Volume 93 — Oklahoma Criminal Reports

(Syllabus.) <bold>1. Habitual Criminals — Nature of Statute — Habitual Criminality</bold> <bold>Is a State, not a Crime.</bold> Habitual criminal statute, 21 O.S. 1941 § 51[<cross_reference>21-51</cross_reference>], does not create or define a new or independent crime, but describes circumstances wherein one found guilty of a specific crime may be more severely penalized because of his previous conviction, as alleged and found. "Habitual criminality" is a state, and not a crime. <bold>2. Same — Effect of Allegation of Previous Conviction.</bold> The allegation of previous conviction is not a distinct charge of crime, but is necessary to bring the case within the habitual criminal statute, and pertains only to the punishment. <bold>3. Burglary — Minimum Punishment for Burglary in Second Degree</bold> <bold>After Former Conviction of Felony Is Ten Years in</bold> <bold>Penitentiary.</bold> The maximum punishment for burglary in the second degree is seven years imprisonment in the penitentiary, while the minimum punishment for burglary in the second degree after former conviction of a felony is ten years in the penitentiary. <bold>4. Same — Sentence of Ten Years for Burglary in Second Degree</bold> <bold>not Void Since Information Charged Burglary in Second Degree</bold> <bold>After Two Former Convictions for Felonies.</bold> Where accused is given a sentence of ten years imprisonment upon a plea of guilty to "burglary in the second degree as charged in the information herein", the judgment and sentence is not void because of such notation in the judgment and sentence since the information charged the crime of burglary in the second degree after two former convictions of felonies.<page_number>Page 78</page_number>

(Syllabus.) <bold>1. Appeal and Error — Invited Error — Remarks of Judge.</bold> A judgment of conviction will not be reversed because of the remarks of the trial judge, where such remarks were invited or encouraged by the conduct of defendant's counsel, unless it is clear that the impropriety complained of amounted to a deprivation of some constitutional or statutory right guaranteed to defendant. <bold>2. Same — Weight of Evidence for Jury — Drunk Driving — Function</bold> <bold>of Trial Court in Considering Sufficiency of Evidence.</bold><page_number>Page 146</page_number> 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. The function of the Criminal Court of Appeals is limited to ascertaining whether there is a basis, in the evidence, on which the jury can reasonably conclude that the accused is guilty as charged. <bold>3. Same — Sentence Reduced by Criminal Court of Appeals in</bold> <bold>Furtherance of Justice.</bold> The Criminal Court of Appeals in furtherance of justice may modify any judgment appealed from by reducing the sentence. Tit. 22 O.S.A. § 1066 [<cross_reference>22-1066</cross_reference>].

(Syllabus.) <bold>1. Appeal and Error — Sufficiency of Evidence in Jury Waived</bold> <bold>Case.</bold> Where jury is waived, judgment of trial court upon a disputed question of fact will be sustained on appeal where there is competent evidence in the record to support his finding. <bold>2. Automobiles — Held, Evidence Sufficient to Sustain Conviction</bold> <bold>for Driving Automobile While Intoxicated.</bold> Record examined, and evidence held sufficient to sustain conviction for driving an automobile on public highway while under the influence of intoxicating liquor.

(Syllabus.) <bold>1. Searches and Seizures — Evidence — Search of Automobile on</bold> <bold>Mere Suspicion Illegal and Evidence Obtained Thereby</bold> <bold>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, violates the constitutional provision forbidding unreasonable searches or seizures, and evidence obtained by such a search is inadmissible. <bold>2. Arrest — Arrest Without Warrant for Offense Committed or</bold> <bold>Threatened in Officer's Presence.</bold> Where an officer, after lawfully stopping or restraining a person, becomes aware that an offense is being committed or is about to be committed in the officer's presence, he may lawfully arrest the offender without a warrant, but where the officer becomes aware of the facts constituting the offense after making an unlawful arrest, the arrest cannot be justified as being for an offense committed in the officer's "presence." <bold>3. Searches and Seizures — Evidence — Search of Automobile</bold> <bold>Without Warrant After Unlawful Arrest Held Illegal and</bold> <bold>Evidence Obtained Inadmissible.</bold> The search of motorist's automobile without warrant of arrest, or search warrant, or knowledge that automobile contained intoxicating liquor, after motorist was unlawfully arrested, was an "unreasonable search" within meaning of the Constitution giving the right to be secure against "unreasonable searches," and evidence obtained from the motorist should have been excluded in prosecution for the unlawful transportation of intoxicating liquor. <bold>4. Same — Action of Officers in Making Arrest for Alleged</bold> <bold>Reckless Driving Held Subterfuge Where Defendant not Guilty,</bold> <bold>and Was a Violation of Defendant's Constitutional Right to</bold> <bold>Immunity From Unlawful Search.</bold> Where officers had information that certain truck was transporting intoxicating liquor and parked their automobile near the highway for several nights looking for the truck and when truck came along the highway driving about 30 miles per hour the sheriff turned onto the highway immediately behind the truck, sounded his siren and stopped the truck for alleged reckless driving and searched the truck without a warrant, the court will treat the action of the officer in making the arrest for alleged reckless driving as a subterfuge, where the facts fail to show defendant guilty of reckless driving, and an unlawful violation of the defendant's constitutional right to immunity from an unlawful search.<page_number>Page 181</page_number>

(Syllabus.) <bold>1. Habeas Corpus — Application on Grounds or Facts Existing When</bold> <bold>Former Application Made.</bold> Where the Criminal Court of Appeals has denied an application for writ of habeas corpus, it will not ordinarily entertain a subsequent application for such writ based on same grounds or on facts existing when first application was made, whether they were then presented or not. <bold>2. Same — Writ Denied When Questions Were Same as Those Raised</bold> <bold>on Previous Occasion.</bold> Where questions raised in habeas corpus proceeding were the same as the questions raised on previous occasion when petitioner filed petition for writ of habeas corpus, writ will be denied.

(Syllabus.) <bold>1. Criminal Law — Judgment Must Conform to Verdict.</bold> A judgment in a criminal case must be based upon the verdict of the jury and must be responsive to the issue joined upon the information and plea. Otherwise the court is without jurisdiction to pronounce the judgment. <bold>2. Appeal and Error — Variance Between Verdict and Judgment.</bold> Where there is a variance between the verdict of the jury and the judgment of conviction, it must appear from the record that such variance cannot be corrected without depriving the defendant of a substantial right, before a conviction will be set aside. <bold>3. Same — Remand of Cause to Make Judgment Conform to Verdict.</bold> Where a verdict of a jury assessing the punishment is in conformity with the law, the court must enter judgment and sentence in conformity to the verdict. Where there is a variance between the verdict of the jury and the judgment of the court, on appeal this court will remand the cause with direction to the trial court to render judgment and sentence in conformity to the verdict.

(Syllabus.) <bold>1. Evidence — Prosecution for Manslaughter Caused by Reckless</bold> <bold>Driving — Evidence of Position of Cars on Pavement as Part of</bold> <bold>Res Gestae.</bold> While 47 O.S. 1941 § 92[<cross_reference>47-92</cross_reference>] and 69 O.S. 1941 § 583[69-583] are distinct and separate statutes, evidence of the violation of both may be admissible where the evidence is a part of the res gestae. <bold>2. Same — Higher Degree of Proof of Negligence Required to</bold> <bold>Establish Criminal Responsibility Than to Establish Civil</bold> <bold>Liability.</bold> It is generally recognized that in order to punish one for a criminal offense there should be a higher degree of negligence than is required to establish civil liability; the rule in civil liability being based upon the "preponderance of the evidence", while in criminal cases one must be convicted "beyond a reasonable doubt". <bold>3. Same — Identification by Either Direct or Circumstantial</bold> <bold>Evidence.</bold> Identification by either direct or circumstantial evidence sufficient to establish the fact of identification is the controlling factor as to admissibility of evidence in relation to speed of an automobile at a point remote from the scene of collision in which said automobile is thereafter involved; and such evidence presents a circumstance for the consideration of the jury. <bold>4. Same — Evidence of Speed Judged by Sound Held Inadmissible.</bold> Testimony of witness, who did not see collision, that he judged from roar of defendant's automobile that it was traveling 80 miles per hour, held incompetent.

(Syllabus.) <bold>1. Appeal and Error — Time for Perfecting Appeal Runs From Date</bold> <bold>of Entry of Judgment.</bold> Time for making and serving case-made and perfecting an appeal runs from the date of the entry of judgment. <bold>2. Same — Failure to File Appeal Within Statutory Time</bold> Where appeal was not filed in Criminal Court of Appeals until one-hundred twenty-eight days after judgment, In misdemeanor case, this court is precluded by Tit. 22 O.S.A. § 1054 [<cross_reference>22-1054</cross_reference>], from giving consideration to the appeal.

(Syllabus.) <bold>1. Witnesses — General Rule as to Admissibility of Evidence of</bold> <bold>Other Offenses — Cross-Examination for Purpose of Affecting</bold> <bold>Credibility as to Convictions Sustained by Witnesses.</bold> The general rule is that evidence of offenses other than the one charged is inadmissible but this general rule does not operate to prevent the county attorney from inquiring of the accused on cross-examination, for the purpose of affecting his credibility, as to convictions which he has sustained. The accused upon taking the witnesses stand is governed by the same rules as apply to other witnesses. <bold>2. Trial — Discretion of Court as to Exclusion of Testimony of</bold> <bold>Witness Who Violated Rule.</bold> Where the court orders witnesses to be sworn and excluded from the courtroom during the taking of testimony, and a witness wilfully violates such rule, it is within the discretion of the court to allow or exclude the testimony of such witness. <bold>3. Murder — Submission of Issue of Murder to Jury Where Evidence</bold> <bold>Sufficient to Convict Defendant of Crime.</bold> Where the evidence of the state was sufficient to convict the defendant of the crime of murder, the trial court did not err in submitting the issue of murder to the jury but it was its duty to do so. <bold>4. Same — Punishment Upon Conviction for Manslaughter not</bold> <bold>Excessive.</bold> Punishment of 50 years imprisonment in penitentiary upon conviction for manslaughter was not excessive.

(Syllabus.) <bold>1. Indictment and Information — Right of Accused to Waive</bold> <bold>Preliminary Examination.</bold> The constitutional provision, art. 2, § 17 [<cross_reference>2-17</cross_reference>], Okla. Const., that no person shall be prosecuted for a felony by information without having had a preliminary examination is in the nature of a personal privilege for the benefit of the accused which may be waived by him. <bold>2. Same — Proper Manner of Challenging Jurisdiction Because no</bold> <bold>Preliminary Examination Had.</bold> The manner of challenging<page_number>Page 276</page_number> jurisdiction because no preliminary examination was held is by motion to quash or set aside the information before entering a plea on the merits. <bold>3. Habeas Corpus — Writ not Granted Where no Appeal Taken on</bold> <bold>Ground Accused Was not Given Preliminary Examination.</bold> Where accused, represented by counsel, was tried and convicted, of felony and no appeal was taken, he will not be heard on habas corpus to complain that he was not given a preliminary examination. <bold>4. Same — Application on Grounds or Facts Existing When Former</bold> <bold>Application Denied.</bold> Where the Criminal Court of Appeals has denied an application for writ of habeas corpus, it will not ordinarily entertain a subsequent application for such writ on the same grounds or facts existing when the first application was made, whether then presented or not.

(Syllabus.) <bold>Embezzlement — Statutes — One Aiding and Abetting in Commission</bold> <bold>of Crime of Embezzlement May Be Charged and Convicted as a</bold> <bold>Principal Under Statute.</bold> While the definition of embezzlement contained in Title 21, § 1456 [<cross_reference>21-1456</cross_reference>], O.S.A. 1941, confines the crime to fiduciaries and persons in a trust relation with the owner of any property, a person not within that classification who aids or abets in its commission may be charged and convicted as a principal under the provisions of Title 21, § 172 [<cross_reference>21-172</cross_reference>], O.S.A. 1941.<page_number>Page 283</page_number>

(Syllabus.) <bold>1. Trial — Erroneous Instruction on Question not Presented or</bold> <bold>Covered by Evidence.</bold> Instructions should be applicable to facts in evidence, and to all proper deductions and interpretations thereof, and not to questions not presented or covered by evidence. <bold>2. Homicide — Duty of Court to Determine Degree of Homicide,</bold> <bold>Confining Its Instructions to Such Degree.</bold> In a homicide case it is for the court to determine what degree or degrees of homicide the evidence tends to establish. And it is the duty of the court to confine its instructions to such degrees. <bold>3. Trial — Right of Defendant to Instruction on Law Applicable</bold> <bold>to Theory of Defense.</bold> It is error for the trial court to fail and refuse to instruct on the law applicable to a theory of the defense which the evidence tends to support, especially when requested by defendant. <bold>4. Same — Refusal of Instruction That Homicide Is Excusable When</bold> <bold>Committed by Accident and Misfortune, etc., Error.</bold> In prosecution for alleged unlawful killing by defendant striking decedent on his head with first, refusal of instruction that homicide is excusable when committed by accident and misfortune, in heat of passion, or upon sudden and sufficient provocation, or upon sudden combat, provided no dangerous weapon is used and killing is not done in cruel and unusual manner, was error. <bold>5. Homicide — Accidental Death Must Result From Lawful Act.</bold> Accidental death, to be wholly excusable, must have resulted from the doing of some lawful act. <bold>6. Same — Manslaughter in First Degree — Instructions Limiting</bold> <bold>Right of Self-Defense Held Prejudicial.</bold> A person has the right to defend himself against any assault and in a prosecution for homicide caused by accused striking deceased with his first, instructions limiting right of self-defense to a reasonable apprehension of design to kill or cause the accused great bodily injury was erroneous. <bold>7. Trial — Judgment Set Aside Where Instructions Did not Fully</bold> <bold>Present All the Material Issues Raised.</bold> The policy of the law is that all persons shall have a fair and impartial trial. It cannot be said that a fair and impartial trial has been had unless the jury have been properly instructed as to the law<page_number>Page 334</page_number> of the case; and where the instructions do not fully present all the material issues raised, the judgment of conviction will be set aside.

(Syllabus.) <bold>1. Searches and Seizures — Erroneous Admission of Search Warrant</bold> <bold>as Primary Evidence.</bold> It is error for the court to permit the state to introduce the search warrant as primary evidence where the recitals of such warrant are with reference to the essence of the offense charged. <bold>2. Trial — Permitting Search Warrant to Be Read to Jury Held</bold> <bold>Error.</bold> It is error to read the search warrant to the jury in the state's case in chief and to send it to the jury room for its examination. <bold>3. Arrest — Sheriffs and Constables — Constable May Serve Either</bold> <bold>Civil or Criminal Process Any Place Within His County Under</bold> <bold>the Statutes.</bold> A constable may serve either civil or criminal process any place within his county under the provisions of Title 39, § 602 [<cross_reference>39-602</cross_reference>], O.S.A. 1941, Session Laws 1947, page 299, § 1.

(Syllabus.) <bold>1. Searches and Seizures — Erroneous Admission of Search Warrant</bold> <bold>as Primary Evidence.</bold> It is reversible error for the court to permit the state to introduce the search warrant as primary evidence where the recitals of such warrant are with reference to the essence of the offense charged. <bold>2. Appeal and Error — Prejudicial Error in Admission of Hearsay</bold> <bold>Evidence.</bold> The reception of hearsay testimony which contributed to a verdict of guilty does not constitute harmless error, but is ground for reversal. <bold>3. Intoxicating Liquors — Burden on State in Prosecution for</bold> <bold>Having Possession With Intent to Sell.</bold> In a prosecution for having possession of intoxicating liquors with intent to sell same, the burden was on the state to prove that the place<page_number>Page 373</page_number> where the liquor was found was in defendant's possession or under his control, or that the intoxicating liquor was his, or that he had possession of same either as owner or employee. <bold>4. Searches and Seizures — Substantial Compliance With Statutory</bold> <bold>Provisions as to Service of Search Warrant.</bold> Where an officer to whom a search warrant is directed is present and acting in the execution of the search warrant, the fact the warrant may have been in the manual possession of a special police officer not named therein, who served the warrant, is substantial compliance with the provisions of Title 22, § 1227 [<cross_reference>22-1227</cross_reference>], O.S.A. 1941, to the effect that a search warrant may be served by any of the officers mentioned in its direction, he being present and acting in its execution.

(Syllabus.) <bold>1. Seduction — Statutory Offense of Seduction Under Promise of</bold> <bold>Marriage — Conviction May not Be Sustained on Uncorroborated</bold> <bold>Testimony of Person Alleged to Have Been Seduced.</bold> By statute it is provided that in a prosecution for the crime of seduction under promise of marriage, a conviction may not be sustained upon the uncorroborated testimony of the person alleged to have been seduced. 22 O.S. 1941 § 744[<cross_reference>22-744</cross_reference>]. <bold>2. Same — Extent of Corroboration.</bold> In a prosecution for seduction under promise of marriage, the testimony of the prosecutrix must be corroborated as to the promise of marriage and illicit intercourse, but need not be as to her being unmarried and of previous chaste character. <bold>3. Same.</bold> In a prosecution for seduction under promise of marriage, the prosecuting witness is not required to be corroborated by direct and positive proof of facts independent of her testimony,<page_number>Page 414</page_number> but only as to such facts and circumstances as usually form the concomitants to the main facts sought to be established, which facts should be sufficiently strong within themselves to satisfy the jury of the truthfulness of the prosecutrix in her evidence on the principal facts testified to by her. <bold>4. Indictment and Information — Right of Accused to Waive</bold> <bold>Preliminary Examination.</bold> The constitutional provision providing that no person shall be prosecuted for a felony by information without having had a preliminary examination before a magistrate is in the nature of a personal privilege for benefit of the accused which may be waived by him. Art 2, § 17 [<cross_reference>2-17</cross_reference>], Okla. Const. <bold>5. Evidence — Constitutional Provision Accused Shall Be</bold> <bold>Confronted With Witnesses Against Him.</bold> By constitutional provision and statute it is provided that in all criminal prosecutions the accused shall be confronted with the witnesses against him. Art. 2, § 20, Okla. Const.; 22 O.S. 1941 § 13[<cross_reference>22-13</cross_reference>]. <bold>6. Same — Transcript of Testimony of Absent Witness Given at</bold> <bold>Preliminary Trial.</bold> Where the accused at a preliminary hearing once enjoyed his right to be confronted by witnesses against him and had the privilege of cross-examining the witnesses, in a subsequent prosecution for the same offense where counsel for the accused stipulated that the transcript of the testimony of the witnesses in the former preliminary hearing could be introduced as the evidence in the new hearing, the accused may not on appeal complain that in the second purported preliminary examination he was denied his right to be confronted by the witnesses against him.