text:
    RAYMOND GARRETT v. STATE.
    No. A-9914.
    Feb. 25, 1942.
    (123 P. 2d 283.)

      Sigler & Jackson, of Ardmore, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Raymond Garrett, was charged by information in the district court of Carter county, Oklahoma, on December 29, 1939, with the crime of receiving stolen property, was tried, convicted, and sentenced to serve a term of five years in the State Penitentiary and to pay a fine of $250, from which judgment and sentence he appeals to this court.

The only contention presented by counsel for defendant in his brief is that defendant did not have that fair and impartial trial guaranteed him under the Constitution and statutes of this state, because of misconduct of the court in the presence of the jury and improper argument by counsel for the state.

The state called Raymond Waidner as a witness. He claimed, and was granted immunity. He then stated' that he knew nothing about the offense with which defendant is charged. The state pleaded surprise and hostility of the witness. During the cross-examination of the witness, which the court allowed the state, the following occurred:

“Q. (By Mr. Brett, Asst. County Attorney) Did you go to the Raymond Garrett place on or about the 2nd day of December, 1939? A. No, I didn’t. By the Court: Did you sell him any tires? A. No, sir. By the Court: You deny all that? (At this point the court was apparently attracted to Mr. James C. Mathers, who was sitting in the courtroom, because of the following remarks:) Mr. Mathers, you keep your head still. You can’t sit in the court and do that. This man is capable of testifying. I will send you to jail if there is any more such conduct.”

In the case of People v. Yates, 339 Ill. 421, 171 N. E. 557, 558, where the trial judge’s attention was brought to the fact that a spectator in the courtroom was nodding her head to a witness for defendant on the witness stand, the court cautioned the woman not to shake her head one way or another. Counsel for defendant urged that this constituted prejudicial error, and the Supreme Court of Illinois held:

“We fail to see any force in this argument. The woman whose conduct brought forth the complaint by the juror was not a witness in the case, and, so far1 as disclosed by the record, was merely an onlooker. It does not appear whether she was attempting to> influence the witness favorably or unfavorably to the defendant. Having had the matter brought to his attention, it was the duty of the court to warn her against such conduct, and we fail to see where such warning could have prejudiced any of the rights of plaintiff in error.”

Mr. Mathers did not testify in the case and was not one of the interested attorneys. So far as the record discloses, he was merely a bystander, who had accompanied two‘ of defendant’s witnesses from Oklahoma City to Ard-more on the day previous. It is not stated in what manner Mr. Mathers’ gestures were being used to affect the testimony of the witness. This matter will be considered in connection with other matters which arose during the course of the trial. We deem it proper to' state, however, that this circumstance, standing alone, was not sufficient to constitute reversible error.

It is nest urged that the court committed reversible error because of threatening statements made to counsel for defendant in the presence of the jury.

Raymond Farrias, called as a witness by the state, testified, without claiming immunity, that he and Waid-ner had stolen certain property and sold it to defendant. While Farrias was on the witness stand, the following occurred:

“By the Court: Just one moment, did you take this witness out? (The officer indicated that he did.) Go ahead. * * * Q. (By attorney for defendant) You would have testified exactly like Raymond Waidner testified if they hadn’t taken yon out of the courtroom? By the Court: Now, then, I will not let him testify as to that. (At this point Mr. Sigler dictated the following in a low Aroice out of the hearing of the jury to the Reporter:) (By Mr. Sigler, of Counsel for Defendant: Defendant expects to show by this witness that he would have testified as Raymond Waidner testified if it had not been for the fact that he was taken out of the courtroom and the officers threatened him.) By the Court: All right, gO' ahead and ask him, I am going to make you prove that. By Mr. Sigler : Well, maybe I can’t prove it. By the Court: Did the officers take you out and threaten you? Noav, then, you stated in the record there that that Avould be what the proof would be, I will probably hold you in contempt unless you can prove that. By Mr. Sigler: I said I expected to prove it by him, if the court aauII let me ask him. By the Court: Go ahead and ask him. Mr. Bailiff, will you take the jury out.”

In Whittenburg v. State, 46 Okla. Cr. 380, 287 P. 1049, this court held:

“If the conduct of counsel for defendant is improper, the court must excuse the jury before administering a rebuke or threatening to fine or imprison him for contempt.” Kelley v. State, 31 Okla. Cr. 51, 236 P. 915; McSpadden v. State, 8 Okla. Cr. 489, 129 P. 72.

Absolute fairness should characterize every word and action of a judge. No judge has a right to indicate to the jury, by word or action, his opinion of the merits of any case being tried before him, or to in any way indicate his opinion as to- the credibility of any witness examined. Harrison v. State, 11 Okla. Cr. 14, 141 P. 236; Reed v. State, 5 Okla. Cr. 365, 114 P. 1114; Koontz v. State, 10 Okla. Cr. 553, 139 P. 842, Ann. Cas. 1916A, 689.

In Smith v. State, 12 Okla. Cr. 513, 159 P. 941, this court stated that it is highly prejudicial for the trial judge to reprimand counsel for defendant in the presence of the jury.-

It is further contended that the argument of the county attorney was grossly improper and prejudicial.

All of the state’s argument to the jury was not reported, but the following was put in the record at the time of the argument:

“By Mr. Sigler, of Counsel for Defendant: The assistant county attorney, in his argument to the jury, stated that Buck Garrett was dead, Bud Ballew was dead and that Dow Brazel was dead and that the old pistol toting, pistol whipping days are gone. We move the court at this time to declare a' mistrial because of the statements of the county attorney above referred to for the reason that said statements are prejudicial to the defendant’s rights, and are statements concerning matters that should not be considered in this trial. By the Court,: Overruled. By Mr. Sigler: Exception. By the Court: Gentlemen of the jury, you are not to consider those remarks, they are no part of the evidence in this case and have nothing to do with this case. (Further on in his argument Mr. Brett made certain other statements which counsel for defendant desired to make a record of.) By Mr. Sigler: I desire to make a record as follows, in view of the absence of the reporter awhile ago. We object to the statement made by the assistant county attorney that it wasn’t necessary for Mr. Pruiett in his balmy days to frame an alibi, that he came here to, frame an alibi. There is no testimony that he framed an alibi or that anybody framed an alibi in this case. By the Court: Let that objection be overruled. By Mr. Sigler: Exception. (Then later on in Mr. Brett’s argument the following statement wasi made:) By Mr. Brett, Assistant County Attorney: And Raymond wiggles out with his good counsel— (interrupted)
“By Mr. Sigler: The defendant objects to said remark for the reason that there is no testimony in this case that I have done anything crooked in this case. He insinuated awhile ago that'an alibi was framed. By the Court: Overruled. By Mr. Sigler: Exception. * * * By Mr. Sigler: (out of the hearing of the jury.) Comes now the defendant and moves the court to instruct the jury that that part of the argument of the assistant county attorney reflecting on counsel in this case, should be disregarded and that that part which reflected on Moman Pruiett and Jim Mathers should be disregarded for the reason that there is no showing that they are counsel in this case, they have nothing to do with the case whatsoever- and Moman Pruiett is only appearing as a witness and Jim Mathers had nothing to do> with the case at all. By the Court: Counsel has a right to discuss the testimony of Moman Pruiett who appeared as a, witness, so far as counsel for the defendant is concerned, there is no reflection on the counsel in this case. He only referred to counsel as counsel.”

It is stated in Chesser v. State, 63 Okla. Cr. 84, 73 P. 2d 191, 192, that:

“Ordinarily, error cannot be predicated upon mere unexplained excerpts from the remarks of counsel to the jury. Enough must appear of record to advise the appellate court of what preceded the alleged objectionable remarks and their meaning to be deduced from the context, and whether or not they were invited or provoked by remarks made by opposing counsel.”

The county attorney should not make statements for the purpose of creating prejudice in the minds of the jury. The excerpts set out above are sufficient to' show that the county attorney was making- an appeal to the prejudices of the jury. It is apparent that the assistant county attorney in his argument was making statements wholly outside of the record, and which were not justified from anything shown in the record. There is no statement by the court in ruling' upon the objections made by counsel to the prosecutor’s argument which would tend to explain or show any justification for the remarks made by the prosecutor. This court has adopted a liberal rule in the matter of the argument of counsel, but where facts are stated by counsel which are calculated to prejudice the jury where they are not home out by the evidence, they may be sufficient to reverse a judgment. We shall consider these improper statements in connection with the statements made by the court hereinbefore discussed.

This case involves the alleged purchase of certain automobile tires for a consideration of $16 by the defendant from two men who had stolen them from a filling station in the city of Ardmore. While the proof of the state was not sufficient to justify this court in. stating that the proof of guilt was conclusive, owing to the fact that no part of the stolen property was found in the possession of the defendant, yet, in the absence of prejudicial errors, the same would have been sufficient to sustain the conviction.

We have carefully considered this record and all of the facts and circumstances surrounding the case as shown by the record. So far as is disclosed by the evidence, the defendant had never been convicted for any offense. Tt is clear to us that the statements made by the court and by the prosecutor in his closing argument were inflammatory and prejudicial. The fact that the jury, in assessing the punishment, gave the defendant the maximum penalty fixed by the law for this offense shows in itself that prejudice existed, as there was nothing in the record which would, in any way, justify the exaction of thisi punishment.

Article 2, § 6 of the Constitution of Oklahoma, O. S. 1941, provides that right and justice shall be administered without sale, denial, delay, or prejudice.

We cannot escape the conclusion that the fair and impartial trial to which the defendant was entitled was prejudiced by the remarks of the court and the county attorney. We may remark here that the state only demands the punishment of a citizen when his guilt has been clearly established according- to the forms and rules of law prescribed for ascertaining, his guilt. It is not to shield the guilty, but to protect the innocent, that courts are steadfast in upholding the forms and rules of law by which it may be lawfully determined who are guilty. A fair trial is a legal trial, or one conducted in all material things in substantial conformity to law. The state does not expect and will not tolerate the use of any unfair means or methods to secure the conviction of one charged with crime. If a conviction of the defendant cannot be had fairly, then the state does not ask for a conviction, because such a conviction would be tainted with, if not founded upon, injustice and wrong.

The trial judge is as much a judge for the defendant as for the state, and is supposed to- sit fairly and impartially on the rights between the state on the one side and the defendant on the other. The court should be very careful to refrain from saying anything which' might convey to the jury the impression that the court had an opinion as to the guilt or innocence of the defendant, or as to the credibility of a Avitness. Under’ our system of criminal jurisprudence, the jury are the exclusive judges of the weight and credibility to be given to the testimony of a witness. When the trial court reprimanded defendant’s counsel in the presence of the jury, it may have had great influence on the jury in returning the verdict that it did, as jurors generally regard the presiding judge with great respect and give much Ave-ight to- his expressions and opinions.

For the reasons hereinabove given, the judgment of the district court of Carter county is reversed and said cause is remanded for a new trial.

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


source: Caselaw Access Project

author: BABEFOOT, P. J.

license: Public Domain

text:
    HUGH LEE McCOMBS v. STATE.
    No. A-9951.
    March 4, 1942.
    (123 P. 2d 301.)
    Willis B. Stark, of Oklahoma City, for defendant.
    Mac Q. Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Lewis B. Morris, Co. Atty., of Oklahoma City, for the State.
   BABEFOOT, P. J.

Defendant, Hugh Lee McCombs, alias Buster McCombs, alias H. L. McCombsi, was charged in the district court of Oklahoma county with the crime of murder, was tried, convicted of manslaughter in the first degree and sentenced to serve a term of four years in the penitentiary, and has appealed.

Eleven assignments of error were made in the petition in error, but in defendant’s brief only two are presented for a reversal of this case. They are:

First. Error of the court in permitting the state to impeach the testimony of its witness by introducing a written statement made by said witness to police officers outside the presence of the defendant.

Second. There was insufficient evidence on the part of the state to sustain a conviction on the charge of first-degree manslaughter, and the court erred in refusing to sustain a demurrer to the evidence and in not directing a verdict of not guilty.

The second proposition will be first considered.

The charge in this case was the result of the death of Jimmy O’Brien in the three-room house of Cleo and Maude Farris at 615 South Walnut avenue, in Oklahoma City, on the night of February 6, 1940, at about 5:30 o’clock p. m. Present in the house at the time of the killing besides defendant and deceased were Mack McCombs, a brother of defendant, Ole© Farris and Maude Farris, his wife, Pauline Clark, James Boy Devanie, and Juanita Howell. These parties were all present when the deceased, Jimmy O’Brien, entered the room. All testified that he was drunk at the time he came in and that he wanted to buy whisky. Mack McCombs, the brother of defendant, was sitting on a divan, and he asked deceased to quit cursing, and get out. Deceased rushed at Mack Mc-Combs, and they engaged in a fight or tussle. At this time defendant entered the room from the kitchen and said, “I will take him.” There is some conflict in the evidence as to just what the defendant did, but it appears from the record that defendant struck deceased and kicked Mm in 'the face and in the side. Deceased left the room and lay down by the side of the house. He was1 taken in an ambulance to the hospital and died, as the doctor testified, as the result of a punctured lung caused by a broken rib. The doctor’s statement was as follows:

“Q. Tell the court and jury as best you can to laymen what you found when you opened up the man’s skull and chest and abdomen? A. Well, he had so many bruises and contusions about his face that it wasn’t certain whether he had possibly a fractured skull, that was the reason the head was opened, thinking maybe he had a hemorrhage into the brain, but there was no evidence of any hemorrhage to the brain. Then when the chest Avas opened the fifth and sixth ribs on the left side of the front part of the chest were fractured and the left lung was collapsed and he had had a hemorrhage into the left part of his chest in Avhat they call the pleural cavity, and there Avas nothing abnormal about the abdomen. Q. Was there anything in there that would help you know how the left lung was collapsed, Avliat happened in order to get him in that condition — what I am getting at is whether or not the ribs were so dislocated that they punctured the lung ? A. Not at the time I saAV him, but they could have been. Q. That could have been from a heavy blow on the outside? A. Yes, sir. Q. In your opinion, is that what collapsed the lung? A. In my opinion, I believe the rib punctured the lung and that is what collapsed it. Q. Tell the court and jury Avhat caused the man’s death? A. His death Avas due to a hemorrhage into the pleural cavity. Q. And that hemorrhage Avas from this collapse of the lung? A. Yes. Q. And you think the broken ribs probably or possibly did that? A. Yes, sir. Q. And those Avere caused by blows from the outside onto' the body? A. All his wounds were external; yes, sir.”

There was evidence that deceased had tAVo ribs broken and that he was a prize fighter. There was much evidence offered and also' pictures which showed the wounds on deceased’s body and face. It is unnecessary to further quote from it. It was somewhat conflicting, but most of the witnesses were in sympathy with the defendant. However, from the evidence as a whole, there is not shown any justification for the action of the defendant. The deceased was drunk and was having a tussle with the brother of the defendant. There is no evidence that the deceased was armed in any way or that the brother of the defendant was in immediate danger of receiving great bodily harm or of suffering death. The evidence does not reveal there was any intention on the part of the defendant to take the life of the deceased, His acts can only be judged by the results. The jury heard the evidence and evidently took all of these facts and circumstances into consideration. Their verdict was for manslaughter in the first degree with the minimum punishment. Under the law it is not necessary that there be an intent to kill to be guilty of manslaughter in the first degree. There was no evidence that defendant was acting in self-defense or that it was justifiable homicide, or that the killing was accidental. The jury having passed upon the evidence under the issues presented and proper instructions of the court as to the law, we cannot say that the evidence was insufficient to sustain the verdict and sentence, and that the court erred in refusing in sustain the demurrer to the evidence or in refusing to direct a verdict of not guilty.

The second assignment of error is based upon the testimony of the witness Pauline Clark. She was called as a witness by the state. She had previously made a written statement the second day after the killing, and the county attorney was in possession of the same. When she testified differently from what had been made in the written statement, the county attorney confronted her with the written statement. Counsel for defendant objected to' the question propounded by the county attorney upon the gorund that the written statement was the best evidence. The record reveals the following:

“Q. I will ask you to state this, if you didn’t state! this, or this in substance, in a written statement to the police — . Mr. Stark: If the court please, the statement to the police is the best evidence in this case and we are going to' object to the county attorney reading from any statement unless it is introduced. Mr. Marlin: As I understand it, a written statement is not admissible if the witness is introduced, but since he asked about the statement I will offer it in evidence as State’s Exhibit No. 8. Mr. Stark: We object to it as incompetent, irrelevant and immaterial, and an attempt to impeach this witness on a collateral matter to' the actual facts in the case. The Court: Objection overruled. Mr. Stark: Note our exception. The Court: Now, that statement is for that purpose only. Mr. Stark: We object to it for the further reason that the statement to the police officers is hearsay. The Court: Well, the county attorney didn’t offer it until you raised the objection; overruled.”

The witness was questioned as to the written statement, and she admitted the tyjith of practically all the written statement. We hardly think that counsel should be permitted to object '%o the questions asked by the county attorney and demand that the written statement was the best evidence and should be introduced and, when it is offered in evidence, then object to its introduction. We have carefully examined the record and do not think there was an attempt by counsel for the state to impeach the witness. As before stated, her evidence was practically the same as that made in the written statement. There was no' substantial variance. Counsel for defendant was permitted to fully cross-examine the witness with; reference to the preparation and signing of the written statement. This court has often held that the state or defendant may impeach a witness where such witness be-conies hostile or surprises counsel Which results' in counsel being misled by the witness.

In Foreman v. State, 38 Okla. Cr. 50, 259 P. 176, 177, this court said:

“It would be a perversion of justice to say that one deceived or entrapped by a witness in this manner may not explain his acts in calling the witness and counteract the injurious effect of his testimony. Sturgis v. State, 2 Okla. Cr. 362, 102 P. 57; Paris v. United States, 5 Okla. Cr. 601, 115 P. 373.
“The impeaching of a witness in such case rests largely in the sound discretion of the trial court. When a contradictory statement is admitted, the trial court should limit and restrict the application of such testimony to impeachment only, but the failure to do this is not necessarily reversible error. Jones v. United States, 14 Okla. 356, 78 P. 100. The same situation exists, except in a less degree, to the testimony of the witness George Copeland.”

In the Foreman Case the court permitted the state to introduce in evidence the written statement made by the witness.

Finding no' error in the record, it is the opinion of the court that the judgment and sentence of the district court of Oklahoma county should be-affirmed, and it is so ordered.

JONES and DOYLE, JJ., concur.


author: JONES, J.

text:
    IRVIN C. BERNELL v. STATE.
    No. A-9920.
    March 4, 1942.
    (123 P. 2d 289.)

      Jerome Sullivan and Travis Bonner, both of Duncan, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Irvin Bernell, was charged in the district court of Stephens county with the crime of murder, was tried, convicted, and sentenced to life imprisonment in the State Penitentiary, and has- appealed. The charging part of the information filed against the defendant reads as follows:

“That the said Irvin C. Bernell, late of Stephens County, Oklahoma, and within the jurisdiction of this Court, then and there being, did then and there willfully, unlawfully, wrongfully and feloniously, without authority of law and with a premeditated design to effect the death of Hazel Bernell, Ruby Barkley and Earl Barkley, make an assault in and upon the said Hazel Bernell, Ruby Barkley and Earl Barkley, with a certain weapon, being a .32 automatic pistol loaded with powder and bullets then and there had and held in the hands of him, the said Irvin C. Bernell, and did then and there with the said firearm and weapon so had and held as aforesaid, willfully, unlawfully, wrongfully and feloniously and without authority of law and with a premeditated design to effect the death of the said Hazel Bernell, Ruby Baiic-ley and Earl Barkley, fire, shoot and discharge the said firearm, pistol and weapon at, into and upon the head and person of the said Ruby Barkley, then and there and thereby inflicting a certain mortal wound in and upon the head and body of the said Ruby Barkley of which said mortal wound so inflicted as aforesaid, the said Ruby Barkley did, on the 30th day of November, 1939, die, as was intended by the said Irvin C. Bernell, that she should soi do, with the unlawful, wrongful and felonious intent then and there on the part of him, the said Irvin C. Ber-nell, to kill and murder the said Ruby Barkley, contrary to the form of the statutes, in such cases- made and provided, and against the peace and dignity of the state of Oklahoma.”

It is first contended that the evidence is insufficient to support the verdict. Although counsel for defendant make this contention, such assignment is wholly without merit. The testimony of all of the witnesses, except that of the defendant himself, shows a cold-blooded and ruthless killing, by the defendant, of two' people. The defendant killed Earl and Ruby Barkley, man and wife, on November 30, 1939, in the city of Duncan. This conviction arose from the killing of Ruby Barkley.

Earl Barkley was a brother-in-law of the defendant. The defendant had married Hazel Barkley on March 8, 1934. Two children were born and living with their mother a,t the time of this tragedy. A few months after the marriage of the defendant, he was convicted of second degree burglary and sentenced to the Granite Reformatory for two years. He was paroled by the Governor in 1935 and lived with his wife from that date until 1939 at Edmond and El Reno. In the fall of 1939 the wife of the defendant went to Duncan with her two children and •commenced living with her brothers, Earl and Floyd Barkley, and her mother. The defendant testified that the Barkley boys talked his wife into1 leaving him because he was an ex-convict. It was the contention of the state, as testified to by members of the Barkley family and others, that the defendant was gambling and going with other women; that he had mistreated his wife by refusing to support her and had struck and mistreated her! so badly that she had written her brothers to come to El Renoi after her.

Hazel Bemell discussed with an attorney at Duncan the advisibility of instituting a' divorce action against the defendant. A waiver of summons was prepared and mailed to the defendant for signing. The defendant had made a settlement for a personal injury he had sustained. He took this money, went to Duncan and rented a room where he and his wife lived until two days before the shooting, at which time, trouble having arisen between them, she went back to her mother’s.

The killing occurred shortly after midnight, November 29, 1939. Earl Barkley and Ruby Barkley, the two' deceased persons, together with Tom Bailey and Flora Bailey, a brother and sister of the deceased Ruby Barkley, were in the city of Duncan that night, as was the defendant. Flora Bailey and Hazel Bemell, wife of the defendant, were employed as waitresses at the Snow White Inn. Mrs. Bernell worked at this inn until about midnight. The defendant had called his wife over the telephone from a downtown cafe during the evening. Disinterested parties who heard the conversation testified that the defendant used vile and profane language in talking to his wife and threatened “to come down there and stack the furniture.” His language became so foul and loud that the owner of the cafe intervened and stopped the conversation.

The defendant called Earl Barkley and had a conversation with him at a cafe concerning the strained relations existing between the defendant and his wife. Their conversation appeared to be friendly and the defendant testified that Earl promised to try to get his wife to go back to him.

At the time Hazel Bernell quit working at the inn, she was met by Tom and Flora Bailey and Earl and Ruby Barkley in Tom Bailey’s automobile and driven downtown to near Story’s cafe. There they met the defendant, who talked some with his wife in the presence of all the parties and then took her off, away from the automobile, where they talked several minutes in private. When Hazel Bemell returned to the automobile she was crying. The defendant came along by the automobile shortly thereafter and was accosted by Earl Barkley, who asked the defendant the following, question: “You didn’t hit her, did you, boy?” Bernell denied striking his wife and got in the automobile to talk to her. At that time Tom Bailey was sitting under the wheel, Flora Bailey was in the middle and George Smith was on the right side in the front seat. In the rear seat, Earl Barkley was sitting on the right, Buby Barkley in the middle and Mrs. Bernell on the left. The defendant opened the door next to his wife and spoke to his wife about going home. The wife refused to go with the defendant, and Bernell then wanted her to kiss! him, but she refused. Defendant then jumped out of the car exclaiming, “I will get a gun and blow my damn brains out,” and ran to a trash can on the sidewalk a few feet away from the car and procured a gun. When defendant left the car the driver started the engine and commenced to back from the curb. The defendant ran towards the car as it was backing from the curb and fired three times. The first shot struck Buby Barkley in the head, billing her instantly. One of the other shots struck the side of the car. When the shooting started, Earl Barkley climbed out of the car and started around the rear of the car towards the defendant. Two more shots were fired by the defendant, one of them striking Ea,rl Barkley in the stomach, resulting in hisi death a few hours later.

The state also introduced evidence showing that the defendant had bought a .32 caliber automatic pistol a few days before the shooting and was carrying it on his person the night of the altercation. There were many other circumstances testified to by witnesses for the state which clearly show an unjustifiable homicide.

The defendant, in his own behalf, testified to substantially the same facts as above outlined, except as to the occurrence just preceding and at the time of the fatal shooting. Defendant stated that while they were sitting in the automobile he asked his wife fi> kiss him goodnight; that Earl Barkley then started cursing him and said, “I have got to finish the son-of-a-bitch some time and I about as well do it now”; that defendant jumped out of the car and started running, east on the sidewalk; that he saw Earl Barkley get out of the east door of the car and start toward him; that he then ran to the trash can, got his gun and started shooting at Earl Barkley; that he was trying to defend his life because Barkley was coming toward him; that he did not know Ruby Barkley had been shot until the county attorney was questioning him several hours later.

The defendant further testified, which testimony was corroborated by other witnesses, that a few days before the killing he and his wife went to the city jail where Earl and Floyd Barkley had been incarcerated for being drunk. That when the Barkley brothers saw him they cursed him and said they were going to' whip him; that defendant talked to Officer Stewart about the threats they had made and asked the officer what he was supposed to do, and that the officer told him that every man had a right “to protect himself”; that he then went up to the pawnship and bought the pistol and carried this pistol to protect himself from the Barkley boys; that he and his wife continued to live at a room they had in Duncan until two nights prior to' the shooting, when she went out' to her brothers; that on the night of the shooting he called his wife over the telephone three times endeavoring to find out why she did not return; that he hid the pistol in the trash can to prevent policemen from finding it in his possession, which might have caused his parole to be revoked.

Although the defendant’s testimony showed that he was relying upon the theory of self-defense as a defense to this charge, there was some testimony by the defendant to the effect that the conduct of the Barkley boys in talking his wife into leaving him and in threatening his life had made him very nervous and had upset him mentally.

It would be tedious and serve no useful purpose in the disposition of this cause to detail the substance of the testimony of each of the witnesses. The state used several eyewitnesses, many of them disinterested, who showed that the defendant fired into this automobile as1 it was backing from the curb. The defendant’s own statement as to the facts provoking the shooting is contradicted by the physical facts. The state’s witnesses testified that Earl Barkley did not get out of the automobile until the shooting had commenced. If Earl Barkley had gotten out of the car at the time the defendant did and started toward him, as testified to by the defendant, the deceased Buby Barkley would not have been in the line of fire.

It is sufficient to say that the testimony of the defendant merely raised an issue of fact for the determination of the jury, which, acting under proper instructions of the court, has been determined adversely to the defendant. Under the decisions of this court, such a finding will not be disturbed upon appeal when supported by substantial evidence.

The defendant next contends that the court committed error in sustaining objections interposed by the county attorney to questions asked the defendant calling for conversation with his wife.

Several times during the period when the defendant was upon the witness stand he would tell of meetings he had had with his wife. He would then be asked this, or a similar question: “Did she communicate any threats to you that her brothers * *” Here the county attorney objected to testimony of any communications made by the wife of the defendant to him, which objection was sustained.

Later, during the examination when a similar question arose, the county attorney made this objection: “We object to that unless the defendant and his counsel will waive any objection they might have under the law of Hazel Bernell taking the witness stand.” To which the court stated: “I will permit the wife to be called if you insist on him answering.” After which the following transpired:

“Mr. Sullivan: The defendant, by his counsel, now states that he absolutely and unqualifiedly is not waiving any rights of his wife to testify against him in this trial, and we want it specifically understood by the court and the counsel for the state. By the Court: Let the objections be sustained to all evidence offered concerning any conversation with the wife and counsel admonished not to ask the defendant any questions which involves conversation with his wife.”

Section 3069, O. S. 1931, 22 O. S. 1941 § 702, provides, in part, that the husband or wife * * shall in no event on a criminal trial be permitted to disclose communications made by one to the other except on a trial) of an offense committed by one against the other.”

In Steeley v. State, 17 Okla. Cr. 252, 187 P. 821, the defendant was charged with murder and the defense was insanity. It was therein held:

“Under section 5882, Rev. Laws 1910, 22 O. S. 1941 § 702, providing, that neither husband nor wife shall in any case be a witness against the other, and that neither ‘shall in any event on a criminal trial be permitted to disclose communications made by one to the other except on a trial of an offense committed by one against the other/ the defendant, in a prosecution for killing his wife’s paramour, is incompetent as a witness to disclose communications made by his wife to him.”

Construing' the same section of the statute in the case of Tingley v. State, 16 Okla. Cr. 639, 184 P. 599, 602, it is said:

“In this case, the defendant was charged with the murder of one W. H. Overholser, clearly not a crime against his wife, or one necessarily involving the marital relation. The wife was not charged with any crime at all, and was on trial for no offense. She would not have been a competent witness in this trial against her husband as to any communications made by him concerning his relations with Nell Martin. It is obvious that under the provisions of the foregoing statute he was incompetent also1 to testify to these alleged communications between him and his wife, and this though the issue of insanity was presented.”

The defendant further assigns as error the action of the county attorney in calling the wife of the defendant to testify and causing the defendant to, object to her competency in the presence of the jury. The objection of the defendant was sustained and the wife was not permitted to testify.

It has been held that when the defendant fails to object to his -wife testifying against him, he waives the objection and may not present such question on appeal. Hunter v. State, 10 Okla. Cr. 119, 134 P. 1134, L.R.A. 1915A, 564, Ann. Cas. 1916A, 612; Carr v. State, 22 Okla. Cr. 371, 211 P. 423.

In this case, if the defendant had not objected to his wife testifying he would have been considered by this court as having waived the privilege.

As was stated in Allen v. State, 35 Okla,. Cr. 64, 248 P. 655, 656:

“But the privilege of a husband charged with rape to have the testimony of his wife excluded is a privilege or right which may be waived. Wigmore on Evidence, § 2242; notes, Ann. Cas. 1913A, 31. And the right to have the wife’s testimony excluded is waived where the husband takes the stand and testifies to conversations had with his wife pertinent to the issue. The state may then cross-examine the defendant witness concerning such conversations and may use the wife as a rebuttal witness. The right to> controvert competent evidence by cross-examination or in rebuttal is a right which cannot be abridged, within the scope of the original inquiry. 40 Cyc. 2473 et seq.; 7 Words and Phrases, p. 5987; 4 Words and Phrases, Second Series, p. 197.
“If the defendant wished to avail himself of the benefits of a privileged communication, he should himself have refrained from opening up the subject of that privilege. It would be contrary to reason and authority to permit one to waive such privilege and later avail himself of the privilege by objecting to' a fuller development of the facts on rebuttal.”

A reading of the information hereinabove quoted shows that the county attorney alleges an assault made upon Earl Barkley, Hazel Bernell, wife of the defendant, and Ruby Barkley. It was evidently his theory that, since he had alleged an assault upon the wife of the defendant, in Avhich Ruby Barkley was killed, the wife would be a competent witness under the exception to the rule that the wife may testify against her husband on the trial of offense committed by himself against her.

Lastly, it is urged that the jury was guilty of misconduct for the reason that on’the night of February 20, 1940, while the trial was in progress, the bailiffs in charge of the jury took the jury to' a picture show to see a picture entitled “The Invisible Stripe.” This question wasl presented on the motion for a new trial and two witnesses were called by counsel for defendant to' testify concerning this show. One of them testified that the picture was a western picture and was more of horse racing than anything else, bnt he remembered very little about the details of the picture. The operator of the picture show testified in detail about the picture where the plot concerned an ex-convict who was trying to go straight. Both men testified that they did not think there was anything about the picture which would have prejudiced the defendant.

It is a dangerous practice for jurors to' be allowed to attend motion picture shows unless the bailiffs in charge of the jury know ahead of time the nature of the picture to be seen so that they may know whether it might have any influence upon the case which is being tried. The rule is stated in Lively v. State, 22 Okla. Cr. 271, 211 P. 92:

“Where jurors before final submission in long and tedious criminal trials are kept together in charge of a bailiff, the jurors may be permitted to take open air exercise and indulge in any innocent recreation or amusement during the recess of the court, if kept free from all influence that may tend to interfere with a dispassionate consideration of the issues.
“Jurors should not be permitted to attend public gatherings where the speaking or exhibition has a tendency to arouse the passions or prejudices of the jurors, or where they may be subjected to prejudicial extraneous influences.”

We do not think that the showing made on the motion for a new trial is sufficient to sustain this contention, especially in view of the facts established by the state overwhelmingly showing the guilt of the defendant.

This being a capital case with a term of life imprisonment confronting the defendant, we have given it that careful consideration which the law requires and justice demands. The instructions given were probably more favorable to defendant than the law requires and no complaint is made of any of the instructions. We can find no error or irregularity in the proceedings of sufficient importance to; require a reversal of this case. The judgment of the district court of Stephens county is, accordingly, affirmed.

BAREFOOT, P. J., and DOYLE, J., concar.


text:
    HAROLD W. MILLER v. STATE.
    No. A-9931.
    March 11, 1942.
    (123 P. 2d 699.)

      Tellegen & Miskovsky, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Harold W. Miller, wasi jointly charged with Julius Stone, Clarence C. Kemp, Paul Clay, Floyd L. Greenfield, James Brundage, Henry W. Kemp, and Marvin Castell, by information filed in the court of common pleas of Oklahoma county on October 26, 1939, with the offense of maintaining a public nuisance. Defendant was tried jointly with Marvin Castell, convicted and sentenced to' serve a term of 60 days in the county jail and to pay a fine of $100, and appeals to this court.

Counsel for defendant contend that the trial court committed prejudicial error by admitting incompetent evidence, by admitting evidence illegally obtained, and that the evidence is insufficient to sustain the conviction.

The information states that defendant and his seven co defendants willfully, unlawfully and wrongfully committed the crime of maintaining and operating a public nuisance in the manner and form as follows:

“That is to- say the said defendants, acting conjointly and together in the County and State aforesaid, and on the day and year aforesaid, then and there being, did then and there willfully, unlawfully and wrongfully maintain and operate a one story brick building at 925 Northwest Sixth Street in Oklahoma City, said County and State, and three automobiles, to-wit: one 1939 Ford coach bearing Oklahoma 1939 license S-439, one 1937 Foret Coach bearing Oklahoma 1939 tag Number 19E9 and one 1938 Chevrolet coach bearing. Oklahoma. 1939 tag N379, the said automobiles being operated at 925 Northwest Sixth street and adjacent thereto' and said automobiles being operated at various and sundry other places in the streets of Oklahoma City, Oklahoma, all of the exact locations of which are to your informant unknown, where gambling games, betting on football games were permitted and where certain devices and apparatus for the purpose of giving information, recording and registering such bets and wages were kept and operated, such paraphernalia being football parlay cards, tickets and registers for registering bets and wagers and various other devices a more complete description of which is unknown and where divers persons unknown were permitted to congregate, all for the purpose of gambling, betting and wagering by means of books, machines and other devices or mutuals upon the results of football games and other games all to' the common nuisance of the public, contrary to the form of the statutes in such case made and provided against the peace and dignity of the State of Oklahoma.”

The proof on behalf of the state was largely furnished by the testimony of two police officers, who had made an investigation of a system of gambling or lottery being conducted in Oklahoma City, which was commonly known as football parlays. Over the objection and exception of the defendant, these policemen detailed how this system of betting on football games was conducted. Certain parlay cards, with the description of games to be played, were distributed on Monday or Tuesday, prior to the games to- be played on week ends. These cards were distribnted to- various restaurants, beer parlors, cigar stands, and other places in Oklahoma City. As to some of the defendants named in the information, the officers testified positively to seeing them distribute some of these cards. Neither o-f them ever saw the defendant Miller distribute any of the cards. The manager of National Printing Company testified that he had printed the parlay cards identified by the police officers at the request of Clarence Kemp and Julius Stone, but that he had never done any business nor delivered any cards to the defendant Miller.

Over the objection of the defendant, the policeman' testified as to- the arrest of the defendant Miller and the search of his person, which resulted in the finding of two telegrams and a letter from the Gorham Press, a national football syndicate, which syndicate apparently, from the wording of the telegrams and letter, was furnishing to the defendant Miller data to be placed on parlay cards. Also seized from the defendant’s person at that time were certain parlay cards identical with those seized by the officers at various places of business over the city. The question as to the admissibility of this evidence will be hereinafter discussed.

The proof of the state further shows that the policemen searched a building at 925 Northwest Sixth street, where they found a box of parlay cards. They further testified that just previous to the search and seizure of this box of cards, they had seen Marvin Castell carry this box into the building. The court, over the objection of the defendant, admitted testimony that the lady in charge of the building where the cards were found stated that the cards belonged to the defendant Miller.

The evidence is conclusive that the building at 925 Northwest Sixth street was being rented and occupied by the O & M Distributing Company. The defendant had no connection with this company, which was: in the business of selling and distributing automatic phonographs.

The above and foregoing constitutes substantially all of the evidence introduced by the state which connected the defendant Miller with the commission of this offense. Assuming that all of said evidence is admissible, we do not believe that the same is sufficient to support the allegations of the information.

The statute under which this information was filed is 21 O. S. 1941 § 1191, which reads:

“Every person who maintains or commits any public nuisance, the punishment for which is, not otherwise prescribed, or who wilfully omits to perform any legal duty relating to the removal of a public nuisance, is guilty of a misdemeanor.”

in the case of James v. State, 4 Okla. Cr. 587, 112 P. 944, 34 L.R.A., N.S., 515, 140 Am. St. Rep. 693, it is stated:

“A house or place kept for the purpose of enabling persons to place bets or wagers upon horse races is a common gambling house, is a nuisance per se and those who conduct it are indictable and punishable under section 2465, Snyder’s Comp. Laws Okla. 1909, 21 O. S. 1941, § 1191.”

The information designates a particular place where the public nuisance Avas maintained and the offense committed. Certain automobiles are named in addition to the building described in the information. The testimony in this connection by the policeman McDonald on this matter is as follows:

“Q. Did you watch anyone gamble on these cards at 925 North West 6th? A. No, sir. Q. On the date charged? A. No. Q. Did you ever watch anyone gamble on these cards in these automobiles charged in the information? A. No, sir. Q. Did you see anyone gathered around these parties for the purpose of gambling, on these cards? A. No, sir. Q. Or these places or autos? A. No.”

The other policeman’s testimony was substantially the same.

In the case of Blanton v. State, 38 Okla. Cr. 149, 259 P. 655, it is stated:

“A public nuisance is one which affects at the same time an entire community or neighborhood or any considerable number of persons, and any person who maintains or commits any public nuisance is guilty of a misdemeanor.
“An information charging the keeping or maintaining of a public nuisance need not designate the particular place of the commission of the offense other than that it was committed within the county where the prosecution is had, but where a particular place is alleged, evidence of the commission of a nuisance at a different place is proof of an independent crime and is not admissible.”

There was no evidence that the gambling cards were being distributed from the building named in the information. The automobile described in the information which belonged to the defendant, so. far as the record discloses, was never used to distribute these cards. The other automobiles named in the information belonged to other defendants and no attempt was made to connect the defendant with the operation or control of those cars. Since the state has elected to designate particular places where it is alleged a public nuisance was maintained by the defendant, it must either sustain the allegations as to the particular places identified in the information, or a conviction cannot be upheld.

The operation of these football parlays., if carried on in a manner described by the policemen, might constitute a public nuisance. The court, over the objection of the defendant, allowed the policemen to' describe in detail how these parlays were conducted. These statements were just general in their nature without any attempt on their part to connect the defendant with the operation, but were explanatory of the meaning of the cards and the parlay system of betting in general. The fact that certain of these parlay cards might have been found in defendant’s possession, without further evidence showing that he was using them unlawfully in the operation of this gambling game, would not be sufficient to support a charge of maintaining a public nuisance.

It is further contended that the evidence obtained by the officers at the time they arrested the defendant and searched his person was illegally obtained and inadmissible in evidence. The officer’s testimony in regard to the circumstances surrounding, the arrest and search of the defendant is as follows :

“Q. Now, where was Mr. Miller the first time you saw him? A. The first time we observed Mr. Miller was when he was in Crawford’s Drug Store. That is the first time I observed him. When he went in there. Q. When is the next time you observed him? A. When we went in and he was in there, is the next time. Q. What was he doing? A. Using the telephone. Q. Was he disturbing the peace in any way? A. No, I wouldn’t say he was. Q. Was he violating, any law in the drug store in your presence? A. Not in my presence, no, sir. Q. Did you have a warrant for his arrest? A. No, sir. Q. Did you have any search warrant for his person? A; NO', sir. Q. Then you just arrested him in police court fashion? A. We asked him to go down to- headquarters.”

One of the officers testified that he had been told that the defendant Miller was connected with the distribution of these cards. This hearsay statement, however, did not justify the arrest of the defendant by the officers, as said statement, if true, would only constitute a misdemeanor. In the case of Gragg v. State, 66 Okla. Cr. 163, 90 P. 2d 454, 455, it is held:

“Where the offense is not a felony, the officer cannot arrest without a warrant unless the offense was committed or attempted in his presence.
“Where the officer does not know of the act constituting the offense, it is not committed in his presence.”

This court has many times held in intoxicating liquor cases that no search of the person or seizure of any article found thereon can be made on mere suspicion that the person is violating the prohibitory liquor law. Keith v. State, 30 Okla. Cr. 168, 235 P. 631. The same rule would apply to any other misdemeanor.

As we have hereinabove stated, it is doubtful if the evidence was sufficient, if it is assumed that all of the evidence was competent and admissible against the defendant; but if the evidence which was seized in an unlawful manner is stricken from consideration, there remains no substantial evidence which, in any way, incriminates the defendant.

For the reasons hereinabove given, the judgment of the court of common pleas of Oklahoma county is reversed and the defendant discharged.

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


text:
    HELEN THOMISON v. STATE.
    No. A-9958.
    March 11, 1942.
    (123 P. 2d 697.)

      Chas. G. Ozmun, of Lawton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Helen Thomison, was charged in the county court of Comanche county with the unlawful possession of intoxicating liquor, was tried, convicted and sentenced to serve 90 days in the county jail and pay a fine of $250, and has appealed.

Prom the judgment rendered October 7, 1940, an appeal was attempted by filing in this court on October 24, 1940, a petition in error with case-made.

The Attorney General has filed a motion to dismiss; the appeal, which reads as follows :

“Comes Now Mac Q. Williamson, Attorney General, atttorney for defendant in error, and moves the court to dismiss the purported appeal in the above styled and numbered cause of action, for the reason that no notice of appeal was served upon the county attorney or the court clerk of Comanche county, and that no service of summons in error was had upon the Attorney General, or waiver of the same. That the judgment herein was rendered on the 7th day of October, 1940, and that more than four months have elapsed, and that it is now impossible to serve notice of appeal on the county attorney or court clerk, or serve summons in error on the Attorney General, or obtain waiver of the same, and that the court has no jurisdiction in said cause.
“Wherefore, premises considered, defendant in error moves that said purported appeal be dismissed.”

The record discloses that no notice of appeal was served upon the county attorney or the court clerk, and that no summons in error was served on the Attorney General, nor waiver secured.

Under the statute in force at the time of the attempted appeal herein, an appeal was perfected by the service of a notice upon the clerk of the court where the judgment was entered, stating that the appellant appeals from the judgment, and by the service of a similar notice upon the prosecuting attorney, or the service of a summons in error upon the Attorney General or a waiver of the same. These notices are the prerequisite steps to conferring upon the appellate court jurisdiction to hear and determine the appeal. Lutke v. State, 37 Okla. Cr. 18, 255 P. 719; Austin v. State, 55 Okla. Cr. 278, 28 P. 2d 1113; Erwin v. State, 63 Okla. Cr. 315, 74 P. 2d 1173; Thigpen v. State, 65 Okla. Cr. 134, 83 P. 2d 585.

The statute governing this procedure is section 3193, O. S. 1931, 22 O. S. A. § 1055, which states:

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

This statute has since been amended, S. L. 1941, c. 18, tit. 22. This amendment became effective August 21, 1941, and did not affect the validity of the purported appeal herein which was lodged in this court on October 24, 1940.

For the reasons herein stated, the appeal is; dismissed.

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


author: BAREFOOT, P. J.

text:
    BILL EASTER v. STATE.
    No. A-9949.
    March 11, 1942.
    (123 P. 2d 691.)

      A. G. Windham, of Poteau, for defendant.
    Mac Q. Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Clyde Followell, Co. Atty., of Po-teau, for the State.
   BAREFOOT, P. J.

Defendant was charged in the district court of Le Flore county with the crime of assault with intent to rape, was tried, convicted, and sentenced to pay a fine of $100 and serve 90 days in the county jail, and has appealed.

The first assignment of error is that the evidence is insufficient to sustain the verdict of the jury, and second, that the trial court erred in failing to instruct the jury upon the offense of assault and battery, which was an included offense, and the evidence clearly presented this issue for the consideration of the jury.

These issues may be presented together.

The statute upon which the information was based is Oklahoma Statutes 1931, section 1869, 21 Okla. St. Ann. § 681 :

“Every person Avho is guilty of an assault with intent to' commit any felony, except an assault with intent to kill, the punishment for which assault is not otherAvise prescribed in this code, is punishable by imprisonment in the State Penitentiary not exceeding five years, or in a county jail not exceeding one year, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment.”

The construction of this statute has been under consideration in many cases before this court. In the late cases of Cape v. State, 61 Okla. Cr. 173, 66 P. 2d 959, and Kitchen v. State, 66 Okla. Cr. 423, 92 P. 2d 860, the terms of this statute have been fully discussed and the decisions of this and other courts have been reviewed. The facts in the Cape Case are somewhat similar to- the facts in the instant case. In these cases the court has stated that an assault with intent to- commit rape includes every element of the crime of rape by force overcoming resistance except penetration. In the Cape case [61 Okla. Cr. 173, 66 P. 2d 963] it is stated:

“The felonious intent is the essence- of the offense. It is elementary, when a specific intent is required to make an act an offense, that the doing of the act does not raise a presumption that it Was done with the specific intent. Intent, which is essential to support conviction of assault with intent to- rape, cannot be presumed, but must be shown to- exist by competent evidence and beyond a reasonable do-ubt. Something more than a mere intention and solicitation is necessary.
“It is therefore necessary that the acts and conduct of the defendant should be shown to be such that there can be no- reasonable doubt as to the felonious intent. If these acts and conduct are equally consistent with the absence of the felonious intent, then it is clear they are insufficient to- justify or sustain a verdict of guilty.

“In order to convict on a charge of assault with intent to commit rape by force upon a woman over the age of consent, the evidence- should not only show an assault, but that the defendant assaulted the prosecutrix with the intention of gratifying his passion on her person at all events, notwithstanding any resistance she might make. Rose v. State, 32 Okla. Cr. 294, 240 P. 754; Brockman v. State [60 Okla. Cr. 75], 61 P. 2d 273; Vinsen v. State, 102 Tex. Cr. R. 235, 277 S. W. 644.

“In the case of People v. Cieslak, 319 Ill. 221, 149 N. E. 815, 816, it is said:

“ ‘The proof of a mere assault and battery, however aggravated it may be, without the intent to rape, will not warrant a conviction of assault with intent to rape, nor will the proof of mere licentious conduct, or even violent familiarity, with the female in an effort to induce her to yield to the embraces of the assailant, where there is no proof that he intended to have carnal knowledge of her by force and against her will. The specific intent charged is the gist of the offense.’

“In Witt v. State, 29 Okla. Cr. 357, 233 P. 788, 789, it is said:

“ ‘The charge is one that arouses the passions and prejudices of jurors, and for that reason it is the duty of the court to closely scrutinize the evidence, and where the evidence of the state is unreasonable, inconsistent, and contradictory, .and there is inherent evidence of improbability or indications that the prosecution is maliciously inspired, the court should not permit a conviction to stand.’
“In Ferbrache v. State, 21 Okla. Cr. 256, 206 P. 617, this court held:
“ ‘Under the laws of this state, conviction for rape may be had on the uncorroborated testimony of the prose-cutrix; but when her testimony is contradictory, and the defendant testifies and denies specifically the testimony of the prosecutrix, and his testimony is corroborated, the testimony of the prosecutrix, standing alone, is not sufficient to warrant a conviction.’
“This court does not hold with some that, as a matter of law, rape or assault with intent to rape cannot be established by the uncorroborated testimony of the prose-cutrix, but in common with all courts recognizes that, without such corroboration, her testimony must be clear and convincing; and while there is no rule of law which forbids a jury to convict on the uncorroborated testimony of the prosecutrix, provided they are satisfied beyond a reasonable doubt of the truth of her testimony, yet the courts have always recognized the danger of conviction on her uncorroborated testimony, and her testimony, if inherently improbable and uncorroborated, will not justify or support a conviction; as the only reasonable conclusion in such cases is that such verdicts are the result of passion or prejudice, and therefore contrary to law. Dawes v. State, 84 Okla. Cr. 225, 246 P. 482; Davidson v. State, 57 Okla. Cr. 188, 46 P. 2d 572.
“The rule in such cases' is that corroborating testimony should tend to show the material facts necessary to establish the commission of the crime. It is not indispensable that such corroboration should be furnished by positive and direct evidence, but proof of circumstances legitimately tending to show the existence of the material facts will be sufficient to authorize a conviction.
“An examination of the proof in this case fails to disclose any evidence corroborating the testimony of the prosecutrix, excepting her physical condition immediately after the alleged assault, which showed an assault and battery. Her testimony is contradictory and bears upon its face evidence of unreliability, and for this reason we think there was needed corroboration, that her condition was the result of force and violence on the part of the defendant in attempting to overcome her resistance to an assault with intent to commit rape.
“The controverted questions were: Which was the aggressor, and with what intent was the assault and battery committed? The conduct of these parties must be considered in connection with the fact that they both were excited by intoxicating liquor. The testimony of the prosecutrix, when applied to> the admitted facts in this case, is of a very doubtful character. She testified that the defendant made improper advances and told her his intention was to have sexual intercourse; that she was trying to prevent him, and he hit her with his fist on the head and hit her more than once; that during the struggle, which lasted about forty five minutes, she picked up a car crank and hit him on the head with it. She did not deny that she told Dr. Robinson that she was hit with a car crank, but that she used the crank first, and that she told the doctor not to report the case.
“It is admitted that she made no complaint and told no one that night that the defendant had attempted to rape her.”

While this court has held that it is unnecessary to corroborate the prosecutrix in cases of this character, we have also held to the rule that her testimony must be clear and convincing and must not be inherently improbable or contradictory. If possible, it should be corroborated. It is not necessary that the corroboration be by direct and positive testimony, but proof may be by circumstances which show the existence of the material facts. From a reading of the cases from this court and other courts, it will be seen that the question of intent is the real basis for the decision of the jury, the question being, Was there an intent on the part of the defendant to have or attempt to have intercourse with the prosecutrix? The laying of hands on her, and even assault and battery, however violent, are not sufficient to sustain the charge under the statute unless there be an intent on the part of the defendant to commit the act of intercourse.

From a reading of the cases decided by this court it has often been held that the crime of assault and battery, Oklahoma Statutes 1931, §§ 1865 and 1866, 21 Okla. St. Ann. §§ 641 and 642, is an included offense in the statute above quoted and under which defendant waá charged. Brockman v. State, 60 Okla. Cr. 75, 61 P. 2d 273; Tayrien v. State, 33 Okla. Cr. 231, 242 P. 1061; Fannin v. State, 65 Okla. Cr. 444, 88 P. 2d 671; Kilpatrick v. State, 71 Okla. Cr. 129, 109 P. 2d 516.

It is also provided by Oklahoma Statutes 1931, section 3097, 22 Okla. St. Ann. § 916, as follows:

“The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.”

In construing the above statute it has often been held by this court that the trial judge is required to give in his instructions one covering the material issues raised. This includes a charge which presents the issue as revealed by the testimony offered by the defendant. Kilpatrick v. State, 71 Okla. Cr. 129, 109 P. 2d 516, and cases heretofore cited.

This court has also held that one cannot be heard to complain of the failure of the court to instruct upon a particular issue or feature of the case where he has not requested a proper instruction covering this issue. But this statement of law has always been subject to this exception: That where this court is of the opinion, in the light of the entire record and the instructions given, that the court has failed to instruct the jury upon some material question of law .and where accused hasi been deprived of a substantial right, the case will be reversed. Lumpkin v. State, 5 Okla. Cr. 488, 115 .P. 478.

This now brings us to the facts in the instant case. Defendant was charged under the statute above quoted! with the crime of assault with intent to rape. The trial court charged the jury under this statute. He did not charge the jury under the assault and battery statutes above quoted, and the defendant did not make a request that the jury be SO' instructed. '

The facts are that defendant on the 17th day of June, 1938, was a resident of LeFlore county. Prosecutrix, Alice Nichols, was past 16 years of age. Her father and mother were both dead, and’in June, 1938, she was living in the home of Mr. and Mrs. Stanley Stephens, who lived near Big Cedar in Le Flore county. That on the evening of the 17th day of June, 1938, defendant and one Jim Roberts, who owned a resort and dance hall, had been to Mena, Ark., and had secured some “records” which they desired that she and Mrs. Stephens go to the resort or “honky tonk” owned by Roberts and hear them played. That they, in company with Jim Roberts, went to this resort about 5:30 in the afternoon, and defendant and Stanley Stephens came there about 8 o’clock in defendant’s car. Some time near midnight defendant started home in his car with prosecutrix, Alice Nichols, and -Mr. and Mrs. Stephens accompanying him.

There was evidence that they had been drinking and dancing, but prosecutrix testified she had drunk three or four drinks of brandy and no whisky. They had not gone very far from the resort until Mr. and Mrs. Stephens had a fight and Mr. Stephens slapped Mrs. Stephens. They proceeded a short distance, and the car stalled on a hill and the defendant asked Mr. Stephens to- go to the home of Mr. Fields and secure a team to pull the car. Mr. Stephens had gone only a short way when he -called his wife, and she left the car and. joined her husband, leaving the defendant and prosecutrix at the car.

They informed Mr. Fields and had started toward the car when they heard the prosecutrix “hollar.” When they arrived Mrs. Stephens testified that she asked what was the matter, and prosecutrix said, “Bill has almost beat me to death.” That she got out of the car' and she and prosecutrix left and walked to the home of Mrs. Luttrell, a distance of about three miles, and remained there overnight. That prosecutrix was bleeding at the nose and mouth, and that they stopped at creeks several times and washed the blood from her face. That she saw her undressed and put to bed by Mrs. Luttrell, and that there was blood all over her legs and thighs, but no wounds of any kind on her body. That she saw no blood from her “senile” organs.

Mrs. Luttrell testified to the same facts. That her clothes were bloody, and they were introduced in evidence. She also testified that she accompanied prosecutrix on the next morning to see the county doctor and the county-attorney. She did not take her to a doctor on the night she came to her house for the reason that it was eight miles to the nearest one. She testified prosecutrix was very bloody about the face, and that she saw blood and fingerprints on her thighs as she bathed her and put her to bed. Neither Mrs. Stephens nor Mrs. Luttrell testified that prosecutrix made any statement to them that defendant had attempted to have intercourse with her.

Prosecutrix, Alice Nichols, testified that she was! asleep in the ear when the Stephens went for Mr. Fields, and that the first thing she knew, “Bill had his hands up my dress and hitting me in the face when I hollared. He hit me in the face every time I hollared, and would make me shut up and hit me again, and so it wasn’t long until Jean and Stanley came back and Stanley said, ‘God damn, Bill, what are you doing?’ and he didn’t say a word and he just jumped in the front seat.”

She further testified:

“Q. Is that what caused him to stop bothering you? A. Yes. Q. What was he trying to do with you there, was he trying to have intercourse with you there? A. I would judge it was. Q. Were you resisting? A. Yes, sir. Q. And you hollared and these parties came back? A. Yes, sir. Q. And when the man spoke to him and asked' him what he was doing, what did he do? A. He leaped up in the front seat and grabbed, his gun and sat down on it. Jean started to grab that and he got it and sat down on it. I don’t think I told that in the other hearing. Q. What did you do then? A. Me and Jean got out and run on home.”

Mr. Fields testified for the state, but his evidence was not material to the issues here involved.

Mr. Coy Morrow also testified for the state. He came with his car and pulled defendant’s car up the hill after prosecutrix and Mrs. Stephens had left the same. The only material part of his evidence was that defendant came to his house about 1:20 a. m. and woke him • and asked him to come out, saying, “If I ever needed a friend, tonight is the night.” He testified the defendant told him he had been shot and had to get away. He also, testified that when he went to- the car, he examined it and told defendant he wasn’t shot and defendant said to him, “A lady asked me to get my pants unbuttoned and, like a man, I took a drink or two too many and made a mess of things.” Stanley Stephens was not present at the trial and did not testify.

Defendant was the only witness in his own behalf. He corroborated to a great extent the evidence heretofore stated with reference to being present at the resort. He also testified that the parties had been drinking, and that they continued to drink from a bottle when they started home. After the fight between Mr. and Mrs. Stephens the women were crying and tried to get him to give them his gun so they could kill themselves. He was a, constable and justice of the peace and had a gun in a scabbard on his right hip. He talked them out of this and refused to give them the gun. He testified that he was asleep at the wheel of the car while the Stephenses had gone for help and that he was awakened by the prosecu-trix trying to secure possession of his gun. That a fight ensued between himself and prosecutrix, and that he hit her two or three times in the face, causing her nose to bleed freely. He testified that, just as soon as he recovered the gun from prosecutrix, the Stephenses reappeared as above stated, and that the prosecutrix and Mrs. Stephens left immediately. He denied that he at any time attempted to have intercourse with prosecutrix or that he laid his hands upon her other than to strike her as stated above.

Applying the facts as above outlined to the law as heretofore stated, we are of the opinion that the court erred in failing to charge the jury upon the question of assault and battery, which is an included offense under the statute of which defendant stood charged. Under defendant’s testimony he was guilty of assault and battery and not of assault with intent to rape. He was entitled under the law to a clear-cut instruction covering his defense and the only defense which he made. The evidence of the prosecutrix herself as to his attempt to commit an assault with intent to rape was very slight. She made no statement to the Stephenses when they returned to the car that he had made such an attempt. Her statement was that “Bill had almost beat her to death.” Her testimony with reference to his attempt to have intercourse has heretofore been stated.

It is true there was evidence at the trial of circumstances, together with evidence of the prosecutrix as above indicated, that would have justified the jury in believing there was such an intent on the part of defendant. The verdict of the jury, which was only for a fine of $100 and 90 days in jail, is strongly persuasive that the jury did not consider’ that an attempt to rape had been committed, but rather that defendant was being punished for the assault and battery made upon the prosecutrix. It clearly indicates that, had the court properly charged the jury upon assault and battery as an included offense giving the punishment prescribed therefor, the jury would have convicted the defendant upon that charge.

Our Code of Criminal Procedure, Oklahoma Statutes 1931, section 3097, 22 Okla. St. Ann., § 916, provides:

“The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.”

In the case of Brockman v. State, 60 Okla. Cr. 75, 61 P. 2d 273, 277, this court has had occasion to consider this statute, and there says:

“Under the statute, the trial court should submit the case to the jury for consideration upon every degree of assault which the evidence in any reasonable view of it suggests, and the instructions given must be applicable to the testimony introduced on the trial.

“In the case of Tayrien v. State, 33 Okla. Cr. 231, 242 P. 1061, 1063, it is said:

“ ‘The rule is well settled that where there is evidence tending to prove the commission of an offense which is necessarily included in the offense charged, it is error for the trial court to refuse to instruct the jury of their right to convict of the lesser offense. Clark v. State, 6 Okla. Cr. 100, 116 P. 200.
“ ‘In Alexander v. State, 58 Tex. Cr. R. 621, 127 S.W. 189, the Texas Court of Criminal Appeals said:
“ ‘ “If the appellant took hold of the girl or put his hands upon her in a violent manner, yet if he did not have the specific intent at the time that he took hold of her to have intercourse with her either with or without her consent, then he would only be guilty of indecent familiarity, which, under the law, would be aggravated assault.
“ ‘ “Believing that the court was in error in not submitting the issue of aggravated assault to the jury, the judgment will be reversed.”
“ ‘In State v. Powers, 181 Iowa, 452, 164 N. W. 856, the Supreme Court of Iowa held:
“ ‘ “In a prosecution for assault to rape, evidence being sufficient to sustain verdict for assault and battery, that issue should have been submitted.”
“ ‘In State v. Hoag, 232 Mo. 308, 134 S. W. 509, the Supreme Court of Missouri said:
“ ‘ “The complaint of the defendant that the trial court erred in failing to give the jury an instruction on the law of common assault seems to us to be well taken. The crime of common assault is necessarily embraced in tbe charge of felonious assault. * * *
“ ‘ “If the jury believed the evidence of prosecutrix, and yet, from the surrounding circumstances, did not believe defendant intended to have sexual intercourse with her at the particular time when she testified that he placed his hands under her clothes, then clearly they would have been justified in finding him guilty of common assault. When, as; in the case at bar, the evidence shows that a defendant may not be guilty of the offense charged, but may be guilty of an offense necessarily embraced in the charge, it becomes the duty of the trial court to instruct the jury upon such minor offense whether it be requested to do- so or not. * *' For the error of the trial court in failing to- instruct the jury on the law of common assault, as applicable to the evidence in this case, its judgment is reversed, and the cause remanded for a new trial.”
“ ‘And see State v. Langston, 106 Kan. 672, 189 P. 153; People v. Garner, 211 Mich. 44, 178 N. W. 75; Smith v. State, 150 Ark. 193, 233 S. W. 1081; State v. Williams, 185 N. C. 685, 116 S. E. 736, 738.’
“In Rose v. State, 32 Okla. Cr. 294, 240 P. 754, 755, it is said:
“ ‘The prosecutrix being above the age of 18 years, a consideration of statutory rape is not necessary, for, if the defendant attempted to- commit a rape, it must be-rape by force, under the fourth subdivision of section 1834, Comp. St. 1921 (section 2515, St. 1931, 21 O. S. 1941 § 1111). This section of the statute defines rape as an act of sexual intercourse accomplished with a female, not the wife of the perpetrator where she resists, but her resistance is overcome by force and violence. Then, in order to constitute the crime of attempt to commit a rape, it is essential that the state prove that the defendant attempted to accomplish an act of sexual intercourse with the prosecutrix by force and violence to overcome her resistance, and the doing of some act toward the commission of such crime, but failed or was prevented or intercepted in the perpetration thereof. An attempt is defined in section 2297, Comp. St. 1921 (section 1822, St. 1931, 21 O. S. 1941 § 42). In order to convict a defendant of an attempt to commit rape upon a female above the age of 18 years, there must be proven a specific intent to use the force necessary to accomplish such purpose, notwithstanding, the resistance of the female, and also some overt act. When the evidence proves no more than solicitation to have sexual intercourse and a technical assault while urging such solicitation, it is insufficient.’ ”

After a careful consideration of the facts and the law as applied thereto, we have come to the conclusion that this case should be reversed and remanded for the reasons above stated, and the county attorney of Le Flore county is directed to take such action as he deems advisable in accordance with the terms of this opinion.

JONES and DOYLE, JJ., concur.


text:
    FRED FLANAGAN v. STATE.
    No. A-9957.
    March 18, 1942.
    (124 P. 2d 270.)

      H. C. Ivester, of Sayre, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Fred Flanagan, was charged in the county court of Beckham county with the unlawful possession of intoxicating liquor, was tried, convicted and sentenced to serve 60 days in the county jail and pay a fine of $200, and has appealed.

A lengthy brief has been filed on behalf of the defendant in which several assignments of error have been presented. It is first contended that the court erred in overruling the motion to suppress the evidence for the reason that the facts disclose that the search and seizure of the liquor involved was unlawful.

Without going into a detailed discussion of the facts on which this motion was based, it is sufficient for us to state that the defendant may not question the legality of the search since he disclaimed any possession or control over the room where the liquor was found, or of the liquor. Freeman v. State, 72 Okla. Cr. 137, 113 P. 2d 843; Tacker v. State, 72 Okla. Cr. 72, 113 P. 2d 394; Rogers v. State, 72 Okla. Cr. 123, 113 P. 2d 606; Chanosky v. State, 52 Okla. 476, 153 P. 131; Hall v. State, 39 Okla. Cr. 254, 264 P. 221, 222.

In Freeman v. State, supra, it is stated:

“The constitutional provision guaranteeing one immunity from unlawful search and seizure is personal to1 the occupant of the premises involved, and hence an accused cannot object that a search is unlawful if he does! not contend that he owns or has possession of the premises searched. Okla. St. Ann. Const, art. 2, § 30.”

It is further contended that the court erred in giving certain instructions and in refusing to give certain instructions requested by the defendant.

The instructions which were given by the court were in the language of the statute and for the purposes for which they were given were sufficient under the decisions of this court. Anderson v. State, 21 Okla. Cr. 193, 207 P. 977.

The defendant presented a requested instruction based upon what he alleges is his theory of the case. It is! true that the defendant in every criminal case has a right to have a clear and affirmative instruction given to the jury applicable to his testimony based upon the hypothesis that it is true, when such testimony affects a material issue in the case. We have examined the requested instruction. It is not in proper form and, if given by the court of its own volition over the objection of the defendant, would have been grounds for a reversal of this case for the reason that it placed an unfair burden upon the defendant to prove that the whisky found by the officers belonged to Charles McDuffie.

The other instruction requested by the defendant was an instruction on circumstantial evidence and concerned the weight which might be given by the jury to certain statements alleged to have been made by the defendant to the officers after he had been placed in custody. The instruction requested by the defendant was not couched in proper language, but it was sufficient to direct the court’s attention to the fact that a proper instruction on circumstantial evidence should be given, if, in the opinion of the court, the facts upon which the state relied for a conviction were wholly circumstantial. For a model instruction on circumstantial evidence see Jones v. State, 69 Okla. Cr. 244, 101 P. 2d 860.

It is the contention of the state that although a part of the evidence relied upon by the state was circumstantial in its nature, the defendant made certain admissions of guilt to the officers which constitute direct evidence, and that since their case was not based wholly on circumstantial evidence, no instruction on circumstantial evidence should have been given.

This court has repeatedly held that where the prosecution does not rely wholly upon circumstantial evidence for a conviction, the accused is not, as a matter of right, entitled to have the jury instructed upon the law of circumstantial evidence. Hagerty v. State, 22 Okla. Cr. 136, 210 P. 300; Foster v. State, 8 Okla. Cr. 139, 126 P. 835; Parnell v. State, 39 Okla. Cr. 361, 265 P. 660; Meier v. State, 39 Okla. Cr. 104, 263 P. 165.

In this case the defendant was the owner of a two-story hotel, known as the Lee Hotel, in the city of Sayre. This hotel building was a two-story structure with 20 or more rooms. The defendant managed and operated the hotel and occupied two of the rooms on the first floor as his living quarters. The other rooms of the hotel were occupied principally by permanent roomers, but there was some transient trade.

On the date alleged in the information, the officers, armed with a search warrant, searched the various rooms in the hotel. The whisky herein involved was found in room 16, which was occupied at that date by one Charles E. McDuffie. McDuffie’s clothes and personal belongings were in this room and he told the sheriff that it was his room. The defendant was at the hotel at the time the search was made and informed the officers that the room where the liquor was found was rented by McDuffie; that McDuffie had been there several weeks. The sheriff testified that he made an examination of the hotel ledger and did not find anyone registered for room 16.

The defendant was arrested and taken tO' jail and the officers testified as to conversations had with the defendant while he was waiting in the lobby of the jail for his appearance bond to be made. Each of the officers testified as to certain statements made by the defendant. The testimony in this regard was substantially the same. We cite one instance which is sufficient to show the substance of the statements made by the defendant:

“Q. (By Mr. Gillum, County Attorney) After that raid was completed, Mr. Jefferson, did you have occasion to talk to the defendant Fred Flanagan? A. Yes, sir. * * * Q. Relate to the Court this conversation. * * * A. Mr. Flanagan told me at that time that it didn’t pay a man to take a chance on handling whisky himself when he could get a man cheap to do it. ” * * Q. (By Mr. Ives-ter, Attorney for Defendant) He didn’t say that whisky you found down there was his? A. No, he didn’t exactly say that. Q. Did he say that? Did he? A. No.”

It has been held that the testimony of a confession is direct evidence and not circumstantial, and that where there is direct evidence of a confession of an accused that he committed the crime, in addition to circumstantial evidence, an instruction on the law of circumstantial evidence is unnecessary. Foster v. State, 8 Okla. Cr. 139, 126 P. 835; Burns v. State, 22 Okla. Cr. 151, 210 P. 302; Hollingsworth v. State, 50 Okla. Cr. 164, 297 P. 301.

This court, however, has never had occasion to' pass upon the question as to whether it is direct evidence where the statements made by the defendant are not sufficient to amount to a confession of his guilt as to the crime charged, but are merely incriminatory ’statements.

We think the rule is correctly stated in Hart v. State, 14 Ga. App. 714, 82 S. E. 164. The fifth syllabus of said case is stated as follows:

“A confession of facts directly admitting the commission of a crime is ‘direct evidence,’ but a confession of facts from which an inference of participation in the commission of the crime arises is ‘circumstantial evidence.’ ”

In discussing this question in the body of the opinion, it is stated:

“Confessions may be direct or circumstantial evidence. If they be of facts directly admitting the commission of the crime, they are direct evidence; but if the fact or facts confessed be only matter from which inference of participation arises, they are circumstantial evidence. The facts admitted by the defendant in this case are only matter from which an inference of participation arises; and there being no evidence in this case, save circumstantial evidence, on which the conviction could rest, it was the duty of the court to charge the jury on the subject of circumstantial evidence, whether requested to do so or not. Weaver v. State, 135 Ga. [317], 322, 69 S. E. 488; McElroy v. State, 125 Ga. 37, 53 S. E. 759; Jones v. State, 105 Ga. 649, 31 S. E. 574; Thomas v. State, 8 Ga. App. 95, 68 S. E. 522; Twilley v. State, 9 Ga. App. 435, 71 S. E. 587.”

In applying this rule to the case at bar, it is apparent that the statements made by the sheriff are not sufficient to' be classed as a confession. The statements alleged to have been made by the defendant were damaging in their nature, and sufficient, when considered in connection with the other circumstances, to justify the jury in concluding that the defendant was guilty of the offense charged. It is agreed that if the statements made by the defendant were to be excluded from the evidence, all of the evidence of the state was wholly circumstantial. We think these statements by the defendant are merely additional circumstances and are not sufficient to be treated by the court as direct evidence so as to excuse the court from the giving of an instruction on circumstantial evidence.

There are many other assignments of error presented in the brief of defendant and argued by his counsel, but those questions should not arise upon a retrial of this) case and it is not necessary for the same to be discussed in this opinion.

For the failure of the court to properly instruct the jury, the judgment of the county court of Beckham county is reversed, with instructions to< grant the defendant a new trial.

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


text:
    In re FRANK MOSE.
    No. A-10205.
    March 18, 1942.
    (124 P. 2d 264.)
    Allen & Allen, of Tulsa, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   BAREFOOT, P. J.

Petitioner, Frank Mose, has filed in this court his petition for writ of habeas corpus alleging that he is now restrained of his liberty and unlawfully imprisoned in the State Penitentiary at McAles-ter, Okla., by Fred Hunt as warden. It is alleged that said imprisonment is by reason of a conviction on a burglary charge in Logan county on November- 18, 1932, in which petitioner was sentenced to1 the State Penitentiary for a period of seven years'. It is further alleged that he was granted a parole in 1934 and that Governor Leon C. Phillips had revoked this parole on the 12th day of August, 1941, and petitioner had been recommitted to the penitentiary to serve out the term of burglary for which he was convicted on November 18, 1932.

It is contended that the Governor is without jurisdiction or authority to so revoke the parole and that his present imprisonment is therefore illegal. No exhibits are attached to the petition nor was any evidence produced at the hearing to show cause. Briefs have been filed both by the petitioner and by the Attorney General in behalf of the warden of the penitentiary.

Petitioner states in his brief:

“There is the one paramount question before this court to be determined, viz., has the Governor the authority to- revoke a parole after the time given for sentence to expire? If he has the writ should be denied.”

This question has been answered by this court, and it is that the Governor has such authority. The cases of Ex parte Ridley, 3 Okla. Cr. 350, 106 P. 549, 26 L.R.A., N.S., 110, and Ex parte Butler, 40 Okla. Cr. 434, 269 P. 786, definitely decide this question. Petitioner refers to the Bidley Case and quotes the fourth paragraph of the syllabus, which is as follows:

“When a convict has been released upon a parole, and where said parole has been revoked by order of the Governor for violation of the conditions thereof, in the absence of a statute or of an express provision of the parole providing for a hearing, the convict is entitled to a hearing on habeas corpus, before the Criminal Court of Appeals, or the district court of the county where he is held, in order that he may show, if he can, that he has performed the' conditions of the parole, or that he has a legal excuse for having not done so, or that he is not the same person who was convicted.”

An examination of the body of the opinion explaining when one is entitled to a. writ of habeas corpus under the conditions above outlined, says:

“However, a convict who' has been released upon a parole, and apprehended upon the revocation thereof, in the absence of a statute, or of an express provision in the parole giving him the right to a hearing before a court having jurisdiction, may upon an application for writ of habeas corpus averring the facts show that he has fully performed the conditions of the parole, or that he has1 a legal excuse for not having done so, or that he is' not the same person who was convicted. If it be determined upon the hearing of such application that there has not been a violation of or noncompliance with the condition or conditions of the parole, or if the petitioner shall show to the satisfaction of the court some validi reason or excuse for such violation or noncompliance, he should be discharged from custody; but, if a violation of, or noncompliance with, the condition or conditions of the parole be shown to the satisfaction of the court without any legal reason or excuse therefor, the petitioner should be remanded to custody, and ordered to have the original sentence imposed upon him duly executed, or SO' much thereof as has not been already suffered.”

In the instant case there is nothing to show that there had been any hearing on the application or that the conditions of the parole had been broken or that the Governor had in any way exceeded the right given him under the Constitution and statutes to revoke the parole of one who had violated its terms.

In the first and second paragraphs of the syllabus of the case of Ex parte Butler, supra, it is stated:

“Under the constitutional provision conferring the pardoning power upon the Governor (Const, art. 6, § 10), the Governor has exclusive power to' parole a convict, with such restrictions and limitations as he may deem proper, and, upon a violation by such convict of the terms and conditions of his parole, the Governor has power to revoke the parole, and direct that such convict be rearrested and returned to custody and required to serve out the unexpired part of the sentence of the court, as though no parole had been granted, even after the time his sentence would have ended but for the suspension thereof by the parole.” •
“A convict was granted and accepted a parole which expressly provided that the Governor might revoke the same and remand the party to prison for a violation of the conditions, or ‘for any other reason by him deemed sufficient.’ Held, that the Governor may order the convict to be so remanded without notice to him, and without giving him an opportunity to be heard.”

•See, also, the following cases: Ex parte Foster, 60 Okla. Cr. 50, 61 P. 2d 37; Ex parte Horine, 11 Okla. Cr. 517, 148 P. 825, L.R.A. 1915F, 548; Ex parte Woodward, 58 Okla. Cr. 333, 53 P. 2d 288; Ex parte Collins, 32 Okla. Cr. 6, 239 P. 693.

It may be further stated that the decision in the Ridley Case was rendered on January 11, 1910. The Code Commission which prepared the 1910 Revised Laws drafted and incorporated into the 1910 Code section 4640. This section has been carried forward in all subsequent compilations, being section 3278, O. S. 1931; Title 57, § 346, O. S. A. and O. S. 1941, and is as follows:

“If a paroled convict shall at any time be guilty of a violation of any of the conditions of his parole, he may, upon the order of the Governor, be rearrested and recommitted, without further proceedings, to confinement for the remainder of, and under the terms of, his original sentence.”

In 28 A.L.R. 947, the authorities are given in the notes reviewing the two lines of authorities upon this question and the reasons followed in each instance are stated. It will be noted that the rule adopted in Oklahoma is in conformity with the decided weight of authority in other states.

Por the reasons above stated, the writ of habeas! corpus is denied.

JONES and DOYLE, JJ., concur.


author: PER CURIAM.

text:
    Ex parte Mrs. E. F. WALROD.
    No. A-10225.
    March 18, 1942.
    (124 P. 2d 264.)
    Stephenson & Stephenson, of Okemah, for petitioner.
    Ernest P. Jenkins, of Stillwater., for respondent.
   PER CURIAM.

Petitioner, Mrs. E. P. Walrod, filed in this court a petition for writ of habeas corpus on February 19, 1942, alleging that she was illegally and unlawfully restrained of her liberty in the city jail at Stillwater, in Payne county, Okla., by Gene Hoyt, chief of police of the city of Stillwater. A rule to> show cause was made setting the case for hearing in this court on the 6th day of March, 1942. A response was filed on February 27, 1942.

Since the hearing was had in this court a motion to dismiss has been filed in which it is stated that on March 11, 1942, petitioner was tried before the municipal court of Stillwater and was found not guilty and she was discharged.

It therefore appears that the question before this court has become moot, and for this reason the petition for writ of habeas corpus is dismissed. Carey v. State, 24 Okla. Cr. 273, 217 P. 895.