text:
    N. A. MORRIS v. STATE.
    No. A-5551.
    Opinion Filed June 19, 1926.
    (247 Pac. 418.)
    L. A. Wallace and D. E. Ashmore, for plaintiff in error.
    Geo. F- Short, Atty. Gen., and Randell S. Cobb, Asst. Atty Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was informed against for murder in the superior court of Okmulgee county, convicted of manslaughter in the first degree, and sentenced to the state penitentiary for a term of 15 years.

The record discloses a state of facts about as follows: The deceased, Floyd Williamson, had married a sister of the defendant about 3 years prior to the homicide. They had one child about 2 months old. During most of the time of the marriage, the deceased and wife had lived with the wife’s parents, as did also the defendant and other brothers. There was no evidence of any trouble between the deceased and his wife, although at the time of the trial she had remarried, and her testimony bears indications of a desire to assist her brother, the defendant.

About 3 weeks prior to the homicide, deceased had left the residence of his wife’s parents to find work elsewhere. At that time there was not the best of relations between him and the brothers of his wife, due to financial differences, and to the fact that deceased had received a letter signed “K. K. K.,” which he suspected had been sent him by his brothers-in-law. The deceased returned to Henryetta, the place of residence, on Friday, May 4th. That night he went to the residence of his wife’s parents, where she resided, and evidently sought to see his wife. He scratched on the screen of her window, and the defendant went out, and deceased and defendant shot at each other. The Monday following deceased met his wife at the railroad tracks, and they visited each other for an hour on the best of terms. He told her he was coming to see her that night, and she warned him not to do so. About 8 .or 9 o’clock that night he came to the back yard, met his wife, and they talked and visited for some time. The defendant at the same time was searching for the deceased, and had notified the police at Henryetta, who had answered his call, and were near the place when they heard the shot fired that killed dceased. When defendant came upon deceased and his wife in the back yard, deceased had drawn a bucket of water, and had just taken a drink, and defendant appeared, flashed a light upon him, and said, ‘'The law wants you.” Deceased immediately pulled his wife between himself and defendant, and made an effort to reach for a stick used in doing the family laundry which was lying on a box near, but did not get hold of it. The wife screamed, and defendant shot the deceased behind the right ear, from which he died almost instantly. One witness who came to the scene immediately after the shot testified that the defendant said: “He started to run and I shot him.”

The chief of police testified that he was near, and heard the shot, and went to the scene immediately, and defendant said to him: “Here he is.” Defendant then started- to leave, and the police officer followed, and asked how the killing occurred, and defendant then said:

“Told him to stop, that the law wanted him. He starts to leave. His sister had come between him and this fellow. Knocked a flash light out of his hand. He had reached for a stick. He knocked it down. He started to leave and he had shot this man.”

There was other evidence that the wife of deceased, sister of defendant, at the time said:

“You killed my husband. You killed him. Killed him, uncalled for,”

—andi

“Was not any trouble. Came to see me and the baby, and had started away and he shot him.”

The defendant testified that there . had been some trouble between him and deceased, and threats had been made by deceased which had come to his knowledge, that they had exchanged shots on the Friday night preceding the homicide, and described the homicide as follows:

“He had drawn up a bucket of water. He was drinking it, I suppose, just set his bucket down when I went up. I started around the house when I noticed something at the well — some one there at the well. Threw my spot light on him, and saw it was him/ I said: ‘The law wants you.’ He grabbed my sister, pulled her in between me and him. He was just setting the bucket down from getting a drink. I started around the house, was aiming to go get the officer, that was my intention. I noticed some one at the well. I said, ‘Floyd, the law wants you.’ He pulled my sister in between me and him, and kept sidling along toward this box about eight feet from the well, right due west. I kept my light on him, and my sister threwed her hand up over the light, and pushed it down, and' my brother said: ‘Put your light back on him, or he will kill you.’ He got around towards this box where this club here was laying and some rocks and some more stuff. Got around in this position, so this grape arbor — here is one side, here is the well right here; right here is where the box sets; the orchard runs straight on down here; the other fence over here. I am standing right by the well; he was still out here between me and the well. When he reached for the club, that throwed me right here. He was out over behind her. I still had my light on him. When he reached over there, I hit him, shot him, right there, by his ear. Drug this club down right. there, and dropped it. He whirled around and fell, with his feet here, his head here, his feet up this way, by the corner post of the well.”

It is assigned as error that the court unduly limited the right of cross-examination of the wife of deceased concerning the difficulty on the Friday night preceding, in violation of the rule of law announced in the case of Spear v. State, 7 Okla. Cr. 379, 123 P. 852, and Hopkins v. State, 9 Okla. Cr. 104, 130 P. 1101, Ann. Cas. 1915B, 736.

The general rule is that the cross-examination of a witness is not to be confined to the particular questions asked nor the precise subjects called to his attention, but the right of cross-examination should be liberally construed to allow the examination of a witness to extend to any matter not foreign to the subject-matter of the examination which reasonably tends to explain, contradict, or modify the testimony of a witness, or to test his accuracy, memory, oversight, character, or credibility. This witness was not asked on direct examination anything about what had occurred on the Friday night preceding- If she had any knowledge of any recent difficulty between the defendant and deceased, it was competent, but her testimony discloses that she did not see deceased at that time, and had no personal knowledge that he was there. Further than that, the evidence on this point was fully covered by the testimony of defendant and others; the matter was before the jury; and no prejudice could have resulted.

It is further argued that the court erred in refusing to permit the defendant to show by cross-examination of the wife of deceased that she had warned him to stay away from the premises. The witness was permitted to testify that deceased was warned, but an objection was sustained to her reason for so informing him. The record does not show, nor is any contention made, that deceased was not fully aware that his presence at the residence of his wife’s parents was resented by her brothers, including the defendant, and that he had been warned by his wife not to return there. Her reasons for warning him were not particularly important, and were properly excluded, for, though warned to stay away, his going there in a peaceable manner to meet his wife and child did not justify the defendant in killing him.

It is next argued that the court erred in permitting the state to impeach its witness Donovan as to some , conversation that took place at the premises immediately after the killing. Donovan lived near the premises, and went there at once after the shooting. At the preliminary he testified that he heard defendant make certain statements. At the trial he appeared to be an unwilling witness and testified he did not remember any statements made- Counsel for the state thereupon, to refresh his recollection, read to him a question and answer made by him at the preliminary, and asked if it was correct, and he answered, “Yes.” It is permissible to refresh the recollection of a witness by directing his attention to the statements previously made or to his former testimony, particularly where it appears that the witness is trying the evade the questions or is unfriendly toward the party calling him as a witness. 40 Cyc. 2450; Gardner v. State, 5 Okla. Cr. 531, 115 P. 607; People v. Izlar, 8 Cal. App. 600, 97 P. 685.

The purpose of cross-examination is to develop the truth, and there should be no undue technicality to prevent the eliciting from a witness the real facts whether his reticence on the stand is due to reluctance or forgetfulness. The contention on this point is not tenable.

Complaint is next made that the court erred in refusing to permit the mother of defendant to testify that deceased had made threats against defendant and hi’s brother. Naturally, this witness was an extreme partisan, and, under leading questions propounded by counsel for defendant, testified to conclusions, and stated that threats had been made against her boy by the deceased. The objection was sustained only to the leading character of the questions, and not to the admissibility of the threats and the fact of their line of testimony to be fully developed. Under this assignment it is also urged that the court commented upon the weight of the testimony in regard to threats. The court in his remarks verged on a comment on the weight of evidence, but the particular remark complained of appears to be a reference to uncommunicated threats, and more particularly had reference to the brothers of the defendant. This error is not of sufficient importance to require a reversal-

Complaint is next directed to the court’s instruction No. 10, which is as follows:

“The jury are instructed that the defendant in this case is presumed to be innocent of the crime charged in the information, and this is a presumption of law that remains with him and is thrown around him for his protection up to the moment when the killing is proved or admitted. When the killing is proved or admitted by the defendant, and the plea of self-defense is interposed, as in this case, it then devolves upon the defendant to show any circumstances of mitigation to excuse or justify it by some proof strong enough to create in your minds a reasonable doubt of his guilt of the offense charged, unless the proof on the part of the state shows that the defendant was justified in committing the act.”

It is contended that this instruction deprived the defendant of the presumption of innocence, and shifted to him the burden to prove that he acted in his self-defense, and that the facts proven show circumstances of mitigation or justification. This instruction is based on section 2719, Comp. Stat. 1921, which is as follows:

“Upon a trial for murder, the commission of the homicide by the defendant being proven, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.”

This instruction was approved in the case of Culpepper v. State, 4 Okla. Cr. 103, 111 P. 679, 31 L. R. A. (N. S.) 1166, 140 Am. St. Rep. 668. Under the law as stated in section 2719, supra, this instruction was proper, and it was for the jury to determine whether or not the circumstances were sufficient to show mitigation or justification. It is not for the court to assume as a matter of law. See, also, Jones v. State, 20 Okla. Cr. 233, 202 P. 187; Stribling v. State, 18 Okla. Cr. 48, 192 P. 590.

Lastly, it is argued that the evidence does not sustain the verdict. From what has been said touching the facts, it is evident that testimony adduced by the state showed that the deceased went unarmed to the place where his wife and child resided for the purpose of seeing them, and, when accosted by defendant, attempted to shield himself by pulling his wife between them, and that, at least, he was unnecessarily killed by defendant without any reason for believing at the time on the part of the defendant that he was about to receive serious bodily injury at the hands of the deceased. The evidence for the state clearly established a case of manslaughter in the first degree.

The case is aifirmed.

BESSEY, P. J., and DOYLE, J., concur.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    PAUL EVINGER v. STATE.
    No. A-6062.
    Opinion Filed June 25, 1926.
    (247 Pac. 416.)
    Matson & Mathers and Sitton & Lewis, for plaintiff in error.

      George F- Short, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Paul Evinger, was charged jointly with Jack Hewman, Henry Cornett, and Walter O’Quinn with the robbery by firearms of the First National Bank of Gracemont, alleged to have been committed February 11, 1924, and upon his trial plaintiff in error was convicted and his punishment assessed at imprisonment in the state penitentiary for the term of five years. On October 3, 1925, the court pronounced judgment and sentence in accordance with the verdict of the jury, and fixed the amount of the appeal bond at $5,000, which plaintiff in error was unable to make within the time fixed by the court, and was taken to the state penitentiary.

On February 15, 1926, an appeal from the judgment was duly lodged in this court and on said date this court on the application of counsel for plaintiff in error fixed his appeal bond at $5,000 to be conditioned as by law required and to be approved by the court clerk of Caddo county. Thereafter an appeal bond was duly presented to and approved by said court .clerk, and when the same was presented to the warden of the state penitentiary, said plaintiff in error was duly released on said bond, and is and has been at liberty by virtue of the

On June 21st, the Attorney General filed a motion to dismiss the appeal for the following reasons:

“That said bond was conditioned as provided by section 2812, C. O. S. 1921, one of which conditions is that the appellant ‘will not depart without leave of the court,’ meaning that said Paul Evinger will not leave the state of Oklahoma without permission of this court; that said condition in said bond has been breached in this, to wit, that on or about June 10, 1926, while said appeal was pending and said bond in full force and effect, said Paul Evinger, in violation of the terms of said bond, voluntarily left the state of Oklahoma without leave of this court or of the district court of Caddo county, Okla., going into the state of Texas, where on June 12, 1925, under the alias George Barker, he was arrested by the sheriff’s department of the county in which Waco is located, charged with larceny of, or unlawful possession of, a Ford coupe believed to have been stolen in the state of Oklahoma.”

In support of said motion is the following affidavit:

“Lee Pollock of lawful age and being first duly sworn, deposes and says as follows, to wit: That I am an investigator, working out of the Oklahoma state bureau of criminal identification and investigation, and that I know Paul Evinger, who was convicted and sentenced on October 3, 1926, in the district court of Caddo county, Anadarko, Okla., for the crime of assisting in conjoint bank roblaery, with firearms, of the First National Bank of Gracemont, Caddo county, Okla., that on the 19th day of June, 1926, I saw and conversed with the said Paul Evinger, in the county jail of McClennan county, Waco, Tex.; and that he frankly admitted to me that he was the said Paul Evinger, and that he had been arrested on June 11, 1926, in the city of Waco, Tex., by the sheriff’s office; and that he was then being held for investigation by the federal authorities on a charge of the unlawful transportation of a stolen automobile across the state line of Oklahoma to the state of Texas.”

The uniform holding of this court is that, where a defendant has been convicted and sentenced, and perfects an appeal, this court will not consider his appeal, unless the defendant is where he can be made to respond to any judgment or order which may be rendered and entered in the case, and that he is not entitled to give a supersedeas bond and leave the jurisdiction without proper order to do so. Belcher v. State, 96 Okla. Cr. 50, 130 P. 515; Ravenscraft v. State, 12 Okla. Cr. 283, 155 P. 198; Morgan v. State, 14 Okla. Cr. 466, 172 P. 974; Daley v. State, 23 Okla. Cr. 355, 214 P. 941; Burden v. State, 24 Okla. Cr. 60, 215 P. 1076; Simpson v. State, 29 Okla. Cr. 58, 232 P. 455; Kincaid v. State, 30 Okla. Cr. 290, 237 P. 131.

Under the statute (Comp. Stats. 1921, § 2812), one of the conditions of the appeal bond is that appellant will not depart without leave of the court, and, where it is shown that appellant, after perfecting his appeal, without permission or proper order of the court first obtained, left the jurisdiction of the court, thus voluntarily violating one of the conditions of his appeal bond, he thereby waives the right that was given him to have the judgment of conviction superseded, and it then becomes discretionary for this court to proceed to a determination of the case on its merits, or to dismiss such appeal for that reason.

In Bryce v. State, 14 Okla. Cr. 456, 172 P. 976, Judge Matson, speaking for the court, says:

“If persons who are convicted of crime within this state leave the jurisdiction of this court after taking an appeal without its permission or order, even for a short period of time, they may, with equal right and propriety, leave the court’s jurisdiction during the entire pendency of the appeal, and the court, under such circumstances, would be practically helpless to enforce its judgment against them. Persons convicted of crime in courts of record within this state have a right to appeal to this court, but such appeals must be taken in the manner and under the conditions provided by law. The right to supersede a judgment of conviction by the giving of an appeal bond cannot be considered by appellants as a license to roam at large pending such appeal, continually violating the criminal-statutes of this state.”

And see Holden v. State, 14 Okla. Cr. 463, 172 P. 977.

We are of the opinion that, under the rule stated, the plaintiff in error has waived his right to have the appeal in this case considered and determined.

The appeal is therefore dismissed.

BESSEY, P. J., and EDWARDS, J., concur.


author: EDWARDS, J.

text:
    ED HAMILTON v. STATE.
    No. A-5527.
    Opinion Filed June 30, 1926.
    (247 Pac. 417.)
    Thomas Norman, for plaintiff in error.
    Geo. F. Short, Atty. Gen-, for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Carter county on a charge of selling whisky and sentenced to pay a fine of $50 and serve a term of 80 days in the county jail.

The contention is made that the evidence is insufficient to sustain the verdict. Two witnesses were used by the state. They were deputies of the sheriff’s office.and testified they came to the place and were concealed about 150 yards from the house, when a car containing three persons drove up and defendant came to the car with something in his hands, and that he and Jimmie Gray, one of the parties in the car, went to the rear of the car,, and as the officers approached Gray ran some 40 or 50 yards and threw two jars of whisky against a tree and broke them.

Defendant testified that he had returned from the town of Wilson to his home when the car drove up and the parties in it asked for some water, and that he drew a pail of water, carried it to the car, and the parties drank it and put the remainder in the radiator, and that Jimmie Gray then told him he had some whisky in the back of the car which he had just bought from one Ed Cummings, and asked defendant if he wanted a drink and he assented, and they had taken out and started to open the jars when the officers came up; that Gray then ran and broke the jars. He was fully corroborated by the testimony of his wife, who testified she was near. There was also evidence that defendant had never been arrested before. The testimony of neither of the witnesses for the state is positive that defendant delivered the containers' of whisky to the parties in the car. The explanation of defendant is reasonable, and we cannot say that the circumstances exclude every reasonable explanation other than the guilt of defendant.

The case is reversed and remanded.

BESSEY, P. J., and DOYLE, J., concur.


text:
    WELCH et al. v. STATE.
    No. A-5543.
    Opinion Filed June 30, 1926.
    (247 Pac. 426.)
    G. Arthur Holloway and Wm. C. Hall, for plaintiffs in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Hughes county on a charge of having possession of intoxicating liquor with intent to violate the prohibitory liquor law, were sentencel to pay a fine of $300 and to be confined in the county jail for a period of four months.

The evidence is that two officers went to the place of residence of the defendant with a search warrant and found about a gallon of corn whisky. The defendant Combs admitted having possession of the whisky and that he was drinking. He was asked by his counsel: “Q. Had you sold any of that whisky?” and answered: “I had not had it very long.”

The defendant Welch testified that he was rooming at the defendant Combs’ house, and that the whisky belonged to Combs, who had bottled it, and that he had drunk some of it.

Under the prima facie evidence rule, section 6999, Comp. Stat. 1921, as amended by chapter 123, Session Laws, Sp. Sess. 1924, the evidence is sufficient to sustain the verdict.

The contention is made that the court erred in admitting evidence of the reputation of the place of residence where the liquor was found. One witness was asked as to the reputation of the place, and answered that it was bad. If it be admitted that this is error, it is not a sufficient ground for reversal.

It is next argued that the search was illegal as made without a search warrant, and it is vigorously contended that there is no evidence that the officers who made the search had a search warrant. Both of the officers who testified for the state said that they had a search warrant issued by the justice of the peace, T. T. Rive, and that the same was served by reading.

The defendant Combs testified as follows:

“Q. When they came in there what did they do? A. They'said, ‘Where is that whisky?’
“Q. Did Mr. Templeman or Mr. Reed read to you a search warrant? A. They did not and never have.
“Q. Did they deliver any to you? A. Yes, sir.”

From this it appears that a copy of the search warrant was served either by reading or by delivering defendant a copy. If, as contended, the search warrant was illegal, some evidence to show it was illegal should have been introduced. We do not presume that it was error; it must be made to affirmatively appear. No error requiring a reversal is apparent.

The case is affimed.

BESSEY, P. J„ and DOYLE, J., concur.


author: BESSEY, P. J.

text:
    AMOS HAYES v. STATE.
    No. A-5713.
    Opinion Filed June 5, 1926.
    Rehearing Denied June 30, 1926.

      (247 Pac. 111.)

      Arthur Fitzpatrick, for plaintiff in error.
    The Attorney General and Smith €. Matson, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

The plaintiff in error, Amos Hayes, defendant in the trial court, was convicted of murder, with the penalty fixed at imprisonment for life.

This conviction rests largely upon the identification of the defendant by Wilbur Ward, a boy 16 years of age, who was one of a party of five in an automobile, traveling west from Bartlesville at night. As they approached an intersecting road leading to the home of one of the party, they found this road blocked by a Ford coupe. They stopped their car within a few feet of the coupe, and a man standing there said, “Do you want through, boys?” Some one replied, “Yes,” whereupon the man at the coupe said, “Well, we broke down.” Wilbur Ward and Presley Parks got out of the car in which they were riding and said, “Maybe we can help you.” As Ward and Parks passed around the rear of the coupe, they saw two other men sitting on the running board, with pistols in their hands. Both men jumped up and with drawn pistols commanded Ward and Presley Parks 'to “get them up.1” The two wjere inarched around to the other car, where a like com-mánd was made to the three men remaining there. Charles Parks, an elderly man who was in the rear seat, did not heed the command, but started to get out of the car backwards when, according to Ward’s testimony, he was shot by the defendant and instantly killed. At this point Presley Parks started to back away and one of the bandits shot and killed him. Mr. Pappin, the driver of-the car, got down as far as he could in the front part of the car, opened a door, and crawled out and under the car. Owing to the fact that there was a dash light in the car and that the night was dark, Pappin had no opportunity to observe the physical features of any of the bandits. The other survivor sank down in the front seat of the car and for the same reasons had no opportunity to make observations such as would enable him to identify any of the bandits. The identification of this defendant rests, therefore, almost entirely upon the testimony of Ward, who was positive in his identification.

The defendant’s defense was an alibi. The weight of the evidence and the credibility of the witness was for the jury, and under circumstances such as these their findings of fact will not be disturbed on appeal.

The defendant sought to impeach the verdict by the affidavit and oral testimony of a juror to the effect that another juror knew two of the witnesses who testified in support of defendant’s alibi, and that this juror stated, during the deliberations of the jury, that these witnesses were not entitled to credence. If any such statement was made or considered, the verdict could not be impeached in this manner. Keith v. State, 7 Okla. Cr. 156, 123 P. 172; Craddock v. State, 13 Okla. Cr. 724, 167 P. 331; Brantley v. State, 15 Okla. Cr. 6, 175 P. 51.

In the Keith Case a quotation is found from an opinion written by Chief Justice Mansfield:

“As was well said by Chief Justice Mansfield, if a verdict can be impeached by the affidavit or testimony of a juror, then in any criminal case tried, * * * no matter how conclusive the testimony and how regular the trial may have been in other respects, it will be in the power of one juror to secure a reversal of a conviction, and at the same time do it in such a manner as to conceal the purpose for which it was done, and thereby exempt himself from punishment. * * * If this can be done, it places in the hands of a defendant the power to set aside any verdict that might be rendered against him, provided only he can find a juror who will be willing to carry out the program.”

The defendant admitted that he had previously been convicted of attempted mail robbery. The jury were better able than we to determine which of the witnesses were worthy of belief.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    W. N. WHITFORD v. STATE.
    No. A-5481.
    Opinion Filed June 30, 1926.
    (247 Pac. 424.)

      Matson & Mathers, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charged that on the 9th day of August, 1923, the defendant, W. N. Whitford, did unlawfully transport “one-half gallon of corn whisky upon the streets of Ardmore, to wit, on West Main street.” The trial resulted in his conviction as charged, and his punishment fixed at a fine of $400 and imprisonment for four months in the county jail. To reverse the judgment rendered on the verdict he appeals. Numerous errors are assigned and argued.

That evidence on the part of the state is to the effect that on the 9th day of August, 1923, Tom Kiersey and Carl Holden, two police officers, were out on West Broadway, in a Ford car, to serve some legal papers on Charles Byers; while Kiersey was in the Byers home to serve the papers, Holden remained outside, and the defendant drove by in a Chevrolet roadster.

It appears that Kiersey and Holden then started back east towards the business part- of- town, but that in going back they drove north to Main street and then turned back east. Broadway and Main streets, each running in a general east and west direction, cross each other, in the west part of Ardmore, and at this intersection the Texas Oil Company had a filling station. The defendant was leaving this filling station when the officers appeared. Kiersey testified that they yelled for the defendant to halt; Holden testified the first time they yelled for the defendant to halt was after he had driven several blocks west of the filling station.

The undisputed evidence is to the effect that they took in after the defendant and chased him west along Broadway; that before defendant turned off Broadway, according to a disinterested witness, they had fired two shots after the defendant; at that time neither of the officers had seen any whisky in the possession of the defendant; they were acting on suspicion. There is no testimony to the effect that they had previous to that time seen any whisky in the defendant’s possession or in his car, or that any one had told either of these officers that the defendant had whisky in his car. Holden testified that he saw the defendant drive up in front of his house and come out in a few minutes with something, get back into his car, and turned east on Broadway, again passing him while Kiersey was in the Byers house. These officers overtook the defendant on McLish avenue, in Ard-more. The officers testified that they shot at the gas line of the defendant’s car just as it turned the corner of Cummings’ store, and the defendant stopped the car about one-half block east of the corner; that when they drove alongside of defendant’s car they could see exposed one quart jar of whisky on the seat of the car and another broken jar in the bottom of the car. Cummings, a merchant who happened at the time to be. out in front of his store fixing an automobile, testified that he heard two shots before they turned at his corner; that he saw the officers drag the defendant out of his car and one hit him over the head with a pistol and kicked him; that whatever whisky that was found was concealed in paper sacks and that one of the officers took a jar out of sack and broke it on the pavement.

The testimony of the two officers was admitted over the defendant’s objections that the samé was incompetent, as having been obtained by unlawful search and seizure. At the close of the state’s case the defendant moved for a directed verdict of acquittal, which was overruled.

It is argued that the arrest of defendant and search of his person and of the car were without sufficient warrant in law, and that evidence obtained in this way in inadmissible and in violation of the defendant’s constitutional rights under sections 21 and 30 of the Bill of Rights.

The fact that the defendant was transporting intoxicating liquor, not being discoverable without a search, the offense of transporting it was not committed in the presence of the officers, and they had no authority to arrest the defendant, therefor without a warrant.

The intimidation and felonious assault made by the officers upon the defendant by shooting at his car was unlawful, and, in this way and by such lawless acts, the arrest was accomplished and the evidence obtained.

In the case of Graham v. State, 31 Okla. Cr. 125, 237 P. 462, we held:

“A peace officer has no lawful right to shoot, or shoot at, a person who is attempting to escape arrest for a misdemeanor, unless the offender resists to such an extent as to place the officer in danger of loss of life or great bodily harm.”

In the opinion it is said:

“An officer seeking the enforcement of one law should not violate another in order to accomplish his purpose. Such conduct brings the administration of justice into disrepute, and tends to the subversion of peace and good order.
“It is elementary that a confession of guilt obtained by duress is not admissible in evidence. The genius of our free institutions requires that the admissions of the accused shall not be used against him, unless made voluntarily.
“However, if a confession is freely and voluntarily made, without duress or promise of reward, it is admissible against the defendant, so we see that the legality or illegality of the means employed to obtain the confession determines whether it may or may not be admitted.”

It follows that the motion for a directed verdict of acquittal should have been sustained. Having reached this conclusion, we will not discuss the other assignments of error.

The judgment of the lower court is reversed, and the cause remanded, with direction to discharge the defendant.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    LEONARD ABLES v. STATE.
    No. A-5254.
    Opinion Filed June 30, 1926.
    (247 Pac. 423.)

      'J. E. McClendon, for plaintiff in error.
    ’ George F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of the district court of Marshall county, rendered on the verdict of a jury finding Leonard Abies guilty of burglary in the second degree, and fixing his punishment at imprisonment in the penitentiary for a term of two years.

The ■ only errors assigned are in substance as follows: That the court was without jurisdiction to render said judgment in that defendant was denied rights guaranteed by the Constitution, and that the court erred in not granting a new trial.

The information charged that in said county, April 1, 1922, said defendant, Leonard Abies, acting eon-jointly with Will Clemmons, Otis Sharp, and Buster Simmons, did burglariously and feloniously break and enter Bridges & Fondren’s store building in the city of Madill, with intent to take, steal, and carry away 23 sacks of flour, of the value of $35.

It appears that the original complaint was filed before J. R. Hearn, justice of the peace, charging this defendant and three others, Will Clemmons, Otis Sharp, and Buster Simmons, with the commission of this burglary. For some reason best known to himself, the justice of the peace gave the complaint four separate case numbers on his docket, one case number for each of said defendants. It appears that the defendant Leonard Abies, on April 5, 1922, waived preliminary examination, and was held to answer said charge by said examining magistrate. It appears that the original complaint upon which these four defendants were arrested was filed in the district court with the case assigned to the defendant 'Clemmons, so that the justice of the peace had no complaint on file with his transcript of the case assigned to this defendant, which he filed in the district court showing that the defendant Abies had waived preliminary examination.

Upon arraignment, uthis defendant filed a motion to quash and set aside the first amended information, for the reason that the court had no jurisdiction to hear and determine the cause, in that there was no proper transcipt on file showing that this defendant had a preliminary trial, or that he had waived such trial, which motion was overruled.

The trial of the case resulted in a conviction. Motion for new trial was duly filed February 5, 1923, which motion was sustained. Just why the trial court granted this defendant a new trial does not appear from the record.

On December 19, 1923, the case was called for trial, and the defendant filed a motion to quash and set aside the information on the ground “that, on the granting of a new trial, the court thereby sustained the defendant’s demurrer to the information, and the court did not make an order directing that a new information be filed, as provided by section 2612, C. S. 1921. Therefore, the judgment of the court therein became final, and the defendant is entitled to be discharged; that the certified copy of the complaint, filed before J. E. Hearn, justice of the peace, certified to by the court clerk of this county, and filed in this case, is null and void, and gives this court no jurisdiction; that the purported transcript of the justice of the peace in case of State v. Leonard Abies filed herein never had, and has not, any purported criminal complaint attached thereto,” which motion was overruled and exception taken.

The new trial resulted in a second conviction. Motion for new trial was duly filed and overruled and judgment pronounced as above stated.

To sustain the motion to quash and set aside the information, the defendant introduced the court clerk, who testified, and produced the examining magistrate’s transcript of the proceedings, duly certified, showing that this defendant waived preliminary examination, and the original complaint was filed by him in the Clemmons Case, and a duly certified copy of the same attached to the transcript upon which the information in this case was based; also the appearance bond given by this defendant in the sum of $2,000.

In Williams v. State, 6 Okla. Cr. 373, 118 P. 1006, it is said:

“Under the constitutional provision the precedent fact that a preliminary examination has been had or waived constitutes the jurisdictional basis for a prosecution for a felony by information in the district court, and, even though the examining magistrate failed to indorse his finding and order on the preliminary information, the district court had jurisdiction to order that a proper in-dorsement as prescribed by the statute be made. The finding and order of the magistrate made upon the preliminary examination and entered on his docket was sufficient to confer jurisdiction on the district court.”

To the same effect is Tucker v. State, 9 Okla. Cr. 587, 132 P. 825; Sayers v. State, 10 Okla. Cr. 195, 135 P. 944; Norwood v. State, 4 Okla. Cr. 637, 169 P. 656; Bradshaw v. State, 16 Okla. Cr. 624, 185 P. 1102; Lowrance v. State, 33 Okla. Cr. 71, 242 P. 862.

It is also urged that the second, amended information was filed after the new trial was granted without leave of court.

Section 2512, C. S. 1921, Procedure Criminal, provides :

“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.”

We think it is apparent from the record that the second amended information was filed by leave of court.

It must be taken as settled in this state the rule that error must affirmatively appear from the record; it is never presumed. Every presumption favors the regularity of the proceedings had upon the trial. The plaintiff in error must affirmatively show prejudicial error; otherwise the judgment of the trial court will be affirmed. Killough v. State, 6 Okla. Cr. 311, 118 P. 620; Chappelear v. State, 10 Okla. Cr. 392, 136 P„ 978.

After a careful examination of the record, we are satisfied that under well-settled rules, sustained and upheld by decisions of this court, the motion to quash and set aside the information was properly overruled.

The only other question argued by counsel for the defendant is the alleged misconduct of the juror Win-berry, who, it appears, is a brother-in-law of Jim Smith, who was a witness for the state in rebuttal. It appears that the jury was permitted to separate during the progress of the trial, and before the final submission of the cause. Winberry, called as a witness, testified that he stayed one night, possibly two, at Jim Smith’s home. That is all the showing. Nothing was done to influence the action of this juror, and he talked with no one about the case. The rule is well settled that the burden is on the defendant to show prejudice from any separation of the jury before final submission.

No other reason for reversing the judgment being urged, and no substantial error appearing in the record, the judgment of the court below is affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


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    ROY TILLER v. STATE.
    No. A-5549.
    Opinion Filed June 30, 1926.
    (247 Pac. 421.)

      M. D. Hartsell, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Muskogee county on a charge of selling whisky, and sentenced to serve a term of 90 days in the county jail and to pay a fine of $100.

The sufficiency of the evidence to sustain the judgment is not questioned, and discloses that on August 23, 1924, the state’s witness Hefley, in company with the state’s witness Davis bought whisky from defendant. The defendant did not take the stand and offered no evidence. The first contention made is that the court erred in not striking the case from the assignment, for the reason that the setting was made during a recess of the court, and further that it was made before the court had acquired jurisdiction of the person of the defendant. Section 3178, Comp. St. 1921, provides that terms of the county court shall commence on the first Monday of January, April, July, and October, and section 3182 provides that on the first day of the term the county judge shall prepare a calendar of cases standing for trial at that term, setting the cases for trial in order upon convenient days. The order assigning the cases for trial was not made on the first day of the term and not until the 17th day of February, at which time the case was set for trial on March 9th. The statute is not mandatory, but merely directory. It does not require that the setting be made by the court, but by the judge. The purpose of the statute is to give notice to interested parties of the time the case will be tried to enable them to procure witnesses and prepare for trial. The mere fact that the judge on the first day of the term did not make an order assigning the cases for trial would not preclude him from making such order at some later day in the term. There is no impropriety in a court making an assignment for trial on a day subsequent to the first day of the term.

Complaint is next made that after a motion had been filed to quash the. information for the reason that it was not signed by the county attorney, the court granted leave to amend by adding his signature. This was done before the arraignment of the defendant. The record discloses that the information as originally filed bore the indorsement: “I have examined the facts in this case and recommend that a warrant do issue. Sam H. Lattimore, County Attorney” — but did not bear upon its face the signature of the county attorney to the charging part of the information. Section 2511, Comp. St. 1921, requires that the county attorney shall subscribe his name to informations, and it is generally held that a failure to sign an information by the county attorney is jurisdictional. 16 Corpus Juris, p. 176, § 230; Ex parte Long, 26 Okla. Cr. 259, 223 P. 710. See, also, McGarrah v. State, 10 Okla. Cr. 21, 133 P. 260; Johns v. State, 15 Okla. Cr. 630, 179 P. 941.

The purpose of the requirement that the properly constituted prosecuting authority shall subscribe an information is to give an official character to all prosecutions and prevent the initiation of criminal actions by private persons. The statute, however, does not require thát the signature shall be upon any particular part of the information and while the departure from the established form of criminal pleading should be made only after careful consideration, we believe that the signature on the instrument as shown by the record was sufficient to give the court jurisdiction, and, when amended by the adding of the signature on the face thereof in addition to the signature shown, there could no longer be any objection to the information for the reason of want of signature. It was in the province of the prosecuting authority, even without leave of court, before plea was entered to amend the information either in substance or form.

Next it is argued that the court erred in overruling the motion to quash, for the reason that the court had no jurisdiction of the person of the defendant. The defendant in support of this motion on this point testified that he was arrested on the 20th day of January, and it was shown that the information was not filed until the 21st day of January. It was made to appear, however, that he had been arrested for the same offense the preceding August, and had given bond and for some reason the charge was dismissed. The defend-ani was rearrested, as stated, and the case again filed. Upon this point the undersheriff testified:

‘,Q. Did you have anything to do, directly or indirectly, with the arrest of Roy Tiller in this action on trial? A. I did.
“Q. To what extent? A. I directed the police department of the city of Muskogee to arrest Roy Tiller on sight, and either hold him in the city jail or confine him in the county jail for account of the sheriff's office.
“Q. Will ask you to tell the court whether or not, at the time arrest was made, was there any warrant served upon him, upon his arrest? A. I don’t believe warrant was served at the minute of arrest.”

This was in January, and defendant was not tried until March. Whether or not he gave bond in the meantime, the record does not disclose. It is not made to affirmatively appear from the record that any of the constitutional or statutory rights of the defendant were invaded in the court assuming jurisdiction of his person.

It is next claimed that the county court was not in session at the time of the trial. The record contains a statement that the county court convened on Monday, January 25, 1925. The “2” of the first figures “25” is shown to be stricken, and apparently the record is that the court convened on January 5, 1925. This is borne out by the concluding part of the record, which recites that: “Whereupon the court adjourned until Monday, January 12, 1925, at nine o’clock.” Then follows a record of the proceedings of January 12th, reciting that the court then adjourned until Monday, February 2d, and then a record of the doings of the court of February 2d, which record concludes with an adjournment of court to March 2, 1925, the record being regular and the term kept open. Even if the first part of the record referred to should say that the court convened on January 25th instead of January 5th, which was the first Monday, in the light of the other part of the record, it must obviously be a clerical error.

Complaint is also made that the court permitted incompetent evidence on the part of the state in permitting it to be shown that the defendant loitered about the streets without any occupation. This, it is contended, tends to show that the defendant was a professional bootlegger or vagrant, and prejudiced the jury against him. The admission of incompetent • evidence, unless it is reasonably apparent that it was prejudicial, is not sufficient to require a reversal under the harmless error doctrine.

It is also argued that the county attorney in his argument committed prejudicial error in stating to the jury that the defendant was a bootlegger and asking for a severe penalty. The county attorney was within his rights in arguing that the defendant was engaged in bootlegging as a reasonable and fair deduction from the evidence, and within his rights in vigorously exhorting the jury to severely punish the offense charged. It is only where the argument is unfair and not a proper deduction from the evidence and calculated to arouse the passions and prejudice of the jury that it will amount to reversible error. Coker et al. v. State, 26 Okla. Cr. 230, 223 P. 711.

Upon an examination of the entire record, it appears that the verdict is fully sustained by the evidence, that the contentions made are purely technical, and that there is no error that is prejudicial to the substantial rights of defendant.

The case is therefore affirmed.

BESSEY, P. J., and DOYLE, J., concur.


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    A. C. BRAY v. STATE.
    No. A-5595.
    Opinion Filed June 30, 1926.
    (247 Pac. 415.)
    Young, Haste & Powell, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Pontotoc county on a charge of buying land in suit and sentenced to pay a fine of $400.

It appears from the record that on March 3, 1924, the defendant took a conveyance of certain land in Pontotoc county while the same was the subject of a suit in the district court of said county. It is undisputed that the deed of conveyance was executed and delivered in Oklahoma county and on the same day was recorded in Pontotoc county. The only contention that it is necessary to consider is that the county court of Pontotoc county did not have jurisdiction of the offense sought to be charged, for the reason that the offense, if committed, was committed in Oklahoma county. Section 20, art. 2, of the Constitution in part reads:

“In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed. * * *”

The offense for which the defendant was prosecuted is defined by section 1678, Comp. St. 1921, as follows :

“Any person who takes any conveyance of any lands or tenements, or of any interest or estate therein, from any person not being in the possession thereof, while such lands or tenements are the subject of controversy, by suit in any court, knowing the pendency of such suit, and that the grantor was not in possession of such lands or tenements, is guilty of a misdemeanor.”

From an inspection of this section of the statute, it is obvious that the taking of the conveyance under the conditions inhibited therein constitutes the offense. It is complete when the instrument of conveyance is executed and delivered. The subsequent placing on record of the conveyance is not made any part of the offense. So it follows that, when the deed of conveyance was executed and delivered in Oklahoma county, if the conditions forbidden by the statute then obtained, the offense was complete and the conveyance was in that county. The subsequent transmitting and recording of the instrument of conveyance in Pontotoc county did not give the court of that county jurisdiction of an offense committed in Oklahoma county. The Legislature has not attempted to confer jurisdiction for such an offense on the court of the county where the conveyance is recorded or where the land is situated, and under the section of the statute above quoted it is probably not in the power of the Legislature to invest such county with jurisdiction. 8 R. C. L. p. 99, § 59; Walls v. State, 32 Ark. 565; Wilson v. State, 16 Okla. Cr. 471, 184 P. 603.

The case is reversed and remanded, with instructions to the lower court to dismiss.

BESSEY, P. J., and DOYLE, J., concur.


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    In re OPINION OF THE JUDGES. In re ROSWELL HAMILTON.
    No. A-6280.
    Opinion Filed July 7, 1926.
    (248 Pac. 350.)
   EDWARDS, J.

The record submitted and to which is attached your request above mentioned discloses that the said Roswell Hamilton was charged with murder by information in the district court of Hughes county and that said information was filed in this court on the 21st day of April, 1926, and trial had upon said information which resulted in conviction and a sentence to death by electrocution on the 22nd day of July, 1926. Under the Constitution and laws of this state, any person convicted of a felony may appeal within six months from the time judgment is rendered. Section 2808, Comp. Stat. 1921. By the provisions of this section of the statute, the defendant, if he takes proper steps, may perfect an appeal to this court. It has been the uniform holding of this court that the provisions of section 2786 of the statute of this state contemplate an advisory opinion where an appeal has not been taken from the judgment and sentence of death. To render an advisory opinion where an appeal has been taken, or where the time given for appeal has not expired and appeal might be perfected, would be to prejudge a case upon an ex parte proceeding, which might later be brought before the court upon an appeal. We cannot assume that the defendant will not appeal until the time for such appeal shall have expired or the right to appeal shall have been expressly waived. In order that the defendant shall not be deprived of his right to appeal within six months, the execution of the sentence of death should be postponed to some date after the 20th day of November, 1926. If, in the meantime, the appeal is perfected and filed in this court, such appeal will automatically give the accused the right to a further suspension of the execution of sentence until the appeal shall be determined upon its merits.

BESSEY, P. J., and DOYLE, J., concur.


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    JIM TRITTHART v. STATE.
    No. A-5608.
    Opinion Filed July 13, 1926.
    (247 Pac. 1111.)
    W. H. Kornegay and O. L. Rider, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Houston B. Tee-hee, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, upon a charge of murder in the district court of Craig county, was convicted of manslaughter in the first degree, and sentenced to serve a term of seven years in the state penitentiary. Briefly stated, we gather from the record the facts about as follows:

The defendant and the deceased, Charley Flanders, lived near each other, and each owned some land under the same pasture fence, and to some extent each was engaged in stock raising. A state of ill will had existed between them which appears to have had its beginning in the fact that defendant had been a witness against deceased in some litigation. Threats appear to have been made by each against the other, and on two occasions the deceased had invited the defendant to an affray, which had been declined. On the day of the homicide, deceased was seen driving' some cattle near the pasture and defendant and his brother were engaged in looking after some stock about the same pasture. They met at a point in defendant’s part of the pasture, the deceased on horseback, while the defendant and his brother, who were the only eye witnesses, testify that the defendant was on the ground. From the points where the parties met, deceased’s horse whirled sharply, and evidently went at a rapid gait for a considerable distance.

On cross-examination, Robert Tritthart, a brother, and called as a witness by the defendant, in part testified:

“* * * Q. Who fired the first shot? A. Jim.
“Q. Did Charley ever fire? A. No, sir.
“Q. Did you see any firearms in Charley’s hand A. No, sir.
“Q. Did you see Charley with any firearm there? A. No, sir.
“Q. Did you see Charley’s horse when it whirled there to get away from there? A. Yes, sir.
“Q. Did you see any firearm in his hand then? A. No, sir.
“Q. He was in plain view of you then, wasn’t he— whirled around toward you, the horse did, and Charley on it? A. He wheeled around, yes, sir.
“Q. Wheeled around toward you, south? A. Yes, sir.
“Q. You were south of him 200 feet where you could see? A. Yes, sir.
“Q. Down in this canyon, in plain view of them? A. No, I wasn’t in the canyon; I was up on the bank.
“Q. But you were where you could see them? A. Yes, sir.
“Q. And when the horse whirled, you didn’t see any gun about Charley then? A. No, sir. * * *”

The defendant on direct examination testified that he was on the ground when deceased rode up to him and commenced cursing and called him vile names; that he seized hold of deceased’s bridle rein; that the horse jerked back six or eight feet, and deceased said: “I will just work you over right here,” and started as if to reach for a gun, and defendant then drew his pistol, an automatic, and emptied it at deceased. There were five wounds on the body of deceased, on the right hip and in the rear, one to the left of the backbone, just below the shoulder blade, which made an exit in front near the tip of the breast bone, and two wounds in the left leg. Another bullet was found in (the back part of the horn of the saddle on the horse ridden by deceased. After the difficulty, defendant went to the home of his father, the officers were telephoned, and came, and defendant directed them into the place where the body was found. It was lying face upward, the arms extended with an automatic pistol lying near. There were various other details of evidence not necessary to relate which tend circumstantially to cast light on the homicide.

It is first contended that the special prosecutor who conducted the cross-examination for the state made unfair insinuations, and was guilty of misconduct. The cross-examination was vigorous, and frequently suggested the state’s theory of the manner in which the homicide occurred. Most of the matters complained of were not objected to at the time, and where objections were interposed which appear well taken, they were promptly sustained. It is well settled by the frequent holdings of this court that cross-examinations should be limited to legitimate subjects of inquiry, and should not be permitted to become a means of browbeating and intimidating the witness. Here, as stated, the defendant and his brother were the only eyewitnesses. In several particulars the physical facts contradicted their testimony. The state was entitled to a liberal right of cross-examination. We find nothin)? in the cross-examination materially prejudicial.

The defendant next complains of several of the court’s instructions, among them the latter part of No. 5, which is:

“* * * The commission of the homicide by the defendant being proven, the burden of proving the circumstances that justify or excuse it devolves upon the defendant, unless the proof on the part of the prosecution tends to show that the shooting was justifiable or excusable.”

It is argued that this instruction, without further instruction defining to what extent the defendant must offer proof of justification, leaves the matter in doubt in the minds of the jury, and is prejudicial. This part of the instruction is the substance of section 2719, Comp. Stat. 1921, and, taken in connection with the instruction upon the presumption of innocence is not erroneous. Rich v. State, 31 Okla. Cr. 391, 239 P. 183.

Error is also predicated upon the court’s instruction No. 15, which, in substance, states the general law of self-defense, and further advises the jury that the taking of human life is not justified in resisting a nonfelonious assault. This instruction does not follow the language of the statute (section 1754, Comp. Stat. 1921), and is objectionable under the rule announced in the case of Roddie v. State, 19 Okla. Cr. 63, 198 P. 342, wherein it is said, in substance, that a slaying in self-defense is not limited to the resistance of a felonious assault, but that the right exists in resisting an attempt to do “great personal injury” not necessarily amounting to a felony. But, since in this case the only evidence or resistance to an assault at the time of the homicide is that of the defendant that at the time he shot deceased made a movement as if to draw a pistol, that part of the language of the instruction complained of is- mere surplusage, and states an abstract proposition which has no application to the facts and could not, we think, have been misleading. It is harmless error.

Complaint is also made that No. 10 of the court’s charge, which defines manslaughter in the first degree, is erroneous. This instruction is in the language of the statute (section 1740, Comp. Stat. 1921). Defendant contends that the third subdivision of this section states the only condition in which the homicide could be called manslaughter in the first degree, and hence that part of the charge which states under w'hat conditions a killing “in the heat of passion” constitutes manslaughter is prejudicial as having no foundation in the evidence. It is doubtful if the evidence warranted an instruction on a killing in the heat of passion, since there was no direct evidence of any anger on the part of defendant, unless anger might be inferred from defendant’s testimony that immediately before the shooting the deceased had cursed and applied to him vile and approbrious epithets. However, even if the evidence does not warrant this part of the charge, it is mere surplusage, and is not prejudicial.

It is also argued that instruction No. 20, in which the jury are told that insulting words, conduct, or epithets, no - matter how approbrious, at. or prior to the time of the killing, will not justify or mitigate the homicide, is error, since there was no claim of justification or mitigation by reason of the evidence of such insulting or opprobrious words or epithets. Opprobrious words and epithets, however, were in evidence, and it was entirely) proper for the court to advise the jury that they did not constitute a justification. It is not possible to embody all the laws in a single instruction, and it is proper that different propositions of law be set forth in different parts of the charge of the court. The instructions should be considered as a whole, and single instructions, detached from their connection with other instructions, should not be singled out and the verdict based on that alone, but all should be considered and construed together. Considering the instructions as a whole, we find no error that would warrant this court in disturbing the verdict of the jury. Wilkie v. State, 33 Okla. Cr. 225, 242 P. 1057.

Lastly, it is contended that the evidence is in-sufla cient to sustain the verdict. We do not deem it necessary to review and analyze the evidence in detail beyond the statement heretofore set out, but upon a consideration of the physical facts, that is, the location of the wounds on the person of deceased, the circumstances surrounding the homicide as shown by the evidence, and the testimony of defendant and his brother, present a question of fact for the jury. The inferences arising from the evidence and circumstances sustain the verdict of the jury, and from the whole record we are convinced that the defendant had a fair and impartial trial, and the punishment assessed is not excessive.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    Ex parte ERNEST KEY.
    No. A-6294.
    Opinion Filed July 16, 1926.
    (248 Pac. 351.)
    See, also, 34 Okla. Cr. 334, 246 P. 1118.
    •Sigler & Jackson, W. F. Bowman, and Champion, Champion & Fischl, for petitioner.
    Geo. F. Short, Atty. Gen., for respondent.
   EDWARDS, J.

This is an original application in habeas corpus by Ernest Key to be let to bail. The petitioner sets out that he is held in the jail of Carter county upon a charge of murder and alleges that the proof of his guilt is not evident nor the presumption great. It is further made to appear that a previous application has been made in this case to this court and bail denied, and the petitioner now alleges that since the former hearing he has discovered new and important testimony, which was unknown to him at the time of the former hearing, and which shows that at the time of the homicide charged the petitioner was acting in his necessary self-defense.

It is the policy of this court, where an application by habeas corpus to be let to bail is heard and denied, the court will not ordinarily entertain a subsequent application based on the same grounds or facts or any other grounds or facts existing when the first application was made. In re Fraley, 4 Okla. Cr. 91, 111 P. 662. Whatever grounds a petitioner relies upon for bail should be developed in the first instance, and, if not presented, then will not be heard upon some subsequent application. A) state of facts might be shown where evidence could not be had upon a first application, and where, in furtherance of justice, a subsequent application upon the same grounds should be entertained. But in such case a mere lack' of diligence or failure to use every effort to procure the evidence in the first instance will not be a sufficient reason for the court to entertain a second application upon the same ground.

The transcript of the evidence taken at the preliminary and used on the first application, and again introduced at this time with evidence subsequently taken, discloses that on the 14th day of May the petitioner in the town of Ardmore shot and killed one George Whitford. The killing took place at the Liberty Rooms, which appear to have been at the time operated by petitioner as public gambling place, and in which at the time a game of poker was in progress. Just prior to the killing, the petitioner was engaged in the game. There had been a state of ill feeling between the deceased and petitioner for some time, and in the progress of the game the ’ deceased came into the room, spoke to several of the participants in the game in a friendly manner, and watched the play for some minutes. The petitioner was on the opposite side of the table, facing him. After a few minutes the petitioner got up, left the room, was gone a short time, and returned and immediately shot and killed deceased. The witnesses were the parties present, some eight or ten in number, and most of whom were participants in the game. Several of them testified in the preliminary hearing and stated freely their recollection of who was present at the time. Since the petitioner conducted and operated the place and must have scrutinized or observed who was present,' or at least could easily have ascertained, there was no good reason why their evidence should hot have been presented in the first instance. The evidence now offered of other persons who were present at the time, and who were either known by the petitioner or by due diligence could have been known, is not such newly discovered evidence as entitles the petitioner to make a subsequent application upon the same grounds and upon the same facts determined in his previous application. He is concluded by the judgment of this court already rendered upon his former application. The case of Ex parte Hamilton, 65 Miss. 38, 3 So. 68, while based upon a statute, is enlightening; it is there said that the nature of the proceeding precluded the adoption of the rule applicable to new trials for newly discovered evidence.

The writ is discharged, and the petitioner is remanded to the custody of the sheriff of Carter county.

BESSEY, P. J., and DOYLE, J., concur.


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    KATHERINE COLE v. STATE.
    No. A-5604.
    Opinion Filed July 23, 1926.
    (248 Pac. 347.)
    Blount C. Trice and Walter L. Gray, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Osage county on a charge of willfully mutilating a gravestone. She was sentenced to pay a fine of $500 and to be confined in the county jail for a period of six months. The case was called for trial on the 17th day of January, 1925. The defendant was not present in person, but was represented by her attorneys, Tillman, Tillman & Pierson. The record recites that they waive her presence. Thereupon the trial was had in the absence of defendant. A jury was selected, the opening statement by the county attorney made, and witnesses called and examined by the state and cross-examined by counsel for defendant. Upon the conclusion of the state’s evidence, one of the witnesses called by the state was called by defendant’s counsel as a witness for defendant and gave further testimony.

The jury returned its verdict on the 17th day of January, and on receiving the verdict the court pronounced judgment and sentence, but no formal journal entry was filed at the time. A motion for a new trial was filed on the 19th of January, which, however, did not assign as error the trial of the defendant in her absence, but did assign as error the rendering of judgment and sentence in her absence. This motion for new trial was overruled, but the court set aside its judgment and sentence previously entered, and defendant was brought before the court and judgment and sentence again pronounced.

Several assignments are argued in the brief, but all may be resolved in the single contention that in the trial of a misdemeanor or where the punishment may be imprisonment that defendant has a right to be personally present, and that this right cannot be waived by attorneys for such defendant. The statute under which the defendant was prosecuted is section 1885, Comp. Stat. 1921, which defines a misdemeanor punishable by a fine not exceeding $500, or by imprisonment in the county jail not exceeding six months, or by both such fine and imprisonment, for any person who shall willfully destroy, mutilate, etc., any tomb, monument, etc., of any human being. Without reciting the facts, it is sufficient to say that the evidence fully sustains the verdict and judgment.

Section 20, Bill of Rights, is:

“In all criminal prosecutions the accused shall have the right to a speedy, and public trial by an impartial jury of the county in which the crime shall have been committed: Provided, that the venue may be changed to some other county of the state, on the application of the accused, in such manner as may be prescribed by law. He shall be informed of the nature and cause of the accusation against him and have a copy thereof, and be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his behalf. He shall have the right to be heard by himself and counsel; and in capital cases, at least two days before the case is called for trial, he shall be furnished with a list of the witnesses that will be called in chief, to prove the allegations of the indictment or information, together with their post office addresses.”

The provisions of this section are for the benefit of a defendant and confer a substantial right. It has been held that various of these rights may be waived by a defendant. Baker v. State, 9 Okla. Cr. 62, 30 P. 820; State v. Frisbee, 8 Okla. Cr. 406, 127 P. 1091; Galbert v. State, 12 Okla. Cr. 571, 160 P. 332. There are, however, certain rights granted an accused which are inalienable and which he cannot waive. There are steps in the course of the trial without which the trial will not constitute due process of law. Hopt v. Utah, 110 U. S. 574, 4 S. Ct. 202, 28 L. Ed. 262; Bishop’s New Criminal Pro. § 271.

Section 2641, Comp. Stat. 1921, is as follows:

“If the indictment or information is for a felony, the defendant must be personally present at the trial, but if for a misdemeanor not punishable by imprisonment, the trial may be had in the absence of the defendant, if, however, his presence is necessary for the definite purpose of identification, the court may, upon application of the county attorney, by an order or warrant, require the personal attendance of the defendant at the trial.”

This statute was under consideration in the case of Stuart v. State, 6 Okla. Cr. 27, 15 P. 1026, where it was held:

“(a) When a person is placed on trial in a court of competent jurisdiction in this state charged with a misdemeanor, the punishment for which is a fine only, the trial may be had without the presence of such person.
“(b) When a person is placed on trial on a misdemeanor charge, the minimum punishment for which includes imprisonment, it is necessary for such person to be present in person during such trial.”

In that case, however, the question of waiver of the presence of defendant was not involved, and after verdict a motion in arrest of judgment was filed among other things setting out—

“* * * That the court erred in placing defendant upon his trial without being present, and without waiving his presence during the trial of said cause, and without defendant pleading, or refusing to plead'. * * *”

That case cites, in support of the rule announced, Washington v. State, 52 Tex. Cr. R. 323, 106 S. W. 361; State v. Young, 86 Iowa, 406, 53 N. W. 272.

There is a conflict among the authorities whether an accused- can waive his right to be present at the trial. In a number of jurisdictions it is held that if an accused on bail is present at the beginning of the trial and thereafter voluntarily absents himself or makes his escape, the court may proceed with the trial, and the absence of the defendant is a waiver of his constitutional right to be present at every stage of the trial. 8 R. C. L. 94; Diaz v. Uinited States, 223 U. S. 442, 32 S. Ct. 250, 56 L. Ed. 500, Ann. Cas. 1913C, 1138; Gore v. State, 52 Ark. 285, 12 S. W. 564, 5 L. R. A. 832; Barton v. State, 67 Ga. 653, 44 Am. Rep. 743; State v. Way, 76 Kan. 928, 93 P. 159, 14 L. R. A. (N. S.) 603; Price v. State, 36 Miss. 531, 72 Am. Dec. 195; State v. Vanella, 40 Mont. 326, 106 P. 364, 20 Ann. Cas. 398; State v. Kelly, 97 N. C. 404, 2 S. E. 185, 2 Am. St. Rep. 299; Fight v. State, 7 Ohio, 180, pt. 1, 28 Am. Dec. 626; Lynch v. Com., 88 Pa. 189, 32 Am. St. Rep. 445; Hill v. State, 17 Wis. 675, 86 Am. Dec. 736; French v. State, 85 Wis. 400, 55 N. W. 566, 21 L. R. A. 402, 39 Am. St. Rep. 855; Stoddard v. State, 132 Wis. 520, 112 N. W. 453, 13 Ann. Cas. 1211.

A number of states hold that the presence of the defendant on a trial of a charge of felony cannot be waived and is essential to a valid conviction. Summeralls v. State, 37 Fla. 162, 20 So. 242, 53 Am. St. Rep. 247; State v. Vanella, 40 Mont. 326, 106 P. 364, 20 Ann. Cas. 398; State v. Walton, 51 Or. 574, 91 P. 495, 13 L. R. A. (N. S.) 811; State v. Mannion, 19 Utah, 505, 57 P. 542, 45 L. R. A. 638, 75 Am. St. Rep. 753; State v. Stevenson, 64 W. Va. 392, 62 S. E. 688, 19 L. R. A. (N. S.) 713; Humphrey v. State, 3 Okla. Cr. R. 504, 106 P. 978, 139 Am. St. Rep. 972.

The case last cited, Humphrey v. State, was predicated largely on the case of Day v. Territory, 2 Okla. 410, 37 P. 806, and Leroy v. Territory, 3 Okla. 596, 41 P. 612. The Humphrey Case has been overruled by later decisions of this court. It may now be said to be settled law in this state that where the record affirmatively shows a defendant present at the beginning of the trial, it will be presumed that he continued present unless his absence is affirmatively shown. Bowman v. State, 9 Okla. Cr. R. 577, 132 P. 824; Burns v. State, 8 Okla. Cr. R. 554, 129 P. 657.

In the case at bar, however, the record affirmatively shows that the accused was not present at any time during the trial. In a misdemeanor case, as here, where the punishment may be imprisonment as well as a fine, the accused may waive the right to be present, but the right to waive is personal and can be exercised only by accused. In 8 R. C. L. p. 94, it is said:

“His right, when on bail, to waive his own presence in cases not capital when the verdict is received, is strictly a personal right, and no such waiver can be exercised for him by his own counsel.” Sherrod v. State, 93 Miss. 774, 47 So. 554, 20 L. R. A. (N. S.) 509; State v. Kelly, 97 N. C. 404, 2 S. E. 185, 2 Am. St. Rep. 299.

In the Sherrod Case, supra, it is said:

“* * * While it is settled in this statute that the prisoner has the right to be so present during his trial upon a charge for a felonious offense not capital, there is neither principle, nor statute, nor judicial precedent that makes it essential that he shall be; nor, in our judgment, is there any common principle of justice, essential to the security of personal right, safety or liberty, that so requires. Unquestionably a party put to answer any criminal charge may plead guilty, or nolo contend-ere. In such case, he waives a trial altogether. The law allows him to do so, presuming that he has capacity and intelligence to know and be advised as to his rights and that he will not voluntarily refuse to make defense if innocent. The law in such cases will not compel him to make defense for himself, nor will it make defense for him. It will only afford him just opportunity to do so for himself. He could not reasonably expect or ask more, nor is there anything in the nature of personal safety or liberty that requires more. If the prisoner may thus waive his right to a trial altogether, why may he not waive his right to be present at his trial, if he shall, for any cause see fit to do so? We can conceive of no just reason why he may not, especially when he is represented by counsel, as he has the right to be, who, it is presumed, is fully advised by him, and can generally take care of his rights better than he could do himself. He may deem it of advantage to him not to be present, or it may be inconvenient for him to be. He may choose to rely upon the skill and judgment of his counsel, and expect that the court will see that the trial is conducted according to law, as it will always do. He may do this; but the waiver should appear to the satisfaction of the court, either expressly, or by reasonable implication from what he says, or by his conduct. His counsel cannot waive his right for him. State v. Epps, 76 N. C. 55; State v. Paylor, 89 N. C. 539; State v. Sheets, 89 N. C. 543; Price v. State, 36 Miss. 531, 72 Am. Dec. 195; Fight v. State, 7 Ohio, pt. 1, page 180, 28 Am. Dec. 626, and numerous cases there cited.”

A waiver of the right of accused to be personally present could be waived by her, but the waiver must have been the act of the accused expressed in person and not by counsel. The accused was not present during any part of the trial until brought in by process of the court two days after the verdict was received for judgment and sentence. Counsel for accused were without authority in the absence of accused to waive her presence. The trial in her absence was not waived by her and constitutes reversible error.

The case is reversed and remanded.

BESSEY, P. J., and DOYLE, J., concur.


author: PER CURIAM.

text:
    EDNA THOMPSON v. STATE.
    No. A-6026.
    Opinion Filed July 27, 1926.
    (247 Pac. 1118.)
    Robertson & Ammons, for plaintiff in error.
   PER CURIAM.

The plaintiff in error, Edna Thompson, was convicted on a charge of selling one-half pint of whisky to one John Hughes, and in accordance with the verdict she was sentenced to confinement in the county jail for 30 days and to pay a fine of $50 and the costs, taxed at $29.95. From the judgment an appeal was taken, by filing in this court January 12,. 1926, a petition in error with case-made. The suggestion of the death of the plaintiff in error, with motion to abate, has been filed by counsel of record. It is therefore considered and adjudged that the proceedings in the above-entitled cause, and especially under the judgment therein rendered, have abated, and the county court of McIntosh county enter its appropriate order to that effect.


text:
    J. B. LANGHAM v. STATE.
    No. A-5627.
    Opinion Filed July 31, 1926.
    (248 Pac. 349.)
    Wilkinson & Saye, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Stephens county on a charge of having unlawful possession of intoxicating liquor and sentenced to pay a fine of $50 and to be confined in the county jail for a period of 60 days.

Over the objection of defendant, evidence obtained by a search made under a search warrant was introduced in evidence. Omitting the formal parts, the search warrant is as follows:

“Proof of affidavit having this day been made before me by - that intoxicating liquors are being manufactured, sold, bartered, or given away or otherwise furnished, or are being kept, for the purpose of selling, bartering, giving away or otherwise furnishing said intoxicating liquors, in violation of the prohibition law of Oklahoma, in that certain building and place located on - and - in block No. - in the city of -, and known as the Buck Langham place.
“You are therefore, in the name and by the authority of the state of Oklahoma, hereby commanded that, taking all necessary assistance, you immediately, in the daytime or nighttime, make diligent search of the above-described premises and seize all such liquors there found, together with the vessels in which they are contained, and all implements, furniture, and fixtures used or kept for the illegal manufacturing, selling, bartering, giving away, or otherwise furnishing such intoxicating liquors, and safely keep the same and make due return of this warrant within three days from date thereof, with a particular statement of all property seized of the person or persons in whose possession the same was found, if any, and, if no person be found in possession of said property,, your return shall so state.”

The theory of the state was that the defendant waived the search warrant or defects in the search warrant. The evidence of the state, however, shows that on their way to the defendant’s residence where the search was made, they picked up the defendant, and the following appears:

“By Mr. Wilkinson: Q. What did you tell him when you picked him up? A. I told him I was going to search his place.
“Q. Did you tell him you had a search warrant? A. Yes; I told him I had a search warrant.
“Q. When was it you told him you had a search warrant, after you got to the house? A. I don’t think there was anything said about the search warrant until we got ready to leave.”

When a search is shown to have been made under a void search warrant, the burden is then on the state to show a waiver by a defendant of his constitutional right. This, we think, is not made to appear under the record. The failure to resist or the consent to a search made to an officer armed with a search warrant is not a waiver of the constitutional right against an illegal search. Article 2, § 30, Bill of Eights, is:

“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized.”

Section 7009, Comp. St. 1921, provides that, where complaint is made before a judge or magistrate by which it is made to appear that the prohibitory law is being violated at any place, the magistrate shall issue a search warrant for the search of the premises described and designated in the complaint. The pretended search warrant in this case is in blank, not naming either the person making the complaint nor the place to be searched. It is therefore a nullity, and a search made by virtue of such warrant is illegal, and evidence obtained thereby on proper objection should have been excluded.

The case is reversed and remanded.

BESSEY, P. J., and DOYLE, J., concur.


text:
    J. C. PICKETT v. STATE.
    No. A-5628.
    Opinion Filed Aug. 7, 1926.
    (248 Pac. 352.)
    Wilkinson & Saye, for plaintiff in error. '
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Stephens county on a charge of selling whisky, and sentenced to pay a fine of $50 and to serve 30 days in the county jail. The only contention argued by defendant is that the evidence is insufficient to sustain the judgment. On the part of the state, the evidence is that, on the 14th of January, one Noah Johnson and his son went to the residence of defendant and there bought a quart of whisky and gave defendant a check for $3. The evidence is rather vague as to whether the whisky was handed to Johnson by defendant or some boy who brought it into the house, but is definite that the purchase was made as alleged.

The defense is an alibi, and in addition, it was sought by cross-examination to show that the two witnesses for the state were intoxicated and not in a condition to give credible testimony, and, further, that the principal witness had made contradictory statements out of court. It is too well settled to require a citation of authority that where' the evidence, although contradicted, if believed, is such that the jury may logically find a defendant guilty, the weight and credibility of the evidence is peculiarly within the province of the jury, and the verdict of the jury in such case will not be disturbed by this court.

We do not perceive any unusual circumstance here which takes this case out of the usual rule and which would warrant this court in disturbing the verdict on the weight of the evidence.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concurr.


text:
    GLADYS MITCHELL v. STATE.
    No. A-5623.
    Opinion Filed Aug. 14, 1926.
    (248 Pac. 654.)
    W. Shearer Brown, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Muskogee county on a charge of outraging public morals, as defined by section 1886, Comp. St. 1921, sentenced to pay a fine of $250 and to be confined in the county jail for a term of 6 months. The case was tried in February, 1925, and the appeal lodged in this court in May, 1925.

Where an appeal is prosecuted to this court, and no brief in support of the petition in error is submitted, and no appearance for oral argument made, this court will examine the record for jurisdictional errors, and will read the evidence to ascertain if it reasonably supports the judgment, and, if no fundamental error is apparent and the evidence is sufficient, the case will be affirmed.

We have examined the record, and find that the evidence fully sustains the verdict and judgment. No jurisdictional error is apparent.

The case is affirmed.


text:
    ALPHA BAKER v. STATE.
    No. A-5630.
    Opinion Filed Aug. 14, 1926.
    (248 Pac. 846.)
    R. M. Mountcastle, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of McIntosh county on a charge of having possession of mash fit for the distillation and manufacture of whisky and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

The evidence shows that certain officers of McIntosh county, without a search "warrant, started to the residence of defendant for the purpose of searching for evidence of a violation of the prohibitory liquor law. Before reaching the residence they met the defendant, and, according to the evidence of the state, told him that they had information that he was handling liquor and wanted to search his place. Defendant told them to go ahead and search; that he had to go to another place, but would be back soon. The officers then said they did not wish to go where the ladies were without the men, and asked defendant to go along, and he did so. The search was made, and a barrel containing about 30 gallons of mash suitable for the distillation of whisky was found in the house. The defendant testified that the mash was prepared by him for hog feed, but admits telling the officers that he had a barrel of Choctaw beer, and, in reference to the waiver claimed by the state, he testified:

“Q. What did he say? A. Well, he asked me if my name was Baker, and I told him, ‘Yes.’ He said he had news that I was selling whisky and that he was going to search my place. I told him to go ahead; that he could search it without me. * * *”

The court instructed the jury that the search of the residence of any person was illegal without a valid search warrant, unless a voluntary consent to such search was given, and that, if they entertained a reasonable doubt that defendant did voluntarily consent, they should not consider the evidence of the officers making the search, but should disregard the entire testimony and find the defendant not guilty.

The constitutional right against an unreasonable search is personal, and may be waived, and, as we view the record, it was a question of whether or not the defendant voluntarily waived his constitutional right. It was properly submitted to the jury and their verdict is supported by the evidence. Some other contentions are made, but none of them present any material error.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    G. B. ALLEN v. STATE.
    No. A-6032.
    Opinion Filed Aug. 21, 1926.
    (248 Pac. 655.)

      Whiteside & Snodgrass, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

The plaintiff in error, here referred to as the defendant, was, on the 23d day of September, 1925, in the district court of Jackson county, convicted of rape in the first degree, with his punishment fixed by a jury at confinement in the penitentiary for 15 years.

The defendant, a divorced negro farmer, ■ married a woman who was the mother of a daughter named Zula Sanders, the prosecutrix in this case. At the time of the commission of the alleged offense herein involved this girl was 14 years old. She testified that she had sexual intercourse with her stepfather, the defendant, on March 10, 1925, and on divers occasions prior thereto. No evidence was offered to corroborate her testimony, except the fact that her appearance indicated that at the time of the trial she was in an advanced stage of pregnancy.

The defendant denied the accusation.. He admitted that the prosecutrix was pregnant, but stated that she had told him that a negro, “Pullin Slim,” was responsible for her condition. He stated to the sheriff of Jackson county that “Pullin Slim” was the man. On rebuttal the prosecutrix said that she had accused “Pullin Slim” because her stepfather told her to do so. Defendant further testified in his own behalf that his wife had become vexed with him over business affairs and that he had had a conversation with her, in which she made veiled threats that she would punish the defendant. The defendant testified to this conversation with his wife in detail, for the purpose of showing that the prosecution was maliciously “framed” by his wife. In rebuttal the wife, over the objections of the defendant, was permitted to testify that she had had no such conversation, and was permitted to state just what was said on the occasion referred to.

The defendant urges, first, that the evidence is insufficient to support the verdict. The story told by the girl is not so inherently improbable as to require definite corroboration. In this state it is not necessary, as a matter of law, that the testimony of the prosecutrix in a rape case be corroborated; and this is true even in cases where the accused specifically denies the sexual act. Brenton v. Ter., 15 Okla. 6, 78 P. 83; Reeves v. Ter., 2 Okla. Cr. 351, 101 P. 1039; Morris v. State, 9 Okla. Cr. 241, 131 P. 731; Roberts v. State, 31 Okla. Cr. 103, 237 P. 148.

It is next contended that the court erred in permitting the wife of the defendant to testify in rebuttal to testimoy introduced by the husband. Section 2699, Comp. Stat. 1921, provides:

“Except as otherwise provided in this and the following chapter, the rules of evidence in civil cases are applicable also in criminal cases; Provided, however, that neither husband nor wife shall in any case be a witness against the other except in a criminal prosecution for a crime committed one against the other, but they may in all criminal cases be witnesses for each other, and shall he subject to cross-examination as other witnesses, and shall in no event on a criminal trial be permitted to disclose communications made by one to the other except on a trial of an offense committed by one against the .other.”

It has been held by this court that the commission of rape on a daughter or stepdaughter is not a crime committed against the wife, within the meaning of this statute, and, ordinarily, in such a case the wife is incompetent to testify against her husband. Cargill v. State, 25 Okla. Or. 314, 220 P. 64. But the privilege of a husband charged with rape to have the testimony of his wife excluded is a privilege or right which may be waived. Wigmore on Evidence, § 2242; notes, Ann. Cas. 1913A, 31. And the right to have the wife’s testimony excluded is waived where the husband takes the stand and testifies to conversations had with his wife pertinent to the issue. The state may then cross-examine the defendant witness concerning such conversations and may use the wife as a rebuttal witness. The right to controvert competent evidence by cross-examination or in rebuttal is a right which cannot be abridged, within the scope of the original inquiry. 40 Cyc. 2473 et seq.; 7 Words and Phrases, p. 5987; 4 Words and Phrases, Second Series, p. 197.

If the defendant wished to avail himself of the benefits of a privileged communication, he should himself have refrained from opening up the subject of that privilege. It would be contrary to reason and authority to permit one to waive such privilege and later avail himself of the privilege by objecting to a fuller development of the facts on rebuttal.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    LUTHER PIERCE et al. v. STATE.
    No. A-5552.
    Opinion Filed Aug. 21, 1926.
    (248 Pac. 654.)

      D. E. Ashmore and A. W. Anderson, for plaintiffs in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the superior court of Okmulgee county on a charge of larceny of domestic animals, and sentenced to serve a term of four years in the state penitentiary. The facts shown by the record are that in May, 1924, one Harcourt, at Spelter City, had a milk cow stolen from his lot. The next morning he and some neighbors tracked the cow to defendants’ premises. About 5 o’clock on the morning of the same day the defendants, who were in the butcher business, but the carcass of a beef in a cold storage plant. Some of Harcourt’s neighbors, with a deputy sheriff, found the hide of the stolen cow in a towsack hidden in a creek near the home of defendants. On the afternoon of that day Norman Anderson, a 16 year old boy who worked for defendants, was seen burning the offal of a slain animal on the premises of defendants. When questioned, this boy at first denied any knowledge of the butchering of any animal, but later admitted his connection with it, and at the preliminary hearing testified that about 10 o’clock on the night the cow was stolen he assisted defendants in butchering the cow and in concealing the hide. Defendants denied any knowledge of the stolen cow, or the hide found near their premises. At the trial the witness Norman Anderson was not found, and a transcript of his evidence at the preliminary was used.

The only assignment of error argued is that the evidence of Norman Anderson taken at the preliminary was improperly admitted. It is contended that there was no sufficient showing that the evidence of this witness was taken at the preliminary, or that the transcript was in fact his testimony, or that the transcript had been filed with the court clerk, or that such transcript was correct. The admissibility of a transcript of evidence taken at a preliminary has been considered by this court in the following and other cases: Wadsworth v. State, 9 Okla. Cr. 4, 130 P. 808; Edwards v. State, 9 Okla. Cr. 306, 131 P. 956, 44 L. R. A. (N. S.) 701; Stealer v. State, 10 Okla. Cr. 460, 138 P. 395; Warren v. State, 6 Okla. Cr. 1, 115 P. 812, 34 L. R. A. (N. S.) 1121; Jeffries v State, 13 Okla. Cr. 146, 162 P. 1137; Fitzsimmons v. State, 14 Okla. Cr. 80, 166 P. 453; Baldock v. State, 16 Okla. Cr. 203, 182 P. 265.

From these various cases it may be said that the rule is well settled that, where a witness has testified at a former trial, or at a preliminary hearing, and the defendant had an opportunity to cross-examine him, the evidence so given may be read as the evidence of the witness at a subsequent trial where the witness is dead, is out of the jurisdiction of the court, or his whereabouts is unknown, or his presence with due diligence cannot be obtained, or where he is sick and unable to testify.

It is not necessary that the transcript should be filed in the trial court (Baldock v. State, supra), and it is probably not necessary in every case that the evidence of the witness should have been taken in shorthand or transcribed (Wadsworth v. State, supra). In this case the objection to the transcript seems to be directed principally to the contention that there was not sufficient preliminary proof of the absence of the witness. The correctness of the transcript appears not to have been questioned in the lower court, and is not questioned here.

Without reciting in detail the evidence of the various witnesses as to the effort made to find the witness Anderson, we think there is sufficient showing that the witness had left the state of Oklahoma, and his presence could not be had.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.