text:
    BERT MEDLOCK v. STATE.
    No. A-9444.
    April 7, 1939.
    (89 P. 2d 377.)

      Joe Adwon, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis R. Morris, Co. Atty., and Phil E. Daugherty, Asst. Co. Atty., both of Oklahoma City, for the State.
   BAREFOOT, J.

Defendant was charged in the court of common pleas of Oklahoma county, with the crime of selling one pint of intoxicating liquor; was tried, convicted, and sentenced to pay a fine of $50, and to serve 60 days in the county jail, and has appealed.

Defendant was charged with selling a pint of intoxicating liquor on the 4th day of December, 1936, to Tom Lever. The record reveals that Tom Lever, a deputy sheriff, and three other deputies drove to the home of defendant on the evening of the date alleged. That Tom Lever went into the home, and the other three deputies remained on the outside where they could see the house. The witness Tom Lever testified that he purchased a pint of Crab Orchard whisky from defendant, and paid him $2 therefor. That defendant stepped into the adjoining room to get the whisky, and the transaction did not consume .over three or four minutes. That after he bought and paid for the whisky he informed defendant that he was an officer and placed him under arrest, and called the other three deputies.

Each of these three witnesses testified and corroborated the evidence of the witness Tom Lever, and each one testified they were watching the house and no one left the premises.

Defendant did not testify but his wife did so. She corroborated the evidence of the witness Tom Lever as to the securing of the whisky, but she testified her husband told him he did not have any whisky on hand but might get him some. That her husband left the house and was gone for a period of 15 minutes and returned with a bottle of whisky which was delivered by him to the witness.

Under this evidence there is no question as to the guilt of this defendant from not only the state’s evidence, but also from the evidence offered by defendant. Buchanan v. State, 4 Okla. Cr. 645, 112 P. 32, 36 L.R.A., N. S., 83, overruling the case of Reed v. State, 3 Okla. Cr. 16, 103 P. 1070, 24 L.R.A., N. S., 268; Lamm v. State, 4 Okla. Cr. 641, 111 P. 1002; Metcalf v. State, 10 Okla. Cr. 77, 133 P. 1130; Cantrell v. State, 10 Okla. Cr. 304, 135 P. 1158.

It is contended that under the above statement that the court erred in refusing to give the following requested instruction:

“One of the defenses in this case is that of entrapment, and, in this connection, you are instructed that a decoy or informer may be used to detect or entrap a criminal, and as such may afford an opportunity for a criminal to commit a crime and may be present apparently assisting in the commission of a crime, and such action on the part of the decoy will not constitute a defense. But, when the decoy first suggests, initiates, or induces the commission of the crime, or, as it is sometimes said, ‘artificially propagates’ the crime, and thereby lures an otherwise innocent person to aid and abet him, or where the decoy himself does some act essential to the crime charged, a sound public policy will not uphold a conviction; and if you find from the evidence in this case that the crime with which the defendant is charged did not originate with him but did originate with the informer, and the defendant was lured into the commission of the offense charged in order to prosecute him or if you have a reasonable doubt thereof, then it shall be your duty to acquit the defendant.”

We do not think the facts in this case justified the giving of the requested instruction. In our opinion this question has been settled by the decisions of this court many times. See Caveness v. State, 3 Okla. Cr. 729, 109 P. 125; De Graff v. State, 2 Okla. Cr. 519, 103 P. 538; Moss v. State, 4 Okla. Cr. 247, 111 P. 950, and cases heretofore cited.

Counsel for defendant seems to think that the requested instruction presents a new issue, but we are unable to see any issue in this case that has not heretofore been decided.

Under the evidence there is no question as to the guilt of the defendant and the jury was justified in so finding.

The judgment of the court of common pleas of Oklahoma county is, therefore, affirmed.

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


source: Caselaw Access Project

author: DAVENPORT, J.

license: Public Domain

text:
    In re W. B. SWAIM et al.
    No. A-9559.
    April 7, 1939.
    (89 P. 2d 363.)

      Everest, McKenzie & Gibbens, of Oklahoma City, for petitioners.
    A. L. Jeffrey, Municipal Counselor, and J. L. Gowdy, Asst. Municipal Counselor, both of Oklahoma City, for respondent.
   DAVENPORT, J.

This is an original petition in habeas corpus of W. B. Swaim and Fidelity Laboratories, Inc., a corporation, asking to be released from the custody of Granville Scanland, chief of police of the city of Oklahoma City, Okla.

The following facts are set forth in petitioners’ petition:

Your petitioners, Fidelity Laboratories, Inc., and W. B. Swaim, represent and state to the court that they are restrained of their liberty and are unlawfully restrained in Oklahoma City, in the county of Oklahoma, state of Oklahoma, by the chief of police, Granville Scanland, of the city of Oklahoma City; that the cause of said restraint according to the best knowledge and belief of your petitioners, is:

That on the 31st day of August, 1938, a complaint was filed in the municipal court of the city of Oklahoma City charging that your petitioners herein are operating in violation of that certain ordinance of the city of Oklahoma City as follows, to wit:

“It shall be unlawful for any person to rear or keep any swine in the city at any place; provided however, that the provisions hereof shall not apply to any person or corporation engaged in the packing house business or in the selling or shipping of swine insofar as it may be necessary for said parties to bring swine and keep the same in said city in the legitimate transaction and carrying on of their business.”

That by the judgment and order of the municipal court of the city of Oklahoma City your petitioners were fined by said court the sum of $19 and costs after having been adjudged guilty of the violation of said ordinance.

Your petitioners allege that said restraint is illegal, unlawful and unauthorized in that your petitioner W. B. Swaim is the manager of the business of the copetitioner, Fidelity Laboratories, Inc., and that the principal place of business is in Oklahoma City, Okla., and has been for a number of years. That Fidelity Laboratories, Inc., is a corporation organized and existing under the laws of the state of Illinois and was at the times hereinafter mentioned, and still is, authorized to transact business in the state of Oklahoma, and is the owner of the following described property situated in Oklahoma county, state of Oklahoma, to wit: Lots thirteen to twenty, inclusive, in block fifty-six in the Third Stockyards addition to Oklahoma City, according to the recorded plat.

That said corporation acquired lots 13 to 16, inclusive, in said block 56, on the 28th day of October, 1926, by warranty deed which is recorded in Book 316 of Deeds, page 336, in the office of the county clerk of Oklahoma county and then acquired title to lots 17 to 20, inclusive, in said block 56, on the 16th day of November, 1926, which is recorded in Book 316 of Deeds at page 339, in the office of the county clerk of Oklahoma county. That said corporation has been the owner of all of said property from and after the respective dates of purchase thereof and is now the owner thereof. That said corporation acquired lots 13 to 16, in said block 56, from Fidelity Supply Company, a corporation, and that Fidelity Supply Company, a corporation, acquired said lots 13 to 16, in block 56 aforesaid, from Eagle Biological & Supply Company on the 30th day of July, 1921, by warranty deed which is recorded in Book 267 of Deeds, at page 452, in the office of the county clerk of Oklahoma county. That Eagle Biological & Supply Company acquired title to said-lots 13 to 16, inclusive, in block 56 aforesaid, by warranty deed from Eagle Serum Company on the 4th day of September, 1917, which is recorded in Book 196 of Deeds at page 105 in the office of the county clerk of Oklahoma county and that Eagle Serum Company acquired title to said lots 13 to 16, inclusive, in block 56 by warranty deed from Oklahoma Stockyards Serum Company on the 28th day of June, 1917, which is recorded in Book 180 of Deeds, page 45, in the office of the county clerk of Oklahoma county. That Oklahoma Stockyards Serum Company acquired title to lots 13 to 16, inclusive, in block 56 aforesaid on the 27th day of December, 1915, which is recorded in Book 178 of Deeds at page 570 in the office of the county clerk of Oklahoma county.

That shortly after the purchase of said property by the Oklahoma Stockyards Serum Company on the 27th of December, 1915, said company did build and construct upon said property a brick building and sheds with concrete floors for the express, sole and only purpose of manufacture of virus and serum for the prevention and spread of the disease of hog cholera. That all of said property was especially built and constructed for said purposes and is not fit, suitable or capable of being used, nor is it useful, for any other or different kind of business.

That at the time of the purchase of said property the Oklahoma Stockyards of said Company presented to the city of Oklahoma City, Okla., a petition and resolution relating to the application of the Oklahoma Stockyards Serum Company to erect and maintain a serum plant for the manufacture and sale of hog cholera serum and virus on lots 14, 15 and 16, in block 56 in the Third Stockyards addition to Oklahoma City, and that the city of Oklahoma City did approve said petition and resolution and did authorize the mayor and city clerk to execute the same at a regular meeting of the board of commissioners of the city of Oklahoma City on the 28th day of December, 1915, and that approval thereof was by roll call vote and all of the commissioners did vote in favor of the adoption thereof. That thereafter and in reliance upon the acts of the city of Oklahoma City last above mentioned, Oklahoma Stockyards Serum Company did build said plant especially for the purposes of manufacturing serum and virus and for the sale of serum and virus, on said property. That Oklahoma Stockyards Serum Company did complete said building and commence to, and did, operate its business at said location on said property and did engage in the manufacture of serum and virus for the prevention of hog cholera pursuant to said resolution and further did submit to, and obtain the approval of, the Department of Agriculture of the United States for the construction of said building, and that the plant for the construction of said building as finally adopted and on which said building was actually constructed, did bear the approval of the Secretary of Agriculture as provided by the Acts of Congress. Said Oklahoma Stockyards Serum Company did operate said plant at said location and on said property for the manufacture of serum and virus as hereinafter more fully set out until the sale of said property to Eagle Serum Company on the 28th of June, 1917, and that Eagle Serum Company did manufacture serum and virus for the prevention of hog cholera from the time of purchase on the 28th of June, 1917, when it sold said property to Eagle Biological & Supply Company on the 4th of September, 1917. That Eagle Biological & Supply Company was granted License No. 2-A on December 10,1917, by the Department of Agriculture of the United States for the manufacture of serum and virus for prevention of hog cholera and did manufacture the same under said permit from the Department of Agriculture of the United States until sale thereof. That Eagle Biological & Supply Company did manufacture and sell virus and serum for the prevention of hog cholera from the 4th day . of September, 1917, of the 30th day of July, 1921, when it sold said property to the Fidelity Supply Company and did operate under license from the Department of Agriculture of the United States under date of December 20, 1918, and did manufacture serum and virus on said property for the prevention of hog cholera under supervision of the Department of Agriculture of the United States; that the Fidelity Supply Company did manufacture serum and virus for the prevention of hog cholera from the 30th day of July, 1921, when it acquired said property, and did operate under a permit and license from the Department of Agriculture of the United States until it sold said property to Fidelity Laboratories, Inc., on the 28th of October, 1926; and that Fidelity Laboratories, Inc., did operate said property under license and permit of the Department of Agriculture, being No. 163 under date of March 2, 1926, to and including the present time, for the preparation and manufacture of serum and virus for the prevention of hog cholera including the further privilege and right of post mortem examinations of hyper immune hogs conducted in establishment 20-Q storage quarters located in building 2, establishment 20-Q as provided for in said license. That the meaning of “post mortem examinations of hyper immune hogs conducted in establishment 20-Q storage quarters located in building 2, establishment 20-Q” is that Fidelity Laboratories, Inc., was authorized by said license and permit to process pork and store bottled serum in establishment of Wilson & Co. at Oklahoma City, the words “Establishment 20-Q” being the license number and designation of Wilson & Co. and further designated storage quarters located in building No. 2 of Wilson & Co., which is establishment 20-Q.

That all of the business and the conduct of the business of Fidelity Laboratories, Inc., from the time that it acquired the property and commenced the operations of its business, including the manufacture of serum and virus to the present time, have continuously been, and are now, under the direction, supervision and control of representative of the Department of Agriculture of the United States in the manufacture and development! of its serum and virus. That the properties hereinabove described had been so constructed and especially built that they were used and useful only for the purpose of the manufacture of serum and virus for the prevention of hog cholera under the Acts of Congress and under the rules and regulations of the Secretary of Agriculture of the United States and have been under said Acts of Congress and rules and regulations aforesaid since said building was built in the early part of 1916.

That it is necessary, and has been ever since said plant has been in operation, that the operator of said serum plant go into the market and buy frequently and from time to time on an average of about three days each week, live, sound and healthy hogs which have to be approved by the Department of Agriculture for the purposes herein set out and that there is maintained at said plant competent, capable and experienced men representing the operator of said serum plant in the open market in the selection, acquiring and purchasing of hogs which meet the requirements, rules and regulations of the Secretary of Agriculture in order to manufacture and develop serum and virus for the prevention of hog cholera. That in addition thereto the operator of said plant is further required to maintain suitable and proper equipment, laboratories, pens and other machinery and appliances which are and have to be approved by the Department of Agriculture of the United States in the use in manufacture of serum and; virus for the prevention of hog cholera. That no plant for the development of serum and virus aforesaid can operate without acquiring and purchasing in the open market from time to time live hogs for the express reason that the development of virus and the development of serum for the purpose of completing the manufacture thereof, require the use of the live hog in a healthy condition prior to inoculation in order to properly, fully and legally develop both virus and serum conformable to and in conjunction with the required rules, and regulations of the Department of Agriculture and the Acts of Congress. That the said Fidelity Laboratories, Inc., cannot maintain and operate its business on the properties hereinabove described unless and until it is allowed, permitted or granted the right to purchase, own, use and handle live, healthy hogs during the process of the manufacture of virus and serum. That without the use of said animals said factory and the manufacture of said product could not be had or done.

Petitioners further represent that not only are they engaged in the manufacture and development of virus and serum for the prevention of hog cholera but that they are also engaged in the packing house business from time to time in the handling of their business at their location and do actually kill and sell for consumption healthy and properly prepared hogs under supervision, control and regulation of the Department of Agriculture. That the Department of Agriculture of the United States maintains at the plant on said property hereinabove described one or more licensed representatives for the express purpose of inspecting of animals which come into and are used by Fidelity Laboratories, Inc., in all of its business and that each animal is necessarily and properly designated, marked and carded by the representative of the Department of Agriculture and that all of said animals and the entire plant are under the rules, regulations and supervision of the Department of Agriculture by and through their representative in respect of the condition of animals and the complete and highly sanitary condition of the properties and particularly of the pens in which all live animals are kept. That each of said pens when in use under directions of representative of the Department of Agriculture are thoroughly cleansed from two to four times each day. That all animals are carefully inspected by the representative of the Department and are required to be kept in a clean, sound and healthy condition at all times.

That said Fidelity Laboratories, Inc., is expressly within the provisions and exception of said ordinance herein-above described, for the reason that the provisions of said ordinance do not apply to any person or corporation engaged in the packing house business and that it is so engaged and that said properties have been used in the packing house business ever since the construction of the building and pens thereon.

Petitioners further charge that Fidelity Laboratories, Inc., is engaged in the acquiring of swine insofar as it is, or may be necessary, for it to bring swine and keep the same in the city of Oklahoma City in the legitimate transactions and carrying on of its business at the location and on the properties hereinabove described and that it thereafter does sell all of the healthy animals after inspection by representatives of the Department of Agriculture in commerce and that the same is a legitimate transaction and is necessary for the carrying* on of its business.

Petitioners represent that the use of virus and serum is for the express purpose of saving from the most disastrous disease of hog cholera, swine and hogs within the United States and that its serum is used and shipped in Interstate Commerce and is sold under the regulations and by the directions of the Secretary of Agriculture for the purpose of preventing the spread and communication of the disease of hog cholera from one animal to another. That by regulation, rule and orders of the Secretary of Agriculture, Fidelity Laboratories, Inc., is required to, and does, keep on hand by the 1st of May of each year forty per cent of the total amount of virus and serum sold within the preceding year and that said regulation is for the purpose of always having available a sufficient amount of virus and serum for the prevention and spread of the disease of hog cholera. That in the operation of its plant in the manufacture of virus and serum under supervision and control of the representative of the Department of Agriculture, it becomes necessary to, and it does, take the lives of animals from which the Fidelity Laboratories, Inc., does take the whole blood from all uninfected animals under the direct supervision of the representative of the Department of Agriculture and does use the same in the manufacture of serum and virus for prevention of the spread of the disease of hog cholera. That animals therefor are kept in its slaughterhouse and on its property under the supervision of the representatives of the Department of Agriculture and are either:

(a) Within 60 minutes after the death of said animal delivered to a licensed meat packer for the purpose of sale; or (b) by Fidelity Laboratories, Inc., duly prepared, delivered and sold in the local market of Oklahoma City;

That the Fidelity Laboratories, Inc., is required to, and does, wash and thoroughly cleanse all of its pens and all of the animals therein under directions of representative of the Department of Agriculture of the United States from two to four times every day for the purpose and prevention of spread of disease and to comply with the regulations in respect of sanitation. That it is absolutely necessary to cause live hogs to be acquired and used for the purpose of its business and without the use of live hogs in healthy condition that have been approved by the Department of Agriculture it cannot maintain and operate its business.

That the city of Oklahoma City, Okla., a municipal corporation, has undertaken to prosecute and has filed a complaint and charge against your petitioners charging them with a direct violation of said ordinance hereinabove set out and that your petitioners have been adjudged guilty thereof by the municipal court of said city, but in truth and in fact your petitioners are not in violation of and have not offended any part of said ordinance for the reasons:

1. That at the time of the construction of said building the city of Oklahoma City did approve the location and erection of said plant and the maintenance thereof as a serum plant for the manufacture and sale of serum and virus for the prevention of hog cholera by virtue of action taken on December 28, 1915, before said building was constructed and said plant is still in operation.

2. That said corporation has always been engaged in the packing house business under the terms of said ordinance and is therefore not in violation, nor has it done anything to offend any of the provisions thereof.

3. That it has always been engaged in the buying, selling and disposing of swine insofar as it has been necessary for Fidelity Laboratories, Inc., to bring swine and keep the same in the corporate limits of the city of Oklahoma City in the legitimate, licensed and proper inspection and transaction of its business for the purpose of carrying on of the same.

4. Your petitioners further represent that prior to the filing of the charge against them aforesaid, other charges have been filed and that your petitioners have been threatened with the prosecution of such action each day for the keeping of swine or hogs within the corporate limits under said ordinance and will continue to prosecute unless this court determines the validity of said ordinance and its provisions thereof in respect to this corporation, its business and its operations, and whether in truth and in fact it has in any way violated any of the terms thereof.

5. Petitioners further charge that if said provisions of said ordinance in respect of exempting corporations engaged in the packing house business or in selling- or shipping swine, insofar as it may be necessary to bring swine and keep the same in the city limits in the legitimate transaction and carrying on of business do not apply to this corporation, then and in that event petitioners charge that said ordinance is invalid and unenforceable against them and violates the provisions of the Fourteenth Amendment to the Constitution of the United States, U.S.C.A., and the provisions of section 2, art. 2; section 7, art. 2; section 23, art. 2 and sec. 24, art. 2 of the Constitution of this state, Okla. St. Ann., in that said corporation will be deprived of its inherent right to liberty, pursuit of happiness and the enjoyment of the gains of its industry and that it will be deprived of its property without due process of law in that the city of Oklahoma City will endeavor to destroy the business, has threatened to and will carry out said threat by continually filing complaints from day to day in order to prevent said corporation from conducting its business on said properties now located within the limits of the city of Oklahoma City.

6. That it will take by a multiplicity of prosecutions the private property of said corporation without compensation and without the consent of the owner thereof and that it will damage said property for private use without compensation and without the consent of the owner thereof.

7. It will take the private property of said corporation or will damage the same for public use without just compensation and without any compensation whatsoever.

That the attempt of the city of Oklahoma City to prosecute your petitioners and the conviction thereof has been carried on and will be carried on for the expressed, avowed and open and announced purpose to prevent Fidelity Laboratories, Inc., from purchasing and bringing within the corporate limits to its place of business which are absolutely necessary in the operations of its business and thereby has determined to and will destroy the business of said corporation located on said properties aforesaid by preventing it from acquiring, taking, keeping, using, feeding and selling the live hogs necessary and absolutely required in order to properly conduct its business in the manufacture of virus and serum for the prevention of hog cholera. That a petition was presented to the district court of Oklahoma county, Okla., and was refused September 1, 1938.

On the filing of the petition as hereinabove set forth, this court issued an alternative writ requiring the Honorable Granville Scanland, chief of police of the city of Oklahoma City, Okla., to show cause on the 15th day of September, 1938, at 1:30 p. m. in the courtroom of the Criminal Court of Appeals at the State Capitol Building in Oklahoma City, Okla., why the petitioners should not be released from his custody.

The petitioners by the rule were released on their own recognizance pending the hearing of the case in this court.

On September 6, 1938, Granville Scanland, chief of police of the city of Oklahoma City, Okla., filed his response to the rule to show cause, heretofore issued by this court and served upon him, and set forth the reasons for his detention of the petitioners as follows:

That the said W. B. Swaim and Fidelity Laboratories, Inc., a corporation, were placed in his custody on the 1st day of September, 1938, by the filing of a criminal complaint in the municipal court of the city of Oklahoma City, Okla., a copy of which is attached to petitioners’ petition for a writ of habeas corpus and marked Exhibit “A,” to which reference is hereby made, and the issuance thereunder by the municipal judge of the city of Oklahoma City of a warrant for the arrest of the said W. B. Swaim and Fidelity Laboratories, Inc., a copy of which is attached to petitioners’ petition for writ of habeas corpus and marked Exhibit “B,” to which reference is hereby specifically made; by the execution of said warrant and the arrest of the said W. B. Swaim and Fidelity Laboratories, Inc., by an officer of the city of Oklahoma City, Okla.

That thereafter, on the 1st day of September, 1988, the said W. B. Swaim and Fidelity Laboratories, Inc., by virtue of said complaint, said warrant and the execution thereof were brought before municipal court of the city of Oklahoma City, Okla., and after a plea of not guilty was taken, evidence was adduced and heard by the court, and the said W. B. Swaim and Fidelity Laboratories, Inc., were adjudged guilty of keeping swine in the city of Oklahoma City, Okla., at 1838 S. W. 13th street, in violation of the Oklahoma City Revised Ordinances of 1936, chapter 1, section 11, as charged in said complaint, said ordinance being in words and figures as follows, to wit: “1-11. Swine — Rearing—Keeping. It shall be unlawful for any person to reai or keep any swine in the city, at any place. Provided, however, that the provisions hereof shall not apply to any person or corporation engaged in the packing house business, or in the selling or shipping of swine, insofar as it may be necessary for said parties to bring swine, and keep the same, in said city in the legitimate transaction and carrying on of their business,” and were assessed a fine of $19 and costs.

That upon failure of the said W. B. Swaim and Fidelity Laboratories, Inc., to pay said fine of $19 and $1 costs, they were by the judge of the municipal court of the city of Oklahoma City, Okla., committed into my custody as chief of police of the city of Oklahoma City, Okla., to be confined in the city jail in the city of Oklahoma City, Okla., until said fine and costs had been paid in full by cash or served out at a rate of $1 per day, all as provided by law. For further response respondent denies each and every material allegation contained in said petition for writ of habeas corpus except those which are specifically admitted.

The petition for habeas corpus and the response thereto are lengthy, but the greater part of them have been incorporated in this opinion for the reason that they substantially cover all questions involved in this case.

It is admitted by all the parties, by the petitioners and the respondent, that the Fidelity Laboratories, Inc., has been an organized, existing and operating business where it is now located for many years and was so operating under the same laws and regulations it has been operating under at the time the petitioners in this case were arrested charged with violating the city ordinance hereinbefore set out.

It is further admitted that since the organization of this laboratory company a number of parties have purchased properties and built homes, including the Exchange Baptist Church, near where the laboratories have been operating.

In the presentation of this case by the respective parties the petitioners have argued at length the unconstitutionality of the ordinance and the respondents have argued at length the question that the laboratories as operated constituted a nuisance.

This court upon the hearing of a habeas corpus can not go into the equities and the respective legal rights of the parties, but can only pass on the question as to whether or not the petitioners in this case, the defendants in the municipal court, are shown to have violated a city ordinance of the city of Oklahoma City, Okla., and if they have not violated a city ordinance they are entitled to their discharge.

The ordinance, which the petitioners herein who were the defendants in the municipal court, is alleged to have violated, contains the following proviso, “Provided, however, that the provisions hereof shall not apply to any person or corporation engaged in the packing house business or in the selling or shipping of swine insofar as it may be necessary for said parties to bring swine and keep the same in said city in the legitimate transaction and carrying on of their business.”

It is also admitted by all parties that the Fidelity Laboratories, Inc., was superintended and inspected by an agent of the federal government and could only operate under its supervision and rules regulating the operation of the same.

The petitioners allege that they are restrained of their liberty and incarcerated in jail by the chief of police of the city of Oklahoma City without authority of law and seek to be released upon a writ of habeas corpus.

“The law denies to no one restrained of his liberty without a hearing the right to prove in some tribunal that the facts justifying his restraint do not exist. Ex parte Roman, 19 Okla. Cr. 235, 199 P. 580.” 6 R.C.L. page 435.

In Ex parte Dunn, 33 Okla. Cr. 190, 242 P. 574, in the first paragraph of the syllabus this court said:

“The review of a judgment of conviction and imprisonment by writ of habeas corpus is limited to the questions: Had the court which rendered the judgment jurisdiction of the subject-matter and of the person convicted? And did the court have jurisdiction to render the particular judgment?” Ex parte Grant, 32 Okla. Cr. 217, 240 P. 759.

It is undisputed and the record clearly shows that all parties agree that in order for the Laboratories, Inc., to carry on its business of producing virus and hog serum that it was necessary for the laboratories to have and treat certain classes of hogs before slaughtering and securing the blood from the hogs for the purpose of producing the virus and serum.

It is further agreed that in the management and operation of the laboratories many of the hogs that were used at the laboratories were sold to the packing companies dressed and prepared for food consumption. All parties agree that the company could not operate and manufacture virus and serum for the treatment of hogs without having in its plant and keeping the hogs at the plant and treating different ages of hogs, and that it is absolutely necessary and essential that the laboratory company, incorporated, operating and manufacturing virus and serum must use hogs in the legitimate transaction and carrying on of its business.

Counsel for petitioners have prepared and argued at length in their brief the question of the constitutionality of the ordinance and many other questions which it is not deemed necessary to be considered by this court. The sole question being, Have petitioners violated an ordinance of the city? In the cases cited by petitioners we find they were direct proceedings in law or in equity filed by the public prosecutors on relation of the state or the county to restrain the operation of the plants complained of or to declare the plants a nuisance. The authorities cited by the petitioners beginning with Pennsylvania Coal Company v. Mahon, 260 U.S. 393, 43 S. Ct. 158, 67 L. Ed. 322, 28 A.L.R. 1321, and Burns Baking Company v. Charles W. Bryan, Governor,.et al., 264 U. S. 504, 44 S. Ct. 412, 68 L. Ed. 813, 32 A.L.R. 661, on down through a long list of cases discussing the question of the constitutionality of municipal ordinances and what constitutes a nuisance all relate to civil procedure in the nature of an equitable proceeding where the questions can fully be tried on the issues involved and the law applicable to the questions involved correctly construed and interpreted according to the facts.

The authorities cited do not apply to the question involved in this case, and that is the question, Have the petitioners violated an ordinance of the city of Oklahoma City, Oklahoma, by keeping swine in the corporation?

If petitioners or the respondent desired to settle all legal and- equitable questions involved in the operation of the Laboratories, Inc., they could have done so by the proper proceedings brought in a court of law or equity where all questions, including the constitutionality of the ordinance and the rights of individual citizens who own their property in the locality where the laboratories are located, could be settled. As shown by the testimony most of the property owners living in or near the Laboratories, Inc., purchased the same since the laboratories were located and began operation.

The authorities cited in the brief of the petitioners are not germane to and do not support the defense of petitioners that they have not violated an ordinance of the city of Oklahoma City, Okla., prohibiting the keeping of swine in the city limits.

Counsel for the respondent insists that the authorities .cited by counsel for petitioners do not sustain the contention of petitioners. Respondent’s counsel at length cite a number of authorities beginning with State of Missouri ex rel. Lamm v. Mid-State Serum Company et al., Mo. App., 272 S. W. 99, and citing many other cases which the respondent insists sustain the contention that the petitioners in this case have violated an ordinance of the city of Oklahoma City by keeping swine in the corporate limits at the laboratory’s plant where the said laboratory for many years has been manufacturing virus and hog serum.

All of the authorities cited by the respondent relate to the right of a city under its police power to regulate what may be kept and what may not be kept within the corporate limits of the city. It would serve no useful purpose to set out each of the authorities set out by the respondent, suffice it to say that they are not germane to the question being considered by this court.

This court has mentioned the authorities cited by the petitioners and by the respondent in order that it may properly direct the attention of the able counsel for the petitioners and the respondent, that they have consumed many pages and hours of careful study of cases that have been passed upon by the respective courts declaring the law where the proper procedure had been brought in the courts and the facts when brought out justify the court’s holdings, but as hereinbefore stated they are not germane to the question involved in this case as to whether or not under the agreed statement of facts in the record these petitioners have violated the ordinance of the city herein-before set out and referred to.

The ordinance, it is alleged the petitioners who were defendants in the city court violated, “makes it unlawful to rear or keep any swine in the city at any place,” but the ordinance does not stop here, but goes further and uses the following language, “provided, however, that the provisions hereof shall not apply to any person or corporation engaged in the packing house business or in the selling or shipping of swine insofar as it may be necessary for said parties to bring the swine and keep the same in said city in the legitimate transaction and carrying on of their business.”

It is agreed by the parties to this hearing that the Laboratories, Inc., could not operate and manufacture virus or hog serum in its plant without the keeping and handling of hogs and that the keeping of the hogs at the Laboratories, Inc., was in the legitimate transaction and the carrying on of the business of the Laboratories, Inc. Without hogs the virus and serum could not be manufactured.

It is also undisputed that many of the hogs used at the laboratory were slaughtered and turned over to the packing company where they were dressed and sold to the public trade. Evidently, at the time the ordinance, which the city alleges the petitioners violated, was passed by the board of aldermen and approved by the mayor, the city had in mind that there would be packing plants and businesses established within the corporate limits that would require the keeping, treating and slaughtering of hogs and for that reason the municipality adopted the ordinance carrying the proviso hereinbefore set out.

After carefully considering the question raised by the application of the petitioners for writ of habeas corpus, we hold that there is no testimony whatever to show that the petitioners have violated the city ordinance complained of and that by the undisputed facts in this case the police judge was without authority and jurisdiction to impose a fine upon the petitioners.

As heretofore stated in this opinion, we hold that the proper remedy has not been pursued to settle the question as to whether the laboratories may continue their business where located.

The conviction and sentence of the petitioners is without any evidence or authority of law to sustain it and the petitioners are entitled to the relief prayed for.

Writ granted and petitioners ordered discharged.

DOYLE, P.J., and BAREFOOT, J., concur.


author: BAREFOOT, J.

text:
    MORRIS SYMONDS v. STATE.
    No. A-9480.
    April 21, 1939.
    (89 P. 2d 970.)

      Luther P. Lane, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., of Tulsa, for the State.
   BAREFOOT, J.

The defendant was charged in the district court of Tulsa county with the crime of directing a riot; was tried, convicted, and sentenced to serve a term of five years in the penitentiary, and has appealed.

Numerous errors are assigned and principally, that the evidence was insufficient to warrant the jury in finding defendant guilty and assessing a sentence of five years in the penitentiary, and that the court erred in refusing to direct a verdict to find the defendant not guilty.

The record discloses that some time prior to July 9, 1937, a number of stores, and especially grocery stores, had formed a practice of opening their doors at an early hour and closing them at a late hour, and keeping open all day Sunday in the city of Tulsa. That many clerks were therefore forced to work long hours and were thereby deprived of an opportunity for recreation and rest, and the privilege of being with their families. As an outgrowth of this condition there was organized a Retail Clerks International Protective Association, and the same was affiliated with The American Federation of Labor. Defendant became a member of this organization, and was elected as its business manager. It was shown that his duties as such business manager were to contact the managers of the different stores in a peaceful effort to try to persuade them to become members of the organization, and thus permit their clerks to become members, to the end that the conditions above referred to might be corrected.

The testimony on the part of the state revealed that prior to July, 1937, grocery stores were operated in Tulsa by C. R. Jones, L. 0. Chapman, and Frank M. Rowell, and other businesses operated by the Long Bell Lumber Company, Roxy Theatre, and Ketchum Hotel. That on the night of July 9, 1937, a mass meeting was held at the courthouse in Tulsa, which about 400 persons attended. The record does not disclose any of the proceedings of this meeting; who called the same; or who participated therein. Those who were there proceeded to the Ketchum Hotel, and many entered therein and considerable property was destroyed. Every inch of duct work from the first floor to the seventh was destroyed. One telephone was torn from the wall. The total damage is not shown. The record discloses that the cause of this visit was because of the installation of certain plumbing in the construction of an air-conditioning system which consisted of machinery and ducts. The crowd then proceeded from the Ketchum Hotel to the Long Bell Lumber Company, where damage was done by breaking out of all the plate glass windows. They then proceeded to the Rowell Grocery store, where “the plate glass in front was all broken out, and the north window broken, the screens damaged, and the front was damaged, and a new awning torn, and then inside about — I guess ten or fifteen hundred dollars worth of merchandise was damaged.”

They then proceeded to the grocery store of L. 0. Chapman, on the Sand Springs Road, where he testified to the following damage:

“A. I have got 70 foot front on my store that is glass doors, all on tracks, and that was all knocked out, the glass was all out, part of the paint knocked off with rocks, pop bottles and what have you, and the show cases were pretty well all broken but one, some of the scales broken;, glass goods of all kinds back on the shelves were broken up and smashed over everything else; just a wreck, that is all there was to it, just a wreck all the way through the store. We didn’t have a whole door left in the thing, not one whole door left in the store.”

From there they proceeded to the grocery store of C. R. Jones, on the Sapulpa Road. He testified to the following damage:

“A. * * * all the doors were broken and a lot of merchandise destroyed, and a bunch of lights— Q. Talk so I can hear you clear back here, Mr. Jones. A. A bunch of my fixtures were damaged, and there were rocks, bricks, pop and glass all over the store, and I believe the total damage run around $1,500. Q. Did they damage your stock of goods too? A. Yes, sir, stock and fixtures and the building. Q. They pretty well tore up your entire store, is that right? A. Yes, sir.”

The statutes under which defendant was tried were, Oklahoma Statutes 1931, section 2534, Okla. Stats. Ann., Title 21, sec. 1311, which provides as follows:

“Any use of force or violence, or any threat to use force or violence if accompanied by immediate power of execution, by three or more persons acting together and without authority of law, is riot.”

And Oklahoma Statutes 1931, section 2535, Okla. Stats. Anno., Title 21, sec. 1312, which provides as follows:

“Every person guilty of participating in any riot is punishable as follows:
“(1) If any murder, maiming, robbery, rape or arson was committed in the course of such riot, such person is punishable in the same manner as a principal in such crime.
“(2) If the purpose of the riotous assembly was to resist the execution of any statute of this state or of the United States, or to obstruct any public officer of this state or of the United States, in the performance of any legal duty, or in serving or executing any legal process, such person is punishable by imprisonment in the penitentiary not exceeding ten years and not less than two.
“(3) If such person carried at the time of such riot any species of firearms, or other deadly or dangerous weapon, or was disguised, he is punishable by imprisonment in the penitentiary not exceeding ten years and not less than two.
“(4) If such person directed, advised, encouraged or solicited other persons, who participated in the riot to acts of force or violence, he is punishable by imprisonment in the penitentiary for not exceeding twenty and not less than two years.
“(5) In all other cases such person is punishable as for a misdemeanor.”

The following Oklahoma cases have had under consideration the construction of the above statutes: Cochran v. State, 4 Okla. Cr. 379, 111 P. 974; Crawford v. Ferguson, 5 Okla. Cr. 377, 115 P. 278, 45 L. R. A., N. S., 519; Proctor v. State, 5 Okla. Cr. 553, 115 P. 630; Casteel v. State, 13 Okla. Cr. 19, 161 P. 330; Darneal v. State, 14 Okla. Cr. 540, 174 P. 290, 1 A. L. R. 638; Johnson v. State, 16 Okla. Cr. 428, 183 P. 926; Perkins v. State, 35 Okla. Cr. 279, 250 P. 544, 49 A. L. R. 1129.

In the Johnson Case, supra, it is pointed out that under the statute above quoted the crime of riot is a felony. That the different sections of the statute do not create separate or distinct offenses, but when the facts and evidence justify, the jury or court in assessing the punishment may impose a punishment in accordance with the facts. Under the allegations of the information, and the facts in the instant case, the jury must have found that defendant was guilty of a violation of the fourth section of the statute above quoted, because they returned a verdict and assessed his punishment at five years in the penitentiary. They must have found from the evidence that he did not only participate in the riot, but that he directed, advised, encouraged or solicited others to use force or violence in carrying the purpose of the riot into execution. This case answers the questions of the necessity of the court to instruct the jury on the last subdivision, or subdivision 5, of the statute. The facts in this case did not justify such an instruction. Under the testimony defendant was either guilty of a felony, or not guilty of any offense.

Riot was a common-law offense. The modern definition of riot is in harmony with and follows the common-law definition. It has been defined, 8 R. C. L., page 380, as:

“A tumultuous disturbance of the peace by three persons or more assembling of their own authority with an intent mutually to assist one another against anyone who shall oppose them in the execution of some enterprise of a private nature, and afterward actually executing the same in a violent and turbulent manner to the terror of the people, whether the act intended were of itself lawful or unlawful.
“Another definition frequently used is the same as that just given with the exception that the element of terror to the people is omitted and the nature of the enterprise is not specified.
“A riot has been also defined to be a tumultuous meeting of three or more persons upon some common purpose, to do an unlawful act, which they actually execute with violence; thereby making the character of the act an essential element of the crime.
“The word ‘riot’ has often been defined, however, without referring either to a purpose to resist opposition or to the inspiring of terror. And these elements are usually omitted from the statutes on the subject. Thus, according to some statutes, whenever three or more persons, having assembled for any purpose, disturb the public peace by using force or violence to any other person, or to property, or threaten or attempt to commit such disturbance, or to do an unlawful act by the use of force or violence, accompanied with the power of immediate execution of such threat or attempt, they are guilty of riot.
“Another statutory definition is that if three or more persons shall do an act in a violent and tumultuous manner, they shall be deemed guilty of a riot. In some jurisdictions it is not essential that the acts should be done in a tumultuous manner if the intent and power to carry out the common design exists.”

It is generally held to be composed of three necessary elements: (1) An unlawful assembly; (2) An intent mutually to assist against lawful authority; and, (3) Acts of violence. In Clifford v. Brandon, 2 Camp. 370, quoted in People v. Most, 128 N. Y. 108, 27 N. E. 970, 972, 26 Am. St. Rep. 458, Chief Justice Mansfield, said:

“[One who] encourages, promotes, or takes part in riots, whether by words, signs, or gestures, or by wearing the badge or ensign of the rioters, he is himself to be considered a rioter.”

In 54 C. J. 832, it will be noted that the original assembly may have been by accident, or for a lawful purpose, yet thereafter it may be turned into riotous assembly, and it is not necessary to show a previous agreement or conspiracy by those who participate therein, but under the law where the meeting was lawful, only those who participate after it becomes unlawful are guilty.

Judged by the rules above quoted, and applying the facts to the instant case, it cannot be denied that under the law a riot was carried on in the city of Tulsa on the night of July 9, 1937. Men who had the right to join any organization, which they believed would assist them in bringing about a better living condition for themselves and their families; one that would bring them shorter working hours and better wages; one that under the law gave them the right of collective bargaining; the right to strike; the right to picket; and the right to use every lawful and legitimate means to secure these rights from their employer; that gave them every right guaranteed by the principles and policies of the American Federation of Labor, should exercise these rights in a lawful manner, and not resort to “riot,” and unlawfully destroy the property of others by taking the law into their own hands. Our sympathy is with the man who labors, and who takes a step by the joining of an organization which assists him in the securing of better living conditions, a living wage, and shorter hours of employment, to the end that he may spend more time with his family, but under the law these rights should be secured in a lawful manner, and should not be by resort of taking the law into one’s own hands, and the willful destruction of property, as the evidence here discloses.

We have heretofore given the evidence of the state, which showed the happenings on the night of July 9, 1937. We shall now show what the record discloses as to defendant’s acts and conduct with reference thereto.

C. H. Todd testified that he was in the grocery business in Tulsa. That he had known defendant 15 years. That defendant came to his place of business the latter part of June, and about two weeks prior to July 9, 1937. That defendant came for the purpose of trying to get him to sign up a union card. That they went out in the backyard, and he asked defendant what they were going to do if he didn’t sign up, and defendant told him “that they were going to picket me, and then drive by and throw a bomb in my place, and blow it up.” That he then asked him what they were going to do with Chapman, Jones, Rowell and Smith, and defendant said: “We are going to tear their places up and make them sign it.” That he asked defendant about the officers, and defendant said: “Yes, he had the city lined up to co-operate with him, and that he hadn’t got the county yet, that he couldn’t get that damn bullheaded Dixie Gilmer (the county attorney), to do anything.”

The witness further testified that defendant returned to his place of business about 11 o’clock on the morning of the 9th of July, 1937, the day the riot was consummated. He came for the purpose of bringing witness a union card. During this time, in a conversation with defendant, he said: “A. He told me that they were going to blow up Chapman, Charlie Jones, and Rowell’s Market that night.”

And also:

“Q. Did he say anything about the authorities at that time? A. He said that he had got — I asked him if he had got the county lined up, and he said yes, he had got the county lined up; that they had got a man in the county attorney’s office and got it lined up to where they had protection there.”

On cross-examination, this witness testified that he asked defendant not to blow up Chapman’s store until he got a chance to talk with Chapman, and defendant promised to leave them alone. For this reason he did not call them up, as he did not think they would do it. He also testified that his store was picketed by the union some time after July 9, 1937, the date of the riot. He also testified that he told Mr. Gilmer, the county attorney, what he knew about this case in July, 1937.

Harold H. Cooper testified that he was in the grocery and market business, and that he knew the defendant Morris Symonds. His testimony with reference to seeing the defendant on the night of July 9, 1937, while the riot was in progress, was as follows:

“A. I was starting in my automobile, following the crowd of cars that was leaving Chapman’s market, and they all stopped and I stopped also, and there was a man standing beside a car past which each one of these other cars seemed to stop, and this man told the occupants of each car in this line something, I don’t know which, because I was back of them with my lights on the car, and after which each car drove on, and after they all had driven on I followed also. Q. Who was the man that was doing that directing? A. That was Mr. Symonds. Q. Morris Symonds, the defendant here? A. Yes, sir. Q. All right. Then what happened? A. I followed them back to Jones’ store. Q. All right. Did they go directly after they talked to him, directly to Jones’ store? A. Yes, sir. Q. Go ahead. A. And I watched there the occurrence that went on. Q. And what happened there, what did you see there? A. Well, they — .”

On cross-examination, he testified he did not see defendant personally after he arrived at the Jones store.

Mrs. Ruth Waxman testified that she owned and ran a grocery store in Tulsa, and that her husband also ran one. That defendant came to her store on Tuesday before Friday, July 9, 1937, for the purpose of trying to get her to sign a union card. She told him she did not need the union sign up because all her orders came in over the telephone, and they were delivered without the customers coming into the store, and that defendant said to her: “Your boy may leave here with the groceries, but he will never get there with them.” On cross-examination she testified she kept her store open from about 6:30 in the morning to 7:30 or 8 o’clock at night, and that it stayed open all day Sunday.

J. L. Burkhead testified that he was a special officer at the Ketchum Hotel. He was there on the night of July 9, 1937, when about three hundred fifty people came there, and did damage to the hotel. One of them, not defendant, asked him for his gun which he refused to give up. He testified that he saw Mr. Symonds there, and that he was with the first group that came in.

Edgar S. Worthington testified that he resided at the Ketchum Hotel, and was there on the night of July 9, 1937. That on this occasion, and while the crowd was there, he saw defendant, Morris Symonds, coming down the stairway of the hotel, from the second floor to the first floor.

P. J. Forrester testified that he saw defendant standing on the southwest corner near the Long Bell Lumber Company, on the night of July 9, 1937, when the crowd was there. He was not in his car, but was standing on the sidewalk.

Frank M. Rowell, whose store was damaged on the night of the 9th of July, 1937, testified as follows:

“A. Mr. Symonds came in the store, and he told me that he was going to make me close the store at 6 o’clock, 6 p. m., and I told him I just couldn’t make the hours so early, our business came in the evening. So Mr. Symonds said, ‘Well, if I didn’t close he would ruin me. I said, ‘How can you ruin me?’ He said, T will get the customers to quit.’ I said, ‘All right, if you think you can do that, but’ I said, ‘that is impossible, you can’t get them all to quit.’ Q. That was about the substance of it? A. That was about the substance, yes, sir.”

Defendant, testifying in his own behalf, said: That he was 42 years of age; that he had resided in Tulsa since 1920, and worked as a clerk in the grocery business; that he was a member of the Retail Clerks Union, and had been elected as its business manager. As to his duties, he said: “A. Well, my duties were to get signed contracts for stores to close up, short hours, and get new memberships, and any men, not employed, to try to find positions or jobs in stores, going out to see the sick if we had any, anything in that line.” That in the performance of these duties he contacted many persons. He admitted talking to Mr. Todd and Mrs. Waxman and others, but he denied any conversation as to threats of violence which they related. He said that he only tried to persuade them by peaceful means to join the union, and close their stores on Sunday, and live up to the principles of the union for the better living conditions of the clerks. He testified that a Mr. Sackett, who was second vice president of the Retail Clerks International Protective Association, of Pittsburg, Kansas, came to Tulsa, on the 9th of July, 1937. That his principal business was to see Mr. S. N. Barnes, manager of the Safeway Stores in Tulsa, who had 32 stores there. That they visited several parties, among them Mr. S. N. Barnes. That afterwards, Mr. Sackett went to his home for dinner at 6 p. m. That shortly after the dinner hour someone called him over the phone and told him there was to be a mass meeting at the court house. That he did not know who called him, and they hung up before he could ask them. That this was the first he knew of the meeting. That both he and Mr. Sackett went to the court house, and when they arrived that about two hundred persons were present. That he did not participate in the meeting in any way. That the crowd left the court house and went to the Ketchum Hotel, and that he went along with the crowd for the purpose of seeing if any of his men were with them but did not see any. That he went inside the hotel lobby, as testified to by the state’s witnesses, but soon came out, and said to Mr. Sackett: “Let’s get gone from here, they have torn the Ketchum Hotel up.” That he had nothing to do with this, and did not counsel or advise anyone in the premises. That he and Mr. Sackett got in his car and drove home by the shortest route which was by the Long Bell Lumber Company. When they arrived home they found there his wife and Mr. and Mrs. Hodges, with whom they had an arrangement to play bridge on that evening. The arrangements having been made long before he knew of the mass meeting at the courthouse. That soon after he arrived home he left and went to the Circle Bar, and secured four bottles of beer and returned within 20 minutes to his home, as they were to have lunch there. That they started to play cards and Mr. Sackett asked to be excused, and he and his wife agreed to take him to the hotel. It was agreed that Mr. and Mrs. Hodges should return to their home and that when defendant and his wife had taken Mr. Sackett to the hotel, that they would go to Mr. .Hodges’ home and finish the card game. That they did so, and finished playing cards about 2 a. m. That they then returned to their home and left about 4 a. m. for Horton, Kan., to visit some friends. That this trip had been planned for some time,, and as they had their belongings packed they decided to leave at once, after coming home from the Hodges. That in Kansas he read in the papers of the riot and called one of his friends over the phone, and upon being informed that a warrant had been issued for his arrest he immediately started to Tulsa, and drove all night to get there, and presented himself to the officers, and immediately made his bond and was released.

The defendant was corroborated in the above statement by his wife, Mr. and Mrs. Hodges, Mr. Sackett, and other witnesses.

Many substantial citizens were offered as witnesses by defendant, who testified that he bore a good reputation prior to the charges filed against him.

From the evidence above quoted, and we have' given rather a full statement thereof, it will be seen that there was a clear cut controversial issue of fact presented to the jury, and which they decided. Under the defendant’s testimony he had committed no crime, and was the victim of a set of circumstances for which he should not be found guilty. On the other hand, the state presented a ’set of circumstances and prior threats and statements and acts of the defendant, which, if believed by the jury, were sufficient for them to find defendant guilty under the law. This evidence has heretofore been quoted. It was the testimony of the witnesses, Todd, Mrs. Waxman, Harold H. Cooper, J. L. Burkhead, Edgar S. Worthington, and P. J. Forrester. The jury saw these witnesses, heard their testimony, with an opportunity to see their demeanor and appearance upon the witness stand. They also had the opportunity to see and hear the defendant and the witnesses offered in defendant’s behalf, including those who testified to his good character and reputation. By their verdict it is shown that they believed the statements made by the state’s witnesses and returned a verdict of guilty against the defendant. Under these circumstances the law of this state will not permit us to set aside the verdict of the jury. We can not say that the verdict of the jury was written because of prejudice toward the defendant. The record does not warrant us in so finding.

It is urged by defendant as error, that the court permitted the county attorney, the day before the trial commenced, to indorse the name of the witness Todd upon the information. This court in numerous decisions has held that the right to indorse a name on the information, even after the trial has begun, is in the sound judicial discretion of the trial court, and the exercise of this right will not be reversed in the absence of proof of prejudicial abuse of defendant’s substantial rights. Shaw v. State, 53 Okla. Cr. 389, 12 P. 2d 550; Harrell v. State, 36 Okla. Cr. 225, 253 P. 516; Star v. State, 9 Okla. Cr. 210, 131 P. 542; Anthony v. State, 55 Okla. Cr. 260, 28 P. 2d 1115. There was some testimony that the name of this witness, and what he would testify to, was known to the county attorney some time in July, before the trial in October. The name should have been placed upon the information as soon as possible, but the court may have been advised of some reason as to why it was not so placed prior to the time permission was given, and this is the very reason which permits the trial court to exercise its judicial discretion. The statement of the county attorney: “We hide a little something all the time,” was probably more humorous than circumspect. It should not have been made. We do not believe there was such an abuse of judicial discretion as would warrant a reversal of this case.

It is next urged that the court erred in refusing to sustain defendant’s demurrer to the information. This demurrer is based upon the fact that the information enumerates six different places or persons whose places were damaged, and that the information, therefore, charged six distinct and separate offenses. The cases cited by defendant are, to our mind, not in point. Fickle v. State, 38 Okla. Cr. 289, 260 P. 513; Orcutt v. State, 52 Okla. Cr. 217, 3 P. 2d 912. They refer to separate and distinct crimes. Under a charge of riot the evidence showed that it was one continuous act by the same parties acting in unison, and that all of the acts constituted the one charge of riot, and the proof of the different places destroyed only proved the one crime. The rule in cases involving larceny of property is as stated in 18 A. L. R. 1077:

“Where all the counts of an indictment for larceny are based on the same transaction, it is proper to charge the defendant in different counts with the theft of property belonging to several persons, and the prosecution is not required in such a case to elect on which count it will rely for a conviction, unless it appears to the trial court, in the exercise of a sound discretion, that an election is required to enable the defendant to make his defense without embarrassment or prejudice.”

And the rule is the same in reference to receiving stolen property. 18 A. L. R. 1079, and cases cited. Certainly if this is the rule in cases involving larceny or receiving stolen property, it would be true in a case of this character, where one was charged with riot, and each destruction of property was one continuous act, by the same parties, and at the same time, where all the parties were acting together and with a common intent. If defendant had been acquitted of this charge, there is no question but that this acquittal could have been plead as former jeopardy to a subsequent charge, with reference to any of the different places alleged in the information.

It is further contended that the court erred in refusing to quash the information as to Rowell’s Grocery and the Roxie Theatre. This contention is made upon the ground that the original complaint in the justice court prior to the preliminary examination did not contain the names above mentioned, but the information, when filed, contained these additional names. This contention is without merit. Under section 2d806, Okla. Stats. 1931; Okla. Stats. Anno. Title 22, sec. 264, as construed by the decisions of this court, the county attorney had the right to add these names in the information, if the evidence at the preliminary examination revealed they were involved in the charge. Ponoksy v. State, 8 Okla. Cr. 116, 126 P. 451; Agent v. State, 18 Okla. Cr. 281, 194 P. 233; Haley v. State, 20 Okla. Cr. 145, 200 P. 1009; Filler v. State, 23 Okla. Cr. 282, 214 P. 568; Wilson v. State, 34 Okla. Cr. 220, 246 P. 489.

The contention that the court erred in refusing to give defendant’s requested instruction No. 1, which had reference to closing of places of business on Sunday, can not be sustained. The charge against defendant was that of “riot,” and while there was evidence as to the keeping open of certain businesses on Sunday, there was nothing in this case which required the giving of this requested instruction. The effort of defendant to secure better working conditions was commendable. This evidence was permitted by the court to go to the jury, and there is no reason to presume that the jury was prejudiced against the defendant.

It is next urged that this case should be reversed by reason of the inflammatory appeal and prejudicial remarks of the county attorney made in his closing argument to the jury. The speech of both the county attorney and his assistant were taken down and transcribed in the record. We have carefully read them. They are strong logical appeals to the jury, and we are sure they had weight with the jury in determining their verdict. No doubt the able speeches delivered by defendant’s counsel were such as to cause the jury to render a smaller, verdict than they might have otherwise rendered. Strong prosecutors make strong speeches and strong attorneys for defendants make strong speeches, and often secure a verdict of not guilty for their clients, and while the rule is, and should be, that county attorneys, in their closing arguments, should be perfectly fair, and confine their argument to the facts justified by the evidence, and should not deal in abusive language of a defendant, yet they should not be denied the right to present their views and deductions in strong and vigorous language. We have carefully read the speeches delivered in the case by the attorneys representing the state, and while they are strong and vigorous, we do not find that they transcended the rights of the defendant to the degree that they could be considered prejudicial to this defendant.

We next come to consider the judgment and sentence received in this case. Under the statute the jury could have assessed a minimum punishment of two years, or a maximum punishment of twenty years. They assessed the punishment at five years. In many states the crime of riot is only punished as a misdemeanor. Our statute has provided a much wider latitude, and a much higher punishment. If murder, maiming, robbery, rape or arson is committed in connection with the crime, the punishment is in the manner as prescribed for the principal in such a crime. If the purpose is to resist the execution of any statute of this state or the United States, or obstruction of any officer of the state or the United States, in the performance of any legal duty, the punishment may be assessed at not less than two years, nor more than ten years in the penitentiary. If the defendant, at the time the riot is committed, carries firearms, or any deadly or dangerous weapons, or was disguised, he may be punished not more than ten years, nor less than two years in the penitentiary. Or if he “directed, advised, encouraged or solicited other persons, who participated in the riot to acts of force or violence,” he may be punished not less than two years, nor more than 20 years. In all other cases he may be punished as for a misdemeanor which does not carry a penitentiary sentence.

In the instant case, while it is true that property to a large amount was destroyed, and the riot was uncalled for, yet the evidence does not show that any personal violence was committed against anyone. It is not shown that any weapons were carried, nor was anyone disguised. The strongest evidence against defendant consisted of threats and declarations made by himself, and his personal presence at different places where the acts of violence were being committed, his direction of those participating in the riot, which was proved by circumstantial evidence. His own testimony was such, had the jury seen fit to approve it, that he would have been found not guilty.

After reviewing the whole record, we have come to the conclusion that the judgment and sentence should be modified to two years’ imprisonment in the penitentiary, and as so modified, the judgment of the district court of Tulsa county is affirmed.

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