Volume 95 — Oklahoma Criminal Reports

(Syllabus.) <bold>Appeal and Error — Failure to File Brief — Affirmance.</bold> Where a defendant appeals from a judgment of conviction and neither brief is filed nor appearance for oral argument made, this court will examine the pleadings, and the evidence, to see if it supports the pleadings, as well as the instructions, and if no error prejudicial to the substantial rights of the defendant is apparent, will affirm the judgment.

(Syllabus.) <bold>1. Appeal and Error — Sufficiency of Evidence, Though</bold> <bold>Conflicting, to Sustain Conviction.</bold> If there is any substantial competent evidence in the record to sustain the conviction Criminal Court of Appeals will not interfere with the verdict of the jury even though there appears a material conflict in some of the testimony of the witnesses for the state. <bold>2. Same — Modification of Sentence Where Confusion in Testimony</bold> <bold>of State's Witnesses as to What Crime Was Committed.</bold> Criminal Court of Appeals in furtherance of justice will modify sentence imposed where there is confusion in the testimony of the state's witnesses as to whether crime allegedly committed by defendant was embezzlement or larceny, and doubt as to whether the property taken was of the value of twenty (20) dollars or less.

(Syllabus.) <bold>Arrest — Right of Officers to Arrest Owner, and Search Auto</bold> <bold>Without Warrant Where Misdemeanor Committed in Their</bold> <bold>Presence.</bold> When officers are where they have a right to be, as on a public street, and they observe tax-paid liquor in an automobile in violation of law, a misdemeanor has been committed in their presence and they have the right to arrest the owner and search the automobile and seize the liquor without a search warrant.

(Syllabus.) <bold>1. Appeal and Error — Failure to File Brief — Review —</bold> <bold>Affirmance.</bold> Where a defendant appeals from a judgment of conviction, and neither brief is filed or appearance for oral argument made, this court will examine the pleadings and the instructions and if no error prejudicial to the substantial rights of the defendant is apparent will affirm the judgment. <bold>2. Same — Sufficiency of Conflicting Evidence to Support Ruling</bold> <bold>on Motion to Suppress Evidence.</bold> Where there is a conflict in the testimony in the hearing upon the motion to suppress the evidence, the trial court's ruling thereon will not be disturbed if the same is supported by substantial evidence.

(Syllabus.) <bold>1. Trial — Verdict Must Be Certain and Free From Ambiguity.</bold> Verdict of jury must be certain and free from ambiguity. It must convey on its face a definite and precise meaning and should show just what the jury intended. An obscurity which renders it at all doubtful will be fatal to it. <bold>2. Same — Verdict Must Be Rendered So That Jury's Intent Can Be</bold> <bold>Clearly Understood.</bold> If the jury renders a verdict not in form, the court may, with proper instructions as to the law, direct them to reconsider it, and it cannot be recorded until it be rendered in some form from which it can be clearly understood what is the intent of the jury. Tit 22, Sec. 919 [<cross_reference>22-919</cross_reference>], O.S. 1941. <bold>3. Same — In Prosecution for Reckless Driving Cause Reversed for</bold> <bold>New Trial Because of Ambiguous Nature of Verdict.</bold> In prosecution for alleged reckless driving where the punishment upon conviction may be either a fine or jail sentence or both such fine and jail sentence, a verdict finding defendant guilty and fixing his punishment, "At a fine of one hundred dollars and/or by imprisonment in the county jail for a term of thirty days", will not support a judgment and sentence of thirty days in the county jail and a fine of one hundred dollars; and because of the ambiguous nature of the verdict, the cause is reversed for a new trial.

(Syllabus.) <bold>1. Appeal and Error — Failure to File Brief — Conviction</bold> <bold>Affirmed Where No Error Apparent.</bold> Where no brief is filed and there is no error apparent on the face of the record, judgment of conviction will be affirmed. <bold>2. Same — Weight of Evidence for Jury.</bold> While in the instant case, the evidence is conflicting, it is the province of the jury to weigh the same and determine the facts.<page_number>Page 42</page_number> <bold>3. Same — Evidence Causing Jury to Reasonably Conclude Guilt.</bold> It is determined that there was a basis in the evidence on which the jury could reasonably conclude that the defendant was guilty as charged. <bold>4. Intoxicating Liquors — Drunk Driving — No Reversible Error.</bold> Record examined and no reversible error found.

(Syllabus.) <bold>Appeal and Error — Evidence Must Be Insufficient Before Verdict</bold> <bold>Reversed.</bold> Before the Criminal Court of Appeals will interfere with the jury's verdict on the ground that the evidence was insufficient to sustain the conviction, there must be no evidence upon which the verdict could be based.

(Syllabus.) <bold>Appeal and Error — Sufficiency of Evidence Upon Which Verdict</bold> <bold>Based.</bold> Before the contention that the verdict is contrary to the evidence can be sustained there must be no competent evidence upon which the verdict is based.

(Syllabus.) <bold>1. Judgment and Sentence — Trial Court Must Render Judgment in</bold> <bold>Accordance With Verdict of Jury — Only Court of Appeals Can</bold> <bold>Modify Sentence.</bold> Where the jury declares punishment in their verdict within limitation fixed by law, trial court must render judgment according to the verdict, since only Criminal Court of Appeals has right to modify sentence meted out to an accused. Tit. 22 O.S. 1951 §§ 926[<cross_reference>22-926</cross_reference>], 1066 [<cross_reference>22-1066</cross_reference>]. <bold>2. Trial — Trial Court Exceeded Its Authority in Modifying</bold> <bold>Sentence.</bold> Where jury assessed punishment of defendant at 90 days in jail and a $100 fine, trial court exceeded its authority in modifying punishment to 30 days in jail and fine of $100, in pronouncing judgment upon said conviction. Tit. 22 O.S. 1951 § 926[<cross_reference>22-926</cross_reference>].

(Syllabus.) <bold>1. Habeas Corpus — Scope of Review When Inmate of Penitentiary</bold> <bold>Seeks Liberty.</bold> Petition for habeas corpus prepared by inmate of State Penitentiary will be liberally construed. <bold>2. Same — Sole Question Whether Judgment Pronounced Against</bold> <bold>Accused Is Void.</bold> In habeas corpus proceeding by an inmate of the State Penitentiary, under commitment on plea of guilty to a felony charge in the district court, sole question is whether judgment pronounced against inmate was void. <bold>3. Same — Writ Not Issued if Trial Court Had Jurisdiction of</bold> <bold>Person and Crime Charged.</bold> A writ of habeas corpus will not issue if trial court had jurisdiction of the person and crime charged, and does not exceed its authority in passing sentence.

(Syllabus.) <bold>1. Intoxicating Liquors — Intent as to Possession a Question for</bold> <bold>Jury.</bold> The intent with which a person has possession of intoxicating liquors is always a question of fact for the jury, to be determined upon consideration of all the evidence. <bold>2. Same — Legality of Possession for One's Personal Use.</bold> It is not unlawful to have the possession of intoxicating liquor for one's own personal use, irrespective of the quantity which is possessed. <bold>3. Same — Erroneous Instruction as to Prima Facie Evidence of</bold> <bold>Intent to Sell Reversible Error.</bold> Instruction, which informed jury that the keeping in excess of one quart of intoxicating liquor "whether such liquor is intended for the personal use of the person so having and keeping the same or not" is prima facie evidence of an intent to sell, was erroneous and constituted reversible error. <bold>4. Same — Sufficiency of Evidence to Sustain Conviction for</bold> <bold>Unlawful Possession.</bold> The evidence was sufficient to sustain conviction.

(Syllabus.) <bold>1. Judgment and Sentence — Writ of Coram Nobis Was Common Law</bold> <bold>Writ.</bold> The writ of coram nobis or writ of error coram nobis was a common law writ which developed in common law procedure because of the absence at that time of the right to move for a new trial, and the right to appeal from the judgment and sentence pronounced against one accused of crime. <bold>2. Same — Office and Functions of Common Law Writ of Coram Nobis</bold> <bold>Superseded.</bold> The right of defendant to file a motion in arrest of judgment, motion for new trial because of newly discovered evidence, the right to appeal from a judgment of conviction, another statutory remedies, have superseded the office and functions of the common law writ of coram nobis or writ of error coram nobis.

(Syllabus.) <bold>1. Evidence — Circumstantial Evidence Must Be Such That</bold> <bold>Reasonable and Logical Inference of Guilt Clearly Arises.</bold> Before a conviction may be sustained, where the proof of the state is based wholly on circumstantial evidence, the circumstances proven must be such that a reasonable and logical inference of guilt clearly arises and should exclude any other reasonable hypothesis except the guilt of the accused. <bold>2. Trial — Instruction on Circumstantial Evidence Approved.</bold> The instruction on circumstantial evidence was approved. <bold>3. Larceny — Conviction for Larceny Resting Entirely on</bold> <bold>Circumstantial Evidence — Issue of Fact for Jury.</bold> In the case of larceny, where the conviction rests entirely upon circumstantial evidence, but the evidence of the state was consistent with his innocence, although such evidence is contradicted by testimony of the defendant, it still presents an issue of fact for determination of the jury under proper instructions.

(Syllabus.) <bold>1. Evidence — Character of Defendant May Not Be Introduced Until</bold> <bold>Placed in Issue by Him.</bold> The state may not introduce evidence pertaining to the bad character of defendant until the character of the defendant has been placed in issue by the defendant offering evidence of his good character. <bold>2. Same — Proof of Former Conviction May Be Shown By</bold> <bold>Circumstantial Evidence.</bold> Where defendant has been charged with having committed a felony after a former conviction, the proof of former conviction may be shown by circumstantial evidence the same as any other material fact placed in issue by the plea of not guilty. <bold>3. Habitual Criminals — Weight of Evidence That One Formerly</bold> <bold>Convicted Was of Same Name.</bold> Where, in a prosecution for a felony after former conviction, record evidence of a former conviction is offered of one with the identical name as that of defendant on trial, which conviction occurred in the county of the residence of accused, and officer further testifies that although he was not present in courtroom and did not have personal knowledge of the conviction he did know that shortly after judgment and sentence was pronounced the accused was absent from his usual place of residence for several months, such evidence will be considered as strong circumstantial evidence that the person named in the former conviction and the defendant on trial are one and the same person; and where no contradictory evidence is introduced the same will be sufficient to show a prior conviction. <bold>4. Limitation of Prosecutions — Later Prosecution After</bold> <bold>Dismissal Not Barred Unless Jeopardy Has Attached.</bold> The county attorney may have an action dismissed and commence it anew by filing a preliminary information against the accused as often as he sees fit until jeopardy has attached or the prosecution of the crime becomes barred by the statute of limitations.

(Syllabus.) <bold>1. Appeal and Error — Failure to File Brief on Present Argument</bold> <bold>— Affirmance.</bold> Where no briefs are filed nor argument presented this court will examine the evidence to ascertain if it sustains the judgment, and if the evidence is sufficient, and in the absence of apparent material error, will affirm the judgment. <bold>2. Intoxicating Liquors — Sufficiency of Evidence to Support</bold> <bold>Conviction for Unlawful Possession.</bold> In prosecution for unlawful possession of intoxicating liquor, evidence held sufficient to support judgment of conviction.

(Syllabus.) <bold>Evidence — Burden on Defendant to Prove Invalidity of Search</bold> <bold>Raised by Motion to Suppress Evidence.</bold> The burden of proving the invalidity of a search when raised by a motion to suppress the evidence is upon the defendant. Where he fails to meet this burden, it is not error for the court to overrule the motion to suppress the evidence.<page_number>Page 126</page_number>

(Syllabus.) <bold>1. Habeas Corpus — Burden on Petitioner on Hearing of</bold> <bold>Application for Bail By One Charged With Murder</bold> On the hearing of an application for bail by one informed against for murder, to determine whether or not proof of guilt is evident or the presumption thereof is great, the burden is on the petitioner. <bold>2. Same — Order Entered Allowing Bail in Sum of $20,000 Where</bold> <bold>Proof of Guilt Not Evident.</bold> On application for bail by habeas corpus after commitment for murder, record examined, and after hearing thereon proof of guilt is not evident nor presumption thereon great, and order entered allowing bail in the sum of $20,000.

(Syllabus.) <bold>1. Searches and Seizures — Burden on Defendant to Prove</bold> <bold>Invalidity of Search Warrant.</bold> The burden of proving the invalidity of a search, when raised by a motion to suppress the evidence, is upon the defendant. Where he fails to meet this burden, it is not error for the court to overrule the motion to suppress. <bold>2. Appeal and Error — Sufficiency of Conflicting Evidence to</bold> <bold>Support Ruling on Motion to Suppress Evidence Obtained by</bold> <bold>Search.</bold> Where defendant and one of his two additional witnesses testify on hearing of motion to suppress the evidence, that three rooms of his eleven-room upstairs residence were occupied by another family, but the third witness testifies to the contrary when cross-examined by the prosecution, the court's ruling thereon will not be disturbed, there being substantial evidence to support the court's findings. <bold>3. Same — Discrepancy in Preparing Return Not Reversible Error.</bold> Where return to search warrant is signed by the procuring officer with title simply as "officer" rather than "`Chief of Police of Okmulgee, Oklahoma", his correct title as shown by the evidence, and there is no showing that prejudice resulted to the defendant by reason of such oversight, such discrepancy in preparing return does not constitute reversible error. <bold>4. Appeal and Error — Errors Not Raised and Presented in Court</bold> <bold>Below Not Considered.</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. <bold>5. Searches and Seizures — Search Not Held Invalid By Reason of</bold> <bold>Fact Officer Used More Than One of His Senses in Locating</bold> <bold>Property.</bold> Where the property searched was that described in the warrant, and being described as eleven rooms in a two-story building located on specific lots in particular block in Okmulgee, the search will not be held invalid by reason of the fact that the officer had to make use of more than one of his senses in locating the eleven room residential property where there was but on such apartment in said building.

(Syllabus.) <bold>Habeas Corpus — Writ Deemed Abandoned Where No Appearance Made</bold> <bold>in Said Action.</bold> Petition for writ of habeas corpus to discharge petitioner from confinement in State Reformatory will be deemed to have been abandoned when neither petitioner, his father who filed petition, counsel for petitioner, nor any one else makes appearance in behalf of petitioner on two different dates when case is assigned for hearing.

(Syllabus.) <bold>1. Trial — Continuance — Overruling Motion for Continuance Based</bold> <bold>on Ground of Absence of Witness.</bold> It is not error for the trial court to overrule a motion for continuance based on the ground of the absence of a witness, unless it is shown that reasonable diligence had been used to procure the attendance of the witness, the proper address of the witness, and probability of securing the attendance of such witness within a reasonable time. <bold>2. New Trial — Grounds — Receiving Evidence Out of Court.</bold> By statute it is provided that a new trial shall be granted when a verdict has been rendered against a defendant by which his substantial rights have been prejudiced, upon his application when it is shown that the jury received evidence out of court, other than that resulting from a view of the premises. 22 O.S. 1941 § 952[<cross_reference>22-952</cross_reference>]. <bold>3. Jury — Jury May Have Documents in Juryroom.</bold> On retiring for deliberation the jury may take with them the written instructions given by the court, the forms of verdict approved by the court, and papers which have been received as evidence in the cause. <bold>4. Witnesses — Constitutional Right of Defendant to Be</bold> <bold>Confronted by Witnesses Against Him.</bold> The defendant has a constitutional right to be confronted by the witnesses against him. Art. 2, Sec. 20, Oklahoma Constitution. <bold>5. Jury — Jury System as Developed Under Code of Procedure —</bold> <bold>Hearing of Evidence in Open Court.</bold> The jury system as developed under our Code of Procedure is founded upon the fundamental proposition that disinterested jurors will hear the evidence in open court, and upon that evidence and that alone, deliberate among themselves until a verdict is reached. <bold>6. Appeal and Error — Case Reversed on Ground Jury Received</bold> <bold>Evidence Out of Court Prejudicial to Accused.</bold> Where it appears at the hearing on motion for new trial that the bailiff in collecting the exhibits for the jury inadvertently delivered to the jury two purported telegrams belonging to the county attorney which had not been admitted in evidence, which telegrams pertained to the defense which had been offered and were extremely prejudicial<page_number>Page 155</page_number> to the rights of the defendant, and it is further shown by affidavits of a number of the jurors who sat on said case that the telegrams were read and discussed by the jury in their deliberations, the case will be reversed on the ground that the jury received evidence out of court prejudicial to the accused.

(Syllabus.) <bold>1. False Pretenses — Difference Between False Pretenses and</bold> <bold>Larceny by Fraud.</bold> Where it appears that the owner of property parts with possession and title, due to deception and artifice of the taker, the offense constitutes the crime of obtaining property by false pretenses and not larceny by fraud. <bold>2. Same — Intention of Owner not to Part With Title Vital</bold> <bold>Point.</bold> The intention of the owner not to part with title to his property when relinquishing possession is vital point to be determined in distinguishing between larceny by fraud and obtaining property by false pretenses. <bold>3. Same — Charge Laid in Information of Obtaining Property by</bold> <bold>False Pretenses Supported by Evidence.</bold> Where automobile dealer gave cashier's check to defendant with which defendant was to purchase automobiles for which buyers had already been obtained and automobile dealer received from defendant a worthless check, a note and mortgage executed in blank, automobile dealer parted with both possession and title to money delivered to defendant and when defendant disposed of the money for his own purposes, the charge laid in the information of obtaining property by false pretenses is supported by the evidence.

(Syllabus.) <bold>1. Witnesses — Exclusive Province of Jury to Pass on Credibility</bold> <bold>of Witnesses — Weights of Evidence.</bold> It is the exclusive province of the jury to pass upon the credibility of witnesses and the weight to be given their testimony and where competent evidence has been introduced tending to prove all of the material allegations of the information, its weight and sufficiency to sustain a conviction is a matter for the jury to determine. <bold>2. Automobiles — Sufficiency of Evidence to Sustain Conviction</bold> <bold>for Driving Automobile While Intoxicated.</bold> The evidence was sufficient to sustain conviction for driving an automobile on the highway while under the influence of intoxicating liquor.

(Syllabus.) <bold>1. Searches and Seizures — Burden on Movant to Show Invalidity</bold> <bold>of Search.</bold> In a hearing upon a motion to suppress evidence the burden of proof is upon the movant to introduce evidence to show the invalidity of the search. <bold>2. Same — Sufficiency of Search Warrant — Description of Place</bold> <bold>to Be Searched.</bold> A search warrant is sufficient which so particularly describes the place to be searched that the officer to whom it is directed may determine it from the warrant, and no discretion as to the place to be searched is left to the officer. <bold>3. Same — Use of Maps, Plats, etc., by Officer Serving Search</bold> <bold>Warrant to Obtain General Information as to General Location</bold> <bold>of Property.</bold> An officer serving a search warrant may refer to maps, plats, etc., to obtain general information as to the general location of a piece of property, the particular location of which is specifically described in the warrant; and, he may rely on his personal knowledge; and, he may call upon his knowledge and understanding in interpreting abbreviations in a specific description and resort to such aids will not render the search invalid where the property searched was that described in the warrant, and the property could actually be located from the description contained in the search warrant. <bold>4. Intoxicating Liquors — Criminal Court of Appeals Takes</bold> <bold>Judicial Knowledge Whiskey Is Intoxicating.</bold> Criminal Court of Appeals will take judicial knowledge that whiskey is intoxicating. <bold>5. Intoxicating Liquors — Trial — Additional Instruction</bold> <bold>Defining Prima Facie Evidence Necessary in Prosecution for</bold> <bold>Unlawful Possession of Intoxicating Liquors.</bold> In prosecution for unlawful possession of intoxicating liquor and trial court has given instruction based on statute relative to prima facie evidence of defendant's guilt by reason of possession in excess of one quart of intoxicating liquor (Tit. 37 O.S. 1941 § 82[<cross_reference>37-82</cross_reference>]), a further instruction in substantially the following language should be given: "The term `prima facie evidence' as that term is used in the statute above mentioned is that degree of proof which unexplained or uncontradicted is sufficient, if it be credited by the jury, to establish the unlawful intent, yet it does not make it obligatory upon the jury to convict after the presentation of such proof; whether or not such evidence is sufficient to overcome the presumption of innocence of defendant and to establish his guilt beyond a reasonable doubt, when all the evidence is considered, is for the determination of the jury, and the term<page_number>Page 186</page_number> prima facie evidence as applied to the evidence does not shift the burden of proof from the state to the defendant." <bold>6. Trial — Instructions Given Substantial Statements of the</bold> <bold>Law.</bold> Instructions which were given were not misleading or confusing to the jury and were substantial statements of the law.

(Syllabus.) <bold>1. Appeal and Error — Affirmance in Absence of Brief or</bold> <bold>Appearance.</bold> Under the rules of this court, where no briefs are filed nor appearance for oral argument is made, the record will be searched for fundamental error only, and if none is found, the judgment will be affirmed. <bold>2. Same — No Fundamental Error Found.</bold> No fundamental error is found.

(Syllabus.) <bold>1. Appeal and Error — Affirmance in Absence of Brief or</bold> <bold>Appearance.</bold> Where defendant appeals from a judgment of conviction and neither any brief is filed nor appearance for oral argument is made, this court will examine record and evidence, and if no error prejudicial to substantial rights of defendant is apparent, will affirm judgment. <bold>2. Intoxicating Liquors — Sufficiency of Evidence to Sustain</bold> <bold>Conviction for Unlawful Sale of Liquor.</bold> Evidence examined, and found to sustain judgment of conviction for unlawful sale of intoxicating liquor.<page_number>Page 193</page_number>

(Syllabus.) <bold>Robbery — Conviction Not Reversed Where Evidence Insufficient to</bold> <bold>Show Jury Acted From Partiality, Passion or Prejudice.</bold> A conviction should be reversed because it is not supported by evidence only if no substantial evidence tends to show guilt, or evidence is so insufficient that the jury must have acted from partiality, passion or prejudice.

(Syllabus.) <bold>1. Witnesses — Disqualification of Physician to Testify as to</bold> <bold>Information Relating to Patient.</bold> Under statute a physician is disqualified to testify as to information acquired by him through observation or examination of his patient. 12 O.S. 1951 § 385[<cross_reference>12-385</cross_reference>], Paragraph 6. <bold>2. Evidence — Effect of Reception of Hearsay Evidence.</bold> Where hearsay evidence has been received, which reasonably contributed to the verdict of guilty, reception of such evidence is ground for reversal. <bold>3. Appeal and Error — Evidence — Reversible Error in Admission</bold> <bold>of Hearsay Evidence.</bold> Admission of hearsay evidence, wherein highway patrolman testified as to statements made to him by doctor concerning the condition of accused shortly after the time of the alleged commission of the offense with which he stands charged, constituted reversible error where the question of guilt was closely contested and might reasonably have been decided by the jury either way in the absence of the hearsay evidence.

(Syllabus.) <bold>1. Appeal and Error — Time for Appeal.</bold> Under statute, defendant in misdemeanor case has sixty days from the date judgment is pronounced against him in which to file his appeal in the Criminal Court of Appeals, unless the trial court, for good cause shown, extends the time in which such appeal may be taken for a period of time not exceeding sixty days. 22 O.S. 1951 § 1054[<cross_reference>22-1054</cross_reference>]. <bold>2. Same — Motion of Attorney General to Dismiss Appeal Sustained</bold> <bold>for Reason Appeal Not Filed Within Statutory Time and No</bold> <bold>Jurisdiction Vested in This Court.</bold> Where the Attorney General files a motion to dismiss the appeal, in which he alleges that the trial court in a misdemeanor case at the time judgment<page_number>Page 242</page_number> and sentence was pronounced allowed defendant "sixty days from this date within which to file his petition in error in the Criminal Court of Appeals"; that case-made was prepared and served in ample time to have filed the appeal within the 60 days authorized by the court but that said appeal was not filed within the time authorized by the court; but that some person or persons unknown and without the knowledge of the court clerk or of the trial court wrongfully and feloniously altered the court records by scratching out the word "sixty" and inserting the word "ninety" so that the case-made as filed showed that the defendant had ninety days in which to file his appeal; and no response is made to such motion to dismiss the appeal and no denial of the allegations of the motion is made, this court will sustain said motion and dismiss the appeal for the reason that the same was not filed within the time authorized by the trial court and therefore no jurisdiction was vested in the Criminal Court of Appeals to determine such purported appeal.

(Syllabus.) <bold>Bail — One Charged With Murder Entitled to Bail Where Proof of</bold> <bold>Guilt Not Evident.</bold> One charged with murder may be admitted to bail after the information has been filed in the district court, prior to trial, if the proof of guilt is not evident nor the presumption thereof great.

(Syllabus.) <bold>Searches and Seizures — Reversible Error to Refuse to Permit</bold> <bold>Defendant to Show Warrant Was "Blanket" Search Warrant.</bold> At a hearing on a motion to suppress evidence it is reversible error for the court to refuse the defendant permission to show by witnesses that the place described in the search warrant was an apartment house occupied by several families and that the warrant was accordingly a "blanket" search warrant and insufficient in law to justify a search of the apartment occupied by the accused.

(Syllabus.) <bold>1. Habeas Corpus — Sole Question Whether Judgment Was Void.</bold> The sole question in habeas corpus proceeding instituted on behalf of inmate of the State Penitentiary under commitment on plea of guilty to a felony charge in a district court, is whether judgment pronounced against petitioner was void.<page_number>Page 307</page_number> <bold>2. Same — Writ Deemed Abandoned When no Appearance Made in</bold> <bold>Behalf of Petitioner on Two Different Dates Assigned.</bold> Petition for writ of habeas corpus to discharge petitioner from confinement in State Penitentiary will be deemed to have been abandoned when neither petitioner, counsel for petitioner, nor anyone else makes appearance in behalf of petitioner on two different dates when case is assigned for hearing.

(Syllabus.) <bold>1. Appeal and Error — Province of Jury to Hear Evidence and</bold> <bold>Facts — Sufficiency.</bold> It is the province of the jury to hear the evidence and determine the facts. Criminal Court of Appeals will not reverse verdict of the jury where there is substantial competent evidence in the record to sustain the verdict. <bold>2. Witnesses — Necessary Only to Show Conviction of Crime as</bold> <bold>Affecting Credibility as Witness.</bold> It is improper on cross-examination of the accused to inquire as to former arrests or concerning charges where no conviction was sustained, but he may be asked whether he has been convicted of a crime for the purpose of affecting his credibility as a witness. <bold>3. Same — Proper Cross-Examination by County Attorney as to Two</bold> <bold>Arrests, Where Accused Testified He Had Never Been Arrested</bold> <bold>Before.</bold> It was not error for the county attorney to inquire of the accused on cross-examination concerning two arrests that had been made of the accused where the accused testified in response to questions of his counsel on direct examination that he had never been arrested before in his life, as counsel for accused may not open up a subject of inquiry on direct examination in an attempt to bolster the alleged good reputation of the accused and then complain of cross-examination by the prosecutor for the purpose of showing the falsity of such testimony. <bold>4. Drunk Driving — Sentence Not Excessive Upon First Conviction</bold> <bold>for Driving Auto Under Influence of Intoxicating Liquor.</bold> Sentence of 30 days in county jail and a fine of $200 upon first conviction for driving an automobile on the public highway while under the influence of intoxicating liquor was not excessive.

(Syllabus.) <bold>1. Indictment and Information — Giving Date of Alleged Offense</bold> <bold>as Subsequent to Presentment and Filing of Indictment</bold> <bold>Considered "Clerical Error."</bold> Where the information as drawn gives the date of the alleged offense as subsequent to the presentment and filing of the indictment, the insertion of said date will be considered a clerical error; and the county attorney, with permission of the court, may amend the indictment by showing the true date of the alleged offense. <bold>2. False Pretenses — Phrase "By Means or Use of Any False or</bold> <bold>Bogus Checks" Essential Element of Crime to Allege and Prove.</bold> The phrase "by means or use of any false or bogus checks" as it appears in Title 21, § 1541 [<cross_reference>21-1541</cross_reference>], O.S.A. 1941, is descriptive of the offense and is an essential element of the crime for the state to allege and prove. The state must allege and prove the false and bogus character of the check, and that it was well known to the defendant at the time he made it for a fraudulent purpose. <bold>3. Habeas Corpus — Relief by Habeas Corpus Where Information</bold> <bold>Defective.</bold> Where an information alleges the date of the crime as subsequent to the presentment and filing of the information, the same will not sustain a judgment thereon, and relief from such judgment may be had by habeas corpus.<page_number>Page 380</page_number>

(Syllabus.) <bold>1. Appeal and Error — Sufficiency of Conflicting Evidence to</bold> <bold>Meet Requirements Necessary to Convict Accused of Crime.</bold> Criminal Court of Appeals will not substitute its judgment for that of a jury where there is a conflict in the evidence but the competent evidence of the state meets all the requirements necessary to convict one accused of crime. <bold>2. Trial — Instructions Considered as a Whole.</bold> The instructions must be read as a whole, and when considered as a whole if they fairly and correctly state the law applicable to the issues presented by the evidence they will be sufficient.

(Syllabus.) <bold>1. Appeal and Error — Proof of Circumstances From Which</bold> <bold>Reasonable and Logical Inference of Guilt Arises.</bold> Where a conviction rests upon circumstantial evidence, and circumstances are proven from which a reasonable and logical inference of guilt clearly arises, and which excludes any reasonable hypothesis except the guilt of the accused, will be deemed sufficient to sustain the verdict of the jury. <bold>2. Intoxicating Liquors — Necessary to Show Federal Retail</bold> <bold>Liquor Dealer's License Was in Name of Accused and for Period</bold> <bold>Involved in Complaint.</bold> Evidence of the possession of a federal retail liquor dealer's license should never be permitted unless it is first shown that the license was in the name of the accused and covered the period of time during which the intoxicating liquor was allegedly held in possession of the accused. <bold>3. Same — Additional Instruction Defining Prima Facie Evidence,</bold> <bold>Necessary in Prosecution for Unlawful Possession of</bold> <bold>Intoxicating Liquors.</bold> In prosecution for unlawful possession of intoxicating liquor and trial court has given instruction based on statute relative to prima facie evidence of defendant's guilt by reason of possession in excess of one quart of intoxicating liquor (Tit. 37 O.S. 1941 § 82[<cross_reference>37-82</cross_reference>]), a further instruction in substantially the following language should be given: "The term `prima facie evidence' as that term is used in the statute above mentioned is that degree of proof which unexplained or uncontradicted is sufficient, if it be credited by the jury, to establish the unlawful intent, yet it does not make it obligatory upon the jury to convict after the presentation of such proof; whether or not such evidence is sufficient to overcome the presumption of innocence of defendant and to establish his guilt beyond a reasonable doubt, when all the evidence is considered, is for the determination of the jury, and the term prima facie evidence as applied to the evidence does not shift the burden of proof from the state to the defendant." <bold>4. Trial — Same — Improper Instruction That Jury Find Defendant</bold> <bold>Guilty and Leave Punishment to Court.</bold> Instruction was improper which was so worded that it amounted to a suggestion to the jury that they find defendant guilty and leave the punishment to the court.

(Syllabus.) <bold>1. Habeas Corpus — Writ Invoked Only Where Court Was Without</bold> <bold>Jurisdiction.</bold> Writ of habeas corpus may be invoked after judgment or conviction only where court was without jurisdiction, or where there was such irregularity as to render judgment void. <bold>2. Same — Delay in Returning Judgment and Sentence Into Court in</bold> <bold>no Way Vitiated Judgment Rendered, or Entitled Petitioner to</bold> <bold>Writ of Habeas Corpus.</bold> Where the minutes of the court clerk affirmatively show that a judgment was duly entered on September 23, 1944, on a plea of guilty of a defendant, and the appearance docket so shows, and further shows that formal judgment and sentence was issued on the same day, but does not show that a copy was filed at the time as required by Tit. 22 O.S. 1951 § 977[<cross_reference>22-977</cross_reference>], and shows that said original judgment and sentence properly signed by the district judge and bearing return of the sheriff showing that the prisoner escaped while being transported to the penitentiary was not returned and filed until August 4, 1951, and the penitentiary record shows that the prisoner was not received until June 9, 1951: Held, that the delay in returning the judgment and sentence into court by the sheriff and the failure of the county attorney to see that copy of same was filed at the time of issuance, in no way vitiated the judgment rendered, or now entitles defendant petitioner to a writ of habeas corpus.

(Syllabus.) <bold>False Pretenses — Habeas Corpus — Writ Denied Where Facts as</bold> <bold>Alleged in Information Bring Case Within Provision of Statute</bold> <bold>Relating to Obtaining Property Under False Pretenses.</bold> Where it appears, in a petition for habeas corpus, alleging that the case was brought under Title 21, § 1541 [<cross_reference>21-1541</cross_reference>], O.S.A. 1941, and that an excessive penalty was imposed, and actually the facts as alleged in the information bring the case within the provisions of Title 21, § 1542 [<cross_reference>21-1542</cross_reference>], O.S.A. 1941, and the penalty imposed is not excessive thereunder, the writ will be denied.<page_number>Page 412</page_number>

(Syllabus.) <bold>Appeal and Error — Case-Made not Filed Within Time a Nullity.</bold> A case-made for appeal not served within the time allowed originally by the trial court for serving case-made nor within the time fixed by any valid extension of time is a nullity.

(Syllabus.) <bold>Appeal and Error — Sufficiency of Evidence, Though Conflicting,</bold> <bold>to Sustain Conviction.</bold> The verdict of the jury upon a conflict of the evidence will be sustained on appeal where there is competent evidence in the record reasonably tending to sustain the conviction.

(Syllabus.) <bold>1. Bail — Right to Bail in Capital Case.</bold> The right to bail in a capital case is absolute unless the proof is evident or the presumption great that the defendant is guilty as charged and that in case of conviction he would probably receive life sentence or death. <bold>2. Same — Evidence Produced in Application for Bail by Writ of</bold> <bold>Habeas Corpus Justified Admitting Applicant to Bail.</bold> Upon application for bail by writ of habeas corpus, after commitment for a capital offense by an examining magistrate, evidence produced in connection with application for bail justified admitting applicant to bail.