text:
    JAMES SPESS v. STATE.
    No. A-3617.
    Opinion Filed Oct. 31, 1921.
    (201 Pac. 395.)
    (Syllabus.)
    1. Homicide — Murder—Sufficiency of Evidence. For evidence , examined and held sufficient to sustain a conviction for murder, see body, of opinion.
    2. Trial — Sufficiency of Instruction on Alibi. An instruction on the defense of alibi, not fundamentally erroneous, will not be held to be reversible error because inartificially drawn.
    Appeal from District Court, Pawnee County; Owen Owen, Judge.
    James Spess was convicted of murder, and appeals.
    Affirmed.
    Thompson & Smith, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and E. L. Fulton; Asst. Atty. Gen., for the State.
   MATSON, J.

James Spess was charged by information and convicted of the crime of murder in the district court of Pawnee county, and sentenced to life imprisonment.

The evidence on behalf of the state is to the effect that on the afternoon of the 12th day of January, 1921, three men held up and robbed the bank in the town of Tarlton. They came into town on horseback, and left their horses about a quarter of a mile from the bank in a creek bottom. Two of the men went into the bank, and the third was .stationed at a point near the Frisco railroad tracks between the bank and the place where the horses were left. One of the two that went into the bank was armed with a pistol, the other with a rifle.

Several persons were in the bank at the time, some officers and employees of the bank, others, enstomers. The robbers at the point of their weapons compelled these parties to fa.ce the wall with their hands raised above their heads and also compelled the bankers to open the cash drawer and safe. After taking several hundred dollars of the bank’s money (mostly in silver) and loading it into a sack, the bankers and others there were compelled to carry the sack to the place where the horses had been left. In the meantime one person, who was in a separate room of the bank, realizing what was taking place, escaped unnoticed through a rear door and organized a posse of citizens to apprehend the robbers, if possible. While the robbers and those who had been compelled to accompany them were at the horses, this posse appeared, but the robbers had protected themselves by using the others as a line between them and the crowd that followed.

While the robbers were fixing the money on the horses, S. R. Moore, deputy sheriff, stepped out into an open pláce in a field about 125 yards away and was shot and killéd by a shot fired from a rifle in the hands of Spess.

None of the robbers were masked. The entire transaction covered a considerable space of time — approximately 30 minutes — and during that time the parties who were compelled to accompany the robbers had opportunity to and did observe them closely. These parties unanimously identify Spess as one of the men who entered the bank and the one who fired the shot that killed Moore.

In addition there is also the testimony of an alleged accomplice, Imhofe. This witness detailed the plan of the robbery, and testified Spess was one of the perpetrators thereof, and it is unnecessary to enlarge upon his testimony, except to state that it is corroborated by other circumstances and facts pther than the evidence of the witnesses who positively identified Spess.

The defense interposed was an alibi, and numerous witnesses were introduced in behalf of defendant in an attempt to convince the jury that the defendant Spess was not and could not have been at the scene of the crime at the time of its commission.

The record is very voluminous, containing about 700 pages of] typewritten, matter, and it .would consume too much space to give a synopsis of each witness’ testimony. The evidence is in direct conflict upon the question of the identity of the defendant and his presence at the commission of the robbery and murder of Moore.

The contention is advanced that this evidence is insufficient to support a conviction; that the great weight of the evidence, the most credible evidence supports the truthfulness of the alibi. All these witnesses were before the jury and the trial court. The jury after due consideration and deliberation decided this issue of fact adversely to the defendant. The trial court having seen these witness, noted their demeanor, etc., was in a much better position to judge of the correctness of the jury’s decision than is this court.

While the evidence is conflicting and apparently irreconcilable, it was the exclusive province of the jury to determine whom of the witnesses to believe and whom to disbelieve or whose testimony to disregard.

The verdict was evidently not the result of passion or prejudice, as this trial took place over four years after the commission of the .crime; neither do we think the verdict unfounded in fact — rthis being the second conviction and appeal of this defendant to this court — the first trial resulting in a conviction of murder with life imprisonment. See Spess v. State, 13 Okla. Cr. 277, 164 Pac. 131. The evidence - of the state is amply sufficient to support the conviction.

It is also urged that the trial court committed reversible error in giving the following instruction on the defense of alibi:

“You are instructed that the defendant has interposed in this case as one of his defenses what is known in law as an alibi, that is, that the defendant was at another and different place at the time of the commission of the crime alleged and charged in the information herein. The law is that such a defense is proper and legitimate, and the jury should consider all of the evidence bearing upon this point, whether introduced by the state or the defendant, and if after a careful consideration of all the evidence, you are convinced beyond a reasonable doubt that the defendant was not at another and different place at the time of the commission of the crime charged in the information, then the defense known in law as an alibi has failed, and you should then consider the ease the same as if the defendant had never interposed this defense; but, if you entertain a reasonable doubt, aftér-a careful consideration of all the evidence in the case, as to whether the defendant was in such other and different place at the time the crime was committed, then and in that event you should resolve that doubt in favor of the defendant, and should acquit him.”

Counsel for defendant has filed a lengthy brief, citing numerous authorities which are contended as being in point that the foregoing instruction is prejudicial, in that it places too great a burden on defendant to establish the defense of alibi, and that the instruction is evasive and confusive. No authority is cited containing a criticism of an instruction on alibi couched in the language employed by the trial court in the instant ease.

In the case of Thompson v. State, 6 Okla. Cr. 50, 117 Pac. 216, this court, at page 66 of the official report (117 Pac. 223) set out a form of approved instruction on the defense of alibi. Here the trial court followed the form of instruction approved in the Thompson Case with certain additional matter which, in our opinion does not in any particular require the defendant to establish his alibi beyond a reasonable doubt or even by a preponderance of the evidence. The instruction given, when considered as a whole, requires the jury to acquit if a reasonable doubt is entertained that defendant was in another and different place at the time the crime was committed. The instruction given is not fundamentally erroneous, and in the absence of a request for a more definite instruction on the subject we think it was sufficient.

The defense of alibi is not an involved one. The adult with ordinary intelligence and limited experience is fully able to understand and comprehend that if a person (whose presence at the scene of the crime is relied upon for conviction) was at another, different and distinct place at that time, it was a physical, as well as legal, impossibility for such person to have committed the offense. Alibi is not an extrinsic defense. It amounts to nothing more than a mere traverse of the material averments of the information or indictment. It is introduced for the purpose of creating a reasonable doubt of guilt, and we think its nature is fairly understood by the average juror. Apparently it has been more of a nightmare to the courts than to the juries. As this defense involves a clear-cut issue of fact, practical men (such as compose a trial jury) can more readily comprehend and! truthfully decide the issue than can the courts, trained in technicalities, establish uniform principles of law applicable to such defense in every jurisdiction. It may be seriously doubted if any instruction on alibi should be given beyond the general instructions “that the defendant is presumed to be in-noeent,” and “that the burden rests upon the state to prove his guilt beyond a reasonable doubt.” The views herein expressed result from a consideration of the numerous and conflicting decisions construing instructions on alibi and the varied reasons given for such holdings.

In some jurisdictions the burden is upon the defendant to establish this defense “to the satisfaction of the jury,” in others “by a preponderance of the evidence,” in others “by evidence tending to raise a reasonable doubt of guilt.” Why these various holdings? Certainly such confusion could never have arisen had no specific instruction on alibi been given. In all these jurisdictions the state is required to establish guilt “beyond a reasonable doubt”; if the burden never shifts to the defendant to establish his innocence, then it is apparent that any evidence (be it that of alibi or weakness of the state’s case) which creates a reasonable doubt is sufficient to authorize an acquittal.

The general instruction on “reasonable doubt” ought to be sufficient to cover a simple issue of fact such as an alibi, any other instruction on the subject, if correctly stated in this jurisdiction, would be nothing more in its final analysis than stating the same burden in different language.

While we cannot give our unqualified approval to the form in which the foregoing instruction was given, it cannot be said that the instruction as a whole was prejudicial, or that it shifted the burden from the state to establish guilt “beyond a reasonable doubt.”

The judgment of the trial court is affirmed.

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


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    JOHNNIE COGLE v. STATE.
    No. A-3751.
    Opinion Filed Nov. 2, 1921.
    (201 Pac. 530.)
    (Syllabus.)
    Larceny — Theft of Car — Sufficiency of Evidence. In a prosecution for the theft of an automobile, the evidence examined, and held sufficient to sustain the conviction, and that no reversible error was committed on the trial.
    Appeal from District Court, Tulsa County; Redmond S. Cole, Judge.
    Johnnie Cogle was convicted of grand larceny, and appeals.
    Affirmed.
    Crossland & Smith, for plaintiff in error.
    The Attorney General and E. L. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment rendered upon the verdict of a jury finding appellant guilty of the crime of grand larceny and fixing his punishment at imprisonment in the penitentiary for the term of five years. The information filed June 25, 1919, jointly charged appellant, Johnnie Cogle, and one Millard Gentry with the theft of one Cadillac automobile, of the value of $3,600, the personal property of A. L. Farmer. When the case was called for trial on September 30, 1919, appellant asked and was granted a severance. Thereupon the jury was impaneled to try the case, which trial resulted in a verdict as above stated.

On October 10, 1919, judgment was rendered. The appeal was taken by filing in this court on April 10, 1920, a petition in error with case-made. No brief has been filed, when the case was called for final submission it was submitted on the record, and we have nothing before us but the petition in error and case-made. The errors assigned are that the verdict is contrary to the law and the evidence, and that the court erred In its rulings in the admission and the rejection of evidence to the prejudice of the defendant. We have read and examined the entire record in this case, and we do not find any objections made or exceptions saved to the admission or rejection of testimony. We have also examined the information and instructions of the court, and the judgment, and we have discovered no error which will warrant a reversal of the judgment, and we find that the evidence sustains the verdict and judgment of conviction, and our conclusion is that this appeal is without merit.

The judgment of the district court of Tulsa county is therefore affirmed.

MATSON and BESSEY, JJ., concur,


text:
    CHARLEY WHITE v. STATE.
    No. A-3767.
    Opinion Filed Nov. 3, 1921.
    (210 Pac. 294.)
    (Syllabus.)
    Intoxicating Liquors — Unlawful Possession — Sufficiency of Evidence. In a prosecution for possession of intoxicating liquors with intent to sell the same, the evidence considered and held sufficient to sustain the conviction, and that no reversible error was committed on the trial.
    Appeal from Superior Court, Muskogee County; Guy F. Nelson, Judge.
    Charley White was convicted of a violation of the prohibitory liquor law, and appeals.
    Affirmed.
    Ed K. Brook, for plaintiff in error.
    The Attorney General and E. L. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment rendered upon a verdict of a jury finding the defendant guilty as charged in the information and fixing his punishment at imprisonment in the county jail for 90 days and a fine of $250.

Appellant is. not represented in this court by counsel, but we have read and examined the entire record because the errors assigned question the sufficiency of the evidence to sustain the verdict. The information charged that appellant did have the possession of six gallons of whisky with the unlawful intent to sell the same. The testimony of seven witnesses on the part of the state shows that in serving a search warrant on appellant’s premises on the date alleged, a pint of whisky was found in the house and a five gallon jug nearly full of whisky, two quart bottles of whisky, and also two quart bottles of alcohol were found concealed in the yard.

Testifying in Ms own behalf appellant stated that the whisky found by the officers did not belong to him; that three or four boys roomed at his place.

On cross-examination he, stated that he had been convicted of introducing whisky in the federal court and served a term in the Leavenworth federal penitentiary.

We see no reason to doubt that this conviction was justified by the evidence, and finding no error prejudicial to the defendant the judgment is affirmed.

MATSON and BESSEY, JJ., concur.


text:
    MILLARD GENTRY v. STATE.
    No. A-3753.
    Opinion Filed Nov. 3, 1921.
    (201 Pac. 530.)
    (Syllabus.)
    Larceny — Theft of Car — Sufficiency of Evidence. In a prosecution for the theft of an automobile, the evidence examined, and held sufficient to sustain the conviction, and that no reversible error was committed '.on the trial.
    Appeal from District Court, Tulsa County; Redmond S. Cole, Judge.
    Millard Gentry, convicted of grand larceny, appeals.
    Affirmed.

      Geo. T. Bonstein, W. T. Hunt and A. C. Hunt, for plaintiff in error.
    The Attorney General and E. L. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Millard Gentry, was Jried, convicted, and sentenced to serve a term of five years’ imprisonment in the penitentiary upon an information jointly charging him and one Johnnie Cogle with the theft of a Cadillac automobile of the value of $3,600, the personal property of A. L. Farmer. On October 13, 1919, judgment was rendered. The appeal was taken by filing in this court on April 10, 1920, a petition in error with case-made.

No brief,has been filed, and no appearance made on behalf of plaintiff in error in this court. When the - case was called for final submission it was submitted on. the record, and we have- nothing before us but the petition in error and ease-made.

The errors assigned are that the verdict is contrary to law and to the evidence, and that the court erred in admitting certain testimony over the objection of the defendant, and erred in refusing to admit certain testimony offered by the defendant. The case is /a companion case to that of Cogle v. State, 19 Okla. Cr. 100, 201 Pac. 530. The errors assigned based upon the exceptions taken to rulings of the court upon evidence offered and rejected are without merit, and we find that the evidence sustains the verdict and judgment of conviction.

Having discovered no error which will warrant a reversal, the judgment of the district court of Tulsa county is affirmed.

MATSON and BESSEY, JJ., concur.


author: PER CURIAM.

text:
    T. T. GILLENTINE et al. v. STATE.

      No. A-4046.
    Opinion Filed Nov. 7, 1921.
    (201 Pac. 531.)
    Appeal from County Court, Cotton County; J. C. Norman* Judge.
    T. T. Gillentine and N. B. Warren were convicted of a violation of the prohibitory liquor law, and they appeal.
    Appeal dismissed.
    Alonzo Turner, for plaintiffs in error.
    The Attorney General and E. L. Pulton, Asst. Atty. Gen.* for the State.
   PER CURIAM.

The plaintiffs in error were jointly charged, tried, and convicted for transporting intoxicating liquor from a point unknown to a certain point in Cotton county, and the punishment of each assessed at a fine of $250 and 30 days in jail. Prom the judgments rendered on the verdict* they appealed.

The plaintiff in error N. B. Warren, by his counsel of record, has filed a motion to dismiss the appeal. Said motion is sustained, and the appeal herein as to the plaintiff in error Warren is dismissed.

It also appears that plaintiff in error T. T. Gillentine has become a fugitive from justice pending his appeal. • It has been uniformly held that this court will not consider an appeal unless the plaintiff in error is where he can be made to respond to any judgment or order which may be rendered or entered in the case, and where it appears that plaintiff in error has become a fugitive from justice pending the determination of his appeal, the appeal will be dismissed. It follows that plaintiff in error T. T. Gillentine has waived the right to have his appeal in this case considered and determined.

The appeal as to said plaintiff in error Gillentine is therefore dismissed. Mandate forthwith.


author: BESSEY, J.

text:
    Ex parte BUD BALLEW.
    No. A-2767.
    Opinion Filed Nov. 7, 1921.
    (201 Pac. 525.)
    (Syllabus.)
    1. Contempt — Power of Judge of Court of Inquiry to Purrish for •Contempt. A judge of a-so-called court of inquiry to investigate violations of the prohibitory law, under the provisions of Session Laws of 1911, p. 159, has only such powers to punish for contempt as are specifically named in the act.

      2. Contempt1 — Assault on Judge on Street not Contempt- Section 23'of the Bill of Rights directs the Legislature to pass laws defining contempts. Sections 2277 and 2279, Rev. Laws 1910, define both direct and indirect contempts. The act complained of here dtoes not come within either definition. The affirmative statutory definition of the several acts constituting contempt, made pursuant to the terms of the Constitution, implies a negative as to all other acts [of a contemptuous nature not mentioned in the statute.
    Bud Ballew was imprisoned for an alleged direct criminal •contempt of court by assaulting the person of tbe district judge, and lie makes an original application for habeas corpus.
    Writ allowed, and petitioner ordered discharged.
    Sigler & Howard, Pruiett and Sniggs and R. F. Turner, for petitioner.
    S. P. Preeling, Atty. Gen., and Smith C. Matson and R. McMillan, Asst. Atty. Gen., for respondent.
    Clinton 0. Bunn and Thomas Norman, amici curiae.
   BESSEY, J.

The petitioner, Bud Ballew, says he is illegally restrained of his liberty by the sheriff of Carter county, Okla., pursuant to an order or judgment of the district judge •of said county, for an alleged direct criminal contempt of court, by assaulting the person of W. F. Freeman, district judge, on May 20, 1916, on a public street in the city of Ardmore. Portions of the record tend to show that this assault was provoked by and grew out of certain remarks made by the district judge in the course of a proceeding to inquire into any violations of the prohibitory laws, under section 3611, R. L. 1910, as" amended by Session Laws of 1911, p. 159, indicating that the petitioner was in collusion with known violators of the prohibitory law. Other portions of the record seem to indicate that the petitioner took offense at remarks made some time previous by the judge, in conference with the county judge, county attorney, sheriff, and county commissioners, concerning violations of the prohibitory law, in which the judge stated that the petitioner seemed to be in collusion with violators of the prohibitory law. The record also discloses that the assault may have been brought about in whole or in part by the issuance and service of a temporary injunction abating a nuisance on premises in which the petitioner may have had an interest.

It is conceded that the petitioner at this time was a deputy sheriff of Carter county. Portions of the testimony taken at the several inquisition hearings disclosed that a number of witnesses, upon information received from others, had obtained quantities of whisky, taken from and purchased in petitioner’s barn in Ardmore in the nighttime. Other testimony tended to show that the petitioner had, or might have had, an interest in a certain roadhouse some distance from Ardmore where intoxicating liquor was being sold. On May 19, 1916,, upon the information obtained from witnesses at these inquiry proceedings, the county attorney instituted injunction proceedings against Cyrus Pyatt for operating a roadhouse near-Ardmore where intoxicating liquors were sold and in which the-petitioner was said to have an interest, and the eourt on that day granted the injunction. Late in the evening of May 20th. the petitioner, in company with Cyrus Pyatt, insultingly accosted the judge on the streets of Ardmore, and, calling the latter’s attention to the objectionable remarks made at the hearing, proceeded to administer a physical assault upon the-person of the judge.

' One month later the judge, assuming to act as the district court, made the following order:

“Attachment for Contempt.
“In the District Court of Carter County, Oklahoma.
* ‘ State of Oklahoma, Carter County — ss.:
“To the Sheriff of Carter County — Greeting:
“You are hereby commanded to attach the body of D. M. (Bud) Ballew so that you may have him, the said D. M. Bal-lew, instanter before the judge of the district court of Carter county, Okla., now in session, to answer for a contempt of said court, said contempt being an assault made by the said D. M. Ballew upon the person of the judge of this court, upon Main street in the city of Ardmore, Okla., on the 20th day of May, 1916, and have you then and there this writ.
“Witness my hand this 20th day of June, 1916.
“W. F. Freeman, Judge.”

The sheriff executed this order the same day and brought the petitioner before the district judge, where the following proceedings were had:

“The Court: This, Mr. Ballew, states the proceedings had in the court of inquiry in so far as the same concerns you in any way. The court now informs you of your having made an assault on the district judge of this district on Saturday, the 20th day of May, and now pauses to give you an opportunity to say anything you wish to perjure (purge) yourself of this offense. Have you anything to say?
“The Sheriff: I want to say this. Mr. Ballew was in town this morning, and he had started home. The warrant was only given me a while ago, and I phoned and had him cut off, and he came back, and I brought him up here on this warrant or attachment. He asked me coming up here if there was any bond that could be arranged, if you will set the bond for him ; he hasn’t had an opportunity to take it up with counsel.
"The Court: This is a direct contempt. In an indirect contempt you are required to issue summons, file an answer,, etc. This is what is known as a direct contempt and does not depend upon the testimony of anybody else for its foundation. The law only requires the court to give the defendant an opportunity to he heard why he should not be punished.
"Mr. Ballew: Judge, I haven’t had time to make any arrangements to employ counsel. I would like to have time., I would like to be heard, that is all. Of course, I am not prepared to argue it with you myself, I couldn’t do that.
"The Court: As I understand this proceeding, this is a direct contempt. It doesn’t depend upon proof; it is done in the presence of the court; it would be the statement of the court against the defendant and any witnesses he might have. It is my duty to proceed with the ease as it is. I have given you an opportunity to be heard. Have you nothing to say for yourself?
"Mr. Ballew: That is all.
"The Court: The court will then proceed to pronounce its judgment. In doing so the court has the following to say :• Your assault upon the district judge of this district was made in the afternoon of the 20th day of May. The court has waited'this full month of time in order that the passion of resentment might fully abate, and that this court should reach a time when it could sit free from all passion and prejudice and sit in cool, dispassionate judgment upon this case. The court feels itself to be in that dispassionate frame of mind and has this to say in pronouncing judgment in this case:
"Your provoked assault upon the district judge of this, county was a brutal attack upon the dignity of this court, and a bold defiance of the authority of the people, acting through this court. To arrive at a just measure of the punishment which should be inflicted upon you we must take into consideration all those condition^ and circumstances which may have moved you to commit this unprovoked assault. You were a deputy sheriff, under oath and bond, and as such it was your imperative duty to lend every assistance to this court in its effort to abate that spirit of high-handed lawlessness that was rampant among certain elements of the people, which as an officer it was your duty to put down. Instead of this assistance which the court had a right to expect of you for the enforcement of the law of this county, abundant evidence was taken in the court of inquiry which shows that you as an officer at least had a guilty knowledge of these flagrant violations of the law.
“In view of all the circumstances in this ease, it is the opinion of the court that you be adjudged guilty of a direct contempt, and that you be punished as for a direct contempt.
“It is therefore ordered, adjudged, and decreed by the court that you, D. M. Ballew, be confined in the county jail for a period of 60 days and that you pay a fine of $200.
“It is further ordered that D. M. Ballew be remanded to the custody of the sheriff of Carter county, Okla., and that the judgment of this court in this behalf be executed by the said sheriff.”

It appears from the record that the district judge had previously prepared a judgment record in writing and delivered it to the clerk, with the exception that the period of imprisonment and the amount of the fine were left blank; that after the rendition of the judgment or order the blanks were filled in to conform to the order or judgment pronounced.

The provisions of our statutes relative to inquisitorial proceedings to investigate violations of the prohibitory laws,' out of which this controversy arose, appear in Session Laws 1911, p. 159, as follows:

“It shall be the duty of any judge of any court of record, upon the written request of the county attorney, or upon the sworn complaint of any other person, to issue subpoenas for any witness that may have knowledge of the violations of any provision of this act, and such judge shall have the power and it shall be his duty to compel such witness to appear before him and give testimony and produce any books or papers that will aid or assist in the prosecution of such investigation and inquiry into any violation of the provisions of this act; but no person shall be prosecuted or subjected to any penalty or forfeiture for, or on account of, any transaction, matter or thing concerning which he may' so testify or produce evidence. The testimony of each witness shall be reduced to writing by said judge, or by some person designated by him, and the same shall be signed by such' witness. No person shall disclose any evidence so taken, nor disclose the name of any person so subpoenaed and examined, except when lawfully required to testify as a witness in relation thereto; and the unlawful disclosure, by any person, of any such evidence, or of any matter or thing concerning such examination shall be a misdemeanor. Should; said judge be unable to hold and conduct such inquiry and investigation for want of time, he may appoint a special judge' who shall possess the qualifications and have the power in respect to such' matters as a judge of the county court. Should any witness refuse to appear before such judge, in obedience to such subpoena, or refuse to produce any books or papers when lawfully required to do so, or having appeared, shall refuse to answer any proper question, or sign his testimony when so required, it shall be the duty of such judge to commit such person to the county jail until he shall consent to obey such order and command of said judge in the premises, and in addition thereto such person may be punished, as for contempt of court, in accordance with the Constitution and laws of this state. The special judge appointed under the provisions of this section shall take the oath prescribed by the Constitution for state officers, and shall receive the compensation allowed by law for notaries public for taking depositions, and be paid by the county in which such proceeding is had, upon the order of the judge who appointed him. When it is shown upon the taking of such testimony that there is probable cause to believe that any person has violated any provision of this act, the county attorney shall immediately prepare an information charging such person with such offense and file such information in some court of competent jurisdiction.

Section 25, Bill of Rights, is as follows:

“The Legislature shall pass laws defining contempts and regulating the proceedings and punishment in matters of contempt: Provided, that any person accused of violating or disobeying, when not in the presence or hearing of the court, or judge sitting as such, any order of injunction, or restraint, made or entered by any court or judge of the state shall, before penalty or punishment is imposed, be entitled to a trial by jury as to the guilt or innocence of the accused. In no case shall a penalty or punishment be imposed for contempt, until an opportunity to be heard is given. ’ ’

Section 2277, E. L. 1910, is as follows:

“Contempts of courts shall be divided into direct and indirect contempts. Direct contempts shall consist of disorderly or insolent behavior committed during the session of the court and in its immediate view and presence, and of the unlawful and willful refusal of any person to be sworn as a. witness, and the refusal to answer any legal or proper question; and any breach of the peace, noise or disturbance so near to it as to interrupt its proceedings, shall be deemed direct contempt of court and may be summarily punished as hereinafter provided for. Indirect contempts of court shall consist of willful disobedience of any' process or order lawfully issued or made by court; resistance willfully offered by any person to the execution of a lawful order or process of a court. ’ ’

Section 2279, Id., is as follows:

“In all cases of indirect contempt the party charged with contempt shall be notified in writing 'of the accusation and have a reasonable time for defense; and the party so charged shall, upon demand, have a trial by jury.”

Ordinarily none but courts of record and of general jurisdiction have the power to punish persons for contempt of court. Where the contempt is direct, this is usually done in a summary manner, without notice or process. In cases of indirect contempt notice and hearing must be had, and . in our state one accused of indirect contempt is entitled to a trial by jury.

Now, if the contemptuous assault complained of here grew out of and took place as a consequence of the injunction proceedings, the judge then sitting as a court of record, the assault would be contempt of court, either direct or indirect, provided it comes within the purview of the Constitution and statutes on the subject of contempt. The Constitution, section 25 of the Bill of Rights, quoted above, directs the Legislature to pass laws defining contempt and to regulate the proceedings and punishment in matters of contempt. Our statutes, sections 2277 and 2279, quoted above, have defined both direct and indirect contempt. It will be seen that the charge here of an assault on the judge at the entrance to a barber shop on the street of Ardmore, after court hours, does not come within our statutory definition of direct contempt as being “insolent behavior committed during the session of the court and in its immediate view and presence,” nor is it “any breach of the peace, noise or disturbance so near to it as to interrupt its proceedings.” Neither was the assault complained of an indirect contempt 'within the definition of the statute, as being a “willful disobedience of any process or order lawfully issued or made by court,” or “resistance willfully, offered by any person to the execution of a lawful order or process of court.” The assault complained of was none of the things constituting a contempt, as defined by statute. The people of this state, by section 25 of the Bill of Rights, directed the Legislature to define contempts, and a statute defining direct and indirect contempts has since been adopted, specifically enumerating what acts shall constitute contempt. Applying the rule of statutory construction, “Expressio unius est exelusio alterius,” the affirmative description and enumeration of the acts constituting contempt implies a negative as to the exercise of such power in other cases not enumerated. 25 R. C. L. 982; 36 Cyc. 112.

Ordinarily, where the judge, as in this case, is without power to punish for contempt of court, the penalties preserib-ed for violation of the Penal Code may be invoked. If the acts and things designated by the statutes as contempt are insufficient to preserve the dignity of the court and properly safeguard its functions, it is for the Legislature to enlarge the scope of the statute. No matter how much the appellate courts may wish to have the statutes changed in this regard, it is for the lawmaking branch of the government to make such change.

If the assault' complained of grew out of and took place as a consequence of the remarks of the judge at the informal conference of the county judge, county attorney, and county commissioners, then in any event the offense was nothing more than an assault and battery.

If the contemptuous assault grew out of and took place as a consequence of the remarks made by the judge at one of the sessions of the court of inquiry, which was in no sense a court of record or of general jurisdiction, the judge presiding over such proceeding would have only such right to punish for contempt as is provided in the act authorizing such special proceeding. The conclusion reached that such a proceeding does not constitute a court of record is predicated upon the fact that the act itself nowhere calls it a court, and provides for none of the attributes of a court of record. It does not authorize the judge to render judgment in any matter or to make any order or finding, either of law or of fact, affecting any case; there can be no action pending in such a proceeding; no provision is made for a clerk as is usual in courts of record. The duties devolving upon the judge in these special proceedings are for the most part ministerial, and not judicial. The Legislature might have delegated this power to the mayor of the city, to some notary public, or to some other officer. The fact that this power was delegated to a judge does not necessarily make him a court, of record. Burfenning v. R. I. & P. Ry., 163 U. S. 321, 16 Sup. Ct. 1018, 41 L. Ed. 175; State v. Huser, 76 Okla. 130, 184 Pac. 113.

The power to punish for contempt is predicated upon the fact that the accused has in some manner interfered with judicial functions. The absence of judicial authority to act in the principal action or proceeding makes an order of a judge punishing for contempt in that act a nullity. Ex parte Rowland, 104 U. S. 604, 26 L. Ed. 861; Ex parte Gudenoge, 2 Okla. Cr. 121, 100 Pac. 39.

Having reached the conclusion that, under any theory of this case, the judge under the circumstances was without authority to punish as for contempt, it will be unnecessary to determine whether the accused was deprived of the right of a trial by jury oP whether the alleged contempt was waived by a failure to punish the offender at or near the time of the commission of the offense.

For the reasons stated in the opinion, the writ is allowed, and the petitioner ordered discharged.

DOYLE, P. J., concurs.

MATSON, J., disqualified, not participating.


text:
    BEN CANTY v. STATE.
    No. A-3755.
    Opinion Filed Nov. 10, 1921.
    (201 Pac. 531.)
    (Syllabus.)
    1. Homicide — First Degree Manslaughter — Sufficiency of Evidence. The evidence upon the trial of an information for murder considered and conviction of manslaughter in the first degree affirmed.
    2. Homicide — Dying Declaration — Admissibility for Court. It is the province of the court to determine, in the first instance, the admissibility of declarations offered in evidence as dying declarations.
    3. Same — Belief in Impending Death. Where it is shown that deceased had been advised by the attending physician, and that the advice was such as to induce in his mind a belief that recovery was impossible and death impending, a declaration, made by deceased after he had been so advised, is admissible as a dying declaration.

      Appeal from District Court, Love County; Thos. W. Champion, Judge.
    Ben Canty was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.
    Cameron & Walden and Ben F. Williams, for plaintiff in error.
    The Attorney General and E. L. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Ben Canty, was charged in an information filed in the district court of Love county with murder, for that he had shot and killed Walter Tate, and upon a trial he was convicted of manslaughter in'the first degree and his punishment assessed at seven years in the penitentiary. From the judgment rendered upon such conviction he has appealed, but there has been no appearance in his behalf on his appeal. When the case was called for final submission it was submitted on the record, and we have nothing before us but the petition in error and case-made.

The errors assigned are based upon exceptions taken to the rulings of the court upon the admission of evidence, and exceptions taken to an instruction given and refusing to give instructions requested.

The facts attending this homicide, briefly stated, are as follows:

On Sunday night, September 17th, the deceased, Walter Tate, a deputy sheriff of Love county, accompanied by Scott Knight, Andy Rambo and Luther Simmons, went to the home of Hugh Allison, near the town of Oswalt for the purpose of arresting the defendant,'Ben Canty, on a bench warrant issued on an information filed in the district court of Love county, charging Ben Canty with the crime of obtaining money under false pretenses. The party arrived at Allison’s house about 10 o’clock. The deceased hallooed. Allison came to the door and asked what was wanted. Deceased said, “I am looking for Ben Canty; is he here?” Allison answered, “I do not know; he was here a while ago. ’ ’ The deceased told Allison to light a lamp. When the lamp was lit deceased walked up and said, “Get up, Ben.” Immediately two shots were fired. Deceased came out of the house, and said, “He shot me.”

Charley Tucker, a witness for the state, testified that—

“I met the defendant, Ben Canty, about three weeks before the shootin'g near Oswalt, and he said Walter Tate wanted to arrest him, and if he attempted to arrest him he would run if he had a chance, and if he didn’t he would fight.”

Frank Smith, sheriff of Love county, testified:

“I arrested the defendant Canty, at Ardmore the next day after the shooting, I put him in jail at Marietta, and ón November 16th, about the time his case was to be called for trial, he escaped. The next time I saw him was near Pond Creek, Ark. He ran into the cane brake, and I could not find him. About the 5th of April, 1919, I arrested the defendant near the Cim-arron river in Creek county.”

Dr. Hardy testified:

“Walter Tate'was a patient in my sanitarium in Ardmore. He had a gunshot wound in the left side between the tenth and eleventh ribs, about 3% inches from the median line, and came out 1% inches from the spinal column, upward 2 inches from its entrance. It was necessarily fatal. He died the third day. About 10 or 12 hours before his death he made a statement; I had advised him that he could not live.”

G. W. Whitfield testified:

“I was pastor of the Baptist church at Oswalt. I first saw Walter Tate that night lying on the porch at Grady Poole’s house. I was with him from then, on with the exception of one night and a few hours the next day, until about an hour before he died. He made a statement in the morning of the day he died. Before making this statement he said he was conscious of impending death. I asked him if he was prepared to die; he said he was afraid it was too late. He was thoroughly conscious of his condition when he made the statement. ’ ’

Thereupon, against the defendant’s objections, the court admitted the statement, and it was read to the jury as follows :

“Ardmore, Okla., Sept. 20, 1917. My name is Walter Tate. I am 34 years of age. I had orders from Frank Smith to get Ben Canty, and I went to Hughey Allison’s house, where Ben was, at about 10 o’clock at night on the 17th day of September, 1917, at Hughéy Allison’s house, where Ben was, at about 10 o’clock get up and light the lamp, that I had come after Ben Canty, and Hughey Allison went to the kitchen door and started to open it, and I told him to come to the front door where I was and let me in, and Hughey Allison said that he could not open it because-he could not find any matches, and I said ‘Open up that door,’ and then he opened the front door, and I asked him if Ben Canty was in there, and he said that he was a few minutes ago, but he didn’t know where he was now. I looked in the window as Hughey Allison struck the match, and I saw Ben Canty hunkered down at the foot of the bed, and about that time Hughey Allison opened the door and I walked in the house, and stepped across the pallet and told Ben Canty to come on, and he cut down on me with his gun, and shot me in the belly, and then I shot back at him, and then I run out of the house, and went up to the road, and I called for Hughey Allison to bring me some water, but I did not see him or Ben Canty any more that night. This is the way the shooting occurred. I, Walter Tate, being in my right mind, and being informed by Dr. W. Hardy that I cannot recover from the gunshot, and realizing that I am about to die, make this sta tement as to how Ben Canty shot me.”

For the defense, Hugh Allison, codefendant, testified:

“I was living on my farm, 18 or 20 miles northwest from Marietta, with my wife and four children. My home was ■ a two room box house. I had known Walter Tate about 18 years. He lived 2y2 miles west of me. About 5 o’clock that evening Ben Canty and his wife came to my house. They were walking and leading a pony with some clothes and a gun tied on the saddle. His wife is my niece. He asked for a job, and I told him I might give him a few days’ work picking cotton. We retired between 8 and 9 o’clock. I had gone to sleep and I heard some one calling. 1 went to the door, and discovered it was Walter, Tate. He told me to light the lamp and open the door, and I did, and he came in. He had a sixshooter in his hand, and took about three steps and fired. Both shots pounded like one gun. The shots were so close together I could not tell who fired first.”
Mrs. Hugh Allison testified that her husband opened the door and said, “Come in, Walter,” and Walter Tate stepped in and said, “Ben.” Then both shots were fired.

Mrs. Anna Canty testified:

“I am the wife of Ben Canty. We left my brother’s that afternoon and went through a pasture a part of the way, then down the public road to Hugh Allison’s. When I woke up the first I saw was Walter Tate, who had come in, and when I first saw him he fired at my husband.”

As a witness in his own behalf, Ben Canty testified:

“I'am 26 years old. I have lived in Love county about 20 years; lived in the same neighborhood with Walter Tate. I bought the gun from my brother, Will, a couple of months before the shooting; I was asleep, and the first thing I remember seeing after I woke up was a man coming through the door with a sixshooter in his hand. I grabbed my gun and ran around between the bedsteads and sat down. He said, ‘Ben,’ and threw down his gun and shot me. I threw up my gun and fired to protect myself; then I ran out. He shot me in the right hand. The next day I was taken to the Marietta jail. When this ease came on for trial I left on account of my lawyer quitting me. I thought I had better get away and save up some money so I could hire a good lawyer and come back. My gun was a 20-25 Winchester rifle.”

The only exceptions taken to the admission of evidence are based on the admission of the dying declaration.

It is essential to the admissibility of dying declarations, and is a preliminary faet to be proved by the state, that they were made under a sense of impending death. This may be made to appear by the language of the declarant, or be inferred from his evident danger, or the opinions of his medical attendants stated to him, or from other circumstances of the ease, such as the length of time elapsing between the making of the declarations and of his death, and the fact that the de-clarant was so weak that he could not sign his name, and so affixed his mark, all of which are resorted to,- to ascertain the state of declarant’s mind.

It is for the court to consider from the evidence whether a declaration was made under circumstances rendering it admissible as a dying declaration, and the credibility to be attached to a dying declaration is for the jury. Morris v. State, 6 Okla. Cr. 29, 115 Pac. 1030; Addington v. State, 8 Okla. Cr. 703, 130 Pac. 311; Updike v. State, 9 Okla. Cr. 124, 130 Pac. 1107; Hawkins v. State, 11 Okla. Cr. 73, 142 Pac. 1093; Carter v. State, 12 Okla. Cr. 236, 154 Pac. 337; Williams v. State, 13 Okla. Cr. 189, 163 Pac. 279; Allen v. State, 16 Okla. Cr. 139, 180 Pac. 564.

The preliminary proof in this case was clearly sufficient to warrant the conclusion of the court that the declaration was made under a sense of impending death and without hope of recovery. The statement of deceased was therefore properly admitted in evidence.

The instructions given by the court covered every phase of the ease, and were exceedingly favorable to the defendant.

After a careful examination of the record we are satisfied that there was no error which could have been prejudicial to the defendant, and no one can read the evidence without being impressed that the defendant has not been adjudged the degree of punishment he so richly deserves. Juries frequently render such verdicts, and this can only be accounted for upon tlie theory that the verdict was the result of a compromise of opinion. The judgment of the district court of Love .county is affirmed.

MATSON and BESSEY, JJ., concur.


text:
    KELLEY MERRIT v. STATE.
    No. A-3742.
    Opinion Filed Nov. 10, 1921.
    (201 Pac. 529.)
    (Syllabus.)
    ^Continuance — Grounds,—Absent Witnesses. The day following the filingi 'of the information, which was Saturday, defendant was arraigned and the cause set for trial the following Monday. Thereupon defendant caused subpaenas to issue. When the case was called for trial defendant filed an application for continuance on account ¡of the absence of such witnesses and the failure of the sheriff to serve the subpoenas. The sheriff' testified that he did not have sufficient time to serve .the same. Held reversible error to overrule said application.
    Appeal from County Court, Stephens County; G. T. Bur-mows, Judge.
    Kelly Meritt was convicted of a violation of the prohib-iitory liquor law, and he appeals.
    Reversed.
    R. C. Drake, for plaintiff in error.
    S. P. Preeling, Atty. Gen., and E. L. Fulton, Asst. Atty. sGen., for the State.
   DOYLE, P. J.

Under an information charging him with r.selling "one pint of whisky to G. C. Jackson,” appellant was tried and convicted, the jury leaving the punishment to the «court, The court assessed the maximum punishment, and :from the judgment he appeals.

One of the grounds of the motion for new trial, and assigned as error, is that the court erred in overruling the defendant’s application for a continuance. The record shoves that the information was filed on January 30, 1920; that plaintiff in error was arrested and arraigned on the following day, and the case was set for trial on February 2d, which was Monday. On January 31st, the day he was arrested and arraigned, which was Saturday, the defendant paused subpoenas to issue. The sheriff on Monday, when the case was called for trial, made return that he had not served the same. Thereupon the defendant ffiled a motion for continuance on the ground that Joe McDonald and John Compton, material witnesses on his behalf, were absent, and if present they would testify that the said G-. C. Jackson purchased the intoxicating liquor from persons other than the defendant, and that the subpoena for said witnesses had not been served.

The defendant caused the sheriff to be sworn, who testified:

“I did not have time, considering the way the roads were, to serve said subpoenas.”

Thereupon counsel for the defendant asked leave of court to permit the defendant to verify his motion, and the court refused to permit him so to do.

The Attorney General has filed the following confession of error:

“It seems to us that, from the situation as disclosed by the record, plaintiff in error did not have a fair and impartial trial. While it is true that the showing made by him for a continuance was not in proper form, yet we think the record discloses that it was due more to lack of knowledge than anything else, and that in addition thereto, when an endeavor was made to perfect the form of the application, the1 trial court would not grant such permission. Considering the fact that the party was arrested, charged with the commission of the offense, on Saturday, and he immediately had subpoenas issued for witnesses, and the ease was set for trial on the next Monday, it seems to us that the trial court should have granted him a reasonable time, at least, in which to have endeavored to have secured the absent witnesses.- In other words, we are unable to say that the court did not abuse its discretion in denying plaintiff in error an opportunity to secure his witnesses.”

Ordinarily the granting or refusing of a continuance is in the discretion of the court, and its decision will not be disturbed on appeal, unless it appears that there has been an abuse of such discretion. However, a continuance ought always to be granted when, .from the showing, justice requires it to be done, and to enable a defendant to procure all competent evidence necessary for his defense, if he has used due diligence to obtain the same. Technical objection should not ordinarily, prevent the granting of a continuance, if it appears necessary to a proper presentation of defendant’s case. On the record before us the confession of error is well founded, and in our opinion, under the admitted fact that the subpoenas for the defendant’s witnesses had not been served, the state-should not have insisted, and the court should not have ordered, that the trial -proceed in the face of this application.

It is also insisted that the evidence is insufficient to sustain the verdict. The complaining witness, Jackson, was the only witness _ who testified that the liquor was purchased from the defendant. As a witness in his own behalf the defendant denied the sale of whisky.

Without further detailing the evidence we deem it sufficient to say that the jury are the exclusive judges of the credibility of the witnesses and the weight to be given their testimony, and where there is any substantial testimony tending to show the defendant guilty of the offense charged against him, the sufficiency of the evidence to support the verdict will not be considered by this court. For the reason stated the judgment is reversed, and a new trial awarded.

MATSON and BESSET, JJ., concur.


text:
    FRANK SMITH v. STATE.
    No. A-3732.
    Opinion Filed Nov. 12, 1921.
    (201 Pac. 661.)
    (Syllabus.)
    Appeal and Error — Time for Appealing Felony Case — Procedure. In felony cases the appeal must be taken within six months after the judgment is rendered. Section 5991, Rev. Laws 1910. In such cases the appeal is taken by filing in this court a petition in error with case-made attached, ,or transcript of the record, together with proof of sevice of notices of appeal as required by statute, and when this is not done within the time prescribed by the statute, this court d,oes not acquire jurisdiction of the appeal, and such an appeal will be dismissed.
    Appeal from District Court, Le Flore County; E. F. Lester, Judge.
    Frank Smith, was convicted of burglary, and he appeals.
    Appeal dismissed.
    Neal & Neal, for plaintiff in error.
    The Attorney General anad E. L. r Fulton, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error,- Frank Smith, was convicted of burglary in the second t degree, and his punishment assessed at imprisonment in the penitentiary for the term of two years. In pursuance of the verdict the court rendered judgment on the 20th day of September, 1919. From the judgment an appeal was attempted to be taken by filing in this court on March 22, 1920, a petition in error with case-made.

The Attorney General has filed a motion to dismiss the appeal based upon the fact that said appeal was not taken within six months from the date on which the judgment was rendered.

Sec. 5991, Rev. Laws, provides:

“In felony cases the appeal must betaken within six months after the judgment is rendered.”

It was two days too late. It has been uniformly held by this court, when an appeal is not taken within the time prescribed by statute, this court does not acquire jurisdiction of the appeal, and such appeal will be dismissed. Barks v. State, 11 Okla. Cr. 446, 147 Pac. 1055; Gordon v. State, 12 Okla. Cr. 103, 152 Pac. 142.

It follows that. the motion to dismiss the appeal must be sustained.

It is therefore ordered that the purported appeal be and the same is hereby dismissed.

MATSON and BESSEY, JJ., concur.


author: MATSON, J.

text:
    ARTHUR SMITH v. STATE.
    No. A-3733.
    Opinion Filed Nov. 16, 1921.
    (201 Pac. 663.)
    (Syllabus.)
    1. Trial — Election Between Acts Constituting Offense. In prosecution for statutory rape, where there is evidence of more than one act of sexual intercourse between defendant and prosecutrix upon which a conviction could be based, the trial court should either require the prosecution to elect upon which of such acts it would rely for a conviction, or else have treated the act of .which the state' first introduced evidence to tend in any degree to prove the offense as an election and should have given a specific instruction limiting the jury to a consideration of such particular act as a basis for a conviction.
    2. Evidence — Conviction for Rape to Rest on One Act Only. In this state a person may be tried for and convicted of only one offense at a time. Pape is not a continuous offense, and whilst in a prosecution for statutory rape proof of other acts of intercourse, occurring both prior to and subsequent to the one relied upon for a conviction, may be proved for the purpose of showing the intimate relations between the parties, etc., the conviction must be based solely upon one of such acts and not all of them, and it is error prejudicial to the defendant, where no election of acts is required, to instruct the jury in effect that a conviction should result from proof beyond reasonable doubt of any of such acts.

      Appeal from District Court, Beaver County; Arthur G. Sutton, Judge.
    Arthur 0. Smith was convicted of statutory rape, and he appeals.
    Reversed and remanded.
    Dickson & Dickson, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   MATSON, J.

This is an appeal from the district court of Beaver county, wherein the defendant, Arthur 0. Smith, was convicted of the crime of rape, alleged to have been committed upon his daughter, Leola Mary Smith, a child under the age of 14 years.

Numerous assignments of error are relied upon for reversal of this"judgment; but, in view of disposition made of this appeal, it will be necessary only to consider one of such assignments.

The information charged the offense to have been committed on or about the 1st day of August, 1918.

The evidence disclosed that the prosecutrix reached the age of 14 years on the 4th day of September, 1918. To obtain a conviction the prosecutrix testified to several acts of sexual intercourse with the defendant, beginning some time between Thanksgiving and Christmas of 1916, and extending up until a short time before the filing of this charge in March, 1919.

The prosecution made no election as to which particular act of sexual intercourse upon which reliance would be had for a conviction. The trial court did not require the prosecution to elect, for a conviction, upon any particular act of intercourse between the defendant and the prosecutrix, prior to the time the prosecutrix reached the age of 14 years. In the court’s general charge to the jury the following instruction was given:

“Arty unmarried female under the age of 16 years.is incapable of consenting to an act of sexual intercourse. The act of sexual intercourse therefore accomplished by a male with a female, under the age of 16 years, not the wife of the perpetrator is rape whether the perpetrator obtain her consent or not. Rape committed by a male over 18 years of age upon a female under the age of 14 years, or incapable, through lunacy or unsoundness of mind, of giving consent, or accomplished with any female by means of force overcoming her resistance, or by means of threats of immediate and great bodily harm, accomplished by apparent power of execution, preventing such resistance, is rape in the first degree. Rape in the first degree, is punishable by death or imprisonment in the penitentiary, not less than 15 years, in the discretion of the jury. If, therefore, you believe from all the evidence, facts, and circumstances in this case, beyond reasonable doubt, that the defendant accomplished sexual intercourse with the prosecuting witness, Leola Mary Smith, in said Beaver county, at any time, within three years from the filing of said information, that the said Leola Mary Smith was not at that time the wife of the said defendant, and was at that time under the age of 14 years, then your verdict should be that the defendant is guilty of rape in the first degree.”

The foregoing instruction was excepted to by defendant’s counsel. ¥e think the giving of same over the objection and exception of defendant constituted a reversible error in this case.

Rape is not a continuous offense. On the evidence in this case every act of sexual intercourse testified to by the prose-cutrix constituted a distinct crime, and the trial court should either require the prosecution to elect upon which of such acts it would rely for a conviction, or else the court would have treated the act of which the state first introduced evidence to tend in any degree to prove the offense as an election and should have given a specific instruction limiting the jury to a consideration of this particular act as a basis for a conviction. 22 R. C. L. p. 1227, § 63. This the court did not do, but, on the contrary, instructed the jury that—

If they believed from all the evidence beyond a reasonable doubt “that the defendant accomplished sexual intercourse with the prosecutrix, Leola Mary Smith, in said Beaver-county at any time within three years from the filing of said information, that the said Leola Mary Smith, was not at that time the wife of said defendant, and was at that time under the age of 14 years, then your verdict should be that the defendant is guilty of rape in the first degree.”

It is apparent that on this instruction the jurors were permitted to base a conviction upon any of the numerous acts of sexual intercourse testified to by prosecutrix as occurring between her and the defendant before she reached the age of 14 years, all of which occurred within three years from the filing of the said information. Manifestly one of the said jurors may have believed the defendant guilty, basing his belief upon proof of an act of sexual intercourse testified to by prosecut-rix, entirely different from that upon which another of said jurors based his belief, so therefore, while the twelve jurors may have unanimously arrived at the conclusion that the defendant was guilty of the crime charged, there is no way of determining by this record that each of said jurors based his conviction of guilt upon the same act of sexual intercourse. See Montour v. State, 11 Okla. Cr. 376, 145 Pac. 811.

It has been repeatedly held in this state that a person may be tried for, and convicted of, only one offense at a time, and while proof of other acts of intercourse, in a prosecution for statutory rape occurring both prior, to and subsequent to the one relied upon for a conviction, may be proved for the purpose of showing the intimate relations existing between the parties, etc., the conviction must be based solely upon one of such acts and not all of them. Gracy v. State, 13 Okla. Cr. 643, 166 Pac. 442.

An examination of this record discloses that this case was not tried with reference to any particular act of sexual intercourse alleged to have been committed by the defendant with the prosecutrix on or about the 1st of August, 1918, or any other particular act of sexual intercourse occurring within three years preceding the filing of the information and at a time when the prosecutrix was under the age of 14 years. But the trial court in not requiring the state to elect upon one such particular act, and in submitting the question of guilt on all of such acts, clearly committed reversible error, as this conviction could be pleaded in bar of a subsequent prosecution based on any definite act of sexual intercourse alleged to have occurred between the defendant and the prosecutrix in Beaver county, prior to the date that the prosecutrix reached the age of 14 years.

For reasons stated, the judgment is reversed, and cause remanded for further proceedings not inconsistent with this opinion.

The warden of the penitentiary at McAlester will deliver the defendant to the sheriff of Beaver county, who will hold him in custody until otherwise ordered according to law.

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


text:
    FRANK McMULLEN v. STATE.
    No. A-3745.
    Opinion Filed Nov. 10, 1921.
    (200 Pac. 292.)
    Appeal from District Court, Grady County; Will Linn, Judge.
    Frank McMullen, convicted of grand larceny, appeals.
    Affirmed.
    The Attorney General and E. L. Fulton, Asst. Atty. Gen.,
    Bond, Melton & Melton, for plaintiff in error, for the State.
   PER CURIAM.

Upon an information jointly charging Frank McMullen and Jim Thompson with the theft of two automobile casings of the value of $51, the personal property of D. W. Pinkston, appellant, Frank McMullen, upon his separate trial was convicted and his punishment fixed at six months imprisonment in the penitentiary. From the judgment rendered on the verdict he appealed by filing in this court on April 5, 1920, a petition in error with case-made, but there has been no appearance in his behalf on his appeal in this court. When the case was called for final submission it was submitted on the record.

The record shows that the only evidence introduced was that offered by the state.

We think the evidence, without any doubt, is ample to sustain the conviction. After a careful examination of the record we conclude that there was no error which could have been prejudicial to the defendant. The judgment is therefore affirmed.


text:
    STATE v. A. L. RAMSEY et al.
    No. A-3262.
    Opinion Filed Nov. 15, 1921.
    (201 Pac. 1119.)
    Appeal from District Court, Washington County; R. B. Boone, Judge.
    A. L. Ramsey and A. T. Smith were charged with Sabbath breaking, by conducting a moving picture show on Sunday. Demurrer to information sustained, and the state appeals.
    Affirmed.
    The Attorney General and A .0. Harrison, Co. Atty., for the State.
    Craven & Heyl, for defendants in error.
   BESSEY, J.

A. L. Ramsey and A. T. Smith were, by information filed in the district court of Washington county on January 9, 1918, charged with Sabbath breaking by conducting a moving picture show on Sunday. The defendants filed a demurrer to said information, on the ground that the allegations in such information did not state a public offense against the laws of the state of Oklahoma. This demurrer was-by the court sustained, and the state appeals. The question here involved is identical to that in the case of State v. Clint Smith, 19 Okla. Cr. 184,198 Pac. 879, and for the reasons stated therein the ruling of the trial court, sustaining defendant’s demurrer, is affirmed.

DOYLE, P. J., concurs.

MATSON, J., disqualified, and not participating.


text:
    Ex parte FRANCES TAYLOR.

      No. A-4118.
    Opinion Filed Nov. 16, 1921.
    (201 Pac. 1119.)
    Application by Prances Taylor for writ of habeas corpus to be admitted to bail in a pending cause charging applicant with murder.
    'Bail allowed.
    Walter Mathews, for petitioner.
    S. P. Freeling, Atty. Gen., and E. L. Pulton, Asst. Atty. Gen., for respondent.
   PER CURIAM.

On the 4th day of November, 1921, petitioner filed in this court her verified . application for writ of habeas corpus to be admitted to bail in a cause pending and to be tried in the superior court of Creek county, Okla., wherein she, the said Prances Taylor, is charged with the murder of one Tennessee Watson. Petitioner alleges that she is now confined in jail in Creek county, Okla., by D. Y. Livingston, sheriff of Creek county, Okla., and that she is held in custody by virtue of a commitment issued by George Ham, of Creek county, as examining magistrate, upon a preliminary examination wherein the petitioner was charged with said offense. Attached to the application is a transcript of the evidence introduced at the preliminary examination of petitioner, and also affidavits in additional support of her application, and petitioner further alleges that the proof of her guilt of the murder is not evident, nor the presumption great, as appears from the evidence introduced at the preliminary examination and the additional affidavits. Petitioner further alleges that on the 1st day of November, 1921, she made application to the judge of the superior court of Creek county, OHa., for writ of habeas corpus to be admitted to bail on said charge, and that on said hearing said judge denied bail. Without entering into discussion of the evidence introduced against the petitioner at the preliminary examination and of the additional evidence in the ¡form of affidavits that the petitioner has presented to this court in support of her application to be admitted to bail, we deem it sufficient to say, that a careful examination of this application convinces this court that petitioner is entitled as a matter of legal right to be admitted to bail in said cause. Wherefore it is considered and adjudged that petitioner be admitted to bail in the sum of $15,000 for the appearance of said1 Frances Taylor to answer said charge in the superior court of Creek county, Okla., under the terms and conditions provided by the law, said bond to be approved by court clerk of Said Creek county, and upon approval the said defendant (petitioner) to be discharged from custody by the sheriff of Creek county.


author: BESSET, J.

text:
    STATE v. CHARLES HARDY.
    No. A-2887.
    Opinion Filed Nov. 16, 1921.
    (201 Pac. 672.)
    (Syllabus.)
    Intoxicating Liquors — Whether Apple Cider Intoxicating a Question for Jury. Construing the provisions of our Constitution, prohibiting the sale of intoxicating liquor, together with sections 3605 and 3606, Rev. Laws 1910, the question of whether or not any particular apple eider is in fact an intoxicating liquor is a question of fact for the jury.
    Appeal from County Court, Woods County; R. M. Chase, Acting Judge.
    Charles Hardy was informed against for the unlawful sale of intoxicating liquors and his demurrer to the information was sustained, and the State appeals.
    Order sustaining demurrer overruled.
    ■ The' Attorney General, R. McMillan, Asst. Atty. Gen., and Sandor J. Vigg, Co. Atty., for the State.
    E. W. Snoddy, for defendant in error.
   BESSET, J.

This is an appeal by the state from an order sustaining a demurrer to the information, the charging part of the information being as follows:

“* * * On or about the 14th day of August, 1916, at and in the county of Woods, state of Oklahoma, Charles Hardy, then arid there being, did then and there willfully and unlawfully sell certain intoxicating liquor, to wit, one gallon of cider, to one Mermenegildo Castillo at and-for the sum of $1.25, which said cider so sold as aforesaid then and there contained 6.2 per cent, of alcohol, measured by volume, and which said cider was then and there capable of being used as a beverage. * * *”

It will be seen that the information charges that this cider was intoxicating; that it contained 6.2 per cent, of alcohol, measured by volume; that it was capable of being used as a beverage; and that it was willfully sold by the person charged.

The demurrer to this information may have been sustained by the court on the theory that the information should have stated that the cider was subject to a special tax under the revenue laws of the United States, and that it did not comply with the pure food laws. Section 3606, B. L. 1910, provides :

“Sale of Apple Cider Lawful. — It shall be lawful to sell in this state apple cider manufactured either within or without the state from the unadulterated juice of apples, if the same is of such character as not to be subject to a special tax under the internal revenue laws of the United States, and shall comply with the requirements of pure food laws of the United States, and of this state.”

By the enactment of this section it was not the intention of the Legislature to authorize the sale of intoxicating cider. Indeed, it was beyond the power of the Legislature to authorize the sale of any intoxicating beverage of any kind or character. That is forbidden by our Constitution. This court held, in the case of Coury v. State, 20 Okla. Cr. 2, 200 Pac. 871, in an opinion filed September 21, 1921, as follows:

“It was the intention of the Legislature to prohibit the sale and disposal of wines, ale, beer and * * * near-beer, containing more than one-half of one per cent, of alcohol, measured by volume; but * * * it was the intention of the Legisl ature to except cider from such provision, making it a question of fact for the jury to determine whether or not any particular cider, sold or kept for sale, contained sufficient alcohol to make it intoxicating. when used as a beverage. ’ ’

In order to guard against artifice and fraud, the Legislature, in section 3605, B. L. 1910, in effect said that any liquor or compound, including wine, ale, beer, and near-beer, containing more than one-half of one per cent, of alcohol, measured by volume, should be considered an intoxicating liquor. The Legislature arbitrarily said all such liquors are intoxicating. But by the enactment of section 3606, supra, cider was excepted from this list, thus making the question of -whether or not any particular cider is intoxicating a question of fact for the jury, not to be. determined arbitrarily and alone by the alcoholic content or one-half of 1 per cent, measured by volume.

The information charged that this cider was in fact intoxicating. The alcoholic content of 6.2 per cent., as charged', was greatly in excess of the statutory test provided in the case of other liquors. In cases where it is charged that apple cider is sold in violation of the prohibitory law, it is for the jury to say whether or not the eider, as a matter of fact, is intoxicating. If any cider is intoxicating in fact, as a matter of law, its sale is prohibited.

We think the information in this case was sufficient and that the court erred in sustaining the demurrer to the information.

Since there was no request made by the county attorney to resubmit the accusation, according to sections 5795 and 5796, R. L. 1910, this court and the trial court are without authority to make any further orders affecting the accused.

DOYLE, P. J., and MATSON, J., concur.


text:
    CALVIN McKINNEY v. STATE.
    No. A-3757.
    Opinion Filed Nov. 16, 1921.
    (201 Pac. 673.)
    (Syllabus.)
    1. Evidence — Accomplice Testimony — Corroboration. A conviction cannot be had upon the testimony of an accomplice, or accomplices, unless he or they be corroborated by such other evidence as tends to connect the defendant with the commission of the offense; . and the corroboration is not sufficient if it' merely show the commission of the offense or the circumstances thereof. •
    2. Trial — Province of Court and Jury — Question Whether Witness an Accomplice. Where the evidence is conflicting as to whether or not a witness participated in committing the offense charged, the question as to whether or not such witness is an accom-pliee is one of fact for the jury; but where the acts and conduct of the witness are admitted, it becomes a question of law for the court to say whether or not those acts and facts make the witness an accomplice.
    3. Same — Instruction. Under the undisputed facts shown in this record, one of the state’s witnesses, T., as a matter of law was an accomplice. As to whether another witness, G., was an accomplice, the facts are disputed, and are reasonably susceptible of either interpretation, in which case there is an issue of fact for the jury; and under the circumstances here these issues as to both witnesses, on request of defendant, should have been covered by appropriate instructions to the jury.
    Appeal from District Court, Pittsburg County; Harve L: Melton, Judge.
    Calvin McKinney was eonvieted of bank robbery, and was sentenced to serve a term of 10 years in tbe state penitentiary, and be appeals.
    Keversed and remanded.
    Wilkinson, Scott & Hudson, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and E, L. Fulton, Asst. Atty. Gen., for tbe State.
   BESSET, J.

Calvin McKinney, plaintiff in error, referred to in tbis opinion as tbe defendant, was convicted at tbe November, 1919, term of tbe district court of Pittsburg county of tbe crime of bank robbery, committed August 14, 1916, and bis punishment was by tbe jury fixed at 10 years’ imprisonment in tbe state penitentiary, and be appeals.

In order to intelligently make the proper legal deductions involved, it will be necessary to recite tbe facts in narrative form, at some length. Tbe defendant was not present at the robbery, and was convicted on the theory that be conspired with tbe actual perpetrators to commit the crime, and furnished them with a horse, gun, and saddle.

It was tbe theory of tbe state that this defendant, Simeon Lewis, Ernest Gregory, Milton Spears, and Bill Tidwell, from time to time during a period of two weeks before the crime was committed, conspired together to rob the bank of Crow-der; that during this time these parties met frequently at and near the house of Ernest Gregory, a neighbor of this-defendant; and discussed and agreed upon ways and means of robbing the bank. That it was agreed that the defendant, Lewis, and Gregory were to furnish two horses and two saddles, guns, and ammunition to Spears and Tidwell, who were to perform the physical acts of robbery so soon as all the arrangements were completed, and the time and circumstances seemed favorable to successfully obtain and get away with the booty. It was agreed that Lewis and Gregory should first go to Crowder and see if the officers were there, and whether there were many automobiles in sight. If. the prospects looked promising, Tidwell and Spears were then to appear and consummate the robbery.

It is claimed by Tidwell and Mrs. Gregory, witnesses for the state, that the plans to rob the bank were discussed and agreed upon in the presence of Mrs. Gregory on eight or ten different occasions before the robbery; that Tidwell was a fugitive from justice, in hiding at or near the home of the Gregorys for two weeks prior to the robbery, and that Mrs. Gregory helped conceal him and furnished him with food and sustenance while he was so in hiding, awaiting a favorable’ opportunity to rob the bank. The evidence disclosed no overt threats or coercion on the part of any one to compel or induce Mrs, Gregory to furnish him with food, or .to assist in keeping him hid, but under the provisions of section 2099, R. L. 1910, hereafter quoted, an inference may be drawn that Mrs. Gregory was acting under duress on the part of, her husband.

The testimony, of Tidwell and other state’s' witnesses shows that the first attempt to rob the bank, made one week previous to the actual robbery, was abandoned, and Spears and Tidwell were intercepted by their confederates, Lewis and Gregory, and turned back on account of the presence of officers and a large number of other persons of Crowder on that day. One week later the second attempt was successfully made. Lewis and Gregory were in Crowder on that forenoon, and at the noon hour Tidwell and Spears entered the bank, and with drawn guns forced the cashier and a bank examiner, the only persons then in the bank, to put several hundred dollars in money into sacks brought for that purpose, after which they forced the cashier and the bank examiner into the bank vault and closed the door, and made their escape on horseback, carrying the sacks of money with them. Presently an alarm was given, and the officers' pursued the robbers and captured Spears. Later Tid-well abandoned his horse and escaped on foot, and returned to his hiding place in the bottoms, near the Gregory home, where it is claimed that the loot was divided equally among Tidwell, Gregory, Lewis, and the defendant. For some days after the robbery Mrs. Gregory helped to conceal Tidwell, and again furnished him with food and sustenance. Mrs. Gregory finally purchased another horse, with which Tidwell made his escape. Tidwell and Gregory fled together, and about a year later Tidwell was apprehended and arrested in Arkansas and brought back to Pittsburg county, where he plead guilty to a charge of manslaughter in the first degree, and was sentenced to a term of 30 years in the state penitentiary. After he was sentenced on this manslaughter charge, he confessed to this and other crimes, for which he was given a further sentence in the penitentiary. So far as this record shows, Gregory has never been apprehended or brought to trial. Simeon Lewis, one of the other alleged conspirators, was tried and .acquitted of this crime.

Mrs. Gregory claimed that this defendant owed her husband some money for a team of horses purchased from him some time before the robbery. After the robbery she. made several attempts to collect, but the defendant denied the obligation, claiming that he had paid Ernest Gregory for the horses. There is some testimony tending to show that this caused some ill feeling between Mrs. Gregory and the defendant, and she • threatened to get even with him.

The testimony is undisputed that at Tidwell’s invitation Mrs. Gregory visited him at the penitentiary on two occasions, after the preliminary and before the trial of this defendant, which took place more than three years after the preliminary.

The proof shows that the horse ridden by Tidwell belonged to the defendant. The defendant claimed that the horse was stolen from him and taken without his knowledge •or consent. The state claimed that it was furnished the robbers in accordance with their previous agreement, as shown by the confessions made by Tidwell and Mrs. Gregory. The state claims further that a gun and saddle used by Spears belonged to or were furnished by this defendant. The defendant denied the ownership of the gun or saddle, or that he furnished them to these parties, and there is no independent evidence from disinterested sources that the gun and' saddle found belonged to the defendant.

It is claimed by the defendant that his conviction rests, wholly upon the testimony of hostile accomplices; that Mrs. Gregory actively participated in carrying out the common plans to perpetrate the robbery before and after it was' accomplished. .

There are 43 assignments of error urged in this case. If it should appear that Tidwell and Mrs. Gregory were accomplices, and that this conviction rests wholly upon their testimony, without material corroboration, then the other assignments of error need not be noticed. Section 5884, It. L. 1910, is as follows:

“A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the' corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof.”

We quote from the record as follows:

Testimony of Mrs. Gregory.
“Q. Before that bank was robbed, Mrs. Gregory, did you hear any conversation with reference to the proposed robbing of the bank? A. Yes, sir.
“Q. Where was that conversation had? A. It was at our house.
“Q. Who was there? A. Well, Spears, Ernest Gregory, Calvin McKinney, Sim Lewis, and Bill Tidwell.
“Q. How long before the bank was robbed? A. Well, I don’t know — about a couple of weeks Tidwell came there before the bank was robbed.
“Q. Did Calvin McKinney take part in that conversation? A. Yes, sir.
" Q. Tell what was said in that conversation. A. Well, they figured on what bank they would rob; whether it would be the Crowder bank or the Kinta bank, which would be the best to get away on.
“Q. What did Calvin McKinney say in that conversation?’ A. Well, he told them he would furnish them with a gun and a horse and saddle for a portion of the money. * * *
“Q. Just tell the jury about the conversation. A. Well, they just decided what bank they would take. Said they needed some money; they all needed some money, and Tidwell told them that if they would furnish him and this here Spears horses and ammunition they would go get the money and divide with them, and they agreed to do that.
“Q. Who agreed? A. Sim Lewis, Ernest Gregory, and. Calvin McKinney.”
Cross-Examination.
“Q. He (Bill Tidwell) stayed at your house two weeks before the bank was robbed? A. Something about that.
“Q. And they stayed there after the bank was robbed? A. Not at the house. They stayed in the field.
“Q. Well, you fed him? A. Yes, amongst us we did.
“Q. You knew he was being fed down there?. A. Yes, sir.
“Q. And you did the cooking? A. Not all of it.
“Q. You sent him his meals? A. Yes, sir, I sent him grub. I knew better than not to. I certainly did. * * *
“Q. How many times did those five meet together there (at your house) before the robbery? A. I don’t know; I didn’t put it down.
“Q. As many as 10 times? A. That many or more. They met there quite a number of times. ’* * #
“Q. Did you go to see Bill while he was over there in the pen? A. Yes, sir; I’ve been there twice to see him.”

With reference to procuring a horse for Tidwell and her husband, with which they made their eseape, there appears the following:

“Q. And you went and bought a horse for Tidwell out of the money? A. Yes, sir; I bought a horse out. of the money.”
Testimony of Bill Tidwell.
‘‘Q. Where did you stay down there in that bottom? A. Just sat around down there. ' ' •
“Q. In whose field? A. Sim Lewis’ field.
“Q. Mrs. Gregory sent your meals down there? Yes, sir.
“Q. And she knew you were going to rob this bank! A. I suppose she did. She heard us talk about it.
“Q. Then for a week or 10 days before you robbed the bank Mrs. Gregory sent your meals down to you at the creek in the woods? A. Yes; and afterwards too.
“Q. And at that time she knew you were scouting; she knew that? A. Yes; I guess she did.
“Q. Well, you had told her — talked about it in the presence of her — hadn’t you? A. Yes; we talked about everything’ in front of her.
“Q. Talked about robbing the store at Crowder in front of her, didn’t you? A. Ernest was telling her pretty near everything.”

An accomplice is one culpably implicated in the commission of a crime of which the defendant is accused; one who knowingly and voluntarily co-operates, aids, or assists in the commission of the crime. Hendrix v. State, 8 Okla. Cr. 530, 129 Pac. 78, 43 L. R. A. (N. S.) 546; Baldock v. State, 16 Okla. Cr. 203, 182 Pac. 265.

Whether or not Mrs. Gregory, under the testimony here, was an accomplice, and whether or not she was acting under duress, were questions of fact for the jury. The jury may have concluded, under the instructions given by the court, that Mrs. Gregory was or was not an accomplice. If the part taken by Mrs. Gregory in these transactions was done under duress of her husband, there was no culpable, criminal intent on her part. In that case she would be neither a principal nor an accomplice. Section 2099, R. L. 1910, provides as follows:

“A subjection sufficient to excuse from punishment may be inferred in favor of a wife from the fact of coverture whenever she committed the act charged in the presence and with the assent of her husband,” etc., excepting certain crimes among which this is not included.

The jury, under the provisions of the statutes, would be justified in drawing an inference that Mrs. Gregory acted under duress of her husband, and was not an accomplice. But this is a rebuttable inference. These issues should have been submitted to the jury under appropriate instructions.

On the contrary, Tidwell, without doubt, as a matter of law, was an accomplice. Indeed, he was admitted by both parties to be the chief actor and author of the conspiracy, .and it was error for the court, over the objections of the defendant, to submit that as an issue of fact to the jury. Where the evidence is conflicting as to whether or not a witness participated in committing the offense charged, the question as to whether or not such witness is an accomplice is one of fact for the jury, but where the acts and conduct of the witness are admitted, it becomes a question of law for the court to say whether or not those acts and facts make the witness an accomplice. Moore v. State, 14 Okla. Cr. 292, 170 Pac. 519.

The defendant requested the following instruction, which was refused:'

“The court instructs the jury that under the law you ■cannot convict the defendant upon the testimony of an accomplice, unless their testimony has been corroborated by some person who is not an accomplice to the commission of the crime, and you are instructed that witness Bill Tidwell, under his testimony, is an accomplice, and you are instructed that the witness, Mrs. Ernest Gregory, under her testimony, is an accomplice, and you are further instructed that their testimony has not been sufficiently corroborated to base a verdict of guilty, and you are therefore instructed to find the defendant not guilty.”

The law embodied in the instruction requested was nowhere covered in the instructions given by the court. This instruction as requested was faulty, because of the fact that it included Mrs. Gregory as well as Tidwell, and amounted to a peremptory instruction for the defendant. However, it was sufficient to call the court’s attention to the fact that, where the evidence showing that persons are accomplices is undisputed, the issue is one of law, and not of fact. Cudjoe v. State, 12 Okla. Cr. 246, 154 Pac. 500, L. R. A. 1916F, 1251.

The only instruction given by the court touching upon the competency of evidence given by accomplices was instruction No. 7, as follows:

“You are further instructed that an accomplice is a person involved either directly or indirectly in the commission of a crime. To render a person an accomplice he must in some manner aid or assist or participate in the criminal act, and by that connection he becomes equally involved in such offense. You are further instructed that a conviction cannot be had upon the testimony of an accomplice unless he or they be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense, or the circumstances thereof; but you are further instructed that it is not necessary that the corroborating evidence go so far as to establish by itself and without the aid of the testimony of an accomplice or accomplices that the defendant committed the crime as charged. And if there be sufficient corroborating evidence outside of that given by the accomplice or accomplices which, when considered, together with that the testimony of such accomplice will justify, satisfy the minds of the jury of the guilt of the defendant beyond a reasonable doubt, then the guilt of the defendant is sufficiently established.”

This instruction was duly excepted to by defendant.

After the verdict was rendered, the defendant filed a motion for a new trial. This motion was supported by the affidavit of Milton Spears, who pleaded guilty and was sentenced to the penitentiary for participating in this crime. In this affidavit Spears says that he and Tidwell rode two bay horses that they stole from a pasture about a mile south of Ernest Gregory’s house, and that Calvin McKinney did not furnish any horses, saddles, or guns; that the gun or Winchester said to belong to McKinney was stolen from a man who lived near the old No. 2 mine at Hartshome; that he (Milton Spears) stole one of the saddles and Bill Tidwell stole the other one. This ex parte affidavit may be entitled to but little weight; it nevertheless confirms the theory of the defendant, to some extent, as shown by the testimony in this record.

It is not sufficient corroboration to merely connect a defendant with the accomplice in the crime. The evidence, independent of the testimony of the accomplice, must tend to connect the defendant with the crime itself, and not simply with the perpetrators. State v. Wilks, 17 Okla. Cr. 247, 187 Pac. 813.

Independent of the testimony of Tidwell, there is no evidence of a convincing character that the defendant had anything to do with this robbery. If the jury believed that Mrs. Gregory was an accomplice, we think the corroboration •of Tidwell by Mrs. Gregory, after the two conferences in the penitentiary, was of doubtful probative value. Excepting the testimony of Tidwell and Mrs. Gregory, every independent circumstance shown is entirely consistent with the innocence of the defendant.

For the error of the court in failing to instruct the jury, as a matter of law, that Tidwell was an accomplice, and for failing to give appropriate instructions as to whether or not Mrs. Gregory was an accomplice, this case is reversed and remanded.

DOYLE, P. J., and MATSON, J., concur.