text:
    REESE SMITH et al. v. STATE.
    No. A-5057.
    Opinion Filed July 21, 1925.
    (238 Pac. 233.)

      243
    J. H. Hays, for plaintiffs in error.
    George F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges:

“That Reese Smith, Marvin Smith, Lester Harvey, Bunk Green, Jess Smith, and Ab Moore, did, in Love county, and in the state of Oklahoma, on or about the 28th day of November in the year of our Lord, 1923, and anterior to the presentment hereof, commit the crime of having sour mash in their possession in the manner and form as follows, to wit: That on the day and year aforesaid, and in the county and state aforesaid, the said Reese Smith, Marvin Smith, Lester Harvey, Bunk Green, Jess Smith, and Ab Moore, each of them acting together, did then and there unlawfully, knowingly, and wrongfully have in their possession 38 barrels of sour mash; the said sour mash mentioned aforesaid being then and there fit and intended to be used in the manufacture of intoxicating liquors, and containing more than one-half of one per cent, of alcohol by volume, with the unlawful intent on the part of them, the said Reese Smith, Marvin Smith, Lester 'Harvey, Bunk Green, Jess Smith, and Ab Moore, to violate the prohibitory liquor laws of the state of Oklahoma, contrary to,” etc.

On the trial, the jury returned a verdict finding the defendants Reese and Lester Harvey guilty as charged in the information, and fixing the punishment of each at a fine of $50 and 30 days in the county jail. To reverse the judgment they appeal. The errors assigned question the sufficiency of the information and the sufficiency of the evidence to support the verdict.

Upon arraignment, the defendants interposed a demurrer to the information on the ground that it does not state facts sufficient to constitute a public offense. The demurrer was overruled, and exception allowed.

The information was evidently drawn under section 7002, C. S. 1921, as section 1, c. 42, Session Laws of 1923-24> approved March 22, 1924, making it unlawful “to manufacture, ferment or possess, any compound mixture, mash, wort or wash fit for distillation,” was not in effect when this prosecution was instituted.

An information based on said section 7002 should have alleged that the so-called sour mash was capable-of being used as a beverage. In the absence of this essential allegation, the information is not sufficiently definite, direct, and certain as to the offense intended to be charged. The information and judgment both designate the offense as unlawful possession of sour mash. It may be the pleader intended to charge an attempt to manufacture whisky instead of an unlawful possession of sour mash As it is, the information is unsuffi-cient, and the demurrer thereto should have been sustained. Jerome v. State, 28 Okla. Cr. 131, 229 P. 527; Cox v. State, 30 Okla. Cr. 413, 236 P. 436; Seay v. State, 29 Okla. Cr. 189, 233 P. 766.

Because the information is insufficient to charge an offense, the judgment of the lower court is reversed, and the cause remanded, with direction to sustain the demurrer to the information.

BESSEY, P. J., and EDWARDS, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    JAMES GOGGINS v. STATE.
    No. A-4994.
    Opinion Filed July 23, 1925.
    (238 Pac. 223.)

      Phillips & Phillips, for plaintiff in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   PER CURIAM.

Upon the motion of the Attorney General, and proof adduced in support thereof, it is made to appear that plaintiff in error at this time is not, and for a long time past has not been, within the jurisdiction of this court. The proof indicates that he is probably a fugitive from justice, or that he may not at this time be alive.

Where a plaintiff in error has placed himself in a situation where he cannot be made to respond to the orders of this court, his appeal should be dismissed. Upon the showing made, it is ordered that this appeal be, and the same is hereby, dismissed.


author: DOYLE, J.

text:
    JUDGSON BONNER v. STATE.
    No. A-4686.
    Opinion Filed July 23, 1925.
    (238 Pac. 229.)

      .Don Welch, J. O'. Minter, and J. R. McClendon, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges that in Marshall county, December 8, 1922, the defendants, Major Bonner and Judgson Bonner, did have in their possession 10% gallons of whisky with the unlawful intent to sell the same. On this separate trial, the jury returned a verdict finding the defendant Judgson Bonner guilty as charged in the information, and fixed his punishment at a fine of $50 and confinement in the county jail for 30 days. From the judgment rendered on the verdict, he appeals.

The errors assigned are that the court erred in admitting incompetent evidence, and that the verdict is not sustained by sufficient evidence.

03. W. Jones, deputy sheriff, testified with W. B. Dickerson and A. M. Corder he went to Judgson Bonner’s farm to search the premises for liquor, under authority of a search warrant; that they saw him walking down a path that leads from his house to a spring; that he walked on past the spring into a canyon, and seeing the officers, stopped; that they walked up' to him and within a few feet from the place he stopped found a 10-gallon can containing whisky; that they left Mr. Corder there with the defendant and went to the house; Major Bonner and a man by the name of Robinson were in sitting at a table on which was a half-gallon can of whisky; that the 10-gallon can was covered with a sugar sack, and was about 20 steps from the spring; that further on down the canyon, three quarters of a mile from the house, they found a still and some whisky. W. B. Dickerson and A. M. Corder testified, in substance, to the same facts as did witness Jones. The defendant did not testify.

Upon an examination of the record, we find no prejudicial error in the rulings of the court in the admission of testimony.

As to the sufficiency of the evidence, we think there can be but little doubt. The trial was in all respects fair, and we are unable to find anything in the record sufficient to warrant us in interfering with the verdict.

The judgment appealed from is therefore affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    ISPARHECHER STEVENS v. STATE.
    No. A-5142.
    Opinion Filed July 23, 1925.
    (238 Pac. 216.)

      A. L. Emery and A. W. Whitfield, for plaintiff in error.
    George F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges that on August 14,1923, the defendant, Isparhecher Stevens, and Eli McNeal did transport intoxicating liquors from some place unknown to the 70.0 block, East Fifth street, in the city of Okmulgee. On the trial the jury returned two verdicts — one finding the defendant Eli McNeal not guilty; the other finding the defendant “Isparhecher Stevens guilty of transporting intoxicating liquors as charged in the information herein, and fixing his punishment at confinement in the county jail for a tei’m of 30 days and a fine of $100.”

To reverse the judgment he appeals, and assigns as error that the.verdict is contrary to law and that the evidence is insufficient to sustain his conviction.

The sole witness for the state, O. H. Parks, testified as follows:

“I was with the Okmulgee police department. It was after dark, about 9 o’clock, when I first saw these two boys. They turned off Fifth street and onto Creek, going north; Eli McNeal was driving, and Stevens was in the car with him; Eli was pretty well intoxicated and Stevens was in the same condition. I found a tow sack in the car which contained a broken jug and a bottle of whisky. The car was going from the depot. I heard somebody tell Eli to stop; I would not say it was Stevens; I had to strike Eli to stop him.”

The testimony of the defendant, Stevens, in his own behalf is as follows:

“I was over there by the store, and Eli came along drunk. I says, ‘You are a friend of mine, don’t you want me to help you home?' and I got in to help him home. He turned into Fifth street instead of going on to Fourth. About that time Mr. Parks came up. I told Eli to stop the car; he kept on, and I grabbed the wheel. By that time Mr. Parks was on the car and struck him on the head. Mr. Parks said, ‘You ought to have stopped when Stevens told you to stop.’ I didn’t know that there was whisky in the car. I was not drunk, and did not drink a drop of liquor that day.”

Jim Nance testified:

“I saw the defendant, Eli McNeal, when he drove up by Ogg’s store. 'Hie looked like he was drunk. I went to him and said, ‘What is the matter with you?’ He said, ‘Are you going to arrest me?’ I said, ‘No; I won’t do that, Eli. You go home, or the first thing you know you will be in jail.’ He said he would. It was between 8 and 9 o’clock in the evening, Stevens was not in the car with him at that time.”

The defendant, Eli McNeal, testified:

“That he quit work at 6 o’clock that day. Stokes came by and asked him to take him home; he said to go by Stevens, and he would go with us. Stokes’ house is about a mile north on the Beggs road, two miles west and then south about a mile, a,nd then two miles through a field across the river, and he drove there. Stevens had a jug in a sack and put it in the car. That he did not have a nickel’s worth of interest in it. Stevens had a bottle that he filled out of the jug, and he drank some out of that. That when he saw the officers he didn’t know whether to stop or not, and they said stop and jumped on the car and hit him on the head. That on their way back Stevens was so drunk that he fell in the river, and they had to cross in a boat.”

The defendant, Stevens, recalled, testified that he never went out to Stokes’ place and did not know where Stokes lived.

One who knowingly carries in his car intoxicating liquor, belonging to and in custody of another person in the car, is guilty of unlawfully transporting such liquor. Under this rule the defendant, Eli McNeal, on his own testimony, is guilty as charged, and was therefore an accomplice, even though the jury returned a verdict of not guilty. There was no proof other than his testimony that Stevens had possession or control over the sack and its contents found in his car. One riding in a car in which intoxicating liquor was being transported on invitation of the driver, having no control over the car or liquor, and not concerned in its transportation is not guilty of unlawfully transporting intoxicating liquor.

Qine cannot be convicted upon the uncorroborated testimony of an accomplice; but the testimony of an accomplice must be corroborated by such evidence as in itself, and without the aid of the testimony of the accomplice, tends in some degree to connect the defendant with the commission of the offense. Martin v. State, 12 Okla. Cr. 510, 159 P. 940. Tested by an inflexible rule of law (section 2701, C. S. 1921) the testimony of the codefendant in this case cannot support a conviction.

It follows that the defendant’s motion for a new trial should have been granted, and that the judgment appealed from must be reversed.

'BESSEY, P. J., and EDWARDS, J., concur.


author: BESSEY, P. J.

text:
    ODELL PERRY v. STATE
    No. A-4887.
    Opinion Filed July 23, 1925.
    (238 Pac. 229.)

      Wright & Gill, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

This is an appeal from the district court of Oklahoma county, wherein plaintiff in error was convicted of burglary in the second degree, with his punishment assessed at two years’ imprisonment in the state penitentiary.

The record discloses the following facts: On February 10, 1923, the police officers of Oklahoma City were called to the Broadway Billiard Hall. Two officers who responded to the call found that a transom over the back door had been broken and that some one was inside. One of the officers climbed through the transom and went inside, where they found the defendant lying on a bench. An examination of the front part of the billiard hall showed that the cash register had been emptied and that a small safe had been broken into; on or near this safe the officers found a pair of gloves with the initials of the defendant on them. The defendant was searched by the officers, and about $5 in small change was found in his pockets. At that time he told the officers that the proprietor had left him inside and had intrusted him with this money for safe-keeping.

At the trial the defendant testified that he had been drunk all that afternoon and had won the money in a crap game on Grand avenue. He also denied that he had told the officers, when they arrested him, that the manager had left him in charge of the pool hall and the money found in his possession. He stated that after the crap game he went into the pool hall, in an intoxicated condition, and lay down on a bench seat near the front and went to sleep, and that he had no recollection of anything that occurred after that until he was awakened by the officers. The jury rejected the defendant’s explanation, as they had a right to do.

Defendant claims that the trial court had no jurisdiction, because the record does not show that a preliminary hearing was had. No claim is made that there was no such hearing in fact. It has been held that it is not necessary to show affirmatively that there was a preliminary hearing. If in fact there was no such hearing, that fact should be shown, and the jurisdiction of the trial court challenged by the defendant in a plea in abatement or by motion to quash. Williams v. State, 6 Okla. Cr. 373, 118 P. 1006; Buttry v. State, 18 Okla. Cr. 330, 194 P. 286.

The record discloses no material variance between the averments of the accusation and the proof, as claimed by the defendant.

No exceptions were reserved to any of the instructions given, and no other or different instructions suggested by the defendant. The instructions as given were fair to the accused.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


author: EDWARDS, J.

text:
    LUTHER WORLEY v. STATE.
    No. A-4832.
    Opinion Filed July 23, 1925.
    (238 Pac. 225.)
    Arnold & Woodruff, for plaintiff in error.
    George F. Short, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error will be referred to as defendant, as in the court below. From a conviction on a charge of larceny of domestic animals, the defendant has appealed.

The record discloses that the defendant and two others were jointly charged with the larceny of hogs from a car and from the stockyards at Stillwell. A severance was had and the defendant tried separately. The principal question raised in defendant’s briefs is that the evidence is not sufficient to sustain the verdict, but at most establishes no more than the receiving of stolen property. The fact of the larceny is undisputed. The record discloses that the defendant was assisting one Woods, the owner, to load certain hogs out of the stock pens into cars; that after the loading, about 11 o’clock at night, the defendant went to the home of Dudley, and some conversation of an incriminating nature took place. During the night the hogs were taken and kept at the home of Dudley, and the next morning driven up an alley to defendant’s barn, where they were concealed. The defendant helped drive them in the barn, locked them in a stall, and barred up the barn door. At the time of his arrest he made a statement indicating guilt. The evidence was largely circumstantial. The defendant took the stand and testified that he bought the hogs on credit from Dudley, his codefendant, but soon thereafter learned that they were stolen hogs.

There are other circumstances which bear out the theory of the state. The evidence of the state, if believed, and the inferences logically to be drawn from it, amply prove the guilt of the defendant. The weight of the evidence and the credibility of the witnesses is a matter within the province of the jury. They are in a better position to determine the truth or falsity of the testimony given, and when the evidence and the inferences and the deductions to be drawn from it clearly establish the guilt of the defendant, this court will not reverse a judgment for insufficiency.

The case is affirmed.

BESSEY, P. J., and DOYLE, J„ concur.


text:
    HARRY McCOY v. STATE.
    No. A-4858.
    Opinion Filed July 23, 1925.
    (238 Pac. 223.)

      John L. Ward, for plaintiff in error.
   EDWARDS, J.

The plaintiff in error will be referred to as defendant, as in the court below. From a conviction on a charge of unlawful possession of intoxicating liquors, the defendant has appealed, setting out various assignments of error challenging the constitutionality of the act by which the municipal criminal court was created, and assigning error of the court in trying the case to a jury after the defendant had expressly waived a jury. These matters have been decided adversely to the contentions of the defendant, and it is not necessary that we again review them. Buchanan v. State, 30 Okla. Cr. 362, 236 P. 903; Miles v. State, 31 Okla. Cr. 4, 236 P. 907.

The defendant further complains that no sworn complaint or warrant was issued for his arrest, and that the arrest was unlawful, and that the evidence is insufficient to sustain the verdict. The record discloses that a search warrant for the rooms in which the defendant lived was issued, and upon a search four quarts of whisky and five quarts of gin were found in two suit cases in the room of defendant, which was seized, and the defendant arrested. On the following day he was arraigned and entered his plea. Later he asked leave to withdraw his plea for the purpose of challenging the proceedings, and was permitted to file a motion to quash the panel and a demurrer to the jurisdiction on constitutional ground, which were overruled. A challenge to the jurisdiction of the court over the person by reason of an arrest without a sworn complaint or warrant must be made before plea. By pleading to the information, the objection is waived. State v. Frisbee, 8 Okla. Cr. 406, 127 P. 1097.

The defendant denied that he had possession of the whisky in question, and in support offered the evidence of one Fred Byrd, who occupied an adjoining room and was at the time of the trial serving a sentence in jail for violating the prohibition law, in which Byrd claimed to be the owner of the whiskey in question.

The credibility of the witnesses and the weight to be given their evidence was a matter peculiarly in the province of the jury. The logical deductions from the evidence offered sustains the verdict. Where an accused is charged with the possession of intoxicating liquor with intent to sell, and the proof shows possession of the prohibited quantity, it is sufficient under the prima facie rule to submit to the jury as a matter of fact for their determination, and, unless there was some unusual circumstance casting doubt on the verdict of the jury, it will not be disturbed. Cosby v. State, 30 Okla. Cr. 294, 236 P. 51.

Finding no reversible error, the case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


author: PEE CUEIAM.

text:
    VIRGIL DURFEY v. STATE.
    No. A-4910.
    Opinion Filed July 23, 1925.
    (238 Pac. 224.)

      Swindall & Wybrant, for plaintiff in error.
   PEE CUEIAM.

The plaintiff in error will be referred to as defendant, as in the court below. The defendant was convicted, in the district court of Dewey county, on a charge of assault with intent to rape, and has appealed. The case was filed in this court on November 10, 1923. No briefs have been filed either by the defendant or the state. We have examined the record, and have reached the conclusion that the defendant was fairly tried according to the forms of law, that the verdict is amply supported by evidence and there is no reason apparent why the judgment should be disturbed by this court.

The case is affirmed.


text:
    JEFF SETTLE v. STATE.
    No. A-4929.
    Opinion Filed July 23, 1925.
    (238 Pac. 499.)
    Sargent & Eoss, for plaintiff in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   PER CURIAM.

The Attorney General has filed ' a motion to dismiss this appeal, for the reason that no final judgment was ever rendered in the cause.

The record shows that the defendant made a motion for the return of property seized by officers under authority of a search warrant, which motion was by the court denied. From the order overruling this motion, the defendant has attempted to appeal to this court.

This ruling or order is not a “judgment,” within the meaning of section 2805, Comp. Stat. 1921, from which an appeal by the defendant lies. “Judgment” means final judgment, as distinguished from an intermediate or ancillary order made during the progress of the trial. Mc-Lellan v. State, 2 Okla. Cr. 633, 103 P. 876; Stanton v. State, 23 Okla. Cr. 193, 213 P. 914.

The motion of the Attorney General is sustained, and the appeal dismissed.


text:
    E. A. HALLMARK v. STATE.
    No. A-4997.
    Opinion Filed July 23, 1925.
    (238 Pac. 221.)
    W. R. Withington, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

The plaintiff in error, E. A. Hallmark, by verdict of a jury was found guilty of the illegal transportation of whisky, with his punishment fixed at a fine of $500 and confinement in the county jail for a period of six months. After the overruling of a motion for a new trial, the court rendered judgment in accordance with the verdict.

This case was regularly submitted at the March, 1925, term of this court, at which' time no briefs had been filed in accordance with the rules of this court. At the time of submission further time was given to file briefs, but no briefs have since been filed. From this we assume that the plaintiff in error has abandoned the appeal. An exam-, ination of the record discloses that plaintiff in error was apprehended by police officers in the act of transporting whisky, that the evidence is amply sufficient to support the verdict, and that the information and the instructions of the court are correct.

The judgment of the trial court is affirmed.


text:
    JIM WEBB v. STATE.
    No. A-4974.
    Opinion Filed July 23, 1925.
    (238 Pac. 508.)

      H. H. Edwards, for plaintiff in error.
    Geo. F. Short, Atty. Gen. and G. B. Fulton, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error will be referred to as defendant, as in the court below. '

From a conviction in the county court of Oklahoma county on a charge of having possession of intoxicating liquor with intent to sell, the defendant has appealed. The record in the case is very brief. Two witnesses testified for the state. The defendant did not offer any evidence. The testimony is that certain officers went to a place at 2800 W. Eleventh street, Oklahoma City, with a search warrant, there found the defendant with about 12 gallons of whisky, engaged in filling pint bottles. The whisky was seized, and the defendant arrested.

The defendant contends that since there was no proof that the search warrant under which the search was made was issued upon a proper affidavit, and since the state did not offer in evidence the affidavit made for the purpose of procuring a search warrant, that the evidence was incompetent. The record does not show any objection to the introduction of the evidence in question, and if the contention was ever tenable the objection was waiv.ed by failure to object to the introduction of the evidence. However, error is not to be presumed, but the presumption is that official action is in conformity to the law, and when it appears that a peace officer in making a search does so by authority of a search warrant, the presumption is that it was regularly issued upon proper affidavit, and it is incumbent upon a defendant, who challenges the sufficiency of the warrant or the affidavit, to show that they were not legal or sufficient, unless the proof on the part of the state should disclose such fact.

The judgment is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    SANDY McMILLAN v. STATE.
    No. A-4918.
    Opinion Filed July 24, 1925.
    (238 Pac. 510.)
    Ed Crossland, for plaintiff in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charged that in Tulsa county, April 9, 1923, Sandy McMillan did have in his possession certain intoxicating liquors, to wit, 23 cases of whisky, with the unlawful intent to sell the same. On the trial the jury returned a verdict finding him guilty, and fixed his punishment at a fine of $500 and confinement for 6 months in the county jail. From the judgment rendered on the verdict, he appeals.

Error is assigned because the court refused to quash the information on the ground that the name of the county attorney was not subscribed thereto by himself as required by section 2511, C. S. 1921. The information concludes, “John M. Goldesberry, County Attorney, by W. P. Howser, Deputy”; the first name being written with a typewriter, and the second being the pen and ink signature of W. P. Howser. The proof showed that Mr. How-ser was a duly appointed assistant, and that the county attorney’s name was written on the information by his stenographer at the request of Mr. Howser. It is urged that writing the name of the district attorney with a typewriter does not comply with statute.

“An unqualified reading of the words of the statute would make it necessary for the county attorney himself to subscribe his own name to all informations; but it has been held that the county attorney need not himself subscribe his name to an information, as it is sufficient if it be done by his legally appointed assistant.” McGarrah v. State, 10 Okla. Cr. 21, 133 P. 260.

When the county attorney’s name is affixed with authority to an information which is signed by his legally appointed assistant, it is a sufficient compliance with the statute. However, the better practice is to sign both names with pen and ink, and the assistant county attorney should designate his office by using the statutory words.

It follows that the defendant’s motion was properly overruled.

It is also urged that the court erred in refusing to discharge the jury upon request of the defendant, when one of the prospective jurors on his voir dire examination made this statement, “Mr. Crossland, where there is good deal of smoke you must always get a little fire.” It appears that defendant did not challenge the juror for cause, but asked that the members of the panel be discharged on account of this statement. We think the court properly refused the request to discharge the panel.

It is also insisted that the verdict of the jury is not sustained by sufficient evidence, and that all the evidence offered by the state was incompetent, because said evidence was obtained through an illegal search warrant.

The undisputed facts are that on the day alleged the sheriff, together with] other officers, raJided defendant's place and made a search for intoxicating liquor, finding 23 cases of whisky; that defendant’s place was a place of public resort.

R. D. Sanford, sheriff, testified that with his deputy, Jack Quast, Reese Moran, chief of police, Vic Ellis, and Frank Jones policemen, and J. E. Brent, federal enforcement officer, he visited defendant’s place about a mile out of the city on the Peoria street road; that Mr. Brentz, who had a search warrant, asked him to assist him in executing the same; that under the driveway of the barn they found a plant covered with dirt, which contained 23 cases of red whisky; that defendant was there present with the officers, and made the statement that “it had been there for several months, and if he had any idea that we were coming out we would not have found it, that it was about a $3,000 loss.” Vic Ellis, Jack Quast, and W. F. Jones testified, in substance, to the same facts as did Sheriff Sanford.

At the close of the state’s evidence there was a motion by the defendant for a directed verdict of acquittal, which motion was denied. The defendant did not testify.

It is urged in the brief that—

“The state should have been required by the court to produce the search warrant, if any, the officers had, before allowing any other evidence to be introduced, in order that defendant might avail himself of any defect therein, in case it was produced, and that the testimony of Sheriff Sanford that Brentz had a search warrant was secondary evidence, and should not have been admitted as a basis to vitalize the other proof in the case.”

No authority is cited to support this contention, and, in view of the fact that the undisputed proof is that defendant made no objection at the time to the execution of the search warrant, and in fact admitted his ownership of the liquors seized, the contention made is without merit.

Upon a careful examination of the whole record we are of the opinion that the substantial rights of the defendant have not been prejudiced by any adverse ruling made by the court, and finding no prejudicial error, the judgment appealed from will be affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    SANDY McMILLAN v. STATE.
    No. A-4919.
    Opinion Filed July 24, 1925.
    (238 Pac. 511.)
    Ed Crossland, for plaintiff in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges that in Tulsa county, April 10, 1923, Sandy McMillan did have in his possession certain intoxicating liquors, to wit, 140 quarts of whisky, 60 gallons of alcohol, one case of gin, with the unlawful intent to sell the same. On the trial the jury returned a verdict finding him guilty, and fixing his punishment at a fine of $500 and confinement for 6 months in the county jail.

The undisputed facts are that on the date alleged, the sheriff, together with other officers, raided defendant’s place under authority of a search warrant, and found intoxicating liquors as alleged in the information; that defendant’s place was a place of public resort.

R. D. Sanford, sheriff, testified that, with Vic Ellis, Marshall Moore, Frank Jones, R. H. Hyde, and T. E. Brentz, he visted the defendant’s place about a mile out of the city on the Peoria street road, and under authority of a search warrant issued to him by the county judge he, assisted by the other officers, searched the defendant’s premises; that they uncovered in the chicken yard a concrete cave, and in that cavity was 15 5-gallon cans of alcohol, 18 1-gallon cans, 21 sacks of whisky, and a case of gin. Vic Ellis, Marshall Moore, R. H. Hyde, and Frank Jones testified, in substance, to the same facts-as did sheriff Sanford.

At the close of the state’s evidence, there was a motion by the defendant for a directed verdict of acquittal, which motion was denied. The defendant did not testify.

The errors assigned on which the defendant asks for a reversal are the same as in the case of Sandy McMillan v. State, 31 Okla. Cr. 261, 238 P. 510, this day decided adversely to defendant’s contentions.

For the reasons stated in the opinion in that case, the judgment appealed from is affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    O. W. HIGGINS v. STATE.
    No. A-5134.
    Opinion Filed July 25, 1925.
    (238 Pac. 1118.)
    See, also, 29 Okla. Cr. 367, 233 P. 1116.
    E. T. Barbour, for plaintiff in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   PER CURIAM.

In this case the Attorney General has filed a motion to dismiss the appeal, upon the ground that the plaintiff in error is a" fugitive from justice. This motion is supported by the affidavits of the sheriff and the county attorney of Canadian county, and proof of service upon the attorney for plaintiff in error is shown, but no response to said motion has been made. From the motion, and the affidavits in support thereof, it appears that plaintiff in error cannot at this time be made to respond to any order or judgment of this court. The motion is therefore sustained, and the appeal dismissed.


text:
    Ex Parte LENA RASMUSSEN.
    No. A-5464.
    Opinion Filed July 25, 1925.
    (238 Pac. 231.)

      J. Q. A. Harrod and W. R. Withington, for petitioner.
    The Attorney General and Fred Hansen, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

The petitioner says that she is illegally restrained of her liberty by the sheriff of Oklahoma county; the facts as admitted by all parties being substantially as follows:

The petitioner was tried in the county court of Oklahoma county for the offense of maintaining a liquor nuisance, and in said case, on October 17, 1921, was sentenced to serve 90 days in the county jail and to pay a fine of $300. From this judgment and sentence she appealed to the Criminal Court of Appeals, where the judgment of the trial court was affirmed on June 23, 1923. Following the affirmance of the judgment by the appellate court on June 29, 1923, the petitioner was arrested by the sheriff of Oklahoma county and placed in the county jail. On the same day the petitioner was released by the sheriff, pursuant to a communication from J. C. Walton, Governor of the state of Oklahoma; the communication or order from the Governor to the sheriff reading as follows:

“Hon. Tom Cavnar, Sheriff of Oklahoma County, Oklahoma City, Oklahoma — Dear Sir: In the matter of Lena Rasmussen, convicted in the county court of Oklahoma county, Oklahoma, on the 20th day of September, 1921, of the offense of maintaining a public nuisance and sentenced to serve ninety days in jail and to pay a fine of three hundred dollars and costs of the action: By order of the Governor you are hereby instructed and directed to grant unto the said Lena Rasmussen an indefinite leave of absence from the above jail sentence and to remit the fine of three hundred dollars and costs.
“Respectfully,
“J. C. Walton, Governor.”

The sheriff thereupon released the petitioner, in accordance with the communication from the Governor, and she has since been at liberty until March 3, 1925. Since her release she has lived in Oklahoma City, and up until the 14th day of February, 1925, no effort was made to reincarcerate her in the county jail or to collect the fine imposed in the liquor nuisance case. On the date last named the petitioner was charged with the illegal sale of intoxicating liquor, and while this accusation was pending, on March 3rd, a commitment was issued for her out of the county court of Oklahoma county, based upon her former conviction, by authority of which she was again committed to jail. At the time of this last incarceration the time for serving her sentence and for the payment of the fine and costs at the rate prescribed by law had expired.

On or about March 3, 1925, the then Governor of the state of Oklahoma revoked the order or leave issued by J. C. Walton and directed the sheriff of Oklahoma county to enforce the judgment against the petitioner as though no pardon, parole, or leave of absence had ever been granted. The incarceration so ordered and made the petitioner says is illegal, and she asks this court to grant her a writ of habeas corpus directing her release. It is conceded that the communication or order from Governor Walton was voluntarily sought, obtained, and accepted by the petitioner.

The petitioner, in her briefs and argument here, urges that the letter from Governor Walton was in effect a full, complete, and unconditional pardon, and that it was not subject to revocation; that the Governor and other agents of the state so regarded it, and that the peti-titioner accepted it as such; that since the state failed to question the validity of the Governor’s communication for a period of nearly two years after its delivery, a period extending beyond the period for which she was sentenced, and since she accepted its benefits in good faith, and was so permitted to accept them, the state is now estopped to question the force and validity of this instrument; that, if the state were permitted to question the validity of such an order at the end of 2 years, it could at any time within 5, 10, or 25 years, even, require the serving of a sentence or the collection of a fine; that the fine of $300 was expressly remitted by this executive order, and this order, whether valid or not, was a part of the consideration of the acceptance of the terms of clemency by the petitioner, and is irrevocable after full performance by both parties.

The petitioner says that this instrument is in effect an unconditional pardon, for the reason it ordered the petitioner discharged unconditionally, with a full remission of the fine, so covering everything that could be incorporated in a formal pardon regularly issued; that a fair interpretation of the order directing the “indefinite leave of absence,” and the mandatory direction “to remit the fine of three hundred dollars” so indicates. It will be observed that the Governor’s communication contained no conditions of good behavior, or requirements to report, or conditions of any other kind. While the word “pardon” does not appear in the instrument, no particular form of words or expression is necessary to make an instrument a pardon. Ex parte Ray, 18 Okla. Cr. 167, 193 P. 635; Sergeant v. Murphy, 22 Grat. (Va.) 789, 12 Am. Rep. 563; Jones v. Harris, 1 Strob. (S. C.) 160. In the Ray Case, supra, the court said:

“The general rule governing the construction of pardons” is that doubtful grants “must be interpreted most beneficially” in favor of the grantee, “and most strongly against the state.”

A fair interpretation of the Governor’s communication, in the light of authorities cited, would give the petitioner sufficient justification for regarding and accepting the instrument as a pardon, as distinguished from a parole, for the reason that a parole carries with it conditions upon which the prisoner obtains his liberty, in a way such that he may accept or reject the conditions. We think that the petitioner in this case was justified in accepting the communication as being equivalent to a pardon, notwithstanding the fact that it did not bear the signature and attestation of the Secretary of State.

We do not mean to say, and do not hold, that a pardon, or instrument equivalent to a pardon, is valid without such attestation. We merely hold that, under the circumstances in this case, where all parties concerned acquiesced' in and acted upon the instrument as though it were a valid pardon, the state is now estopped from attacking its validity in that respect. In the case of Ex parte Taggert, 12 Okla. Cr. 439, 158 P. 288, it was held that an imprisonment based upon a breach of the terms of a pardon after the term of imprisonment had expired could not be upheld. In the instant case there were no terms imposed, so that the reasons are the more impelling against a revocation or modification of the instrument directing imprisonment, after the expiration of the time designated in the sentence.

The instant case is distinguished from the case of Ex parte Eley, 9 Okla. Cr. 76, 130 P. 821. In the Eley Case the petitioner was convicted of a misdemeanor in the county court, judgment imposing imprisonment was pronounced by the court, and a commitment issued, and the prisoner was incarcerated in jail. By agreement among the county judge, the county attorney, and the sheriff he was released within a short time. After the expiration of a time greater than the time over which his sentence of imprisonment would have been extended, the county court ordered him recommitted to serve the original sentence. This court held that the action of the officers in discharging the petitioner was without authority of law (and we may add here, without even color of authority, being an illegal agreement of the officers to exercise the pardon and parole functions of the Governor), but that the petitioner, Eley, while at liberty, was in effect a “trusty”, and that further imprisonment would be unwarranted and unlawful.

The instant case is also distinguished from Ex parte Mason, 29 Okla. Cr. 297, 233 P. 785. The petitioner in the Mason Case, while serving his sentence, was granted 60 days’ leave of absence. Before its expiration the leave of absence was extended, and a. succeeding Governor again extended the leave; each leave, or extension, containing this recital, “Said judgment is to be hereafter proceeded with to all intents and purposes as though this leave had not been granted,” making it a conditional parole. The court very properly held that the recipient was bound by the conditions.

Under the circumstances shown in the instant case, we think the petitioner was not a “trusty,” as in the Eley Case, nor bound by any conditions, as in the Mason Case. Here the sheriff, the other agents of the state, and petitioner believed that the petitioner was released upon proper authority; the petitioner accepting and acting upon the release in such belief. The state at this late time is therefore estopped from claiming that the communication from the Governor, authorizing such release, was without authority and invalid. And this holding in no way conflicts with the findings of this court in the case of Ex parte Xenophon Jones, 25 Okla. Cr. 347, 220 P. 978, 34 A. L. R. 206, holding that the attestation of the Secretary of State is necessary to constitute a valid pardon.

The. writ of habeas corpus is allowed, and the petitioner ordered released.

DOYLE and EDWARDS, JJ., concur.


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    FRANK W. SAUCERMAN v. STATE.
    No. A-4698.
    Opinion Filed July 25, 1925.
    (238 Pac. 228.)
    C. D. Wilkinson, for plaintiff in error.
    George F. Short, Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error was tried and convicted, and, in accordance with the verdict of the jury, was sentenced to pay a fine of $500 and to be confined in the county jail for 6 months, on an information charging that in McCurtain county, December 18, 1922, Frank Saucerman “did then and there unlawfully, • willfully, and maliciously commit the crime of unlawful manufacture of whisky, with the unlawful and willful intent to violate the prohibitory laws of the state of Oklahoma, contrary to,” etc. j

The errors relied upon for a reversal are that the information is insuificient to charge an offense, and that the verdict is not sustained by sufficient evidence.

It appears that defendant is a farmer, owning and living on a farm on the state line near Cerrogordo.

J. R. Jones, sheriff, testified:

“We went to his place to search the premises for whisky; I went in the house and searched and Mrs. Saucerman picked up a jar and poured the whisky out. I found an empty keg that had had whisky in it; in the cellar we found two barrels about half full of beer, in the potato house we found a tank, on the branch we found two sets where there had been two stills; we found lots of engine grates and iron, and we found a 50-gallon gasoline tank in the branch half way between the house and the still set. We found a barrel in the creek and it had about a half bushel- of mash in it.”

S. R. Bryant, deputy sheriff, testified in substance to the same facts as did Sheriff Jones.

The testimony of the defendant in his own behalf is as follows:

“I had been over to Cerrogordo, and about half a mile from my house, I met the officers; they arrested me. The tank the sheriff speaks about finding I had found in the woods over a year ago; I carried it home and used it to scald hogs. It had been but a few days since I used it. One of the barrels in the cellar contained about a peck of sour chops, and the other barrel about a half bushel, that I used to feed my hogs; there was an old sawmill on the branch, and last summer I burned the sawdust and old slabs.. There was a lot of old junk where the sawmill was, and the old gasoline tank was there; the well was dry and we had to go to the spring 150 yards northwest of the house for water; the barrel there I used for my hogs; I had to sled water from the spring to the house; my wife owned the farm; I never did manufacture whisky.”

Walter Saueerman testified that the tank in the yard was used to scald hogs; that the other things were the remains of an old sawmill on the branch beyond the spring; that nobody ever made whisky around there.

As a general rule, it is sufficient to charge a statutory offense in the words of the statute, and every fact mentioned in the statute as constituting the offense must be alleged in the information. This general rule is subject to the qualification that, when a more particular statement of the facts is necessary to set it forth with requisite certainty, they must be alleged. The information here does not even follow the words of the statute; it states a mere legal conclusion. It merely charges that the defendant “did commit the crime of unlawful manufacture of whiskey.” The Constitution requires that an accused shall be informed of the nature and cause of the accusation against him. To charge the offense named with sufficient certainty and definiteness, the mode or manner of manufacture should be alleged. Furrh v. State, 27 Okla. Cr. 283, 226 P. 1065.

A careful examination and consideration of the record •impels the conclusion that the verdict is not sustained by sufficient evidence. It would seem that the testimony of the witnesses for the state was largely the result of imagination rather than memory.

For the reasons stated, the judgment appealed from is reversed, and the cause remanded for further proceedings consistent with this opinion.

BESSEY, P. J., and EDWARDS,, J., concur.


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    E. J. HELM v. STATE.
    No. A-4872.
    Opinion Filed July 25, 1925.
    (238 Pac. 500.)
    S. A. Byers, for plaintiff in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges that in Oklahoma county November 26, 1923, E. J. Helm did have possession of intoxicating liquor, to wit, 170 gallons of wine containing more than one-half of one per cent, of alcohol, measured by volume, with the unlawful intent to sell the same. On the trial the jury returned a verdict finding him guilty as charged in the information and fixing his punishment at a fine of $500 and confinement in the county jail for 6 months.

To reverse the judgment, he appeals, and assigns as error the invalidity of the search warrant upon which all the evidence offered by the state was obtained by an unlawful invasion of his home, and an illegal search and seizure.

When the case was called for trial, defendant’s counsel made a motion to set aside and hold for naught the information and suppress the evidence, because it was obtained unlawfully in the execution of an illegal search warrant, in violation of defendant’s constitutional rights, and attached the copy of the search warrant which was served on the defendant.

The material recital of said warrant is as follows:

“Proof by affidavit having been made this day before me by a competent person known to me, showing that on the 25th day of November, 1922, E. J. Helm,' at number N. E. 1-4 Sec. 5, R. I. 1 west of town in a certain building described as-in- did then and there unlawfully and willfully have in their possession and under their control,” etc.

The testimony of R. J. Lanyon and Jack Conrad, deputy sheriffs, showed that the officers went to defendant’s home after midnight, 10 miles east of Oklahoma City, and searched the premises, finding in a storm cave in the back yard four barrels partly full of what they termed wine. The officers took a sample of it in a fruit jar for the purpose of analysis and broke up the barrels. The testimony of the chemist showed that the sample contained 13.65 per cent, of alcohol, measured by volume. All of the evidence was introduced over the defendant’s objections.

On the cross-examination of R. J. Lanyon, the following questions were asked:

“Q. I will ask you if it isn’t a fact that at that time you had a blank warrant which was later filled in? (The state’s objection to this question was sustained.)
“Q. I will ask you if you didn’t take a warrant that was blank in the name of T. F. Donnell, after you got out there, and filled it in, and used it for the purpose of making that search? (Objection as not proper cross-examination sustained.)
“Q. You didn’t go before Donnell and make an affidavit to get it, did you? (Objection sustained.)”
On cross-examination, the witness Jack Conrad was asked:
“Q. Did you see R. J. Lanyon fill in that search warrant? A. I saw him sign his name to it.
“Q. Did you see him fill in the blank spaces? A. It was in the office before we left. We tried to get in touch with Donnell.
“Q. You know you didn’t have that search warrant filled in?
“By the Court: Don’t argue with the witness.”

Then the state rested, and the defendant moved for a directed verdict in the form of a demurrer to the evidence, which was overruled.

The proof on the part of the defendant tended to show that the defendant had raised that year two crops of berries on his farm, 80 acres, 10 miles east of Oklahoma City on the Reno Street section line, and that the contents of the barrels was vinegar, made from defective fruit, principally blackberries and water; that it had passed the stage of fermentation.

There can be no doubt that the search of the defendant’s home was illegal. It will be observed that the warrant describes the defendant’s place in meaningless numbers, and as west of town, and the undisputed fact is that the defendant’s home was 10 miles east. Thus it appears that the search and seizure was in violation of the defendant’s constitutional rights.

By numerous decisions of this court it is held that evidence obtained by a search of the defendant’s home, under a search warrant, issued without the authority of law, for the sole purpose of obtaining evidence against him, in violation of Bill of Rights, section 30, guaranteeing the security of the people in their right to be exempt in their persons, houses, and effects from unreasonable searches and seizures, is inadmissible against him. Committi v. State, 28 Okla. Cr. 380, 231 P. 316, and cases cited,

There being no proof of the defendant’s guilt except that which was obtained in an unlawful way, the judgment of the lower court is reversed.

BESSEY, P. J., and EDWARDS, J., concur.


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    ROBERT BOSWELL et al. v. STATE.
    No. A-5007.
    Opinion Filed July 25, 1925.
    (238 Pac. 215.)
    Wright & Gill, for plaintiffs in error.

      The Attorney General and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

The plaintiffs in error were found guilty of having possession of whisky, and by separate verdicts of a jury the punishment of each was assessed at a fine of $100 and confinement in the county jail for a period of 60 days.

The plaintiffs in error urge that the evidence is insufficient to support the verdict. At the time of the alleged offense, plaintiffs in error, defendants in the trial court, were occupying a residence owned by a Mr. Westfall, located on Fourth Street, near the Santa Fe tracks, in Oklahoma City. Westfall was the owner of three lots, each 25 feet wide and 140 feet deep. On the east side of these lots is a grocery store; next to that, on the west, is a jewelry store; adjacent to the jewelry store on-the west is an office, and next to that a roomiiig house; back of the grocery store, and connected with it, is a little house next to the alley; on the alley, which is 20 feet wide, is a little shed and a toilet used by the occupants of the different buildings described. At the time of the alleged offense, all of the buildings were occupied, and there were a number of workmen constructing an ice dock adjacent to this property.

Certain police officers, without a search warrant, went to the defendant’s place and began to search the premises; they found some bottles in this house which had contained whisky and one bottle which contained less than one half pint. Hidden in the shed on the property adjacent they found 9 pints of whisky. At the time of the search, defendant Robert Boswell was in Tonkawa. One of the officers making the raid found two hidden receptacles which had at some time probably been used to secrete whisky. This is practically all the evidence in the case, and in the opinion of this court is insufficient to support the verdict.

The evidence against these defendants was purely circumstantial and of such character that it did not eliminate every other reasonable hypothesis than that of the guilt of the defendants. The whisky secreted in the shed, which was open and accessible to all of the occupants of the nearby buildings and to frequenters of this alley, might have been placed there by some other person.

The judgment of the trial court is therefore reversed.

DOYLE and EDWARDS, 33., concur.


text:
    FELIX WINTERS v. STATE.
    No. A-5382.
    Opinion Filed July 25, 1925.
    (238 Pac. 506.)
    E. C. Patton and Joe Adwon, for plaintiff in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   PER CURIAM.

In this case the Attorney General has filed a motion to dismiss the appeal, upon the ground that the plaintiff in error is a fugitive from justice. This motion is supported by the affidavits of the sheriff and the county attorney of Canadian- county, and proof of service upon the attorneys for plaintiff.in error is shown, but no response has been made.

From the motion and the affidavits in support thereof, it appears that plaintiff in error cannot at this time be made to respond to any order or judgment of this court.

The motion is therefore sustained, and the appeal dismissed.


text:
    HENRY SEVERNS v. STATE.
    No. A-5079.
    Opinion Filed July 28, 1925.
    (238 Pac. 217.)
    Coffey & Church, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error, Henry Severns, was convicted, and, in accordance with the verdict of the jury, was sentenced to pay a fine of $500, and to be confined in the county jail for six months, on an information charging that he did “have in his possession certain intoxicating liquor, to wit, 15 gallons of Choc beer and one quart of whisky; said Choc beer then and there containing more than one-half of 1 per cent, of alcohol, measured by volume, and capable of being used as a beverage, with the unlawful intent to sell the same.”

To reverse the judgment he appeals and assigns as error certain rulings of the court in admitting incompetent evidence, and that the verdict was contrary to law and is not sustained by sufficient evidence.

It appears that defendant lived at Park View, Sand Springs Road, in a 7 or 8 room house; that another family lived there; that on the night of the date alleged Sheriff Sanford and three deputies searched the defendant’s home.

The sheriff and his three deputies testified that they searched defendant’s home and found something more than a pint of whisky in a bottle in the room occupied by defendant’s wife, and found a milk bottle half-full of Choc beer in the ice "box on the rear porch, and also found á pitcher and some, glasses that smelt of Choc beer; that they passed through the fence around the defendant’s place, and in a shed behind a vacant house found an open keg containing about five gallons of Choc beer.

Against defendant’s objections and exceptions two deputy sheriffs were permitted to testify that they were “acquainted with the reputation of defendant’s place of being a place where intoxicating liquors are kept for the purpose of sale; that such reputation was bad.”

IT. R. Rowe, a chemist, testified that he made an analysis of a sample of Choc beer which was purported to have been taken by the officers from the residence of Henry Severns, and it was shown to contain 9.81 per cent, alcohol by volume.

At the close of the state’s evidence there was a motion for a directed verdict, on the ground that the evidence was insufficient to connect him with the alleged offense, which motion was overruled.

The defendant testified that he and his wife occupied the house; Mr. Saddler and his wife had a room rented, and Mr. Saddler’s brother had a room, and they were all there when the officers made the search; that he had bought a quart milk bottle full of Choc that evening, and about half of it was left in the ice box; that he did not know anything about the whisky found in the house, and that he knew nothing about the keg of Choc beer found by the officers outside the premises.

The general rule as to evidence of the general reputation of the premises in a trial for unlawful possession of intoxicating liquor is stated in Thompson v. State, 9 Okla. Cr. 525, 132 P. 695, as follows:

“Upon a trial under an information charging that the defendant did have the possession of intoxicating liquors with the intention of violating the provisions of the prohibitory (liquor) law, evidence of the general reputation of his home or barn is incompetent to prove the charge.”

By numerous decisions of this court it is held that before evidence of general reputation of the premises will be held to be admissible in prosecutions of this kind, there must be specific evidence that the place itself was a place of public resort; not merely that it bore such reputation. Williams v. State, 24 Okla. Cr. 284, 220 P. 667. The evidence here complained of was therefore inadmissible, and was clearly prejudicial to the defendant.

To justify or sustain a conviction of having possession of intoxicating liquors with the intent to violate any provisions of the prohibitory liquor law, there must be evidence sufficient, not only to prove possession, but also to prove criminal intent.

When the verdict is manifestly contrary to the evidence, or the conviction is based on entirely insufficient evidence, the judgment of conviction will be reversed. Ward v. State, 15 Okla. Cr. 150, 175 P. 557.

For the errors indicated, the judgment of the lower court is reversed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    J. A. HORN v. STATE.
    No. A-4764.
    Opinion Filed July 28, 1925.
    (238 Pac. 233.)
    Swindall & Wybrant, for plaintiff. in error.
    The Attorney 'General, for the State.
   DOYLE, J.

The information in this case charges that in Woodward county, January 6, 1923, J. A. Horn did unlawfully sell intoxicating liquor, to wit, one gallon of wine to Roy Johns, Clint Forsaythe, Lee McFadden, and Floyd Jones. On the trial the jury returned a verdict finding the defendant guilty as charged in the information and fixing his punishment at a fine of $50 and 30 days in the county jail. To reverse the judgment he appeals.

On the various errors assigned it is only necessary to consider the one, that the evidence is insufficient to sustain the verdict.

Eoy Johns testified that with the others he drove up to the Layne place in Quinlan and bought a gallon “of some stuff that was supposed to be wine”; that it was about 2 o’clock in the afternoon; that the defendant brought it out and put it in the car; that they drove north of town about a mile and drank some of it. He was then asked: “Was the wine that you drank intoxicating; that is, did it have an intoxicating effect?” and answered, “I could not feel it myself.”

Floyd Jones testified that he was married and lived on a farm about 12 miles southeast of Quinlan, and in company with Johns, Forsaythe, and McFadden went to the Layne place in Quinlan and got a gallon jug of wine from Mr. Horn; that he brought it out to the car and some one gave him the money for it; that they drove out of town and drank about a fourth of it. He was then asked, “Did it have any intoxicating effect?” and answered, “Very little,” and that he did not know whether it had any alcohol in it or not.

Lee McFadden testified that he was present when the defendant brought a gallon jug out to the car; that they drove out of town and drank about half of it, then hid the jug in the grass; that it was then about 4 o’clock in the afternoon.

The state rested, and the defendant moved the court to direct the jury to return a verdict of not guilty, because the evidence is insufficient to sustain a conviction. Which motion was overruled; exception allowed.

J. A. Horn, the defendant, testified that he was a farmer and stock raiser; lived at Quinlan; that he had made five or six gallons of grape juice out on the farm by boiling wild grapes in a cooking kettle, and that gallon was the only part of it that he had sold. He produced a half-gallon jar- of grape juice, and testified that it contained exactly the same stuff that he sold. It was offered in evidence. The objection of. the state to the admission of the sample in evidence was sustained. He then testified that a person could drink all that was in the jar and it would not have any intoxicating effect.

Elmer Finley testified that he had lived there 22 years, on the farm for about 10 years, about 10 years in the bank, and now in the hardware business; that he drank some of the grape juice that Mr. Horn made; that Jim Farris gave it to him. He was then asked if it had any alcohol in it, or did it have an intoxicating effect. The objection of the state was sustained.

Eli Roberts testified that he had known the defendant there 16 years. He was then asked if he drank some of the grape juice that Mr. Horn made. The court sustained the state’s objections. 'Counsel for the defendant offered to show that this witness drank some of the grape juice and that the same is non-alcoholic.

A careful consideration of the testimony leads to the conclusion that the evidence is insufficient to support the verdict. The state cannot claim a conviction when the testimony of the witnesses for the state shows that they did not know whether the beverage was intoxicating or not. There must be affirmative proof establishing this fact as clearly as the fact of the sale. The defendant’s testimony that it was not intoxicating is undisputed.

The judgment of the lower court is therefore reversed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    PHILLIP FLAXMAN v. STATE.
    No. A-5598.
    Opinion Filed July 30, 1925.
    (238 Pac. 234.)
    Massingale & Duff, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error appeals from a conviction in the district court of Kiowa county on a charge of adultery and resulting sentence to pay a fine of $500 and be confined in the state reformatory at Granite for a term of one year.

The Attorney General has filed a motion asking that this court modify said judgment and sentence to a fine of $500 and the payment of court costs by the plaintiff in error, and for grounds of his motion says:

“That on or about the 3d day of July, 1924, one S. H. Arnold and wife, Billie Arnold, were living in Cordell in Washita county; that the said S. H. Arnold was 25 years of age, and his wife was 19 years of age at that date; that on the same date one Phillip Flaxman, plaintiff in error, and his wife, were living in Cordell; that said Flaxman was near the age of 21, and his wife approximately 19 years of age; that plaintiff in error, Flaxman, and his wife had been married for 2 years and had one child; that on or about the 30th day of May, 1924, an adulterous relationship began between plaintiff in error, Phillip Flaxman, and Billie Arnold, the wife of said S. H. Arnold, that this relationship continued at intervals up and to the 3d day of July, at which date said S. H. Arnold discovered said immoral relationship existing between his wife, Billie Arnold, and plaintiff in error, Flax-man; that said S. H. Arnold, upon learning of said relationship, presented said facts to the county attorney of Washita county, and instituted proceedings against both plaintiff in error, Flaxman, and Billie Arnold, charging them with the crime of adultery; that said plaintiff in error, Flaxman, and Billie Arnold were arrested, brought before a committing magistrate, waived preliminary hearing and bound over to answer charges in the district court of Washita county, Okla.; that some few days after plaintiff in error, Flaxman, and Billie Arnold were bound over to the district court of Washita county to answer said charges of adultery, it was further ascertained that the adulterous relationship between Flaxman and. Billie Arnold had also been carried on in Kiowa county; that the said S. H. Arnold, the prosecuting witness, represented to the county attorney of Washita county that his home had been ruined forever, and that his life had been wrecked; the said S. H. Arnold caused charges to be filed against the plaintiff in error, Flaxman, in Kiowa county, charging said plaintiff in error, Flaxman, with the commission of the crime of adultery; that later the said S. H. Arnold refused to prosecute the charges in Washita county, and the same were dismissed both against plaintiff in error, Flax-man, and Billie Arnold; that plaintiff in error, Flaxman, was prosecuted in Kiowa county upon said charge of adultery, and was found guilty by the jury and his punishment left to the court; that said punishment was fixed at a fine of $500 and one year in the penitentiary; that subsequent to said conviction the said S. H. Arnold has condoned the acts of his wife, Billie Arnold, and they have been reconciled and are now living together as man and wife.
“The honorable J. 0. Springer, county attorney of Washita county, said Springer having prosecuted plaintiff in error, Flaxman, in Kiowa county, is now of the opinion that the judgment and sentence of the plaintiff in error Flaxman, should be commuted to a $500 fine and payment of costs, as is shown by his letter to the Attorney General of the state of Oklahoma under date of June 14th; a copy of said letter is hereto attached, marked Exhibit A and made a part of this motion. It is further shown that plaintiff in error, Flaxman, is willing to pay the $500 fine and costs in the event the judgment and sentence be affirmed and modified in concurrence with this motion. It is further shown that plaintiff in error, Flaxman, is now living at Erick, Beckham county, Okla., and since this conviction has been conducting himself as a law-abiding citizen.”

Counsel for plaintiff in error also filed a motion asking the court to allow the Attorney 'General’s motion to modify and affirm as requested therein, and that plaintiff in error will pay the said fine of $500 and costs immediately upon the granting of said motion to modify and affirm.

Upon a careful examination of the record in connection with the motion to modify, our conclusion is that the motion to modify should be allowed. In Taylor v. State, 29 Okla. Cr. 160, 232 P. 963, it was held by this court that:

“In a prosecution for adultery, the fact that the injured spouse, who instituted the prosecution, subsequently relents and refuses to carry on the prosecution requires a dismissal of the case.”

The judgment herein appealed from will therefore be modified to a fine of $500 and the costs; as thus modified the judgment is affirmed.

BESSEY, J., concurs.

EDWARDS, J., disqualified.


text:
    Ex parte R. A. FULLER.
    No. A-5668.
    Opinion Filed Aug. 1, 1925.
    (238 Pac. 512.)

      McLaury & Hopps, for petitioner.
    George F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   EDWARDS, J.

This is an original proceeding in habeas corpus. The petition in error alleges petitioner was convicted before a justice of the peace of Oklahoma City on a charge of operating a vending and weighing machine, fined the sum of $25, and committed to the sheriff of Oklahoma county until such fine should be paid; that the prosecution on which the petitioner was convicted is based on section 3, c. 162, of the Session Laws of Oklahoma 1925; and that said act is unconstitutional, illegal, and void.

Chapter 162, Session Laws 1925, provides that every machine operated in a public place for the vending of mints, chewing gum, candy, and for the purpose of weighing human beings is liable for a license tax of $10 per annum, to be collected by the county clerks, and that any person who operates such machine without having a license shall be fined not less than $25 nor more than $100. The title of the act is as follows:

“An act providing for the use of machines and devices in sale or distributing various products, fixing license fees and providing penalty for the violation of the provision of this act.”

The act was passed by the Senate on the 21st day of March, 1925, and by the House on the 26th day of March, 1925. The Legislature adjourned on the 28th day of March, 1925. Various reasons are assigned in support of the contention that the act is unconstitutional.

The presumption is that a statute is constitutional, and the court should not declare an act void, unless it is very clear that it is in violation of the 'Constitution. Ex parte Hunnicutt, 7 Okla. Cr. 213, 123 P. 179; Ex parte Ambler, 11 Okla. Cr. 449, 148 P. 1061; Leach v. State, 17 Okla. Cr. 322, 188 P. 118. But, since the Constitution is the supreme law of the land, all departments of government are bound by its terms and limitations, and, when an act of the Legislature clearly contravenes the limitations of the Constitution, it is the bounden duty of the court to so say when presented in a proper case.

The first contention presented is that the tax is excessive and prohibitive. It is fundamental that the legislative power may not impose on a legitimate business or occupation a license tax so burdensome as to render the business or occupation wholly unprofitable, and under the guise of taxation prohibit the carrying on of such business. It is suggested in the brief of petitioner that the value of these vending machines is approximately $3, and the tax of $10 per annum is so excessive as to amount to a prohibition. Since there is no proof nor stipulation of facts on this point, we are not able under the record presented to determine this question. Even if the statement in the brief is true, we are wholly without any information as to the earning capacity of such machine, and we are unable therefore to find as a matter of fact that the license fee sought to be assessed is so excessive as to be prohibitory and unreasonable.

Upon the second assignment it is contended that said act is in violation of section 57, art. 5, of the Constitution, as follows:

“Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title. * * * ”

From an examination of chapter 162 of the law in question and its title, it is evident that the title does not in any way refer to nor mention machines to be used for the purpose of weighing or showing the weight of a human being or other object. Section 2 of the act, after mentioning the devices in the title, also provides for a tax on machines used for the purpose of weighing. This section of the Constitution has been considered and construed by the Supreme Court of this state on numerous occasions, and it has been generally held that legislative enactments will be sustained if the subject-matter of the act is not in conflict with the general subject-matter expressed in the title. In a somewhat recent case (State v. Johnson, 90 Okla. 21, 215 P. 945), the authorities are reviewed, and it is there said that the title of an act in this state, where the right to enact or to reject laws by the initiative and referendum exists, should be subjected to a closer scrutiny than in a state where no such reservation is made. The title to the act in question refers only to devices for sale or distributing products. The weighing of human beings is not the sale or distribution of any product, and, so far as the act fixes the license fee upon weighing machines, it is within the inhibition of section 57, art. 5, of the Constitution, as the title does not clearly express or include that class of device. This view of the act in question is not in conflict with the holding of the Supreme Court of this state in the case of State ex rel., etc., v. Bonner, etc., 86 Okla. 280, 208 P. 825, and National Surety Co. v. State, 111 Okla. 180, 239 P. 257.

It is further contended that the act in question is a revenue measure, and as such violates section 38, art. 5, of the Constitution, which prohibits the enactment of any revenue measure during the last five days of a session of the Legislature.

The state contends, however, that the act in question is an exercise of the police power of the state, and is not a revenue measure. If the act is a revenue measure, it is¡, of course, invalid, in toto. It is not easy in every case to determine whether a given act is an exercise of the police power or an exercise of the taxing power. A license may be provided for under the exercise of either power. Ordinarily the exercise of the police powers is directed towards some business which might affect the public morals, health, or the general welfare of society, such as dance halls, billiard parlors, slaughter houses, and any other business where it may be reasonably necessary to protect the public against imposition and has a reasonable relation to public welfare. State ex rel. Sampson v. Sheridan, 25 Wyo. 347, 170 P. 1, 1 A. L. R. 955; Guthrie, Fourteenth Amendment, pp. 73, 74, 75 and 76, 1 Thayer, Cases on Const. Law, p. 693; Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77.

An act in exercise of the police power is regulatory in its nature. In theory its purpose is to regulate a business or occupation which, if unregulated, might be inimical to the public good, and the fee or tax charged, in theory, is to make compensation for the regulatory service.

The act in question, we think, is not directed at any business which affects the public welfare. The vending of mints, chewing gum, and candy by a coin machine is no more detrimental to the good order of society than is the vending of such merchandise by a salesman. It may be that such machines compete unfairly with established merchants or fail to bear their just share of public burdens by way of taxation. But to cure such a fault, if it exists, is not an exercise of the police power, nor is there any regulation provided by the act in question. No limitation is placed upon the number of machines that may be installed. Their location is not limited to any particular place of business or location. No qualifications of the persons operating such devices are provided for. No duty is imposed upon the person owning such machines. No system of inspection is provided. The act provides only for the payment of the license tax, and on the failure to pay a penalty by way of fine is imposed. This act is a revenue measure; its purpose was the raising of revenue and not that of regulation, and, since it was enacted within five days of the close of the, legislative session, falls clearly within the inhibition of section 33, art. 5, of the Constitution, and is invalid.

The writ is awarded, and the petitioner is discharged.

BESSEY, P. J., and DOYLE, J., concur.


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    Ex parte E. O. PRUITT.
    No. A-5686.
    Opinion Filed Aug. 3, 1925.
    (238 Pac. 501.)

      A. Hutchin, for petitioner.
   DOYLE, J.

The petitioner, E. A. Pruitt, filed his application for writ of habeas corpus in this court July 9, 1925, wherein he alleges that he is unlawfully imprisoned and restrained of his liberty in the city of Norman by Frank Boggs, sheriff of Cleveland county; that the cause of said restraint is that he is charged with the theft of an automobile in Grayson county, state of Texas; that the said sheriff of Cleveland county is holding said petitioner without any complaint having been filed or any warrant issued for petitioner’s arrest; that said petitioner is not a fugitive from justice from the state of Texas.

On the presentation of the petition a rule to show cause was duly entered and issued and made returnable on July 13, 1925, and petitioner was admitted to bail in the sum of $1,000. No return thereto has ever been made. Section 428, C. S. 1921, provides:

“The sheriff or other person to whom the writ is directed shall make immediate return thereof, and if he .neglect or refuse, after due service, to make return, or shall refuse or neglect to obey the writ by producing the party named therein, and no sufficient excuse be shown for such neglect or refusal, the court shall enforce obedience by attachment.”

Section 429' provides:

“The return must be signed and verified by the person, making it, who shall state:
“First. The authority or cause of restraint of the party in his custody.
“Second. If the authority be in writing, he shall return a copy and produce the original on the hearing.
“Third. If he has had the party in his custody or under his restraint, and has transferred him to another;, he shall state to whom, the time, place and cause of the transfer.
“He shall produce the party on the hearing, unless prevented by sickness or infirmity, which must be shown in the return.”

Section 430 provides that the petitioner may except to the sufficiency of or controvert the return, or any part thereof, with other provisions not necessary to here mention.

Section 431 is to the effect that upon the issues joined the court or judge shall proceed in a summary way to hear and determine the cause, and if no legal cause be shown for the restraint, or for a continuance thereof, shall discharge petitioner.

The petition, duly verified, on its face shows that petitioner, E. A. Pruitt, on the date thereof was illegally restrained of his liberty, and as the sheriff in whose custody he was restrained has failed to make any return, or offer an excuse for failure so to do, the petitioner should be discharged. While this court has ample power to enforce ■obedience to its orders of attachment, and require that the sheriff shall make return to its writ, we are not required to do so, but may proceed in a summary way to determine the cause upon the application.

Upon a consideration of the same, our conclusion is that petitioner was on the date complained of unlawfully restrained of his liberty, and should be discharged; and it is so ordered.

BESSEY, P. J., and EDWARDS, J., concur.


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    GEORGE LUCAS v. STATE.
    No. A-4971.
    Opinion Filed Aug. 11, 1925.
    (238 Pac. 502.)
    I. Hugh Nolen and Guy L. Trimble, for plaintiff in error.
    George F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error will be referred to as defendant, as in the court below. From a conviction on a charge of vagrancy under the first subdivision of section 1956, 'Comp. St. 1921, the defendant has appealed. The substance of the assignments of error challenge the sufficiency of the evidence to sustain the verdict. The first subdivision of section 1956, supra, defines a vagrant as “an idle person who lives without any means, or who has no visible support and makes no exertion to obtain a livelihood by honest employment.”

The defendant did not challenge the insufficiency of the evidence of the state at the conclusion thereof, but offered evidence in his defense. The evidence on the part of the state may possibly have been sufficient to go to the jury, although it is of an inconclusive and doubtful character, some' of the evidence for the state indicating that the defendant was employed at least part of the time. On the part of the defendant, Adam Bishop testified, in substance, that he had known the defendant for a year; had bought a bunch of hogs from him, paying him therefor the sum of $60. R. B. Newman testified, in substance, that he had known the defendant for more than a year; that he had helped defendant gather stock defendant had bought from the Citizens’ State Bank, for which he paid $105. G. H. Farnum testified, in substance, that he had known the defendant for some three years, and that he had done work for him, and knew of him working in the field for another. John W. Williams testified that he had known the defendant some five years, and had bought hogs from him.

The defendant in his own behalf testified that he operated a service car, has been engaged in the live stock business, and was part of the time interested in the restaurant business ; that for more than a year he had been in the employ of Mr. Nolen, collecting for him, gathering stock, and attending to miscellaneous business, and received therefor a salary of $100 per month; that he owned 715 acres of land in the states of Arkansas and Missouri; that he did not owe any one in Okemah, and had not asked any one for credit.

No doubt the purpose of the lawmakers in making it an offense for a person without means and without visible support to live in a community, without making an exertion to obtain a livelihood at honest employment, was to eliminate the tendency to commit crime which such condition fosters. There is much truth in the old axiom about idleness as the devil’s workshop. Here, however, the evidence discloses that the defendant was employed on a salary, and a part of the time was driving a service car for hire, was buying and selling live stock, and was the owner of real estate. He owed no one in the town, had not asked for credit, and had not solicited help, and, so far as the evidence discloses, was not disorderly in any manner. The evidence wholly fails to show that the defendant was a vagrant within the contemplation and meaning of the statute under which the information was drawn. In order to establish the offense, the proof must bring the defendant squarely within the terms of the statute defining vagrancy. Jenkins v. State, 18 Okla. Cr. 464, 196 P. 553; Armstead v. State, 11 Okla. Cr. 649, 150 P. 511.

For the reasons assigned, the case is reversed and remanded, with instructions to dismiss.

BESSEY, P. J., and DOYLE, J., concur.


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    V. C. HARVEY v. STATE.
    No. A-4959.
    Opinion Filed Aug. 11, 1925.
    (238 Pac. 862.)

      F. W. Church, for plaintiff in error.
    George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error will be referred to as defendant, as in the court below.

The defendant was charged by information with the crime of bigamy. A jury was waived, and a stipulation of facts entered into, and the case submitted to the court on such stipulation.

Upon the undisputed facts as set out in the stipulation, it appears that the defendant is a muchly married individual, and given time would surpass the record of Henry VIII. The facts are about as follows: In December, 1920, the defendant, Harvey, obtained a divorce at Tulsa from Mrs. Harvey, I. On February 12, 1921, Mrs. Adams procured a divorce from her husband, and according to prior arrangements between her and the defendant, she and the defendant on February 13th went to the state of Missouri and were married, she thus becoming Mrs. Harvey, 11. This was on the day following her divorce in Oklahoma. From Missouri the defendant, Harvey, and Mrs. Harvey, II, went to Kansas and lived together as husband and wife for about a year, returning to Oklahoma in February, 1922, whei e they continued to reside together as husband and wife until April 15, 1923, when Mrs. Harvey, II, departed for a visit to Illinois. On the 2d day of June, following, the defendant in Ottawa county, Okla., during the absence of Mrs. Harvey, II, married Inez Vaughn, who thereby became Mrs. Harvey, (III. Mrs, Harvey, III, lived with the defendant as his wife until the 11th of June, when, on the return of Mrs. Harvey, II, the defendant was arrested, charged with bigamy. In the stipulation it is agreed that the defendant and Mrs. Harvey, II, went to the state of Missouri for the purpose of evading the restriction in the divorce decrees in the state of Oklahoma; that they considered their marriage in Missouri legal, and there was no divorce of the defendant from Mrs. Harvey, II.

Upon this state of facts the defendant contends that, at the time of the attempted marriage between him and Mrs. Harvey, II, the parties were not competent to enter into a marriage contract, and that their attempted marriage was absolutely void, and that the relation between him and Mrs. Harvey, II, was adulterous.

The state contends, in effect, that the inhibition on marriage contained in the divorce decree of defendant and Mrs. Harvey, II, had no extra territorial effect, and that, as they did not forthwith return to the state of Oklahoma, but removed to the state of Kansas, their marriage in Missouri was legal. And that in any event, before the marriage of defendant to Mrs. Harvey, III, his relations with Mrs. Harvey, II, had ripened into a valid common-law marriage.

A mere recital of the facts discloses that the conduct of the defendant is reprehensible in an extreme degree, and that his defense is such that he entitled to only what the cold letter of the law gives him. It also discloses that Mrs. Harvey, II, was an unfaithful wife to her first spouse, and abandoned her own home, and was a particeps criminis in breaking up the home of defendant. What has befallen her is in the nature of retributive justice. As to Mrs. Harvey, III, she apparently knew the marital status of the defendant at the time she entered the marriage relation with him, and is entitled to no sympathy.

However lacking in the personal equation this case may be, yet, if the marriage between the defendant and Mrs. Harvey, II, is absolutely void, both as a ceremonial or a common-law marriage, he is not guilty of bigamy. 7 C. J. 1158, 1159, § 3, note 19.

Whether or not this marriage is void both as a ceremonial or a common-law marriage is the only question for our determination. Section 510, Comp. Stat. 1921, is in part as follows:

“* * * It shall be unlawful in any event for either party to such divorce suit to marry any other person within six months from the date of the decree of divorcement; and if notice be filed and proceedings in error be commenced as hereinbefore provided, then it shall be unlawful for either party to such cause to marry any other person until the expiration of thirty days from the day on which final judgment shall be rendered pursuant to such appeal. Any person marrying contrary to the provisions of this section shall be deemed guilty of bigamy, and such marriage shall be absolutely void.”

Under this statute the decree of divorce is sufficient to dissolve the marriage tie at the time it is rendered, but there is an inhibition in the nature of a penalty on a marriage by the parties with any third person within 6 months from the date of the decree. A marriage v/ithin this state with any other person is bigamous, but going outside of the state for the purpose of marrying and then returning to the state and thus evading the restriction of a divorce decree is not an act of bigamy of which the courts of this state can take jurisdiction under the law then in force. Wilson v. State, 11 Okla. Cr. 471, 184 P. 603; Yeates v. State, 30 Okla. Cr. 320, 236 P. 62; Atkeson v. Sovereign Camp, W. O. W., 90 Okla. 154, 216 P. 467, 32 A. L. R. 1108. The law, however, has since been amended by chapter 119, Session Laws of 1925.

By the terms of the stipulation of facts it is agreed that the defendant, Harvey, and Mrs. Harvey, II, went to the state of Missouri for the purpose of evading the laws of Oklahoma forbidding remarriage for a period of 6 months after the granting of a decree of divorce. The stipulation, however, does not disclose whether it was the intention of the defendant and Mrs. Harvey, II, to ever return to the state of Oklahoma. After their marriage in Missouri they went to the state of Kansas and resided for about one year, and then returned to this state. It is generally held that the inhibition in a decree of divorce has no extraterritorial effect, and is enforceable only in the state where the decree is granted, and that outside of such state the marriage is generally treated as valid, although there is some division in the authorities. Where, however, the parties leave the state of their domicile and go into another state and marry, for the l purpose of evading the law of the state of domicile, and I forthwith return to the state of domicile, the marriages is generally held void in the state of domicile. Stull’s Es-| tate, 183 Pa. 625, 39 A. 16, 39 L. R. A. 539, 63 Am. St. Rep. 776; Com. v. Lane, 113 Mass. 458, 18 Am. Rep. 509; State v. Fenn, 47 Wash. 561, 92 P. 417, 17 L. R. A. (N. S.) 800; Powell v. Powell, 282 Ill. 357, 118 N. E. 786; Frame v. Thormann, 102 Wis. 653, 79 N. W. 39; 176 U. S. 350, 20 S. Ct. 446, 44 L. Ed. 500; Vickers v. Faubion (Tex. Civ. App.) 224 S. W. 803; Dimpfel v. Wilson, 107 Md. 329, 68 A. 561, 13 L. R. A. (N. S.) 1180, 15 Ann. Cas. 753; Green v. McDowell, 210 Mo. App. 517, 242 S. W. 168; note 32 A. L. R. 1116; Atkeson v. Sovereign Camp, W. O. W., supra; Clark et al. v. Barney et al., 24 Okla. 455, 103 P. 598.

At the time the defendant entered into the marriage ceremony with Mrs. Harvey, II, both parties were inhibited by the decree of divorce from entering into the marriage relation, and, if they had forthwith returned to the -state of Oklahoma, their marriage would have been held void in this state under the terms of the statute and the going through the form of a marriage ceremony in a state where the inhibition was not effective and then returning to this state would be a fraud on the laws of this state and the doing indirectly what the statute says shall not be done. So long as the inhibition in the divorce decree of either of the parties continued by the laws of this state, they were absolutely incapable of contracting or consummating a marriage which would be recognized by the courts of this state. But upon the expiration of the inhibition upon the marriage of both the parties, which was on August 12, 1921, the defendant and Mrs. Harvey, II, notwithstanding their relations up to this time had in the eyes of the law of this state been adulterous, were capable of contracting and consummating marriage. When after the period of inhibition they resided together as husband and wife in the state of Kansas, and believed their ceremonial marriage in the state of Missouri was valid, as -set out in the stipulation, and relying thereon returned to this state and resided here together and held themselves out as husband and wife for almost a year, such constituted a valid common-law marriage. In re Love’s Estate, 42 Okla. 478, 142 P. 305, L. R. A. 1915E, 109; Draughon v. State, 12 Okla. Cr. 479, 158 P. 890, L. R. A. 1916F, 798; Mudd v. Perry, 108 Okla. 168, 235 P. 479, and authorities cited.

While we are decidedly of the opinion that the. marriage between the defendant and Mrs. Harvey, II, upon their return to this state during the time they lived together here, had become in all respects a valid and binding marriage under the common law, we believe there is another reason for declining to hold the marriage void. That reason is based on public policy, on the view that a defendant charged with a crime will not be permitted to take advantage of his own wrong.

In the case of Castleberry v. State, 10 Okla. Cr. 504, 139 P. 132, it was said, in substance, that where a defendant had had intercourse with a female prior to' the date upon which rape was charged, he would not be heard to say that by reason of his having defiled her she was not of previous chaste character.

In the case of Ellington v. State, 7 Okla. Cr. 259, 123 P. 186, it was held that one who received money as guardian and then embezzled it would not be heard to say he was not the legal guardian; that if he was agent enough to collect he was agent enough to be punished.

In the case of Price v. State, 10 Okla. Cr. 427, 137 P. 736, where embezzlement was charged by an attorney, and the defense was set up that the accused was not a licensed attorney, this court said that a defendant would not be heard to. say that he was not authorized to receive the money.

' In the instant case, if the marriage was sufficiently valid that under its sanction the defendant resided with the woman married in the state of Kansas for about one year, and under the sanction of such marriage returned to the state of Oklahoma and there resided with and held her out to the public as his wife for more than a year, he will not now be heard to say that the marriage was void and his relations with her were meretricious.

The conclusion of the trial court that the facts stipulated established the guilt of the defendant is sustained by the law, and the case is affirmed.

BESSEY, P. J., absent, not participating.

DOYLE, J., concurs.


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    RUSH McGAFFEY v. STATE.
    No. A-4948.
    Opinion Filed Aug. 18, 1925.
    (238 Pac. 865.)
    Victor A. Sniggs and Henry C. Hawkins, for plaintiff in error.
    George F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   EDWARDS, J.

Plaintiff in error will be referred to as defendant, as in the court below.

From a conviction on a charge of receiving stolen property defendant appeals, assigning as error the insufficiency of the evidence and error of the court in admitting incompetent evidence. The record discloses that on March 13, 1922, a purse containing money and jewelry was stolen from a Mrs. Mayfield in Oklahoma City. Johnnie Graves, Edna Graves, his wife, and Arthur Williams, negroes, were arrested charged with the theft. They pleaded guilty and a part of the money and jewelry was recovered. One diamond ring of a value of $150 was not recovered, and it was for the receiving of this item of property that the defendant was convicted. Mrs. May-field, the owner, testified that she talked to the defendant on several occasions and he promised to return the ring and at one time offered her another diamond if she would hush and say no more about it.

W. J. Clark, chief of police, testified in substance that the defendant told him he would probably return the ring.

Graves testified that he stole the property in question, and on the same afternoon delivered the particular ring to the defendant and informed him that it was stolen; that defendant was to sell the ring, pay himself for money advanced by defendant to pay a fine assessed against the witness, the balance to be divided between the defendant and the witness. There was some circumstantial corroboration of the evidence of Graves. The defense was an alibi tending to prove that the defendant was not in Oklahoma City at the time Graves claimed to have delivered the ring to him, but on the afternoon of that date went by train to Guthrie and returned that night. All of the evidence was somewhat rambling except that of the witness Graves. The evidence of the state is sharply contradicted by the testimony of the defendant. Where the evidence is such that the jury may reasonably and logically find the guilt of the defendant a mere conflict will not be sufficient to warrant this court in interfering with the verdict, since it is for the jury to determine whom they will believe or disbelieve. They see the witnesses and are in a position to weigh and determine the credibility which should be given to their testimony. Brimmage v. State, 17 Okla. Cr. 205, 187 P. 497.

The further assignment is made that incompetent evidence was offered by the state. It appears that in the course of the cross-examination the defendant was asked if he had been accused of crime before. It is not ordinarily proper to permit the asking of a defendant if he had been accused of crime, but the record discloses that the counsel for defendant in his examination in chief, over the objection of the state, made definite inquiry of the defendant if he had been accused of stealing, evidently for the purpose of showing good character, and on cross-examination he was asked the same questions by the state. The defendant admitted that he had been convicted of gambling. Under this state of the record, this assignment presents nothing prejudicial.

Complaint is further made that the court excluded, upon cross-examination, an inquiry by the defendant of the witness Graves in reference to charges preferred against him. This witness had already admitted that he had been convicted of a felony, and the inquiry as to charges preferred against him and not in reference to any conviction was properly excluded.

Complaint is also made that the court permitted the state to reopen its case for further cross-examination after it had closed. This was discretionary with the trial court, and no abuse of discretion is shown. Felice v. State, 18 Okla. Cr. 313, 194 P. 251. Other assignments of error are made, but they are not tenable and require no special consideration here.

Upon examination of the whole record, we are of the opinion that the case was fairly tried, the issues fairly submitted to the jury, and the verdict is sustained by the evidence.

The case is affirmed.

BESSEY, P. J., absent, not participating.

DOYLE, J., concurs.