text:
    PAT WHITFIELD v. STATE.
    No. A-5685.
    Opinion Filed May 14, 1927.
    (256 Pac. 68.)
    Sigler & Jackson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was indicted by a grand jury of the district court of Carter county, which indictment, omitting the caption, is as follows:

“At the January term, a term of the district court of the eighth judicial district of the state of Oklahoma, held in and for Carter county, the state of Oklahoma, in the town of Ardmore, and begun on the-day of January, in the year of our Lord one thousand nine hundred and twenty-four, the jurors of the grand jury of said county, good and lawful men who had been drawn and summoned according to law and then and there returned, examined, impaneled, sworn, and charged, according to law, to diligently inquire into and true presentment make of all offenses against said state of Oklahoma, committed or triable within said county upon their oaths, in the name and by the authority of said state of Oklahoma, do present and find that in said county of Carter, in said state of Oklahoma, on the-> day of January, 1922, the above named defendant, Pat Whitfield, did then and there willfully, unlawfully, fraudulently, and feloniously with the fraudulent and felonious intent then and there to cheat and defraud and by means and use of a certain false and bogus instrument in writing, to wit, a certain false and bogus pay roll claim which the said Pat Whitfield then and there well knew to be false and bogus, receive and obtain from Carter county, a municipal division of said state of Oklahoma, the sum of $928.75 good and lawful money of the United States of America and of the value of $928.75, good and lawful money of the United States of America; which said false and bogus instrument is in words and figures as follows, as evidenced by a true copy thereof, hereto attached and made a part of this indictment, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the state.”

The defendant filed a demurrer to the indictment, which demurrer was considered by the court and overruled and defendant duly excepted. The defendant was tried by a jury and convicted, the verdict returned against him finding him guilty of passing a bogus instrument as charged in the indictment, and asking the court to fix the punishment, as the jury could not agree upon the same. Motion for a new trial was filed, considered, and hy the court overruled and exceptions duly saved by the defendant. Upon the verdict rendered the court sentenced the defendant to confinement in the state penitentiary alt McAlester, in the state of Oklahoma, for a term of seven years. To reverse the judgment and sentence the defendant has appealed to this court.

The defendant has assigned nine errors alleged to have been committed by the trial court. The errors we deem necessary to consider will be disposed of as presented by the defendant. The first assignment of error is:

“The court erred in overruling defendant’s demurrer to the indictment and erred in overruling the defendant’s objection to the introduction of testimony as shown in their record herein.”

The defendant is charged in the indictment:

“That he willfully, unlawfully, fraudulently and feloniously, with the fraudulent and felonious intent then and there to cheat and defraud and by means and use of a certain false and bogus instrument in writing * * * obtain from Carter county, a municipal division of the state of Oklahoma, the sum of $928.75; that the defendant then and there well knew the said bogus payroll was false.”

The defendant urges that his demurrer to the indictment should have been sustained, for the reason that there is no authority in law for the alleged false or bogus instrument to be set out in the indictment as an exhibit to the same. Upon an examination we find that the pay roll alleged to have been false and bogus is attached to and made a part of the indictment; that is, it is alleged in the indictment that said false and bogus instrument is in words and figures as follows as evidenced by a true copy hereto attached and made a part of this indictment.

The only argument the defendant in his brief presents upon the question of the pleading of the state on the bogus pay roll upon which the defendant is alleged to have procured the money from Carter county is as follows:

“The first thing we wish to call the court’s attention to is the exhibit attached to the indictment, and we are frank to say to you after a thorough search of all the authorities at our command, we fail to find where this court or any other court has discussed the question of an exhibit being attached to an indictment, and we take the position that an indictment cannot be aided by an exhibit, and that the exhibit is not a part of the indictment, and therefore an account or claim attached to the indictment is not a part of the indictment. If this is true the indictment is fatally defective in that it does not set out the instrument which is claimed to be false and bogus.”

In the indictment it is alleged that a true copy of the bogus pay roll is attached to the indictment and made a part of it. The indictment sufficiently informs the accused of the offense with which he is charged with such particularity as would enable him to prepare for his trial, and so defines the offense that the accused, if convicted or acquitted, will be able to defend himself in case he is indicted again for the same offense by pleading the record of such former conviction or acquittal and is good as against a demurrer. Smythe v. State, 2 Okla. Cr. 286, 101 P. 611, 139 Am. St. Rep. 918; Price v. State, 9 Okla. Cr. 359, 131 P. 1102; State v. Underwood, 17 Okla. Cr. 443, 190 P. 281.

The third error assigned by the defendant is against the court refusing to sustain his motion for an instructed verdict of not guilty. The motion to direct a verdict is within the sound discretion of the court, and, unless there is a total absence of incriminating evidence, it will not be error to let the case go to the jury. Where there is a clear conflict of the evidence, or if the evidence is such that different inferences may reasonably be drawn therefrom, this court will not interfere with the jury’s determination; unless the evidence is clearly against the weight of the evidence, or there is something in the record which shows that it was influenced by passion or prejudice, this court will not substitute its judgment on the question of the weight of the evidence for that either of the jury or the trial court, provided there is competent evidence from which a jury might reasonably conclude that the defendant was guilty of the crime charged.

An examination of the record in this case shows that the evidence is conflicting, but sufficient to sustain the verdict of the jury, and the defendant’s motion for a directed verdict was properly overruled. Brimmage v. State, 17 Okla. Cr. 205, 187 P. 497; Davis v. State, 10 Okla. Cr. 169, 135 P. 438; Magnetti v. State, 13 Okla. Cr. 102, 162 P. 241; Pace v. State, 13 Okla. Cr. 580, 165 P. 1160; Valdez v. State, 18 Okla. Cr. 204, 194 P. 451; Murnand v. State, 18 Okla. Cr. 426, 195 P. 787; Cole v. State, 18 Okla. Cr. 430, 195 P. 901.

The fourth error assigned by the defendant relates to instructions 3, 4, and 5, given by the court. An examination of these instructions show that they were applicable to the facts in this case and clearly stated the law and that the defendant was not prejudiced thereby.

In his fifth assignment of error defendant complains that the court erred in instructing the jury that if they could not agree on the punishment to return a verdict of guilty and permit the court to assess the punishment. An examination of the record fails to disclose that the defendant made any special request of the court to instruct the jury that he desired the jury to fix the punishment, should it find him guilty, and not leave the punishment to the court. The record discloses that after the jury had been out for some time it returned into court and had agreed upon a verdict, but was unable to agree upon the punishment, and the court instructed the jury in substance:

“That if you should agree upon a verdict as to the guilt or innocence, and you are unable to agree upon the amount of punishment to be assessed, then you may return a verdict of guilty into court and request the court to assess the punishment.”

The record further discloses that the jury thereafter returned into court finding the defendant guilty and leaving the punishment to be fixed by the court, and the defendant reserved an exception to this verdict.

Defendant in his brief cites the case of Craig v. State, 31 Okla. Cr. 19, 236 P. 909, wherein this court said:

“To the constitutional right of a speedy and public trial by an impartial jury of the county in which the crime shall have been committed, the statute gives the supplemental right to have the jury assess the punishment, where the defendant demands it. Held, that it was the imperative duty of the court, made so by the statute, to so instruct the jury upon the request of the defendant, and it was reversible error to refuse to do so.”

In this case the defendant seems to have waived this provision of the statute — at least it nowhere appears in the record that he requested the court to instruct the jury to fix the punishment; the record disclosing only that he saved a general exception to the instruction of the court advising the jury it might find a verdict of guilty and leave the punishment to be fixed by the court. We do not think the record discloses an error committed by the court in giving of the instruction to the jury as to the fixing of the punishment by the court if it could not agree upon the punishment, if it did agree upon the guilt of the defendant.

The sixth error alleged by the defendant to have been committed by the court is:

“The judgment of the court is contrary to the law and the evidence.”

From an examination of the record we find the court correctly instructed the jury as to the law of the case, and we find the evidence sufficient to sustain the verdict. The defendant complains of the action of the court in overruling his motion for a new trial. The conclusion we have reached in this case on the other errors assigned by the defendant disposes of this error, and it is not deemed necessary to discuss the question.

In this case the testimony is conflicting, yet the testimony is sufficient to sustain the verdict of the jury. The court correctly stated the law to the jury, and, finding no errors in the record sufficient to warrant a reversal, the case is affirmed.

DOYLE, P. J., and EDWARDS, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    WARNER WILKERSON v. STATE.
    No. A-5764.
    Opinion Filed May 14, 1927.
    (256 Pac. 63.)
    H. M. Jarrett, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Lincoln county on a charge of having possession of a still, and was sentenced to serve a term of 30 days in the county jail and pay a fine of $100.

Before entering upon the trial, plaintiff in error moved to suppress evidence as obtained within a residence without a valid search warrant, which was overruled. The proof is that the officers had a search warrant and went to the premises and told the mother of plaintiff in error, who was in charge, that they had a search warrant and were going to search the house, and she said to “go ahead.” They did not serve the search warrant. It appears from the record that the search warrant was issued without any affidavit having been filed, and was, therefore, a nullity. It is well settled that when officers, desiring to make a search of premises, inform the person in charge of the premises that they had a, search warrant, and such person then gives consent, it is not a waiver of the unlawful character of the search, so that, even if the plaintiff in error’s mother could waive this right for him, it was not a waiver under the circumstances. Shockley v. State, 35 Okla. Cr. 437, 251 P. 514.

The evidence of the possession of a still is very meager. The evidence is:

“ * * * Q. What else did you find there, if anything? A. A still; that is, a copper vessel. Nothing else. * * * Q. Is this what you call the still here? A. Yes, sir. Q. That is what you call a still? A. It is a copper vessel. * * * Q. Where was the boiler? A. In the oven of the stove and the keg was sitting in a little side room, sitting at the side of the house. Q. Have you seen stills set up in shape to operate? A. I never saw one running. That boiler shows that there had been something or other been screwed off and on to the top of it, I could not find that. * * * ”

The vessel referred to as a still was not introduced in evidence. It is doubtful that this is sufficient proof that it was a still.

The instructions of the court nowhere define the offense for which the plaintiff in error was tried, and nowhere inform the jury what facts must be proven in order to warrant a conviction. They merely state that plaintiff in error is charged with having the possession of a still, with the intention of manufacturing intoxicating liquor, and then the jury, at great length, are told how to weigh the evidence and determine issues of fact, and the credibility of the witnesses. These instructions are wholly insufficient. The offense should be defined to the jury, and they should be instructed what facts are necessary to be proven in order to warrant a conviction. Brock v. State, 6 Okla. Cr. 23, 115 P. 1026.

The case is reversed and remanded.


author: DOYLE, P. J.

text:
    ROSE STACY v. STATE.
    No. A-6126.
    Opinion Filed May 17, 1927.
    (256 Pac. 63.)

      J. D. Cox, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This is an attempted appeal from the county court of Cherokee county, wherein on the 17th day of October, 1925, a judgment of conviction was rendered in accordance with the verdict of a jury finding the defendant, Rose Stacy, guilty of the offense of selling intoxicating liquor, and fixing her punishment at a fine of $150 and imprisonment in the county, jail for 30 days.

The Attorney General has moved to dismiss the appeal on the ground that the same was not filed in this court within 120 days from the date the judgment was rendered. An examination of the record discloses that the petition in error with case-made attached was not filed in this court until the 2d day of April, 1926, more than 120 days after the rendition of said judgment.

This being an attempted appeal from a judgment for a misdemeanor, the greatest length of time within which the appeal must be lodged in this court is 120 days from the date of the rendition of the judgment. Section 2808, Comp. Stat. 1921. The appeal to this court lies from the judgment. Section 2806.

An appeal may be taken by the defendant, as a matter of right, from a judgment of conviction, but the manner of taking and perfecting such appeal is a proper matter of legislative control. Waggoner v. State, 13 Okla. Cr. 715, 167 P. 237.

The statute prescribing the manner in which an appeal can be taken is mandatory, and a failure to file the appeal in the appellate court within the time allowed by law is fatal to the appeal. Green v. State, 7 Okla. Cr. 5, 120 P. 1037; Miller v. State, 19 Okla. Cr. 148, 197 P. 121.

There is no provision of law which vests this court with discretion to hear and determine appeals on the merits when they are not taken within the time prescribed by statute. Howey v. State, 9 Okla. Cr. 453, 132 P. 499.

The petition in error and case-made not having been filed in this court within 120 days after the rendition of the judgment, this being a misdemeanor conviction, the motion of the Attorney General to dismiss the appeal must be sustained.

It is therefore adjudged and ordered that the purported appeal be dismissed, and the cause is remanded to the trial court, with direction to carry into effect the judgment.

EDWARDS and DAVENPORT, JJ., concur.


author: EDWARDS, J.

text:
    R. L. CUMMINGS et al. v. STATE.
    No. A-5737.

    Opinion Filed May 21, 1927.
    (256 Pac. 70.)

      John L. Ward, L. O. Todd, and Charles Skalnik, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Tulsa county on a charge of having the possession of a still, and the defendant Cummings was sentenced to pay a fine of $500 and to be imprisoned in the county jail for a term of 180 days, and the defendant Rice was sentenced to pay a fine of $50 and to be imprisoned in the county jail for a term of 30 days.

The record discloses that on the date charged two officers were looking for one Bennett, a son-in-law of defendant Cummings, intending to arrest him for a misdemeanor, although they had no warrant. They drove on a by-road about one-fourth mile from Cummings’ residence, opposite an old house in a field in which no one lived, saw some one near this house, and walked across the field toward it. The door toward which they walked was nailed up, and as they got near this house they smelled the odor of cooking mash, and walked around the house opposite another door, which was open. There they saw a still in operation, with defendant Cummings working at it, and defendant Rice standing near. The fire was going, and mash was in the boiler. Three barrels of mash were in the room, and eight or ten barrels in a nearby cellar.

It is first argued that this evidence was discovered by reason of an unlawful search; that the officers at the time they made the discovery were trespassers, and this evidence should have been suppressed and excluded. This claim is not tenable. Under the evidence, no search was in fact made, but the still was discovered without search. Sprinkle v. State, 34 Okla. Cr. 161, 245 P. 901. The building in which the still was found was not the residence of any one nor was it within the curtilage of any residence. In approaching it the officers were not committing a trespass which will exclude the evidence obtained there by them. Penney v. State, 35 Okla. Cr. 151, 249 P. 167; Merck v. State, 35 Okla. Cr. 160, 249 P. 163.

The contention is also made that the court erred in refusing a continuance. After the jury had been impaneled and before the taking of evidence, the state asked leave to indorse the name of an additional witness, the county clerk of the county, which leave was granted over the objection of defendant. The county attorney at the time stated that his name was omitted from the information by a mere oversight. The testimony of this witness is that there was no certificate of registration of such still filed in Tulsa county. This objection appears to be highly technical; the indorsement could not have surprised defendants.

The still was upon land belonging to and in the possession of defendant Cummings. Defendant Rice was a son-in-law of Cummings, and at the time lived in another county and was visiting Cummings. The proof of possession by Rice is not sufficient to sustain the judgment as to him. The jury must have been impressed with its weakness, since they assessed against him the minimum punishment only.

Complaint is next made that the court erred in refusing requested instructions and in the giving of several of the charges of the court. We have examined the requests made and the charge given, and find that it substantially and correctly covers the law of the case, and there is no error requiring a reversal.

The case is affirmed as to the defendant R. L. Cummings, and reversed as to defendant Joe Rice.

DOYiLE, P. J., and DAVENPORT, J., concur.


text:
    RICHARD HARKINS v. STATE.
    No. A-5810.
    Opinion Filed May 21, 1927.
    (256 Pac. 64.)
    See, also, 29 Okla. Cr. 167, 232 P. 1117.
    Howe & Howe and Warren & Warren, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, upon a charge of murder, in the district court of Choctaw county, Okla., was convicted of manslaughter in the first degree, and was sentenced to serve a term of 15 years in the state penitentiary.

At the time this case was submitted, it was orally argued briefly. No written briefs have been filed in support of the appeal. We have examined the record with care and find that the information correctly charges the crime of murder, that the court correctly instructed the jury, and no exceptions were taken to any of the instructions, and no errors of law of any moment appear to have been committed on the trial of the case, but the case appears to have been carefully tried and the record is free from any prejudicial error.

The evidence discloses that on the date charged the defendant and his brother-in-law, Hugh Kelly, were in a restaurant, at Ft. Townson, when deceased, Elmer Coker, came to them and used some abusive language to defendant and then left, going to another restaurant. Defendant and Kelly got in a car and drove away for a short time and then went to the restaurant where Coker had gone, and defendant called for him several times to come out. Coker appeared to be reluctant to do so, but did come out and walked up to defendant and struck him with his fist. Defendant then moved a few steps to where Kelly was, apparently procured from him a pistol, and approached Coker, who got behind one O’Keefe, a bystander, and according to some of the evidence reached as if to pick up a rock. Defendant reached around O’Keefe and shot Coker through or near the heart. . Coker made an attempt to get to a drug store nearby, but fell and expired before reaching it. He made no statement after being shot. The evidence makes out a case of manslaughter in the first degree, and this court perceives no reason why it should interfere with the judgment.

The case is affirmed.

BOYLE, P. J., and DAVENPORT, 'J., concur.


text:
    JOHN LONG v. STATE.
    No. A-5819.
    Opinion Filed May 21, 1927.
    (256 Pac. 65.)
    Carter & Carter, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Okmulgee county on a charge of having possession of whisky with intent to violate the prohibitory law, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

From the record it appears that, on the day charged, certain officers went to the residence of defendant, asked permission to look for whisky, and defendant gave his consent. They looked in the house and found no whisky, but concealed in a binder they found a gallon jug, more than half full of whisky. In the barn loft they found five five-gallon jugs, four of which smelled strongly of whisky, and some bottles. Defendant admitted possession of the whisky found, but testified that he had it for medicinal purposes and not for the purpose of violating the prohibitory liquor law, and further denied that the five-gallon jugs had contained whisky. The only assignment of error argued is that the evidence is insufficient to sustain the verdict and judgment. By the provisions of section 7002, Comp. Stat. 1921, as amended by chapter 123 of the Session Laws of 1924, the possession of more than one quart of whisky is prima facie evidence of an intention to violate the liquor law. When more than this quantity of intoxicating liquor is found in the possession of any person, it is sufficient to carry the case to the jury, and, in the absence of unusual circumstances, will be sufficient to sustain a conviction. Cosby v. State, 30 Okla. Cr. 294, 236 P. 51; McCoy v. State, 31 Okla. Cr. 254, 238 P. 223; May v. State, 31 Okla. Cr. 361, 238 P. 1003.

The case is affirmed.

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


text:
    PAUL VINYARD v. STATE.
    No. A-5823.
    Opinion Filed May 21, 1927.
    (256 Pac. 65.)

      M. Bristow, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The' plaintiff in error, hereinafter called defendant, was convicted in the county court of Caddo county on a charge of transporting whisky and sentenced to pay a fine of $50 and to serve 30 days in the county jail.

It appears from the record that the sheriff at Ana-darko observed defendant and another person together, and from the conduct of defendant believed he was transporting whisky. He saw defendant and this other person enter a toilet. He approached it and entered the open door and saw defendant in the act of handing a pint bottle to the other person. Defendant then threw the bottle against the wall and broke it and said to the sheriff: “You didn’t get it.” The sheriff testified that it was whisky. This evidence is corroborated by the person with defendant, although he testified that he would not swear that it was whisky in the bottle. Defendant testified that the bottle contained O. K. Specific, which he was preparing to take internally for gonorrhea.

Under the evidence, there was no invasion of the rights of defendant in the fact that the officer did not have a search warrant at the time he approached defendant. The weight and sufficiency of the evidence is for the jury. We see no reason for disturbing the judgment.

The case is affirmed.


author: DAVENPORT, J.

text:
    WALTER D. CLINKSCALES v. STATE.
    No. A-5703.
    Opinion Filed May 21, 1927.
    (256 Pac. 66.)
    P. Mounts and W. H. Hussey, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was informed against in the county court of Tillman county, Okla., on a charge of manufacturing a still. The information, in part, charges as follows:

“That the said Walter D. Clinkscales, in the county and state aforesaid, did then and there being unlawfully, knowingly, and willfully manufacture a still, without first having qualified under the laws in such cases made and provided and against the peace and dignity of the state.”

To the information, the defendant filed a demurrer, 'which was by the court considered and overruled, and the defendant duly excepted. A jury was impaneled, and trial had; the jury finding the defendant guilty and leaving the punishment to be fixed by the court. Motion for a new trial was filed, considered, and overruled, and the defendant duly excepted. Motion in arrest of judgment was also filed and overruled by the court, and the defendant duly excepted. Defendant was sentenced to pay a fine of $300 and to be confined in the jail of Tillman county for a term of 90 days. To reverse the judgment and sentence, defendant appealed to this, court.

The defendant has assigned twenty-two errors alleged to have been committed by the trial court. After a careful examination of the record, we only deem it necessary to consider assignments 6, 8, and 13, which are as follows:

“(6) That the verdict of the jury is not sustained by sufficient evidence.”
“(8) That the verdict of the jury is contrary to the law.”
“(13) Error of the court in overruling the demurrer to the information filed in this case.”

In order to properly consider the assignments above set out it is deemed necessary to set out in this opinion a brief summary of the evidence.

Tom Gabbert was called as a witness by the state, and stated:

“That he was a constable of the Grandfield precinct. That he was acquainted with Walter D. Clink-iscales; had known him for about six months. Clink-scales lived about 7% miles north of Grandfield. He visited the Clinkscales home on the 6th day of March, 1925. Said he went there with a search warrant. It was about 4 or 5 o’clock in the afternoon, and searched the premises. He found Mr. Clinkscales in his garage making a copper distill, or ‘what I would call it. It was a sheet of copper 24 inches wide, and box made; it was completed all but the soldering of the top on. He was working on it and had his soldering iron at work. Oine of the ends was open. The garage was open when we went there, and Mr. Clinkscales was working, and what he was making was open to our view. We left the distill and went back to Grandfield. We never did take charge of that distill by virtue of any search warrant or anything else. Wade Crane and some others were with me. The residence of Mr. Clinkscales is a two-room house facing the east, a large room and a shed room on the west. The garage is back of the west of the house, possibly 25 or 30 steps, or something like that. The garage is next to the barn. There is a granary on the west end of the garage, and in the east end they keep a car in it. When we went there that evening Mr. Clinkscales was in the garage and the doors were open, and we walked into the garage .and had a conversation with him. All three of us went in. He made no objection to any of us coming in. He was working on this copper, and the blow torch was in use. He said he had been intending to make that wash boiler for some time for his wife. He said something like that. The copper that I have described and boiler was all I saw at that time. There was some copper pipe there. We did not molest the material or do anything about it at that time. We returned after dark. We saw Mr. Clinkscales when we went back.’ On cross-examination, Mr. Gabbert stated that Mr. Clinkscales walked around with them a while, and finally we went away. After dark we went back to the house and got this boiler he was making. The shape this boiler was in at the time it could not be used as a still. It would have to have more done on it to operate as a still.’ ”

Wade Crane and W. F. Gabbert were called as witnesses for the state, and testified, in substance, the same facts as Tom Gabbert testified to.

The defendant also testified. He stated:

He was a farmer, and that the parties came to his house and told him they had a search warrant and handed it to him, and he handed it back to them. “I was working on a boiler in the garage shed. I was making it to use as a wash boiler. It was the wash boiler that they got at that time. This is the only one I made. The top found there was to go on a brooder I was making. I was expecting to use this on the place. I had no worm of any kind, nor did I have any condenser. The copper I had was for the purpose of making a wash boiler and other things I was making for the brooder.”

The provision of the statute upon which the information is based is section 4, p. 44, of the Special Session Laws 1923-24. That part of said section applicable to this case reads as follows:

“It shall be unlawful for any person or * * * persons to manufacture any still worm or still, or substitute therefor, and usable as such, without first having qualified under the laws of the United States as a manufacturer and distributor of stills.”

The defendant demurred to the information; the first paragraph of said demurrer being as follows:

“That said information fails to allege facts sufficient to charge any offense against this defendant under the laws of the state of Oklahoma.”

From an examination of the statute, it is clearly shown that the information does not charge in the language of the statute or its equivalent, charging only that the defendant manufactured a still, and omitting the words, “and usable as such.” For failure to include the words, “and usable as such,” in the information, the information is bad, and the demurrer of the defendant should have been sustained.

A careful examination of the evidence in the record fails to show sufficient facts to justify the verdict and sentence of the court. Where there is evidence to support the verdict, the court will not pass upon the weight and sufficiency in order to determine whether the defendant is guilty as charged, but we hold that there must be evidence tending to support the essential allegations of the information. In this case there is no evidence whatsoever of the defendant’s manufacturing a still.

The case is reversed and remanded, with directions to dismiss.

DOYLE, P. J., and EDWARDS, J., concur.


text:
    ORVILLE POOLE v. STATE.
    No. A-5793.
    Opinion Filed May 21, 1927.
    (256 Pac. 67.)
    Jas. A. Embry and H. M. Jarrett, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Lincoln county upon a charge of assault with intent to commit rape and was sentenced to pay a fine of $500.

The case was tried in April, 1925, and the appeal lodged in this court September 8, 1925. Extension of time to file brief was made from time to time, but no briefs were ever filed, nor was there any appearance for oral argument at the time the case was submitted.

Where an appeal is prosecuted to this court upon conviction for a felony, and no briefs in support of the appeal filed, and no appearance for oral argument made, this court will not search the record to discover some error upon which to predicate a reversal, but will examine the record for jurisdictional or fundamental errors, and, if none appear, and the evidence reasonably supports the verdict, the judgment will be affirmed. We have done this and find that the evidence supports the verdict and no jurisdictional or fundamental error is apparent.

The case is affirmed.

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


text:
    Ex parte LAWRENCE CROUCH
    No. A-6627.
    Opinion Filed May 28, 1927.
    (256 Pac. 353.)
    F. H. Reily and J. T. Levergood, for petitioner.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

This is an original action in this court for a writ of habeas corpus. The petitioner alleges that he is restrained of his liberty and is unlawfully held by Even Akin, sheriff of Taylor county, Ky., and now is incarcerated in the common jail of the city of Shawnee, Okla.; that a requisition from the Governor of the state of Kentucky has been honored by the Governor of the state of Oklahoma; and that the said sheriff is about to convey petitioner to the state of Kentucky upon an indictment pending in the court of Taylor county, Kentucky, charging petitioner with the crime of child abandonment and desertion.

A writ of habeas corpus was issued upon said petition, returnable at 10 o’clock a. m., May 28, 1927, at 'which time a hearing was had, and respondent made his return, showing that he held petitioner upon a proper showing that petitioner was charged with the crime of child abandonment in Taylor county, Kentucky, and that a requisition had been requested by the Governor of Kentucky to the Governor of Oklahoma, to deliver the petitioner to the respondent Even Akin, sheriff of Taylor county, Kentucky. Petitioner is charged with being a fugitive from justice from the state of Kentucky.

Petitioner sued out this writ, denying he is a fugitive. Habeas corpus is the proper proceeding to determine whether the prisoner is a fugitive, within the meaning of the extradition laws, and subject to be taken from the jurisdiction of this state to the state of Kentucky, whose laws he is charged with violating. Upon the hearing had, the court determined that the petitioner was a fugitive.

The writ is therefore denied, and prisoner remanded to the custody of the respondent.

DOYLE, P. J., and EDWARDS, J., concur.


text:
    BROWNIE BEARD v. STATE.
    No. A-5825.
    Opinion Filed May 28, 1927.
    (256 Pac. 354.)
    Phillips & Phillips, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Bryan county on a charge of rape in the first degree, and sentenced to serve a term of 15 years in the state penitentiary.

The information is in two counts. The first count is an ordinary charge of rape by force overcoming the resistance of the female. Count No. 2 charges an act of sexual intercourse upon a female of unsound mind, incapable through lunacy of giving her consent. The trial was had on the theory that it was a rape by force overcoming the resistance of the female. The. witness upon whom the rape is alleged to have been made was married to one Tom Potter, and she testified in response to leading questions that defendant accomplished an act of sexual intercourse upon her by force.

Defendant contends that the prosecuting witness, Blanche May Potter, is incompetent by reason of unsoundness of mind. Section 589, Comp. Stat. 1921, in part reads:

“The following persons, shall be incompetent to testify: First: Persons who are of unsound mind at the time of their production for examination. * * *”

The witness being objected to, the court on preliminary examination took evidence as to the competency of this witness, which evidence was again submitted to the jury. On the request of defendant, certain physicians made an examination of this witness and at the trial gave testimony. This testimony standing alone would be sufficient to require the rejection of the prosecuting witness as incompetent. This was, however, considerably modified upon the cross-examination and the further examination by the court. It was met by rebuttal evidence of the state and by the testimony of the prosecutrix herself. In 1 Wigmore on Evidence, p. 634, § 497, it is said:

“The general rule here applies that the capacity of the person offered as a witness is presumed; i. e., to exclude a witness on the ground of mental or moral incapacity the existence of the incapacity must be made to appear. What is sufficient in order that the offering party may be put to the necessity of adducing evidence of capacity, and the judge to the necessity of determining the existence of capacity, has not been made entirely clear by decisions. It may be supposed that a mere objection raised and claim to have a voir dire examination would suffice. * * * The ways in which the insanity may appear are four: (1) The general behavior of the person, while in court and before taking the stand, may be such as to exhibit the derangement to the judge; (2) the person may be questioned on the voir dire, so that his conditon appears at once; (3) other witnesses to the derangement may be offered before the person’s testimony is begun; (4) the examination or cross-examination may disclose clearly the incapacity, in which case the preceding part of testimony may be struck out, or may disclose grounds of doubt, in which case a .voir dire or other witnesses may be resorted to. * * *"

The fact that in the second count of the information it is alleged that the female is of unsound mind does not per se establish her incompetency. This would be true, even though the trial had been had upon said second count. Adams v. State, 5 Okla. Cr. 347, 114 P. 347; 26 A. L. R. 502, note V, and authorities there cited.

The competency of a witness being presumed in the first instance, where a witness is objected to on the ground of incompetency for want of intelligence or on account of unsoundness of mind, it is the province of the trial court to determine the witness’ competency. The admissibility of testimony of a witness challenged on the ground of incompetency is within the sound discretion of the trial court, and his decision will not be reversed unless there is a clear abuse of discretion. Here the court held a somewhat extended examination and admitted the witness to testify as competent. Upon a consideration of all the evidence upon this point, including that of the witness herself, we reach the con-elusion that it is not clearly made to appear that the witness is so mentally deficient as to be incompetent, and her evidence was properly admitted. Adams v. State, supra; 26 A. L. R. 1494, note.

The defendant requested the court to instruct the jury, in substance, that in order to constitute rape in the first degree they must find, beyond a reasonable doubt, that the female resisted the attempt of defendant to accomplish an act of sexual intercourse, and that the act was committed by force, overcoming her resistance, and, although they might find that an act of intercourse was accomplished, if they should find it was accomplished with the consent of the female, though such consent were reluctantly given, the act would not constitute rape. These requests were refused. In lieu thereof the court gave instruction No. 4, as follows:

“Now, in this case, you are instructed that, if you believe and find from the evidence beyond a reasonable doubt that the defendant, Brownie Beard, in Bryan county, state of Oklahoma, on or about the 10th day of September, 1924, was a male person over the age of 14 years, and that he committed an act of sexual intercourse with one Blanche Potter, a female, not the wife of the said Brownie Beard, without the consent and against the will of the said Blanche Potter, by means of force and violence sufficient to overcome, and which did overcome the resistance of the said Blanche Potter, if she did resist, then the defendant would be guilty of rape and it would be your duty to assess his punishment therefor either at death or confinement in the state penitentiary for any term not less than 15 years, in your discretion. If you do not so find, or entertain a reasonable doubt of his guilt, you will acquit the defendant of this charge."

This instruction is involved and its meaning obscure. The rape sought to be proven was under the fourth subdivision of section 1834, Comp. Stat. 1921, which as therein defined consists of an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where she resists, but her resistance is overcome by force and violence. The jury should have had a clear-cut instruction, advising them that, in order to convict a defendant, charged with rape in the first degree upon an adult woman, they must find that the female resisted the act of sexual intercourse, and that such act was accomplished by force and violence overcoming her resistance. A different situation would be presented if the state relied upon the third subdivision of section 1834, where the female is incapable through lunacy or unsoundness of mind of giving consent, or under the fifth subdivision of said section, where she is prevented from resistance by threats, or under the sixth subdivison of said section, where she is prevented by reason of intoxication, etc. Here, however, the state relied upon the evidence that the act was accomplished by force, overcoming resistance of the female. The evidence that the act was accomplished rests upon the testimony of the prosecutrix, who was obviously deficient in intelligence, and, the evidence of resistance on her part being more or less indefinite, the failure of the court to charge clearly upon this point is prejudicial.

The case is reversed and remanded.

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


text:
    OTTO MORGAN v. STATE.
    No. A-5822.
    Opinion Filed June 11, 1927.
    (256 Pac. 759.)

      L. A. Wallace, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Okmulgee county on a charge of having the possession of intoxicating liquor with intent to violate the prohibitory liquor law, and was sentenced to confinement in the county jail for a term of 6 months and to pay a fine of $500.

The appeal was lodged in this court in September, 1925. No briefs have been filed in support of the appeal, nor was any appearance made for oral argument. The record discloses that certain officers with a search warrant went to the premises of defendant and found concealed near his house 10 gallons of whisky and found fresh tracks leading from his house to the whisky. They compared the shoes of defendant with these tracks, and they testify that the shoes exacty fitted the tracks. Defendant denied ownership of the whisky, but testified that it belonged to his brother-in-law. He admitted having twice pleaded guilty to a violation of the prohibitory liquor law. The state might well have elected to prosecute him for a felony, under section 6993, Comp. Stat. 1921. The extreme penalty is justified. The record discloses no substantial error.

The case is affirmed.

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


text:
    W. B. JONES v. BUSBY, District Judge.
    No. A-6630.
    Opinion Filed June 11, 1927.
    (256 Pac. 758.)
    Burris & Crawford and Wimbish & Wimbish, for petitioner.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for respondent.
   EDWARDS, J.

This is an original proceeding in this court, praying for a writ of prohibition against Orel Busby as district judge of Pontotoc county.

From the petition and response, it is made to appear that in September, 1922, an information was filed in the district court of said county against petitioner charging him with the crime of embezzlement. Thereafter, in January, 1925, a trial was had upon said information in said district court, which resulted in a mistrial. Thereafter, in November, 1926, the Honorable J. W. Bolen, district judge of said Pontotoc county, at his chambers in the American Bank Building, in the city of Ada, set said cause for trial for the first Monday in December, 1926, but said cause was not tried at said time, and in the latter part of November, 1926, or the first part of December, 1926, counsel for defendant, at the chambers of said district judge, requested the said judge to dismiss said'cause. The said judge stated that he had intended to dismiss said cause and in substance that the evidence was insufficient, and counsel for defendant then said, “Well, why not dismiss the case now?” and thereupon the judge replied, “I will dismiss the case now, and you may consider the order made; the case is now dismissed; I will have the clerk enter the order.” When this proceeding took place, the court was not in open session, no clerk nor other official was present, and no minutes were made. Thereafter, the Honorable J. W. Bolen, district judge, was succeeded by the respondent, Orel Busby, and in May, 1927, counsel for defendant moved for an order nunc pro tunc, dismissing said cause, which was denied. The defendant was put upon trial, convicted, and the jury assessed his punishment at confinement in the state penitentiary or a term of three years and by a fine of $20,000. This proceeding is brought to prohibit respondent, as district judge, from pronouncing judgment and sentence upon the verdict, on the claim that the court is without jurisdiction by reason of the alleged order of dismissal.

Section 2916, Comp. Stat. 1921, is as follows:

“The court may either of its own motion or upon the application of the county attorney, and the furtherance of justice, order an action or indictment to be dismissed; but in that case the reasons of the dismissal must be set forth in the order, which must be entered upon the minutes.”

By section 2917, Comp. Stat. 1921, the entry of a nolle prosequi is abolished, and a criminal action may be discontinued or abandoned only under the provisions of section 2916, supra. The power to dismiss is lodged in the court and not in the judge of the court. There is a well-defined distinction between a judge and a court, although the words are sometimes used interchangeably, even in the statutes. Whether an act is to be performed by one or the other is generally to be determined by the character of the act to be done. Ann. Cas. 1913E, 389. A court has been variously defined; its meaning depending somewhat on the context in which the term is used. A most comprehensive definition is found in 15 C. J. 715, § 1, and many authorities are there cited in the notes in support of the text. See, also, 7 R. C. L. 973 (2). As used in the section of our statute above quoted, a court is an arm of the state government, vested with judicial power, composed of a judge or judges and a clerk, officially assembled . under authority of law to administer justice at the time and place where by law it is authorized to fee held. Here the statute requires that the dismissal shall be made by the court and, further, the reason for the dismissal shall be entered upon the minutes of the court. The act of dismissal is clearly a function of the court. In Fisher v. McKeemie, 43 Okla. 577, 143 P. 850, Ann. Cas. 1917C, 1039, it was held that the order of a judge, approving the lease of a guardian of his ward’s property by the judge, was not an order of court. In the case of Eichoff v. Caldwell, 51 Okla. 217, 151 P. 860, L. R. A. 1917E, 359, in an opinion by Bleakmore, commissioner, it was said:

“The district court is a tribunal established for the exercise of definite judicial powers at a designated time and place. The judge presiding over such tribunal constitutes the court, in the sense contemplated by law, only when performing the functions of a court at the time and place fixed by the law. The court alone can consider and determine motions to vacate its judgments or orders, the judge, as contra-distinguished from the court, having no such power.”

In this case there was no order by the court dismissing the action against petitioner, and the claimed order was at most no more than on oral order of the judge. It is without force dr validity, and the trial court .properly denied the application for an order nunc pro tunc.

The writ is denied.

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


text:
    JIM RUSSELL v. STATE.
    No. A-5848.
    Opinion Filed June 11, 1927.
    (256 Pac. 758.)
    Thos. Norman, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Carter county on a charge of having the unlawful possession of whisky, and was sentenced to pay a fine of $100 and to serve 30 days in the county jail.

The record discloses that two officers went to the premises of defendant. The residence and barn were in the same inclosure, about 50 feet apart. Defendant and his brother-in-law were in the barn, and were called out by the officers, one of whom went with them a short distance away, while the other officer made a search of the barn and found a quantity of whisky concealed under some ear corn. The officers had no search warrant, and testify that they searched on suspicion.

The search of a dwelling house or the immediate surroundings within the curtilage of a dwelling house without a search warrant is in violation of section 30, art. 2, of the state Constitution. Bare v. Commonwealth, 122 Va. 783, 94 S. E. 168; Temperani v. U. S. (C. C. A.) 299 F. 365. See, also, Turknett v. State, 36 Okla. Cr. 401, 254 P. 985.

The facts of this case do not bring it within the rule frequently announced by this court that a search for liquors or appliances for making whisky in woods, fields, pastures, and such places, not within the immediate vicinity of a dwelling house, is not an unlawful search within the meaning of the Constitution. Penney v. State, 35 Okla. Cr. 151, 249 P. 167; Merck v. State, 35 Okla. Cr. 160, 249 P. 163.

The evidence obtained by this search was incompetent, and, timely objection having been made, it should have been excluded.

For the reasons assigned, the case is reversed and remanded, with instructions to dismiss.

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


text:
    WALTER McKEE v. STATE.
    No. A-6250.
    Opinion Filed Jan. 15, 1927.
    Rehearing Denied June 11, 1927.
    (256 Pac. 522.)
    Warren F. Brumfield, for plaintiff in error.
    Ed. Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

The information in this case charges that in Noble county, October 17, 1925, Walter McKee, W. H. Norvell, and R. L. Norvell did then and there unlawfully, and acting jointly, manufacture certain intoxicating liquors, to wit, whisky. On the trial the jury returned verdicts finding each of said defendants guilty as charged in the information and assessing the punishment of each at a fine of $400 and confinement in the county jail for four months. From the judgment rendered on the verdicts an appeal was perfected by filing in this court, on May 24, 1924, petition in error with case-made.

On motion of plaintiffs in error W. H. and R. L, Norvell, their appeal was dismissed. The evidence shows that in execution of a search warrant the sheriff and three deputies visited a vacant house, nine miles north and a quarter of a mile west of Perry and there found the three defendants. A still was in operation and there were 6 barrels of mash and 10 gallons of whisky in half gallon fruit jars. They arrested the defendants and destroyed the mash.

The defendant Walter McKee testified that he rented the place October 1, 1925, paying $15 for the use of the house one month; that he never went back to the place after his arrest. He further testified that he did not know the still was there; did not notice it in operation; and did not know the whisky or the mash was in the house.

The only question raised in this appeal is the sufficiency of the affidavit upon which the- search warrant issued. It is alleged in the affidavit that said place was a place of public resort; that numerous persons, users of intoxicating liquors, frequented the place; that intoxicating liquors are there kept for the purpose of sale. The affidavit being sufficient and the search warrant issued thereon valid, the motion to suppress the evidence was properly overruled.

No material error appearing in the record, the judgment against the defendant, Walter McKee, is affirmed, and the cause remanded, with direction to carry its judgment and sentence into execution.

EDWARDS' and DAVENPORT, JJ., concur.


text:
    MATTIE MANNING v. STATE.
    No. A-5820.
    Opinion Filed June 11, 1927.
    (256 Pac. 757.)

      Carter & Carter, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court pf Okmulgee county on a charge of having the unlawful possession of whisky, and was sentenced to pay a fine of $150 ánd to serve 90 days in the county jail.

It appears from the record that at the time charged certain police officers of Okmulgee had been in a quarter of the city near the home of defendant, and in returning passed her place. She was on the porch, and they stopped and talked, and inquired of her if she had any whisky. She answered that she had not; that the county officers had just left, and invited them in to look. They went in, and one of the officers lifted the cover of a work backet, and discovered two one-half pint bottles of whisky. There was considerable evidence that her residence was a place of public resort, and that intoxicated persons were frequently seen returning from it. The defendant did not testify.

The only contention argued is that the court erred in admitting incompetent evidence, and that the evidence is not sufficient to sustain the verdict. The incompetent evidence complained of is that the officers had seen persons intoxicated, or who appeared to be drinking, oh various occasions leaving the residence of defendant, and had arrested divers persons leaving there for being intoxicated and one person for having the possession of intoxicating liquor.

Since the quantity of whisky found at the residence of defendant is less than the amount fixed by statute as prima facie evidence of intent to violate the liquor law, proof of intent was necessary. Intent ordinarily cannot be proven by direct and positive evidence, and must be proven by circumstances,' or in some instances by general reputation. While the court was fairly liberal in the admission of evidence toward the state on this point, there is no substantial error which requires a reversal. There was sufficient evidence to carry the case to the jury; its weight and credibility was for their determination. It is not made to appear that there is any miscarriage of justice.

The case is affirmed.

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


text:
    W. A. TOWNSEND v. STATE.
    No. A-5809.
    Opinion Filed June 11, 1927.
    (256 Pac. 942)

      Warren & Warren, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Leverett Edwards, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Choctaw county upon a charge of pandering and was sentenced to serve a term of five years in the state penitentiary and to pay a fine of $500.

Section 1846, Comp. Stat. 1921, provides:

“Any person who shall procure a female inmate for a house of prostitution, or who, by promise, threats, violence or by any device or scheme shall cause, induce, persuade or encourage a female person to become an inmate of a house of prostitution; * * * or who shall by promise, threats, violence, or by any device or scheme, cause, induce, persuade or encourage an inmate of a house of prostitution to remain therein as such inmate; * * * shall be guilty of pandering. * * *”

Predicated upon this statute, the information alleges :

“That the said W. A. Townsend did then and there unlawfully, willfully, wrongfully, knowingly, intentionally, and feloniously procure, cause, induce, persuade, and encourage a female person, to wit, Bertie Dean, to become an inmate of a house of prostitution, to wit, the Avenue Hotel, the same being a house in the city of Hugo, Choctaw county, Okla., where prostitution was allowed and encouraged, by then and there agreeing with the said Bertie Dean that she might enter and remain in said Avenue Hotel without paying any regular room rent and by advising the said Bertie Dean that she could make plenty of money without working by entering and remaining in said Avenue Hotel and having sexual intercourse with men for pay, and by further agreeing with her, the said Bertie Dean, that she was to pay him, the said W. A. Townsend, the sum of $1 each and every time she had sexual intercourse with a man in said house, and she, the said Bertie Dean, was then and there and thereby caused, induced, persuaded and encouraged to and did become an inmate of the Avenue Hotel, aforesaid, and did commit acts of prostitution with male persons therein, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”

The evidence supports the charge and is that the Avenue Hotel, as then conducted by defendant, had the reputation of being a place of prostitution, and was in fact a place of prostitution, and that defendant procured said Bertie Dean to engage in prostitution therein, by persuasion and by agreeing with her that she should engage in prostitution and should pay defendant $1 for each man with whom she had a date in said house; that said Bertie Dean induced thereby did become an inmate of said house as a prostitute and paid to defendant part of her earnings as such.

The first assignment of error argued is that the information is not sufficiently definite to apprise defendant of the particular offense sought to be charged; that since the crime of pandering may be committed in the many different ways set out in section 1846, Comp. Stat. 1921, the defendant is unable to tell the particular part of the statute relied on, or the particular manner in which the offense is sought to be charged. It is apparent from examining the section of the statute referred to that the offense of pandering may be committed in numerous ways as set out in said statute. Here, however, the charge is that the defendant procured, caused, induced, persuaded, and encouraged Bertie Dean to become an inmate of a house of prostitution, describing the house and setting out in detail the inducement, encouragement, and procuring cause by which she was persuaded to become such inmate. In setting out this inducement, it is incidentally alleged that defendant was paid by Bertie Dean, which is within itself made an offense in another part of this section. But it is clear that the charge is predicated upon that part of the statute making it an offense to procure an inmate to a house of prostitution. The contention is not that the information is defective by reason of failure to fully set out the particulars of the offense, but that the particulars are too fully pleaded. In the case of Abrams v. State, 13 Okla. Cr. 11, 161 P. 331, the pleading was challenged as pleading merely a conclusion, which contention was sustained by the court. There it was charged:

“* * * On the 5th day of August, 1915, George Abrams and Minnie Abrams, then and there being, did then and there willfully, unlawfully, and feloniously procure a female, to wit, Rose Stanfield, to become an inmate of a house of ill fame, to wit, a place where prostitution was encouraged and allowed in the said state of Oklahoma, to wit, at the rooming house of the said defendants, George Abrams and Minnie Abrams, at No. 317 E. avenue, in the city of Lawton, Comanche county, Okla., and did by promise and device and scheme persuade and encourage the said Rose Stanfield to become an inmate of said house of prostitution contrary,” etc.

And the court in considering it said that the particular circumstances of the offense and the acts constituting it should be charged, and that it was impossible under the charge as there laid for defendant to know what kind of promise the state intended to prove. To obviate that objection, the pleader here has set out in detail the promise or inducement relied on, and what was done pursuant to it. The mere fact that the pleading of these particulars disclosed the state might have elected some other subdivision of the statute does not render the pleading defective.

It is next contended that the court erred in its instructions to the jury. This assignment is directed to the fourth and fifth paragraphs of the court’s charge. These instructions, in referring to the place where the offense is charged to have been committed, the Avenue Hotel, refers to it as a “house of prostitution” or “house of ill fame,” apparently using the term “house of prostitution” and the term “house of ill fame” as synonymous. The first part of section 1846, supra, refers to a “house of prostitution,” the latter part of the section to a “house of ill fame.” This statute was enacted to prevent the evils of pandering, and it attempts to set out every contingency under which pandering may be committed, and denounce the offense whether applicable to a house of prostitution or a house of ill fame. It was said by Furman, J., in Edmonds v. State, 9 Okla. Cr. 603, 132 P. 923:

“* * * The purpose was to make this section broad enough to entirely cover and include every act which might constitute or enter into what is generally known as pandering, and we think that this is its effect. The purpose of the Legislature in adopting this section was as far as possible to break up and destroy the infamous traffic in female virtue which has assumed such proportions as to become a curse to society, more blasting and blighting than any plague or epidemic could be, more terrible than any black slavery or any other kind of slavery that ever existed in this or any other country has been, more degenerating to the morals and ideals of the nation, and more soul-destroying than all other agencies against decency combined. The Legislature intended, as far as possible, to prevent prostitutión from ever becoming a commercialized institution in Oklahoma. This law was passed in answer to the demands of an enightened and aroused public conscience. * * *”

Where not defined by statute, there is little if any distinction in the meaning of these terms in common acceptation. A house of prostitution, a house of ill fame, and a bawdyhouse all mean a house resorted to for the purpose of prostitution. The term “house of ill fame,” generally speaking, does not refer to the fame or reputation of the house. State v. Smith, 29 Minn. 193, 12 N. W. 524; State v. Boardman, 64 Me. 523: United States v. Snow, 4 Utah, 280, 9 P. 501.

It is next contended that the court erred in giving additional oral instructions to the jury after they had retired. It appears that during the deliberation of the jury they were brought into court, and in the presence of defendant and his counsel the court was informed that additional instructions were desired. The court thereupon stated to them that the instructions already given covered the point if they would read them carefully, but that he would endeavor to make them more clear. He then explained the instructions and in a measure repeated a portion of the charge. No exception was taken to this proceeding.

Section 2730, Comp. Stat. 1921, reads:

“After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony or if they desire to be informed on a point of law arising in the case, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to the county attorney and the defendant or his counsel, or after they have been called.”

In Bird v. State, 22 Okla. Cr. 263, 210 P. 925, a somewhat similar situation arose, and this court said:

“While ordinarily we do not mean to approve of the giving of oral explanations of written instructions, pending the deliberations of the jury, yet under the circumstances here, where there Were no specific objections to the giving of oral explanations, and where the explanations given did not amount to a material modification of the written instructions, the irregularity will be considered as waived.”

See, also, Williams v. United States, 17 Okla. 28, 87 P. 647; Rea v. State, 3 Okla. Cr. 281, 105 P. 386, 106 P. 982. See, also, authorities in Bird v. State, supra.

Here the acts are charged as inducing a female to become an inmate of a house of prostitution and the adding thereto of the words, “house of ill fame,” in the instructions is not error requiring a reversal.

The case is affirmed.

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


text:
    Ex parte PEARL C. BLACK.
    No. A-6631.
    Opinion Filed June 15, 1927.
    (256 Pac. 941.)
    R. R. Rittenhouse, for petitioner.
    Edwin Dabney, Atty. Gen., for respondent.
   EDWARDS, J.

This is an original proceeding in habeas corpus filed in this court on May 31, 1927, by petitioner Pearl C. Black, in which she alleges that she is unlawfully imprisoned and restrained by Dare Goss, sheriff of Alfalfa county, Okla.; that on April 25, 1927, a complaint was filed in the county court of said county charging petitioner and one Paul Morton with the crime of robbery with firearms of the Farmers’ Bank of Jet; that thereafter a preliminary hearing was had and petitioner held for the action of the district court of said county, and bond fixed at $10,000. Petitioner alleges that there was no legal or competent evidence introduced at said preliminary hearing which would warrant the committing magistrate in holding her. A transcript of all the evidence taken at the preliminary is attached to the petition. Upon said petition, a rule to show cause was issued, and respondent, Dare Goss, filed his response setting out that he is sheriff of Alfalfa county, Okla., and holds petitioner by reason of a commitment issued by the coiunty judge of Alfalfa county, as committing magistrate. A copy of said commitment is attached to his response.

The provisions of article 5, c. 7, Comp. Stat. 1921, setting out the requirements of law and the manner in which a magistrate shall conduct a preliminary examination, were closely followed. Since this petition was presented, there has been further furnished this court, a certified copy of an information duly filed in the district court of Alfalfa county charging defendant with robbery by firearms. This information follows substantially the charge made in the complaint upon which the preliminary was had. When a preliminary examination has been had and an accused held for the action of the district court, and an information based thereon has been filed in the district court, habeas corpus may not be resorted to to test the sufficiency of the evidence adduced upon such preliminary. Ex parte Burroughs, 10 Okla. Cr. 87, 133 P. 1142. In such case the defendant may raise the question in the court where the information is pending by proper plea or motion. As this case has not yet been tried, we deem it improper to discuss the evidence adduced at the preliminary examination. We have, however, carefully read this evidence; it discloses that defendant was. not present at the time the bank was robbed, yet we think there are such circumstances shown tending to prove her connection with the robbery as a coconspirator which fully warranted the committing magistrate in his finding of sufficient cause to believe defendant guilty of the offense charged.

The writ is denied, and' petitioner remanded to the custody of .the sheriff of Alfalfa county. -

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


text:
    ISRAEL SMITH v. STATE.
    No. A-5731.
    Opinion Filed June 18, 1927.
    (256 Pac. 944.)
    J. Hugh Nolen, J. V. Crawford, and O. A. Shaw, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Ass. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Okfuskee county of the crime of manslaughter in the first degree and sentenced to serve a term of ten years in the state penitentiary.

Only one assignment of error is argued in the briefs, and the others will be deemed to have been waived. The assignment presented is that the trial court erred in permitting Tom H. Fancher, the county attorney of Hughes county, to appear and assist in the prosecution. The information was filed by the county attorney of Okfuskee county, who was in charge of the prosecution. He examined the jurors in part, read the information to the jury, and made the opening statement. In the course of qualifying the jury on their voir dire, Mr. Fancher, appearing as counsel for the state, requested permission to ask certain questions of a prospective juror; whereupon counsel for defendant filed what is entitled “Challenge,” objecting to his appearance, as follows;

“(1) That the said Tom Fancher is the duly elected, qualified, and acting county attorney of Hughes county, Okla.
“(2) That the said Tom Fancher is personally interested in the prosecution of this cause.
“(3) That the said Tom Fancher has been employed and accepted employment from private parties interested in the prosecution of this cause.”

The court thereupon conducted an examination into the grounds of the challenge. Mr. Fancher was sworn and testified, in substance, that the parties to the homicide and most of the witnesses resided in Hughes county; that he had been requested by certain citizens in his county to assist the state, and was doing so with the consent of the county attorney of Okfuskee county; that he had not been paid, had no contract for, did not expect, and had expressly declined to receive, any compensation or expenses; and that he was bearing his own expenses. One of defendant’s counsel testified that on one occasion he had heard Mr. Fancher make the statement that he was employed by Cox Bros, of Hughes county, and that he had heard one Ray Meadows make the statement that Ed Cox had stated to him that he had paid Fancher $2&0, and if a conviction was secured he would pay more. This latter testimony was hearsay, but objection to its hearsay character was expressly waived by Mr. Fancher. Upon’ this evidence, the court made a finding in effect holding the testimony of Fancher true.

It is not contended that the county attorney of Okfuskee county lost control of the case, or that Mr. Fancher was guilty of any misconduct. The contention is that the county attorney of Hughes county was engaged in private practice, contrary to the provisions of section 5744, Comp. St. 1921, which in part reads:

“The county attorney shall not engage in the private practice of law, but in addition to his annual salary, which shall be the same as that of county judge, he shall receive twenty-five per cent, of all forfeited bonds and recognizances by him collected; nor shall any county attorney, while in office, be eligible to or hold any judicial office whatever; but if the county attorney of one county shall be requested to go to another county, or from one part to another part of his county to transact any business as county attorney, he shall be paid by his county the amount of his necessary expense in transacting such business in addition to the salary. * * *”

The most that can be said to be shown by the record is that there is a conflict of evidence as to whether the county attorney of Hughes county had or was to receive compensation for assisting in the prosecution. The trial court having expressly found the testimony of Mr. Fancher on this point to be true, certainly this court, knowing Mr. Fancher and having confidence in his integrity, would not hold the contrary. It is, of course, the duty of the county attorney of Okfuskee county to appear in the courts of that county and prosecute on behalf of the state all criminal actions. Section 5741, Comp. St. 1921. Certain of these duties cannot be performed by any person other than the county attorney or some one officially representing the state; that is, they cannot be performed by a private person employed to assist the county attorney, but must be done officially. Reed v. State, 2 Okla. Cr. 589, 102 P. 1042. Hartgraves v. State, 5 Okla. Cr. 266, 114 P. 343.

It cannot be argued that, while an accused may employ the most able and talented counsel at the bar to represent him, the citizens of a community may not employ counsel, or that the court shall not permit counsel to volunteer to represent the interest of the state. The assistance of private counsel in the trial of a criminal case is not prohibited by law, and, where the county attorney as in this case properly institutes a criminal proceeding and controls the trial of the case, private counsel may properly be permitted to appear, examine witnesses, and assist in any other manner in the conduct of the trial. Reed v. State, supra; Cox v. State, 15 Okla. Cr. 133, 175 P. 264; Dunn v. State, 15 Okla. Cr. 245, 176 P. 86.

It seems to be the general rule that one on trial accused of crime cannot object to being prosecuted by a nonofficial member of the bar instead of the prosecuting attorney, particularly where there is no misconduct prejudicial to the accused. In such cases it is held that it is not a question between the prosecuting officer and the accused, but between the state and the accused. State v. Barrtlett, 105 Me. 212, 74 A. 18, 134 Am. St. Rep. 542, 24 L. R. A. (N. S.) 564, note.

Also it has been said that it is immaterial to a defendant whether or not an attorney assisting in the prosecution is to receive compensation. Bowme v. State, 55 Tex. Cr. R. 416, 116 S. W. 798. See, also, State v. O’Brien, 35 Mont. 482, 90 P. 514, 10 Ann. Cas. 1006. However, we do not deem it necessary to determine this question, since under the record Mr. Fancher was acting without compensation as a private prosecutor, assisting the county attorney of Okfuskee county, who at no time lost control of the case.

The case is affirmed.

DOYLE, P. J., concurs.

DAVENPORT, J., absent, not participating.


text:
    I. J. CLARK v. STATE.
    No. A-5914.
    Opinion Filed June 18, 1927.
    (256 Pac. 941.)
    J. Van Long, for plaintiff in error..
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Osage county on a charge of driving an automobile while intoxicated, and was sentenced to serve a term of one year in the state penitentiary and to pay a fine of $500.

The principal argument made in the brief is that the evidence is not sufficient to sustain the judgment. The evidence is somewhat conflicting, but there is ah abundance of testimony that the defendant at the time charged was intoxicated, and while so intoxicated drove his automobile at a high rate of speed along the streets of the town of Avant.

The weight of the evidence and the credibility of the witnesses was for the jury, and, in the absence of unusual circumstances, this court is not justified in disturbing their finding. No collision or damage resulted from defendant’s offense, and, upon a consideration of the whole case, we believe that substantial justice requires a modification as to the punishment.

The imprisonment is reduced to six months in the state penitentiary, and the fine reduced to the sum of $250, and, as modified, the judgment is affirmed.


text:
    C. J. NELSON v. STATE.
    No. A-5839.
    Opinion Filed June 18, 1927.
    (256 Pac. 939.)

      Ben F. Williams and Merle G. Smith, for plaintiif in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Logan county on a charge of operating a slot machine, and was sentenced to pay a fine of $25.

The information charges a violation of the provisions of section 1931, Comp. Stat. 1921, which is as follows :

“Any person who sets up, operates or conducts, or who permits to be set up, operated or conducted in or about his place of business, whether as owner, employee or agent, any slot machine for the purpose of having or allowing the same to be played by others for money, property, checks, credits, or any representative of value shall be deemed guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than twenty-five dollars, nor more than one hundred dollars; or by imprisonment in the county jail for a term of not more than thirty days, or by both such fine and imprisonment.”

A jury was waived, and the case was tried to the court. The facts are not controverted. The evidence discloses that at the time charged, the defendant had in operation in his place of business a certain Caille Bros, slot machine containing mints in packages. Any person might place a nickel in a slot of this machine, work a lever, and he would receive for the coin played one package of mints, and would in some instances, in addition to the package of mints, receive trade checks, each of the value of 5 cents in merchandise. These checks could be played in the machine for other checks. It was, however, against the rule of defendant for these checks to be played in the machine. Excerpts from the testimony disclosing the manner in which the machine operated follow. Ora F. Miller testified in part:

“* * * q yOU operate the machine that day? A. Yes, sir. Q. How did you operate it? A. I put in a nickel, pulled a lever, and I got a package of mints and four chips. Q. You received the mints? A. Yes, sir. Q. What was the value of these mints? A. Five cents. Q. And you received four chips? A. Yes, sir. Q. What was the value of the chips? A. Five cents, in mints. * * * Q. Now, Mr. Miller, what could you get for a nickel in that machine? A. Mints. Q. What did you get? A. A package of mints and four chips. Q. Then you could get more than a package of mints? A. Yes, sir. Q. You could get eight chips and a package of mints? A. I don’t know. I got four chips. Q. And what did you do to get those checks? A. They dropped from a little slot in the machine. Q. With a nickel’s worth of mints? A. No; the mints came out of one slot and the chips at another. Q. Both at the same play? A. Yes, sir. * * *”

C. R. Mize testified in part:

“* * * Q. Did you see any one operate the machine while you were there? A. Four or five operated it; yes, sir. Q. Did you try to operate it while you were there? A. No, sir. Q. Have you ever had an occasion to examine this machine or any other Caille Bros. machine? A.. Just this one. Q. Do you know of your own personal knowledge, Mr. Mize, whethér or not this machine will pay anything, other than mints? A. Yes, sir; it will pay checks. Q. How many will it pay at one time? A. I do not know the exact amount, but I have seen it pay as many as eight. Q. Do you know the value of these coupons? A. Five cents in trade. Q. Each you mean? A. Yes, sir. Q. Do you know whether or not you could place a coupon that belonged to the machine back in it and get anything? A. Nothing only more coupons. Q. Then, as I understand you, a coupon played back into the machine will not deliver a package of mints? A. No, sir. Q. But it will deliver more coupons? A. Yes, sir. * * *”

The contention is made that the statute is unconstitutional and void; that neither the public health, welfare, nor good morals bring it within the proper scope of the police power; that the statute does not prohibit the use of a slot machine as a gambling device where the operator incurs some hazard or stands to win or lose by chance, but is general in its terms, and is directed against any slot or vending machine. And, since under its terms it is made unlawful to set up any slot machine where the deposit of a coin will procure any article of merchandise such as mints, gum, matches, drinking cups, postage stamps, or any other merchandise,, the statute cannot be upheld.

We deem it unnecessary to enter into an extended discussion of the rules of statutory construction by which the constitutionality of a statute is to be determined. As we view it, the failure of the Legislature to define a slot machine as the term is used in this statute is not fatal. The use of the word “played” as employed in this statute is significant. It has a meaning akin to gaming or wagering. Thrower v. State, 117 Ga. 753, 45 S. E. 126. It is evident that a mere vending machine, by which merchandise is dispensed in a uniform quantity to each purchaser, although the price may be deposited in a slot in such machine, is not what is meant. The use of a vending machine is not unlawful. Such a machine cannot be played for money, property, checks, credits, or any representative of value as the terms are used in this statute. Under the record in this case, however, this machine did not dispense uniformly to each purchaser a package of merchandise, but in addition, would at times deliver checks capable of being played in the machine for other checks or redeemable by the operator of the machine for merchandise. The delivery of these checks not being uniform constitutes a chance or hazard under which the person playing the machine might receive value greatly in excess of the coin deposited. This makes the machine a gambling device. The fact that the indicator on the machine would show before the player deposits his coin what it would pay does not prevent it from being a. gambling device. It may be assumed that the package of mints which the machine delivered at each play is a fair commercial equivalent for the coin deposited, but the fact that, by playing the machine, there is a chance that the indicator will disclose for the next play that the player will receive, in addition to the mints, checks of considerable value in addition thereto, appeals to the gambling instinct, and the player is induced to continue by the fact that he is receiving on each play a fair equivalent to the money expended and has also the chance of winning checks greatly disproportionate to the value of the coin played. In order to gamble, it is not necessary that the player shall hazard what he plays. It is equally gambling if he may win by chance more than the value expended by him. State v. Smith, 2 Yerg. (10 Tenn.) 272, 281; State v. McTeer, 129 Tenn. 535, 167 S. W. 121.

This court, in the case of State v. Johnson, 15 Okla. Cr. 460, 177 P. 926, had occasion to consider this statute and upheld the same, citing the pertinent and enlightening cases of: Ferguson v. State, 178 Ind. 568, 99 N. E. 806, 42 L. R. A. (N. S.) 720, Ann. Cas. 1915C, 172; State v. McTeer, 129 Tenn. 535, 167 S. W. 121; State v. Googin, 117 Me. 102, 102 A. 970; Allen v. Commonwealth, 178 Ky. 250, 198 S. W. 896.

These cases and the further authorities therein cited fully sustain the rule here announced.

The case is affirmed.

D'OYÍLE, P. J., concurs.

DAVENPORT, J., absent, not participating.


text:
    FREDERICK W. CHRISTNER v. STATE.
    No. A-5699.
    Opinion Filed June 25, 1927.

    (257 Pac. 330.)

      J. B. Dudley, Chas. E. Wells, and Roy F. Lewis, for plaintiff in error.
    Edwin Dabney, Atty. Gen., Smith C. Matson, Asst. Atty. Gen. (Leon S. Hirsh, of counsel), for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the superior court of Pottawatomie county on a charge of embezzlement, and was sentenced to serve a term of four years in the state penitentiary.

The prosecution was based on section 2122, Comp. Stat. 1921. Section 2122 defines embezzlement committed by a director, officer, or employee of a corporation, and section 2124 defines embezzlement by persons in a fiduciary relation generally. A brief statement of the facts will suffice. Defendant was the secretary of the Conservative Loan & Trust Company at Shawnee, Okla., hereinafter designated the corporation, and he was the active managing officer of such corporation, which was engaged in making and marketing real estate mortgage loans. It appears that this corporation had secured, sold, and assigned to investors two loans, referred to in the evidence as the Cummings loan .and the Hutchinson loan. The Wichita Joint Stock Land Bank of Wichita, Kan., wrote to the corporation and inquired the amount necessary to take up these loans, and was informed by the corporation, in a letter signed by an assistant secretary, that the amount required was $9,188, if received by June 5, 1923. Said Wichita bank remitted this amount to the corporation by draft, which was cashed, and the proceeds deposited in the usual manner in the general fund of the corporation in which all moneys were carried. At the time this remittance was received by the corporation, it was insolvent and its account overdrawn. Soon thereafter the corporation was put in the hands of a receiver, and the moneys remitted by the bank were never applied to the purpose for which they were remitted, and were never paid to discharge the mortgages, and were a loss to the Wichita bank.

The assignments of error may be summarized as follows: First. Prejudicial statements of the trial court in the presence of the jury. Second. Errors in the instructions of the court. Third. Error in admitting evidence of other transactions, and failure' to limit the application of such évidence. Fourth. The insufficiency of the evidence.

There is some merit in each of the contentions advanced. In the course of the trial, the trial judge, in ruling upon objections, made statements verging on comments upon the facts and weight of the evidence. Also some of the instructions are subject to criticism. There was also evidence of other transactions explaining the general course of business, and the instructions did not limit the application of such evidence. It is doubtful, however, if these errors, standing alone, would require a reversal of the case. As they need not arise upon another trial, and, in view of the conclusions we have reached upon the assignment of insufficiency of the evidence, we do not deem it necessary to discuss these other assignments.

The sufficiency of the evidence to establish the guilt of defendant is challenged. Indulging in the reasonable inferences and deductions from the testimony of the witness, it may be said that the evidence shows that on June 5, 1923, and for a considerable period of time prior, defendant was secretary of the corporation, was a member of its board of directors, and was one of its active managing officers, the active head of the collection department, and had a voice in the policy and management of the corporation generally; that the money remitted by the Wichita bank to the corporation for the particular purpose of paying the two loans referred to was deposited to the credit of the corporation, and was never used for the purpose for which it was remitted. Defendant testified that he was secretary of the corporation and directed generally the collection department; that the business was of great volume, the corporation having, in addition to its main office at Shawnee, offices in Muskogee, Durant, McAlester, and Ada; that it operated in forty-five or more counties of the state, and had something like $18,000,000 of loans in force, consisting of 12,000 or 14,000 separate loans, and many cash items w'ere received and paid out daily; that a considerable part of his duties was the sale of the loans to investors such as insurance companies, institutions, brokers, savings banks, etc.; that he frequently made trips North and East for the purpose of selling loan paper, and sometimes was away as long as six months at a time; that he had no personal knowledge of the receiving by the corporation of the particular remittance upon which the charge of embezzlement is predicated, and never heard of it until after the information had been filed. Several letters and checks were introduced in evidence, but none of these were written by defendant, and no witness testified that he had personal knowledge of the transaction. The state' insists that since defendant was active in the management of the corporation and head of the collection department, and that financial statements of the condition of the company were from time to time placed on his desk, apprising him of the daily receipts, expenditures, and financial condition of the corporation, that a reasonable inference of his guilt arises, and that such evidence is sufficient to sustain the judgment.

In order to establish the crime of embezzlements, there must be evidence from which the jury may reasonably and logically find that defendant had knowledge of the receiving of this money, and that he formed an intent to misappropriate it to some use or purpose other than that for which it was remitted to the corporation; or at the least it must be shown that, under the direction of defendant, the business of the corporation was conducted and carried on for the purpose of effecting a criminal result generally, or with like knowledge was so carried on as to effect such result in the particular case. There is no claim here that the business of the corporation was conducted in an unlawful manner, nor is it suggested that the system or manner in which it was conducted was initiated by defendant, or that there ever was any criminal intent or purpose in the manner in which it was conducted. It cannot be said that defendant had an intent to misappropriate the particular money in question if he had no knowledge that the corporation had received it. If it were shown that defendant himself or some person by his direction misappropriated the moneys in question, the criminal intent might be presumed. State v. Duerksen, 8 Okla. Cr. 601, 129 P. 881, 52 L. R. A. (N. S.) 1013.

The active directing officer of a corporation'is not criminally liable for the acts of the corporation in misappropriating money intrusted to the corporation, where such acts are done by some other officer or agent of the corporation, unless they act with the knowledge and under the authority of such directing officer. In the case of State v. Carmean, 126 Iowa, 291, 102 N. W. 97, 106 Am. St. Rep. 352, where the president of a corporation was sought to be held criminally liable for the misappropriation of money received from a customer, which was misappropriated by the corporation acting by its clerks and employees, a case very similar as to state of facts to that shown by the record here, it was said:

“It is not claimed that the money which defendant is charged to have embezzled was intrusted to him personally by Roemer & Miller, or came into his hands, nor that he had any personal knowledge of its receipt, nor that he made any direction as to its disposition, nor that he derived any personal benefit from its misappropriation. Indeed, it is fully conceded that, except as defendant may be chargeable with the general conduct of the business of the company, he is in no way liable, civilly or criminally, for the failure to apply this sum of $385.50 to the payment of notes in Meickley’s hands. We come, therefore, directly to the question whether defendant can be held criminally accountable for the failure of the clerks and servants of the company to apply this sum of money in the satisfaction of the notes which it was sent to pay. * *

The court then quoted the statute, which is in substance and meaning very similar to our statute (section 2122, supra), and, continuing, said:

* * Although this section in terms provides that any officer of a corporation receiving or collecting money for the use of or belonging to another, who embezzles or fraudulently converts it to his own use, is guilty of embezzlement, nevertheless the plain purpose of the statute is to provide, with reference to the officers of corporations, that they shall be criminally liable for the fraudulent conversion of the money or property of the corporation just as agents, clerks, or servants of a private person are liable for a like fraudulent conversion of the money or property of their employers, or as any person who receives money or property for the use of and belonging to another is criminally liable for fraudulent conversion to his own use of money or property thus intrusted to him. The plain purpose of the statute is to punish those who in a fiduciary relation receive and fraudulently convert money or property intrusted to them, or which comes into their hands by virtue of such relationship. The crime of embezzlement, as generally defined by the statutes, consists essentially of the fraudulent conversion or misappropriation of property received in a fiduciary capacity. State v. Roubles, 43 La. Ann. 200, 9 So. 435, 26 Am. St. Rep. 179; U. S. v. Harper (C. C.) 33 F. 471; State v. Johnson, 49 Iowa, 141; State v. Hengen, 106 Iowa, 711, 77 N. W. 453; State v. Engle, 111 Iowa, 246, 82 N. W. 763; 2 Bishop Cr. Law, § 325. To a third person who intrusts his money to a corporation, an officer of the corporation is evidently not liable, civilly or criminally, unless by some act or neglect on his part the money is lost or misappropriated; and, in view of the concession that defendant did not, through any personal act of his, misappropriate or cause the misappropriation of the particular sum of money intrusted to the company for the payment of the notes above referred to, we are led to the inquiry, What act or omission of defendant with reference to this money was criminal? * '* *”

The court then quoted the allegations of the information, and said:

“* * * We are not referred to any authority for the proposition that the officer of a corporation, no matter how great his responsibility, is criminally liable for the acts of the corporation, performed through other officers or agents, in misappropriating money. It is no doubt true that the corporation would be liable for such misappropriation by its officers; but there seems to be no reason for holding that one officer is to be held criminally accountable for the acts of another officer, nor for the acts of subordinates, unless such acts are by his direct authority and in the execution of a criminal purpose on his part. The officer cannot be criminally liable for the acts of his subordinates in a greater measure than a' principal is criminally liable for the acts of his agents or servants, and it is well settled that a principal is not thus liable for the acts of his agent or servant, even though done in the general course of the employment, unless they are directly authorized or consented to by him; for the authority to do a criminal act will not be presumed, * * *” — citing authorities.

From an examination of the evidence adduced, it is not made to appear that defendant had any personal part in the misappropriation of the moneys in question, nor that he directed or authorized the misappropriation, nor that he had personal knowledge that it was received by the corporation, either actually or constructively, nor that the conduct of the business of the corporation in its essential characteristics was illegal, or was devised or carried on for the purpose of effecting a criminal result, either generally or in the particular case. There is a failure to prove knowledge or any affirmance act on the part of defendant or any intent to misappropriate the money in question.

For the reasons assigned, the case is reversed and remanded.

DOYLE, P. J., concurs.

DAVIENPORT, J., absent, not participating.