Volume 96 — Oklahoma Criminal Reports

(Syllabus.) <bold>Intoxicating Liquors — Unlawful Possession — State not Precluded</bold> <bold>by Reason of Artifice Practiced by Officer From Offering in</bold> <bold>Evidence Fruits of Search.</bold> Where an officer possessing a search warrant, enters home of accused by invitation obtained by artifice and ostensibly to purchase pint of whiskey, and such officer by such device is enabled to discover probable location of cache of whiskey outside of house in a garage, and thereupon he serves the search warrant authorizing search of garage, and aided by other officers makes search and discovers whiskey and gin, Held: Where such accused is prosecuted for unlawful possession of intoxicating liquor, the state is not precluded by reason of the artifice practiced by the officer from offering in evidence the fruits of such search.

(Syllabus.) <bold>1. Appeal and Error — Judgment Affirmed in Absence of Brief and</bold> <bold>Argument.</bold> Where defendant appeals from judgment of conviction and no briefs are filed and no argument presented, the Criminal Court of Appeals will examine the record for jurisdictional error, and if no fundamental error appears, the judgment will be affirmed. <bold>2. Indictment and Information — Variance Between Charge and Plea</bold> <bold>of Guilty — Cause Remanded to Lower Court for Resentencing.</bold> Where there is a variance between the charge and plea of guilty, and the formal judgment of the court, it must appear from the record that such variance cannot be corrected without depriving the defendant of a substantial right, before the conviction will be set aside, but the cause will be remanded to the lower court for resentence. <bold>3. Intoxicating Liquors — Sentence for Unlawful Sale on Plea of</bold> <bold>Guilty Held not Excessive.</bold> Sentence of thirty days and $75 fine on plea of guilty to unlawful sale of intoxicating liquor not excessive.

(Syllabus.) <bold>1. Larceny — False Pretenses — Distinction Very Narrow Margin.</bold> The distinction between "larceny" and "false pretense" is a very narrow margin. The character of the crime depends on the intention of the parties. If the owner parts with "possession" and "title" of the property "voluntarily", it is not larceny. If the owner is induced to part with possession by fraud and misrepresentation<page_number>Page 29</page_number> and the title to the property does not pass, and there is a fraudulent intent at the time to appropriate the property to one's own personal use and deprive the owner thereof, it is larceny. <bold>2. Larceny — Held Where Defendant Never Returned After Receiving</bold> <bold>Money With Which to Purchase Liquor, Transaction Constituted</bold> <bold>Petit Larceny by Fraud.</bold> Where admitted "bootlegger" visits office building to sell and deliver whiskey at that time as well as to take orders for future delivery, and prosecuting witness wants at that time a fifth of Belmont whiskey, but the defendant (bootlegger) does not have fifths, but proposes to visit another bootlegger and purchase a fifth for prosecuting witness if furnished money for that purpose, which is given him, and he was to return with the whiskey within thirty minutes, but never returns, Held that the defendant was acting as agent for the prosecuting witness, that title to the money did not pass to defendant, and that the transaction supports the charge of petit larceny by fraud.

(Syllabus.) <bold>1. Intoxicating Liquors — Unlawful Possession — State hot</bold> <bold>Required to Produce Identical Liquor Referred to in</bold> <bold>Information.</bold> Where one is charged with the unlawful possession of intoxicating liquor, it is not necessary for the state to produce the identical liquor as alleged in the information before a conviction may be had for the unlawful possession. <bold>2. Same — Refusal to Require Production of Liquor Seized for</bold> <bold>Purpose of Showing It Was Purchased in Another State not</bold> <bold>Error.</bold> In the trial of an unlawful possession of intoxicating liquor case, it is not error for trial court to refuse to require the production of the 42 pints of whiskey seized in the raid for the defendant's purpose of showing the liquor was purchased by another than the defendant in another state, since such matter is irrelevant, particularly where defendant does not deny the possession of the liquor and is also the possessor of a federal liquor dealer's license.

(Syllabus.) <bold>1. Appeal and Error — Conclusiveness of Verdict as to</bold> <bold>Sufficiency of Evidence.</bold> Where the evidence is conflicting the weight thereof and the credibility of witnesses is for the jury, and the Criminal Court of Appeals will not substitute its judgment for that of the jury where there is evidence reasonably tending to support the conclusions reached by the jury. <bold>2. Same — Weight of Evidence and Credibility to Be Given</bold> <bold>Witnesses for Jury.</bold> Jury is exclusive judge of the weight of the evidence and the credit to be given to the witnesses. <bold>3. Same — Judgment Affirmed Where No Briefs Filed or Argument</bold> <bold>Presented.</bold> Where defendant appeals from judgment of conviction and no briefs are filed or argument presented, Criminal Court of Appeals will examine the evidence, not to discover errors in admission or rejection of testimony, but only to ascertain if it supports the verdict, and examine the pleadings, instructions, and the judgment, and if no material error is apparent, judgment will be affirmed. <bold>4. Same — No Fundamental Error Found.</bold> Record examined and no fundamental error found.

(Syllabus.) <bold>1. Appeal and Error — Affirmance in Absence of Brief and</bold> <bold>Appearance for Argument.</bold> Under rule 9 of the Criminal Court of Appeals where no appearance for argument is made, and several extensions for time for filing brief are granted, and no brief is filed in support of appeal, the court will examine the record and if no fundamental error appears, will affirm the judgment. <bold>2. Same — Sufficiency of Evidence.</bold> Record examined and evidence held sufficient to sustain conviction for larceny of cattle.

(Syllabus.) <bold>1. Appeal and Error — Conclusiveness of Verdict as to</bold> <bold>Sufficiency of Evidence.</bold> Where the evidence is conflicting, the weight thereof and the credibility of witnesses is for the jury, and this court will not substitute its judgment for that of the jury where there is evidence reasonably tending to support the conclusion reached by the jury. 2. Record examined and found to support the verdict and judgment.

(Syllabus.) <bold>Appeal and Error — Affirmance in Absence of Briefs or</bold> <bold>Appearance.</bold> 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.

(Syllabus.) <bold>1. Appeal and Error — Weight of Evidence and Credibility of</bold> <bold>Witnesses for Jury.</bold> Where there is ample competent evidence to sustain the conviction, Criminal Court of Appeals will not weigh the evidence nor determine the credibility of witnesses as those were matters within the province of the jury to determine. <bold>2. Larceny — Sufficiency of Evidence to Sustain Judgment.</bold> The evidence was sufficient to sustain the judgment.

(Syllabus.) <bold>1. Names — Test in Determining if Names Are "Idem Sonans".</bold> In determining if names are "idem sonans", the test is whether, though names are spelled differently, the attentive ear finds difficulty in distinguishing the names when pronounced. <bold>2. Same — Names "Yougn" and "Young" Held Idem Sonans.</bold> The names "Yougn" and "Young" held to be idem sonans. <bold>3. Intoxicating Liquors — Sufficiency of Description Where</bold> <bold>Street Names Are Idem Sonans.</bold> Where the name of the street given and the correct name of the street upon which the premises are situated are idem sonans, there being no street of the name described, a description with the proper number is sufficient.

(Syllabus.) <bold>1. Searches and Seizures — Use of Maps, Plats, etc., by Officer</bold> <bold>Serving Search Warrant to Obtain General Information as to</bold> <bold>General Location 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. <bold>2. Same — Sufficiency of Specific Description to Locate Premises</bold> <bold>to Be Searched.</bold> The specific description of the premises to be searched is sufficient, if it enables the officers executing the search warrant to locate the premises to be searched without the aid of any other information save that contained in the search warrant, other than information as to general location. <bold>3. Same — Broken Street Extension — Extension of Another</bold> <bold>Noncontinuous Portion Thereof.</bold> The fact that a street extension is broken and not continuous does not prevent the same from being an extension of another noncontinuous portion thereof.

(Syllabus.) <bold>1. Appeal and Error — When Conviction Reversed for Insufficiency</bold> <bold>of Evidence.</bold> This court is reluctant to reverse a case on the ground of insufficiency of the evidence, and it is only where it is clearly against the weight of the evidence, appears to have been influenced by passion, prejudice, or by reason of some error or is insufficient to establish guilt beyond a reasonable doubt that a case will be reversed for this reason. <bold>2. Same — Judgment Reversed Where Verdict Manifestly Contrary to</bold> <bold>Evidence.</bold> When a verdict is manifestly contrary to the evidence, this court has no discretion but must reverse the judgment.

(Syllabus.) <bold>1. Indictment and Information — Larceny — Sufficiency of</bold> <bold>Information — Surplusage.</bold> An information charging the larceny of livestock, which alleges an unlawful and felonious taking and asportation of the animal without the consent of the named owner, and with the felonious intent to deprive said owner thereof, and to convert the said property to the use and benefit of the taker, contains all the essential elements of said crime. Matters of surplusage such as value of animal, etc., not misleading or contradictory of the material elements as pleaded, will not vitiate an information. Tit. 21 O.S. 1951 § 1716[<cross_reference>21-1716</cross_reference>]. <bold>2. Indictment and Information — All Persons Concerned in</bold> <bold>Commission of Crime of Felony Are Principals and Must Be Tried</bold> <bold>and Punished as Such.</bold> The fact that another person was charged jointly with defendant, who was tried separately, does not change the essential elements to be alleged, as such persons are treated as principals, Tit. 21 O.S. 1951 § 172[<cross_reference>21-172</cross_reference>]; any one may be convicted or acquitted, Tit. 22 O.S. 1951 § 431[<cross_reference>22-431</cross_reference>], and all persons concerned in the commission of a felony whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, must be prosecuted, tried and punished as principals, and no additional facts need be alleged in any indictment or information against such an accessory than are required in an information against the principal. Tit. 22 O.S. 1951 § 432[<cross_reference>22-432</cross_reference>]. <bold>3. Same — Information Found not to Be Duplicitous and not to</bold> <bold>Charge the Crime of Conspiracy, but Crime of Larceny of</bold> <bold>Livestock.</bold> Information examined and found not to be duplicitous and not to charge the crime of conspiracy under provisions of Tit. 21 O.S. 1951 § 421[<cross_reference>21-421</cross_reference>], but the crime of larceny of livestock under Tit. 21 O.S. 1951 § 1716[<cross_reference>21-1716</cross_reference>]. <bold>4. Larceny — Sufficiency of Evidence to Support Verdict and</bold> <bold>judgment.</bold> Evidence examined and found to support the verdict and judgment rendered.

(Syllabus.) <bold>1. Habeas Corpus — Burden on Petitioner to Show Court Without</bold> <bold>Jurisdiction to Sentence Accused.</bold> The burden of proof is upon the petitioner who assails a<page_number>Page 143</page_number> judgment and sentence to show that the court which pronounced the same was without jurisdiction to sentence the accused, or that in the proceedings at the time sentence was pronounced upon a plea of guilty the accused was denied due process of law. <bold>2. Same — Writ Denied Where Petitioner Failed to Show Illegality</bold> <bold>of Judgment and Sentence.</bold> Petitioners failed to sustain burden of showing illegality of judgment and sentence, and petition for habeas corpus was denied.

(Syllabus.) <bold>1. Appeal and Error — Sufficiency of Conflicting Evidence to</bold> <bold>Show Guilt of Accused.</bold> Criminal Court of Appeals will not interfere with the verdict of the jury where there is a conflict of the evidence and the evidence of the state overwhelmingly shows the guilt of the accused. <bold>2. Automobiles — Drunk Driving — Sentence of One Year in</bold> <bold>Penitentiary not Excessive.</bold> Sentence of one year imprisonment in the State Penitentiary where the jury left the punishment to be fixed by the court was not excessive for the crime of driving an automobile on the highway while under the influence of intoxicating liquor where the record disclosed that defendant had previously been twice convicted for the same offense.

(Syllabus.) <bold>1. Appeal and Error — Sufficiency of Circumstantial Evidence to</bold> <bold>Sustain Verdict of Jury.</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 — Admission of Evidence of Possession of</bold> <bold>Federal Retail Liquor Dealer's License.</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 — Further Instruction Necessary Defining Term "Prima</bold> <bold>Facie" Evidence.</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, 37 O.S. 1951 § 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 — Improper Instruction Suggesting Finding Defendant</bold> <bold>Guilty and Leaving 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. Appeal and Error — Discretion of Trial Court as to Allowing</bold> <bold>Withdrawal of Plea of Guilty.</bold> The granting or denying of permission to withdraw a plea of guilty and to substitute a plea of not guilty is a matter within the sound discretion of the trial court, and its action will be upheld unless an abuse of such discretion clearly appears from the record. <bold>2. Same — Action of Trial Court Refusing to Set Aside Judgment</bold> <bold>Sustained.</bold> Record examined, and action of trial court in refusing to set aside judgment is sustained.

(Syllabus.) <bold>1. Evidence — When State May Attack Character of Accused.</bold> The state cannot attack the character or reputation of a defendant, unless he first puts that in issue by introducing evidence of his good character. <bold>2. Intoxicating Liquors — Intent Essential Ingredient of Crime</bold> <bold>of Unlawful Possession.</bold> The intent with which liquors are possessed is an essential ingredient of the crime of unlawful possession. <bold>3. Trial — Duty of Defendant's Counsel to Request Desired</bold> <bold>Instructions.</bold> It is the duty of counsel for the defendant to reduce the instructions desired to writing and present them to the court with a request that they be given, and in the absence of such request the right to such instruction is waived and failure to so instruct is not reversible error, unless the court determines from the entire record that failure to give such instruction was a deprivation of a substantial right of the defendant.

(Syllabus.) <bold>1. Indictment and Information — Sufficiency of Information Where</bold> <bold>not Challenged by Demurrer or Objection to Introduction of</bold> <bold>Evidence.</bold> Where an information is not challenged either by demurrer or objection to the introduction of evidence, every intendment or presumption will be indulged to sustain it; and a technical construction of such information will be avoided; and where such information charges the crime, Tit. 37 O.S.A. § 31 [<cross_reference>37-31</cross_reference>] and § 82 [<cross_reference>37-82</cross_reference>], in ordinary and concise language, and in such manner that a person of common understanding is enabled to know what is intended, and which defines and identifies the offense so that the accused will be enabled to defend himself if charged again with the same offense, it will not be set aside. <bold>2. Intoxicating Liquors — Information Held not So Fatally</bold> <bold>Defective as to Fail to Charge Public Offense.</bold> Information examined and determined not to be so fatally defective as to fail to charge a public offense. Tit. 22 O.S.A. § 504 [<cross_reference>22-504</cross_reference>] and § 512 [<cross_reference>22-512</cross_reference>].

(Syllabus.) <bold>1. Appeal and Error — Appeal Dismissed for Failure of Appellant</bold> <bold>to File Brief,</bold> Where an accused appeals from a city court to the court of common pleas, and the transcript discloses that his appeal was dismissed for nonappearance,<page_number>Page 206</page_number> and appellant fails to file a brief in this court within thirty days in support of petition in error and transcript, as provided by rule six of this court, this court will examine the transcript for error apparent in the record, and if no fundamental error is apparent the appeal will be dismissed. <bold>2. Same — Where no Evidence or Stipulation Covering Questions of</bold> <bold>Fact, Nothing Is Presented for Review.</bold> Where an appeal is by transcript and the only ground for appeal presents a question of fact and there being no evidence or stipulation covering the point raised, nothing is presented to this court for review.

(Syllabus.) <bold>1. Appeal and Error — Time for Perfecting Appeal in Misdemeanor</bold> <bold>Case.</bold> Time for perfecting appeal in a misdemeanor case begins to run within 60 days after the judgment is rendered or within an additional 60 days as extended by the trial court, but not to exceed 120 days; and where said appeal in a misdemeanor case is not lodged within this court within the time allowed by law this court acquires no jurisdiction to consider the same. <bold>2. Same — Application for New Trial Must Be Made Before Judgment</bold> <bold>Entered.</bold> Under the provisions of Title 22, § 953 [<cross_reference>22-953</cross_reference>], O.S. 1941, application for new trial must be made before judgment is entered; provided, however, that the trial judge may for good cause shown allow such application to be made any time within 30 days after the entry of judgment; and where motion for new trial is made subsequent to a valid judgment and sentence, such motion does not have the effect of extending the time within which the appeal can be filed. <bold>3. Same — Appeal From Order Overruling Motion for New Trial,</bold> <bold>Made After Expiration of Time for Appeal, Dismissed.</bold> Where defendant appeals from an order overruling his motion for new trial made after the time allowed by law for taking an appeal has expired, the appeal will be dismissed for want of jurisdiction.

(Syllabus.) <bold>Appeal and Error — Automobiles — Judgment of Jury Upon Disputed</bold> <bold>Questions of Fact Sustained.</bold> Criminal Court of Appeals will not substitute its judgment for that of the jury upon disputed questions of fact.

(Syllabus.) <bold>1. Appeal and Error — Judgment Affirmed in Absence of Brief or</bold> <bold>Argument.</bold> Where the defendant appeals from a judgment of conviction and no briefs are filed, nor argument presented, this court will examine and ascertain if it supports the verdict, and will make an examination of the information, instructions excepted to, and the judgment, and if no material error is apparent, the judgment will be affirmed. <bold>2. Automobiles — Sufficiency of Evidence to Sustain Conviction</bold> <bold>for Drunk Driving.</bold> Record examined, and evidence held sufficient to sustain conviction of defendant for offense of driving a motor vehicle upon the State Highway while intoxicated. No material error is found, and the judgment is affirmed.

(Syllabus.) <bold>1. Evidence — Search Presumed Legal and Burden of Proof on One</bold> <bold>Asserting Its Invalidity.</bold> The law presumes the legality and regularity of all proceedings and accused charged with a violation of the prohibitory laws who raises the question of the invalidity of the search and seizure of contraband must assume the burden and introduce evidence to show the invalidity of the search. <bold>2. Arrest — Seizure of Whiskey Where Arrest Made — Admissibility</bold> <bold>of Evidence of Such Seizure.</bold> Where the highway patrol makes a legal arrest of accused for reckless driving, a seizure of whiskey sitting in open view in the car was not unlawful and evidence of such seizure was admissible in a trial upon a charge of illegal transportation of whiskey. <bold>3. Evidence — Placing of Bottles of Whiskey on Counsel Table not</bold> <bold>Reversible Error.</bold> The county attorney was not guilty of misconduct constituting reversible error by placing bottles of whiskey on the counsel table at commencement of trial where the whiskey was later identified and introduced as evidence. <bold>4. Appeal and Error — Improper Argument as Part of Record on</bold> <bold>Appeal.</bold> Where it is contended the county attorney made an improper argument to the jury the alleged improper argument should be transcribed and included as a part of the record on appeal. Where such alleged argument was not taken by the reporter and transcribed as a part of the record, this court will not consider the assignment of error unless the trial court, either at the time the alleged objectionable argument was made or at the hearing on the motion for a new trial, makes an affirmative finding such argument was in fact made. <bold>5. Trial — Statement of County Attorney not Comment Upon Failure</bold> <bold>of Defendant to Testify as Witness in Own Behalf.</bold> An alleged statement of the county attorney in argument to the jury: "This defendant could have put on witnesses in his defense" did not amount to a comment upon the failure of the defendant to testify as a witness in his behalf within meaning of statute 22 O.S. 1951 § 701[<cross_reference>22-701</cross_reference>].

(Syllabus.) <bold>1. Statutes — Rule of Strict Construction to Be Applied to</bold> <bold>Criminal Statutes.</bold> A statute should be given a construction according to fair import of its words taken in their usual sense, in connection with the context, with reference to the purposes of the provision. <bold>2. Same — Operation and Scope of Criminal Law not Enlarged by</bold> <bold>Implication.</bold> The operation and scope of criminal law cannot be enlarged by implication nor extended by construction to cases not fairly and clearly embodied in their terms. A rule of strict construction is to be applied to criminal statutes, and courts should not extend them to embrace acts or conduct not clearly within the prohibition of the statute. <bold>3. Schools and School Districts — Serving or Contracting to</bold> <bold>Serve as Public School Teacher not Crime.</bold> While Section 6-7 [70-6-7] of Title 70 O.S. 1951 makes it "unlawful" for a person to serve or contract to serve as a public school teacher, etc., without<page_number>Page 282</page_number> a certificate of qualification from the State Board of Education, it nowhere provides that the violation of such section constitutes a crime, and to make such violation a crime would require this court to determine that "unlawful" and "criminal" were synonymous, which would be contrary to reason, to modern definition, and to the apparent intention of the Legislature. <bold>4. Same — Intention of Legislature Was to Make Criminal Receipt</bold> <bold>of Funds for Performance of Services Declared "Unlawful".</bold> The expressed intention of the Legislature, Section 4-30 [70-4-30], Title 70 O.S. 1951, was to make criminal the receipt of funds for the performance of the services declared "unlawful", rather than the doing of the actual work. <bold>5. Same — School Code Appears Complete.</bold> The School Code, Title 70 O.S. 1951, enacted in 1949, appears complete, and nowhere does it refer to the general provisions of any other Title or statutory enactments as applicable to the school code. And consideration of Sections 10 [<cross_reference>21-10</cross_reference>] and 21 [<cross_reference>10-21</cross_reference>] of Title 21 O.S. 1951, the Criminal Code, adopted from Dakota Territory and enacted prior to 1910, is determined, construed in connection with Section 6-7 [70-6-7] of Title 70 O.S. 1951, not to make by force of such sections the violation of Section 6-7 a crime and of misdemeanor degree. <bold>6. Trial — Sustaining Demurrer to Indictment Held not Error.</bold> The action of the trial court in sustaining the demurrer to the indictment herein involved, held not error.

(Syllabus.) <bold>Appeal and Error — Time for Appeal in Felony Cases.</bold> In felony cases, the appeal must be taken within six months after the judgment is rendered. Where the appeal is not perfected until more than six months after the judgment is rendered, the Criminal Court of Appeals acquires no jurisdiction, and the appeal will be dismissed. 22 O.S. 1951 § 1054[<cross_reference>22-1054</cross_reference>].

(Syllabus.) <bold>1. Appeal and Error — Sufficiency of Conflicting Evidence to</bold> <bold>Sustain Verdict.</bold> The evidence, although conflicting, was amply sufficient to sustain the conviction. <bold>2. Judgment and Sentence — Punishment Imposed Must Appear to Be</bold> <bold>Excessive and Result of Passion, Before Court Authorized to</bold> <bold>Modify.</bold> Before the Criminal Court of Appeals is authorized to modify a judgment of conviction by reduction of punishment, it must clearly appear the punishment imposed was excessive and probably was the result of passion or prejudice or else some substantial error of law has occurred at the trial prejudicial to the defendant in the amount of punishment imposed. <bold>3. Appeal and Error — Sentence Upon Conviction for Driving</bold> <bold>Automobile Without Driver's License not Excessive After Five</bold> <bold>Former Convictions.</bold> Sentence of 45 days in the county jail and a fine of $250 was not excessive upon conviction for driving an automobile without a driver's license after five former convictions of operating an automobile without a driver's license.

(Syllabus.) <bold>1. Appeal and Error — Evidence — Prejudicial Error in Admission</bold> <bold>of Hearsay Testimony.</bold> The reception of hearsay testimony which might reasonably be said to have contributed to the verdict of guilty constitutes reversible error.<page_number>Page 306</page_number> <bold>2. Evidence — Evidence of Other Offenses Generally</bold> <bold>Inadmissible.</bold> The general rule is that the accused should be convicted, if at all, by evidence of guilt of the offense charged and evidence in any manner tending to show commission of other offenses, wholly independent, though of the same sort, is inadmissible to establish guilt of the offense charged. <bold>3. Same — Testimony of Sheriff as to Raid on Tavern Where</bold> <bold>Accused Manager Inadmissible.</bold> In a prosecution for the sale of intoxicating liquor, the court erred in admitting testimony of the sheriff that at another time wholly disconnected with the offense charged, he made a raid on the tavern where the accused was manager and found patrons sitting at tables with intoxicating liquor on the tables. <bold>4. Same — Prosecution for Illegal Sale of Intoxicating Liquors —</bold> <bold>Evidence of Sales at Another Time.</bold> In a prosecution for the sale of intoxicating liquor, it is reversible error to admit evidence of the alleged sales of intoxicating liquor made at another time than that alleged in the information and wholly disconnected with the alleged transaction for which the accused was being tried. <bold>5. Intoxicating Liquors — Evidence Sufficient to Sustain</bold> <bold>Conviction for Unlawful Sale.</bold> The evidence was sufficient to sustain a conviction for the unlawful sale of whiskey and the court properly overruled a demurrer to the state's evidence. <bold>6. Same — Proof Necessary to Sustain Charge of Selling</bold> <bold>Intoxicating Liquor.</bold> To sustain a charge of selling intoxicating liquor, there must be proven a consideration paid or promised by or in behalf of a purchaser to or in behalf of a seller, and a delivery of the thing sold. <bold>7. Trial — Trial Court Should Properly Instruct Jury as to What</bold> <bold>Constitutes a Sale of Intoxicating Liquors.</bold> In a prosecution for the sale of intoxicating liquor, the trial court should properly instruct the jury as to what was necessary to constitute a sale.

(Syllabus.) <bold>1. Trial — Instructions Considered as a Whole.</bold> Instructions must be considered as a whole and when so considered if they correctly state the law applicable to the case, they will be sufficient. <bold>2. Witnesses — Proper Matter of Inquiry Upon Cross-Examination —</bold> <bold>Right Does not Extend to Cross-Examination Upon Collateral</bold> <bold>Issues.</bold> Any matter which<page_number>Page 327</page_number> would have a tendency to lessen the credibility of a witness, show bias or prejudice, friendship or enmity to either party to the lawsuit, or a circumstance where he would be tempted to swear falsely is proper matter of inquiry upon cross-examination, but this right does not extend to collateral issues such as a confession as to an unrelated crime without conviction.

(Syllabus.) <bold>Appeal and Error — Where no Brief Filed and Appeal Based on</bold> <bold>"Excessive Punishment", Nothing Presented For Review.</bold> Where plaintiff in error fails to file brief in this court within time provided by its rules, and the petition in error and record disclose that the appeal is based on "excessive punishment" assessed after plea of guilty, and such punishment is near the minimum, nothing is presented to the court for review.

(Syllabus.) <bold>Appeal and Error — Case Affirmed With Memorandum Opinion Where</bold> <bold>no Substantial Error</bold> Where in a misdemeanor case this court, after carefully examining the information, the evidence and entire record, as well as the briefs that may have been filed, finds no substantial error, the case may be affirmed without more than a memorandum opinion. Tit. 20 O.S. 1951 § 47[<cross_reference>20-47</cross_reference>].

(Syllabus.) <bold>Trial — Unlawful Possession of Intoxicating Liquors — Failure to</bold> <bold>Fill in Day Warrant Was Issued Constituted Mere Irregularity</bold> <bold>Insufficient to Justify Sustaining Motion to Suppress.</bold> Where the sole ground for sustaining a motion to suppress the evidence obtained by authority of a search warrant and for dismissal by the county judge of the prosecution, was that the justice of the peace by inadvertence failed to fill in the day in November, 1951, that the search warrant was issued, but the affidavit for search warrant shows on its face to have been sworn to on the 30th day of November, 1951, and the sheriff's return shows that the warrant was served on December 1, 1951, and it is stipulated that the evidence would show that the warrant was actually issued on the 30th day of November, 1951; Held, that the failure to fill in the day in November, 1951, that the warrant was issued, under facts recited, constituted a mere irregularity insufficient to justify the sustaining of the motion to suppress in prosecution for possession of intoxicating liquors with intent to sell.

(Syllabus.) <bold>Appeal and Error — Attempted Appeal Dismissed Where Record Filed</bold> <bold>Failed to Constitute Case-Made or Transcript.</bold> Where record filed in this court as basis for jurisdiction for consideration of appeal does not comply with the statutory requirements, Tit. 22 O.S. 1951 §§ 1054[<cross_reference>22-1054</cross_reference>], 1055 [<cross_reference>22-1055</cross_reference>], 1059 [<cross_reference>22-1059</cross_reference>], 1060 [<cross_reference>22-1060</cross_reference>] and 977 [<cross_reference>22-977</cross_reference>], necessary to constitute either a case-made or a transcript, the attempted appeal will be dismissed.

(Syllabus.) <bold>1. Statutes — Construction — Ascertainment of Intent of</bold> <bold>Legislature.</bold> The fundamental rule of construction of a statute is to ascertain and give effect to the intention of the Legislature as expressed in the statute. To ascertain the intention of the Legislature in the enactment of the statute, the court may look to each part of the same, to other statutes upon the same or relative subjects, to the evils and mischief to be remedied, and to the natural or absurd consequences of any particular interpretation. <bold>2. Lewdness — Term "Lewdness" as Used in Statute Defined.</bold> The term "lewdness" as used in Tit. 21 O.S. 1951 §§ 1029[<cross_reference>21-1029</cross_reference>] [<cross_reference>21-1029</cross_reference>], 1030 [<cross_reference>21-1030</cross_reference>], means unlawful indulgence in lust, sensuality, passion, eager for sexual indulgence, whether public or private. And where the charging part of an information details acts on the part of the person charged that would constitute lewdness as thus defined, and such facts are set forth in ordinary and concise language without repetition, and in such manner as to enable a person of common understanding to know what is charged, such information is sufficient to withstand demurrer. <bold>3. Same — Held, Behavior Shown by Defendant Was Sensual,</bold> <bold>Passionate, Indecent and Lewd, and Constituted Active Phase in</bold> <bold>Sexual Indulgence — Overruling Demurrer to Evidence not</bold> <bold>Error.</bold> Where the uncontradicted evidence at trial<page_number>Page 357</page_number> of a male person charged with lewdness, developed that such person, visibly under the influence of intoxicating liquor, had placed his arms around a female person who was partially lying on a desk in a public office and who was the willing recipient of his attentions, and that said male person was fondling one of the breasts of the female person and kissing her on the neck: Held, that the behavior shown was sensual, passionate, indecent, and lewd, and constituted an active phase in sexual indulgence and violative of the provisions of Tit. 21 O.S. 1951 §§ 1029[<cross_reference>21-1029</cross_reference>] and 1030 [<cross_reference>21-1030</cross_reference>], and the trial court did not err in overruling the demurrer interposed to the evidence. <bold>4. Same — Sentence Modified Where Record Raises Presumption of</bold> <bold>Irrelevant Information Given Court by Prosecuting Attorney at</bold> <bold>Time of Sentencing.</bold> Where the record raises a strong presumption that irrelevant information given the court by the prosecuting attorney at time of sentencing a defendant, influenced the court in the amount of punishment assessed, which was the maximum, such sentence will in the interest of justice, be modified. Tit. 22 O.S. 1951 § 1066[<cross_reference>22-1066</cross_reference>].

(Syllabus.) <bold>1. Prohibition — Office of Writ.</bold> Prohibition will lie only to prevent an encroachment, excess, usurpation, or improper assumption of jurisdiction on the part of an inferior court, or to prevent some great outrage upon the settled principles of law and procedure. <bold>2. Same.</bold> Prohibition is an extraordinary judicial writ issuing out of a court of superior jurisdiction to keep inferior courts and tribunals within the limits and bounds prescribed for them by law. <bold>3. Same — Scope of Inquiry on Application for Writ.</bold> On application for a writ of prohibition the only inquiry which will be entertained is as to the jurisdiction of the court against which the relief is invoked, and this court will not investigate the merits of the cause before the inferior court.

(Syllabus.) <bold>1. Habeas Corpus — Burden to Show Facts Sufficient to Entitle</bold> <bold>Him to Bail.</bold> Upon an application to the Criminal Court of Appeals for bail by writ of habeas corpus, after commitment for a capital offense by an examining magistrate, the burden is upon the petitioner to show facts sufficient to entitle him to bail, when those facts do not appear from the evidence adduced on the part of the prosecution. O.S. 1951 Const. art. II, § 8. <bold>2. Bail — Right to Bail.</bold> One accused of capital offense may be admitted to bail after information has been filed, prior to trial, if proof of guilt is not evident or presumption thereof great, and one charged with murder is entitled as of right to a hearing on application for admission to bail after information has been filed prior to trial. O.S. 1951 Const. art. II, § 8. <bold>3. Same — Refusal of Bail to One Charged With Murder.</bold> Evidence not creating reasonable doubt of guilt justified refusal of bail to one charged with murder. <bold>4. Same — In Denying Application for Bail, Neither Facts nor Law</bold> <bold>Considered.</bold> In denying application for bail to one charged with murder, neither the facts nor law will be ordinarily considered by the court lest it prejudice rights of accused on his final trial. O.S. 1951 Const. art. II, § 8.<page_number>Page 380</page_number>

(Syllabus.) <bold>1. Habeas Corpus — Jurisdiction of Court Proper Subject of</bold> <bold>Inquiry in Habeas Corpus.</bold> The jurisdiction of the court to render a particular judgment and sentence by which a person is imprisoned is a proper subject of inquiry on habeas corpus. <bold>2. Judgment and Sentence — Person Convicted of Crime Entitled to</bold> <bold>Know Exact Punishment He is to Suffer.</bold> A person convicted for a crime is entitled to know, at the time judgment is pronounced, the exact punishment he is to suffer so that he may take an appeal if he desires. <bold>3. Judgment — Judgment Void as Being Rendered Without</bold> <bold>Jurisdiction Where Court Pronounced Part of Sentence and</bold> <bold>Reserved Remainder Contingent on Future Happenings.</bold> Judgment was void as being rendered without jurisdiction where trial court pronounced a part of the sentence and reserved his judgment as to the remainder of the sentence contingent upon future happenings.