text:
    Ex parte EWING HALL.
    No. A-8041.
    Opinion Filed Jan. 3, 1931.
    (294 Pac. 823.)
    Billups & Billups, for petitioner.
    W. W. McKenzie, Mun. Counsel, and G. B. Fulton, Asst. Mun. Counsel, for respondent.
   EDWARDS, P. J.

This is an original proceeding in habeas corpus. Petitioner alleges that he is unlawfully restrained by the police officers of Oklahoma City on commitment issued on a charge of driving an ambulance equipped with a siren, contrary to a city ordinance; that said ordinance is unreasonable and void. He admits operating an ambulance with siren open as alleged.

The ordinance complained of is No. 2591, par. P, § A-7, the pertinent part of which reads:

“* * * No vehicle shall be equipped with a siren except fire apparatus, police cars or emergency cars belonging to the city of Oklahoma City. No vehicle belonging to the city of Oklahoma City shall be equipped with a siren except upon written order of the city manager.”

Petitioner contends that by state statute, by the city ordinance, and by a well-recognized line of decisions, a certain class of vehicles, including ambulances responding to emergency calls, are exempt from the general application of legislation regulating highway traffic. Our attention is called to a provision of what is commonly referred to as the “stop, look and listen” law, section 1, c. 101, Session Laws 1925, wherein it is provided that the act shall not apply to' motor-driven ambulances when responding to any emergency call; to rule 7, § 10164, Oomp. Stat. 1921 (chapter 76, Session Laws 1927), which among other things provides that ambulances when plainly designated shall have the right of way in any street or road and through any procession; to paragraph N, of Ordinance 3591 of Oklahoma City, which provides that certain vehicles, including ambulances, giving signal by bell or siren, shall have the right of way, and other vehicles shall pull to the curb and come to a stop until such preferred vehicles shall have passed; to section A-21 of Ordinance 3591, giving ambulances responding to an emergency call right of way through' processions. Numerous decisions in support of the contention are cited, some of which apply to municipal fire apparatus and some to an officer in pursuit of a criminal, but several are applicable to ambulances in emergency cases. 42 C. J. 1026, par. 771 (4) ; Boggs v. Jewell Tea Co., 263 Pa. 413, 106 A. 781; Id., 266 Pa. 428, 109 A. 666; Puget Sound Electric Railway Co. v. Benson (C. C. A.) 253 F. 710; Green v. Eden, 24 Ind. App. 583, 56 N. E. 240.

The respondent admits that ambulances have the right of way over other vehicles and pedestrians, but insists the ordinance in question does not seek to take away nor to restrict the exercise of this right, but contends that the ordinance is a valid exercise of the city’s police power, and by it the city merely seeks to prevent an obnoxious noise which disturbs the public peace and repose, citing 42 C. J. 637, § 47; Hines v. Foreman (Tex. Com. App.) 243 S. W. 479; West v. Jaloff, 113 Cr. 184, 232 Pac. 642, 36 A. L. R. 1391; Newman v. Overholtzer, etc., 182 Cal. 778, 190 Pac. 175; Lilly v. West Virginia (C. C. A.) 29 F. (2d) 61.

When the jurisdiction of this court is invoked by ha-beas corpus to' declare void a statute or ordinance, every presumption is indulged in favor of the validity of the statute or ordinance. We will not declare such to be void if it can reasonably be sustained. Ex parte Westellison, 38 Okla. Cr. 207, 259 Pac. 873, and authorities cited.

The purpose in giving ambulances the right of way and requiring other vehicles to pull to the curb and stop is for humane reasons; it being in the mind of the legislative authority that the ill or injured conveyed by ambulance should reach a place for medical attention in the shortest possible time. But giving an ambulance the right of way is one thing and prohibiting it from disturbing the repose and quiet of the city by the unearthly shriek of a siren is another thing. The conditions surrounding the use of the streets and highways are very different from what they were before the general use of the automobile. Restrictions are necessary and reasonable now which would have been unnecessary and unreasonable in the days of the horse-drawn vehicle. With the advent and congestion of the streets by the automobile, some restrictions as to' noise are necessary as well as restrictions as to speed and various other traffic regulations. The loud, piercing, shrill, and screaming noise of a siren excites the average person operating an automobile. Some other signal with a modified, less objectionable tone should be substituted. The ambulance service of Oklahoma City is by privately owned commercial vehicles operated for hire. Under the police power, it is subject to reasonable regulations to preserve the public safety and peace. Like other vehicles, ambulances may be prohibited from running with open mufflers or cut-outs and from making other unnecessary or disquieting noises; they are subject to reasonable speed regulations and other reasonable police regulations, not in conflict with the law giving them the right of way. The ordinance in question is valid.

For the reasons assigned, the writ is denied.

DAVENPORT and CHAPPELL, JJ., concur.


source: Caselaw Access Project

author: EDWARDS, P. J.

license: Public Domain

text:
    KELSIE MORRISON v. STATE.
    No. A-7006.
    Opinion Filed Jan. 3, 1931.
    (294 Pac. 825.)

      Hamilton, Gross & Howard and Carl C. Wever, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the iState.
   EDWARDS, P. J.

This is an appeal prosecuted by Kelsie Morrison, plaintiff in error, hereinafter called defendant, from a judgment and sentence by the district ■court of Washington county, on a change of venue from Osage county, wherein defendant was adjudged guilty of murder of one Anna Brown, an Osage Indian, and was sentenced to life imprisonment in the state penitentiary.

Of the several assignments of error presented, only two involving somewhat the same question will be discussed. Briefly stated, these questions are: First, error in overruling the motion to quash the information on the ground that there was no competent evidence on which to base it. Second, error in overruling defendant’s plea in bar on the ground that he had been granted immunity by the district court of Osage county by his being a witness in case of the State v. Ernest Burkhart. Counsel for the state have not briefed this case. They have not confessed error, but stated at the time of the oral argument they could not defend the action of the prosecution in violating the agreement to grant immunity to defendant. That the testimony of defendant was very material to the state in the Burkhart case and was true. That the plea of immunity in the judgment of the Attorney General is well founded and should be sustained. But the question is of such importance they submit it to the court, without suggestion.

This case is one arising from a series of homicides a few years ago under what appeared to be a conspiracy to obtain by murder the property of wealthy Indians of the Osage Tribe. Prior to the time the information was filed against this defendant, there was pending in the district court of Osage county a case in which Ernest Burkhart was charged with the murder of one W. E. Smith by causing an explosion under his home in the town of Fairfax. In the trial of that case defendant was called as a witness to testify to matters and things within his knowledge tending to connect other persons with the murder of Smith and also tending to incriminate the defendant here in the killing of Anna Brown. The testimony of this defendant was material in the Burkhart case; it tends to- prove a conspiracy to- murder and was that he with others conveyed Anna Brown to' a ravine near the town of Fairfax, that he then went to the ranchhouse of William Hale, and pursuant to an agreement with Hale returned to the ravine with a pistol given him by Hale and shot and killed Anna Brown. Prior to testifying in that case defendant conferred with an Assistant Attorney General of the state and with a special prosecutor for the United States; he refused to testify until his rights were explained and he Avas informed by the court that he would not be prosecuted by reason of any incriminating testimony given. Relying upon the remarks, advice, and orders of the court, he testified as stated. A transcript of the proceedings which took place in the district court of Osage county is attached to the plea. At the conclusion of the inquiry, in the presence of the jury, the court said to defendant:

“The Court: The state has offered you as a witness in this case, and I understand you request the court to advise him of his constitutional rights. You are advised that you are not required to give evidence against yourself which might be used against you in any subsequent proceeding. Therefore, if you give evidence in this case, you will not be prosecuted by reason of the giving of any evidence which would incriminate you.”

There is no contention but that the witness testified in that case after agreement with the prosecution that the testimony he might give would not be used against him and after being advised and directed to' so do by the court. ■Some time later a peliminary complaint charging defendant with the murder of Anna Brown was filed before a magistrate of Osage county. The only evidence adduced against him and upon which he was held for the district court was a transcript of the testimony given by him in the district court in the Burkhart case, with that of two witnesses, one of whom testified the transcript was correct and the other that he heard defendant so testify. Under the record this was not competent evidence against defendant. It was used in violation of the agreement made with defendant, in violation of the order of the district court and in violation of article 2, §§ 21 and 27, of the state Constitution, and should have been quashed. State v. Duncan et al. (Yt.) 6 Ann. Cas. 602; note.

A part of the Fifth Amendment of the Constitution of the United States is:

“No person* * * shall be compelled in any criminal case to be a witness against himself. * * *” This or similar language is found in the Constitution of most of the states. Article 2, § 21, of the Constitution of this state in part reads: “No person shall be compelled to give evidence which will tend to incriminate him. * * *”

Article 2, sec. 27, is:

“Any person having knowledge or possession of facts that tend to establish the guilt of any other person or corporation charged with an offense against the laws of the state, shall not be excused from giving testimony or producing evidence, when legally called upon to do so, on the ground that it may tend to incriminate him under the laws of the state; but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may so testify or produce evidence.”

The language of these sections of the Oklahoma Constitution is broader and more comprehensive than that of the federal Constitution. The federal cases construing the provision of the national Constitution have construed it liberally in favor of the accused. In the case of Counselman v. Hitchcock, 142 U. S. 547, 12 Ct. 195, 198, 35 L. Ed. 1110, it is said:

“It is impossible that the meaning of the constitutional provision can only be that a person shall not be compelled to be a witness against himself in a criminal prosecution against himself. It would doubtless cover such cases; but it is not limited to them. The object was to insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime. The privilege is limited to criminal matters, but it is as broad as the mischief against which it seeks to- guard. # *X* *
“It is an ancient principle of the law of evidence that a witness shall not be compelled, in any proceeding, to make disclosures or to- give testimony which will tend to criminate him or subject him to fines, penalties, or forfeitures. Rex v. Slaney, 5 Car. & P. 213; Cates v. Hardacre, 3 Taunt. 424; Maloney v. Bartley, 3 Camp. 210; 1 Starkie, Ev. 71, 191; Case of Sir John Friend, 13 How. St. Tr. 16; Case of Earl of Macclesfield, 16 How. St. Tr. 767; 1 Greenl. Ev. § 451; 1 Burr’s Tr. 244; Whart. Crim. Ev. (9th Ed.) § 463; Southard v. Rexford, 6 Cow. [N. Y.] 254; People v. Mather, 4 Wend. [N. Y.] 229 [21 Am. Dec. 122]; Lister v. Boker, 6 Blackf. [Ind.] 439.”

See, also, Boyd v. U. S., 116 U. S. 616, 6 S. Ct. 524, 29 L. Ed. 746; Gouled v. U. S., 255 U. S. 298, 41 S. Ct. 261, 65 L. Ed. 647; Weeks v. U. S., 232 U. S. 383, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Ex parte Irvine (C. C.) 74 F. 954; In re Naletsky (D. C.) 280 F. 437, 440; 8 R. C. L. 125, § 101.

This court has had occasion to- consider these provisions of the Constitution several times and has said that a constitutional provision should receive a broader and more liberal construction than is applied to statutes. Scribner v. State, 9 Okla. Cr. 465, 132 Pac. 933, Ann. Cas. 1915B, 381, note. That in order to secure immunity under section 27 of article 2, the incriminatory evidence given by a witness in order to support a plea in bar must have been given under an agreement with the prosecuting attorney and approved by the court; or the witness must have claimed the privilege of silence which was denied by the court and the witness compelled by the court to testify; that the witness must act in good faith and testify fully and truthfully. Scribner v. State, supra; McConnell v. State, 18 Okla. Cr. 688, 107 Pac. 521, 523; Barnett v. State, 23 Okla. Cr. 363, 214 Pac. 948. The record before us discloses that defendant met fully the conditions necessary to secure .immunity under these sections of the Constitution. He had an agreement with the prosecuting authority, which was approved by the court, and in addition he claimed the privilege of silence which was denied by the court with the explanation that, if he testified, he would not be prosecuted by reason of the giving of any evidence which would incriminate him. There is no claim that the testimony given was untruthful or that the witness did not testify fully as to all material facts within his knowledge. When he did that, he was immune from prosecution for and on account of any transaction, matter, or thing concerning which he testified. Where a defendant has met fully the conditions securing him immunity under sections 21 and 27 of the Bill of Rights on account of incriminatory evidence given by him as a witness for the state, and thereafter is prosecuted and convicted in violation of his constitutional right, this court will set aside and reverse the conviction.

The case is reversed and remanded, with instructions to dismiss.

DAVENPORT and CHAPPELL, JJ., concur.


author: CHAPPELL, J.

text:
    WILLIAM ABRAMS v. STATE.
    No. A-7367.
    Opinion Filed Nov. 19, 1930.
    Rehearing Denied Jan. 3, 1931.
    (293 Pac. 1116.)
    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 Comanche county of the crime of rape, and his punishment fixed by the jury at imprisonment in the state penitentiary for six years.

The evidence of the state was that the defendant was a taxi driver in the city of Lawton, 29 years of age, and had been married; that the prosecuting witness, Anna Lee Coosewoon, was an Indian girl under 16 years of age, and attended the Ft. Sill Indian School; that on the night of the crime the prosecuting witness and three other Indian girls ran away from the school about 9 o’clock at night and went into the city of Lawton, and later hired the defendant to take them out to Ft. Sill or some switch near there; that the defendant took the girls out in that general direction, but stopped on a secluded place on a highway and attempted to caress one of the girls; that they all jumped out of the car and started to run; that the prosecuting witness fell down and the defendant overtook her, took her back toward the car, threw her on the ground, and there had intercourse with her; that the other girls ran to a house close by and gave the alarm, and a man named Belt' came back and helped them rescue the prosecuting witness; that, when they returned to the place where the car had been stopped, they discovered the defendant on top of the prosecuting witness on the ground; that the prosecuting witness was weak and nervous, and they took her to Belt’s house and later to the Indian Hospital near Lawton, where Dr. Langheim examined her and testified that she had been ravished; that an examination of the prosecuting witness revealed that she was scratched up considerably, and her hair and clothing were full of weeds and cockleburs. Defendant denied that he had made any assault on the prosecuting witness.

The defendant contends that this evidence is wholly insufficient to support the verdict of the jury. The summary of the state’s evidence set out above is a sufficient answer to this contention.

Defendant next contends that the court erred in permitting the county attorney to attempt to impeach the state’s witness, J. E. Belt, by the nse of the transcript of the evidence taken at the preliminary examination.

This witness in the trial of the case had testified that he could not tell whether the defendant was on top of the prosecuting witness or not. The defendant in cross-examination had materially weakened the evidence he had given in chief, and defendant had questioned him concerning his evidence in the preliminary examination. Thereupon, on redirect examination, the court permitted the state to ask the witness if certain questions had not been asked him and if he had not answered them in a manner different to his answers being given at that time.

The defendant contends that the state could not be permitted to impeach its own witness. It is apparent from the record that the state was not trying to impeach its witness, but trying to have the witness clarify his testimony and get before the jury what he actually saw at the time he came upon the parties lying on the ground.

The scope and method of the examination of a witness is a matter addressed to the sound discretion of the trial court, and a judgment of conviction will not be disturbed because of improper examination of witnesses, unless it clearly appears that the trial court, in the exercise of such, manifestly abused the same. Lee v. State, 7 Okla. Cr. 141, 122 Pac. 1111; Barrow v. State, 17 Okla. Cr. 340, 188 Pac. 351, 9 A. L. R. 207; Campbell v. State, 23 Okla. Cr. 250, 214 Pac. 738; Austin v. State, 28 Okla. Cr. 73, 228 Pac. 1113.

There is nothing in the record in this case to indicate that the court abused its discretion in permitting the county attorney to propound the question objected to on redirect examination of this witness.

Defendant next contends that the trial court erred in refusing to give the following instruction requested by defendant :

“You are advised that if the state had knowledge that there were other witnesses having knowledge pertaining to the offense charged in the information, which was in its power to call, the presumption of law is that such testimony would be unfavorable to the party so failing to call such witness.”

In the case of Pollock v. State, 26 Okla. Cr. 196, 223 Pac. 210, this court said:

“Since defendant may testify in his own behalf and compel attendance of witnesses by compulsory process, and is' entitled to the aid of counsel, at public expense if necessary, refusal to require the county attorney to call an eyewitness whose name is indorsed on the information is not error.”

Certainly, if it is not incumbent upon the part of the state to call and introduce every eyewitness to a tragedy, there can be no presumption of law against the state by failure so to do. The most the failure upon the part of the state to call the witness could do would be to raise a presumption of fact, which the defendant would have a right to argue to the jury. It was not error, therefore, for the trial court to refuse to give the requested instruction.

The defendant complains of other errors, hut they are all without merit.

For the reasons stated, the cause is affirmed.

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


author: CHAPPELL, J. PEE CUEIAM.

text:
    LEE THORNTON v. STATE.
    No. A-7653.
    Opinion Filed Nov. 22, 1930.
    Rehearing Denied Dec. 6, 1930.
    Application for Leave to File Second Petition for Rehearing Denied Jan. 10, 1931.
    (293 Pac. 583.)
    James A. Embry, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Osage county of the crime of burglary, and his punishment fixed by the jury at imprisonment in the state penitentiary for seven years.

Defendant contends first that the court erred in overruling his motion to quash the information, upon the ground that the findings of the examining magistrate were insufficient to authorize the filing of the information in the district court.

When the case was called for trial, defendant filed his motion to quash the information, which motion reads as follows:

“Comes the defendant, Lee Thornton, having first obtained leave of court to move out of time, and moves the court to quash, vacate and set aside the information herein for the following reasons, to wit:
“That the findings of the committing magistrate upon which said information is based are insufficient to authorize the filing of an information giving this court jurisdiction of the subject-matter of the prosecution for the reason that no sufficient or proper finding of the commission of the pretended offense laid in the information was made or entered or any finding of sufficient or probable cause to believe the defendant guilty thereof, as shown by the transcript containing said criminal complaint now on file herein, and which is made a part of this motion by reference.”

Section 2598, C. O. S. 1921, provides:

“To enable the defendant to make proof of the matter set up as grounds for setting aside the indictment or information the defendant may file his application before any court of record in the county, setting out and alleging that he is being proceeded against in a certain court, naming it, and setting out a copy of his motion, and alleging, all under oath, that he is acting in good faith, and praying for an order to examine witnesses in support thereof.”

In the case of Brown v. State, 36 Okla. Cr. 293, 254 Pac. 113, this court said:

“Before a defendant is entitled to be heard in a proceeding to set aside an information, he must bring himself clearly within the provisions of the statute.
“A motion to set aside an information must be duly verified.”

This motion to quash was insufficient because it fails to state the facts required by section 2598, supra, and because the same was not verified. It was not error, therefore, for the trial court to overrule the same.

The defendant next contends that the court erred in permitting the county attorney, over the objection of the defendant, to disclose to the jury certain involuntary statements made to him and other officers, and erred in admitting evidence respecting the same, including exhibits offered in evidence over his objection, being certain property recovered by the officers with the aid of the defendant.

During the progress of the trial it developed from the evidence of the state that after the defendant’s arrest he made certain statements to the officers criminating himself and took the officers to the place where some of the property taken at the time of the burglary was concealed in and about his home. The defendant objected to' the introduction of this evidence for the reason that the purported confession and the obtaining of the property was obtained by threats and coercion and by promise of immunity. In the absence of the jury, the court heard the evidence of the defendant and the state, and upon such evidence found that the confession was made voluntarily and without promise or hope of reward, and admitted the same.

In the case of Tarkington v. State, 41 Okla. Cr. 423, 273 Pac. 1015, 1016, this court said:

“The admissibility of a confession, where it is challenged, is a question solely for the court after hearing, in the absence of the jury, all the evidence on each side respecting the circumstances under which the confession was made; and the court is vested with a large discretion in determining the matter.”

The court had the witnesses before him and could observe their demeanor on the stand, their general conduct and appearance, and their manner of testifying, and was in a much better position to form a just estimate of their truthfulness than we are. The evidence was conflicting and the burden was upon the defendant; and we cannot say upon this record that the court abused its discretion or erred in admitting this evidence.

The defendant next contends that the court erred in directing that the term of imprisonment begin at and from the date of the expiration of the judgment and sentence in State v. Lee Thornton, 49 Okla. Cr. 243, 293 Pac. 585, convicted at the same term of court upon a charge of arson for the burning of the building burglarized in the case at bar.

Section 2303, C. O. S. 1921, provides:

“When any person is convicted of two or more crimes, before sentence has been pronounced upon him for either, the imprisonment to which he is sentenced upon the second or other subsequent conviction must commence at the termination of the first term of imprisonment to which he shall be adjudged, or at the termination of the second or other subsequent term of imprisonment, as the case may be.”

Section 2774, C. O. S. 1921, previ des:

“If the defendant (shall) have been convicted of two or more offenses, before judgment on either, the judgment may be that the imprisonment upon any one may commence at the expiration of the imprisonment upon any other of the offenses.”

In Ex parte Halbert, 45 Okla. C. 167, 282 Pac. 478, this court said:

“Where a defendant is convicted of two or more crimes, Adhere imprisonment is adjudged as a part of the penalty, the sentence in the second or subsequent conviction can run concurrently with the first only in cases where the convictions are had in the two' or more cases before sentences had been pronounced in either, and then where the judgment and sentence in the second or subsequent conviction designates that such sentence shall run concurrently with the judgment'and sentence in the first or prior conviction. Sections 2303, 2774, Comp. Stat. 1921.
“The time fixed for the commencement of a sentence is not one of its essential elements. The essential part of the judgment is the punishment and the amount thereof. The time when it shall commence is in the nature of an award of execution.”

The time when the punishment shall commence being in the nature of an award of execution, it is immaterial upon which of the judgments the defendant shall be first imprisoned, and, since the judgments do not run concurrently, he cannot be discharged until he has suffered the punishment inflicted in each of the judgments.

Since the trial court in pronouncing judgment has provided that the judgments shall not run concurrently, this court is without any authority to1 direct otherwise.

The defendant did not take the witness stand and offered no evidence in the case. It appears that he not only burglarized the home of the complaining witness, but that he also set fire to the building for the purpose of concealing the crime. The defendant had a fair trial. The errors he complains of are insufficient to' require a reversal of the case.

For the reasons stated, the cause is affirmed.

EDWARDS, P. J., concurs.

DAVENPORT, J., absent.

On Application for Leave to File Second Petition for Rehearing.

(295 Pac. 803.)

PEE CUEIAM.

The original opinion in this case was filed November 22, 1930; petition for rehearing was denied December 6, 1930. After considering the application of the defendant for leave to file .the second petition for rehearing, the same is denied.

It appearing to the court that the trial judge who tried the defendant, the assistant county attorney, and the Attorney General have filed statements saying that, if the court thinks the facts justify a modification of the sentence it would be agreeable to them that the judgment be modified to* two years.

It appearing from the record that the defendant was tried for arson and burglary growing out of the same transaction, and that in the arson charge he received a sentence of five years, and in the burglary charge seven •years; the sentences do not run concurrently.

Prom an examination of the record, the facts are sufficient to sustain a conviction, but, in view of the fact that the trial judge, the assistant county attorney, and the Attorney General have filed a statement they had no- objection to- a modification of the sentence, the sentence in this case is modified from seven years to two years.


text:
    JESS JONES v. STATE.
    No. A-7373.
    Opinion Filed Jan. 3, 1931.
    (294 Pac. 827.)

      Ray & Thomas, 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 Comanche county of the crime of larceny of a domestic animal, and his punishment fixed by the court at imprisonment in the penitentiary for the term of two years.

Only two propositions are urged by the defendant as grounds for reversal of the case. The first is that the animal that the defendant was charged with stealing was not a stolen animal; that the animal handled and sold by the defendant was not the animal lost or stolen from the prosecuting witness, Zigler. The second is that, if this animal sold by the defendant was stolen from Zigler, it was not stolen by the defendant and his acts were in good faith, and that he had no guilty knowledge that the animal was stolen.

These two propositions actually go to the sufficiency of the evidence to sustain the conviction.

The state called as witnesses John M. Zigler, the prosecuting witness, John M. Zigler, Jr., and C. D. Jackson, who worked for the prosecuting witness and knew the animal. They all positively identified the animal that this defendant has admitted was handled as the one stolen from Zigler. The prosecuting witness identified the animal, not only by the brand, but by its color and markings and its likeness to its mother. On the other hand, the defendant was equally positive that this animal had belonged to his father who moved it from Gerónimo to near India-lioma, and then south of Cache, from which place defendant afterward moved it to the town of Elgin where it was sold, and found its way through several different hands to Mr. Arnett, at Apache, and that the prosecuting witness is mistaken in identifying this animal as the one that belonged to him.

The record presents a clear conflict of the testimony. The evidence of the state and the suspicious circumstances surrounding the defendant were sufficient, if believed by the jury, to justify them in returning a verdict of guilty against the defendant. The question was one purely for the jury on the conflicting issues of fact. The trial court, having heard the evidence and the arguments on the motion for a new trial, not only let the verdict stand, but imposed the punishment thereunder after the jury had failed to agree on it.

There being no- merit in the contention of defendant that the evidence is insufficient to support the verdict of the jury, and no merit in his claim that the evidence shows he came into possession of the animal without any guilty knowledge and acted in good faith in handling the same, the cause is affirmed.

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


text:
    Q. P. McGHEE v. STATE.
    No. A-7022.
    Opinion Filed Nov. 19. 1930.
    On Rehearing Jan. 6, 1930.
    (294 Pac. 649.)

      J. G. Austin and Preston S. Davis, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and P. K. Morrill, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Craig county of aiding a felon, and was sentenced to serve a term of seven years in the state penitentiary.

The prosecution is based on section 1621, Comp. Stat. 1921, which is as follows:

“Any person who shall knowingly feed, lodge, clothe, arm, equip in whole or in part, harbor, aid, assist or conceal in any manner any person guilty of any felony, or outlaw, or fugitive from justice, or any person seeking to escape arrest for any felony committed within this state or any other state or territory, shall be punished by imprisonment at hard labor in the penitentiary for a period not exceeding ten years.”

A brief resume of such of the evidence for the state as deemed material to state is: That in 1926 one E. L. White had stolen an automobile at Fairfax, Okla., and had taken it to Ft. Scott, Kan., where, after an exchange of shots with officers, he was apprehended and the car recovered. That there was also apprehended with him one K. L. Ayres, wanted in both Ottawa and Pittsburg counties on charges of burglary. Defendant was a practicing attorney, and had formerly represented Ayres, and was his bondsman in Ottawa county. Soon after the arrest of White and Ayres and their incarceration at Ft. Scott, Ayres and probably White also called for defendant to represent them. He went to Ft. Scott, and they conferred. Te then returned to Miami, and on the following day his codefendant Burns, also an attorney, went to the village of Ketchum, in Oraig county, and assisted in filing a criminal charge against White before their codefendant Sexton, who was a justice of the peace, and procured from him a warrant for White. The criminal complaint before Sexton was sworn to by one Lester Sloan, who had lost $350 in Liberty bonds in a burglarizing of the bank at Ketchum some three or more years before. This proceeding before Sexton in Craig county was without the knowledge either of the county attorney or sheriff of Craig county. Sloan was induced to sign the complaint on the statement to him by Sexton that the man who had his bonds was in jail at Ft. iScott and by so doing he would be brought back to Ketchum and the bonds recovered. The stolen bonds at the time, however, were in the possession of defendant and one Yeargain at Miami. At the same time White was wanted by the federal authorities and also by the authorities of Osage county. Defendant, Sexton, and Frank Warner, a deputy sheriff of Ottawa county, went to Ft. Scott to get White and Ayres, who were turned over to them. Defendant at the time paid the Kansas officers $250 as a reward for the apprehension of White and Ayres. Accompanied by a Kansas police officer, they returned with them to Miami, Ottawa county, put them in jail there over night, and next day White was taken to Ketchum, was released on bond by Sexton, and he then faded from the picture. Sexton made no record of the case, if such it may be termed. Some of the facts shown by the state’s evidence are admitted by defendant and explained; some are denied.

The first contention of defendant is that the information is indefinite and does not state facts sufficient to constitute a public offense. It is the theory of the state that this entire proceeding by which the custody of White and Ayres was procured by defendant, Burns, and Sexton was for the purpose of enabling them to escape and avoid prosecution. The information covers about five and a half typewritten pages, and is too lengthy to be set out; it contains many repetitions, and is somewhat involved, and might well have been more definite. It charges in substance, the facts above stated; that is, that defendant and Burns were attorneys at law and Sexton a justice of the peace, having knowledge that White was an outlaw and fugitive from justice, and was guilty of a felony, and was wanted in the state of Oklahoma, and was seeking to> escape prosecution and punishment, and had been apprehended and was in jail at Ft. Scott, Kan., without the knowledge of the county attorney or sheriff, and without any intention of prosecuting in such proceeding, they conspired together to procure a false and bogus complaint to be filed with their co-defendant Sexton against White and to' have a false and bogus warrant issued thereon, and with such warrant went to Ft. Scott, Kan., and there secured the person of White, brought him back to the city of Miami, held him in jail over night, and then took him before their codefendant Sexton at Ketchum and procured-his release, and did thereby assist in liberating and discharging the said White.

The rules for criminal pleading in this state are quite liberal. Sections 2555, 2564, 2943, Comp. Stat. 1921; Warren v. State, 24 Okla. Cr. 6, 215 Pac. 635; Martin v. State, 35 Okla. Cr. 248, 250 Pac. 552; Scott v. State, 40 Okla. Cr. 296, 268 Pac. 312. Defendant is apprised that he is charged to have acted with his codefendants in aiding a fugitive to escape by the sharp practice of initiating a bogus prosecution before a justice of the peace and under1 such proceedings getting custody of such fugitive, thereby preventing delivery of him to the state or its officers who might honestly prosecute him. Any person of common understanding must- know this from reading the information. Courts sometimes indulge the fiction of saying an .indictment or information does not impart such knowledge, when it does so but where the allegations are verbose, involved, or inaptly stated. This information is not a model, but it is legally sufficient. See Cole v. State, 15 Okla. Cr. 361, 177 Pac. 129; State v. Franks, 21 Okla. Cr. 213, 206 Pac. 258; Huckaby v. State, 22 Okla. Cr. 376, 211 Pac. 525.

The next contention made is that the evidence is insufficient, that section 1621, supra, merely makes accessories after the fact guilty of a substantive offense and that the law and the construction placed thereon by other states applicable to accessories after the fact becomes applicable and must control in the construction of section 1621; that so construed and considered in order to' convict there must be proof of direct personal assistance to the fugitive to enable him to escape, citing 16 C. J. Criminal Law, § 133; State v. Doty, 57 Kan. 835, 48 Pac. 145; State v. Jett, 69 Kan. 788, 77 Pac. 546; People v. Pedro, 19 Misc. Rep. 300, 43 N. Y. S. 44; Street v. State, 39 Tex. Cr. R. 134, 45 S. W. 577; Hightower v. State, 78 Tex. Cr. R. 606, 182 S. W. 492; that this section was adopted by the territorial Legislature in 1903 to meet a condition under which a practice had grown up among the criminal element of Indian Territory in seeking refuge, aid, and comfort across the line in Oklahoma territory; that the statute was intended to put a stop to such condition; that the related statute, Comp. Stat. 1921, discloses this purpose, such related statute being sections 1522, 1524, 1611, 1622, 1649, 1651, and 1652.

It is argued that any other construction would make a felon of one who gave to the close member of his family food, clothing, shelter over night, or the like, or if he carried a message, assisted in making bond, gave him advice, or did such acts as are consonant with kindness and good heart; that the information alleges no' personal aid given by defendant to White. The most favorable view of the substance of the charge is (we quote from defendant’s brief) that:

“White stole a car in Osage county, Okla., and was arrested in Kansas. McGhee knew of the theft and his arrests, and was immediately fired with desire to help White; to that end he consulted Burns, got in touch with Sexton in some manner and between them all had Sloan swear out a warrant for White for robbery in Oklahoma without doing the county attorney the honor of consulting him, the whole purpose 'being to heap such fire of coals upon the head of White that the Osage authorities would forget their troubles. With this in view the said McGhee took Sexton and his warrant to Fort Scott, and there after a time they succeeded in showing a better right to- White and gained consent to have him sent back with Sexton which was done and he was lodged in pail at Miami, Okla., and the next morning he was allowed bond and released under bond. That Sexton thereafter did not properly pursue the case or report same.”

Defendant then demands the state show one act on the part of defendant which falls within the condemnation of any decision of any court as being a crime of accessory after the fact or as being such crime under separate substantive law. Conceding that the construction of the law contended for is correct, in answer it may be said, though we repeat somewhat in doing so, that, if defendant, Burns, and Sexton were acting together, the acts of all are the acts of each one. It is held by many decisions of this court that slight evidence of collusion, that is, any evidence which fairly tends to prove a conspiracy, is all the law requires to admit the acts and declarations of a coconspirator; when such collusion is shown, any party to the conspiracy is considered in law as having been a party to the transaction, even though not present at the time of its commission. The evidence in this case strongly tends to show a concert of action and collusion between defendant and his codefendants. We gather from a careful reading of the record that defendant was, in fact, the master mind of the trio. Then if the plan is formed to prevent White, the fugitive from justice, from being prosecuted in Oklahoma, and the three for the purpose of carrying out such plan, without the knowledge of the county attorney or the sheriff, have a complaint filed and a warrant issued in Craig county, and without any intention of prosecuting the case so filed, but for the purpose of getting custody and of enabling him to escape, and with such warrant and for such purpose go into the state of Kansas and there the defendant, to procure the delivery of White to him and his codefendants, pays a reward to the officers of Kansas, and defendant and his codefendant Sexton then take White in a car driven by defendant and return him to Oklahoma and enlargé him on bond without notice to the county attorney or sheriff and with no record of the proceeding before the justice, thereby preventing prosecution, there is personal physical aid. Since the evidence shows that the three jointly charged acted together to aid White to escape, we are constrained to hold that it is sufficient.

Errors in the admission of evidence and in the instructions of the court and in the failure to give requested instructions and other assignments are argued in the briefs. We have examined each of the assignments in detail; as is to be expected in the ruling on many closely contested points, there are errors here and there in the record. None of them is of sufficient importance to call for special discussion, and none of them discloses any material prejudice to defendant.

Upon a consideration of the entire record, we conclude that the information is sufficient to charge an offense under the statute, that the evidence sustains the charge, and that defendant was fairly tried.

The case is affirmed.

On Petition for Rehearing.

Plaintiff in error in his petition for rehearing earnestly contends that the statute upon which the prosecution is based, section 1621, Comp. Stat. 1921, is unconstitutional. This was not urged in the briefs in the first instance, so was not discussed in the opinion. The statute has been treated as a valid statute in the Cole Case, the Franks Case, and the Huckaby Case, cited in the opinion. We are not impressed with argument now made that the statute is void. It is not in conflict with the federal or the state Constitution, and is valid.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    JEFF D. SEXTON v. STATE.
    No. A-7031.
    Opinion Filed Nov. 19, 1930.
    On Rehearing Jan. 6, 1931.
    (294 Pac. 652.)
    Jess L. Ballard, and E. B. Hunt, for plaintiff in error.
    Edwin Dabney, Atty Gen., and P. K. Morrill, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Craig county of aiding a felon, and was sentenced to- serve a term of one year in the state penitentiary.

This is a companion case to No. A-7022, McGhee v. State, 49 Okla. Cr. 387, 294 Pac. 649, just decided. The information in that case is the same as in the instant case. What was there said as to the sufficiency of the information, the statement of facts, and the matters proven are applicable in this case. The evidence on the part of the state in this case is substantially the same as in the Mc-Ghee Case. Defendant did not take the stand, and offered no testimony. No explanation is made of his acts, nor his failure to make a record- of the proceedings by which the custody of White, the fugitive, was obtained. No material error is made to appear.

The case is affirmed.

On Petition for Rehearing.

Plaintiff in error in his petition for rehearing earnestly contends that the statute upon which the prosecution is based, section 1621, Comp. Stat. 1921, is unconstitutional. This was not urged in the briefs in the first instance, so was not discussed in the opinion. The statute has been treated as a valid statute in the Cole Case, the Franks Case, and the Huckaby Case, cited in the opinion. We are not impressed with argument now made that the statute is void. It is not in conflict with the federal or the state Constitution, and is valid.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    FRANK R. BURNS v. STATE.
    No. A-7173.
    Opinion Filed Nov. 19, 1930.
    On Rehearing Jan. 6, 1931.
    (294 Pac. 653.)
    J. G. Austin and Preston S. Davis, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and P. K. Morrill, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Craig county of aiding a felon, and was sentenced to serve a term of six months in the state penitentiary.

This is a companion case to No. A-7022, McGhee v. State, 49 Okla. Cr. 387, 284 Pac. 649, just decided. The information in that case is the same as in the instant case. What was there said as to the sufficiency of the information, the statement of facts, and the matters proven are applicable in this case. The evidence on the part of the state in this case is substantially the same as in the McGhee Case. An examination of the record indicates that this defendant took a less active part in procuring the custody of White, the fugitive, from Kansas authorities and in aiding his escape than either of his codefendants. This fact, no doubt, accounts for the light sentence imposed. No material error is made to appear.

The case is affirmed.

On Petition for Rehearing.

Plaintiff in error in his petition for rehearing earnestly contends that the statute upon which the prosecution is based, section 1621, Comp. Stat. 1921, is unconstitutional. This was not urged in the briefs in the first instance, so was not discussed in the opinion. The statute has been treated as a valid statute in the Cole Case, the Pranks Case, and the Huckaby Case, cited in the opinion. We are not impressed with argument now made that the statute is void. It is not in conflict with the federal or the state Constitution, and is valid.

DAVENPORT and CHAPPELL. JJ.. concur.


author: EDWABDS, P. J.

text:
    T. B. YATES v. STATE.
    No. A-7536.
    Opinion Filed Jan. 10, 1931.
    (297 Pac. 306.)
    Glaseo* & Glaseo, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWABDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of McClain county of transporting intoxicating liquor, and was sentenced to* pay a. fine of $100 and to serve 30 days in the county jail.

The case was tried in May, 1929, and the appeal was lodged in this court in September, 1929. No briefs in support of the appeal have been filed, nor was there any appearance for oral argument at the time the case was submitted.

Where an appeal is brought to this court upon conviction for a misdemeanor and no briefs are filed and no appearance for oral argument made when the case was set for submission, this court will examine the record for jurisdictional or fundamental errors, and, if none appear, and the evidence supports the judgment, it will be affirmed.

The case is affirmed.

DAVENPOBT and CHAPPELL, JJ., concur.


text:
    JOHN HINSON v. STATE.
    No. A-7681.
    Opinion Filed Jan. 10, 1931.
    (294 Pac. 1094.)
    Hudson & Coker, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of McCurtain county of selling whisky, and was sentenced to pay a fine of $100 and to serve 30 days in the county jail.

The case was tried in September, 1929, and the appeal was lodged in this court in December, 1929. No briefs in support of the appeal have been filed, nor was there any appearance for oral argument at the time the case was submitted.

Where an appeal is brought to this court from a conviction, and no briefs are filed in behalf of plaintiff in error, and no appearance for oral argument made when the case was set for submission, this court will examine the record for jurisdictional errors, and, if none appear, and the evidence supports the judgment, it will be affirmed. No material error is apparent.

The case is affirmed.

DAVENPORT and CHAPPELL. JJ.. concur.


text:
    MRS. ED NANCE v. STATE.
    No. A-7466.
    Opinion Filed Jan. 10, 1931.
    (294 Pac. 1095.)
    Sid White and Leo J. Canavan, 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 Beckham county of the unlawful sale of intoxicating liquor, and her punishment fixed by the jury at a fine of $250 and imprisonment in the county jail for a period of 30 days.

The charging part of the information reads as follows:

“That one Mr. Ed Nance late of the county aforesaid, on or about the 8th day of March 1929, in the county of Beckham and state of Oklahoma, did then and there unlawfully, knowingly, willfully and unlawfully sell one-half gallon of spirituous, vinous, fermented malt and intoxicating liquors, to wit: one-half gallon of corn whisky to one Clarence Summers, contrary to the form of the statutes in such cases,” etc.

The defendant raises but one question, and that is the sufficiency of the evidence.

Clarence Summers, testifying for the state, swore that he bought one-half gallon of com whisky from the defendant and paid her $3 for the same. This witness was corroborated by one Wilbert New, who testified to the same state of facts. The state, after identifying the whis-ky, offered the same in evidence, after the witness Summers had testified that that was the whisky he purchased from the defendant.

The defendant argues that there is a fatal variance between the charge as to whisky and the proof offered by the state, which claim is based on the following question ánd answer propounded to the witness Summers on cross-examination :

“Q. What kind of whisky is this you bought? A. I am not able to say, it is whisky.”

Defendant argues that the state wholly failed to prove that the purchase was whisky because of this answer. There is no merit in this contention, as shown both by the direct testimony of the witness, who swore positively that he bought whisky from the defendant, and in the answer set out by defendant’s counsel, where he in effect swears to the same thing.

The evidence being sufficient to support the verdict of the jury, the cause is affirmed.

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


text:
    JIM CAVENS v. STATE.
    No. A-7703.
    Opinion Filed Jan. 10, 1931.
    (294 Pac. 1096.)

      Brown & Brown, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Carter county of selling intoxicating liquor, and was sentenced to pay a fine of $100 and to serve 60 days in the county jail.

The case was tried in November, 1929, and the appeal was lodged in this court in January, 1930. No briefs in support of the appeal have been filed, nor was there any appearance for oral argument at the time the case was submitted.

We have examined the record; the evidence is sufficient to- sustain the conviction. No< jurisdictional or fundamental error is apparent.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    ROQUE SERBANTES v. STATE.
    No. A-7639.
    Opinion Filed Jan. 10, 1931.
    (294 Pac. 1096.)

      Mathers & Mathers, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWABDS, P. J.

The plaintiff in error was convicted in the district court of Comanche county of rape, and was sentenced to serve 15 years in the penitentiary.

The judgment of conviction was rendered in May, 1929, and the appeal was lodged in this court in November, 1929. No briefs in support of the appeal have been filed, and no appearance for oral argument made at the time the case was submitted.

Where an appeal from a conviction for a felony is prosecuted to this court and no briefs in support of it are filed nor oral argument made, this court will not search the record to discover error upon which to predicate a reversal, but will examine the record for jurisdictional or fundamental errors and to ascertain if the evidence reasonably supports the verdict and judgment. In this case we have examined the record with care, and have read closely the testimony. We find no jurisdictional or fundamental errors, and find abundant evidence to sustain the verdict and judgment.

The case is affirmed.

DAVENPOBT and CHAPPELL, JJ., concur.


text:
    T. B. RICHARDSON v. STATE.
    No. A-7630.
    Opinion Filed Jan. 10, 1931.
    (294 Pac. 1096.)
    John T. Levergood, for plaintiff in error.
    J. Berry King, Atty. Gen., for the iState.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Pottawatomie county of the crime of robbery with firearms, and wag gentenced to gerve a term of 15 yearg in the gtate penitentiary.

The judgment of conviction wag rendered in June, 1929, and the appeal wag lodged in this court in November, 1929. No briefg in support of the appeal have been filed, and no appearance for oral argument was made at the time the case was submitted.

Where an appeal from a conviction for a felony is prosecuted to this court and no briefs in support of it are filed nor oral argument made, this court will not search the record to discover some error upon which to predicate a reversal, but will examine the record for jurisdictional or fundamental errors and to ascertain if the evidence reasonably supports the verdict and judgment. In this case we have examined the record with care and have read closely the testimony. We find no jurisdictional or fundamental errors, and find abundant evidence to sustain the verdict and judgment.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    CLOVER DUNN v. STATE.
    No. A-7701.
    Opinion Filed Jan. 10, 1931.
    (294 Pac. 1097.)
    H. E. St. Clair and Prentiss E. Rowe, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error was convicted in the county court of Noble county of having possession of intoxicating liquor, and was sentenced to pay a fine of flOO and to serve 60 days in the county jail.

The case was tried in September, 1929, and the appeal was lodged in this court in January, 1930. No briefs in support of the appeal have been filed, nor was there any appearance for oral argument at the time the case was submitted.

Where an appeal from a conviction for a misdemean- or is brought to this court, and no briefs in support of the same are filed nor oral argument made, this court will not search the record to discover some error upon which to predicate a reversal, but will examine the record for jurisdictional or fundamental errors and to ascertain if the evidence reasonably supports the verdict and judgment. We find no' jurisdictional or fundamental error and that the evidence sustains the verdict and judgment.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    CLINT WELCH v. STATE.
    No. A-7720.
    Opinion Filed Jan. 10, 1931.
    (295 Pac. 234.)
    Wm. T. Powell, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district conrt of Cotton county of selling- intoxicating liquor to a minor, and was sentenced to serve two and one-half years in the penitentiary.

The judgment of conviction was rendered in October, 1929, and the appeal was lodged in this court in January, 1930. No briefs in support of the appeal have been filed and no appearance for oral argument was made at the time the case was submitted.

Where an appeal from a conviction for a felony is prosecuted to this court and no briefs in support of it are filed nor oral argument made, this court will not search the record to discover some error upon which to predicate a reversal, but will examine the record for jurisdictional or fundamental errors and to ascertain if the evidence reasonably supports the verdict and judgment. In .this case, we have examined the record with care and have read closely the testimony. We find no jurisdictional or fundamental errors and find abundant evidence to sustain the verdict and judgment.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    PAUL CHAMBERS v. STATE.
    No. A-7633.
    Opinion Filed Jan. 10, 1931.
    (295 Pac. 234.)

      Phillips & LaMore, for plaintiff in error.
    J. Berry King, Átty. Gen., for the State.
   EDWARDS, P. J.

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

The case was tried in September, 1929, and the appeal was lodged in this court in November, 1929. No briefs in support of the appeal have been filed, nor was there any appearance for oral argument at the time the case was submitted.

Where an appeal is prosecuted to this court and no brief in support of the petition in error is submitted and no appearance for oral argument made, this court will examine the record for jurisdictional errors and will read the evidence to ascertain if it reasonably supports the judgment, and if no fundamental error is apparent and the evidence is sufficient, the case will be affirmed.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


author: PER CURIAM.

text:
    Ex parte KATE TISDELL.
    No. A-8053.
    Opinion Filed Jan. 10, 1931.
    (295 Pac. 1119.)

      Robert N. Allen, for petitioner.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for respondent.
   PER CURIAM.

This is an original proceeding in habeas corpus. Petitioner alleges she is unlawfully restrained by the sheriff of Atoka county under a void commitment issued by a justice of the peace of that county on a judgment of guilty of a misdemeanor before said justice. The state has demurred. We perceive no reason why the commitment is void.

The writ is denied.


text:
    A. B. JEAN v. STATE.
    No. A-7648.
    Opinion Filed Jan. 10, 1931.
    (295 Pac. 233.)
    Clay Snodgrass, 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 Greer county of the crime of unlawful possession of intoxicating liquor, and his punishment fixed by the jury at a fine of |400 and imprisonment in the county jail for a term of 90 days.

Defendant contends, first, that where he makes a timely motion to exclude evidence obtained by reason of an allegedly void search warrant, he should, be permitted to make proof to sustain said motion, and that, if the proof so adduced shows that the search warrant was void, the evidence obtained by said search warrant should be excluded.

It appears from the record that the defendant filed his motion to suppress the evidence obtained under the search warrant, first, because the affidavit and search warrant were insufficient on their face to authorize a search of defendant’s premises; and, second, because, the search warrant having been served on Sunday the service was illegal and the evidence obtained by said search warrant inadmissible.

The trial court refused to permit the defendant to make any showing on the motion to suppress the evidence, holding that the evidence was admissible, search warrant or no search warrant, and further holding that that court was not bound by the decisions of the Criminal Court of Appeals. In this the honorable trial judge is mistaken. The Criminal Court of Appeals being the court of last resort in criminal cases, and having exclusive jurisdiction on appeal in the same, its interpretation of the laws of the state is binding on all courts of the state. Defendant’s motion to suppress the evidence being sufficient on its face, it was error for the trial court to refuse to permit Mm to introduce any evidence in support of said motion.

In the case of Laub v. State, 49 Okla. Cr. 171, 292 Pac. 891, this court held that a search warrant could be legally served on Sunday only in those cases coming within -he exceptions provided by law, and that such exceptions must be made to appear in the affidavit and search warrant.

Defendant next contends that the court erred in overruling his motion to quash the panel of the jury. It appears from the record that the defendant had been tried at the same term of court upon a charge of selling intoxicating liquor, and that four of the jurors who served in that trial were impaneled as jurors in the case at bar, after the defendant had exhausted his three peremptory challenges. This court has held it to 'be reversible error for the trial court, over the objection of defendant, to impanel a jury for the trial of the defendant from among those who had sat as jurors in the trial of a similar case against him at the same term of court. Popp v. State, 44 Okla. Cr. 220, 280 Pac. 478; Moffitt v. State, 45 Okla. Cr. 440, 283 Pac. 1027.

For the reasons stated, the cause is reversed and remanded, with directions to the trial court to hear the defendant’s evidence on his motion to suppress, and to proceed according to law in the trial of said case.

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


text:
    LON CLUTTER v. STATE.
    No. A-7743.
    Opinion Filed Jan. 10, 1931.
    (295 Pac. 230.)
    Clifford W. Ferguson, for plaintiff in error.
    J. Berry King, Atty. Gen., for tbe State.
   EDWARDS, P. J.

Tbe plaintiff in error was convicted in tbe county court of Texas county of selling intoxicating liquor, and was sentenced to pay a fine of $100 and to serve three months in the county jail.

Tbe case was tried in October, 1929, and tbe appeal was lodged in this court in February, 1930. No briefs in support of the appeal have been filed, nor was there any appearance for oral argument at tbe time tbe case was submitted.

Where an appeal from a conviction for a misdemean- or is brought to this court, and no briefs are filed, and no appearance for oral argument made when tbe case is set for submission, this court will examine tbe record for jurisdictional or fundamental errors. If none appear, and tbe evidence reasonably supports the judgment, it will be affirmed.

Tbe case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    FLOYD SMITH v. STATE.
    No. A-7742.
    Opinion Filed Jan. 10, 1931.
    (295 Pac. 230.)
    C. H. Glazner, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error was convicted in the county court of McIntosh county of having possession of intoxicating liquor, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

The case was tried in October, 1929, and the appeal was lodged in this court in February, 1930. No briefs in support of the appeal have been filed, nor was there any appearance for oral argument at the time the case was submitted.

Where an appeal from a conviction for a misdemeanor is filed in this court, and no briefs in support of the same filed nor oral argument made, this court will not search the record to discover some error upon which to' predicate a reversal, but will examine the record for jurisdictional or fundamental errors, and to ascertain if the evidence reasonably supports the verdict and judgment. We find no jurisdictional or fundamental error, and find that the evidence sustains the verdict and judgment.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    JACKSON JORDAN v. STATE.
    No. A-7730.
    Opinion Filed Jan. 10, 1931.
    (295 Pac. 229.)
    L. C. McLean, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Garfield county of having possession of intoxicating liquor and was sentenced to pay a fine of $100 and to serve 30 days in the county jail.

The case was tried in November, 1929, and the appeal was lodged in this court in February, 1930. No briefs in support of the appeal have been filed, nor was there any appearance for oral argument at the time the case was submitted.

Where an appeal is brought to this court upon conviction for a misdemeanor, and no briefs are filed in behalf of plaintiff in error, and no appearance for oral argument made when the case was set for submission, this court will examine the record for jurisdictional errors, and if none appear, and the evidence supports the judgment, it will be affirmed. No material error is apparent in this case.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    W. R. GRIFFIN v. STATE.
    No. A-7564.
    Opinion Filed Jan. 10, 1931.
    (295 Pac. 229.)
    Wade S. Stanfield and A. L. Harbison, for plaintiff in error.
    J. Berry King, Atty. Gen., for the ¡State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted of robbery and was sentenced to serve 20 years in the penitentiary.

The case was tried in March, 1929, and the appeal was lodged in this court September, 1929. No briefs in support of the appeal have been filed, nor was there any appearance for oral argument at the time the case was submitted.

Where an appeal is brought to this court upon conviction for a felony, and no briefs are filed, and no appearance for oral argument made when the case was set for submission, this court will examine the record for jurisdictional or fundamental errors, and if none appear, and the evidence supports the judgment, it will be affirmed.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ„ concur.


text:
    C. P. KNOPP v. STATE.

      No. A-7358.

      Opinion Filed Jan. 10, 1931.

    (295 Pac. 228.)
    Edwards & Robinson and Joe Adwon, 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 Canadian county of tbe crime of unlawful possession of a still worm, and bis punishment fixed by tbe jury at a fine of $50 and imprisonment in tbe county jail for a period of 30 days.

Tbe evidence of tbe state was that tbe officers bad a search warrant for defendant’s premises, and on searching tbe same found a barrel of mash and another barrel partly filled with mash in a bole in tbe ground right beside tbe dining room at tbe south side of tbe bouse; that this mash was tbe kind used to make whisky; that they also found a still worm in an outhouse about 50 feet from tbe defendant’s residence; that this worm was fastened in a large ice cream packer, with tbe worm inside tbe pipe, and it was covered up with rags and sacks.

Tbe defendant took tbe witness stand and denied knowing that tbe worm was on bis place, and bis son-in-law, one C. E. Jones, testified that tbe still worm belonged to him and that be bad taken it upon tbe premises without tbe knowledge of defendant.

Defendant argues first that tbe evidence of tbe state was not sufficient to support tbe verdict of tbe jury.

Tbe credibility of tbe witnesses and tbe weight to be given their testimony was for tbe jury. They were not bound to believe tbe evidence of tbe defendant nor of bis son-in-law. Tbe evidence of tbe state made out a prima facie case and tbe jury were justified, if they believed this evidence, in finding tbe defendant guilty.

Tbe defendant next contends that tbe court erred in pronouncing judgment on tbe verdict of tbe jury, which reads as follows:

“In tbe County Court, in and for Canadian County, State of Oklahoma.
“State of Oklahoma, Plaintiff, v. C. F. Knopp, Defendant. Case No. 6917.
“We, the jury, impaneled and sworn to try the issues in the above entitled cause, do, upon our oaths, find the defendant, C. F. Knopp, guilty of the unlawful possession of a still worm as charged in the information herein, and affix his punishment at a term of 30 days in the county jail, and by a fine of $50. We, the jury, recommend that the jail sentence of 30 days be suspended by the court.
“H. E. Bonebrake, Foreman.”

The trial court not only was not bound to follow the recommendations of the jury, but he had no legal right to do so, since the jury itself had assessed the smallest punishment possible under the law. If the jury had assessed a punishment greater than the minimum, the recommendation of the jury might have appealed to the trial judge, although he was not under any legal obligation to follow the same. While the verdict is informal, it is not illegal and was sufficient to authorize the court to pronounce judgment thereon.

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

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


text:
    EDWARD HORNSBURGER v. STATE.
    No. A-7582.
    Opinion Filed Jan. 10, 1931.
    (295 Pac. 225.)

      Cicero I. Murray, Henry Hinkle, Jr., Mac Q. Williamson, and Jobn Garrison, for plaintiff in error.
    J. Berry King, Atty. Gen., for tbe State.
   EDWARDS, P. J.

Tbe plaintiff in error, hereinafter called defendant, was convicted in tbe district court of McClain county of assault with a dangerous weapon, and was sentenced to serve a term of three years in tbe penitentiary.

Tbe case was tried in March, 1929, and tbe appeal was lodged in this court in September, 1929. No briefs in support of tbe appeal have been filed, nor was there any appearance for oral argument at the time tbe case was submitted.

Where an4 appeal is brought to this court upon conviction for a felony, and no briefs are filed, and no appearance for oral argument made when tbe case was set for submission, this court will examine the record for jurisdictional or fundamental errors, and if none appear, and tbe evidence supports tbe judgment, it will be affirmed.

The case is affirmed.

DAVENPORT and CHAPPELL, J,J., concur.


text:
    JOE HOCHDERFFER et al. v. STATE.
    No. A-7735.
    Opinion Filed Jan. 17, 1931.
    (295 Pac. 236.)
    Howard F. Wilson, for plaintiffs in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiffs in error, hereinafter called defendants, were convicted in the county court of Kay county of the offense of unlawful possession of intoxicating liquor, and their punishment fixed 'by the jury at a fine of $50 each and imprisonment in the county jail for 30 days each.

The evidence of the state was that the officers having a search warrant searched the warehouse of the defendants and found concealed therein 140 gallons of whisky, 9 gallons of alcohol, a copper blending vat with capacity of from 75 to 100 gallons, some empty kegs and fruit jars, and a large number of empty bottles, together with some .paraphernalia and seals to be placed on bottles when filled.

The defendants did not take tbe witness stand and offered no evidence in their defense.

The defendants first contend that the court erred in permitting the state to indorse the name of the witness Carroll Bengsten upon the information after the trial had started.

It appears from the record that the case was called for trial on the 23d day of October, 1929; that both the state and the defendants announced ready for trial, and a jury was duly impaneled. The opening statement of the state and of the defendants was made, and thereupon the state called as witnesses Bill Padgett, Harold J. Meade, F. D. Irby, and Carroll Bengsten. At the time the witness Bengsten was called, the defendants objected for the reason that the name of the witness was not indorsed on the information. A hearing was had on this question out of the presence of the jury, and it was made to appear by the state that this witness’ name had been indorsed on the information, by the county attorney, the day before the trial began, but that permission to indorse the name had not been obtained from the trial court. It was further made to appear by the state that the state knew of this witness, but had not known his name, and that the sheriff had gone to' Tonkawa on the day before the trial and, after a search, had found the witness and brought him to New-kirk, and that it was then that the county attorney for the first time learned the name of this witness and was able to indorse the name on the information, and such name was by the county attorney indorsed on the information which was placed in the file of the court, where defendants and their counsel had opportunity to see it.

Upon this showing, the court approved the indorsement of the name of the witness on the information as made by the county attorney and permitted tbe witness to testify in chief.

It is reversible error in a misdemeanor case for the trial court, over the objection of the defendant, to permit a witness whose name has not been indorsed on the information, to testify in chief for the state. But the court in the exercise of its discretion may permit the indorsement of the name of the witness by the state upon the information where it appears that, without plan or design on the part of the state, the name was accidentally omitted, or that the state had not learned the name of the witness until after the trial was begun, or in any case where it appears that the state has used due diligence in procuring the name of the witness and having it indorsed upon the information. .Steen v. State, 4 Okla. Cr. 309, 111 Pac. 1097; Hawkins v. State, 6 Okla. Cr. 308, 118 Pac. 607; Leigh v. State, 34 Okla. Cr. 338, 246 Pac. 667.

The trial court did not err in permitting the witness Bengsten to testify in the trial of the case.

Defendant next contends that the evidence is insufficient to support the verdict of the jury. There is no merit in this contention.

For the reasons stated, the cause is affirmed.

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


text:
    J. J. DOYLE v. STATE.
    No. A-7539.
    Opinion Filed Jan. 17, 1931.
    (295 Pac. 237.)

      M. D. Hartsell, 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 Pottawatomie county of the crime of unlawful possession of intoxicating liquor, and his punishment fixed by the jury at a fine of $100 and imprisonment in the county jail for one month.

The evidence of the state was that the officers had a search warrant and on searching the premises they found about a gallon of whisky, 12 gallons of home-brew beer, a large number of empty beer bottles, and several empty whisky bottles in defendant’s residence, which was a six-room bungalow at No-. 126 South Minnesota.

The defendant filed a motion to suppress the evidence, alleging, among other grounds, that the description in the affidavit and search warrant was insufficient to authorize a search of the premises.

This description is wholly insufficient as failing to state the name of the town in which the premises were located. The officers could not tell from this description in what particular town in Pottawatomie county 126 .South Minnesota was located. Under this description the officers might have searched that number in one or more of the numerous towns in Pottawatomie county.

This court has repeatedly held that the description in the affidavit and search warrant must 'be such that the officers,' without the aid of any other information than that contained in the search warrant, could locate the premises to be searched. White v. State, 43 Okla. Cr. 275, 277 Pac. 946; Overstreet v. State, 46 Okla. Cr. 68, 283 Pac. 1032; Smithson v. State, 48 Okla. Cr. 204, 290 Pac. 568.

The description in the search warrant being insufficient to authorize a search of defendant’s premises, the trial court erred in overruling defendant’s motion to suppress the evidence and in admitting the same.

There being no legal evidence in the record to support the verdict of the jury, the cause must be reversed.

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


author: DAVENPORT, P. J.

text:
    CLINT WELCH v. STATE.
    No. A-7690.
    Opinion Filed Jan. 17, 1931.
    (295 Pac. 238.)

      Wm. T. Powell, 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 in the district court of Cotton county, on a charge of possession of intoxicating liquor, with intent to sell or otherwise furnish the same, contrary to the statutes in such cases made and provided, this being a second and subsequent conviction of a violation of the prohibitory laws of the state; and was sentenced to pay a finé of $100, and to serve a term of three years in the penitentiary. From the judgment and sentence the defendant has appealed to this court.

The appeal in this case was filed on the 16th day of December, 1929. No brief has been filed on behalf of the defendant, and no appearance made for oral argument. Where no brief is filed and no appearance made for the defendant, the court will consider the appeal is without merit or has been abandoned.

An examination of the record shows there are no fundamental or prejudicial errors. The judgment is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    LESTER WHITE v. STATE.
    No. A-7390.
    Opinion Filed Jan. 17, 1931.
    (295 Pac. 238.)

      R. R. Rittenhouse, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted in the district court of Lincoln county of the crime of selling intoxicating liquor, to wit, choctaw beer, to Amel Baucom, a minor 18 years of age, and was sentenced to pay a fine of $200, and be imprisoned in the county jail for six months. Prom which judgment the defendant has appealed to> this court.

The offense is alleged to have taken place on the 12th day of August, 1928, and the testimony shows that the prosecuting witness Amel Baucom was 18 years of age at the time. The witness Baucom and Emery Foster testify they went to the home of the defendant, on the date alleged in the information, and purchased a half gallon of chock beer and drank the same and became intoxicated; later on in the day they bought another half gallon from the defendant.

The defendant denies he sold anything to the prosecuting. witness, and further denies that he was at home on that date. The testimony is conflicting. The jury by its verdict decided the conflict in favor of the state.

Several errors are assigned by the defendant alleged to have been committed by the trial court. After a careful examination of the errors assigned, we bold they do not possess sufficient merit to warrant a reversal.

The judgment is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    BEN WALKER v. STATE.
    No. A-7687.
    Opinion Filed Jan. 17, 1931.
    (295 Pac. 239.)
    Howard F. Wilson, 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 in the district court of Kay county, on a charge of selling whisky to a minor, and was sentenced to serve a term of 60 days in jail and pay a fine of $100. From which judgment and sentence the defendant has appealed.

The transcript of the record was filed in this court on December 12, 1929. No brief has been filed on behalf of the defendant, and no appearance made for oral argument. Where no brief is filed and no appearance is made for the defendant, this court will consider the appeal is without merit or has been abandoned.

After a careful examination of tbe record, the court finds the information sufficient to charge an offense; the instructions fairly stated the law, and that the defendant was accorded a fair trial. The judgment of the lower court is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


author: EDWARDS, J.

text:
    G. O. BREEDLOVE v. STATE.
    No. A-7782.
    Opinion Filed Jan. 17, 1931.
    (295 Pac. 239.)
    Theodore Haugh, Hughey Baker, Ned Warren, E. G. Wilson, and Frank Hickman, for plaintiff in error.
    J. Berry King, Atty. Gen., and Ed Crossland, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county on a charge of maiming and was sentenced to serve a term of seven years in the state penitentiary.

The record discloses a state of facts about as follows: On the night of May 15, 1929, about the hour of 12:30 a. m., some one entered the home of Mrs. Eula Condon at Tulsa, and threw nitric acid upon her face and body, destroying the sight of one eye and permanently burning and disfiguring her. The evidence, while entirely circumstantial, tends very strongly to prove the guilt of defendant. If the case were tried according to law, we should not hesitate to hold the evidence sufficient. At the conclusion of the evidence, defendant requested the court to instruct on the law of circumstantial evidence and renewed the request at the time the instructions were read. The request was denied by the court.

It has been many times held by this court that where the evidence is entirely circumstantial, it is error for the court, when properly requested, to refuse an instruction upon the law of circumstantial evidence. Rutherford v. U. S., 1 Okla. Cr. 194, 95 Pac. 753; Bock v. State, 34 Okla. Cr. 313, 246 Pac. 642; Moore v. State, 34 Okla. Cr. 277, 246 Pac. 648; Hess v. State, 35 Okla. Cr. 410, 250 Pac. 938.

There is no excuse for a trial judge to deny a request for an instruction upon a proposition so well settled as this. A county attorney, under such circumstances, should join in a request that such instruction be given, if the trial court is not informed. This court is very loath to reverse cases such as this, but some regard must be had for settled decisions. Cases may be presented, depending entirely on circumstantial evidence, where the facts are admitted or the conflict in the evidence so inconsequential that this court may say that the refusal to give the instruction could not have affected the verdict; we can hardly say that is the condition of the record here.

The case is reversed.

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


text:
    LANDON SHELTON v. STATE.
    No. A-7501.
    Opinion Filed Jan. 17, 1931.
    (295 Pac. 240.)
    John D. Rutherford and W. Shearer Brown, 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 Wagoner county of the crime of robbery by the use of firearms, and Ms punishment fixed by the jury at confinement in the state penitentiary for a period of 30 years.

The defendant complains of numerous errors, but to enable the court to dispose of this case it'will only be necessary to pass upon two questions:

First. Error of the court in mentioning- that it was necessary for the defendant to take the witness stand before be could offer certain proof.

Second. Error of the county attorney in commenting upon the fact that the defendant had not taken the witness stand.

The Attorney General in his brief says:

“While several alleged errors are presented in the brief filed in behalf of plaintiff in error as grounds for the reversal of this judgment we believe none of them possess sufficient merit to justify a reversal of this case except perhaps one, and we believe this court will reach the conclusion that this judgment will either have to be reversed or else modified because of the prejudicial remarks of the county attorney in his arguments, to the jury.
“The statement of the county attorney made in the closing argument, ‘Landon Shelton, why don’t you deny one word of it,’ was certainly an indirect comment on the failure of the defendant to testify in his own behalf.”

It appears from the record that during the trial of the case defendant’s counsel, referring to the defendant, asked defendant’s witness Morris Fowler the folloAving question:

“Q. Are you acquainted with his general reputation in that community for truth and veracity?
“The Court: I don’t—
“A. Yes, sir.
“The Court: I don’t think that would be competent, Mr. Brown, unless the defendant had taken the witness stand, however, if you are going to put him on I will let you proceed.”

Section 2698, C. O. S. 1921, prohibits the trial judge or county attorney from mentioning the fact that the defendant has not taken the witness stand, and prohibits the county attorney from mentioning such fact or commenting on it in his arguments to the jury.

In Sturgis v. State, 2 Okla. Cr. 362, 102 Pac. 57, 68, this court said:

“Our statute is mandatory, and, when the defendant has failed to become a witness in his own behalf, this fact must not, directly or indirectly, be mentioned or in any manner referred to or called to the attention of the jury. If such an attempt is made by counsel for the defense, the court must at once intervene and reprimand the counsel making such an attempt, and see that it is not repeated. If such an attempt is made by the prosecuting attorney and a conviction follows, a new trial must be granted to the defendant.”

In Dorsett v. State, 16 Okla. Cr. 65, 180 Pac. 557, this court said:

“The learned judge was not justified in stating to the jury that the reputation of the defendant could be assailed only by him first taking the witness stand. This was manifest error.”

Further on in the body of the opinion this court said:

“In this case the court told the jury that the defendant could not offer evidence of his character except by going on the witness stand himself.”

It was not necessary for the defendant to take the witness stand before he could offer proof of his good character. Gilbert v. State, 8 Okla. Cr. 544, 128 Pac. 1100, 129 Pac. 671; Carney v. State, 29 Okla. Cr. 83, 232 Pac. 451; Sinquefield v. State, 49 Okla. Cr. 300, 294 Pac. 203.

In tbe case at bar tbe court not only was mistaken as to tbe requirements that tbe defendant take tbe witness stand before be could offer such evidence, but in effect erroneously told counsel and tbe jury that tbe defendant must take tbe witness stand before be could offer or tbe jury could consider evidence of bis good character.

While considering 'the erroneous remarks of tbe trial court, it might be well to call attention to another remark tbe judge made during tbe progress of tbe trial. Defendant’s witness Connie Murphy -bad been testifying to tbe good reputation of tbe defendant. At tbe close of tbe examination, a juror asked tbe following question:

“Q. Would Mr. Murphy be allowed to state bis personal ideas and dealings with this fellow?
“Tbe Court: No-, tbe law don’t allow it. He may testify just as to bis reputation, general reputation in tbe community in which be lives, back for a reasonable length of time. I sometimes don’t think it is a good law but I do my best to follow tbe law as I see it.”

This remark of tbe trial judge indicated his disagreement with tbe rules of law respecting tbe admission of evidence concerning reputation, and it tended to discredit tbe evidence of good reputation. It is tbe duty of tbe court to sustain the law, not to condemn it. It is improper for the court to express such opinions of the law to tbe jury in any case.

In the heat of trial and under provocation trial judges sometimes forget themselves and make remarks such as those made in this case, without any thought of prejudicing the rights of the defendant, but on account of the influence the judge exercises over jurors it is apparent that prejudice would arise from such remarks.

The next contention of the defendant is that the county attorney committed prejudicial error in commenting on the fact that the defendant had not taken the witness stand.

The entire closing, argument of the county attorney is set out in the case-made. It is too lengthy to be copied into this opinion. It is sufficient to say that on several occasions counsel went out of the record and made prejudicial remarks to the jury, one of which, in referring to the instructions of the court in regard to the defendant, was as follows:

“Still you don’t find here one single witness in his behalf. Where is Earl Williams? He knew where he was that Saturday night when he came out of that confectionery and got into that car and sat there for a minute or two. You knew where he was then. Where was he yesterday that he is not here, if he was not one of the fellows that was in Porter that night when they robbed Moody’s store, robbed that store and robbed this night watchman. Why, sir, isn’t your sainted mother here, who you visited at 7:30 that night? Why isn’t she here on this witness stand? There are some people that you can’t get to swear to an alibi. Some people won’t do it. Landon Shelton, why don’t you deny one word of it? They had no defense. He robbed that store and robbed that boy and hauled off the goods. That is what they are doing all over the state and country all the time, hauling it off in truckloads, so that it is almost breaking the taxpayers now to prosecute them for doing it.”

Defendant objected to' this line of argument and objection was sustained by the trial court. But counsel for the state had so directly commented on the fact that the defendant bad not taken tbe witness stand, and bad so personally challenged him for not doing so, that this error could not be cured by tbe instructions of tbe court.

This court has repeatedly held that such misconduct on tbe part of tbe county attorney requires a reversal of the case. Mulkey v. State, 5 Okla. Cr. 75, 113 Pac. 532; Childs v. State, 13 Okla. Cr. 461, 165 Pac. 622; Doublebead v. State, 27 Okla. Cr. 375, 228 Pac. 170; Schrader v. State, 40 Okla. Cr. 261, 268 Pac. 325; Carmichael v. State, 44 Okla. Cr. 160, 279 Pac. 515.

Tbe Attorney 'General in bis brief suggests that tbe case ought not to be reversed, but that tbe judgment ought to be modified by reducing the punishment to tbe minimum. To adopt this suggestion would be an injustice to the state, because tbe minimum punishment is not justified by tbe facts in tbe case. To affirm the case without modification would be to deprive tbe defendant of bis statutory and constitutional rights.

For error of tbe trial court in mentioning the necessity for defendant to take tbe witness stand and adversely commenting upon tbe rule of law affecting evidence of good reputation, and for errors of tbe county attorney in arguing tbe case outside of tbe record and in commenting on the failure of the defendant to take the witness stand, tbe case is reversed and remanded, with directions to proceed with tbe trial in accordance with law.

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


text:
    JOHN H. McGOWAN v. STATE.
    No. A-7512.
    Opinion Filed Jan. 17, 1931.
    (295 Pac. 242.)
    Sherman & Warren, 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 in the district court of Pottawatomie county of the crime of forgery in the first degree, and was sentenced to serve a term of seven years in the state penitentiary. From which judgment and sentence the defendant has appealed.

The appeal in this case was filed August 20, 1929. No brief has been filed on behalf of the defendant, and no appearance was made for oral argument. Where no brief is filed and no appearance is made for the defendant, the court will consider the appeal is without merit or has been abandoned.

An examination of the record shows there are no fundamental or prejudicial errors. The judgment is affirmed.

EDWARDS, J., and CHAPPELL, J., concur.


text:
    REED VANN v. STATE.
    No. A-7688.
    Opinion Filed Jan. 17, 1931.
    (295 Pac. 242.)
    Paden & Douglas, 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 in the district court of Cherokee county on a charge of larceny, and sentenced to serve a term of three years in the state penitentiary, from which judgment and sentence the defendant has appealed.

The transcript of the record was filed in this court on December 12, 1929. No. brief has been filed in support of the defendant’s appeal. Where no brief is filed, the court will examine the record, and, if there has been no fundamental or prejudicial errors committed by the trial court, the judgment will be affirmed.

After a careful examination of the record, the court finds that the information is sufficient to charge an offense, that the instructions fairly stated the law, and that the defendant was accorded a fair trial.

The judgment of the lower court is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    Ex parte LEROY OSBORNE.
    No. A-8061.
    Opinion Filed Jan. 21, 1931.
    (295 Pac. 396.)
    J. A. D. Collins, for petitioner.
    Lewis R. Morris, Co. Atty., and Phil E. Daugherty, for respondent.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

Leroy Osborne filed in this court a duly verified petition, in which he alleges he is illegally restrained and imprisoned by Stanley Rogers, sheriff of Oklahoma county, Okla. The petitioner alleges that said restraint is illegal and unlawful; thát on the 16th day of January, 1931, he had a preliminary hearing before Joseph E. Deupree, justice of the peace in and for Oklahoma City district, Oklahoma county, Okla. That in said preliminary hearing before the aforesaid justice of the peace there was no legal or competent evidence introduced against him to show that any crime had been committed, and if a crime had been committed there was no probable cause to believe that the petitioner committed said crime.

On the the 17th day of January, 1931, petitioner was ordered by said justice of the peace to be committed to the sheriff: of Oklahoma county, pending action of the district court of Oklahoma county; on the said 17th day of January, 1931, petitioner applied to the district court of Oklahoma county for writ of habeas corpus, and the same was denied, and he is now still confined by the respondent in the county jail of Oklahoma county, state of Oklahoma.

Attached to the petition is a duly certified transcript of the testimony taken at the preliminary examination.

A rule to show cause was issued on the 19th day of January, 1931, returnable on the 21st day of January, 1931, at 10 o’clock a. m., at which time the application was submitted on the petition, return of the officer to the rule, and transcript of the testimony taken in the preliminary trial and oral arguments.

Upon a careful examination of the pleadings, and the evidence, we hold there is no legal or competent evidence in the transcript to show that the defendant was guilty of larceny by fraud, as charged in the complaint.

The Avrit is granted, and the petitioner ordered discharged.

EDWARDS and CHAPPELL, JJ., concur.