text:
    ALICE SMITH v. STATE.
    No. A-8745.
    Dec. 14, 1934.
    (38 Pac. [2d] 591.)

      G. H. Montgomery and J. N. Fortner, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of manslaughter in the first degree, and sentenced to imprisonment in the state penitentiary for a'period of five years.

The testimony on behalf of the state in substance is that the deceased was the husband of the defendant. They were living together as husband and wife at the time of the killing. The day prior to the killing, defendant attended the State Fair at Dallas, Tex., and returned home the early morning of the day of the difficulty. When defendant returned home, her husband was not there. She went to bed and slept until about 10 o’clock in the morning, and' got up and prepared the noon meal, but her husband did not come home at noon. About the middle of the afternoon the defendant started out and found him at the home of Robert Lee, where he was engaged in a. card game, and showed evidence of being intoxicated. The defendant asked him to go home with her, and he replied that he would when the game was over. When the game was over, the deceased went with defendant to' their home. The record shows that at the time of the difficulty the deceased and defendant were on a side street about a block and a half from their home. No one was present when the deceased and the defendant reached the shade tree where .the difficulty took place. The defendant in her testimony states, when they got near the corner of the street, near the shade tree, the deceased told her before he would go home with her he would break her damn neck:

“And he commenced to choke me. I had his knife, his watch, and everything., It was a little knife with a spring. I commenced jiggering at him. I did not think I would kill him. I stabbed him because he was choking me, and I thought he would kill me the way he was choking me; I struck him twice, the first time he tightened his grip, and the second time he turned me loose. When he turned me loose, he said he Avas going to the doctor, and when he started I followed on behind him.”

The testimony further shows the defendant went in the car in Avhich the deceased was riding to the doctor’s residence. The doctor was not at home and they came back to- his office. While the deceased was being dressed, defendant came to the door, and deceased objected and got hold of a glass and was going to try to hit her with it.

The state introduced by Willie Smith, over the objection of the defendant, Avhat Avas termed a dying declaration or statement of the deceased as to what occurred. He stated:

“Louie Smith was my brother; he was at my father’s-house when he died; he died about six days after he was cut; I was with him all the time. My brother said ‘she got me this time,’ and I asked him who got him; he said he was not going to live all the time — he Avould say he wasn’t going to live. This statement was after he was cut. The night he died, about one or two hours before he died, he made a statement as to how it happened. He said he was on his way home, and she wanted him to go to the house, and he did not want to go, he wanted to go to my house; he had not been to my house for a day or two and was on the way to my house. He further stated he wanted the defendant to go on home, he didn’t want to go but she carried him on, he being drunk he could not protect himself. She caught hold of him and stabbed him. I asked him who was around there, and he said nobody. He said before she stabbed him he had said he was going to quit, and she said before she would have him quit her she would kill him.”

The deceased further in the statement said he had Dr. Moreland call the law and lock her up; that she was the last one to come in to the office and they were about to fight. The foregoing is all the testimony that is deemed necessary to set forth in this opinion.

The defendant has assigned 10 errors alleged to have been committed by the court upon which she relies for a reversal. The defendant, discussing her first assignment, contends the court erred in interrupting counsel for the defendant in his opening statement toi the jury while he was stating the circumstances that transpired between the defendant and deceased at the home of Bobert Lee a short time before the fatal difficulty, that such remarks of the court were highly prejudicial to the rights of the defendant, and were duly excepted to' by her. In presenting her argument upon the first assignment, the defendant insists that the court, when impaneling the jurors for the term, made remarks highly prejudicial to the rights of this defendant and any other defendants who were to be tried at the term of court, when the court stated to the panel, “some jurors think they must be absolutely certain the defendant is guilty. That is not true, if you are reasonably certain the defendant is guilty, that is sufficient.”

As shown by the record, the first time this question was raised was in the motion of the defendant for a new trial. The remarks of the court, complained of by the defendant, do not under section 3120, O. S. 1931, constitute grounds for a new trial in a criminal case. Subdivisión 5 of the section is as follows:

“When the court has misdirected the jury in a matter of law, or has erred in the decision of any question of law arising during, the course of the trial.”

This subdivision relates to the trial jury in the case, and does not relate to the entire panel of jurors that may have been summoned for the term of court in which the defendant was tried. There is nothing in the record to show that the remarks of the court prejudiced the rights of this defendant. We have carefully examined the remarks of the court, and we hold it does not constitute a ground of challenge to the entire panel. The record fails to show there was any challenge to the panel or there was any voir dire examination of an individual juror inserted in the record. There is nothing to show that the jurors in this case heard the remarks of the court complained of by the defendant.

We have carefully examined the remarks of the court when it interrupted counsel for defendant while making his opening statement to the jury, and we hold the remarks made by the court did not prejudice the rights of the defendant or prevent her having a fair and impartial trial.

It is next contended by the defendant that the trial court erred in admitting the purported dying declaration or statement made by the deceased to his brother a short time before tbe deceased died. The defendant insists and argues at length that this testimony of the witness Willie Smith, the brother of the deceased, as to the dying declaration, was inadmissible and prejudiced the rights of the defendant and prevented her from having a fair and impartial trial, and that it was incompetent, and that her objection to the introduction of the dying declaration should have been sustained.

Tbe defendant in her argument as to the admissibility of the testimony of Willie Smith as to the dying declaration of the deceased contends that a proper and sufficient predicate was not laid to justify the court in admitting the statements of the witness Willie Smith as to the declaration made to him by the deceased a short while before his death.

The question of the admissibility of the dying declaration is primarily a question for the court. When a dying declaration is offered in evidence, the court should require the necessary preliminary proof of its admissibility in the absence of the jury, but, where no objection is made to the preliminary proof being made in the presence and hearing of the jury, its submission to the jury in that manner, if otherwise competent, is not prejudicial. In this case no objection was made to the testimony being offered in the presence of the jury before its admissibility was passed upon by the court. The question here to be determined is the question as to whether or not the state offered competent testimony showing the testimony of the witness to be such as was admissible under the law as a dying declaration.

To warrant the admissibility of the statément as a dying declaration, it is not essential that there be an expressed declaration that the declarant is going to die, or that he is without hope of recovery. It is sufficient if it satisfactorily appears that the deceased believed he could not survive, whether it be directly proven by expressed language or be inferred by his evident danger, or from his conduct. The statement of the witness Willie Smith shows that the deceased stated he was not. going to live; that for some time prior to the time of his death he continued to state she got him and that he was not going to recover.

We hold that the statement of the witness was sufficient to show that the deceased realized he could not recover, and that his testimony was admissible. Hawkins v. United States, 3 Okla. Cr. 651, 108 Pac. 561; Blair v. State, 4 Okla. Cr. 359, 111 Pac. 1003; Offitt v. State, 5 Okla. Cr. 48, 55, 113 Pac. 554; Updike v. State, 2 Okla. Cr. 124, 130 Pac. 1107; Hawkins v. State, 11 Okla. Cr. 73, 142 Pac. 1093; Poling v. State, 12 Okla. Cr. 27, 151 Pac. 895, Ann. Cas. 1918E, 663; Allen v. State, 16 Okla. Cr. 136, 180 Pac. 564; Elliott v. State, 18 Okla. Cr. 230, 194 Pac. 267; Beason v. State, 18 Okla. Cr. 388, 195 Pac. 792; Sanders v. State, 36 Okla. Cr. 120, 252 Pac. 855; McClendon et al. v. State, 36 Okla Cr. 11, 251 Pac. 515.

There is a sharp conflict in the testimony. The deceased in his dying, statement stated when the trouble occurred the defendant wanted him to go home; that he did not want to go home, but wanted to go to his brother’s; that he told the defendant they were going to quit, and defendant stated that before she would have him leave her she would kill him, and then stabbed him with the knife. The defendant stated she came from home to town looking for the deceased, and found him at a neighbor’s home where they were playing cards; that she started home with the deceased, and, when they got near their home, on the comer of the street where there was a large shade tree, the deceased grabbed her by the throat and began to choke her, and, in order to keep him from choking her to death, she struck him with the knife. If the dying statement of the deceased is true, there was sufficient testimony to convict the defendant. The statement of the defendant makes out a clear case of self-defense. This court has often held that conflicting issues of fact are for the sole determination of the jury and that a conviction will not be disturbed on appeal because of a sharp conflict in the evidence if the evidence adduced reasonably tends to support the verdict and judgment. Richards v. State, 22 Okla. Cr. 329, 211 Pac. 515; Campbell v. State, 23 Okla. Cr. 250, 214 Pac. 738.

It is apparent from the record that the jury believed the testimony of the state and reached a conclusion that the defendant was not justified in cutting the deceased with the knife. The jury, after having reached the conclusion that the defendant was guilty, was reasonable in assessing the punishment.

We have carefully examined the record, and find that the defendant was accorded a fair and impartial trial; that the court correctly advised the jury as to the law applicable to the facts; that no prejudicial errors appear in the record. The judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    BEECHER DURHAM v. STATE.
    No. A-8786.
    Dec. 14, 1934.
    (39 Pac. [2d] 1119.)

      H. S. McArthur and Luther Lane, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson and J. H. Lawson, Asst. Attys. Gen., for the State.
   PER CURIAM.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county of second degreej burglary and sentenced to serve seven years in the state penitentiary.

The record in this case has been carefully examined. We have no doubt of defendant’s guilt, and we find no material error.

Under the evidence, however, we find the maximum punishment is excessive.

The sentence is therefore reduced to four years.


author: DAVENPORT, J.

text:
    LEE RYALS v. STATE.
    No. A-8746.
    Dec. 21, 1934.
    (39 Pac. [2d] 159.)

      Guy Green and Bridges & Ivy, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was by information charged with murder, was tried and convicted of manslaughter in the first degree, and sentenced to' imprisonment in the state penitentiary for a term of six years.

The following is a brief abstract of the testimony which shows that the plaintiff in error and the deceased, Wallace Foster, were brothers-in-law; their wives being sisters. Both, at the time of the difficulty, lived in the town of Hastings, in Jefferson county, Okla. For many years the relationship of the brothers-in-law was cordial, until about a year prior to the time of the difficulty. The wife of the deceased filed suit for divorce and secured a restraining order from the court prohibiting the deceased from in any manner interfering with her in the possession, occupancy, and control of certain property, including the residence, pending the outcome of the divorce. The day of the difficulty deceased went to his home where he had been restrained from interfering with his wife who was seeking a divorce, and went upon the porch of the house in which she was living; the wife of the defendant and her mother were also at the home. The deceased was advised to leave and a conversation took place between the deceased and the wife of the defendant. During the time the deceased was on the porch trying to get them to let him come into' the house, his wife went out the back door and rushed up to the telephone office, a short distance away, and phoned the sheriff’s office to come and get him. She called the defendant, who was the owner and operator of a filling station a short distance from the telephone office, and told him to go to her home at once, the deceased was down at the house. From the telephone office or street near the office the deceased could be seen on the porch of his home where his wife was living.

The defendant joined the wife of the deceased on the sidewalk near the telephone office, and together they started down to the house. There is some testimony tending to show that the wife of the deceased called to Jack Ogletree and told him to stay at the filling station. From this point in the testimony until after the killing the testimony is in direct conflict as to what took place. It is shown that, about the time the defendant and the wife of the deceased started toward her home, the deceased turned and left the porch and started back up the sidewalk. The parties met and passed each other on the walk near what is mentioned in the evidence as a billboard. The testimony on behalf of the state shows that the wife of the deceased waved her hand or shook her hand at the deceased just as she passed him, and that deceased turned, and defendant turned and came back. It is further shown that the deceased struck the defendant on the head and nearly knocked him down, and defendant then pulled a pistol and began to shoot. The state’s testimony shows when the deceased and defendant turned facing each other the defendant drew his pistol and deceased threw out both hands like he was trying to grab the pistol, when the defendant began to shoot and continued to fire his pistol until deceased fell. ■ The testimony further shows that by the time the shooting ceased and deceased fell, Jack Ogletree, who was also his brother-in-law, started across the street with a shotgun in his hand, and said, “I am going down and finish the son of a bitch.”

The testimony of the state shows that the deceased was unarmed, and they did not see him strike the defendant before he began shooting. The defendant and deceased were scuffling, and, so far as the eyewitnesses could tell, the deceased was trying to get hold of the pistol of the defendant and continued to scuffle until he fell mortally wounded. Considerable testimony was introduced by the defendant to show previous threats against his life and the life of his wife, and that they believed the deceased had gone down to the house that morning to do bodily harm to the wife of the defendant. Some of the threats are shown by the witnesses to have been communicated to the defendant and some had not. It is conclusively shown by the testimony that the deceased was unarmed and had left the home where his wife, her sister, and her mother were, without trying to do any of them an injury, although the testimony of the parties insists that he threatened to do them an injury before he turned away and left the house. The record indicates that it was a family row; the wife of the defendant was responsible for antagonizing the deceased and trying to keep his wife from talking to him; that his enmity had extended to the defendant, to the mother of the wife of the deceased, and her brother.

The defendant has assigned eight errors alleged to have been committed by the trial court which he believes sufficient to warrant this court in reversing this case and granting him a new trial. The first assignment is that the court erred in overruling the defendant’s motion for a new trial. The motion for a new trial includes all the other errors assigned, and for that reason the questions raised in his motion and argued by the defendant will be considered together.

The defendant has discussed the question of the admissibility of the statement attributed to Jack Ogletree, a brother-in-law of the deceased, wherein it was stated immediately after the shooting of Foster by the defendant that Ogletree came out of the garage, with a shotgun in his hand, and stated: “Man couldn’t have any peace around here, I will finish the son of a bitch.” The record shows that Jack Ogletree was in the garage with the defendant when the wife of the deceased called the defendant to go down to the house quick, and that the wife stated to Jack, “You stay at the garage.” Mrs. Foster and the defendant then started down to the house and met the deceased when the shooting took place. The statement attributed to Ogletree occurred a few seconds after the shooting, and the request of Mrs. Foster that Ogletree remain at the garage was only a few seconds before the shooting. The defendant cites, in support of his contention, Thompson v. State, 6 Okla. Cr. 50, 117 Pac. 216. An examination of this case clearly shows that the facts under consideration in the Thompson Case are very different and cannot be construed to apply to this case.

The call by Mrs. Foster to the defendant at the garage, his response by hurrying toward the house, and the request of Mrs. Foster that Jack Ogletree remain at the garage, and Ogletree’s action in immediately starting toward the scene of the trouble with a shotgun, and the statement made by him so near the time of the homicide, would be a part of the res gestae.

In Price v. State, 1 Okla. Cr. 358, 98 Pac. 447, in the second paragraph of the syllabus, the court said:

“Declarations, to be a part of the ‘res gestae,’ need not be precisely coincident in point of time with the principal fact. If they spring out of it, shed light upon and tend to explain it, are voluntary and spontaneous, and are made at a time so near it as to preclude the idea of deliberation and fabrication, then they are to be regarded as contemporaneous, and are admissible as evidence.”
“In order to constitute declarations a part of the res gestae, it is not necessary thta they were precisely coincident in point of time with the principal fact.” Borden v. State, 36 Okla. Cr. 69, 252 Pac. 446.

In People v. Jones, 160 Cal. 358, 117 Pac. 176, the court, in the first paragraph of the syllabus, said:

“In the midst of an affray and just before the killing of K., he having, at the direction of another, been turned loose by the person who had grabbed and held him, as he was coming through the crowd, what the person said in giving the direction was admissible as res gestae, even though not said in defendant’s presence.”

The acts and conduct of the defendant and Jack Ogle-tree for some time prior to the moment of the difficulty and immediately thereafter show conclusively that they were both interested and had taken sides with the wife of the deceased. The court did not err in permitting the jury to receive the testimony concerning Ogletree’s statement. Jack Ogletree did not testify in the case.

The next question argued by the defendant is the question of the refusal of the court to give a special instruction requested by the defendant; the closing part of the instruction being:

■ “On the other hand, if after a full and fair consideration of all the evidence in the case you believe beyond a reasonable doubt that the defendant is guilty then his previous good character cannot avail, and you should find the defendant guilty notwithstanding his previous good character. But in the event you should so find, then you may take into consideration his previous good character in mitigation of punishment.”

This question has been before this court many times. The portion of the instruction quoted herein was proper, and the court should have given the same, but under the decisions referred to by the defendant a failure to give this instruction was not sufficient to reverse the case. It is shown by the record that the punishment imposed upon the defendant was six years — ai very light sentence. The jury had all the facts concerning the character of the defendant before it, and must have considered the character of the defendant in fixing its punishment. The court did not err in refusing to give the instruction requested.

There are other errors assigned by the defendant touching the question of the admissibility of testimony and the instructions of the court. The instructions of the court, when considered in their entirety, correctly stated the law applicable to the facts. The record has been carefully examined, and the court finds a decisive conflict in the evidence. This court has universally held that, where there was any competent testimony upon which to base the verdict of the jury, this court would not disturb the verdict on the ground of the insufficiency of the testimony.

The defendant was accorded a fair and impartial trial. There are no errors in the record warranting a reversal.

Th judgment and sentence of the trial court is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


author: CHAPPELL, J. DAVENPORT, J.

text:
    GEORGE NORTON et al. v. STATE.
    No. A-8529.
    Dec. 21, 1934.
    (39 Pac. [2d] 162.)
    T. J. Hinshaw, and Jack W. Page, for plaintiffs in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiffs in error, George Norton and Jim Norton,, were convicted in the district court of Cleveland county of the crime of murder in the killing of Pat Urkheart, and the punishment of each fixed by the jury at imprisonment in the state penitentiary for life.

The evidence of the state was that Jim Norton, who was about 56 years of age, was the father of George Norton, who was 17 years of age; that the Nortons lived in a house upon some premises which deceased claimed to have rented; that defendants at about 6 o’clock in the evening had gone to the home of one B. Scott nearby and borrowed a No. 10 gauge shotgun, as they said, to kill rabbits with; that as they reached their home deceased called to George Norton and wanted to talk to him; that the Nortons went on in the house, and as deceased approached the porch George Norton fired the gun, a load of shot striking deceased about three inches below the right nipple; that Jim Norton was in the room with George when the shot was fired; that deceased immediately fled from the scene and fell a short distance from the house and died in a few minutes, after making a statement that George Norton had shot him; that the Nortons were arrested about midnight and taken to the county jail; that the officers found the gun at the home of George Norton’s cousin; that the next day George Norton told the officers he traded for the gun about two years ago, in the eastern part of the state, and kept it about the house to shoot rabbits with; that he always loaded the gun in the evening and set it by the wash stand, and that he did so on that evening; that later in the day Jim Norton told the officers they had had the gun about three months, but when the officers told him they knew who owned the gun and where they got it, he admitted they borrowed it from Scott and said they were expecting trouble with Urkheart and got the gun and aimed to use it on him if he tried to put them off the place; that later in the day George Norton made the same admissions and practically the same statements.

Defendants testifying for themselves said that deceased approached the house cursing and threatening to kill them; that he pulled a pistol from his hip pocket and threatened to shoot them; and that George fired the.fatal shot in self-defense.

In rebuttal the state showed by the officers that no pistol was found on deceased nor about the premises; that the coveralls deceased wore had no hip pockets; that the ground where deceased stood was about fourteen inches lower than the porch; that deceased was not on the porch but out in the yard; and that the shots which killed him ranged downward, showing that the one who did the killing had stood much higher than deceased.

In the oral argument in this court, counsel for George Norton admitted the evidence was sufficient to sustain the verdict of the jury as to him, but contended in the argument, and now contend in their brief, that it was wholly insufficient to sustain a conviction as against Jim Norton.

The existence of a conspiracy in any particular case is an inference to be drawn by the jury from all the facts and circumstances in evidence. The state may either prove the conspiracy which renders the acts of the conspirators admissible evidence, or it may prove the acts of the defendants, and thus prove conspiracy. From evidence proving that two or more persons aided by their acts toward the accomplishment of the same unlawful object, each doing a part, so that their acts, though apparently independent, were in fact connected and co-operative, indicating a closeness of personal association and a concurrence of sentiment, a conspiracy may be inferred, though no actual meeting among them to concert means is proved. The details of a conspiracy need not be proved.

When in a criminal case the inference of guilt can be reasonably drawn from the evidence, this court will not interfere with the verdict on the ground of want of evidence to sustain it. There is a direct conflict in the testimony for the state and that for the defense. Upon the testimony of appellants and their witnesses the jury could have acquitted them. On the other hand, the testimony on the part of the state if credited, as it was, was amply sufficient to sustain the conviction. It appears from all the evidence in the case that defendants were acting in concert and with a common purpose and intent in the commission of the offense charged.

It is, next contended the trial court erred in overruling the challenge for cause of the prospective juror Rushing.

The entire examination of the juror on his voir dire does not appear in the case-made, but enough of the examination does appear to show that the juror had never talked with any witness in the case nor with any person who pretended to know any of the facts surrounding, the killing. He had some impression as to the guilt or innocence of the defendants from reading newspaper reports, but said he had no opinion at that time as to what should be done in the case, and that the opinion he had from reading the newspapers would yield to evidence.

The action of the trial court on a question of this kind is largely one of discretion, and there must appear a manifest abuse of such discretion before the court will set aside a verdict, even if it were shown that the juror sat in the trial of the case, which does not appear in this instance. This rule is supported by: Turner v. State, 4 Okla. Cr. 164, 111 Pac. 988; Gentry v. State, 11 Okla. Cr. 355, 146 Pac. 719; Agent v. State, 18 Okla. Cr. 282, 194 Pac. 233; Harper v. State, 20 Okla. Cr. 43, 200 Pac. 879; Littrell v. State, 21 Okla. Cr. 467, 208 Pac. 1048.

There is another reason why there is no merit in this contention. There is nothing, in this record to show that by the overruling of this challenge defendants failed to get a fair and impartial jury. If they did get a fair and impartial jury, that was all they were entitled to, as they had no vested right to have any particular juror sit in the trial of the case until after the jury had been sworn. Coatney v. State, 52 Okla. Cr. 70, 2 Pac. (2d) 604.

There is still another reason why there is no merit in this contention. The record does not show that defendants exercised all of their peremptory challenges.

In Davis v. State, 53 Okla. Cr. 411, 12 Pac. (2d) 555, this court said:

“Even though the trial court may improperly overrule a challenge for cause and the challenged juror permitted to sit on the panel, if it appears that defendant did not exhaust all of his peremptory challenges the error is waived.”

So, viewed from any angle, .there is no merit in defendants’ contention.

No sufficient reason for reversal appearing, the cause is affirmed as to.each of the defendants.

EDWARDS, P. J., concurs.

DAVENPORT, J.

(dissenting). After having carefully read and studied the record in this case, I cannot give my approval and concur in the opinion of the majority of the court, for the reason that I do not believe the evidence and the law are sufficient to sustain the conviction as here presented.

The following is a brief abstract of the testimony as presented to the court and jury: The deceased, Pat Urkheart, lived in the neighborhood where the defendant Jim Norton, his wife, and son were living; Urkheart claimed to have gotten control of the house in which the Nortons were living; George Norton, at the time of the difficulty, was 17 years of age, the son of Jim Norton. Prior to the date of the trouble the deceased and George Norton had some trouble about some work, and the deceased had demanded that the Nortons move from the house in which they were living. The deceased told George Norton if the Nortons did not move he would put them out. The defendant had performed considerable work for deceased in order to be permitted to occupy the house; just prior to the date of the trouble, at a hay baler, in the presence of a number of witnesses, the deceased demanded that George Norton work for him at the hay baler and George refused. In the controversy he threatened to stomp young Norton and advised him that the Norton family must get out of the house, and the boy told him to talk with his father. When, George Norton requested the deceased to talk with his father about moving from the place, the deceased replied in substance that he had always talked with George. It is clear from the record that the deceased did not desire to discuss the question of the Norton family moving with the father, but selected the boy to malee his demands to move and threats as to what he would do if the family did not move.

It is further disclosed by the evidence of the defendant George Norton that on Saturday, prior to the date of the trouble on the 9th of August, 1933, deceased came to the home of the Nortons, and George says the deceased advised us he was going to visit his mother and that he had better be out by the time he came back; that if we did not move he would move us then without going to law. Deceased displayed a pistol and said: “This is what I will move you with without going to law.”

The record further shows that on the date of the killing, some time in the afternoon, the defendant George Norton and his father, Jim Norton, went to the home of B. Scott, and George borrowed a shotgun to go rabbit hunting; the defendants left the Scott home some time in the afternoon and hunted rabbits for some time and started home; as they neared their home they saw the deceased, Pat Urkheart; he called to the defendant George Norton and asked him to come over to where he was; George refused to go; both defendants went on to their home and went into the house; when the defendant George Norton refused to go to the deceased and went on to the house, the defendant George Norton says the deceased followed them, cursing and abusing' him, and threatened to do some kind of violence to the family; he requested the deceased to go away and he refused to do so, and came up to the edge of the porch and started to step upon the porch; at the time the deceased had a pistol in his hand; as the deceased was stepping upon or near the porch, the defendant George Norton fired the fatal shot.

The evidence shows that at the time the shot was fired the father, Jim Norton, was in the house and did not know what his son George intended to do. He had not consulted with him and had not advised him to use any violence toward the deceased. George testified he was afraid of the deceased; that deceased had abused him on one or more occasions, and was coming upon the porch, or had just stepped upon the porch, and threatened to kill the whole family. The testimony clearly shows that the defendants in this case were very poor people who had been working from place to place for the neighbors for any price they could get, sometimes working as cheap as 25 cents per day; that the deceased claimed to have control of the premises and became very angry at the defendant George Norton because he would not help do his work for nothing.

The deceased seemed to be angry because the Nortons would not continue to work for him at his will, or move when he decided they must move. The testimony shows that defendants were very poor, having no property and working by the day to earn a living for themselves and the mother of George Norton; they were in possession of the premises, and while occupying said premises were entitled to protect themselves against the deceased doing them bodily harm.

R. A. See, a witness for the state, who was the father-in-law of deceased, testified he was at the home of deceased and could see the home of the defendants, which was more than one hundred yards away; he heard a shot and looked toward the Norton home and saw the deceased throw up his hand and turn and leave the Norton home; at the time he saw the deceased, after he heard the shot, it looked like deceased was a short distance from the porch; when the deceased' got near his home, Mr. See says he talked to him and deceased said: “George did it, I know who did it.”

The testimony further shows that when the defendants surrendered near the Ellis home they advised Mr. Ellis what had happened; they stated George had shot Mr. Urkheart. All of the testimony clearly shows the shot was fired by George Norton. The theory of the state seems to be that the defendants, Jim and George Norton, had entered into a conspiracy to take the life of the deceased. The only facts shown by the record against Jim Norton are that he was with his son, George, when he borrowed the gun from Mr. Scott; that he was with him when the trouble occurred between George and the deceased. Jim Norton says that when Mr. Urkheart commenced talking and abusing them that he went into' the house and did not know what George was going to do, and had not advised him to do the deceased any harm; that he went in the house to keep from having any trouble with the deceased, Urkheart, and when he heard the ■ gun fire he looked and saw Mr. Urkheart on the porch, or near it. The record further discloses that the state, through its officers, had the defendants separated and brought before the county attorney and sheriff for the purpose of trying to secure a confession from the defendants. One of the deputies, Ivan Kennedy, after admitting they had the defendant Jim Norton brought out of the jail to try to get him to give his version of the trouble, stated that Jim Norton told them the gun was borrowed because the defendants expected trouble with Urkheart. The defendants were in custody at the time, and the record fails to show they were advised by either the sheriff or county attorey that any statement they made might be used against them.

All of the circumstances and statements made by either of the defendants from the time of the shooting up to the time of the trial clearly contradict and show that the statements testified to by Kennedy are false and untrue. The defendants were entitled to a fair and impartial trial and should have been advised of their rights, and it was improper and unfair to the defendants, or either of them, to take them from the jail to the private office and there try to force from the defendants statements with reference to the difficulty, and to try to contradict the statements previously made by the defendants. Jim Norton, one of the defendants, emphatically denies that he made the statement testified to by the witness Kennedy. George Norton testified he borrowed the gun for the purpose of hunting rabbits; that he had not consulted his father regarding the Urkheart matter, and corroborated his father on the question of there being a pistol in their home at the time of the trouble.

Keeping in mind the fact that George Norton was a boy 17 years of age, and Jim Norton was his father, the state has failed to prove sufficient facts to show a conspiracy. Considering the youth of George Norton, it does •not stand to reason that if a conspiracy had been entered into between the defendants to do harm to the deceased that the father would have trusted George to use the gun, but would have used it himself.

The defendants assign several errors alleged to have been committed by the trial court. First, the defendants alleged that the court erred in overruling their motion for a new trial. This assignment will be considered in connection with the sixth assignment, as to the defendant Jim Norton. The sixth assignment being:

“The court erred in overruling the motion of the defendant Jim Norton for a directed verdict of not guilty, made at the close of all the evidence.”

The defendant Jim Norton urges that the evidence is wholly insufficient to justify the jury in returning a verdict against him, and that the evidence wholly fails to connect him in any manner whatsoever with the killing. The theory of the state seems to be that a conspiracy existed between the said George Norton and Jim Norton to take the life of the deceased, as it is not- disputed that George is the one that fired the shot, and George in his evidence details at length the circumstances at the time the shot was fired, and what had taken place.

Section 1808, Okla. Statutes 1931, is as follows:

“All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals.”

To constitute one a party to the crime under section 1808, it is necessary that such person be concerned in the commission of the offense; that is, that he either commit the act, or aid or abet in its commission. It is not sufficient that the party merely acquiesced therein. Consenting and acquiescing are mere mental acts, which unless communicated to the perpetrator of the offense in no manner aid or abet him in its perpetration.

I think the testimony fails to show or connect the defendant Jim Norton with any act concerned in the commission of the crime or that he procured it to be done, or aided, assisted, abetted, advised, or encouraged its commission. Nor is there any testimony showing he took any part in the commission of the crime, gave counsel, or entered any word of encouragement to the defendant George Norton, who killed the deceased. The testimony clearly shows that the defendant Jim Norton did not know what the defendant George Norton was doing or going to do.

A careful examination of the evidence in this case convinces the court that the same is wholly insufficient to sustain the conviction of Jim Norton, and that it would be a miscarriage of justice to permit this conviction to stand, in view of the fact there is no competent evidence of an incriminating nature sufficient to sustain the judgment. Moore et al. v. State, 4 Okla. Cr. 212, 111 Pac. 822; Thompson v. State, 14 Okla. Cr. 209, 116 Pac. 1125; Carrico v. State, 16 Okla. Cr. 119, 180 Pac. 870.

The next question to be considered by the court is the question, urged by the defendant George Norton, that his motion for a directed verdict of not guilty should have been sustained. The killing being admitted by George Norton, the question is: Was it justifiable? George Norton insists he fired in his necessary self-defense to prevent the deceased from doing him or his parents great bodily harm. It is disclosed by the testimony that George Norton, a boy of 17 years of age, was living with his father and mother in' a house near the residence of the deceased; that deceased claimed to have the renting and control of the house in which the Nortons lived. It is further shown that the Nortons recognized the right of the deceased and had been working for the deceased for a nominal sum, and working in the country for different parties for any price they could get, often as low as 25 cents per day.

It is further disclosed that the deceased demanded of George Norton that they leave the premises, and just prior to the date of the trouble, at a hay baler where other parties were present, demanded that George Norton work for him at the hay baler, and George refused. In the controversy he threatened to stomp George and advised him that the Norton family must get out of the house, and George told the deceased to talk to his father. The deceased in substance replied: “I have always talked with you.” It is clearly shown that the deceased had no< desire to discuss the question of the Norton family moving, with the father, but preferred to talk to this 17 year old boy, George.

It is further shown that on Saturday, prior to the date of the trouble the 9th of August, 19B2, deceased came to the home of the Nortons and told George he was going to visit his mother, and that the Norton family had better be out of the house by the time he came back; that if they did not move he would get them out without going to law, and George said he displayed a pistol, saying: “This is what I will move you with without going to law.”

It is further shown the only controversy between the. defendant George Norton and the deceased, prior to the day of the killing, was when the deceased abused George and threatened to stomp him, and threatened vengeance against the Norton family because George refused to work for the deceased at the hay baler. A great deal of enmity had been aroused between George Norton and the deceased. The boy ivas young and expected trouble with deceased every time they met. In the evening, and a few hours prior to the killing, George Norton went to Mr. A. Scott’s home and borrowed a shotgun. George says he borrowed the gun for the purpose of hunting rabbits, and that he was accompanied by his father, and they did hunt rabbits for some time before returning home. He denies he borrowed the gun for the purpose of doing an injury to the deceased.

The testimony shows when the defendant George Norton and his father got near their home they saw the deceased under a shade tree; when they got near the house the deceased called to George and asked him to come to him; George refused to do so and went on toward the house, and deceased advanced toward the house; just what took place at the time and before the shot was fired no one but George Norton knows. George says deceased was abusing, and cursing his family, and threatening to do them harm, and that deceased advanced to the porch and started to step on the porch, or had stepped on the porch, and that deceased at that time had a pistol in his hand, and he fired the shot that took the life of the deceased as he was afraid of him and believed he intended to do them great bodily harm or take the life of himself and his family.

R. A. ,See, father-in-law of the deceased, Pat Urkheart, stated he was at the home of the deceased; he heard a shot and looked toward the Norton home, which was about one hundred yards from where he was, and saw the deceased Pat Urkheart throw up his hand and turn and run towards his home; the deceased fell near his mail box, and when the witness spoke to deceased he said: “I know who shot me, George did it.”

The defendant George Norton testified that at the time he shot the deceased the deceased had taken a pistol from his pocket and was holding it in his hand. To contradict the statement of the defendant George Norton, the state called a witness to show that at the time of the difficulty the deceased was wearing a pair of overalls, and that the overalls worn by the deceased did not have a hip pocket. The defendant George Norton in his testimony states positively that his father knew nothing about what took place between him and the deceased just prior to the time he shot the deceased; that prior to the time of their returning to their home the defendant Jim Norton had not advised or encouraged him in doing any violence to the deceased; that he did not have any conversation with his father after they returned home prior to the time of the fatal difficulty; that he was afraid of the deceased, and believed at the time the deceased came to the porch he intended to carry out the threats he had made; and that he fired the shot to protect the life of himself or family, or to keep them from receiving great bodily harm at the hands of the deceased.

Under all the testimony presented the case was submitted to the jury, under the instructions of the court, and a verdict of murder imposing a life sentence was returned. It is urged by the defendant George Norton that the testimony is insufficient to sustain a conviction of murder. The question as to whether or not the testimony is sufficient to sustain a conviction of murder is the only question presented by the defendant George Norton that the court deems necessary to consider.

Section 2216, Okla. Stats. 1931, defines “murder” as follows:

“First. When perpetrated without authority of law, and with a premeditated design to effect the death of the person killed, or of any other human being.
“Second. When perpetrated by any act imminently dangerous to others and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual.
“Third. When perpetrated without any design to effect death by a person engaged in the commission of any felony.”
Section 2223, Okla. Stats. 1931, defines “manslaughter in the first degree”:
“First. When perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor.
“Second. When perpetrated without a design to effect death, and in a heat of passion, but in a cruel and. unusual manner, or by means of a dangerous weapon; unless it is committed under such circumstances as constitute excusable or justifiable homicide.
“Third. When perpetrated unnecessarily either while resisting an attempt by the person killed to commit a crime, or after such attempt shall have failed.”

The theory of the state is that there was a conspiracy between the defendants, George and Jim IS orton, to take the life of Pat Urkheart, and that in carrying out that conspiracy George, this boy of 17 years, shot deceased. After reviewing the circumstances and carefully considering all the competent testimony in the record, I cannot agree with the contention of the state. The fact that George Norton borrowed the gun and carried it home is not sufficient to establish the intention on his part to take the life of the deceased. He had a right to borrow the gun and to carry it. When he shot the deceased he was at his home where he had a right to be. It is clear from the testimony that the defendants, Jim and George Norton, did not seek a difficulty with the deceased but tried to avoid the same.

The defendant George Norton on his return to their home, when called to by the deceased who was near the Norton home at the time to come to him, refused to go to the deceased but went on in the house. The deceased advanced toward the house and reached the porch or stepped upon the porch. What ivas said or done by the deceased just prior to the firing of the shot no one but George Norton knoAVS. After the shooting the only statement made by the deceased was that George shot him.

I do not believe the testimony sufficient to show that the killing in this case was in furtherance of a conspiracy entered into between the defendants. After a careful reading and study of the record, I hold that the record fails to state sufficient facts to bring, the killing in this case within the definition of “murder” as provided by section 2216, Okla. Stats. 1931, and that the verdict of murder is not sustained by sufficient evidence.

The next question to be considered by the court is: Is the evidence sufficient to sustain a conviction of “manslaughter in the first degree” as defined by section 2223, Okla. Stats. 1931? The evidence shows that the killing Avas done in a heat of passion by means of a dangerous weapon, and not done under such circumstances as to constitute excusable or justifiable homicide. Manslaughter in the first degree is an included offense within the crime of murder. Section 2820, O. O. ,S. 1921, now section 3204, Okla. Stats. 1931, in part provides:

“The appellate court may reverse, affirm or modify the judgment appealed from, and may, if necessary or proper, order a new trial.”

This court in construing the facts in Lebo v. State, 40 Okla. Cr. 116, 267 Pac. 288, held that under section 2820, C. O. S. 1921, now section 3204, supra, it had the power to modify tbe judgment of an assault with intent to commit rape to assault and battery, assault and battery being an included offense within the crime of an assault with intent to- commit rape. See Mayberry v. State, 44 Okla. Cr. 134, 279 Pac. 934.

Considering all the facts and circumstances in the record, I do not believe the defendant George Norton is guilty of any higher crime than manslaughter in the first degree. He was accorded a fair and impartial trial; and I believe the judgment as to George Norton should be modified from murder to' manslaughter in the first degree, and his punishment reduced from life imprisonment to a term of 25 years, and that his conviction as modified to manslaughter in the first degree, and the punishment to a term of 25 years, should be affirmed.

In my opinion there is no' competent evidence to sustain the conviction against Jim Norton, and I believe the judgment as to Jim Norton should be reversed, with directions that the case be dismissed as to him.


author: CHAPPELL, J.

text:
    JIMMIE BYARS v. STATE.
    No. A-8783.
    Dec. 21, 1934.
    Rehearing Denied Jan. 11, 1935.
    (39 Pac. [2d] 157.)

      Preeling & Box, for plaintiff in error.
    J. Berry King, Atty. Den., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of McClain county of the crime of murder, and his punishment fixed by the jury at imprisonment at hard labor for life in the state penitentiary.

The information charged defendant with having murdered one Emma Bunch on the night of June 25, 1933, by strangling and choking- her and by striking, her on the head and body with his fists or some blunt instrument.

Deceased, a woman of about 60 years of age, was the aunt of defendant and at the time she was killed was living alone in a two-room house in the west part of the town of Byars.

Defendant at the time of the trial was an unmarried man, 32 years of age, and living with his mother in the town of Byars, several blocks from where deceased lived.

The evidence of the state was that defendant, Bob Powell, and Jim Richardson had been on the day of the homicide traveling over that part of the country in a car belonging to Richardson; that they stopped at various places and bought and consumed whisky, but that defendant got back to Byars about 12 o’clock; that at about 12:30 screams were heard coming from the home of deceased; that the officers came and flashed their lights on the house; that a man about the size and appearance of defendant and wearing light clothes was seen to flee from the house, one of the witnesses testifying that defendant was that man; that the fleeing man ran into a barbed wire fence; that he went out across a field, through a cornfield, and disappeared; that when the officers went up to the house they found a cap which was later identified as belonging to defendant; that when defendant was arrested, the officers found the clothes worn by him the day before, and that the trousers had holes snagged in them, apparently made by barbed wire; that defendant was wearing a pair of slippers with peculiar rubber heels; that these slippers fitted the tracks made by the man seen to be fleeing from the house; that at the comer of the house there was found a half gallon jar partly filled with whisky. Fingerprint experts testified that they found defendant’s fingerprints on this jar.

The defense was an alibi.

No contention is made that this evidence is not sufficient to support the verdict of the jury, counsel for defendant relying on other questions to secure a reversal of the case.

It is first contended the court erred in admitting improper and illegal evidence on behalf of the state, over the objection of the plaintiff in error, which was objected to at the time and which objections were by the court overruled and to which the plaintiff in error excepted.

The first contention under this assignment is that the court permitted evidence to be introduced concerning other and different offenses which had no proper relation to the offense with which the plaintiff in error was being tried, and could have been introduced for no proper or legal purpose.

It appears from the record that the defendant offered himself as a witness, and, on cross-examination, the county attorney asked him specifically if he had not pleaded guilty of, and been adjudged guilty of, a dozen or more various offenses committed during the 10 years prior to the offense of which he was charged. When a defendant offers himself as a witness, he occupies the same position and has no greater rights than any other witness who may testify. For the purpose of affecting his credibility, the state has a right on cross-examination to ask him if he has not been convicted of other crimes. Key v. State, 10 Okla. Cr. 206, 135 Pac. 950; Gore v. State, 25 Okla. Cr. 214, 219 Pac. 153; Graham v. Smith, 28 Okla. Cr. 266, 230 Pac. 763; Treadway v. State, 30 Okla. Cr. 239, 235 Pac. 929; Smith v. State, 34 Okla. Cr. 396, 246 Pac. 1104; Reagan v. State, 35 Okla. Cr. 332, 250 Pac. 435; Scott v. State, 50 Okla. Cr. 396, 298 Pac. 626; Kell v. State, 53 Okla. Cr. 45, 6 Pac. (2d) 836; Byrum v. State, 54 Okla. Cr. 173, 15 Pac. (2d) 1096; Hames v. State, 54 Okla. Cr. 341, 20 Pac. (2d) 915; Green v. State, 54 Okla. Cr. 450, 23 Pac. (2d) 506; Land v. State, 55 Okla. Cr. 383, 31 Pac. (2d) 158; Brock v. State, 55 Okla. Cr. 410, 32 Pac. (2d) 88; Hendricks v. State, 23 Okla. Cr. 18, 212 Pac. 330.

The trial court did not permit the state to introduce evidence- of other crimes committed by defendant as substantive evidence of his guilt of this crime, but permitted the state merely, on cross-examination of defendant, to question him as to' conviction for other offenses. This, of course, was permissible under the numerous holdings of this court. The trial court, at the request of counsel for defendant, gave an instruction limiting the jury in the consideration of this evidence to the sole purpose of affecting the credibility of defendant.

It is next contended the trial court should have granted defendant a new trial because a juror named D. L. or Dave Hill, who sat in the trial of this case, had heard certain evidence at a previous trial of this case and had expressed an opinion that defendant should have been electrocuted.

On the motion for a new trial the court heard evidence in support of this contention. Two or three witnesses testified they heard the juror, prior to the trial of this case and while the first trial was in progress, express the opinion that defendant should have been convicted, and one witness went to the extent of testifying that the juror said defendant should have been electrocuted. Cross-examination of these witnesses disclosed that they were acquainted with and friends of defendant and of his family, who had no particular business to be present at the first trial except friendship for defendant and interest in his behalf. The juror took the witness stand and testified positively that he had no' such conversations as those detailed by these witnesses; that he heard none of the witnesses testify at the first trial; and that he had at no time formed or expressed an opinion as to the guilt or innocence of defendant. The juror’s testimony on the motion for a new trial was consonant with the testimony he made on the voir dire examination as a prospective juror.

At the conclusion of the hearing, the court found that the juror Hill was a competent, fair, and impartial juror and that the defendant had a fair and impartial trial.

The granting or overruling of a motion for a new trial on the ground here presented was discretionary with the trial court, and, before this court will set aside this judgment on this ground, it must be convinced from the record before it that the trial court, in denying the motion for a new trial, clearly abused its discretion. Smith v. State, 5 Okla. Cr. 283, 114 Pac. 350; Horton v. State, 10 Okla. Cr. 294, 136 Pac. 177; Gentry v. State, 11 Okla. Cr. 355, 146 Pac. 719; Agent v. State, 18 Okla. Cr. 282, 194 Pac. 233.

There is. nothing in the record to indicate any abuse of discretion by the trial court in: denying the motion for a new tidal on this ground.

The evidence of the state conclusively establishes the guilt of defendant. No reversible error appearing, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    O. J. “PINKY” CLEMMER v. STATE.
    No. A-8696.
    Jan. 11, 1935.
    (40 Pac. [2d] 37.)

      Potter & Potter, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen. (J. H. Lawson and O. B. Martin, of counsel), for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter for convenience referred to as the defendant, was by information charged with murder, tried and convicted of manslaughter in the first degree, and sentenced to' serve a term of 10 years: in the state penitentiary.

An abstract of the testimony on behalf of the state shows that on the 9th of August, 1932, Mr. and Mrs. Lee Jones had a. number of parties at their apartment in Ponca City for a farewell party to Miss Katherine Bateman. The defendant attended this party in company with Miss Bateman. During the evening Miss Anna Ingold Mitchell was invited to where the party had assembled upstairs and took a drink of whisky. She remained a few minutes, and went downstairs to her apartment. The testimony of Miss Mitchell shows that, while she was upstairs, the defendant and Katherine Bateman were in another room quarreling over the attention the defendant had been paying Erma Mueller. At the time of this party the wife of the defendant was supposed to be in California, and returned a few days after the party at the Jones home.

It is further shown that about 30 days before the night of this party the defendant had driven to' Oklahoma City and brought the deceased, Miss Bateman, with him; that, while deceased was in Ponca City, deceased and defendant were together most of the time, the deceased spending much of her time at defendant’s home. It is further shown that deceased was contemplating the return to her home in Oklahoma City the day after this party.

Anna Ingold Mitchell stated she lived at 712 North Osage street, in Ponca City, on August 9, 1932. Mr. and Mrs. Lee Jones occupied the upstairs apartment in the same building. That she had known the defendant for only a short while. She met the deceased July 24, 1932, at a birthday party in the Jones apartment. Witness further stated:

“On August 9, 1932, the night of the trouble, Mr. and Mrs. Lee Jones, Mr. Tindall, Mr. Clemmer, Miss Bateman, and myself were in the Jones apartment. I heard a conversation between the deceased and defendant; they were arguing over a girl, Miss Erma Mueller; Miss Bateman called Clemmer a vile name and he asked her not to say that any more; she accused him of going with this girl, and this girl calling the law to his house and she and he caught the girl. At the time of this argument they were sitting in Mrs. Jones’ bedroom. I went from my apartment up the front stairs to the Jones apartment, and when I left I went back to my bedroom and went to bed. There is a telephone downstairs near Mrs. Paulk’s room. The phone rang and Mrs. Jones was called to the phone. Miss Bateman was also at the phone. I called Mrs. Jones' and it was a woman’s voice answered, but I did not recognize it. Shortly after this phone call Lula Gardner came to the Jones apartment. I don’t know who came with her. Some time after this conversation over the phone, Miss Bateman and Mrs. Jones left the apartment. They went toward the drug store, returning in a few minutes. This was about 10 o’clock in the evening, and before Miss Gardner arrived. I went to bed early that night and got up and Avent up to the Jones apartment for a short while. Shortly after the two women went back upstairs, about 10:30, I heard Miss Bateman and Clemmer arguing again. Miss Bateman called Clemmer a vile name, and he struck her, and she told him to leave her alone, ‘Don’t do that’; they were scuffling and he slapped her several times, and I heard a hit and a fall, and Mrs. Jones said, ‘My God, you have killed her.’ >She said, ‘Oh, Pinky, you have killed her.’ The scuffling started in the bedroom and ended in the kitchen. I know the voice of Mrs. Bonnie Jones quite well. This crash where something fell was in the kitchen. There was a lapse of a few minutes, and the lights went out and the parties left the Jones apartment by the backstairs. I did not hear any more disturbance after the parties left. I was up to the Jones apartment the next morning and helped Mrs. Jones prepare breakfast. Fred Tinsdall is Mrs. Jones brother-in-law.
“While I was there Miss Nina Miles arrived; she said her sister was in the hospital. Mr. Clemmer and Mr. Palmer came in a few minutes later. They came up the backstairs and went into the living room, that is, the center room. I stayed in the kitchen. If you stand by the built-in cabinet you can see the southeast corner of- the living, room. I heard the parties talking. Mr. Clemmer was discussing the accident and how it happened, said Miss Bateman was supposed to have fallen down the stairs, that is the way it was supposed to be told. He said this several times. * * * Mrs. Jones told me that Miss Bateman and others had taken their stockings off that night at the party and she came up to get the shoes.”

Grace Tucker in substance stated she lived in Ponca City, at 701 North Osage street. She knew the house known as 712 North Osage. It was west of her home. On the night of August 9, 1932, she was sleeping out in the yard; she did not know who lived at 712 North Osage; about 11:30 o’clock at night she heard a noise which woke her up. She' heard two screams from a woman. These screams seemed to be from upstairs across the street, which was an apartment house at 712 North Osage. She heard a woman’s voice say, “Please don’t do that,” and then another scream. She heard a 'blow — a lick. The lights went out. In a few minutes thereafter she heard two cars leave from the alley; they went rapidly in opposite directions.

Dr. L. C. Vance stated he was called to see the deceased at the Pinky Clemmer home some time about 10 or 11 o’clock the morning following the night she received the blow, and found she had a fractured skull and ordered her admitted to the Ponca City Hospital; that she lived five days after that time, but never regained consciousness. The fracture was on the left side near the ear; it was irregular and ran. upward or posterior, about five inches long. There was no bleeding from the fracture; there was a swelling. The left ear was normal and not scratched or smashed. There was a bruise on her left hand, and a very small hematoma on the left or right hip. This particular trauma was caused by the application immediately from the fracture. That it could not have been caused by the application of force or pressure on any other portion of the cranium, and there were ím bruises on the forehead.

The witnesses for the defendant admit they were at the home of Lee Jones and his wife, who is known as Bonnie Jones, the night of the alleged difficulty; that Anna Ingold Mitchell, who lived in the apartment downstairs, came to the Jones apartment, where the party was being held, and remained for awhile and returned to her rooms downstairs. The defendant and the witnesses he called say there was no argument or trouble between the deceased and the defendant in the Jones apartment. They state some of the women had. been dancing, and deceased was without shoes or stockings, at the time they prepared to leave the house. The defendant clearly contradicted the testimony of Anna Ingold Mitchell.

The testimony of the defendant tends to show, that as they were getting ready to leave the Jones apartment the deceased left by the back stairway before the others, and must have fallen from the stairs to the ground below and received the injury from which she died several days later. The defendant in his testimony, and the witnesses who testified for him, say when they missed the deceased they were of the opinion she had gone to one of the cars, and, when they went to the cars and looked for her, and finally came back to the stairway, they found the deceased on the ground near the stairway unconscious and unable to talk. The defendant states he took the deceased up and took her to his car and then took her to his home, where he placed her on the bed and there kept her, in this unconscious condition, until the next morning about 9 or 10 o’clock, when the sister of the deceased came to the home for the purpose of learning if the deceased was ready to return to Oklahoma City, as the testimony shows she expected to return to her home in Oklahoma City that morning. Dr. Yance was then called, and made an examination and ordered the deceased sent to' the hospital. It is positively denied by the defendant and witnesses who were present at the party that any difficulty arose between the defendant or that the defendant struck the deceased with his fist, or a bottle, or any other instrument.

The testimony discloses that the wife of the defendant was in California and was expected home within a day or two after the deceased was injured; that deceased had been in Ponca City for a number of days, having gone there with the defendant, and a portion of the time she had been there she stayed at the defendant’s home. It is further shown that, when they were looking for the deceased, as the witnesses for the defendant claim they did, it was dark and one of the parties struck a match. Anna Ingold Mitcbell testified sbe was at the Jones home the next morning after the party the night previous, and that defendant and other parties came in and discussed the question of the condition of the deceased, who was then alive, and defendant stated that it must be told she fell down the backstirs and injured herself.

The defendant has assigned 15 errors alleged to have been committed by the trial court. In his argument in support of the errors assigned the defendant makes this statement:

“The defendant, Oscar Olemmer bases his appeal and his hoiie of reversion or modification in this case principally upon the ground of the insufficiency of the evidence to sustain the conviction imposed upon him.”

The defendant, after making the foregoing statement, argues the question of the weight of the evidence, and places great stress upon the fact that witnesses who were present at the Jones home that night positively deny there was any trouble between the deceased, Miss Bateman, and Mr. Olemmer, the defendant.

In considering the testimony of the state and the defendant, it is important to note the circumstances surrounding the party at the Jones home and the actions of the defendant and those with him from the time they arrived at the Jones home until Dr. Vance was called the next morning to treat the deceased. Every circumstance from the time the state’s testimony shows there was a disturbance at the Jones apartment up to the time Dr. Vance was called, the next morning, indicates a desire upon the part of the parties to keep secret the fact that the deceased was injured. We cannot believe the testimony of the defendant is true, and the jury evidently did not believe it to be true when it rendered its verdict of guilty.

The most reasonable, humane, and natural thing, that would have been done by the parties, if the deceased had fallen, as the defendant states she did, from the stairway and injured herself, would be to have immediately rushed her to the hospital and had an examination made to ascertain whether or not she had received serious injuries, but this was not done. She was taken to the home of the defendant, whose wife was away from home, and kept there all night in an unconscious condition, without medical aid, and without any effort on the part of the defendant or others with him to ascertain her condition, or to try to revive her from the unconscious condition she was in. The statement as to how the injury occurred and the subsequent actions compel this court to say it does not believe the defendant and his witnesses were telling the truth. Mrs. Tucker, who testified for the state, heard a woman scream, and heard her say, “Please don’t do that;” immediately thereafter she heard a noise like something fall, and shortly thereafter the lights went out and two cars left the Jones apartment hurriedly going in opposite directions.

The defendant cites no authorities in support of his assignments, and the only question to be determined by this court, on the record presented, is the question, Is there any competent testimony to sustain the verdict of the jury? The question of the competency of the evidence has been before this court so often that it seems useless to cite authorities.. In Ostendorf v. State, 8 Okla. Cr. 360, 128 Pac. 143, in the fourth paragraph of the syllabus, this court held:

“Before this court will reverse a conviction upon the ground that the verdict of the jury is contrary to' the evidence, we must find that there is no testimony in the record from which the jury could rationally conclude that the appellant was guilty, unless it appears from the record that the jury were influenced by improper motives in arriving at their verdict. This has always been the rule .of this court.”

There is nothing in the record to show that the jury was influenced by improper motive, passion, or prejudice.

In Pickett v. State, 35 Okla. Cr. 60, 248 Pac. 352, in the syllabus, this court held:

“Where the evidence and the reasonable and logical inferences and deductions to be drawn from it are sufficient to convince the jury beyond a reasonable doubt of the guilt of a defendant, this court will not disturb the verdict for insufficiency.” Underwood v. State, 36 Okla. Cr. 21, 251 Pac. 507; Choate v. State, 37 Okla. Cr. 314, 258 Pac. 360.

In Strong v. State, 42 Okla. Cr. 248, 275 Pac. 385, this court held:

“A motion for new trial, based on an allegation that the evidence does not support the verdict of the jury, is addressed, first, to the sound discretion of the trial court, who has seen and heard the witnesses testify, and who must necessarily know a great deal more about many facts and circumstances produced at the trial, which «cannot be written into a record, than an appellate court- can by reading the record after it is written. And when a trial court has considered and passed upon such an issue, it comes to this court only on the proposition that as a matter of law the verdict is contrary to the evidence.” Coats v. State, 56 Okla. Cr. 26, 32 Pac. (2d) 955.

The jury is the exclusive judge of the weight of the evidence, and, if there is a clear conflict in the evidence, or it is such that different inferences can properly be drawn from it, this determination will not be interfered with unless it is clearly against the weight of the evidence or appears to have been influenced by passion or prejudice.. The jury heard the evidence and evidently believed the testimony of the state’s Avitnesses upon the conflicting points, and disbelieved the defendant’s testimony. There is sufficient evidence to sustain the verdict of the jury and the judgment.

The defendant in his brief assigns as one of the grounds for a new trial newly discovered evidence. In Moseley v. State, 12 Okla. Cr. 402, 157 Pac. 708, this court held:

“A motion for a new trial upon the ground of newly discovered evidence is. addressed to the sound discretion of the trial court, and its ruling thereon will not be disturbed, except for an abuse of this discretion; the presumption being that the discretion was properly exercised.”

It is not an abuse of discretion for the trial court to overrule the motion for a new trial if such evidence is unimportant or cumulative. The court did not err in overruling the motion of the defendant for a new trial based upon the ground of newly discovered evidence.

The defendant was accorded a fair and impartial trial. The court correctly advised the jury as to the law applicable to the facts. There are no errors in the record warranting a reversal. The judgment of the trial court is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    GEORGE HEGLIN v. STATE.
    No. A-8720.
    Jan. 11, 1935.
    (40 Pac. [2d] 41.)
    Wade H. Loofbourrow and R. B. Loofbourrow, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Beaver county of the crime of receiving stolen property, and his punishment fixed by the jury a.t a fine of $250 and imprisonment in the county jail for a period of 30 days.

Defendant is a farmer residing near the town of Gate, in Beaver county, and was convicted of receiving two one-way plows which ivere alleged to have been stolen from Paul A. Custer by one Glen Moody;' Custer residing in the state of Kansas, and the property being taken off his farm near Satana, a distance of more than one hundred miles from the farm, of defendant; about three months after the plows were stolen, they were found in the possession of defendant, on bis farm in Beaver county. Tbe plows had been dismantled, and parts of them were found on other plows that were being used by defendant in his farming business; other parts of the stolen property were located on defendant’s farm, some of it being concealed in a gully and covered with thistles and weeds. There is no dispute that the property found on defendant’s farm was stolen from Custer.

The defense was that this property was left at defendant’s farm while he was absent therefrom ;■ that defendant did not know who left it there; that people were in the habit of leaving property on his farm and later coming and getting it. But the record shows that defendant appropriated some of this property, altering it so that it would be hard to identify, and concealed other parts of it; that Glen Moody and one Amos Akins had been former residents of defendant’s neighborhood and were acquainted with him; that Akins at the time of the trial was in the penitentiary in Kansas, convicted of stealing this property; that he testified he and Glen Moody took the property to defendant’s farm; that defendant was there and received it, and gave Moody something that looked like money; that Moody had been convicted, and at the time of the trial was serving a term in the Kansas penitentiary for stealing these particular plows.

When all of the evidence, facts, and circumstances in the case are considered, it is apparent that defendant received this property knowing it to be stolen.

It is first contended the trial court erred in denying defendant’s application for a commission to take depositions of two witnesses in the state of Kansas; also in overruling the motion for a continuance because of the absence of these two witnesses.

The motion to take depositions of the witnesses G-len Moody and John A. Akins was made in open court on the 16th day of October, 1933, same being the day the case was set for trial- Defendant testifying, on the motion admitted that he had never talked with these witnesses, did not know what they would testify to, and had made no effort to procure their testimony prior to his application for continuance. The preliminary hearing had been held and the information filed in the district court more than four months before the date set for trial. During all of this time defendant had made no effort, by himself or through counsel, to ascertain what these witnesses would testify to.

The trial court properly denied this application, because there was no showing of proper diligence to justify a continuance of the case to! take the depositions of these witnesses.

It is next contended the trial court erred in admitting evidence of separate offenses not connected with the offense on trial.

The evidence complained of was that other stolen property had been received by defendant and was in his possession at the place where the property alleged to have been received was found. This evidence was admissible on the question of whether or not defendant received this particular stolen property with the guilty knowledge that it had been stolen when he received it.

This court has held that contemporaneous possession of other stolen property is admissible in a larceny ease. Gourley v. State, 49 Okla. Cr. 24, 292 Pac. 873; Brown v. State, 50 Okla. Cr. 103, 297 Pac. 303; Buck v. State, 50 Okla. Cr. 148, 3 Pac. (2d) 747; Glenn v. State, 52 Okla. 395, 5 Pac. (2d) 767; Patton v. State, 54 Okla. Cr. 393, 22 Pac. (2d) 116.

The precise question lias never been passed on by this court, but tlie courts of other states have held that possession of other stolen goods is admissible as tending to establish that the defendant received with guilty knowledge the goods specified in the indictment or information, and that it is immaterial whether the other possession occurred before or after the possession charged. 17 R. C. L. § 94, p. 88; Luery v. State, 116 Md. 284, 81 A. 681, 685, Ann. Cas. 1913D, 161; State v. Cohen, 254 Mo. 437, 162 S. W. 216, Ann. Cas. 1915C, 86; State v. Rountree, 80 S. C. 387, 61 S. E. 1072, 22 L. E. A. (N. S.) 833.

It is next contended the court erred in permitting one E. E. Wright to testify in chief for the state because his name had not been indorsed on the information prior to the commencement of the trial.

It appears from the record that the name of this witness had been indorsed on the information several days prior to the trial, and that a copy of this information was in the possession of defendant’s counsel.

The indorsing of the names of additional witnesses in a felony case, other than capital, is within the sound discretion of the trial court, even after the trial has began. Harrell v. State, 36 Okla. Cr. 225, 253 Pac. 516; Shaw v. State, 53 Okla. Cr. 389, 12 Pac. (2d) 550.

It was not error, therefore, for the trial, court to permit the indorsement of the name of this witness upon the information at the time of trial.

It is next contended the court erred in refusing, to give defendant’s requested instructions numbered 2, 3, and 4, and that the trial court erred in giving instructions numbered 2 to 7, inclusive.

An examination of the record discloses that the requested instructions were properly denied, and that the instructions given by the court on its own motion were as favorable to the defendant as the law and the facts required.

Finally, it is contended the court erred in refusing to permit defendant to introduce in evidence the alleged statement of an accomplice.

This assignment of error relates to the refusal of the trial court to permit the witness Floyd Colton to testify on an offer made by counsel for defendant to the effect that one Glen Moody, who was alleged to be the thief from whom this defendant received the stolen property, had told the witness, long after the property had been stolen and after defendant had received the same, in substance, that defendant was innocent of any Avrongdoing in the transaction.

What Moody said to a third person in the absence of Amos Akins could) not be binding on Akins and would only be hearsay as to him and therefore not admissible. It could not be admissible as the declaration of an accomplice, because such declarations, made in the absence of defendant, are admissible only where a conspiracy is shown to exist, and then such declaration must be made in furtherance of the conspiracy and before the object of the conspiracy has been accomplished. Smith v. State, 19 Okla. Cr. 386, 200 Pac. 553; Hollingshead v. State, 21 Okla. Cr. 306, 207 Pac. 104; Crawford v. State, 35 Okla. Cr. 135, 248 Pac. 880.

The declarations of an accomplice detailing a past event are merely hearsay, and could only be binding on a codefendant when made in his presence. Thomas v. State, 13 Okla. Cr. 414, 164 Pac. 995; Smith v. State, 20 Okla. Cr. 362, 202 Pac. 1046.

There is no evidence to make Moody an accomplice of Akins. Anything Moody might have said to the witness Floyd Colton was purely hearsay and inadmissible. Moody was not a witness in the case, and the proffered evidence was not admissible for the purpose of impeachment. On no theory was it admissible. The ruling of the court holding the same to be hearsay was correct.

A careful examination of the record discloses no reversible error. The cause is therefore affirmed.

EDWARDS, P. J., and DAVENPORT, J.,. concur.


author: DAVENPORT, P. J.

text:
    RAY CADWELL v. STATE.
    No. A-8732.
    Jan. 25, 1935.
    (40 Pac. [2d] 685.)
    C. B. Leedy, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Att-y. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error was convicted in the district court of Ellis county of manslaughter in the first degree and sentenced to serve four years in the penitentiary.

The Attorney General has filed a motion to dismiss the appeal on the ground that no written notice was served on the court clerk or county attorney, and no summons in error was issued and served, and the Attorney General has not waived the issuance and service of summons in error. The failure to serve a written notice on the court clerk and county attorney is jurisdictional.

Where no notice of intention to appeal is served on the county attorney and court clerk, and where no summons is issued and served, and where the Attorney General has not waived the issuance and service of summons, this court acquired no jurisdiction of the appeal. Brown v. State, 55 Okla. Cr. 11, 23 Pac. (2d) 719; Austin v. State, 55 Okla. Cr. 278, 28 Pac. (2d) 1113.

It appears from the record that the contention of the Attorney General is well taken, and the motion to dismiss the appeal should be sustained.

For the reasons stated, the appeal is dismissed.

EDWARDS and DOYLE, JJ., concur.


author: PEE. CURIAM.

text:
    H. A. GEORGE v. STATE.
    No. A-8803.
    Jan. 25, 1935.
    (40 Pac. [2d] 1117.)

      E. W. Schenk, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PEE. CURIAM.

The plaintiff in error was convicted in the district court of Carter county of larceny of live stock, and sentenced to serve a term of five years’ imprisonment in the state penitentiary.

The Attorney General has filed a motion to dismiss the appeal on the ground that no written notice was served on the court clerk or county attorney, and no summons in error was issued and served, and the Attorney General has not waived the issuance and service of summons in error. The failure to serve a written notice on the court clerk and county attorney is jurisdictional.

Where no notice of intention to appeal is served on the county attorney and court clerk, and where no summons is issued and served, and where the Attorney General has not waived the issuance and service of summons, this court acquired no jurisdiction of the appeal. Brown v. State, 55 Okla. Cr. 11, 23 Pac. (2d) 719; Austin v. State, 55 Okla. Cr. 278, 28 Pac. (2d) 1113.

It appears from the record that the contention of the Attorney General is well taken, and the motion to dismiss the appeal should be sustained.

For the reasons stated, the appeal is dismissed.


text:
    In re OPINION OF THE JUDGES. (In re JAMES R. HARGUS.)
    No. A-8860.
    Jan. 25, 1935.
    (40 Pac. [2d] 692.)
   DAVENPORT, P. J.

The record submitted, to which is attached your request above mentioned, discloses that the said James R. Hargus was charged with murder by information, in the district court of Tulsa county, was tried and convicted. The court fixed the 8th day of December, 1934, as the sentence for the defendant, and on said 8th day of December, 1934, defendant was sentenced to death by electrocution on the 8th day of March, 1935.

Under the Constitution and the laws of this state, any person convicted of a felony may appeal within six months from the date the judgment is rendered.

Under the provisions of section 3192, O. S. 1931, the defendant, if he has taken proper steps, may perfect his appeal to this court. This court has uniformly held that the provisions of section 2786, C. O. S. 1921, now section 3172, O. S. 1931, contemplate an advisory opinion where the appeal has not been taken from the judgment and sentence of death. To render an advisory opinion where the time given for appeal has not yet expired, and where an appeal may be perfected, would be to prejudge the case upon an ex parte proceeding, which might be brought before the court upon an appeal.

This court cannot assume that the defendant will not appeal until the time for such an appeal shall have expired, or the right to appeal shall -have been expressly waived. In order that the defendant shall not be deprived of his right to appeal within six months, the execution of the sentence of death should be postponed to some date after the 8th day of June, 1935. If in the meantime the appeal is perfected and filed in this court, such appeal will automatically give the accused the right to a further suspension of the execution of the sentence until the appeal shall be determined upon its merits.

EDWARDS and DOYLE, JJ., concur.


author: EDWARDS, J.

text:
    HAROLD FISK v. STATE.
    No. A-8742.
    Jan. 25, 1935.
    (40 Pac. [2d] 684.)

      William L. Seawell, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Okfuskee county of grand larceny, and was sentenced to serve a term of one year in the state penitentiary. At the time charged there was stolen from the residence of one Brad-bum certain clothing, of the value of about $35. At the time there was at the home of Bradbum one Jones, Richards, Forrest, and Alexander, with the defendant. All were drinking. After they left Bradbum discovered some wearing apparel missing and called an officer, and he discovered the car in which Bradbum’s visitors were, about a half mile from his residence. As the officers approached, Forrest fled. Defendant, Jones, and Alexander remained at the car. In the car was found the stolen property. The principal witness for the state was Forrest. He testified defendant assisted him in the larceny. The corroboration of this claimed accomplice is very slight. Defendant denied any participation in the larceny, and testified he did not know the stolen property was in the car until the officers came to it.

The principal contention is that the court permitted the state on cross-examination to ask defendant about his arrests or charges in other cases and in effect to put his character in issue. Upon this point the state has filed a confession of error in part as follows:

“* * * Upon the cross-examination of the defendant the county attorney inquired of him about certain arrests for crimes of which he had never been convicted, this over the objection and exception of the defendant’s counsel. It seems that the trial court admitted this evidence on the theory that it tended to show that the defendant was assoeiated with known thiefs and also upon another theory that he was caught in the commission of a crime. Whether or not he was in the commission of another crime at the time of his arrest would be a question to be tried by another jury, and his credibility could not be affected by such arrest until after he had been convicted of that crime. There are repeated decisions of the Criminal Court of Appeals to this effect, holding that it would not be proper to investigate the question of guilt or innocence of the defendant of another distinct crime, which would be a collateral matter, in the trial of a case of this kind, for the purpose of affecting his credibility * * * and in view of that fact it is the opinion of the Attorney General that the defendant was materially prejudiced by the action of the county attorney in making such a cross-examination and because of the lack of substantial corroboration of the accomplice. * * *”

An examination of the record convinces us that defendant did not have a fair trial; that the confession of error is warranted.

The judgment is reversed.

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


text:
    CHESTER YOUNG v. STATE.
    No. A-8765.
    Jan. 25, 1935.
    (40 Pac. [2d] 686.)

      Mathers & Mathers, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (Hester Atherson Gifford, of counsel), for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of main- . taining a public nuisance and sentenced to pay a fine of $75, and to be confined in the county jail for a period of 30 days.

The testimony, in substance, shows that the defend- . ant was living, with his wife at No. 11 Northeast Third street, Oklahoma City, Okla.; that on the 14th day of December, 1932, an application for a search warrant was filed with Roy Wolcott, justice of the peace, sworn to by W. E'. Agee, and a search warrant was issued to search a one-story frame building located at No. 11 Northeast Third street, Oklahoma City, of John Doe and Mary Doe. The warrant further recites, whose full, true, and correct name is unknown.

Notwithstanding the affidavit for the search warrant, and the search warrant that was issued to search a certain building of John and Mary Doe, W. E. Agee, who made the affidavit, when he testified in the trial of the case stated he knew the defendant and that he had gone by his home about four hours before he made the search. It is not shown why, if the statement of the witness Agee is true, he made the affidavit to search the building in the name of John and Mary Doe. The affidavit for the search warrant and the search warrant appears in the case-made, but there is no showing as to how they happen to' be copied in the case-made.

The information in this case charged the defendant with the crime of maintaining a common nuisance of the public, by keeping whisky for barter, sale, and giving away to divers persons unknown, and where divers persons unknown congregate for the purpose of buying, receiving, and drinking said intoxicating liquor.

The record discloses that the officers went to the home of the defendant, where he and his wife resided, with a search warrant. There is no showing that it was served on either the defendant or his wife, but the testimony of one of the officers discloses that when they went to the home of the defendant the wife of the defendant locked the door and they kicked the door open. The officers claim that the wife of the defendant poured out some whisky in the bathroom. All they claim to know about that is that they smelled the odor of whisky in the bathroom. One of the officers testified they found a pint of whisky in some part of the building. Witness Agee testified that he had not been out to the house where the defendant was living, but that he was at a place near where the defendant was living about 30 days prior to the day of the securing of the search warrant. The other officer states that he had passed the place three or four times in the last few months, and claimed he had seen some parties drive up to the house and stay a while and then drive away. One of the officers made the usual statement that he had a complaint against the defendant’s place.

The defendant was not at home at the time the officers went to his place and searched it, and knew nothing about what took place between the officers and his wife. The testimony of the officers, in substance, shows that when they arrested the defendant he said he had been selling whisky as he had to do something to make a living. When the search was made a sister or sister-in-law was there visiting. No whisky was sold or drunk while the officers were there, and there is no testimony showing any sale of whisky, giving away, bartering, or disposing of any whisky since the defendant and his wife had been living in the place where the officers searched.

The defendant, in his testimony, denies any knowledge of there being any whisky at his place, but admitted he stated to the officers if they found any whisky there it was his and not his wife’s. He positively denies he ever told the officers he had been selling whisky, that he had to make a living. The defendant further testified he had been helping a carpenter on different buildings, and that for about 30 days prior to his return to his home the day of the search he had been in Tupelo, Okla., with his father who was ill, assisting his father looking after his business af* fairs.

The defendant in his assignment of errors alleges the verdict of the jury is contrary to the law; and that the verdict and judgment is not supported by the evidence. There is no' evidence in the record which shows that the defendant was at the place where he was living at the time his home was searched, nor had he sold, bartered, given away, or otherwise disposed of intoxicating liquors to any one; nor is there any positive testimony that divers persons were permitted to congregate at his home for the purpose of buying, receiving, or drinking intoxicating liquors. The defendant is not charged with the possession and the sale, bartering, or disposing of whisky, but is charged with having intoxicating liquors in his possession and so conducting his home that it amounted to a common or public nuisance.

The only evidence tending to show there ever had been any whisky at the defendant’s home was offered on the part of the state to show a statement or confession of the defendant. This court has repeatedly held that the corpus delicti cannot be established by the confession of the accused alone; that there must be independent evidence, either direct or circumstantial, of the corpus delicti before a conviction can be had. Blakemore v. State, 39 Okla. Cr. 355, 265 Pac. 152, and authorities therein cited.

This court has repeatedly held that where there is evidence to support a conviction it will not pass on the weight or sufficiency in order to determine whether the defendant was guilty as charged. However, there must be evidence to support the essential allegations in the information.

The only evidence on the part of the state tending to show possession by the defendant of intoxicating liquor is the evidence of the finding of a pint of whisky somewhere in the house the officers searched, and the odor of whisky in the bathroom. There is a total failure in the evidence showing that the defendant intended to sell or dispose of the pint of whisky found in his home, and the evidence wholly fails to show that persons congregated and resorted to the defendant’s place for the purpose of drinking such liquor.

There are other errors assigned by the defendant possessing merit, but in the view we take of this record it is not necessary to consider them, as the evidence is insufficient to sustain a conviction of maintaining a common or public nuisance.

The judgment of the lower court is reversed, and the case remanded.

EDWARDS and DOYLE, JJ., concur.