Volume 94 — Oklahoma Criminal Reports

(Syllabus.) <bold>1. Arraignment and Pleas — Power of Court to Withdraw Plea of</bold> <bold>Guilty and Substitute Plea of not Guilty.</bold> The court may, at any time before judgment, upon a plea of guilty, permit it to be withdrawn, and a plea of not guilty substituted, Title 22 O.S.A. 1941 § 517[<cross_reference>22-517</cross_reference>], and on appeal the action of the trial court in such a case will not be set aside unless there appears an abuse of discretion. <bold>2. Same — Burden on Defendant to Show Plea of Guilty Was Entered</bold> <bold>Through Inadvertence, or Through Ignorance.</bold> Where the defendant seeks to withdraw his plea of guilty and substitute therefor a plea of not guilty, the burden is upon the defendant to show that his plea of guilty was entered through inadvertence or through ignorance, influence, or without deliberation, and that there is a defense that should be presented to the jury. <bold>3. Punishment and Sentence — Drunk Driving — Punishment Fixed by</bold> <bold>Statute for Driving Automobile While Intoxicated Not</bold> <bold>Excessive, but Very Moderate Considering Gravity of Offense.</bold> Driving an automobile while intoxicated is a grave offense, the driver being a potential murderer of any peaceful citizen going about his business on the public highway. The punishment fixed by chapter 16, section 3, Session Laws 1923, Title 47, § 93 [<cross_reference>47-93</cross_reference>], O.S.A. 1941, is not excessive, but is very moderate considering the gravity of the offense. <bold>4. Same — Discretion of Trial Court as to Inquiry on Extent of</bold> <bold>Punishment to Be Imposed by Court, and as to Extent of</bold> <bold>Inquiry.</bold> Under Title 22, § 973 [<cross_reference>22-973</cross_reference>], O.S.A. 1941, after a plea or verdict of guilty in a case where the extent of the punishment is left with the court, the court, upon the suggestion of either party that there are circumstances which may be properly taken into view, either in aggravation or mitigation of the punishment, may in its discretion hear the matter summarily at a specified time and upon such notice to the adverse party as it may direct. Under such statute the extent of the inquiry, when the accused comes on for the pronouncement of sentence, is a matter addressed to the sound discretion of the trial court. <bold>5. Same — Court May Be Guided in Exercise of Discretion as to</bold> <bold>Character of Punishment by Accused's Past Record, etc.</bold> Where the court has a discretion as to the character or the amount of punishment, it may be guided in the exercise of such discretion by accused's past record, by the motives actuating the crime, or by the fact that accused previously has been convicted of a similar or other offenses. <bold>6. Same — Appeal and Error — Abuse of Judicial Discretion</bold> <bold>Necessary Before Punishment Reduced by This Court.</bold> It is well settled that before this court can modify the judgment and reduce the punishment, it must clearly appear that the court abused its judicial discretion in assessing the punishment.

(Syllabus.) <bold>1. Appeal and Error — Conclusiveness of Court's Finding of Fact</bold> <bold>on Motion to Suppress Evidence.</bold> The Criminal Court of Appeals will not reverse a trial court upon a finding of fact in connection with a motion to suppress the evidence where there is competent evidence reasonably tending to support the findings of the court.<page_number>Page 12</page_number> <bold>2. Searches and Seizures — Search Without Warrant of Automobile</bold> <bold>— Whether Search and Seizure Reasonable Judicial Question.</bold> Whether search and seizure, without a warrant, is or is not unreasonable within the meaning of the constitutional provision (Oklahoma Constitution, art. 2, § 30, forbidding unreasonable searches and seizures, is a judicial question to be determined in each case in view of all the facts and circumstances under which the search and seizure is made. <bold>3. Trade-Marks and Trade Names — Presumption That Package</bold> <bold>Contains Merchandise Labeled Thereon.</bold> Because of the stringent laws against misbranding of merchandise and counterfeiting of labels (Tit. 78 O.S. 1941) there is a legal presumption that a package contains the merchandise labeled thereon, where the package is a sealed, unopened pasteboard carton, in the same condition as it came from the manufacturer of the product. <bold>4. Arrest — Arrest Without Warrant Where a Crime Is Committed in</bold> <bold>Presence of Officers.</bold> Where two deputy sheriffs are in the street or on the sidewalk where they have a right to be, and they see an unknown party's automobile backed into a driveway up to the back end of a known bootlegger's automobile, and there see said unknown party passing from his automobile to the known bootlegger, unopened, sealed cartons, on the sides of which are plainly printed the recognizable words "Sunny Brook" and "whiskey", a crime is committed in the presence of the officers which authorized the arrest of the whiskey dealers, and the search of their automobiles and the seizure of the liquor. <bold>5. Intoxicating Liquors — Seizure Without Warrant Legal Where</bold> <bold>Liquor in Full View.</bold> The constitutional provision against unreasonable searches and seizures does not preclude the making of a seizure, without a warrant previously procured, of intoxicating liquor, where there is no need of a search for the liquor because the liquor is fully disclosed to the eye.

(Syllabus.) <bold>1. Habeas Corpus — Necessary Prima Facie Showing in Application</bold> <bold>for Writ.</bold> An application for writ of habeas corpus must at least make prima facie showing that the applicant's confinement is unlawful. <bold>2. Same — Scope of Inquiry as to Jurisdiction of Sentencing</bold> <bold>Court.</bold> Where petitioner is imprisoned under a judgment of conviction and seeks to be discharged on habeas corpus, the inquiry is limited to the question whether the court in which he was convicted had jurisdiction of his person and of the crime charged, and if the trial court had jurisdiction to convict and sentence, the writ cannot issue to correct irregularities of procedure. <bold>3. Same — Writ Denied Where Facts Stated in Petition</bold> <bold>Insufficient.</bold> Where the facts stated in a petition for a writ of habeas corpus, if established, will not warrant the discharge of the petitioner, the writ will be denied.

(Syllabus.) <bold>1. Appeal and Error — Judgment Affirmed Where No Briefs Filed</bold> <bold>and on Examination of Record No Prejudicial Error Appears.</bold> Rule 9 of the Criminal Court of Appeals provides: "When no counsel appears and no briefs are filed, the court will examine the pleadings, the instructions of the court, and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears will affirm the judgment." <bold>2. Same.</bold> Record examined. No prejudicial error is found, and the judgment is affirmed.

(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 facts, it is sufficient ground for the magistrate to issue the warrant. <bold>2. Same — Whole Affidavit to Be Considered in Construction Not</bold> <bold>too Technical.</bold> In construing the affidavit as a basis for the issuance of a search warrant, the whole affidavit should be considered. While the affidavit and search warrant should be strictly construed, a technical construction should not be placed thereon which destroys the true meaning. <bold>3. Intoxicating Liquors — Sufficiency of Affidavit for Search</bold> <bold>Warrant.</bold> The fact that an affidavit for a search warrant is in the main based upon allegations in a printed form, does not invalidate a warrant based thereon if there are sufficient evidentiary facts set forth in the affidavit to justify the magistrate in concluding that there was probable cause for issuing the warrant. <bold>4. Searches and Seizures — Sufficiency of Search Warrant</bold> <bold>Directed to any Sheriff, Constable, Marshal or Policeman of</bold> <bold>Named County.</bold> Sections 1225, 1226, and 1227 of Title 37, O.S.A. should be construed together, and as so construed with reference to the direction as to service, where the warrant is in substantially the form set out in the statute, and in the within case being, after formal heading: "The State of Oklahoma: To Any Sheriff, Constable, Marshal or Policeman of Payne County, Oklahoma:" the same is sufficient, and the statute does not require the warrant to be directed to a particular peace officer by name, though the magistrate is not prohibited from so limiting the search warrant in a particular case. <bold>5. Same — Search Warrant not Invalidated by Failure of Officer</bold> <bold>to Make Return Thereon.</bold> A search warrant otherwise valid, which has been executed within ten days from the time it was issued, is not rendered invalid by failure of the officer to make return thereon.<page_number>Page 38</page_number> <bold>6. Intoxicating Liquors — Evidence Sufficient to Sustain</bold> <bold>Conviction for Unlawful Possession of Intoxicating Liquor</bold> <bold>After Two Previous Convictions.</bold> Evidence sustained conviction for unlawful possession of intoxicating liquor, after having been twice previously convicted for unlawful possession of intoxicating liquor. <bold>7. Same — Proper Submission of Punishment by Court Under Statute</bold> <bold>Relating to Illegal Possession.</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.A. § 12 [<cross_reference>37-12</cross_reference>], and not the punishment provided by Tit. 37 O.S.A. § 14 [<cross_reference>37-14</cross_reference>]. <bold>8. Indictment and Information — Character of Offense to Be</bold> <bold>Determined by Language Contained in Charging Part of</bold> <bold>Information.</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>9. Punishment — Facts Considered by Court Where Punishment Fixed</bold> <bold>Severe in Determining Whether Sentence Should Be Modified.</bold> Where the jury finds an accused guilty of the crime charged and leaves the punishment to be fixed by the court, and on motion in arrest of judgment and for new trial counsel for the defendant charges that the county attorney pleaded with the jury to leave the punishment to the court, and this was not denied, and in connection therewith it was stipulated at the time of hearing by the trial court of said motions, that immediately after the jury retired the county attorney handed to the court an account book bearing the name of defendant's wife, but otherwise not identified and not having been offered in evidence and the book contained a long list of purported whisky and gin sales, but bearing no dates, such facts will be considered by this court where the punishment fixed is severe, in determining whether the sentence should be modified. The action of the county attorney cannot be overlooked, being inherently irregular, and not approved.

(Syllabus.) <bold>1. Intoxicating Liquors — Necessary to Prove Transportation of</bold> <bold>Liquor.</bold> Where an information for conveying intoxicating liquor from one place within the state to another place therein, alleges a removal from one particular place to another particular place, it is essential to sustain a conviction that the state prove the conveyance as alleged. <bold>2. Appeal and Error — Conviction For One Offense not Affirmed</bold> <bold>Where Proof Establishes Other Offenses.</bold> This court is powerless to affirm a conviction for one offense, where the proof establishes another and separate offense, not included within the charge. <bold>3. Same — Reversal of Conviction for Insufficiency of Evidence.</bold> While it is well settled that this court will not reverse a conviction for insufficiency of the evidence, if there is any substantial evidence, although circumstantial, from which a reasonable and logical inference of guilt arises, the converse is also well settled, that it is not only the province but the duty of the court to set aside such a verdict when it is contrary to law and the evidence, or where there is no evidence to support it, or there is a failure to prove some essential matter to establish the offense charged.<page_number>Page 57</page_number>

(Syllabus.) <bold>1. Appeal and Error — Judgment Affirmed Where No Briefs Filed</bold> <bold>and on Examination of Record No Prejudicial Error Appears.</bold> Rule 9 of the Criminal Court of Appeals provides: "When no counsel appears and no briefs are filed, the Court will examine the pleadings, the instructions of the court, and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears will affirm the judgment." <bold>2. Same.</bold> Record examined. No prejudicial error is found, and the judgment is affirmed.

(Syllabus.) <bold>Appeal and Error — Sufficiency of Evidence to Sustain Verdict.</bold> Where the evidence and the reasonable and logical inferences and deductions to be drawn from it are sufficient to convince the jury beyond a reasonable doubt of the guilt of the accused, Criminal Court of Appeals will not disturb the verdict for insufficiency.

(Syllabus.) <bold>Habeas Corpus — Burden to Show Court Without Jurisdiction to</bold> <bold>Sentence.</bold> Petitioner in order to be entitled to his discharge from imprisonment in the penitentiary on habeas corpus has the burden of showing that the court which sentenced him was without jurisdiction.<page_number>Page 80</page_number>

(Syllabus.) <bold>1. Jury — Province of Jury.</bold> It is the province of the jury to weigh the evidence and determine the facts. <bold>2. Nuisance — Sufficient Evidence to Sustain Conviction for</bold> <bold>Maintaining Public Gambling Nuisance.</bold> In prosecution for conducting a public nuisance where persons congregate for the purpose of gambling, there was sufficient evidence to sustain conviction. <bold>3. Trial — Conviction not Reversed Where Defendant Failed to</bold> <bold>Call Court's Attention to Certain Objectionable Instruction.</bold> Where trial court gives an instruction in the language of the statute and counsel for defendant is not satisfied with such instruction, it was his duty to call the matter to the court's attention by requesting that such instruction be made more specific or comprehensive, and where this is not done a conviction will not be reversed unless the appellate court is of the opinion in the light of the entire record that defendant was denied a fair and impartial trial or was prejudiced in some manner by reason of the instructions that were given.

(Syllabus.) <bold>Trial — Sufficiency of Evidence to Sustain Jury's Verdict.</bold> It is not error for the court to refuse an instructed verdict of not guilty in a case charging assault with intent to kill where the evidence is sufficient to sustain the jury's verdict.

(Syllabus.) <bold>1. Appeal and Error — Sufficiency of Evidence to Uphold Finding</bold> <bold>of Jury on Disputed Questions of Fact.</bold> The finding of a jury upon disputed questions of fact, approved by the trial court, will be upheld where there is competent evidence in the record to sustain the verdict of the jury. <bold>2. Jury — Order of Voir Dire Examination of Prospective Jurors.</bold> There is no express provision of the Code of Criminal Procedure pertaining to the order of voir dire examination of prospective jurors, but by custom and practice ordinarily the prosecution first examines the jurors and then the defendant. <bold>3. Same — Trial — Directing Counsel for Defendant to First</bold> <bold>Examine Jurors on Their Voir Dire Instead of State Not</bold> <bold>Reversible Error.</bold> The fact that trial court, over objection, directed counsel for defendant to first examine the jurors on their voir dire instead of the state did not constitute reversible error where there is no contention that by such procedure the accused was prevented from having a fair and impartial jury or that he suffered prejudice. <bold>4. Indictment and Information — Sufficiency of Information</bold> <bold>Against Demurrer.</bold> Where the information sufficiently identifies the offense so as to enable the defendant to know with what she was charged so that she could prepare her defense and plead the conviction or acquittal as a bar to a subsequent prosecution for the same offense, it is sufficient as against a demurrer.<page_number>Page 108</page_number>

(Syllabus.) <bold>1. Arrest — Right of Officers to Arrest Defendant for Committing</bold> <bold>Misdemeanor in Their Presence.</bold> Where officers armed with a "John Doe" search warrant limiting their search to the garage portion of a one-story concrete block building, enter the garage portion and defendant steps into this room from the rear portion of the building, and the officers observe a pint of whisky in his hand; Held, that the officers had the right and that it was their duty to arrest defendant for committing a misdemeanor in their presence.<page_number>Page 143</page_number> <bold>2. Intoxicating Liquors — Evidence — Evidence Obtained by</bold> <bold>Unlawful Invasion of Defendant's Apartment Unlawful and</bold> <bold>Inadmissible.</bold> Ordinarily, the lawful arrest of a person for committing a misdemeanor in the presence of the arresting officers, would entitle the officers to search the person and his immediate possession, and in this case to search defendant's apartment, except that a fellow officer had just previously by a trespass into defendant's apartment through a rear open door, discovered defendant's cache of liquors, which invasion was in violation of art. II, sec. 30, Constitution of Oklahoma, and therefore unlawful, and rendered inadmissible the evidence so obtained. <bold>3. Intoxicating Liquors — One Pint of Whisky Sufficient to Form</bold> <bold>Basis for Prosecution for Unlawful Possession.</bold> One pint of whisky is sufficient to form the basis for prosecution for unlawful possession where the accused holds a current Federal Retail Liquor Dealer's license. Tit. 37 O.S. 1941 § 81[<cross_reference>37-81</cross_reference>]. <bold>4. Punishment — Modification of Sentence Assessed.</bold> Where jury was waived and case tried to the court, and punishment assessed was appreciably more than the minimum, and the court admitted in evidence testimony concerning a quantity of whisky discovered by an unlawful invasion, in addition to a pint legally obtained; and where the quantity of whisky might have influenced the court in the amount of punishment assessed, this court in the interest of fairness and justice, and giving the defendant the benefit of the doubt, will give such facts consideration in modification of punishment assessed.

(Syllabus.) <bold>Appeal and Error — Judgment Affirmed in Absence of Briefs and</bold> <bold>Argument on Defendant's Appeal.</bold> Where no briefs are filed nor argument presented on defendant's appeal from a judgment of conviction, Criminal Court of Appeals will examine evidence to determine if it supports verdict, and examine the pleadings, instructions and judgment, and if no material error is apparent, judgment will be affirmed.

(Syllabus.) <bold>1. Automobiles — Duty of Officers to Make Investigation Where</bold> <bold>Car Is Being Operated in Unorthodox Manner.</bold> Where officers observe an unusual appearance in the driver of a motor vehicle, and then, though no traffic law is being violated, observe that the car is being operated in an unorthodox manner, and conclude that defendant is intoxicated, they are justified, and it is their duty, to make further investigation. <bold>2. Arrest — Where Officers Justified in Arresting Driver for</bold> <bold>Operating Vehicle While Under Influence of Intoxicating</bold> <bold>Liquor.</bold> Where officers have reasonable apprehension that the driver of a motor vehicle is intoxicated, and they stop him and their judgment is sustained by the smell of liquor on the driver's breath, and by his disheveled appearance and unsteadiness on his feet on getting out of car, the officers are justified in arresting the driver for operating a motor vehicle while under the influence of intoxicating liquor. <bold>3. Searches and Seizures — Search Without Warrant Where Lawful</bold> <bold>Arrest for Misdemeanor Committed in Presence of Arresting</bold> <bold>Officers.</bold> Where there has been a lawful arrest for a misdemeanor committed in the presence of the arresting officers, they may then search the defendant and his immediate surroundings though they have no warrant, and such search is not held unreasonable. Tit 22 O.S. 1941 § 196[<cross_reference>22-196</cross_reference>]. <bold>4. Appeal and Error — Question of Guilt or Innocence of Accused</bold> <bold>of Crime Charged for Jury.</bold> The question of the guilt or innocence of the accused of the crime charged is a fact question ultimately to be determined by the jury, after being properly instructed as to the applicable law, and it is the exclusive province of the jury to weigh the evidence, and where there is competent evidence in the record from which the jury could reasonably conclude that defendant was guilty as charged, this court, in the absence of fundamental error, will not set aside the verdict, even though there is a sharp conflict in the evidence and different inferences may be drawn therefrom. <bold>5. Trial — Duty of Courts to see That Guaranty of Fair and</bold> <bold>Impartial Trial Is Upheld and Sustained.</bold> The law of the land guarantees to every person accused of crime, whether guilty or innocent, a fair and impartial trial according to the due and orderly course of the law, and it is the duty resting upon the courts to see that the guaranty of such a trial shall be upheld and sustained. <bold>6. Appeal and Error — Error in Repeated Interrogation of</bold> <bold>Witnesses by Trial Court.</bold> It is the duty of the trial courts to refrain from in any manner, either through their actions or words, indicating to the jury their opinion upon the merits of the case being tried before them. For that reason, except when it appears absolutely necessary to the administration of justice, the trial judge should not interrogate witnesses. <bold>7. Appeal and Error — Case Reversed for New Trial Where Accused</bold> <bold>Failed to Have Fair Trial and Jury Assessed Excessive</bold> <bold>Punishment.</bold> Where from a study<page_number>Page 172</page_number> of the entire record there is found a sharp conflict in the evidence, and different inferences may be drawn therefrom, and the case is a close one, and it is apparent that the court took an undue interest in qualifying and questioning witnesses, eliciting a very prejudicial and harmful answer from an officer, and even though he properly advised the jury to disregard such reply, and the county attorney follows up the insinuation produced by the answer when he examines the defendant, and asks other prejudicial questions of witnesses, and the court on conviction of the accused by the jury assesses excessive punishment as well as punishment not within the jurisdiction of the court, the contention of the accused that he did not have a fair trial will be sustained and the case reversed for a new trial.

(Syllabus.) <bold>1. Habeas Corpus — Purpose of writ.</bold> The office of a writ of habeas corpus is not to determine the guilt or innocence of the prisoner, and the only issue which it presents is whether he is restrained of his liberty by due process of law. <bold>2. Same — Defendant not Entitled to Discharge on Ground Evidence</bold> <bold>on Preliminary Examination Was Insufficient.</bold> 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.<page_number>Page 197</page_number>

(Syllabus.) <bold>Searches and Seizures — "Blanket" Warrant Insufficient in Law to</bold> <bold>Sustain Search.</bold> Where a search warrant describes premises upon which are located more than one house in which persons other than the accused reside, the same is a "blanket" warrant, insufficient in law to sustain a search. 22 O.S. 1941 § 1226[<cross_reference>22-1226</cross_reference>]; 37 O.S. § 84[<cross_reference>37-84</cross_reference>].

(Syllabus.) <bold>Appeal and Error — Conviction Reversed as Not Sustained by</bold> <bold>Sufficient Evidence.</bold> Where the evidence of the state to sustain a conviction is based upon surmise, speculation, and suspicion, the conviction will be reversed as not sustained by sufficient evidence. <bold>2. Record Examined;</bold> and evidence held insufficient to sustain conviction for unlawful possession of intoxicating liquor.

(Syllabus.) <bold>Appeal and Error — Sufficiency of Evidence, Though Conflicting,</bold> <bold>to Sustain Verdict.</bold> Criminal Court of Appeals will not substitute its judgment for that of the jury where there is a conflict in the evidence and the evidence of the state is sufficient to support the verdict of the jury.

(Syllabus.) <bold>Disorderly Conduct — Person Wilfully Throwing Missile in Public</bold> <bold>Place Guilty of Misdemeanor.</bold> Under the provisions of Title 21, § 1364 [<cross_reference>21-1364</cross_reference>], O.S.A. 1941, every person who wilfully throws any missile in any public place, or in any place where there is any person to be endangered thereby, although no injury to any person shall ensue, is guilty of a misdemeanor.

(Syllabus.) <bold>Appeal and Error — Sufficiency of Evidence to Sustain Judgment.</bold> The jury must determine the facts and its judgment based upon competent evidence will be upheld on appeal.

(Syllabus.) <bold>1. Appeal and Error — Sufficiency of Evidence, Though</bold> <bold>Conflicting, to Sustain Verdict.</bold> Where the evidence is conflicting but that of the state is amply sufficient to justify the jury in returning a verdict of guilty, the verdict will not be disturbed on appeal because of the alleged lack of evidence. <bold>2. Intoxicating Liquors — Drunk Driving — Fine not Excessive.</bold> Five hundred dollars fine assessed for conviction on charge of driving automobile on public highway while intoxicated was not excessive.

(Syllabus.) <bold>1. Municipal Corporations — Streets Dedicated to Public Use.</bold> The streets of a municipality are dedicated to the public use and any title which a municipality has is in trust for the benefit of the public. <bold>2. Same — Primary Purpose of Public Use of Streets of</bold> <bold>Municipality Is Travel.</bold> The primary purpose of the public use of streets of a municipality is travel and the public has the absolute right to the free use of the streets for travel and any regulation which interfered with the right of the public to travel on the streets would be invalid. <bold>3. Same — City May Regulate Traffic on Streets and Alleys.</bold> A city through the exercise of its police power may regulate the traffic on streets and alleys within the city. <bold>4. Same — Ordinances Regulating Use of Streets —</bold> <bold>Reasonableness.</bold> City council of Oklahoma City had the right to regulate the use of the streets by ordinances, so as to prevent, as far as possible, the loss and inconvenience arising from traffic congestion. It was for the council to determine what means should be adopted to remove the causes of traffic hazards, and its determination of such means cannot be disturbed, unless the means adopted are unreasonable. It is the province of the city council under its police power to decide in what streets or parts of streets, during what hours, and for what length of time, limitation of the right to park or allow a vehicle to remain standing on the street is necessary to a proper regulation of traffic, and the courts should not interfere so as to set aside an ordinance making such regulations unless it is clearly unreasonable. <bold>5. Same — Classification in Application of Ordinance of Vehicles</bold> <bold>as Commercial or Noncommercial According to Usage.</bold> The legislative body of a municipality may make classifications in the application of an ordinance which are relevant to the legislative purpose, and in connection with the regulation of traffic it may classify vehicles as commercial or noncommercial according to their usage.<page_number>Page 250</page_number> <bold>6. Same — Constitutional Law — Constitutionality of Municipal</bold> <bold>Ordinance — Fundamental Principles.</bold> In determining the question of the constitutionality of a municipal ordinance, and as to whether it is in violation of the "equal protection" clause of the Fourteenth Amendment to the Constitution of the United States, the following fundamental principles are important: (a) The equal protection clause of the Fourteenth Amendment does not take from the municipality the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis, and therefore is purely arbitrary. (b) A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety, or because in practice it results in some inequality. (c) When the classification in an ordinance is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the ordinance was enacted must be assumed. (d) One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary. <bold>7. Same — Constitutionality of Ordinance Regulating Parking of</bold> <bold>Vehicles in Loading Zones.</bold> Municipal ordinance establishing loading zones in business section of city, limiting the length of time commercial vehicles may park therein for the purpose of unloading or loading merchandise, and prohibiting the use of said zone by noncommercial vehicles except for unloading or loading of passengers was constitutional.

(Syllabus.) <bold>1. Appeal and Error — Failure to File Briefs — Review —</bold> <bold>Affirmance.</bold> Where defendant appeals from judgment of conviction and no briefs are filed or argument presented, this court 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. <bold>2. Rape — Entire Record Examined and Found Regular — Sufficiency</bold> <bold>of Evidence to Support Verdict.</bold> The pleadings, instructions, judgment and entire record carefully examined and found to be regular and in accordance with law, and ample evidence found to support the verdict of the jury.

(Syllabus.) <bold>1. Appeal and Error — Exclusive Province of Jury to Determine</bold> <bold>Facts — Sustained.</bold> It is the exclusive province of the jury to determine the facts, and the verdict of the jury upon disputed question of fact should be sustained on appeal.<page_number>Page 286</page_number> <bold>2. Same — Sufficiency of Evidence — No Reversible Error.</bold> The evidence was sufficient to sustain the conviction, and no reversible error was found.

(Syllabus.) <bold>1. Appeal and Error — Trial — Necessary to Request Instructions</bold> <bold>Desired — Case not Reversed Where Instructions Generally Cover</bold> <bold>Subject Matter.</bold> Where counsel are dissatisfied with instructions that are given, or desire the court to give any particular instruction, or to more definitely or sufficiently state any propositions embraced in the instructions, 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 this court will not reverse the case where the instructions generally cover the subject matter of the inquiry. <bold>2. Same — Instructions Considered as a Whole.</bold> Instructions must be considered as a whole, and, when considered altogether, if they fairly and correctly state the law applicable to the case, they will be sufficient. <bold>3. Manslaughter — Trial — Instruction in Manslaughter Case that</bold> <bold>Aggressor Is Not Allowed Right of Self-Defense Not</bold> <bold>Objectionable on Ground There Was No Evidence Accused Was</bold> <bold>Aggressor.</bold> Court did not err in giving the following instruction: "Evidence has been introduced herein upon the part of the defendant, tending to prove that prior to the fatal difficulty the deceased had made threats of violence against him, and such threats, should you find the same to have been made, should be considered by you in connection with all the other evidence in the case, to assist you in determining the feelings of the deceased towards the defendant and to assist you in determining who was the probable aggressor in the fatal difficulty. But mere threats alone, though actually made and communicated, and however violent they may be, will not justify, excuse or mitigate a homicide. "The law does not permit one person to kill another merely because the other has made threats against him, unless the deceased, at the time of the fatal difficulty, without being wilfully provoked thereto by the defendant, and without the defendant having brought on the difficulty, made some overt act<page_number>Page 348</page_number> or demonstration, indicating to the defendant, as a reasonable person, an intention to kill him or to do him some bodily harm; "And should you find in this case, beyond a reasonable doubt, that at the time of the fatal difficulty the deceased did not make some overt act or demonstration indicating to the defendant, as a reasonable person, an intention to assault him and to do him some serious bodily harm or to kill him, then any threats previously made against the defendant are immaterial for any purpose in this case, and should not be considered by the jury, but entirely disregarded and given no weight whatever under such circumstances." <bold>4. Trial — Repetitious Instructions.</bold> Trial court should not give repetitious instructions. In this case the giving of repetitious instructions was favorable to the defendant, as the requested instructions of the defendant, which were given by the court, repeated in substantially the same language what was said in instructions which the court had already prepared and which were given, and the court unnecessarily through repetition thus emphasized the defendant's theory of the case. Although this was error, it was favorable error to the defendant, and he may not complain. <bold>5. Manslaughter — Sufficiency of Evidence to Support Conviction</bold> <bold>for Manslaughter in First Degree.</bold> The evidence was sufficient to support a conviction for manslaughter in the first degree.

(Syllabus.) <bold>Appeal and Error — Sufficiency of Evidence, Though Conflicting,</bold> <bold>to Sustain Conviction for Driving Automobile Under Influence</bold> <bold>of Liquor.</bold> Criminal Court of Appeals will not interfere with verdict of jury rendered on conflicting evidence, where the evidence of the state is amply sufficient to sustain the conviction.

(Syllabus.) <bold>1. Witnesses — Cross-Examination of Defendant With View of</bold> <bold>Affecting Credibility of Character Witness.</bold> Where defendant charged with first degree manslaughter voluntarily brings in issue his reputation for being a peaceable and law-abiding citizen, and in addition to proof offered to show such character, personally testifies and interjects evidence of antecedent matters between himself and deceased claimed to have a direct bearing on the facts of the subsequent admitted fatal shooting of the deceased by defendant, the antecedent matter under such circumstances is not collateral, and the state may properly be permitted to cross-examine the defendant concerning the same, not for the purpose of proving or disproving the charge, but with a view of<page_number>Page 394</page_number> affecting the credibility of the witness and for laying a predicate for impeachment. <bold>2. Trial — Sufficiency of Instructions Given by Court.</bold> When the instructions of the court properly submit all the issues in the case, fairly and impartially, it is not necessary to submit additional requested instructions emphasizing some peculiar phase of the case.

(Syllabus.) <bold>Intoxicating Liquors — Searches and Seizures — Sufficiency of</bold> <bold>Search Warrant.</bold> A search warrant following description in affidavit, describing property to be searched as "a certain black Ford sedan automobile, bearing Oklahoma license No. 2-3755, said automobile is being used in the transporting, secreting and storing of intoxicating liquor" sufficiently described the property to be searched.

(Syllabus.) <bold>1. Venue — Judicial Notice of Boundaries of State and Counties</bold> <bold>and Location of Cities and Towns.</bold> The court will take judicial notice of the boundaries of the state and the counties of the state and also the geographical locations of the cities and towns within the state as well as of government surveys and subdivisions of land. <bold>2. Same — Venue May Be Established by Circumstantial Evidence.</bold> The proper practice to prove venue is by direct and positive evidence, yet the essential test is whether or not the venue has in some way been proven. Venue may be established by circumstantial evidence.