text:
    LEE FOWLER v. STATE.
    No. A-3905.
    Opinion Filed May 5, 1923.
    (214 Pac. 738.)
    (Syllabus.)
    1. Indictment 'and Information — Proof of Substantive Offense Charged. The state need do no more than to prove the substantive offense charged.
    2. Intoxicating Liquors — Evidence to Sustain Conviction for Selling. Evidence reviewed, and held sufficient to sustain a conviction for selling intoxicating liquor.

      3. Evidence — Judicial Notice that Alcohol is Intoxicating,. Spirituous Liquor. Courts take judicial notice that alcohol is an intoxicating, spirituous liquor.
    Appeal from County Court, Stephens County; G. T. Burrows, Judge.
    Lee Fowler was convicted of a violation of the prohibitory liquor laws, and he appeals.
    Affirmed.
    R. C. Drake, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

This is an appeal from a judgment of the county court of Stephens county, rendered on a verdict of a jury finding appellant guilty of selling intoxicating liquor, and assessing his punishment at confinement for six months in the county jail and a fine of $500.

The information charges that Lee Fowler, in Stephens county on or about the 23d day of December, 1919, “then and there being did then and there willfully and unlawfully sell intoxicating liquor, namely, one quart of alcohol, to G. C. Jackson, Ben Jones and Duge Grove.”

Counsel for appellant contends that there is a fatal variance between the testimony produced and the allegations of the information, in that the information charges the selling of one quart of alcohol, and that the state did not prove the intoxicating liquor sold was alcohol.

G. C. Jackson, first witness for the state, testified that he had known defendant, Lee Fowler, about 12 years; that on the day alleged defendant sold him a quart of alcohol, commonly called “White Mule”; that he would judge it was 40 per cent, alcohol; that is was a kind of whisky.

The foregoing excerpt from the testimony is sufficient to show that there was no variance. Assuming, but not deciding, that having alleged the sale of a particular kind of liquor, the state is held to the proof of that particular kind, still there is no variance. The general rule is that the state need do no more than to prove the substantive offense charged.

It may be further remarked that the allegation of the kind of liquor is placed under a videlicet. This would have excused the state from strict proof, unless such matter became essentially descriptive of the offense. 1 Greenleaf, Ev. § 61.

It is argued by counsel for appellant that the state failed to show that it was even an intoxicating liquor, and, unless it was whisky, the court could not take judicial notice that "White Mule” is intoxicating.

Courts take judicial notice that alcohol is an intoxicating, spirituous liquor, and it was not necessary for the state to prove that it was intoxicating. It is a matter of common knowledge that alcohol is the intoxicating element of the various forms of beverage known as spirituous and intoxicating liquors, and that all intoxicating liquors that are so used contain alcohol mingled with other things, particularly with water.

Finally, counsel for appellant complains that the punishment assessed is excessive.

We do not know just why appellant was given the maximum punishment, but we do know that the records of this court show that he has been a frequent violator of the prohibitory liquor laws.

Finding no error in the record, the judgment of the lower court is affirmed.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    RICH WALKER v. STATE.
    No. A-4079.
    Opinion Filed May 5, 1923.
    (214 Pac. 734.)
    Appeal from District Court, Oklahoma County; Edward Dewes Oldfield, Judge.
    Rich Walker was convicted of the illegal possession of narcotic drugs, and he appeals.
    Affirmed.
    The Attorney General, for the State.
   PER CURIAM.

Rich Walker was convicted in the district court of Oklahoma county of the crime of illegal possession of narcotic drugs, alleged to have been committed in said county on the 9th day of February, 1921. On a trial to a jury in April, ,1921, a verdict of guilty was returned with punishment fixed- as above stated. Judgment was rendered in conformity with the verdict on the 23d day of April, 1921.

Case-made and petition in error were filed in this court on the 15th day of September, 1921. The ease was submitted on the 6th day of December, 1922, at which time no appearance was made by counsel representing plaintiff in error to orally argue the cause. No brief has been filed in behalf of the plaintiff in error.

Rule 9 of this court (12 Okla. Cr. viii, 165 Pac. x) provides :

“When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court and. the exceptions taken thereto, and the judgment and sentence, and, if no prejudicial error appears, will affirm' the judgment. ’ ’

An examination of the pleadings, instructions, and judgment and sentence discloses no prejudicial error, and the judgment is accordingly affirmed.


author: DOYLE, J.

text:
    ED GROVES v. STATE.
    No. A-4032.
    Opinion Filed May 7, 1923.
    (214 Pac. 736.)
    (Syllabus.)
    Intoxicating Liquors — Evidence to Support Conviction for Unlawful Sale. In a prosecution for selling intoxicating liquor, evidence considered, and held insufficient to support' a verdict of guilty.
    Appeal from County Court, Stephens County; G. T. Burrows, Judge.
    Ed Groves was convicted of violating the prohibitory liquor law, and he appeals.
    Reversed.
    Bond & Morris, for plaintiff in error.
    George P. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of conviction on an information charging that Ed Groves, in Stephens county, on the 19th day of February, 1921, “did then and there willfully and unlawfully sell intoxicating liquor, to wit, one pint of whisky to Lee Fowler.” The jury failed to agree on the punishment. On the 30th day of May, 1921, the court sentenced the defendant to be confined in the county jail for 30 days and to pay a fine of $100.

Of the errors assigned we deem it only necessary to pass upon the question of the sufficiency of the evidence to sustain the verdict.

The state called but one witness, Lee Fowler, who testified:

“I was in Dr. Plunkett’s office. Another fellow was there, and cashed a check for Dr. Plunkett or gave him a check —I never learned his name — and asked Dr. Plunkett to get him a pint of whisky. Dr. Plunkett asked me if I would go and get it. I said I would try. I went down on the street and met Ed and asked him if he had any whisky, and he said, ‘Yes; you will have to go with me to get it.’ I told him where I was going to take it. We went down into the basement of the Wade Hotel, and he handed it to me out of a trash barrel. I told him to wait at the bottom of the steps of the O’Neill Building and I would take it up and bring back his money. I met him coming up as I was going down, and I delivered the money to him. I entered a plea of guilty to the charge of selling'this pint to Crow.”

On cross-examination he testified as follows:

“Q. Haven’t been sentenced yet, have you? A. No, sir.
“Q. Now, Lee, who did Dr. Plunkett get that check from? A. A man named Crow.
“Q. What did you do with it? A. Gave it to Ed.
“Q. Who was the check made payable to? A. Cash.
“Q. How many times have you been convicted of selling wdiisky? A. I don’t know, five or six times.
“Q. How much of your sentence time have you laid out? A. About four years.
“Q. You happened to be out of whisky about that time? A. Yes.
‘ ‘ Q. Where does Crow live ? A. He lived in Comanche.
“Q. How much was that check for? A. Five dollars.
“Q. What time of the day was this transaction? A. It was along towards the middle of the afternoon.”

Ed Groves testified in Ms own behalf that he did not sell or give Lee Fowler any whisky, nor did Lee Fowler come to him to get any whisky. He was not cross-examined.

This conviction rests upon the testimony of Lee Fowler alone, a self-confessed professional bootlegger. It is impossible to tell from his testimony whether he gave defendant the check or paid money. He first states that he paid money. On cross-examination he says he gave defendant the check. He first states that he did not know the man’s name who gave the check. On cross-examination he says his name was Crow.

Defendant testified in his own behalf and denied the charge made by Lee Fowler, and his testimony was in no manner weakened or impeached. He presented as complete a defense to this charge as any man, however innocent, would ordinarily be able to present.

While this court is to the fullest extent committed to the doctrine “that the credibility of witnesses and the-weight and value to be given their testimony is a question solely for the jury’s determination,” yet, this court will not hesitate to reverse a judgment of conviction where the evidence is not sufficient to support the verdict, or where the evidence in the case so greatly preponderates in favor of the defendant that upon a careful consideration thereof there remains such grave and serious doubt of the guilt of the defendant that leads to the conclusion that the verdict of the jury is the result of passion or prejudice, and not of that calm and deliberate consideration of the evidence which the law requires. To warrant or sustain a conviction there must be evidence sufficient to prove that the offense was committed, and also to inculpate the defendant with the commission of it as charged in the information. In our opinion, there was not sufficient evidence in this case to warrant the verdict of the jury. The judgment of the lower court is therefore reversed.

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


text:
    Ex parte ED HALEY.
    No. A-4598.
    Opinion Filed May 12, 1923.
    (214 Pac. 1090.)
    (Syllabus.)
    1. Courts — Term of Regularly Convened .County Court — Duration. Under the statute (section 3178, Comp. Stats. 1921), the general terms of county courts begin on the first Mondays of "January, April, July, and October of each year, and, when the general term of a county court has been once regularly convened on the day fixed by law, it continues until the time fixed by law for the next succeeding general term, unless previously adjourned sine die.
    2. Same — Power to Adjourn Term but not to Prolong Term. The clause of section 3179, Comp. Stats. 1921, providing that when so convened it may, “by proper order of said court, be adjourned to such time as the judge thereof may deem proper: Provided, that the same shall not conflict with the term of said court provided for at any other place in said county” — is not intended as a grant of power to prolong the term. It merely commits to the sound discretion of the court the power to adjourn the session at the county seat from time to time as business may require.
    3. Same — Adjournment of Regular Term at County Seat to a Day Later than Intervening Term at Other Court Town. Where the statute provides that the county court shall hold terms at different places within the county other than the county seat, an adjournment of the regular term of court at the county seat may be had to a day later than an intervening term provided for by law at some other place in the county.
    Habeas corpus by Ed Haley for discharge from custody.
    Writ denied.
    C. E. Castle, for petitioner.

      George F. Short, Atty. Gen., Baxter Taylor, Asst. Atty. Gen., and John S. Moss, Co. Atty., of Wagoner, for respondent.
   DOYLE, J.

This is an application for writ of habeas corpus whereby Ed Haley seeks to obtain his discharge from the county jail of Wagoner county, where he is now confined under an order of commitment issued on a judgment of the county court of said county rendered on the 24th day of February, 1923, in pursuance of a verdict finding the aforesaid Ed Haley guilty of manufacturing whisky and fixing his punishment at confinement in the county jail for four months and a fine of $200.

, It is averred that said county court was without jurisdiction to try said cause, in that it was not legally in session when petitioner was tried and convicted and sentenced, in that said county court holds terms of court at two places-in Wagoner county, Okla., one of which is at Wagoner, the county seat, and the other at Coweta, in said county; that said county court convened at Wagoner, on Monday, the 1st day of January, 1923; that said county court, under the law, was required to convene at Coweta on Monday, February 5, 1923; that said county court did not adjourn its term of court at Wagoner at any time before Monday, February 5, 1923, for the holding of its regular term at Coweta on said last mentioned date; that said county court, in so far as its journal shows, did not adjourn at any time after its convening on Monday, January 1, 1923; that, not only did said county court fail to adjourn its regular term beginning at Wagoner on the first Monday in January for the convening of its regular term at Coweta on the first Monday in February, but it endeavored to remain in session and held court at Wagoner on said Monday, February 5, 1923; that its said convening at Wagoner on said Monday, February 5, 1923, is not shown by its journal, but is shown by the judge’s bench docket in ease No. 1371, entitled State of Oklahoma, Plaintiff, v. Ralph Hern-don, Defendant, wherein it is recited that on said 5th day of February, 1923, the defendant was present in court in person, and by his attorney, Owen Watts, was furnished with a copy of the information and list of witnesses, waived arraignment and time to plead, and entered his plea of not guilty, and his bond fixed at $500; that said county court having failed to adjourn its January term at Wagoner for the convening of its regular term at Coweta on Monday, February 5, 1923, the January term of said county court at Wagoner terminated and ended by operation of law.

That said county court was not in session on said February 20, 1923, the date of said trial of petitioner, nor on the 24th day of February, 1923, the date of the judgment and sentence of petitioner; that the said court was without jurisdiction to try petitioner and to sentence petitioner; and that the verdict of the jury and the judgment and sentence of said county court are null and void.

Counsel for the state have filed a demurrer to the petition on the ground that the same does not state facts sufficient to constitute a cause of action.

Section 3178, 3179, and 3180, Comp. Stats. 1921, read as follows:

“3178. In each county, commencing on the first Mondays of January, April, July and October of each year, except as otherwise herein provided, county court shall convene at the county seat and continue in session so long as business may require: Provided, that said courts shall always be open and in session for the transaction of all probate business in their respective counties.
“3179. In counties, where it may be provided by law for such court to be held at a place or places other than the county seat, such court shall convene on the first Mondays of January, April, July and October of each year, at the county seat, and remain in session for a period of three weeks, and may then, by proper order of said court, be adjourned to such time as the judge thereof may deem proper: Provided, that the same shall not conflict with the term of said court provided for at any other place in said county; and provided, further, that said term of court cannot be adjourned to resume at a later date than eight weeks from the date of entering the order of such adjournment.
“3180. If there is only one place other than the county seat at which it is provided by law for holding terms of the county court, the terms of said court at such place shall commence on the first Mondays of February, May, August and November of each year, and continue in session for the period of three weeks, if the public business requires it. ’ ’

Construing the above statutory provisions in the case of Tucker v. State, 10 Okla. Cr. 565, 139 Pac. 998, it is said:

“The rule is too well settled to admit of controversy that, where a general term of court has been once regularly convened, on the day fixed by law, it can expire only by adjournment sine die, or by operation of law, and, unless adjourned sine die, will not so expire by operation of law until the first day of the next general term. St. Louis & S. F. R. Co. v. James, 36 Okla. 196, 128 Pac. 279. The trend of the courts is to so construe the law, if possible, as to uphold the sessions of courts actually doing business.
“The fair import of the language of (section 3178) above quoted is that when a general term of the county court has been regularly convened at the county seat, on the day fixed by law, the term continues until the convening of the next succeeding term at the county seat, unless previously adjourned sine die. The language of (section 3179) providing that when so convened, it may then ‘by proper order of said court, be adjourned to such time as the judge thereof may deem proper: Provided, that the same shall not conflict with- the terms of said court provided for at any other place- in said county’ — is not intended as a grant of power to prolong the term, but merely commits to the sound' descretion of the court the power to adjourn the sessions of court at the county seat from time to time as business may require.
“The contention that the intervention of a term of the county court at the court town of Cornish caused a lapse of the January term at the county seat is also untenable. Birdwell v. Love, 22 Okla. 549, 98 Pac. 425; State v. Crilly, 69 Kan. 802, 77 Pac. 701.”

The well-established rule is that where the facts stated in the petition for a writ of habeas corpus, if established, will not wárrant a discharge of the prisoner, the writ will be denied-.

We are of opinion that under the decision of this court in the Tucker Case, the facts stated in the petition do not warrant a discharge of the petitioner. It follows that the application for writ of habeas corpus should be and the same is denied.

MATSON, P. J., and BBSSEY, J., concur.


text:
    C. N. JANEWAY v. STATE.
    No. A-4146.
    Opinion Filed May 12, 1923.
    (214 Pac. 933.)
    (Syllabus.)
    Homicide — Appeal—Error in Favor of Appellant. In a prosecution for murder, where the court submits the issue, and the jury find the defendant guilty of manslaughter in the first degree, where the law and the facts make the crime murder, the fact that the jury found the defendant guilty of a lower degree than that established by the evidence is an error' in his favor, of which the defendant cannot complain.

      Appeal from Superior Court, Creek County; Gaylord R. Wilcox, Judge. .
    C. N. Janeway was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.
    Thompson & Smith, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of conviction of manslaughter in the first degree, the punishment having been assessed at imprisonment in the penitentiary for the term of five years.

The 'defendant is not represented in this court by counsel; we have nothing before us but the petition in error and case-made. The information charges that in Creek county, on or about the 21st day of April, 1921, defendant, C. N. Janeway, did kill and murder one J. W. Colclazier. The evidence shows that deceased conducted a wholesale grocery business in the town of Oilton, and employed defendant and defendant’s wife for about two years, their employment ending several months before the homicide. In the month of March defendant told • his wife that he had been informed that she had been criminally intimate with deceased. She strenuously denied the accusation and protested her innocence. He also accused deceased of being criminally intimate with his wife. Deceased denied the accusation. Defendant later stated to several persons that he intended to sue the deceased for damages for his wrongful conduct, and stated to others that he had given deceased 30 days to wind up his business and leave the country. On the morning of the tragedy deceased went to the post office, and, leaving there, went into a grocery store, the second door from the post office. Defendant was standing in the store near the door. When deceased came in neither spoke. Deceased went to the rear of the store and spoke to Fred Nayfa; then turned and walked towards the door, again passing defendant, who shot him in the back as he reached the door. The bullet entered near the spine, coming out near the navel. He staggered out the door, and was taken to a doctor’s office, and from there was taken to a hospital at Yale, where he died the following day.

Fred Nayfa testified:

“My grocery is the second door from the post office. Janeway came into the store, and I asked him if he wanted anything. He said ‘No,’ and put his elbow on the showcase facing the door. In four or five minutes Mr. Colclazier came in. He had some letters in his hand. He passed by Mr. Jane-way, and asked me where my brother was. He waited about three or four minutes, reading some letters; then he walked back to the door, and Janeway shot him as he was going out the door. Janeway was about 10 or 12 feet from him when he fired the shot. Janeway went back into the toilet, and stayed there 10 or 15 minutes.”

Dr. Ellis testified:

“I met deceased on the street. He said, ‘Doctor, come back to the office and examine me; I am shot. ’ I took hold of his arm, and went back to my office with him. I probed the bullet wound, and found that it entered the abdominal cavity. I said ‘Well, Jim, it has gone into the cavity.’ Then I took him to the Yale hospital, and Dr. Profit operated on him. The bullet entered about an inch to the left of the spine, and came out about an inch and a half to the left of the navel. I was present when deceased made the statement which was taken down by the assistant county attorney. It was just prior to his death. ’ ’

There being no objection, the written statement was introduced in evidence. It reads as follows:

“Yale, Okla., April 24, 1921.
“My name is J. W. Colclazier, and I live at Oilton, Okla. On the 22d April, 1921, one O. N. Janeway was in the Traders’ Grocery in Oilton, Okla., about 10:30 a. m. I did not say anything to him (C. N. Janeway). Was there only a few minutes. When I started out of the store some one shot me in the back. There had never been any trouble between myself and C. N. Janeway. There was never any intimacy between C. N. Janeway’s wife and myself. I think they (C. N. Janeway and wife) were framing up on me. C. N. Janeway tried to get $1,500 from me Saturday night in the pool room. No one was with 'him. At the time we were alone. Witness to his statement.”

The evidence shows that he made, this statement about two hours before his death.

As a witness in his own behalf defendant testified:

“I worked for J. W. Colclazier for about two years and a half, and my wife worked for him at the same time. Mrs. Colclazier was the first person that told me about my wife’s relations with her husband. It was on the morning of the 11th of March. She said, ‘Did you know Jim and your wife is thick?’ I said, ‘No; how do you know they have been?’ she said, ‘Didn’t Bill tell you the news? He saw them coming out of the barn night before last.’ I said, ‘That can’t be true.’ I went home and asked my wife, and she said it was not true. I asked Bill Yannoy, and he said he saw them coming out of the barn, and he would face Jim Colclazier any time I called him Colclazier came to the office, and of course he denied it, and, I don’t know, it was kindly like a dream to me; I was in so much trouble; I don’t remember all. Mr. Russell and Sam Harris and Clarence Patton told me they had talked to Mr. and Mrs. Colclazier, and also to my wife, trying to get a settlement, and told them that I would not settle. I did not demand in the pool hall or any other place $1,500 from Colclazier. On the morning of the shooting I was traveling south, and Colclazier was coming north on the east side of the street. I stepped into the Traders’ Grocery to keep from meeting Mm. I was standing there in the store leaning against the counter, crying, when Colclazier came in. I would have gone out on the street again, but I was crying, and I hated to have the public see me crying. As he passed me going out of the store he said, ‘You son of bitch, I will get you yet,’ and made a turn and put his hand back this way. Then I suppose I shot him. I thought he was going to make a gun play on me, and I thought it was up to me to do it first. I did not realize what I was doing. ’ ’

On cross-examination he testified:

“I had several interviews with Colclazier after this trouble commenced. He always denied being guilty of anything, and always said my wife was a good woman. He denied coming out of the hay bam with her. I asked him to face my brother-in-law, Bill Yannoy, and tell him that he did not come out of the hay bam. Then we went over to the office, and Yannoy said he saw them coming out of the hay barn. Col-clazier said it was not so, and Yannoy said he was a liar; it was so. Then I told Colclazier I would give him 30 days to clean up and get out of the town, and he asked me to stay within the bounds of the law, and I told him-1 would do that.”

The defendant’s wife testified that she had been criminally intimate with the deceased for about a year and a half.

Dr. J. "W. Phillips, a physician at Oilton, testified in answer to a hypothetical question, that, in his opinion, the act of the defendant in shooting the deceased was that of an insane man, and that he was insane to the extent that he did not know right from wrong.

Three or four witnesses qualified, and testified that the defendant’s general reputation in that community for peace and quiet was good.

In rebuttal the state called Dr. A. D. Young, of Oklahoma City, and Dr. G. W. Griffin, medical superintendent of the State Hospital for the Insane at Norman, who qualified as alienists, and, in answer to a proper hypothetical question, each gave as their opinion that defendant was sane when he committed the homicide.

This is a sufficient statement of the evidence to show the issues presented for the determination of the jury.

The errors assigned are that the verdict of the jury is contrary to law and to the evidence, errors of the court in admitting, incompetent evidence, and errors of the court in its instructions to the jury.

The theory of the prosecution appears to have been that the killing was an assassination. The theory of the defense was that the defendant shot in self-defense; and the further defense of insanity was interposed. While the defendant is not represented in this court, we have carefully gone through the record, and find it free from substantial error. The instructions of the court, to which no objection was made or exceptions reserved, fully covered the law of the case, including self-defense and the defense of insanity.

The record shows that no exceptions were reserved to the rulings of the court on the admission of evidence, and there was no objection made or exception taken to the statement of deceased which was admitted así a dying declaration. The well-settled rule is that dying declarations can be admitted only to prove the circumstances attending or leading up to the homicide ; and, while the statement admitted went beyond this, still exceptions are necessary to protect the technical rights of a defendant on trial.

Considering the evidence in the ease, there can be but little doubt that the homicide was a deliberate and premeditated murder; and, while the defendant’s account of the killing differs somewhat from the other testimony in the case, he is, we think, guilty of murder upon his own statement. It would seem that the demands of justice and the protection of society clearly required in this case that the defendant should have been found guilty of murder. However, the court submitted the issiue of manslaughter in the first degree, the jury found the defendant guilty of this degree, and assessed the minimum punishment. Juries frequently render such verdicts, and this can only be accounted for upon the theory that their verdict was the result of a compromise of opinion.

Finding no material error in the record, the judgment of the lower court is affirmed.

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


text:
    HOMER SELF et al. v. STATE.
    No. A-4049.
    Opinion Filed May 12, 1923.
    (214 Pac. 935.)
    (Syllabus.)
    1. Appeal and Error — Time for Appeal of Misdemeanor. If thle appeal in a misdemeanor case is not lodged in this court within 60 days after the rendition of the judgment appealed from, this court does not acquire jurisdiction of the appeal unless a proper order was made extending the time within which the appeal may have been lodged in this court, not exceeding an additional 60 days.
    2. Appeal and Error — Case-Made—Signing and Settling — Judges. The case-made must be signed and settled by the- judge who tried the case, though such trial judge be a special judge, in the absence of such circumstances or conditions enumerated by the statute authorizing one other than such trial judge to sign and settle a case-made.
    Appeal from County Court, McIntosh County; R. D. Howe, Special Judge.

      Homer Self and another were convicted of manufacturing intoxicating liquor, and they appeal.
    Appeal dismissed and remanded with directions.
    J. G. Harley, for plaintiffs in error.
    George F. Short, Atty. Gen., and Leon S. Hirsh, Sp. Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an attempted appeal from a judgment of conviction rendered against the defendants in the county court of McIntosh county on the 27th day of April, 1921, on a joint trial on a charge of unlawfully manufacturing liquor, with punishment assessed against each defendant at a fine of $200 and imprisonment in the county jail for a period of 30 days.

The Attorney General has filed a motion to dismiss the appeal upon the following grounds: First, for the reason that the appeal was not lodged in this court within the time allowed by statute for taking appeals in misdemeanor cases; second, upon the ground that the case-made is not certified to by the judge who tried the cause, there being no showing of the inability of the trial judge to certify to the case-made, and the record not containing a transcript duly certified to by the court clerk.

Both grounds of the motion appear to be well taken. The appeal was not lodged in this court within 60 days after the rendition of the judgment. The judgment was rendered on April 27, 1921, and the.petition in error with the purported case-made was filed in this court on August 15, 1921. There was no extension of 'time allowed beyond the 60-day period for taking appeals in misdemeanor cases. If the appeal in a misdemeanor case is not lodged in this court within 60 days after the rendition of the judgment appealed from, this court does not acquire jurisdiction of the appeal unless a proper order was made extending the time within which the appeal may have been lodged in this court, not exceeding an additional 60 days. Section 2808, Compiled Statutes 1921.

It further appears that Hon.- E. I. O’Reilly, the regular judge of the county court of McIntosh county, was disqualified to try this case by reason of his having been county attorney of such county at the time this prosecution was instituted. Hon. R. D. Howe was elected by the bar of the county to act as special judge in this case and did qualify and act in that capacity. The purported case-made is signed and settled by Hon. E. I. O’Reilly, the regular judge of the county court, who had previously certified his disqualification. There is no showing of the inability of the special judge to certify, sign, and settle the case. Under repeated decisions of this, as well as the Supreme Court of this state, a case-made so settled, certified, and signed is under such circumstances a nullity. Burnett v. Burnett, 77 Okla. 243, 188 Pac. 342, and cases cited; Lyde v. State, 17 Okla. Cr. 365, 187 Pac. 252, and cases cited.

The case-made being a nullity, and there being no certified transcript of the record proper attached to the petition in error and filed in this court, there is no proper record brought before the court for review.

For reasons stated, the motion of the Attorney G-eneral to dismiss the appeal is sustained, and the appeal is dismissed, and the case remanded to the trial court, with instructions to enforce the judgment and sentence as to each defendant.


author: MATSON, P. J.

text:
    MILTON H. GILBERT v. STATE.
    No. A-3960.
    Opinion Filed May 12, 1923.
    (214 Pac. 936.)
    (Syllabus.)
    1. Appeal and Error — Prejudicial Questions on Cross-Examination. Where it is contended that the trial court erred in permitting- the county attorney to ask defendant an incompetent, and prejudicial question on cross-examination, it must appear from the record that the question was asked for the evident purpose of taking an unfair advantage of defendant, by containing therein matter which the examiner knew to be untrue or else incapable of proof.'
    2. Same,- — Harmless Error. Although a qulestion propounded to defendant on cross-examination may contain some objectionable subject-matter, the conviction will not be set aside because thereof, where- the evidence of defendant’s guilt is! overwhelming.
    3. Statutes — Larceny Act not Unconstitutional Because no Reference to Punishment in Title. The title to the act of the 1919 Legislature (section 2120, Comp. Stats. 1921), relating tri the larceny of automobiles and automotive driven vehicles, held not in contravention of section 57, art. 5, Constitution.
    Appeal from Distriit Court, Logan County; Edward Dewes Oldfield', Judge.
    Milton H. Gilbert was convicted of larceny of an automobile, and be appeals.
    Affirmed.
    John A. Remy, for plaintiff in error.
    George F. Short, Atty. Gen., and Leon S. Hirsh, Sp. Asst. Atty. Gen., for the¡ State.
   MATSON, P. J.

This is an appeal from the district court of Logan county, wherein, on the- 12th day of November, 1920, plaintiff in error, hereinafter referred to as defendant, was adjudged guilty of the larceny of an automobile, the property of G. W. Hirzel, and punishment assessed as above stated. Petition in error and case-made were filed in this court on April 7, 1921, 'and the appeal is properly before the court for review.

Only two propositions are advanced as ground for reversal of this judgment. The first is error of the trial court in permitting the county attorney to propound to defendant on cross-examination the following question:

“Q. And further, don’t you know as a matter of fact that you went to Oklahoma City on Saturday after you stole that ear on Thursday, and don’t you know you made application on Saturday for a tag for this very Hirzel car, giving a fictitious engine number, and that you already had the engine dismantled with the idea of changing the number to correspond with the application blank?
“By Mr. Remy: Object; to the statement ‘On Saturday after you had stolen the car’ by the county attorney, and move for venire de novo.
“By the Court: Overruled, exception allowed.”

It is contended that the asking of such question of defendant constituted grave misconduct on the part of the county attorney, and that the refusal of the trial court to sustain the objection of defendant’s counsel thereto, and to declare a mistrial because thereof, entitles defendant to a reversal of this judgment and to a new trial.

After a careful examination of both the direct and cross-examination of the defendant, we fail to see wherein the asking of the foregoing question alone should be held reversible error in this ease. Defendant’s admissions as a witness, his attempted explanation of his connection with the stolen automobile, and his conduct immediately subsequent to the theft of the car, can hardly be explained on any theory consistent with innocence. These facts, admissions, and circumstances Avere all before the jury (elicited both by the direct and cross examination), at the time the foregoing alleged incompetent question was asked.

It does not appear from' the record that the county attorney propounded the question for the purpose of prejudicing the jury against the defendant, nor to take an unfair advantage of the defendant by intimating something that was not true or incapable of being proved.

The truth of the assumption “after you stole that car on Thursday,” contained in the question objected to, had been pretty thoroughly established by competent evidence before the question was asked. Such assumption therefore was not wholly unjustifiable; neither was the asking of the question manifestly improper.

With the overwhelming evidence of guilt contained in this record, it would be an unwarranted interference with the enforcement of the law and a' prostitution of justice to remand this cause for a seeond trial, when an honest and intelligent jury could arrive at no other reasonable conclusion than that of the guilt of defendant.

If judgments of conviction, rightfully obtained under the law and the evidence, were to be set aside merely because the county attorney, in the heat of the trial, apparently without any malicious purpose, asked of defendant on cross-examination a question or two containing erroneous matter, an apparent miscarriage of justice would result, to the utter dis-cOmforture and discouragement of all law-abiding citizens and with it resultant and unnecessary additional burden to the taxpayer.

We do not understand that questions thus asked constitute such official misconduct that entitles a defendant (to a new trial; onl the contrary there must clearly appear an evident purpose on the part of the county attorney to take an unfair advantage of defendant by asking questions containing matter which he knew to be either not true or incapable of proof. Such was evidently not the purpose of this question, and the alleged misconduct was not such as' should result in a reversal of the judgment.

Further, it’ is! contended that the trial court erred in instructing the jury that the minimum punishment for the larceny of an automobile was “by confinement in the state penitentiary for not less than five years.” The information is based on section 2120, Comp. Stats. 1921 (Sess. Laws 1919, p. 155, § 1), 'and it is contended that, as the title to. the act makes no reference to punishment, thei act is void as in contravention of section 57, art. 5, Const. This contention has been decided adversely to counsel’s position in) two recent cases: Jackson v. State, 22 Okla. Cr. 338, 211 Pac. 1066; Newcomb v. State, 23 Okla. Cr. 172, 213 Pac. 900.

Judgment affirmed.

DOYLE and BESSEY, JJ., concur.


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    J. T. DALEY v. STATE.
    No. A-4350.
    Opinion Filed May 12, 1923.
    (214 Pac. 941.)
    (Syllabus.)
    Appeal and Error — Dismissal—Appellant Shown to Be Fugitive from Justice, When it is shown that defendant is a fugitive from justice oir has left the jurisdiction of the state of Oklahoma without leave pending his appeal and cahnot be made' to answer any judgment upon 'the meritsj of his appeal which may be rendered' by this conrt, the appeal will be summarily dismissed.
    Appeal from County Court, Stephens County; G-. T. Burrows, Judge.
    J. T. Daley was convicted of the crime of manufacturing intoxicating liquor, and he appeals.
    Dismissed.
    It. C. Drake, for plaintiff in error.

      George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

J. T. Daley was convicted in the county court of Stephens county on the! 8th day of March, 1922, of the crime of manufacturing intoxicating liquor and punishment fixed at a fine of $400 and imprisonment in the county jail for a period of 30 days. The Attorney General, on February 22, 1923, filed a motion to. dismiss this appeal on the ground that the defendant has, pending the appeal, removed from the state of Oklahoma and is now a resident of the state of Montana.

In support of said motion the Attorney General filed an affidavit of J. A. Brown, assistant chief of police of the city of Duncan, Okla., who swears that subsequent to said conviction and appeal the said J.i T. Daley left .the state of Oklahoma and has permanently removed-therefrom and that the said J. T.¡ Daley is a resident of the city of Butte in the state of Montana and has been there for some time. No response has been made to the motion to dismiss the appeal.

Under repeated! decisions of this court, when it is shown that the defendant is a' fugitive from justice or ha-si left the jurisdiction of the state of Oklahoma and cannot be made to answer any judgment upon the merits of his appeal which may be rendered by this court, the appeal will be summarily dismissed. Boswell v. State, 14 Okla. Cr. 336, 170 Pac. 1175, and cases therei cited.

The plaintiff in error having failed to controvert the motion to dismiss the appeal, and it being apparent that the plaintiff in error has left thd jurisdiction of the state of Oklahoma and cannot be made to respond to any affirmative judgment which this court may render in this case, the appeal, upon the authority of the cases above cited, is dismissed for that reason.


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    CREED CLARK v. STATE.
    No. A-4155.
    Opinion Filed May 14, 1923.
    (214 Pac. 942.)
    (Syllabus.)
    Intoxicating Liquors — Evidence to Sustain Conviction for Unlawful Manufacture. In a prosecution foil manufacturing intoxicating liquor, evidence held sufficient !to support the verdict and judgment off conviction*
    Appeal from County Court, Comanche County; P. G. Fullerton, Judge.
    Creed Clark was convicted of a violation of the prohibitory law, and he appeals.
    Affirmed.
    J. F. Thomas, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

This appeal is from a judgment of conviction for manufacturing intoxicating liquor rendered in accordance with the verdict of a jury finding defendant, Creed Clark, guilty and assessing his punishment at confinement in the county jail for 90 days and a fine of $350. From the judgment an appeal was taken by filing in this court on December 30,; 1921, a petition in error with case-made.

No brief has been filed, and we have nothing before us but the petition in error and case-made.

Upon a careful examination of the record, we find that the assignments of error, with one exception, are not supported by anyf objection made or exception taken by defendant upon his trial.

Only three witnesses testified in the case. At the close of their testimony counsel for defendant demurred to the evidence for the reason that it is insufficient to sustain a conviction and moved the court to direct a verdict of not guilty. To the overruling of the same defendant reserved; an exception.

It is assigned as error that the evidence was insufficient to sustain the verdict and that the court erred in refusing to direct a verdict of acquittal.

G. H. Frampton, sheriff of Comanche county, testified:

On May 1 last, I had a search warrant and went to the home of Creed Clark, and found a still in operation and several barrels of mash.' There was about three quarts of whisky in a five-gallon jar under the still; whisky was dripping out at the time. I found these coils attached to the still in the cooling apparatus.

He| produced a bottle of the whisky found at the still and testified it was corn whisky.

Fletcher Riley, county attorney, testified:

“I know the defendant, Creed Clark. He lived on Lake avenue, Mountain View addition to the city of Lawton. I was with Sheriff Frampton and his deputy, Smith. We went to defendant’s place about 7 o’clock in the evening. We found the still in operation. It] wasi setting on a gas range, had coils at tached to it running into a barrel and a jar under it with whisky running into it. Seven or eight barrels were in the room and about half of them contained mash.”

W. X. Smith testified:

"I was deputy sheriff and was with the sheriff and county attorney when they wentj to the defendant’s home. We found a still in operation on a gas stove. ’ ’

In our opinion: the testimony on the part of the state was amply sufficient to sustain the verdict of the jury.

The judgment of the county court of Comanche county herein is therefore affirmed.

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


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    LEE SMITH v. STATE.
    No. A-4156.
    Opinion Filed May 14, 1923.
    (214 Pac. 943.)
    (Syllabus.)
    Larceny — Evidence Sustaining Conviction for Stealing Cow. In a prosecution for larceny of a cow, evidence considered, and held sufficient to support the verdict and judgment of conviction.
    Appeal from Superior Court, Creek County; Gaylord R. Wilcox, Judge.
    Lee Smith was convicted of cattle stealing, and he appeals.
    Affirmed.
    Albertson & Blakemore, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

Plaintiff in error, Lee Smith, herein referred to as defendant, was tried and convicted on an information which charged the stealing) of a cow from the owner, B. F. Wilkerson, and in accordance with the verdict of the jury was sentenced to serve a, term of two years in the penitentiary. From the judgment an appeal was perfected by filing in this court January 5, 3922, a petition in error and case-made.

The assignments of error question the sufficiency of the evidence to sustain the conviction. After a; careful examination, we think the verdict was amply sustained by the evidence, and in support of this conclusion we submit a summary of the evidence.

B. F. Wilkerson testified:

That he was running a truck farm about four miles east of Sapulpa, and was the owner of a cream-colored Jersey cow, without mark or brand except a tag in) her ear. On the morning of the date alleged he milked the cow and turned her on the outside range, then came to Sapulpa with a load of truck. That about half past 11 he saw a Jersey cow coming down the street, and when she got close enough he'asked the man driving the cow: "Where are you going with! my cow?” He said: "Is she your cow? I bought this cow and gave $65 for her down here on the Jenks road; but I will turn the¡ cow over to you if you will not give me any trouble, but if you do I will stand you a lawsuit. I will turn her over to you and go back and try to find the mará. I bought the cow from.” That Lee Smith, the. defendant, is the man who was driving the cow, and he was riding a gray horse, and had on a big white hat and boots. This happened in Creek county.

Other witnesses -testified .to seeing the defendant driving the cow along the road towards Sapulpa. The state rested, ajid the defendant demurred to the testimony, and moved the court to direct a verdict of acquittal, which was overruled, and exception reserved.

As a witness! in his own behalf, Lee Smith testified:

"My age is 23 years. On the 18th day of August, last year, I was here in Sapulpa. That morning I had been talking to a friend,' and he asked me to come out and see him. I thought I would ride down and eat dinner with him. I left Sapulpa about 8:30 and went out due east on the Jenks road. I met a man in a wagon, and he had a cow tied' on behind. He was coming from the south, and he turned east. I asked him about this cow, iand told him she was! pretty hot. He said, ‘She don’t lead very well.’ I asked him if he would sell her. He said, ‘I might.’ I asked him the price, and he said, ‘Seventy-five dollars.’ I said, ‘I can’t give you that for her, but I will give you $55.’ I paid him part of it in paper money! and ,$5 in silver. He turned the cow loose, and got into the wagon, and struck across to the bridge, and I took the cow and started on the same way. The cow turned north and I decided not to drive her to Jenkd, she was so hot; so I turned back to Sa-pulpa. I came right down Jackson street and met this man Wilkerson. He says, ‘You have my cow.’ I says to him, ‘I don’t think so, partner; I just bought this cow a while ago.’ And I said, ‘Well, if it is your cow, I suppose I got the wrong cow then. ’ And, he took hold of the rope and wanted to fight me. I said , ‘I am out of money, and I am going back to see if I can, find the man.’ Then I thought it wasn’t no use; he could turn either south or north, and I never could overtake him.”

The foregoing statement is sufficient to show that the state’s evidence, if believed, is amply sufficient to support the verdict of the jury. Where there is substantial evidence to show defendant’s guilt of the offense charged against him, this court will not review the same, for the purpose of passing upon khe weight and credibility of the witnesses. From a careful examination of the record, we are clearly of the opinion that the appeal in this case is destitute of merit.

The judgment of the superior court of Creek county is accordingly affirmed.

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


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    LOT RAVENSCRAFT v. STATE.
    No. A-3895.
    Opinion Filed May 12, 1923.
    (214 Pac. 946.)
    (Syllabus.)
    1. Appeal and Error — Conviction on Conflicting Evidence — Affirmance, The weight of the evidence and the credibility of the witnesses are for the jury. This court will not reverse 'a judgment of conviction based on conflicting evidence where there is; evidence in the record which, if believed by the jury, is sufficient to sustain the verdict and judgment.
    2. Evidence — Fact that Accused Did not Testify not to- be Considered Against Him — Instruction. The trial court, without objection or exception by the defendant, gave the following instruction:
    “You, are further instructed that the fact that the defendant did not take the witness stand in his own behalf is ,not a circumstance whjeh should be taken in consideration against him, as the burden is on the state to establish his guilt to your minds beyond a reasonable doubt.”
    is held, the giving of th)e foregoing- ins1)ruc!tion did not constitute fundamental error.

      Appeal from District Court, Harper County; A. G. Sutton, Judge.
    Lot Ravenscraft wasi convicted of larceny of live stock, and he appeals.
    Affirmed.
    W. A. Briggs, 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 a judgment of conviction rendered against plaintiff in error in the district court of Harper county on the 18th day of June, 1920, for larceny of live stock, with punishment fixed as above stated.

Plaintiff in error was jointly informed against with one A. W. Whalen, charged with the larceny of two head of cattle from R. H. Ross) and George Strong, the owners thereof, alleged to have been committed on or about the 16'th day of June, 1919: At the time of the alleged larceny Ravenscraft was engaged in' the butcher business in the town of Laverne, and the! proof against him is that, in conjunction with Whalen, he stole the cattle as alleged, butchered the same, and sold the meat in his butcher shop.

A considerable portion of the brief is devoted to argument againsft the weight of the evidence. It is not contended that the evidence is insufficient to sustain the conviction, but merely that the evidence adduced in behalf of Ravenscraft was more credible and entitled to greater weight and should have been believed by the jury to the exclusion of the state’s evidence. While the evidence ijs conflicting, it was the province of the jury to determine whom to believe and whom to disbelieve. This court is convinced there is sufficient evidence in the record on behalf'of the state to sustain the conviction.

Ravenscraft did not become a witness in his own behalf. The trial court, without objection or exception by the 'defendant, gave the following instruction: '

“You are further instructed that the fact that the defendant did not take the witness stand in his own behalf is not a circumstance which should be taken in consideration against him, as the burden is on the state to establish his guilt to your minds beyond a reasonable doubt.”

It isi strenuously contended in brief of counsel for plaintiff in error that the giving of the foregoing instruction constituted fundajmental error. This court holds to the contrary. Russell v. State, 17 Okla. Cr. 164, 194 Pac. 242. For a reason for so holding, see body of opinion in the Russell Case.

Finding no reversible error.’in the record, judgment is affirmed.

DOYLE and BESSEY, JJ., concur.


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    LOVELACE BARNETT v. STATE.
    No. A-4050.
    Opinion Filed May 12, 1923.
    (214 Pac. 948.)
    (Syllabus.)
    Criminal Law — Overruling Special Plea in Bar not Erroneous. For reasons for holding overruling of defendant’s special plea in bar of the prosecutioM based upon section 27, art. 2, Constitution, not erroneous, see body of opinion!.
    Appeal from District Court, Ottawa County; S. C. Fullerton, Judge.
    Lovelace Barnett was convicted of grand larceny, and he appeals!.
    Affirmed.
    Burns & Turner, for plaintiff in error.
    George F. Short, Atty. Gen., and Leon S. Hirsh, Special Asst. Atty. Gen., for the State.
   MATSON, P. J.

This is an appeal from a judgment of conviction against the plaintiff in error,. Lovelace, Barnett, hereinafter referred to as defendant, rendered in the district court of Ottawa county on the 12th day of February, 192.1, wherein defendant was found guilty of the crime of grand larceny, and punishment assessed as above stated.

The only error assigned as ground for reversal of the judgment is the action; of the trial court in overruling defendant’s special plea in bar of the prosecution. This special plea is based upon' section 27, art. 2, of the Constitution of the state, which provides:

“Any person having knowledge or possession of facts that tend to' establish the guilt of any other person or corporation charged with an offense against the laws of the state, shall not be excused from giving testimony or producing evidence, when legally called upon so to do, on the ground! that it may tend to incriminate him under the laws of the state; but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may so testify or produce evidence.”

Defendant alleged in his plea in barf that he had been granted immunity from prosecution by reason of an agreement entered into between him and the county attorney, wherein the county attorney agreed that if defendant would testify against two other parties, whom defendant claimed were jointly concerned with him in the commission of the crime of which he was here convicted, the county attorney would not prosecute him in such proceeding, and the defendant further claims that, pursuant to such agreement, he did testify, in the preliminary examination of the other parties and gave evidence in such examination tending to incriminate himself jointly with the other parties. This action on defendant’s part is claimed to be sufficient to entitle him to immunity) from prosecution for such offense under the foregoing constitutional provision.

The contention advanced has been decided adversely to the position, take|n by counsel for the defendant in the case of Scribner v. State, 9 Okla. Cr. 465, 132 Pac. 933, Ann. Cas. 1915B, 381, and also in the later case of McConnell v. State, 18 Okla. Cr. 688, 197 Pac. 523.

Further, it may be stated that in this ease, even if it were to be held that the county attorney without the consent of the trial court could grant a defendant immunity from prosecution (under circumstances as here claimed), sitill it nevertheless appears from this record that there was no such agreement between the county attorney and the defendant to grant the defendant immunity. The defendant’s testimony before the examining magistrate in the preliminary hearing of the codefendants shows that he testified voluntarily and without agreement as to immunity from prosecution. The testimony of the county attorney, who was called as a witness by the defendant, in support of his special plea in bar, iis to the effect that he would not do anything against the defendant that the law did not compel him to do, but there is no testimony even by the county attorney that he at any time agreed to grant defendant immunity from prosecution because of any testimony-given against his) codefendants.

We find no error committed by the trial court in overruling defendant’s special plea in bar to this action, for the reason that the facts pleaded were not sufficient in law to constitute a bar to the prosecution. The holdings of this court in the Scribner and McConnell Cases, supra, are reaffirmed.

No error being urged as ground for reversal, the judgment is affirmed.

DOYLE and BESSEY, JJ., concur.


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    HENRY A. HERMAN v. STATE.
    No. A-3937.
    Opinion Filed May 19, 1923.
    (214 Pac. 1084.)
    (Syllabus.)
    1. Appeal and Error — Necessity for Final Judgment. In a criminal cause a defendant as a matter of right may appeal from any judgment against him, but .'the appeal can only be taken after final judgment has been rendered.
    2. Same — Appeal from Ordier Overruling Motion for New Trial Dismissed. Where defendant appeals from an order overruling his motion for a new trial, the appeal will be dismissed for want of jurisdiction.
    Appeal from District Court, Caddo County; Will Linn, Judge.
    Henry A. Herman was convicted of assault and battery with intent to kill, and he appeals.
    Appeal dismissed.
    Walter & Hilpirt, for plaintiff; in error.
    The Attorney General, for the State.
   DOYLE, J.

In the information in this case, filed in the district court of Caddo county on the 23d day of August, 1920, Henry A. Herman was charged with the crime of assault and battery with intent to kill one A. B. Gentry. Being tried upon the information, he was found guilty of the crime charged upon the verdict of a jury, and his punishment fixed at imprisonment in the penitentiary for a period of 10 years, which verdict was returned in open court on the 4th day of September, 1920. On the- same day a motion for new trial was filed, also motion in arrest of judgment on the ground that there is a doubt as to the sanity of the defendant, and asking that a jury be impaneled to inquire into the fact of hisi sanity at this time.

The record shows that on the 16th day of September, 1920, the motion for newi trial was overruled. Thereupon counsel for defendant gave notice in open court of intention to appeal and asked that the same be spread of record, which notice was duly made of record, and the court allowed the defendant 90 days in which to make and serve a case-made, the state to have 10 days thereafter in which to suggest amendments, the same to be signed and settled upon 5 days’ notice in writing by either party to the other.

It also appears that thereafter on the same day caime on for hearing the motion in arrest of judgment, and a jury was. duly impaneled to inquire into the alleged insanity of defendant, and upon the hearing the jury returned their verdict finding that the said defendant was at this time insane.

Thereupon the court ordered:

“That the said Henry A. Herman be confined in the state asylum for the criminal insane at Norman,, Okla., until he is -cured of said insanity, or adjudged by any court of competent jurisdiction to be sane, then that he be delivered by the authorities having him in charge into the custody of the sheriff of Caddo county, Okla., tot be dealt with according to law in this court and be sentenced to serve a term in the penitentiary of the state of Oklahoma in accordance with the verdict herein.”

To reverse the conviction an appeal was attempted to be taken by filing in this court of March 12, 1921, a petition in error with case-made.

The errors assigned question the sufficiency of the evidence to sustain the verdict; that the court erred in overruling defendant’s demurrer to the information; that the court erred in giving certain instructions; and that the court erred in overruling the motion for a new trial.

Under the provisions of the Code of Criminal Procedure the defendant as a matter of right may appeal from any judgment again him (Comp. Stats. 1921, § 2805), but no appeal can be taken until after final judgment has been rendered against him.

In McLellan v. State, 2 Okla. Cr. 633, 103 Pac. 876, it is held that:

“Where a defendant attempts to take an appeal from a judgment overruling a motion for a new trial, the appeal will be dismissed.”

In Dansby v. State, 7 Okla. Cr. 496, 124 Pac. 328, it is held:

“An appeal in a criminal case cannot be taken until after judgment against the appellant has been rendered, and, where the record fails to show that such judgment has been rendered, an attempted appeal will be dismissed.” •

In Harjoe v. State, 14 Okla. Cr. 187, 169 Pac. 659, it is said:

“When an appeal is taken from an alleged judgment of conviction, and the transcript of the record or cas'e-made contains no copy of the judgment of conviction, such record or case-made presents no question to this court for its determination, and the appeal will be dismissed for want of jurisdiction. ’ ’

It appearing from the record that no judgment has been rendered or sentence pronounced upon the verdict rendered by the jury in this case, we are of opinion that this court is without jurisdiction to consider the appeal.

The appeal herein is therefore dismissed.

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


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    GEORGE D. ARGO v. STATE.
    No. A-4047.
    Opinion Filed May 19, 1923.
    (214 Pac. 1085.)
    (Syllabus.)
    Appeal and Error — Dismissal—Acceptance of Pardon by AppeJIant. When the pajrdoning power extends clemency, and the same -is accepted pending the determination of an appeal, the appeal will be dismissed.
    Appeal from District Court, Caddo County; Will Linn, Judge.
    George D. Argo was convicted of the- crime of wife abandonment after seduction and marriage, and he appeals.
    Appeal dismissed.
    Morgan & Osmond, for plaintiff in error.
    George F. Short, Atty. Gen., and Leon S. Hjjrsh, Sp. Asst. Atty. Gen., fon the State.
   MATSON, P. J.

Plaintiff in error, George D. Argo, was convicted iin the district court of Caddoi county at the February term, 1921, of the crime above stated and punishment' fixed as above stated. From such judgment of conviction he appeals to this court.

The Attorney General has filed a motion to dismiss the appeal on the ground that a parole has been granted by the Governor and accepted by the plaintiff in error. A copy of the parole and thel acceptance thereof by plaintiff in error is attached to the motion tol dismiss this appeal. When a parole is granted and accepted, and notice of that fact is brought to the attention of this 'court pending the appeal, the appeal will be dismissed. Noret v. State, 15 Okla. Cr. 574, 179 Pac. 617; Ernst v. State, 17 Okla. Cr. 282, 187 Pac. 930; Brown v. State, 16 Okla. Cr. 505, 184 Pac. 912.

The appeal herein is therefore dismissed, and the cause remanded to the district court of Caddo county.

DOYLE and BESSEY, JJ., concur.


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    MRS. J. P. GOEN v. STATE.
    No. A-4069.
    Opinion Filed May 19, 1923.
    (214 Pac. 1085.)
    (Syllabus.)
    Intoxicating Liquors — Evidence to Sustain Conviction for Maintaining Liquor Nuisance. Evidence examined and held sufficient to sustain conviction of defendant of the offense of maintaining a liquor nuisance.
    Appeal from County Court, Oklahoma County; W. R. Taylor, Judge.
    Mrs. J. P. Goen was convicted of maintaining a liquor nuisance, and she appeals!.
    Affirmed.
    H. F. Tripp, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from the county court of Oklahoma (county, wherein on the 3d day of May, 1921, plaintiff in error, hereinafter referred to as defendant, was convicted of the offense of maintaining a liquor nuisance and punishment fixed at a fine of $100 and imprisonment in the county jail for, a period of 30 days.

Plaintiff in error was jointly informed against with Roy M. Lokey, J. P. Karver, and E. J. Hubbard, and on a joint trial Lokey and Karver were acquitted and Hubbard and Goen convicted. The defendant, Goen, alone prosecutes this, appeal. The premises on which it was alleged .the defendant maim tained such nuisancei were located at 3233 West Twenty- Third St., Oklahoma City, Okla., and the time covered by the information was the 23d day of March, 1921, and for a long time prior thereto. The facts are about as follows: Several officers made a raid on these premises on the 23d of March, 1921, and discovered a whisky still and several gallons of corn whisky, contained in 5-gallon water bottles. Defendants Goen and Hubbard were not at the premises when' the officers first went there, but returned to the premises in a Ford car which contained three 5-gallon bottles partially filled with com whis-ky concealed in tow sacks. One of these bottles was broken before the officers got to the car, and the defendant Hubbard attempted to make his escape by running. Defendant, Goen, testified that she was in charge of the premises; that whisky had been manufactured and sold by her husband, J. P. Goen, on said premises for a considerable length of time; that her husband was then a fugitive from justice and had left her in charge of the premises since the 10th day of March, 1921; that she had nothing to do with the manufacture of the whisky and had never sold any thereon, nor had she permitted any persons to congregate thereon for the purpose of drinking intoxicating liquor; hut that she had contracted with Hubbard to come there that day in order to take the whisky her hus*-band had left there away from the premises. The officers further! testified that the still showed indications of having been recently used, that there was a quantity of mash found in a receptacle in the yard of said premises, and that the premises bore the general reputation of being a place where whis&y w'as manufactured and kept for sale, etc.

The sole contention is that the evidence is insufficient to sustain the conviction. The undisputed evidence is that the premises had been for a long time operated for the distillation and sale of corn whisky. Under the wording of our liquor nuisance statute these premises constituted a liquor nuisance. The testimony .of the defendant, casting the entire blame on her husband for the maintenance and operation of these premises as a liquor nuisance, does not impress this court as true. According to her testimony her husband had been absent for a period of two weeks before this raid was made, and no good-faith] effort was made on her part to notify the officers of the presence of the still on the premises or of the large quantity of corn whiskey which she claims her husband had left there. On the other hand; the evidence discloses that the still had been recently in operation; that there was a quantity of mash on the premises at the time the officers madei the' raid; that this defendant had, after the absence of her husband, called to her aid the defendant' Hubbard, whom she admitted was a friend of her husband, and had assisted him in this unlawful enterprise. We think it is clear from this evidence that, instead of abating the nuisance after her husband was arrested and because a fugitive from justice, this defendant continued to operate said liquor nuisance on her own responsibility. Such is the only inference that can be drawn from the evidence in this record.

We deem the evidence sufficient to sustain the verdict and judgment, and for such reason the judgment is affirmed.


text:
    CLYDE MOBBS v. STATE.
    No. A-4024.
    Opinion Filed May 19, 1923.
    (214 Pac. 1086.)
    (Syllabus.)
    Homicide — Evidence to Sustain Conviction for Assault with Intent to Kill. Poi' evidence held sufficient to sustain conviction of appellant of crime of assault with intent to kill, seel body of opinion.
    Appeal from District Court, Atoka County; J. H. Line-baugh, Judge.

      Clyde Mobbs was convicted of assault with intent to kill, and he appeals.
    Affirmed.
    C. McCasland, 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 district court of Atoka county, wherein on the 26th day of January, 1921, plaintiff in error, hereinafter referred to as defendant, was convicted of the crime of assault with intent to kill, and his punishment fixed at a term of seven years’ imprisonment in the state penitentiary.

The only error assigned is the refusal of the trial court to direct the jury to return a verdict of not guilty based on the insufficiency of the evidence. The defendant introduced no evidence. The evidence on behalf of the state is substantially as follows: Defendant was charged and convicted of assaulting one C. A. Hunter with intent to kill him. on the 22d day of September, 1920. This alleged assault occurred on a public highway in Atoka county bn the afternoon of that day when the prosecuting witness C. A. Hunter, together with his son Charlie Hunter, were returning home from the city of Atoka, where they had taken two bales of cotton for the purpose of marketing. At the time of the alleged assault, C. A. Hunter was traveling in a farm wagon, and his son was traveling in another farm wagon immediately following him. Frank Mobbs and Clyde Mobbs, who were brothers, had stationed themselves at a point along such public highway near Rock Creek, and just a short time before the shooting a man by the name of Robinson passed along the highway and say' the Mobbs boys there, and Frank Mobbs in the presence of Clyde told Robinson that they were there for the purpose of killing Hunter. They also made inquiry of Robinson as to where Hunter was and how he was traveling, and Robinson told them that Hunter was traveling in a wagon by himself and that his son Charlie was alsoi traveling in a wagon just behind.

As to what occurred when the Hunters reached the place where the Mobbs boys were in wait for them, we quote the following excerpts from the testimony of C. A. Hunter and of Charlie Hunter. • C. A. Hunter details it as follows:

“Q. I will ask you to state whether or not you saw) them on or about the 22d day of September, 1920? A. Yes, sir. Q. Where did you see them? A. I saw them right upon a bluff about a quarter the other side of Rock Creek. Q. Mr. Hunter, state whether or not anything unusual occurred at thatl time and place?' A. Yes, sir; I had been to town with a bale of cotton. Come on Tuesday evening, and Wednesday went back home; about 3 o’clock in the evening got back there. I was standing in the wagon, with the sideboards on. I was — just as we got to the top of the hill, I could see Clyde Mobbs and Frank Mobbs on their horses, standing crossways of the road, I guess about 40 or 50 steps from us, and they come- — I am not sure whether one of them was on the ground or not, but' anyway they come running back pretty fast, on their horses, and just as I started to get on the level ground, we¡ met them, Frank and Clyde Mobbs; told me to stop. Q. Explain to the court and jury what' occurred there. A. Well, they s'aid, ‘Stop there,’ and I says: ‘What do you want me to do that for?’ And he said: ‘You God1 damned son of a bitch, I say stop.’ Q. Who was that talking ? A. That was Frank Mobbs and Clyde Mobbs both jumped off their horses, and Clyde Mobbs had the Winchester in his hand, and Frank got some rocks, and said: ‘You God damned old son of a bitch — ’ Q. Tell what was said and done at that place? A. Frank Mobbs grabbed up two rocks. I was standing up in the wagon, I began to try to talk to them, and they were both talking, and Frank said: ‘You God damned old son of a bitch, I am going to kill you. If you got anything to say, say it. ’ And I kept trying to talk. And he said: ‘ Shoot the God damned old son of a bitch. ’ And my boy jumped out of the back of the wagon, and grabbed some rocks, and said if he shot me he would knock his brains out. And Clyde pointed the gun at me, and Frank said: ‘ Shoot the God damned old son of a bitch.’ And I told them I was unarmed, just like any other man pleading for his life. And he said: ‘Shoot him1, you.God damned son of a bitch.’ And Clyde said, ‘This fellow has got a rock drawn on me,’ and Frank said, ‘Give me the gun.’ And I took hold of the side bars and went off the side of the wagon. I fell on a pile of rock on the far side, and as11 went down to the ground I grabbed a rock, and when they come around the team, Frank had the gun and throwed the gun up that way, and snapped, and he kept coming towards me, and I was trying to get to him and get hold of the gun, and he throwed another cartridge in the gun, and that fellow there throws a rock and hit me on the arm, just as he come around, and got about halfway of my mule, and after the gun failed to fire, and he throwed another cartridge in his gun, and he shot me right there, and shot me through the hand there, and I grabbed him, and Charlie and this boy was fighting with rocks. Clyde and I couldn’t tell what was going on, and I held on to him until he jerked loose, and when he jerked loose, I knocked Frank down to his knees, and Charlie and this boy was fighting with rocks, and he jumped loose and shot me, and I knocked the gun off, and it shot me through the shoulder, and I hollered at my boy! that he had shot me, and he whaled away with a rock and knocked him down, and he come up with the gun; and Charlie and this fellow was on the run when he come up with the rock in his hand, just like he was going to lamm me in the face, this arm fell down in my hand, and the gun didn’t have any hammer on it, and I never used one before, and he picked the rock up and drawed it back, and I pulled the trigger, and he told me not to shoot any more; he was shot. And) when Frank hollered he was shot, Clyde tore loose from Charlie and run away.”

Charlie Hunter details it as follows:

“Q. In your own words tell the court and jury what happened. A. Me and my father had been to town with a bale of cotton apiece, and coming back, we met Clyde and Frank in the road just as we topped the hill from Rock Creek. Q. Tell how you were traveling? A. I was in a wagon behind my father, and he was in a wagon in front. Q. Go ahead. A. We seen Clyde and Frank on top of the hill, by their horses, and just as we topped the hill, they got on their horses and come on, riding, meeting us. They must have been about 100 yards from us when we first seen them. Q. All right, go ahead. A. And they just rode on down the road. And I was fixing to move a lot of plow tools, and Frank had my-, and I thought I would ask Frank where my- was; and they rode up, and Frank said, ‘You God damned old son of a bitch,’ just as they got even with my father, and, ‘You God damned old son of a bitch, I am going to kill you. ’ And 'Clyde had a gun. Q. What kind of a gun? A. Little 22 hammerless, pump target. Q. All right. A. They jumped down off their horses. When they jumped down off their horses, I got out of my wagon, and I went on the right-hand side, and they was on the right-hand side, and as I went around, I picked up two rocks, and Clyde had the gun lifted toward myi father, and Frank said: ‘Shoot the God damned son of a bitch.’ And I said: ‘Clyde, if you do, I will do my best to kill you with this rock.’ And he would look at my father, and look at Frank, and Frank said: ‘Let me have it, and 1 will kill the God damned son of a bitch myself.’ And I said: ‘You better go on and ’tend to your own business; I have not done anything to you to cause you any trouble like this.’ So when I throwed the rock, I said, ‘Frank, I will kill you with! this rock,’ and he said— Q. Where was your father at that time? A. He was in the wagon. He said: ‘ You damned little son of a bitch, I will kill you first; dead dogs don’t get shed of no tails anyway.’ And he throwed the gun on me, and Frank did, and Clyde was standing right in front of the team, and I told Frank, I said: ‘Frank, why do you want to shoot me if I have not done nothing to you for,’ and I said, ‘We have been good friends, and what do you want to kill us for?’ And he reached down and got a. big rock, and it was big at one .end, and smaller at the other, and threw this rock at me, and when he threw the rock at me, my father jumped out of the wagon, and Frank said: ‘You ’tend to that son of a bitch, and I will get the old man.’ We had it round and round thé wagon. Q. What were you doing? A. We was fighting and throwing rocks, and dodging and talking and swearing; just a free for all fight; and Frank shot my father, and Clydei run around the wagon and got around in front of the team, and about that time Pa said, ‘Charlie, I am shot.’ About that time I knocked Prank down with a rock, and when I knocked Prank down with the rock, Clyde was coming around the team with two rocks in his hand. I run around to keep Clyde from getting my father. I clinched Clyde, and he had two rocks in his hand, and Clyde commenced trying to draw loose, and get away from me, and swearing, and I thought I had better turn Clyde loose, and I thought maybe —but I didn’t know how bad my father was hurt. And Prank was getting up, and he said, ‘You God damned old son of a bitch, you have got my gun, but I will finish up with rocks,’ and he raised and had a rock in' his right hand, and Prank whirled, and pa shot him right there in the back. And Clyde run oft down the road 40 or 50 steps.”

And on cross-examination as follows:

“Q. Clyde Mobbs didn’t fire any shots there, did he? A. No, sir. Q. Hei had the gun at the time' they first— A. Yes, sir. Q. Frank Mobbs grabbed the gun out of his hand? A. He just handed the gun over to Frank; that was Frank said: ‘Give me the gun, I will kill the God damned old son of a bitch.’ Q. Clyde could have fired the gun if he wanted to?
“Mr. Banta: We object, for the reason that it calls for a conclusion of the witness.
“The Court: Let him answer. A. Well, I don’t know whether he could or not. I was standing' there with that rock in my hand, and I didn’t aim for him to. Q. If he had pulled the trigger, the gun would have fired? A. I don’t know whether he would have to work it or what he would have had to done to fire. Q. Frank Mobbs' did shoot your father? A. Yes, sir.”

. It is evident from the foregoing testimony that on the occasion of this alleged assault both Frank and Clyde Mobbs, this defendant, were waiting at a point on a public highway in Atoka county for the purpose of assaulting C. A. Hunter with intent to kill him. While perhaps Frank Mobbs displayed more determination to accomplish that purpose than did this defendant, it is nevertheless true that the defendant was with his brother Frank at the. time; that he assisted him in stopping Hunter; that he cursed and abused Hunter; that he drew the gun on him, and while it is also true that he did not shoot the gun, he did hand the gun over to his brother Frank when Frank told him to give him the gun, and when he (Frank) had announced his purpose to kill Hunter with the gun; and it further appears that this defendant engaged the son of Blunter in combat while he knew that his brother Frank at the time was endeavoring to kill the old man Hunter by shooting him with the gun which he “Clyde” had handed over to him for that purpose. We think it clear, therefore, that this was a joint attempt on the part of both Frank Mobbs and Clyde Mobbs to assassinate C. A. Hunter, and that Clyde Mobbs aided and abetted his brother Frank in such attempted assassination, and that he did not abandon such attempt until notified by his brother Frank that he (Frank) had been shot.

It appears to be the theory of counsel for defendant that because he did not fire any shots at 0. A. Hunter and failed to shoot at C. A. Hunter at the time he had the gun drawn upon him, he could not have been guilty of assaulting the said Hunter with intent to kill him, because there is no evidence that he had any such intent. On the contrary, this court is of the opinion that there is ample evidence in the record to sustain this verdict and judgment. While it is true that Clyde Mobbs did not fire any of the shots that wounded C. A. Hunter, his actions and conduct prior to the shooting clearly indicated an intention on his part to at least aid his brother Frank Mobbs to that end, and further the testimony on the part of the state shows that he committed acts sufficient to authorize his conviction as a principal offender upon the theory that he was at all times aiding and abetting his brother Frank Mobbs in the shooting and wounding of C. A. Hunter.

For reasons stated, it is the opinion of this court that the evidence is sufficient to sustain the conviction, and that the judgment should be affirmed.

The judgment of conviction is therefore affirmed.

DOYLE and BESSEY, JJ., concur.


text:
    I. B. HUDNELL v. STATE.
    No. A-4106.
    Opinion Filed May 19, 1923.
    (214 Pac. 1088.)
    (Syllabus.)
    Larceny — Evidence Sustaining Conviction fioir Grand Larceny. Evidence examined, and held sufficient to sustain conviction of defendant of the crime of grand larceny.
    Appeal from District Court, Washington County; J. B. Charlton, Judge.
    I. B. Hudnell was convicted of the crime of grand larceny and he appeals.
    Affirmed.
    George, Campbell & Ray, 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 district court of Washington county wherein on the 13th day of September, 1921, plaintiff in error, hereinafter referred to as defendant, was convicted' of the crime of grand larceny and sentenced to serve a term of two years’ imprisonment in the state penitentiary. The only error assigned is that the evidence is insufficient to sustain the conviction.

• The facts are substantially as follows: Harry Bryan was the proprietor of the Elite Rooms in Bartlesville, Okla. On the 17th of June, 1921, the defendant came to the rooming house and stayed all night, paying $1 for his room. On the next morning he went out in town and looked for work, but, failing to. find employment in the capacity of a cook, for which he claims to have been trained, he returned to the rooming house and told the wife of the proprietor that he only had funds enough to feed on a few days, and that he could not get work, and then it was agreed that he might stay at the rooming house and do little chores and other work for his room rent. On the night of June 20, 1921, Harry Bryan put a two-carat diamond ring valued at $900, and a gold watch, chain, and charm, valued at $40, in a glass receptacle in room No. 10 of the rooming house. This occurred at about 1:30 o ’clock in the morning at the time Bryan went on duty) as clerk at night. Bryan stayed on duty until about 7 o’clock the next morning, when he retired, but it was hot weather, and, instead of going back to room No. 10, Bryan went to bed in room No. 6, which was cooler at that time of the year. Mrs. Bryan went on duty in the office after Bryan had gone to bed. Defendant was sleeping at the end of one of the halls in the rooming house, on a single bed, partitioned oft with portieres. Defendant was in bed when Bryan retired that morning.

A short time before noon that day Mrs. Bryan heard a door squeak and went out into the hall, where she discovered the defendant coming out of room No. 10 and locking the door of the same with a pass-key, which was kept hidden under a water cooler in the hall. Defendant’s conduct aroused the suspicion of Mrs. Bryan, and she remarked that she could' not find her pass-key, whereupon the defendant walked over to the water cooler) and said “Here it is,” handing her the pass-key. Mrs. Bryan then asked the defendant to “Wait a minute,” but instead of waiting the defendant immediately walked out of the rooming house. Mrs. Bryan then told her husband what she had seen, and he went into room No. 10 and found his watch and diamond ring missing. Bryan searched around the city; that afternoon, but failed to find the defendant until about 7:30 that evening, when he discovered defendant in a pool hall playing pool. Defendant was then arrested and placed in jail, and in the presence of Bryan and one of the officers defendant stated that if he was turned out he could go out and dig the stuff up. Defendant was not turned loose, and later in the evening he had Bryan again call at the jail and told Bryan that, if Bryan would get him out of there, he could dig up the stuff, and when Bryan suggested that an officer go with him defendant said that he had been in “the stir” once, and that he did not intend for the law to double-cross him. None of the stolen property was ever recovered. Defendant denied that he stole the property or that he was in room No. 10 that day, and explained his conversations with Bryan and the officer by the saying that he was asked by Bryan, “Do you know anything about it?” and replied, “No-; I don’t know, but, Harry, I will do this, if I was out of here, probably I could help you find that stuff; if you have lost it, I probably could- help you find it.” Defendant denied having refused to let the officer go with him, and denied having told Bryan that he had been in “the stir.” Defendant admitted on his examination that he had been convicted of manslaughter in the second degree and had served two years in the Oklahoma state penitentiary, from Canadian county.

We deem it unnecessary to enter into a lengthy discussion of the sufficiency of the evidence.. If the state’s evidence was to be believed, and that was a question for the jury, we think the facts and circumstances detailed by such witnesses sufficient to authorize a' verdict of guilty and to sustain the judgment of conviction as rendered on such verdict.* It appears that defendant had a fair and impartial trial. .

The judgment is affirmed.

DOYLE! and BESSEY, JJ., concur.


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    JIM HEATH v. STATE.
    No. A-4168.
    Opinion Filed May 21, 1923.
    (214 Pac. 1091.)
    (Syllabus.)
    Evidence — Withdrawn Plea, of Guilty not Admissible*, A withdrawn plea of guilty, for which a plea* of noit guilty is substituted by authority of court, is not admissible in evidence against the defendant.
    Appeal from District Court, Grady County; Edward Dewes Oldfield, Judge.
    Jim Heath was convicted of burglary, and he appeals.
    Reversed, and new trial awarded.
    Barefoot & Carmichael, for plaintiff in error.
    George F..Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of conviction for burglary and sentence of 2 years’ imprisonment in the state reformatory at Granite. In the view we have taken of the’ disposition necessary to. be made of this case, it is neither important nor necessary to consider more than one of the many questions presented in the record and briefs.

The record shows that on the 21st day of March, 1921, the day after defendant was arrested, charged with the crime of burglary, he was taken before the district court of Grady county and entered his plea of guilty, and was sentenced to serve a term of 3 years in the penitentiary; that defendant was then under 21 years of age; that his father, who resided in the town of Chickasha, did not know of his son’s sentence until after the same had been pronounced by the court; that he immediately employed a firm of lawyers to represent defendant. A motion was filed, asking leave to withdraw the plea of guilty theretofore entered and to set aside the judgment thereon, and 3 days after said judgment was rendered the court set aside the judgment and permitted defendant’s plea to be withdrawn and a plea of not guilty substituted.

On the trial in the following October, the court, over the defendant’s objection, permitted the state to introduce in evidence the record showing his plea of guilty and the judgment rendered thereon. The court clerk also testified that, when the defendant entered his plea of guilty, there was nobody present, except the sheriff, the county attorney, the district judge, and himself. The Attorney General has filed a confession of error, on the ground that the trial court committed prejudicial error in permitting the prosecution to introduce the record showing the plea of guilty theretofore entered by defendant.

Our Code of Criminal Procedure provides:

“The court may, at any time before judgment, upon a plea of guilty, permit it to be withdrawn, and a plea of not guilty substituted.” Comp. Stats. § 2621.

In the case of Jenkins v. State, 6 Okla. Cr. 516, 120 Pac. 298, it is said:

“In respect to the question of discretion, courts have distinguished between the higher and lower grades of crime, and construing this section of, the statute in a felony case, and especially in a capital ease, if the defendant had entered a plea of guilty without the benefit of counsel, or w;as influenced to enter such plea, either by his counsel, or by the prosecution, or by act of the court, he should be accorded the right of trial by jury, by permitting him at any time before judgment to withdraw his plea of guilty and substitute therefor a plea of not guilty. In such cases the refusal of a trial court to permit this to be done would be! considered an abuse of judicial discretion.”

In Rupert v. State, 9 Okla. Cr. 226, 131 Pac. 713, 45 L. R. A. (N. S.) 60, it is said:

“The general power of a court to reconsider its judgment and sentence and reverse, vacate, or modify it at any time during the term in which it was rendered, or to increase or diminish the sentence which it has imposed, where the original sentence has not been executed or put into operation, is undeniable. * * * This power is inherent in all courts of record.”

.Upon this question Wharton says:

“Where a plea of guilty is withdrawn by the permission of the court, it is not binding as a confession, nor can it be •used aS evidence.” Wharton on Crim. Ev. vol. 2, § 638, p. 1326.

In Ruling Case Law, vol. 8, p. 112, § 77,; it is said:

“It is hardly necesslary to state that when a plea of guilty has been withdrawn and a plea of not guilty entered, the plea of guilty is not admissible in evidence against the accused. ’ ’

12 Cyc. p. 426, § 6, says:

“Voluntary offer by the accused before trial to plead guilty on terms to the offense charged is competent as his admission, but a withdrawn plea' of guilty in place of which a plea of not guilty has been substituted by leave of the court is not competent as an admission.”

In 16 Corpus Juris, p. 630, § 1254, it is said:

“Where defendant agreed to plead guilty, but afterwards exercises his right not to do so, such agreement is not admissible in evidence.”

2 Ene. of Pleading and Practice, p. 779, says:

“The effect of withdrawing a plea is to render it functus officio, and it cannot afterwards be given in evidence against the accused.”

In Abbott’s, Trial Brief, p. 314, it is said:

“A plea, which has been held invalid and superseded by the plea on which the accused is tried, cannot be read in evidence against him.”

In People v. Ryan, 82 Cal. 617, 23 Pac. 121, it is said:

“We do not think that the Legislature, in passing the law under which the defendant was allowed to nullify and render functus officio his plea of guilty), by substituting or putting in place of it a' plea of not guilty, intended to say that, notwithstanding such substitution and doing away with the first plea, it may be given in evidence and sometimes serve as the only conclusive proof of a man’s guilt under the plea' of not guilty. Of what use, practically, would such a privilege to a defendant be, as that granted byt section 1018 of the Penal Code, if its construction is to be such' as' that contended for by the respondent? The counsel for the people says in his brief: 'No cases are| cited by appellant (and I have found none) where the question has arisen whether a plea of guilty, withdrawn by permission of the court, can be introduced in evidence. But on principle I see no reason why it cannot be, if shown to be voluntary.’ It is perfectly true that no such case can be found, but we cannot agree that, upon principle, where a plea is withdrawn, and another legally substituted therefor, the one withdrawn can be introduced in evidence to nullify any defense under the last plea, which would be the practical result, in this case, of such a doctrine.”

Upon a plea of guilty, no trial upon the question of the defendant’s guilt can be had. Hisi plea stands in the place of the verdict of a jury finding him guilty, and for this reason we think that a withdrawn plea of guilty, for which, by authority of law and of the court, a plea of not guilty is substituted would not be adlmissible in evidence against, the defendant as a confession nor as an admission against) interest. In onr opinion the rule supported by reason and authority is that a withdrawn plea of guilty, for which a plea of not guilty is substituted by authority of court, is not admissible in evidence against the defendant.

It follows that the confession of error is well founded. The judgment of the trial court is accordingly reversed, and a new trial awarded.

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


author: PER CUEEAM.

text:
    DAN ISLEY v. FULLERTON, District Judge.
    No. A-4212.
    Opinion Filed May 23, 1923.
    (215 Pac. 1118.)
    Mandamus by Dan Isley against S. C. Fullerton, District Judge, to compel defendant toi certify his disqualification to try petitioner, informed against for a violation of the gambling laws.
    Cause dismissed.
    F. W. Church and Preston S. Davis, for petitioner.
    S. P. Freeling, Atty. Gen., C. W. King, Asst. Atty. Gen., and A. W. Turner, Co. Atty., for respondent.
   PER CUEEAM.

This is a petition of Dan Isley, charged by information in the district court of Ottawa county with a' violation of the gambling laws, for aJ writ of mandamus to compel S. C. Fullerton, District Judge, to certify his disqualification in said case, filed in this' court on February 20,. 1922, which cause by agreement of the parties was on the return day of the alternative writ dismissed.


text:
    JOHN DUNCAN v. STATE.
    No. A-4233.
    Opinion Filed May 23, 1923.
    (215 Pac. 218.)
    (Syllabus.)
    Appeal and Error — Statutory Notice of Appeal Jurisdictional — Dismissal. Under Procedure — Criminal (section 2809, Comp. St. 1921), notice of appeal and proof thereof given and made within the time prescribed for perfecting an appeal is jurisdictional, and where the record fails to show the service of such notice, the appeal will be dismissed.
    Appeal from County Court, Adair County; W. H. Martin, Judge.
    John Duncan was convicted of a violation, of the prohibitory liquor law, and he appeals.
    Appeal dismissed.
    W. A. Scofield, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, John Duncan, was, convicted on a charge of selling two half pints of whisky to one Cornelius Soap, and on the 4th day of January, 1922, judgment was rendered on the verdict, and he was sentenced to be confined for 60 days in the county jail and to pay a fine of $150 and the costs. Frotoi the.judgment an appeal was attempted to be taken by filing in this court on March 6, 1922, a petition in error with case-made.

The Attorney General has filed a motion to dismiss the appeal upon the ground that:

"No notice of appeal has ever been served upon the county attorney and court clerk of Adair county; because no summons in error has ever been issued or served and no waiver of the same has been had.”

Our Code provides that:

“An appeal is taken by the service of a notice upon the clerk of the court where the judgment was; entered, stating that the appellant appeals from the judgment. If taken by the defendant, a similar notice must be served upon the prosecuting attorney.” Comp. Stats. 1921, § 2809.

Under this provision, notices of appeal and proof thereof given and made -within the time prescribed for perfecting an appeal are jurisdictional, and where the record fails to show the service of such notices upon the court clerk where judgment is rendered, and upon the county attorney, the appeal will be dismissed. Gunter v. State, 18 Okla. Cr. 716, 195. Pac. 148, Killebrew v. State, 11 Okla. Cr. 535, 148 Pac. 1058; Means v. State, 10 Okla. Cr. 581, 139 Pac. 1155, and cases cited.

It follows that the motion to dismiss must be sustained. It is therefore adjudged and ordered that the attempted appeal herein be and the same' is hereby dismissed and the cause remanded to the trial court, with direction to cause its judgment and sentence to be carried into execution.

MATSON, P. J., and BBSSBY, J., concur.