text:
    ROY HOLLEMAN v. STATE.
    No. A-9948.
    April 23, 1942.
    (125 P. 2d 239.)

      Hubert Hargrave, of Wewoka, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Roy Holleman, was charged in the district court of Pottawatomie county with the crime of burglary in the second degree, was tried, convicted and sentenced to serve five years in the State Penitentiary, and has appealed to this court.

It is first argued that the court erred in overruling the demurrer of the defendant fr> the information.

The charging part of the information reads as follows :

then and there unlawfully, knowingly, wilfully, feloniously, intentionally and wrongfully and burglariously, in the night time of said day, break into and enter a certain Tool House, located in Section 15, Township 7 North, Range 4 East in Pottawatomie County, Oklahoma, by forcibly opening an outer door thereof and entering therein, which said Tool House was then and there owned and controlled by J. E. Crosby Company, and in which said Tool House there was had and kept at said time certain personal property, the same being the personal property of J. E. Crosby Company, and that said breaking and entering therein by the said Éoy Holle-man was with the felonious intent and purpose then and there on the part of him the said Eoy Holleman to take, steal and carry away said personal property so had and kept aforesaid, against the will and without the consent of the owner thereof, contrary to the statute in such case' made and provided, and against the peace and dignity of the state.”

It is the contention of the defendant that the information does not describe the tool house and its-location with that degree of certainty which is necessary to inform the defendant as to the particular tool house which he is charged with entering. The cases cited by counsel for defendant in support of this contention involve descriptions which are not nearly so specific and definite as the above description. In Presnell v. State, 65 Okla. Cr. 285, 85 P. 2d 441, cited by defendant, the designation in the information was as follows:

* * a certain building to-wit: a tool house belonging to the Carter Oil Co., * *

In holding that the description was indefinite this court stated:

“* * * the information does not attempt to define the location of the building by describing the township, section or range in said Payne county, on which said building was located * *

By inference, it would seem that the court in that case was indicating that if the building had been located by reference to a particular section, township and range in the county, the same would have been sufficient. Nowhere in any of the evidence is it developed that there were any other tool houses in the section named in the information.

It is also- contended that the information is defective in that it does not allege that the property was taken by the defendant with the intent to appropriate the same to his own nse and benefit, citing Sullivan v. State, 7 Okla. Cr. 307, 123 P. 569. In the Sullivan Case this court said:

“In an indictment or information charging burglary, based upon the unlawful breaking and entering of a railroad car with intent to steal therein, it is necessary for the allegation of intent to set out the acts required to constitute the crime of stealing at common law.”

“ ‘Steal,’ as the word is used in the burglary statute (section 2554, Comp. Laws 1909, 21 O. S. 1941 § 1435), is an offense of such character that it is burglary to break and enter with intent to steal, without regard to the value of the property sought to- Tie taken.”

In the body of the opinion it is stated:

“Stealing at common law required that the property should be taken with intent to deprive the owner thereof, and to- appropriate it to the use of the taker.”

The statute under which the defendant was charged provides:

“Every person who breaks and enters any building or any part of any building, room, booth, tent, railroad car, automobile, truck, trailer, vessel or other structure or erection in which any property is kept, with intent to steal therein or to commit any felony, is guilty of burglary in the second degree.” Section 1931, O. S. 1931; 21 O. S. 1941 § 1435.

This court has long adhered to- the rule that in construing an information or indictment, it is not necessary to use the exact words set forth in the statute to define a public offense, but that other words conveying the same meaning may be used. That when the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know wbat is intended, the same is sufficient. Bowes v. State, 8 Okla. Cr. 277, 127 P. 883; Price v. State, 9 Okla. Cr. 359, 131 P. 1102; Armour v. State, 72 Okla. Cr. 44, 112 P. 2d 1116; Star v. State, 9 Okla. Cr. 210, 131 P. 542; Stine v. State, 43 Okla. Cr. 76, 277 P. 598.

Section 2892, O. S. 1931, 22 O. S. 1941 § 410, provides :

“No indictment or information is insufficient, nor can the trial, judgment, or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”

The defendant has not pointed out in his brief nor argument a single particular in which he was prejudiced by the allegations of the information herein. We think the reasoning of Judge Furman in disposing of a similar contention in Price v. State, supra [9 Okla., Cr. 359, 131 P. 1104], is applicable herein. It was there stated:

“Under the old common-law doctrine of strictly construing criminal law and all proceedings in criminal cases, and that an indictment or information should be certain to a certain intent in every particular, the objection now urged to this information would undoubtedly be good. But these doctrines have long since been repudiated in the state of Oklahoma. It is true that an indictment should be reasonably certain as to' the offense charged in order that the defendant may not be surprised and-may be able to- prepare to make his defense, and also, to enable him to plead a judgment of acquittal or conviction in bar to a subsequent prosecution for the same offense. This is all that a defendant is in reason and justice entitled to. If an indictment is couched in such language as to enable a person of common understanding to know what is intended, it is all that the law requires.”

As will be hereinafter pointed out in a review of the evidence, the proof of guilt of the defendant was clearly established and no evidence was offered in his behalf. If we were to sustain the objections made by counsel for defendant to this information, we would attach more importance to theories which are merely shadows than to substance and would elevate forms and ceremonies above justice. While we would not recommend the information in this case as a model to be followed by other county attorneys in prosecutions for burglary, we are of the opinion that when measured by the rules of law herein-above set forth, the court did not err in overruling the demurrer to the information.

It is next argued that the court erred in permitting the witness Louis Bennett to testify when his name was not endorsed on the information, which was done over the objection and exception of the defendant. The record discloses that counsel for defendant objected to> the testimony of each witness as he appeared on the witness stand for the reason that the name of the witness was not endorsed on the information. There is m> dispute but what the names and addresses of every witness used by the state with the exception of Bennett were correctly endorsed on the information. On the information there is endorsed as a witness the name “Louis Barnett (Mid-West Iron Metal Go., Seminole, Okla..).” The witness Louis Bennett testified that he was employed by the Mid-West Iron & Metal Company at Seminole and that the defendant sold to' that company a part of the property which was later identified as property stolen from the J. E. Crosby Company. His testimony was mostly cumulative.

It is apparent that the witness Louis Bennett is the same person as the witness Louis Barnett who' was endorsed on the information with Ms correct address. It is clearly a typographical error upon the part of the person who prepared the information. At the time this witness appeared, counsel for defendant merely made the same formal objection which he had made to the testimony of other witnesses for the state as hereinabove mentioned. There was no statement made that the defendant was surprised, nor was a continuance asked for the purpose of meeting the testimony of this witness. There is no claim made now that defendant was surprised, or that he did not know that the witness Louis Bennett was the identical person whose name appears as Louis Barnett, an employee of Mid-West Iron & Metal Company, on the back of the information. There is no showing of injury to the defendant, but he relies upon the technical proposition of laAV that a witness should not be allowed to testify whose name is not correctly spelled on the information, even though his correct address is given.

This objection was a matter addressed to the sound discretion of the trial court, and, under the record, we cannot say that the court abused its discretion in this instance.

The next assignment of error is that the evidence is insufficient to support a verdict of guilty.

The state used five witnesses. The proof showed that a warehouse of the J. E. Crosby Company, situated in the section set forth in the information, was entered in the nighttime of January 17, 1940. The entry was effected by prying a door open and entering the building. A large quantity of babbitt, metal guide stems and other property was stolen from the warehouse. The proof further showed that the next morning the defendant sold some of the stolen property to the Mid-West Iron & Metal Company at Seminole, and signed his name to the record of purchases kept by the company as Roy Harper. The stolen property was transported to the Iron & Metal Company in the defendant’s automobile and the license number of the automobile was recorded on the report of the transaction which was made by th e company to- the sheriff’s office in accordance with the law regarding the purchase of used oil field equipment. H. B. 413, Session Laws 1935, c. 59, art. 7, § 5, 52 O. S. 1941, § 375. Officers were notified of the burglary and after the report of purchase of babbitt was made by the Mid-West Iron & Metal Company an investigation was made and the babbitt in their possession was identified as a part of that stolen from the J. E. Crosby Company. A check of the license number of the automobile which was endorsed upon the report showed that it belonged to the defendant, and the officers went to his house with the superintendent of the J. E. Crosby Company and there found hidden in the yard 18 of the guide stems stolen from the warehouse in the burglary on January 17, 1940. The defendant, in a conversation with the officers, admitted selling the property to the Mid-West Iron & Metal Company and stated he had “picked it up around the field,” and further stated he might have known he “would have gotten in trouble dealing with those Jews.”

This evidence conclusively establishes that a burglary was committed. The possession and asportation of the property taken in the burglary, by the defendant, the nest morning after the burglary was committed and his incriminating statements are sufficient, in the absence of any proof or explanation on his behalf, to sustain the conviction.

It is next contended that the court erred in the giving of instruction No. 6. This instruction was as follows:

“You are instructed that under the law of the .State of Oklahoma the possession of property recently stolen, standing alone is insufficient to' sustain a conviction for the crime of burglary. However, you are instructed that, if you find and believe from tbe evidence in this case beyond a reasonable doubt that the defendant had possession of the property recently stolen, you may consider that fact in connection with statements made by the defendant, if any, relating to* the possession or disposition of said property, and if from all the facts and circumstances in evidence you are satisfied beyond a reasonable doubt that the defendant is the one who stole the property in question, your verdict should be guilty, as charged in the information.
“On the other hand, if you fail to so find or entertain a reasonable doubt as to whether the defendant stole the property in question, as charged in the information, you should find the defendant not guilty.”

The complaint of the defendant is directed to the latter part of the instruction in which the word “stole” is used, and it is insisted that that part of the instruction authorized the jury to convict the defendant if he had committed larceny but not burglary, and is simply a larceny instruction and misleading, to the jury.

In determining, whether an instruction is erroneous, attention must be directed to all of the instructions which were given. If this instruction were standing alone and there had been no other information given to the jury defining the elements of the crime of burglary, there would have been much merit to the argument presented by counsel for defendant. However, in instructions 5 and 7, which just preceded and followed the instruction in question, the court clearly defined the elements of burglary and instructed the jury that the burden was upon the state to' prove to their satisfaction beyond a reasonable doubt that the defendant did commit the actual burglary, as defined in the instruction, before a verdict of guilty should be assessed. The court, in instruction No. 6, used the word “stole” solely for the purpose of defining the weight to be given to the possession of recently stolen personal property. It was used only in this sense. Under a different set of facts from that which was proved, this instruction might be clearly erroneous, and we certainly do not approve the same as a, model. Here, however, no dispute arises as to whether the crime which was committed was larceny or burglary. It is undisputed that the building from which the property was taken was broken into in the nighttime by prying open a door and entering therein. No effort was made on cross-examination to show that the crime might have been larceny instead of burglary. Under the undisputed proof, whoever stole the property was guilty of burglary, as a breaking’1 and entry was effected before the property could be taken.

It has been held that although an instruction may not have been technically correct, yet if the evidence is of such a character that the defendant could not have been injured thereby, the error will not authorize a reversal of the judgment. Johns v. State, 8 Okla. Cr. 585, 129 P. 451; Dooling et al. v. State, 3 Okla. Cr. 491, 106 P. 982; Tritthart v. State, 35 Okla. Cr. 41, 247 P. 1111.

In Dooling et al. v. State, supra, it is stated:

“An instruction improper and contrary to the settled doctrine of this court will not be held reversible error where it is manifest, on consideration of all the instructions given, the testimony of the accused, and the verdict of the jury, that such an instruction did not work to the prejudice of the accused, or deprive him of any substantial right.”
“The instructions must be considered in connection with, and applied to, the evidence in the case in which they are given. An instruction harmless in one case may be prejudicial in another, depending upon the facts of each case.”

The next two assignments of error will he considered together. It is argued that error was committed when the Avitness Bob Short, in testifying concerning a conversation had with the defendant, brought out the fact that defendant had been sent to the penitentiary; that such a statement was improper since the character or reputation of the defendant had not been put in issue. It is further argued that the assistant county attorney, in his closing argument to the jury, made prejudicial and improper statements which prejudiced the defendant and that his statements, when considered together with the voluntary statement of the witness that the defendant had been sent to the penitentiary, denied to1 the defendant a fair and impartial trial and is reversible error.

As to the testimony of the witness Bob Short, the record discloses the folloAving question and answer:

“Q. (By Mr. Edwards, Asst. County Attorney) What did he say to you with reference to who he was? A. He told me I should knoAV him, because he went to the penitentiary from Wewoka, and * * * .” (Objection by defendant.)

It is the contention of defendant that the only reason the question Avas asked by the assistant county attorney Avas that he had surmised the defendant did not intend to take the witness stand and was for the purpose of informing the jury that the defendant was an ex-convict.

After the question and answer had been given, objection made and sustained, the court admonished the jury not to consider the statement of the witness. Later in his instructions he again instructed them not to> give consideration to statements which were stricken from their consideration.

The witness is a former president of the Sheriff and Peace Officers Association of Oklahoma. He is an excellent officer and well known to this court. His testimony in this case as to the questions asked defendant, and his method of handling the defendant when he was arrested, show that he is thoroughly familiar with the rules of criminal procedure, and we are convinced that he knew that the statement he made was improper, since the reputation of the accused had not been put in issue nor had the defendant offered himself as a witness. This officer, in his many years of experience, had no* doubt learned that a jury will be greatly influenced by information that a defendant has served a term in the State Penitentiary. A county attorney knows that he could not ask a direct question concerning this evidence, and though it might not have been deliberately done in this case, too often we see instances where questions have been deliberately framed in order to give a witness opportunity to make a voluntary statement concerning some evidence which is not competent and which should not be introduced. In Porter v. State, 8 Okla. Cr. 64, 126 P. 699, it is stated:

“Where the character or reputation of the accused is not an element of the crime charged, the prosecution cannot put it in issue by offering evidence of his bad character, unless the defendant first offers evidence of his good character. The prosecution may then rebut it by evidence of bad character.”

In Thompson v. State, 6 Okla. Cr. 50, 117 P. 216, this court said:

“Where a witness voluntarily states a matter which should not be introduced in evidence, and the court promptly excludes the testimony given by the witness and instructs the jury not to consider it in their deliberations, such voluntary testimony of the witness, although improper, will not ordinarily be ground for the reversal of a conviction.”

Tbe argument complained of as improper was tbe statement by tbe assistant county attorney as follows: “These thieves didn’t want to carry this stuff very far * * # ??

Proper objection and exception was interposed a,t tbe time tbe statement was made. Later tbe assistant county attorney made tbe remark: “I think there is more than one in it, mid I think this defendant is guilty * *

To which statement tbe court gave tbe following admonition :

“Tbe court will give this admonition to tbe jury: Counsel is entitled to draw deductions from tbe evidence; counsel on either side is not permitted to say, ‘I think tbe man is guilty,’ or, ‘I think tbe man is not guilty;’ they may make tbe statement, ‘I think the evidence shows tbe man is guilty,’ or The evidence shows the man is not guilty;’ but to make the statement on the part of either party the defendant is guilty or is not guilty is improper, and the jury will not consider that.”

This admonition clearly states the law and we think cured whatever error might have been made in the giving of the above statement.

In considering all of the above assignments of error it must be borne in mind that they are what might be termed as technical in their nature. The recent statement of Mr. Justice Frankfurter of the United States Supreme Court is applicable to this case when he stated:

“It is a commonplace in the administration of criminal justice that the actualities of a long trial are too often given a meretricious appearance on appeal; the perspective of the living trial is lost in the search for error in a dead record.” Glasser v. United States, 62 S. Ct. 457, 473, 86 L. Ed. ...., decided January 19, 1942.

We have come to the conclusion after a review of the entire record that the voluntary statement of the witness in which he told the jury that the defendant had said that he had served a term in the penitentiary, and the statement of the prosecutor in his closing' argument in which he made improper statements, were prejudicial and such as would improperly influence the jury in determining the amount of punishment which should be given to the defendant; and that, while there is no error in the record which would require a reversal of this case, these errors are of sufficient importance to require a modification of the punishment imposed.

It is therefore ordered that the judgment and sentence of the district court of Pottawatomie county be reduced from five years to three years in the State Penitentiary, and the judgment, as thus modified, is affirmed.

BAREFOOT, P. J., and DOYLE, J., concur.


source: Caselaw Access Project

author: BAEEPOOT, P. J.

license: Public Domain

text:
    OTIS SHORT v. STATE.
    No. A-9978.
    April 23, 1942.
    (125 P. 2d 227.)

      Phil K. Oldham, Henry O. Boatright, and W. J. Crump, all of Muskogee, for defendant.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Douglas Garrett, Co-. Atty., of Muskogee, for the State. ■
   BAEEPOOT, P. J.

This charge involved the killing by defendant, Otis Short, of Robert Dyer in Muskogee county on the 1st day of January, 1940.

It is first contended that the evidence is insufficient to sustain the verdict of the jury and the judgment and sentence of the court.

We have carefully read the record and it is unnecessary to go into a detailed discussion thereof. It was highly conflicting with reference to the action of the parties at the time the fatal shots were fired and as to who was present at the scene of the difficulty. All of the eyewitnesses were close relatives of defendant and deceased. Testifying for the state were the two sons of deceased, Forrest Dyer and Robert Dyer, ages 18 and 13, respectively. For the defendant were himself, his wife, and his son, T. L. Short, 13 years of age, and a nephew, Pete Short, 21 years of age. These were all of the eyewitnesses to the shooting.

The facts briefly stated were that defendant, Otis Short, had for the past four years farmed the premises where the shooting occurred and which was eight miles south and east of Webbers Falls, in Muskogee county. The deceased had leased the premises for the year 1940 and was attempting to obtain possession of the same. There was a dispute with reference to possession which caused this homicide. Defendant and deceased had lived as neighbors for several years and had been friendly, their families visiting each other, and there had never been trouble of any kind. Mrs. Robert Dyer, wife of the deceased, and her sons testified to- this relationship. It was corroborated by defendant and his family.

Forrest Dyer, the 18-year-old son of deceased, testified that on Sunday, the 31st day of December, 1939, he and his brother, Robert Dyer, 13 years of age, hauled seven loads of stove wood from their home to the home of defendant which their father, the deceased, had rented. That on this date the defendant sent word by them to their father that he could move anything on the premises: except household goods. That on the next day, Monday, January 1, 1940, he and his father and brother hauled two loads of posts to where defendant lived. They had two teams, he and his father driving, one team and his brother Robert the other. That after they had arrived the defendant came with his team and drove into the lot which had a small open shed north of the house, and he began unhitching his team. That his. father went into the lot where defendant was, and that he, his brother Robert, and Pete Short, a nephew of defendant, were all in the lot at the time. That he heard his father and defendant have a conversation. That they first talked about a colt that defendant was driving and as to its age. ■That his father asked defendant if he could move into one of the rooms of the house that day and that defendant told him he could not, that “two families couldn’t live in the same house and get along together.”

He testified:

“Q. What did they say? A. My father said he didn’t see why, they never had any trouble. Ode told him he couldn’t move in. He said if there had been any friendship he wouldn’t have rented him out. Q. Who said that? A. Ode. Q. Where was Otis when he said to your father if there had been any friendship he wouldn’t have rented him out? A. Under the shed. Q. Which way was your father facing? A. North. Q. Was he standing with his body towards the north? A. No, sir. Q. Which way was the front of his body? A. East. Q. Was he talking to Ode at that time? A. Yes, sir. Q. Was he looking at Ode? A. Yes, sir. Q. How was his head? A. Standing north towards Ode. Q. Can you tell the jury whether or not he was turning his head like I am? A. Yes, sir. Q. When Otis says what you said about no friendship about him what did your father do ? A. He turned around. Q. Which way? A. Facing Ode. Q. Did he do* anything with his hands? A. No, sir. Q. Did he reach out for Ode with his hands? A. No, sir. Q. When he turned around what if anything did Otis do? A. He jerked the gun and shot him. Q. Where did he take the gun from? A. Bib of his overalls. Q. What kind of overalls did Otis wear at that time? A. I don’t remember. Q. Was it one with a high bib? A. Yes, high bib. Q. Which hand did he use when he pulled the gun from his overalls? A. The right hand. Q. Had your father done anything at the time he shot? A. No. sir. Q. What did your father do when he shot? A. He turned and fell. Q. See if I understand. When Otis said that then he turned facing Otis? A. Yes, sir. Q. Then Otis shot him? A. Yes, sir. Q. Did you know at that time where he shot him? A. No, sir. In the breast I think. Q. Did you know at that time? A. No, sir. Q. Then your father fell? A. Yes, sir. Q. Which way? A. He fell south. Q. Did he fall to the right? A. Yes, sir. Q. And when he landed on the ground where was his head? A. It was south. Q. Towards Otis Short or away from him? A. Away from him. Q. How many times did Otis Short shoot? A. Twice. Q. Where was your father or what was your father doing when he shot the second time? A. He was falling. Q. Did your father at any time grab him? A. No-, sir. Q. Or grab at him? A. No, sir. Mr. Oldham: If the court please, we object to leading the witness. The Court: Sustained. Q. State whether or not your father did anything after he turned facing 'Otis Short before he shot the first time? A. No, sir. Q. After your father fell on the ground his head was which direction? A. South. Q. Was that towards the house? A. Yes, sir. Q. And where were his feet? A. Towards the shed. Q. And where was Otis Short with reference to your father’s feet? A. He was north. Q. About how far? A. About seven feet. Q. What if anything, did Otis Short do after he shot your father the second time — after your father fell to the ground — • strike that. Where were you at the time that Otis Short shot your father the first time? A. I was at the east end of the shed. Q. About how far from your father? A. About seven or eight feet. Q. Were you looking at your father or not? A. No, sir. Q. Did you seo Dti.s Short pull the pistol? A. Yes, sir. Q. After your father fell to the ground what if anything did you do? A. I didn’t do anything. Q. Where did you go immediately after your father fell? Did you go anywhere? A. No, sir. Q. Did you go to your father? A. No, sir. Q. What did you nest do? A. Otis pointed the gun towards me with the hammer back and told me to get out of there he would shoot hell out of me. Q. Had you done anything? A. No, sir. Q. Had you said anything? A. No, sir. Q. What did you do? A. My brother and I started out southeast. Q. How far did you get? A. About 50 feet. Q. When Otis Short said that was anyone else there or near the house? A. Yes, sir, Pete Short was up there with us in the lot. Q. Did you see Mrs. Short? A. Yes, sir. Q. Where was Mrs. Short? A. She was standing. in the yard. Q. Which direction was she from the bam? A. South. Q. And which direction from the house? A. North. Q. How far was she from the fence? A. I don’t know just how far, just across the fence. Q. Which fence? A. The horse lot fence. Q. State whether Mrs. Short said anything? A. I don’t remember her saying anything. Q. What did you then do? A. My brother and I started out of the lot and Otis ran around the bam and got over the fence and started across the field; and I ran back to my father and tried to get him to say something. Q. How was your father lying at that time? A. With his face down. Q. What did you do? A. After he died I turned him over out of the blood. Q. Was he dead when you got to him? A. No, sir. Q. What was he doing? A. ¡Struggling on the blood.”

He then testified to seeing the defendant leave the premises going northwest. He further testified that the wife of the defendant and his son, T. L. Short, were not present in the lot at the time of the difficulty, but that the said T. L. Short was about 50 feet southeast of the house cutting wood. That after the shooting, his younger brother went after his mother and that she returned to the premises and assisted others in taking the deceased to his home, where his body was taken in charge by the undertaker. He also' testified that he examined his father’s body and he did not have a knife or any other kind of weapon on him. The cross-examination of this witness did not materially alter his testimony. Robert Dyer, the 13 year old son of deceased, corroborated the evidence of his brother, Forrest Dyer, as to all the facts surrounding the killing of his father by defendant. He also testified that he went home immediately after the killing and informed his mother and that she went to the scene through the field. That he got a shotgun and started back, but that he gave the gun to Miss Hendrix, who requested him to do1 soi at the suggestion of his mother. He also testified that he had borrowed his father’s knife on Sunday night, December 31st, for the purpose of getting the mud off of his shoes, and that he had laid the same on the mantle, and that his father did not have the knife with him on Monday, January 1, 1940, when he was killed by defendant.

His mother testified she took the knife from the mantle four days after the homicide.

T. Bolding was the undersheriff under John Baxter. He arrived about one hour after the killing and searched the body of the deceased and did not find any knife on his person. He found a whetrock and other minor immaterial articles. He also saw the wounds on the body and assisted in taking the body of the deceased to1 his home, and also saw the jacket and hat of the deceased, each of which had a bullet hole therein. Other witnesses testified for the state, but it is unnecessary to- relate their testimony, as it was immaterial to' the issues here involved.

The defendant, 'Otis 'Short, testifying in his own behalf, corroborated the evidence of the witnesses for the state up to the time of the actual killing. He stated that he had sent word to the deceased by his sons on Sunday, December 31, 1939, that he could move anything on to the premises except household goods, and that he would move out on the following Wednesday whether he had secured another place or not. That on Monday morning he took two loads of canned fruit to' the home of his brother, Russell Short, and had taken other things there prior to that time and was getting ready to' move and give deceased possession of the premises on Wednesday. That he returned to his home near noon and that his. nephew, Pete Short, accompanied him. That he drove into the lot and began unhitching his team. That deceased and his two sons came into the lot from the front of the house where they had left their teams. That he and deceased had a conversation, first with reference to a young colt that he was driving, and then with reference to> the possession of the premises. That deceased asked him for possession that day of one or two rooms. That he told him he could not because “there was not room for both of us and there was not enough water in the well for both of us.” That deceased told him that the parties who* rented the place were going to' move in on him. They were coming from Enid and he hated to disappoint them. That some conversation was had between them, and deceased said, “To hell with the law,” and reached for him with his left hand and put his right hand toward his pocket or still had it in his pocket.

He testified:

“Q. Did he say anything else? A. He mumbled something. He was so close to me I had to> watch his hand and step backwards to' keep him from getting hold of me. Q. About how far apart were you? A. I will say two and a half feet. Q. Just tell what he did. A. Well, he made looked like one step and come towards me and his left hand reaching towards my shirt collar. I stepped back, I don’t know whether one or more. As I stepped back I reached for my gun and pulled my gun and shot twice as quick as I could. Q. Why did you shoot him? A. Well, I knowed in reason he had a knife. Mr. Garrett: If the court please, we want to object to' that as not responsive. The Court: Sustained. Mr. Oldham:' Note our exception. Q. Were you scared of him? A. Yes, sir. Q. I will ask you again, why did you shoot him? A. Because he was coming towards me and reaching for me. Q. Did you have any fear for your life? A. Absolutely. Mr. Davis: Your honor, that is not proper. That is leading and suggestive. Mr. Garrett: And repetition. Mr. Oldham: I don’t know any other way to< ask him, Judge. The Court: All right. Overruled. Q. Otis, state whether or not you took any aim or what you did? A. No, sir, I did not. I just pulled my pistol out, I cocked it the first time as I brought it out and pulled the trigger, and pulled the hammer back and shot again. Where it was I couldn’t say. I just pulled it out.”

He left the premises immediately after the shooting and went to the home of a friend who took him to Muskogee and he surrendered and was placed in jail. Defendant testified to many other minor details which it is unnecessary to relate. He was corroborated by his wife, his son, T. L. Short, and his nephew, Pete Short, all of whom testified they were in the lot at the time of the killing. There were minor discrepancies, but their evidence was. substantially the same as defendant’s.

Many witnesses were presented by defendant who testified to' his good reputation and character and to the bad reputation of deceased as being a quarrelsome and troublesome person. The state also offered in rebuttal witnesses who testified to. the bad reputation of defendant and the good reputation of deceased. There were a number of witnesses who testified to minor details and conversations with the defendant both prior to' and subsequent to the hilling, also those who testified to previous difficulties ■ of deceased with other persons over a long period of years. There is a direct conflict between two> of the witnesses as to* whether the second shot entered behind the left ear of deceased and came out by the side of the nose or whether it entered by the side of the nose and came out behind the left ear.

From the above statement it will be readily seen that there was a direct conflict in the evidence of the state and the defendant. Under the many decisions of this court this was a question for the determination of the jury. It is only where the evidence is insufficient to support the verdict that the judgment and sentence will be set aside by this court on appeal. The citation of authorities to support this proposition is unnecessary. We are therefore of the opinion that the court did not err in refusing to sustain the demurrer to the evidence or not directing, a verdict of not guilty.

The next assignment of error presented has reference to the admitting of incompetent, irrelevant and immaterial testimony and the refusal of the court to admit competent, relevant and material evidence offered by defendant.

In order to properly consider this assignment it is necessary to' read all of the record in this case. We have done so- very carefully and do not find any error that would justify a reversal thereof.

At the beginning of the tidal counsel representing defendant ashed for and was granted the rule. He then offered two witnesses who had disregarded the same and remained in the courtroom. These witnesses were not eyewitnesses to the difficulty. Their evidence was with reference to a difficulty between one of the witnesses and deceased which occurred some six years prior to the act here charged. - There was no evidence to show that defendant had any personal knowledge of this difficulty. The court was very liberal in allowing a great number of witnesses to testify before the jury as to the bad reputation of deceased as a troublesome and quarrelsome character, also permitting a number of witnesses to' testify that they had personal encounters with deceased. This court has announced the rule with reference to admission of evidence of specific acts of violence on the part of deceased in the case of Elliott v. State, 18 Okla. Cr. 230, 194 P. 267, where it is said:

“Before evidence of specific act of violence on the part of the deceased toward third persons, in a homicide case where self-defense is pleaded, is competent, a predicate must be laid by offering to' show by the defendant that he had knowledge of such specific acts prior to the commission of the homicide. Where no- such showing is made, and the entire defense of self-defense is based upon the acts and conduct of the deceased at the time the homicide was committed, the alleged error of the trial court in excluding evidence of specific acts of violence toward other persons is not prejudicially erroneous.”

The permitting of witness Ira Lipe to testify was a matter within the sound discretion of the trial court.

It is contended that the court erred in refusing to permit the defendant to testify that deceased had told him that 20 years previous to the present difficulty he had held another person at arm’s length and cut him with a knife by reason of the length of his arms. To our mind this evidence was admissible and the court should have permitted the defendant to so testify, but in view of the record as a whole, we do not think the defendant was prejudiced by the refusal of the court to’ permit the defendant to testify to’ that fact. The court was very liberal in permitting the defendant to’ testify as to his fear of the deceased and as to the threats which he had heard. We do not think the jury was prejudiced against the defendant in any way. The objection to the introduction of the jacket worn by the deceased at the time of the shooting cannot be sustained. It was shown that this jacket had a bullet hole in it, and we cannot see how its admission could have prejudiced the rights of the defendant in view of all the evidence.

It is also- urged that the court erred in giving instruction No. 15, which was as follows:

“You are instructed that the state, or any private person interested in the prosecution of one charged with a criminal offense, may employ any authorized practicing attorney to appear in any such cause as a special prosecuting attorney, and the said attorney so employed has the same authority in the trial of said cause as the county attorney or his assistants may have.”

There is no law justifying the giving of this instruction and we do not know why the court gave the same. There is no law giving the state the right to employ private counsel, and private counsel employed in a criminal case have no' special authority such as has the county attorney whose duty it is to represent the state in criminal prosecutions. He is present only through the grace of the county attorney, and no instructions should be given with reference to his appearance. However, there is nothing in the instant case that could in any way prejudice the defendant, and any error in the giving of the same was harmless. Watson v. State, 7 Okla. Cr. 590, 124 P. 1101; Schulte v. Board of Com’rs, 122 Okla. 205, 253 P. 494; Smith v. State, 37 Okla. Cr. 85, 256 P. 944; Sanders v. State, 50 Okla. Cr. 274, 296 P. 764.

It is next contended that the court erred in giving that part of instruction No. 7 which is as follows:

“The foregoing, are, in short, the general rules gov-wrung tbe law of self-defense, but tbe plea of self-defense is not available to a person wbo arms bimself for tbe purpose of seeking and engaging in a difficulty, nor to be an aggressor, nor to one who uses unreasonable and unnecessary force to repel an assault.”

If be had been found guilty of murder, there might be substantial merit in this contention, but defendant wa^ only found guilty of manslaughter in the first degree and not guilty of murder. Under the statute covering manslaughter, 21 O. S. 1941 § 711, St. 1931, § 2223, one who seeks or provokes a difficulty without any intention of killing or doing serious bodily injury to the deceased, but only intending an ordinary battery is guilty of manslaughter. In view of this statute, the defendant could not have been prejudiced by the giving of. the above instruction.

It is next urged that the court erred in giving instruction No. 10. This instruction is with reference to manslaughter. In it the court charged in the language of the statute, “did shoot, wound and kill the said Robert Dyer while engaged in the commission of a misdemeanor.” It is admitted that the instruction is right as an abstract proposition of law, but that it is misleading for the reason “there was no proof that the deceased' lost his life by reason of the fact that the defendant was engaged in the commission of a misdemeanor at the time of the homicide.” The two cases cited by defendant as upholding this doctrine are Porter v. State, 50 Okla. Cr. 136, 297 P. 305; Logan v. State, 42 Okla. Cr. 294, 275 P. 657. In both of these cases which were affirmed it was said:

“Where a defendant is convicted for manslaughter by causing the death of another in the commission of a misdemeanor by operating an automobile at an unlawful rate of speed, and upon the undisputed facts it clearly and conclusively appears that the unlawful act complained of was the proximate cause of death, a failure to charge that the unlawful act must be the proximate cause of death, in the absence of a request, is not reversible error.”

It has been the universal holding of this court from an early day that if counsel for an accused desires additional instructions they must reduce such instructions to writing and request that they be given, and a conviction will not be reversed where there is a failure to make such request, unless the court is of the opinion in the light of the entire record and instructions that, because of failure to instruct upon some material question of law, accused has been deprived of a substantial right. Lumpkin v. State, 5 Okla. Cr. 488, 115 P. 478. As above stated, the charge of the court was in the language of the statute. No requested instruction was offered by defendant.

This instruction should be considered in the light of all the instructions in this case, and in instruction NO'. 7, the court among other things instructed the jury as follows:

“e. The person unlawfully attacked has the right to use whatever force reasonably appears to him under the circumstances to be necessary to repel the attack or threatened attack and avoid injury to himself even, to the extent of taking human life — and if, when viewed from his standpoint at the time, it reasonably appears that the killing was necessary to prevent death or great personal injury to himself, then the killing will be justifiable.”

The court presented fairly and impartially the question of justifiable homicide by reason of self-defense in a proper manner, and we find nothing therein that would justify a reversal of this case under the law and the evidence. Fisk v. State, 62 Okla. Cr. 305, 71 P. 2d 499; Welborn v. State, 70 Okla. Cr. 97, 105 P. 2d 187.

For the reasons above stated, the judgment and sentence of the district court of Muskogee county is affirmed.

JONES and DOYLE, JJ., concur.


author: JONES, J.

text:
    JACK GREER v. STATE.
    No. A-9981.
    April 23, 1942.
    (125 P. 2d 225.)
    Burton & Harper, of Lawton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Jack Greer, was charged in the county court of Comanche county with the crime of unlawful possession of intoxicating liquor, was tried, convicted, and sentenced to serve 180 days in the county jail and pay a fine of $500, and has appealed.

It is contended, first, that the evidence is insufficient to sustain a conviction; second, that the punishment assessed is excessive and rendered by the jury because of passion and prejudice created by improper- argument of the county attorney.

The proof of the state shows that certain officers of Comanche county, armed with a search warrant, went to the building described in the search warrant for the purpose of searching it. That, as some of the officers started around the building to- the rear to enter it, they ran into a negro porter with some bottles of whisky in his hands, which were seized by the officers. The officers entered the building and found a bar where drinks could be served, several whisky glasses and mixers. A pitcher was setting in a sink and bore the odor of whisky. There were several juices found in the refrigerator which the officers testified were such as are commonly used in the mixing of drinks which contain intoxicating liquor. No whisky was found in the building. Just outside of the building, in the grass near the fence, four pints of whisky were found. Several yards away 24 pints of whisky were found. This latter whisky was across the fence in another enclosure, but there were no other buildings in the block except the building, which was being operated by the defendant. Defendant was present, in, active charge of operating the business, and admitted to the officers that he had leased it from the owner. There was a sign tacked upon the north wall of the building, which read:

“Notice. Effective July 1st. Federal liquor taxes have been increased to help meet a national emergency. * * * 30 Our prices have been raised accordingly. We are not profiteering.”

It is the contention of the defendant that there is not sufficient proof to show the defendant was actually in possession of the liquor which was found on that occasion. It is our opinion, however, after a review of this evidence, that the circumstances are sufficient to sustain the conviction.

All of the argument of the county attorney is included in the record. Counsel for defendant objected to the argument presented by the county attorney and moved for a mistrial because of prejudicial statements he had made.

It would unduly lengthen this opinion to attempt to set forth the entire argument of the county attorney, but it consisted of an appeal to the jury to give the defendant the maximum penalty, because it was the first case on the docket and was the first whisky case to> be tried since the Fort Sill encampment was located at Lawton, and that he, the county attorney, wanted the jury to make an example of the defendant so that there would be no selling of whisky to the young soldiers who were coming to Lawton.

It is evident that the punishment, which is the maximum that may be assessed in a liquor case, was reached by reason of the appeal made by the county attorney. All of the statements of the county attorney concerning the young soldiers in the encampment, and that a person had been killed on the highway by a young soldier who was full of whisky, were wholly outside of the record and should not have been made.

It is proper for the county attorney to prosecute criminal cases vigorously, but he should not press upon the jury any deductions from the evidence that are not reasonably legitimate. The argument herein was largely an appeal to the prejudice and passion of the jury.

It is our conclusion that because of the inflammatory and prejudicial argument of the county attorney, the verdict of the jury and the judgment pronounced thereon is excessive and should be modified.

We hold no sympathy for the defendant. The sign hereinabove referred to which was tacked on the wall of his place of business shows a positive disregard for the laws of our state. However, the law demands no victims, and where it is evident that the punishment assessed was largely arrived at because of passion or prejudice engendered in the case, it becomes our duty to fix such punishment as is commensurate with the facts disclosed by the record.

It is ordered that the judgment of the county court of Comanche county be reduced from a sentence of 180 days in the county jail and a fine of $500 to a sentence of 60 days in the county jail and a fine of $200, and the judgment and sentence, as thus modified, is affirmed.

BAREFOOT, P. J., and DOYLE, J., concur.


author: DOYLE, J.

text:
    HERMAN WOODRUFF v. STATE.
    No. A-10015.
    April 23, 1942.
    (125 P. 2d 211.)

      W. H. Cooper, of Anadarko, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of conviction, rendered on the verdict of a jury finding Herman Woodruff, “the defendant, guilty of attempt to< rape as charged, and fixed his punishment at confinement in the penitentiary for one year,” alleged in the information to have been committed in Caddo county, on the 17th day of May, 1940, on Dorothy Hamilton, a female person of the age of IB years, and not the wife of the said defendant.

The record shows that upon the defendant’s application for a transcript of the proceedings and the testimony taken upon the trial, the court ordered and directed that the same be furnished to the defendant without cost to him, and the petition in error with case-made was filed in this court February 19, 1941, as that of a poor person without cash deposit or security for costs.

It appears from the record that after the jury had been sworn to try the case, counsel for the defendant asked leave to file a general demurrer to the information, for the reason that the information does not state facts sufficient to constitute a public offense. The court ruled: “You are too late, you waived it when you impaneled the jury.”

At the close of the state’s testimony the defendant interposed a demurrer to the same and moved the court for a directed verdict of acquittal. Both the demurrer and the motion were overruled and exceptions allowed.

The same questions were again raised in his motion for a new trial.

The errors assigned are substantially as follows: That the verdict of the jury was contrary to both the law and the evidence; that the court erred in its rulings in the admission of incompetent evidence, and in giving certain instructions duly excepted to; but no briefs have been filed and no appearance made when the case was called for oral argument and final submission on September 25, 1941; thereupon the case was submitted on the record.

This court has repeatedly laid down the -rule that where no briefs are filed and no counsel appears the court will not diligently search the record to' discover errors, but will look to the jurisdictioin of the court and the sufficiency of the evidence to support the conviction.

Dorothy Hamilton testified that she was 13 years of age on the 10th day of March, 1940; that she was well acquainted with Herman Woodruff, and had known him for several years, that he had lived as a near neighbor, and that she would often see him on the street; that Mr. Woodruff sometimes gave her money, a nickel or a dime to buy candy or to go to the show; that she went twice to the room where Mr. Woodruff lived, near the Upchurch Hotel, in Anadarko; that school was out in Anadarko May 17, 1940, and she went to Herman Woodruffs room on that day.

She was then asked:

“Q. Now, Dorothy, just tell the jury what happened, what took place there in Herman Woodruff’s room after you went up there on May 17th, this year? A. (No answer). Q. Was Mr. Woodruff in the room? A. Yes, sir. Q. Did you knock on the door? A. Yes, sir. Q. Did he ask you to come in? A. Yes, sir. Q. Did you just open the door and walk right in? A. It wasn’t closed. Q. Was there a screen on his door? A. No, sir.”

She was then asked about 20 leading and suggestive questions which she refused to answer.

“Q. You went up to Mr. Woodruff’s room on Friday, May 17th. Now did you go back up there on the following Monday? A. Yes, sir. Q. Now, did anybody come in up there while you were there? A. Yes, sir. Q. Who was it? A. Grover King, a policeman. Q. Did Grover King take you to the county attorney’s office? A. Yes, sir. Q. Did you tell the county attorney what had been taking place up in Herman Woodruff’s room? A. Yes, sir. Q. You told him the truth about it, didn’t you? A. (No answer). Q. Did you? A. (No answer). Q. Will you answer the question? A. No, sir. Q. Will you tell the court why you won’t answer the question? A. No-. Q. You answered the questions that were asked you at the preliminary hearing, didn’t you? A. Yes, sir. Q. Did you answer those questions truthfully? A. I did, as good as I could. Q. You testified at the preliminary hearing] as to just what took place up there in Herman Woodruff’s room, didn’t you, on May 17, 1940; isn’t that right? A. Yes, sir. Q. And your testimony at that time was just what actually happened on the 17th of May, 1940? Mr. Cooper: I object to that line of questioning. The Court: Overruled; on account of the witness being young and rather reluctant, I will permit it? Mr. Cooper: Exception. Q. Now, Dorothy, at the time you were testifying here in the preliminary hearing, didn’t you testify that you went up there to Mr. Woodruff’s room, and that you and he had some talk there, a conversation, and that he asked you to do it? A. (No answer). Q. Now didn’t you say that in the preliminary hearing? Mr. Cooper: I object to that. The Court: Overruled. Exception allowed. A. (No answer).”

The same question was again asked five times, with no answers:

“Q. Didn’t you make the statement on the witness stand at the preliminary hearing? A. Yes, sir. Q. And that is the truth, is it? A. (No answer). Q. Herman Woodruff did that, did he? A. (No answer). Q. Just answer the question? A. (No answer) . Q. Now, after he asked you to do- it, you testified in the preliminary hearing that you took off your underclothes and that he unbuttoned his pants, didn’t you? A. (No answer). Q. Didn’t you testify to that? A. (No answer). Objection as improper examination of the witness? The Court: Overruled: the record may show hesitation and long waiting on the part of the witness. Mr. Cooper: Exception. Q. Isn’t that right, Dorothy? A. (No answer). Q. You testified to that, didn’t you? A. (No answer).

The same question was repeated seven times, no answer each time.

“Q. Will you tell me, Dorothy, why you won’t answer my questions? A. (No answer). Q. You ¿nswered my questions at the preliminary hearing, didn’t you? A. Yes, sir. Q. And you testified at the preliminary that after Herman asked you to do it, you took off your under pants and that he unbuttoned his pants, didn’t you. A. (No answer). Q. Didn’t you go testify at the preliminary hearing? A. (No angwer).”

Same objections overruled, exceptions allowed.

“Q. Didn’t you so testify at tbe preliminary hearing? A. (No answer). Q. Did you? A. (No answer). The Court: I think she said ‘yes’, didn’t she? Q. Did you say ‘yes’? A. (Witness shakes her head ‘no’).”

The same question was repeated several times, no answers.

“Q. Have you talked with the defendant since the preliminary hearing? A. No, sir. Q. Are you trying to shield the defendant? A. No, sir. Q. Then why don’t you answer my questions? A. (N0 answer). Q. What happened up there in Herman Woodruff’s room on May 17th, 1940? A. (No answer).”

The same question was asked six or seven times, and no answer.

“Q. Did you testify at the preliminary hearing that Eed Woodruff took you up on his lap astraddle of him and placed his male organ against yours? A. (No answer). Q. Did you testify on the preliminary hearing that he gave you a quarter after he quit trying to have intercourse with you? A. (No answer). Q. Will you answer my question, Dorothy? A. (No answer). Q. What did I tell. you this morning, Avhen I was talking to you out there in the hall? Will you tell the jury that? A. You told me to the answer the questions. Q. I told you to tell the truth then, didn’t I? A. Yes, sir. Q. Why don’t you do it? A. Because I told you once.”

The former question repeated. No answer.

“Mr. Barney: If the court please, could we have a few minutes recess? A. The Court: Yes, sir, don’t talk to her in the presence of the jury.”

Thereupon the county attorney, his assistant, the prosecuting witness and her mother retired to' the Judge’s private chambers. During the recess Mr. Barney stated to the court: “She says she will testify if the audience is removed from the courtroom.”

The court thereupon directed “that every one in the courtroom, who' is not interested, leave the courtroom a few minutes until we see if she will answer the questions.” The audience retired. The jury returned to the jury box and the following proceedings were had:

“Mr. Cooper: I want to make a record that the prose-cutrix during the course of the direct examination was permitted to be taken, by her mother and counsel for the state, into a private room to be coached on the matter of her examination. The Court: Let the record show that the objection is overruled, for the reason that the child being a mere child, would sit on the witness stand for as much as five minutes at a time without answering any question, apparently embarrassed or frightened, and was permitted for the purpose of her mother or the county attorney talking with her to< try to overcome the embarrassment. Mr. Cooper: To which ruling and remarks of the court the defendant excepts.”

As taken from the transcript, her further testimony is as follows:

“Q. Dorothy, up there in Mr. Woodruff’s room, in the Upchurch Hotel, on May 17th, did he ask you to take off your pants? A. Yes, sir. Q. Did you take them off? A. Not right then, I didn’t. Q. Did you later, that same day, at that same time, take off your pants? A. Yes, sir. Q. Did Mr. Woodruff unbotton his pants? A. Yes, sir. Q. And did Mr. Woodruff have you sit on his lap? A. Yes, sir. Q. Now did Mr. Woodruff have you sit still on his lap? A. Yes, sir. Q. Was that after he had unbuttoned his pants? A. Yes, sir. Q. Was Mr. Woodruff sitting on the bed at that time? A. Yes, sir. Q. Did Mr. Woodruff take his male sex organ and place it against you? A. Yes, sir. Q. Did he place it against your female sex organ? A. Yes, sir. Q. And then did he pull you toward him? A. (No answer). Q. Did he take hold of you with his hands then? A. No, sir. Q. Did he put his arms around you? A. No, sir. Q. Did he put his hands on your hips? A. No, sir. Q. Did he press against you? A. No, sir. Q. How long did you sit astraddle of Mr. Woodruff’s lap? A. I don’t know. Q. Did lie have Ms male sex organ against your female organ all the time you were sitting in his lap? A. (No answer). Q. Now I believe you testified on preliminary hearing that he took hold of you and pulled you back and forth up against him didn’t you? A. No, sir.- Q. Well, did Mr. Woodruff, after you had taken off your panties and got up astraddle of Mr. Woodruff — what did he do? A. I don’t know what he done. Q. Could you feel something being pressed against you? A. No, sir. Q. Did he take his male sex organ out of his pants? Mr. Cooper : That is objected to- for the reason that the same is a repetition. The Court: Yes, she was asked that question a while ago. Q. Did he move back and forth any? A. I don’t know. Q. What? A. I don’t know. Q. Now, Dorothy, after you got off of Mr. Woodruff’s lap, did he give you any money? A. Yes, sir. Q. How much did he give you? A. I do not remember how much he gave me. Q. I will ask you if he gave you a quarter? A. Yes, sir.”

Objection that the question was leading. Overruled. Exception.

“Q. Now after you got off of his lap, did you put your panties back on? A. Yes, sir. Q. And did he button up his pants? A. Yes, sir. Q. And then what did you do-? A. I left. Q. Now when was the next time you went back to Mr. Woodruff’s room? A. Monday. Q. Now was it the next Monday after that Friday? A. Yes, sir. Q. And on Monday, Mr. Wo-o-druff asked you again if you wanted to do it, didn’t he? A. Yes, sir. Q. What did you tell him? A. I told him Mo.’ Q. Did he have you take off your pants that day? A. No, sir. Q. How long had you been there before Grover- King came up? A. Just a few minutes. Q. Had he ever tried to get you to .do- it before that Friday? A. Yes, sir. Q. Ho-w many times? A. Once. Q. And where Avas that? A. At the same place. Q. And when was that? A. I don’t know when it was. Q. Now when Grover King took you to the county attorney’s office, at first you would not tell what happened, would you? A. No-, sir. Q. But you later told them what happened? A. Yes, sir. Q. Now did Mr. Wood-ruff ever get his male sex organ inside of you? A. No, sir. Q. Did he have it up against your sex organ? A. Yes, sir. Q. He did get it up against your sex organ? A. Yes, sir. Q. And he was pressing on it? A. Yes, sir. Q. And he was moving back and forth? A. No, sir. Q. Just pressing against yours. Now did he tell you, when he asked you if you wanted to do it, did he tell you to take off your pants on Friday May 17th? A. No-, sir. Q. And it was because he told you that you did take them off? A. No, sir. Q. Well, why did you take them off? A. Because he said he was going to give me some money. Q. And you took them off because he was going to- give you some money for doing it? A. Yes, sir. Q. Now, Doro-thy, you are not married, are you? A. No, sir. Q. You are not married to Herman Woodruff? A. No, sir.”

On cross-examination she stated that Mr. Woodruff had given her money for two or three years, or it might be a little longer, and she guessed he gave her brothers, Jack and Gene, some money.

Her further cross-examination is as follows:

“Q. Now, then, when Grover King came in there, what did he say to you, Dorothy? A. He didn’t say anything to me. Just then. Q. I will ask you, Dorothy, if he didn’t say to you, there, that he was going to send you to the reform school? A. Yes, sir, that is how they got it out of me. Q. Grover King is the man that said that, is he? A. It was either him or George Nixon. Q. Was George Nixon down there too? A. No, but he took me to his office. Q. He told you if you didn’t tell him, he was going to send you to the reform school, is that right? A. Yes, sir. Q. Now, you know what the reform school is, don’t you? A. Yes, sir. Q. And you know it was kind of a. prison for girls didn’t you? A. Yes, sir. Q. And did that scare you? A. A little. Q. And you told them that simply because they threatened to send you to the reform school? A. Yes, sir. Q. Otherwise you would not have said anything about it? A. No, sir. Q. Was this in the county attorney’s office or down at George Nixon’s office, where they told you they were going to send you to the reform, school? A. At the county attorney’s office. Q. And the county attorney is the one that told you that he was going to do that if you didn’t tell it? A. I believe it was; I am not for sure. Q. Now, who all were there in the county attorney’s office at the time this took place, Dorothy? A. Well, Mr. Barney, George Nixon, and Mr. Pugh were in there, Grover King wasn’t in there all the time. Q. Dorothy, is that the reason why you told them that story? A. What? Q. Because you were afraid they would send you to the reform school? A. Yes, sir. Q. Now, what other questions in the county attorney’s office did Mr. Pugh ask you? A. I don’t remember what he said, he said a lots of things. Q. Well, do you remember some of the things? A. He said he was going to send me to the reform school, that is all I remember. Q. Now, you testified at the preliminary hearing, didn’t you, Dorothy. A. Yes, sir. Q. And at that hearing I will ask you if you didn’t testify in response to any question that Mr. Woodruff actually penetrated you, I mean, got his private parts up in your private parts; did you testify to that? A. Yes, sir. Q. Now, then, you testified, just a minute ago, in response to Mr. Barney’s question, that he didn’t get it in; didn’t you; did you testify to that? A. Yes, sir. Q. Well, now, Dorothy, which one of those statements do' you want the jury to believe? You see this is all for their benefit; it is not for mine. Do you want them to believe now when you testified on direct examination that he didn’t get it in, that he just got it up against you, or do you want them to believe that he actually put it into you? Which one of those statements do you want the jury to believe? A. The one that he didn’t. Q. Now in the preliminary hearing, how did you testify in response to my question that you sat on the foot of the bed and talked to Mr. Woodruff, on the 17th day of May, and that he was sitting up to the head of the bed. How about it. A. (No answer). Q. Now answer the question. We are just talking here, you and I, just talking. Just tell me whether you testified to that or not? A. Yes, sir. Q. And did you tell me that during all the time you were there, that you sat at the foot of the bed and he sat up at the head of the bed. A. Yes, sir. Q. And that is actually what happened, isn’t it, Dorothy? A. Yes, sir. Q. And on this 17th day of May — ■ now you never did go over to' where he was, did you? A. Yes, sir. Q. And that was on Friday, wasn’t it? A. I guess so. Q. Well, how do you know it was on Friday, May 17th? A. I said I guessed it was; I don’t know whether it was or not. That is what it came out in the paper that it was? Q. And you fixed it from that; is that the way you fixed it? A. Yes, sir. Q. Well, you say this was on Friday, the day school closed in the spring? A. I guess so.”

The only other witness called by the state, Grover King, testified that he was a city policeman and about May 20, 1940, he went to Herman Woodruff’s room, in the Upchurch Hotel; Dorothy Hamilton, fully dressed, was sitting on the bed. He took her to the city hall, and from there Mr. Nixon brought her to the county attorney’s office.

On cross-examination he stated that when he went in he asked Dorothy what she was doing down there; she replied she came down to borrow some lard, then he asked Woodruff what he was doing with this little girl down there, and he said she came there to borrow lard.

The defendant in his own behalf stated that his age was 75 years, and he had lived in Anadarko since 1900, and lived in the second room from the north in the one-story concrete building, having four side-by-side rooms, located on Hotel Upchurch lots; that he had known Dorothy Hamilton, her mother, Mrs. Thelma Hamilton, and her brothers, Gene and Jack, right at ten years; that her husband had abandoned Mrs. Hamilton and their children and she worked for the past ten years in Beard’s laundry. Friday, May 17, 1940, was community sales day in Ana-darko; that morning he left his room about 7:30, and Raymond Jordan carried his grip for him to the First State Bank corner, where he sells pencils, razor blades, needles, aspirin and other things; that he was there until 9 o’clock that night, when Raymond Jordan carried his grip back to- his room for him. That he was not back at his room that day. That occasionally the Hamilton children, Dorothy, Gene, and Jack, sold pencils and other articles for him; he produced a bible that he bought from Dorothy to give to his nephew’s daughter, a little girl about Dorothy’s age. That he never at any time talked to Dorothy Hamilton relative to intercourse. That he never attempted to have sexual intercourse with her at any time and denied having had improper relations of any kind at any time with her. He categorically denied all acts of improper conduct as suggested by the leading questions asked by the prosecuting attorney in his examination of the prosecuting witness.

That the day Grover King came into his room he said, “Dorothy, what are you doing here?” Dorothy said her mother had sent her to get some lard, and King said to him, “Red, what is Dorothy doing here?” He said, “Grover, just what she told you, she came to get some lard,” and he had given her a quarter to go on and get it; she wanted him to- give her another quarter. That he often helped Mrs. Hamilton out, because they needed things. Grover King told Dorothy to come with him, and told her this six or seven times; that he told Dorothy to go with Mr. King, that when they went out he heard Grover King tell Dorothy that she had to swear against him, that if she did not he was going to take her on over to Tecumseh.

He further testified that when 25 years of age, he was breaking horses and had an accident, which mashed his testicles and caused an inguinal hernia and he had to wear a truss and a suspensory. He then offered to submit to an examination.

“The Court: Well, nobody has questioned it.”

On cross-examination he stated that he never asked the prosecutrix to come to his place, and denied any misconduct on his part at any time.

Ed Wilmuth testified that he lived at the Upchurch Hotel when he worked on the railroad, but moved from there to the Hammert place several years ago, and visited the defendant there once or twice since; saw Dorothy carrying a grip in which he carried his pencils and trinkets, for the defendant.

The transcript of the testimony of the four witnesses who testified in the case covers nearly 100 pages, but the foregoing is a substantial statement of all the evidence in the case.

Upon an examination of the record and considering the proceedings on the trial, our conclusion is that the judgment in this case cannot be permitted to stand.

In the view we take of the record, we deem it unnecessary to discuss questions arising upon the rulings of the court on the trial, further than to observe that the flagrant impropriety of the questions asked on the examination of the prosecuting witness, and that its effects upon the jury would he prejudicial is self-evident. The repeated asking of incompetent questions, which clearly have for their purpose the intimation of something to the jury that is either not true or not capable of being proven if true, is prejudicial. Cline v. State, 57 Okla. Cr. 206, 47 P. 2d 191.

The record shows that the only issue submitted to the jury was the question of attempt to' commit the crime of rape in the first degree, and the court did not submit the issue of assault with intent to rape.

Under the statute the trial court should submit the case to the jury for consideration upon every included lesser offense which the evidence in any reasonable view of it suggests, and the instructions must be applicable to the testimony introduced upon the trial. Section 3097, Sts. 1931, 22 O. S. 1941 § 916.

The policy of the law is that all persons shall have a fair and impartial trial. It cannot be said that a fair and impartial trial has been had unless the jury has been properly instructed as to the law of the case-; and where the instructions do not fully present all the material issues raised, a judgment of conviction will be set aside. Miles v. State, 41 Okla. Cr. 283, 273 P. 284.

It clearly appears from the record that the case was tried and submitted to the jury upon an erroneous theory of the law, prejudicial to the substantial rights of the defendant. Williams v. State, 10 Okla. Cr. 336, 136 P. 599.

The principal assignment of error is that the evidence is insufficient to sustain the verdict or support the judgment of conviction.

The conviction rests solely upon the uncorroborated testimony of the prosecutrix.

The rule must be taken as settled in this state that while a conviction for statutory rape may be had on the uncorroborated testimony of the prosecutrix, this is only warranted when all the other facts and circumstances of the offense are corroborative of her testimony and her statements are not inconsistent or contradictory. Without such surrounding, facts and circumstances, the bald statement of the prosecutrix against the defendant would be so devoid of testimonial value as to render it unworthy of belief. Self v. State, 62 Okla. Cr. 208, 70 P. 2d 1083; Williams v. State, 61 Okla. Cr. 396, 68 P. 2d 530; Davidson v. State, 57 Okla. Cr. 188, 46 P. 2d 573; Ferbrache v. State, 21 Okla. Cr. 256, 206 P. 617; Allen v. State, 10 Okla. Cr. 55, 134 P. 91.

It will be seen from the statement of the testimony that the evidence adduced to establish the corpus delicti is of a very doubtful and inconclusive character; it consists exclusively of the monosyllable answers by the prose-cutrix to leading and suggestive questions propounded by the prosecuting attorney, and on her cross-examination she unhesitatingly states that her testimony was obtained through fear and threats by officers in the courthouse, in that they told her that unless she would so testify they would send her to the reform school at Tecumseh. It also appears that there is a direct conflict in her testimony.

In prosecution for statutory rape, the credibility of the prosecutrix may be impeached by proof that she made statements relative to the issue contrary to what she has testified to on the trial, and where the testimony of the prosecutrix is self-contradictory and was obtained through fear, threats or coercion, and where such testimony is not corroborated by other material testimony as to the com-inission of the offense, a conviction of attempt to commit rape will not be sustained. McDonald v. State, 61 Okla. Cr. 287, 67 P. 2d 806.

The state only demands the punishment of a citizen when his guilt has been clearly established according to the forms and rules of law, prescribed for ascertaining his guilt. It is not to shield the guilty, but to protect the innocent, that the courts are steadfast in upholding the forms and rules of law by which it may be lawfully determined who are guilty. Alcorn v. State, 70 Okla. Cr. 386, 106 P. 2d 838. A fair trial is guaranteed to all persons whether innocent or guilty, and it is the duty of the trial court to uphold this guaranty.

Our conclusion is that the evidence was insufficient to justify or sustain the verdict, and that the verdict was¡ more the result of prejudice than the calm and dispassionate conclusion of the jury upon the facts in evidence.

For the reasons stated and because the evidence is entirely insufficient to support the conviction, the judgment of conviction should be reversed and the cause remanded to the district court of Caddo- county, with direction to- dismiss. It is so ordered.

BAREFOOT, P. J., and JONES, J., concur.


text:
    DOROTHY COTTER v. STATE.
    No. A-9992.
    April 29, 1942.
    (125 P. 2d 777.)
    Mathers & Mathers, of Oklahoma City, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst Atty. Gen., for the State.
   DOYLE, J.

This appeal is prosecuted from a conviction had in the county court of Grady county, on November 22, .1940, wherein the defendant, Dorothy Cotter, was found guilty of selling intoxicating liquor, in Grady county on the 20th day of March, 1940, to one Woodrow Bigbow, and her punishment assessed at a fine of $50 and confinement in the county jail for a period of 30 days. Motion for new trial duly filed and overruled.

From the judgment rendered on the verdict an appeal was perfected by filing in this court on January 21, 1941, a petition in error with case-made.

The testimony of Hoyt Shelby was to the effect that he was a federal officer in the Indian service; knows Woodrow Bigbow, Jess Hendrick, and Charlie Palmer, and they are full-blood restricted Indians; that on the date alleged he drove to Chickasha, and saw the car that these Indians were driving, stop at the 'Sadie Thomas place, in Chickasha; they went into the house, were there five or ten minutes, when they came back to where his car wasl parked. Woodrow Bigbow handed him a pint bottle full of dry gin; that was here in Grady county,’ and he swore to the complaint charging the defendant with the unlawful sale.

Woodrow Bigbow testified: I am a full-blood Kiowa Indian; on March 20th, this year, I came to Chickasha with Hoyt Shelby; Jess Hendrick and Charlie Palmer were with me; I bought a pint of liquor from that lady; they call her “Dorothy”, her place is about a mile north of here; when the three of us went in I told her that we wanted to buy some liquor; she said she did not have anything but dry gin, I paid her $1.50 for the pint of dry gin; at that time Mr. Shelby was south of there about half a mile.

On cross-examination he stated that Mr. Shelby gave him and the other boys some money to make a buy, that his age is 27 years, and he is a government posseman.

The testimony of Jess Hendrick was to the effect that he is a full-blood Caddo Indian, and he is a government posseman under Hoyt ¡Shelby, was with him, Big-bow and Palmer here in Chickasha in March this year, and was present when Bigbow made a purchase of some gin, pointing towards the defendant he said “she is the one that sold it to him.”

Charlie Palmer testified that he is a full-blood Kiowa Indian, was present when Bigbow purchased some gin from the defendant in a stucco house north of here; he gave her $1.50 for it; when we went to this place Mr. Shelby and another officer waited down the road for us.

Henry Mitchell testified that he was jailor at Chick-asha in March, 1940, had occasion to go out with Hoyt Shelby, north of town, near the Sadie Thomas place, knows the defendant, Dorothy Cotter; she lives at Sadie Thomas’ place; that one of the Indians gave a bottle of gin to Hoyt Shelby, but did not know where it came from.

He further testified:

“Q. Are you familiar with the reputation of the place of business and residence of Sadie Thomas, north of Chick-asha, and were you familiar with it in March, 1940? Mr. Mathers: Objected to as incompetent, irrelevant and immaterial. The Court: Overruled. Exception. A. Yes, sir. Q. I will ask you to state whether or not it was a place that was known as a place where intoxicating liquor could be bought? A. Yes, sir.”

The state rested, and the defendant interposed a demurrer to the evidence on the ground that the same is insufficient under the law to show the commission of a crime. Overruled. Exceptions.

As a witness in her own behalf, Dorothy Cotter testified :

“I have lived here in Chickasha about 23 years, off and on, I heard these three men testify, I did not ever sell them any liquor and today is the first time I ever saw them; my age is 26 years, I usually live with my husband, G-. J. Cotter, he is in Texas right now, working on a farm; my parents, Mr. and Mrs. Ed Weldon, live here in Chickasha.”

Asked: “Q. Did you ever see this gentleman behind the county attorney here? (Indicating Mr. Shelby) A. No, sir.”

On cross-examination she stated: “As far as I know, the only time I ever have been convicted in police court was one time for being drunk.” “Sadie Thomas is my sister-in-law.”

It is contended that the court in permitting the witness Mitchell to testify that he was familiar with the reputation of the place of business and the residence of Sadie Thomas, and that it was known as a place where intoxicating liquor could be bought, committed prejudicial error.

It is a sufficient answer to the contention made that the error complained of did not constitute prejudicial error.

Under our statute the appellate courts of this state are not at liberty to set aside a judgment unless, “after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.” Section 3206, St. 1931, 22 O. S. 1941 § 1068.

In the case of Harris v. State, 14 Okla. Cr. 489, 173 P. 958, 963, it is said:

“It was not intended that the appellate courts should hunt through the numerous volumes of law books in the State Law Library to find technical reasons, for reversing a conviction or to excuse the rulings and conduct of the trial judge in instances of this kind. The necessity of that has been done away with by the foregoing enactment of the Legislature, and it is the solemn intention of this court to- respect that enactment. The trend of modern thought is to the effect that where the guilt of those charged with crime is established beyond the peradventure of a doubt, such as in this case, the criminal shall not escape his just punishment just because certain matters occurred and rulings were made by the trial judge during the progress of the trial that have heretofore been held to be technically erroneous.
“It is not error alone that reverses judgments of conviction of crime in this state, but error plus injury, and the burden is upon the appellant to establish to this court the fact that he was prejudiced in his substantial rights by the commission of error. * * This court has not the time nor the disposition, nor do we believe it is its duty under the law, to reverse such a judgment unless fundamental error has occurred.”

Upon an examination of the record we find no substantial violation of any constitutional or statutory right of the defendant, and we think there has been no miscarriage of justice. Finding no prejudicial error in the record, the judgment of the county court of Grady county herein is affirmed.

BAREFOOT, P. J., and JONES, J., concur.


author: BAREFOOT, P. J.

text:
    ROSA BUSBY v. STATE.
    No. A-9991.
    April 29, 1942.
    (125 P. 2d 775.)
    Mathers & Mathers, of Oklahoma City, for defendant.
    Mac Q. Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and T. H. Williams, Jr., Co. Atty., of Chick-asha, for the State.
   BAREFOOT, P. J.

The defendant, Rosa Busby, was charged in the county court of Grady county, Oklahoma, for unlawful possession of intoxicating liquors, to wit: three-fourths pint of tax paid whisky, and one-half pint of gin, was tried, convicted and sentenced to pay a fine of $50 and serve 30 days in the county jail.

It appears that the charge in this case was the result of a search of the home of defendant in Chickasha, Grady county, Okla., on the 10th day of August, 1940, and the finding of the intoxicating liquors above described. Defendant was living at the premises with her children, and she and her husband were living separate and apart, although she testified that he was present at the time of the search, but that he was asleep.

For a reversal of this case, it is contended that the evidence presented by the state is insufficient to sustain the judgment and sentence. There is no serious contention as to the legality of the search warrant. The state offered the evidence of three officers: — W. R. Thomas, Chief of Police, Leon Hinton and Ernest Kell, city policemen. These officers testified to making the search and finding the liquors above described. They testified that at the time of the search, numerous persons who did not live there were present and gave their names. That the bottle of gin was taken from the cabinet, and the defendant stuck “another bottle down the neck of her dress.” She gave this bottle to' the officers only after being told that she was under arrest. Several “dram” glasses were sitting on the table and whisky had been poured into some of them and the parties present were drinking. The officers smelled whisky upon the breath of a number of those present. The three officers also testified that they had been acquainted with the premises for a number of years, that they had often seen parties going to and from the premises who did not live there and with every indication that they had been drinking intoxicating liquors, and they also testified that the general reputation of the premises was that it was a place where people congregated in large numbers for the purpose of drinking, and that it was a place' of public resort and the reputation of the same was bad.

Defendant was the only witness and she testified to having possession of liquor, but not for the purpose of sale. She testified that some of the parties present were relatives and that no intoxicating liquor was sold by her to anyone present. On cross-examination, she admitted having been previously convicted in the city court for drunkenness. The evidence is somewhat conflicting, as will be noted from the above statement. Under section 3, ch. 153, Session Laws, 1933, O. S. A. (1941), Title 37, sec. 82, the having possession of in excess of one quart of intoxicating liquor is prima facie evidence that the same is possessed with the intent to convey, sell, or otherwise dispose of such liquor in violation of law. In this case, the evidence was not definite that the amount found in possession of the defendant was in excess of one quart, but if one has possession of any amount of intoxicating liquor, as defined by the statute, and this possession is for the purpose and with the intent of selling, conveying, or otherwise disposing of the same for the purpose of violating the law, then the defendant would be guilty of unlawful possession, notwithstanding the amount. Dean v. State, 63 Okla. Cr. 385, 75 P. 2d 900; Rainey v. State, 71 Okla. Cr. 1, 107 P. 2d 371; Smith v. State, 62 Okla. Cr. 33, 69 P. 2d 671; Thomas v. State, 70 Okla. Cr. 404, 106 P. 2d 836.

In the Thomas Case, supra, the case was reversed because the evidence was insufficient. But here the state proved that the place was a place of public resort and had the reputation of being a place where intoxicating liquor was sold. In fact, a number of people were assembled there and were drinking at the very time the search was made. This, with the other circumstances proved, was sufficient to sustain the verdict of the jury and the judgment and sentence rendered.

From the above statement, it is evident that the jury passed upon the question of intent and by their verdict found the defendant was in possession of liquor for the purpose and with the intent to “sell, convey or otherwise dispose of same” contrary to law.

For the reasons above stated, the judgment and sentence of the county court of Grady county is affirmed.

JONES and DOYLE, JJ., concur.