text:
    MAMIE INGRAM v. STATE.
    No. A-10883.
    July 28, 1948.
    (196 P. 2d 534.)

      Champion, Champion & Wallace, of Ardmore, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Mamie Ingram, was charged by the district court of Carter county with the crime of murder, was tried, convicted of manslaughter in the first degree and sentenced to serve four years in the State Penitentiary, and has appealed.

The first proposition presented in the brief of defendant is that the record shows that a preliminary complaint was filed in the justice of peace court of Ulis S. Barnett in Ardmore, but that the preliminary hearing was held in the justice of peace court of Sam Schiff at Healdton, and the record does not show any transfer or change of venue.

The record discloses that a preliminary complaint was filed before Ulis S. Barnett, justice of peace of the city of Ardmore, and a warrant was issued for the arrest of defendant by the said justice of peace on May 23, 1946. There appears on the back, of the complaint this notation:

“On the 1 day of June, 1946, Defendant Mamie Ingram appeared with counsel and a preliminary hearing having been had and it appearing to me that the offense named in the within complaint has been committed and that there is sufficient cause to believe the within named Mamie Ingram guilty thereof, I ordered that she be held to answer the same in District Court and her bond be fixed at f-;-having made bond-order
“Sam Schiff
“Justice of the Peace.”

It is the contention of the counsel for the defendant that the preliminary examination must be held before the justice of the peace in whose court the complaint was filed or the record must affirmatively show that the cause was transferred for preliminary examination to some other magistrate.

At the time of the arraignment of the defendant before the district court of Carter County, a plea of not guilty was entered. No motion to quash nor other pleading was filed which raised the question now urged or presented in any way any alleged defects in the preliminary proceedings.

Counsel does not contend that no preliminary examination was held for the defendant, but base their contention solely upon the fact that the complaint was filed before one justice of peace and the examination held before another justice of the peace, and the record fails to affirmatively show any way in which the second justice of the peace acquired jurisdiction to hold the examination.

A similar question was presented in the recent case of Ex parte Owen, 82 Okla. Cr. 415, 171 P. 2d 868. The syllabus of that case reads as follows:

“The Constitutional provision (Art. 2, § 17, Okla. Const.) that no person shall be prosecuted for a felony by information without having had a preliminary examination is in the nature of a personal privilege for the benefit of the accused which may be waived by him.
“An information charging a felony need not allege that an accused has had a preliminary examination or has waived it.
“The manner of challenging jurisdiction because no preliminary examination was had is by motion to quash or set aside the information before entering a plea on the merits.
“A preliminary examination may be waived before the committing magistrate or the preliminary examination, and the entire preliminary proceedings may be waived in the trial court and is waived by failure to file motion to quash or set aside as provided by the statute before entering a. plea on the merits.”

See, also, in this connection the cases of Ex parte Robinson, 56 Okla. Cr. 404, 41 P. 2d 127; Quinton v. State, 10 Okla. Cr. 520, 139 P. 705; Herren v. State, 72 Okla. Cr. 254, 115 P. 2d 258, 259.

In the case of Herren v. State, supra, it is held:

“The entire preliminary proceedings may be waived in the trial court and is waived by failure to file motion to quash or set aside as provided by the statute before entering a plea on the merits.
“After a plea of not guilty is entered upon arraignment in district court without filing a motion to quash the information, the question as to the failure to have a preliminary examination is waived and may not be raised by an objection to the introduction of evidence at the beginning of the trial.”

In the body of the opinion it is stated:

“The record is silent as to whether defendant was heard by counsel at the preliminary examination or whether he even had a preliminary hearing. When a record is silent as to certain proceedings had upon the trial, every presumption of law is in favor of the regularity of the proceedings; and in order for this presumption to be overcome, the contrary must affirmatively appear in the record. Killough v. State, 6 Okla. Cr. 311, 118 P. 620; Henry v. State, 10 Okla. Cr. 369, 136 P. 982, 52 L. R. A., N. S., 113.”

It is stated in 22 C. J. S., Criminal Law, § 589:

“In the absence of proof to the contrary, the proceedings of courts properly exercising criminal jurisdiction are presumed to be regular, and the mere failure of their records to show this, does not overcome the presumption. * * *
“In the absence of a showing to the contrary, the law presumes that accused has had a preliminary examination or has waived it, that proceedings leading up to a commitment by a magistrate were regularly conducted, that the magistrate performed the duties imposed on him by law, and that such duties were performed by the magistrate in good faith.”

Since the question now presented is raised for the first time on appeal, it is apparent in view of the above authorities that the defendant’s position is untenable.

It is next contended that defendant’s rights were prejudiced by reason of the refusal of the trial court to grant a continuance upon motion of defendant.

At the time the case was called for trial the record discloses the following proceedings occurred:

“By the Court: What says the state in the case of the State of Oklahoma against Mamie Ingram? By Mr. Williams (county attorney) : The state is ready. By Mr. Champion (counsel for defendant) : Mrs. Lola Stin-nett, I understand has gone to California after she had been subpoenaed. Grady Rhone is not here, he was subpoenaed by the state. By the Court: Did you subpoena lier or did the state? By Mr. Champion (counsel for defendant) : Yes, sir, the state subpoenaed her and we have a right to rely on that subpoena. By the Court: Are you making a motion for a continuance? By Mr. Champion (counsel for defendant) : Yes, sir, we are going to ask for a continuance. By the Court: Well, the oral motion is overruled. By Mr. Champion (counsel for defendant) : Well, will you give us time to prepare a written motion? I thought they would be here until I got to the courthouse. By the Court: We will recess until 9 :30 for that purpose. Note by Reporter: (A short recess was had and counsel for the defendant discussed further the question of a continuance with the court in chambers out of the presence of the jury panel and the court overruled the motion for a continuance, which was excepted to by the defendant. Thereafter at 9:30 a. m., all parties being present and a jury being in waiting, a jury of twelve men were duly and legally selected to try this case.) ”

There is no question but that the two absent witnesses were present at the time the fatal shooting occurred. They were a sister and nephew of the defendant. The undisputed facts were that the defendant, Mamie Ingram, shot her brother-in-law, Bud Lankford, with a 38 caliber Luger pistol in the home of the defendant in the presence of the wife of the deceased, who was also a sister of the defendant, and who testified in her behalf at the trial, and that there were also present, Lola Stin-nett, a sister of the defendant, and Grady Rhone, a soldier who was a nephew of the defendant. No subpoenas were issued for these two witnesses by the defendant. It is apparent from what counsel for defendant said that he knew that neither would be present at the trial and if he had desired to have properly presented this question, he should have prepared a motion in writing setting forth the substance of the testimony which would have been given by the absent witnesses and a further showing of the diligence which had been used to obtain their presence at the trial, and whether or not the witnesses’ presence could be procured at a future trial if the cause was continued.

Counsel who now represent the defendant were employed to perfect her appeal and were not the counsel who represented her at the time of the trial. It is their contention that irrespective of the failure of counsel who appeared at the trial to file a proper motion for continuance with supporting affidavits, it was the trial court’s duty on his own motion to continue the cause when it became evident that the two absent witnesses were present at the time of the fatal shooting and that their testimony was material to a proper determination of the cause.

We have given this question a great amount of attention and have carefully considered the record to determine in our own mind whether the cause should be reversed and a new trial granted in order to fully protect the rights of the defendant so that justice could be administered fairly.

At the time the oral motion for continuance was presented, the trial court, of course, did not know just what the evidence would disclose concerning the homicide.

At the time the motion for continuance was overruled, there was nothing in the record to call the court’s attention to the fact that the absent witnesses were eyewitnesses to the homicide. There is very little dispute about the facts. The deceased, an oilfield worker, lived with his wife about four miles from the defendant. A few months before the tragedy occurred the wife of the deceased and the defendant had gone to California over the objection of the deceased and had spent five months there together. The defendant, a single woman, lived in a small three room house. On the day of the homicide, the deceased had gone squirrel hunting and had been drinking heavily. The wife of the deceased, together with another sister, Mrs. Stinnett, and a soldier, had gone to the home of the defendant where they had engaged in a party with considerable beer drinking, and also some whisky drinking. When the deceased returned from his squirrel hunt and discovered the absence of his wife from their home, he went over to the home of the defendant and as quickly as he entered the house trouble commenced. The deceased slapped his wife and ordered her home and when Lola, Stinnett interfered, he knocked her down and started to stomp her. The defendant then grabbed the pistol from the soldier and shot the deceased taking his life. This was the testimony of the defendant and her sister, and the State had no evidence to refute this evidence of the defendant, other than the statement allegedly made by the defendant to the wife of the deceased that if she did not keep her husband at home that she intended to kill him.

No proper showing having been made to the court at the time the motion for continuance was overruled, we cannot conclude from the record that there is such fundamental error in the record that this court should on our own motion reverse the cause because of the failure of the trial court to sustain the oral motion for a continuance. In all other respects save this, counsel who appeared for defendant at the trial, represented the defendant in an able manner, and we shall not say that he was deficient in respect to the presentation of the mo-fendant is one of the most able lawyers of this state and we are of the opinion that he knew what he was doing tion for continuance. Counsel who represented the de-when he allowed the trial to proceed without further urging that the cause be continued. Possibly, he felt in his own mind, with a full knowledge of the defendant’s case and the personnel of the jury, that the signs were right for a trial and that possibly the defendant was better off to proceed immediately with a trial rather than try to force a continuance. Knowing the trial court as we do and his reputation for fairness to all parties concerned, which was also known to counsel for defendant, it is evident that counsel preferred to proceed with the trial rather than to present a proper motion which the court would have possibly sustained.

It is further contended that incompetent testimony was admitted which prejudiced the rights of defendant.

As hereinabove noted, Beulah Lankford, wife of the deceased, and sister of the defendant, testified on behalf of the defendant, On cross-examination of the witness by the assistant county attorney, she was asked if her husband left any- insurance, to which she replied, “Very little to speak of.” She was then asked, “How much?” and answered, “$2,000 in all and that didn’t hardly cover the expenses.”

No objection was made to these questions, but counsel for defendant proceeded to examine the witness to show that the insurance money which was left had all been spent to pay the expenses of burial and debts left by deceased. Counsel for the defendant then moved to strike the evidence to which the court replied that he doubted if the evidence was competent, but in view of the fact that counsel for defendant had examined her upon this question he would let it stay in the record. No exception was reserved to this action of the court.

Complaint is also made of the admission in rebuttal of the testimony of the witness Dick Rabun, an officer, who had testified for the state as a part of its case in chief, on the ground that the testimony in rebuttal by the officer was a rehash of the state’s case and unfair to the defendant.

When the witness, Beulah Lankford, was on the stand, certain questions were asked the witness relative to the statements which she made the day after the shooting occurred to Officer Rabun. To some of these questions the witness stated that she did not remember and in response to other statements she denied making the statements attributed to her. A proper foundation was thus laid for impeaching the witness in rebuttal.

At the conclusion of the testimony of the witness, Beulah Lankford, the court properly instructed the jury that the evidence of the statements allegedly made by Beulah Lankford to Officer Rabun was admitted for the sole purpose of affecting the credibility of the witness, Beulah Lankford, if it did so, and such statements were not binding on the defendant and were not admitted as evidence of the guilt of the defendant but only for the purpose of affecting the credibility of the witness, Beulah Lankford.

It is next contended that the county attorney was guilty of misconduct in making a comment while the wife of the deceased was testifying, which comment had the effect of forcing the defendant to take the stand and such action of the county attorney prevented the defendant from having a fair and impartial trial.

In connection with this proposition the record discloses the following:

“Q. (By Mr. Champion:) After your husband had been shot, did you know where the defendant got the gun, did she get it out of this boy’s hand? A. Yes, she did. By Mr. Williams (county attorney) : We object to that, she can tell. By the Court: She has already made the statement, that would be repetition.”

It is contended that the reference by the county attorney when he said “She can tell” was that the defendant could take the witness stand and tell about the matter, and amounted to a challenge to the defendant to take the witness stand. In considering this proposition, we note from the record that counsel for the defendant had been asking some leading questions to which objection had been made by the county attorney, and it appears that the statement “She can tell,” made by the county attorney, referred to the fact that the witness was able to tell without counsel for the defendant asking her a leading question by which the answer was put in the witness’s mouth.

Furthermore, the record discloses that, during the trial and before the state had rested its case, counsel for the defense announced in open court “This defendant is going to take the stand.” In view of this statement that was made by counsel, we cannot see how the question by the county attorney could have been said to have had the effect of forcing the defendant to take the witness stand.

We do not see any violation of the statute which provides that:

“In the trial of all indictments, informations, complaints and other proceedings against persons charged with the commission of a crime, offense or misdemeanor before any court or committing magistrate in this State, the person charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him nor be mentioned on the trial; if commented upon by counsel it shall be ground for a new trial.” Tit. 22 O. S. 1941 § 701.

An amended motion for new trial on the ground of newly discovered evidence was filed by counsel for defendant in which it was alleged that about 30 or 40 minutes prior to the time of the fatal shooting, the deceased entered a store building in a drunken condition, broke down the door and created a considerable disturbance; and that his condition was such that he did not know what he was doing, and that at that time by reason of 1ns drunken condition he had lost control of his senses.

The statute providing for a new trial upon the ground of newly discovered evidence (Tit. 22 O. S. 1941 § 952) further provides: “* * * The defendant must produce at the hearing in support thereof affidavits of witnesses, or he may take testimony in support thereof.” The statute was not complied with in that no affidavits were furnished the court and no testimony in support of this newly discovered evidence was offered.

Both the defendant and Mrs. Lankford testified that the deceased was in a drunken fighting mood when he entered the home of defendant and according to the wife of the deceased the fight started immediately.

It has often been held that a new trial should not be granted on ground of newly discovered evidence where such evidence is cumulative and there is no reasonable probability of a different result. Beaver v. State, 54 Okla. Cr. 49, 14 P. 2d 423; Cummings v. State, 57 Okla. Cr. 428, 48 P. 2d 879; John v. State, 79 Okla. Cr. 50, 151 P. 2d 808.

By reason of the minimum punishment for manslaughter in the first degree which was assessed by the jury, it appears that the jury was convinced that the deceased was in a drunken condition when he entered the home of defendant, but that his acts on that occasion were not sufficient to have justified the defendant in taking his life. For that reason, we think the alleged newly discovered evidence would not have changed the result of the trial. All of the evidence pointed to the conclusion that the deceased was in a drunken condition and the state did not attempt to deny that fact. For that reason, we hold that the alleged newly discovered evidence was cumulative and that there is no reasonable probability that if such evidence had been introduced, a different result would have been reached.

The judgment and sentence of the district court of Carter county is affirmed.

BAREFOOT, P. J., and BRETT, J., concur.


source: Caselaw Access Project

author: BAREFOOT, P. J.

license: Public Domain

text:
    LAWRENCE WATERS v. STATE.
    No. A-10884.
    Sept. 1, 1948.
    (197 P. 2d 299.)

      Frank Leslie, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and James P. Devine, Asst. County Atty., Tulsa County, and Amos T. Hall, Sp. Pros., both of Tulsa, for defendant in error.
   BAREFOOT, P. J.

Defendant, Lawrence Waters, was charged in the district court of Tulsa county with the crime of murder; was tried, convicted, and given the death penalty. From this judgment and sentence, he has appealed to this court.

When this case was assigned for oral argument, counsel who now represents this defendant and who filed the brief herein, but who did not represent him at the trial in the lower court, appeared and orally argued the same.

Three errors are presented: That the court erred in refusing to sustain a motion for continuance; that the court should have instructed the jury with reference to manslaughter in the first degree; and that the judgment and sentence rendered is excessive and should be modified from all the facts and circumstances in this case.

We deem it proper to give a brief statement of the facts, before considering the assigned errors.

Defendant, Lawrence Waters, was charged in the district court of Tulsa county with murdering Arthur Bell, in the city of Tulsa, on December 6, 1946, by shooting him with a shotgun. Both defendant and deceased were members of the Negro race, and both resided in the city of Tulsa.

The facts, as revealed by the record, are that Arthur Bell was running a small restaurant or cafe at 1003 East Young Place, in Tulsa. He lived at 1001 East Young Place, his residence adjoining his place of business. He had two sons, Theopolis, age 10 and James, age 12. They were both eyewitnesses to the killing of their father, and both testified for the state.

About 4 o’clock in the afternoon on December 6, 1946, the defendant, with his brother Harold Waters, his sister Ernestine Waters, his common-law btrother-in-law Lawrence Vaughn, and a girl named Jessis Mae Garner, went to the cafe of Arthur Bell. They were in an automobile, driven by Lawrence Vaughn, and all entered the cafe and were seated in a booth. They ordered a pint of whisky, which was delivered to them by Arthur Bell, and was paid for by Harold Waters, brother of defendant. These facts are all testified to by both the witnesses for the state and the defendant.

The two sons of the deceased both testified that after the defendant’s party was served with the whisky they all left the place. That there was no misunderstanding as to the change, and no controversy of any kind. That Harold Waters gave their father a bill, and he gave him back some change. They also testified that they both went to the door and that their father did not kick or shove either the defendant or Lawrence Vaughn off the porch. That their father did not at any time have a gun in his hands, and did not threaten to kill any of the parties. The only thing said by their father was that he asked Harold Waters and Lawrence Vaughn to quit cursing in their presence. That all of the parties left together in the automobile about 5 o’clock in the afternoon.

Four of the five members of the party testified for the defendant. Jessie Mae Garner did not testify, as she was in a hospital. All of the witnesses for defendant testified to entering the cafe and purchasing the pint of whisky from Arthur Bell, and that Harold Waters handed Bell a $10 bill, and was only handed back in change $2.50. That there was a controversy with reference to the amount of change, and the bottle of whisky was spilled and the witness Lawrence Vaughn tried to get Arthur Bell to replace the liquor. They all testified that Bell went into his near-by home and returned with his pistol in his hand and ordered them out of his place, kicking the defendant, and shoving the witness Lawrence Vaughn off the porch. There were some slight conflicts in their testimony, but this was the gist of it. They all testified that Arthur Bell threatened to kill them; that they had trouble with their car and had to push it to get it started; that Lawrence Vaughn was driving and Arthur Bell was standing on the porch with his gun in his hand threatening to kill them and ordering them to get away from his place of business.

The defendant and his witnesses further testified that they went to the home of defendant’s father, and that the witness Lawrence Vaughn was drunk and laid down on the bed and went to sleep, and the sister Ernestine left the premises. In about one hour or around 6 o’clock in the afternoon, Harold Waters, the brother of defendant, told defendant he was going back to the home of Arthur Bell to get his change. He wanted the defendant to go with him, and defendant at first refused to go, and tried to get his brother not to go. Defendant then agreed to go with his brother Harold, but told him he would not go without his gun. He then took a double barrel shotgun, which was in two parts, from under the father’s bed, secured shotgun shells from the pocket of a coat, and he and his brother proceeded toward the home of Arthur Bell, a distance of some seven or eight blocks. Just before reaching the home of Arthur Bell, defendant put the gun together and loaded it. When they reached the home of Bell, Harold Waters went to the door and knocked. Defendant remained on the outside near a window with the gun in his hand. Harold Waters entered the house, and present were the deceased and his two sons, Theopolis age 10, and James age 12.

The two sons testified that Harold Waters asked to borrow money from their father, and that the father told him he could not lend him money, but if he was hungry he would give him something to eat. That Harold Waters told their father to give him something to eat, and their father told the older boy to get a sandwich, which he did, and when he returned with the sandwich and handed it to Waters, a shot was fired through the window, and the father, who was sitting in a chair, was struck in the face. He was assisted by his son James and walked to another room. He died as a result of said wounds. Both the boys testified that they ran to the back yard and both saw Harold Waters and the defendant Lawrence Waters running from the premises. That the defendant had something in his hands.

On the same night, between 9 and 10 o’clock, the defendant and his brother Harold Waters were arrested, and both made statements to the officers with reference to the killing.

In his written statement, Harold Waters said nothing about a controversy over the change, or about seeing any one kicked or pushed by deceased. He denied in the statement that he was at the deceased’s place after Bell ordered them away; and that he was not present at the time the shot was fired. He also denied that his brother gave him the gun, after the killing, or that he knew where the gun was. On the trial of the case, Harold Waters admitted that all of these statements were untrue; that he was present at the time of the shooting, and gave the details of him and his brother going to the home of Arthur Bell, and of the shooting. His testimony as to the actual shooting was as follows:

“A. I asked him for my change again and he got angry again, so I gets up to leave and then is when it all happened. Q.. Then a shot was fired from the outside? A. That is right. Q. And that shot was fired by your brother? A. Well, I didn’t see him fire. Q. Well, he was outside with the gun, was he not? A. He was outside. Q. Bid you go in there that evening, after you went back, and tell Arthur Bell that you wanted to borrow some money? A. No, I didn’t. Q. Did you tell him that you were sick? A. No, I didn’t. Q. Did they offer you anything to eat? ? A. No. Q. You did not get any sandwich there at all, did you? A. No. Q. Or anything else to eat? A. Nothing else.”

Defendant testified in his own behalf and stated that he was 28 years of age. That he served in the United States Military services for three years during the war, and served two years in Italy in the quartermaster’s department. He was finally discharged in January, 1946. He corroborated the other witnesses as to the happenings up to the time of the firing of the fatal shot. He stood at the window while his brother entered the house of Arthur Bell. He testified that he could not see his brother in the house, but could see Arthur Bell, who was sitting in a chair. He saw him making motions with his hand, and saw him make a quick move toward the bed, over towards the pillow. He thought he was reaching for a gun to shoot his brother, and he fired the shot through the window that killed Arthur Bell. The defendant, in company with his brother, left the scene of the killing, and before getting to his father’s home, he gave the gun to his brother, Harold, and he started over to his aunt’s. He soon returned to his father’s home and was arrested there by the officers. He made a written statement to the officers on the night of his arrest, as follows:

“December 6, 1946. This is a statement of Lawrence Edward Waters on the shooting of Arthur Bell of this city about 6.35 p. m. This happened at 1001 East Young Place.
“Question: Lawrence, you told me that you shot Arthur Bell, didn’t you? Answer: That is right.
“Question: Just tell me in your own words about your going out there today and what happened and why you went back and shot him. Answer: I bought a pint of whisky off Bell and he was already drinking and he told me to get out of his house. I went out on the porch and then I wanted my sister and she came out and then Bell came out and he kicked me and told me to get off the porch and kept my sister there; then after we, Harold Waters, Ernestine Waters, Jessie Mae Garner and Lawrence Vaughn left and went up the street and stopped the car, I then sent Jessie Mae back after my sister and she met her half-way and they came on back to the car. We then came on back to town, or that is to my house, and then I went into my house and got a 12-gauge shotgun and some shells and went back to Bell’s house and walked into the front of the house and saw him sitting at the window with his face to me, and then I let him have it through the window with one shot, then I walked off afoot and went to my father’s house. After I shot Bell I walked down to Midland Valley tracks, where I met my brother and gave him the shotgun. Harold Waters is the brother.
“This statement is made of my own free will and accord. After having read the beforesaid statement, I find the same to be true and correct.
“(Signed)
“Lawrence Edward Waters
“In the presence of
“Brick Fowler
“A. W. Berry
“A. Ferguson,
“Members of the police department.”

While testifying at the trial, he stated that certain parts of the statement were not true.

Several witnesses testified to the general bad reputation of deceased, and some as to his reputation as a quarrelsome, turbulent, over-bearing and dangerous individual. Among these witnesses were a number of peace officers of Tulsa county.

It was also revealed by the record that defendant had been in trouble most of the time since 1925. He had been to tbe penitentiary at least twice for burglary and larceny.

As to the first error presented, that defendant should have been granted a continuance, the facts are that defendant was arrested on the charge of murder on the night of December 6, 1946. A complaint was filed in the justice court, a preliminary examination was held, at which time he was represented by counsel of his own choosing, Hon. S. S. Lawrence, of Tulsa. Information was filed in the district court of Tulsa county on December 31, 1946. On January 8, 1947, defendant was arraigned in the district court, and was at that time represented by Mr. Lawrence. On February 6, 1947, Mr. Lawrence accepted service, as attorney for defendant, of a list of witnesses to be used by the state at the trial. Some time subsequent to the preliminary hearing, Mr. Lawrence was notified by the brother of the defendant that they desired to change counsel. On February 21, 1947, the day the case was set for trial, Mr. Lawrence sought to withdraw as counsel, but this request was denied by the court. A motion for continuance was made for the reason that counsel had not had time to prepare for trial, for the reason that defendant and his relatives had notified him only a few days prior to February 21, 1947, that they desired him to proceed as attorney for defendant. The motion for continuance was overruled and the case was passed until February 24, 1947. On that date the case was called for trial, and no further motion or request for continuance was made. The names of no witnesses who could not be present at the trial were presented, and no affidavits, as required by the statute, were presented.

From the above statement it is apparent that, under the law, as often announced by this court, there was no error in overruling the motion for continuance. All of the witnesses who were present in the afternoon, except one, and at the time of the killing, testified at the trial. The testimony of the absent witness, Jessie Mae Garner, would have been only cumulative, and she was not present at the time of the killing. The attorney selected by defendant to represent him at the preliminary, and at his arraignment, and who was thoroughly familiar with his case, represented him at his trial. The trial court was right in refusing counsel permission to withdraw from the case, and in overruling the motion for continuance.

As to the contention of defendant that the court erred in failing tq give an instruction on manslaughter in the first degree in this case, we have carefully examined the record and the law of the cases heretofore decided by this court. The record here reveals that no requested instruction was presented by defendant, and that no such error was presented in the motion for new trial, or in the assignment of errors. However, if it were found from the record in this, a death penalty case, that fundamental error had been committed, we would not hesitate to consider the same, regardless of the fact that it was not presented in the motion for new trial, or in the assignment of errors. From the record in this case, we have come to the conclusion that the court did not commit error in failing to give an instruction on first degree manslaughter, although it would not have been error if he had seen proper to give such an instruction.

From an examination of the record, it may be ascertained that the state, represented by the county attorney and a special prosecutor, contended that the defendant and his brother, before their departure from the home of their father, had entered into a conspiracy or agreement to kill Arthur Bell; that they carried the shotgun in two parts in order to conceal the same; that the brother of defendant entered the home of the deceased for the purpose of placing him in a position to be killed by the defendant, and that the brother, in lying down upon the bed as testified to by the little boys, did so for the purpose of keeping out of range of the shot which killed the deceased. There was evidence and circumstances which would have justified this contention. On the other hand, the defendant testified that the deceased was making motions with his hands, and he was afraid that he was going to kill his brother, and that he saw him reaching toward the pillow on the bed and thought he was reaching for a gun. The brother of defendant, however, did not testify to any overt act on the part of deceased.

As far as the law is concerned, it is expressed in the case of Smith v. State, 77 Okla. Cr. 142, 140 P. 2d 237, 241, where the facts were somewhat similar to the facts here. It was there said:

“From the above statement of the evidence, and the reading of the authorities, it is revealed that the testimony of the state clearly shows a case of murder. The evidence of the defendant is based squarely .upon justifiable homicide, his own testimony showing that he went to the scene of the difficulty at night, armed. It is probably true that he did not intend to kill the boy Mansfield Postran. But if he intended to kill the father, Nathaniel Postum, as testified to by the State’s witnesses, his actions would constitute murder. If his testimony was true, he would not be guilty. This was the view taken by the trial court, and for this reason he did not submit the issue of manslaughter in the first or second degrees.
“The statute provides (section 2223, O. S. 1931, Tit. 21 O. S. A. 1941 § 711) :
“ ‘Homicide is manslaughter in the first degree in the following cases:
“ ‘1. When perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor.
“ ‘2. When perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon; unless it is committed under such circumstances as constitute excusable or justifiable homicide.
“ ‘3. When perpetrated unnecessarily either while resisting an attempt by the person killed to commit a crime, or after such attempt shall have failed.’
“And sec. 2228, O. S. 1931, Tit. 21 O. S. A. 1941 § 716:
“ ‘Every killing of one human being by the act, procurement or culpable negligence of another, which, under the provisions of this chapter, is not murder, nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree.’
“A careful analysis of these statutes has been made in the case of New v. Territory, supra [12 Okla. 172, 70 P. 198]. The court submitted to the jury an instruction on the law of self defense which fully covered the issue of justifiable homicide. There was no evidence which warranted the submitting of the issue of manslaughter in the second degree.
“We do not find from an examination of the facts in the case at bar that the trial court erred in failing to present these issues to the jury.
“For the reasons above stated, the judgment and sentence of the district court of Pittsburg County is affirmed.”

In the case above quoted, reference is made to the case of New v. Territory, 12 Okla. 172, 70 P. 198, 200. We refrain from quoting extensively from this case, but the facts are very similar to those in the case at bar. A full exemplification of the law is given as to the duty of the court in giving instructions on murder, and man-slaugher in the first and second degrees. The court there says:

“Where the evidence of the prosecution shows the killing to have been murder, and the evidence of the defendant tends to show the killing to have been justifiable, it is only necessary that the instructions of the court should cover the law of the case as shown by the evidence. * * * Viewing the evidence of the defendant alone from its most favorable standpoint, only one of two conclusions could have been arrived at by the jury: First, if the case for the prosecution was made out, the verdict must have been for murder. If the theory of the defendant was sustained, then the homicide was justifiable. As we view the defendant’s testimony, from the record, however, taking it as a whole, and particularly the acts of the defendant from the beginning of the shooting until the end, we do not see how the jury could have arrived at any other conclusion than that the defendant was guilty of murder.”

The court held that it was not error to refuse to give an instruction on manslaughter in the first degree. There, as in this case, such an instruction was not requested.

It is next contended that the judgment and sentence of death, under the record in this case, is excessive, and that justice demands that the judgment and sentence should be modified, if it is sustained.

We have often held that this court has the power to modify a judgment and sentence inflicting the death penalty to a term of life imprisonment in the State Penitentiary. With this in mind, we have carefully examined the record in this case. We find that Arthur Bell was engaged in the sale of intoxicating liquor at his place of business in the city of Tulsa, in violation of the laws of his state. He sold a pint of whisky to defendant and his party. There is a conflict in the evidence as to what occui’red at the time this whisky was purchased by the brother of the defendant. This conflict has before been stated. The fact remains that for some reason the brother and defendant returned to the place of business or home of deceased. This somewhat corroborates the statement of the defendant and his brother as to their reason for returning Aside from the incident in the afternoon preceding the killing, there had been no controversy or ill feeling by the defendant toward the deceased. No motive is shown for the killing. Defendant had only been back a short while from two years service overseas in the United States Army. The undisputed evidence reveals that deceased was a quarrelsome, overbearing and dangerous person, and that his general reputation in the city of Tulsa was bad. This evidence was given by a number of disinterested citizens, and by a number of peace officers who had served for many years in the city of Tulsa. It is true that the record of the defendant prior to his entry into the army was bad, but there is no evidence of the violation of any law after his return.

With this record before us, and an examination of many cases decided by this court where the judgment and sentence has been modified from death to life imprisonment, we have come to the conclusion that justice demands in this case that the judgment and sentence of the district court of Tulsa county should be modified from death to a term of life imprisonment in the State Penitentiary at McAlester, with the firm belief that no pardon and parole board of this state will grant a pardon or parole to this defendant for many, many years. Life imprisonment is a very great punishment, and a number of states have altogether prohibited capital punishment. Our experience as Judges and as members of the bar of this state for many years has convinced us that capital punishment is a very just and necessary law in Oklahoma, and that justice demands that it be maintained. But its application should only be in those cases where the evidence is such that demands the death penalty.

The earlier cases where the judgment and sentence has been modified from death to life imprisonment are cited in the case of Mannon v. State, 68 Okla. Cr. 267, 98 P. 2d 73. Some of the later cases are Moore v. State, 75 Okla. Cr. 222, 130 P. 2d 114; Murphy v. State, 72 Okla. Cr. 1, 112 P. 2d 438; Benton v. State, 86 Okla. Cr. 137, 190 P. 2d 168; Mitts v. State, 82 Okla. Cr. 367, 170 P. 2d 563; Easley v. State, 78 Okla. Cr. 1, 143 P. 2d 166.

Where the judgment and sentence was not modified: Abby v. State, 72 Okla. Cr. 208, 114 P. 2d 499, 115 P. 2d 266; Tuggle v. State, 70 Okla. Cr. 83, 104 P. 2d 726 and 73 Okla. Cr. 208, 119 P. 2d 857; Norman v. State, 81 Okla. Cr. 78, 160 P. 2d 739; Cunningham v. State, 70 Okla. Cr. 131, 105 P. 2d 264; Broyles v. State, 83 Okla. Cr. 83, 173 P. 2d 235; Johnson v. State, 79 Okla. Cr. 363, 155 P. 2d 259; Bingham v. State, 82 Okla. Cr. 5, 165 P. 2d 646; Johnson v. State, 82 Okla. Cr. 437, 172 P. 2d 337; Steen v. State, 82 Okla. Cr. 141, 167 P. 2d 375; Porter v. State, 76 Okla. Cr. 16, 133 P. 2d 903; Kidd v. State, 76 Okla. Cr. 213, 136 P. 2d 210; Parish v. State, 77 Okla. Cr. 436, 142 P. 2d 642; Prather v. State, 76 Okla. Cr. 385, 137 P. 2d 249; Grayson v. State, 85 Okla. Cr. 266, 188 P. 2d 696.

It will thus be noted that of the nineteen cases where the death penalty has been assessed since the Mannon case was decided, five have been modified, and fourteen affirmed.

In considering the question of whether justice demands that the judgment and sentence in this case be modified, we have re-read all of the cases cited in the Mannon case, and here cited. A comparison of the facts in those cases and the facts here presented have been carefully compared, and after this comparison, we have reached the conclusion that justice demands the judgment and sentence in this case be modified from death to life imprisonment.

In the case of Easley v. State, supra, this court, in quoting from the case of Hubka v. State, 40 Okla. Cr. 161, 267 P. 864, said [78 Okla. Cr. 1, 143 P. 2d 180] :

“ ‘The duty imposed upon the court of protecting the taking of human life is a grave and solemn one; to take the life of a human being, even when taken by the law, is a trying and grievous task. Considering the whole testimony in this case, we feel constrained to say that we find few palliating circumstances in behalf of the defendant. * * *
“ ‘Taking all the facts into consideration and the enmity and feeling that seems to have existed between them, we are of the opinion that the punishment imposed is excessive, and that justice requires a modification of the judgment and sentence of death to that of imprisonment at hard labor in the State Penitentiary for life, and, as so modified, the judgment herein is affirmed.’ ”

And quoting from the case of Easley v. State, supra:

“See, also, State v. Young [19 Okla. Cr. 363, 200 P. 260], and Walker v. State [20 Okla. Cr. 319, 202 P. 799] cited in the Bradley case, supra, [Bradley v. State, 31 Okla. Cr. 194, 237 P. 625] and Methvin v. State, 60 Okla. Cr. 1, 60 P. 2d 1062; Holford v. State, 57 Okla. Cr. 431, 48 P. 2d 1082; and Goben v. State, 32 Okla. Cr. 237, 240 P. 1085.
“Eliminating the defense offered in this case, the facts are not such that justify the inflicting of the death penalty, as shown by the authorities above cited. There being no evidence of ill will between the defendant and deceased prior to the morning that they had a fuss just prior to the killing, and no motive being shown as to why the defendant should desire to kill his own wife, and the errors heretofore discussed as revealed by the record in this case, we cannot but come to the conclusion that justice demands a modification of this judgment from that of death, to a term of life imprisonment at hard labor.”

In the case of Moore v. State, supra [75 Okla. Cr. 222, 130 P. 2d 119], we said:

“The penalty of death as a punishment of crime is to be inflicted only in the most extreme cases. It is a matter of record that the members of this court favor the infliction of the death penalty in cases where the evidence and the law justify. Here there was an utter lack of motive. Both of the deceased were friends of defendant. He had had no harsh words with the deceased, although he had asked a brother of deceased to lend him money to go to Texas. * * *
“No more solemn duty can be imposed upon the courts than the duty of protecting, and the duty of taking, human life. To take the life of a human being is an awful thing, even when it is taken by the law.”

The Moore case was modified to life imprisonment. See, also, the case of Sapp v. State, 83 Okla. Cr. 53, 172 P. 2d 643.

In the case of Murphy v. State, supra, quoting from Methvin v. State, 60 Okla. Cr. 1, 60 P. 2d 1062, it is said [72 Okla. Cr. 1, 112 P. 2d 457]:

“ 'The law regards human life as the most sacred of all interests committed to its protection; and no more solemn' duty can be imposed upon the courts than the duty of protecting, and the duty of taking, human life. To take the life of a human being is an awful thing even when it is taken by the law in the due administration of justice.’ ”

And quoting from Anthony v. State, 12 Okla. Cr. 494, 159 P. 934:

“ 'The power of this court to modify a judgment inflicting the death penalty for murder to imprisonment for life at hard labor, when deemed proper in the furtherance of justice, is not the power to commute by the chief executive of the state. The judicial power to modify a judgment and the executive power to pardon or commute are wholly distinct in their nature. The one is an award of justice. The other is an act of grace.’ ”

We conclude this opinion with the statement in the case of Sapp v. State, supra [172 P. 2d 650] :

''It is our conclusion that the facts surrounding this crime do not justify the assessing of the extreme penalty of the law, and the judgment and sentence of death should be modified to provide that defendant, Jess Vaughn Sapp, be imprisoned in the State Penitentiary for life at hard labor. Surely this defendant, with a record of six convictions in felony cases, will never be allowed outside the prison walls again, but that in reality he should be forced to spend the remainder of his days confined to the penitentiary at hard labor, and, if this is done, such punishment will be ample for the crime which was committed.”

The judgment of the district court of Tulsa county is therefore modified from death by electrocution, to life imprisonment in the State Penitentiary at McAlester, at hard labor; and as so modified, is affirmed.

JONES and BRETT, JJ., concur.


author: BRETT, J.

text:
    Ex parte LEROY DRAKE.
    No. A-11082.
    Sept. 1, 1948.
    (197 P. 2d 308.)
    Leroy Drake, pro se.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   BRETT, J.

This is an original proceeding brought by petitioner Leroy Drake for a writ of habeas corpus seeking his release from the penitentiary at McAlester. The petition alleges that he was charged by information with the crime of grand larceny of property worth and of the value of $200, after a former conviction. The ver-diet of the jury as disclosed by tbe petition is as follows, to wit:

“We, tbe jury, impaneled and sworn in the above-entitled cause, do upon our oaths find the defendant, Leroy Drake, guilty as charged in the information herein and fix his punishment at 10 years in the State Penitentiary.”

The pertinent part of the judgment and sentence read as follows, to-wit:

“The prisoner the above named Leroy Drake, defendant, being personally present in open court and having been legally informed against and arraigned and having plead not guilty to the crime of Grand Larceny (Larceny of Domestic Animals) charged in said information, and having been then and there in said court, duly and legally tried and convicted of said crime, and the prisoner appearing for judgment is informed by the court of the nature of the information and of his plea and the verdict of the jury thereon, and being asked by the court whether he had any legal cause to show why judgment and sentence should not be pronounced against him, and giving no good reason in bar thereof, and none appearing to the court.
“It is therefore ordered, adjudged and decreed by the Court that the said Leroy Drake be confined in the State Penitentiary at McAlester, in the State of Oklahoma, for the term of ten (10) years, for said crime by him committed, * * *”

The maximum sentence for grand larceny when the value of the property is in excess of $20 is as follows (Title 21 O. S. A. § 1705) :

“Grand larceny is punishable by imprisonment in the penitentiary not exceeding five years.”

The maximum punishment for one formerly convicted of crime and charged as the petitioner herein was charged under the habitual criminal act, Title 21 O. S. A. § 51, is governed by subsection 2 thereof, which reads as follows, to wit:

“2. If such subsequent offense is such that, upon a first conviction the offender would be punishable by imprisonment in the penitentiary for five years, or any less term, then the person convicted of such subsequent offense is punishable by imprisonment in the penitentiary for a term not exceeding ten years.”

It clearly appears from the judgment and sentence, that the court had the petitioner before it in person, on a charge of grand larceny, and that the sentence was within the limits of the law. It is apparent, therefore, that, the court having jurisdiction of the person of the petitioner, jurisdiction of the subject matter, and authority under the law to render the judgment and sentence, the judgment and sentence are not void. We said in Ex parte Mayberry, 78 Okla. Cr. 366, 148 P. 2d 785, that inquiry in habeas corpus is limited to a determination of those questions. Ex parte Cannes, 77 Okla. Cr. 71, 138 P. 2d 561, certiorari denied 320 U. S. 764, 64 S. Ct. 44, 88 L. Ed. 456. We have repeatedly held the writ of habeas corpus is limited to cases where the judgment and sentence of the court attacked are clearly void. Ex parte Walker, 84 Okla. Cr. 190, 180 P. 2d 670, Ex parte Darr, 84 Okla. Cr. 352, 182 P. 2d 523; Ex parte Tollison, 73 Okla. Cr. 38, 117 P. 2d 549; Ex parte West, 62 Okla. Cr. 260, 71 P. 2d 129; Ex parte Keel, 62 Okla. Cr. 277, 71 P. 2d 313; Ex parte Dunn, 33 Okla. Cr. 190, 242 P. 574; Ex parte Grant, 32 Okla. Cr. 217, 240 P. 759; Ex parte Hollingshead, 24 Okla. Cr. 131, 216 P. 486. Moreover, the writ of habeas corpus cannot be used to correct irregularities of procedure. Ex parte Cannes, supra. See, also, Ex parte Darr, supra; Ex parte Stover, 14 Okla. Cr. 120, 167 P. 1000; Ex parte Vanderburg, 73 Okla. Cr. 21, 117 P. 2d 550; Ex parte Tollison, supra, wherein this court said:

“The Criminal Court of Appeals on habeas corpus wil] not look beyond the judgment and sentence of any court of competent jurisdiction as to mere irregularities of procedure or errors of law on questions over which the court has jurisdiction.”

Moreover, it has'been repeatedly held by this court that habeas corpus may not be substituted for appeal. Ex parte Broyles, 84 Okla. Cr. 47, 178 P. 2d 652; Ex parte Darr, supra; Ex parte Mayfield, 84 Okla. Cr. 158, 179 P. 2d 934; Ex parte Walker, supra; Ex parte Robinson, 56 Okla. Cr. 404, 41 P. 2d 127; Ex parte Thomas, 56 Okla. Cr. 258, 37 P. 2d 829; Ex parte Barnette, 29 Okla. Cr. 80, 232 P. 456; Ex parte Talley, 4 Okla. Cr. 398, 112 P. 36, 31 L. R. A., N. S., 805; In re Sullivan, 82 Okla. Cr. 364, 170 P. 2d 260; Ex parte Miller, 82 Okla. Cr. 315, 169 P. 2d 574; and numerous other decisions to that effect.

The petitioner herein relies on the case of Curtis v. State, 86 Okla. Cr. 332, 193 P. 2d 309. That case is not applicable herein since the same was not a habeas corpus matter, but came here on appeal. It attacked the instructions of the court, a proper matter for consideration on appeal but not in habeas corpus. Therein we had before us the record on appeal setting forth what we held were erroneous instructions resulting in an erroneous judgment and sentence. Here we have no such record before us. In the absence of the record of the trial, we cannot presume the court erroneously instructed the jury in the trial of the Drake case. That must follow even though Curtis and Drake were codefendants, since a severance was asked, granted, and the cases tried separately. Moreover, as we liave heretofore observed, the question presented in the Curtis case on appeal cannot be raised by habeas corpus. Had .this petitioner elected to appeal his case and had he done so within the time allowed for perfecting the same, he might have disclosed errors warranting a reversal, but such cannot be presumed; especially upon the basis of what happened in the separate trial of another defendant. To grant the relief herein prayed for on the basis of what occurred in the Mike Curtis case would be to presume that the records are identical. This we cannot do. The petitioner also relies on Ex parte Muse, 56 Okla. Cr. 232, 37 P. 2d 317, and Ex parte Harris, 8 Okla. Cr. 397, 128 P. 156, habeas corpus cases, wherein lack of jurisdiction appeared on the face of the judgment record. Here we are confronted with no such situation. To sustain this petition resort must be had to the record in Curtis v. State, supra. The law will not support such procedure. Moreover, in habeas corpus we can only inquire into the jurisdiction of the court as reflected by the judgment and sentence. Ex parte Walker, supra., wherein it was said 180 P. 2d 671:

“This court, on habeas corpus, will not look beyond the judgment and sentence of any court of competent jurisdiction as to mere irregularities of procedure.” Ex parte Tollison, supra; Ex parte Dunn, supra; Ex parte Grant, supra; Ex parte Hollingshead, supra.

In this proceeding looking at the judgment and sentence herein complained of, it appears that the court had jurisdiction of the person, the subject matter, and to pronounce the judgment and sentence imposed and that the same is not void. It further appearing that the petitioner herein seeks to obtain relief against alleged errors of law occurring during the trial which cannot be reached by habeas corpus, the writ must therefore be denied. It is so ordered.

BAREFOOT, P. J., and JONES, J., concur.


author: JONES, J.

text:
    CHARLES W. GIBSON v. STATE.
    No. A-11028.
    Sept. 1, 1948.
    (197 P. 2d 310.)

      W. Hendrix Wolf and Brown Moore, both of Still-water, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The petitioner, Charles W. Gibson, was charged by criminal complaint filed in the county court of Logan county on April 9, 1947, with having unlawfully committed an act of incest with his daughter, Iva Mae Gibson, of the age of thirteen years, said act being alleged to have been committed on April 8, 1947. The preliminary examination was waived and the defendant was ordered held to await the action of the district court.

On April 11, 1947, an information was filed in the district court of Logan county, charging the defendant with said crime of incest. Thereafter on April 11, 1947, the record of the court clerk discloses the following procedure :

“State appears by its County Attorney, Charles W. Allen, Jr. Defendant appears in person and arraigned in open court. Information read. Defendant is informed of constitutional rights and requests appointment of attorney. Court orders Charles A. Moser as attorney for Defendant. Defendant again committed to care of Sheriff. Bond set at $5000.00.”

Thereafter on the same date the minutes of the court clerk reveal the following proceedings:

“Defendant reappears in open Court and thereupon enters a plea of guilty. It is the Judgment and Sentence of the Court that he be imprisoned in the State Peniten tiary at McAlester for a period of 5 years from the date of delivery to the Warden.
“Defendant notified of right of appeal.”

The petitioner was committed to the State Penitentiary in conformity to the judgment and sentence pronounced against him to' serve five years in said institution and he is now there incarcerated On November 20, 1947, a motion for new trial on the ground of newly discovered evidence was filed by counsel for the defendant; the alleged newly discovered evidence being-set forth in the motion and substantiated by written statements attached to the motion. These written statements were from three doctors who certified that they had made an examination of the said Iva Mae Gibson, and that in their opinion she had never had sexual intercourse with an adult male. Also attached to the motion was a letter written from Iva Mae Gibson to the defendant dated August 15, 1947, in which she stated that the defendant was not guilty. This motion for new trial was heard and overruled on December 12, 1947.

Thereafter, on December 31, 1947, the defendant through his counsel filed a pleading in said cause in the district court of Logan county, which was styled “Motion and Petition to Withdraw Plea and for Writ of Coram Nobis.” This motion substantially alleged that at the time the judgment and sentence was pronounced, the court committed an error of fact for the reason that defendant entered a plea of guilty to said charge, when in truth and in fact no such charge had been committed, and the defendant at the time was in such a state of mind and of reasoning facilities that rendered him legally insane, and incapable of understanding the nature and consequences of the charge pending against him. The motion further alleged the same evidentiary facts which were alleged in the motion for new trial concerning the examination of Iva Mae Gibson by three doctors and that in their opinion from their examination, she had never had an act of sexual intercourse.

The county attorney filed an answer to said motion specifically denying the allegations and demanding strict proof. In the answer it was further alleged that the charge of incest was filed against defendant after an investigation by Mrs. Elizabeth Patterson, an investigator from the State Department of Charities and Corrections, and by the office of the county attorney. That during this investigation, the said Iva Mae Gibson repeatedly said that defendant had had illegal sexual intercourse with her at various times, and the defendant likewise admitted to the city police of Guthrie and to Mrs. Patterson, the sheriff, and county attorney of Logan county, that he had committed the crime of incest with his daughter and further signed a written statement of having committed said unlawful act. The answer sets forth the arrest, arraignment, and plea of guilty of the accused and the sentence of the accused upon his plea of guilty to a term of five years in the State Penitentiary. The county attorney further alleged that the motion did not state facts sufficient to constitute grounds for the relief prayed and that the district court of Logan county was without jurisdiction to grant the relief prayed for in said motion.

Thereafter, on the 23rd day of January, 1948, the motion was duly presented to the district court of Logan county, evidence was presented for and against said motion after which the motion was denied. There was no evidence of insanity presented on behalf of defendant, although there was some proof that he was physically ill at the time of the alleged crime. Most of the proof of petitioner was devoted to the proposition that the crime of incest had never been committed.

This purported appeal was filed in the Criminal Court of Appeals on March 12, 1948, from the action of the district court in denying said motion to withdraw plea of guilty and for a writ of coram nobis.

We are confronted with the question as to whether an appeal will lie to this court from the action of the court in denying the motion filed by the defendant.

By statute it is provided that an appeal may be taken by the defendant as a matter of right from any judgment against him, and upon the appeal, any decision of the court, or intermediate order made in the progress of the case, may be reviewed. Tit. 22 O. S. 1941 § 1051.

It is further provided that in felony cases, the appeal must be taken within six months after the judgment is rendered. Tit. 22 O. S. 1941 § 1054.

In the recent case of Wyatt v. State, 81 Okla. Cr. 248, 162 P. 2d 884, the defendant filed a motion for a new trial after the judgment and sentence had been pronounced ¿gainst him. The attempted appeal was lodged within six months after the overruling of the motion for new trial, but was not filed six months after the judgment and sentence was pronounced against the accused.

In dismissing the appeal, this court held:

“An appeal to this court may be taken by a defendant as a matter of constitutional right from any judgment of conviction rendered against him in a court of record; but the statutes regulate the time and manner of exercising that right, and the appeal must be taken in the manner prescribed.
“An appeal in a felony case must be taken within six months after the judgment is rendered, and when it appears from the record that such appeal was not perfected within six months from the rendition of the judgment, the same will be dismissed for want of jurisdiction.
“The filing of a motion for new trial after judgment is rendered does not extend the time in which an appeal may be lodged in this court, as the appeal must be filed within six months after the judgment is rendered and not six months from the date of the order denying a motion for new trial.”

In the early case of Houser v. State, 26 Okla. Cr. 265, 223 P. 409, it was held:

“Appeals to the Criminal Court of Appeals are from the final judgment against the defendant.”

In Merrill v. State, 11 Okla. Cr. 278, 145 P. 1109, it was held by this court that there is no statute authorizing an appeal from an order denying a motion for a new trial except as incidental to an appeal from a judgment of conviction. The same rule is applicable to any other order made during the progress of a criminal cause, such as the order here attempted to be appealed from.

The motion of the defendant to withdraw his plea of guilty made after the judgment and sentence was pronounced and the order overruling the same, was an order made in the progress of the case and such as could only be reviewed upon an appeal from the final judgment which was rendered against the accused.

The record discloses that the judgment and sentence was pronounced against the accused on April 11, 1947. This purported appeal was filed in the Criminal Court of Appeals on March 12, 1948, which was eleven months after the judgment and sentence was pronounced.

As was said in Wyatt v. State, supra:

“If the appeal could be filed one day late, it could be filed any number of days late. So that it is apparent, if this court would assume jurisdiction of an appeal filed one day late, it should also assume jurisdiction of an appeal filed one year too late. The Legislature has fixed six months as a reasonable time within which to file an appeal in felony eases, and this court is bound by the time so fixed.”

The fact that the defendant applied for writ of error coram nobis in connection with his motion to withdraw the plea, does not extend the time within which the appeal may be lodged in this court. The writ of coram nobis, or writ of error coram nobis, as it is sometimes termed, was a common law writ which developed in the early stages of common law procedure because of the absence at that time of the right to move for a new trial and the right of appeal from the judgment. State ex rel. v. Sullivan, 86 Okla. Cr. 364, 193 P. 2d 594.

The right of the defendant to file a motion in arrest of judgment, motion for new trial because of newly discovered evidence, and other statutory remedies have largely if not entirely superseded the office and functions of the old common law writ. The writ of coram nobis has never been issued by the Criminal Court of Appeals of Oklahoma; although, by dicta it has been said in some cases that in appropriate circumstances such a writ may properly issue in this state. State ex rel. Attorney General v. Hurst, 59 Okla. Cr. 220, 57 P. 2d 666; State ex rel. v. Swindall, 33 Okla. Cr. 210, 241 P. 456; State ex rel. v. Sullivan, supra; Ex parte Goff, 87 Okla. Cr. 33, 194 P. 2d 206.

The record made by the defendant at the hearing on his motion to withdraw his plea of guilty was such as should be called to the attention of the Pardon and Parole Board for such action as might seem proper to them to take in view of all the circumstances of the case.

The appeal herein not having been filed in the Criminal Court of Appeals within the time fixed by statute, this court is without jurisdiction to determine the question presented and the appeal is accordingly dismissed.

BAREFOOT, P. J., and BBETT, J., cuncur.


text:
    LOUIS ROBINSON v. STATE.
    No. A-10802.
    Sept. 8, 1948.
    Rehearing Denied Nov. 17, 1948.
    (197 P. 2d 517.)

      H. M. Shirley, of Coalgate, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., and W. H. Parker, County Atty., of Atoka, for defendant in error.
   BAREFOOT, P. J.

Defendant, Louis Robinson, was charged in the district court of Atoka, county with the crime of rape in the first degree; was tried, convicted and sentenced to serve a term of 25 years in the State Penitentiary, and has appealed.

Counsel representing defendant in this appeal did not appear in the trial of the case. Defendant’s brief does not present any question of law, but contends that the facts are not sufficient to sustain the judgment and sentence; and that counsel appointed were not given proper time to prepare the case for trial; and that the judgment and sentence is excessive.

These questions require a brief statement of the facts, as revealed by the record.

Counsel for defendant state that this case was tried on May 14, 1946, just before the primary election, and that politics were at a fever heat at that time. It is further stated: “the judge had opposition, the county attorney was opposed, and there were three candidates in the sheriff’s race, one of them being a brother-in-law of the defendant.”

We have carefully examined the record and we find nothing therein to indicate that any political issue was in any way involved, and as far as this court is concerned the case will be considered only in the light of the law and the evidence.

It appears that the prosecuting witness, Helen Davis, age sixteen years, had been employed in New Orleans, La., at Woolworth’s department store for a period of about two years. While working there she met Catherine Lane, a young lady whose home was in Atoka, and who also worked at the department store. These two young ladies decided to come to Oklahoma, to visit at the home of Miss Lane for a short time, with her family, and then go to Tulsa to secure work. They visited in Atoka about a week at the home of Miss Lane and her relatives. During that time they went to some dances, and drank beer at various places. A night or two before the alleged crime was committed, Helen Davis checked in at a hotel in Atoka, and testified that she had planned to leave the next day for Tulsa.

On Saturday night, March 23, 1946, both of the girls took a taxi to Coalgate, Okla., to attend a dance. From Coalgate they went to Lehigh, where they consumed two or three bottles of beer. They were alone, unescorted. They returned to Atoka in a taxicab about 1:30 Sunday morning, March 24, 1946. They first went to the cafe at the bus station, and decided not to spend the night at the hotel, but to get a cab driver whom they knew to take them to the home of one of Miss Lane’s relatives, about a mile and a half east of Atoka. Miss Lane remained at the bus station, and the prosecutrix got in a taxi and went to the home of Raymond Wilson, a taxi driver, to get him to drive them to the home of the relative in the country. When prosecutrix returned to the bus station with Raymond Wilson, the defendant appeared in his truck, and had a talk with Raymond Wilson. Raymond Wilson went into the cafe, presumably to get Catherine Lane. According to the testimony of the prosecutrix, defendant immediately forced her into his truck, threatening to kill her if she made an outcry, and then at a fast rate of speed, drove south of town a mile or so, and then turned off on a country road, where he stopped his truck. She testified that defendant was driving at such a fast rate of speed she was unable to get out of the truck, but that she tried to do so. When defendant stopped she got out of the truck, but the defendant also got out and forced her back in the truck and forcibly and against hei' will raped and ravished her.

The defendant then drove back to town and stopped his truck at the filling station next to the bus station, and let the prosecutrix out. She entered the bus station, and according to the evidence of Catherine Lane and Roy Kyle, the night policeman at Atoka who was in the bus station at the time, she was in a very nervous and disturbed condition and crying a great deal. The incident was reported to Officer Kyle and another officer, who got in communication with the sheriff of Atoka county. The prosecutrix was immediately taken to the hospital, where she spent the night. The next morning she was examined by Dr. Cotton, who testified that she had liad intercourse recently; that her private parts were badly torn and bruised, and that her hymen was broken. He also testified to a bruised place on her leg. The panties which she was wearing were delivered to the sheriff on Sunday, March 24th, and were introduced in evidence. They were torn and bloody.

The evidence on the part of the state also revealed that defendant had come into a cafe in Atoka about two days prior to this time, where prosecutrix and Catherine Lane and her sister Donajean Lane Avere sitting at the counter, and the defendant remarked to one of the Lane girls that the prosecutrix had pretty eyes and hair. To this remark she had replied that he was silly.

Catherine Lane testified and corroborated the testimony of prosecutrix in all details leading up to the commission of the crime, and of her return to the cafe, and of her being in a nervous condition and crying, and of her reporting what had happened to night policeman Boy Kyle.

Roy Kyle testified to prosecutrix entering the bus station, and that “she was crying and upset.” He testified that she made a report to him, and he talked with Sheriff McBride over the phone, and took prosecutrix to the hospital; that the nurse talked to Dr. Cotton and was told to put prosecutrix to bed and he would be right down.

Sheriff L. O. McBride testified that he received a call from night policeman Roy Kyle about 2 a. m., and that he did not consider it any use to go down until the next morning. He then called the hospital. Prose-cutrix left the hospital about 12 o’clock noon on Sunday, the 24th, and came to his office. She was accompanied by Catherine Lane. The court sustained an objection to any conversation between the sheriff and the prosecutrix. The sheriff was permitted to testify that prosecutrix was requested to remove her “panties” and leave them at his office to be used as evidence. On the afternoon of March 24th, (Sunday) he, in company with prosecutrix Helen Davis and Catherine Lane, went out on the Wapanucka road for the purpose of locating the place where prosecutrix had reported she had been assaulted. After turning off the main highway, he found a place “Avhere there had been a car pulled out to the side of the road and stopped and pulled back in the road.” He then drove down the road approximately 100 yards where another car had pulled out on the Bermuda grass, and there found a condrum lying on the grass which he said had apparenty been recently used in intercourse. He returned to Atoka and in a few days in company with the county judge of Atoka, county took prosecutrix to Tecumseh, to the state training school for girls, where she remained until brought to Atoka to testify at the trial of the case. Her friend Catherine Lane was permitted to go to Tecumseh and remain there until the trial.

Defendant Louis Robinson testified that he had seen the prosecutrix with the Lane girls several days before the alleged crime at a cafe in Atoka, as testified to by the prosecutrix and the Lane girls. He was kidding with them, and told Donajean Lane that “your little girl-friend has got pretty brown eyes,” and she said, “You are silly.” And that was about all that was said at that time. That he saw prosecutrix again on the next night at the same place, with Catherine Lane, in Atoka, and they were drinking beer, but he did not talk with them.

On the morning of March 24th, Sunday, at about 1:30 o’clock, he was sitting with his wife in his truck, parked between the bus. and filling stations. He saw prosecutrix and Raymond Wilson get out of a taxi, and that they were “standing there by a post, talking.” He and his wife got out of the truck and went in the bus station and ate supper. His wife was talking to some girl and he “went out and talked to Raymond Wilson.” He testified:

“Q. What happened? A. He said something about going somewhere if he could get Catherine, and said, Would you like to' go,’ and I said ‘Yes’, and said ‘I will go/ and stood there and he said, ‘I am going to see if I can get a cab’ and I said, ‘I got a truck’ and I said, ‘Let’s get in the truck’ to Helen and she and I got in and said, ‘Reckon Raymond is not coming’ and we drove around to the other station and got Raymond and brought him out. Q. Where did you park? A. Right where they grease cars at the other station. Q. That would be in front? A. Yes, sir. Q. Then you got out and came around to the taxi station? A. Yes, sir. Q. Which is around on the south side of the Partin filling station? A. Yes, sir. Q. Then what happened? A. Well, he talked to her a little bit, and said, ‘I can’t, go on account of Catherine/ and said, ‘You all go ahead’ and I said, ‘What are you going to do, feed her?’ and he said ‘no’, and I backed out and 'took off. Q. Did she make any resistance? A. No, sir. Q. Did you drive very fast? A. No, I didn’t. Q. Which way did you go? A. Went out by the airport, north and west on the side of the road. Q. How long were you gone? A. about 45 minutes. Q. When you got out to the place you stopped, was there any scuffle or any disagreement between you and she? A. No, sir, there wasn’t. Q. Did you have intercourse with her? A. Yes, I did. Q. Did you use any rubber? A. Yes. Q. What did you do with the rubber? A. Throwed it away — over the fence. Q. Do you know whether she knew you used a rubber? A. No, I don’t. Q. About how long did it take you to go out there and back? A. I judge about 5 minutes to go and back — run out there and back. Q. How far did you go? A. About a mile and a quarter out there. Q. When you came back where did you park? A. Right where I started from — right by the filling station by the bus station. Q. What did she do? A. Got out and went in the bus station. Q. What did you do? A. I went to the other door and got my wife and went home. Q. Your wife still there? A. Yes, sir. Q. Did you tell your wife about the trip you made, or where you had been? A. No, sir. Q. Did you tell her where you were going when you started? A. No, sir. Q. She didn’t know where you were going? A. No, sir. Q. And you didn’t tell her? A. No, sir. Q. Do you know about Helen crying when she got out of the car? A. No, sir. Q. Was she crying? A. No, sir, wasn’t when she got out of my truck. Q. What did she say when she got out? A. She said, 'I will see you again.’ ”

Defendant denied that he raped prosecutrix by force.

Several witnesses were placed on the stand by the defendant who testified to having seen prosecutrix and Catherine Lane at several beer taverns in and around Atoka, during the week they were there, but no one testified to any misconduct on their part, other than drinking beer or talking to some boy. Both the prosecutrix and Catherine Lane positively denied being at some of the places where some of the witnesses testified they had seen them.

Some testimony was introduced by the defendant in an attempt to show that prosecutrix had attempted to secure money from defendant for the purpose of leaving town, and abandoning the prosecution. An attorney, who had formerly represented the defendant, testified that she had come to his office and asked to be paid a $1,000, and that he had jokingly told her his client was poor, and that he could not raise over $250, and that prosecutrix left his office. She testified that a certain party had asked her to go to the office of the attorney, and that she was offered $250, which she refused, saying “she did not want or need any money.” The wife of defendant also testified that prosecutrix offered to take money and leave, but prosecutrix testified that the wife offered her money to leave, and her testimony was corroborated by Catherine Lane.

This evidence could only be considered with reference to the credibility of the witness, and this was a question for the jury, under all the facts and circumstances of the case.

The facts with reference to the court refusing to grant a continuance in this case are: Defendant was arrested March 24, 1946. Complaint was filed before a justice of the peace, and defendant was bound over to the district court on the charge of rape at the preliminary hearing. He was represented by an attorney of his own choice. Information was filed in the district court of Atoka county on March 26, 1946. Defendant was arraigned on April 23, 1946, entered a plea of not guilty and his case was set for trial for May 7, 1946. On May 7th the case was continued until May 13th. On that date, defendant filed a motion for continuance, and it was overruled the same day. This motion was filed and presented by an attorney other than the one who represented him at the preliminary hearing. The grounds set up in the motion were:

“That he was represented by an attorney who he had employed at the preliminary, but that said attorney did not expect this case to be tried at this term of court and was busy preparing for a murder case which had been set for trial at this term; that when said attorney ■learned the state would insist on the trial of this case he informed this defendant and the court that it would be necessary for him to withdraw from this case on account of not having time to prepare for the trial; that on the 23rd day of April, 1946, this court permitted said attorney to withdraw from the defense of this case; that on the 2nd day of May, 1946, this court appointed Gilbert W. Daney and C. B. Memminger, attorneys at law, to defend this defendant at a trial set for Tuesday, May 7th, 1946; that neither of said attorneys were present in court when the said appointment was made, but were later notified; that neither of said attorneys were familiar with the facts involved and that defendant had never discussed the case with either of them; that said attorneys had previous appointments with other clients, some from out of the city; that between the date of appointment and the date set for trial there were only three days, to-wit: Friday, May 3rd, Saturday May 4th, and Monday May 6th; that on Monday May 6th this defendant was injured and laid up and not available for conference with his attorneys; that he was at a hospital at Sherman, Texas, on Thursday May 9th for an X-ray to determine the extent of his injury and did not again see his said attorneys until Friday, May 10th; that the Judge of this court talked over the telephone with the doctor first called to see this defendant and continued the hearing of this case until Monday, May 13th, 1946.
“Defendant further states that in order to properly prepare for trial herein he requires more time to confer with his said attorneys and to contact witnesses, some of whom do not live within Atoka County, and to make certain investigations relative to the prosecuting witness without the State of Oklahoma, she being a stranger here.”

This motion for continuance was sworn to by defendant, but no other affidavits or proof was offered, and, as above stated, the motion was overruled.

Under the often-repeated holding of this court that the granting of a motion for continuance is within the sound judicial discretion of the trial court and such action will not be set aside unless there is an abuse of such discretion, it cannot be said that this case should be reversed by reason of the overruling of the motion for continuance.

Tit. 12 O. S. 1941 § 667 provides:

“The court may, for good cause shown, continue an action at any stage of the proceedings upon terms as may be just; * * *.”

And section 668 provides:

“A motion for a continuance, on account of the absence of evidence, can be made only upon affidavit, showing the materiality of the evidence expected to be obtained, and that due diligence has been used to obtain it, and where the evidence may be; and if it is for an absent witness, the affidavit must show where the witness resides, if his residence is known to the party, and the probability of procuring his testimony within a rea.-sonable time, and what facts he believes the witness will prove, and that he believes them to be true. If thereupon, the adverse party will consent that on the trial the facts, alleged in the affidavit shall be read and treated as the deposition of the absent witness, or that the facts in relation to other evidence shall be taken as proved to the extent alleged in the affidavit, no continuance shall be granted on the ground of the absence of such evidence.”

See Lane v. State, 65 Okla. Cr. 192, 84 P. 2d 807; Hiatt v. State, 67 Okla. Cr. 872, 94 P. 2d 262; Abby v. State, 72 Okla. Cr. 208, 114 P. 2d 499, 115 P. 2d 266; Foster v. State, 79 Okla. Cr. 183, 152 P. 2d 929; Andrews v. State, 84 Okla. Cr. 104, 179 P. 2d 491; Fields v. State, 85 Okla. Cr. 439, 188 P. 2d 231.

It will be observed that many of the provisions of the statute were not complied with in the instant case. This defendant was arrested on March 24, 1946, made bond and was released. He was not tried until May 13, 1946, and the case had been continued on at least two different dates. The record reveals that defendant was represented by able counsel, and that he was financially able to employ counsel. There is nothing in the record to show that any witness who was acquainted with the facts failed to appear and testify in this case. After defendant was tried and convicted, and filed a motion for new trial, he gives the name of only one witness who he claims would have testified in his favor. The testimony which it is stated he would give is in direct conflict with the testimony of the defendant given at the trial of the case, and nothing appears to show that due diligence was used in attempting to secure the evidence of this witness, who had been subpoenaed by the state, and w;as present at the trial but not used., Counsel for defendant had the opportunity to consult this witness, and if they had deemed his evidence would have been beneficial to defendant, he could have been placed upon the witness stand.

The evidence of the prosecutrix and the defendant as to whether the act was by force or voluntary is, of course, contradictory, but the evidence of the prosecu-trix is corroborated in many respects. The often repeated rule of this court is that where there is competent' evidence in the record from which the jury could reasonably conclude that defendant was guilty as charged, this court will not interfere with the verdict even if there is a sharp conflict in the evidence, and different inferences may be drawn therefrom, since it is the exclusive province of the jury to.weigh the evidence and determine the facts. Lewis v. State, 59 Okla. Cr. 77, 56 P. 2d 425; Sadler v. State, 84 Okla. Cr. 97, 179 P. 2d 479; Jackson v. State, 84 Okla. Cr. 138, 179 P. 2d 924.

The circumstance of the finding of the condrum by the sheriff on the day following the commission of the crime at the place identified by the prosecutrix as that where the crime was committed, was a fact which could be argued to corroborate the testimony of the defendant that the act was voluntary. But this was a question of fact for the jury.

The only case cited by defendant to uphold his contention is Johnson v. State, 84 Okla. Cr. 368, 182 P. 2d 777. An examination of that case reveals that it is in no way applicable to the facts here presented.

The evidence revealed that the prosecutrix was sixteen years of age at the time the alleged crime was committed. Tit 21 O. S.-1941 § 1111 defines rape as follows:

“Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances: * * *
“2nd. Where the female is over the age of sixteen years and under the age of eighteen, and of previous chaste and virtuous character. * * *
“4th. Where she resists but her resistance is overcome by force and violence.
“5th. Where she is prevented from resistance by threats of immediate and great bodily harm, accompanied by apparent power of execution.”

Tit. 21, § 1114, defines rape in the first and second degrees, as follows:

“Rape committed by a male over eighteen years of age upon a female under the age of fourteen years, or incapable through lunacy or unsoundness of mind of giving legal consent; or accomplished with any female by means of force overcoming her resistance, or by means of threats of immediate and great bodily harm, accompanied by apparent power of execution, preventing such resistance, is rape in the first degree. In all other cases rape is of the second degree.”

Section 1115 prescribes the punishment for rape in the first degree:

“Rape in the first degree is punishable by death or imprisonment in the penitentiary, not less than fifteen years, in the discretion of the jury, or in case the jury fail or refuse to fix the punishment then the same shall be pronounced by the court.”

And section 1116 fixes tlie punishment for rape in the second degree:

“Rape in the second degree is punishable by imprisonment in the penitentiary not less than one year nor more than fifteen years.”

The court fully instructed the jury on the question of rape as defined by the statute, and the degrees of rape, and the punishment for rape in the first and second degrees, as provided by the statute. He also instructed them under subdivision 2 of section 1111, above quoted defining rape where it provides: “Where the female is over the age of sixteen years and under the age of eighteen, and of previous chaste and virtuous character”; and instructed the jury that if they found the defendant guilty under this section, it would be rape in the second degree, and the punishment would be as provided by section 1116 (above quoted) by imprisonment in the penitentiary not less than one year nor more than fifteen years. However, the jury by its verdict found the defendant guilty of rape in the first degree, and assessed the punishment at 25 years in the penitentiary.

We have carefully examined the facts as shown by the record, and the cases heretofore decided by this court as to whether the judgment and sentence of 25 years is excessive and justice requires a modification of the same.

There is nothing in the record to indicate or show that this defendant had ever before been convicted of any crime. He testified in his own behalf, and the state had an opportunity to cross-examine him as to whether he had been previously convicted. He is a married man, and has a family. It seems to be one of those cases where one permits his passion to overcome his better judgment. Repentance comes after the act is committed, and he sees the folly of his way. It is a bitter experience, but a punishment the law demands for one’s failure to obey the laws. The prosecutrix in this case was a young girl who came out into the world as the result of a broken home. The evidence does not reveal that she had stepped over the brink, but she was probably on the ragged edge. She was away from the influence of home and parents. She was staying up late at night, visiting beer parlors, dance halls, and having a “fine time,” according to her viewpoint, and the almost sure result of this course of conduct on her part, if continued, was bound to bring about serious and disastrous results. This court realizes that what we may say will probably not be heeded by the youth of today, but we dare not fail to do our duty in cautioning them to “stop, look and listen” before it is too late.

The minimum punishment for rape in the first degree is fifteen years in the State Penitentiary. This is a long term, but the Legislature of this state, in its wisdom and in an effort to protect the young womanhood of the state who make an effort to protect themselves, has so provided. If the jury believed that prosecutrix was sixteen years of age and under eighteen years, and there is no evidence to the contrary, and that she was of previous chaste and virtuous character and voluntarily consented to the act, the jury would have been bound to convict the defendant of rape in the second degree under his own testimony. However, the jury in defendant’s home county found that the rape was by force, and found defendant guilty of rape in the first degree.

We are of the opinion that under all the facts and circumstances of this case, justice demands that the judgment and sentence of the district court of Atoka county should' be modified from a term of 25 years in the State Penitentiary, to a term of 15 years in the State Penitentiary, the minimum punishment for rape in the first degree. As so modified, the judgment and sentence is affirmed.

JONES and BRETT, JJ., concur.