason that the court would not permit the state witness to answer the defendant’s counsel, holding that counsel for the defendant could not go into the question of the source of this information.

It is an unfortunate situation when officers of the law can go out and stop a defendant on the highway, and without any warrant for the arrest of the parties, or to search the car, and then be shielded and protected by the court and not required to tell what their information was, when it was received, or the source of that information. Why did the officers want to find the defendant?

They had no warrant for her arrest or to search the car in which she was riding. The defendant moved to suppress the testimony on the ground that it was illegally and unlawfully secured, and the court overruled her motion. Certainly the laws of this state will not permit officers to go out looking for some one, and when they find them on the highway stop the car in which the defendant was riding and make their search legal.

It is not the province of the officers of the law to violate the law in order to try to secure testimony against a party who they believe are violating the law, and, when an officer does violate the law in order to secure testimony, it is the duty of the court to say in its opinion that, first, let’s have officers who obey and respect the law and perform their duty as provided by law, and, when this has been done, then the officer should receive commendation and approval of the court, but, when the officers fail to do their duty as provided by law, the court should not hesitate to say so, and hold that their action was unlawful and evidence secured by that unlawful act was inadmissible in any trial court.

There being no competent testimony other than the testimony unlawfully secured by the officers without any legal authority to stop and search the car on the highway, the judgment of the trial court is reversed, with directions to discharge the defendant.

EDWARDS, P. J., and DOYLE, J., concur.


source: Caselaw Access Project

author: EDWARDS, P. J. DAVENPORT, J.

license: Public Domain

text:
    JOHN MOORE v. STATE.
    No. A-8511.
    Dec. 14, 1934.
    Rehearing Denied Aug. 21, 1936.
    (61 Pac. [2d] 1134.)
    Anglin' & Stevenson and Wilkinson & Hudson, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., Prank Watson, Co. Atty., and Prank D. Mc-Sherry, for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted of murder in the district court of Pittsburg county and was sentenced to life imprisonment. Defendant was first tried in the early part of 1932, which trial resulted in a disagreement of the jury. He was again tried and the judgment herein appealed from was entered on November 19, 1932. Defendant was granted time to make and serve case-made. He filed notice of appeal and endeavored to procure funds to obtain a transcript of the testimony and the proceedings at the trial. He was not able to do this, and on January 3d filed a poverty affidavit to procure a free, record and filed his application for an extension of time in which to make and serve case-made. Both the application for free record and the application for extension of time were contested by the state and both were denied. Defendant then filed in this court a poverty affidavit for free record and an application for an extension of time. Both were contested,- and this court ordered defendant’s counsel to prepare and submit a case-made. A verified petition in the nature of petition for rehearing was filed, in which it is set out the testimony in said case was voluminous, that about 40 witnesses were sworn and the case closely contested, with many objections and exceptions taken. That the sufficiency of the evidence to sustain the judgment is challenged. That on account of the death of the court reporter, which occurred on April 6, 1932, without his having transcribed his notes, it is impossible for counsel to prepare a case-made which will preserve the testimony or a substantial synopsis of it or preserve the objections and exceptions and the proceedings of the trial. That defendant was not guilty of any delay in procuring a transcript of the testimony and proceedings, but acted diligently to have the record preserved. Contesting this the state made showing that the testimony at the preliminary and also at the first trial had been preserved. That a habeas corpus proceeding at which much of the evidence was taken had also been preserved and all this had been transcribed. That some one of counsel for the state had taken notes during the course of the trial and that the newspapers published daily news reports of the trial made by news reporters who were in constant attention at the trial — all this was tendered defendant’s counsel. It was also made to appear that other reporters, using the sanie shorthand system, were able to read a considerable portion of the notes taken at the trial. Upon this showing the state insisted that defendant’s counsel could prepare a substantially correct transcript of the testimony and the proceedings.

The question here presented, in different forms, has been before this court a number of times. Bailey v. U. S., 3 Okla. Cr. 175, 104 Pac. 917, 25 L.R.A. (N.S.) 860, is to some extent analogous. In this case the appeal was pending in the United States Court of Appeals for Indian Territory, on the admission of Oklahoma as a state it was transferred to the Supreme Court, and on the creation of this court was transferred here. The record for appeal was lost by the Attorney General’s office, and this court held that under such circumstances plaintiff in error ivas entitled to a new' trial. The citations state the general rule that where a party has lost the benefit of his exceptions from causes beyond his control, a new trial should be granted. In Tegler v. State, 3 Okla. Cr. 595, 107 Pac. 949, 139 Am. St. Rep. 976, a case where the trial judge died before settling and signing the case-made, it was held plaintiff in error was entitled to a new trial. The opinion is based on Bailey v. U. S., supra. See in this connection decisions of Oklahoma Supreme Court, Ripey & Son v. Art Wall Paper Mill, 27 Okla. 600, 112 Pac. 1119; Duffield v. Ingraham, 35 Okla. 11, 128 Pac. 111; Peck v. McClelland, 65 Okla. 116, 166 Pac. 78; Laclede, etc., Co. v. Miller, 69 Okla. 242, 172 Pac. 84. These cases being based on a statute, subdivision 9, § 5033, Rev. Laws Okla. 1910; Cherry v. Brown, 79 Okla. 215, 192 Pac. 227, 13 A. L. R. 92; Farmers’ & Merchants’ Bank v. Welborn, 32 Okla. 1, 121 Pac. 620.

A similar question was before the court in Elliott v. State, 5 Okla. Cr. 63, 113 Pac. 213, where a reversal was granted because tlie court, reporter lost a part Of his notes and was unable to supply' a complete transcript. The opinion relies on Tegler v. State, supra, and Bailey v. U. S., supra. Again in Dobbs v. State, 5 Okla. Cr. 475, 114 Pac. 358, 360, 115 Pac. 370, the appeal was dismissed for failure to file in time, but in discussing a further contention the court said:

“The mere fact that a stenographer may have lost his notes, or that they may have been stolen from him, would not constitute a valid excuse for a failure on the part of the appellant to prepare and serve a case-made. If it did, every judgment entered by any court of record would be at the mercy of the carelessness and dishonesty of the court stenographer. While the stenographer’s notes of the testimony constitute the most convenient means of preparing a case-made, yet they are not the only source from which a case-made may be prepared. Even when a ease-made is prepared from the stenographer’s notes of the testimony, it must still be approved by the judge who tried the case, and he is not bound by such notes, but must still see that the case-made speaks the truth, and he may correct such case-made from memory or from any source that may be satisfactory to him.”

In Thornsberry v. State, 8 Okla. Cr. 88, 126 Pac. 590, the failure to include the testimony in the case-made was sought to be excused and a new trial secured on the grounds the stenographer’s notes had been stolen; the court in syllabus 1 held:

“The fact that a stenographer’s notes may have been lost or stolen will not excuse the failure of appellant to incorporate the testimony upon his trial in the case-made, and cannot be considered as ground for a new trial.”

Again in Harris v. State, 10 Okla. Cr. 417, 137 Pac. 365, 369, 139 Pac. 846, where a reversal was sought because of inability of plaintiff in error to procure a ti’an-script of the testimony, the court, speaking by Furman, Judge, said:

“The writer of this opinion practiced law many years in Texas before court stenographers were known in that state, and when, under the law, the evidence had to be written out as a matter of memory by the attorneys and filed in court within ten days from the adjournment of the term of court. The writer never had the least difficulty in preparing his statements' of the evidence in his cases, and he knows from personal experience that it can easily be done. In fact he seriously doubts if the employment of court stenographers is at all necessary either in the administration of justice or to the development of lawyers. It has a tendency to breed carelessness on their part; but, be this as it may, the trial court has a large discretion as to when to order the stenographer’s notes to be extended without expense to a defendant, and this discretion will not be reviewed, unless it clearly appears from the record that it was arbitrarily used or abused.”

In Gibbs v. State, 23 Okla. Cr. 247, 214 Pac. 745, where a court reporter, after having been paid to transcribe the testimony, absconded from the state and who was then sent the shorthand notes, but who then failed and refused to furnish a transcript, it was held that accused. was entitled to a new trial. In Butts v. Anderson, 19 Okla. 367, 91 Pac. 906, 908, a civil suit, just prior to statehood, the appellant prayed a new trial for the reason that subsequent to the trial and before the record for-appeal had been prepared, the court stenographer died and the plaintiff in error was therefore denied his right, of appeal. The Supreme Court, speaking by Burford, Chief Justice, denied the prayer, saying:

“The cause upon and for which the court set-aside its .judgment was that after the trial, and after the judgment had.been rendered, the court stenographer who took the shorthand notes of the trial had died, and the defendants, desiring to appeal the case, could find no one who could transcribe the shorthand notes of the deceased stenographer. We know of no law, nor have we been advised of any which empowers the court to grant a new trial because of the inability of the judgment debtor to procure his record or prosecute his appeal. The law provides that the party desiring to take an appeal will prepare a case, setting out substantially so much of the record as will make apparent the errors relied upon, and the service of his prepared case upon the adverse party, who may, if not satisfied with its contents, propose such amendments as he may deem necessary, and upon proper notice by either party the court will settle the case. Upon such a case he may file his petition in error and have the judgment complained of reviewed by the appellate court. While the law contemplates that either party may have the stenographer to transcribe his shorthand notes, upon payment of the necessary fees therefor, it does not contemplate that such is the only method of preparing a record for a case-made.”

In the case of Crittendon v. State, 44 Okla. Cr. 415, 281 Pac. 315, it was held that where the shorthand notes of the. reporter were lost or destroyed the case should be reversed and remanded. This case cites in support Butts v. Anderson, supra, and Thornsberry v. State, supra, which must have been included by oversight, since both hold to the contrary.

A recent case is State v. Ricks, 32 Idaho, 232, 180 Pac. 257, 13 A.L.R. 99. This case is thoroughly annotated, pages 102-121. See, also, annotations to Richardson v. State, 12 Ann. Cas. 1048, and annotations to Dumbarton, etc., Co. v. Erickson, 21 Ann. Cas. 258.

Reviewing the cases, it seems impossible to harmonize them fully. - Many of them are based on a state statute. Some appear to be decided on the particular facts and with the view of preventing unusual hardship or injustice. Generally in those states where certain officers must authenticate a bill of exceptions or case-made and an appellant, through no fault of his, cannot procure such authentication, as by the death or retirement from office of the trial judge, or by his failure to authenticate and the right of appeal thereby lost, a new trial will be granted by the appellate court. Also where there were any arbitrary or oppressive acts by the trial court or where the appellee is at fault in preventing, the securing of a complete record by appellant, a new trial is granted. On the other hand, where the inability of an appellant to secure a complete record is due to his own laches, a new trial will not be granted. Also in the case of a destruction or loss of records or the inability of an appellant to procure a transcript of the testimony of proceedings, it is not grounds for a new trial, if the lost or destroyed record can be substituted or a statement of the evidence in lieu of the transcript can be made.

In the instant case, while death of the court reporter prevents a literal transcript of the testimony and the proceedings in court, yet there are sources to supply the deficiency, as hereinabove stated; i. e., a transcript of the testimony at the preliminary, a transcript of the testimony at the habeas corpus proceeding, and a transcript of the testimony at the former trial, the assistance of other writers of shorthand, able to decipher a portion of the shorthand notes, the notes of counsel falten at the trial, and the day by day newspaper accounts falten of the trial. With these aids we are satisfied a statement of the testimony and proceedings could have been made, and for this reason defendant is not entitled to a new trial on account of the death of the court reporter.

The case is affirmed.

DAVENPORT, J., dissents.

CHAPPELL, J., concurs.

DAVENPORT, J.

(dissenting). I cannot agree with the majority opinion in this case, for the reason the facts stated lead me to believe that the plaintiff in error cannot perfect his appeal under the facts and surrounding circumstances in this case without he has a transcript of the testimony and the objections and exceptions taken during the trial.

Judgment in this case was rendered on November 19, 1932; defendant was granted time to make and serve a case-made; notices of appeal were served; and defendant endeavored to secure funds to pay for a transcript of the testimony and proceedings at the trial but was unable to do so, and filed a poverty affidavit asking the court to order a transcript made at the expense of the county. His application for the record to be furnished at the expense of the county and his application for an extension of time was contested by the state, and both were denied; application was then made to this court for this court to have a record furnished at the expense of the county and for an extension of time. The state contested the application and this court ordered defense counsel to prepare and submit a case-made. A verified affidavit in the nature of a petition was filed in which it was set out that the testimony was voluminous; that many objections and exceptions were taken; that the sufficiency of the evidence to sustain the judgment was challenged; that on account of the death of the court reporter which occurred on April 6, 1933, without having transcribed his notes, it was impossible for counsel to prepare a case-made which would preserve the testimony or a substantial synopsis of it or preserve the objection and exceptions and proceedings of the trial.

The defendant was not guilty of any delay in trying to procure a transcript of the testimony, but acted diligently to have the record preserved. All of the proceedings were contested by the state, and the state insisted they could furnish sufficient record to enable the plaintiff in error to make up a transcript sufficient to preserve all the material testimony and all the exceptions and objections that were in the record.

Plaintiff in error insists that it is no fault of his that the record cannot be furnished; that the court reporter died prior to the time he was required to file his case in this court, and asks this court to reverse the case with directions.

The opinions of the courts of this state are not in harmony. Similar questions to the one involved in this case have been before this court many times. In Tegler v. State, 3 Okla. Cr. 595, 107 Pac. 949, 139 Am. St. Rep. 976, this court held that where the judge who- presided at the trial died after the completion of the trial, and before the case had been settled and signed, the defendant without fault on his part was deprived of his constitutional right to present a complete appeal to this court, and is thereby entitled to a new trial.

In Bailey v. United States, 3 Okla. Cr. 175, 104 Pac. 917, 25 L.R.A.(N.S.) 860, this court, in the first paragraph of the syllabus, said:

“Where, in a proceeding in error properly instituted, it appears that the record in the case has been lost or destroyed without' possibility of substitution, through no fault of the appellant or his counsel, but solely because of the action- of the court officials or some accident or act of Providence for which no one is responsible, and without which record the errors complained of cannot be considered, the Criminal Court of Appeals has the power to order a new trial of the cause.”

In Elliott v. State, 5 Okla. Cr. 63, 113 Pac. 213, this conrt, in the first paragraph of the syllabus, said:

“When the .record discloses that the appellant is unable to' present a full and complete appeal in this court by reason of the loss of portions of the transcript by officials of the court below through no fault of his, the cause will be reversed.”

Following the holdings of this court in the Tegler, Bailey and Elliott Cases, supra., and Gibbs v. State, 23 Okla. Cr. 247, 214 Pac. 745, and Crittendon v. State, 44 Okla. Cr. 415, 281 Pac. 315, I insist that, it is apparent from the record presented in this case that the defendant has been deprived of his constitutional right without fault on his part to have his case reviewed on the errors assigned. In order that the defendant may not be deprived of his statutory rights, this case should be reversed and remanded to the district court of Pittsburg county, with directions to grant him a new trial.


author: DAVENPORT, J;

text:
    STATE v. GURNEY BAYLIFF.
    No. A-9072.
    Aug. 21, 1936.
    (60 Pac. [2d] 402.)

      Mac Q. Williamson, Atty. Gen., and O. Mark Ginder, Co. Atty., for the State.
    H. W. Wright, for defendant in error.
   DAVENPORT, J;

This is an appeal by the state from a ruling by the trial court wherein the court held that the search warrant upon which the officers acted in making a search was void, for the reason that it did not run in the name of the state of Oklahoma; the caption of the search warrant held void by the trial court being as follows: “In the name of Alfalfa County, Oklahoma. Search Warrant.”

Then the direction in the warrant reads as follows: “To the Sheriff, Deputy Sheriff of Alfalfa County, Oklahoma.”

The caption of the warrant fixes the venue in the case, but nowhere does the warrant run in the name of the state of Oklahoma to any officer (naming them) of Alfalfa county. Article 7, section 19, of the Constitution of Oklahoma, provides that the style of all writs and processes shall be: “The State of Oklahoma.”

All prosecutions shall be carried on in the name and by the authority of the state of Oklahoma. All indictments, informations, and complaints shall include, “against the peace and dignity of the State.” Section 19, O. S. 1931, provides:

“The style of all process shall be ‘The State of Oklahoma.’ It shall be under the seal of the court from whence the same shall issue, shall be signed by the clerk, and dated the day it is issued.”

The provisions of article 7, section 19, of the Constitution, and section 19, O. S. 1931, requiring that process shall run in the name of the state of Oklahoma, is mandatory. A search warrant is process within the meaning of article 7, section 19, of the Constitution, and section 19, O. S. 1931, and must run in the name of the state of Oklahoma. Dunn v. State, 40 Okla. Cr. 76, 267 Pac. 279; Myers v. State, 40 Okla. Cr. 170, 267 Pac. 867; Murray v. State, 47 Okla. Cr. 219, 287 Pac. 781; Bishop v. State, 47 Okla. Cr. 249, 288 Pac. 363.

The search warrant in this case does not comply with the requirements of the Constitution and the laws of the state of Oklahoma, and the ruling of the trial court in quashing the same and dismissing the case against the defendant was proper.

The judgment of the trial court is affirmed.

EDWAKDS, P. J., and DOYLE, J., concur.


author: DOYLE, J.

text:
    Ex parte SANKS BURKS.
    No. A-9189.
    Aug. 21, 1936.
    (60 Pac. [2d] 401.)

      Hal Welch and Dan Welch, for petitioner.
    Ralph K. Jenner, Co. Atty., and Robert H. Warren, Asst. Co. Atty., for respondent.
   DOYLE, J.

In this case petitioner, Sanks Burks, filed in this court on August 12, 1936, his duly verified petition, alleging that he is unlawfully imprisoned in the county jail and restrained of his liberty by Cap Duncan, sheiff of Choctaw county; that having been charged with the murder of Otis Rollins, alleged to have been committed in said county on or about the 8th day of April, 1936, upon a preliminary examination before T. W. Hunter, county judge of Choctaw county, he was held to await the action of the district court of said county to answer said charge of murder; that thereafter an information was duly filed in the office of the court clerk of the district court of said county charging petitioner with the crime of murder; that on a habeas corpus proceeding in the district court of said county George R. Childers, district judge, denied bail and remanded petitioner to the custody of said sheriff.

Petitioner further alleges that he is not guilty of the crime of murder as charged in said information, and that upon the evidence introduced at said preliminary examination and the testimony of said petitioner as a witness in his own behalf it is shown that the proof of his guilt of the crime of murder is not evident nor the presumption thereof great. A transcript of the testimony taken upon the preliminary examination, together with the testimony of the petitioner as a witness in his own behalf, is annexed to and made a part of the petition.

Petitioner in his testimony admits the shooting, but claims that it was done in his necessary self-defense.

Upon the return day of the rule to show cause a hearing was had in this court.

It is well settled that a mere conflict of the testimony, even upon a material issue, does not of itself entitle a prisoner held for murder to be admitted to bail. The evidence must be considered as a whole, and when so considered, unless a well-founded doubt of the prisoner’s guilt of murder is generated, bail will be denied.

The rule generally approved by appellate courts is that in denying an application for bail neither the facts nor the law of the case should be discussed by the court lest it prejudice the rights of the petitioner on his final trial, and we shall adhere to that rule in this case.

We deem it sufficient to say that we find no element of legal jurisdiction or excuse, and we concur with the district court in its finding that the petitioner is not entitled to bail.

Writ refused, and bail denied.

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


text:
    L. T. DEAL v. STATE.
    No. A-9056.
    Aug. 21, 1936.
    (60 Pac. [2d] 408.)

      Norman H. Wright, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of conviction of rape in the first degree, punishment having been assessed at imprisonment in the penitentiary for a term of 35 years.

The information in substance charged that in Oklahoma county on the 4th day of July, 1935, the defendant, L. T. Deal, did then and there willfully, unlawfully, feloniously, and by force and violence overcoming her resistance, did have sexual intercourse with Marie Eslick, a female person and not the wife of said defendant.

The petition in error sets out a number of errors, but counsel for appellant has abandoned all except two: First, that the evidence is not sufficient to sustain the verdict of the jury, and particularly it is claimed that the verdict is the result of passion and prejudice; second, that the punishment assessed is excessive.

The undisputed facts as deduced from the state’s evidence are as follows: The prosecutrix, Marie Eslick,' age 37 years, married but separated from her husband, lived with her mother in Oklahoma City, south side. Mrs. Claudia Richardson, mother-in-law of a sister of the prose-cutrix, was staying with them, and before leaving the place on the 4th of July to attend a picnic, it was arranged that she should make a date for the prosecutrix and call her that afternoon. Having received this call between 5 and 6 o’clock that afternoon, the prosecutrix left her home, took a street car, and went to the end of the Central street car line, and there met Mrs. Richardson, Mr. Pearl Mills, and the defendant. She was introduced to the defendant. Taking a cab they were driven to a place on Twelfth street and there they all drank beer. From there they visited several other places where beer or home brew was sold. At one of these places another cab was called. They visited the pump station where the defendant worked, and he gave the men there three or four bottles of beer. Between 8 and 9 o’clock they were driven to the outskirts on the southeast part of the city.

The prosecutrix testified that she was in the back seat with the defendant; Mr. Mills said he was sick and wanted to get out, and the cab stopped and he with Mrs. Richardson got out; the defendant told the cab driver to drive on; that after driving a ways told him to' stop; he then told the cab driver to take a walk; the cab driver said that he was past due calling up the office and would go and call in and report; that she asked him not to leave, and he said he would not be gone very long.

The details of her relation heed not be repeated here, except to say that in substance her testimony was that she refused to submit and the defendant by force and violence overcoming her resistance accomplished an act oí sexual intercourse; that during the struggle he reached into the car, picked up a jack, and hit her on the head with it, rendering her unconscious. When the cab driver returned she told him to put her in the front seat; that all her clothes had been tom off except for an elastic girdle and one stocking; that they started hack and picked up Mr. Mills and Mrs. Richardson; and shortly after the defendant got out and paid the driver, she told the cab driver to drive to the police station; from there they went to the sheriffs office, and from there they sent her to the Oklahoma General Hospital, where she received emergency treatment, and remained there several days; that on July 30, 1935, she filed a petition in the district court of Oklahoma county against the Capitol Hill Cab. Company for $7,500 damages resulting from her injuries.

Clint Holman testified in substance: That as a cab driver he answered a call to 2900 block South Santa Fe, and arrived there about 7:3'0 that evening; that two couples got into his car and he drove them around to several places and finally drove east on Twenty-Second street; that Mr. Mills and Mrs. Richardson were in front, and Mr. Deal and Mrs. Eslick were in the back; that he drove about a mile east of Capitol Hill, then turned north into a lane, and Mr. Mills and Mrs. Richardson got out of the car; that he pulled up about a block beyond and stopped, and Mr. Deal -told him he could take a walk. He said: “If you folks do not object, I will go down to the gasoline plant and call my office and report.” Mr. Deal said: “All right.” Mrs. Eslick never said anything. That when he returned about 20 minutes later the defendant was standing near the car and .said, “See if you can get Mrs. Eslick into the car, she has passed out.” She was lying on the ground by the side of the car; she asked Mm'to assist her to the front seat, which he did; that' she did not have any clothes on, and he picked np a piece of clothing and laid it over her; that he turned, drove back, and picked up Mr. Mills and Mrs. Richardson. Eeaching Twenty-Second and Byers, Mr. Deal said: “I Avill get out here, I live right aroiind here.” That he paid for the cab services, and paid him to take these people on home. When he started: on, Mrs. Eslick said: “He beat me up and raped me, take me to the police station.” Arriving at the station the sergeant said, “You had better take her to the county,” and he brought her to the sheriff’s office. The deputy sheriff there told him to take her to the Oklahoma General Hospital, and he did. It was then about 11 or 11:30 p. m.

Dr. ,Sam Beatty testified: That about midnight, July 4th, he received Mrs. Eslick as a patient at the Oklahoma City General Hospital. An examination showed a laceration between one and two inches in length on the head; that her right arm had been bitten in several places; that she had injuries on her right thigh, and' on her right breast; that there was a.n abrasion on the inside lip of the vagina. And gave as his opinion that some person had recently had sexual intercourse with her.

On the paid of the defense, Mrs. Claudia Richardson testified that she had a talk with Lee Deal that day with reference to arranging a date for him with Marie Eslick, and she telephoned her and they met Mrs. Eslick at the end of the South Central bus line; that she had been drinking and did not remember anything after the party left the first bootlegging joint they visited.

S. J. Eay testified that he worked for the British American Oil Company and went with the defendant that day to a beer joint on Southeast Eleventh street; that Mr. Pearl Mills and Mrs. Richardson were there, and Mrs. Richardson arranged a date for Mr. Deal with some woman, and then called this lady np over the telephone and reported back to Mr. Deal that the arrangement had been made; that Mr. Deal then asked him for a loan of $5; he only had a $20 bill and he gave him the bill; that the next morning he went to the county jail and there Mr. Deal gave him back $8; that Mr. Deal’s eyes at that time were swollen and his face was all scratched np.

It appears from the record that this conviction was upon a second trial. By agreement of the parties the testimony of Mr. Pearl Mills at the first trial, as shown by the transcript, should be read to the jury. He testified in substance that he was a barber, had lived in Oklahoma City 20 years; that he was one of the party that evening driven around together and stopping at places to drink beer; that when they Avere driven out in the country, he was sick and asked to get out, and with Mrs. Richardson he left the car; it was then driven on; that Avithin 30 or 40 minutes the car returned and picked them up; Mr. Deal left the car near his house; Mrs. Eslick said that she had been raped and struck on the head; her clothing Avas missing; she had something thrown over her; that he went on with her to the police station and the sheriff’s office, and then to the Oklahoma General Hospital.

The defendant testified in his OAvn behalf, denying the charge: That he Avas 28 years old, married, wife and two children; that while in his teens he pleaded guilty to a charge of larceny and was sentenced to' a term of one year at the Granite Reformatory; that in 1931 he pleaded guilty to a charge of larceny and was sentenced to a term of one year in the state penitentiary;, that on the afternoon of July 4th, he met Mr. Mills and Mrs. Richardson in a beer joint on Southeast Twelfth street; Mrs. Richardson arranged a date for him with some ■woman; they called a cab and were driven to the end of the bus line at Twenty-Fifth and South Robinson; there they met and he was introduced to Mrs. Eslick; from there they visited several places where home-brew was sold; later another cab was called and they proceeded to visit several places where beer was sold; then they drove to the place where he worked and he gave one of the men two or three bottles of beer; then they visited another place where beer was sold and a dance was going on, and they danced a little; after that they visited another beer joint; then they drove out on Southeast Twenty-Second street, ten or twelve blocks, and turned off of the main road a block or two and the car stopped; Mr. Mills and Mrs. Richardson got out; then they went on about a block and he told the driver to stop; the driver said he had to report into the office every hour, and he told him to take a walk, that he would find a telephone at the pump station.

He further testified:

“We were sitting there talking and hugging and necking; she asked for a match, and in getting it I missed my money; I said, ‘Have you got my money?’ she said, ‘No’; I said, ‘You have got my money and you had better give it up’; she said, ‘I haven’t got your money’; I said, ‘If you don’t give me that money I am going to bust you on the jaw’; she said, ‘If I have got your money and you think you can get it hack that way you had better just try it’; and after some more words I proceeded to bust her in the jaw; she clinched me around the neck, scratched my face, and had her finger in the comer of my eye; she was choking me, I bit her arm and we rolled out on the ground, we were clinched when we fell out of the car, it was a rough and tumble fight, I didn’t hit her with a jack,.! didn’t attempt to have intercourse with her against her consent, she finally handed me my money, I didn’t insist on having intercourse with her, and I didn’t tell her I was going- to force her to- submit, and the only cause of that fight and tussle there was the result of her taking my money. The taxi driver came up, I told him she was drunk, that she had passed out, she told him to help her in and put her in the front seat. We drove back and picked up Mr. Mills and Mrs. Richardson, passing near my home I told the driver to stop, I got out and paid the cab driver, they said they Avere ready to go home, I asked him how much more that Avould be, he told me and I paid him.”

The testimony is voluminous, over 400 pages, but the foregoing statement is sufficient to show that the jury was justified in finding that she resisted to the fullest extent of her ability, and that her resistance Avas overcome by force and violence on the part of the defendant.

The instructions given by the court, to which no objection was made or exception taken, submitted to the jury every element of the offense charged, and submitted the included offense of assault with intent to rape.

It is both the spirit and intention of our law that sentences shall be imposed in criminal cases for the protection of society and the reformation of the criminal, and sentences should be imposed in keeping with the spirit of the law. Upon a careful consideration of the whole case, our conclusion is that the punishment assessed by the jury is excessive, and in a measure the result of passion and prejudice. In view of the undisputed facts, we are of opinion that justice requires a modification of the judgment and sentence from a term of 35 years to a term of 15 years’ imprisonment in the state penitentiary. Carrying the sentence, thus modified, into execution Avill be sufficient, we think, to teach the defendant his duty and obligation to his family and those about him.

As thus modified, the - judgment of conviction is affirmed.

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


author: EDWARDS, P. J.

text:
    DWIGHT MITCHELL v. STATE.
    No. A-8983.
    Aug. 21, 1936.
    (60 Pac. [2d] 627.)
    Dudley, Hyde, Duvall & Dudley and. David Tant, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the court of common pleas of Oklahoma county of having illegal possession of intoxicating liquor, and was sentenced to serve 90 days in the county jail and to pay a fine of $500.

Defendant was jointly charged with W. T. Pierson, Mrs. W. T. Pierson, and Richard French. The court sustained a demurrer to' the evidence against Mrs. Pierson, thereby disposing of the case as to her; it directed a verdict in favor of defendant W. D. Pierson and submitted the case to the jury as to defendant French and this defendant Mitchell. A verdict of not guilty was returned as to French. We are satisfied the state had no case against Mrs. W. T. Pierson, and as to whether or not the court properly directed a verdict of not guilty as to W. T. Pierson is not material. The evidence is that at the time charged Pierson and his wife lived on East Twenty-Third street near Nicoma Park; officers searched this place and found 60-odd cases of whisky stored in the garage, the possession of which is the basis of the charge in this case. Defendant Pierson and his wife each testified for the state. Pierson testified in substance that defendant arranged with him to store this whisky at his place and paid him for this privilege 50 cents per case. This testimony constitutes Pierson an accomplice. In addition, there is the testimony of three officers, George Kerr, W. E. Agee, and Tom Miller, who were concerned with the discovery and seizure of the whisky involved. Their testimony corroborates the accomplice, at least circumstantially, and by the testimony of Mrs. W. T. Pierson, who was not an accomplice. Kerr testified in substance that on one or two occasions just prior to the date in question he saw defendant Mitchell at the place where the whisky was stored. Miller testified in substance that a few days before the discovery of the whisky in question he saw defendant Mitchell on two occasions at the premises of Pierson. The witness Agee testified substantially to the same effect. The testimony of Mrs. W. T. Pierson in part was hearsay and was excluded or stricken out, but she did testify- that Mitchell was at the premises as testified to by the officers and that he came there to get whisky. From all the testimony we gather that defendant was a bootlegger of. some importance in the circle in which he moved. The testimony is that the whisky seized was high-grade, high-priced English whisky— whether Johnnie Walker or Haig & Haig we are not informed. Some of this whisky was introduced in evidence, but the clerk of this court advises us it did not reach his office, SO' we assume there was a diminution of the record, as sometimes occurs in this kind of a case. We doubt if a writ of certiorari in the hands of General Barrett with the aid of the militia could now produce this evidence. Defendant evidently does not mess with the pint trade of the proletariat, but deals rather in case lots with the connoisseur.

The principal contention is that there is no sufficient corroboration of his testimony. With this contention we are not able to agree. It is held by many decisions of this court that the testimony of an accomplice need not be corroborated by direct testimony, but the corroboration may be circumstantial. Moody v. State, 13 Okla. Cr. 327, 164 Pac. 676; Winfield v. State, 18 Okla. Cr. 257, 191 Pac. 609.

All this testimony, considered together, furnishes strong circumstantial corroboration of the testimony of the accomplice and is sufficient to satisfy the law. Particularly is this so in view of the fact that defendant did not take the stand. Some other questions are presented in the brief, but we find no material error.

The case is affirmed.

DOYLE, J., concurs. DAVENPORT, J., dissents.


text:
    JESS HART v. STATE.
    No. A-9035.
    Aug. 28, 1936.
    (60 Pac. [2d] 411.)
    Geo. C. Crump and C. H. Baskin, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Mat-son, Asst. Atty. Gen., for the State.
   DOYLE, J.

This is an appeal from a judgment of conviction for the crime of tapping a pipe line, pronounced and entered July 27, 1935, in conformity with the verdict of the jury finding the defendant, Jess Hart, guilty of tapping a pipe line and assessing his punishment at imprisonment in the penitentiary for a term of four years. The statute under which the conviction was had is section 2274 of the Penal Code, which reads as follows:

“Any person who shall unlawfully mate or cause to be made any connection with or in any way tap or cause to be tapped, or drill or cause to be drilled a hole in any pipe or pipe line or tank laid or used for the conduct or storage of crude oil, naphtha, gas or casinghead gas, or any of the manufactured or natural products thereof, with intent to deprive the owner thereof of any of said crude oil, naphtha, gas, casinghead gas or any of the manufactured or natural products thereof, shall be guilty of a felony, and upon conviction shall be punished by confinement in the penitentiary for a term of not less than one year nor more than five years.” ■

Section 2275 of the Penal Code reads as follows:

“Any person who shall unlawfully take any crude oil or gasoline, or any product thereof, from any pipe, pipeline, tank or other receptacle or container with intent to deprive the owner thereof of said crude oil, gas or gasoline or any product thereof shall be guilty of a misdemeanor, and upon conviction shall be punished by a fine of not more than one hundred dollars ($100), or by imprisonment in the county jail not to exceed sixty (60) days, or by both such finé and imprisonment.”

The information charged that Jess Hart did in Ok-fuskee county, on or about the 11th day of June, 1935, commit the crime of tapping a pipe line in manner and form as follows, to wit:

“That at and within the county and state aforesaid and on or about the day and year aforesaid Jess Hart then and there being did. then and there knowingly, wil-fully, unlawfully, wrongfully and feloniously and without the knowledge or consent and against the will of the Phillips Petroleum Corporation, a corporation, true owners of said pipeline, made and cause to be made a connection with and tap and drill a hole in a certain pipeline the property of the said Phillips Petroleum Corporation and located in the said Okfuskee county, Oklahoma, with the wrongful, unlawful and felonious intent then and there on the part of him the said Jess Hart to take, steal and carry away certain gasoline then and there contained in said pipeline, the property of the said Phillips Petroleum Corporation and to permanently deprive said Phillips Petroleum Corporation of said property and convert the same to his own use and benefit, contrary to,” etc.

The overruling of the defendant’s demurrer to the information is assigned as error.

Counsel contend that under the opinion of this court in the case of Davis v. State, 58 Okla. Cr. 268, 52 Pac. (2d) 96, 97, holding that an information charging offense of tapping a pipe line, which failed to allege that pipe line alleged to have been tapped was laid or used for conduct or storage of crude oil and its derivatives, was insufficient to charge a violation of section 2274, St. 1931, the court erred in overruling the demurrer to the information.

In the opinion it is said:

“Section 2274, supra, defines a ‘felony’ in the tapping of a pipe line laid or used for the conduct or storage of crude oil, etc. The tapping of a pipe line laid or used for any other purpose does not fall within the terms of section 2274, and a charge of tapping a pipe line without an allegation that it was laid or used for the conduct or storage of crude oil and its derivatives omits an essential part of the definition of the offense denounced by section 2274 and is insufficient to charge a crime under that section. The concluding part of the charge more nearly falls within the terms of section 2275, supra, in alleging the removal from a pipe line of gasoline. Stout v. Territory, 2 Okla. Cr. 500, 103 Pac. 375; Saddler v. State, 38 Okla. Cr. 412, 255 Pac. 719.”

No principle of criminal pleading is better settled than that an information for a statutory offense must he framed upon the.statute, and that this fact must distinctly appear upon the face of the information itself. That it shall so appear the pleader must either charge the offense in the language of the statute or specifically set forth the facts constituting the same.

For the reasons stated said demurrer to the information should have been sustained.

There are other assignments of error argued in the briefs, but we do not deem their discussion necessary further than to say that owing to the fact that there has been a revision of the statutes as authorized by chapter 23, Session Laws 1931, the holding of this court in the case of Smith v. State, 47 Okla. Cr. 184, 287 Pac. 835, is approved.

The authority given the Legislature by the Constitution, art. 5, § 43, to revise the laws, permits it to revise to- any extent so long as the substance of the proposed revision is not otherwise prohibited by the Constitution. The revision is a substitute. It displaces and repeals the former law as it stood relating to the subjects within its purview. Ex parte Autry, 58 Okla. Cr. 88, 50 Pac. (2d) 239.

The judgment of the distinct court of Okfuskee county is reversed and the cause remanded, with direction that the demurrer to the information be sustained, and for' such other and further proceedings as may be proper in the case.

The warden of the state penitentiary will surrender the plaintiff in error, Jess Hart, to the sheriff of Okfuskee county to hold him in custody until he shall be discharged or his custody changed by due course of law.

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


author: DAVENPORT, J.

text:
    BYRON DAVIS v. STATE.
    No. 8976-A.
    Aug. 28, 1936.
    (60 Pac. [2d] 413.)
    Ridings & Drennan, and Orval Grim, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith 0. Mat-son, Asst. Atty. Gen., for. the State.
   DAVENPORT, J.

The parties will be hereafter referred to as they appeared in the trial court. The defendant was by information charged with burglary in the second degree, and sentenced to imprisonment in the state penitentiary for two years. The record was properly saved by filing a motion for a new trial, which motion was overruled and exceptions saved, and the defendant appeals to this court.

The testimony on behalf of the state, in substance, is that the defendant in this case was in charge of the Deer Creek Elevator, located on the Frisco right of way in the town of Lamont, Okla.; the Deer Creek Elevator was located a short distance from the .Spencer Grain Co.’s elevator. On the night of the 25th of August, 193'4, a box car was set near the Spencer Grain Co.’s elevator; the elevator was broken into and the company’s motors started, and when discovered there had been loaded, into the box car that had been set at the Spencer Grain Co.’s elevator, 187 bushel and 40 pounds of wheat, of the value of |176.41.

The evidence shows that the car set at the Spencer Grain Company’s elevator was at the close of the day the afternoon before the alleged burglary had been set at the Deer Creek Elevator, and that tracks along the railroad track showed the car had been moved from the Deer Creek Elevator to the Spencer Grain Co.’s elevator and attachments connected so as to load wheat from the Spencer Grain Co.’s elevator into the box car; a ladder and wire stretchers owned by the defendant and used by the defendant in this case at the Deer Creek Elevator were found at the Spencer Grain Company, the ladder being attached tO' the door on the box car in which the wheat was being loaded when it was discovered the motors of the Spencer Grain Company were running and the owner called by parties to come to the elevator.

No one was found at the elevator when the parties arrived, but the doors of the elevator had been opened and the motors started, and the wheat was being loaded into the box car. The testimony further shows that the tracks along the Frisco tracks from the Deer Creek Elevator to the Spencer Grain Company, where the car was placed, were the same as the tracks made by the defendant Davis; that the shoes he was wearing had a break in the bottom where they were worn, and witnesses identified the tracks as being, tracks made by the shoes worn by the defendant.

Chester Crow, who was an accomplice of the defendant, testified for the state and in detail described the moving of the car from the Deer Creek Elevator to the Spencer Grain Co.’s elevator by the defendant and himself, and states that the defendant Davis opened the doors at the Spencer Grain Company, and after the car was set and the spout fixed so that it would run the grain into the box car, and the ladder placed on the door of the car, and the wire stretchers wrapped in gunny sack and fastened to the door, started the motors, and began to load the grain in the box car, the defendant drove away telling Crow he would be back shortly; that after he had been loading the grain for some time, he saw some one coming toward the elevator, and realizing he had been discovered with the motors in the grain company running, he left the scene of the grain company elevator.

Chester Crow further stated the defendant was to give him flOO for assisting in loading this wheat. Witness Crow had worked for the Spencer Grain Company, and loaded out a car of wheat the afternoon before it was alleged this crime was committed, and had been recommended to Mrs. Spencer by the defendant Davis. Some evidence was introduced tending to show the defendant was short in his accounts with the Deer Creek Elevator Company and that his shortage was the motive for attempting to burglarize the Spencer Grain Company and get this car of wheat out so as to cover up his shortage. The testimony shows the defendant had. been working at Deer Creek Elevator for some time. This is, in substance, the testimony offered by the state.

On behalf of the defendant it is admitted he Avorked for the Deer Creek Elevator; that it was located near the Spencer Grain Co.’s elevator; that he recommended to Mrs. Spencer the night before the alleged burglary that night, the witness Chester Crow as a competent person to help her load the car of -wheat; the defendant claims he closed the Deer Creek Elevator in the evening and went home, got his wife and baby, and drove to Deer Creek, visiting at his father’s home with his brother-in-laAV Tom Garrett and his family the remainder of the evening, spending the night with Tom Garrett and his family, and had nothing to do with the attempted larceny of the wheat from the Spencer Grain Company; that he had nothing to do with the coopering of the car or spotting it; that he did not open the Spencer Grain Company’s door, and had nothing whatever to do with it, and called his wife, his brother-in-laAV, and other parties as witnesses in his behalf to show he Avas in Deer Creek at his brother-in-law’s and could not have been in Lamont.

In rebuttal the state called one or two witnesses who testified that about 11 o’clock the evening of the alleged burglary they saw the defendant Byron Davis in Tonk-awa, which is several miles from Lament, in the opposite direction from Deer Creek. -

The defendant, as grounds for reversal of this case, alleges the court committed twelve errors in the trial. In his brief he discusses the fourth assignment of error, and argues that there is a variance in the proof and allegations in the information. The information charges the burglarizing of the Spencer Grain Company, and he urges that the proof shows that the elevator alleged to have been burglarized belonged to Dean Spencer and D. E. Spencer, doing business as the Spencer Grain Company, and he insists they are two different and distinct parties, arguing that the Spencer Grain Company was owned by this partnership, and that the allegations that the grain company was owned by the Spencer Grain Company is a fatal variance from the charge in the information and proof on the part of the state.

The test of fatal variances is: Was the defendant misled? Will he be protected against further proceedings? Mathews v. U. S. (C.C.A.) 15 F. (2d) 139.

Whether there is a fatal variance or duplicitous proof may be determined by inquiring whether the defendant could plead former jeopardy. Fowler v. State, 20 Okla. Cr. 410, 203 Pac. 900.

The information in this case is not a model, but after a careful consideration we hold that there is not sufficient variance between the allegations in the information and the proof to warrant this court in reversing the judgment. It is clearly shown that the defendant knew the elevator he was charged with burglarizing, and under the facts in this case if the defendant should be again charged with burglarizing the properties of D. E. Spencer, Dean Spencer, or the Spencer Grain Company, the defendant would be in a position from the record in this case to plead former jeopardy.

It is next contended by the defendant that there is no. proof corroborating the witness Chester Crow as to the burglary alleged to have been committed by the defendant operating with Chester Crow. Without going into detail as to what the record shows, we hold that the fact that the car that was being loaded from the Spencer Grain Company was the car that had been spotted at the Deer Creek Elevator; that the ladder and the stretcher that were being used at the Spencer elevator were owned and used by the defendant in this case at the Deer Creek Elevator.

One or more witnesses testified positively that some of the tracks made along the rail of the Frisco siding from the Deer Creek Elevator to the Spencer Grain Company, where the car had been spotted and was being loaded, were identical with the tracks made by the defendant ; that the shoes worn by the defendant were worn out or had broken soles, and the witness identified the human tracks along the Frisco tracks as being tracks made by the shoes worn by the defendant.

In Brown v. State, 52 Okla. Cr. 110, 3 Pac. (2d) 237, this court, in the second paragraph of the syllabus, said:

“Evidence corroborating an accomplice need not directly connect the defendant with the commission of the ■crime; it is sufficient jf it tends to do so.”

This court has often held that in determining whether the accomplice’s testimony is sufficiently corroborated, corroborating testimony Avill be considered in the strongest vieAV that such testimony will warrant. Hinkle v. State, 55 Okla. Cr. 402, 32 Pac. (2d) 96.

Considering all of the testimony and circumstances surrounding this case, we think the corroborating testimony is sufficient, and that the record clearly shows that the defendant was a party to the burglarizing of the Spencer Grain Company, notwithstanding a number of witnesses testify he was at another and different place at the time of the burglary.

The defendant was accorded a fair trial. The court properly instructed the jury as to the law applicable to the facts.

Finding no errors in the record sufficient to warrant a reversal, the judgment of the trial court is affirmed.

EDWARDS, P. J., and DOYLE, J., concur.


text:
    FRANK REININGER v. STATE.
    No. A-9042.
    Aug. 28, 1936.
    (60 Pac. [2d] 629.)
    C. B. Wood, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, J.

For convenience the plaintiff in error will be referred to in this opinion as the defendant. The defendant was charged with having possession of intoxicating liquor with intent to barter, sell, give away or otherwise dispose of the same; was convicted and sentenced to pay a fine of $100 and to be imprisoned in the county jail for 60 days. Motion for a new trial was filed, overruled, and the defendant appeals.

When the case was called for trial, and before the state had introduced any evidence, the defendant filed a motion to suppress the evidence on the ground that the officers, Avithout a warrant to arrest the defendant, or to search his car, came to the home of the defendant and drove into his yard and proceeded to search his car Avithin and on the curtilage of the defendant’s home. The officers did not have or pretend to have a Avarrant for the defendant’s arrest or to search his car, and set forth other grounds in his motion.

Testimony was taken on the defendant’s motion to suppress. The officers admitted they went to defendant’s home and drove into his yard and up near his house; they had no warrant for his arrest or to search his premises or his car. The defendant denies he at any time consented for them to search his car without a search Avar-rant. Neither of the officers are positive in their statement when they said they asked the defendant to be searched without a search warrant, as to the answer the defendant gave, one of them had no definite recollection, and the other undertakes to say that if they Avere going to search the defendant gave his consent to the search. When the car was searched by the officers, they found a quantity of whisky.

The motion of the defendant to suppress the evidence was by the court overruled and exceptions duly and regularly saved. In substance the testimony in the trial of the case is the same as on the motion to suppress.

The second assignment of error of the defendant is:

“Error of the court in overruling the motion of the said defendant Reininger to suppress the evidence.”

And his third assignment of error is:

“Error of the court in admitting incompetent, irrelevant and immaterial evidence offered by the state.”

The defendant insists that his motion to suppress the evidence should have been sustained, and that the court in the trial of the case admitted incompetent and irrelevant testimony, on the ground that it was procured by an unlawful search and seizure. The officers admit they had no authority to search defendant’s car unless he had waived his right to be searched. The defendant denies he gave his consent to the officers to search his car. It is clear from the testimony that the officers who searched the defendant’s car entered on the curtilage of the defendant’s home, and as one of them admits, they did so for the purpose of searching the defendant’s car. They were trespassers from the time they drove into the defendant’s yard and on to his curtilage, and as one of them admits, they went there for the purpose of searching the car without seeing any whisky in the defendant’s car, and did not see it until they opened the car. There is no competent evidence to* show that the defendant in this case waived his constitutional right, and granted permission to the officers to search his car.

All of the circumstances and the testimony of the defendant show he did not grant the officers permission to search his car, and the testimony of the officers shows they had started on their search and drove into the yard of the defendant before anything was said to him about what he had in his car, and when questioned after the search was begun he told them he did not have anything, it was then the officers opened his car and found the whisky, all of which was in violation of the constitutional rights of the defendant.

In Whitford v. State, 35 Okla. Cr. 22, 247 Pac. 424, in the second paragraph of the syllabus this court said:

“Where the officer does not know of the act constituting the offense it is not committed in his ‘presence.’ ”

In the fifth paragraph of the syllabus the court said:

“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.”

A defendant charged with crime, though guilty, is entitled to a fair and impartial trial according to law. This court, in the case of Mosier v. State, 59 Okla. Cr. 106, 56 Pac. (2d) 908, 909, said:

“Some things are to be more deplored than the unlawful sale of whisky. One is the loss of liberty. Common as the event may be, it is a serious thing to arrest a citizen, and it is more serious to search his person, and whoever accomplishes it must do so in conformity with the laws of our state. There are two reasons for this, one to avoid bloodshed, and the other to preserve the liberty of the citizen.”

The evidence challenged in this case was secured by the officers by an unlawful search and seizure,. contrary to section 30, art. 2, of the Constitution (Bill of Rights), and was improperly received in evidence against the defendant. Wright v. State, 52 Okla. Cr. 393, 5 Pac. (2d) 766.

In this case the defendant timely objected to the testimony that was to be introduced against him by a motion to suppress, which motion was by the court overruled and exceptions saved by the defendant.

There are other errors assigned by the defendant, but, in the view we take of this record, it is not necessary to consider them. The search in this case was unlawful and made without any authority of law.

There being no competent evidence to sustain the conviction, the judgment of the trial court is reversed, with directions to discharge the defendant.

EDWARDS, P. J., and DOYLE, J., concur.


text:
    Ex parte LUCIOUS THOMPSON.
    No. A-9192.
    Aug. 28, 1936.
    (60 Pac. [2d] 634.)
    B. C. Franklin and W. N. Maben, for petitioner.
    H. O. Bland, City Atty., and Carl Ravis, Asst. City Atty., for City of Tulsa.
   EDWARDS, P. J.

This is an original proceeding in habeas corpus. Petitioner alleges he is unlawfully restrained by the chief of police of the city of Tulsa; that he was, in the municipal criminal court, under a city ordinance, convicted of having possession of gambling devices or paraphernalia, was sentenced to pay a fine of $20 and to serve 15 days in the city jailthat the ordinance under which petitioner was prosecuted is unreasonable, and for that reason void and his restraint illegal. The material part of the ordinance in question is:

“It shall be unlawful for a person to have in his possession, keep, exhibit, use or employ, any device, paraphernalia, books, machines, or instrument of any kind, or character, within the City of Tulsa, for the purpose of: (1) Receiving, accepting, recording or registering any bet or wager; (2) or the selling or making of any books, pools, or mutuels; (3) or to become custodian, or depository for gain, hire, or reward of any money, property, thing, or consideration of value, bet or wager, or to be wagered or bet, contrary to the provisions of this Article. * * *”

The information in part alleges:

“* * * Defendant, did then and there unlawfully and wrongfully have in his possession and/or keep a device or devices, paraphernalia, book, machine or instrument for the purpose of receiving, accepting, recording, registering or making a bet or bets and/or wager or wagers; that is to say defendant on said day and date did have on or about his person the following, to wit: Policy Slips, for the purpose,aforesaid in the city of Tulsa, Oklahoma, in violation of Section 16 of the Penal Code of the Revised Ordinances of the City of Tulsa, Oklahoma. * * *”

At the time charged officers arrested petitioner in possession of policy numbers and books used in operating the so-called policy game. We take judicial notice that this “policy racket” is now a form of gambling prevalent in many places and that its suppression is a proper exercise of the police power of the state and municipalities.

The contention is that an ordinance making the mere possession of the articles enumerated an offense is void. With this contention we cannot agree. It is ivell settled that the possession of instrumentalities of crime may itself constitute a crime. In State v. Murzda, 116 N. J. Law, 219, 183 A. 305, 309, it was said:

“And it is to be borne in mind that neither purchase of the ticket, nor the possessor’s intent to sell it, or to participate in a lottery, is an ingredient of the possession made punishable by the statute under consideration, nor its predecessor act of 1895, supra. The possession of such tickets or slips may not be characterized by an intent to put them to an unlawful use. Yet it tends to create both opportunity and temptation to infringe the law against lotteries; and the object of the statute is plainly to strike at the evil in its inception by a measure that is primarily preventive in character.”

The ordinance in .question defining an offense of having possession of instrumentalities for the operation of the policy game is not unconstitutional. The information sufficiently charges the offense to give the court jurisdiction.

The writ is denied.

DAVENPORT and DOYLE, JJ., concur.


text:
    FLOYD UPCHURCH v. STATE.
    No. A-9025.
    Aug. 28, 1936.
    (60 Pac. [2d] 395.)

      J. R. Charlton and Chas. W. Pennel, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

Appellant, Floyd Upchurch, was convicted in the district court of Washington -county of the crime of manslaughter in the first degree and his punishment assessed at 12 years’ imprisonment in the state penitentiary.

The information in substance charged that in said county on or about the 8th day of February, 1935, Floyd Upchurch, the defendant, did willfully, unlawfully, and feloniously malte an assault upon one Harry Payne with a club about three inches in diameter and two feet long, with the premeditated design to effect the death of said Payne, and did then and there strike and beat the head and face of said Payne, thereby inflicting certain mortal wounds with the felonious intent on the part of him the said Floyd Upchurch to kill and murder the said Harry Payne.

From the judgment rendered June 29, 1935, in conformity with the verdict of the jury, he appeals.

The only errors assigned are that the evidence is not sufficient to sustain the verdict, and that the court erred in not granting a new trial.

A substantial statement of the evidence is as follows:

Elbert Kester testified that he lived in Bartlesville; was acquainted with Harry Payne in his lifetime and the place he lived, on the south side of First street, between Rogers and Morton; that about 8:30 on the morning of February 8th, he saw smoke coming out from under the roof of the house where Harry Payne lived; that with Frank Yanley he went to the house, entered the back door, and saw the body of a man lying on the floor in the front room, and a blaze of fire about a foot high around the body; that he poured water on the body to put the fire out, and then took hold of the man’s feet and started to drag him out, and found that the body was stiff; that he told Yanley to1 call the fire department. The front door was locked, and the back room was full of salvage and junk. The fire department got there and put out the fire about 9 o’clock. There was blood on the floor and blood spots on the ceiling. A club or stick was lying on the floor near the dead man’s hand and a five-gallon can was on the floor near the body. That he knew Harry Payne, the deceased, in his lifetime, and knew him to be badly crippled in both feet and one hand was crippled.

G. H. Glessner testified that he lived at 210 South Buey, Bartlesville, his house being one block west and one block south of where Harry Payne lived; that the day before Payne was found dead, he was passing the house and heard loud talking in there; that he went in, and Floyd Upchurch, sometimes called “Red,” was there. He asked them, “What’s going, on in here?” Payne said: “Nothing much. Have you got any money?” He said, “I think I have 35 cents.” Payne said: “I want to borrow it.” And he gave it to him. Payne went out and ’ came back in about an hour with some whisky. Upchurch and Payne drank the whisky, except that witness took one drink with them; that Payne slapped witness on the side of the head, and Upchurch spoke up and said: “Harry, I would not do that, somebody is liable to tear your head off by doing stuff like that.” Payne called Upchurch a bad name, and Upchurch said, “Don’t call me no redheaded son of a bitch, if you do I will tear your damn head off.” That Upchurch had a stick of wood in his hand about 16 inches long, looked like it had been sawed with a buzz saw. Witness took hold of the stick, and Upchurch threw it down by the stove. That Upchurch and Payne had another scuffle before he left there about noon; that he saw the same stick there the next morning on the floor in front of Harry Payne’s face; that the stick had blood on it. That he saw Upchurch and Payne again about 2 or 3 o’clock in the afternoon of that day and they were intoxicated; that when he arrived at Payne’s house the next morning one of the Kest-ler boys and one of the Yanley boys were there; that Harry Payne, the deceased, was about 55 years old.

William Peyton testified that he lived on the west side of the block and Harry Payne lived middleway of the south side; that the day before Harry Payne was found dead, he saw him with Floyd Upchurch, and they were cranking a Ford truck that belonged to Mr. Payne; it was raining that day; that he saw them again that afternoon and saw Upchurch late that evening standing in the front door of Harry Payne’s place.

Lyle Femald testified that he was carrying a paper route and saw Red Upchurch and Harry Payne about 6 o’clock at night February 7th; they were on Cudahy street, between Blythe and Cass; they were trying to get their car started; that they were drinking; that Harry asked him to take a drink and to crank his Ford, and he tried to crank it and it kicked back, so he left them.

Francis Wine testified that he saw Harry Payne and. Floyd Upchurch trying to get the car started about 6 o’clock in the evening; one said they could get the car-started and the other said they could not; and then Up-church left, and about ten minutes later Harry left and took some groceries with him.

Mrs. Blalock testified that she lived a couple of blocks west and a block north of Harry Payne’s place; that a few minutes before 9 o’clock that night she saw Harry Payne with another man; they were quarreling about a truck that was stuck below her house; it had been stuck there since about dusk; they were cursing one another; and when they walked away one was carrying a five-gallon gasoline can.

James Conway testified that:

“I live in Dewey, I was acquainted with Harry Payne during his life time and I know Red Upchurch. They came to my house a few days before Payne was killed to buy some junk. The old man was driving the car. Up-church said, ‘You see that damn son of a bitch?’ I said," ‘Oh, you ought not to call that old man that.’ Upchurch said, ‘He has got some money, I am going to get it.’ I said, ‘You ought to be ashamed of yourself.’’ He said, ‘I will get it, I will kill that damn son of a bitch.’ I turned my back and he said, ‘Looks like you is chickenhearted.’ I said, ‘Listen, let me tell you one thing, white folks’ business is their business, my business is my business.’ ”

Dr. John P. Torrey testified he was a physician and surgeon; graduate of Harvard University; practicing his profession at Bartlesville; performed an autopsy on the body of Harry Payne; found the body badly burned; the left ankle was burned more than the right ankle; found four wounds on the head, one on the hair line of the forehead about an inch long, one at the top of the head, about an inch and a half long, one on the left side, and one on the back of the head; the bones of the skull were crushed into many pieces, showing great violence must have been used in causing the fractures.

Jim Knisley, deputy sheriff, testified he went to Harry Payne’s place, the fire department was there, and saw the body of Harry Payne; that he picked up a club from the floor near the body, about 16 inches long, two and one half inches in diameter, and he produced the club; that he arrested Floyd Upchurch about noon that day and brought him to the sheriff’s office; they found blood spots on his clothes. He produced the clothing worn by the defendant at the time of his arrest to show that the blood spots were still visible.

J. D. Engle, undersheriff, testified when the defendant was brought to the jail, they asked him to take off his coat and hat and his trousers; that they examined the clothes and found blood spots; they found blood spots on the underside of his hat, and blood spots were found on the coat and on the coat sleeves, and found blood spots on the pants. The clothes were indentified and introduced in evidence.

For the defense, W. J. Holmes testified that the defendant came, to his home about 5 or 5:30 on the morning of the 8th day of February, 1935, had breakfast there, and remained until about noon that day, when they went down town, and Jim Knisley arrested the defendant, that his home is six or seven blocks from where Harry Payne lived.

Mrs. W. J. Holmes testified that she had known the defendant for about eighteen years; that she heard somebody rap the back door that morning and asked who is it, and the defendant answered, “Red Upchurch.” She called her husband, and he went to the door and let him in.

Clarence Stephens testified that he called at the Holmes’ home that morning at 8 o’clock and there talked with the defendant.

Three witnesses testified that they had seen Harry Payne around his premises that morning before the fire.

Mrs. Emily Morris testified:

“I saw Harry Payne that morning exactly at 7:30, the whistle was blowing, I am old and I could be mistaken possibly, but I saw what I really supposed at that time to be Mr. Harry Payne coming out of the west door, as I have seen him do many times before.”

Two little boys testified that they had been selling Harry Payne junk and went to his house that morning to sell him some bottles and used tires, and they testified there was some one in the house at that time; that the man they saw was not the defendant,

Other witnesses testified that for several years Harry Payne and the defendant Floyd Upchurch had been good friends; that they worked together, slept and drank together.

As a witness in liis own behalf, the defendant testified that he had known Harry Payne two or three years, and he helped him in his work, hauling junk and work of that kind; that on the morning of February 6th he met Payne downtown and he asked him to help him haul some wood for the Salvation Army; that he got on his truck, an old Ford model, and helped him haul wood that day and stayed at his house that night; that February 7th was a drizzly day, and they worked on the truck the biggest part of the day and hauled one load of wood; that evening about 7 o’clock the truck slipped off on the side of the road; he would judge it was about 12 o’clock that night when Mr. Payne went after the gas; that when leaving he said: “You stay with the truck to keep somebody from stripping it.” That he never did see him anymore; that it started raining and he got under the truck and stayed until he got cold, then went to Jack Holmes’ place; that he would judge it was about 5 o’clock when he reached the Holmes’ place; that he ate breakfast there and went downtown with Mr. Holmes just before noon and was arrested, and has been in jail ever since, a trusty most of the time; that he was convicted of grand larceny in Kansas, paroled after the first year, and was later pardoned. He denied any knowledge or any connection with the homicide; that at the time of his arrest he was wearing a light colored suit; and if there were blood on his clothing, he explained that could have happened because the clothing had been worn by his father when he was butchering, and that he had picked up a boy called Bill McCoy down by the railroad who had fallen on some rocks that made his nose bleed. That this happened February 5th, and maybe the blood from this boy’s nose got on his clothes.

The foregoing substantially states both the state’s and the defendant’s theory of this case.

The record shows that when the state rested a demurrer to the evidence was interposed and counsel for the defendant moved the court to advise the jury to return a verdict of not guilty, and at the close of all the testimony in the case, the motion for directed verdict of acquittal was renewed and again overruled.

It is the contention of the defendant in this court and in the lower court that the evidence was not sufficient to sustain a conviction, in that the testimony supporting the alibi defense interposed is undisputed and that there was no testimony tending to show motive to commit the crime.

Where the evidence is circumstantial and the circumstances are such as to reasonably justify the inference of guilt, the weight and value of such testimony are exclusively for the jury. It is only where the evidence does not obviously warrant the inference of guilt that this court will interfere; otherwise the weight of circumstantial evidence and the inference to be drawn from it, in almost every case, would finally be determined by the appellate court.

This court has repeatedly held that all that is required of the appellate court in determining the sufficiency of the evidence to support a conviction is to find that there is evidence in the record which forms a sufficient basis for the verdict of the jury. The credibility of the testimony of the witnesses testifying on the part of the defendant is the exclusive province of the jury to determine, and, although such testimony may be uncontra-dicted and not directly impeached, when there are facts and circumstances in evidence tending to lessen the probability that such testimony is true, the jury may give it such weight as they deem proper, even to the extent of wholly disregarding the same. Scott v. State, 59 Okla. Cr. 231, 57 Pac. (2d) 639.

The existence of a motive for the commission of a crime is not indispensable to a conviction, but proof of motive is always competent against the defendant. Motive is but a circumstance, and the existence or nonexistence of motive is immaterial where the guilt of the defendant is clearly established.

Upon a careful consideration of the record, we are of opinion that this conviction was justified by the facts and circumstances in evidence, and any other verdict than the one returned would have been against the weight of the evidence; The jury had the witnesses before them and could see their manner of testifying, and they no doubt, in determining the truth, took into consideration all the attending circumstances of the case.

It is our conclusion, after a careful examination of the entire record, that the defendant had a fair and impartial trial, and that his conviction is sustained by the evidence.

The judgment is therefore affirmed.

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


author: DAVENPORT, .J.

text:
    OLIVER BROOKS v. STATE.
    No. A-9008.
    Sept. 4, 1936.
    (60 Pac. [2d] 805.)

      Walter Hubbell and Toby Morris, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more and Jess L. Pullen, Asst. Attys. Gen., for the State.
   DAVENPORT, .J.

The plaintiff in error was convicted in the district court of Cotton county, of rape in the first degree, and sentenced by the trial court to' serve a term of 25 years in the State Penitentiary at McAlester. The parties in this case will be referred to as they appear in the trial court.

The testimony shows that on the 9th of November, 1934, Charlie Mason, with his wife and two children, one aged three and the other four months, lived three and a half miles west of Temple, in Cotton county, Okla.; on the 9th of November, 1934, Charlie Mason was away from home; his wife and two children were at home. The defendant in this case was in the neighborhood where the Mason family lived; some time during tlie day the defendant and a man by the name of Frank Enoch were driving and the defendant demanded Enoch to stop the car when they came to the Charlie Mason home; the defendant went to the house and learned that Charlie Mason was not at home, and came in the house claiming he wanted a drink; the wife testified he finally caught her and forced her through one room to another room where there was a bed, going into detail as to what took place; that he knocked her down, and she kept fighting and hollowing and trying to get away from him; he finally got his hand on her throat and forced her down on the bed; with her resisting with all the force she possibly could, he committed rape by forcibly and against her will penetrating her body and having sexual intercourse with her. Immediately after the defendant left the place Mrs. Mason took her two children and went to the home of a neighbor and there told the neighbor what had taken place.

An examination of Mrs. Mason disclosed there were scratches on her face and neck. She was examined by a doctor who testified there were some scratches on her limbs and near her private parts. Mrs. Mason did not know who the man was, but advised the parties he went to another neighbor’s house and had been in and around the community, and in that way the officers learned who he was. When Mrs. Mason was taken to the jail she immediately identified the defendant as the man who raped her.

The defendant denies he had anything to do with the prosecuting witness, Mrs. Pearl Mason, the wife of Charlie Mason, and denies positively he raped her. The defendant admitted he had been in the neighborhood and visited a number of parties, and had visited two or more homes near her that day; he was driving with another man, Frank Enoch; they were driving pretty fast, and when he told him to stop they had gone quite a distance past the Mason home, the testimony varying from 50 to 100 yards, when the car stopped; Enoch remained in the car and the defendant walked back to the Mason home. This the defendant admits. Mrs. Mason is positive this is the man that committed the outrage upon her, and the circumstances surrounding his action at the Mason home and the defendant admitting he went to the Mason home tend to corroborate the statements of Mrs. Mason that the defendant is the man who committed the outrage. The issue is squarely drawn between the prosecuting witness, Mrs. Pearl Mason, in which she testified the defendant is the man who came to her home and by force and violence, choking and striking her, had sexual intercourse with her against her will and consent. The defendant, on the other hand, denies he had sexual intercourse with the prosecuting witness, but admits his presence at the home, and the man who was driving the car does not know what took place at the home; the only thing he undertakes to say is that when the defendant came to the car, which was about 100 yards down the slope from the Mason home, he did not seem excited or in a hurry. This is in substance the testimony.

The defendant in his assignment of errors insists many errors were committed by the trial court, and that by reason of these errors his case should be reversed, insisting the court erred in refusing to- give to the jury his requested instruction No. 1. The instructions given by the court have been carefully examined, and they correctly covered the law applicable to the facts in the case, and are as fair to the defendant as they are to the state.

The requested, instruction No. 1 of the defendant is covered by the court’s instructions, and the court did not err in refusing to give the instruction requested by the defendant. After an examination of the record, we find the court did not err in refusing to give instruction No. 2.

It is next insisted by the defendant that the court committed error in refusing to admit in evidence two letters offered by the defendant which related to a prior conviction where the defendant had been convicted of assault with intent to rape and served a term in the State Penitentiary. These letters were not material to the issue involved in this case and shed no light upon the facts in the case, and his contention that he was not guilty shed no light as to the guilt or innocence of the defendant, wherein he had been tried and found guilty and had served a term in the penitentiary. The state could only go into the question of his conviction, and if it went further than that in inquiring into the cause of the conviction, it was an immaterial and improper examination; but from an examination of the record, we do not find the state went so far in asking questions as to justify this court in reversing this case.

It is next urged by the defendant that the special prosecutor used language calculated to arouse the passion and prejudice of the jurors, and that by reason of the action of the special prosecutor he did not have a fair and impartial trial. This court has carefully read the stipulation attached to the case-made, as to what was said by the special prosecutor in his argument, and while several of the statements were not material in presenting the argument of the state, the special prosecutor was summing up the evidence, and his argument cannot be considered .such a prejudicial error as would warrant this court in reversing the case.

It is not deemed necessary to prolong this opinion further than to say the issues are squarely joined in the evidence, the state showing conclusively by Mrs. Mason that the defendant was the man who raped her. The defendant denying he raped the prosecuting witness, but admitting he had gone to the home of the prosecutrix and went in. Conflicting issues of fact are for the sole determination of the jury. Section 3062, O. S. 1931; Adams v. State, 54 Okla. Cr. 363, 21 Pac. (2d) 1075; Calvert v. State, 10 Okla. Cr. 185, 135 Pac. 737.

Where the state’s evidence is sufficient, a judgment on conflicting evidence will not be reversed. Taylor v. State, 21 Okla. Cr. 351, 207 Pac. 746.

Before a conviction will be reversed as contrary to the evidence, it must appear there is no testimony in the record from which the jury could rationally conclude the defendant was guilty, unless it appears that the jury was influenced by improper motives. There is nothing in the record showing the jury was influenced by improper motives.

The court in its instructions correctly advised the jury as to the law. The defendant was given a fair and impartial trial. Finding, no errors in the record warranting a reversal, the judgment of the trial court is affirmed.

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


text:
    ARTHUR JONES v. STATE.
    No. A-9079.
    Sept. 4, 1936.
    (60 Pac. [2d] 814.)

      C. H. Madden, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the .State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of selling intoxicating liquor and by the court sentenced to imprisonment in the county jail for 30 days and to pay a fine of $50 and costs.

The testimony in this case is brief on the question of the sale of the whisky by the defendant, Arthur Jones.

John Mayhue, testifying for the state, stated he paid one dollar for a short quart of whisky.

“Q. You paid this dollar to a colored man? A. I don’t know, it might have been a woman.”

Otho Morris, an undersheriff, testified for the state, and was asked:

“Q. You did not see the defendant sell the whisky to Mr. Mayhue? A. No.”

Mr. Worrels, for the state, on direct examination testified:

“Q. Did you see the defendant Arthur Jones with any? A. I did not.”

On redirect examination the witness stated in answer to the following:

“Q. You said there Avere two other colored men in the yard? A. They come around the house Avith Mr. Mayhue.
“Q. Did they come with Mr. Mayhue? A. I don’t remember seeing them standing in the yard. I remember them coming up with him.”

On reeross-examination the witness Worrels was asked:

“Q. You don’t know whether Mayhue got the liquor from Jones or some one else? A. No, sir.”

The defendant, testifying for himself, admitted he was at home the night the officers were out to his house; denies he saw the witness Mayhue, or that he sold to this man Mayhue whisky, positively stating that “no sale was made by me to Mayhue.” He testified further that there were two other colored fellows at the house.

“I was in bed. The officers came out about 11 o’ clock. I neither made the sale nor did I authorize the sale to be made around my place.”

After a careful reading of the record, we fail to find that any witness in his testimony stated that the whisky was bought from the defendant in this case. The witness Mayhue does not know from whom he bought it, and the other witnesses did not see Mayhue buy any whisky from the defendant, and all admit that at the time they went to the defendant’s home there were two other men in and around the house, and when the witness Mayhue came back to the car where the officers were he brought some whisky that he had bought on the defendant’s premises; that two men came around the house with him.

The defendant in this case may be guilty, but the evidence is wholly insufficient to convict. The evidence in this case arouses nothing more than a mere suspicion that the defendant sold the whisky to the prosecuting witness, but a defendant cannot be convicted upon suspicion.

The evidence being insufficient to sustain the conviction, the judgment of the trial court is reversed.

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