author: BABEFOOT, J.

text:
    FREDERICK ASHCRAFT v. STATE.
    No. A-9543.
    Jan. 11, 1940.
    (98 P. 2d 60.)

      O. B. Martin, of Blackwell, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and J. B. Gurley, Co. Atty., of Blackwell, for the State.
   BABEFOOT, J.

The defendant was charged in the district court of Kay county with the crime of operating a motor vehicle while under the influence of intoxicating liquor; was tried, convicted and sentenced to serve a term of six months in the penitentiary, and has appealed.

A brief statement of the facts is that defendant, on October 4, 1937, was seen by a traffic officer driving a truck from the baseball park of the Continental Oil Company, in Ponca. City, Kay County, Okla. That the officer, Floyd Story, who was directing traffic at this time, saw the truck run into a board gate and break the chains as it came into the street. He tried to stop it, but it did not stop. He was holding up his hand and also blowing his whistle. He jumped back out of the way. He at first did not see anyone under the steering wheel, but, as it passed him, he saw someone raise up. He then saw the driver run upon the curbing. He further testified as follows:

“A. About the time he was ready to go up on the driveway, he grabbed the steering wheel and righted his truck and run down over a- curbing and the sideboards of his truck fell off the back of them, but the front end held it and he was dragging the sideboards, and I didn’t understand what was wrong and I attempted to stop him and got on my motorcycle, and before I got to Mm he run over the curb at Pine and South avenue and then pulled back out in the street and started north on Pine street and I caught him and tried to stop him, but he seemed to be asleep or not paying any attention to me or anything and driving from one side of the street to the other. And in front of the Triple-A Barbecue stand I pulled up by the side of him and he pulled to the right and he hit the curb and his car jumped the curb and ran into and knocked down some signs and he crashed into a car parked there.”

He saw defendant when he got out of the truck. Defendant was staggering, and attempted to start an argument with the party who owned the automobile which he ran into. He could smell alcohol and liquor on his breath, and he was under the influence of intoxicating liquor, and in his opinion was drunk. He took him to the city jail in Ponca City. This was a little after 12 noon. He was driving 40 to 45 miles per hour.

Mrs. Anna Lee Lobinsky owned the Triple-A Barbecue stand. She saw defendant after the wreck, and had a conversation with him'' She said he was staggering, and the officer was holding him up, and that in her opinion he was intoxicated.

Zack T. Miller, Jr., a 16 year old boy, whose car was standing at the barbecue stand, and was run into by defendant, testified as did the other witnesses. That he saw the officer holding him up and that he was intoxicated.

W. R. Withrow, a deputy sheriff, was present at the time defendant was brought to the police station, and was taken by him to Newkirk. He testified that defendant’s breath smelled like he had been drinking a cheap grade of whisky, and that he was intoxicated.

Defendant testified that he had first come to Ponca City four years ago, and had returned to Iowa, and come back to Ponca City; that he was married and had one child; that at the time of his trial he was working in Texas where he had a. job as a welder; that on the morning of the 4th of October, 1937, he met a Mr. Dye, whom he knew, and who was driving a truck. That he got in the truck and they went to Coffee Bill’s place and drank a mug of beer; that afterwards they drove around and he was trying to find a job. They then went to Blaclde’s place about 11:30 and each drank a bottle of beer. He danced with the girl who owned an interest in the place. They left there just before 12 o’clock, and Mr. Dye got out of the truck and was talking to a Mr. Riggs whom they met. He drove off in the truck and left them there, saying, “I am going down the street.” He went out to the baseball park of the Continental Oil Company where he was afterwards seen by Officer Floyd Story, as heretofore related. His explanation of the accidents was that the brakes of the truck were in a defective condition. They “stuck” and he had to reach down and get them loose with his hands, and that for this reason he ran through the gates at the ball park, and into the curbing and into the sign and parked automobile at the Triple-A Barbecue stand. He testified that he had drunk no intoxicating liquor of any kind with the exception of the mug of beer and the bottle of 3.2% beer.

Several witnesses testified in behalf of defendant Two or three as to seeing him at the time of the accident, and that he was not staggering. That he did not have to be held up, and in their opinion he was not intoxicated or under the influence of intoxicating liquor.

Mr. Dye corroborated his statement with reference to the truck and the drinking of the beer. He said the truck was not in good repair, but he could drive it because he understood it. On cross-examination he stated he did not know defendant was going away with the truck when he drove off, and that he was trying to locate him at the time of the accident, and that he talked about having defendant arrested for stealing his track. He afterwards stated that this was for the purpose of being able to collect insurance which he had on the truck.

It is first contended by defendant that the court erred in refusing to instruct the jury that beverages containing not more than 3.2 per cent, of alcohol, measured by weight, are nonintoxicating under the provisions of section 1, chapter 153, ¡Session Laws 1933, 37 Okla. St. Ann. § 151, which provides:

“Beverages containing more than three and two tenths ■ (3.2%) per cent, alcohol by weight are hereby declared to be intoxicating; all other beverages are declared to be non-intoxicating. The manufacture, distribution and sale of beverages containing more than one-half of one (Vz_ of 1%) per cent, alcohol by volume and not more than three and two-tenths (3.2%) per cent, alcohol by weight is hereby declared subject to the rules and regulations hereinafter provided.”

And that if defendant had been drinking beer or liquor containing not more than 3.2 per cent, alcohol, he could not be convicted of driving an automobile while under the influence of intoxicating liquor. A complete answer to this proposition would be that under the facts in this case the jury wrould have been justified in finding, as a matter of fact, that defendant was under the influence of intoxicating liquor, other than by the drinking of 3.2 beer. But it is our desire to decide this question upon the issue raised, for the reason that it will arise in many cases and should be settled upon its merits.

The statute upon which defendant was charged was Oklahoma Statutes 1931, § 10324, 47 Okla. St. Ann. § 93, which is as follows:

“It shall be unlawful for any person who is under the influence of intoxicating liquor, or who is a habitual user of narcotic drugs, and the having on or about one’s person or in said vehicle of said intoxicating liquor is prima facie evidence of a violation of this act, to operate or drive a. motor vehicle on any highway within this state, as defined in section 1, of this act, and any person violating the provisions of this section shall be deemed guilty of a felony and shall be punished by imprisonment in the penitentiary not more than one year, or by fine of not more than Two Thousand (f2,000.00) Dollars, or by both imprisonment and fine.”

The statute with reference to defining “intoxicating and nonintoxicating beverages” is section 1, chapter 153, Session Laws 1933, 37 Okla. St. Ann. § 151.

It is contended that by reason of this statute, a man who has been drinking beverages so declared to be nonintoxicating cannot in the eyes of the law be “under the influence of intoxicating liquor,” no matter how drunk or intoxicated he may be. The cases relied upon by defendant, in our opinion, do not sustain this contention. The statutes upon which they are based apply to1 beverages containing more than one-half of one per cent, of alcohol even though not intoxicating in fact. These statutes, as the one above quoted, were enacted pursuant to the police power of the state, and were entirely independent of the prohibitory provisions of the state Constitution. The act, section 1, chapter 153, Session Laws 1933, 37 Okla. St. Ann. § 151, was passed for the purpose of licensing and taxing the sale of beverages containing more than one-half of one per cent, of alcohol and not over 3.2 per cent. The definition in section 1 was for the purpose of thus classifying beverages, as a foundation for the subsequent licensing and taxing provision. It was not thus intended that they should regulate the provisions of the law with reference to the enforcement of the criminal statutes. The Constitution, Okla. St. Ann. Const. Prohibition Ordinance, page 1260 prohibits, “the manufacture, sale, barter, giving away, or otherwise furnishing, except as hereinafter provided, of intoxicating liquors within this state,” and it further provides for the punishment of “any person, individual or corporate, who shall manufacture, sell, barter, give away, or otherwise furnish any intoxicating liquor of any kind, including beer, ale, and wine, contrary to the provisions of this section.” These provisions have been held as self-executing. Baldwin v. State, 40 Okla. Cr. 7, 266 P. 795; Ex parte Smith, 24 Okla. Cr. 415, 218 P. 708; Coury v. State, 20 Okla. Cr. 8, 200 P. 871; Nowakowski v. State, 6 Okla. Cr. 123, 116 P. 351.

In using the expression, “under the influence of intoxicating liquor,” the Legislature undoubtedly used the term in the same sense as it had been used in the Constitution, and had reference to all liquor which is intoxicating in fact. In one act it was the intention to simply classify such beverages for the purpose of license and tax under the provisions of the act. Under the other, it was the intention to punish those who were in fact “under the influence of intoxicating liquor,” whether it be caused from drinking beer with an alcoholic content of 3.2 per cent., or liquor in excess thereof. A construction different from this would, to our mind, nullify the statute.

The construction which we have placed upon the statute is supported by the courts which have passed upon similar ones. In the case of State v. Parquette, 54 R. I. 283, 172 A. 613, the court said in the syllabus:

“State could prove that defendant, charged with drunken driving, was under influence of intoxicating liquor notwithstanding he had imbibed nothing but 3.2 per cent, beer, declared by license statute to be nonintoxicating in fact (Pub. Laws 1932, c. 1914, amending Gen. Laws 1923, c. 98, § 16; Pub. Laws 1933, c. 2013, § 2).”

In the body of the opinion, the court said:

“The evidence introduced by the state proved defendant guilty of the offense charged. Defendant testified that while at a banquet he drank six bottles of beer each of which contained not more than 3.2 per centum of alcohol. He claims that under this evidence his conviction is contrary to law. He cites as authority in support of his claim section 2, c. 2013, P. L. 1933, which divides beverages into two classes, ‘intoxicating and nonintoxicating,’ and states, ‘It is hereby declared that beverages containing not more than 3.2 per centum of alcohol by weight are nonintoxicating in fact.’ Defendant argues that because of this latter clause evidence was inadmissible to- prove that he was under the influence of intoxicating liquor when he consumed only a beverage declared by the Legislature to be ‘nonintoxicating in fact.’ There is no merit in the claim made by the defendant. The statute has no bearing upon the charge made against him.
“Statutes are to be construed with reference to the object sought to be accomplished by them. The chapter relied upon by defendant was enacted for the purpose of creating a system of licensing and controlling the manufacture and sale of alcoholic beverages. The division of beverages into the two classes — intoxicating and nonintoxicating — was for the purpose of providing that no license for the manufacture or sale of intoxicating liquor should be issued while the Eighteenth Amendment to the Constitution of the United States remained in force. The declared purpose of this chapter is the promotion of temperance and the reasonable control of the traffic in alcoholic beverages. Section 81'. Nothing is found in this chapter which says, either directly or by implication, that the consumption of a beverage containing alcohol will not have an intoxicating influence upon the consumer.
“Defendant was changed with violating a provision of the law relating to the operation of motor vehicles. Chapter 98, C. L. 1923. In this chapter it is recognized that an automobile is a dangerous instrumentality while being operated by a person under the influence of intoxicating liquor. To prevent such operation the statute provides that ‘No person shall operate * * * a motor vehicle * * * while under the influence of * * * intoxicating liquor whatever its alcoholic content. * * *’ Chapter 1914, P. L. 1932, amending Gen. Laws 1923, c. 98, § 16. This chapter is not limited or repealed by chapter 2013, cited in behalf of the defendant. * * *”

In the case of Commonwealth v. Bridges, 285 Mass. 572, 189 N. E. 616, the same conclusion is reached as in the above case, and under almost identical statutes. See, also, State v. Hutchinson et al., 194 Ark. 1057, 110 S. W. 2d 7; Moss v. State, 4 Okla. Cr. 247, 111 P. 950.

It is next contended that the judgment and sentence of six months in the penitentiary is excessive under the facts in this case. We are inclined to agree with this contention. In this case the defendant drove the truck only a short distance. No one was injured, and it was not driven at an excessive rate of speed. The defendant contended that the brakes were in bad repair, and that it was for this reason he could not stop the truck. From the evidence in the case, we are of the opinion that had he not been under the influence of intoxicating liquor he could have handled it so that no accident would have occurred. However, the owner of the truck testified that the brakes were in improper condition.

The statute under which defendant stands charged provides as á punishment a sentence not to exceed one year in the penitentiary or a fine not to exceed $2,000, or by both such fine and imprisonment. It does not provide for a jail sentence. While recognizing the fact that it is not the province of the courts to deal with the policy of the law, as that belongs to the Legislature, our experience with the-above statute is that many juries and courts are refusing to give a penitentiary sentence in cases where the facts are similar to the instant case. Others believe that a prison term should be given for a violation of this statute and are assessing a penitentiary sentence. As to whether this statute should be amended so a jail sentence may be given is a question for the proper consideration of the Legislature, who are the representatives of the people in public enactments. This court, in exercising its constitutional and statutory rights to modify a judgment and sentence, acts only that justice may be done in. the individual case, as the facts justify. If we had the •power under the statute, a jail sentence would be imposed in the instant case. Not having this power, under the statute, Ave are of the opinion the judgment and sentence should be modified to a fine of flOO and costs. If the •defendant is unable to pay this fine and costs it will amount to a service of six months in the county jail.

There is one further contention that by reason of its importance in the future Ave deem it necessary tO' consider at this time. As a part of the judgment and sentence in this case, the court decreed “that defendant’s driver’s license is hereby revoked for a period of one year, and the clerk of this court is hereby ordered to mail the same to the Department of Public Safety.” In this case a supersedeas bond was given by the defendant. The record does not reveal whether that part of the judgment and sentence with reference to the driver’s license was superseded, or was enforced. But for future guidance we desire to refer to the statutes upon this question.

Section 25, art. 5, chapter 50, 1937 Session Laws, 47 Okla. St. Ann. § 295, provides:

“The commissioner shall forthwith revoke the license of any operator or chauffeur upon receiving a record of such operator’s or chauffeur’s conviction in any court of record of any of the following offenses, when such conviction has become final.
“1. Manslaughter (or negligent homicide) resulting from the operation of a motor vehicle;
“2. Driving a motor vehicle while under the influence of intoxicating liquor or a narcotic drug;
“3. Any felony in the commission of which a motor vehicle is used;
“4. Failure to stop and render aid as required under the laws of this state in the event of a motor vehicle accident resulting in the death or personal injury of another;
“5. Perjury or the making of a false affidavit or statement under oath to the commissioner under this act or under any other law relating to the ownership or operation of motor vehicles;
“6. Conviction, or forfeiture of bail not vacated, upon three (3) charges of reckless driving committed within a period of twelve (12) months in a court of record.”
Section 26, art, 5, chapter 50, Session Laws of 1937, 47 Okla. St. Ann. § 296, provides:
“(a) Whenever any person is convicted or pleads guilty in any court to an offense involving the use of a motor vehicle, such court shall make immediate report to the Commissioner of Public Safety setting forth the name of the offender, the number of the operator’s, or chauffeur’s license, and the penalty imposed.
“(b) The Commissioner of Public Safety may in his discretion suspend or revoke the licenses of such person, such suspension or revocation being, in addition to the punishment imposed by the court.
“(c) Any person whose license is so suspended or revoked under the provision of this section shall have the right of an appeal as otherwise provided for in this act.”

Section 27, art. 5, chapter 50, Session Laws of 1937, 47 Okla. St. Ann. § 297, provides:

“The commissioner shall not suspend a license for a period of more than one (1) year and upon revoking a license shall not in any event grant application for a new license until the expiration of one (1) year after such revocation.”

Section 28, art. 5, chapter 50, Session Laws of 1937, 47 Okla. St, Ann. § 298, provides:

“The commissioner upon suspending or revoking a license shall require that such license and the badge of any chauffeur whose license is suspended or revoked shall be surrendered to and be retained by the commissioner except that at the end of the period of suspension such license and any chauffeur’s badge so surrendered shall be returned to the licensee.”

In the same act, section 6, art. 5, chapter 50, Session Laws 1937, 47 Okla. St. Ann. § 276, it is also provided:

“10. Any person adjudged by any court of record to have been guilty of careless, reckless or negligent driving or operation of a motor vehicle, or who has been convicted for driving a motor vehicle while under the influence of intoxicating liquor, shall forfeit the right or privilege to a license as an operator or chauffeur, and the license may be canceled or suspended for such time as the ‘Commissioner’ or the court may by order direct.”

The above statutes have been construed by the Supreme Court of this state in the case of Gentry, Commissioner of Public Safety, v. Blinn, County Judge, 184 Okla. 9, 84 P. 2d 27, 30. This case was an original action in the Supreme Court by the Commissioner of Public ¡Safety against the county judge of Oklahoma county, seeking a writ of prohibition, prohibiting the county judge of Oklahoma county from further proceeding in an appeal from an order of the commissioner revoking the driver’s license of an individual. The exact question in that case is not here involved, but Justice Riley, in examining and construing the statute above quoted, came to conclusions that have a bearing upon the issues here involved. Without reviewing the whole decision, it may be said that the court came to the conclusion that certain paragraphs of the Motor Vehicle Act, and especially those above quoted, were repugnant to and in conflict with each other, and that it was necessary to resort to some of the well-known canons of construction of statutes and that the whole act should he read and construed, to the end that the true intent of the Legislature in the passage of the same should prevail. It will not he necessary for us to discuss these various conflicts, as they are apparent on their face, nor will it be necessary for us to set forth the different rules of construction applied, as this has been fully covered by the Supreme Court in the case above cited.

From an examination of the statutes, and applying well-known canons of construction, we have come to the conclusion:

First. That after final conviction of a party in a court of record, the court has the power, and it is its duty to require, the defendant to surrender to it all operator’s or chauffeur’s licenses held by such person so convicted.

Second. Upon receipt of. the license by the court the same shall be forwarded to the Commissioner of Public ■Safety.

Third. This report should contain: (a) the name of the offender; (b) the number of the operator’s or chauffeur’s license; (c) the penalty imposed; and (d) a statement that the judgment and sentence has become final. If an appeal is taken to the Criminal Court of Appeals, in the manner provided by law, the conviction does not become final until the judgment has' been affirmed, and a mandate returned to the trial court.

Fourth. If the conviction be for an offense mentioned in section 25, chapter 50, 1937 Session Laws, 47 Okla. St. Ann. § 295, it then becomes the mandatory duty of the commissioner, upon receipt of the record, which shows that the conviction has become final, to revoke the license, and refuse to grant a further license for a period not to exceed one year from the date on which the conviction hag become final. There is no appeal from the order of the commissioner in cases that are mentioned in section 295, infra.

Fifth. If the conviction be for an offense under the Motor Vehicle Act, other than that mentioned in section 295, the Commissioner may, in his discretion, suspend or revoke the license, such suspension or revocation being in addition to’ the punishment imposed by the court.

Sixth. This suspension may be for a period not in excess of one year, and is subject to an appeal to the county court, and from there to the district court, in the manner provided by law. The judgment of the district court is final. This revocation or suspension of the license should not be made until the judgment has become final, as expressed in section 294 (c), 47 Okla. St. Ann.

Seventh. Under the act, the Commissioner of Public Safety is the one who has the authority to cancel, suspend, or revoke the license, and this cannot be done by the court.

As pointed out in the case before the Supreme Court, Gentry v. Blinn, 184 Okla. 9, 84 P. 2d 27, there is a direct conflict between subdivision 10, section 276, and the later provisions of the act above cited. With reference to this the court says:

“ ‘Hence, it is an established rule in the exposition of statutes that the intention of the lawgiver is to be deduced from a view of the whole and every part of a statute taken and compared together. The several provisions of the statute should be construed together in the light of the general purpose and object of the act and so as to give effect to the main intent and purpose of the Legislature as therein expressed. If possible, a statute should be so construed as to render it a consistent and harmonious whole. If different portions seem to conflict, they should, if practicable, be harmonized, that construction being favored which will render every word operative rather than one which makes some words idle and nugatory.’ Eagle-Picher Mining & Smelting Co. v. Linthicum, 175 Okla. 483, 53 P. 2d 687, 689.
“This in turn calls for the application of the rule announced in Palmer et al. v. Kind et al., 75 Okla. 276, 183 P. 411, as follows: ‘Where general terms or expressions in one part of the statute are inconsistent with more specific or particular provisions in another part, the particular provision will be given effect, as a clearer and more definite expression of the legislative will-.’
“Applying that latter rule, we have specific provisions for mandatory revocation of the license for conviction in any one of six specified cases, the second of which is conviction of the offense of driving an automobile while under the influence of intoxicating liquor, or a narcotic drug, provided for in section 25, of the act, while the provisions under subdivision 10, of section 6, and subdivision (b) of section 26, are in general terms. These general terms or expressions being inconsistent with the specific and more particular provisions in section 25, the latter must prevail and be given effect, as ‘clear and more definite expression of the legislative will.’
“The legislative intent then is clearly made to appear as leaving it within the discretion of the Commissioner of Public Safety to suspend or revoke the license under section 26, of the act in all eases other than those specifically mentioned and named in section 25, of the act. This brings the act in harmony with the clear intent of the Legislature to except cases where the cancellation or revocation of the license is made mandatory under the provisions of the act in section 30 of the act, 47 Okla. St. Ann. § 300, in providing for appeal to or review by the County Court. To hold otherwise would leave that part of section 30, supra, which reads, ‘Except where such cancellation or revocation is mandatory under the provisions of this act,’ as nugatory and meaningless. In other words to hold otherwise would be to sa.y that in no case is the can-collation or revocation of the license ‘mandatory.’ Likewise to hold otherwise would he to render all the provisions of section 25, ineffective.”

From what has been stated it follows that that part of the order of the court in the instant case which seeks to order the cancellation of defendant’s license is error. This order should be entered by the Commissioner of Public Safety when the record is certified to him by the court after final conviction as above outlined.

It is the order of the court that the judgment and sentence of defendant by the district court of Kay county be modified and affirmed, as above stated.

DOYLE, P. J., and DAVENPORT, J., concur.


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    R. T. DANIELS JR., v. STATE.
    No. A-9431.
    Jan. 11, 1940.
    (98 P. 2d 68.)

      George H. Jennings, of .Sapulpa, and J. P. Evers, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Everett S. Collins, Co. Atty., of Sapulpa, for the State.
   BAREFOOT, J.

The defendant, R. T. Daniels, Jr., was charged by information in Creek county, with the crime of operating a motor vehicle while under the influence of intoxicating liquor; was tried, convicted and sentenced to pay a fine of $2,000, and serve one year in the penitentiary, and has appealed.

At the time of the trial counsel for defendant orally moved the court to set aside and quash the information, and dismiss the case for the reason “that the information in this case was not filed within two terms after the preliminary hearing was had in this case.” It is now contended that the court erred in overruling this motion.

The record does not bear out the statements contained in the motion. It reveals that under the statute Creek county has two terms of court each year. One beginning March 1st, and one beginning September 1st. The court takes judicial knowledge of these terms. The preliminary examination of defendant was had on November 1, 1933, and the justice of the peace filed his transcript in the district court on November 6,'1933. This was during the time of the criminal session of the September, 1933, term of the district court. It was impossible to- set the case for that term. The next term of the district court commenced on March 1, 1934, and while the record does not specifically show, it may be presumed therefrom that no term of the criminal court was held prior to August 23, 1934, the date the information was filed in the district court in this case. The county attorney announced in open court that it was his practice not to file an information ■until just prior to the time the case was to be set for trial. While this practice is not to he commended, we do not find that it is such error as to reverse and dismiss this case.

The information was filed during the next succeeding term after the preliminary examination was had, and the transcript filed in the district court. From the record we are of the opinion that defendant waived any right which he may have had by a delay in filing the information. The record discloses that September 11, 1934, a demurrer to the information was filed. It was overruled on the same date. On September 19,1934, the case was continued for the term on motion of defendant. On March 4, 1935, the case was stricken from the docket for lack of court funds. On March 18, 1936, it was set by agreement of the state and defendant for March 25, 1936. On this date the defendant was not present and his appearance bond was forfeited. On April 1, 1936, a motion was filed to set aside the bond forfeiture. On May 1, 1936, the court, after hearing said motion, set the bond forfeiture aside, and continued the case for the term. On May 13, 1937, the case was set for trial on June 1, 1937. On May 17, 1937, the defendant filed a. demurrer to the information and the same was overruled on the same date. On June 2,1937, a motion for continuance was filed by defendant on account of illness. The record does not disclose that this motion was passed upon, but the case went to trial on the 3d day of June, 1937. The defendant was present and testified in his own behalf.

Under the above statement of the record, we are of the opinion that the defendant, by his own conduct, waived any right he may have had to a more prompt and speedy trial, as guaranteed under the Constitution and laws of this state.

The facts in the case of Petitti v. State, 11 Okla. Cr. 234, 145 P. 305, relied upon by defendant for a reversal of this case, are different from the facts here presented. In that case the court stated that two terms of the district court had passed before the magistrate filed his transcript in the office of the court clerk, and that three terms of court had passed without an information being filed against the defendant. The facts in the instant case show that an information was filed during the term immediately following the filing of the transcript, and that the trans-script was filed five days after the preliminary was held. The same statement applies to the cases of Day v. State, 50 Okla. Cr. 180, 296 P. 987, and McLeod v. Graham, 6 Okla. Cr. 197, 118 P. 160.

In support of the position above taken, see: Murray v. State, 19 Okla. Cr. 322, 198 P. 973; Hollingsworth v. State, 50 Okla. Cr. 164, 297 P. 301; Stroud v. State, 57 Okla. Cr. 273, 47 P. 2d 883; Ex parte Meaner, 35 Okla. Cr. 252, 250 P. 541.

It is next contended that the court erred in permitting the county attorney to indorse the name of Rex Alexander upon the information after the case was called for trial. We have examined the record and the evidence of this witness, and do not think the error complained of, if any, was sufficient to cause a reversal of this case. It has generally been held by this court that permission to place the name of a witness upon the information is in the sound discretion of the trial court. Unless this discretion has been abused, there should be no interference on the part of the appellate court. Thomas v. State, 20 Okla. Cr. 151, 201 P. 662.

The contention that the court erred in permitting the introduction of incompetent and improper evidence will be considered under other assignments of error.

It is contended that the court erred in giving instruction No. 5, which is as follows:

“Gentlemen, you are instructed that the laws of this state provide: ‘It shall be unlawful for any person who is under the influence of intoxicating liquor, or who is an habitual user of narcotic drugs, to operate or drive a motor vehicle on any highway within this state, and any person violating the provisions of this section shall be deemed guilty of a felony and shall be punished by imprisonment in the penitentiary not more than one year, or by a fine of not more than two thousand dollars (|2,000.00), or by both such fine and imprisonment.’ ”

The contention being that section 10324, Okla. Stats. 1931, 47 Okla. St. Ann. § 93, which creates and defines the offense of operating an automobile while under the influence of intoxicating liquor, also makes it unlawful for one who is an habitual user of narcotic drugs to operate and drive a motor vehicle upon the highways of this state. That the two crimes are separate and distinct, and that by reason of instruction No. 5, mentioning the term “or who is an habitual user of narcotic drugs”, that defendant was charged and made to answer for a separate and distinct offense. We do not think such a construction should be placed upon this instruction. It was merely quoting, as stated by the court, the exact terms of the statute. There was no evidence that defendant was under the influence, or a habitual user of narcotic drugs. The jury evidently did not in any way consider this fact in arriving at their verdict. This instruction should be read in connection with instructions Nos. 6, 7, and 8. In all of these instructions only that part with reference to being “under the influence of intoxicating liquor” is referred to, and in no way were the jury instructed to consider the fact that defendant “was an habitual user of narcotic drugs.” All of the instructions should be considered as a whole.

The court, in instruction No. 6, defined the term, “under the influence of intoxicating liquor,” as follows:

“You are instructed that to be ‘under the influence of intoxicating liquor’, as these words are used in the statute under which this prosecution is brought, means that the accused must have been sufficiently under the influence of intoxicating liquor to materially affect his mental or physical ability to drive a car on the public highway, or to materially affect his judgment in meeting the ordinary exigencies incident to driving a car on the public highway.”

It is contended that this instruction is erroneous in view of a recent opinion of this court in the case of Luellen v. State, 64 Okla. Cr. 382, 81 P. 2d 323. In the Luellen Case it was held that when a defendant was charged under the statute above quoted, it was best for the court to define the term “under the influence of intoxicating liquor,” so that the jury would be able to determine from the facts whether the defendant was under the influence of intoxicating liquor, and there would not be a chance of mistrials by reason of different interpretations attempted to be placed upon the term by different jurors. After an examination of many definitions, we gave one which we deemed a good one. Not that it was the only definition, because many courts had defined the terms in other words, which might be just as appropriate as the one suggested. The definition given in instruction No. 6 defined the term so that the jury could have some knowledge of what the term meant. In general terms it was the same as the definition suggested in the Luellen Case. We find no error in the giving of the same.

It is next contended that the court erred in refusing to give three instructions requested by defendant. The first requested instruction was to the effect that under the law of this state 3.2 per cent, beer was not intoxicating, and that unless the jury found that defendant was operating a motor vehicle while under the influence of intoxicating liquor containing in excess of 3.2 per cent, of alcohol, that defendant should be acquitted. In the recent case of Ashcraft v. State, 68 Okla. Cr. 308, 98 P. 2d 60, we have held against this contention, holding that the statute defining intoxicating liquor had specific reference to taxing and licensing of beverages and had no application to the statute under which defendant was charged and tried. The other two requested instructions singled out certain evidence that was introduced, and while the statements made were correct propositions of law, they were covered by the general instructions, and the court did not commit error in refusing to give them.

The contention that the trial court did not require the court reporter to take the full speech of the county attorney and special prosecutor, and that the argument made by them as prejudicial will be considered in connection with other assignments of error.

It is finally contended that the verdict and punishment is excessive, and was given under the influence of passion and prejudice.

The defendant in this case was given the extreme penalty under the law, a fine of $2,000 and one year in the penitentiary. The charge in this case was the result of a collision of the automobile of defendant and one driven by Omer Gearin, who had with him his wife and two minor children. Basil Smith was in the car of defendant at the time of the collision, which occurred about two miles west of Sapulpa, in Creek county, on ü. ,S. Highway No. 66. Neither Mr. Gearin nor his wife and children were injured. His car was damaged. The defendant’s car turned over two or three times, and he was injured about the head.

The evidence of the witnesses for the state was to- the effect that defendant was under the influence of intoxicating liquor at the time of the collision, and that he was driving on the wrong side of the road. Mr. Gearin and his wife testified that two of the wheels' of his own car were off the pavement in his attempt to keep the defendant’s car from striking him. Officers and others testified that defendant was drunk immediately after the collision.

The defendant and Basil Smith testified that defendant was not drunk. That they had been in Oklahoma City on business and were returning to their home in Tulsa. That they stopped at Bristow and defendant had drunk a bottle of beer, and that was the only liquor he had drunk during the day. The jury was amply justified in finding from the evidence that the defendant was not only under the influence of intoxicating liquor at the time of the collision, but that he was drunk and staggering. There is no question as to the right of the jury to return a verdict of guilty. The question is, Is it excessive, and was it rendered under passion and prejudice?

The defendant was a young man, a resident of Tulsa. He was arrested by officers of Creek county and taken to the police station in Sapulpa. At the time of his arrest, according to the testimony of different officers, he made the following statement: “I am Dick Daniels, Jr.; I live in Tulsa; my dad owns the Daniels Building over there; you can’t do this to me; I want to use the telephone; he wanted to call over there and just weaved around continually.”

Another state witness testified: “Well he made one when he was going to the cell to lay down, he said, ‘My name is R. T. Daniels, Jr., and my dad owns the Daniels Building in Tulsa, and I can buy this God-damned police department if I want to.’ ” Also*, “He made the statement that be bad some men working on drilling wells in Creek county, and be would see that they didn’t spend no more money in Creek county.”

These statements are the statements of a misguided youth. Foolish in the extreme, and unjustifiable and inexcusable in every way. Yet he was expressing the views of many young boys of today who have good fathers and. mothers, and who have earned their money by the sweat of their brows. They think that by reason of the standing and influence of these good fathers, they are immune from arrest; that they have the right of the road, and that they ought to be permitted by reason of that fact to have others stand aside and permit them to pass.

There is nothing wrong with the verdict in this case. The wrong, if any, is with the penalty prescribed by section 10324, Okla. Stats., 1931, 47 Okla. St. Ann. § 93. And while it is true that the Legislature has the right to pass any law that they see fit, laws are sometimes enacted which the people refuse to enforce. The statute under consideration provides for a maximum penalty of one year in the penitentiary and a fine of $2,000. There can be no doubt that the jury returned this verdict under passion and prejudice by reason of the testimony of the officers as to statements made by defendant at the time of his arrest as above stated. There is not much question that had the statute under question given the jury the right to assess a jail sentence, they would have given this defendant a jail sentence instead of a penitentiary sentence. While his statements were without justification, there is nothing in the record to show that he has ever committed any crime, and he bears a good reputation as far as not being a criminal. He deserves punishment, and if the statute permitted, we would not hesitate sending him to jail, but we do not think that the ends of justice would be met by sending Mm to the penitentiary and making of him a felon, under the facts in this case. No one was injured but himself. We are of the opinion that this judgment and sentence should be modified from one year in the penitentiary, and a fine of $2,000, to a fine of $1,000 and costs. The ordinary layman who serves on the jury does not often realize the punishment inflicted by the levying of a fine. Under the law, if this defendant could not pay the fine Avhich we have assessed of $1,000 and costs, it would be necessary for him to remain in jail over three years to satisfy its terms under the law. Oklahoma Statutes 1931, section 3169, 57 Okla. St. Ann. § 20.

For the reasons above stated, the judgment and sentence of the district court of Creek county is modified from one year in the penitentiary, and a fine of $2,000, to a fine of $1,000 and costs; and as so modified is affirmed.

DOYLE, P. J., concurs.


author: DOYLE, P. J.

text:
    A. E. WILLIAMS v. STATE.
    No. A-9517.
    Jan. 19, 1940.
    (98 P. 2d 621.)

      Gerald Spencer, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is prosecuted from a judgment of conviction had in the county court of Grady county, wherein appellant, A. E. Williams, was found guilty of unlawful possession of intoxicating liquor and his punishment assessed at a fine of $50 and confinement in the county jail for 30 days.

There is only one of the assignments of error briefed and argued. This assignment is based upon the overruling of the motion to suppress the state’s evidence.

The record discloses that on October 9, 1937, on affidavit for search warrant was made before Harold E. Hafer, justice of the peace, by H. A. Mitchell, alleging that whis-ky, beer, wine, and other intoxicating liquors are being kept by one A. E. Williams, on the following described premises, in Grady county:

“Premises known and described as the Second (2nd) house east of Highway No. 81, on West Michigan Avenue, on the" North Side of said Avenue, Just West of the City Limits of the City of Chickasha, Grady County, State of Oklahoma, and in the dwelling, barn, dugout and the curtilage thereof and appurtenances thereto on said above described land.”

It is also alleged that said building is a private residence, occupied as such and is a place of public resort.

. The undisputed facts are that affiant, Mitchell, a deputy sheriff, in executing a search warrant proceeded to the premises described and there served a copy of the search warrant on appellant, and with another officer made a search and discovered 15 pints of whisky in a metal tank, buried under the floor of the henhouse on the premises.

When the case was called for trial there was a motion to suppress the evidence obtained under the search warrant on the ground that the search warrant was not issued, served and returned according to' law, and particularly on the ground that the affidavit for the search warrant does not sufficiently describe the place or premises to be searched.

Following, the hearing the trial court ruled:

“I find that Highway 81 is not a controlling description of the premises of the defendant, and that irrespective of said description the premises of the defendant can be located with reasonable certainty. The motion to suppress the evidence is overruled. Exception allowed.”

We deem it sufficient to say that the affidavit and search warrant issued thereon sufficiently describe the place to be searched.

In State v. Skelton, 36 Okla. Cr. 377, 254 P. 754, it is said:

“A motion to suppress evidence on the ground that the affidavit for search warrant is insufficient should be overruled, where the constitutional and statutory requirements and sufficient evidentiary facts are stated in the affidavit to warrant the magistrate in making a finding, of probable cause.” Ross v. State, 38 Okla. Cr. 252, 260 P. 90.

The record discloses that appellant had a fair trial. The judgment of conviction herein is accordingly affirmed.

BAREFOOT, J., concurs.


text:
    BOB SIMMONS v. STATE.
    No. A-9555.
    Jan. 19, 1940.
    (98 P. 2d 623.)

      Ámil H. Japp, of Lawton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This is an appeal from the district court of Kiowa county, wherein appellant, Bob Simmons, was convicted of the crime of grand larceny, and on February 19, 1938, was in accordance with the verdict of the jury, sentenced to serve a term of two- years’ imprisonment-in the state penitentiary.

The petition in error and case-made were filed in this court August 19, 1938.

The information jointly charged Bob Simmons, Alfred Dicks and Joe Dodson, with the larceny of one and one-half ton Wright Highspeed chain hoist, of the value of $50, the personal property of Parsons Brothers Granite Company, a partnership, doing business in Mountain Park, Kiowa county.

Appellant in his brief states:

“It is the contention of the defendant that there is only one question involved in this appeal, under the Constitution of Oklahoma, the defendant as a matter of right was entitled to compulsory process for his witnesses. This right was denied to him.”

It appears from the record, that on February 8, 1938, counsel for appellant filed with the court clerk an affidavit for process for five witnesses, residents of Comanche county. While the affidavit is addressed to Hon. Cham Jones, district judge, it does not appear that it was ever presented to- said district judge, or that any order of the judge of the court was made for the attendance of such witnesses.

The record shows that a subpoena was issued and served February 9, 1938, by the sheriff of Comanche county on each witness named in the affidavit.

On February 16, 1938, the case came on for trial in the district court of Kiowa county, Jno. B. Wilson, presiding judge, and both sides announced ready for trial. Thereupon a jury was duly impaneled and sworn to well and truly try said cause and a true verdict render.

Thereupon Mr. Japp, counsel for defendant, moved the court to issue an attachment for Joe B. Dodson, one of the Comanche county witnesses who had been served with a subpoena. The court having refused the attachment, counsel for defendant moved the court for a continuance on the ground that said Joe Dodson, who resides in Law-ton, is in the C. C. C. Camp, at Cache, Comanche county, a material witness, and if present would testify that he was with the defendant at Mountain Park; that said defendant did not take from the Parsons Brothers the one and one-half ton hoist, and that said defendant did not have said hoist in his possession until sometime thereafter, in the city of Lawton. That said witness was present when the defendant sold said hoist to one Yarmuck. Application for attachment is made a part of the motion for continuance.

In support of the contention made, appellant cites and quotes excerpts from the opinions of this court in the following cases: Lyons v. State, 6 Okla. Cr. 581, 120 P. 665; Noel v. State, 17 Okla. Cr. 308, 188 P. 688; Yeatman v. State, 34 Okla. Cr. 20, 244 P. 828; Morse v. State, 63 Okla. Cr. 445, 77 P. 2d 757.

Upon the record in the instant case, appellant is in no position to complain. The motion for attachment for the witness, Dodson, was properly denied.

The Code of Criminal Procedure provides:

No person is obliged to attend as a witness, before a court or magistrate out of the county where the witness resides or is served with the subpoena, unless the judge of the court in which the offense is triable, upon an affidavit of the county attorney, or of the defendant or his counsel, stating that he believes that the evidence of the witness is material and his attendance at the examination or trial necessary, shall indorse on the subpoena an order for the attendance of the witness.” Section 3024, 22 Okla. St. Ann. § 715.

There was no compliance with the provisions of the foregoing section. The trial judge did. not indorse on the said subpoena an order for the attendance of the witnesses.

A witness not residing in the county could not be compelled to attend, unless served with a subpoena, on which the trial judge had indorsed an order for the attendance of said witness. Hudson v. State, 20 Okla. Cr. 435, 203 P. 482.

Since the witness, Dodson, was under no legal obligation to attend under the subpoena which had been served upon him, he was not subject to attachment, and the issuance of said attachment by the court would have been unauthorized.

In the case of White v. State, 9 Okla. Cr. 442, 132 P. 381, 382, we said:

“A defendant should not wait until his case is called for trial before he asks for an order of court to1 command the attendance of a witness resident in another county of the state. The rule is well settled that an application for continuance in a criminal case is addressed to the discretion of the trial court; and its action thereon will not be reviewed, unless there appears to have been a clear abuse of discretion.”

In the case of Rucker v. State, 64 Okla. Cr. 259, 79 P. 2d 629, 632, tbis court said:

“An application for continuance on account of the absence of a, witness must show diligence has been used to procure the witness or his testimony. When this is not made to appear, it is not error to overrule such application. Gentry v. State, 11 Okla. Cr. 355, 146 P. 719; Hunt v. State, 38 Okla. Cr. 294, 260 P. 512.
“Under our statutes, the granting or refusing of such application is a matter within the judicial discretion of the trial court. In reviewing the refusal of a continuance, on account of an absent witness, the testimony taken in the trial is considered by this court for the purpose of determining whether the absent testimony -was probably true, as well as whether it was material, if true.”

It follows from the foregoing that the court did not abuse its discretion in overruling the motion for a continuance.

In conclusion we simply add that it appears that the trial was fair and the conviction of appellant- was just and merited.

Finding no material error in the record, the judgment appealed from herein is accordingly affirmed.

BAREFOOT, J., concurs.


text:
    LOUIS B. FINKELSTEIN v. STATE.
    No. A-9540.
    Jan. 25, 1940.
    (99 P. 2d 167.)

      David Tant, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Lewis R. Morris, Co. Atty., and Walter Marlin, Asst. Co. Atty., both of Oklahoma City, for the State.
   BAREFOOT, J.

The defendant was charged in Oklahoma county with the crime of receiving stolen property; was tried, convicted and sentenced to pay a fine of $250 and serve 90 days in the county jail, and has appealed.

It is contended that the verdict and judgment is not sustained by sufficient evidence; that the conviction was based upon the uncorroborated testimony of an accomplice; and that the record shows the judgment was founded solely upon perjured testimony. All of these assignments may be considered together.

The defendant, Louis B. Finkelstein, was engaged in the junk and auto salvage business at 800 South Broadway street, Oklahoma City, and had been so engaged for 21 years. He was charged with receiving stolen properly, to wit: Two hundred fifty-five pounds of lead junk of the value of $10.20, on the 8th day of June, 1937, from two hoys, Jimmie Wilson and James Boss.

Each of these boys testified that they had stolen the above-described lead from the Southwest Battery Company, in the nighttime, and while the night watchman was not looking, and that they had stolen lead many times previous to this, and had sold the same to defendant on ten or twelve different occasions from February 22, 1937, to June 8,1937, always carrying it in tow sacks and selling it to the defendant in person. They also testified that on one occasion, prior to the sale on the 8th of June, they had told the defendant it had been stolen, and after that he made no inquiry as to where they had received it.

Their testimony was corroborated by the officers of the Southwest Battery Company, who1 testified to the losing of the lead, and who identified it at the place of business of the defendant, where it was located by the police officers, and was in tow sacks lying near the scales where it had been weighed. These police officers testified to the finding of the property at the defendant’s place of business a few days after the 8th of June, 1937, and of the taking of each of the boys to that place of business, and of the defendant identifying them as the ones who had sold him the property.

The record reveals that each of these witnesses, Jimmie Wilson and James Boss, while in the county jail, made written statements in which they stated that the testimony which they had given at the preliminary examination was untrue, and that at no time had they told the defendant, Louis B. Finkelstein, that tbe property bad been stolen. These statements were prepared by some attorney who handed them to a trusty, and were signed by each of the witnesses while in jail. At the time of the trial they claimed they were forced to sign these statements by reason of the attitude of their fellow prisoners in jail, and they were afraid not to sign the same.

The record also reveals that after the trial was over and defendant had been convicted, and at the time motion for new trial was presented, affidavits were attached thereto' which showed that these two witnesses appeared before the attorney representing the defendant and informed him they desired to make affidavits stating that part of the evidence given by them at the trial was false. Defendant’s attorney called in a disinterested lawyer, and a reputable member of the Oklahoma county bar, and he took statements from each of the witnesses, in which they stated that they had testified untruthfully at the trial of defendant when they stated that they had informed him that the lead which they sold him was stolen. No other part of their testimony was questioned.

The cases from this court cited in defendant’s brief uphold the doctrine that it is necessary to corroborate an accomplice before a conviction may be had in this state. The Oklahoma Statutes so- provide, Oklahoma Statutes 1931, section 3071; 22 Okla. St. Ann. § 742, but the decisions, in construing this statute, do not support the doctrine that defendant and the witnesses, Jimmie Wilson and James Ross, were accomplices of the defendant under the facts in this case.

In the ease of Key v. State, 38 Okla. Cr. 169, 259 P. 659, cited by defendant, the general rule is stated that a person who steals property is not an accomplice of the one who receives the property knowing it to be stolen. They are independent crimes. The case recognizes an exception to- this general rule, that where the person who commits the theft and the one who1 receives the same conspire together in a prearranged plan for one to steal the property and deliver the same to the other, the one who receives it is then an accomplice of the one who commits the theft, and the one committing the theft is an accomplice of the one who receives it. This is not the fact in the instant case. The defendant himself denies that he had any agreement of any kind with the witnesses, Jimmie Wilson and James Ross, or that he had any knowledge that the property was stolen. There is no evidence that there was any arrangement between the defendant and the witnesses for them to steal the property and deliver the same to him. This general rule is announced in the case of White v. State, 28 Okla. Cr. 198, 214 P. 202, cited by defendant. There the evidence discloses an agreement between the defendant and the persons committing the theft. Also the cases of Logan v. State, 23 Okla. Cr. 316, 214 P. 944, and Yeargain v. State, 57 Okla. Cr. 136, 45 P. 2d 1113.

The cases from other jurisdictions cited by defendant, State v. Keithley, 83 Mont. 177, 271 P. 449, and, State v. Coroles, 74 Utah 94, 277 P. 203, are to the same effect. The cases from this court- which uphold the doctrine announced as the general rule are: Buttry v. State, 18 Okla. Cr. 330, 194 P. 286; Brownell v. State, 33 Okla. Cr. 323, 244 P. 65; Pringle v. State, 32 Okla. Cr. 187, 239 P. 932.

The contention that the judgment and sentence is based upon perjured testimony cannot be sustained. It is true that after the trial and conviction of this defendant, the witnesses, Jimmie Wilson and James Ross, made affidavits that part of the evidence which they gave at the trial, that they had told defendant that the property was stolen, was false, but there was no denial of any other part of their testimony. Of the fact that the property was stolen there can be no doubt. This case was tried before the court, a jury having been waived by the defendant. The court, no doubt, came to the conclusion, as he should have done, that from the facts and circumstances surrounding this case, the defendant should have had knowledge, and did know, that the property was stolen without the necessity of being informed by the boys themselves.

In the case of Martin v. State, 34 Okla. Cr. 274, 246 P. 647, 648, cited by defendant, the court says:

“It would be a dangerous rule to allow, generally, a conviction to be overturned by the ex parte affidavit of a witness that he committed perjury in the trial of the case. Ryal v. State, 16 Okla. Cr. 266, 182 P. 253. If the filing of such an affidavit were generally recognized as a sufficient ground for a new trial as newly discovered evidence, we should see convicted criminals pursuing witnesses who had testified against them endeavoring to procure affidavits impeaching their own testimony.”

If the evidence was such that upon it alone the verdict had been rendered, or that the other evidence in the case was such as to cause one to believe that the crime may not have been committed, it would be much more appealing, but as where in the instant case there was sufficient evidence upon which to base a conviction even though the evidence given was not true, there would be no error in the trial court overruling the motion for new trial, based upon such affidavits. It will be noted that the case of Chappell v. State, 6 Okla. Cr. 398, 119 P. 139, cited by defendant, is overruled by the case of Ryal v. State, 16 Okla. Cr. 266, 182 P. 253.

Here we have an experienced business man, who had been buying junk and second-hand property for many years. Two young boys presenting to him, not only once, but according to bis testimony, six or eight times, and according to their testimony, ten or twelve times, tow sacks of lead. The only question he asked was their names and addressses, and where they got the property. Just enough, as he thought, to satisfy the city ordinance, which required him to keep certain information as to all property bought. He made no effort tO' investigate if the proper name and address was being given by the boys. As a matter of fact, one of the boys gave him an assumed name, and did not live at the address given. No effort to ascertain if they were telling the truth as to where they secured the property.. How easy it would have been for this defendant to have called the officers of the law and had them satisfy themselves before making this purchase of lead from these young boys. One of them had been arrested and before the courts of this city and county on charges of stealing upon several different occasions. If an inves- ■ tigation had been made, the purchase would never have been made by this defendant and he would not now be before the courts. It is just such practices as this by those Who deal with many young boys of this city and state that is causing them to steal and pilfer. They have too easy an outlet for the property which they steal and the officers of this county and state are to' be commended for prosecuting the ones who receive the stolen property the same as those who steal it.

The trial court, at the time of announcing the judgment in this case, said:

“I have known the Finkelstein family here for many years, different branches of that family. This defendant in this case had two prior convictions on the same sort of an offense. It is true that he has a wife and six or seven children. I do not doubt but what he is a pretty good citizen, pays his taxes and spends his money here and supports his family and does the best he can by them. There is no question on earth in my mind, but what he knew this was stolen property. If there was any question about that at all, I would turn him loose.”

With the knowledge that this defendant had been convicted upon two prior occasions, and a finding that defendant knew the property was stolen at the time he purchased the same, the court was indeed lenient with him when he only assessed a fine and jail sentence.

We find no error in the record and the judgment and sentence of the district court of Oklahoma county is therefore affirmed.

DOYLE, P. J., and JONES, J., concur.


text:
    JOHNNIE WILLIAMS v. STATE.
    No. A-9556.
    Jan. 25, 1940.
    (98 P. 2d 937.)

      Eaton & Wheeler, of Okmulgee, for plaintiff in error.
    Mac Q. Williamson, Atty Gen., and L. A. Wallacé, Co. Atty., of Okmulgee, for the State.
   BAREFOOT, J.

Defendant was charged with the crime of rape in Okmulgee county; was tried, convicted and sentenced to serve a term of 60 years in the penitentiary, and has appealed.

This is the second conviction of this defendant upon this charge. His prior conviction was reversed by this court. Williams v. State, 61 Okla. Cr. 396, 68 P. 2d 530. The facts were stated fully in that opinion, and it is unnecessary to repeat them here. It Avill be noted that the former case was reversed because the evidence was insufficient to sustain a conviction. The evidence introduced in this trial was substantially the same as that introduced in the former trial with two exceptions which will hereafter be noted.

The witness Tom Berry, a deputy sheriff, Avas permitted to testify that immediately after the arrest of the defendant some four days after the crime had been committed, he wrent to the home of the mother-in-law of defendant, which was also the home of defendant, for the purpose of searching the premises ; that he did not procure a search warrant, but that while on the premises he observed a tan shirt and a pair of blue bib overalls on a clothes line. That they had been recently washed. There had been testimony by those who identified the defendant that he was wearing clothes of this description at the time they saw him. ¡Some of the witnesses testified that he was wearing a grey shirt.

The additional evidence was that of Joanna Burk-halter, and an attempt to offer the evidence of Bessie Shamley, which was finally excluded by the court. The court first excused the jury and heard the evidence of these witnesses in the absence of the jury. After hearing the evidence, the court decided to exclude the evidence of the witness Bessie Shamley, but permitted the evidence of the witness Joanna Burkhalter to go to the jury. Before the jury was excused, the witness Bessie Shamley was placed upon the stand and in the presence of the jury was asked: “Q. What is your age? A. Was I raped ?”

A few preliminary questions were asked and at the request of counsel for defendant, the jury was then excused and the court heard the evidence in their absence. After the court had decided that the evidence of Bessie Shamley could not be introduced, the county attorney was permit-ed, after the witness Joanna Burkhalter had testified, to place the witness Bessie Shamley upon the witness stand in the presence of the jury, as he stated, for the purpose of making a record and she was asked:

“Q. Are you the same Bessie Shamley that testified in this case yesterday afternoon? A. Yes, sir. Q. In the presence of the court, but in the absence of the jury? A. Yes, sir, I am. Q. And you are ready and willing to testify to the jury now as you did yesterday afternoon? A. Yes, sir, Mr. Eaton: We object to that, as to- whether she is ready and willing to testify. Mr. Wallace: Now, if the court please, we tender the testimony of this witness, as given in the presence of the court, and in the absence of the jury, yesterday. The Court: The objection to the offer and tender will be sustained for the reasons stated, as inadmissible because of its remoteness. Mr. Wallace: Exception. That is all, the witness may be excused.”

Without going into a discussion of the evidence of these two witnesses, one of which was admitted to the jury, it may be said that they testified to defendant having raped Bessie Shamley, and attempted to rape Joanna Burkhalter. The rape of Bessie Shamley having occurred in May, 1935, and the attempt to rape of Joanna Burk-halter in November, 1935. The defendant in this case was charged with the rape of the prosecuting witness, Leota Smith, on the 15th day of June, 1936. The court refused to admit the evidence of the witness Bessie Sham-ley because of its remoteness, but admitted the evidence of Joanna Burkhalter.

From a reading of the record and the evidence given by the witness Bessie Shamley before the court, one might assume that this evidence was not only excluded by reason of its remoteness, but also' by reason of its unreasonableness. It is not only unreasonable, but practically impossible for the defendant to have done the things testified to by this witness.

While the record does not disclose, and this case has not been briefed by the state, it may be presumed that the evidence of the witness Joanna Burkhalter was permitted to be introduced on the ground that there are well-founded exceptions to the general rule, that evidence of other crimes may not be admitted, and that based upon the fact that the evidence is so connected that it will throw light upon the guilt of defendant, or that it was committed as a part of the same transaction, and is a part of the res gestae, or proves a scheme or intent on the part of the defendant, or to prove guilty knowledge. Also that the general rule does not apply to cases involving illicit sexual relations. Pruett v. State, 35 Okla. Cr. 359, 250 P. 1029. This is where the act was between the same and not different parties, and at different times. See, also, Morris v. State, 9 Okla. Cr. 241, 131 P. 731; Ellsworth v. State, 10 Okla. Cr. 452, 137 P. 1188, 1189; Koontz v. State, 10 Okla. Cr. 553, 139 P. 842, Ann. Cas. 1916A, 689; State v. Rule, 11 Okla. Cr. 237, 144 P. 807; Reniff v. State, 53 Okla. Cr. 448, 13 P. 2d 592; Boyer v. State, 68 Okla. Cr. 220, 97 P. 2d 779.

The general rule, which is universally folio-wed by the courts of this countoy, is that evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent of that for which he is on trial, even though it is a crime of the same sort, is irrelevant and inadmissible. To this general rule there are several well-defined exceptions, but by the recognition of these exceptions the courts should not permit the annihilation of the general rule. The general rule is founded in reason. A defendant, when placed upon trial for the commission of an offense, comes prepared only to meet the offense of which he stands charged, and he cannot in the nature of things be prepared to defend against other charges of crimes, which are independent and have no- connection with the crime of which he stands charged. Moreover, it is not the policy of the law to convict a man of one crime by showing that he is guilty of another. Nor is it the law to permit the state to attack the character of the defendant unless he first puts it in issue by offering evidence of his good character.

The recognized exceptions to this general rule are:

(1) Evidence of other offenses similar to' that charged is relevant and admissible, when it tends to prove some element of the one charged, as when it shows or tends to show guilty knowledge or intent in the commission of the offense charged.

(2) Evidence that tends directly to' prove the defendant’s guilt is not rendered inadmissible because it proves or tends to prove him guilty of another and distinct offense.

(3) Evidence of a different offense from the one charged is admissible when both offenses are so closely linked or connected as to form a part of the res gestae.

Evidence of other offenses is competent to prove the specific offense charged when it tends to establish a systematic scheme or plan embracing the commission of two or more offenses so related to each other that proof of one tends to establish the other, or to connect the defendant with the commission of the offense charged.

These exceptions are founded on as much wisdom and justice as the rule itself. This court has often recognized the exceptions to the general rule. The case of Boyer v. State, supra, fully discusses the exceptions to the general rule, and recognizes When they are applied. State v. Rule, 11 Okla. Cr. 237, 144 P. 807; Koontz v. State, 10 Okla. Cr. 553, 139 P. 842, Ann. Cas. 1916A, 689; Reniff v. State, 53 Okla. Cr. 448, 13 P. 2d 592; Miller v. State, 13 Okla. Cr. 176, 163 P. 131, L. R. A. 1917D, 383; Carter v. State, 35 Okla. Cr. 421, 250 P. 807.

The case of State v. Lapage, 57 N. H. 245, 24 Am. Rep. 69, is one of the leading eases which discusses this general principle, and the facts in that case are almost identical with the facts in the case at bar. In this case the court said:

“To make one criminal act evidence of another, a connection between them must have existed in the mind of the actor, linking them together for some purpose he intended to accomplish; or, it must be necessary to identify the person of the actor by a connection which shows that he who committed the one must have done the other. Without this obvious connection, it is not only unjust to the' prisoner to compel him to acquit himself of two of-fences instead of one, but it is detrimental to justice to burden a trial with multiplied issues that tend to confuse and mislead the jury. The most guilty criminal may be innocent of other offenses charged against him, of which, if fairly tried, he might acquit himself. From the nature and prejudical character of such evidence it is obvious it should not be received, unless the mind plainly perceives that the commission of the one tends, by a visible connection, to prove the commission of the other by the prisoner. * * #
“But however extreme the case may be, I think it will be found that the courts have always professed to put the admission of the testimony on the ground that there was some logical connection between the crime proposed to be proved other than the tendency to commit one crime as manifested by the tendency to commit the other.
“In the case under consideration, I cannot see any such logical connection, between the commission of the rape upon Julienne Rousse and the murder of Josephine Lang-maid, as the law requires. I am unable to see any connection by which from the first crime can be inferred that the respondent was attempting the commission of a rape when he committed the murder, if he did it, other than such inference as I understand the law expressly to exclude. Proof of the first crime would show that the respondent was a very bad man — would perhaps show a tendency or disposition to commit that particular crime; but it would go no further, and in fact would amount to little more than an attack upon the respondent’s character, which is inadmissible unless he puts it in issue, and an attack upon his character by showing particular acts, which is also inadmissible. * * *
“I mention this case to' illustrate the necessity of extreme caution not to admit such testimony unless there can be seen some distinct logical connection, such as the law requires, between the fact proposed to be proved and the fact in issue. * * *
“The matter really reduces itself to attacking the prisoner’s character by the proof of particular acts, which the authorities clearly show to be inadmissible. * * *
“What, then, is the question presented by this exception ? Clearly, no other than this: was evidence that the prisoner committed rape upon Julienne Rousse, in Canada, in 1871, legally admissible to show that he committed or attempted to commit rape upon Josie A. Langmaid, at Pembroke, in 1875? There was no question as to the defendant’s physical strength and ability to commit the crime of rape. By no refinement, therefore, can State v. Knapp, 45 N. H. 148, be said to apply. There is no room nor occasion to argue that the actual perpetration of rape upon one woman tends to show physical strength sufficient to commit the same upon another. No such connecting link is in the case. The simple naked question is that just stated, namely, Can evidence that he committed rape upon one woman be received as evidence from which the jury may find that he committed rape upon another? — the two events being entirely independent and distinct, — no way connected in time, or place, or circumstances; and we cannot, in my judgment, suffer that question to be changed in form, or to be covered up and disguised by vague and general observations as to the matter or intent, however astute and plausible, without imminent danger of losing our way in a wilderness of fallacy and error. The answer to that question is to be sought for in the recognized authorities of the common law; and I must say, that if there is any break in those authorities, any want of unanimity in the answer which they give, I have failed to discover it. Doubtless some of these cases to which we have been referred run pretty near the line. But no court has yet said, to my knowledge, that the commission of one crime is legal evidence of the commission of another, when there is no connection of time, or place, or circumstance, or intent between the two, except that the commission of the first tends to show a heart capable of committing the second. * * *
“Suppose the general character of one charged with crime is infamous and degraded to the last degree; that his life has been nothing but a succession of crimes of the most atrocious and revolting sort: does not the knowledge of all this inevitably carry the mind in the direction of a conclusion that he has added the particular crime for which he is being tried to the list of those that have gone before? Why, then, should not the prosecutor be permitted to show facts which tend so naturally to produce a conviction of his guilt? The answer to all these questions is plain and decisive: The law is otherwise. It is the law, that the prisoner shall be presumed innocent until his guilt is proved: it is the law, that his bad character shall not be shown by the State until he has put that matter in issue by attempting to' show good character for himself: it is the law, that the credit of a witness shall not be impeached by showing specific instances of .falsehood against him: and it is the law, that evidence of the commission of one crime shall not be received to show the commission of another when there is no connection between the two. * * *
“In this case there was no- connection whatsoever between the rape of Julienne Rousse in 1871 in Canada, and the murder of Josie Langmaid in New Hampshire in 1875. There can be no pretence that they are continuous parts of one transaction; that when the rape was committed upon Julienne Rousse, in 1871, the prisoner had any design to commit a rape upon or to murder Josie Langmaid, or any other woman, in 1875. The two acts are so wholly distinct and separate, that when the prisoner formed the design of committing a rape upon Julienne Rousse, and carried that design into effect in 1871, he did not- and could not, as a part of that evil design and act, or as a consequence thereof, have then premeditated the murder of Josie Langmaid, or the perpetration of rape upon her.
“No point is better settled than that the State cannot give evidence of the bad character of the respondent, unless he shall first put his character in question by introducing evidence in support thereof.”

We have quoted freely from the above case for the reason that the facts are very similar to those in the case at bar, and the reasoning and argument, to our mind, is unanswerable. We shall be content to cite some of the leading cases, and call attention to the fact that our own court has passed directly upon this point in the case of Brockman v. State, 60 Okla. Cr. 75, 61 P. 2d 273, 276, in an opinion by Judge Doyle. In that case the facts were very similar to the facts here, except that the other offenses were committed immediately prior to the commission of the offense charged, and in the instant case the prior offense ivas seven months before the crime charged. In that case the court said:

“However, we do not think that the admission of the evidence in question to the defendant’s prejudice was, by any means, cured by giving the aforesaid instruction. Such evidence gives opportunity for the conviction of an accused person upon mere prejudice instead of by evidence showing the actual commission of the crime for which a defendant is on trial. It compels a defendant to meet separate and distinct charges of crime, which he might successfully refute if given the opportunity to do so, unembarrassed by other issues.”

In the case of Boyd v. United States, 142 U. S. 450, 12 S. Ct. 292, 295, 35 L. Ed. 1077, the court says:

“Whether Standley robbed Brinson and Mode, and whether he and Boyd robbed Hall, were matters wholly apart from the inquiry as to the murder of Dansby. They were collateral to the issue to be tried. No notice was given by the indictment of the purpose of the government to introduce proof of them. They afforded no legal presumption or inference as to the particular crime charged. Those robberies may have been committed by the defendants in March, and yet they may have been innocent of the murder of Dansby in April. Proof of them only tended to prejudice the defendants with the jurors, to draw their minds away from the real issue, and to produce the impression that they were wretches whose lives were of no value to the community, and who were not entitled to the full benefit of the rules prescribed by la.iv for the trial of human beings charged with crime involving the punishment of death. Upon a careful scrutiny of the record we are constrained to hold that, in, at least the particulars to which we have adverted, those rules were not observed at the trial below. However depraved in character, and however full of crime their past lives may have been, the defendants were entitled to be tried upon competent evidence, and only for the offense charged.” 16 C. J., Sec. 1132, page 586; Wharton’s American Criminal Law, page 463; People v. Molineux, 168 N. Y. 264, 61 N. E. 286, 62 L. R. A. 193 (See note for citation of cases); 20 Amer. Jur., page 287, see. 309, gives the general rule, and all of the cases from the United States Supreme Court and the state courts are cited. Also the exceptions to the general rule, and the authorities supporting the same.

As above stated, the former reversal of this case was on the ground that the evidence was insufficient to support the judgment and sentence. With the exception of the evidence heretofore reviewed, and which, under the law, was clearly inadmissible, the evidence is the same as in the former trial. As stated in the former opinion, there is such a conflict in the evidence and the testimony of many of the state’s witnesses so corroborated the testimony of the defendant, and the disinterested witnesses offered in his behalf, as to his whereabouts, at the time this crime was committed. The evidence makes it absolutely impossible for him to have been at the scene of the crime at the time it was being perpetrated, and the evidence of the prosecuting witness and others being based on an identification of defendant made ten days after he was arrested and brought before them by the officers, and in clear conflict with the evidence of not only the witnesses of defendant, but clearly in conflict with the evidence of several witnesses for the state, we are at a loss to know how a verdict of guilty could have been had against this defendant, except by the introduction of the evidence of Joanna Burk-halter, and the attempt to offer the evidence of Bessie Shamley, after the trial court had held that her evidence was inadmissible. In the former case the defendant was assessed a punishment of 50 years in the penitentiary. In this case the punishment was left to the court and he as^ sessed the punishment at 60 years in the penitentiary.

For the errors indicated, we are without doubt as to the propriety and necessity of reversing the judgment, and we are of the opinion that the evidence is not sufficient to support the verdict and judgment. The judgment is therefore reversed and the cause remanded to the district court of Okmulgee county, with direction to dismiss.

It appears from the record that the defendant was unable to give bond pending the determination of his appeal, and was committed to the penitentiary. It is therefore ordered, that the Clerk of this court forthwith forward to Jess F. Dunn, warden of the penitentiary at Me-Alester, a duly certified copy of this opinion, and upon receipt of the same, said wrarden is directed to discharge said defendant.

DOYLE, P. J. and JONES, J., concur.


text:
    SLIM LUCAS v. STATE.
    No. A-9570.
    Jan. 25, 1940.
    (98 P. 2d 933.)

      L. W. Crutcher, of Holdenville, for plaintiff in error.
    Mac. Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the state.
   DOYLE, P. J.

The information in this case, after alleging time and place, charges that:

The said Slim Lucas, Horace Kelley, Clyde Duncan and Gene Ford, did, willfully, unlawfully, intentionally and feloniously, without justifiable or excusable cause, make an assault in and upon one George Alderson with a certain rock, said rock being then and there a dangerous and sharp instrument and weapon, and did then and there with said rock so had and held as aforesaid, strike, beat, bruise, cut, wound and injure the said George Aider-son, with the unlawful, wrongful, and felonious intent then and there to do bodily harm and injury to him.

Upon a separate trial plaintiff in error was found guilty of assault with a dangerous weapon without justifiable or excusable cause, and punishment assessed at imprisonment in the state penitentiary for a term of one year and one day, on which verdict judgment was rendered on April 1, 1938, from which judgment this appeal is prosecuted.

Counsel for plaintiff in error in his brief states:

“No objections or exceptions were saved in the trial of this case in the lower court, and I will have to raise my assignments of error and argue them in the face of this court’s well-known rule, hoping this court will review the questions I ana raising in this brief because of the fact that the errors committed in this trial were fundamental and deprived the defendant of his substantial rights.”

The first assignment is:

“That the court committed error in forcing .the defendant into a separate trial, which depriyed him of his substantial rights.”

Counsel contends that a severance could only be had at the request of either of the defendants, because the state by informing against them jointly had thereby elected to try them jointly and was bound by such election.

The record does not show that a severance was demanded.

The Code of Criminal Procedure provides:

“When two or more defendants are jointly prosecuted for a felony, any defendant requiring it must be tried separately. In other cases defendants jointly prosecuted may be tried separately or jointly, in the discretion of the court.” Section 3065, O. S. 1931, 22 Okla. St. Ann. § 838.

The record shows that when the case was called for trial, and after the jury was impaneled, the county attorney made an opening statement to the jury as to what the state expected to show by the evidence. Thereupon the defendant reserved the right to make his opening statement at the close of the evidence in chief for the state. The record does not show that any objection to a separate trial was made, and the motion for a new trial did not include this assignment.

It follows from the foregoing that this assignment is without merit.

The only other proposition presented by counsel is the alleged insufficiency of the evidence to support a conviction.

It is contended that the evidence is insufficient to sustain the conviction in that there is no corroboration of the testimony of the accomplice witness, Gene Ford.

It appears from the evidence that all the parties concerned were residents of Holdenville.

The first witness on behalf of the state, George Aider-son, testified:

“My age is 51 years, I was at the OK Pig Stand on February 7,1938, in company'with Jerry Lee. I was sitting on a stool at the counter, I had not drank anything except a ■ bottle of ginger ale, and Slim Lucas and Gene Ford came in and grabbed me and hit me several times, I was knocked senseless, when I came to, Bob Ho o ten was holding me, I was carried home, I am blind in one eye and for a week following I could not see out of my other eye, I have since been under the treatment and care of Dr. Wallace.”

Gene Ford, the next witness, testified:

“My age is 19 years. On February 7th about 3 o’clock, I was in the City Gafe. I had a bottle of beer with the Duncan boy, Slim Lucas came in, sat down with us and ordered some more beer. Slim got up and went over and sat on a stool, called me to him and bought three more bottles. After we drank it he said the George Alderson had snitched on him for selling alcohol, and he wanted me to whip Alderson, I said, ‘All right.” We sat there about an hour, he bought more beer and kept saying he wanted me to whip Alderson and I told him I would. It was around 4:30 when Horace Kelley came in and called Slim aside and said they are out there, Slim said to the Duncan boy and Horace, ‘Let’s go.’ I did not say anything. We went in Clyde Duncan’s car. We found George Alderson at the OK Pig Stand. On the way there they said if I got in jail they would pay my fine, and they said they would not let George get the best of me, and would not let any one else interfere and get on me. We drove up behind the Pig Stand, when we got out Slim picked up a rock and told me to hit him with it.” (Witness identified “Exhibit A” as the rock iSlim picked up and handed to him.) “The Duncan boy, Horace Kelley, Slim and I went in. We just tried to go in the back door, but it was locked. When Slim said, ‘There is the snitching Son of a be-, get him.’ I hit him- twice, Slim grabbed a couple of beer bottles. Mrs. Stuart said Why don’t you let Slim do his own fighting.’ We came on up town, and they bought some more beer, they said I done a nice job, that if I got in jail they would pay my fine, and told me to sit tight. I was arrested about six o’clock, had a conversation with the sheriff the next morning, he asked me what I hit him with and I first told him with my fist, and then I told the same story I have told here on the witness stand. I did not have anything against George Alderson and hardly knew him, the only reason I beat him up was because Slim got me drunk; that he was one of the defendants named in the information.”
Bob Hooten testified that Slim Lucas, Gene Ford and two other boys came in, Gene rushed to George Aider-son and commenced hitting him with a rock; “Slim Lucas grabbed a couple of beer bottles and said, ‘Don’t any damn son of a b-interfere’. He ordered ¡Slim out; Slim said he would have to put him out; that Thelma Dugan had called the law, and Emmitt Poteet and Hugh McConnell came immediately, he told them to take Alderson to a doctor, that they could pick up the boys some other time, and told them who they were. That George Alderson stated that he could not see anything and they led him to a car, blood streaming down his face; that Ford hit the old man three or four times with a rock; that after he had pulled Gene Ford off Alderson he picked up a claw hammer and told Slim he would have to put him out, one of the boys grabbed Slim and said, ‘Let’s go,’ and they left.”

Witness said that he had been a peace officer and guard at the penitentiary.

Mrs. Lawrence Stuart testified that she owned and operated the OK Pig Stand, and was there behind the counter making a sandwich when Slim Lucas, Horace Kelley, Gene Ford and Clyde Duncan came in. That she beard Bob Hooten say, “Quit that”, and when she turned around Gene was hitting Mr. Alderson, who was sitting there, and Slim Lucas was cursing about Alderson snitching. Mr. Hooten told Slim to put the beer bottle down, and get out, that she then went out, Gene Ford came out and she said to him, “Why don’t you let Slim Lucas do his own fighting,” and he said, “Oh, I don’t know.”

Thelma Dugan testified that she was employed at the OK Pig Stand, and saw George Alderson and Jerry Lee there. When she heard the car drive up she started around the house to get the orders, they first tried to get in the back door, it Avas locked and they came to the west door. When they came in George Alderson was sitting on a stool, facing east, with his back to them. .Slim and Gene came in first. Slim said, “There are the snitches”, and she saw Gene Ford hit George Alderson twice, heard Slim say everybody stand back and let Gene alone, and she went to call the officers.

The state rested and the defendant interposed a demurrer and moved the court for a directed verdict of not guilty, which was overruled.

On the part of the defence, Horace Kelley testified that he was at the City Cafe about 5 o’clock, Gene Ford said, “I haven’t seen Shorty and Jerry Lee today,” and he said, “I just saAV Jerry Lee and him out at the Pig Stand,” Ford said, “Let’s go out there, Slim”, Slim said, “All right”, and asked the Duncan boy to drive them out there. That they drove in behind the OK Pig Stand, they all got out and went in; that he did not see the rock introduced in evidence in anybody’s hand; Gene Ford went in first, Slim next, Avitness and Duncan next. Gene Avalked up and said something to Alderson, and hit him a couple or three licks. Bob Hooten told Gene to get out and told Slim to get out, then picked up a hammer or something. Slim said he would get out. Then Gene Ford, who had gone outside, came in and said, “Slim, let’s go”, and Slim went out and got in the car and returned to the City Cafe.

As a witness in his own behalf, Slim Lucas testified that he went to the City Cafe about 3 o’clock to see his wife, who was going to work there the next day, saw Turner Parker, Duncan and Gene Ford sitting in there drinking beer; that he did not sit down, they asked Mm to have a bottle of beer and he did so, one of the bunch asked him where he had been and he told them he had been in jail because a pint of alcohol had been sold; that he did not know who had snitched, but that was the reason he was arrested. Gene Ford told him that he would whip Jerry Lee and George Alderson, because they snitched. He told Ford he did not knoAV whether or not they snitched. Ford said he would whip one or both of them. He said he had just got out of jail and did not want to get back in and told Ford to forget it, let it go, he didn’t care about them being whipped.

Gene Ford asked him if he had seen Alderson and Lee since he got out of jail, he said he had not. Horace Kelley came in and told Gene Ford where he saw them. Horace said he had 60 cents and they would go out there and drink beer. Clyde Duncan said he would take us out there for a bottle of beer. Gene Ford had not said anything about whipping them, except when witness first came in. That he never told Gene Ford or asked him to whip George Alderson and Jerry Lee, and never told him that he would pay his fine if he would do it. When they got out of the car and went into the pigstand, Gene said to Alderson: “You are the guy that done the snitching, you are snitching around here, are you?” and hit him with his fist; that he didn’t tell the people to stand back and didn’t pick up any beer bottles. Bob Hooten said,” Don’t do that, yon boys get out.” Gene quit fighting and walked to the door, and Hoot-en said, “Slim, you get out.” He said, “Bob, I will get on out, but don’t try to throw be out.” Witness said he never saw the rock before it was introduced at the preliminary. That he did not have anything to do with Gene Ford whipping George Alderson.

At the close of the evidence the defendant again demurred to the evidence and moved the court to direct the jury to return a verdict of not guilty, which motion was overruled.

The witness Gene Ford was an accomplice. Under the statute he was a competent witness. The fact that he was an accomplice going only to his credibility and requiring proof independent of his testimony and corroborative thereof which tended to connect the plaintiff in error with the commission of the offense.

It is a settled rule that where two or more persons are jointly informed against, the state may use one of such defendants, either before or after conviction, as a witness against the others, without first dismissing the prosecution against the defendant so used as a witness. Rudolph v. State, 32 Okla. Cr. 265, 240 P. 761.

It is not essential that the corroborating evidence shall cover every material point testified to' by the accomplice, or be sufficient alone to warrant a verdict of guilty. If the accomplice is corroborated as to some material fact or factor by independent evidence tending to connect the defendant with the commission of the crime, the jury may from that infer that he speaks the truth as to all. Such corroborating evidence, however, must show more than the mere commission of the offense or the circumstances thereof. Moody v. State, 13 Okla. Cr. 327, 164 P. 676; Davis v. State, 18 Okla. Cr. 453, 196 P. 146; Hollingshead v. State, 21 Okla. Cr. 306, 207 P. 104; Mitchell v. State, 59 Okla. Cr. 393, 60 P. 2d 627.

It was the exclusive province of the jury to judge of the weight of the evidence, and the credibility of the witnesses. The jury accepted as true the testimony of the state’s witnesses, and, having done so, it is not the province of this court to substitute its judgment for that of the jury.

Upon a consideration of the whole case, we see no reason to doubt that this conviction was fully warranted by the evidence.

Finding no substantial merit in any of the propositions urged for a reversal, of the judgment, the same must he affirmed. It is so ordered.

BAREFOOT and JONES, JJ., concur.