text:
    JOHN F. FERGUSON et al. v. STATE.
    No. A-8175.
    Oct. 30, 1931.
    (4 Pac. [2d] 696.)
    John F. Vaughan, for plaintiffs in error.
    J. Berry King, Atty. Gen., Ernest F. Jenkins, Co. Atty., and Guy L. Horton, Asst. Co. Atty., for the State.
   EDWARDS, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Payne county on a charge of gambling, and were each sentenced to pay a fine of $50, and in addition the defendant Jim Ferguson was sentenced to serve 30 days in the county jail.

At the time charged, the sheriff and two deputies, with a search warrant, went to the residence of one Hall. They forced their way into the house and found a crap table and cloth, designated a dice blanket, with numbers on it, a dice cup and dice, and 65 cents in money. One witness testified that, as they entered the house, Hall called out, “Abe, clean up,” and the same witness testified he heard the sound of money rattling. Another officer with this witness did not recall hearing this expression. The defendants were in or going into an adjoining room when the officers entered. They all testify that they did not participate in any game and that no gambling had been going on.

The crime of gambling may be proven, as any other crime, by circumstantial evidence. McCarty v. State, 21 Okla. Cr. 365, 207 Pac. 1069; Rush v. State, 22 Okla. Cr. 126, 210 Pac. 316; Crosby et al. v. State, 37 Okla. Cr. 312, 257 Pac. 1113; State v. Boyer, 79 Iowa, 330, 44 N. W. 558.

In cases where the charge is gambling, usually something more than the mere finding of paraphernalia for gambling is required; some noise, expression, or conduct indicating that a gambling game is in progress. Here only one witness testifies to an expression that might indicate a playing of a game of chance or which might indicate only the presence of gambling devices. We have a very strong suspicion that defendants were engaged in a crap game or were preparing to enter into one, bnt are not able to say the evidence proves that a game was being played.

The case is reversed.

DAVENPOBT, P. J., and CHAPPELL, J., concur.


source: Caselaw Access Project

author: DAVENPOBT, P, J.

license: Public Domain

text:
    LYMAN BOGGESS v. STATE.
    No. A-8026.
    Oct. 30, 1931.
    (4 Pac. [2d] 697.)
    Tom L. Buble, E. S. Collier, and Merle G. Smith, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPOBT, P, J.

The plaintiff in error, hereinafter referred to as the defendant, was by information jointly charged with Paul Powers, with the crime of murder; was tried separately and convicted of manslaughter in the first degree, and sentenced to- be imprisoned in the state penitentiary at McAlester for a period of 25 years. Motion for a new trial was filed, considered, and overruled, and the defendant appeals.

The facts disclosed by the record show that Paul Powers, a witness called to testify on behalf of the state, who had been jointly charged with defendant of killing James Townsend, had been convicted of manslaughter in the first degree and sentenced to serve 25 years in the state penitentiary. About a year after Paul Powers had been confined in the state penitentiary, he charged the defendant in this case with being guilty of murdering James Townsend, the party Powers had been convicted of manslaughter in the first degree of killing.

Powers testified that prior to October 27, 1925, he had been working for James Townsend; that early in September, 1925, the defendant came to where Powers was picking cotton for Townsend; he had never met the defendant before; it was further shown that during the conversation Powers had asked the defendant with reference to Townsend paying him, as he had had difficulty in getting Townsend to settle with him for work he and his brother had been doing; Paul Powers claims that the defendant had a pistol with him, and they had a talk about the pistol. The record is voluminous, and it is not deemed necessary to set out all the evidence given by Powers as to the conversation had between Powers and the defendant.

On the 25th day of October, 1925, the record discloses that Paul Powers and his brother Rufus Powers Avent to the home of the defendant and told him they were ready to work for him and got some kind of a conveyance and went to the Townsend home and hauled their trunk to defendant’s place and began picking cotton for the defendant Monday morning, the 26th day of October, 1925.

Paul Powers’ testimony further tends to show that the defendant had told him that Townsend was pretty bad about not paying parties who worked for Mm; Powers contends that on Sunday, after he went to defendant’s home, he had a conversation with the defendant with reference to whether or not Townsend would pay Powers for his work, and also discussed the question of the gun the defendant had sold Powers. It is further disclosed that the witness Paul Powers got up early Monday morning, ate his breakfast, got a horse from the defendant and rode down to the Townsend place, learned that he was not at home, and came back and picked cotton the remainder of the day. The defendant Monday morning said he was going to toAvn, and—

“I told him we were running short of shells, and he said he would get a box or two. I gave him a check for the pistol to show that I had bought it from him, so in case I had any trouble he could cash the check to keep him in the clear. Paul Powers further stated, in substance, that he spent Monday night at defendant’s home; on Tuesday morning, October 27, 1925, we got up at sunup and went down to the barn and did a few chores, drank some more, and defendant told me he would give me a saddle horse and the gun again and I could go back to see Townsend that day as Townsend would be at home, and told me to be sure and collect the money, and not to let ToAvnsend run over me like he had been doing the other boys that had been working for him. I got one of defendant’s horses and took the gun the defendant had sold me and Avent to- the Townsend place, returned to the defendant’s place about noon, and told the defendant, his Avife, and Rufus Powers that I had shot Jim Townsend.”

Paul PoAvers contends that after he went to the defendant’s home on October 25, 1925, that he and the defendant did some target shooting with the pistol that he afterwards killed Jim Townsend with, and states that they practiced shooting and learned to' sight, as he was under the impression he might have to shoot quick later on; that the defendant told him when he was pulling the gun to be sure and have his finger on the trigger.

The witness Paul Powers further states that on the day of the killing he went to the Townsend home and was advised that Townsend was in the field; he rode over to the field, about two' miles, met Townsend, and told him he had come to settle up, and Townsend began to argue with him about a goat Townsend claimed his brother had run over and killed; Powers said he told Townsend he would pay for the goat; they argued for some time and Townsend said he would have to sell some cotton before he could pay him.

“I argued around with him all morning; I hated to go back without collecting my pay, for the main reason I knew Boggess would kid me about it; he would say I was yellow and joke me about it, and I just hated to go back there; I was drunk too, and did not want to go back without the money, and I just made up my mind rather than go back and have Lyman kid me about it I would just go ahead and shoot him.”

Powers further stated he went back to defendant’s home and told him what he had done:

“He thought, I guess, that I was going to run, and he went to talking to me. He said to stay there, I will sell my place or do anything to get you out of this trouble.”

Witness then made further statements with reference to what the defendant had said about a still.

Paul Powers, when he was on trial, testified positively that he shot Jim Townsend in self-defense, and that the defendant in this case had nothing to do with it. Several other times he made the same statement, and no charge was made against the defendant in this case until after Paul Powers had been in the penitentiary some time. Some statements of Powers’ brother were introduced as to what had taken place between Paul Powers and the defendant Boggess on Monday morning, the day previous to the killing, and in a way attempt to repeat statements made by Boggess. The witness Paul Powers has made many different statements indicating he had no regard for the truth of his statements.' He admits he shot Jim Townsend. The defendant admits he sold Powers a pistol and admits that the Powers boys came to his house on Sunday before the killing on Tuesday for the purpose of assisting him in picking cotton; he had previously met Paul Powers and told him when he got through working at Townsend’s place he would like to have him assist him in gathering his cotton; he denied he had any ill feeling against the deceased; he denies absolutely there was anything said by him to Paul Powers, or any one else, that Paul Powers should make Townsend pay, and defendant denies he had any knowledge whatever that Powers had any intention of doing Townsend any harm, or shooting him.

The record discloses that two parties stayed at the Boggess home Monday night, and were there Tuesday morning until Paul Powers left for the Townsend home, and they state there was no conversation had between Paul Powers and Boggess with reference to what Powers should do to Townsend. There is a direct conflict in the testimony of Powers and the defendant as to what took place from the time they first met up until the last trial of Bog-gess, except they all admit the Powers boys were picking cotton for Townsend and afterwards came to the Boggess home and began to work for the defendant, and other matters which are not necessary to' detail in this opinion. Up until the time Boggess was charged with Paul Powers in the commission of this crime, there was no testimony brought out tending to show any drinking of whisky at the Boggess home, or that the defendant was intoxicated. There is a complete change in the testimony of the prosecuting witness Paul Powers in this case and the testimony given by him in the trial of his own case. Witness Paul Powers admits on the stand that he had sworn falsely in the previous trials.

The defendant has assigned several errors alleged to have been committed by the trial court possessing sufficient merit as he believes to warrant a reversal of this case. The first assignment of error is as follows:

“The court erred in overruling the motion of plaintiff in error for a new trial.”

This is the only error it is deemed necessary to consider, as the motion for a new trial covers all the other assignments. The defendant in his motion for a new trial urges that the verdict of the jury is not sustained by the evidence; that the verdict of the jury is contrary to law; and that the court erred in refusing the plaintiff’s request for an instructed verdict in his favor at the close of all the testimony in the case. In his argument, the defendant insists that the witness Paul Powers in this case testified that he did not act in self-defense; that in his own case, and a former trial of this defendant, Paul Powers stated he believed he was acting in self-defense at the time he fired the shot. It is further urged by the defendant that Paul Powers, by his own statement, is an accomplice. It is further urged that Paul Powers is not corroborated by any competent testimony showing that the defendant is guilty of any public offense.

In every criminal prosecution, the state must prove the corpus delicti; that is, that an offense has been committed, and, second, that the crime was committed by the accused. Green v. State, 7 Okla. Cr. 194, 122 Pac. 1108; Marston v. State, 9 Okla. Cr. 275, 131 Pac. 716.

Section 2701, Comp. St. 1921, is as follows:

“A conviction cannot be bad upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof.”

The testimony of Paul Po wers and his brother is successfully contradicted by disinterested witnesses, and Paul Powers admits that he had sworn falsely in his trial and a former trial of the defendant. Paul Powers in his testimony admits that he has ill will and animosity toward the defendant for the reason, as he says, the defendant had not assisted him in the trial of his case as he had agreed to do. The defendant denies he ever talked to Powers about shooting Townsend, and denies he ever made Paul Powers any promise to aid him in his trial. The record shows he did not employ counsel for Paul Powers when he was on trial. Considering the contradictory and improbable statements of Paul Powers and his brother, and the character of the testimony given by them, and in view of the fact that the defendant up to the time this charge was made against him by Paul Powers is shown to be a man of good character, it is necessary to carefully consider all the testimony in order to arrive at a conclusion as to whether or not there is any competent evidence which in any way tends to corroborate, and does corroborate, the testimony of the state witnesses as to the defendant aiding, abetting, or in any way assisting in the commission of the crime.

An accomplice has been defined by this court as one culpably implicated in the commission of the crime of which the defendant is accused; in other words, an associate, one who knowingly and voluntarily co-operates, aids, or assists in the commission of the crime. Hendrix v. State, 8 Okla. Cr. 530, 129 Pac. 78, 43 L. R. A. (N. S.) 546; McKinney v. State, 20 Okla. Cr. 134, 201 Pac. 673, 674; Sipes v. State, 36 Okla. Cr. 1, 251 Pac. 511.

A defendant cannot he convicted upon the uncorroborated testimony of an accomplice. The corroboration is not sufficient if it merely shows the commission of the offense, or the circumstances thereof. Kirk v. State, 10 Okla. Cr. 281, 135 Pac. 1156; Gillam v. State, 10 Okla. Cr. 176, 135 Pac. 441; Boyle v. State, 27 Okla. Cr. 196, 226 Pac. 389; Finchum v. State, 40 Okla. Cr. 192, 267 Pac. 688; Wever v. State, 22 Okla. Cr. 414, 211 Pac. 1062.

In the testimony of Paul Powers, he charges the defendant in this case with aiding, abetting and assisting him in the commission of the crime of killing Jim Townsend. In another portion of his testimony he states, “I argued around with Townsend all morning, and I hated to go back without collecting my pay, for the reason that Boggess would kid me about it. I did not want to go back without the money, and I just made up my mind rather than go back and have Boggess kid me I would just go ahead and shoot him.” This witness shows by his testimony that Boggess had nothing to do with his going to Townsend to collect his money, and that he did not intend when he went over there to shoot Townsend.

From a careful reading of the record, we conclude that the evidence is insufficient to warrant a conviction or sustain the verdict, because there is not sufficient corroboration of the accomplice.

The judgment of the trial court is reversed.

EDWARDS and CHAPPELL, JJ., concur.


author: EDWARDS, J.

text:
    JIMMIE HUFFMAN v. STATE.
    No. A-7969.
    Oct. 30, 1931.
    (4 Pac. [2d] 700.)
    Robert N. Dunn, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Jefferson county of selling whisky to a minor and his punishment fixed at one year in the state penitentiary.

The record discloses that at the time of the offense charged defendant sold a pint of whisky to one Bill Dodd who was under the age of twenty-one years. The evidence; sustains the judgment. The court in his charge instructed the jury that the minimum punishment was one year in the state penitentiary. The court evidently relied on section 7005, Comp. Stat. 1921, which was held unconstitutional in the cases of Nowakowski v. State, 6 Okla. Or. 124, 116 Pac. 351, and Nowlin v. State, 7 Okla. Or. 713, 122 Pac. 1133. The minimum punishment, a fine of $50 and imprisonment in the county jail for not less than 30 days, is fixed by sections 6996-7, Comp. Stat. 1921, being a part of chapter 26, Session Laws 1913. The court having erred in his instructions as to punishment, and the jury having fixed the minimum under the instructions, the sole question is, Shall this court reverse for a new trial or modify the judgment by reducing the punishment to the minimum fixed by law?

Upon a consideration of the entire record, we are of the opinion that justice will be better served by a modification of the judgment. It is therefore reduced to the minimum of a fine of $50 and 30 days in the county jail.

As modified, the case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    C. D. COPPLER v. STATE.
    No. A-8181.
    Oct. 30, 1931.
    (4 Pac. [2d] 700.)

      Paul R. Haunstein and Winfield' Scott, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Alfalfa county of grand larceny, and was sentenced to serve a term of two years in the state penitentiary. The only contention made is that the evidence is insufficient to sustain the judgment. Defendant was charged with the larceny of 79 bushels of wheat of the value of $79, the property of one Prank Porter. The evidence differs from that in most larceny cases, in that the owner of the property at the time of the trial was mentally unbalanced and unable to attend the trial or to' testify. The state was not able, therefore, to present direct and positive testimony of the ownership of the stolen property and the want of consent to its taking. The defendant did not take the stand and offered no testimony. He here insists that the essential elements of larceny are not proven because there is no direct proof of the corpus delicti. The state contends that all the elements of the crime, including the proof of ownership and want of consent, may be established by circumstantial evidence, and that they are established conclusively by the circumstances proven. The cases where circumstantial evidence is relied on to prove all the elements of the offense and including the facts forming the basis of the offense, i. e., the corpus delicti, are not numerous. But in those cases where the question has been considered it has generally been held that the corpus delicti as well as the essential elements of the offense proper may be proven by circumstantial evidence.

Mr. Wharton in his work on Criminal Law (11th Ed.) vol. 2, § 1172, under the subject of Larceny, says:

“Ownership may be inferentially proved. It is not necessary however, to prove by the person whose property is charged to have been stolen that the property belonged to him; the testimony of other persons who know the fact is sufficient. And such ownership may be inferred from the circumstance of the case” — citing State v. Stanley, 48 Iowa, 221; State v. Cardelli, 19 Nev. 319, 10 Pac. 433, 436.

The latter case is well reasoned. The court said:

“Every criminal charge necessarily involves two distinct propositions: (1) That a criminal act has been committed; (2) that the guilt of such act attaches to the particular person charged with the commission of the offense. In cases of larceny it is, of course, essential for the prosecution to prove that the property was feloniously taken from the person named in the indictment as the owner. ‘It must appear that the goods were stolen from the prosecutor; and if he, being a witness, cannot swear to the loss of the articles alleged to have been stolen from him, the prisoner must be acquitted.’ 3 Greenl. Ev. § 161. In what manner may this proof be made? Must it always be direct and positive? Is it absolutely essential, in all cases, that the proof of the corpus delicti should be established independent of the other elements of the offense? While it is true that a person charged with the commission of a criminal offense is not called upon to answer the charge without satisfactory proof, upon the part of the prosecution, of the corpus delicti, yet it is not essential, in all cases, that there should be any direct evidence upon this point. * * * Bishop, after citing the cases relied upon by appellant, concludes the section by saying: ‘If we look at the matter as one of legal principle, we can hardly fail to be convinced that while the corpus delicti is a part of the case which should always receive careful attention, and no man should be convicted until it is in some way made clear that a crime has been committed, yet there can be no one kind of evidence to be always demanded in proof of this fact any more than any other. If the defendant should not be convicted when there has been no crime, so equally should he not be when he has not committed the crime, though somebody has; the one proposition is as important to be maintained as the other, yet neither should be put forward to exclude evidence which in reason ought to be convincing to the understanding of the jury.’ * * *”

In Jackson v. State, 10 Okla. Cr. 525, 139 Pac. 324, this court held:

“The want of consent of the owner to the taking of his property alleged to have been stolen is an essential ingredient of the crime of larceny of domestic animals. The fact of nonconsent to the taking may be proven by facts and circumstances which sufficiently show that the property was feloniously taken.”

In the body of the opinion, it is said:

“The third assignment is that the trial court erred in overruling the defendant’s motion to direct a verdict of not guilty. Under this assignment it is contended that the evidence is insufficient to show nonconsent of the owner of the cattle to the taking. The precise question here presented was considered and the authorities reviewed in the case of Campbell George v. United States, 1 Okla. Cr. 307, 97 Pac. 1052, 100 Pac. 46. The opinion is in part as follows: ‘In many, and perhaps most, cases to support a conviction, direct proof that the property was feloniously taken from the person named in the indictment as owner is necessary. Yet it is not essential in all cases that there should be any direct evidence upon this point. The application of the rule must always depend upon the facts of the case. Appellate courts should carefully consider and guard against so construing the law that a proper rule of evidence would be perverted into a means of escape from the merited punishment of an offender. Circumstantial evidence may be resorted to for the purpose of proving the corpus delicti in the same way and to the same extent that it may be for the purpose of connecting the accused with the commission of the offense. * * * Mr. McClain says: “The corpus delicti need not be shown by direct evidence; that is, there need not necessarily be proof of loss of property by theft distinct from the fact showing that property found in the defendant’s possession was wrongfully taken from the owner thereof. Proof of the act is not necessary where the circumstances can only be explained by a felonious act.” 1 McClain on Criminal Law, § 612. Neither is it essential that the corpus delicti should be established by evidence independent of that which tends to connect the accused with its perpetration. The same evidence which tends to prove one may also tend to prove the other, so that the existence of the crime and the guilt of the defendant may stand together inseparable on one foundation of circumstantial evidence. * * * Mr. McClain, in discussing the question, says: “Where the question of want of consent of the owner becomes material,- it is not necessary to prove such want of consent by the evidence of the owner himself. It may be shown by others having knowledge of the facts.” 1 McClain on Criminal Law, p. 558.’ ”

See, also, Brown v. State, 9 Okla. Cr. 382, 132 Pac. 359; Frye et al. v State, 25 Okla. Cr. 273, 219 Pac. 722; 3 Greenl. Ev. §§ 30, 31; Burrill, Cir. Ev. 680, 734; Wills, Cir. Ev. 201; Reg. v. Burton, Dears, Cr. Cas. 282; Rex v. Burdett, 4 Barn. & Ald. 122; McCulloch v. State, 48 Ind. 112; Brown v. State, 1 Tex. App. 155; Roberts v. State, 61 Ala. 401; State v. Ah Chuey, 14 Nev. 92, 33 Am. Rep. 530.

The inquiry is next directed to the evidence to ascertain if it is sufficient to prove the ownership of the property and want of consent.. Briefly stated, the evidence discloses that at the time charged Frank Porter owned a quantity of wheat stored in a granary some distance from his residence. Porter, the owner of the wheat, and his brother were working on the farm, and at noon would drive to this granary and gO‘ from there to the home of Porter. November 25 they left everything clean about the granary. On the following day there was a quantity of wheat missing; several bushels of wheat were scattered about the ground; tracks showed where a truck had been loaded and had moved away, leaving a heavy back track. The two' followed the truck to' the highway. There was testimony that Porter, the owner of the wheat, at once called the sheriff who observed the condition of the granary and the ground about it. The sheriff trailed the truck from the granary to where it was stalled on a muddy highway some three or four miles distant. The truck was loaded with wheat which was of the same grade, appearance, and test as the wheat in the bin of Porter. The owner of the wheat and his brother were with the sheriff at the time he made his investigation. The truck was stalled • because of a broken axle, and defendant on that morning was in the town of Lambert, while the truck was stalled, with the broken axle and a new axle in the back seat of his car. On this morning he also went to an automobile repair shop in Cherokee and told a mechanic he had a truck with a broken axle near Lambert, and asked the mechanic to take the new axle down and put it in the truck. That, after defendant left Lambert, the sheriff and a mechanic from Lambert followed him to Cherokee, and before the Cherokee mechanic left his garage they took possession of defendant’s car and put the new axle in the truck. It was further shown that some time before this defendant had purchased this particular truck with the same license tag from one Rounds and was in possession of it at the time; that the wheat on the truck was sold by the sheriff to a grain buyer at the town of Yewed, the purchase price paid to Porter, and no claim for the wheat or its proceeds was ever made by defendant. There are some other circumstances not recited. From these circumstances, could the jury have had any reasonable doubt that the wheat was taken from the granary of Porter without the knowledge and against the consent of the owner? It seems to us the evidence conclusively proved beyond a reasonable doubt that the wheat was the property of, and in the possession of, Porter, as alleged, that it Avas taken by defendant, and that the taking was larceny. Particularly is this conclusive in the face of the fact that.no denial or explanation was made by defendant.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


author: CHAPPELL, J.

text:
    R. D. HILL v. STATE.
    No. A-8186.
    Oct. 30, 1931.
    (4 Pac. [2d] 703.)
    Charles G. Ozmun, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Comanche county, on the 18th day of May, 1931, of the crime of unlawful possession of a still, and Ms punishment fixed by the jury at a fine of $500 and imprisonment in the county jail for 30 days. Appeal was filed in this court June 17, 1931.

The evidence of the state was that the officers were out in the neighborhood of defendant’s farm, looking for a liquor offender; that as they came back they passed defendant’s farm and turned in; that as they drove into the yard they saw defendant coming from the garage with something in his hand, and they could see in the garage a large mash tank and several lids, and that they knew what these were used for; that the officers introduced themselves to defendant, and told him they were officers; that they had heard there was a still out there and had come out to look around, if it was all right; that defendant said, “Go ahead and help yourselves; it will be all right.” Mr. Klepper, deputy sheriff, testified that before they did anything they asked for his consent to' the search, and that they had not done any searching until defendant gave them permission. On cross-examination he was asked :

“Q. When you went to Mr. Hill’s place you went there for the purpose of searching him? A. Speaking for myself, I went there for that purpose, with his permission to do it.”

The officers found a still buried on the north side of defendant’s cow barn, nine mash vats, and some whisky mash, and found 125 gallons of whisky in the house, after they had arrested defendant.

Defendant, testifying for himself, said that when the officers asked him if they might search his premises he did not say anything. On cross-examination, he said he did not remember what the officers said to him or what he said to them, but that he was the owner of the still and had concealed it on his premises the day before the officers made the search.

Defendant contends that the court erred in admitting the evidence obtained by the officers without a search warrant.

When defendant took the witness stand in his own behalf and admitted that he was in possession of and was the owner of the still, and that he had concealed it on his place, he made out a case for the state. The whole record shows the guilt of the defendant, and there was no miscarriage of justice.

In addition to the punishment of 30 days’ imprisonment in the county jail, the jury assessed a fine of $500. To serve out this fine at $1 per day would require Comanche county to feed the defendant for 500 days, which is an undue hardship on the taxpayers of the county. Justice will be done both the state and the defendant by reducing this fine to $100.

The judgment is therefore modified to imprisonment in the county jail for 30 days, and a fine of $100, and, as modified, is affirmed.

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


author: DAVENPORT, P. J.

text:
    LOUIS GRAHAM v. STATE.
    No. A-8210.
    Nov. 6, 1931.
    (5 Pac. [2d] 184.)

      R. D. Howe, for plaintiff in error.
    J. Berry King, Atty. Gen., and .Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to' as the defendant, was convicted of having possession of a compound mixture of mash, wort and wash, known as whisky beer, fit for distillation, and for the manufacture of whisky; was sentenced to be confined in the county jail for 90 days and to pay a fine of f200 and all costs; and has appealed.

The petition in error and case-made were not filed in this court until the 17th day of July, 1931, 130 days after the rendition of the judgment in the lower court. This being a misdemeanor, the longest period allowed by the statute for perfecting an appeal from the judgment is 120 days after the rendition thereof. The Attorney General has filed a motion to dismiss the pretended appeal for the reason that the purported appeal was not filed in this court within the 120 days after the rendition of the judgment, and for this reason this court has acquired no jurisdiction to hear the appeal on its merits. Forney v. State, 19 Okla. Cr. 354, 200 Pac. 558; Conner v. State, 24 Okla. Cr. 194, 217 Pac. 226.

The motion to dismiss the appeal is sustained.

EDWARDS and CHAPPELL, JJ., concur.


text:
    DAVE ALLEN v. STATE.
    No. A-8070.
    Nov. 6, 1931.
    (5 Pac. [2d] 183.)

      L. A. Pelley, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of having possession of 27 gallons of whisky, and sentenced to serve 30 days in the county jail, and pay a fine of $150, and appeals.

The testimony on behalf of the state tends to show that the officers had received information that there would be a carload of whisky delivered at the home of E. B. Allen, a brother of the defendant in this case; the officers went to the place and waited until the car drove into the yard of E. B. Allen and stopped; E. B. Allen and Dave Allen, the defendant in this case, came out to the car and Dave was handed a package by the man in the car, and he carried the package to the porch of the E. B. Allen home; the officers came up at this time and opened the package and testified that it contained whisky.

The defendant, testifying for himself, admitted he was at his brother’s house the evening the car drove into the yard with the whisky the officers secured; that the officers seized the car and some boxes that were in the car. The defendant further stated he did not know the car was coming, nor did he know the car coming to his brother’s place contained whisky, and denied he had anything to do with the unloading of any of the whisky. He stated he visited his brother’s home frequently, and they were looking for his father and mother to come from Texas to visit them. The defendant further stated the reason he came out of the house when the car arrived was that he was expecting his father and mother, and that he absolutely did not carry a box from the car to the porch of his brother.

The testimony on behalf of the state and the defendant is conflicting. Where there is a conflict in the testimony, that is a question for the jury. In this case, the jury settled the conflict against the defendant and found him guilty.

The record has been carefully examined, and no errors prejudicial to the rights of the defendant appearing, the judgment of the trial court is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    J. J. CALDWELL v. STATE.
    No. A-8151.
    Nov. 6, 1931.
    (5 Pac. [2d] 182.)
    Sid White, forr plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of having possession of intoxicating liquor and sentenced to pay a fine of $250 and costs, and to be confined in the county jail for 60 days; and has appealed.

When the case was called for trial, both parties waived a jury and agreed to try the case to the court. The state called Murray Barton as its witness. The defendant objected to the witness testifying to anything he found at the home of the defendant or on the curtilage of the defendant’s home until it had been shown by the state in the manner provided by law that the witness had the lawful right to search the home and the curtilage of the defendant, as required by the Constitution and the laws of this state.

The defendant in support of his motion was permitted by the court to ask the witness Barton several questions as to the affidavit upon which the search warrant was issued. The affidavit could not be found. No one seemed to know what had become of it. The defendant offered in evidence a copy of the search warrant that had been served upon him. The defendant’s objection to the introduction of the state’s evidence was overruled by the court, and the defendant duly excepted.

At the close of the state’s testimony, the defendant moved to strike the entire testimony of the witness Murray Barton from the record, as it was unauthorized and unlawfully secured under any rule of law; which motion was overruled, and the defendant duly excepted.

An examination of the copy of the search warrant introduced by the defendant in support of his objection to the introduction of any evidence on behalf of the state, on the ground that the evidence was illegally secured, shows that the description of that part of the search warrant material to' the question raised by the defendant is as follows:

“That there is probable canse to believe and he does believe that intoxicating liquor, fermented and malt liquors, imitations and substitutes are being unlawfully kept for the purpose of selling, bartering, giving away and otherwise furnishing, in buildings and outhouses on the following described premises: J. J. Caldwell, on the gravel road west of Okemah; and, that there is in the cellar intoxicating liquors, wine and other beverages. Your affiant knows that Avine is stored in and on the premises at this time.”

Section 7012, C. O. S. 1921, upon the question of the issuing of a search warrant, is as follows:

“No such warrant shall issue but upon probable cause, supported by oath or affirmation describing as particularly as may be the place to be searched, and the person or thing to be seized.”

The description in the search warrant to search the premises of the defendant, as shown by the record, shows it was on the gravel road west of Okemah. There is nothing to show how far west of Okemah on the gravel road the premises sought to be searched are located, nor is there anything to show that the premises sought to be searched are in Okfuskee county, Okla., or where located. There is no description of the buildings and outhouses to be searched, or the survey of the land upon which the buildings are located. Unless the officers knew where the property was located, it would be impossible to locate the property by the description given in the search warrant. This description does not comply with the requirements of the statute and the holdings of this court. It has been many times held by this court that the search warrant must particularly describe the place to be searched, so that the officer to whom, it is directed may determine the location from the search warrant, and that no discretion as to the place to be searched is left to the officer. Phelps et al. v. State, 36 Okla. Cr. 213, 253 Pac. 910; Cahill v. State, 38 Okla. Cr. 236, 260 Pac. 91; Shanafelt v. State, 38 Okla. Cr. 345, 261 Pac. 380; Smith v. State, 40 Okla. Cr. 366, 269 Pac. 376; Abbott v. State, 44 Okla. Cr. 455, 281 Pac. 597; Tucker v. State, 45 Okla. Cr. 68, 281 Pac. 818.

The description of the property in the search warrant in this case falls far short of the description required by the statute. The warrant is in violation of the plain provisions of section 7012, supra, and the objections of the defendant to the introduction of the testimony secured under the search warrant and his motion to strike the same from the record should have been sustained.

The cause is reversed.

EDWARDS and CHAPPELL, JJ., concur.


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    SAM McKEE v. STATE.
    No. A-8034.
    Nov. 6, 1931.
    (5 Pac. [2d] 176.)

      O. A. Cargill, Gomer Smith, and J. L. Gowdy, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county of manslaughter in the first degree, and his punishment fixed by the jury at imprisonment in the state penitentiary for four years.

On the 15th day of August, 1931, this cause was affirmed upon failure of defendant to file brief. On August 19, 1931, the opinion was ordered withdrawn because the plaintiff in error’s time to file brief had not expired.

The record discloses that on October 24, 1929, the defendant stabbed and killed one Lide Pack, in Oklahoma City. Judgment was entered on May 13, 1930. The appeal was lodged in this court November 12, 1930. It appears from the record that on the date charged defendant came to the home of deceased and there provoked a quarrel with deceased’s wife; that defendant had been drinking and accused deceased’s wife of getting his change out of a $10 bill, out of which he had paid one Smith for some whisky; that deceased ordered defendant to leave his house, and when he did not do so pushed him out of the door and closed it; that defendant immediately pushed open the door and stabbed deceased with a long knife, which wound proyed fatal soon after being inflicted.

Defendant admitted the killing and pleaded self-defense.

Defendant contends, first, that the court erred in permitting tbe state to introduce incompetent and immaterial testimony.

Two knives were found near the body of deceased and there was a dispute as to which knife was used by defendant in the killing. Under this alleged error, defendant complains, first, that the court erred in permitting the wife of deceased to detail a conversation had with deceased immediately after the defendant left the house, and in the absence of defendant. The particular evidence complained of is:

“I shut the door and locked it and come to Mr. Pack and he said,‘Get a doctor quick; call Tip.’ Q. Did your husband speak any more after that? A. Yes, sir. Q. What did he say? A. I said, ‘Did he stick you with that knife?’ He said, ‘Sure he did,’ and that was his dying words. Q. Was that the last word he said? A. That is the last words he ever said.”

Counsel for the defendant objected to the introduction of this evidence, and the court permitted it to go in on the theory that it was part of the res gestae. Teague v. State, 13 Okla. Cr. 270, 163 Pac. 954; Winfield v. State, 18 Okla Or. 257, 191 Pac. 609; White v. State, 34 Okla. Cr. 424, 246 Pac. 1114.

The evidence complained of was admissible as part of the res gestae, and also was' admissible as a dying declaration.

Under this assignment defendant also contends that the court erred in permitting Dr. Bareuky to give his opinion as to whether there would be any difference in the texture of deceased’s overalls by reason of blood on the garment.

As stated before in this opinion, there was a controversy as to just what knife was used by defendant in killing the deceased. Two knives were discovered — one with a larger blade than the other — and it was the contention of the defendant that he used only the smaller knife in committing the homicide.

The doctor had testified that he had examined the body of the deceased and found only one wound, five-eighths of an inch long, and that the wound was the same size through, to and into the heart, and that the wound could not have been inflicted by the knife defendant claimed to use, since the blade was not long enough to reach the heart.

Defendant on cross-examination exhibited the overalls worn by deceased, with the cut in them, and examined the doctor as to the location of the wound with reference to the cut in the overalls. On cross-examination the county attorney asked the doctor:

“Q. Doctor, you observed the condition of this overall bib inside here, can you tell what that is on there? Mr. Smith: We will admit it is blood. Q. All right, then, we take it for granted that it is blood, would that be your judgment that is what it is? A. Yes, sir. Q. Then, the fact it has been on there for a long time and it has hardened, would that make any difference with the texture of those overalls or the hole that would be made by the knife or its appearance at this time? Mr. Smith: We are going to object to that for the reason the doctor hasn’t qualified as a textile expert. (Overruled. Exception.) Q. Would it in your opinion make any difference or could there be any such difference? (Objected to. Overruled.) A. I would be of opinion it would make a difference, any moisture.”

Defendant having opened the subject and exhibited the overalls with the incision and blood clots, certainly it was competent for the state to show, if it could, that time and the hardening of the blood would make some difference in the appearance of the incision.

Since defendant was only convicted of manslaughter in the first degree, and the minimum punishment assessed by the jury, this contention would be without any merit, even if the evidence was inadmissible.

Under this assignment, the defendant further contends that the court erred in permitting the evidence man for the county attorney to testify as to the condiion of the premises where the homicide was committed some two or three hours after the stabbing of the deceased by defendant.

The record discloses that there is other testimony which shows that the conditions at the time the witness examined the premises were practically identical with the conditions at the time the homicide occurred. This contention is trivial and merits no further discussion.

Finally, defendant contends that the evidence is insufficient to support the verdict of the jury. This contention is likewise without any merit.

The evidence for the state warranted a verdict of murder. The jury, as in many cases, wholly failed to assess punishment adequate to the offense. No reason to disturb the verdict appearing, the cause is affirmed.

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


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    SCOTT STEWART v. STATE.
    No. A-8139.
    Nov. 6, 1931.
    (5 Pac. [2d] 174.)

      I. C. Sprague, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of McCur-tain county of the crime of burglary in the second degree, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of three years.

Judgment was entered on the BOth day of October, 1930. The appeal was filed in this court on the 29th day of April, 1931.

Defendant contends first that the court erred in overruling his application for a continuance. This application was based upon two grounds: First, the absence of his leading counsel. The record discloses that his absent counsel resided in Arkansas, and that his other counsel had been present at the arraignment and when the case was set for trial, and was present when the case was called for trial. An application for continuance for the term, on the ground of the absence of leading counsel, is properly denied, where the defendant is duly represented by his other counsel. Payne v. State, 10 Okla. Cr. 314, 136 Pac. 201; Coffey v. State, 38 Okla. Cr. 91, 258 Pac. 923; Waldock v. State, 42 Okla. Cr. 331, 276 Pac. 509; Queen v. State, 23 Okla. Cr. 146, 212 Pac. 1021.

Defendant’s second ground of contention under this assignment is based on the absence of his mother, who resides in Arkansas and was sick.

No subpoena was issued for this witness and no effort made to take her deposition or to have her present at the trial.

Before a defendant is entitled to a continuance on account of the absence of a material witness, he must have exhausted all of his legal remedies to get the witness. McCarter v. State, 14 Okla. Cr. 305, 170 Pac. 712.

There being no showing of diligence on the part of the defendant, it was not error for the trial court to overrule his application for a continuance upon this ground.

Defendant next contends that the court erred in overruling his motion to quash the panel of the jury.

It appears from the record that in January, 1930, the jury commissioners met as required by law, and selected the names of 200 jurors to be placed in the jury box for the district court of McCurtain county for the year 1930; that thereafter and at the January term of said court, 40 of such names were drawn from the jury box to constitute a jury panel for that term, and that no other names were drawn from the box. It further appears that the jury commissioners met on July 30, 1930, and learning that 160 names still remained in the jury box, they certified that it was not necessary to prepare a further list of names to'be placed in the jury box, and, on order of the court, adjourned.

Section 3515, O. O. S. 1921, provides:

“Said jury commissioners shall meet in the office of the county clerk, on the first Monday in January and July of each year, and at such other times as the district judge may order, and, after taking and subscribing their official oath, they shall proceed to-select, for the district court, one list of names, of not less than two hundred persons, or such other number as the district judge may order, and a second and different list for the county court, of not less than two hundred names, or such other number as the county judge may order, which lists shall be selected from the names on the tax rolls of the county. No name of any person who does not possess the qualifications of a juror as prescribed by this chapter, or who has served upon a regular jury panel within the preceding twelve months, shall be placed upon a jury list. Each jury list shall be made up of names of persons from the various municipal townships in the county in proportion, as nearly as practicable, to the voting strength of such township.”

While a drawing of a list of names is contemplated both in the months of January and July of each year, it is nowhere provided in the statute that this is mandatory, but on the contrary, by section 3526, C. O. S. 1921, it is provided that a substantial compliance with the provisions of the chapter shall be sufficient to prevent the setting aside of any verdict rendered by a jury chosen thereunder, unless the irregularity in drawing, summoning, or impaneling the jury resulted in depriving the defendant of some substantial right.

The defendant has no vested right to have any particular member of the jury panel to sit upon the trial of his case. Blankenship v. State, 10 Okla. Or. 551, 139 Pac. 840, L. R. A. 1916A, 812; Littrell v. State, 21 Okla. Or. 466, 208 Pac. 1048; Phillips v. State, 24 Okla. Cr. 259, 217 Pac. 1062; Michael v. State, 42 Okla. Or. 124, 274 Pac. 900.

As has been frequently held by this court, defendant’s right is one of rejection rather than selection. It is sufficient if he has been furnished a fair and impartial jury possessing the statutory qualifications to try his case. There is nothing in the record to show that he did not have the fair and impartial jury that the Constitution guarantees him, nor anything in the record to indicate that the defendant exhausted his peremptory challenges, nor that any objectionable juror was forced upon him. It would be ridiculous for this court to' hold that, because these names were drawn in the month of January, instead of the month of July, that fact alone deprived the defendant of a fair and impartial jury, and yet that is all that can be said about this irregularity. The irregularity in failing to draw an additional number of names of qualified persons in July did not deprive him of a fair and impartial jury.

Defendant further contends that the trial court erred in overruling his motion to quash the information.

This motion was based on the allegations that the defendant had never been accorded a preliminary examination, and had never waived the same.

The record, discloses that defendant on arraignment entered his plea of not guilty; that thereafter he filed his motion to quash the panel and his motion for a continuance; and that after the jury was impaneled to try the case, he asked leave of court to withdraw his plea of not guilty for the purpose of filing his motion to quash the information, which application was by the court denied.

If defendant desired to move to quash the information on the ground that he had not been accorded a preliminary examination nor waived the same, he must do so before he pleads to the information in the district court. His plea to the merits without moving to quash the information amounted to a waiver of the right to a preliminary examination. Roebuck v. State, 14 Okla. Cr. 241, 170 Pac. 277; Stamper v. State, 25 Okla. Cr. 324, 220 Pac. 67; Browning v. State, 31 Okla. Cr. 373, 239 Pac. 272.

There is no contention that the evidence in the case is insufficient to support the verdict and judgment.

The errors of law complained of being without substantial merit, the cause is affirmed.

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


text:
    SCOTT STEWART v. STATE.
    No. A-8138.
    Nov. 6, 1931.
    (5 Pac. [2d] 173.)
    I. C. Sprague, for plaintiff in error.

      J. Berry King, Atty. Gen., and Smith G. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of McCur-tain county of the crime of grand larceny, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of six months.

The evidence of the state was that on or about the 15th day of August, 1929, one Baker lost a saddle which had cost him about $100; that a search of defendant’s premises resulted in finding the saddle in his possession; that the saddle was taken without the knowledge or consent of Baker; that when defendant was arrested he stated that if Baker would agree to swear that the saddle was not worth more than $15, he would pay a fine and pay him $100 for the saddle.

When the case was called for trial, defendant dictated into the record a motion to quash the panel because the jury commissioners in July, 1930, failed to make any additional list of jurors, and also filed a verified motion for a continuance, setting up the absence of his leading .counsel and the absence and illness of his mother, whom he desired to' use as a witness. Both of these motions were denied by the court. These contentions of defendant were discussed fully in the opinion in No. 8139, Stewart v. State, 52 Okla. 293, 5 Pac. (2d) 174, and there decided adversely to him. The charge of larceny in this case did not arise out of the charge of burglary in No. 8139, but the questions of law above stated are raised in both cases.

Defendant then filed an unverified motion to suppress the testimony of the witnesses Joe Baker, J. F. Romine, Peter Noah, and Frank Holliday, because the evidence was obtained by the unlawful search and seizure of the saddle.

While the motion was insufficient to require the court to hear any evidence in support of the same, it did hear it. Defendant offered a transcript of the proceedings of the examining magistrate at the preliminary hearing. The examining magistrate was not required to file either the affidavit for the search warrant or the search warrant itself, as they were not a part of the proceedings at the preliminary examination. The magistrate who issued the search warrant was not called as a witness, and there is nothing in the record to show either by him or anybody else that the search warrant introduced in support of the motion was not supported by proper affidavit.

The presumption of law is that the affidavit was sufficient and the search and seizure lawful. The burden is on the defendant to show to the contrary.

In Ford v. State, 45 Okla. Cr. 161, 282 Pac. 370, in the body of the opinion, this court discussed the proper procedure for a defendant to take to suppress the evidence, and there, among other things, said:

“The burden rests upon the defendant, where he attacks the sufficiency of the affidavit for the search warrant, to exhibit the same to the court in support of his objections, and the court upon an examination of the affidavit and the warrant must summarily determine the sufficiency of the affidavit and the warrant and the admissibility of the evidence. The presumption of law is that the affidavit and the warrant are sufficient and the search and seizure legal. If the defendant desires to attack the affidavit or the warrant he should subpoena the magistrate issuing the same to appear and produce the affidavit and warrant upon which the search was made.”

Defendant having failed to introduce the affidavit, there was nothing before the trial court upon which he could determine its sufficiency. It was not error, therefore, to overrule defendant’s motion to suppress the evidence.

An examination of the record discloses that the defendant had a fair trial and that the evidence supports the verdict of the jury. The case is therefore affirmed.

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


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    FRANK CERDAY v. STATE.
    No. A-8157.
    Nov. 6, 1931.
    (4 Pac. [2d] 1079.)
    Stevens & Cline, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Cotton county of the crime of a second and subsequent violation of the prohibitory liquor laws, and his punishment fixed by the court at a fine of $50 and imprisonment in the state penitentiary for one year and six months.

The undisputed facts as they appear in the record are that on the 16th day of November, 1929, complaint was filed against the defendant in the county court of Cotton county attempting to charge a second and subsequent violation of the prohibitory liquor laws; that a preliminary hearing was had upon this complaint and defendant bound over to appear in the district court; that on the 7th day of February, 1930, information was filed in the district court of Cotton county, attempting to charge a second and subsequent violation of the prohibitory liquor laws; that thereafter defendant was duly brought to trial in the district court of Cotton county; that after the jury was impaneled and the first witness for the state called, defendant objected to the introduction of any evidence for the reason that the information failed to charge an offense against him under the laws of the state of Oklahoma; this motion and objection was overruled and, after trial, the jury returned a verdict of guilty; that defendant filed his motion for a new trial, which was by the court sustained upon the ground that the information failed to charge an offense; that the court made no order dismissing the case; that the county attorney filed an amended information; that when defendant was arraigned to answer to this amended information he declined to plead, and the court directed a plea of not guilty to be entered for him; that a jury was duly impaneled and the cause came on regularly for trial; that defendant filed no demurrer nor motion to quash upon any ground prior to the impaneling of the jury; that when the state called its first witness, defendant objected to the introduction of any evidence: First, because the amended information was not ordered filed by the judge; and, second, that the information filed before the examining magistrate failed to charge an offense. In response to this objection, the court said: “If these matters had been raised before the jury was impaneled, I would have given them consideration, but they come too late now, since the jury has been impaneled.”

This is a companion case to that of Frank Cerday v. State, No. 8158, 52 Okla. Or. 255, 5 Pac. (2d) 169. The records are substantially the same, except that in No. 8158 the trial judge sustained an objection to the introduction of any evidence under the original information, without making' an order to file an amended or new information. This court in that case held the objection to the introduction of any evidence to be equivalent to a demurrer, and reversed the case.

In the case at bar the court overruled defendant’s objection to the introduction of any evidence and the case proceeded to trial with a verdict of guilty. Thereafter the court granted a new trial upon the ground that the information did not state facts sufficient to constitute a crime, and the county attorney then filed the amended information.

In Byxbee v. State, 41 Okla. Or. 272, 272 Pac. 493, 495, this court had under consideration the question of the necessity for a formal order to permit the prosecutor to file an amended information after the first information had been held to be insufficient. In that case the regular county attorney became disqualified after the first trial, and the trial court made an order appointing a special attorney in the case, but made no order permitting him to file an amended information. In the body of the opinion this court said: “It is not necessary that any formal language should be used in directing the county attorney as to the procedure that should be taken in the case,” and overruled defendant’s objections and affirmed the case.

To the same effect is Ex parte Fowler, 52 Okla. Or. 132, 3 Pac. (2d) 247.

In the case at bar, the trial court arraigned the defendant on an amended information and when he refused to plead, directed the clerk to enter a plea of not guilty for him, and thereupon caused a jury to be impaneled and permitted the state to have its witnesses sworn and place one of them upon the witness stand. When the defendant objected that the amended information had been filed without leave of court, the court promptly overruled such objection and proceeded with the trial of the case to verdict, and thereafter overruled defendant’s motion for a new trial upon such ground and pronounced sentence and judgment against the defendant.

The fact that the trial judge granted a new trial and made no order discharging the defendant clearly indicates intention on the part of the court that further proceedings should be had in the case, and was equivalent to a direction that a new information be filed. It is apparent, therefore, from the judge’s own conduct that he never intended by his action in sustaining the motion for a new trial to put an end to the prosecution. He certainly did not consider his action to have that effect, or he would never have permitted this prosecution to proceed to final judgment.

Under the statutes of this state, if the court sustains a demurrer to the information without directing a new informaion to be filed therein, in specific language, or by conduct equivalent to such a direction, his action m sustaining the demurrer is an end to the litigation. There is no such statute relative to the action of the court in granting a new trial on the same ground. In the absence of such a statute, the action of the court was equivalent to the granting of permission to file an amended information.

The burden is upon the defendant to show that the amendment to the information in felony cases is unauthorized. Unless it affirmatively appears from the record to the contrary, this court will presume that the proceedings were regular and the amendment such as was authorized by the trial court. Johnson v. State, 21 Okla. Cr. 17, 204 Pac. 311.

The trial court, therefore, did not err in overruling defendant’s objection to the introduction of any evidence because of defendant’s contention that the amended information was filed without leave of court.

For the reasons stated, the cause is affirmed.

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


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    OKLA DAVIDSON v. STATE.
    No. A-7916.
    May 16, 1931.
    Rehearing Denied Nov. 6, 1931.
    (4 Pac. [2d] 131.)

      Hughes & Dickson, for plaintiff in error.
    J. Berry King, A tty. Gen., and J. H. Lawson, Asst. Atty Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Texas county on a charge of having the unlawful possession of intoxicating liquor, and he was sentenced to pay a fine of $500 and to serve six months in the county jail.

Certain officers, under authority of a search warrant, found in the residence of defendant about five gallons of whisky. Defendant did not take the stand, and offered no testimony.

The contention is made that the search is illegal, in that the affidavit for the warrant was on information. The affidavit is positive in form, and states sufficient facts to sustain a finding of probable cause. The truth of the averments in the affidavit was attempted to be put in issue in the trial. This was not competent. Phillips v. State, 34 Okla. Cr. 52, 244 Pac. 451; Reutlinger v. State, 29 Okla. Cr. 290, 234 Pac. 224; Ray v. State, 43 Okla. Cr. 1, 276 Pac. 785; Dolan v Com., 203 Ky. 400, 262 S. W. 574. Some contention is advanced that the search was illegal for the further reason that it was served in the nighttime, without authority. The record does not affirmatively show that the warrant was served in the nighttime. It is also briefly argued that the punishment is excessive. The record indicates that defendant may be a professional bootlegger. At any event it does not appear that the full punishment fixed by statute will be a miscarriage of justice.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


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    LEGUS BROWN v. STATE.
    No. A-8124.
    Oct. 24, 1931.
    Rehearing Denied Nov. 6, 1931.
    Application for Leave to Pile Second Petition for Rehearing Denied Nov. 14, 1931.
    (4 Pac. [2d] 129.)
    Luther P. Lane and Howard ,S. Keagy, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county of manslaughter in the first degree, and was sentenced to serve 99 years in the state penitentiary.

At the time charged, defendant engaged in a difficulty with one Alva Shanks, which took place at defendant’s home, in the course of which he inflicted some fifteen knife wounds on the person of Shanks which completely disabled him. Two bystanders went a distance of some seven miles for a physician, and when they returned Shanks was dead with two axe ivounds, one of which had severed the spinal cord near the head and which the physician testified would have produced instantaneous death. The evidence indicates that in the beginning of the difficulty Shanks was not free from fault. He was larger than defendant, but was not armed with any weapon. Up to the time the bystanders left for the physician the axe had not been used as a weapon, though defendant testified deceased attempted to use it. Both defendant and deceased had been drinking. The theory of the state is that the axe wounds were inflicted after the bystanders had left to go for the physician and after Shanks was wholly disabled, and that the homicide is murder. The defense is self-defense. The testimony for the state makes a case of vicious murder, and amply sustains the judgment. The jury did not agree on the punishment, and it was fixed by the court. The case was closely tried, and is well briefed.

The first contention is that the court erred in denying defendant’s application for a continuance. The homicide was on August 24. On September 19 defendant filed an application for a continuance, setting out that his counsel would not have sufficient time to prepare for trial. This was overruled. The case was assigned for trial for September 29, and on that date no further application was made, and both the state and the defendant announced ready. One accused of crime has the right to have the aid of counsel to defend him, and counsel are entitled to a reasonable time to prepare the case for trial. The record does not disclose how long prior to September 19 counsel for defendant had been employed, but presumably from soon after the commission of the homicide. Cases may arise in which the time intervening between the homicide and the trial in this case might be held too short, as in cases where unusual preparation would be necessary, as, for instance, in insanity or circumstantial cases, or where the witnesses are widely scattered or the facts prolix or involved. In the instant case the defense, as stated, is self-defense, the witnesses few, and all reside in or near Tulsa county. No further application for continuance having been made on September 29, there was no' error in overruling the application.

Complaint is next made that the court erred in permitting the jury to take with them to the jury room the axe which had been introduced in evidence. During the course of the trial, and after the jury had retired and had been out some time, they returned into court and asked that certain portions of the testimony be read; at the conclusion, as they retired they asked and were permitted to take the axe. The record does not disclose whether counsel for defendant were present, but we will consider the contention as if an objection were made at the time. This is not a new question. Defendant argues that, since section 2729, Comp. Stat. 1921, authorizes the jury to take with them in their deliberations all papers which have been received in evidence in the case, it excludes the right to have exhibits other than papers. To set at rest any doubt that may exist as to the holding of this court upon this subject, we are clearly of the opinion that where the- jury, in open court, requests permission to take with them to the jury room for inspection during their deliberations articles other than papers introduced in evidence, the granting or refusal of such request is in the sound discretion of the trial court, and the burden is on defendant to show an abuse of discretion. Saunders v. State, 4 Okla. Cr. 264, 111 Pac. 965, Ann. Cas. 1912B, 766; Hopkins v. State, 9 Okla. Cr. 104, 130 Pac. 1101, Ann. Cas. 1915B, 736; White v. State, 20 Okla. Cr. 182, 201 Pac. 522; Williams v. State, 21 Okla. Cr. 161, 205 Pac. 772. The authority of the court to permit such inspection does not rest on section 2729, Comp. Stat. 1921, but is independent of such section. The substance of this section of the statute probably crept into the law to avoid the rule in the early English courts transported to this country, in substance that the jury might take only papers under seal or of record, and the purpose was to enlarge the rule to include “all” papers and not merely sealed or recorded papers. Viewed in that aspect, it did not apply to other exhibits. 2 Thompson on Trials, §§ 2574, 2595, 2596. Where there is an objection by defendant, the trial court should exercise his. discretion with extreme caution. The inspection by the jury during their deliberations of the articles introduced is not a receiving of evidence out of court. The taking of the axe to the jury room was of no particular consequence. The trial court might properly have denied the jury’s request, but we can perceive no prejudice in granting it. An axe is an implement with which, and its uses, all the members of the jury were no doubt familiar. There is no experiment they could have performed with it or any use made of it inconsistent with the evidence.

Lastly, the contention is made that the county attorney in the closing argument used language calculated to, and which did, inflame the passions of the jury. The argument in full is incorporated in the case-made. From the context it is obvious that a part of the remarks complained of were in answer to the argument of defendant’s counsel. The argument is spirited, and counsel has pressed his contention from the standpoint of the state, stressing the facts which he contends make the homicide a fiendish and brutal crime. While the language is strong, we are not prepared to say that it is prejudicial, for, despite the argument, the verdict is manslaughter without a fixing of the punishment by the jury. As this court has heretofore held in substance that the right of argument contemplates a liberal freedom of speech, and the range of discussion, illustration, and argumentation is wide, counsel have a right to discuss fully from their standpoint the evidence and the inferences and deductions arising from it. It is only when the argument is grossly improper and unwarranted upon some point which may have affected defendant’s rights that a reversal can be based on improper argument. Carmichael v. State, 44 Okla. Cr. 160, 279 Pac. 515.

Upon a careful consideration of the entire record, we find no reason for a reversal nor for a modification of the punishment imposed.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    BOB SIMPSON v. STATE.
    No. A-7773.
    Oct. 10, 1931.
    Rehearing Denied Nov. 6, 1931.
    (4 Pac. [2d] 126.)

      O. H. Whitt, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Latimer county of the larceny of live stock, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of two years.

Defendant was jointly charged with Collin Simpson and Henry Thompson with having stolen from one John L. Lee two head of cattle on the 24th day of May, 1929. Thompson demanded a separate trial, was convicted, and his punishment fixed at imprisonment in the state penitentiary for three years. Defendant and Collin Simpson were tried together and Collin Simpson acquitted.

The appeal was first lodged in this court on a transcript of the record, defendant contending that the case must be reversed because the district court of Latimer county had refused to order a transcript of the evidence made at the expense of Latimer county. Upon order of this court, a transcript of the evidence was made and has been examined and considered by the court in reaching its conclusions in this case.

Defendant also contended that the case must be dismissed because the information showed that it had been filed on the 24th day of May, 1929, while the record discloses that the preliminary examination was held on the 16th day of July, 1929, 42 days after the information was filed in the district court. The Attorney General filed a motion for leave to correct the record to show that the information was filed on the 19tb day of July, 1929, three days after the preliminary examination was held. On the 31st day of July, 1931, this court sustained said motion, and the case-made has been corrected to show the correct filing date of the information.

The defendant next insists that the evidence is insufficient to support the verdict of the jury.

The evidence of the state was that the defendant with his codefendant, Henry Thompson, on or about the 23d day of May, 1929, sold in the city of McAlester two butchered beeves that weighed approximately the same as the head of cattle that John L. Lee had stolen from him about that time; that one of these butchered beeves was a steer and the other a heifer; that a steer and a heifer were stolen from Lee; that Lee’s cattle were branded “J. L.” on the left hip; that hides bearing this brand were found in Bolen creek, not far from the ranch occupied by defendant; that, when Lee discovered his cattle had been stolen, he made an investigation and found marks where cattle had been roped upon the mountain about a mile from defendant’s place, and of being dragged by somebody riding a horse towards defendant’s place; that these tracks were followed to within a quarter of a mile of defendant’s house; that on Simpson’s place there was a tree; that a limb of this tree bore rope marks and showed that cattle had been butchered there; that shortly after this investigation defendant and Thompson were seen back on the road very close to the place where these hides were found; that these hides bore the brand “J. L.” on the left hip; and that Lee’s cattle were the only ones in the vicinity bearing that brand.

Defendant and Thompson admitted that they took cattle answering this description to McAlester and sold them at that time, but Thompson contended that these were his own cattle; that he had bought the cattle back in February, 1929, and was paying one Jennings 10 cents per day per head to graze them for him until he wanted them.

In nearly all larceny cases the state must depend altogether on circumstantial evidence. The state rarely catches a thief committing the larceny, but nearly always the thief leaves a trail behind him that can be plainly followed, circumstance by circumstance, and these circumstances will fit together in such a manner as to show conclusively the thief’s guilt.

There Was a conflict in the evidence. The jury, as they had a right to do, rejected the story of Thompson and believed the evidence of the state.

The evidence being sufficient to support the verdict of the jury, the trial court did not err in overruling defendant’s demurrer on the same and his motion for a new trial' on the ground that the evidence is insufficient to support the verdict of the jury.

It is further contended that the trial court erred in permitting the state, after the trial had begun, to indorse on the information the name of Chester Adams as a witness to- be used by the state.

This witness was not produced at the preliminary examination. An examination of his testimony will disclose that he did not tell anybody what he knew about the case until after the preliminary examination and only a short time before the trial was had. It further appears that the failure to indorse the name of this witness on the information prior to or at the beginning of the trial was due to- an oversight and not an intentional concealment of the name of the witness nor of the evidence he would probably give.

This court has repeatedly held: “In felony cases less than capital the names of additional witnesses may be indorsed on an information or indictment at any time within the discretion of the court, and this discretion will not be reviewed upon appeal unless the record shows that it was abused.” Hawkins v. State, 7 Okla. Cr. 385, 123 Pac. 1024; Montgomery v. State, 19 Okla. Or. 224, 199 Pac. 222; Robnett v. State, 51 Okla. Cr. 33, 299 Pac. 241.

It appears from the record that the court properly permitted the county attorney to indorse the name of this witness on the information after the trial had begun.

Defendant complains of other errors, but they are not of sufficient merit to require a separate discussion in this opinion.

For the reasons stated, the cause is affirmed.

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


text:
    H. E. SMITH v. STATE.
    No. A-7793.
    Nov. 6, 1931.
    (4 Pac. [2d] 1076.)

      George L. Zink and Harry Hicks, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, Avas convicted in the county court of Kiowa county of the unlawful transportation of intoxicating liquor, and was sentenced to pay a fine of $300 and to serve 60 days in the county jail.

The facts are undisputed. Before trial a motion to suppress the evidence was filed on the ground that it had been obtained by an unlawful search. A hearing was had, and the motion was overruled. The case depends entirely on Avhether or not the evidence was obtained by an unlawful search. Upon this point the record shows that the sheriff and deputies saw defendant on the highway and followed him some 12 miles, in the course of which they went through the town of Snyder. The sheriff testified defendant traveled at a speed of from 58 to 60 miles on hour; that, when he finally overtook and stopped him, he arrested him for speeding and reckless driving; that the search was made as an incident to a lawful arrest. Defendant, testifying on the motion to suppress, said the sheriff when he stopped him on the higlnvay informed him he was arresting him for speeding. Twenty-four half gallons of whisky were found in the tur-tleback of the car. In the final trial, defendant did not take the stand and offered no' testimony.

It is well settled that an officer making an arrest has authority to search the person and immediate place of arrest of Ms prisoner and to take from Mm any dangerous weapons or anything that he may reason? bly deem necessary to his own or the public safety or to prevent the escape of his prisoner or which might be used as evidence against him on the trial or which he believes to be connected with the offense charged or that may give a clue to the commission of the crime. 2 R. C. L. p. 467, § 25, notes; 5 C. J. p. 434, § 74F, notes; Reifsnyder v. Lee, 44 Iowa, 104, 24 Am. Rep. 733; Berg v. State, 29 Okla. Cr. 112, 233 Pac. 497; Washington et al. v. State, 37 Okla. Cr. 415, 259 Pac. 150; Callahan v. State, 42 Okla. Cr. 425, 276 Pac. 494.

The right to take from a person lawfully arrested property found in his possession or the place of his arrest is not unlimited. It has been said that it is doubtful if the right exists except for some of the reasons enumerated. 5 C. J. 435, § 74, note 95.

In the case of contraband, however, as intoxicating liquor or narcotics, the possession of which itself constitutes a crime, it surely would be the duty of the arresting officer to seize when discovered. Also the quantity of whisky conveyed by defendant in his automobile is a reason for the excessive speed at which he traveled.

This court will not uphold an unreasonable search where it appears that one is illegally arrested on some subterfuge for the purpose of justifying or attempting to justify a search otherwise unlawful If the arrest is unlawful, the search is unlawful. Wallace v. State, 49 Okla. Cr. 281, 294 Pac. 198. As we read the record, this is not the situation here. A person driving an automobile upon the highway at the speed shown by the evidence is engaged in the commission of a misdemeanor (section 2 [Laws 1923, c. 16 as amended by] chapter 43, Session Laws 1929), and may be lawfully arrested by a peace officer.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    ROSALIE HOLLOWAY v. STATE.
    No. A-8142.
    Nov. 6, 1931.
    (4 Pac. [2d] 1118.)
    A. H. Meyer and W. E. Stewart, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of having possession of intoxicating liquor, and .was sentenced to be confined in the county jail for 30 days and to pay a fine of $50 and costs, and appeals.

The record in this case was filed in this court on April 29, 1931; no brief has been filed in .support of the defendant’s assignment of errors. A careful examination of the record discloses no fundamental error, and the evidence is sufficient to support the verdict of the jury. The case is therefore affirmed.

EDWARDS and CHAPPELL, JJ., concur.


author: PER CURIAM.

text:
    BILL FULLINGIM v. STATE.
    No. A-8230.
    Nov. 14, 1931.
    (5 Pac. [2d] 1119.)
    Hughes & Hughes, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Kiowa county of having the unlawful possession of whisky, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

The only contention made is that the evidence is insufficient to sustain the judgment. Without reciting the facts proven, we are satisfied there is sufficient evidence from which the jury might reasonably and logically find defendant guilty.

The case is affirmed.


text:
    BILL KENNEDY v. STATE.
    No. A-8231.
    Nov. 14, 1931.
    (5 Pac. [2d] 1119.)
    Hughes & Hughes, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of having, possession of intoxicating liquor, and was sentenced to pay a fine of $150, and to be confined in the county jail for a period of 60 days, and appeals.

The record in this case was filed in this court on August 10, 1931; no brief has been filed in support of the defendant’s assignment of errors. A careful examination of the record discloses no fundamental error, and the evidence is sufficient to support the verdict of the jury.

The case is therefore affirmed.


text:
    CARL EASLEY, alias CHARLES JACOBS, v. STATE.
    No. A-8221.
    Nov. 14. 1931.
    (5 Pac. [2d] 1118.)
    Ben C. Arnold and T. G. Chambers, Jr., for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county of maintaining a public nuisance, and was sentenced to pay a fine of $200 and to serve 30 days in the county jail.

The appeal was lodged in this court July 29. No briefs in support of the appeal have been filed. An examination of the record discloses ample evidence to sustain the judgment. No fundamental error is apparent.

The case is affirmed.


text:
    Roscoe Feebeck v. State
    No. A-8211.
    Nov. 14, 1931.
    (5 Pac. [2d] 1118.)
    Guy D. Talbot, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error was convicted in the district court of Alfalfa county of the crime of robbery with firearms, in the robbery of the Bank of Burlington, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of 20 years.

Judgment and sentence was rendered in said case on the 19th day of January, 1931. The appeal is by transcript, and was filed in this court on the 18th day of July, 1931. No briefs have been filed on behalf of plaintiff in error, and no appearance made for oral argument.

Upon a careful examination of the record, we find no errors depriving the appellant of any substantial rights.

The cause is therefore affirmed.

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


text:
    GRACE FORD v. STATE.
    No. A-8123.
    Nov. 14, 1931.
    (5 Pac. [2d] 170.)

      Williams & .Sasseen, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, for convenience referred to as the defendant, was by information jointly charged with Alice Ford of murder, was tried separately and convicted of manslaughter in the first degree, and sentenced to imprisonment in the state penitentiary for a term of four years. Motion for new trial was filed, considered, overruled, exceptions saved, and the defendant appeals.

Lester Lowe, called on behalf of the state, in substance stated he remembered the occasion of a girl being-killed at Mangum on the 29th day of December, 1929; he was acquainted with the defendant, Grace Ford, and her sister, Alice Ford. Mary Johnson called to a negro by the name of Catalac to- gO' home, and he said he was not ready to go home; deceased and Catalac began to quarrel, and Alice Ford said to put them out of the house; the defendant said “Yes,” a scuffle ensued, and defendant stabbed the deceased in the hack with a knife; deceased was then hit by Alice Ford with a poker. The defendant and deceased clinched in a scuffle around the room, and went out of the door and fell on the ground; Alice Ford hit her again with the iron poker; the deceased died a short while after she got out of the house. Witness stated he did not know who hit the first lick.

It was further shown by the state’s witness that there were several parties at the home of Alice Ford where the trouble took place; that deceased tried to get Catalac to go home, and he did not want to go; they got to quarreling, and Catalac went on the outside of the house and picked up a brick and tried to get the deceased to come out. The defendant was in the room at the time, and tried to get Frank Morris to put them out; the deceased asked the defendant, “Why don’t you put me out?” the defendant asked her who she was talking to, and she said she was talking to the defendant; the defendant and deceased advanced toward each other; the defendant fell over'on the bed and got up immediately; they could see the defendant using her hand toward the deceased, but could not see anything in her hand; Frank Morris pushed the defendant and deceased out of the house; Alice Ford hit the deceased with an iron poker.

The defendant, testifying in her own behalf, stated:

“I have lived in Mangum since I was three years old; at the time of the trouble I was living at Mrs. Lindsey’s; Alice Ford is my sister; I went to Alice’s place about three thirty or four o’clock in the afternoon; there wasn’t anyone there when I went, later on other parties came; when Alice came home Ella Hollis, Frank Morris, Johnie Brown and myself were at the house; I was playing the Victrola and dancing; Mary came in and asked Catalac for the keys and told him to come on and lets go home, and he said he was not ready to go; they started arguing and he went out of doors and got some bricks and came hack up to the step, asked her to come out and she said she would not go out; at that time I asked Alice why she didn’t put them out of the house if they were going to fight; the deceased said, ‘You are bad, you put them out; deceased then struck me and before I could turn around struck me again; when she struck me the second time they grabbed her and pulled her back and that gaye me a chance to get out from where I was, and I ran to the door, and I struck her with an iron; some one took the iron away from me. She struck me again and I dodged and fell on the bed which was just a.little ways from the door; I was kicking and she cut me on the left leg first, and then on the other; when she struck me the second time I got a knife off the bed and was trying to open it and she ran into me and struck me on the neck with the knife; I grabbed her and Frank grabbed us and pulled us out of the door and we both fell; the deceased had her arm around my neck in some way; when we fell I fell on top of her, she wheeled over me and got on top of me and I cut her, cut her twice, the last time she gave up and fell over and somebody pulled her off of me and I got up and leaned up beside the house and called to Alice to come and get me.”

Other witnesses testified in behalf of the defendant, whose testimony was in substance the same as the defendant’s.

The defendant has assigned seven errors as grounds for reversal of this case. The first question argued by the defendant is error of the court in overruling the demurrer to the evidence. Under this assignment the defendant insists that the evidence is insufficient to establish the venue. The testimony of Lester Lowe shows that he remembered when Mary Johnson was killed in Man-gum, in December, 1929; witness stated he did not know the name of the street, but it was down there in the colored section in a rooming house back of the Cameron Lumber Company. Other witnesses testifying saw the defendant and deceased in the city of Mangum on the date of the killing, and stated in what part of the city they saw them. The testimony of the witnesses shows that the killing took place in the city of Mangum; the witnesses do not use the words, “Mangum, Greer county, Okla.,” but do state the killing occurred in Mangum, Okla.

Venue does not have to be proven beyond a reasonable doubt. The courts of this state take judicial notice of the boundaries of the counties, and locations of the cities and towns therein. Jentho v. State, 19 Okla. Or. 434, 200 Pac. 251; Dodson v. State, 30 Okla. Cr. 135, 235 Pac. 268.

All the testimony shows that the killing took place in the city of Mangum. We hold the proof sufficient to establish the venue as charged in the information.

It is next urged by the defendant that the court erred in its general instruction to the jury. The defendant in her argument states that it is not her purpose to complain of the instructions given by the court in so far as they apply to the ordinary case of self-defense. She insists the court in its instruction did not cover all the matters of law necessary for the information of the jury in arriving at a fair and impartial verdict as contemplated by section 2722, C. O. S. 1921, and insists that the trial court failed to properly instruct the jury as to when homicide is justifiable. It is argued that the trial court gave a part of the law, but left out the phrase: “Or upon or in any dwelling house in which such person is.” Comp. St. 1921, § 1754.

The defendant insists that the omission of the phrase quoted above was an error sufficient to warrant this court in reversing the case1. She admits the court’s instructions were correct as far as they went, but insists that, because the issue in the case was self-defense, and defense of home against trespassers, the court should have informed the jury on the defense of the home and trespassers therein.

We have examined the record with a great deal of care, and find the difficulty did not take place in the home of the defendant, but took place in the home of a sister; the defendant testifying she lived with Mrs. Lindsey. There is nothing in.the record to show that the defendant in this case was attempting to repel or stop any felony about to be committed in the dwelling house. The defendant’s testimony tends to show that, when she used the iron poker and the knife, she used them to prevent Mary Johnson from cutting her with a knife, and that during the fight the defendant and deceased were pushed out of the door. It has been the universal holding of this court that the instructions must be applicable to the evidence in the case, and that the court should not instruct on any theory not reasonably supported by the evidence. Newby v. State, 17 Okla. Cr. 291, 188 Pac. 124; Ussaery v. State, 22 Okla. Cr. 397, 212 Pac. 137; Smith v. State, 22 Okla. Cr. 383, 212 Pac. 1012.

It does not appear from the record that the defendant requested the court to instruct upon the question of defense in protecting the home against trespassers. If upon the trial of a criminal case special instructions are desired by the defendant, he is required by the provisions of our Code of Criminal Procedure to present in writing to the court the instructions desired, and it is not error for the trial court to omit an instruction upon every possible question under the defendant’s theory of the case, when he has not requested such instruction. Williams v. State, 12 Okla. Cr. 39, 151 Pac. 900.

There is no evidence in the record reasonably presenting the issue that this defendant was endeavoring at the time of this homicide to prevent a felony being committed in the dwelling house of her sister. The defendant’s evidence tends to show that the defendant, when she cut the deceased, was endeavoring to protect herself from an assault then being made upon her by the deceased, and the issue was fully covered by the court’s instructions. The court correctly advised the jury as to the law applicable to the facts in the case.

It is next contended by the defendant that the verdict of the jury and judgment and sentence of the court are not sustained by the evidence. The evidence on behalf of the state tends to show that a negro by the name of Catalac and the deceased engaged in a controversy, the deceased wanting Catalac to' go. home, when Catalac went out of the house and got a brick and tried to get the deceased to come out; which she refused to do; words passed between the deceased and the defendant, and they engaged in a fight in the house. The testimony is conflicting as to what took place in the house. The parties were pushed, or pulled, through the door and fell in the yard; when the fight was stopped, the deceased had been stabbed and died immediately. The defendant had received some injuries.

The defendant has argued at length what she claims to be the weak points in the evidence, and insists that it is wholly insufficient to sustain the judgment. There is a sharp conflict in the evidence, which was a question for the jury tO' reconcile. The weight of the testimony and the credibility of the witnesses being matters exclusively within the province of the jury, this court has often held that, where there is any competent testimony in the record to support the verdict and judgment, if believed by the jury, it would not disturb the same. Adeaholt v. State, 19 Okla. Cr. 122, 198 Pac. 351; Campbell v. State, 23 Okla. Cr. 250, 214 Pac. 738; Pickett v. State, 35 Okla. Cr. 60, 248 Pac. 352; Mayse v. State, 38 Okla. Cr. 144, 259 Pac. 277.

The defendant was accorded a fair and impartial trial. The jury was properly instructed as to the law applicable to the facts in the case. There are no errors in the record possessing sufficient merit to warrant a reversal of this case.

The judgment is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    ELLORA COFFIELD v. STATE.
    No. A-8140.
    Oct. 16, 1931.
    Rehearing Denied Nov. 14, 1931.
    (4 Pac. [2d] 764.)

      C. B. Leedy, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to a® the defendant, was convicted of having possession of five hundred gallons of compound mixture of wort, wash, and mash, fit for distillation and manufacture of intoxicating liquor, to wit, whisky, with intent to violate the prohibitory laws, and was sentenced to pay a fine of $300, and to be imprisoned in the county jail for 30 days, and has appealed.

The testimony on behalf of the state tends to show that the officers went to the home of the defendant, and, in a dugout within the curtilage of the defendant’s home, found about five hundred gallons of what the officers say was mash fit for distillation. No testimony was offered by the defendant.

The defendant has assigned six errors alleged to have been committed by the trial court. The first being error of the court in overruling defendant’s motion for a new trial. No authorities are cited in support of defendant’s contention that there were errors committed in the trial of his case. It was argued by the defendant that the court committed error in admitting testimony.

After a careful examination of the record, we hold that the defendant was accorded a fair and impartial trial; that there were no errors committed in the trial of his case sufficient to warrant a reversal.

The judgment is affirmed.

EDWARDS and CHAPPELL, JJ., concur.