author: MATSON, P. J.

text:
    JOE B. WARD et al. v. STATE.
    No. A-4406.
    Opinion Filed Aug. 23, 1924.
    (228 Pac. 498.)
    (Syllabus.)
    1. Witnesses — Requiring Accused in Presence of Jury to Put on Coat Violative of Constitutional Privilege Against Self-Incrimination. The appellants were charged and convicted of the crime of manufacturing intoxicating liquor. During a search of the premises where the liquor and liquor still was found, a mackinaw coat was also found not far distant from the still. The appellant Noble was a witness in his own behalf, and during his cross-examination the county attorney handed the witness this coat and asked him to put it on. Appellant objected, and the court overruled the objection and required him to put on the coat in the presence of the jury. After appellant had placed the coat on his person, the county attorney remarked, “The coat found at the still fits the defendant' like the paper on the wall.” Held, that the action of the trial court in requiring the defendant when a witness to put the coat on in the presence of the jury violated his constitutional right not to give incriminating evidence against himself.
    2. Same — Constitutional Provision Liberally Construed in Favor of Personal Rights. The provision of the state Constitution that no person shall be compelled to give evidence which will tend to incriminate him is so sacred, and the pressure towards its relaxation so great when suspicion of guilt is strong and the evidence weak and obscure, that it is the duty of courts liberally to construe the prohibition in favor of personal rights, and to refuse to permit any steps tending toward their invasion.
    3. Witnesses — Impeachment by Showing Former Conviction — Scope of Evidence. The appellant Ward became a witness in his own behalf, and on cross-examination he was asked if he had ever been convicted for violating any of the laws of the state. His answer was in substance a denial of any such conviction. Thereupon, over the objection 'of such appellant, the county attorney was permitted to dictate into the record a statement, in the presence and hearing of the jury, that the said Ward had previously been convicted in another county of the violation of the prohibitory liquor laws, giving in substance the evidence, pro and con, which led to such prior conviction. Held, first, that a witness may be impeached by a showing of his former conviction of any offense against the laws of this state; second, that where the witness denies such conviction the impeaching evidence must be limited alone to the proof of such conviction; third, that it is not permissible to prove the facts in evidence in the former trial.
    4. Disposition of Cause. This is a closely contested ease on the facts, the conviction being based entirely on circumstantial evidence of a weak and unsatisfactory nature; the errors discussed in the opinion and covered by the foregoing paragraphs of this syllabus are deemed sufficient to require a reversal of the judgment as to each appellant.
    Appeal from County Court, Dewey County; W. A. Carlton, Judge.
    Joe B. Ward and another were convicted of the unlawful manufacture of intoxicating liquor, and they appeal.
    Reversed.
    Hoyt & Butler, for plaintiffs in error.
    The Attorney General, for the State.
   MATSON, P. J.

On the 15th day of March, 1922, the county attorney of Dewey county filed an information in the county court of said county charging the plaintiffs in error, Ward and Noble, hereinafter referred to as defendants, with having on or about the 13th day of October, 1921, unlawfully. willfully, wrongfully, and intentionally made and manufactured by a process of distillation, by means of a liquor still, utensils, and mash, and intoxicating liquor, to wit: homemade whisky, capable of being used as a beverage, contrary to the form of the statutes, etc. The defendants were arrested and placed under a bond of $750 for their appearance at the April term of court. On April 3, 1922, the cause was called: for trial, a jury impaneled, and the evidence of each side adduced. The jury returned a verdict of guilty, but failed to agree on the punishment, and the court imposed a fine of $400 and a jail sentence of four months against each defendant. The defendants moved to set the verdict aside and for a new trial, which motions were overruled and exceptions saved.

Among the errors assigned are the following: First, that the trial court erred in requiring the defendant Noble, while testifying as a witness in his own behalf in open court and in the presence of the jury, to put on a coat or mackinaw found in the neighborhood of where certain parties, who were officers searching, had found a still, mash, and whisky in Dewey county, Okla., near the bank of the North Canadian river on the 13th day of October, 1921. Secondly, that the trial court erred in permitting the state’s attorney as part of the cross-examination of the defendant Ward, and for the purpose of impeachment, to recite into the record, in the presence of the jury, certain evidence which led to the conviction of said Ward of another offense tried in Major county, Okla., in December, 1921; all over the objection and exception of the defendants. Other errors are assigned, but in view of the disposition made of this appeal we deem it unnecessary to consider them.

The evidence on the part of the state is entirely circumstantial, and while it is apparent from the evidence that somebody was engaged in the unlawful manufacture of whis-ky at the time and place complained of, the circumstances tending to connect these defendants with this manufacture, excluding the evidence hereinafter held to have been inadmissible, do not meet the requirements of the rule that circumstantial evidence, in order to be sufficient to convict, must exclude every reasonable hypothesis other than that of guilt of the defendant.

Relative to the first error above assigned, we find from the record that a certain coat or mackinaw was found by the searching officers on the date that it was alleged this crime was committed in the woods near where the liquor still was found. When the defendant Noble was a witness in his own behalf, the county attorney on cross-examination handed the witness this coat and asked him to put it on. Counsel for the defendant objected to the evidence as being incompetent, irrelevant, and immaterial, and the court overruled the objection and required the defendant to put on the coat in the presence of the jury. To this action of the trial court, counsel for the defendant excepted. After the defendant had placed the coat on his person, the prosecuting attorney remarked: "The coat found at the still fits the defendant like the paper on the wall.” Counsel for the defendant then moved that the court strike such statement from consideration of the jury, which motion was overruled and excepted to.

It is here contended that this action on the part of the trial court violated the defendant’s constitutional right as a witness, in that it required him to produce evidence that tended to incriminate him.

We think this contention is well founded.

The protection offered by the constitutional provision against self-incrimination is peculiarly a protection to witnesses. In this case the defendant at the time of being required to put on the coat was a witness, and the demonstration of the fit of the coat on the body of the defendant was required to be made in the presence of the jury during the progress of the trial. In other words, the defendant Noble was required against his objection to make a demonstration of the fit of the coat for the jury’s observation as a connecting link against him in the commission of the offense. Without this connecting link, the other circumstantial evidence is meager and unsatisfactory. Further, it appears that the prosecuting officer was permitted, over defendant’s objection and exception, to express his opinion “that the coat fits the defendant like the paper on the wall.” This remark was made clearly for the purpose of prejudicing the defendant before the jury at the time he had the coat on, and should have been excluded by the trial judge and the jury admonished not to consider it.

In the case of Gore v. State, 25 Okla. Cr. 214, 219 Pac. 153, it was held:

“Evidence of the taking of the shoes from an accused person under arrest, ; charged with murder, for the purpose of ascertaining whether they correspond to the tracks found near the place of the homicide under the circumstances here, may be introduced by the state, over the objection of the accused that evidence so obtained is in violation of his constitutional right to immunity from being compelled to give incriminating evidence against himself.”

The distinction between the Gore Case and this case is that in the Gore Case the defendant was not a witness, while in this case the compulsion complained of was against the defendant as a witness.

In 28 R. C. L. p. 436, par. 23, on the subject here treated, the following appears:

"The comparison of footprints is frequently resorted to as a means of identifying the guilty party, and there is no doubt but that it is competent for a witness to testify that he has fitted the shoes of the accused in tracks found near the scene of the crime, and that they correspond therewith; or that he has measured tracks made by the accused or by the shoes of the accused, and tracks found near the place where the crime was committed, and that the measurements correspond. Indeed, it is competent to bring a box of sand before the jury in which impressions of the defendant’s boots have been made for the purpose of comparing them with footprints seen near the place of the crime. Where the accused voluntarily makes footprints beside those found on the ground after the commission of a crime, a witness may testify that he measured the two sets of tracks and that they were the same. 'The refusal of an accused to make tracks for the purposes of comparison, however, is not admissible in evidence as a fact against him; nor can he, in the view of some courts, be compelled to make impressions of his feet for comparative purposes. However, there is authority directly opposed to this. Thus, it has been held that a person accused of crime may be compelled to surrender his shoe for the purpose of permitting it to be compared with tracks found in the snow near the place where the crime was committed, and witnesses may be allowed to testify as to the result of such comparison; and testimony has been admitted as to the comparison of footprints made under compulsion by an accused with those found near the scene of the crime for which he is on trial. A defendant taking the stand in his own behalf cannot be required, against objection, to try on a shoe to determine whether tracks found at the scene of the crime are his; nor can he be required, if he objects, to measure the shoe after putting it on.”

The right intended to be provided by the constitutional provision that no person shall be compelled to give evidence which will tend to incriminate him is so sacred, and the pressure towards its relaxation so great when the suspicion of guilt it strong and tbe evidence weak and obscure, that it is tbe duty of tbe courts liberally to construe the prohibition in favor of personal rights, and to refuse to permit any steps tending toward their invasion.

While the decisions do not appear to be altogether in accord on this subject, we think a clear distinction should be made between the 'defendant as such and between the defendant as a witness. The prohibition was intended for the protection of witnesses, and as such it should receive a more liberal construction in favor of witnesses. The difference is this, that when such comparisons and experiments are made outside of court, the evidence thereto falls from the lips of witnesses other than the defendant. The production of such evidence, therefore, and the testimony thereto, is not that of defendant but of other witnesses; while, on the other hand, if the defendant is required against his objection in open court, in the presence of the jury, to make such experiments and comparisons, no extraneous evidence is required, and the constitutional prohibition is thereby violated. Certainly it is against the spirit of this prohibition to compel this defendant in open court and in presence of the jury to put on a coat which will serve directly to connect him with the commission of the crime.

That the errors here complained of were prejudicial to the defendant Noble we think is supported by the weight of the better-reasoned authorities, among which, in addition to the foregoing, are the following: People v. Mead, 50 Mich. 228, 15 N. W. 95; Gillespie v. State, 5 Okla. Cr. 546, 115 Pac. 620, 35 L. R. A. (N. S.) 1171, Ann. Cas. 1912D, 259.

We now proceed to consider the second assignment of error above referred to. When the defendant Ward was on the witness stand, he was asked on cross-examination if he bad ever been convicted by a jury for violating any of tbe laws of tbis state. His answer was in substance a denial of any sucb conviction.

' In connection with tbis cross-examination, the prosecuting officer was permitted to dictate into the record in tbe presence and bearing of the jury tbe following:

“At tbe request of tbe defendant, Joe B. Ward was prosecuted in Major county by a jury on the charge of transporting intoxicating liquor. The ease was tried in December, 1921, term of county court, wherein the jury returned a verdict of guilty. The defendant Joe B. Ward will agree that at tbe time the officers swore a warrant and made tbe arrest be was transporting in a Ford truck liquor contained in a half-gallon fruit jar, tbis jar was standing in tbe bottom of tbe truck, and officer hauled tbe same into Fairview, a distance of about 44/% miles, and the officer managed to bold tbis half-gallon jar hi one band and drive tbe Ford truck with tbe other, and arrived' at Fairview with approximately one ounce and one-half of the liquor, which further discloses that considerable liquor had run through the floor boards of the Ford truck. In the trial and conviction of Joe B. Ward, it was found that it was not intoxicating liquor, but that it was raisin wine, and this can be witnessed by Percy Noble* F. .Chapman, and W. 0. Whitstone, all who swore that they had tested of liquor and that it was not intoxicating. However, the evidence of the state was the stronger, and the jury-delivered á verdict of 'guilty as charged in the information.’ ”

The previous holdings of this court are to the effect that a witness may be impeached by a showing of his former conviction of any offense against the laws of the state. Hendricks v. State, 23 Okla. Cr. 18, 212 Pac. 330, and authorities cited.

It is the fact of the former conviction that taints the witness’ credibility, not the circumstances of such conviction. Therefore the proof must be limited alone to proof of such conviction. The best evidence thereof is the record of such conviction. Under no circumstances is it ever permissible to prove the facts in evidence in the former trial. Such an issue is collateral to the inquiry — no inquiry into the guilt or innocence of the witness of the former offense can be had, the record of conviction being conclusive evidence of guilt. Wigmore on Evidence, vol. 2, § 980.

To permit the prosecuting officer to dictate the foregoing statement into the record as part of the trial of this case was clearly erroneous and prejudicial to the substantial rights of the defendant Ward.

The conviction as to each defendant is therefore reversed.

BESSEY and DOYLE, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    MATILDA WELLS v. STATE.
    No. A-4474.
    Opinion Filed Aug. 23, 1924.
    (228 Pac. 177.)
    (Syllabus.)
    Appeal and Error — Conviction not Reversed Because of Conflicting Evidence. Where the defendant is charged with and convicted of keeping a house of prostitution, and there is evidence in the record which, if believed, is sufficient to sustain the conviction, the judgment will not be reversed merely because the evidence is conflicting.
    Appeal from County Court, Comanche County; P. G. Fullerton, Judge.
    Matilda Wells was convicted of the offense of keeping a house of ill fame, and she appeals.
    Affirmed.
    J. F. Thomas, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

This prosecution originated in the county court of Comanche county, on an information charging the plaintiff in error, Matilda Wells, hereinafter referred to as defendant, with having, on the 28th day of February, 1922, kept and maintained at No. 307% D avenue, in the city of Lawton, a house of ill fame, of assignation and .prostitution, wherein persons visited for unlawful sexual intercourse, etc.

The prosecution is based on section 1890, Compiled Statutes 1921, which reads as follows:

“Any person who keeps any bawdyhouse, house of ill fame, of assignation, or of prostitution, or any other house or place for persons to visit for unlawful sexual intercourse, or for any other lewd, obscene or indecent purpose, is guilty of a misdemeanor and upon conviction shall be fined in any sum not less than one hundred dollars nor more than five hundred dollars for each offense.”

The jury returned a verdict of guilty as charged in the information, and assessed the punishment of defendant at a fine of $400 and costs.

The only assignment of error presented for consideration is that the evidence is insufficient to sustain the conviction. The evidence on the part of the state proves that the defendant was the keeper and manager of a certain rooming house at No. 30714 D avenue, in the city of Lawton, on the 28th day of February, 1922, and had been for some months prior thereto; that the officers of both the city and county made raids on the said premises on several occasions during the time this defendant had the management of said place; that on such occasions women who were prostitutes were found rooming in said premises; that the defendant was notified of that fact, but continued to let such persons room there; that on one occasion a man was found in a bed room with a woman who was almost entirely undressed, and that the premises, during the time that the defendant was a keeper thereof, had a general reputation in that locality of being a place of assignation and prostitution.

The defendant testified that she had charge of the place for her mother during her mother’s absence; that her mother had the lease on the premises, and that if any prostitution took place therein she had no knowledge thereof. She denied that the officers had warned her that the women she was keeping were prostitutes, and further testified that she had no personal knowledge that they were prostitutes. We think this evidence shows conclusively that the defendant was the keeper of the place, within the meaning of the statute. Jones v. State, 10 Okla. Cr. 79, 133 Pac. 1134.

While there is some conflict in the evidence, we think that the evidence, as a whole, is sufficient to support the verdict and judgment under the repeated holdings of this court, which are not necessary to cite in this opinion. The judgment is therefore affirmed.

BESSEY and DOYLE, JJ., concur.


text:
    JOHN BINDRUM v. STATE.
    No. A-4647.
    Opinion Filed Aug. 25, 1924.
    (228 Pac. 168.)
    (Syllabus.)
    Appeal and Error — Conviction Reversed' on Confession of Error, if Sustained by Facts and Law. Where the Attorney General confesses error, this court will examine the record, and, if the confession is sustained thereby, and is well founded in law, the conviction will be reversed.
    Appeal from County Court, Woods County; J. J. Glaser, Judge.
    John Bindrum was convicted of having unlawful possession of intoxicating liquor, and he appeals.
    Reversed.

      L. T. Wilson and. C. H. Mauntel, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

This is an appeal from the county court of Woods county wherein the plaintiff in error was convicted of having unlawful possession of certain intoxicating liquor and by the judgment of said court sentenced to pay a fine of $300 and suffer imprisonment in the county jail for a period of 30 days.

Numerous errors are assigned as grounds for reversal, among which is assignment No. 11, that the trial court erred in admitting illegal and incompetent evidence against the defendant over his timely objection and exception.

The defendant was charged with having on the 5th day of February, 1923, at and within Woods county the unlawful possession of certain intoxicating liquors, to wit, grape wine, with the unlawful intent on the part of him the said defendant then and there to barter, sell, trade, and otherwise furnish the same, and with the unlawful intent on the part of him the said defendant to then and there transport, convey, and carry the same, contrary to the prohibitory laws of the state of Oklahoma, etc.

The Attorney General has filed the following confession of error: .

“This is an appeal from a judgment of the county court of Woods county, wherein plaintiff in error was found guilty of the crime of unlawful possession of intoxicating liquors and1 sentenced to pay a fine of $300 and be imprisoned in the county jail for a period of 30 days. Plaintiff in error was charged with having possession of a large quantity of homemade grape wine, to wit, three barrels. When the officers searched the premises and found the wine, they took possession of same and drew out of each barrel a quart bottle full of the same, which was afterwards analyzed by G. M. Lisk, an alleged1 chemist, who pasted upon the bottles the result of his analysis. See State’s Exhibits 2, 3, and 4, pages 107, 108, Case-Made. Lisk was not a witness on the trial of the case, but the state offered in evidence the three bottles above described, to which offer the defendant objected. See page 57, Case-Made.
“And again, after all the testimony for the state was in, the county attorney asked1 to have the bottles viewed by the jury, to which request plaintiff in error objected, and specifically objected to the labels on the bottles. The court permitted the bottles, with the labels, to not only be offered in evidence, but to be exhibited to and viewed by the jury, without the same ever having been identified as the wine analyzed by the chemist. This was the rankest character of hearsay testimony, and was prejudicial to the rights of the plaintiff in error, and we think on that alone this court would be amply justified in reversing the case. All of which is respectfully submitted.”

Examination of the record discloses that the exhibits referred to in the Attorney General’s confession of error were admitted over the timely objection and exception of defendant’s counsel without proper predicate having been made as to the identity of these exhibits having been in the possession of the defendant, and the exhibits themselves show that the liquor contained* in the bottles was labeled “wine” by one G. M. Lisk, who purported to be a chemist, and the labels also contained statements that the alcoholic contents of the liquid contained in the bottles was 14.8 per cent., .measured by volume, on Exhibit No. 2, 13.59 per cent, on Exhibit No. 3, and 15.08 per cent, on Exhibit No. 4.

The introduction of these exhibits, together with the statements contained on the labels as to the alcoholic content of the liquid therein found and that the same was wine, was clearly prejudicial to the defendant, without the introduction of the witness Lisk to identify the exhibits and contents of-the bottles as the liquid analyzed by him, and that the same was wine, and, further, a part of the liquid alleged to have been found in the possession of the defendant.

The confession of error of the Attorney General, therefore, is sustained, and the judgment reversed.

BESSEY, and DOYLE, JJ., concur.


text:
    JOHN DOUBLEHEAD v. STATE.
    No. A-4540.
    Opinion Filed Aug. 25, 1924.
    (228 Pac. 170.)
    (Syllabus.)
    1. Appeal and Error — Discretion of Trial Court — Change of Venue. Applications for a change of venue are addressed to the discretion of the trial court. Before a judgment of conviction will be set aside in the appellate court because the trial court . overruled the motion for a change of venue, there must be shown by the appellant a clear abuse of discretion on the part of the trial court.
    2. Evidence — Admissibility of Confessions — Discretion of Court. In deciding whether a confession is admissible in evidence, the trial court is necessarily vested with a large discretion. However, this discretion should be exercised with great care, looking to the due and proper enforcement of the law on the one hand and to the protection of the defendant on the other, in order that no injustice may be done him.
    3. Same — Confession Held Admissible. Evidence on the question of the admissibility of defendant’s confession considered and the conclusion reached that the same was properly admitted; that there was not such a showing that the same was extorted from the defendant by threats of Violence t'o him or other evidence of fear of violence on his part as to render its admission a clear abuse of discretion on the part of the trial court. The method employed by the officers in procuring a confession from the defendant is, however, criticized.
    4. Homicide — Evidence Insufficient to Sustain Plea of Insanity. Evidence on the question of defendant’s insanity examined, and it is held that there was no evidence of insanity such as to render the defendant criminally irresponsible within the meaning of section 1511, Compiled Statutes 1921.

      5. Homicide — Remarks of Prosecuting Counsel Prejudicial — Reduction of Sentence to Life Imprisonment, Certain remarks made by counsel for the state in the closing argument to the jury examined, and held, that the same tended to operate to incite the jury, because of passion and prejudice, to inflict the death penalty instead of imprisonment for life at hard labor on matters not based, on evidence in the case. This error in connection with circumstances surrounding the obtaining of the confession from the defendant is considered sufficiently prejudicial to require a modification of the judgment from that of death to imprisonment for life at hard labor.
    Appeal from District Court, Adair County; J. H. Jar-man, Judge.
    John Doublehead was convicted of murder, and he appeals.
    Modified and affirmed.
    Plaintiff in error, John Doublehead, hereinafter referred to as defendant, was by judgment of the district court of Adair county rendered on the 19th day of December, 1922, convicted of the crime of murder and sentenced to be electrocuted on the 20th day of February, 1923. Within the time prescribed by law, an appeal was taken to this court and the judgment was stayed pending the determination of this appeal.
    The defendant is a full-blood Cherokee Indian. The deceased, James Davenport (familiarly called Uncle Jimmie), was a native of the state of Alabama, possessing no Indian blood and above 60 years of age. Davenport was small of stature, weighed about 130 pounds, and lived by himself on a farm 4 or 5 miles southwest of the town of Stillwell in Adair county. The defendant owned an allotment of land about a mile from where the deceased lived, and for some time prior to the commission of this homicide had been living part of the time on his allotment. Part of the time, however, the defendant stayed in the town of Stillwell. The deceased lived by himself and was possessed of four head of horses, some poultry, and various farming implements.

      It appears that two head of the horses of the deceased were of considerable value and that the defendant for some time had been endeavoring to obtain the same from the deceased. It also appears that the deceased was in the habit, on mornings and evenings, of going to a field near his place to feed some stock and in so doing he had to pass close to a neighbor’s house. The homicide was committed on Friday-evening September 8, 1922.- On the next day neighbors, who were Indians, noticed that Davenport failed to show up to feed his stock. This circumstance aroused their suspicion, and three of the neighbor boys went over to Davenport’s place to see if he was at home. They noticed the horses were gone, but that the chickens and dogs were still there. They did not go into the house, but as it had been rumored that Davenport had been sick they notified a deputy sheriff that Davenport had not been seen for a day or two, but in the meantime they continued to search for him. Davenport was not found at home, and the further search made by them did not result in his discovery.
    On the Saturday morning immediately following the commission of the homicide the defendant was seen riding one of the deceased’s horses and leading another about two miles south of the town of Stillwell, going towards Stillwell. On the Monday following the killing a party was organized to search for Davenport. While .a number of this party were sitting in the shade of a tree at the ford of a creek near the defendant’s home, the defendant came down riding from towards his home with two of the horses of the deceased and stopped to water the horses in the creek. One member of this party approached the defendant and asked him where he got the horses, and defendant told him that he had bought the horses from Uncle Jim Davenport and had paid $275 for them and had agreed to take up a note at the First National Bank for $30, due October 1st; that his deal with the deceased included the entire equipment that the deceased had at his place, including three horses, wagon, chickens, and household goods, but that the deceased had retained one of his horses to ride to Alabama on. As soon as the defendant had told this story he was taken into custody by the party and held for the sheriff. Later he was turned over to the sheriff. Later the horse that Davenport was supposed to have ridden to Alabama was found. On the next day (Tuesday) a larger party was organized to search for Davenport, and his body was found 66 steps north from the porch of the house on the farm of the defendant. The body was buried about 14 inches below the level of the ground. There was an undershirt and a pair of overalls on the body, and a gunny sack spread lengthwise from the head to the waist, and something similar to a sugar sack Avrapped around his feet, with a bed blanket underneath the body. It had been buried face doAvnward and; the hat of the deceased was placed directly underneath his face.
    On Sunday September 17, 1922, after defendant had been in jail for nearly a week he was taken from the jail, and accompanied by a deputy sheriff, the county attorney, and the city marshal of Stillwell, he was placed in an automobile, handcuffed, and then driven to the defendant’s home southwest of Stillwell. The deputy sheriff and the city marshal were armed, one with a rifle and the other Avith a shotgun. So far as the record discloses the county attorney was unarmed. The defendant was placed in the front seat of the car with one of the armed officers. Another officer by the name of Johnson, a constable, followed in another two-seated car. It appears that when these officers had reached the ford of a creek between Stillwell and the farm of the defendant they were met by appointment by four men, who lived in that neighborhood. These men got in the car with Johnson. Defendant was taken to his home and there told to point out the grave in which he had buried the deceased. He led the party to' the place where Davenport had been buried. The county attorney then asked the defendant if that were not the grave. The defendant never replied, and the county attorney again asked, “Is this the grave?” and the defendant said, “It is.” The county attorney then asked, “What did you do that for — his team?” and the defendant said, “Yes.” Defendant was then asked what he did with the saddle belonging to the deceased, and he said it is “out yonder.” Defendant was then asked what he did with his shoes, and he said, “I don’t know.” Defendant was then told if he was going to come clean to tell the whole truth, that he did know where the shoes were, and that the saddle and the shoes would be found, and he then said, “They are over yonder.” The defendant was then asked to “lead us to the saddle.” Defendant then turned back to the house about 70 yards and then went east about that distance and said, “There it is,” pointing to a fence corner. The saddle was found, and the defendant then led the party to where the shoes were hid, approximately a mile and half from where they then were and in a roundabout way. ¡The shoes were hid under some bushes. Defendant was then taken over to the house where the deceased had lived, and one of the witnesses detailed the statements made by the defendant at the house as follows:
    “A. Do you want to know what was done right at the house? Q. Yes. A. We went up at the gate, and Mr. Grant asked him where he killed him, and,he said, ‘Eight here at the gate. ’ Q. Go ahead and tell how- he said he killed him, if he did. A. He said when he went up there that Uncle Jimmie was dogging a hog and wasn’t at his house and in just a few minutes he come around the house and began to talk to him, and he come out to the gate, and he said, ‘We didn’t talk much until I saw this club laying in the yard,’ and lie said he kinder turned around and I hit him on the side of the head and knocked him down, and he said he hit him one lick on the back of the head on the ground with the club. Q. Then what, if anything, did he say he did? A. He said he threw the club away. Q. Did he find the club for you? A. He 'hunted, and we all hunted, in the direction he said he threw the club and we found a club that he said was about the size and about the weight, but it seemed too short. He said it 'seemed to me it was about that long.’ And he held his hands out 8 or 10 inches longer than the club. He would pick it up and look at it and he said it looked too short. Q. What if anything did he say that he then did? A. He said the next thing he did was to put Uncle Jimmie’s saddle on his'horse. Q. Did he say whether he was riding bare-back? A. Yes; he said he was riding bareback. Q. What else? A. He said the next thing he did was to go in the house and get some blankets and old sacks and wrap him up and put him on the horse and he got on behind and carried him to where he buried him and laid him down in some weeds and bushes close to the spring branch. Then he said he went and got a shovel and a hoe and he dug the grave and put him in it, turned his horse loose and taken the saddle off of his horse at the grave and turned the horse loose, and he taken him up and unsaddled his horse and taken the saddle and threw it over the fence and went up to his mother’s. Went to bed, and went to sleep, and he said he slept until about 7 o’clock the next morning. And I told him that at 7 o’clock the sun was up and he said the sun was ashining when he got up, and he said he got his breakfast, went back afoot and cut Uncle Jimmie’s horses loose and picked up Uncle Jimmie’s shoes and led them the way he led us and hid the shoes and come on home and tied up his horses and went back to — up to Sam Doublehead’s and borrowed a pair of doubletrees and a single tree and come back and harnessed the horses, hitched to the plow and plowed this land, plowing around the grave, and unhitched and unharnessed and got on his pony and led the other two horses and come to town and put them in the wagon yard.”

      The circumstances above detailed, together with the confession made by the defendant was the evidence upon which the state secured a conviction.
    Under the plea of not-guilty, counsel for the defendant introduced witnesses in an attempt to prove that at the time of the commission of the offense the defendant was insane. This evidence consisted of the testimony of one Dr. H. C. Dorsey, a specialist in the treatment of nervous diseases and of insanity, who a few days before the trial made a cursory examination of the defendant in the jail at Stillwell and found some evidence that the defendant had been a drinker of intoxicating liquor and that a trace of syphilis was found in the blood of the defendant; but witness, from the examination made, did not testify that the defendant was t insane but testified that he found symptoms of conditions in the defendant that ofttimes were causes of insanity.
    In' addition to the testimony of this alienist, it is disclosed by the record that the defendant served in the army of the United States overseas in the late war, and that he was gassed in action and there is testimony' by the defendant’s mother to the effect that- the maternal grandfather of the defendant was not right mentally at the time of his death.
    In rebuttal the state introduced several lay witnesses, who testified from their acquaintance and observation of the defendant to certain facts and circumstances upon which their opinions were based and conclusions reached that the defendant was sane.
    The trial court’s instructions are.a model set, fully covering every phase of the law presented by the issues raised and no objection is urged to any paragraph of the instructions or to the instructions as a whole.

      The defendant made application for a change of venne from Adair county. After hearing evidence in support of and in opposition of this application the same was overruled, and the action of the trial court in overruling the motion was properly excepted to at the time.
    Counsel for the defendant also moved for a continuance on account of the absence of one H. C. Dorsey, a material witness in his behalf, but as this witness was afterwards produced and testified at the trial for the defendant no error is assigned because of the denial of the continuance of the trial.
    When the state offered testimony relative to the purported confession of the defendant, counsel for the defendant objected thereto upon the grounds that the same was not a voluntary confession but was obtained by reason of implied threats of personal violence to the defendant. In the absence of the jury, the trial court heard testimony, pro and con, as to whether the confession of the defendant was or was not voluntarily given, and, upon the evidence adduced by both sides, ruled that the confession was voluntary and admissible against the defendant. To this action of the trial court the defendant, at the time, objected and saved his exception. Thereafter evidence of the purported confession, together with its surrounding circumstances was permitted to go to the jury.
    In addition to the foregoing alleged errors, it is contended generally that the evidence is not sufficient to sustain the conviction, and further, that certain incompetent evidence was admitted against the defendant during the progress of the trial.
    Certain alleged remarks by counsel for the state in the argument to the jury, which were objected to, are alleged to have been sufficiently prejudicial to require a reversal of this judgment.
    The foregoing statement contains substantially an outline of the issues presented and of the exceptions reserved during the progress of the trial and here relied upon. ¡These alleged errors will be treated in the body of the opinion.
    John A. Goodall, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

(after stating the facts as above). The first ground for reversal urged is that the trial court erred to the prejudice of the defendant in denying the application for a change of venue from Adair county. The motion for a change of venue is based on the existence of prejudice in Adair county against the defendant "by such citizens as usually compose juries of the district court of Adair county”; that the defendant has considerable acquaintance with the citizens of Adair county, that such prejudice is without any just cause and prevails throughout the county, and that a fair and impartial trial by jury cannot be had by the said defendant in said county.

In support of the motion, which was verified, there was attached the affidavit of John A. Goodall, attorney for the defendant, in substance to the effect that he believes the defendant cannot receive a fair and impartial trial in Adair county for the reason that the citizens of said county have become inflamed against the said John Doublehead; that divers and sundry threats of mob violence have been made by certain citizens of said county against said defendant; that affiant had been informed by the sheriff of said county that said sheriff had to threaten divers and sundry assemblies of pei’sons with violence in the event they should storm the county jail for the purpose of doing the defendant bodily harm; that affiant was informed by the sheriff of Adair county on the 8th day of December, 1922, that numerous persons in Adair county had asserted that it would not be safe for a local attorney to undertake the defense of the said John Doublehead; that the local newspapers of Adair county had carried lurid stories of the alleged murder committed by the said John Doublehead; that said newspapers had a general circulation throughout Adair county and that the facts in said newspapers tended to create a prejudice in the minds of such citizens as may serve on juries in said county; that the prejudice against the defendant was such that, although the counsel for the defendant had procured the services of one Dr. H. C. Dorsey of Ft. Smith, Ark., to make an examination of the said John Doublehead in the town of Stillwell on the 9th day of December, 1922; the un-dersheriff of Adair county refused to permit such examination to be made unless in company with a physician or physicians selected by the county attorney; and that the said John Doublehead was not free to consult with his attorney on account of the presence of persons hostile to him.

The state filed a response to said motion denying each and every allegation thereof.

The trial court heard evidence in support of and in opposition to such motion.

In support of the motion the only testimony offered was that of John A. Goodall, counsel for the defendant, whose testimony in chief was in substance and effect the same as set out in his affidavit in support of the motion. On cross-examination this witness admitted, however, that he had not discussed the case generally with citizens throughout the county, but had discussed the question of the probability of the defendant procuring a fair and impartial trial with citizens in and around the town of Stillwell and a few at the town of Westville.

In opposition to the motion the state introduced several witnesses whose testimony was in substance to the effect that a fair and impartial jury could be procured to try the defendant in Adair county; that the only prejudice that seemed to exist in the minds of any of the citizens of Adair county was confined to the locality of the scene of the homicide and not elsewhere.

Upon this showing the motion was overruled.

It is well established in this jurisdiction that applications for a change of venue are addressed to the discretion of the trial court; that before a judgment of conviction will be set aside in the appellate court because the trial court overruled the motion for a change of venue there must be shown by the appellant a clear abuse of discretion on the part of the trial court. Turner v. State, 4 Okla. Cr. 164, 111 Pac. 988; Smith v. State, 14 Okla. Cr. 348, 171 Pac. 341; Emert v. State, 17 Okla. Cr. 406, 189 Pac. 195. It is evident front the showing here made that no clear abuse of discretion on the part of the trial court appears in denying the change of venue.

The next assignment of error relates to the admission in evidence of certain acts, conduct, and statements on the part of the defendant after his arrest and incarceration, which taken together amount to a confession of guilt, and which it is alleged the record discloses were induced by alleged threats of violence made to the defendant and by putting the defendant in fear of bodily harm unless such confession was forthcoming.

After having heard evidence in the absence of the jury as to the admissibility of these acts, statements, and conduct on the part of the defendant, the trial court held that the same were admissible. The defendant was the only witness who testified to any facts or circumstances which in the slightest degree tended to show that the confession may have been involuntary on his part.

The statement of the case contains an outline of the circumstances as to time and place and the substance of the acts, circumstances, and statements constituting the alleged confession. There was no dispute but that such confession was made as testified to by the state’s witness. There was no dispute but that the defendant was taken from the jail, handcuffed, and carried to the scene of the homicide in an automobile, in company with the county attorney and a deputy sheriff and the city marshal of the town of Stillwell, the latter two being armed, one with a shotgun and the other with a rifle; that before the confession was made these parties were joined by four other men who lived in the neighborhood of where the crime was committed; that these latter men were unarmed; that they were all present at the time of the alleged confession.

There is some conflict in the testimony as to whether or not the defendant was warned that any statement he should make would be used against him in the trial of the cause. This is immaterial in view of the prior holdings of this court that such warning is unnecessary. Mays v. State, 19 Okla. Cr. 102, 197 Pac. 1064; Anderson v. State, 8 Okla. Cr. 90, 126 Pac. 840, Ann. Cas. 1914C, 314.

The testimony of the defendant in opposition to the admission of the alleged confession discloses that he was not afraid of the officers who took him to the scene where this confession, was made. The defendant, however, did testify that he was afraid that he might be mobbed by the people who met the officers; however, he testified that he did not notice that these men had any guns, nor did he testify that they threatened him in any way. While, on the other hand, the testimony on the’part of witnesses for the state is clearly to the effect that no threats of violence were made against the defendant; that no inducements were offered to Mm to make this confession; that he was told only that if he ran or attempted to escape he would be shot, otherwise no effort would be made to harm him and that he would be protected.

There is nothing in the record to show that the defendant was influenced to make the confession by the display of the weapons carried by the officers. On the contrary, the defendant’s own testimony is to the effect that he was not afraid when they started out; that he thought they were going to take him down to his mother’s and that he got "kinder scared” when he got down to Sallisaw creek and saw those other people.

In deciding whether a confession is admissible in evidence the trial court is necessarily vested with a large discretion. However, this discretion should be exercised with great care looking to the due and proper enforcement of the law on the one hand and to the protection of the defendant on the other, in order that no injustice may be done him.

In Berry v. State, 4 Okla. Cr. 202, 111 Pac. 676, 31 L. R. A. (N. S.) 849, this court held:

"Primarily there are two facts which render a confession inadmissible: First, that it was obtained under any form of compulsion, so that to receive it in evidence would violate the defendant’s constitutional privilege against self-incrimination; and second, that it was made under such circumstances of hope or fear as to create a fair probability of its testimonial untrustworthiness. And while the greater number of cases hold the contrary, yet we think the proper rule is that in the absence of a statute governing the matter, prima facie any confession is admissible in evidence; and where its admissibility is challenged by the defendant, the burden is on him to show that it was procured by such means or under such circumstances as to bring it within one or the other of the conditions stated, unless there is something in the confession itself or the other evidence on the part of the state which shows that it is inadmissible. This was so held in Hauk v. State, 148 Ind. 238, 46 N. E. 127, 47 N. E. 465; State v. Grover, 96 Me. 363, 52 Atl. 757; Com. v. Sego, 125 Mass. 213; Com. v. Culver, 126 Mass. 464; Rufer v. State, 25 Ohio St. 469; State v. Meyers, 99 Mo. 107, 12 S. W. 516; State v. Storms, 113 Iowa, 385, 85 N. W. 610, 86 Am. St. Rep. 380; State v. Incebice, 126 Iowa, 16, 101 N. W. 273; People v. Barker, 60 Mich. 277, 27 N. W. 539, 1 Am. St. Rep. 501; State v. Jones, 171 Mo. 401, 71 S. W. 680, 94 Am. St. Rep. 786. And Professor Wigmore says that this is the practical and natural rule, ‘for if there is any reason to object to the confession, no one can know it better than the defendant.’ He says further: ‘Looking at the general principles of admissibility and the comparative rarity of untrustworthy confessions, as well as the contingent nature of the dangers supposed to flow from improper inducement the more ¿practical rule would be to receive confessions without question, unless they are shown to have been improperly induced —especially since a contrary rule may involve the difficulty of proving a negative.’ Wigmore on Evidence, vol. I, § 860.”

On the hearing before the trial court in the absence of the jury the state made out a prima facie case to show that the confession was voluntary, and in our opinion the mere fact that the defendant testified to circumstances that might inferentially show that he made his confession through fear and under duress is not, of itself, sufficient to overcome the state’s showing based on the testimony of several persons who were present when the confession was made, which testimony clearly shows that such confession was voluntary. When the matter was presented to the jury, the defendant did not offer himself as a witness, nor present any other testimony before the jury to show that. his confession had been extorted by fear of violence.

Considering the evidence, pro and con, on the question of admissibility of defendant’s confession, the conclusion is reached that the same was properly admitted; that there is not such a showing that the same was extorted from the defendant by threats of violence to him or other evidence of fear of violence on his part; and that on the record before us no reversible error is presented.

However, this court cannot give its unqualified approval to the method employed by the county attorney and other officers of Adair county in procuring this confession. The undisputed facts are that the defendant was taken from the jail, was not told where he was to be taken, was handcuffed, placed in an automobile with two officers who were armed with deadly weapons, a rifle and a shotgun, each of which were visible to the defendant. The display of these weapons on the part of those who had the defendant in custody, and the carrying of such weapons during the entire time the confession was made, had a tendency, no doubt, to impress the defendant with the idea that, should he not confess, serious bodily injury might befall him at the' hands of those who had him then in custody.

Ordinarily these implied threats of violence by the display of such deadly weapons would be sufficient to render this evidence inadmissible and to require a reversal of this judgment. But the defendant, on the other hand, testified that he did not fear these officers who were armed; that the confession was not induced by the display of such armed force, and on the other hand the defendant testified that his only fear was of those parties who met the officers at the crossing of the creek a short time before the defendant’s home was reached. The undisputed evidence is that, as to these men, none of them were armed; that they made no threats against the defendant, nor did anything that would render the defendant’s confession involuntary and inadmissible.

This conviction is not based entirely upon proof of the corpus delicti corroborated only by the extrajudicial confession of the defendant, but in addition to proof of the corpus delicti there is proof of circumstances corroborative thereof, independent of the extrajudicial confession of the defendant, sufficient to sustain the conviction. For that reason we believe 'that the judgment should not be reversed, for if a new trial were ordered no honest and intelligent jury could arrive at a conclusion different from the guilt of the defendant of the crime of murder. This assignment of error is alluded to infra in connection with the assignment relating to alleged improper remarks of the prosecuting officer, and what is here said must be 'considered therewith.

We shall next consider that group of assignments of error which relate to the sufficiency of the evidence. In this connection it is strenuously contended that the evidence is such as to create a doubt as to the sanity of the defendant to such an extent that it would be a miscarriage of justice to sustain a verdict of guilty of murder with punishment assessed at death, for the reason that the testimony of an unbiased alienist was to the effect that the defendant was incapable of forming any premeditated design to kill.

This assignment of error requires a full consideration of the testimony of Dr. IT. C. Dorsey, a specialist in the treatment of nervous and mental diseases, a resident of Ft. Smith, Ark., who was the only witness introduced in behalf of the defendant on the question of his sanity. There is no question but what this witness was qualified to testify upon this subject.

This witness, after testifying that he was not permitted to make an examination of the defendant in private, testified that the examination made of the defendant by him occurred at the county jail of Adair county in the presence of another physician, Dr. Evans, another man, and also that there was another prisoner in the cell; that the examination occupied a period of time of about 15 minutes; that said examination was not very satisfactory because of lack of time and because of the surrounding conditions under which it was made; that the defendant seemed to be unconcerned about the examination; that he did not understand the English language very well and for such reasons the witness was unable to get a very satisfactory history of his case; that from such examination he found that the defendant had been a drinker of intoxicating liquors, had been drunk several times, and he stated that he had had a venereal disease for about ten years; that a test of the defendant’s blood showed two-plus Wasserman, which means the presence of syphilis; that there was no way of telling whether such disease was inherited or contracted; that as to mental deterioration from syphilis it depends on how long the patient has been infected with the disease; that mental changes are frequently seen after a patient has had the disease about ten years, and from that time on, and the longer the patient has had the disease the more pronounced are the mental changes.

Thereupon the witness testified as follows:

“Q. Now, Doctor, I wish you would describe the types of insanity that are characterized by violence — go into that fully, if you please? A. (That would take quite a long time to go into all' of them and describe them. There are several types of insanity in which violence is one of the things that you see. Probably the worst type is the type called paranoia; another is dementia praecox; another type of insanity is acute monomania and another type is melancholia; sometimes they are called under different names by different authors. These are given by Church and Peterson. Q. Now, Doctor, with reference to dementia prsecox, I wish you would state whether or not that disease would likely be caused by alcoholism, or syphilitic infection? A. It is not positively known what causes dementia praecox, but Church and Peterson, in their book, state that heredity, alcoholism, and syphilis are three things as given as probable causes of the disease, but just exactly to be absolutely definite it has not been determined, but these are the three things given by those authors. Q. Doctor, what would be the symptoms in ease of insanity supposed by alcoholism and syphilitic infection? What would be the symptoms you would notice in a person so infected? A. Well, the main thing would be the mental deterioration. The mind is not normal and the moral senses are blunted; you have lack of attention and the judgment is not normal, but the main thing is mental deterioration of some kind. Q. Now, would a patient so infected be capable of premeditation? A. How is that? Q. Would a patient affected by a case of dementia prsecox be capable of premeditation? A. That is hard to answer. If a patient has dementia prse-cox, where they are more or less normal, there are instances —might be, and then again I wouldn’t think so. There would not be an acute stage at any time. Then when they have an acute attack and that subsides and they have a quietessent stage, but in an acute attack they would not be capable of forming premeditation. Q. Now, referring to the patient, what did you notice, if anything, apparently, that would cause you to believe that he is afflicted with dementia prsecox? A. Well, as I said just now, my examination was not completed enough to make a diagnosis of dementia prse-cox, or any other disease. That is, to classify it in any form. Q. What did you notice in his condition out of the ordinary, referring to — A. He didn’t seem to be exactly interested specially in the outcome of things. He just lacked indifference, in other words. Q. Of what is that the characteristic, Doctor? A. That is characteristic of dementia prseeox. Q. Doctor, have you had any experience with men who have served as soldiers in the late war? A. I have. Q. If a patient who is afflicted with chronic alcoholism and syphilitic infection, and an inherited taint of insanity, should be gassed and should undergo, prior to any battle, exacting military discipline, such as was had in the late war, and his physical condition, after this experience, should show a marked loss of weight, what effect do you think that this would have on his mental condition? Any patient? I am not speaking of this one? A. I do not know whether I can answer that question or not; it has got so many clauses to it, you know. The question is a man that has had venereal disease and chronic alcoholism and hereditary taint of insanity, and went through this war experience and the physical condition was wrecked — what effect that would have on their mental condition? Q. Yes; or likely have, Doctor? A. "Well, any time the physical condition is run down the mental condition is weakened too, but I do not know whether I can answer that question — Q. Well, what has been your experience with patients who have undergone this training and who have been wounded, or gassed, and especially patients that come from the farming class of people? A. Well, in our examination in this veterans’ bureau we find that the great majority of mental cases come from the farming class. All types, even up to the most severe. Even dementia prseeox. We have only a few of the paranoias and quite a number of dementia prseeox. Q. State whether or not these cases that you refer to are characterized by violence and by violent acts on the part of the patient? A. These dementia prseeox cases? Q. No; I am talking of this case. Yes; dementia prseeox? A. Well, those eases of dementia prseeox are — -have at some time or another, as I just testified — there is violence. Not necessarily during the examination. I mean at that particular time, but it other during the course of the disease. Q. Is it possible, doctor, for insanity to be inherited? A. Yes, sir. Q. Is it possible for it to skip one or more generations? A. Yes, frequently does. Sometimes skips three or four and sometimes only one or two.”

Section 1511, Compiled Statutes 1921, in part provides that all persons are capable of committing crimes except those belonging to the following classes:

“Fourth. Lunatics, insane persons, and all persons of unsound mind, including persons temporarily or partially deprived of reason, upon proof that at the time of committing the act charged against them they were incapable of knowing its wrongfulness.”

In construing said subdivision of section 1511, supra, this court has held:

“The test of criminal responsibility for committing an act which is declared to be a crime is fixed at the point where the accused has the mental capacity to distinguish between right and wrong, as applied to the particular act, and to understand the nature and consequences of such act.” Alberty v. State, 10 Okla. Cr. 616, 140 Pac. 1025, 52 L. R. A. (N. S.) 248; Smith v. State, 12 Okla. Cr. 307, 155 Pac. 699; Owen v. State, 13 Okla. Cr. 195, 163 Pac. 548; Roe v. State, 17 Okla. Cr. 587, 191 Pac. 1048.

A careful perusal of the testimony of Dr. PI. C. Dorsey discloses that, from the examination made by him of the defendant, he was not able to diagnose the defendant’s mental condition as that of “dementia praecox” or any other mental disease. However, the doctor did testify that there were some symptoms characteristic of “dementia prajcox,” but there is nothing in his testimony which in the slightest degree would indicate that this defendant had reached that stage of mental incapacity as to be unable to distinguish between right and wrong as applied to this particular act and to be unable to understand the nature and consequences of such act.

The testimony of this specialist was directed to his study and observation of mental diseases and their symptoms as set out in the books on that subject and as found in other patients who had come under his treatment. This witness was permitted to detail all the alleged symptoms of mental deterioration found in the defendant, and in addition he testified to those symptoms which were, evidences of -insanity, although the specialist himself would not and did not testify that the defendant was insane to such a degree as to render him criminally irresponsible within the meaning of the foregoing statute.

The trial court fully and fairly instructed the jury on the subject of the law of insanity. The jury returned a verdict of guilty, necessarily finding the defendant to be sane and the evidence is such that it not only convinces this court that there was no question but that the defendant was sane at the time of the commission of .this crime, but also that the evidence introduced by him on the question of his sanity was insufficient even to overcome the legal presumption of sanity assumed to exist in all those charged with crime.

In the closing argument of the case special counsel for the state stated in substance:

“If the jury sends the defendant to the penitentiary for life, I predict that within five years he will be on the streets of Stillwell, with the blood of Uncle Jimmie Davenport still on his hands.”

Counsel for the defendant objected to this statement on the ground that it was not based on anything in the record, that it was prejudicial to the defendant, and asked the trial court to instruct the jury to disregard it. The trial court overruled the motion. It is here contended that such an argument was an appeal not based on the evidence and to the popular prejudice of the jury against acts of clemency, and as such operated to incite the jury, because of passion and prejudice to inflict the death penalty instead of life imprisonment on the verdict of guilty on matters not based on the evidence in the case.

This court has held:

“The county attorney in argument may draw all proper inferences which are deducible from the relevant and competent- evidence admitted.” Prather v. State, 14 Okla. Cr. 327, 170 Pac. 1176.

Also it has been held:

“The county attorney * * * should not press * * * any deductions from the evidence that are not reasonably legitimate.” Watson v. State, 7 Okla. Cr. 590, 124 Pac. 1101.

While it is a matter of common knowledge and notoriety that at the time this case was tried numerous acts of executive clemency had been and were being granted by the chief executive of this state to such an extent that there was aroused great public indignation, that matter should not have been inferentially commented upon in the argument of this case, as for that reason it all the more tended to and was calculated to prejudice the jury against the defendant and to operate in the infliction of the death penalty instead of life imprisonment, either of which punishments the jury was authorized to assess in this case should they find the defendant guilty.

Under section 2820, Compiled Statutes 1921, this court has power either to reverse, affirm, or modify the judgment appealed from. The error here complained of is not sufficient and does not require a reversal of this judgment. The evidence of the defendant’s guilt is clear. The language complained of was only prejudicial in that it might have tended to accentuate the degree of punishment from that of life imprisonment to that of death. For such reason it is held that, while the argument made was an improper one, it was only prejudicial to the extent heretofore indicated.

The Attorney General has not filed a brief in this ease, but has filed a statement to the effect that the conclusion has been reached by him, and by the representatives of the state who tried this case, that the judgment of the trial court should be modified by reducing the same from death penalty to confinement in the penitentiary for life.

While this is an atrocious crime deserving of severe punishment, yet were it not for the testimony of the defendant himself relative to the alleged confession there are circumstances attending said confession which would otherwise render it inadmissible and would have caused a reversal of this judgment; also the argument complained of, we think, was prejudicial to the extent heretofore indicated. For such reasons it is the opinion of this court that the judgment of conviction should be modified to provide that the defendant, John Doublehead, be imprisoned in the state penitentiary for life at hard labor instead of that he suffer death by electrocution.

It is therefore ordered, adjudged, and decreed that the judgment of conviction of John Doublehead for murder rendered in the district court of Adair county on the 19th day of December, 1922,. sentencing the said John Doublehead to be electrocuted, be, and the same is, hereby modified to provide that the said John Doublehead be imprisoned in the state penitentiary for life at hard labor, and as so modified the judgment is hereby affirmed..

The clerk of this court is hereby directed to forward a duly certified and attested copy of this opinion to the warden of the state penitentiary at MeAlester, Okla.

BESSEY and DOYLE, JJ., concur.


text:
    R. H. RAYMER v. STATE.
    No. A-4600.
    Opinion Filed Aug. 25, 1924.
    (228 Pac. 500.)
    (Syllabus.)
    Appeal and Error — Conviction Reversed on Confession of Error, if Sustained by Record and Law. Where the Attorney General confesses error, this court will examine the record, and, if the confession is sustained thereby and is well founded in law, the conviction will be reversed.
    Appeal from District Court, Texas County; Arthur G. Sutton, Judge.
    R. H. Raymer was convicted of false personation, and he appeals.
    Reversed.
    John L. Gilson, for plaintiff in error.
    George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for the State.
   MATSON, P. J.

The plaintiff in error, R. H. Raymer, was convicted in the district court of Texas county on a charge of false personation and sentenced to serve six months’ imprisonment in the penitentiary. From a judgment rendered on the 17th day of November, 1922, he prosecuted an appeal to this court, and assigns numerous errors as grounds for reversal.

The Attorney General has filed a confession of error, which is as follows:

“The plaintiff in error was convicted in the district-court of Texas county, state of Oklahoma, on a charge of false impersonation, and sentenced to six months in the penitentiary. The record shows that plaintiff in error filed a demurrer to the information and that said demurrer was overruled, to which ruling of the court the plaintiff in error saves his exceptions.”

The information is in words and figures as follows:

“State of Oklahoma, County of Texas — ss.:
“The State of Oklahoma v. R. LL Raymer. Before the District Court of Said County. In the Name and by the Authority of the State of Oklahoma. Now comes Mark H. Adams, the duly qualified and acting county attorney in and for Texas county, state of Oklahoma, and gives the district court-of Texas county and state of Oklahoma, to know and be informed that R. TI. Raymer did, in Texas county and in the state of Oklahoma, on or about the 24th day of August, in the year of our Lord one thousand nine hundred and twenty-two, and anterior to the- presentment hereof, commit the crime of false impersonation in the manner and form as follows, to wit: That the said R. H. Raymer, then and there being, did then and there willfully,' unlawfully, feloniously, and falsely subscribe, publish, and mail to W. L. Foster, at Griggs, Oklahoma, a written instrument, to wit, a letter, he, the said R. IT. Raymer, falsely subscribing the name ‘Ku Klux Klansman’ to said letter, with the intent that the said letter should be delivered and the signature thereon taken as true, when he, the said R. H. Raymer, knew well that he was not a Ku Klux Klansman, nor a member of the Ku Klux Klan; the said R. LI. Raymer thereby falsely assuming the character of a Ku Klux Klansman, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state. Mark H. Adams, County Attorney. ’ ’

The demurrer filed by plaintiff in error, omitting the formal parts, is as follows:

“Comes now the defendant, R. H. Raymer, by his attorney, John L. Gilson, and demurs to the information filed herein by the state of Oklahoma for the following reasons, to wit: (1) (That the said information fails to charge a crime against this defendant and in favor of the state of Oklahoma. (2) That the information is insufficient for the reason that it does not state a crime under the laws of the state of Oklahoma. (3) For the reason that the information is insufficient to prove that any crime has been committed by this defendant, R. H. Raymer, and against the laws of the state of Oklahoma. (4) That this information is insufficient to prove that any crime has been committed against the laws of the state of Oklahoma.”

The law under which this information was attempted to be drawn is section 2140, Compiled Oklahoma Statutes 1921, which is as follows:

“Any person who falsely personates another, and in such assumed character, either: * * #
“Third, subscribes, verifies, publishes, acknowledges, or proves, in the name of another person, any written instrument, with intent that the same may be delivered or used as true. * * *”

A careful reading of the law and the information convinces us "that the information fails to state a cause of action. To commit a crime under this statute, the defendant must personate another person by subscribing, verifying, or publishing a written instrument which purports to be the writing of that other person. The defendant in this case personated an organization, and not another person. We take it that section 2140, Compiled Oklahoma Statutes 1921, is not broad enough to cover the acts alleged in the information, and for that reason we believe the trial court committed error in overruling plaintiff in error’s demurrer thereto.

The essence of the offense of false personation is that the party charged must falsely personate another, and in such assumed character do either of the acts provided under the four subdivisions of section 2140, Compiled Statutes 1921.

The information is based upon a violation of the third subdivision and charges “that the said R. H. Raymer did then and there willfully, unlawfully, feloniously, and falsely subscribe, publish, and mail to W. L. Foster, at Griggs, Oklahoma, a written instrument, to wit, a letter, and he, the said R. H. Raymer, falsely subscribing the name ‘Ku Klux KLans-man’ to said letter, with the intent that the said letter should be delivered and the signature thereon taken as true, when he, the said R. H. Raymer, well knew that he was not a ‘Ku Klux Klansman’ nor a member of the ‘Ku Klux Klan’; the said R. H. Raymer thereby falsely assuming the character of the ‘Ku Klux Klan.’ ”

The evidence on the part of the state, succinctly stated, is about as follows: Raymer, an old man about 70 years old, who could neither read nor write, and who lived in Cimar-ron county, went to the town of Guymon, Oklahoma, and procured a public stenographer to write for him several letters to different parties, to which the words “Ku Klux Klansman” were subscribed thereto. Raymer took these letters and they were subsequently received through the mail by the parties to whom they were addressed. The public stenographer testified that Raymer told her his name was Raymer, and that he did not represent himself to be a “Klansman,” but said that he was a member of some committee that was to send out the letters. This evidence, together with the fact, of the receipt of the letters and of the introduction of the-letters themselves, was the evidence upon which this conviction was based. These facts do not constitute a false per-sonation within the meaning of section 2140, supra. People v. Maurin, 77 Cal. 436, 19 Pac. 832.

The confession of error is sustained. The proper procedure would have been to have put this ignorant old man under a peace bond, or else to have turned him over to the federal authorities for a prosecution for sending threatening letters through the mail. The conviction here is based on a misconception of the law.

Judgment reversed.

BESSEY and DOYLE, JJ., concur.


author: DOYLE, J.

text:
    ARTHUR DOWDY et al. v. STATE.
    No. A-4524.
    Opinion Filed Aug. 28, 1924.
    (228 Pac. 528.)
    (Syllabus.)
    Intoxicating Liquors — Evidence not Sustaining Conviction for Unlawful Manufacture. In a prosecution for manufacturing intoxicating liquo'r, evidence reviewed, and held insufficient to sustain the verdict and judgment of conviction.
    Appeal from County ' Court, Marshall County; Isaac Lewis, Judge.
    Arthur Dowdy and another were convicted of the unlawful manufacture of intoxicating liquor, and they appeal.
    Reversed.
    Minter & McClendon, for plaintiffs in error.
    George F. Short, Atty. Gen., and Baxter Taylor, Asst. Atty. Gen., for the State.
   DOYLE, J.

'The information in this case charges Frank Dowdy, Arthur Dowdy, and A. B. Blankenship with manufacturing 10 gallons of whisky in Marshall county on or about the 28th day of March, 1922.

It appears that the defendant Frank Dowdy was granted a severance. Upon the trial of the other two defendants a verdict of guilty was returned and the punishment of each fixed at 30 days in the county jail and a fine of $50. They have appealed from the judgment rendered on the verdict.

The petition in error, among other assignments, alleges that the verdict is not sustained by the evidence. The Attorney General declines to take the contrary position before this court.

It appears from the evidence that the defendant Frank Dowdy had a 40-acre farm near the Washita river, about 10 miles southeast of Kingston; that on the 30th day of April, 1922, John Glenn, sheriff, in company with deputy sheriff Dickerson, constable Byrd, and a special deputy, Ed Jones, went to the Dowdy farm. There the parties separated and searched up and down the river. The deputy sheriff and constable came upon Frank Dowdy, engaged in making fence posts, and inquired of him if he knew where there were any stills; he informed them that he did not, but if they would go down to the boat landing they would find a place where they had been putting it across the river. In the timber near this boat landing they found two barrels of mash. Following tracks from there to a cornfield they found a barrel of mash buried between the corn rows; they also found a little pot or cooker and a pipe, a tub, and a jar, scattered around behind stumps and bushes. -The corn was two or three inches high, and some of it had been covered by dirt from the hole where the barrel was buried.

A. B. Blankenship was planting corn in another field. The officers asked him if he knew of any stills around there and he said he did not. At the foot of the hill from his house near the road they found a half-gallon jar and two bottles of whisky covered with leaves and trash.

When the state rested, the defendant demurred to the evidence and moved the court to advise the jury to return a verdict of acquittal, for theneason the evidence is insufficient to sustain a conviction, which motion was overruled.

A. B. Blankenship testified that he was living on Frank Dowdy’s place since January that year; that he had a part of it rented; that he never did manufacture whisky; and did not know anything about the mash or the whisky that was found by the officers; that he did not put it there and did not know it was there.

Arthur Dowdy testified that he lived at Kingston with his parents; that he had a crop on Frank Dowdy’s place, including 10 acres of corn that he planted himself, and another crop on the prairie; that the barrel of mash found there was not there when he planted the corn, and he knew nothing about it; that he had not been there since he planted the corn; that he knew nothing about the mash and the whis-ky found by the officers.

Considering all the testimony in the case, it is apparent that the evidence is not sufficient to sustain the verdict. The circumstances proven tend to show that intoxicating liquors had been manufactured, but are not sufficient to show that these defendants had any knowledge of the same. The Washita river there is'the boundary line between Marshall and Bryan counties. Designing offenders may, in order to protect themselves, have placed these articles on the Marshall county side of the river, and there are no circumstances tending to show that these defendants had any knowledge of the presence of these articles where found. It is a cardinal principle of our jurisprudence that the jury is the ultimate tribunal for the investigation and determination of questions of fact. Whether, however, the state fails to offer any material evidence tending to prove the offense charged, or whether the evidence offered tends to prove anything pertinent to the issue, it is a question of law for the court, and where there is an entire absence of evidence tending to identify the accused with the commission of the offense charged in the information, the court should direct a verdict of acquittal. Ward v. State, 15 Okla. Cr. 61, 175 Pac. 60.

It may be the accused committed the offense, but, if so, the state has failed to prove it. The judgment of the lower court is accordingly reversed.

MATSON, P. J., and BESSEY, J., concur.


text:
    A. J. HARRIS v. STATE.
    No. A-4577.
    Opinion Filed Sept. 2, 1924.
    (228 Pac. 525.)
    (Syllabus.)
    1. Witnesses — Cross-Examination—Discretion as to Scope. In cross-examination of witnesses, a large discretion is vested in the trial court. Ordinarily the details of conduct of hostility of a person, not a party to the prosecution, and not a witness against the defendant, should not be gone into on cross-examination, as to do so would open a collateral investigation, presenting innumerable issues having no direct bearing upon the case.
    2. Rape-Conviction on Sufficient Uncorroborated Testimony of Prosecutrix. A conviction for rape may stand alone upon the uncorroborated testimony of the complaining witness, where the same is sufficient to establish the offense, and is not of sudh a contradictory and unsatisfactory nature, or so thoroughly impeached that this court may say that such testimony is clearly unworthy of belief.
    Appeal from District Court, Le Flore County; E. F. Lester, Judge.
    A. J. Harris was convicted of rape in the first degree, and he appeals.
    Affirmed.
    See, also, 21 Okla. Cr. 382, 208 Pac. 1118.
    This is an appeal from the judgment of the district court of Le Flore county, state of Oklahoma, wherein the plaintiff in error, hereinafter referred to as defendant, was charged with the crime of rape in the first degree. The crime was alleged to have been committed on the 1st day of May, 1921, in said county and state. On a trial of the case the jury found defendant guilty as charged, and fixed his punishment at imprisonment in the state penitentiary for a period of 15 years. The court pronounced judgment and sentence in accordance with the verdict of. the jury, and from such judgment and sentence defendant appeals to this court.

      Iiulene Tubbs, the complaining witness, lived with her father and mother on a farm in Le Flore county. At the time of the alleged outrage she was about 12 years old; a girl unusually developed physically. The defendant is her stepgrandfather, being the second husband of her father’s mother. He is a man 68 years old. He also lived on a farm in Le Flore county about 2y2 miles distant from the home of the complaining witness. Complaining witness and her father and mother lived on a farm belonging to one W. I. Long. The complaining witness testified that she had had intercourse with her stepgrandfather on two different occasions. The particular time charged in this case occurred on or about the 1st of May, 1921. She testified that she went over to the home of defendant to stay all night, and did stay all night, visiting her grandmother, and that the next morning, after the milking was done, her stepgrandfather, the defendant, asked her to help him drive the cows to the pasture; that they took the cows out about 8 or 8:30. They took them through what witness called the first pasture and turned them through a gate into the second pasture; that the first pasture had considerable underbrush, shrubbery, and dead trees in it; that the defendant took complaining witness out to the pasture to an old log, and there had intercourse with her; that, after having the intercourse, they both went to the house; and that she spent the rest of the day there.
    The other time that complaining witness tells of having intercourse with defendant was a number of months previous to the intercourse just related. Complaining witness did not tell her mother about the matter until about a week or so before defendant was arrested, which was February, 1922, about 8 months having lapsed before she told any one. For several months prior to the time she told her mother, she had been sick and had been flooding, and a doctor was called. He made an examination of complaining witness. It was then that she told her mother of the actions of defendant.
    The defense was that defendant did not commit the crime. He admitted the trip to the pasture, but said that on the way back from the pasture he met one Johnny Justice, and stopped and talked with him,' and that the little girl went on to the house. In this defendant is apparently corroborated by the testimony of Justice. She denies them meeting Johnny Justice at the time, or of having seen him. Some testimony was introduced to show that the pasture was bounded by three roads, and that there was not nearly so much brush and trees and logs in the pasture as complaining witness said there was.
    Counsel for defendant, in his brief, raises two questions: First, the insufficiency of the evidence; and, second, that the court erred in refusing certain testimony which he tendered in evidence.
    C. C. Williams, for plaintiff in error.
    George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for the State.
   MATSON, P. J.

(after stating the facts as above). We proceed first to consider the second of the above assigned errors. During the direct examination of the defendant the following occurred:

“Q. Mr. Harris, what have been the feelings between you and Mr. Tubbs, as far as being friendly or unfriendly, for the past few years? A. Well, we would be friendly and then get unfriendly. His mother said he had some Indian in him and—
“Q. Just state whether you have been friendly or unfriendly. A. Well, it has been unfriendly most of the time.
“Q. If I understand, you married Mr. Tubbs’ mother? A. Yes, sir.
“Q. How long have you been married to her, Hr. Harris? A. Well, I won’t say whether it was 12 years this last August, or 13 years; I ain’t sure.
“Q. During this time, as you stated, the feelings have been bad and unfriendly towards Mr. Tubbs, and he towards you? A. Him towards me. He left home when we married.
“Mr. Bobb: That is objected to — any details.
“The Court: Sustained.
“Mr. Williams: We don’t care to insist on it.
“iThe Court: Proceed.
“Q. Mr. Harris, what has been your feelings, as to being friendly or unfriendly, as between you and W. I. Long? A. Me and Mr. Long has never been friends, I will say that, from the first year I ever knew him.
“Q. Whht was the occasion when you all had bad feelings?
“Mr. Bobb: That is objected to, your honor.
“The Court: Objections sustained.
“Mr. Williams: All right. The defendant expects to prove that a few years ago a school meeting was held in Lathim sehoolhouse, and that at that time Mr. A. J. Harris suggested at this board meeting that, before they build a new sehoolhouse that they should have a deed to the property, and at that time W. I. Long owned the property upon which the building was to be erected, and that he and A. J. Harris had cross words and exchanged harsh words between each other with reference to the building of the sehoolhouse without a deed to the property, and that ever since that time they have not been on speaking or friendly terms.”

It is contended that the trial court erred in excluding the proffered testimony of the defendant as to the details of the alleged difficulty and hostile feelings between the defendant and one W. I. Long. W. I. Long was not a witness against the defendant. The purpose of this testimony, therefore, was not in the nature of impeachment; but it is contended by counsel for the defendant that, inasmuch as the complaining witness, Hulene Tubbs,’made no disclosure of this alleged act of sexual intercourse by the 'defendant with her to any of her relatives until about 9 months after the act had occurred, and for the further reason that her father, Ruben Tubbs, was during all of that time a tenant on a farm owned by the said W. I. Long, and for the further reason that it is disclosed by the record that the said W. I. Long was present in the Tubbs home at the time the physician made a vaginal examination of the complaining witness, just prior to the institution of this prosecution, and for the further reason that it is disclosed by the record that the said W. I. Long brought the county attorney to the home of Tubbs for the purpose of a consultation with the complaining witness, and that immediately thereafter this prosecution was begun, it was competent and material for the defendant, not only to show a state of ill feeling on the part of the said Long against him, but also it was material that the jury have the circumstances in detail which formed the commencement of this state of ill feeling.

There is very little evidence that W. I. Long was in fact the instigator of this prosecution. All that was offered to be proved by the defendant was that a few years before at a certain school meeting this defendant suggested at a meeting of the school board that before they built a new schoolhouse the board ought to have a deed to the property, and further that it was proposed to build the schoolhouse on land at that time owned by the said W. I. Long, and that this suggestion on the part of the defendant resulted in cross and harsh words being exchanged between him and the said W. I. Long, and that ever since that time the defendant and Long had not been on speaking or friendly terms. Counsel for the defendant did not offer to prove what these cross and harsh words were. Whether they were in the nature of threats against the defendant, or had any direct or even inferential bearing on the .reasons for the instigation of this prosecution, does not appear from the offer to prove. The trial court permitted the defendant to testify to the fact of the unfriendly feeling between him and Long. Under the circumstances of this ease, and in view of the fact that in matters of this kind a large discretion must be left to the trial court, we reach the conclusion that a showing of such alleged unfriendly feeling was all that should have been permitted.

Ordinarily the details of the conduct of the hostility of a person not a party to the prosecution, not a witness against the defendant, should not be gone into, as to do so would open a collateral investigation, presenting innumerable issues having ho direct bearing upon the case. (These issues ofttimes cause unfair prejudices to arise in the minds of the jurors, and distract their attention from the matter properly before them for investigation. Especially is that true in this case, where there is practically no preliminary showing whatever that the instigation of this prosecution was probably the result of the hostility alleged to have existed between the defendant and W. I. Long, the landlord of the father of the complaining witness. As we view the record, outside of the testimony of the defendant himself, W. I. Long did nothing but that any neighbor and friend would have done for another neighbor and friend under similar circumstances, especially as the record here discloses where one friend acted at the solicitation of the other.

It is also contended that the evidence is insufficient to sustain this conviction. The conviction is based largely upon the uncorroborated evidence of the complaining witness, a girl about 12 years of age. There is, however, some slight corroboration by the attending physician, such as the rupture of the hymen, and as to other’physical facts surrounding the premature physical development of the complaining witness for one of her age. The attending physician testified that she had a physical development of a girl of 15 years of age, rather than one of 12.

The complaining witness made no disclosure of this outrage until several months after its occurrence. This was a circumstance, no doubt, the jury considered. She attempted to explain it by stating that she was ashamed to tell her mother about it, and only did so after repeated importunings on the part of the mother.

That a conviction for rape may stand alone upon the uncorroborated testimony of the complaining witness is established by the former holdings of this court. Reeves v. Territory, 2 Okla. Cr. 351, 101 Pac. 1039; Brenton v. Territory, 15 Okla. 6, 78 Pac. 83, 6 Ann. Cas. 769; Johnson v. State, 5 Okla. Cr. 4, 112 Pac. 760. On the other hand, this court has held that a conviction for rape, based on the uncorroborated testimony of the complaining witness, where her testimony is contradictory and unsatisfactory, and the story told by her is inherently improbable, will not be permitted to stand. Allen v. State, 10 Okla. Cr. 55, 134 Pac. 91; Douglas v. State, 19 Okla. Cr. 257, 199 Pac. 927.

The story here told is improbable only, as such stories are always improbable, as shocking to our finer sensibilities of right and morality. It is hard for any one to believe that such crimes may be committed and are committed in this enlightened age of Christian teaching and example. In that sense the commission of any crime may be said to be improbable. Crime is repugnant to our ideas of right living and just treatment of others. However, the law reports are cumbered with cases of convictions affirmed of statutory rape, where the accused was a man of advanced years and the complaining witness a girl of tender years. It is a matter to be deplored that such instances are not infrequent.

The improbability of the complaining witness’ story must arise, therefore, from something other than the likelihood of the improbability of the commission of crimes of this character. The testimony of the complaining witness must be of such a contradictory and unsatisfactory nature, or else such witness must be so thoroughly impeached, that this court may say that such testimony is clearly unworthy of belief and insufficient in law to sustain the conviction.

We are not permitted to weigh the evidence as between witnesses of apparently' equal credibility. That function belongs properly to the jury and to the trial court. There the witnesses are observed. Their manner of testifying, their candor and demeanor, and numerous other matters which the printed page cannot and does not disclose, are open to the close scrutiny of the jury and the trial judge.

Therefore this court will not disturb a judgment of conviction because of the alleged insufficiency of the evidence, merely because the evidence is conflicting, if there is evidence in the record which, if believed, proves the crime. The 'decisions to this effect are numerous and need not be again cited.

The fact that the complaining witness made no disclosure of this crime until 8 or 9 months after its commission is, of course, a circumstance that would ordinarily render her story highly improbable. While she was a girl of premature physical development for one of her age, it is equally apparent, we think, that she was of immature mental development. She was not as far advanced in school as girls of her age ordinarily are, and her testimony does not bear the earmarks of that of a coached witness.or of a designing female, who had maturely reflected upon the probability of a fabricated prosecution.

The defendant was the'step grandfather of the complaining witness, and the record discloses that on other occasions subsequent to the time’ of this alleged crime he was in company with the complaining witness. Had the complaining witness and her parents, therefore, desired to frame up a prosecution against this defendant, the opportunity was presented to them to make the time of the commission of the offense much nearer to the time of its disclosure, and thereby in that respect relieve the complaining witness’ story of that element of improbability. Thqt this was not done may be advanced as an argument that the child’s story is not a fabrication, with as much degree of success as it may be contended that the story itself is improbable, because the disclosure of the crime was not made for several months. We cannot say, therefore, that the testimony of the complaining witness is inherently improbable, nor does it bear the earmarks of having been fabricated.

After carefully considering the entire transcript of the evidence in this case, we find no good reason for disturbing this judgment because of insufficient evidence to sustain it.

The judgment is affirmed.

BESSEY and DOYLE, JJ., concur.