Volume 97 — Oklahoma Criminal Reports

(Syllabus.) <bold>1. Habeas Corpus — Guilt or Innocence not Inquired Into.</bold> The guilt or innocence of the petitioner is not a matter that may be inquired into by habeas corpus. <bold>2. Same — Writ not Substituted for Appeal.</bold> Habeas corpus may not serve as a substitute for appeal. <bold>3. Same — Jurisdictional Questions Only Reviewable.</bold> It is elementary law that in habeas corpus proceedings jurisdictional questions only are reviewable or to be considered. <bold>4. Same — Unverified Petition for Habeas Corpus Insufficient to</bold> <bold>Question Invalidity of Commitment.</bold> An unverified petition for habeas corpus with no certified copy of the information or judgment and sentence of the lower court attached to the petition, is insufficient to question the validity of the commitment by which the person is incarcerated in the penitentiary.

(Syllabus.) <bold>1. Habeas Corpus — Degree of Proof Required in Order to Vacate</bold> <bold>Judgment and Sentence by Habeas Corpus.</bold> In order to vacate a judgment and sentence by habeas corpus because of the alleged denial of fundamental constitutional<page_number>Page 15</page_number> rights, where the judgment is regular on its face, the proof of the petitioner must be clear, convincing, and without doubt. <bold>2. Same — Writ Denied Where Trial Court Had Jurisdiction.</bold> Where it appears that the trial court had jurisdiction of the person, jurisdiction of the subject matter and authority to pronounce the judgment and sentence rendered and that during the proceedings therein nothing occurred to deprive the trial court of jurisdiction to render the judgment and sentence, the writ of habeas corpus will be denied.

(Syllabus.) <bold>1. Intoxicating Liquors — Where all Circumstances Point to</bold> <bold>Defendant's Undisputed Guilt of Unlawful Possession, Verdict</bold> <bold>of Guilty not Disturbed.</bold> Where officers acting under a search warrant search described premises and locate large quantity of intoxicating liquor stored in a small locked lean-to room attached to rear of barn, and owner of premises produces writing showing that the room was leased to a second party, the defendant herein, and officers meet said party head-on in a one-way road leading by said premises, which he was approaching in an automobile, and while engaging said party in conversation the officers discover other intoxicating liquor in his car in open sight, as well as additional liquor in the turtle back and the court at trial of said party later charged with possession of intoxicating liquor with intent<page_number>Page 20</page_number> to sell, struck all evidence concerning the additional liquor, though such liquor was not offered in evidence and instructed the jury not to consider the same, but the receipt or lease was identified by lessor and the evidence as a whole, including a current retail liquor dealer's license, pointed to said defendant's undisputed guilt, the verdict of the jury finding him guilty will not be disturbed. <bold>2. Trial — Error of Court Favorable to Person.</bold> A person may not complain of error committed by the court which was favorable to him. <bold>3. Same — Evidence — Exclusion of Evidence Favorable to</bold> <bold>Accused.</bold> The recitation by the officers concerning the liquor found in accused's car, under the circumstances, was proper and incidental to the lawful inquiry concerning passage of the motor vehicle of the travellers on the public road, but the exclusion of such evidence from the consideration of the jury being favorable to the accused, could not form the basis for complaint by accused on appeal. <bold>4. Same — Comment of County Attorney Held not Comment Upon</bold> <bold>Failure of Defendant to Testify in His Own Behalf.</bold> Comment by the county attorney in argument to the jury about the fact of there being no evidence in this case to sustain counsel's hypothesis that the defendant could have subleased the lean-to room prior to discovery of the intoxicating liquor, held not a comment upon the failure of the defendant to testify as a witness in his own behalf, within the meaning of Tit. 22 O.S. 1951 § 701[<cross_reference>22-701</cross_reference>].

(Syllabus.) <bold>1. Indictment and Information — Allegation in Indictment</bold> <bold>Sufficient to Support Introduction of Judgment and Sentence</bold> <bold>Covering Prior Conviction.</bold> Where an indictment contains the necessary essential facts of a prior conviction, such as to apprise the defendant of the nature of the charge, and the court, the date of the conviction and the judgment and sentence entered thereon, said allegation is sufficient to support the introduction of a judgment and sentence covering the prior conviction, as evidence of a second and subsequent offense charge. <bold>2. Intoxicating Liquors — Necessary Evidence to Sustain Charge</bold> <bold>of Sale. To sustain</bold> a charge of selling intoxicating liquors, 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>3. Same — Sufficiency of Indictment to Sustain Conviction for</bold> <bold>Selling Intoxicating Liquor.</bold> Where an indictment charges a sale of intoxicating liquor and the uncontradicted proof establishes the sale by the defendant and the payment therefor by the purchaser and the delivery thereof from the seller to the purchaser, the same is sufficient to sustain the conviction.

(Syllabus.) <bold>1. Appeal and Error — Finding of Fundamental Error Although no</bold> <bold>Briefs Filed.</bold> Although no briefs were filed, this court in examining the record has found fundamental error, and the question was properly raised at all stages of the proceedings in the trial court and in petition in error filed herein. <bold>2. Intoxicating Liquors — Possession With Intent to Sell Must Be</bold> <bold>Proved.</bold> Possession of intoxicating liquor for possessor's own use is not unlawful, but possession thereof with intent to sell is unlawful, and such intent must be proved like any other element of offense. Tit. 37 O.S. 1951 § 82[<cross_reference>37-82</cross_reference>]. <bold>3. Same — Judicial Notice not Taken by Criminal Court of Appeals</bold> <bold>That Beer Is Intoxicating.</bold> This court does not take judicial notice that beer is intoxicating. The state must show by competent evidence that such beer does in fact contain more than 3.2 per cent alcohol by volume. If no analysis has been made, proof of the intoxicating effect may be sufficient. <bold>4. Same — Demurrer Interposed by Defendant Upon Ground of</bold> <bold>Insufficiency of Evidence to Make Out a Case Should Be</bold> <bold>Sustained.</bold> Where the accused was charged with unlawful possession of intoxicating liquor with intent to sell, and the state on trial failed to introduce any evidence to show that such defendant kept for purpose of sale the one-half pint of whiskey found in her possession, or introduced any evidence to show that certain tin cans of beer also at the same time found in her possession contained more than 3.2 per cent alcohol by volume, or that said beer produced an intoxicating effect upon being used as a beverage, the demurrer interposed by the defendant upon the ground of the insufficiency of the evidence to make out a case, should have been sustained.<page_number>Page 47</page_number>

(Syllabus.) <bold>1. Mandamus — Writ not Used to Control Judicial Discretion.</bold> The writ of mandamus cannot be used to control judicial discretion. <bold>2. Same — Function of Writ</bold> Mandamus lies in behalf of the state only to keep the trial court within its jurisdiction and to compel it to act when it refuses to do so. If the trial court acts within its jurisdiction in imposing a sentence no matter how erroneous its act may be, its determination cannot be reviewed by this court by a proceeding in mandamus. <bold>3. Same — Mandamus Lies to Direct Trial Judge to Impose Proper</bold> <bold>Sentence Where It Does not Comply With Statutes.</bold> Where a sentence imposed does not comply with the statutes, mandamus lies to direct the trial judge to impose a proper sentence, but mandamus does not lie to compel the rendition of a particular judgment but where the trial court acts within its jurisdiction, mandamus will not be used to control its discretion with respect to fixing punishment of offense by fine or imprisonment. <bold>4. Appeal and Error — Trial Judge's Action in Refusing</bold> <bold>Revocation of Suspended Sentence not Appealable Order.</bold> A trial judge's action in refusing revocation of a suspended sentence does not constitute an appealable order. <bold>5. Mandamus — Exercise of Judicial Discretion not Reviewed by</bold> <bold>Mandamus.</bold> The exercise of judicial discretion cannot be reviewed or corrected by mandamus, even though there is no remedy by appeal.

(Syllabus.) <bold>1. Indictment and Information — Amendment of information.</bold> An information may be amended in matter of substance or form at any time before the defendant pleads, without leave, and may be amended after plea on order of the court where the same can be done without material prejudice to the right of the defendant; no amendment shall cause any delay of the trial, unless for good cause shown by affidavit. 22 O.S. 1951 § 304[<cross_reference>22-304</cross_reference>]. <bold>2. Appeal and Error — Matters not Set Forth in Motion for New</bold> <bold>Trial nor Petition in Error not Considered on Appeal.</bold> Matters which are not set forth in the motion for new trial nor in the petition in error filed on the appeal will not be considered unless the question raised is a fundamental one directed at the jurisdiction of the court. <bold>3. Trial — Amendment to Information After Beginning of Trial</bold> <bold>Presents Question Addressed to Discretion of Trial Court.</bold> An amendment to an information sought to be made after the beginning of the trial presents a question addressed to the discretion of the trial court; where such amendment is permitted and it is apparent that it materially affects the right of the accused, the court, upon application of the accused, should grant a reasonable delay of the trial until defendant has an opportunity to meet the issue presented by the amended information.

(Syllabus.) <bold>1. Appeal and Error — Filing Appellate Brief — Rules of Court.</bold> Before filing an appellate brief in this court, counsel should familiarize themselves with the rules of the court, particularly as to structure of brief or method of presentation of the points at issue, as specified in Rule 7.<page_number>Page 197</page_number> <bold>2. Same — Case Affirmed Where Evidence Supported by Overwhelming</bold> <bold>Evidence And no Reversible Error Found.</bold> Where the record discloses overwhelming and uncontradicted evidence supporting the verdict of the jury and judgment of the court, and where no reversible error is discovered, the case will be affirmed. <bold>3. Same — Held, no Reversible Error Found.</bold> Record examined, and no reversible error found.