text:
    JACOB TAKARSKE v. STATE.
    No. A-10448.
    Sept. 26, 1945.
    (162 P. 2d 197.)

      E. Moore, of Coalgate, and D. D. Brunson, of Ada, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Jacob Takarske, was charged in the district court of Coal county with the crime of murder; was tried, convicted of manslaughter in the first degree, and sentenced to serve 15 years in the State Penitentiary, and has appealed.

No question as to the sufficiency of the evidence has been raised, but a short statement of the facts should be given as an aid in the consideration of the issues which are presented.

The defendant, his wife, and the deceased, Anthony Antausic, were all of Polish descent. Although the defendant had been in this country for 40 years, he could speak only broken English and at the trial testified through an interpreter. The deceased was a bachelor who had lived as a neighbor to the defendant for many years. The defendant had become jealous of the deceased because of attentions which the deceased had been allegedly giving the defendant’s wife. A few weeks before the homicide, the defendant had complained to the sheriff that the deceased was flirting with his wife and that he was going to kill him. The defendant was drinking at the time. This was in October, 1942. Shortly after nightfall on March 5, 1943, the deceased, Anthony Antausic, was found dead in the road not far from the defendant’s home. The officers were notified and went to the place where the body was laying. After they arrived there, the defendant walked up and said that he had killed the deceased. The defendant was intoxicated. The deceased had been shot in the back of the head with a 12-gauge shotgun. Defendant also stated that he had killed his wife and had put her under a little shedroom under the house. The defendant further stated that he killed the deceased because he had been playing with his wife for about 10 years. The deceased was 71 years of age; the defendant was 68 years of age. Both of the men were coal miners.

At the trial, the defendant testified that late in the afternoon of the day of the homicide he had come from town and noticed the gates on the west side of his pasture were open and that he went over to shut the gates. That when he went over to close the gates, he saw the deceased sitting on a culvert. That defendant said to deceased: “What, you going to do with me again as you do before? Are you going to continue coming to my place and give me trouble and doing with my wife as you have? Is you that kind of man?” That he told the deceased that if he was going to do that again that he was going to shoot him in the head. That deceased replied that he would cram that gun up his body. That deceased placed his hands in his pockets and defendant shot him. That the deceased was standing on a little bank and his foot slipped and he spun around and that was the reason the defendant shot him in the back of the head.

It was the theory of the state based on the circumstances surrounding the homicide that the defendant, being jealous of the deceased, had waylaid the deceased while he was on his way home and shot him in the back of the head.

It is first argued that the court committed error in giving instruction No. 18, which reads:

“Gentlemen of the jury, you are instructed that voluntary intoxication is not a defense tó a crime charged, however, you may consider the same on the question of intent, if any, on the part of the defendant.”

Counsel for defendant states that since the defendant did not interpose as a defense that he was drunk or that he was so drunk that he did not know what he was doing, the instruction should not have been given and that that was not an issue in the trial. However, under our law the court was charged with the duty of instructing the jury upon the issues presented by all the evidence of both the state and defendant whether requested by the state or by the defendant. Under the evidence of several of the witnesses, the defendant was intoxicated at the time of the homicide.

The next assignment of error is that the court erred in overruling the demurrer to the information for the reason that on the face of the information it is duplicitous because in one part of the information the defendant is charged with killing Anthony Antauic, and in another part of the information, the deceased is referred to as Anthony Antauick, and in still another part of the information, he is referred to as Anthony Antauik. Counsel for defendant are correct in their assertion that the information does have a variance in the spelling of the name of the deceased. However, the differences in spelling are so trivial that they could not have deceived the defendant or caused him to believe that he was charged with killing more than one person. The deceased was a Pole and evidently his name was hard to spell. More care should have been given to the spelling of this name in preparing the information, but it is easy to see how certain letters in the name might be omitted or transposed where the name is so difficult to spell. There is not such a variance in the spelling as to confuse defendant or as would warrant an appellate court in saying that there was duplicity in the charge set forth in the information.

It is next contended that the court committed error in overruling the supplemental motion for new trial in which it was alleged that the jury was guilty of misconduct.

A motion for new trial was filed and overruled on April 19, 1943. On July 22, 1943, the defendant filed a supplemental motion for a new trial on the ground of misconduct of the jury, to wit, that during the trial of said cause one of the jurors departed from the other jurors and went on a mission of his own across the street from where the jury panel was being served their meals to a drugstore, and that, after the case had been submitted to the jury and as said jurors were leaving the courthouse, some person unknown to the defendant approached the jurors and handed one of them a piece of paper.

A hearing was held on this supplemental motion for a new trial. The daughter and son-in-law of the defendant testified that they were sitting in a car outside of the courthouse and saw' the jury going into the courthouse in the custody of the bailiff. That they saw a man standing by the door and that he handed a note to the last man in the line, who took it, looked around, read it, and then went on with the rest of the jurors. They further testified that they reported this incident to one of the counsel for defendant at the time it happened.

Eleven of the twelve jurors who heard the case and both of the bailiffs testified in refutation of the testimony introduced by defendant on this point. The evidence showed that the twelfth juror was absent from the state and not available for presentation as a witness at the time of the hearing. Each of the jurors testified that no one handed them a note and that they did not see a note handed to any other juror.

The bailiffs testified that when the jury left the courthouse for a walk or to eat their meals that one of the bailiffs would walk in front and the other in the rear of the jury. They testified that at no time did they ever see any person hand a note to any member of the jury and none was handed to either of them. The bailiffs further testified that at no time did any person not connected with the jury talk to any of the jurors. One of the bailiffs testified that while the jurors were eating at a cafe, one of the jurors became ill and that he took him to the drugstore to get some medicine to relieve his stomach ache. That while he was gone with the juror, he left the other jurors in the cafe in the custody of the other bailiff. That while he had the juror with him no one talked to the juror or discussed the case with him in any manner. There was some testimony that some of the jurors played cards in one room while the rest of the jurors were asleep in another room, but the proof affirmatively showed that nobody was in either room except the jurors who were deliberating on this case.

In the recent case of Gallagher v. State, 81 Okla. Cr. 15, 159 P. 2d 562, 564, this court had under consideration the question of what constitutes a separation of the jury as contemplated by the statute. 22 O. S. 1941 § 857. It was there held:

“Where the proof shows that the jury is permitted to separate after the case has been finally submitted, the defendant is entitled to the presumption that such separation has been prejudicial to him, and the burden is on the prosecution to show that no injury could have resulted therefrom to the defendant. -
“Where wife of juror talks to juror in presence of bailiff and only a few feet from remaining jurors, it is not such a separation as is contemplated by the statute. 22 O. S. 1941, § 857.”

In the body of the opinion, it is stated:

“However, it has been held that permitting a juror to answer a proper telephone call from his family is not such a separation as is contemplated by the statute, 22 O. S. 1941 § 857, Lemke v. State, 56 Okla. Cr. 1, 32 P. 2d 331, nor the permitting of a juror to be taken to a toilet on the floor below the jury room, Welborn v. State, 70 Okla. Cr. 97, 105 P. 2d 187, nor where the jurors sleep in two different rooms where there is a bailiff in each room. Tillery v. State, 23 Okla. Cr. 226, 214 P. 198.”

We do not think that the taking of the juror to the drugstore for medicine to relieve his ailment by the bailiff who did not allow him to converse with any one, while leaving the remaining jurors with the other bailiff, was a violation of the terms of the statute, which provides that the jury must be kept together and not permitted to communicate with any other person. 22 O. S. 1941 § 857.

On the issue as to whether a note had been handed to a juror as testified to by the daughter and son-in-law of the defendant, the trial court, after the hearing, determined that issue adversely to the defendant. This was an issue of fact for the determination of the trial court and there is ample evidence to sustain the finding made by the court on that issue. Under such circumstances, it has been the rule of this court to affirm the finding of the lower court unless there is a clear showing of an abuse of discretion.

We find no errors of such a nature as to require a reversal of the judgment of conviction. The judgment of the district court of Coal county is accordingly affirmed.

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


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    J. T. McKENDREE v. STATE.
    No. A-10466.
    Sept. 26, 1945.
    (162 P. 2d 200.)
    Hughes & Hughes, of Hobart, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., for defendant in error.
   JONES, J.

The defendant, J. T. McKendree, was charged by information filed in the county court of Kiowa county, on March 6, 1943, with the crime of possession of intoxicating liquor; was tried, convicted, and sentenced to serve a term of 30 days in the county jail and pay a fine of $300, and he appeals.

Petition in error and case-made were filed in this court on November 26. 1943. No brief has been filed in this case and no oral argument presented.

Where defendant appeals from a judgment of conviction, and neither any brief is filed nor appearance for oral argument made, we do not consider it the duty of this court to go into a careful examination of the evidence to determine whether or not the trial court erred in the admission or rejection of testimony. This court will examine the record for jurisdictional errors. If no fundamental error appears, the judgment will be affirmed.

We have examined the record and find that the information is sufficient to charge the offense of possession of intoxicating liquor. The evidence is sufficient to sustain the judgment and sentence, and the court’s instructions were applicable to the law and facts. On the record before us we have discovered no error which would warrant a reversal of the judgment, and it appears that the defendant was accorded a fair and impartial trial.

The judgment of the trial court is accordingly in all things affirmed.

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


author: BAREFOOT, P. J.

text:
    FRED AKINS v. STATE.
    No. A-10453.
    Sept. 26, 1945.
    (162 P. 2d 195.)

      . E. Moore, of Coalgate, and Wimbish & Wimbish, of Ada, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Wayne Lewis, Co. Atty., of Ada, for defendant in error.
   BAREFOOT, P. J.

Defendant, Fred Akins, and Myrtle Leverett were charged jointly in the county court of Pontotoc county with the crime of unlawful possession of intoxicating liquor, to wit: 16.pints of assorted brands of tax-paid liquor. They were tried, convicted, and each of said defendants were sentenced to pay a fine of $50, and to serve 30 days in the county jail. The county judge entered an order suspending the jail sentence as to the defendant Myrtle Leverett, and the defendant Fred Akins has alone appealed to this court.

The question of the right of the county judge to suspend the 30-day jail sentence as to the defendant Myrtle Leverett is not presented by this appeal, and no further reference will be made thereto.

It is contended by the defendant that certain errors were made in the issuance and service of the search warrant, and that the court erred in refusing to give certain requested instructions.

Because of the conclusion we have reached, it is unnecessary to consider the alleged errors, and we only consider the question that the evidence offered by the state is insufficient to sustain the judgment and sentence against this defendant.

Four witnesses testified for the state — -Jack Bruin-ley and Jim Rogers, deputy sheriffs, and Clyde Kaiser, sheriff of Pontotoc county, and Bill Cummings. The officers testified that on December 18, 1941, they had a search warrant, and searched a certain residence in the city of Ada, and found 16 pints of tax-paid liquor under a divan in one of. the rooms. No one was present at the time of the search, but the officers later saw Myrtle Lev-erett, and she told the sheriff that she lived at the premises searched. Her son came up to the premises immediately after the search. Sheriff Kaiser testified that the property belonged to Bill Cummings, and that it was in Myrtle Leverett’s care when he was away.

Bill Cummings testified that he owned the property, together with a filling station and other premises near by, and that he had leased the premises to the defendant Fred Akins about a year prior to the search. That Myrtle Leverett occupied and lived in the premises with her son, and he knew nothing of the defendant having leased to her, or of the defendant ever occupying the premises in person.

This was the only testimony offered by the state. There is not a line of testimony to connect the defendant with the possession of the liquor found by the officers. There was no evidence of any connection between the defendant and Myrtle Leverett. The evidence did not even show that the defendant had leased the premises to her.

The general rule in criminal cases is that where the evidence is circumstantial, the facts shown must not only be consistent with and point to the guilt of the defendant, but must be inconsistent with his innocence. Owens v. State, 11 Okla. Cr. 113, 143 P. 204; Ward v. State, 15 Okla. Cr. 61, 175 P. 60; Barger v. State, 46 Okla. Cr. 95, 287 P. 1059; Dees v. State, 81 Okla. Cr. 48, 160 P. 2d 406.

Under the facts presented, there was no evidence to sustain the conviction of this defendant. If he could be convicted upon this testimony, it would be dangerous for anyone owning property to lease the same to any individual who might without the knowledge of the owner place intoxicating liquor thereon.

For the reasons above stated, the judgment and sentence of the county court of Pontotoc county is reversed.

JONES, J., concurs. DOYLE, J., not participating.


text:
    Ex parte STERLING MILLS.
    No. A-10648.
    Oct. 3, 1945.
    (162 P. 2d 334.)
    Sterling Mills, per se.
    Randell S. Cobb, Atty. Gen., and E. J. Broaddus, Asst. Atty. Gen., for respondent.
   JONES, J.

This is an original action by tlie petitioner, Sterling Mills, to secure his release from confinement in the State Penitentiary.

The petition alleges that the petitioner and one Leroy Phares were jointly charged in the district court of Custer county, with the crime of burglary in the second degree; that they had jointly with one Gilbert Herber committed the crime of burglary, but that the said Gilbert Herber was a decoy on leave from the State Penitentiary, who had been secured by certain peace officers to entrap the petitioner and Leroy Phares; that the said Gilbert Herber proposed the burglary and planned all steps that were taken in the execution of the crime.

That because the participation of petitioner in said crime was by reason of entrapment on the part of the officers, that he should be released from confinement in the State Penitentiary.

Attached to the petition is a certified copy of a transcript of the testimony taken before the district judge of Custer county at a hearing on a motion to quash the information filed by counsel for defendant, in which motion the issue of entrapment was raised. This transcript shows that testimony was taken on said issue of entrapment and, after the hearing, the trial court overruled the motion. After the motion to quash the information had been overruled, the petitioner Mills and his codefendant Phares entered their respective pleas of guilty to the charge of burglary, as alleged in the information, and the trial court sentenced each of the said defendants to serve a term of three years imprisonment in the State Penitentiary.

The writ of habeas corpus will not issue if the trial court has jurisdiction of the person and crime charged and does not exceed its authority in passing sentence. Ex parte Hinley 79 Okla. Cr. 382, 155 P. 2d 265; In re Hazel, 80 Okla. Cr. 66, 157 P. 2d 225.

The plea of entrapment interposed by the defendants raised an issue of fact which the trial court decided adversely to them. This issue could.have been presented to the jury as a defense and an appeal taken to this court if a verdict of guilty had been returned upon a trial of the issue alleged in the information. The petitioner, however, did not choose to go to trial on the information, but entered his plea of guilty. His plea of guilty waived any right the petitioner might have had to raise the issue of entrapment and was an admission that he was guilty of the crime charged.

There is nothing in the petition and the record before this court to show that the trial court was without jurisdiction to pronounce sentence upon the plea of guilty. The writ of habeas corpus is accordingly denied.

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


text:
    Ex parte LEROY PHARES.
    No. A-10636.
    Oct. 3, 1945.
    (162 P. 2d 335.)

      Leroy Phares, per se.
    Randell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   JONES, J.

This action in habeas corpus is identical with that filed herein in the case of Ex parte Mills, 81 Okla. Cr. 200, 162 P. 2d 334. Phares was jointly charged with Mills in the district court of Custer county with the crime of burglary. He entered his plea of guilty to the crime and was represented by the same counsel who represented the petitioner Sterling Mills. The opinion of this court in Ex parte Mills, supra, applies to the disposition of the instant case, as the issue of entrapment sought to be raised by Phares is identical with the issue sought to be raised by the petitioner Sterling Mills.

For the reasons stated in the case of Ex parte Mills, supra, the writ of habeas corpus is denied.

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


text:
    ROY SMITH v. STATE.
    No. A-10467.
    Oct. 3, 1945.
    (162 P. 2d 331.)

      Hughes & Hughes, of Hobart, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and U. Y. Jones, Co. Atty., of Hobart, for defendant in error.
   BAREFOOT, P. J.

The defendant, Roy Smith, was charged in the county court of Kiowa county with the crime of unlawful possession of intoxicating liquor, to-wit, eight pints of whisky. He was tried, convicted and sentenced to pay a fine of Fifty Dollars and to serve thirty days in the county jail, and has appealed.

This case was assigned for oral argument for February 7, 1945, and no appearance was made at that time by defendant. The case was submitted on the record, and no brief has been filed by defendant.

Under the rules of this court, we have examined the record, the information, the instructions of the court, and the judgment and sentence; and we do not find any fundamental error. The evidence reveals that defendant lived at Mountain View, in Kiowa county, Okla.; that his premises were searched by the undersheriff and a deputy sheriff of that county. They had a search warrant for the search, and found eight pints of whisky on the premises. The defendant did not take the witness stand, and did not attempt to explain his possession of the liquor.

Under the facts, finding no error, the judgment of the county court of Kiowa county is affirmed.

JONES, J., concurs. DOYLE, J., not participating.


text:
    HARRY DUNHAM v. STATE.
    No. A-10479.
    Oct. 3, 1945.
    (162 P. 2d 332.)
    Harry C. Kirkendall, of Enid, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Harry McKeever, Co. Atty. of Enid, for defendant in error.
   BAREFOOT, P. J.

Defendant, Harry Dunham, was charged in the county court of Garfield county with the crime of unlawfully “making an offer to one Arlo Martin to secure another for the purpose of prostitution with the said Arlo Martin.” He was tried, convicted and sentenced to serve a term of four months in the county jail and pay costs amounting to $37.25, and has appealed.

A number of assignments of error are made, but we consider it unnecessary to refer to all of them.

The statute under which defendant was charged is 21 O. S. Supp. 1943 § 1028, and is as follows:

“It shall be unlawful in the State of Oklahoma:
********
“(c) To offer, or to offer to secure, another for the purpose of prostitution, or for any other lewd or indecent act.”

At the time of the oral argument of this case, it was insisted that the evidence of the state, which consisted of one witness, revealed that there was no solicitation on the part of the defendant, but that the solicitation was by the prosecuting witness himself. The Assistant Attorney General in charge of this prosecution at the time of oral argument admitted that this was true and confessed error in this case. Since that time, however, a brief has been filed by the state attempting to uphold this judgment and sentence.

We have carefully read the evidence of the prosecuting witness and are of the opinion that it is insufficient to sustain the verdict. There is no proof to show that the defendant solicited the prosecuting witness at any time.

For the reason above stated, the judgment and sentence of the county court of Garfield county is reversed.

JONES, J., concurs. DOYLE, J., not participating.


author: LOONEY, Special J.

text:
    STATE v. HENRY G. BENNETT et al.
    No. A-10509.
    Oct. 11, 1945.
    (162 P. 2d 581.)

      Randell S. Cobb, Atty. Gen., E. J. Broaddus, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., and M. S. Simms and John L. Ward, Jr., Asst. Co. Attys., all of Tulsa, for plaintiff in error.
    Swank & Swank, John Monk, and W. Hendrix Wolf, all of Stillwater, F. A. Rittenhouse and Blakeney & Blakeney, all of Oklahoma City, Welch & Welch, of Ma-dill, and Ownby & Warren, of Tulsa, for Henry G. Bennett, defendant in error.
    Hudson & Hudson, of Tulsa, for Willis L. Smith, defendant in error.
    Harley Ivy, of Waurika, for J. T. Daniel, defendant in error.
    Busby, Harrell & Trice, of Ada, and Chas. E. Me-Pherren, of Oklahoma City, for A. L. Crable, defendant in error.
    F. A. Rittenhouse, of Oklahoma City, for Ed Morrison, defendant in error.
   LOONEY, Special J.

This case comes here on appeal by the state from an order and judgment of the district court of Tulsa county sustaining separate motions of defendants to quash and set aside an indictment for conspiracy.

The indictment herein is an outgrowth of certain textbook adoptions by the Oklahoma Textbook Commission in the year 1937. Among those indicted were Ed Morrision, O. E. Shaw, J. E. Perry, members of the Textbook Commission, Willis Smith, owner and manager of the School Book Depository, J. T. Daniel, Speaker of the Oklahoma House of Representatives for the 1937 Legislative Session, A. L. Crable, Superintendent of Public Instruction and Secretary of the Textbook Commission, Henry G. Bennett, President of Oklahoma A & M College, Avho was co-author of one of the textbooks that were adopted, and Howard B. Drake, an alleged patronage dispenser of the then Governor of the State of Oklahoma.

The indictment charges among other things that in the year 1937 defendants conspired to control the adoption of textbooks by the Oklahoma Textbook Commission; to obtain the adoption of certain school books at excessive prices; to secure the execution of contracts for the publication of such books in the State of Oklahoma for the purpose of repaying to certain school book companies moneys which said companies had advanced to defendants Drake and Daniel prior to the proposed adoption.

The learned trial judge at the conclusion of a lengthy hearing of the evidence offered by both the state and defendants on the motion to quash the indictment correctly summarized the indictment and evidence as follows :

“The court analyzes this indictment by saying that according to the indictment there were five objects and purposes of the conspiracy. First, that they would con-' trol the adoption of textbooks by the Oklahoma Textbook Commission; Second, that they would destroy competition in two fields, first, in the securing of textbooks, and second, in the making of contracts; the third purpose, that they would demand and receive large sums of money in consideration of the adoption of textbooks and the securing of the contracts; fourth, that they would defraud the State of Oklahoma thereby of large sums of money in securing and consummating the purchase by the state on the order of the Superintendent of Public Instruction, through the State Welfare Department, of large quantities of books; fifth, that the contracts thus secured would provide for a purchase price of the textbooks in an excessive amount, in order to reimburse the coconspirators for large sums of money expended in connection with the alleged conspiracy; and, finally, as a result of these five purposes, the school children and school patrons of the State of Oklahoma, including the county of Tulsa and all other counties of the state, would thereby be cheated and defrauded, the last being a result alleged in the indictment, rather than a purpose for which the alleged conspiracy was formed.
“Now, then, there are two defendants in this conspiracy case, J. E. Perry and O. E. Shaw, Avho did not file their motions to quash. We Avill not discuss this case in so far as those two defendants are concerned, because they are not now involved in these proceedings. They filed demurrers instead of motions to quash and those demurrers have not yet been heard.
“First, with reference to the defendant Ed Morrison, was there evidence in this case sufficient for the grand jury to return an indictment against Ed Morrison as a member of an alleged band of conspirators?
“He was a member of the Textbook Commission who voted, according to the evidence before the grand jury, for the adoption of textbooks and the granting of contracts, when he kneAv there had been graft and corruption in connection therewith.
“There was no evidence before the grand jury Avhich showed that any of this money came into his hands, but certainly on a motion to quash the indictment, this court is not going to absolve a defendant from blame when he, occupying a position of public trust, approved, by his acts and his deeds, transactions which he himself had been advised and knows have been contaminated by fraud and graft.
“There was evidence in this case sufficient to indict the defendant Ed Morrison, and when we consider the evidence in so far as Daniel, Drake and Crable are concerned, there can be no question but that the grand jury had ample evidence to say by their indictment that these men were the arch conspirators of an unlawful and vicious scheme, contaminated from top to bottom by graft and corruption. By their own testimony before the grand jury, this situation was disclosed.
“Drake and Daniel testified with regard to the receipt as pure political graft, thousands upon thousands of dollars, and Crable, Superintendent of Public Instruction for the State of Oklahoma, under the evidence before the grand jury, was the man who activated the program and he was the man without whom this situation could not have existed, had he not given it his complete support and been a part thereof.”
“I hesitate to go further in the analysis of the evidence regarding that feature of the case, because it is so rank and so devoid of propriety that the grand jury in their indictment, and under the evidence before them was amply justified in finding this alleged unlawful conspiracy to have existed, and it indicates a complete unfitness and lack of character on the part of these individuals.
“As to the defendant, Henry G. Bennett, the evidence in this case is not sufficient, and was not sufficient to warrant the grand jury to return an indictment against him. I pause here to analyze, briefly, the alleged damaging evidence in this case. It has to do with the revision of the arithmetic. The evidence in this case — I will put it this way — there was no evidence in this case before the grand jury that the defendant, Bennett, revised the textbook, or took any active part therein. The contract between Bennett and the school book company, which was introduced in evidence before the grand jury, discloses that the question of revision of these books, as to whether they should be revised, or not, was in the hands of the publishing company. I have been unable to find any evidence in this case which shows that Henry G. Bennett took any active part in the conspiracy. I have been unable to find any evidence before the grand jury from which it can be reasonably inferred that he was one of the conspirators, and so that the motion of the defendant, Henry G. Bennett, to quash and set aside the indictment in case No. 11,467, in so far as he is concerned, will be sustained.”
“I would like to say this: I kept looking at this indictment a minute ago, when I was talking about Daniel, Drake and Crable, and I could not find the defendant, Willis Smith’s name at the moment, and I want to say that all that I have said that impugns the character and motives of Daniel, Drake and Crable, under the evidence before the grand jury, equally and fully applies to the defendant, Willis Smith.”

The state contends that certain textbooks were sold in Tulsa county in 1941, 1942, and 1943, pursuant to the 1937 adoptions; that the sale of these textbooks in Tulsa county during those years was an overt act to accomplish the conspiracy allegedly formed by the defendants, and, because of these sales, venue of this prosecution would lie in Tulsa county, and that the three years’ statute of limitations would not bar the prosecution of defendants.

The defendants contend that the sales of those textbooks in Tulsa county at the times stated in the indictment were not overt acts to accomplish the conspiracy allegedly formed by the defendants, but were merely acts that were the results of the conspiracy that had already been completed; further, that a new gubernatorial administration took office in January, 1939, and that the 1937 adoptions had been superseded by the adoptions of a new textbook commission in 1939, and that the sales of books thereafter were under the 1939 adoptions by the State Textbook Commission; that, accordingly, the alleged offense was barred by the statute of limitations and that since the conspiracy was formed and completed at the State Capitol at Oklahoma City, in Oklahoma county, that venue would not lie in Tulsa county.

It is a well-settled rule that where a trial court hears evidence and passes upon a motion, sustaining or overruling the same, the judgment of the trial court thereon is a discretionary one and will not be disturbed on appeal in the absence of an assignment and a clear showing that the trial court in either overruling or sustaining the motion clearly abused its judicial discretion. Estell v. State, 43 Okla. Cr. 99, 277 P. 256; State v. Bell, 13 Okla. Cr. 664, 166 P. 451; Takarske v. State, 81 Okla. Cr. 189, 162 P. 2d 197.

Since an abuse of discretion is not assigned as error and is not presented in this appeal by the state and no contention is urged that the trial court did abuse its discretion in sustaining the motion to quash because of insufficiency of the evidence as to the defendant, Henry G. Bennett, the trial court’s finding as to him is final and the things hereinafter stated in this opinion do not apply to said defendant Bennett, but only apply to the contentions of the state directed to the action of the court in sustaining the motions to quash as to the remaining defendants hereinabove named.

It is unnecessary for us to give a detailed analysis of the evidence, as a careful reading of the record shows that the trial judge, in his statement herein above quoted, clearly summarized the evidence before the grand jury. Nothing further will be stated concerning the proof adduced before the grand jury, as the issues before this court raise purely questions of law concerning the statute of limitations and venue.

We have reviewed the authorities presented by both sides of this case, and have acquainted ourselves with the record.

We are of the opinion that all of the acts charged as a part of the alleged conspiracy occurred in Oklahoma county, Okla., and that all overt acts alleged occurred more than three years prior to the date of the returning of the indictment in Tulsa county. The district court of Tulsa county was without jurisdiction of the alleged offense.

This court has heretofore defined conspiracy as a combination of two or more persons by some concerted action to accomplish some criminal or unlawful purpose, or to accomplish some purpose not in itself criminal, by criminal or unlawful means. Wishard v. State, 5 Okla. Cr. 610, 115 P. 796; Conley v. State, 15 Okla. Cr. 531, 179 P. 480; Burns v. State, 72 Okla. Cr. 432, 117 P. 2d 155.

The charging statute is 21 O. S. 1941 § 424. The overt act which completes the offense under this statute is one which is done to effect the object of the conspiracy. The crime of a conspiracy to commit a felony or misdemeanor is not complete unless some act besides such agreement be done to effect the object thereof by one or more of the parties to such agreement; and that act must be some overt act or acts done in furtherance and pursuance thereof. Williams et al. v. State, 16 Okla. Cr. 217, 182 P. 718, 724.

Where the jurisdiction of the court depends solely upon an overt act alleged in an information or indictment for conspiracy to commit a crime, it must be alleged with definiteness and certainty as any other jurisdictional fact. And it must be alleged and proved that the overt act was an áct done in furtherance and pursuance, and to effect the object of the conspiracy.

- In Williams v. State, supra, it is held that an overt act must be something more than evidence of conspiracy. It must be an act done by one of the parties to carry out the intent, and one that would naturally effect that result. It must be a step towards the execution of the conspiracy.

“Under the statute * * *, the crime of conspiracy is not complete without the commission of an overt act. Therefore the overt act may be the sole basis of local jurisdiction. However, it must be something more than evidence of the conspiracy. It must be an act to effect its object.” Williams v. State, supra.

In the instant case, the purpose of the alleged conspiracy was to influence the Textbook Commission, so as to bring about the adoption of certain textbooks and obtain contracts therefor. Any overt act under this rule must be one that would “effect” that result. Any act done to influence the Textbook Commission in making the alleged adoptions, or executing the contracts, would be an overt act and a part of the conspiracy. After the adoptions were made and after the contracts were entered into, then the conspiracy no longer existed. Nothing further could be done to help bring it about because it was a thing that had already terminated.

“When a conspiracy is entered into to do an unlawful act, all persons who engage therein are responsible for all that is done in pursuance thereof by any of their co-conspirators until the object for which the conspiracy was entered into was fully accomplished.” Holmes v. State, 6 Okla. Cr. 541, 119 P. 430, 435, 120 P. 300.

The Oklahoma conspiracy statute was adopted from the federal statutes. State v. Young, 20 Okla. Cr. 383, 203 P. 484.

A review of the construction placed upon the language of the statute by the federal courts is persuasive and helpful in clarifying the distinction between an act done for the purpose of effecting the object of the conspiracy and the result which occurs after the object of the conspiracy has been accomplished and the conspiracy has ceased to exist.

In the case of United States v. Great Western Sugar Co. et al., D. C., 39 F. 2d 152, 155, it was charged that several concerns did practically all of the beet sugar business in the States of Nebraska, Colorado, Montana and Wyoming, that a price war Avas carried on between some of these concerns for the purpose of restraining interstate commerce in sugar, and that a conspiracy was formed between the defendant companies to restrain and control interstate trade in beet sugar, contrary to the Anti-Trust Act, 15 U. S. C. A. §§ 1-7, 15.

Prosecution was commenced on information in the United States District Court in the State of Nebraska. None of the acts constituting the alleged conspiracy occurred in that state, nor were any of the acts complained of performed within three years prior to the date of the information, except that it was charged that within that period “and Avithin the county of Dancaster, in the state and district of Nebraska,” certain sales and purchases were made at the price which resulted from the alleged conspiracy.

A special demurrer was interposed by the defendants, presenting the issue of limitations. The court sustained the demurrer. The defendants’ plea to the jurisdiction was sustained upon substantially the same grounds, it having only been shown that sales and purchases Avere made in the State of Nebraska. The court stated that those acts “neither furthered the conspiracy nor manifested it in existence or operation, and therefore the conspiracy is not shown to have come within the territorial jurisdiction of this court.” See, also, United States v. Biggs, D. C., 157 F. 264; United States v. Biggs, 211 U. S. 507, 29 S. Ct. 181, 53 L. Ed. 305; United States v. McLaughlin, D. C., 169 F. 302; Lonabaugh v. United States, 8 Cir., 179 F. 476.

There are many decided cases illustrative of this principle. In Rose v. St. Clair, D.C., 28 F. 2d 189, 191, where one Bose, acting in conjunction with a local organization, gave an exhibition in a theatre in Pittsburgh, Virginia, of films of the Tunney-Dempsey prize fight. The films were seized by the United States Marshal under a search warrant and the court ordered the films returned to Bose. Later, an indictment was returned alleging a conspiracy to violate the federal statutes prohibiting the importation and interstate transportation of films, showing a pictorial representation of prize fights. The overt act alleged to have been committed was in publicly exhibiting the films. The court, in holding that the exhibition of the films within the jurisdiction of the court did not constitute an overt act to effect the object of the conspiracy, clearly distinguished between such acts and acts subsequently done that could not have any effect in the formation and existence of the completed conspiracy in the following language:

“In the affidavit the ‘object of the conspiracy,’ within the meaning of the conspiracy statute, is confused with what may be conveniently called the ultimate purpose of the conspirators. The object of the conspiracy was to violate section 1 of the act of 1912; the ultimate purpose of the conspirators was to publicly exhibit the films in Virginia; and this clear and unavoidable distinction makes necessary the conclusion that the object of the conspiracy had been fully and completely effected when the interstate transportation of the films had been completed. It also follows that the subsequent exhibition of the films in this city, while it was an act done to effect the ultimate purpose of the conspirators, could not have been an act done “to effect the object of the conspiracy.’ When the object of a conspiracy has been fully accomplished, no act subsequently done can possibly be an act done to effect the object of the conspiracy. To speak of an act done after the object in view had been fully accomplished as an act done to effect such object is an absurdity.
“It seems clear that the films were used ‘as a means’ of giving the exhibition which was being given when the affidavit was made. But Congress has never attempted to forbid the exhibition of pictures of prize fights, and, as the exhibition was not an act done to effect the object of the conspiracy, the use of the films in giving the exhibition is in this case without legal significance. The exhibition was merely an act (not declared to be a crime) done after the object of the conspiracy had been fully accomplished.”

See, also, Lorenz v. United States, 24 App. D. C. 337, 387; Id., 196 U. S. 640, 25 S. Ct. 796, 49 L. Ed. 631; Ware .v United States, 154 F. 577, 84 C. C. A. 503, 12 L.R.A., N.S., 1053, 12 Ann. Cas. 233; Id., 207 U. S. 588, 28 S. Ct. 255, 52 L. Ed. 353; Jones v. United States, 162 F. 417, 89 C.C.A. 303; Id., 212 U.S. 576, 29 S. Ct. 685, 53 L. Ed. 657.

When the adoptions were made and the contracts executed, the conspiracy was complete and the overt acts necessary under our statute as an ingredient of a conspiracy had already been performed. The object of the conspiracy had been attained. The alleged conspiracy thereafter ceased to exist.

Sales of textbooks thereafter made were not overt acts as contemplated by the charging statute. People v. Williamson, 280 Ill. App. 93; Brown v. Elliott, 225 U. S. 392, 32 S. Ct. 812, 56 L. Ed. 1136; Ex parte Black, D. C., 147 F. 832; Feder v. United States, 2 Cir., 257 F. 694, 168 C.C.A. 644, 5 A.L.R. 370; Lonabaugh v. United States, 8 Cir., 179 F. 476, 103 C.C.A. 56.

Where the act relied upon as the basis of the local jurisdiction is not an act relating to the execution of the conspiracy, but is merely a result of a conspiracy formed and its objects effected elsewhere, the same is insufficient to extend the statute of limitation and the local jurisdiction must fail. Tillinghast v. Richards, D. C., 225 F. 226; De Luca v. United States, 2 Cir., 299 F. 741; Rose v. St. Clair, D.C., 28 F. 2d 189; United States v. Great Western Sugar Co., D. C., 39 F. 2d 152.

The Supreme Court of North Carolina in the case of State v. Mitchell, State Bank Examiner, et al., 202 N.C. 439, 163 S.E. 581, 583, in its opinion used language which very appropriately applies to the instant case.

Mitchell, State Bank Commissioner, had his offices at Raleigh, in Wake county, N. C. He and others were indicted in Buncombe county, where they were charged with conspiracy in connection with receiving deposits of money and transacting business in banks which it is alleged they knew were insolvent. These banks were located in different counties of the state, but none of them were in Wake county. A plea of abatement was filed attacking the venue in Buncombe county. This plea was sustained, the defendants were discharged, and the state appealed. In the opinion affirming the decision of the trial court, it is stated:

“The plea raises the question whether a grand jury in Buncombe county had jurisdiction or power to indict the defendants for alleged misfeasance, malfeasance, or non-feasance in the county of Wake. ...
“With respect to the question presented, the common-law doctrine was clearly defined. ‘The grand jury,’ said Blackstone, ‘are sworn to inquire only for the body of the county, pro corpore comitatus; and therefore they cannot regularly inquire of a fact done out of that county for which they are sworn, unless particularly enabled by an act of parliament.’ 4 Com. 303. No less direct is Hawkins’s Pleas of the Crown: ‘But of whatsoever nature an offence indicted may be, whether local or transitory, as seditions, words, or battery, etc., it seems to be agreed, that if upon not guilty pleaded it shall appear, that it was committed in a county different from that in which the indictment was found, the defendant shall be acquitted.’ C. 25, sec. 51. ‘At common law, the venue should always be laid in the county where the offense is committed, although the charge is in its nature transitory, as sedi-tions, words, or battery; and it does not lie on the prisoner to disprove the commission of the offense in the county in which it is laid, but it is an essential ingredient in the evidence on the part of the prosecution, to prove that it was committed within it.’ 1 Chitty on Criminal Law, 177. The substance of this summary has been referred to in a number of our decisions. State v. Lytle, 117 N. C. 799, 23 S. E. 476; State v. Carter, 126 N.C. 1011, 35 S.E. 591; State v. Oliver, 186 N.C. 329, 119 S.E. 370.
“The orderly sequence of these propositions is the question whether this principle of the common law prevails in the courts of this state. Before the adoption of our Constitution it was declared that all such parts of the common law as were theretofore in use within the state and were not destructive of, repugnant to, or inconsistent with the freedom and independence of the state and its form of government and not otherwise provided for, abrogated, repealed, or become obsolete, were in full force within the state. This statute is now in effect. C.S. § 970. It is generally conceded that so much of the common law as is in force by virtue of this provision is subject to legislative control and may therefore be modified or repealed. But there are parts of the common law which are not subject to modification or repeal by the Legislature because they are imbedded in the Constitution. * * *
“The facts pleaded in abatement challenged the jurisdiction of the superior court of Buncombe county for the reason that the grand jury there was without jurisdiction to indict the defendants for a breach of the criminal law averred to have been committed in the county of Wake. At common law the grand jury of the county in which the bill was found had no jurisdiction of the indictment, and we have no statute enacted by the General Assembly except as heretofore noted, ‘no act of parliament,’ conferring such jurisdiction. Whether such a statute, if enacted, would be sustained as an exercise of legislative power or declared invalid because in conflict with the organic law is a matter outside the scope of this discussion.
“There was no error in sustaining the plea in abatement. The effect of the judgment is to terminate any further action or prosecution on the indictment found in Buncombe county and to discharge the defendants.”

If the foregoing were not conclusive, it is apparent from the record and the provisions of Senate Bill No. 16, Chapter 28, Session Laws 1941, 70 O. S. 1941 §§ 974, 975, 980, 981, 985a, 991a, 991b, that new adoptions were made in 1939 by the Textbook Commission and thereafter all books sold were those included in this 1939 adoption or under the 1941 statute. We approve and affirm the ruling of the trial court on this question, which is in part as follows:

“The conspiracy, of course,, as alleged, and as it existed under the evidence before the grand jury, was back in 1937 and 1938. There is some evidence to show that the conspirator A. L. Crable, as late as 1939 and 1940, endeavored to continue the conspiracy, but the overt acts alleged in the indictment are not overt acts under the law, because of the subsequent adoption by the Textbook Commission and because, particularly, of the acts of the Legislature of 1941. The act of the Legislature of 1941 places the stamp of legality upon those overt acts alleged in the indictment in Tulsa County, which happened in Tulsa County within the three years last past. The court, therefore, finds that, as a matter of law, Tulsa County does not have jurisdiction of this conspiracy; that the venue is not here and the motion to quash is good on that ground.”

Because of the conclusion reached that the prosecution of the offense charged was barred by the statute of limitations and that the venue did not lie in Tulsa county, it is unnecessary to decide other questions.

The judgment of the district court of Tulsa county, quashing and setting aside the indictment as to each and all defendants is affirmed.

BAREFOOT, 1\ J., concurs. JONES, J., concurs in conclusion.


author: PER CURIAM.

text:
    STATE v. HENRY G. BENNETT.
    No. A-10512.
    Oct. 11, 1945.
    (162 P. 2d 580.)
    ■v Randell S. Cobb, Atty. Gen., E. J. Broaddus, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., and M. S. Simms and John L. Ward, Jr., Asst. Co. Attys., all of Tulsa, for plaintiff in error.

      F. A. Rittenhouse, of Oklahoma City, Swank & Swank, of Stillwater, Blakeney & Blakeney, of Oklahoma City, Ownby & Warren, of Tulsa, Welch & Welch, of Madill, and W. Hendrix Wolf and John Monk, both of Stillwater, for defendant in error.
   PER CURIAM.

Defendant, Henry G. Bennett, was charged with the crime of perjury in Tulsa county. The trial court sustained a motion to quash the indictment, after hearing testimony, and the state appealed.

At the time of the oral argument in this court on December 4, 1944, the state abandoned its appeal in this case, and for this reason the judgment and sentence of the district court of Tulsa county is affirmed. Bennett v. District Court of Tulsa County et al., 81 Okla. Cr. 351, 162 P. 2d 561.


text:
    STATE v. HENRY G. BENNETT.
    No. A-10513.
    Oct. 11, 1945.
    (162 P. 2d 580.)
    Randell S. Cobb, Atty. Gen., E. J. Broaddus, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., and M. S. Simms and John L. Ward, Jr., Asst. Co. Attys., all of Tulsa, for plaintiff in error.

      F. A. Rittenhouse, of Oklahoma City, Swank & Swank, of Stillwater, Blakeney & Blakeney, of Oklahoma City, Ownby & Warren, of Tulsa, Welch & Welch, of Madill, and W. Hendrix Wolf and John Monk, both of Stillwater, for defendant in error.
   PER CURIAM.

Defendant, Henry G. Bennett, was charged with the crime of perjury in Tulsa county. The trial court sustained a motion to quash the indictment, after hearing testimony, and the state appealed.

At the time of the oral argument in this court on December 4, 1944, the state abandoned its appeal in this case, and for this reason the judgment and sentence of the district' court of Tulsa county is affirmed. Bennett v. District Court of Tulsa County et al., 81 Okla. Cr. 351, 162 P. 2d 561.


text:
    Ex parte HENRY G. BENNETT.
    No. A-10462.
    Oct. 11, 1945.
    (162 P. 2d 588.)
    See also, 81 Okla. Cr. 351, 162 P. 2d 561.
    F. A. Rittenhouse, of Oklahoma City, Swank & Swank, of Stillwater, Blakeney & Blakeney, of Oklahoma City, Ownby & Warren, of Tulsa, Welch & Welch, of Madill, and W. Hendrix Wolf and John Monk, both of Stillwater, for petitioner.
    Randell S. Cobb, Atty. Gen., E. J. Broaddus, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., and M. S. Simms and John L. Ward, Jr., Asst. Co. Attys., of Tulsa County, all of Tulsa, for respondents.
   PER CURIAM.

The question herein involved is moot, because the defendant was released from custody prior to the hearing.'

It is therefore ordered that the case be and the same is hereby dismissed.


author: BAREFOOT, P. J. JONES, J.

text:
    J. T. DANIEL v. DISTRICT COURT OF TULSA COUNTY et al.

      No. A-10496.

      Oct. 11, 1945.
    (162 P. 2d 589.)
    Harley Ivy, of Waurika, for plaintiff.
    Randell S. Cobb, Atty. Gen., Sam H. Lattimore and E; J. Broaddus, Asst. Attys. Gen., and Dixie Gilmer, Co. Atty., and M. S. Simms and John L. Ward, Jr., Asst. Co. Attys., all of Tulsa, for defendants.
   BAREFOOT, P. J.

On February 17, 1944, J. T. Daniel filed in this court his petition seeking a writ of prohibition, in which it is alleged that on October 21, 1943, petitioner was indicted in Tulsa county for the crime of perjury. That after his arrest and arraignment, he filed a motion to quash the indictment, and when the same was overruled, after the hearing of testimony, he then filed a demurrer to the indictment, which was also overruled, and exception allowed. The petition for writ of prohibition was then filed in this court.

This is one of several cases arising out of indictments returned by the Tulsa county grand jury. In State of Oklahoma v. Bennett et al., 81 Okla. Cr. 206, 162 P. 2d 581, the defendants, including the petitioner herein, were charged with conspiracy; in Bennett v. District Court of Tulsa County, etc., 81 Okla. Cr. 351, 162 P. 2d 561, the plaintiff Bennett asked for a writ of prohibition in a case wherein he was charged with the crime of perjury, in Tulsa county. These cases have this day been decided by this court.

The facts in this case are analogous to the facts in Bennett v. District Court, etc., supra. It therefore becomes unnecessary to further discuss the facts herein presented.

For the reasons stated in the Bennett case, the writ of prohibition is granted, and the district court of Tulsa county is prohibited from further proceeding to try the plaintiff under the indictment charging him with perjury in this case.

M. A. (NED) LOONEY, Special Judge, concurs.

JONES, J.

(dissenting). I respectfully dissent because of the reasons set forth in. my dissenting opinion in Bennett v. District Court of Tulsa County, etc., 81 Okla. Cr. 351, 162 P. 2d 561.


text:
    WILLIS L. SMITH v. DISTRICT COURT OF TULSA COUNTY et al.
    No. A-10465.
    Oct. 11, 1945.
    (162 P. 2d 590.)
    Keaton, Wells & Johnston, of Oklahoma City, and Hudson & Hudson, of Tulsa, for plaintiff.
    Randell S. Cobb, Atty. Gen., E. J. Broaddus, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., and M. S. Simms and John L. Ward, Jr., Asst. Co. Attys., all of Tulsa, for defendants.
   BAREFOOT, P. J.

Petitioner, Willis L. Smith, on November 26, 1943, filed in this court his petition seeking a writ of prohibition, in which it is alleged that petitioner was indicted on November 17,1943, in Tulsa county, for the crime of perjury.

The identical questions in Bennett v. District Court of Tulsa County, Oklahoma, et al., 81 Okla. Cr. 351, 162 P. 2d 561, are involved in this case. It therefore becomes unnecessary to further discuss the facts herein presented.

For the reasons stated in the Bennett case, the writ of prohibition is granted, and the district court of Tulsa county is prohibited from further proceeding to try the petitioner under the indictment charging him with perjury in this case.

M. A. (NED) LOONEY, Special J., concurs.

JONES, J.

(dissenting). I respectfully dissent because of the reasons set forth in my dissenting opinion in Bennett v. District Court of Tulsa County, etc., 81 Okla. Cr. 351, 162 P. 2d 561.


text:
    Ex parte WILLIS L. SMITH.
    No. A-10463.
    Oct. 11, 1945.
    (162 P. 2d 590.)
    Keaton, Wells & Johnston, of Oklahoma City, and Hudson & Hudson, of Tulsa, for petitioner.
    Randell S. Cobb, Atty. Gen., E. J. Broaddus, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., and M. S. Simms and John L. Ward, Jr., Asst. Co. Attys, all of Tulsa, for respondent.
   PER CURIAM.

The question herein involved is moot, because the defendant was released from custody prior to the hearing.

It is therefore ordered that the case be and the same is hereby dismissed.


text:
    Ex parte C. F. BREENE.
    No. A-9740.
    Oct. 11, 1945.
    (162 P. 2d 559.)

      Wheeler & Mounger, of Oklahoma City, for petitioner.
    Harold Zimmer, Co. Atty., of Dodge City, Kan., Mac Q. Williamson, Atty. Gen., and Sam Lattimore, Asst. Atty. Gen., for respondent.
   PER CURIAM.

The petition for writ of habeas corpus and the response to the rule to show cause entered and writ issued thereon show that C. F. Breene, petitioner, was arrested in Oklahoma City to answer a charge filed against him before the county judge of Ford county, Kan., acting as an examining magistrate and pursuant to a copy of a warrant issued by said county judge, charging that petitioner did feloniously “deliver to Mrs. A. E. Casey, his certain check in writing, drawn upon the First National Bank of Salina, Kansas, in the sum of $23.00, knowing at the time of the uttering and delivering of said check that he had no funds on deposit in or credit with said bank” a copy of said check in letters and figures are as follows, to wit:

‘“Salina, Kan. 9/12 1938- No—
FIRST NATIONAL BANK 83-656
Pay to the order of Mrs. A. E. Casey $23.00
Twenty-Three & No/100 DOLLARS
C. F. Breene’
Endorsed by Mrs. A. E. Casey
Subscribed and sworn to before me this 31st day of August, A. D. 1939.
Richard W. Evans
Justice of the Peace."

It is alleged that respondents, O. W. Barnes, under-sheriff, and Harold Zimmer, county attorney, of Ford county, Kan., are attempting and will unless restrained by writ or process by this court take your petitioner to Dodge City, Kan., for debt, that the aforementioned parties acting conjointly and without due process of law are restraining this petitioner and are attempting to take him out of the State of Oklahoma without due process of law.

It is averred no legal charge has been filed against petitioner in the State of Kansas to authorize his restraint, and that he is now and has never been a fugitive from the State of Kansas, and that he is now, and has at all times mentioned been, a resident of Oklahoma.

The response, filed September 25th, states “that petitioner was arrested by the Police Department of Oklahoma City, to answer a charge filed against him before the county judge of Ford county, Kan., acting as an examining magistrate and pursuant to a copy of a warrant issued by said county judge, charging said petitioner with the commission of a felony, in the giving of a worthless check” and concludes:

“Respondents further state that upon this day a request from the Governor of the State of Kansas for the extradition of petitioner to said State of Kansas to answer the aforesaid charge has been presented to the Governor of Oklahoma and after a hearing duly had and held, said extradition has been granted and warrant issued by the Governor of the State of Oklahoma for the delivery of said petitioner to the representatives of said State of Kansas.”

Thus it appears that respondents admitted that they have petitioner in custody by virtue of the executive warrant issued by the Governor of this state, authorizing respondent, O. W. Barnes, as agent of the State of Kansas to take, transport and deliver said petitioner to Ford county, Kan., in order that he may be there tried upon the aforesaid charge.

September 23rd, writ issued and made returnable September 25, 1939. On that day, following the testimony of petitioner as a witness in his own behalf, upon the request of respondent, Harold Zimmer, the further hearing of the case was passed to October 3rd. On said date the case was again continued on his request to October 17th, and petitioner enlarged on his appearance bond. On October 17th, petitioner appeared and by request of said respondent cause was again continued to November 27th. On said date petitioner appeared and by request of said respondent, Zimmer, cause was passed to January, 1940, term of court, at which time the cause was continued on request of said respondent to the March term of court. During the March term of court Mr. Zimmer, county attorney of Ford county, failing to appear, at the regular or adjourned term, petitioner was released, pending further order of the court.

On May 16th, the cause was submitted on the pleadings; the testimony taken in the cause, and brief filed by petitioner and answering brief by respondent, filed October 16, 1939.

It was announced that the writ would be granted and opinion to be filed later, Mr. Zimmer having stated that he intended to file proceedings that would meet the objections heretofore interposed in this ease.

We deem it sufficient to say that in Ex parte Offutt, 29 Okla. Cr. 401, 234 P. 222, 224, this court held:

“The question as to whether the person demanded and detained on an extradition warrant is substantially charged with a crime is a question of law, which on the face of the papers is open to inquiry on writ of habeas corpus.”

In Ex parte Wildman, 14 Okla. Cr. 150, 168 P. 246, this court held:

“The extradition warrant is prima facie proof, but not conclusive proof, that the requirements of the statute were complied with before the issuance of the warrant.”

Section 5278, U.S. Rev. Stat., 18 U.S.C.A. § 662, provides the steps necessary to be taken for the arrest and delivery of fugitives from justice.

In the instant case it appears from the record that a purported complaint was filed before a justice of the peace, which was not signed by Mrs. A. E. Casey, complaining witness, and it appears that the alleged warrant upon which petitioner was arrested issued from the county court of Ford county, and it does not appear in which court the said case was then pending.

On the face of the record it appears that the complaint as set forth in the response and as shown by the original complaint introduced on the hearing as evidence on the part of the respondent, bears no filing mark in any court, merely concludes:

“Subscribed and sworn to before me this 31st day of August, A. D. 1941.
Richard R. Evans, Justice of the Peace.”

It is sufficient to say that in this case it was the opinion of the court that the affidavit or complaint introduced in evidence was insufficient to charge petitioner with the commission of the crime of passing a worthless check, and was at variance with the allegations of the response of said respondent, agent for the State of Kansas, and that for this reason it would serve no useful purpose to review other questions presented. It was therefore adjudged and. ordered that the writ be allowed and the petitioner be discharged.


text:
    Ex parte GEORGE WILSON.
    No. A-10618.
    Oct. 17, 1945.
    (162 P. 2d 786.)
    George Wilson, in pro. per.
    Randell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   BAREFOOT, P. J.

Petitioner, George Wilson, has filed in this court original petition for a writ of habeas corpus, alleging that he is illegally held in the State Penitentiary at McAlester. In the petition it is alleged that he was tried and convicted in the district court of Wagoner county on or about July 18, 1935, for the crimes of burglary and assault with intent to kill. He was charged in four counts of burglary, all having been committed in succession the same night, and one count of assault with intent to kill. He was convicted and by the court sentenced to serve a term of ten years in the State Penitentiary on each of the five counts, to run consecutively.

It is alleged in the petition that petitioner did not have the assistance of counsel as provided by law, and that he was illiterate, and did not know that the sentences were to be served consecutively, but thought they were to run concurrently.

Response to this petition has been filed by the Attorney General on behálf of the Hon. R. B. Conner, warden of the Oklahoma State Penitentiary. The response states:

“Respondent states that he holds said petitioner in custody pursuant to the judgment and sentence of the District Court of Wagoner County, Oklahoma, committing said George-Wilson to serve a term of 10 years upon a plea of guilty to the crime of burglary in the first degree after conviction of assault with intent to kill. That upon the conclusion of his present sentence, the said George Wilson is to be held in said penitentiary pursuant to three additional sentences of 10 years each for the crime of burglary in the first degree after conviction of assault with intent to kill, which said sentences are to run consecutively.
“Respondent further states that said George Wilson after committing said series of burglaries, shot and wounded the sheriff of Wagoner County and escaped, although he was later captured; that before entering his plea of guilty, he was fully advised by County Attorney E. J. Broaddus and District Judge Enloe V. Yerner, now deceased, as to his right to counsel and other constitutional rights and the consequences if he should plead guilty; that said George Wilson entered his plea of guilty to each of said charges after being so fully advised, and with full knowledge of the consequences thereof.”

The petition herein was filed on March 31, 1945. It was assigned for hearing on April 25, 1945. No one appeared in behalf of the petitioner, and no evidence was submitted to sustain the allegations of the petition. Petitioner did not attach copy of the judgment and sentence, nor any of the proceedings had in the trial court to his petition; and none of them were offered in evidence. Under this state of facts, the petition for writ of habeas corpus must be denied.

For the reasons above stated, the petition for habeas corpus is denied.

JONES, J., concurs. DOYLE, J., not participating.


text:
    WESTLEY McELLISON v. STATE.
    No. A-10484.
    Oct. 17, 1945.
    (162 P. 2d 785.)
    Dan Mitchell, of Enid, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Harry McKeever, Co. Atty., of Enid, for defendant in error.
   BAREFOOT, P. J.

Defendant, Westley McEllison, was charged, by amended information, in the county court of Garfield county, with the crime of “unlawfully making an offer to one Sergeant Thompson to secure another, to wit: * * *, for the purpose of prostitution with said Sergeant Thompson”; was tried, convicted and sentenced by the court to serve a term of four months in the county jail, and to pay $41.60 costs, and has appealed.

This is a companion case to that of Dunham v. State, reported in 81 Okla. Cr. 205, 162 P. 2d 332.

The facts herein are identical with the facts in the above mentioned case, and for the reasons stated therein, the case must be reversed.

It also appears in this case that the trial court failed to charge the jury with reference to the punishment which could be assessed under the statute. The only charge of the court with reference to the punishment to be assessed was as follows:

“You are further instructed that if you find the defendant guilty, but are unable to agree upon the sentence to be imposed you may return a verdict of guilty and the court will assess and declare the sentence to be imposed upon your finding of guilty.”

This statute, under which defendant was prosecuted, provided for a punishment of “not less than thirty (30) days nor more than one (1) year * * * in the county jail.” 21 O. S. Supp. 1943 § 1031. The jury should have been instructed as to this penalty and given an opportunity to fix the punishment, and in the event they could not agree on the punishment, it could then be left to the court to assess the same.

For the reasons above stated, the judgment of the county court of Garfield county is reversed.

JONES, J., concurs. DOYLE, J., not participating.


text:
    ELMER GADDY v. STATE.
    No. A-10457.
    Oct. 17, 1945.
    (162 P. 2d 787.)

      S. E. Dunn, of Tulsa, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Elmer Gaddy, was charged by information filed in the district court of Tulsa county with the crime of assault with intent to kill; was tried, convicted of the offense of assault with a dangerous weapon, and was sentenced to serve six months in the county jail, and has appealed.

The only assignment of error presented in the brief of the defendant is that the court committed fundamental error in failing to give the jury an instruction on the law of self-defense, or to submit to the jury any instruction on the defendant’s theory of. the case. No brief has been filed by the state.

At the time of the conflict out of which these charges were filed, the defendant and J. E. Medlin, the person alleged to have been assaulted, were residents of Broken Arrow. Some few months previous to the alleged assault, Medlin. and his wife had divorced and she had gone to California with the defendant. After the return of the defendant Gaddy to Broken Arrow, Medlin on various occasions accused him of breaking up his home. They had had altercations on at least two occasions prior to the time in question, and on one of these occasions, both Gaddy and Medlin had paid fines in the police court for fighting. Although the proof is disputed as to who started the altercation out of which the injuries to Medlin were inflicted, from which this charge was filed, it appears without dispute that Medlin on the former occasions had taken the initiative in starting a fuss with the defendant.

On the date in question, according to the proof of the state, Medlin and Gaddy, together with other persons, were in a service station. Medlin started to leave the station to help push another person’s car, and, as he started to leave, the defendant rushed at him and cut him on the neck with a pocketknife. Medlin was taken to a hospital for treatment and was under a doctor’s care for several days. The doctor described the injury sustained by Medlin and expressed the opinion that it was inflicted by a knife.

Witnesses for the defendant testified that the defendant did not touch Medlin and that they did not see any knife, but that Medlin came into the filling station and dared the defendant to come outside and fight and stated, “I will whip you.” That Medlin stumbled and fell when he went through the door of the service station and struck the rear of an automobile, inflicting the injuries complained of.

The defendant himself testified that Medlin started out of the door and that he started behind him and that he struck Medlin with his fist while Medlin’s back was turned, that Medlin commenced to run and stumbled and fell against the back of an automobile and cut his neck and that he, the defendant, did not have a knife in his hand and did not inflict the injury upon Medlin.

No requested instructions were presented by the attorney for the defendant and no exception was saved to the giving of any instruction. The court did give an instruction on the defendant’s theory of the case as follows:

“You are instructed that the defendant’s defense in this case is that he committed no assault upon J. E. Med-lin with a knife or other sharp or dangerous weapon and that the injury or injuries alleged by the state to have been inflicted upon the said J. E. Medlin were not caused by the defendant, as charged in the information.”

At no point in the testimony of the defendant did he raise an issue of self-defense, although, in former altercations had between the two parties, defendant did state that Medlin had started them and that everything he did was in the nature of resisting assaults by Medlin. The defendant did not claim that he struck Medlin in self-defense in the instant case, but his defense was a denial that he inflicted the injuries complained of and claimed in that connection that the injuries were caused when Medlin stumbled and fell against the rear of an automobile parked in the driveway of the filling station.

If counsel for the defendant thought that the instructions of the court were not sufficiently full or definite upon any proposition, or that the court had failed to instruct upon a proposition deemed by him material, it is his duty to prepare and present to the court a correct and complete instruction and request that it be given. Nance et al. v. State, 43 Okla. Cr. 247, 278 P. 357; Merriott v. State, 18 Okla. Cr. 247, 194 P. 263; Dickson v. State, 26 Okla. Cr. 403, 224 P. 724.

The evidence in this case raised an issue of fact for the determination of the jury. The punishment was fixed by the jury. They saw the witnesses and heard the testimony and their findings based upon competent evidence will be sustained by this court on appeal. The judgment is affirmed.

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


text:
    CHESTER HICE v. STATE.
    No. A-10471.
    Oct. 25, 1945.
    (162 P. 2d 880.)

      Eobert J. Wimbish, of Ada, for plaintiff,in error.
    Eandell S. Cobb, Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Chester Hice, was charged by information filed in the county court of Pontotoc county, on November 19, 1942, with the crime of unlawful possession of intoxicating liquor; was tried, convicted, and sentenced to serve a term of 60 days in the county jail and pay a fine of $100 and costs, and he appeals.

Petition in error and case-made were filed in this court on December 8, 1943. No brief has been filed in this case and no oral argument presented.

Where defendant appeals from a judgment of conviction, and neither any brief is filed nor appearance for oral argument made, we do not consider it the duty of this court to go into a careful examination of the evidence to determine whether or not trial court erred in the admission or rejection of testimony. This court will examine the record for jurisdictional errors. If no fundamental error appears, the judgment will be affirmed.

We have examined the record and find that the information is sufficient to charge the offense of possession of intoxicating liquor. The evidence is sufficient to sustain the judgment and sentence, and the court’s instructions were applicable to the law and facts. On the record before us we have discovered no error which would warrant a reversal of the judgment, and it appears that the defendant was accorded a fair and impartial trial.

The judgment of the trial court is accordingly in all things affirmed.

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


text:
    DAISY MEDLEY v. STATE.
    No. A-10459.
    Oct. 25, 1945.
    (162 P. 2d 881.)
    A. L. Commons, of Miami, for plaintiff in. error.
    Randell S. Cobb, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Charles C. Chestnut, Co. Atty., of Miami, for defendant in error.
   BAREFOOT, P. J.

Defendant, Daisy Medley, was charged in the county court of Ottawa county with the unlawful possession of intoxicating liquor, to wit: 21 one-half pints of whisky, five pints of whisky, two quarts of whisky, three one-fifth gallons of whisky, and one partially full one-fifth gallon of whisky, was tried, convicted and sentenced to pay a fine of $50 and to serve 30 days in the county jail, and has appealed.

For reversal of this case, it is contended:

“1. The trial court erred in refusing to suppress the evidence.
“2. That the verdict is insufficient in form and is indefinite.
“3. (a) Failure of the court to instruct the jury to return a verdict of not guilty at the conclusion of the opening statement by the state.
“(b) The remarks of the county attorney in his opening statement were prejudicial and entitled the defendant to a mis-trial.”

As to the first proposition, the record reveals that a motion to suppress the evidence obtained by reason of the execution of a search warrant on defendant’s premises was filed and heard by the court prior to the trial. The motion to suppress need not be quoted. Defendant in her brief relies principally upon the proposition that the search was of the private residence of defendant, and not of a rooming-house, as alleged in the affidavit which was introduced in evidence at the hearing. Two witnesses were placed upon the stand by defendant to support the motion: Lawrence Yoyles, the justice of the peace who testified to the filing of the affidavit and issuance of the search warrant; and Frank E. Williams, the chief of police of the city of Pitcher, who signed the affidavit and procured the search warrant, and with the assistance of other officers executed the same.

The evidence of this officer was that after he secured the search warrant, he went to the roominghouse of the defendant in Pitcher. That it consisted of at least 12 rooms, and that there was a sign on the same “Daisy Booms,” and it was known by this name, and was so described in the affidavit and search warrant, together with a more detailed description. He testified that upon entering the premises the defendant was present in the front room, and he informed her that he had a warrant for her and she ran into the kitchen and locked the door. She finally emerged, and told the officers they could search the premises. The warrant was placed on the table. ' When the search was made, they found the bonded whisky heretofore described in a “cache” in the kitchen. Defendant made the remark to the officers, “If we didn’t quit raiding her we were going to run her out of business.”

On cross-examination the chief of police testified that it was known as a rooming house, but that defendant did not have any “boarders” that day. This question was asked him:

“Q. Didn’t have any boarders? Her private residence at that time? A. Yes.”

It is by reason of this answer that it is claimed the search was of a private residence, and therefore illegal. To support this contention, the case of Booth v. State, 67 Okla. Cr. 413, 94 P. 2d 846, is cited. We have examined this case, and find that the facts stated therein are in no wise applicable to the facts here. In that case it was found that the affidavit was made upon information and belief, and that the court refused to sustain a motion to quash the jury panel, and the case was reversed. The statement that the affidavit was made on information and belief was eliminated in this case, and the affidavit was a positive statement. The testimony of the chief of police on the motion to quash was to the effect that he had positive knowledge of statements made in the affidavit. The allegations of the affidavit were sufficient for the issuance of a warrant to search a private residence. The case of Wagner v. State, 73 Okla. Cr. 317, 121 P. 2d 322, is more directly in point. See also: Nelson v. State, 73 Okla. Cr. 113, 118 P. 2d 405; Washington v. State, 73 Okla. Cr. 81, 118 P. 2d 267; Hudgens v. State, 74 Okla. Cr. 56, 122 P. 2d 815.

We find that the court did not err in overruling the motion to suppress the evidence.

The second assignment of error is based upon the form of the verdict, which, omitting the caption, is as follows:

“We, the jury, impaneled and sworn in the above entitled cause, do upon our oaths find the defendant
Daisy Medley
as charged in the information.
Guilty 30 days |50.00”

Counsel for defendant, in his brief, makes this statement:

“We are not unmindful that strict technical rules of construction should never be applied to a verdict and that a verdict should receive a common sense construction, provided, however, when the verdict is returned that counsel for defendant is not asleep and makes a proper objection.”

The following cases are then cited: Love v. State, 12 Okla. Cr. 1, 150 P. 913; Fannin v. State, 65 Okla. Cr. 444, 88 P. 2d 671; Nance et al. v. State, 43 Okla. Cr. 247, 278 P. 357; Coleman v. State, 16 Okla. Cr. 579, 194 P. 282; Stansell et al. v. State 30 Okla. Cr. 265, 235 P. 937.

These cases, when carefully analyzed, do not uphold defendant’s contention that the verdict here rendered was invalid. In practically all of the cases, the verdict is upheld. It is sought to make a distinction that in the instant case objection was made at the time the verdict was received. While it might have been better if the court had required the verdict to be made more certain, we are of the opinion that the verdict was such that it was not error for the court to enter judgment thereon.

In the case of Love v. State, supra, cited by defendant, the court says [12 Okla. Cr. 1, 150 P. 917]:

“While verdicts in criminal cases should be certain, and free from ambiguity, yet any words that convey, beyond a reasonable doubt, the meaning and intention of the jury, are sufficient, and all fair intendments will be made to sustain them.”

And in the case of Fannin v. State, supra, it was said [65 Okla. Cr. 444, 88 P. 2d 677]:

“Strict technical rules of construction should never be applied to the verdict of a jury. Their verdict should receive a common-sense construction, and, if it is possible to arrive at the intent and purpose of the jury, the verdict should be upheld.”

Also in Nance v. State, supra:

“Where an informal verdict is returned, it should be objected to at the time, and the attention of the court called to its defective form so that it may be corrected. When this is not done, all reasonable intendments and inferences will be indulged in to sustain the verdict.”

In Coleman v. State, supra:

“A verdict will not be held void for uncertainty if its meaning can be determined by reference to the record proper.”

And in Stansell v. State, supra:

“Where, from an examination of the verdict and the entire record, the intent and purpose of the jury as expressed in their verdict may be clearly ascertained, it will be upheld.”

From the above cases it ivill at once be observed that the verdict here rendered is not so indefinite and uncertain as to make it void. The verdict states that the defendant was found guilty. The instructions of the court to the jury stated the punishment that could be assessed under the statute. The punishment assessed was the minimum. It was clearly the intention of the jury that a “jail” sentence of 30 days was intended to be assessed by the jury, although the word “jail” was not included in the verdict.

The third assignment of error that the court erred in failing to instruct the jury to return a verdict of not guilty at the conclusion of the opening statement by the state cannot be upheld. The statement of facts heretofore made clearly shows that under the evidence presented in this case it was proper to submit the same to the jury.

We have examined the record and read the opening statement of the county attorney to the jury. We find nothing therein which would justify a reversal of this case.

For the reasons above stated, the judgment of the county court of Ottawa county is affirmed.

JONES, J., concurs. DOYLE, J., not participating.


text:
    ADOLPH WYATT v. STATE.
    No. A-10469.
    Oct. 25, 1945.
    (162 P. 2d 884.)
    Hatcher, Hatcher & Taylor, of Oklahoma City, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and E. J. Broaddus, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Adolph Wyatt, was charged by information filed in the district court of Oklahoma county with the crime of attempted assault with a dangerous weapon; was tried, convicted by a jury who left the punishment to the court; the trial court thereupon sentenced the defendant to serve the maximum term of 2% years in the State Penitentiary, and he has appealed.

The state has filed a motion to dismiss the appeal on the ground that the petition in error with case-made attached was not filed with the clerk of this court within the six months fixed by statute, and, therefore, this court is without jurisdiction to hear and determine the appeal.

The record discloses that the jury returned its verdict on May 11, 1943, finding the defendant guilty and leaving the punishment to be assessed to the discretion of the court. The court thereupon fixed May 17, 1943, as the time to pronounce judgment and sentence in accordance with the jury’s verdict. On May 17, 1943, the defendant was sentenced to serve 2% years in the State Penitentiary. Thereafter, on May 20, 1943, the defendant filed a motion for new trial. This motion was presented to the district court on May 26, 1943 and was overruled. The petition in error with case-made attached was filed in this court on November 26, 1943, which was exactly six months from the date of the overruling of the motion for new trial, but was more than six months after the rendition of judgment.

By statute, it is provided:

. “An appeal from a judgment in a criminal action may be taken in the manner and in the cases prescribed in this article.” 22 O. S. 1941, § 1052.
“In misdemeanor cases the appeal must be taken within 60 days after the judgment is rendered: Provided, however, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days. In felony cases the appeal must be taken within six months-after the judgment is rendered, and a transcript in both felony and misdemeanor cases must be filed as hereinafter directed.” 22 O. S. 1941 § 1054.

This court has many times had occasion to pass upon the question herein raised. It has been uniformly held that, in order to give this court jurisdiction, the appeal, as prescribed by 22 O. S. 1941 § 1054, supra, must be filed with the clerk of this court within six months after the judgment and sentence is pronounced against the accused, and, where an appeal is not perfected by filing in this court a petition in error with case-made attached, or a transcript of the record, within the time prescribed by the statute, this court does not acquire jurisdiction of the appeal and such appeal will be dismissed. Johnson v. State, 70 Okla. Cr. 322, 106 P. 2d 128; Herman v. State, 23 Okla. Cr. 366, 214 P. 1084; Easterwood v. State, 38 Okla. Cr. 298, 260 P. 789; George v. State, 21 Okla. Cr. 240, 205 P. 942; Criner v. State, 37 Okla. Cr. 313, 258 P. 359; Dodson v. State, 24 Okla. Cr. 280, 217 P. 899.

In Dodson v. State, supra, it is stated:

“If the appeal could be filed one day late, it could be filed any number of days late. So that it is apparent, if this court would assume jurisdiction of an appeal filed one day late, it should also assume jurisdiction of an appeal filed one year too late. The Legislature has fixed six months as a reasonable time within which to file an appeal in felony cases, and this court is bound by the time so fixed.”

Counsel confused the rule of procedure in civil cases with the rule of procedure in criminal cases. Under criminal procedure it is provided that the motion for new trial must be filed before the judgment is pronounced. 22 O. S. 1941 § 953.

It is regrettable that the appeal herein was not filed within the time fixed by law. We have examined the record and, if this court had jurisdiction, it would either reverse or greatly modify the sentence imposed. The defendant was charged with attempted assault with a dangerous weapon upon his brother, C. A. Wyatt. The parties were negroes. On the night in question, a celebration was being had at the home of a brother of the defendant, Roy Wyatt, in honor of another brother who was at home on furlough from the Coast Guard. The defendant had been drinking. While eating a sandwich, he dropped it on the floor and a small dog grabbed it. The defendant kicked at the dog and he and Roy Wyatt, owner of the dog, had an argument which resulted in an altercation in the yard between the defendant and Roy Wyatt. Roy Wyatt was older and stronger than the defendant and apparently controlled him with ease. The defendant became enraged at Roy Wyatt and stated, according to the evidence of the state, “I will go home and get my shotgun and come back and shoot anyone who sticks his head up.” The defendant left. While he was gone, the party broke up, the lights were extinguished in the house, and everybody left. C. A. Wyatt, the complaining witness herein, up to this point had had no altercation with the defendant at all. However, he did notify the negro police officers of what the defendant had said and the officers in a scout car came over to the house looking for the defendant. About 30 minutes later, they found him with two shotgun shells in his pocket. A search of the house where the party had been in progress disclosed that a single-barrel shotgun belonging to the defendant was laying across a box near the back door. No person testified that they had ever seen the defendant carrying the shotgun that night, but the circumstances were probably sufficient to show that he had brought it to the house after the other members of the party had left. These were all of the facts. The defendant did not point his shotgun at any person, did not fire a shotgun, was not seen with a shotgun, and never made any direct threat at the complaining witness, C. A. Wyatt. The struggle which he had in the yard was with Roy Wyatt, another brother, and not the complaining witness. The only threat which in any way could have been inferred to be directed at the complaining witness, C. A. Wyatt, was the statement of defendant. that he would go get his shotgun and come back and shoot anyone that stuck his head up.

Upon the record in this case, this court is powerless to modify the judgment imposed or reverse the case. We have given this short review of the evidence so that the matter may be urged in an application for executive clemency. The jury who heard the evidence could not agree upon the punishment. He could have been given the minimum sentence of a small fine. Instead, the trial court assessed the maximum punishment of two and one-half years in the State Penitentiary. It is doubtful if any member of the jury under this record would have been in favor of the maximum term. No doubt the trial court in assessing the punishment gave strong emphasis to the fact that a few years before the time of this alleged controversy, the defendant had shot and wounded the complaining witness.

For the reasons hereinbefore stated, the motion by the Attorney General to dismiss the appeal must be sustained. The appeal is hereby dismissed and the case is remanded to the district court of Oklahoma county with directions to cause the judgment to be carried into execution.

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


text:
    ROY THOMPSON v. STATE.
    No. A-10482.
    Oct. 31, 1945.
    (162 P. 2d 1023.)
    Ralph Tawlings and Lillard & Tant, all of Oklahoma City, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and George Miskovsky, Co. Atty., of Oklahoma City, for defendant in error.
   BAREFOOT, P. J.

Defendant, Roy Thompson, was charged in the district court of Oklahoma county with the crime of pandering, was tried, convicted and sentenced by the court to serve a term of 12 years in the State Penitentiary, - and to pay a fine of |500 and the costs, and has appealed.

The appeal in this case is by transcript. The evidence given at the trial does not appear in the record.

When the case was assigned for oral argument, no appearance was made for defendant, and no brief has been filed. Rule 9 of this court is as follows:

“When no counsel appears and no briefs are filed, the court will examine the pleadings, the instructions of the court, and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears will affirm the judgment.”

In compliance with the above rule, we have examined the transcript, which includes the information, the demurrer to the information, the instructions of the court, and the judgment and sentence. We do not find that any error was committed, or that the defendant has been denied a fair and impartial trial.

The sentence, of 12 years in the penitentiary and to pay a fine of $500 and the costs is severe punishment, but not knowing what the evidence, in the case was, we are unable to say that it was unjustified.

For the reasons stated, the judgment and sentence of the district court of Oklahoma county is affirmed.

JONES, J., concurs. DOYLE, J., not participating.


text:
    Ex parte JOHN CLIFFORD MITCHELL.
    No. A-10629.
    Oct. 31, 1945.
    (163 P. 2d 238.)

      Luther P. Lane and Mild Hubler Webb, both of Tulsa, for petitioner.
    Randell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   BAREFOOT, P. J.

Petitioner, John Clifford Mitchell, was charged in the district court of Tulsa county with the larceny of an automobile; was tried, convicted and sentenced by the court, on December 4, 1942, to serve a term of 15 years in the State Penitentiary. No appeal was taken from the judgment and sentence, and petitioner is now in the penitentiary, serving this sentence.

On May 10, 1945, petitioner filed in this court his petition for a writ of habeas corpus, seeking his release and discharge from the penitentiary. A demurrer to the petition was filed by the Attorney General on behalf of the warden, as respondent.

As grounds for granting the writ, petitioner alleges that the trial court:

“(a) Failed to instruct upon the defendant’s theory of the case.
“(b) Failed to instruct on circumstantial evidence and that therefore he has been deprived of his liberty without due process of law.”

Counsel, in his brief, states:

“In raising this question which has never been passed on, so far as my research goes, by this Court and I have searched diligently in other Digests and other authorities including Corpus Juris Secundum and American Jurisprudence, I am aware that-1 am asking this court to do a bit of pioneering. * * *
“I am aware
“1st — That the habeas corpus is not a substitute for a writ of error.
“2nd — That the court will not analyze the evidence to determine his guilt or innocence.
“But—
“This court is committed not only to the proposition that they will determine jurisdiction but they will go further and see if his constitutional rights were denied and if so grant a writ of habeas corpus.”

To support this contention, the following cases are cited: Ex parte Farrar, 74 Okla. Cr. 390, 126 P. 2d 545; Ex parte Robnett, 69 Okla. Cr. 235, 101 P. 2d 645; State ex rel. v. Higgins, 76 Okla. Cr. 321, 137 P. 2d 273; Ex parte Davis, 66 Okla. Cr. 271, 91 P. 2d 799; Ex parte Barnett, 67 Okla. Cr. 300, 94 P. 2d 18; and Ex parte Sullivan, 10 Okla. Cr. 465, 138 P. 815, Ann. Cas. 1916A, 719.

A reading of these cases at once reveals that the facts therein are in no wise comparable to the facts in the instant case. We therefore deem it unnecessary to discuss them.

The fundamental error complained of is that the court , did not give an instruction to the jury upon circumstantial evidence, and did not instruct the jury upon defendant’s theory of the case. Defendant’s theory of the case is not stated. The record attached to the petition only contains the opening statement of the county attorney, the evidence, and the instructions of the court. The verdict of the jury and the judgment and sentence do not appear. The conviction did not rest solely upon circumstantial evidence. Petitioner was represented by counsel at his trial, and no request for an instruction on circumstantial evidence was presented.

It has been so often held by this court that the writ of habeas corpus may not be substituted for an appeal that the citation of authorities is unnecessary. The reasons for the rule are fully set out in the cases announcing the rule.

A careful reading of the record does not reveal that any fundamental error was committed, or that any of petitioner’s constitutional rights were denied. It is shown that petitioner has four times previously been convicted of a felony, and served sentences in the State and Federal prisons therefor. This no doubt was one of the reasons for the sentence of 15 years in this case.

Finding no error, the petition for writ of habeas corpus is denied.

JONES, J., concurs. DOYLE, J., not participating.