Volume 91 — Oklahoma Criminal Reports

(Syllabus.) <bold>1. Searches and Seizures — Burden of Proof on Movant to Show</bold> <bold>Search Was Illegal.</bold> Burden of proof is upon movant in a hearing on motion to suppress evidence, where accused is charged with unlawful possession of whisky, to show that the search was illegal. <bold>2. Same — Sentence of 6 Months in Jail and $500 Fine not</bold> <bold>Excessive Where Defendant in Illegal Possession of Liquor.</bold> Sentence of six months in jail and $500 fine was not excessive where defendant was found in possession of 338 pints of whisky.<page_number>Page 29</page_number>

(Syllabus.) <bold>1. Indictment and Information — Included Offense of Assault With</bold> <bold>Dangerous Weapon.</bold> Where accused is charged by information with the crime of assault with intent to kill, if the evidence warrants, he may be found guilty of the included offense of assault with a dangerous weapon. <bold>2. Assault and Battery — Sufficiency of Evidence to Sustain</bold> <bold>Conviction for Crime of Assault with Dangerous Weapon.</bold> The evidence was sufficient to sustain conviction for the crime of assault with a dangerous weapon.

(Syllabus.) <bold>Habeas Corpus — Office of Writ — Limited Scope of Inquiry.</bold> The office of the writ of habeas corpus is not to determine the guilt or innocence of the prisoner, and the only issue which it presents is whether or not the prisoner is restrained of his liberty by due process of law, and a defendant held by virtue of an information preferred by a proper prosecuting officer in a court of competent jurisdiction cannot be discharged on habeas corpus for insufficiency of the evidence on his preliminary examination to show commission of a felony or probable cause to believe him guilty thereof. A defendant has the right to raise this question in a court where the information is pending, by motion to quash or set aside the information; upon adverse ruling by the court the remedy is by appeal from a judgment of conviction.

(Syllabus.) <bold>1. Habitual Criminals — State Must Plead and Prove Previous</bold> <bold>Convictions in Prosecution for Second Liquor Law Violation.</bold> Where an accused is prosecuted for a second violation of the prohibitory liquor law under the provisions of § 12 [<cross_reference>34-12</cross_reference>], Title 37, O.S.A. 1941, the state must plead and prove the previous convictions as an essential element of the crime. <bold>2. Same — Effect of Plea of not Guilty.</bold> A plea of not guilty to an information which alleges a former conviction of the accused puts in issue, not only all matters of fact essential to the crime for which he is being tried, but also the fact of the alleged former conviction. <bold>3. Constitutional Law — Intoxicating Liquors — Prohibitory</bold> <bold>Provisions of Constitution as to Manufacture, Sale, etc., of</bold> <bold>Intoxicating Liquors, Self-Executing and All-Embracing.</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 failure of the trial court to observe said minimum provision of $50 fine in pronouncing judgment and sentence renders such judgment void as not being in conformity with said constitutional provision.

(Syllabus.) <bold>Appeal and Error — Appeal in Felony Case Must Be Taken Within</bold> <bold>Six Months.</bold> In felony cases the appeal must be taken within six months after the judgment is rendered. Tit. 22 O.S.A. § 1054 [<cross_reference>22-1054</cross_reference>]. In such cases the appeal is taken by filing in the Criminal Court of Appeals a petition in error with case-made<page_number>Page 70</page_number> attached, or transcript of the record, together with proof of service of notice of appeal as required by statute, and when this is not done within the time prescribed by the statute, Criminal Court of Appeals does not acquire jurisdiction of the appeal, and such an appeal will be dismissed.

(Syllabus.) <bold>1. Appeal and Error — Time for Appeal.</bold> Where defendant had 60 days to perfect his appeal and the case-made was signed and settled prior to that time, it is required that the same be filed in this court within the 60 day period, where no further extension of time has been granted. <bold>2. Same.</bold> Where the case-made has not been filed within the time prescribed by law, this court does not acquire jurisdiction, and the appeal will be dismissed on motion.<page_number>Page 123</page_number>

(Syllabus.) <bold>Appeal and Error — Appeal Dismissed Where not Filed Within Time</bold> <bold>— Statute Makes no Provision for Miscarriage by Mail.</bold> Where appellant does not perfect his appeal within the time allowed, the appeal will be dismissed on motion, Criminal Court of Appeals not having acquired jurisdiction of the case; and delay caused by the miscarriage of matter sent by mail is at the peril of counsel, since the law makes no provision for such delay.

(Syllabus.) <bold>1. Appeal and Error — Verdict on Conflicting Evidence</bold> <bold>Sustained.</bold> Verdict of jury on conflicting evidence will be sustained. <bold>2. Automobiles — Sufficiency of Evidence to Sustain Conviction</bold> <bold>of Driving Automobile on Highway While Under Influence of</bold> <bold>Intoxicating Liquor.</bold> Evidence was sufficient to sustain conviction for driving automobile on highway while under influence of intoxicating liquor, and no reversible error was found in record.

(Syllabus.) <bold>1. Appeal and Error — Weight of Evidence for Jury.</bold> Where the evidence is conflicting and different inferences may be drawn therefrom, it is the province of the jury to weigh the evidence and determine the facts. <bold>2. Nuisance — Sufficiency of Evidence to Sustain Conviction of</bold> <bold>Crime of Maintaining a Public Nuisance.</bold> The finding of a jury on a disputed question of fact will not be disturbed on appeal where there is competent evidence in the record to sustain their finding. <bold>3. Evidence — Evidence Tending to Prove Defendant's Guilt of</bold> <bold>Other Offenses.</bold> Evidence is admissible that tends to prove the defendant guilty of the offense charged, even though it may tend to prove a different offense, when both offenses are so closely related or connected as to form a part of the res gestae. <bold>4. Same.</bold> Evidence which is relevant to the issue is not rendered inadmissible by reason of the fact that it tends to prove the defendant guilty of an offense other than the one charged in the information. <bold>5. Trial — Necessity for Requesting Special Instructions</bold> <bold>Desired.</bold> Where a party desires the court to give any particular instruction, or desires that the one that is given be made more specific or comprehensive, it is the duty of counsel to prepare and present to the court such desired instruction and request that it be given, and in the absence of such request a conviction will not be reversed, unless this court is of the opinion, in the light of the entire record, including the instructions given, that the defendant may have been prejudiced by the instruction complained of.<page_number>Page 143</page_number>

(Syllabus.) <bold>1. Intoxicating Liquors — Trial — Instruction on Prima Facie</bold> <bold>Evidence Held Reversible Error.</bold> Instruction that possession of more than one quart of whisky is prima facie evidence of intent to sell, but that such prima facie evidence may be rebutted by defendant's proof that there was no such intent, was reversible error, without a further instruction informing the jury that they were not obligated to convict unless they were satisfied beyond a reasonable doubt that defendant was guilty. <bold>2. Intoxicating Liquors — Statutory Provisions Relating to</bold> <bold>Disposition of Intoxicating Liquors Seized by Officers.</bold> The statutes relating to disposition of intoxicating liquors seized by officers manifested intent to safeguard right of citizens in protection of their property, and to give them an opportunity to be heard before property is confiscated, and to place duty and responsibility on officers to see that property which comes into their possession by virtue of search and seizure is disposed of in the manner provided by law. Tit. 22 O.S.A. § 1261 [<cross_reference>22-1261</cross_reference>], and Tit 37 O.S.A. § 85 [<cross_reference>37-85</cross_reference>]. <bold>3. Same — Statutory Duty of Officers to Enforce Prohibition Laws</bold> <bold>— Removal From Office as Penalty for Nonperformance of Duty.</bold> Under statute providing that if any of enumerated officers shall fail or refuse to perform duty required by provisions<page_number>Page 158</page_number> of prohibition laws, he shall be removed from office by prescribed procedure, all officers enumerated are required to do and perform their duties as required by the provisions of the prohibition laws subject to being removed from office if they fail to do so. Tit. 37 O.S.A. § 94 [<cross_reference>37-94</cross_reference>].

(Syllabus.) <bold>1. Appeal and Error — Judgment and Sentence on Conflicting</bold> <bold>Evidence Sustained.</bold> Judgment and sentence of the court on conflicting evidence will be sustained. <bold>2. Intoxicating Liquors — Sufficiency of Evidence to Support</bold> <bold>Conviction for Unlawful Possession.</bold> Record examined; held, evidence is found sufficient to support the conviction for unlawful possession of intoxicating liquor.

(Syllabus.) <bold>Appeal and Error — Cause Abated by Appellate Court on Showing of</bold> <bold>Death of Accused.</bold> The purpose of criminal proceedings being to punish accused, cause must abate on his death, and will be abated by appellate court on showing of death of accused pending determination of his appeal from judgment of conviction.

(Syllabus.) <bold>1. Appeal and Error — Jury — Exclusive Function of Jury on</bold> <bold>Disputed Questions of Fact — Judgment not Disturbed Where</bold> <bold>Sustained by Evidence.</bold> It is the exclusive function of the jury to determine disputed questions of fact and the Criminal Court of Appeals will not substitute its judgment for that of the jury upon such factual questions where there is ample competent evidence in the record to sustain the finding of the jury. <bold>2. Trial — Court Should Refrain From Indicating to Jury He Had</bold> <bold>Opinion as to Guilt or Innocence of Accused.</bold> Trial court should carefully refrain from saying or doing anything during the course of the trial which would in any way indicate to the jury that he had an opinion as to the guilt or innocence of the accused. <bold>3. Same — Not Reversible Error to Ask Witness Whether Automobile</bold> <bold>was on North or South Side of Pavement.</bold> The fact that trial court asked witnesses whether automobile involved in collision was on north or south side of the pavement was not improper misconduct which required a reversal of the conviction.

(Syllabus.) <bold>1. Evidence — Circumstantial Evidence Sustaining Conviction.</bold> One may be convicted on circumstantial evidence alone, when all the circumstances proven are consistent with each other and with the hypothesis that the defendant is guilty, and at the same time inconsistent with any other rational hypothesis. <bold>2. Intoxicating Liquors — Unlawful Transportation — Distance of</bold> <bold>Transportation Immaterial.</bold> Where one is charged with the transportation of intoxicating liquor from one place to another in this state, the distance over which it was carried or moved is immaterial. <bold>3. Appeal and Error — Questions not Considered Unless Properly</bold> <bold>Raised in Trial Court.</bold> Alleged errors occurring during the progress of a trial, and not properly raised and presented in the court below, will not be considered on appeal.<page_number>Page 204</page_number>

(Syllabus.) <bold>1. Witnesses — Credibility of Witnesses and Weight to Be Given</bold> <bold>Their Testimony for Jury.</bold> The credibility of the witnesses<page_number>Page 304</page_number> and the weight to be given their testimony is within the exclusive province of the jury to determine, and the jury may believe the testimony of a single witness upon a question of fact and disbelieve the testimony of several testifying to the contrary. <bold>2. Taxation — Unnecessary for Prosecution to Affirmatively</bold> <bold>Allege in Information Intangible Tax on Note Secured by</bold> <bold>Chattel Mortgage Has Been Paid.</bold> In prosecution for the sale of personal property covered by chattel mortgage, it is not necessary for the prosecution to affirmatively allege in the information and prove that the intangible tax on the note secured by the chattel mortgage has been paid.

(Syllabus.) <bold>Appeal and Error — Cause Abated on Death of Accused.</bold> The purpose of criminal proceedings being to punish accused, cause must abate on his death, and will be abated by appellate court on showing of death of accused pending determination of his appeal from judgment of conviction.

(Syllabus.) <bold>1. Larceny — Evidence Sufficient to Sustain Conviction for Grand</bold> <bold>Larceny Where Accused Signed Sworn Confession.</bold> Where accused is charged with grand larceny, and it appears that she admitted her guilt in the trial, and in a signed sworn confession, the evidence is sufficient to sustain the conviction. <bold>2. Larceny — Appeal and Error — Judgment Affirmed in Grand</bold> <bold>Larceny Case Where no Prejudicial Error Shown.</bold> In a grand larceny case where record examined, and no prejudicial error appearing in the pleadings, instructions, the judgment and sentence, the judgment is affirmed.<page_number>Page 403</page_number>

(Syllabus.) <bold>1. Homicide — In Murder Trial, Burden on Defendant to Prove</bold> <bold>Mitigating Circumstances.</bold> Upon a trial for murder, the commission of the homicide by the defendant being proven, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon her, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable. Tit. 22 O.S. 1941 § 745[<cross_reference>22-745</cross_reference>]. <bold>2. Appeal and Error — Sufficiency of Evidence, Though</bold> <bold>Conflicting, to Sustain Judgment.</bold> Verdict of jury in homicide case based upon conflicting evidence will not be disturbed on appeal on ground that the evidence is insufficient to sustain the judgment. <bold>3. Evidence — Competency of Confession Challenged on Ground, if</bold> <bold>Made, Was not Voluntary — Admissibility for Court.</bold> Where the competency of a confession is challenged on the ground that, if made, it was not voluntary, its admissibility is primarily a question for the court. In the absence of the jury, the court should hear the evidence offered respecting the facts and circumstances attending such alleged confession, and the burden is on the defendant to show that it was procured by such means or under such circumstances as to render it inadmissible, unless the evidence on the part of the state tends to show the fact. If it is held competent, and proof of the same admissible, the defendant is entitled to have the evidence in regard to the facts and circumstances under which it was made given anew to the jury, not that the jury may pass upon its competency or admissibility, but for the purpose of enabling them to judge what weight and value should be given to it as evidence, and the jury may disregard it if they are not satisfied that it was voluntarily made. <bold>4. Same — Not Error in Admitting Confession.</bold> The defendant having offered no proof to show that confession was procured by such means or under such circumstances as to render it inadmissible, trial court did not err in admitting it in evidence. <bold>5. Homicide — Judgment of 25 Years Imprisonment Held not</bold> <bold>Excessive Upon Conviction for Manslaughter in First Degree.</bold> A judgment of twenty-five (25) years imprisonment in State Penitentiary upon conviction for manslaughter in first degree was not excessive.<page_number>Page 406</page_number>

(Syllabus.) <bold>1. Appeal and Error — Review — Affirmance in Absence of Briefs</bold> <bold>or Argument.</bold> Where an appeal is submitted without briefs, and without oral argument, Criminal Court of Appeals will search the record for fundamental error only, and if none is found, and there is competent evidence in the record to sustain the conviction, it will be affirmed. <bold>2. Forgery — Record Found to Sustain Verdict and Judgment in</bold> <bold>Forgery Case.</bold> Record examined, and found to sustain the verdict and judgment of the court.

(Syllabus.) <bold>1. Arrest — Arrest for Misdemeanor Without Warrant Where Act</bold> <bold>Committed in Officer's Presence.</bold> An officer without a warrant cannot arrest for an offense which was not a felony, unless offense was committed or attempted in his presence. <bold>2. Same — Act not Committed in Officer's "Presence" When He Does</bold> <bold>not Know It.</bold> A peace officer may arrest without a warrant for a misdemeanor only where the misdemeanor is committed or attempted in his "presence", and if the officer is unaware of the act constituting the misdemeanor, it is not committed in his "presence".<page_number>Page 419</page_number> <bold>3. Searches and Seizures — Search Without Warrant of Automobile</bold> <bold>— Determination of Question Whether Search or Seizure Is</bold> <bold>Reasonable.</bold> Whether a search of or seizure from an automobile without a warrant is unreasonable, within the meaning of the constitutional provision forbidding unreasonable searches and seizures, is a judicial question to be determined in each case, viewing all facts and circumstances under which the search or seizure was made. <bold>4. Same — Evidence — Search of Automobile on Mere Suspicion</bold> <bold>Illegal and Evidence Obtained Thereby Inadmissible.</bold> A search of an automobile without a search warrant and not as an incident of a lawful arrest, and not on any probable cause of the commission of a felony, but on mere suspicion of the commission of a misdemeanor, however well founded the suspicion may be, violates the constitutional provision forbidding unreasonable searches or seizures, and evidence obtained by such a search is inadmissible. <bold>5. Same — Search of Automobile Without Warrant After Unlawful</bold> <bold>Arrest Held Illegal and Evidence Obtained Inadmissible.</bold> The search of motorist's automobile without warrant of arrest, or search warrant or personal knowledge that automobile contained intoxicating liquor, was an unreasonable search within the meaning of the Constitution giving an individual the right to be secure against unreasonable searches, and evidence obtained from the motorist was properly excluded in prosecution for the unlawful transportation of intoxicating liquor. <bold>6. Same — "Probable Cause Rule" Inapplicable in Prosecutions in</bold> <bold>Oklahoma Courts.</bold> The rule, that officers acting upon a belief reasonably arising out of the circumstances known to the searching officers may search an automobile without a warrant, which is followed in the federal courts and known as the "Probable Cause Rule" is not applicable to prosecutions in the state courts of Oklahoma. <bold>7. Same — One May not Complain That Search of Another's Premises</bold> <bold>Was illegal.</bold> The constitutional provision guaranteeing one immunity from unlawful search and seizure is personal, and where two individuals are jointly charged with the illegal transportation of liquor and only one of them was in the automobile at the time the car was searched; the individual who was not present will not be heard to object that the search of the property or person of the other individual is a violation of his constitutional rights. <bold>8. Criminal Law — Action of Court in Dismissing Prosecution of</bold> <bold>One of Defendants not Bar to Further Prosecution of Such</bold> <bold>Individual.</bold> Where trial court dismisses prosecution upon<page_number>Page 420</page_number> arraignment of two individuals jointly charged with a misdemeanor after a hearing on a motion to suppress evidence, a reversal of the judgment of the trial court as to one of such defendants where the state appeals on a reserved question of law, would authorize the prosecutor to commence a new prosecution against the individual in the disposition of whose case the court committed error. Since no jury had been empaneled and jeopardy had not attached, the action of the court in dismissing the prosecution would not bar a further prosecution of said individual.