Volume 90 — Oklahoma Criminal Reports

(Syllabus.) <bold>1. Judges — Substantial Grounds Upon Which to Base Claim for</bold> <bold>Disqualification.</bold> A judge should not try a case in which there is any substantial ground upon which to base a claim for his disqualification and an error, if made, should be in favor of the disqualification rather than against it. <bold>2. Same — Mandamus — Fact Court Was Material Witness in Case and</bold> <bold>Was Closely Related to Parties Sufficient to Support Petition</bold> <bold>for Disqualification.</bold> The fact that trial court was to be a material witness in case, and was closely related by marriage to one of the parties, was sufficient to show implied bias and support petition for disqualification. <bold>3. Mandamus — Trial Judge Required to Disqualify Where</bold> <bold>Petitioner Appears by Counsel and Introduces Sufficient</bold> <bold>Evidence to Make Out a Prima Facie Case for Disqualification.</bold> While the trial judge may not have been disqualified to hear evidence from and on behalf of petitioner at the time he was adjudged in contempt without a hearing as provided by Art. 2, Sec. 25 of the Bill of Rights to the Constitution of Oklahoma (which fact resulted in direction by this court for the trial court to grant petitioner a hearing), subsequent events mentioned by the court in response to petitioner's petition for writ of mandamus, as well as matters alleged in said petition, though denied by respondent, require the trial judge to disqualify, where petitioner appears by counsel and introduces evidence sufficient to make out a prima facie case for disqualification, and the respondent judge does not appear, and further his response by letter indicates that recent publicity of application to disqualify might place suspicion upon whatever he might further do in the matter, and that he would welcome an order requiring him to certify his disqualification.

(Syllabus.) <bold>Appeal and Error — Time for Appeal in Misdemeanor Case.</bold> When an appeal in misdemeanor case is not taken within the 60 days prescribed by the statute, 22 O.S.A. 1941 § 1054[<cross_reference>22-1054</cross_reference>], the record or case-made must affirmatively show that the trial court or judge thereof for good cause shown extended the time; otherwise, this court is without jurisdiction to review the judgment, and such appeal will be dismissed.

(Syllabus.) <bold>Appeal and Error — Time for Appeal in Misdemeanor Case.</bold> When an appeal in misdemeanor case is not taken with the 60 days prescribed by the statute, 22 O.S.A. 1941 § 1054[<cross_reference>22-1054</cross_reference>], the record or case-made must affirmatively show that the trial court or judge thereof for good cause shown extended the time; otherwise this court is without jurisdiction to review the judgment, and such appeal will be dismissed.

(Syllabus.) <bold>1. Mandamus — Authority of Criminal Court of Appeals to Issue</bold> <bold>Writ Only in Aid of Its Appellate Jurisdiction.</bold> Criminal Court of Appeals has jurisdiction to issue writ of mandamus in appropriate case in aid of its exclusive appellate jurisdiction over all criminal cases. Tit. 20 O.S. 1941 § 41[<cross_reference>20-41</cross_reference>]. <bold>2. Same — Supreme Court and Criminal Court of Appeals Are</bold> <bold>Co-Ordinate and Exclusive in Their Respective Appellate</bold> <bold>Jurisdictions.</bold> Under the Constitution of Oklahoma (Art. 7, Sec. 2) and Statutes (Tit. 20 O.S. 1941 §§ 1-16[20-1-16] [20-1-16] and 31-48 [<cross_reference>20-31</cross_reference>] - [<cross_reference>20-48</cross_reference>]) the Supreme Court and the Criminal Court of Appeals are co-ordinate and exclusive in their respective appellate jurisdictions; the Supreme Court in civil cases, the Criminal Court of Appeals in criminal cases. Neither can interfere with nor control the other. Neither is subordinate to nor dependent upon the other, but both are responsible to the people from whom they each derive whatever power they respectively possess. <bold>3. Courts — Appeals to Criminal Court of Appeals From</bold> <bold>Convictions for Crime May Only Be Brought From Courts of</bold> <bold>Record Established by Law.</bold> Appeals to the Criminal Court of Appeals from convictions for crime may be only brought from the district, superior, and county courts, and such other courts of record as may be established by law. Tit. 20 O.S. 1941 § 40[<cross_reference>20-40</cross_reference>]. <bold>4. Courts — Mandamus — Where Mandamus May Lie From Criminal</bold> <bold>Court of Appeals to Justice of Peace Court.</bold> Although no appeal will lie directly from a judgment of the justice of the peace court to the Criminal Court of Appeals, where said justice of the peace court sits as a committing magistrate for the purpose of holding a preliminary examination for one accused of a felony, the proceedings before such magistrate may be reduced to writing and filed with a transcript in the district court, and any error in such proceedings may later be presented to the Criminal Court of Appeals for review in case of a conviction in the district court. For that reason, in a proper case, mandamus may lie from the Criminal Court of Appeals to a justice of the peace court sitting as a committing magistrate, and the issuance of such writ would be in aid of its exclusive appellate jurisdiction in criminal cases. <bold>5. Mandamus — Justice of Peace Cannot Set Cases for Trial Until</bold> <bold>He Has Acquired Jurisdiction of the Person of Defendant.</bold><page_number>Page 330</page_number> A prisoner in federal penitentiary located in another state which seeks dismissal of certain criminal prosecutions filed before a justice of peace court for alleged failure to grant him a speedy trial, is not entitled to mandamus to compel the dismissal of such prosecution pending against him before a justice of the peace sitting as a committing magistrate, where the warrants of arrest issued on three complaints filed before said justice of the peace have never been served on the accused, and he has never been brought within the jurisdiction of the justice of peace court; the justice of the peace in such case could not set the cases for trial until he had acquired jurisdiction of the person of the defendant.

(Syllabus.) <bold>1. Searches and Seizures — Search Warrant Required to Describe</bold> <bold>Particularly Place to Be Searched.</bold> Under Tit. 37 O.S.A. 1941 § 87[<cross_reference>37-87</cross_reference>], which provides that no search warrant shall issue but upon probable cause supported by oath or affirmation describing as particularly as may be the place to be searched and the person or thing to be seized, the place must be described with such particularity that no discretion is left to the officer executing the warrant as to the place to be searched and the right to search under the warrant is limited to the place therein described. <bold>2. Same — Accused May Not Complain That Search of Third Person's</bold> <bold>Property Was Illegal.</bold> A search warrant authorizing the search of a building at 707 North Quincy street did not authorize the search of a building at 709 North Quincy street, but the evidence is conclusive that no search was made at the latter address, but that the defendant, who lived at that address, voluntarily gave a key to an officer for the purpose of unlocking a room at 707 North Quincy street, where<page_number>Page 341</page_number> defendant had household goods stored, but which room also had household goods of the occupants of 707 North Quincy stored therein, and the room could not be entered without one first entering through the front door or the rear door of the house at said address, to which one Ponder and wife had exclusive control. So that defendant cannot be heard to object that the search of the property or premises of the Ponders was a violation of her constitutional rights. <bold>3. Witnesses — Witness Cannot Be Impeached When Party Placing</bold> <bold>Him on Stand Has Notice Such Witness Will Testify Adversely.</bold> Where a party places a witness upon the stand with notice that such witness will testify adversely to such party, he cannot impeach the witness in any manner. <bold>4. Same — Trial — Error to Permit County Attorney to Attempt to</bold> <bold>Impeach Witness Where He Had Notice That She Would Testify</bold> <bold>Adversely, But Nevertheless He Placed Her on the Stand.</bold> Where state's witness P. was questioned for the first time by the county attorney just prior to trial of defendants for unlawful possession of intoxicating liquor, and was advised by P. that certain liquor obtained in search of P.'s residence at 707 North Quincy street was the property of P.'s husband, and that no other persons than herself and husband could enter said room without first being by them admitted to their home, and that the defendant Hood merely had some household goods stored in said room and had a key only to said room, and the county attorney in spite of such statements puts P. on the witness stand and she testifies as she stated she would, it was error to permit the county attorney to attempt to impeach said witness. <bold>5. Trial — Demurrer to Evidence of State Should Have Been</bold> <bold>Sustained and Defendant Discharged Where no Evidence to Show</bold> <bold>Liquor Was Found on Property of Defendant.</bold> Record examined, and there being no competent evidence to show that the liquor found at 707 North Quincy street was the property of the defendant Hood, her demurrer to the evidence of the State should have been sustained and the defendant discharged.

(Syllabus.) <bold>1. Constitutional Law — Unconstitutional Statute Providing for</bold> <bold>Minimum Sentence of One Year for Habitual Violators of</bold> <bold>Prohibition Act.</bold> The prohibitory provisions of the Oklahoma Constitution, Art. I, § 7, are self-executing, and all embracing against the manufacture, sale, advertising for sale, soliciting the purchase of any liquors, barter, giving away, shipping, conveying or otherwise furnishing any intoxicating liquor of any kind, and fixing the minimum penalty therefor at a fine of not less than $50 and imprisonment at not less than 30 days in jail; and such minimum penalty provisions constitute a limitation on the legislative power to fix the minimum penalty for a third offense and "an habitual offender of the prohibition laws of this state", at imprisonment in the penitentiary at not less than one year, S.L. 1911, ch. 70, p. 165, § 18, and such act is unconstitutional and void since the same is in conflict with the minimum penalty provisions of the Constitution. <bold>2. Statutes — Prior Act Repealed by Substitute Act Covering</bold> <bold>Entire Ground of Subject Matter.</bold> Where the Legislature takes up a whole subject anew, and covers the entire ground of the subject matter of a former statute, and evidently intend it as a substitute for it, the prior act will be repealed thereby, although there may be no express words to that effect, and there may be in the old act provisions not embraced in the new. <bold>3. Same — Repeal by Implication in Substitute Statute.</bold> In construing two statutes relating to same subject, later statute purporting to revise entire subject matter and containing additional provisions for carrying into effect same objects, will be construed to repeal by implication the former statute although no reference is made thereto. <bold>4. Same — Statute Providing Enhanced Punishment for "Second, and</bold> <bold>All Subsequent Offenders," Repeals by Implication Statute</bold> <bold>Dealing With Same Subject Matter by 1911 Act.</bold> Section 2, chapter 26, Session Laws of 1913, page 46, section 12 [<cross_reference>37-12</cross_reference>], Title 37, O.S.A. 1941, providing enhanced punishment for "second, and all subsequent offenders", repeals by implication the provisions of section 18, chapter 70, Session Laws 1911, page 165, which dealt with the same subject matter covered by the 1911 act.<page_number>Page 348</page_number> <bold>5. Same — Intention of Legislature to Make Later Act Exclusive,</bold> <bold>Repealing Repugnant Provisions of All Former Acts.</bold> The rule that a later statute, general in its terms and broad enough to include matters provided for by a former special act, will ordinarily not affect the special provisions of such former act, is not a provision of substantive law, but is merely one rule for determining the legislative intent; and when it is apparent that the Legislature intended to make the later act exclusive, designed it to cover the whole subject-matter to which it relates, and to embrace the entire law on the subject, it will repeal the repugnant provisions of all former acts, general or special. <bold>6. Same — Inclusion of Unconstitutional Section in 1941 Statutes</bold> <bold>Did not Have Effect of Validating Statutes So Included.</bold> Section 18, chapter 70, Session Laws 1911, p. 165, being unconstitutional and repealed by section 2, chapter 26, Session Laws 1913, page 46, the inclusion of said section in the 1941 statutes, section 14 [<cross_reference>37-14</cross_reference>], Title 37, O.S.A. 1941, did not have the effect of validating the statutes so included.

(Syllabus.) <bold>1. Trial — Constitutional Right to Speedy Trial.</bold> Under provisions of Oklahoma Constitution, the accused in criminal prosecution has the right to a speedy and public trial by an impartial jury of the county in which the crime is alleged to have been committed. Art. 2, §§ 6, 20. <bold>2. Same — Legislative Definition of "Speedy".</bold> The word "speedy" as used in the constitutional provision that an accused shall<page_number>Page 372</page_number> have the right to a "speedy" and public trial by an impartial jury of the county in which the crime shall have been committed, being a word of indeterminate meaning, permits legislative definition to some extent. <bold>3. Same — Right to Dismissal for Unnecessary Delay in</bold> <bold>Prosecution.</bold> Under the provisions of 22 O.S. 1941 § 812[22-812], the accused in a criminal prosecution applying for dismissal for unnecessary delay, who is incarcerated, need only show expiration of statutory time and lack of postponement on his application or with his consent. Prosecution must then show legal cause for continuing his trial over statutory time. <bold>4. Same — Good Cause for Delay.</bold> There is no fixed rule for determining the question as to what is meant by the term "unless good cause to the contrary be shown." 22 O.S. 1941 § 812[22-812]. It is a matter for judicial determination under the facts and circumstances in each particular case. <bold>5. Same — Burden of Proof as to Whether There Was Good Cause for</bold> <bold>Delay.</bold> Where defendant is on bail, the presumption is that a delay in the trial is caused by or with the consent of defendant, and the record must affirmatively show that he demanded trial or resisted continuance of the case. However, if defendant is not on bail, the law makes the demand for trial for him and the prosecution has the burden of showing that the trial was delayed for some lawful cause. <bold>6. Same — Burden Was Upon State to Show Legal Cause for Delay of</bold> <bold>Over 18 Months.</bold> Where defendant shows that he has been incarcerated in jail for eight months, and then in State Penitentiary for 11 months, for alleged safe-keeping since information was filed, and no trial has been had, although two terms of court have expired, state has burden to show legal cause for the delay of the trial. <bold>7. Mandamus — Mandamus Lay to Compel District Court to Dismiss</bold> <bold>Cause for Delay Where Defendant Had not Applied for</bold> <bold>Continuance.</bold> Writ of mandamus will issue to compel district court to dismiss cause, where record discloses that more than one term has passed since filing of information and cause has not been continued on application of defendant, or with his consent. <bold>8. Trial — County Attorney not Precluded From Commencing New</bold> <bold>Prosecution Because of Dismissal of Case for Failure to Grant</bold> <bold>Accused a Speedy Trial.</bold> The dismissal of a case for failure to grant the accused a speedy trial, ordinarily will not preclude the county attorney from commencing a new prosecution for the same offense at any time before the action would become barred by operation of the statute of limitations.<page_number>Page 373</page_number>

(Syllabus.) <bold>Appeal and Error — Where Sentence for Burglary Satisfied, Appeal</bold> <bold>Dismissed.</bold> Where it is shown that a convicted person failed to give an appeal bond but, immediately after sentence was pronounced, was delivered to the warden of the penitentiary, and that thereafter the judgment and sentence was satisfied by serving the term in the penitentiary, the appeal will be dismissed as any legal question involved is moot.

(Syllabus.) <bold>Arraignment and Plea — Withdrawal of Plea of Guilty and Plea of</bold> <bold>not Guilty Substituted.</bold> Trial court should be liberal in permitting a guilty plea to be withdrawn, a plea of not guilty substituted, and where there is any substantial evidence that a plea of guilty was entered through inadvertence, ignorance, without deliberation, or because of force or threats used against the accused, the trial court should allow such plea to be withdrawn and a plea of not guilty substituted so that a jury could determine the guilt or innocence of the defendant upon its merits.

(Syllabus.) <bold>1. Indictment and Information — Information Charging Two</bold> <bold>Separate Offenses Duplicitous.</bold> An information charging two separate and distinct offenses is duplicitous. <bold>2. Same — Information Charging Only One Offense not</bold> <bold>Duplicitous.</bold> Where trial court sustains motion of defendant to require county attorney to elect upon which charge he will rely for conviction before the trial commences, and strikes that part of the information which alleges the offense which the county attorney did not elect to try, the information is no longer duplicitous but charges only the one offense. <bold>3. Evidence — Connection of Offense Charged With Other Offenses</bold> <bold>Sought to Be Proved.</bold> Where the offense charged is so connected with other offenses sought to be proved as to form a part of an entire transaction, evidence of the latter may be given to show the character of the former. <bold>4. Intoxicating Liquors — Verdict Upheld Though Evidence of</bold> <bold>Guilt Contradictory.</bold> Where the evidence of guilt is substantial, although contradicted by evidence for the defendant, the verdict of the jury will be upheld.