text:
    I. J. YOUSTLER v. STATE.
    No. A-4520.
    Opinion Filed May 10, 1924.
    (225 Pac. 566.)
    (Syllabus.)
    1. Appeal and Error — Affirmance—Absence of Briefs and Argument. In a criminal case, where the defendant appeals from a judgment of conviction, and no briefs are filed or argument presented, this court will make an examination of the case-made, and, if no error is apparent, will affirm the judgment.
    2. Burglary — Evidence Sustaining Conviction. In a prosecution for burglary, evidence held to sustain verdict and judgment of conviction.

      Appeal from District Court, Ottawa County; S. C. Fullerton, Judge.
    I. J. Youstler was convicted of burglary and he appeals.
    Affirmed.
    F. W. Church, for plaintiff in error.
    The Attorney Geenral, for the State.
   DOYLE, J.

This appeal is from a conviction for burglary, the punishment having been assessed at 3 years in the penitentiary, alleged to have been committed on or about March 9, 1922, by entering into a brick building, the property of W. C. Hale, by breaking through the door of said building in the nighttime with intent to commit larceny.

The errors assigned are that the court erred in overruling the demurrer to the information, that the verdict is contrary to the law and the evidence, and that the punishment fixed by the verdict is excessive.

Appellant is not represented by counsel in this court, and no brief in support of the assignments of error has been filed.

The testimony on the part of the state tended to show that W. C. Hale was engaged in business in a brick building on the east side of Main street in the town of Picher, and therein had stored some merchandise, tools, and a Ford car, that Mr. Hale and another party were there during the day until they closed up in the evening, and that when they left the doors were securely fastened.

W. C. Hale testified:

“I live upstairs in the building. About 9 o’clock at night I heard a noise in the storeroom and I went down into the room, turned on the lights, and saw appellant step under a bench. He said, ‘Don’t shoot, I will give up.’ He said he got in through the back door. The lock had been broken off this door. He said he did it with a piece of steel. I had a Ford roadster and about $800 worth of tools in the building. He said he got in there to get some of these tools.”

The testimony of appellant in his own behalf is as follows:

“I live at Baxter Springs, Kan., I have a Ford car and I was trying to trade with Mr. Barry in Pieher that day. I was awful drunk. I went into that building some time in the evening. I did not intend to steal anything. Mr. Hale came in and turned on the lights. He had a gun, and I told him not to shoot me. I was standing on the floor and I threw up my hands. I was sent to the penitentiary for two years at Joplin for selling junk.”

The information is sufficient, and the demurrer thereto was properly overruled. The weight of the evidence was a question for the jury under the instructions of the court which gave appellant the benefit of all reasonable doubt, and we are not prepared to say that the verdict is not supported by the evidence or that the punishment imposed is excessive.

After a careful examination of the case-made, we conclude that there is no error which could have been prejudicial to appellant, and the judgment herein is accordingly affirmed.

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


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    BILL WILSON v. STATE.
    No. A-4500.
    Opinion Filed May 10, 1924.
    (225 Pac. 566.)
    (Syllabus.)
    Intoxicating Liquors — Attempt to Manufacture — Insufficient Information. An information which merely alleges that the defendants “did knowingly and unlawfully attempt to manufacture certain spirituous and intoxicating liquors, to wit, whisky,” without alleging any acts done, or mode and manner of the attempt, is not sufficient to support the charge of attempting to manufacture intoxicating liquors.

      Appeal from County Court, Muskogee County; Enloe V. Vernor, Judge.
    Bill Wilson was convicted of attempting to manufacture intoxicating liquors, and he appeals.
    Reversed.
    M. D. Hartsell, for plaintiff in error.
    George F. Short, Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges:

“That Bill Wilson, James Coughron and Lewis Griffin did, in Muskogee county, and in the state of Oklahoma, on or about the 29th day of December, in the year of our Lord, one thousand nine hundred and twenty-one and anterior to the presentment hereof, commit the crime of unlawfully attempting to manufacture intoxicating liquor, in the manner and form as follows, to wit: That the said Bill Wilson, James Coughron and Lewis Griffin in the county of Muskogee, state of Oklahoma, on the 29th day of December, 1921, did knowingly and unlawfully attempt to manufacture certain spirituous and intoxicating liquors, to wit, whisky, with the intention then and there on the part of the said Bill Wilson, James Coughron and Lewis Griffin of selling, conveying, bartering, giving away and otherwise furnishing the same, contrary to,” etc.

To this information one of the defendants, Lewis Griffin, entered his plea of guilty, and the defendants Bill Wilson and James Coughron were tried jointly upon said information. The jury returned their verdicts finding defendant James Coughron not guilty, and appellant Bill Wilson guilty and fixing his punishment at a fine of $25 and 15 days in jail. From the judgment rendered on the verdict he appeals.

Various assignments of error are alleged, but the sufficiency of the information to charge an offense under section 2297, Comp. Stats. 1921, is the only question necessary to be determined.

Counsel for appellant in their brief say:

“So far as this information is concerned, it might have as. well stopped with the preamble usual and necessary to all informations, the latter part is merely a reiteration thereof, and the allegations of the intention of attempting to manufacture with the intent to barter, sell, give away or otherwise furnish the same, are mere surplusages. There is no allegation, other than a scintilla of a conclusion, of any fact constituting the necessary ingredients of the crime of attempting to manufacture and the failure thereof or any other crime. The information should have gone further and have shown the facts constituting the attempt, and have alleged further the failure of such attempt”-citing Williams v. State, 10 Okla. Cr. 336, 136 Pac. 599; Bond v. State, 12 Okla. Cr. 160, 152 Pac. 809.

Our Penal Code provides:

“Any person who attempts to commit any crime, and in such attempt does any act toward the commission of such crime, but fails, or is prevented or intercepted in the perpetration thereof, is punishable, where no provision is made by law for the punishment of such attempt, as follows.” Section 2297, Comp. Stats. 1921.

Bishop says (volume 1, § 728) :

“An attempt is an intent to do a particular thing which the law has declared to be a crime, coupled with an act towards the doing.”

While there is some little discord in the authorities, the rule we think is well established that in all classes of “attempted crimes,” the facts and elements constituting that attempt must be set forth in the pleading. Bond v. State, supra.

To charge the offense of attempting to manufacture intoxicating liquors, the material facts necessary to be established must be alleged. The information merely alleges that the defendant did knowingly and unlawfully attempt to manufacture whisky; the manner in which the attempt was made is not alleged, nor are the facts showing that they did make such attempt anywhere alleged in the information; and for this reason the information does not charge a public offense.

Because the information does not state facts sufficient to constitute the offense of an attempt to manufacture intoxicating liquors, the judgment herein is reversed.

MASSON, P. J., and BE'SSEY, J., concur.


author: BESSEY, J.

text:
    J. K. LAMBE v. STATE.
    No. A-4184.
    Opinion Filed May 10, 1924.
    (225 Pac. 572.)
    (Syllabus.)
    1. Appeal and Error — Appeal Filed Beyond Statutory Period Dismissed. This court is without jurisdiction to consider the merits of an appeal filed in this court beyond the period allowed by statute.
    2. Same — Methods of Appeal Stated — Appellate Court May Order Record Supplemented. An appeal may be taken to this court in either of two ways: First, by the timely filing of a petition in error with a case-made attached; and, second, by the timely filing of a petition in error and a transcript of the record, or some part of it. In either event, if it appears that the record is deficient or incomplete, this court has the right at any time to order the record on file supplemented by any parts necessary to a fair consideration of the issues involved.
    Appeal from District Court, Lincoln County; A. C. Brewster, Assigned Judge.
    J. K. Lambe was convicted of embezzlement, and he appeals.
    Appeal dismissed.
    Jarrett & Speakman, for plaintiff in error.
    The Attorney General and N: W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

The Attorney General has filed a motion to dismiss the appeal for the reason that the court is without jurisdiction because the judgment on the verdict, fixing the punishment at 1% years in the penitentiary, was rendered on the 26th day of January, 1921, and the attempted appeal was not lodged in this court until January 25, 1922, months after the expiration of the period prescribed - by statute for taking an appeal to this court.

Plaintiff in error has made a showing that he encountered many difficulties in procuring a case-made; that the reporter who took the testimony and made a record of the other proceedings in the trial court resided in Oklahoma City; that the attorney for plaintiff in error called upon her upon several occasions and wrote many letters urging her to make up this record; that from time to time she promised to have it made in time, but failed. In the meantime the trial court extended the time for making and serving a case-made' until the extensions of time so granted by the court covered the whole 6 months’ period in which an appeal could be taken.

Plaintiff in error, in his response to the Attorney General’s motion to dismiss, urges that he should not be deprived of his right of appeal on account of the laches of the court reporter; the record, however, discloses that the court reporter was not solely at fault. If proper arrangements had been made with her immediately after the trial, the record might have been prepared in time, but subsequently sickness and the loss of certain exhibits caused the delay.

An appeal may be taken to this court in either of two ways: First, by the timely filing of a petition in error, with ease-made attached; and, second, by the timely filing of a petition in error and a transcript of the record, or some part of it. In either event, if it appears that the record is deficient- or incomplete, this court has the right at any time to order the record on file supplemented by any parts necessary to a fair consideration of the issues involved. But the plaintiff in error must get into this court by one or the other of these methods within the statutory period, and the failure to do so will be fatal. This court is without jurisdiction to consider an appeal filed beyond the period allowed by statute. Farmer v. State, 5 Okla. Cr. 151, 114 Pac. 753; Dodson v. State, 24 Okla. Cr. 280, 217 Pac. 899.

The plaintiff in error made an extraordinary effort to obtain a record, but we cannot say that he did everything that he could have done to perfect his appeal in time. If immediately after the trial he had made proper arrangements, the record in all probability would have been promptly made; and, if it had not, he could have at any time obtained enough of the record to have filed his appeal here, and this court would have had authority to make orders permitting him to supplement the record on file with such other parts of the proceedings as appeared essential to a determination of the appeal.

The motion of the Attorney General to dismiss the appeal is allowed, and the appeal is ordered dismissed, with instructions to the trial court to enforce the judgment and sentence.

MATSON, P. J., and DOYLE, J., concur.


text:
    WILLIAM RITTMAN v. STATE.
    No. A-4463.
    Opinion Filed May 13, 1924.
    (225 Pac. 988.)
    (Syllabus.)
    1. Appeal and Error — Affirmance—Absence of Briefs and Argument. In a criminal case where the defendant appeals from a judgment of conviction anti no briefs are filed or argument presented, this court will make an examination of the case-made, and if no error is apparent will affirm the judgment.
    2. Intoxicating Liquors — Evidence Sustaining Conviction for Sale. In a prosecution for selling intoxicating liquors, evidence held to sustain verdict and judgment of conviction.
    Appeal from County Court, Comanche County; P. G. Fullerton, Judge.
    "William Rittman was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.
    M. T. Perkins, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

In the information in "this case William Rittman was charged with selling whisky to one Sergeant Charles Hill. The trial jury returned a verdict finding him guilty and fixing his punishment at confinement in the county jail for 60 days and a fine of $100. He has appealed from the judgment rendered upon such conviction.

The errors assigned question the sufficiency of the evidence to support the conviction.

Appellant is not represented by counsel in this court, and no brief in support of the assignments of error has been filed.

The complaining witness, Charles Hill, testified:

“I met the defendant on the'street, and he wanted to know if I wanted to buy some whisky; I said, ‘Sure;’ then we went down to Fourth street in Lawton, and I paid him $25 for a jar of red whisky; I went up to the rooming house and when I took a drink it tasted funny; I called the sheriff and turned the whisky over to him; I had not been drinking before and I did not take more than two drinks of this whisky. ’ ’

John Eastman testified:

“I was with Sergeant Charles Hill on the night of the day alleged. He had a fruit jar full of whisky; I took two drinks and went to sleep, and did not wake up until the next morning.”

As a witness in his own behalf William Rittman testified:

“I met Charles Hill that day, and he wanted me to drink with him, and I refused to drink with him; that was early in the morning; I did not see him that evening, and I did not sell him any whisky that day or evening.”

This court will not pass upon the weight of the evidence in jury trials in order to determine whether or not the defendant was guilty as charged. It was for the jury to judge of the weight of the evidence and the credibility of the witnesses.

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

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


text:
    BUFORD GILLOCK v. STATE.
    No. A-4505.
    Opinion Filed May 13, 1924.
    (225 Pac. 567.)
    (Syllabus.)
    Intoxicating Liquors» — Evidence Sustaining Conviction for Unlawful Possession. In a prosecution for unlawful possession of intoxicating liquors, evidence held sufficient to sustain conviction.
    Appeal from County Court, Pittsburg County; S. F. Brown, Judge.
    Buford Gillock was convicted of violating the prohibitory liquor law, and he appeals.
    Affirmed.
    Wilkinson & Hudson, for plaintiff in error.

      George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges that appellant, Buford Gillock, and John Newall did have in their possession about 2% gallons of whisky with the unlawful intent to sell the same. Defendant John Newall entered a plea of guilty. On appellant’s trial he was found guilty, and his punishment fixed at confinement in the county jail for 30 days and a fine of $50. He has appealed from the judgment rendered upon such conviction.

The only question presented by the record in this case is the sufficiency of the evidence to support the verdict. J. B. Dowell testified:

“I am a special officer in the Indian Service. I secured a search warrant and with the sheriff of Pittsburg county served the same by searching Mr. Gilloek’s premises. We found two gallons and one quart of whisky; the quart was in the house and the two gallons hid in the weeds about 50 feet away from the house. One hundred yards west of the house we found a copper still. It was covered with brush and weeds. In a little log house that was being used for a hog pen, 150 yards east of the house, near a spring, we found a 50-gallon barrel of mash, and there was a new tub setting there. I poured the mash out and broke the barrel; then Mr. Gillock asked me not to chop the tub up — that it was his tub. Mr. Gillock also had a 10-gallon keg of Choctaw beer in the house.”

W. S. Sanders, sheriff of Pittsburg county, testified substantially to the same facts. The state rested, and appellant moved for an acquittal in the form of a demurrer to the evidence, which was overruled.

As a witness in his own behalf, Buford Gillock testified that the whisky found by the officers belonged to John New-all; that he had a pint of whisky in the cupboard and drank it after the officers came there, and that he never sold a drop of intoxicating liquor in his life; that he had a’ contract with John Newall to make a crop with him.

We deem it sufficient to say that the record shows that the trial was exceptionally free from error, the instructions fairly presented the law of the case, and the testimony on the part of the state, if credited, as it was, was amply sufficient to sustain the verdict.

The judgment is therefore affirmed.

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


text:
    JOHN PHIPPS v. STATE.
    No. A-4471.
    Opinion Filed May 13, 1924.
    (225 Pac. 722.)
    (Syllabus.)
    Intoxicating Liquors — Evidence Sustaining Conviction for Unlawful Possession. In a prosecution for unlawful possession of intoxicating liquors, evidence held sufficient to sustain conviction, and that no material error was committed on the trial.
    Appeal from County Court, Carter County; M. F. Winfrey, Judge.
    John Phipps was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.
    J. H. Mathers, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

Plaintiff in error, John Phipps, was convicted on a charge that he did have in his possession whisky with intent to sell the same, and his punishment fixed at confinement in the county jail for 90 days and a fine of $100. He has appealed from the judgment rendered upon such conviction.

The assignments of error relate to the rulings of the court in the admission and rejection of evidence, instructions given to the jury, and the sufficiency of the evidence taken as a whole to sustain the verdict.

■The testimony on the part of the state shows that Marion Batliff, an oil field worker, went into the Caddo Wagon Yard in Ardmore on the date alleged to buy whisky. He testified:

“I said to defendant I wanted to buy some whisky; he said, 'Come with me;’ we went into the wagon shed and he took a four-ounce bottle out of his shirt and gave me a drink; I paid 50 cents for the drink, he put the bottle back in his bosom.”

Bob Short, deputy sheriff, testified:

"Marion Batliff came up from the wagon yard and described Mr. Phipps as the man that sold him some whisky; I called Mr. Bell and we went down to the wagon yard; Mr. Phipps and another man were sitting there; we searched Mr. Phipps and found one full four-ounce bottle and another bottle half full of corn whisky in his shirt. He did not admit, deny, or affirm anything. He refused to talk after the first question.”

As a witness in his own behalf John Phipps testified:

"I work in the Caddo Wagon Yard; I was cleaning up that day and found a bottle in the manger, pulled the cork, tasted it, and emptied it into two Jake four-ounce bottles and put them in my bosom. I drank one-half of one of them; I was sitting down; Mr. Kennedy was sitting beside me; the officers appeared, and one of them said, 'Hold your hands up,’ and they found these bottles on me; I did not sell any of that whisky; I have lived here ten years and was never charged with an offense before; never saw Mr. Batliff before that day; he said he wdnted some corn whisky, and I told him if I had any I would not sell it.”

We deem it sufficient to say that the record shows that the trial was free-from error. No objection was made or exception taken to the instructions given, and tbe testimony is amply sufficient to sustain the verdict. The defendant, from all that the record discloses, had a fair trial. The judgment of the lower court is accordingly affirmed.

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


author: MATSON, P. J.

text:
    QUENCH KAUFFMAN v. STATE.
    No. A-4518.
    Opinion Filed May 17, 1924.
    (225 Pac. 1117.)
    Appeal from County Court, Ottawa County.
    Quench Kauffman was convicted of the offense of unlawfully conveying intoxicating liquor, and he appeals.
    Affirmed.
    F. W. Church, for plaintiff in error.
    The Attorney General, for the State.
   MATSON, P. J.

Quench Kauffman was prosecuted in the county court of Ottawa county on an information charging him with the offense of conveying a pint of whisky from some point unknown in Ottawa county to a point on North Main street, between First and Second streets, in the city of Miami, said county, on or about the 12th day of March, 1922. Trial was had' in September, 1922, resulting in a verdict of guilty, with punishment assessed at a fine of $50 and imprisonment for 30 days in the county jail. On the 15th day of September, 1922, the court rendered judgment in accordance with the verdict. Petition in error and case-made were filed in this court on the 4th day of December, 1922. The cause was submitted on the 28th day of February, 1924. No brief has been filed in behalf of plaintiff in error. The court has examined the transcript of the evidence, the information, the instructions of the court, minutes of the trial, and the verdict and judgment, in connection with the petition in error, and have found no reversible error. The judgment, therefore, is affirmed.

BESSEY and DOYLE, JJ., concur.


text:
    FRANCES TAYLOR v. STATE.
    No. A-4286.
    Opinion Filed April 28, 1924.
    Rehearing Denied May 24, 1924.
    (225 Pac. 988.)
    (Syllabus.)
    1. Homicide — Indictment for Murder Held Sufficient — When Indictment Sufficient Stated. The indictment examined, and found sufficient to apprise the accused of the nature of the accusation she was required to meet; the indictment charged murder without authority of law, with a premeditated design to effect death.
    (a) The averments will be held sufficient where the offense is stated with clarity, according to the common acceptation of the language used.
    2. Courts — Discretion to Transfer Cause from One Division to Another. Where there is no direct authority found in the act creating a court for transferring a cause from one of the places of holding court to another, the court has an inherent right, in his discretion, upon a proper showing to transfer a cause from one division of the court to another division of the same court.
    3. .Continuance — Refusal of Continuance to Permit Witness to Attend Sick Father not Abuse of Discretion. Where a witness then present in court desired to be in attendance at the bedside of his father, who -was seriously ill, the court did not abuse his discretion in refusing an application for a continuance on that ground, since the witness might then have been examined, out of turn, on order of the court, had an application of that kind been made or suggested.
    4. Trial — Introduction of Witness out of Order Held not Error. Where it appeared that the state had used all of its witnesses except one who was sick and not in attendance on the trial, but who could be present the next day, the court committed no error in permitting the state to introduce this witness out of order after the state had rested its case in chief, with the understanding at the time that this witness would be introduced in chief later.

      5. Evidence — Confession not Inadmissible Because Made Under Excitement. A confession should not be rejected merely because it was made under great excitement or mental distress, or fear, where such state of mind was not produced by extraneous pressure exerted for the purpose of forcing a confession, but springs from apprehension due to the situation in which the accused finds herself.
    6. Same — Confessions by Persons Said to be Mentally Deranged not Inadmissible. Generally, confessions made by persons said to be mentally deranged are not, for that reason, inadmissible, but the circumstances under which it was made are to be taken into consideration by the jury in determining the weight and credibility thereof.
    7. Same — One Desiring to Confess Should be Warned. It is better practice for peace officers and county attorneys to warn a person who desires to make an extrajudicial confession, in the absence of friends and counsel, that whatever statements he may make may be used against him at the trial. However, not every confession made without such precaution will be excluded.
    8. Judgment and Sentence — Where Jury to Inquire into Sanity of Convicted Defendant Unnecessary. Under the circumstances pointed out in the opinion, where the court, after due caution and examination, is of the opinion that' a convicted defendant, about to be sentenced, is then of sound mind, it is unnecessary to call a jury to inquire into her sanity.
    Appeal from Superior Court, Creek County; Gaylord E. Wilcox, Judge.
    Frances Taylor was convicted of murder, and she appeals.
    Affirmed.
    See, also, 20 Okla. Cr. 130, 201 Pac. 1119.
    Walter Mathews, for plaintiff in error.
    The Attorney General and J. Eoy Orr, Asst. Atty. Gen., for the State.
   BESSEY, J.

Plaintiff in error, Frances Taylor, in this opinion referred to as the defendant, was, by indictment filed in the superior court of Creek county, charged with the murder of Tennessee Watson. At the trial, November 23, 1921, she was found guilty as charged, and her punishment fixed at life imprisonment in the state penitentiary.

Tennessee Watson was living with her husband and baby on a farm near Oilton, near the farm and home of the defendant. Defendant owned her farm, and had working for her a man named Harrison Lee; she had been twice divorced and was living with Lee, although not married to him, at the time of the homicide. Willie Graham lived on another farm in the same neighborhood. All of the parties were colored, Willie Graham being a Creek freedman.

The testimony shows that on the morning of the homicide Hartman Watson, the husband of the deceased, left home, in company with his brother, and did not return home until late that night; that he left a loaded single-barreled shotgun hanging on his kitchen wall; that when he returned home he found the body of his dead wife lying on the floor, and found that she had been shot with this shotgun.

Willie Graham was arrested for the crime, and confessed to having shot deceased. He was given a life sentence for the crime. Willie Graham says that Frances Taylor, the defendant, had talked to him on a number of occasions, and tried to get him to kill Tennessee Watson for her; that she finally offered to pay him $1,000 for the job and agreed to pay him $50 of that amount cash, when he had killed the Watson woman. He stated that on the morning of the homicide he went to Frances Taylor’s home, and that she gave him a pint of whisky; that he drank most of it and got pretty drunk; that he went to the Watson home and shot Tennessee Watson, but that he was so drunk that he didn’t remember how he got away from the scene of the killing, but that within a short time afterwards he went to Frances Taylor’s house, where she paid him $11, a $10 bill and a $1 bill, and agreed to get the balance of the $50 for him the next day; that the next morning they had some conversation at Frances Taylor’s house, out near her hogpen, and that she wanted to give him a hog as part payment of what she owed him, but that he refused to take the hog. He stated that in the afternoon, immediately following the homicide, when he had gone to Frances Taylor’s house, that Harrison Lee was there, and that he saw him; he stated further that at the holding of the inquest when they began to talk about getting bloodhounds, he and the defendant left, and would not contribute anything toward the fund that was being raised for that purpose; that defendant told him to put pepper in his tracks.

Graham’s confession was corroborated by these circumstances: Hartman Watson, husband of the deceased, testified that Frances Taylor had talked to him, prior to the homicide, and had told him that his wife, Tennessee Watson, had been running over her, and that if she ever crossed her trail again “why, she was her meat.” Not long before the homicide, Hartman Watson and his wife went down to Frances Taylor’s house, and while there Frances and the Watsons engaged in a violent dispute. At that time Frances was armed with a pistol, which she held in her hand during the conversation. Harrison Lee, the man who was living with defendant, testified that he and defendant were sweethearts; that he had been living with her for about eight months; that defendant was jealous of his friendship with deceased, and that defendant had told him that she thought the Watson woman was trying to get him to quit staying with her; that she had told him about'it two or three times, the last time possibly a week before the killing; that although defendant was jealous of him, he had never had any improper relations with the deceased woman. He stated that he was present when Graham came to defendant’s house the afternoon of the killing.

In some particulars the confession of Willie .Graham was corroborated by the testimony of three neighbors, and by Oneeta Watson, and a deputy sheriff.

The first assignment of error urged in the brief is that the indictment does not charge this defendant with murder, in that it does not specifically state the homicidal act was committed by Frances Taylor, “with a premeditated design to effect the death of Tennessee Watson.”

The portion of the indictment setting out the charge is as follows:

“Said defendants, then and there being, did then and there willfully, unlawfully, and feloniously, without authority of law, make an assault upon one Tennessee Watson; that the said Willie Graham, then and there being, armed with, and holding in his hands, a certain dangerous and deadly weapon, to wit, a shotgun, loaded and charged with gunpowder and leaden bullets, did then and there willfully, unlawfully, fel-oniously, and without authority of law, and with the premeditated design of him, the said Willie Graham, to effect the death of the said Tennessee Watson, make an assault upon the said Tennessee Watson with the said shotgun, so loaded and charged; that the said Willie Graham then and there willfully, unlawfully, feloniously, and without authority of law, intentionally, and with the premeditated design then and there of him, the said Willie Graham, to effect the death of her, the said Tennessee Watson, did then and there discharge, shoot off, at, towards, against, and into the body of her, the said Tennessee Watson, one of the leaden bullets aforesaid, then and there striking the body of the said Tennessee Watson, then and there, and thereby inflicting upon the body of the said Tennessee Watson one mortal wound, of which mortal wound she, the said Tennessee Watson, then and there did die; and the said Fannie Taylor, then and there being, did then and there willfully, unlawfully, feloniously, without authority of law and with a design to effect the death of the said Tennessee Watson, in the manner and form aforesaid, aid, help, abet, comfort, assist, maintain, advise and encourage the said Willie Graham to kill and murder the said Tennessee Watson; and, in the manner and form aforesaid, willfully, unlawfully, feloniously, and premeditatedly kill and murder the said Tennessee Watson, as aforesaid.”

It will be seen that the indictment charged that the defendant conspired with Willie Graham to commit the crime, and that she aided and abetted him in its commission, and that she did so "with a design to effect the death of Tennessee Watson, in the manner and form aforesaid.”

A design to effect death is inferred from the killing unless the circumstances raise a reasonable doubt whether such design existed. Section 1734, Compiled Statutes 1921.

Words used in a statute to define a public offense need not be strictly pursued in an indictment, but other words conveying the same meaning may be used. Section 2562, Compiled Statutes 1921. And the words used must be construed according to their usually accepted meaning. Section 2561, Id.

By this test it appears that the indictment sufficiently apprised the defendant of the nature of the accusation she was required to meet, and that the indictment charged murder without authority of law, and with a premeditated design to effect the death of Tennessee Watson. No indictment is insufficient by reason of any defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the accused.

Counsel for defendant says, in support of this assignment of error, that his contention is sustained by the holdings of the court in Jewell v. Territory, 4 Okla. 53, 43 Pac. 1075, and the case of Holt v. Territory, 4 Okla. 76, 43 Pac. 1083. In the Jewell Case the averment was that the act was committed “with malice aforethought.” It was held insufficient because the term “with malice aforethought” did not necessarily mean that the homicidal act was done with premeditation. In the Holt Case the charge was that the act was done “willfully, unlawfully, purposely, * * # and of his deliberate and premeditated malice.” This was held not to necessarily mean that the act was done with a premeditated design to effect death.

The statutes covering our criminal procedure have eliminated many of the technical methods of stating an offense and the averments will be held sufficient where the offense is stated with clarity, according to the common acceptation of the language used, in such a way as will apprise the accused of the nature and import of the charge against him. Walcher v. Territory, 18 Okla. 528, 90 Pac. 887; Turner v. State, 8 Okla. Or. 11, 126 Pac. 152.

It is next urged that the court was without jurisdiction to try the defendant at Drumright. The act creating the superior court of Creek county, chapter 138, Session Laws 1917, provided for terms of court at Sapulpa, the county seat, and at Drumright. The indictment in this case was found by grand jury at Sapulpa. The county attorney made application to the court to remove the cause to Drumright for trial, for the reason that Drumright was more convenient for the witnesses, and nearer the place where the crime was committed than was Sapulpa. The defendant made no objection to this transfer from Sapulpa to Drumright, at the time, but now complains that the court was without jurisdiction to try the cause at the latter place. She also complains that after the trial at Drumright the court deferred pronouncing sentence, and fixed the time and place of pronouncing judgment at Sapulpa.

While there is no direct authority found in the act creating this court for transferring a cause from one of the places of holding court to the other, it seems that the court would have an inherent right, in his discretion, upon a proper showing, to transfer a cause from one division of the court to another division of the same court. In the case of Rosencrans v. United States, 165 U. S. 257, 17 Sup. Ct. 308, 41 L. Ed. 708, involving the question of the territorial jurisdiction of the Circuit Court of the United States in a criminal case, the Supreme Court, speaking through Mr. Justice Brewer, who delivered the opinion, said:

"No mere multiplication of places at which courts are to be held, or mere creation of divisions, nullifies it. Indeed, the place of trial has no necessary connection with the matter of territorial jurisdiction. * * * So far as1 the mere transfer of the place of trial from one division to another, it would seem, in the absence of express prohibition, to be within the competency of the court having full jurisdiction over the entire district, and certainly presents no ground of error when it is not at the time challenged, and the trial proceeds without objection.” People v. Warden of the City Prison, 117 App. Div. 154, 102 N. Y. Supp. 374.

The defendant next contends that the court erred in overruling his motion for a continuance because a witness then present in court desired to be in attendance at the bedside of his father, who was seriously ill. Under all the circumstances here the court did not abuse his discretion in refusing this application. The witness was in court, and might then have been examined, out of order, on order of the court, if an application of that kind had been made or suggested.

Defendant says next that the court erred in permitting the state to rest its case in chief, with a reservation of the right to introduce a witness, J. B. Andrews, later on. It appears that the state had used all its witnesses except Andrews, who was sick and not in attendance on the trial, but who could be present the next day. The next morning he appeared in court, and was permitted to testify relative to an- alleged confession made by the defendant. This, it seems, was within the discretion of the court. Section 2687, Comp. Stats. 1921, provides that the “parties may then, respectively, offer rebutting testimony only, unless the court for good reason, in furtherance of justice, or to correct an evident oversight, permit them to offer evidence upon their original ease.” This statute, as well as sound reason, indicates that the order of the admission of testimony rests in the sound discretion of the trial court. Harvey v. Territory, 11 Okla. 156, 65 Pac. 837.

The next assignment of error, and one upon which defendant’s counsel places much emphasis, is with reference to a confession of defendant made to a deputy sheriff. The claim is made that at the time this confession was made, the defendant was insane, and that the confession was involuntary, and made under the stress of fear and excitement; that she was afraid that a mob was coming to take her from the jail; that she was at the time mentally incapable of making any statement entitled to credence; and that the court erred in admitting this confession for any purpose whatever. Upon this feature of the ease, the testimony of the deputy sheriff, J. B. Andrews, is as follows:

“Q. How did you come to have a conversation with her? A. Well, Mr. Fox, the jailer, was inside doing something, and I was standing in the door, and this defendant, Frances Taylor, was in the jail in the cell, and she saw me standing in the jail, and she called me over and wanted to talk to me.
“Q. Did she call you? A. Yes, sir.
“Q. Did she seem to be rational? A. She seemed to be.
“Q. Did she talk to you? A. Yes, sir.
‘‘Q. Did you lead her out, or did she say what she did, voluntarily, to you? A. Well, I will give you a part of the conversation so you may judge correctly. I said, ‘Frances, what do you want, what is the matter with you, what have you done you want to talk to some one?’ ‘Well/ she says, ‘What are you going to do with me?’ and I says, ‘I don’t know what they are going to do with you. I don’t know that anybody is going to hurt you.’ I said, ‘You have done something you want to talk to somebody all the time/ and I said, ‘What have you done?’ ‘Well/ she says, ‘I told Jody to go down there and kill that woman, and I would give him $50.’ And I said, ‘What woman?’ and she said, "Tennessee Watson.’
‘‘Q. Did she talk heartily to you? A. Yes, sir.
“Q. In a rational manner? A. Yes, sir.
‘‘Q. Intelligent manner? A. Very intelligent; yes, sir.
‘‘Q. Did you use any persuasion, or promise, or duress? A. No, sir.
‘‘Q. You did not prompt her? A. No, sir.
‘‘Q. You did not ask her to say anything to you? Did not ask her for the confession? A. No, sir.”

Defendant’s attorney testified that on the day following defendant made some wild statements about a blanket she had, being a pretty dress, and about God painting some pictures on the wall of the jail, and other remarks that would lead one to believe that she was not in her right mind; that she told him that her babies were going to be scalded, and that her lover, Lee, was dead, and that she made a lot of other wild remarks calculated to make one doubt her sanity. An undersheriff testified that the mental condition of 'defendant had been all right up until the time her attorney talked to her, some time Monday evening.

Upon this issue the defendant requested the following instruction, which was by the court refused:

“You are instructed that before you should consider any confession or admission made by the defendant, Frances Taylor, for any purpose, you should ascertain whether it was voluntarily made by her. In this connection the court instructed you that if, at the time she made the confession or admission, if you find that she did make such confession or admission testified to, she was not conscious of what she was saying or was in fear of bodily injury to herself or members of her immediate family, though her belief that she would receive such injury was wholly unfounded, or so mentally deranged as not to- know or understand what she was saying, or the nature and consequences of her statements, you should not consider such confession, for any purpose, in arriving at a verdict in this case.”

The court, in lieu of the instruction requested, gave the following:

“You are instructed that oral statements made by the defendant, as testified to and offered as evidence in this case, tending to show the confession of the defendant, that such verbal admissions, consisting of mere oral statements by the defendant, are termed ‘extrajudicial confessions,’ and that such confessions are those made by the party elsewhere than before the magistrate or in court, and that such verbal admissions may be subject to much imperfection and mistake, for the reason that-the defendant may not have expressed her exact meaning, or that the witness may have misunderstood the exact language used; but you are the exclusive judges of the weight and credence to be given to such evidence in this case.
“But if you find that the defendant did make any admissions or statements at any time, you will consider these things, together with her knowledge of the English language, and her power to express herself clearly, her illness or sickness, if any, at the time, and her general intelligence. If the admissions were freely, voluntarily, without fear, hope of reward, understanding^, and deliberately made, and clearly proved, the jury may, in their discretion and are at liberty to give them such weight and credence in their deliberations.”

The rule generally adopted in regard to admissions or confessions made by persons said to be mentally deranged is that the admissibility or voluntary character of the confession is not affected thereby, but the circumstances are to be taken into consideration by the jury in weighing the evidence. A confession under such circumstances should not be rejected merely because it was made under great excitement or mental distress, or fear, where such state of mind was not produced by extraneous pressure exerted for the purpose of forcing a confession, but springs from apprehension due to the situation in which the accused finds herself. 1 R. C. L. 562; Cases and Annotations, 18 L. R. A. (N. S.) 788-790; State v. Berberick, 38 Mont. 423, 100 Pac. 209, 16 Ann. Cas. 1077.

The testimony of the attorneys for defendant, to the effect that the defendant was for some time in such a state of mind that they could not intelligently converse with her, and that, in their opinion, she was wholly irresponsible, related to her mental condition not at the exact time she made the confession, but at a time beginning the day following, and on subsequent days. We hold therefore, that, under the rule above announced, the court committed no error in refusing to give the instruction requested, or any other instruction to the effect that the jury should not consider the confession for any purpose whatever; and that the instruction given was proper under all the circumstances in the case. If the testimony had showed that at the time the confession was made the confessor was insane or without understanding, the rule announced in Grayson v. State, 40 Tex. Cr. R. 573, 51 S. W. 246, and the case of State v. Mason, 4 Idaho, 543, 43 Pac. 63, would apply. Our own court, in the case of Berry v. State, 4 Okla. Cr. 202, 111 Pac. 676, 31 L. R. A. (N. S.) 849, held:

“The admissibility of a confession, where it is challenged, is a question solely for the court, after hearing, in the absence of the jury, all the evidence on each side respecting the circumstances under which the confession was made; and the court is vested with a large discretion in determining the matter.
“After a confession has been admitted, the defendant is entitled to have the evidence, in regard to the circumstances under which it was made, given anew to the jury, not that the jury may pass upon its competency or admissibility, but for the purpose of enabling them to judge what weight and value should be given to it as evidence; and, upon his request, the defendant is entitled to an instruction on that point. ’ ’

The rule of practice, so announced, was followed exactly in this ease. The record discloses that no force or coercion was used to obtain the confession. (The confession was therefore voluntary, and was proper for the consideration of the jury for whatever it might be worth. The fact that the defendant may have been excited or in fear of mob violence, or fearful for the safety of her children, did not affect the admissibility of the confession, but was proper for the consideration of the jury as affecting its weight and credibility, as outlined by the court in the instructions.

It is better practice for peace officers and county attorneys to warn a person who desires to make an extrajudicial confession, in the absence of friends and counsel, that whatever statements may be made might be used against the accused at the trial. This and'other courts have often denounced what is commonly known as “third degree” procedure. However, not every confession made without such precaution will be excluded. In this case there was no attempt to force or coerce, or to obtain the confession by means of any trick or deception — a situation quite different from that in the case of Miller v. State, 13 Okla. Cr. 176, 163 Pac. 131, L. R. A. 1917D, 383, wherein Judge Doyle denounced third degree methods. Officers should warn a prisoner before listening to confessions, but we think it would be going too far for the court to say that, to make a confession admissible, the officer mast warn the prisoner. In the case of Reagan v. People, 49 Colo. 316, 112 Pac. 785, the court said:

"It is not the duty of a police officer to caution a prisoner as to the consequences of making a statement, which is voluntary, but merely to refrain from inducing him to make one; though the better course is to warn the prisoner that the statement may be used against him.”

The same rule has been announced by the Supreme Court of the United States in Bram v. U. S., 168 U. S. 532, 18 Sup. Ct. 183, 42 L. Ed. 568.

The order made at Drumright, deferring sentence, was as follows:

"Court refuses to pass sentence on defendant at this time on account of her evident mental unsoundness and disability. Judgment'hereby suspended until further. order. Defendant, Frances Taylor, to be taken to Sapulpa for observance in the county jail.”

On December 17th, at Sapulpa, defendant was brought into court, and an examination had as to her sanity, covering several pages of the record, in which the court made inquiry of the county attorney, the jailer, and the doctor, as to her mental condition, and then pronounced sentence, in accordance with the verdict previously rendered.

Section 2769, Comp. Stats. 1921, is as follows:

“Defendant may show canse against judgment: * * *
“First, that he is insane; and if, in the opinion of the court, there is reasonable ground for believing him to be insane, the question of his insanity must be tried as hereinafter in this chapter provided for. If, upon the trial of that question, the jury find that he is sane, judgment must be pronounced, but if they find him insane, he may be committed to one of the state lunatic asylums until he becomes sane, or be otherwise committed, according to law; and when notice is given of that fact, as hereinafter provided, he must be brought before the court for judgment.”

We deduce from the record that the court was of the opinion, and found, upon this examination, that on December 17, 1921, there was no reasonable ground for believing defendant insane, and held accordingly; and that it was therefore unnecessary to call a jury to pass upon her sanity, pursuant to the terms of this statute.

The situation here was not such as was disclosed in the case of Marshall v. Territory, 2 Okla. Cr. 136, 101 Pac. 139. In that ease the court took testimony regarding the sanity of the defendant from several witnesses, including the county clerk, Thomas H. Doyle, counsel for the defendant, and several doctors, all of whom were of the opinion that the defendant was insane. The court, disregarding all this testimony, refused a jury trial to inquire into the sanity of the defendant. Special Judge Fulton of this court held that it was reversible error. The statutes at that time, moreover, were different from the statute above quoted, and the facts and circumstances of the case were different.

We hold that the evidence in this case was sufficient to support the verdict; the instructions of the court, separately and as a whole, were fair to the defendant; and we find no irregularity in the trial sufficient to disturb the verdict. The judgment of the trial court is therefore affirmed.

MATSON, P. J., and DOYLE, J., concur.


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    G. T. GRAY v. STATE.
    No. A-4439.
    Opinion Filed May 26, 1924.
    (225 Pac. 994.)
    (Syllabus.)
    Intoxicating Liquors — Evidence not Sustaining Conviction for Sale. See opinion for evidence held to be insufficient to justify a conviction for the unlawful sale of intoxicating liquor.
    Appeal from County Court, Pittsburg County; S. P. Brown, Judge.
    G. T. Gray was convicted of the unlawful sale of liquor, and he appeals.
    Reversed.
    Geo. M. Porter and J. L. Puller, for plaintiff in error.
    George P. Short, Atty. Gen., and G. B. Pulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges G. T. Gray with the unlawful sale of one-half pint of whisky to one Isaiah Pickens. The trial resulted in a verdict finding the defendant guilty, and fixing his punishment at confinement in the county jail for three months and a fine of $200. He has appealed from the judgment rendered upon such conviction.

The only question presented is whether the conviction is supported by the evidence.

The sole witness for the state was Isaiah Pickens, a full-blood Indian, who testified:

“I saw G. T. Gray sitting in his car. He motioned to me, and said, ‘to come to his office, he had something to drink.’ I got in the car, and Sam Moore came along. I made a motion to Sam Moore to come on and he got in the ear. "We went to Dr. Gray’s office. We ordered corn whis-ky. He left and came back in about 30 minutes with a half pint. I paid him $1.50, and Sam Moore paid him $1.50 for the whisky. We 'drank it right in the office. I took the first drink, nearly half of it, and Sam Moore drank the rest, and we left the office about 10 o’clock in the forenoon. I got drunk, and when I got sober I was in jail. I do not know who arrested me, and I don’t know where I was when I signed this complaint against Dr.' Gray. I did not talk to anybody about this case before I signed the complaint. I told them that Dr. Gray sold me the whisky, and they agreed to let me off if I signed the complaint.”

On the part of the defendant, Sampson Moore testified:

“I saw Isaiah Pickens and Dr. Gray sitting in a ear. Isaiah told me to get in and ride; that he was going up to Dr. Gray’s office; that he had been drunk the day before and had the hiccoughs, and wanted to get some medicine. Dr. Gray went in the little room and fixed up some medicine and came out with a little bottle and give it to Isaiah, and .he drank it up. It was about 10 o’clock. We walked out and went up Choctaw avenue to a choc joint. Isaiah bought some choc, and we drank it; then went to Jones’ restaurant, and got some barbecue; then we went back to the choc joint, and both of us got drunk. The next day Isaiah said he got arrested. ’ ’

S. Jones testified that Isaiah Pickens and Sampson Moore came to his place about 12 o’clock and asked if the meat was ready; that neither appeared to be intoxicated, and after eating they went down the street, and they came back about 2:30 that afternoon, and they seemed to be pretty drunk. Sampson Moore laid down and went to sleep, and Pickens staggered on towards town.

Three or four other witnesses testified that they saw Pickens and Moore that day in Shield’s joint drinking choc beer.

As a witness in his own behalf, G. T. Gray testified:

“I had just paid my bill at the electric • light office. I met Pickens; he was hiccoughing, and asked if I could stop it. I said, ‘Yes; come oil.’ He got in the ear, and called Sampson Moore to come with us. I fixed up some medicine to relieve him. It was a 4-ounce bottle containing simple syrup and 8 drops each of belladonna and Pacific tincture of lobelia. I charged him $1.50. He paid me $1.25, saying that was all he had.”

The cases are rare in which this court interferes to disturb the judgment 'of the trial court, and it is only in a case where the verdict is clearly contrary to the evidence, or where, from the doubtful character of the evidence against the defendant and the preponderance in his favor, is such that it is evident that the jury were influenced by passion or prejudice, that a judgment will be reversed because the evidence is insufficient to sustain it. De Freece v. State, 9 Okla. Cr. 689, 133 Pac. 254.

We think it would be destroying the presumption which arises in favor of the innocence of the accused and permitting the subversion of the rule which requires the establishment of guilt beyond a reasonable doubt to allow this conviction to stand.

The judgment of the trial court is therefore reversed.

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


text:
    JOHN SEICK et al. v. STATE.
    No. A-4448.
    Opinion Filed May 26, 1924.
    (225 Pac. 995.)
    (Syllabus.)
    1. Appeal and Error- — Affirmance—Absence of Briefs and Argument. In a criminal case, where the- defendant appeals from a judgment of conviction, and no briefs are filed or argument presented, this court will make an examination of the case-made, and, if no error is apparent, will affirm the judgment.
    2. Larceny — Evidence Sustaining Conviction for Larceny of Automobile. In a prosecution for stealing an automobile, evidence held to sustain verdict and judgment of conviction.

      Appeal from District Court, Logan County; C. C. Smith, Judge.
    John Seick, Jr., and Bessie Harford were convicted of grand larceny, and they appeal.
    Affirmed as to John Seick, Jr., and appeal dismissed as to Bessie Harford.
    Orban C. Patterson, for plaintiffs in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charges Clarence Barnard, John Seick, Jr., and Bessie Harford with the theft of one Ford touring ear, of the value of $400, the property of Swain Austin. The case was dismissed as to the defendant Clarence Barnard, and he testified as a witness for the state. The trial resulted in the jury returning a verdict finding John Seick, Jr., guilty, and fixing his punishment at imprisonment in the penitentiary for the term of 20 years, and finding Bessie Harford guilty, and fixing her punishment at imprisonment in the penitentiary for the term of 5 years. From the judgment rendered on the verdict March 18, 1922, they appealed by filing in this court on September 9, 1922, a petition in error, with case-made.

It appears that on November 30, 1922, Bessie Harford was granted a parole by the Governor, and for this reason the appeal as to her is dismissed.

The undisputed facts are that Swain Austin, the owner of a Ford touring car, left it standing in front of the Masonic Temple in Guthrie at about half past 7 o’clock of the evening of October 26, 1921; in about two hours thereafter the owner returned to the place where he had left his car, and it was gone; it was recovered about 2 o’clock the next morning on the road east of El Reno, at which time it was being driven by the defendant Barnard; the other two defendants were following Barnard in a Ford car.

As a witness for the state Clarence Barnard testified:

"John Seick came out to the hospital, 510 East Sixth street, Oklahoma City, around 3 o’clock, and asked me to go to Guthrie with him and help steal a ear; that he would give me $50 if I would knock one away from the curb for him; I went with him. He stopped where he was living with Bettie Baker, here called Bessie Harford; she got in the car, and rode in the front seat with him. On the way we talked about getting a car. He said he would give me $50 if I would drive it out of town; then he would take it and go on; he was to furnish the key and switch number. We stopped at a garage in Guthrie; then went to my former wife’s home; we had supper; we left there, and drove around town, and stopped at the Ford garage, where he had his car fixed. He paid the bill, and grumbled about it being so high. Then we drove around the Masonic Temple two or three times and parked across from the temple; as we drove by we picked out a car. While I stood in front of the temple, he took the switch number with a flashlight. We walked back to his car, where Bettie was, and he said he had a bunch of keys, from 1 to 75, that would unlock any Ford. He took one off the ring; it was number 52. He said that was the number of the switch on the car' he looked at. He then said he would drive out North Broad and wait for me. I unlocked the car, and drove up North Broad, passed them and turned west, then south along the interurban line. He passed me below the railroad track, and motioned me to follow him. About half way to El Reno I ran out of gas, and flashed the lights, and he came back and gave me gas out of his car. We went on until I ran out of gas again. He drove up and told me to go up to the house and get some gas. I took a bucket and went up to the house, and while I was there he and Bettie drove in. The man gave us gas out of a big truck. I left them there, and went back to the car and poured in the gas, and as I started up some fellows hunting for a car stolen in El Reno arrested me. John and Bettie drove back and talked to these fellows, and then drove off towards Oklahoma City. Seick had a forty-five United States Colts automatic, and I had one.”

Five or six other witnesses testified for the state. At the close of the evidence for the state the defendant demurred to the same, and asked the court to instruct the jury to return a verdict of acquittal, which the court refused to do. This is assigned as error.

As a witness in his own behalf John Seick, Jr., testified:

“I live in Oklahoma City.-.' I know Clarence Barnard. He is commonly known as ‘Shy..’; I was standing on a street corner. He came by and said Ré .wanted to hire a car to go to Guthrie, and I told him it would cost him $25 if I brought him up here. He said, ‘All right,’ he had the money to pay; he got into the ear, and we started down town. I said, ‘Well, Shy, I am going to go out and get my girl.’ He said, ‘Are you going to take her with you?’ I said, ‘I am, absolutely.’ He said, ‘Well, that is all right.’ I picked up Miss Bessie Harford, and we started for Guthrie, arriving there about 5 o’clock. We all went out to his father-in-law’s, and I should judge we were there an hour. We then drove to the Ford agency, and on the way I asked him for my services bill. He handed $25 to Bessie, and she handed it to me. I got a brake shoe put on at the Ford agency. We drove on a little further, and he said something about having a car, or some of his people had a car. I said, ‘We will wait on you if you won’t be gone long’; in a little bit he drove up in a car. He told me to follow him, and I did. After we had gone about four miles he stopped, and he says, ‘You go ahead and lead the way.’ He says, ‘I am going to take this car to El Reno, if you will lead the road to El Reno, I will pay you for it when we get there.’ The next stop was at Yukon. I ran out of gas and so did he. We got the gas at a farmhouse, he left his car about a quarter from the house, and got his gas in a bucket; as he got his, he remarked to me, ‘Will you pay for this gas?’ I says, ‘Yes, but you will have to pay me back.’ We drove from the farmhouse. [There were three fellows in a car there. I said ‘What is wrong?’ One of the parties said, ‘That is a stolen car.’ I remarked to Bettie, ‘I am glad we don’t know nothing about it,’ and we drove back to Oklahoma City. I did not offer to pay Barnard $50 to go to Guthrie and steal a car.”

No brief has been filed, and the defendant is not represented in this court. However, we have carefully gone through the record, and find it free from substantial error.

It is the province of the jury to try the issue joined by a plea of not guilty, and, if the evidence of the state uncon-tradicted will support a conviction, this court will not ordinarily interfere with the verdict against the defendant.

We find the verdict has ample support. The judgment herein against the defendant, John Seick, Jr., is accordingly affirmed.

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


text:
    In re JASPER MORGAN.
    No. A-5173.
    Opinion Filed May 29, 1924.
    (226 Pac. 117.)
    (Syllabus.)
    Venue — Law Providing Change of Venue in Misdemeanor Cases Before Justice of Peace Mandatory. Where a person charged with the commission of a misdemeanor, before a justice of the peace, when brought' before such justice files an affidavit for a change of venue under and in accordance with the provisions of section 2966, Comp. Stat. 1921, the duty of such justice to grant the change is mandatory, and such justice can only enter a proper order transferring the cause to another justice of the peace as the statute provides.
    Habeas corpus by Jasper Morgan for release from custody.
    Writ allowed, and petitioner discharged.
    John B. Ogdon, for petitioner.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for respondent.
   DOYLE, J.

This is an application by Jasper Morgan to this court for a writ of habeas corpus, directed to the sheriff of Carter county, in whose custody the petitioner is held under a sentence pronounced against him by Ben F. Coe, a justice of the peace at Wilson,.in said county, wherein he was sentenced to be confined in the county jail for 30 days, and to pay a fine of $10 and $47 costs. Attached to and made a part of the petition are copies of the complaint, affidavit for change of venue, and commitment against him.

It is averred in the petition that his detention “is illegal, in this, that on the 1st-day of May, 1924, the day the complaint was filed and date of the arrest of petitioner on said charge, he filed in the justice court, before the said Ben F. Coe, his certain motion, supported by affidavit as required by law asking the court to grant a change of venue; that said affidavit was filed before any witnesses had been subpoenaed; that the said justice of the peace failed to act or overrule said motion, and on'May 7th proceeded with the trial of said cause; that said court was without jurisdiction to render any judgment of any kind or to issue said commitment or to do any act or proceedings other than to transfer said cause as set. out by law, for which reason said judgment is null and void for want of jurisdiction. It is further averred that on the 13th day of May, Hon. W. F. Freeman, judge of the district court of Carter county, after hearing said petition, denied the same and refused to discharge petitioner. On the filing of the same in this court an order to- show cause was entered and issued, and upon the return day, the parties appearing by counsel, the cause was argued and submitted. Thereupon it was ordered by the court that petitioner be discharged; the court holding that upon the filing of a proper affidavit for a change of venne, as was done in this case, it was the duty of said justice to transfer the cause to another justice of the peace.

Section 2966, Comp. Stats. 1921, provides:

“In criminal proceedings a change of place of trial may be had in a cause triable before a justice under the provisions of this article, or upon which a preliminary examination may be held, at any time after the defendant appears, and before any subpoenas are issued, when he or some one for him files an affidavit that he has reasons to believe and does believe that he cannot have a fair and impartial examination or trial, as the case may be, before the justice or county judge, whereupon the county attorney, or some one for him, may file an affidavit alleging the same disqualification against any one justice to whom it is proposed to send the cause for further proceedings, and thereupon the cause shall be sent to the next nearest justice, who is in no way related to the defendant or prosecuting witness or party injured who is not a witness and has not been an attorney in the cause, and who may not be absent or physically be unable to act. The parties may agree upon a justice, whereupon the cause shall be sent to that justice. But one such change shall be allowed. No witnesses shall be subpoenaed for either party until after the defendant has been brought before the justice, and been offered an opportunity to change the venue or has changed it, if he elects to change, and the date for the hearing has been fixed.”

By numerous decisions of this court it has been held that in a criminal proceeding when the defendant files an affidavit that he has reason to believe, and does believe, that he cannot have a fair and impartial trial before the justice of the peace, his duty in the case thereafter is purely ministerial, and such justice can only enter a proper order transferring the cause to another justice of the peace as the statute provides: Ex parte Van Fleet, 16 Okla. Cr. 713, 183 Pac. 986; Garnett v. State, 15 Okla. Cr. 332, 176 Pac. 769; Cress v. State, 14 Okla. Cr. 521, 173 Pac. 854. And see Marshall v. Sitton, 68 Okla. 175, 172 Pac. 964. In Cress v. State, supra, it is said:

“It is a well-settled principle that, when an accused is entitled to a change of venue from a magistrate court, he is required only to file the statutory affidavit, and, if the magistrate takes any action in the cause after the affidavit for change of venue is filed, such proceedings are void.”

It follows that the proceedings had upon the trial and conviction of petitioner were illegal and void, and the justice of the peace was without jurisdiction to render the judgment or issue the order of commitment thereon. Accordingly, petitioner is entitled to a discharge from the imprisonment of which he complains. He is therefore by the judgment of this court discharged therefrom.

BESSEY, J., concurs.

MATSON, P. J., absent, and 'not participating.


text:
    JAMES WILKERSON v. STATE.
    No. A-4456.
    Opinion Filed June 2, 1924.
    (226 Pac. 113.)
    (Syllabus.)
    Intoxicating Liquors — Evidence Sustaining Conviction for Unlawful Transportation. The evidence held sufficient to sustain the verdict.
    Appeal from County Court, Oklahoma County; W. R. Taylor, Judge.
    James Wilkerson was convicted of the illegal transportation of intoxicating liquor, and he appeals.
    Affirmed.
    Ed. Boyle, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

James Wilkerson, plaintiff in error, was convicted in the county court of Oklahoma county of unlawfully transporting intoxicating liquor, to wit, corn whisky, and his punishment was fixed at a fine of $100 and confinement in the county jail for a period of 60 days, and he appeals from the judgment so rendered against him.

At the time of the alleged offense the plaintiff in error was operating a gasoline filling station on Grand boulevard, at the outskirts of Oklahoma City. At about 9 o’clock at night two deputy sheriffs concealed themselves near this filling station and saw plaintiff in error go to a spot about 150 feet from the filling station, where he stooped over and uncovered something hidden in the ground. As he returned towards the filling station, passing near where these deputies were hidden, they commanded him to halt; instead of obeying their command he ran from them and threw a glass jar against a post, breaking the jar and spilling the contents; the officers stated that from the odor permeating the atmosphere the jar contained corn whisky. One of the officers then went to the place where plaintiff in error had unearthed the jar and found another container filled with corn whisky.

Plaintiff in error contends that the evidence is insufficient to support the charge of transporting intoxicating liquor, chiefly upon the ground that the testimony of these deputies is unworthy of belief.

Under the circumstances this was a question solely for the jury. The evidence justified the jury in arriving at the verdict as rendered. The instructions of the court were fair, and, no substantial error appearing in the record, the judgment of the trial court is,affirmed.

DOYLE, J., concurs.

MATSON, P. J., absent and not participating.


text:
    E. L. WARD v. STATE.
    No. A-4424.
    Opinion Filed June 2, 1924.
    (226 Pac. 113.)
    (Syllabus.)
    Intoxicating Liquors — Unlawful Possession — Insufficient Evidence. In a prosecution for unlawful possession of intoxicating liquor, evidence considered, and held insufficient to sustain verdict and judgment of conviction.
    Appeal from County Court, Harmon County; E. C. Abernathy, Judge.
    E. L. Ward was convicted of a violation of the prohibitory liquor law, and he appeals.
    Reversed.
    Stewart & Williams, for plaintiff in error.
    George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for the State.
   DOYLE, J.

Appellant, E. L. Ward, was convicted on a charge that he did have in his possession about four or five gallons of intoxicating liquor, to wit, grape wine, which contained more than one-half of 1 per cent, of alcohol, with the unlawful intent to sell the'same, and his punishment fixed at 60 days in jail and a fine of $250. To reverse the judgment entered on the verdict he appeals.

On the day set for hearing an application for a postponement or continuance was presented and denied. Appellant’s affidavit contained all the formal allegations required by law, and among others the following statements: That the only basis for the claim of the state is the fact that the defendant did have on hand some grape juice, intended for the use of his family; that such grape juice was prepared for the use of his wife and children, and if there was any alcohol in the same in the excess of one-half of 1 per cent, it was absolutely without the knowledge or consent of this defendant; that defendant’s wife, Nancy A. Ward, is the only person outside of the defendant who has full knowledge of all the facts and circumstances connected with said grape juice; that if present at the trial of this case she would testify that said grape juice was prepared for drinking purposes as a nonalcoholic beverage; that such grape juice was prepared from grapes during the grape season of 1921, and that at the time that the same was seized by the officers it had become sour and was left in the barrel for the purpose of making vinegar for the use of the defendant and his family; that he and his wife have five children living; that the two youngest are twins and babes in arms; that his wife has been very ill for the last 2 weeks, so much so that he had to do the house work; that he lives 18 miles from Hollis, and there have been heavy rains in Harmon county the past few days, and the roads are very heavy with mud; that his wife is in such a condition physically at this time that it would be injurious to her health to be present at this time; that one of their twin babies is sick, and it would be necessary to bring the babies in case his wife could come; that the defendant cannot safely proceed to trial at this time without the presence of his wife as a witness to testify to the above facts.

The evidence shows that on the 19th day of September, 1921, E. T. Smith, a deputy sheriff, and Chester Bilderback visited the premises of the defendant. Smith testifies:

"We went to the house and asked for Mr. Ward, and his wife said that he was in the field at work. I left Mr. Bilderback at the barn and went to the field to see Mr. Ward. I asked him what he was doing, and he said he had made a little grape wine, and it was in a barrel at the barn. We went to the bam and found about five gallons of what I call grape wine. I told him that I did not know whether it was intoxicating enough to be a violation of the law; but I would take a sample and turn it over to the county attorney, and let him know later whether we wanted him or not. So I-took a sample in a quart fruit jar, and the next day I sent it to the- county attorney by Sheriff Horton and Mr. Brisco, who were at Gould. I did not have a search warrant, but he made no objections.”

B. B. Brisco, undersheriff, testified -that Bd Smith delivered to him a fruit jar containing a beverage, saying that he had taken it from the defendant; that he brought the jar to Hollis, and the county attorney sent it to Oklahoma City through the mail to a chemist at the "Wesley Laboratory.

Against the defendant’s objection the 'deposition of Dr. L. B. Ritter was read, to the -effect that he made an analysis of the liquid received through the United States mail from the county attorney of Harmon county, and that the same contained 7.97 per cent, grain alcohol by volume. When the state rested, the defendant demurred to the evidence, and moved that the court advise the jury to acquit him, on the ground that the same was insufficient to show the commission of a public offense.

The testimony of the defendant in his own behalf is as follows:

"When Mr. Smith and Mr. Bilderback came to my home, I was working in the field. I had 4 or 5 gallons of grape juice in a barrel in the barn, and it was made by putting two gallons of grape juice in about 20 gallons of water with some sugar.”

That he did not use yeast or anything else to hasten fermentation. That .his family used it on the table. That after it began to sour we decided to make vinegar out of what was left. That he never had any intention to sell, barter, or give away any of this liquid, and if it contained alcohol in excess of one-half of 1 per cent, he did not know it. That Mr. Smith took a half gallon jar of it, instead of a quart. That he made no objection to him doing this.

C. D. Hill testified that he had been acquainted with the defendant all his life, and knew his general reputation as to being an upright, law-abiding citizen in the community where he lives, and it was good; that he was at his home about the 1st of September, and drank three or four glasses of this grape juice, and it was not intoxicating.

W. D. Hill testified that he was not related to witness C. D. Hill; that as a neighbor he visited defendant’s home several times, and often drank two or three glasses of this stuff, and it did not have any intoxicating effect.

Jim Madlock testified that he had known the defendant all his life, and knew his general reputation as to being an upright, law-abiding citizen in the community in which he lives, and it is good.

Sam West testified that he was minister in the Baptist Church for the past 16 years, and lived on the place adjoining that of the defendant, and knew his reputation as to being an upright, law-abiding citizen in that community, and it was good.

Some expert testimony was introduced to show that all fruit juices form alcohol when they ferment, and that vinegar is produced by acetous fermentation, which converts the alcohol into acetic acid.

The assignments of error argued in the briefs number 22. However, we deem it entirely unnecessary to consider more than one. It is insisted that there was not sufficient evidence to sustain the verdict. In the brief of counsel this contention is 'directed to the allegation of insufficiency of the proof that the liquid was intoxicating, and that there was no evidence of unlawful intent.

To warrant or sustain a conviction there must be evidence sufficient to prove that an offense has been committed, and also to inculpate the defendant in its commission. It is a universal doctrine that, to constitute what the law deems an offense, there must concur both an evil act and an evil intent. When we recall the presumption that the law always indulges in as to the innocence of the accused, and the necessity of establishing guilt beyond a reasonable doubt, and consider the force and effect which in a case of this kind should have been given to evidence of previous good character, we think it would have been a proper exercise of the power'vested in the trial court to have advised the acquittal of the defendant, upon the ground that the evidence was not sufficient to sustain a conviction.

In our opinion, it would be destroying the presumption which arises in favor of the innocence of the accused, and permitting the subversion of the rule which requires the establishment of guilt beyond a reasonable doubt, to allow, this conviction to stand. An honorable upright life ought to be worth something to a man when accused of crime, evidence of good character should have its due weight in favor of the accused, and we think the defendant in this case was entitled to the benefit of it. In our opinion, the testimony on the part of the state as a matter of law must be held insufficient upon which to base a judgment of conviction.

The judgment of the lower court is accordingly reversed.

BESSEY, J., concurs.

MAiTSON, P. J., absent.


text:
    WILLIAM BOYLE v. STATE.
    No. A-4319.
    Opinion Filed June 5, 1924.
    (226 Pac. 389.)
    (Syllabus.)
    1. Evidence — Confessions—Proof Aliunde of Corpus Delicti. In a criminal case, a conviction cannot be had on the extrajudicial confession of the defendant, without evidence aliunde of the corpus delicti, but direct and positive proof of that fact is not indispensable.
    2. Intoxicating Liquors — Evidence Sustaining Conviction for Unlawful Transportation. Evidence examined, and held not sufficient to sustain a conviction on a charge of transporting intoxicating liquor.
    Appeal from County Court, Cotton County; J. C. Norman, Judge.
    William Boyle was convicted of transporting intoxicating liquor, and he appeals.
    Reversed.
    D. B. Madden and Walter Hubbell, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error, William Boyle, was convicted on a charge that he did “unlawfully transport one 4-ounce bottle of corn whisky from the south side of the Model Drug Store to the rear of a soft drink parlor known as “Charley’s Bar,” both places located in Walters, and his punishment fixed at a fine of $50 and 30 days in jail. He has appealed from the judgment rendered on the verdict.

It is assigned as error that the verdict is contrary to law and the evidence, in that the proof of the corpus delicti is based solely upon the extrajudicial confession of the defendant.

The only witness sworn was W. T. Stapp, chief of police of Walters, who testified:

“I arrested the defendant because he was drunk, and I found this little bottle of whisky in his pocket. I took him to the county attorney’s office, and we took his statement. He said he had been feeling bad, sick, or something, and met a fellow he did not know on the south side of the Model Drug Store, who sold him a little pottle of whisky for $1, that he then went through Charley’s place and out the back way with Mr. Horn, and had just taken a drink when arrested there..’ ’

It is a well-settled rule in. this state that a conviction cannot be had on the extrajudicial confessions of the defendant, without evidence aliunde of the corpus delicti. Shires v. State, 2 Okla. Cr. 89, 99 Pac. 1100; Choate v. State, 12 Okla. Cr. 560, 160 Pac. 34, L. R. A. 1917A, 1287; Henry v. State, 14 Okla. Cr. 189, 169 Pac. 658.

“That a crime has actually been committed must necessarily be the foundation of every criminal prosecution, and this must be proved by other testimony than a confession; the confession being admitted merely for the purpose of connecting the accused with the offense. In the United States there is an almost unbroken current of decisions against the sufficiency of an extrajudicial confession to warrant a conviction for an alleged crime; the corpus delicti not being otherwise proved.” 10 Ann. Cas. 913, and note.
“The grounds on which the rule requiring independent proof of the corpus delicti rests are the hasty and unguarded character which confessions often have, the temptation which for one reason or another a person may have to say that which he thinks is most for his interest to say, whether true or false, the liability which there is to misconstrue or report inaccurately what has been said, the danger of a conviction when no crime may have been committed, the difficulty of disproving what may be said, and the feeling that the rule best accords with the humanity of the criminal law and with the great degree of caution applied in receiving and weighing the evidence of confessions in other cases.” 1 R. C. L. p. 588.

Upon the record in this case we hold that the evidence is insufficient upon which to base a judgment of conviction. The judgment is accordingly reversed.

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


text:
    J. T. JOHNSON v. STATE.
    No. A-4452.
    Opinion Filed June 7, 1924.
    (226 Pac. 593.)
    (Syllabus.)
    Evidence — Lost Instruments — Insufficiency of Evidence of Loss to Admit Copy. Where the very essence of a controversy is the correctness of a purported copy of a written instrument, such copy should not be admitted in evidence, unless it appear that the original (and in this case there were two originals) has been lost or destroyed.
    a. In that regard the showing here was wholly wanting as to one original and insufficient as to the other.
    Appeal from District Court, Nowata County; C. W. Mason, Judge.
    J. T. Johnson was convicted of embezzlement, and he appeals.
    Reversed and remanded.
    Bert Van Leuven, for plaintiff in error.
    The Attorney General, and J. Roy Orr, Asst. Atty. Gen., for the State.
   BESSEY, J.

The plaintiff in error, J. T. Johnson, here referred to as the defendant, was informed against and convicted in the district court of Nowata county of the crime of embezzlement, and his punishment was fixed by verdict of the jury at imprisonment for one year in the state penitentiary. From the judgment on this verdict he appeals.

The facts disclosed in the record show that C. L. “Wulf, of Garden Plains, Kan., was interested in the sale of some personal property belonging to a Mr. and Mrs. Nolte, who were involved in divorce proceedings then pending in Nowata county. The different articles of personal property had been 'divided, by agreement, between Mr. and Mrs. Nolte, bnt as the joint sale of the property approached, fearing that she might not obtain her share of the proceeds of such sale, Mrs. Nolte by her attorney, the defendant J. T. Johnson, caused a restraining order to be issued, restraining the sale.

Wulf testified that he wanted the sale to proceed, and went to the defendant, and entered into an agreement with him, under the terms of which he delivered to the defendant a check for $750, as a guarantee to Mrs. Nolte that she would receive her full share • of' the proceeds of the sale if she would allow the sale to proceed. Wulf was a relative of Mrs. Nolte, and made this arrangement to expedite settlement of the affairs of the Noltes.

At the time Wulf delivered the check to the defendant a receipt and contract in writing was drawn in .duplicate, one duplicate original being delivered to Wulf and the other to Mrs. Nolte. The defendant says that before delivering the duplicate original to Mrs. Nolte' he made an office copy of it for himself. Neither of these duplicate originals was produced in evidence, but a copy made by Wulf some weeks later was introduced in evidence, over the objections of the defendant. This copy reads as follows: .

“Sept. 16, 1919.
“Received of C. L. Wulf check in the sum of $750 as a guarantee of payment to Mrs. Ida Nolte for all her household goods and merchandise sold Sept. 16, 1919. Should there be a balance after said bill is paid same is to be returned to said C. L. Wulf and for the withdrawal of the suit now pending. J. T. Johnson, Atty. for Ida Nolte.”

- The defendant challenged the correctness of this copy, and in the course of his defense introduced what he claimed was the copy made by the defendant, as follows:

“Receipt and Agreement.
“$750.00.
“Nowata, Okla., Sept. 16, 1919.
“Received of C. L. Wulf of Garden Plains, Kansas, the sum of seven hundred fifty dollars, of which the sum of two hundred fifty dollars is payment for the attorney’s fee for Mrs. Ida Nolte, wherein Fred Nolte is plaintiff and Ida Nolte is defendant; the sum of two hundred fifty dollars is attorney fee for C. L. Wulf for the suppression of testimony about to be introduced at the trial of said cause. The remaining two hundred fifty dollars to be applied to discharge the payment of furniture bought at public sale by C. L. Wulf, and in the event said sum overpays said bill then in that event said balance or overplus is to be the money of J. T. Johnson, and should said sum not be sufficient to pay said furniture bill, then said J. T. Johnson is hereby authorized to draw a draft on C. L. Wulf in such sum as required to make said payment and pay same to Ida Nolte, same to be settlement in full for the furniture bought of Ida Nolte by C. L. Wulf. J. T. Johnson, Attorney for Ida Nolte and C. L. Wulf.”

The defendant admits that he personally used the major part of the money represented by the check 'delivered to him by Mr. Wulf, but claims that the money so used belonged to him for attorney fees, and that the balance was paid to Mrs. Nolte pursuant to the terms of the agreement, as he claims it was made.

The state claims that the defendant converted the money to his own use and benefit in violation of the trust and contract of guaranty. Whether he used the money in violation of a trust was the vital issue in this case; the state says he did; the defendant says he did not. Both parties sought to-sustain their position and respective claims by secondary evidence in the form of unverified copies of the duplicate originals, without a showing that neither of the duplicate originals were inaccessible. This situation arose in this wise.

“Q. I will ask you (Mr. Wulf) to examine this paper here and tell us what it is. A. This is a copy of the agreement.
“Mr. Johnson: At this time the defendant objects to the introduction of that agreement, because it is not a certified copy, and it is not a copy of the real agreement..
“The Court: It has not been offered yet, Mr. Johnson. Overruled at this time. * * *
“Q. Read the last question, please. (Question read.) A. This is a copy of the original agreement.
“Q. Where did you get that, Mr. Wulf? A. The copy?
“Q. That right there (indicating). A. I got this copy— I had my stenographer to make this copy in my presence.
“Q. Then what did you do with that? A. I also had my stenographer read the copy over, and asked her to make me a sworn statement of this copy.
“Q. Then what did you do with that copy then, after that; after that did you have it in your possession? A. Yes, this copy has been in my possession up until last spring. (At this time a paper is handed to the reporter to be marked for identification, and is so marked by the reporter as state’s Exhibit No. 1.)
“Q. At this time tell us where the original of that is, so far as you know? A. So far as I know, at the time the original was made out, the original was mailed to Mr. E. E. Sams.
“Q. Have you made demand on Mr. Sams for that? A. I have.
“Q. Have you got the original; have you received it from him? A. I don’t remember whether I did or not; I couldn’t say.
“Q. Have you got the original? A. No, I have not got the original. The original was mailed to Mr. Sams, and in some way in the mail it was lost; I have lost track of it. * * #
“Q. Have you made any effort — have you made an effort 'to get back the original of this state’s Exhibit 1? A. I did.
“Q. Just tell the jury what effort you made? A. Well, sir, I have written to Mr. Sams about the agreement, and it seems as though — I don’t know whether Mr. Sams lost it or whether my stenographer lost it; it is either filed away in some place, and not being able to get this original — this copy was made of the original before the original was sent to Mr. Sams.
“Q. That is the last recollection you have of the original, was when you sent it to Mr. Sams? A. Yes, sir.
“Q. Have you talked to Mr. Sams about this? A. I have.
“Q. And what did he inform you? A. He said he looked through all his files, and is unable to find it.
“Mr. Nairn: We again offer state’s Exhibit 1 in evidence, being a copy of the lost instrument, which has been proven to be a copy, and which the testimony has been he has been unable to find the original.
“Mr. Johnson: To which the defendant objects, because there is nothing to show that it is a true and correct copy of the original; Mr. Sams has not testified; there is nothing here to show, and the objection is made by the defendant to its introduction at this time because there is nothing to show it is a true and correct copy of the original. The original is the best evidence. 1
“The Court: I think the loss of the original is sufficiently explained to admit it as secondary evidence. The objection will be overruled, and it will be admitted.”

Near the close of the taking of testimony it appears from the dialogue had between attorneys and the court that Mr. E. E. Sams, an attorney in Nowata, desired to go to Kansas City, and By agreement of attorneys on both sides Mr. Sams was permitted to go to Kansas City, the understanding and agreement being that his testimony given at a former trial of the defendant upon this charge would be received in evidence. But, when the state sought to introduce this evidence taken at a former trial, the defendant objected. At this point the record is as follows:

“Mr. Nairn: At this time the county attorney asks permission to read to the jury the testimony of Mr. E. E. Sams that was taken by the court reporter at the former trial of this case, and such request is based on the verbal understanding and agreement that was had by and between the county attorney and Mr. J. T. Johnson in open court yesterday, wherein it was agreed that Mr. Sams had been regularly subpoenaed in this case, and had been called to Kansas City, and that his testimony might be read to the jury the same as if he were here —the same as if — the same as if it was his verbal testimony; the agreement being made orally and in the presence of the court. (Objection by Mr. Johnson.) * * *
“The Court: You stood here in open court yesterday afternoon and told the court that you would agree to let Mr. Sams leave and go to Kansas City, and that the deposition might be used by the county attorney; you stated that-you wanted to do Mr. Sams that favor.
“Mr. Johnson: I would be glad to do that at this time, but I was not in the proper attitude to really know and realize what was being done; I might have said that. I know your honor is right. I' did not mean to do anything like that, though; at that time I would have said, ‘Yes’ to anything, but now I realize what I am doing.
“The Court: You know the court was not responsible for your condition yesterday. You as an attorney made the statement that you would agree to that.
“Mr. Johnson: Well, let it go.
“The Court: If you object to it, I cannot let it go in today, and won’t.
“Mr. Johnson: I seriously object to it. I will admit that there is no better jurist on earth. I know you are telling me the truth, I admit it; but I do- seriously object to it, because I know what I am doing now.
"Q. Are you withdrawing your objection — what you just dictated there, or not?
"Mr. Johnson: No, sir; I seriously object 'to the introduction of this. If there is anything that casts a reflection on the court — the court’s remarks are absolutely correct on that — and I know that the court did not know the condition in which I was or anything of that sort; I feel grateful for his kindness and treatment, but I do object to the introduction of this. At that time I would have agreed to anything, but now I cannot agree to it.
"The Court: Objection sustained. I cannot let it go in.''

The record shows that Mrs. Ida Nolte, a witness for the state, testifying concerning the duplicate original delivered to her, said, "I think I have it in my trunk at "Wichita.”

Since the correctness of the contents of the copy of the original contract introduced in evidence was challenged, it was vitally important that one or the other of the duplicate originals be produced. The defendant and the prosecuting witness were the only witnesses to the actual transaction; there was no dispute as to the manner of the spending of the money; therefore the production of one or the other of the original contracts would have definitely settled the issue of the guilt or innocence of the defendant.

There was no showing that any effort whatever was made to produce the original in the possession of Mrs. Nolte; and, in our opinion, no sufficient showing of diligence to produce the original delivered to Mr. Wulf; there being no explanation on the part of Sams, to whom Wulf stated he had delivered his original, as to what had become of it. We may assume that Sams either never received it or that it was lost by him, but that would be merely an assumption.

Where the very essence of a controversy is the correctness of a purported copy of a written instrument, such copy should not be admitted in evidence, unless it appear that the original (and in this case there were two origi-nals) has been lost or destroyed. In that regard the showing here was wholly wanting as to one original and insufficient as to the other.

For that reason the cause is reversed and remanded. The other assignments of error. need not therefore be analyzed, except that this court suggests that on a retrial of this cause the information should more definitely describe the trust agreement and state that the funds comprising the trust were dissipated contrary to the terms of the trust.

MATSON, P. J., and -DOYLE, J., concur.


author: PER CURIAM.

text:
    PAT O’CONNOR v. STATE.
    No. A-2732.
    Opinion Filed June 7, 1924.
    (226 Pac. 1118.)
    Appeal from County Court, Marshall County; Isaac C. Lewis, Judge.
    Pat O’Connor was convicted of a violation of the state labor laws, and he appeals.
    Appeal dismissed.
    Geo. L. Sneed and Chas. C. Smith, for plaintiff in error.
    The Attorney General and-Baxter Taylor, Asst. Atty. Gen., for the State.
   PER CURIAM.

This was a conviction for a violation of the labor laws of this state in a case wherein the appellant was found guilty as charged, and his punishment assessed at a fine of $250. Upon request of the appellant, and by stipulation of parties, application, is made to dismiss the appeal. The application is granted, and the appeal dismissed.


text:
    STATE v. RUSSELL BROWN (alias RABBIT BROWN).
    No. A-4903.
    Opinion Filed June 7, 1924.
    (226 Pac. 1118.)
    Appeal from District Court, Muskogee County; 6. M, Barrett, Assigned Judge.
    Appeal dismissed.
    Wm. A. Green, the Attorney General, and N. W. Gore, Asst. Atty. Gen., for the State.
    T. H. Davidson, for defendant in error.
   PER CURIAM.

This is an appeal by the state from an order of the district court of Muskogee county, quashing an information in a criminal action there pending, charging the defendant in error with the murder of Monroe Brown. The order of the trial court quashing the information was made for the reason that the court was without jurisdiction to entertain or consider the charge, because the accused had not been accorded a preliminary trial, as contemplated by the terms of the Constitution and statutes of this state. The state now, through the Attorney General, moves to dismiss the appeal. The application of the appellant is allowed, and the appeal dismissed.