Volume 92 — Oklahoma Criminal Reports

(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, Secs. 6 and 20. <bold>2. Same — Legislative Definition of "Speedy."</bold> The word "speedy" as used in the constitutional provision that an accused shall 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,<page_number>Page 32</page_number> 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 lawful cause. <bold>6. Same — State Has Met Burden of Showing Good Cause for Delay</bold> <bold>in Trial.</bold> State met burden of showing good cause for delay in trial of defendant by proof that counsel for defendant had objected to going to trial and had asked for a continuance during two consecutive terms of court, which requests had been granted. <bold>7. Judgment and Sentence — Appeal and Error — Statutory Power of</bold> <bold>Criminal Court of Appeals to Modify Sentence Only When</bold> <bold>Sentence So Excessive as to Indicate Jury Prejudiced.</bold> The statutory power granted to Criminal Court of Appeals to modify a sentence of one convicted of crime and who has appealed will not be exercised unless court can conscientiously say from all the facts and circumstances that the sentence is so excessive as to indicate that jury acted from partiality or prejudice. <bold>8. Burglary — Sentence of 25 Years Upon Conviction for Burglary</bold> <bold>in Second Degree From Former Conviction for Felony not</bold> <bold>Excessive Punishment.</bold> A sentence of 25 years upon conviction for burglary in the second degree after former conviction of a felony was not excessive punishment for habitual criminal.

(Syllabus.) <bold>1. Gaming — Test Determining Whether Slot Machine Is Gambling</bold> <bold>Device.</bold> The name given to a machine does not determine whether it comes under the classification of a slot machine as defined by 1939 law, 21 O.S. 1941 § 964[<cross_reference>21-964</cross_reference>] et seq., but that is determined by the manner and result of its operation.<page_number>Page 92</page_number> <bold>2. Same — "Thing of Value" Defined.</bold> A "thing of value" as that term is used in the 1939 slot machine act, 21 O.S. 1941 § 964[<cross_reference>21-964</cross_reference>] et seq., is defined to be among other things "amusement * * * or any other thing tangible or intangible, calculated or intended to serve as an inducement for anyone to operate or play." <bold>3. Same — Coin Operated Machine Played for Amusement Dependent</bold> <bold>Chiefly Upon Chance, Held Prohibited by Slot Machine Statute.</bold> Where amusement, i.e., high score, received by player of coin operated mechanical device varies with each coin deposited in slot, which amusement is dependent chiefly upon hazard or chance, the operation of such coin operated machine is prohibited by slot machine statute. 21 O.S. 1941 § 964[<cross_reference>21-964</cross_reference>] et seq. <bold>4. Same — Under 1939 Enactment, Operation of Pin Ball Machine</bold> <bold>Illegal Regardless of Whether Free Games Given for High</bold> <bold>Score.</bold> Under 1939 law, 21 O.S. 1941 § 964[<cross_reference>21-964</cross_reference>] et seq., the operation of a pin ball machine was illegal regardless of whether the machine gave free games or other remuneration for high score or was merely played for the amusement of the player. <bold>5. Stipulations — Proceedings Taken on Wire Recording Machine</bold> <bold>and Later Transcribed Proper, Where Defendant Stipulated</bold> <bold>Case-Made Contained Full, True, Correct and Complete Copy of</bold> <bold>Transcript, etc.</bold> Where counsel for the defendant signed certificate appearing in case-made that the foregoing case-made "contains a full, true, correct and complete copy of the transcript and all the proceedings in said cause," he may not be heard to complain that the proceedings were taken on a wire recording machine and later transcribed rather than taken in shorthand by a court reporter as required by 20 O.S. 1941 § 108[<cross_reference>20-108</cross_reference>].

(Syllabus.) <bold>Trial — Verdict — Certainty — Reference to Record.</bold> A verdict will not be held void for uncertainty, if its meaning can be determined by reference to the record proper.<page_number>Page 123</page_number>

(Syllabus.) <bold>1. Arrest — Sheriffs and Constables — Duties of Constable</bold> <bold>Defined.</bold> Tit. 39 O.S. 1941 §§ 601[<cross_reference>39-601</cross_reference>], 602 [<cross_reference>39-602</cross_reference>], 607 [<cross_reference>39-607</cross_reference>] and 608 [<cross_reference>39-608</cross_reference>] define the duties of a constable. Under these sections of the statutes a constable<page_number>Page 126</page_number> was authorized to serve either civil or criminal process throughout the county in which he may be elected or appointed and was further authorized to arrest for any misdemeanor committed in his presence in the county whether said misdemeanor was committed in the district from which the constable was elected or not. <bold>2. Same — Effect of Amendment of Statute Restricting Constables</bold> <bold>to Their Elective District When Arresting for Misdemeanors</bold> <bold>Committed in Their Presence.</bold> In 1947 the Legislature amended section 602 [<cross_reference>39-602</cross_reference>], Tit. 39, O.S. 1941, so as to restrict constables to their elective district when arresting for misdemeanors committed in their presence. Such amendment did not change or affect the existing law which authorized a constable to serve "warrants, writs, executions and other process" throughout the county. <bold>3. Same — Trial — Trial Court Erred in Suppressing Evidence Upon</bold> <bold>Motion of Defendant Upon Ground Constable Without Authority to</bold> <bold>Serve Warrant.</bold> Search warrant issued by justice of the peace of "A" district in "O" county for premises located in another justice of the peace district in "O" county may be served by the constable elected in justice of the peace district "A" and trial court erred in suppressing the evidence upon motion of the defendant upon the ground that the constable was without authority to serve the warrant.

(Syllabus.) <bold>1. Searches and Seizures — Requisite Statement of Facts in</bold> <bold>Affidavit for Search Warrant.</bold> An affidavit for the procurement of a search warrant should not be based upon information and belief, but should state facts upon which the same is based; but when facts are stated in the affidavit, and the same are positive, and by one who has a right to know the<page_number>Page 132</page_number> facts, it is sufficient ground for the magistrate to issue the warrant. <bold>2. Evidence — Evidence Obtained by Search Admissible if</bold> <bold>Affidavit or Complaint and Search Warrant Sufficient on Their</bold> <bold>Face.</bold> If affidavit or complaint and search warrant issued thereon are sufficient on their face, evidence obtained by search is admissible, and the court will not permit a defendant to show that the statements in affidavit or complaint are not true, or to raise any question as to the accuracy of the source of affiant's information or means by which it was obtained. <bold>3. Appeal and Error — Sufficiency of Conflicting Evidence to</bold> <bold>Sustain Verdict.</bold> Where a conviction rests upon circumstantial evidence and circumstances are proved from which a reasonable and logical inference of guilt clearly arises and which excludes any reasonable hypothesis except the guilt of the accused, although the evidence is conflicting, Criminal Court of Appeals will not disturb the verdict for insufficiency of the evidence. <bold>4. Intoxicating Liquors — Punishment — Duty of Jury to Assess</bold> <bold>Punishment, and on Failure to so do, Duty of Court.</bold> It is the duty of the jury to assess the punishment (Tit. 22 O.S.A. § 926 [<cross_reference>22-926</cross_reference>]), and on failure so to do, then it is the duty of the court to fix the punishment (Tit. 22 O.S.A. § 927 [<cross_reference>22-927</cross_reference>]). And the fact that a jury on the one trial recommends leniency and on a second trial does not make any recommendation, cannot form the basis for a court refraining from assessing a lower punishment. The criterion must be the degree of aggravation and based wholly on the court's idea of a proper measure of punishment in light of the evidence adduced.

(Syllabus.) <bold>1. Appeal and Error — Sufficiency of Evidence to Sustain</bold> <bold>Verdict.</bold> The Criminal Court of Appeals will sustain the verdict of the jury, unless there is no competent evidence upon which it can be based. <bold>2. Same — Function of Criminal Court of Appeals.</bold> The function of the Criminal Court of Appeals is to ascertain whether there is a basis in the evidence on which the jury can reasonably conclude the defendant is guilty as charged. <bold>3. Burglary — Verdict — Resubmission of Case to Jury for</bold> <bold>Completion of Verdict.</bold> Where two defendants are jointly tried and the jury reaches a verdict as to both defendants but returns its verdict in proper form as to only one of the defendants and through oversight does not express their verdict as to the other defendant, the court may re-submit the case to the jury for completion of their verdict, and they may complete the verdict without retirement from the courtroom, where the jury is polled and it clearly appears that they had reached a verdict but had failed to express the same as to such other defendant.

(Syllabus.) <bold>1. Searches and Seizures — Necessary to Show Probable Cause to</bold> <bold>Issue Search Warrant.</bold> A search warrant must be based upon evidential facts, but the quantum of evidence necessary to show probable cause may be quite insufficient to support a verdict of guilty. <bold>2. Intoxicating Liquors — Affidavit Held Sufficient Basis for</bold> <bold>Issuance of Search Warrant.</bold> Affidavit by deputy sheriff in which affiant swears positively that intoxicating liquors described as wine, whisky, beer and other spirituous, fermented and malt liquors, together with certain fixtures and furniture consisting of bars, glasses, jugs, containers, etc., and used in keeping a place of business where intoxicating liquors are sold, stored, given away and otherwise furnished on described premises, and that the described premises is a place of public resort, was sufficient basis for issuance of search warrant.

(Syllabus.) <bold>1. Bail — Burden of Proof on Applicant for Admission to Bail in</bold> <bold>Murder Case.</bold> On a hearing of an application for bail by the person informed against for murder, to determine whether or not the proof is evident, or the presumption thereof great, the burden of proof is on the petitioner. <bold>2. Same — Insufficiency of Evidence to Entitle Petitioner to</bold> <bold>Bail.</bold> The evidence is insufficient to entitle the petitioner to bail.

(Syllabus.) <bold>1. Indictment and Information — Amendment of Information.</bold> An information may be amended in matters of either form or substance<page_number>Page 240</page_number> when it can be done without prejudice to the substantial rights of the accused. <bold>2. Same — Burden to Show Amendment Materially Prejudiced</bold> <bold>Accused.</bold> Where trial court allows information to be amended as to form only on the day the case is assigned for trial, the burden is upon defendant to show that such amendment materially prejudiced the accused. <bold>3. Same — Wrong Name Given to Crime in Introductory Paragraph of</bold> <bold>Information Mere Irregularity.</bold> The introductory paragraph of an information is ordinarily equivalent to a mere descriptive label, and a wrong name given to the crime in that part of an information is an irregularity only and not fatal. The character of the offense must be determined by a consideration of the language contained in the charging part of the information. <bold>4. Same — Proper Submission of Punishment Defined by Statute.</bold> Where information charges defendant with illegal possession of liquor after two prior convictions for violations of the prohibitory liquor laws, the trial court acted properly in submitting the punishment defined by Tit. 37 O.S. 1941 § 12[<cross_reference>37-12</cross_reference>] and not the punishment provided by Tit. 37 O.S. 1941 § 14[<cross_reference>37-14</cross_reference>]. <bold>5. Intoxicating Liquors — Appeal and Error — Sufficiency of</bold> <bold>Circumstantial Evidence to Sustain Conviction for Illegal</bold> <bold>Possession of Intoxicating Liquors.</bold> The evidence, although wholly circumstantial, was sufficient to sustain conviction for illegal possession of intoxicating liquor.

(Syllabus.) <bold>1. Appeal and Error — Finding of Jury on Disputed Question of</bold> <bold>Fact not Disturbed Where Sustained by Competent Evidence.</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>2. Evidence — Other Offenses — When Evidence Admissible.</bold> Evidence of another offense, than the one charged, is admissible when it tends to prove the defendant guilty of the offense charged, and both offenses are so closely related or connected as to form a part of the res gestae. <bold>3. Same — Evidence Tending to Prove Defendant's Guilt of Other</bold> <bold>Offenses.</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>4. Trial — Duty of Counsel to Request Additional Instructions</bold> <bold>Desired.</bold> If upon the trial additional instructions are desired, it is the duty of counsel to reduce them to writing and request that they be given, and if he fails to do so, a conviction will not be reversed, unless the court is of the opinion, in the light of the entire record and instructions of the court, that there was a failure to instruct the jury upon<page_number>Page 257</page_number> some material question of law, and that the defendant has been deprived of a substantial right. <bold>5. Same.</bold> If upon the trial of a criminal case special instructions are desired by the defendant, he is required by the provisions of our Code of Criminal Procedure to present in writing to the court the instructions desired, and it is not error for the trial court to omit to instruct upon every possible question under the defendant's theory of the case, where he has not requested such instructions.

(Syllabus.) <bold>1. Homicide — Evidence — Conviction Upon Circumstantial Evidence</bold> <bold>— Degree of Proof Required.</bold> Where the evidence against the defendant is wholly circumstantial, the circumstances proved must not only be consistent with each other, but consistent with the defendant's guilt and inconsistent with any other reasonable hypothesis other than his guilt. <bold>2. Same — Evidence of Actions and General Demeanor of Defendant</bold> <bold>Shortly Before Homicide.</bold> Evidence of the actions, conduct,<page_number>Page 273</page_number> and general demeanor of defendant a short time prior to the commission of the alleged homicide is competent as tending to show the state of mind of defendant at the time of the killing. <bold>3. Trial — Province of Jury — Motion to Advise Verdict Properly</bold> <bold>Denied Where Either of Two Conclusions Deducible From</bold> <bold>Evidence.</bold> Trial courts in Oklahoma are limited in their power to interfere with the determination of issues of fact; and, where there are any facts from which the jury can legitimately deduce either a conclusion of guilt or innocence, a motion to advise the verdict should always be denied, and the question of fact properly submitted under instructions given. <bold>4. Homicide — Evidence — Admissible Circumstances for Purpose of</bold> <bold>Showing III Will, Malice, or Motive in Prosecution for Murder</bold> <bold>of Stepchild, but Incompetent for Any Other Purpose.</bold> Where in a prosecution for murder of defendant's stepchild, there is direct evidence the defendant continuously maltreated deceased, witnesses may testify to having witnessed acts of abuse on part of the defendant towards deceased, such as beating and kicking him; requiring the child to walk a beat long hours in the yard in hot weather; to go barefoot in the winter time and during such time not having said child properly clothed; that the child was afraid of his step-father; to have seen bruises and scratches on the child's face; and as to the child's constant hunger, and his emaciated condition as contrasted with his fatness when he first came under defendant's control; and as to specific acts evidencing general neglect; are admissible circumstances for the purpose of showing ill will, malice, or motive, but are incompetent for any other purpose; for the same reason that acts of kindness, love and affection are admissible in behalf of the defendant to show lack of ill will, malice or motive. <bold>5. Evidence — Admissibility of Photographs.</bold> When a photograph as shown to be a faithful reproduction of whatever it purports to reproduce, it is admissible in evidence, as an appropriate aid to the jury in applying the evidence and this is equally true whether it relates to persons, things, or places. <bold>6. Trial — Inapplicable Part of Statute Included in Instruction</bold> <bold>Treated as Mere Surplusage in Absence of Showing of</bold> <bold>Prejudice.</bold> Where in a trial for murder the court in instructing the jury, includes therein an inapplicable part of a statute, in the absence of a showing of prejudice the same will be treated as mere surplusage.<page_number>Page 274</page_number> <bold>7. Same — Refusal of Requested Instructions Where Covered By</bold> <bold>Court's Instructions.</bold> It is not error for the court to refuse the defendant's requested instructions where it appears the theory of his defense has been adequately covered in the instructions of the court. <bold>8. Appeal and Error — Unexplained Excerpts From Argument of</bold> <bold>Counsel to Jury.</bold> Ordinarily, error cannot be predicated on mere unexplained excerpts from remarks of counsel to the jury, but enough must appear to advise the appellate court of what preceded alleged objectionable statements and their meaning to be deduced from the context, and whether they were invited or provoked by opposing counsel's remarks.

(Syllabus.) <bold>Appeal and Error — Judgment Affirmed Where No Briefs Filed Nor</bold> <bold>Argument Presented.</bold> Where defendant appeals from judgment of conviction and no briefs are filed or argument presented, Criminal Court of Appeals will examine the evidence, not to discover errors in the admission or rejection of testimony, but only to ascertain if it supports the verdict, and examine the pleadings, instructions, and judgment, and, if no material error is apparent, judgment will be affirmed.

(Syllabus.) <bold>1. Habeas Corpus — Petition of Inmate of Penitentiary Liberally</bold> <bold>Construed.</bold> A petition for writ of habeas corpus prepared by an inmate of the State Penitentiary will be liberally construed, and if it contains any allegations that by a reasonable inference indicate that inmate is illegally restrained of his liberty, the Criminal Court of Appeals will assume original jurisdiction. <bold>2. Same — Writ Not Substituted for Appeal.</bold> The writ of habeas corpus may not be used as a substitute for an appeal. <bold>3. Same — Burden on Petitioner to Sustain Allegations of</bold> <bold>Petition.</bold> In habeas corpus proceeding, the burden is on petitioner to sustain allegations of petition, and every presumption favors regularity of proceedings in criminal prosecution, and scope of inquiry is limited to inquire into jurisdiction of court.

(Syllabus.) <bold>1. Searches and Seizures — Whether Search of Automobile Was</bold> <bold>"Reasonable" Was Judicial Question.</bold> Whether search and seizure from an automobile is reasonable, is, in its final analysis, to be determined as a judicial question, in view of all the circumstances under which it is made. <bold>2. Appeal and Error — Conclusiveness of Court's Finding of Fact</bold> <bold>on Motion to Suppress Evidence.</bold> The question of suppressing evidence being a judicial one, this court will not reverse the trial court upon a question of fact where there is a conflict of evidence, and there is competent evidence reasonably tending to support the finding of the trial court. <bold>3. Searches and Seizures — Arrest — Search Made Incident to</bold> <bold>Lawful Arrest not Invasion of Constitutional Rights.</bold> Where a defendant is lawfully arrested, and his automobile searched, the search made incident to such lawful arrest is not an invasion of the defendant's constitutional rights. <bold>4. Intoxicating Liquors — Necessary to Prove, by Direct or</bold> <bold>Circumstantial Evidence, Transportation of Liquor.</bold> Where an<page_number>Page 361</page_number> information charges accused with the offense of transporting intoxicating liquor, it is essential to sustain conviction that the state prove either by direct or circumstantial evidence the transportation of such liquor. The fact that whisky was found in parked automobile without any other evidence to show a transportation was insufficient to sustain conviction for transportation of intoxicating liquor.

(Syllabus.) <bold>1. Rape — Conviction on Uncorroborated Testimony of</bold> <bold>Prosecutrix.</bold> The rule applied by the Criminal Court of Appeals in rape cases is that a conviction for rape may be sustained upon the uncorroborated evidence of the outraged female unless her evidence is contradictory, uncertain, improbable, or she has been impeached. <bold>2. Same — Sufficiency of Evidence to Sustain Conviction for</bold> <bold>Rape.</bold> The evidence was sufficient to sustain the conviction. <bold>3. Same — Review to Ascertain if Punishment Assessed By the</bold> <bold>Court Was Excessive.</bold> Where jury found defendant guilty of rape in the second degree but left the punishment to be fixed by the court, who thereupon sentenced defendant to five years imprisonment in the penitentiary, and at the time of oral argument on appeal the Attorney General, the county attorney who prosecuted the case, and the prosecuting witness stated they believed the punishment was excessive, this court will review the entire record together with the statement of these interested people and if the evidence justifies it the punishment assessed by the court will be modified. <bold>4. Same — Judgment and Sentence Modified to Three Years'</bold> <bold>Imprisonment in Penitentiary.</bold> Judgment and sentence modified to three years imprisonment in the penitentiary.

(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 same and determine the facts. <bold>2. Same — Larceny of Domestic Animals — Function of Appellate</bold> <bold>Court in Considering Sufficiency of Evidence.</bold> The function of the Criminal Court of Appeals is limited to ascertaining whether or not there is a basis, in the evidence, on which the jury can reasonably conclude that the accused is guilty as charged. <bold>3. Same — Scope of Review to Determine Whether Refusal of</bold> <bold>Continuance Was Abuse of Discretion.</bold> In reviewing the refusal of a continuance, all the facts and circumstances disclosed by the record and testimony on the trial will be considered in determining whether or not the exercise of discretion by such court was abused in denying the application.