text:
    WILLIAM MAYS v. STATE.
    No. A-3528.
    Opinion Filed June 3, 1920.
    Rehearing Denied June 3, 1921.
    (197 Pac. 1064.)
    (Syllabus.)
    1. Appeal and Error — Review — Sufficiency of Evidence-The judgment in a murder case will not be reversed on appeal as not sustained by the evidence, unless there is nO' substantial evidence tending to show the guilt of the djefendant, or unless it fails so far to support the verdict that the necessary inference is that the jury acted fnom partiality or prejudice, or was controlled by undue influence.
    2. Evidence — “Confession.” ..A confession is a voluntary statement made by a person charged with, the commission of a crime, wherein he acknowledges himself to be guilty of the offense charged, and discloses the circumstances of the act, or the share and plartieipation which he had in it.
    3. Same — “Extrajudicial Confessions.” Extrajudicial confessions' are those which are made by the defendant out of court, whether to an official or nonofficial person, and such confessions, in order to be admissible, must be entirely free and voluntary.
    4. Same — Involuntary Confession. Confessions induced by a. promise of benefit or threat of harm, made to the defendant by a prosecuting attorney, or an officer having him in custody, or by one having authority over him, or made by a private person in the presence of one whose acquiescence may be presumed, will be deemed involuntary, and will be inadmissible as evidence.
    5 Same — Admissibility — Burden of Proof. Where the competency of a confession is challenged on the ground, that, if made, it was not voluntary, its admissibility is primarily a question for the court. In the absence of the jury, the court should hear the evidence offered respecting the facts and circumstances attending such alleged confession, and the burden is on the defendant to show that it was procured by such means or under such circumstances as to render it inadmissible, unless the evidence on the part of the state tends to show that fact. If it is held competent, and the proof of the same admissible, the defendant is entitled to have the evidence in regard to the facts and circumstances under which it was made given anew to the jury, not that the jury may pass upon its competency or admissibility, but for the purpose of enabling them to judge what weight and value should be given to it as evidence, and the jury may disregard it if they are not satisfied that it was voluntarily made.
    6. Same — Voluntary Confession — Admissibility. The fact that the defendant was under arrest and in jail, and was not warned that any statement was made by him might be used against him, will not affect the admissibility of any voluntary statement made by him, which would otherwise be competent.
    7. Same — Voluntary Confessions — Admissibility. The fact that statements of the defendant offered as a confession of murder were made to the arresting officer in answer to questions which assumed his guilt, and that the officer told him that it would be better to tell the truth, does not show that the confession was not voluntary.
    '8. Same — Character of C°nfession for Jury. In a trial for murder, held, on the evidence that whether the alleged confessions of the defendant were voluntary was for the jury. Held, further, that where the voluntary nature of the confession was submitted to the jury under proper instructions, a verdict against the defendant is conclusive on the issue.

      S. Same — Conviction—Pijoof of Corpus Delicti. An extrajudicial confession of the defendant is not sufficient to warrant his conviction without additional proof that the crime charged has been committed. There must be, in addition to the confession, proof of the corpus delicti, and where the corpus delicti is established by independent evidence, a conviction based upon the defendant’s voluntary confession is warranted.
    10. Trial — Conduct of Jury — Inspection of Weapon. The mere fact that a juror picked UP the pistol introduced in evidence and examined it as the jury were retiring to deliberate did not constitute receiving evidence out of court.
    11. Same — Juror Speaking to Bystander. The fact that while the jury were in charge of the bailiff one of the jurors spoke to a bystander in the presence (of the other jurors about a matter not connected with the case, while an irregularity, will not warrant a reversal of the judgment.
    12. Homicide — Sufficiency of Evidence — Modification of Death Sentence. In a prosecution ®>r murder, the evidence examined, and held sufficient to> warrant the verdict convicting the defendant of murder, but insufficient to justify the extreme penalty, and for this reason the jury abused its discretion in assessing the punishment of death. The judgment and sentence is therefore modified to imprisonment for life at hard labor.
    Appeal from District Court, McIntosh County; R. W. Higgins, Judge.
    William Mays was convicted of murder and sentenced to death, and he appeals. Sentence modified, and conviction
    affirmed. , . [

      William Mays was convicted and the death penalty assessed for the murder of Kelsey H. Shephard, at Brush Hill, in McIntosh county on or about the 23d day of November, 1918.
    Mrs. Shephard, widow of the deceased, the first witness for the state, testified:
    “I saw my husband in the store just before dark. He went to haul some wood. I shut the front door of the store with the latch, and barred it with a wooden bar. I went out the back door, locked it, and went home to cook supper. It was after dark when he came in and unloaded the wood and went on to the store. About an hour or an hour and a half from the time he left the store to go after the wood I found him in the store behind the counter, and he said he was shot. I asked him if he knew who did it. He said it was a white man or a yellow negro; that the man was a little smaller than he was. I called my son-in-law to come and help carry him to the house, which was about 100 or 150 yards from the store. Dr. Lee came and dressed his wounds. About Monday noon we took him to the hospital at Muskogee. He lived 13 days and died on the 6th day of December, 1918. He was 49 years old the day before he died. I am a citizen of the Creek Nation. Lundy Allen is the husband of my oldest daughter. My husband was her guardian. Lundy Allen lived 50 or 75 yards north and west of the store. ’ ’
    Dr. N. P. Lee testified:
    “I found the deceased suffering from gunshot wounds. One bullet entered the right side just above the third inter-space a little to the left of the nipple, and one in the left side just below the clavicle, and these wounds caused his death.”
    H. G. Caughran testified:
    “On the 23rd of November, at Checotah, I heard a conversation between the defendant and a smaller yellow darkey, who said to the defendant; ‘Are we going over yonder tonight?’ and the defendant said, ‘Yes: are you with me?’ I was about 30 feet away from them at the time. I never saw the defendant before that I know of.”

      Frank Wiser testified:
    "I am in the mercantile business at Brush Hill; I have seen the defendant off and on' for 2 or 3 years. About 7 o’clock that evening the defendant and McKinley Mims came into my store and one of them asked if I had any 38 cartridges ; said he wanted 50 cents worth, and I sold him 20 cartridges. Proctor, a colored man, was in there. I don’t know who left first, Proctor or the defendants. There was nothing out of the ordinary in the conduct of the defendants. that evening. I heard a wagon going west. My store faces south, and Shephard’s store faces east. It is about 100 yards west of my place. Something like 30 minutes after these boys left the store I heard a noise but could not say it was shots. I heard that I was accused of the killing. I don’t remember who it was I heard it from.”
    Dan Moudy testified:
    “I live a mile south and three-quarters east of Brush Hill. I was at deceased’s place between'8 and 9 o’clock. I went to the store about 4 o’clock in the morning, and with some other parties made an investigation. I found a battered bullet in the back end of the store. It was laying on a box under a window. I noticed a hole cut in the front door and the glass of a window broken out. I was with the officers, and we followed some wagon tracks going west from the store that led to the Grayson farm. We tracked this wagon to where the road made a turn to Mims’ house. The last wagon went on past this road and turned to the right, and made a circle and came back to the south towards Mims’ house. I judge it to be a mile and a quarter from Shephard’s store to Mims’ house. The soil in the road around the west of the store was sandy and for a half mile west no timber.”
    J. W. Sampson testified:
    “I live at Checotah; was deputy sheriff and went to Brush Hill with other officers. We arrived there between 1 and 2 o’clock. We all went to the Mims place, and found seven men and boys there in one room, and I saw colored women there. We arrested Will Mays and McKinley Mims. We found 17 cartridges in May’s pockets. We investigated some tracks- on the road. With me was McCune, Moore, Sampson, Wisner, and Frank Shephard and Bays, a detective from-Muskogee, and possibly another one or two. We found where-one wagon went west from the store, and we tracked ithe wagon to Mims’ place. The soil is sandy for about half a, mile west from the store. We started with the defendants to Brush Hill. We stopped on the way, and the defendant made a statement.”
    At this point the state desired to introduce certain confessions made by the defendant. The defendant objected, and the court caused the jury to retire, and heard all the evidence offered bearing upon the question. After hearing the-argument of counsel, the court overruled the 'defendant’s objections, and held the alleged confessions admissible. The-jury was recalled.
    Lundy Allen, the next witness on behalf of the state,, testified:
    “I live at Brush Hill, about 50 or 75 yards northwest from Shephard’s store. I am a son-in-law of Mr. Shephard.. The last time I saw Mr. Shephard before he was shot was at his home just about dark you might say. It. must have been three - quarters of an hour before I saw him again. He was behind the counter in the store, and! he told me he was shot. That evening I went with Mr. Shep-hard after the load of wood and came back with him; I unhooked the team, and turned it into the lot by the well. Then, me and my wife went home. About 20 or 30 minutes later' I was sitting by the fire, and heard three explosions that sounded like gunshots, and I heard some one holler in the direction of the store. I ate my supper after I heard the shots. Then I went to Mr. Shephard’s house, and from there to the-store; I found the lamp on the floor in the store. It had no-globe on it, and the oil had spilled on the floor. The next morning I tracked the wagons for a quarter of a mile west of' the store; I didn’t go any further. Afterwards I heard some-talk that I was charged with the crime.”
    M. B. Moore, undersheriff, testified that with the other-officers he went to Brush Hill, and from there to Mims’ place,. -the next morning after the shooting, and they arrested William Mays and McKinley Mims; that they found 17 cartridges In the defendant’s pockets, and 2 of them were snapped; that Mays delivered the pistol to him; witness produced the pistol .and cartridges; that they took the defendants to Brush Hill, and from there to Checotah, and from there here; that there was a large crowd at Brush Hill; that at Checotah threats were made by the crowd, and an attempt was made by the mob to break into the jail there, and another mob stopped -their car between Checotah and Eufaulá.
    Fannie Mims, the first witness for the defendant, testified that the defendant and her brother, McKinley Mims, went to 'Checotah with some other parties on the day Mr. Shephard was shot, and they returned home about 7 o’clock that evening; that all the children sat up until about 11 o’clock; that -she saw the pistol that the officers took from the defendant in a bookcase in the boys’ room about 10 o’clock that day, ;and saw it again about 5 o’clock that evening.
    Nancy Allen testified that she was visiting at the home -of Mims; had been there about a week when Mr. Shephard was shot; that she saw the pistol that the officers took from the defendant in the bookcase that day-
    Kent Proctor testified:
    “I live about two miles southwest of Brush Hill. I have known Will Mays about 8 years. I rode out from Checotah that day with Will Mays. We left there about 5 o’clock, and .stopped at Brush Hill about 7 o’clock. We went into Mr. Wiser’s store and I bought the boys a dime’s worth of candy. I saw them leave Brush Hill, each of them driving a team to ;a wagon. They went west. When I started home they had passed Mr. Shephard’s store. I could hear the sounds of those wagons as I walked down the road a half mile or a mile.”
    Cassie Mims testified:
    “I am a brother of McKinley Mims. We went to Che-.icotah the day Mr. Shephard was shot, Elgin Fox and I on a load of cotton. Will Mays and McKinley Mims each drove a wagon home; I came back in a buggy. We all left Che-' cotah about the same time, the wagons were ahead of us. As, we came into Brush Hill, the boys were driving off from Mr. Wiser’s store. We arrived home a little after 7 o’clock. The defendant and McKinley were at home when we got there.”'
    His further testimony was as hereinbefore stated.
    Elgin Fox testified that he went to Checotah on the day Mr. Shephard was shot, and rode back with Cassie Mims in the buggy; that the defendant and McKinley left first, and they left about half an hour later.
    Edward Mims testified that his brother McKinley and Will Mays left home that morning about 9 o’clock, with two., wagons, and his father went along in the buggy; that the-boys arrived home about 7 o’clock, and in about 5 minutes afterwards Cassie and Elgin Fox arrived in the buggy; that h& saw the pistol taken by the officers laying in the desk after the boys left; that the next morning while they were all asleep the officers rushed in and hollered, “get up boys,” and said they were looking for whisky and “Choc,” and they searched the house. Finally they said they wanted to talk to the boys and took them out and then took them over in the bottom. I was about 100 yards away from the boys when the officers separated them. I heard them cursing Mays, but. could not understand what was said.
    Dan Moudy, called by the defendant, testified:
    “I asked Mr. Shephard who shot him, and he said he didn’t know. I said, ‘Mr. Shephard, don’t you know you are in a bad condition?’ and he said he did. I said, ‘If you know who did it, I would like to know.’ He said, ‘I could not be-positive; I think it was a white man, a small like man.’ ”
    In rebuttal witnesses Sampson, Moore and McCune testified that they nor any of the other officers cursed the defendant or abused him in any way, and that none of them punched him with a gun.

      The testimony as to the competency of and the alleged confessions will be stated in the opinion.
    C. H. Tully and S. M. Rutherford, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and Crump & De G-raffenried, Special Counsel, for the State.
   DOYLE, P. J.

(after stating the facts as above). Plaintiff in error, William Mays, herein referred to as the defendant, and McKinley Mims, were by information jointly charged with the crime of murder, committed by shooting Kelsey H. Shephard with a pistol, in McIntosh county on or about the 23d day of November, 1918. A severance was granted, and upon his trial the defendant, Mays, was found guilty of murder, and his punishment assessed at death. From the judgment and sentence pronounced in pursuance of the verdict he has appealed to this court.

The deceased was a merchant at Brush Hill. Between the hours of 7 and 8 o ’clock p. m., on the date named, he was shot in his store. About an hour before he was shot he left the store to haul a load of wood to his home. His son-in-law assisted him in hauling the wood, and unhitched the team. The deceased then went back to his store, which was about 100 yards from his home. About 30 minutes later he was found by his wife crouched behind the counter. He told her he had been shot by a white man or a yellow negro. He died on the 6th day of December in Muskogee, where he had been taken for treatment.

The state offered testimony of a circumstantial character tending to show that the defendant fired the fatal shots, and offered in evidence alleged confessions of the defendant made to the officers who arrested him; also an alleged confession reduced to writing by the county attorney two days before the trial begun.

The errors assigned and relied upon for a reversal of the judgment and sentence in substance are: That the verdict is contrary to law, and that the verdict is not sustained by sufficient evidence; that the court erred in admitting in evidence .alleged confessions of the defendant, because, if made, they were not voluntary,- and alleged misconduct of jury.

This court has held repeatedly that it has no power to reverse a judgment of conviction upon the ground that the verdict is not supported by the evidence, unless there is substantial evidence tending to show the guilt of the defendant, •or the evidence fails so far to support the verdict that the necessary inference is that the jury must have acted from •partiality or prejudice, or have been controlled in reaching their verdict by undue influence. This court adheres to the rule that a conviction cannot be had on the extrajudicial confessions of the defendant without independent evidence of the corpus delicti, and, before such confessions should be admitted, there should be evidence prima facie sufficient to show that the offense to which the confession relates has been committed. The court must decide in the first instance this question. However, the decision of the court does not bind the jury, as the province of the court in such particular is only to determine whether sufficient evidence has been adduced to go to the jury for their determination. In passing upon the evidence submitted to them the jury must first determine beyond a ■reasonable doubt that the crime has been committed; then they •are at liberty to give the alleged confession such weight as it is entitled to, taking into consideration the circumstances •surrounding it and the extent to which it has been corroborated. In this case the corpus delicti was proved by independent evidence, and if the confessions of the defendant •were voluntary and admissible, the issue of the defendant’s ‘guilt or innocence was clearly a question for the jury.

The serious question in this case is whether the alleged confessions of the defendant were voluntary or involuntary in contemplation of law, and whether this should have been determined by the court or whether under the evidence it was properly left to the jui;y for its determination.

In the course of the trial, J. W. Salmpson testified that he was a deputy sheriff, and with Moore, undersheriff, and McCune, sheriff-elect, arrested the defendants the next morning, and started with them to Brush Hill; that on the way they stopped and separated the defendants. Being asked if the defendant made any statement, counsel for the defendant objected, and asked leave of the court to examine the witness and offer proof to show that the alleged confession was involuntary. The court then caused the jury to retire. Examined by counsel for the defendant, witness testified:

“I think I told him the thing for him to do was to tell us all about it; that he knew all about it. We told him he knew all about it, and wanted him to tell us all about it. We stopped, I judge, 10 or 15 minutes. I don’t remember seeing a fire being built. I heard no threats.”

Examined by counsel for the state, witness testified:

“He asked if Mr. Shephard was shot, and we told him he ought to know, and he said, ‘Well, he didn’t aim to hurt him; he was good to us; ’ and then we asked him how he come to shoot him, and he said he went in there to get a pair of shoes, him and the other boy, and Mr. Shephard come in on them and lit the lamp, and he didn’t know what made him shoot him. We never made him any promises, just told him he had better tell the truth; I never heard any threats made, and I was right close to him.”

The testimony of witnesses McCune and Moore, called by the state, was, in substance, the same. All these witnesses testified that no threats of any kind were made against the defendant, and no promises of any kind were made in order to induce him to confess, and that the confession made by the defendant was voluntary.

The defendant called Cassie Mims, who testified:

“I was at home when the officers arrested the defendants. They went with them over in the bottom, and there separated them. They surrounded the defendant, Mays, and were cussing and going on. I heard them say, ‘You jumped in your damn wagon; say it, God damn you,’ and I could see them punch at him; I was about 100 yards from them at the time.”

After hearing the evidence and argument of counsel the court held the alleged confession admissible. The jury was recalled.

N. M. Burton testified:

“I am county commissioner. I saw the defendant in the sheriff’s office the next night after the shooting of Shephard. Sheriff Moore and two or three other officers were present, and the defendant made a statement.”

Over the objection of the defendant the witness was allowed to testify:

“I asked him if he was the one that did the shooting. He said> ‘Yes,’ and I asked him what he broke in the store for, and he said he wanted to get some shoes. ’ ’

There was no threat or promise made. Cross-examined, he stated:

“The defendants were handcuffed together, and had not been taken to the jail at the time.”

J. W. McCune, sheriff, testified:

“We found the defendants in bed, and took them to Brush Hill, from there to Checotah, and then here. On the way from the Mims’ home to Brush Hill we stopped in the bottom a little while, and the defendant, Mays, made a statement.”

Objection was made, and leave of court asked by counsel for the defendant to examine the witness. Leave was granted and witness testified:

“I did not warn the defendant that any statement he might make would be used against him. I did not see any violence offered to him, and I did not see him punched or anything of that kind. There were four of us with him; two or three other men came up before we left there.”

Over the defendant’s objection witness was allowed to testify:

“The defendant asked what had happened and finally asked, ‘Has somebody been shot?’ I said, ‘You know what has happened; you know better than anybody what has happened; you - don’t have to ask what has happened.’ I stepped away, and was speaking to Killingsworth, and as I stepped back I heard the defendant say that he did it, and then he said, if we would take him to the store he would show just how it all happened. "When we got to the store building he showed where Mr. Shephard was standing, about midways of the store, and he said he was just behind the counter when he fired the first shot, and he stepped back with Mr. Shephard crowding him and shot again. Then he backed on and shot again. That Mr. Shephard sank down, and he went out the front door and ran. He said McKinley .Mims cut a hole in the door, put his hand in there and raised the crossbar, and they went in. That Mims told him that he broke out the window. Then they got in their wagons and went home. That two or three nights ago the defendant made a statement that was typewritten by Judge O’Reilly, county attorney. That Undersheriff Moore and jailer, Jack Hunter, were present at the time. That the county attorney told the defendant that the statement would possibly be used against him in evidence. That the statement was read to the defendant before he authorized witness to sign it for him, and the defendant made this statement voluntarily.”

Against the objections of the defendant the typewritten confession was offered in evidence and read to the jury. It is as follows:

“State v. William Mays and McKinley Mims.
“Statement of William Mays.
“On the morning nearly 12 o’clock McKinley Mims and myself drove two wagons to Checotah. My wagon was loaded with cotton and McKinley’s wagon had Mrs. Mims and Hilly Rones in it. Both Mrs. Mims and Hilly took the train at Checotah. Late in the afternoon we started back home to Mr. A. M. Mims’ home in onr wagon, McKinley drove in front of me; we stopped at Mr. Wiser’s store and bought 20 cartridges 38-calibre cartridges, that fit McKinley Mims’ pistol. After getting the cartridges we drove down the road towards home, west of Mr.' Shephard’s store. There we stopped our teams and went back to Mr. Shephard’s store. On the way back to the store McKinley Mims gave me the pistol with which I shot Mr. Shephard.
“When we got to the store McKinley cut a hole in the front door and stuck his hand through the hole and raised a crossbar that fastened the door. We both entered the store. We were not in the store but a short time when Mr. Shephard came in upon us and lit a lamp that was on the counter. As soon as he lit the lamp I shot him. I think the lamp went out at the first shot. I shot two more shots. I was about 10 fleet from him when I shot the first shot. I think he came towards me after the first shot. I don’t know whether he ever touched me or not. He was down in sorter of a sitting position when I ran out. When I first shot Mr. Shephard was on front side of counter, but came behind the counter before he sank down. Both of us were behind the counter when I shot the last shot. I had to go out by him or over him.
“McKinley Mims went into the store just in front of me, but I do not remember seeing him any more after Mr. Shephard arrived until I got back to our wagon, but he told me that he went out of the store window. When we got to our wagons we left in a fast trot; my wagon was in front. When we got to the lane turning south McKinley failed to turn his team into the lane, and ran his team past the lane, and had to circle back. He told me this. I do not recollect seeing him circling back.
“The pistol I had belongs to Mrs. A. M. Mims. I threw the pistol on a bed when I got to the house, McKinley overtook me, and passed me a little before we got to the lot gate. We took out our teams and turned them loose in the field. I delivered the pistol to the officers the next morning. Ed. Mims had placed the pistol where I got it when I gave it to the officers.
“There was something said about what we were going to do that night about the time we left Cheeotah, but I have forgotten what it was. McKinley mentioned it to me, but I have forgotten just what was said.
“This conversation was about going into the store. We first talked about and agreed to going to Mr. Shephard’s store that evening before we left Cheeotah. McKinley Mims was the one that suggested the going into the store. I cannot sign my name.
“I have made the above and foregoing statement freely and voluntarily, without any promise whatever, and after being told by the officers present that it may be used against me.
his
“(Signed) William X Mays.
mark
“The signature of William Mays was written by me in his presence and at his request, this the 3d day of February, 1919.

“Witness to mark:

“ (Signed): J. W. MeCune.
“(Signed): E. I. O’Reilly.”

As a witness in his own behalf the defendant testified:

“I am 37 years old, I guess. I have lived the last 6 or 7 years at Mims, where the officers arrested me; McKinley bought four bits worth of cartridges that evening at Mr. Wiser’s store. I paid for them and carried them home. The officers took them out of my pockets. They took me out in the yard, and told me to get the pistol. One said, ‘If you don’t get it I will kill you.’ I got the pistol out of the dresser and gave it to Mr. MeCnne. They took me np in the woods. There was seven or eight of them around me, and they told me, ‘You done said it, and you better say it, or we will kill you right here.’ I says, ‘ I don’t know what you are talking about.’ When I asked them for what, they never did say. I said- ‘Has somebody got hurt or something.’ They said, ‘You know.’ I said, ‘If I was to tell it, what would you do?’ . And they said, ‘Not anything.’ Some of them had guns and punched me with them, and said- ‘Tell it, you know you did it; God damn you, tell it; you jumped in the wagon and ran off; tell it.’ They had me scared, and I don’t know what I did say now. I was not in Mr. Shephard’s store that night, and I did not kill Mr. Shephard. The officers took me to the store and -said, ‘Tell how it was done.’ I says, ‘I don’t know what you are talking about.’ They tried to make me tell, I told them, ‘I don’t know what you are talking about.’ They kept me there I guess about a couple of hours. Dots of other people came there and some of them says, ‘They are making a fire for you all; you better be praying.’ I said ‘ I haven’t done anything.’ They took us to Checotah and put us in jail, and a big crowd broke into the jail and began punching up through the cells, cussing and saying, ‘You done said you done it; you better stick to it; we will kill you anyway.’ I said, ‘I didn’t do it.’ The officers were trying to keep them back, and they taken me on out to Bill Sampson’s car, and we met another crowd on the road. They had logs laid across the road. They said, ‘We have got to have him; you can’t carry him no further;’ and the officers said, ‘Open up the road; we got them and we have to protect them. ’ I remember when I was in the sheriff’s office. Me and McKinley was handcuffed together and Mr. Burton said, ‘I was told you said you done it.’ I says, ‘I haven’t done anything.’ He says ‘What have they got you charged with?’ And I says, ‘With shooting a man,’ and he says, ‘Did you do it?’ and I says, ‘No, sir; I didn’t do it.’ The sheriff, Mr. McCune, and the jailer took me to the county attorney’s office. I was handcuffed. This fellow sitting right here made the statement. He said, ‘You done told it.’ I said, ‘No, sir; I didn’t tell them anything.’ He said, ‘You done told everybody, and everybody knows it, and it has got to be printed down.’ I said, ‘If I did, I don’t know anything about it.’ I never told anybody I was in that store to get some shoes. I don’t exactly know what all I told him; I only said what they told me to say. My father and mother live down about Seminole. I like Mm Mims, he treated me better than they do, and I stays with him.”

It was and is earnestly insisted that the alleged confessions; of the defendant were made under such circumstances as rendered them involuntary.

A confession is a voluntary statement made by a person charged with the commission of a crime, wherein he acknowledges himself to be guilty of the offense charged, and discloses the circumstances of the act, or the share and participation which he had in it. Wilson v. State, 17 Okla. Cr. 47, 183 Pac. 613.

Extrajudicial confessions are those which are made by the defendant out of court, whether to an official or nonofficial person. It is elementary law that such confessions,, in order to he admissible, must be entirely free and voluntary. The rule is well established that confessions induced by a promise of benefit or a threat of harm, made to the defendant hy a prosecuting attorney or an officer having him in custody, or by any one having authority over him, or made by a private person in the presence of one whose acquiescence may be presumed, will be deemed involuntary, and will be inadmissible as evidence. Miller v. State, 13 Okla. Cr. 176, 163 Pac. 131, L. R. A. 1917D, 383.

The object with which the law admits a confession in evidence is to obtain truth. The only ground on which a confession is rejected is that the circumstances under which it is obtained have a tendency to falsehood; and therefore the object with which it is admitted, instead of being secured, is likely to be frustrated. Bishop says:

“The doctrine, in its essence and divested of its technicalities, is that a defendant’s confession is admissible in evidence against him if made freely and without the hope of benefit to his cause; otherwise it is rejected, since its purpose may have been to secure such benefit rather than to disclose the truth.” Bish. New Cr. Proc. par. 1217.

As Mr. Wharton has well said:

“The real question is whether there has been any threat or promise of such a nature that the prisoner would be likely to tell an untruth from the fear of the threat, or hope of profit from the promise.” Wharton, Cr. Ev. § 658.

In this state it is a settled rule of practice that the admissibility of a confession where objection is interposed is primarily a question for the court, and should be determined preliminary to allowing the confession to go to the jury, and the burden is on the defendant to show that it was procured by such means or under such circumstances as to render it inadmissible, unless the evidence on the part of the state tends to show that fact. Berry v. State, 4 Okla. Cr. 202, 111 Pac. 676, 31 L. R. A. (N. S.) 849; Wilson v. State, 17 Okla. Cr. 47, 183 Pac. 613.

Prof. Wigmore says that this is the practical and natural rule, “for, if there is any reason to object to the confession, no one can know it better than the defendant. ’ ’ He says further:

“Looking at the general principles of admissibility and the comparative rarity of untrustworthy confessions, as well as the contingent nature of the dangers supposed to flow from improper inducements, the more practical rule would be to receive confessions without question, unless they are shown to have been improperly induced, especially since a contrary rule may involve the difficulty of proving a negative.” Wigmore on Ev. par. 860.

In Anderson v. State, 8 Okla. Cr. 90, 126 Pac. 840, Ann. Cas. 1914C, 314, it is held:

“The fact that a prisoner may be under arrest and in jail, and was not warned that any statement made by him might be used against him, will not in any manner affect the admissibility of any voluntary statement made by him which would otherwise be competent.”

And a confession will not be rejected merely because it was made in answer to a question which assumed his guilt, and that the officer told him he had better tell the truth. Prof. Wigmore says:

“On principle the advice by any person whatever that it would be better to tell the truth cannot possibly vitiate the confession, since by hypothesis the worst that it can evoke is the truth, and there is thus no risk of accepting a false confession. The confessor is not obliged to choose between silence and a false confession having powerful. advantages. The advantages are attached to the utterance of the truth; and, however tempting we may suppose them to be, there is nothing in the nature of the temptation to make the statement untrustworthy ; for if it has availed at all, it has. availed to bring out the truth. Sound opinion refuses to exclude a confession induced by such exhortation; and the weight of authority in this country, though not in England, repudiates such an exclusion.” 1 Wigmore on Ev., par. 832.

There is a direct conflict in the evidence as to whether or not the confessions of the defendant were voluntary, and the burden was upon the defendant. It follows that the court properly ruled that the alleged confessions were admissible in evidence against the defendant.

After a confession has been admitted, the defendant is entitled to have the evidence in regard to the manner in which it was obtained given anew to the jury, not that the jury may pass upon its admissibility, but for the purpose of enabling them to judge what weight and value should be given to it as evidence; and the jury may disregard it if they are not satisfied that it is voluntary.

In this connection two instructions asked by the defendant were given by the court, and in addition thereto, the court instructed the jury as follows:

“No. 12. The court will instruct you that if you believe from the evidence that free and voluntary, statements and confessions have been made by the defendant in reference to .said homicide, then you may take them into consideration with all the other facts and circumstances proven in the '•case, and they should be given' such weight as you may think ■them entitled to receive; but on the other hand, the court will further instruct you and say that, if there was any inducement held out, or threats of violence offered to the defendant 'to secure from him a confession, and that he, acting under «such inducements or threats or violence of any kind, did make ra confession, then the court will say to you that you should not consider such confession, if any, in arriving at your verdict. For confessions to be competent for your consideration they must be freely and voluntarily made by this defendant, then such confessions, if any, made by him should not be considered by you. ’ ’

It was the province of the jury to say whether or not the confessions were voluntary, and we cannot say upon the ■evidence presented that the jury were not justified in concluding that the confessions were voluntary.

The remaining assignment of error is based upon the alleged misconduct of the jury.

The undisputed facts as shown by the evidence offered in support of this ground of the motion for new trial are: As the jury was retiring to deliberate, one of the jurors picked Tip the pistol that was introduced in evidence, and examined it. The defendant’s counsel were present and made no objection. In regard to this it is enough to say that this did not ■constitute receiving evidence out of court. See Hopkins v. State, 9 Okla. Cr. 104, 130 Pac. 1101, Ann. Cas. 1915B, 736. That while the jury in charge of the bailiff were passing to uor from the courtroom one of the jurors in the presence and hearing of the other jurors spoke to a bystander and said,, “You tell my wife that I can’t get home, I am- hung up on the jury.” We deem it sufficient to say that there was no-prejudice to the substantial rights of the defendant resulting; from the irregularities complained of, and for this reason the? court did not err in refusing a new trial upon this ground.

Upon a most careful examination we find no error in the record requiring a reversal of the conviction.

Finally, it is urged that the punishment of death is not warranted by the evidence, and should be ascribed to passion and prejudice, and that the judgment should accordingly be-modified by this court. Where the appeal is from a judgment and sentence of death, it is the duty of this court to examine, with the greatest care, the whole record in favor of life, and review the case upon the merits to determine whether justice requires a modification of the judgment to imprisonment for life at hard labor..

In Noel v. State, 17 Okla. Cr. 308, 188 Pac. 688, it is said:

“The most solemn and momentous duty courts are called upon to perform in the administration of the criminal law is to inflict the death penalty, and it should be inflicted only in extreme eases, w;hen no other punishment will vindicate the law and protect society against the totally depraved. How careful, then, should we be in reviewing a capital conviction, before we lend our sanction to the taking away of that which, when taken away we cannot restore.”

It must be admitted that the case against the defendant depended upon circumstantial evidence, in itself insufficient to» sustain a conviction, unless the jury believed his confessions were voluntary.

The defense was largely in the nature of an alibi. It is undisputed that the defendant, a coal black negro, had lived for several years near Brush Hill, and was well known to deceased, yet the only statement made by deceased that was offered in evidence was that a small white man or a yellow negro shot him. It is also apparent that the part of the defendant’s confession, stating, “We stopped onr teams and went back to Mr. Shephard’s store,” is in direct conflict with the evidence for the state concerning the wagon tracks. It is undisputed that on the day that he and his eodefendant were arrested excitement ran high; mobs were formed at three or four places in the county, and attempts were made to take the defendants from the officers, and it may be that passion and prejudice, unconsciously or otherwise, tended to sway the jury against him in assessing the extreme penalty of the law. Taking all the circumstances of the case into consideration, it is our opinion that, although the evidence is sufficient to sustain a verdict of guilty of murder, yet it is insufficient to justify the extreme penalty, and for this reason the jury abused its discretion in assessing the punishment of death.

For the reasons stated, we are of opinion that justice requires a modification of the judgment and sentence of death to that of imprisonment for life at hard labor in the state penitentiary. The judgment of the district court of McIntosh county herein is so modified. As thus modified, the judgment is affirmed.

ARMSTRONG and MATSON, JJ., concur.


source: Caselaw Access Project

author: BESSEY, J.

license: Public Domain

text:
    L. E. ADEAHOLT v. STATE.
    No. A-3630.
    Opinion Filed June 3, 1921.
    (198 Pac. 351.)
    (Syllabus.)
    Appeal and Error — Oonviotion on Conflicting Evidence. Where it appears upon the examination of the whole record that the defendant had the advantage of a fair and orderly trial, the verdict will not be disturbed because the evidence was in some particulars conflicting.
    Appeal from Superior Court, Okmulgee County; R. E. Simpson, Judge.

      On March 4, 1919, L. E. Adeaholt was convicted of the crime of assault to commit robbery, his punishment was assessed at two years and six months in the state penitentiary, and he appeals.
    Affirmed.
    R. C. Roland, for plaintiff in error.
    S. P. Freeling, Att'y. Gen., and W. 0. Hall, Asst. Atty. Gen., for the State.
   BESSEY, J.

The evidence on the part of the state is to the effect that on January 7,1919, Lon James and W. B. Chadwick were in company with the defendant and Oscar Minton at two certain pool halls in Henryetta the early part of the night; that there was some talk of a poker game among them, and from the conversation the defendant and his codefendant, Minton, learned or believed that Chadwick had $25 on his person ; that Chadwick and James left the pool hall to go to their home in the outskirts of town, and just after they had crossed a bridge, at a place where the street was not lighted, the defendant and Ms codefendant, Minton, approached rapidly from the rear and by means of a searchlight and a revolver pointed at these state’s witnesses compelled them to hold up their hands, while Minton searched Chadwick, but found nothing.

The defense was an alibi. Defendant claimed that he retired early that night, and sought to show by two witnesses that he was in his room at a rooming house at the time the offense was alleged to have taken place. The defendant had previously been conducting a restaurant at Dustin, but at this time was out of employment and was in Henryetta on no particular business.

Several witnesses testified to the defendant’s good character. On the contrary, it appears that the defendant was a frequenter of pool halls and a poker player. The same appears as to the habits and character of the state’s witnesses.

The evidence was conflicting, but from a careful examination of the whole record, it appears that the defendant had the advantage of a fair, orderly trial. The testimony introduced was admissible, and the instructions of the court fairly covered the law of the case.

The only error seriously urged here is that the verdict was contrary to the evidence. The jury in the first instance, are the sole judges of the weight of the testimony and the credibility of the witnesses, and on a motion for a new trial the trial judge was called upon to weigh the testimony. Both the judge and the jury had the advantage of observing the witnesses and their demeanor. There was sufficient substantial evidence, if believed by the jury, to sustain the verdict rendered, and where no prejudice, passion, or other irregularities appears of record, this court would not be justified in disturbing such verdict because the testimony was conflicting.

The judgment of the trial court is therefore affirmed.

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


text:
    J. B. FRIEDMAN v. STATE.
    No. A-3667.
    Opinion Filed June 3, 1921.
    (198 Pac. 350.)
    (Syllabus.)
    1. IntoXioating Liquors — Unlawful Possession — 'Reputation of Place. Where one is charged with having in his possession intoxicating liquor with the intent of violating the prohibitory law, the general reputation of his place of business as being a place where intoxicating liquors were sold may be shown upon the laying of a proper predicate for the introduction of such testimony.
    2. Saipie — Sufficiency of Evidence1. The evidence examined and found sufficient to support the verdict.
    Appeal from Superior Court, Okmulgee, County, Henry-etta Division.

      J. B. Friedman was convicted of possessing intoxicating liquors with intent to violate the prohibitory liquor laws, and he appeals.
    Affirmed.
    James Hepburn, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. 0. Hall and B. L. Fulton, Asst. Attys. Gen., for the State.
   BESSEY, J.

J. B. Friedman was on October 13, 1919, convicted of having had in his possession, on April 22, 1919, certain intoxicating liquors, with the intention of violating the prohibitory laws of this state, and sentenced to pay a fine of $500 and to serve a term of six months in the county jail.

The proof on the part of the state shows that the plaintiff in error, herein referred to as the defendant, at and before the time alleged in the information, was keeping a grocery and feed store in the town of Henryetta, and that he had there for sale, to be drunk on the premises, several casks and containers of cider and other soft drinks; that he also had there large quantities of alcoholic fruit extracts and a gallon jar of Jamaica ginger, ginger ale, or Belfast ginger ale, which by actual analysis, contained 42 per cent, of alcohol by volume. It was shown that many persons, including Indians and negroes who were in the habit of drinking liquor to excess, resorted to this place and were often seen there in an intoxicated condition.

It was the theory of the state that this Jamaica ginger, or whatever it was, was used to “-spike” the cider and other' beverages there sold, for the purpose of giving these drinks the alcoholic contents desired, and the evidence, to some degree at least, bears out this theory.

The defendant testified that he had purchased this gallon of ginger ale for another person, and that at the time it was seized by the officers it was there awaiting delivery to this third person, that he did not know that it contained an unlawful quantity of alcohol, and that he had not used it and had no intention of using it in connection with his soft drink business or otherwise.

Defendant complains that the state, over his objections, was permitted to show the general reputation of the place as a' place where intoxicating liquors were sold, without reciting testimony on this point in detail. We think the record shows a sufficient predicate for such testimony. Felas v. State, 16 Okla. Cr. 631, 185 Pac. 839; Ward v. State, 15 Okla. Cr. 150, 175 Pac. 557; Dunbar v. State, 15 Okla. Cr. 513, 178 Pac. 699.

None of the witnesses testified that they had seen the defendant "spike” the soft drinks there so popular with Indians and negroes, who in some way or other became intoxicated there, but the circumstances of having a room provided for tippling, the character of the persons who frequented the place, and the large quantities of alcoholic fruit extract kept there justified the jury in finding that this particular ginger ale or Jamaica ginger was kept for an unlawful purpose.

The judgment of the trial court is affirmed.

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


author: MATSON, J.

text:
    LUKE TINNEY v. STATE.

      No. A-3273.
    Opinion Filed June 4, 1921.

    (201 Pac. 819.)
    (Syllabus.)
    1. Jury — Disqualification—Waiver. A known ground of disqualification to a juror before or during the progress of the trial is waived by withholding it, or refusing or declining to raise the objection until after verdict.
    2. Homicide — Murder—Right to Complain of Instructions When Convicted of Manslaughter. Instructions examined, and held free from prejudicial error.
    Appeal from District Court, Tillman County; Frank Mathews, Judge.

      Luke Tinney was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.
    J. A. Carr and Mounts & Davis, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and Sam Hooker, Asst. Atty. Gen., for the State.
   MATSON, J.

Defendant, Luke Tinney, was convicted in the district court of Tillman county of the crime of manslaughter in the first degree for killing one Thomas Jackson in said county on the 27th day of February, 1917, and was sentenced to serve a term of seven years’ imprisonment in the reformatory at Granite, Okla.

It is first contended that the trial court erred in not excluding from service upon the jury one M. F. Cason, for the reason that the said juror entertained conscientious scruples against the infliction of the death penalty, which fact was made known to the court after the juror had been impaneled and sworn to try the cause. There was no attempt to take advantage of this alleged error in the procedure of the trial until after the verdict was rendered. This was too late. In the ease of Queenan v. Territory, 11 Okla. 261, 71 Pac. 218, 61 L. E. A. 24, the Supreme Court of the territory of Oklahoma held:

“A known ground of disqualification to a juror, before or during the progress of the trial, is waived by withholding it, or refusing or declining to raise the objection until after verdict.”

See, also, 24 Cyc. p. 316, subd. E, §§ 1 and 2.

Instruction No. 6, given by the trial court and excepted to by the defendant, is alleged to be erroneous. An examination of this instruction discloses that it relates entirely to the crime of murder. While the instruction is not open to the objection urged against it, it has been repeatedly held by this court:

“An assignment of error based upon an instruction of the court bearing on the question of the guilt or innocence of a person on trial of murder is of no avail when the jury return a verdict finding such person guilty of manslaughter and not of murder.” Duncan v. State, 11 Okla. Cr. 217, 144 Pac. 629; Byars v. State, 7 Okla. Cr. 650, 126 Pac. 252; Morgan v. Territory, 16 Okla. 530, 85 Pac. 718.

Instruction No. 11 was also' excepted to and is as follows:

“You are further instructed that, while one unlawfully attacked has the right to use such force as under the circumstances reasonably appears to him to be necessary to repel the attack and avoid injury to himself, he will not be justified in using greater force than reasonably appears necessary and sufficient so to do; and if he does use greater force than so reasonably appears necessary and sufficient to avoid the danger apparently intended to be inflicted upon him, and thereby kills the person who made the attack, or if, after the attempt to injure him shall have failed and the danger no longer imminent he kills the person making the attempt, he will be guilty of manslaughter in the first degree.”

As no brief in this case in behalf of plaintiff in error has been filed, the cause was submitted on the brief filed in the case of Cardwell v. State (No. A-3272) 19 Okla. Cr. — , 201 Pac. 817, this day decided. In the Cardwell Case the facts were dissimilar to this, although self-defense was pleaded in each case. Instruction No. 11 is applicable to the facts detailed by the witnesses for the state construed in connection with the defense interposed, and the jury could reasonably conclude from the entire evidence either (1) that the defendant used greater force than reasonably appeared to him necessary as sufficient to avoid the danger from the deceased, in which case the killing would not be justifiable; or (2) that the injury inflicted by him up on the deceased which caused death occurred after the deceased’s attempt to injure defendant had failed and the defendant was no longer in imminent danger from the deceased, in which event the killing would be manslaughter in the first degree under the third subdivision of section 2320, Revised Laws 1910. W e cannot see wherein the defendant was in any wise prejudiced by the giving of this instruction.

Instruction No. 13 is also complained of on the ground that it is confusing and misleading. No authorities are cited to support the contention urged. While the instruction covers certain subject-matter contained in other instructions given, we fail to see wherein it could have misled or confused the jury when considered together with all the instructions given in the cause. We regard the court’s instructions as a whole to be an able exposition of the law applicable to the facts of the cause.

While the facts in this ease are conflicting, there is ample evidence in the record to justify the jury’s conclusion that the defendant was guilty of manslaughter in the first degree.

No prejudicial error being urged, and none appearing to the court, it is the opinion of this court that the defendant had a fair and impartial trial, and that the judgment of conviction should be affirmed; and it is so ordered.

DOYLE, P. J., and BESSEY, J., concur.


text:
    W. F. MYERS v. STATE.
    No. A-3624.
    Opinion Filed June 6, 1921.
    (197 Pac. 884.)
    (Syllabus.)
    1'. Rape — Essentials of Offense by Husband — Instruction. Where ■ a husband is charged with rape committed on his wife, an instruction to the jury defining rape, given in the language of the statute, section 2414, Rev. Laws 1910, except that it omits the phrase “not thei wife of the perpetrator,” is erroneous in that it omits one of the elements of the offense named in the statute.
    2. Same — Necessity of Collusion Between Husband and Perpetrator. Part of subdivision 8 of the statute defining rape provides: “That in all cases of collusion between the accused and the husband of the female to accomplish such act, both the husband and the accused shall be deemed guilty of rape.” Held that where it appears that there is no collusion and no common felonious purpose between the husband and the actual perpetrator to commit the act, the husband alone cannot be guilty of raping his wife.
    3. Same1 — Requisites of “Collusion.” Where the perpetrator of the offense believed that he was having sexual intercourse with a common prostitute, th'ie; fact that the female was coerced by her husband to submit to such act will not of itself, without a common felonious intent, constitute collusion between the accused husband and the actual perpetrator.
    4. Same — Conviction of Husband — Insufficiency of Evidence. The evidence as a whole, as recited in the opinion, was insufficient to support the verdict.
    Appeal from District Court, Bryan. County; J. M. Crook, Judge.
    W. F. Myers was convicted of rape and sentenced to serve a term of fifteen years in the state penitentiary, and he appeals.
    Reversed.
    Robert Crockett and W. B. Stone, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   BESSEY, J.

On the 15th day of March, 1919, in the district court of Bryan county W. F. Myers was convicted of rape upon the person of Goldie Myers, committed on May 15, 1918, and his punishment was fixed at imprisonment in the state penitentiary for a term of fifteen years. From this judgment and sentence he appeals.

The evidence disclosed that W. F. Myers, plaintiff in error, herein called the defendant, was a moral degenerate who by force or persuasion, induced his wife, Goldie Myers, to lead the life of a prostitute. The information charged that the defendant, by means of a certain dangerous and deadly weapon, a knife which he held in his hand, forcibly compelled Goldie Myers, his wife, against her will to submit to sexual intercourse with one Arn Adcock, and that she was prevented from offering resistance to the act of sexual intercourse by reason of the defendant’s threats to kill her and threats of immediate great bodily harm, which the defendant then had the apparent power to execute.

The testimony of Goldie Myers discloses that she was married to the defendant in December, 1917, when she was just past -seventeen years of age. That she then resided in the country, four miles west of Durant. That the defendant was a man of uncertain habits and occupation. That in May, 1918, there was a show at the town of Mead, in Bryan county, giving nightly performances, and that defendant and his wife went to Mead and took lodgings in a hotel there, where they remained all night. The following night, at their room at the hotel, the defendant told witness that he was going to arrange with men to have sexual intercourse with her, and told her to charge and collect for it. She objected, and that he told her that if she didn’t have sexual intercourse with men he would cut her “damned head off,” and that while this threat was being made he held an open knife at her throat- That later, after dark, they went walking up the railroad track, and after they had gone some distance defendant told her there would be some men come, and instructed witness to have intercourse with them. That she protested and he told her she had to do it, while he held the open knife in his hand. Presently three men or boys came, and defendant told witness to go ahead and get the money. He told witness to stay where she was and he retired a short distance away, leaving this man, Arn Adcock, with whom she had sexual intercourse, collecting the money and turning it over to defendant. Then the other two boys came in turn to where witness was and had sexual intereouse with her.

After that they walked back to the show, where the defendant made arrangements with three more men, and they all got into a ear and went into the country, and witness there had sexual intercourse with two of them and attempted intercourse with the third. That when alone with the defendant she protested and he repeated his threats to do her great bodily harm if she failed to carry out his instructions. That no protests were made in the presence of these men, and from all that appears from her testimony these men did not know that she was acting against her will. That the defendant was not in the immediate presence of the parties when these sexual acts were performed, but remained in speaking distance, some fifty or sixty feet away.

On cross-examination the witness, Goldie Myers, said she first had sexual intercourse with other men at Leigh, about three months after her marriage to defendant. Later she had intercourse with men at her room in a hotel at Mead, at Coalgate, at Madill, Poteau, Bonham, Texas, and Dennison, Texas. In each case she claimed that the intercourse was arranged for by her husband, the defendant, and was done under fear and duress. She did not disclose these threats and duress to any of the men with whom she had intercourse, and did not communicate them to her parents or to any friend or any other person, because she feared that if she did the defendant would put his threats into execution. That she visited Durant on two or more occasions in the absence of her husband, after the last visit at Mead, but made no effort to communicate to her father the threats or conduct of her husband.

Arn Adcock testified for the state, to the effect that before the time of this offense he was not acquainted with Goldie Myers or her husband; that he saw both of them at Mead while the show was going on there, but had not spoken to either one. After receiving information from others as to where Goldie and the defendant were, along the railroad track, witness and Joe Jackman went to where they were. The defendant was sitting on a dump, about fifty or sixty feet from where Goldie sat; witness came to him first and defendant said she was right up the track. If defendant had anything in his hand there witness didn’t see it. Witness had a lighted cigar in his mouth, and defendant told him to get rid of it — that the law might see it and come down and get them. Witness went to where the woman was and she asked him what he wanted and on being told, they proceeded to have intercourse without further conversation. She asked for the money and was paid, and witness was warned to hurry away or the defendant would “raise the devil.” “The woman did not appear to be excited. She acted like she didn’t care whether she done it or not.” Witness then went back to where defendant was standing with Joe Jackman and waited until the latter went to the woman and had intercourse. In the meantime there was no further conversation with the defendant. When Jackman returned the two went back to town, leaving the defendant and the woman in the position they were when first seen there.

The testimony of Adcock is typical of the testimony of four other state witnesses, who testified that they had intercourse with this woman that night. None of them knew that she was laboring under fear, duress or threats, all supposed that she was a common prostitute willingly selling her person for gain.

We feel, as doubtless the jury felt, that this degenerate husband deserved severe punishment, but that alone is not the question before us. It is for us to determine, as a matter of law, whether the facts proven constitute rape, or some other crime. Section 2414, Rev. Laws 1910, provides:

“Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances:
“First. Where the female is under the age of sixteen years.
"Second. Where the female is over the age of sixteen years and under the age of eighteen, and of previous chaste and virtuous character.
"Third. Where she is incapable, through lunacy or any other unsoundness of mind, whether temporary or permanent,, of giving legal consent.
"Fourth. Where she resists, but her resistance is overcome by force and violence.
"Fifth. Where she is prevented from resistance by threats: of immediate and great bodily harm, accompanied by apparent power of execution.
"Sixth. Where she is prevented from resisting by an intoxicating narcotic or anesthetic agent, administered by or with the privity of the accused.
"Seventh. Where she is at the time unconscious of the-nature of the act and this is known to the accused.
"Eighth. Where she submits under the belief that the person committing the act is her husband, and this belief is: induced by artifice, pretense or concealment practised by the accused, or by the accused in collusion with her husband with intent to induce such belief. And in all eases of collusion between the accused and the husband of the female, to accomplish such act, both the husband and the accused shall be deemed guilty of rape. ’ ’

Unlike the statutes of many other states that adhere to the common law definition of rape, our statute provides that in eight different conditions or situations sexual intercourse with a female shall constitute rape, and all other situations must be excluded. It would seem, then, under our statute, under circumstances shown by the testimony in this case, that the crime of rape can be committed only on some female "not the wife of the perpetrator,” except as provided in subdivision eight, above quoted, the husband may be guilty of the offense perpetrated on the wife in any of the ways pointed out in the statute by collusion with the party actually committing the act, or by aiding or abetting the principal perpetrator to commit the act, and not otherwise.

The word “perpetrator,” as defined in Webster’s International Dictionary, is ‘ ‘ one who commits an offense or crime; one who is guilty of an act, usually in a bad sense.” In this ■ease it is conceded that there was no collusion or conspiracy between the husband and any of the young men who had intercourse with the wife to have such intercourse forcibly or against her will. These men were not guilty of the charge of rape, and that being so, in the absence of collusion the husband must have been the sole “perpetrator,” without collusion -of any other person; and our statutory definition of rape takes out of its operation the offense committed by the husband •alone against the wife, although done through the instrumentality of an innocent third person. By the exception to the above rule, as embodied in subdivision eight, where the act is •done by the husband in collusion with some other person who commits rape upon his wife, both the husband and his eoeon-■spirators are guilty, but the husband alone, in this case the sole “perpetrator,” cannot commit rape on his own wife.

The reports abound with decisions holding that where the husband conspires with a third person to commit a rape on his wife both are guilty of the offense, but after diligent search we have been able to find but two eases where the third person, the one who actually committed the act of sexual intercourse, was not a eoconspirator with the husband to ravish the woman. In the case of State v. Dowell (N. C.) 8 L. R. A. 297, the husband, a white man, at the point of a gun compelled an unwilling negro to attempt to have sexual intercourse with his wife. We assume that the want of precedents covering situa-rarely drags them to such depths as to cause them to attempt •an offense so difficult, repulsive and abhorrent. In the Dow-ell Case, supra, there was no statute defining rape as in this state. The court held in that case that there was a sufficient criminal intent on the part of the negro to sustain a conviction of the husband of an assault to commit rape upon his wife, where by threats of death he coerced this third person to attempt to ravish her; that nothwithstanding such threats it was the duty of the third person to refuse and resist. But there was a dissenting opinion, embodying, as we think, the better reasoning, in which it was said :

"In the nature of the marriage relation the husband himself cannot ravish his wife; nor, for like reasons, can he in a legal sense, assault her with the intent to commit rape upon her. He can only commit the offense of rape, or that of assault with intent to commit rape, against his wife, by procuring, aiding, abetting or encouraging another to commit these offenses. His offense, in such case, depends necessarily upon the perpetration of the principal offense by another party. In this case the negro named did not commit a rape upon the wife of the defendant, nor did he assault her with such intent. There was a total absence of such intent upon his part. Then, in the nature of the matter, how can the defendant be charged with the particular offense charged against him in the indictment? As the negro committe'd no assault with intent to rape-, so the defendant did not. It is said Shall the defendant go quit? Has he committed no offense? Most unquestionably he shall not go quit. He has committed an offense, a very serious one. He is chargeable with assault upon his wife with a deadly weapon, and with intent to kill, and a like assault upon the negro.”

The reasoning of this dissenting opinion is in some measure amplified in the case of State v. Haines (La.) 44 L. R. A. 837:

"While the husband is indicted as a principal, he could be guilty of the crime of rape, in so far as his wife is concerned, only on the supposition and proof that he procured the offense to be committed by another, or aided or abetted the other in so doing; for, if he were the one who, forcibly and against her consent, performed the sexual act upon her, there was and could be no rape. ’ ’
“One cannot be guilty of aiding and abetting the perpetrator of a crime without its first being shown that the crime has actually been committed by another. ’ ’

A case having some point of analogy to the case here at issue is the cas oef State v. Jackson, 65 N. J. Law, 105, where it appeared that a Mrs. Jackson had acted as a procuress for one Kinsinger in persuading a girl to go to a room provided by this woman, where Kinsinger expected to meet and debauch the girl. That after meeting Kinsinger in the room appointed the girl resisted and refused to yield to his wishes. Kinsinger and the Jackson woman were jointly indicted for a felonious assault on the girl. Held, that the accusation would not hold against the Jackson woman. She was not present, aiding and abetting the assault, and did not know that Kinsinger would attempt to gratify his passion against the will of the girl, or make an assault upon her person. ' This Jackson woman simply arranged for a meeting place for these two by mutual consent, and while she might have been indicted as a panderer or for keeping a place for assignation, she was not, under the circumstances, guilty of an assault to rape. Like Arn Adcock in this case, she was not entirely guiltless, but certainly neither was guilty of the offense of rape. Applying the rule announced and following the Dowell Case, supra, the unlawful purpose of this Jackson woman in the one ease, and of Arn-dale in the instant case, to commit a misdemeanor would be sufficient to predicate a felony charge against the chief perpetrator of the respective offenses. With this conclusion we cannot agree; we think that if the woman and Arn Adcock were innocent of the crime of rape it was immaterial that they were guilty of misdemeanors, and being guilty of a misdemean- or would not make either of them responsible for the overt act of rape committed by another, without their knowledge and consent, and that such participation, without felonious intent, would not make the actual perpetrator a coconspirator, because there was no common purpose to commit a felony.

The statutes of neither North Carolina nor Louisiana classify and define rape, as in this state. The statutes of New Jersey, without mentioning the husband, make every person who aids, abets, counsels or procures the commission of the offense equally guilty with the principal offender. In this, state every condition not included in the statutory classification is by implication excluded, and we hold that the general declaration in our statute that rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, excludes every such act not within the purview of the-eight subdivisions of that statute.

It is a general rule of statutory construction that the mention of one thing implies the exclusion of another thing; that where an offense is defined and its application to enumerated! conditions prescribed, it is implied that it shall not apply to other conditions not enumerated. Sutherland on Statutory Construction, secs. 326 and 327; 25 R. C. L. 981, sec. 229; 36-Cyc. 1112.

Penal statutes cannot be enlarged by implication or extended by inference. This court is without power to amend or-repeal a plain general statutory provision, although the court may disapprove of some of its provisions or omissions. White v. State, 4 Okla. Cr. 163, 111 Pac. 1018; City of Shawnee v. Landon, 3 Okla. Cr. 440, 106 Pac. 652.

Moreover, we think the evidence in this case, considered! as a whole, was insufficient to support the verdict. During the time the defendant was coercing and abusing his wife and on this particular occasion she could have informed others or-made some outcry. The evidence shows that she must have known when she went to Mead that the purpose of going there-was to make money by prostituting her body to strange men.. The jury probably concluded that Mrs. Myers had become a. prostitute through the influence or coercion of her husband and that his despicable, depraved conduct merited severe punIshment, and that it was a matter of no consequence whether his crimes against her and society were rape or some 'other ¡penal offense. But this court cannot so view it. We are here to construe and apply the law as it is written and to do so in such a way as will operate to guide courts and executive officers in definitely applying the law to similar conditions that anay arise in the future.

In paragraph 1 of the court’s instructions the court instructed the jury that:

"Rape as applicable to this case, is the act of sexual inter¡course accomplished with a female under either of the following circumstances:
"First. Where she is prevented from resisting by threats 'of immediate and great bodily harm, accompanied by apparent power of execution upon the part of him who makes the threats. ’ ’

This part of the court’s instructions is incomplete and erroneous, in that it omits one of the elements named in the statute, viz., "Not the wife of the perpetrator,” except in ■cases coming within the purview of subdivision eight, where it is provided that the husband may by collusion with another Ibe guilty of rape in any instance where there was a common felonious intent to commit the act.

For the reason stated in this opinion, the judgment of the frial court is reversed.

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


author: DOYLE, P. J.

text:
    T. A. BURBA v. STATE.
    No. A-3878.
    Opinion Filed June 11, 1921.
    (198 Pac. 516.)
    (Syllabus.)
    .-.Appeal and Error — Time for Appeal — Misdemeanor—Procedure. ‘.In misdemeanor cases the appeal must be taken within 60 days after the judgment is rendered, provided, however, that the trial court or judge may for good cause shown extend the time in which an appeal may be taken, not exceeding 60 days. In such cases the appeal is taken by filing in this court a petition in error with case-made attached, or transcript of the record, together with proof of service of notices of appeal as required by statute, and when this is not done within the time prescribed by Procedure Criminal (section 5991, Rev. Laws 1910), this court does not acquire jurisdiction of the appeal, and such an appeal will be dismissed.
    Appeal from County Court, Tillman County; W. H. Hus-sey, Judge.
    T. A. Burba was convicted of abandoning Ms family, and he appeals.
    Appeal dismissed.
    R. C. Searey, for plaintiff in error.
    S. P. Freeling, Atty. Gen., W. C. Hall, Asst. Atty. Gen., and F. H. Hurst, Co. Atty., for the State.
   DOYLE, P. J.

On March 22, 1919, an information was. filed in the county court of Tillman county charging appellant, T.A. Burba, with the crime of abandoning his wife and minor children. Upon his trial he was convicted and his punishment fixed at a fine of $500. From the judgment rendered in pursuance of the verdict on the 11th day of May, 1920, an. appeal was attempted to be taken by filing in this court on November 12, 1920, a petition in error with case-made.

Counsel for the state has filed motion to dismiss the appeal herein for the reasons following:

“ (1). That no notice as required by law was served upon the clerk of the trial court, by the plaintiff in error, of his. intention to appeal to the Criminal Court of Appeals.
“ (2). That no notice as required by law was served upon the county attorney of the county where said cause was tried, by the plaintiff in error, of his intention to appeal to the Criminal Court of Appeals.
“(3). That the plaintiff in error herein failed to serve' his case-made on the county attorney and associate counsel and file same in this court within the time required by law, to wit: The said plaintiff in error, T. A. Burba, was convicted of a misdemeaner in the county court of Tillman county on the 11th day of May, 1920, and served his case-made on the county attorney of Tillman county on the 10th day of September, 1920, more than 120 days from the rendition of the judgment in the case, and filed said case-made at some later date.”

Our Code of Criminal Procedure provides:

“In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered: Provided, however, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days.” Section 5991, Rev. Laws.

This court has uniformly held that, in order to confer jurisdiction on this court to review a judgment appealed from, the appeal must be taken within the time prescribed by the statute. When an appeal is not perfected by filing in this court a petition in error with case-made attached, or an authenticated transcript of the record, together with proof of service of notices of appeal, as required by section 5992, Rev. Laws, or in lieu of such notices the record to show the issuance and service of summons in error, or the waiver of the issuance of the same by the Attorney General within the time prescribed by the statute, this court does not acquire jurisdiction of the appeal, and such appeal will be dismissed.

For the reason stated, the motion to dismiss the appeal is sustained, and the cause remanded to the county court of Tillman county, with direction to enforce the judgment and sentence.

Mandate forthwith.

MATSON and BESSEY, JJ., concur.


text:
    WILLIAM THOMPSON v. STATE.
    No. A-3430.
    Opinion Filed June 11, 1921.
    (198 Pac. 517.)
    (Syllabus.)
    Larceny — Evidence Insufficient. In a prosecution for the larceny of a ho'g, evidence held insufficient to sustain a conviction.
    Appeal from District Court, Cherokee County; John H. .Pitchford, Judge.
    William Thompson was convicted of larceny of a hog, and lie appeals.
    Reversed.
    j. J. Bruce, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, William Thompson, was ■convicted in the district court of Cherokee county on an information charging the theft of a black and white spotted ;sow, the property of D. S. Whitmore, and in accordance with the verdict of the jury was sentenced to be imprisoned in the penitentiary for the term of two years. To reverse the judgment he appeals.

In order to present the assignments we will briefly state the testimony in the case.

D. S. Whitmore testified:

“In October, 1917, the defendant lived a mile south and •a mile and a half west of me. I was the owner of a certain black and white spotted sow, marked with a smooth crop and two splits in each ear. She was one of 13 head of feeders ■that I turned on the range two miles west of where I lived in April, about roasting ear time I missed three hogs. I found this sow in Thompson’s pen. This sow would have been a .year old last August.”

On cross-examination the following questions were askea .and answers given:

“Do you know whether this hog has any white spots on it? I cannot swear positively.
“Do yon know whether it has any white feet or not? I cannot swear positively, it may have.
“Then if it had not been for this mark you could not tell whether this was your hog or not? Well, I would not be. able to swear positively it was mine without the mark.
“How much would this hog weigh the last time you saw it before it disappeared? Oh, 80 or 90 pounds, maybe a little bit more.
“How much did it weigh in October when you say you found it in this man’s pen? Just guessing, I would judge it would weigh 125 pounds.
“Did you have any talk with Mrs. Thompson about the hog ? She came down to the pen and said she had washed for it at John Starnes when it was a little bit of a pig, but she told William to give it up.”

James Gable testified:

“I saw a sow in the pen at William Thompson’s place, and it looked like one I had seen before up on the mountain above my place. It had Dave Whitmore’s mark, two splits and a crop off of each ear.”

William Scott testified:

“I saw a sow in the pen at the defendant’s place last fall; it was Dave Whitmore’s hog. The last time I saw that hog before I saw it in that pen was along in July some time.”

On cross-examination the following questions were asked and answered:

“Who were you renting from last year? Dave Whit-more. He is my brother-in-law. He told me there was a hog down at Thompson’s. He said he had found his hog.
“The only way you identified this hog as Whitmore’s is from the mark and the general appearance, you say? Yes, sir; from the mark and general appearance I think it is his hog.
“It was in a pen between the house and the road at Thompson’s place? Yes, sir.”

The state rested; the defendant demurred to the evidence, and moved to dismiss for the reason that the evidence is insufficient to establish the charge in the information. Overruled. Exception allowed.

For the defense Victoria Thompson testified:

“I had this hog in a pen under a plum tree in the yard. I got it from John Starnes; I wash for him, and I paid for this hog that way. I had this hog going on 2 years when Mr. Whitmore came over and claimed it. It would get out and follow the children to school, and they would bring it back. It got out and went to Mr. Baughman’s place. When Mr. Whitmore looked at the hog, he says, ‘Don’t you want to sell it?’ and Mr. Thompson said, ‘No; it belongs to the old lady.’ ”

Johnson Thompson testified:

“I am not related to the defendant. The first time I saw that hog was when the defendant went down to John Starnes and brought it home. It was a small pig. I and George Cook were pulling corn at John Starnes when he came and got it. Thompson’s wife paid for it by washing. That was two years ago. I have seen it after that often when I would happen up at his place. That is the only hog I saw there for 2 years. The mark on the hog is William Thompson’s. He has used this mark 30 or 35 years.”

John Ford testified:

“I am acquainted with the stock mark of William Thompson. Pie has used that mark about 35 years to the best of my knowledge. Mr. Chestnut and Mr. Whitmore use the same mark.”

Walter Bean testified:

“I have known the defendant about 25 years. When I first saw that hog to pay any attention to it was last Thanks-
giving a year ago. The mark is old man Thompson’s. He has used it 20 years that I know of. I saw the same mark on some of Mr. Whitmore’s hogs.”

H. R. Vanslyk testified:

“I farmed some land on the defendant’s place. I know the hog he had last winter a year ago. I first saw it at my place. Mrs. Thompson was there, and it followed her home. Last winter it was at my place fairly often, and I saw it in the pen when I was picking cotton down there.”

P. W. Baughman testified:

“I live about a mile from the defendant; roasting ear time I took up a hog. My son told me Mrs. Thompson had one that was gone, so I went to Mr. Thompson, and he fold me he had one gone. He described it pretty well, and said if it was his the bush of the tail was cut off. We went on down, and when we got close to the hog I saw the bush of the tail was gone. I had not noticed that before. He said it was his, and he drove it home with the rope that I had tied it to a tree with.”

As a witness in his own behalf, William Thompson testified:

“My age is 54. I have been living right on Four Mile Branch all my days. The hog that Mr. Whitmore claims belongs to my wife. She got it from John Starnes. When it was a pig its tail froze off. I have never been arrested before being arrested on this charge.”

J. J. Bruce testified, as an attorney for the defendant:

“I filed a praecipe for his witnesses, among others, John Starnes. I called Mr. Starnes up over the phone last night, and he told me he did not get it; he said he was sick in bed and could not come. I had occasion to visit Mr. Thompson’s home several times last year. I was there every three or four weeks. I noticed a black-spotted sow in a hogpen in the yard. I happened to be at Mr. Thompson’s house the day that Mr. Whitmore came there. He looked in the pen and rode off. Near sundown he returned with an officer; said he wanted to arrest Mr. Thompson and replevin the hog. I asked him how did he know that it was his hog. He said by the marks. I asked him if he had no other way to identify the_hog aside from the marks, and he said, ‘No.’ ”

On cross-examination the following questions were asked and answers given:

“Yon have seen this man Starnes since this controversy arose, haven’t you? Yes, sir.
“I will ask you if it is not a fact that Starnes advised you that he had sold them a pig 3 years ago? I asked him did he ever sell this man a hog, and he told me he sold his wife a pig two years ago.”

The first assignment is that the court erred in denying a continuance.

The record shows that upon the calling of the case for trial the defendant’s counsel announced that he was not ready for trial on account of the absence of certain witnesses for which he had caused subpoenas to be issued and placed in the hands of the proper officer, and that no return had been made.

“The Court: It looks to me like the defendant has used all the diligence the law requires.
“Mr. Bruce: It may be that the witnesses will arrive on this motor; if they do, we are ready for trial. (Mr. Powell, cocounsel, arrives.)
“The Court: Mr. Powell, do you know whether or not your witnesses came on the motor?
“Mr. Powell: They did, your honor; at least some of them.
“The Court: Are you ready for trial?
“Mr. Powell: My cocounsel says he is ready to go to trial with those witnesses.”

Thereupon the trial proceeded. Thus it appears that the first assignment is without merit.

Another assignment is that the verdict of the jury was contrary to the law and the evidence. Ordinarily, whether there is evidence to warrant a conviction is a question for the jury. However, under our Code of Criminal Procedure, it is the duty of the court, where it deems the evidence insufficient to warrant a conviction, to advise the jury to acquit. Section 5896, Rev. Laws. The court may undoubtedly do this of its own motion, and the defendant may present to the court his right to acquittal, as a matter of law, under this section. But the defendant is not confined to this formula, or to any form of words, in presenting to the court his right to be acquitted. All that is necessary is that in some intelligible form there shall be presented to the court, for its ruling and decision, the question that there is no evidence for the jury, or not sufficient evidence upon which to base a conviction.

In view of the very weak and unsatisfactory character of the testimony relied upon to establish the corpus delicti, and, considering the undisputed facts, and that the witnesses on the part of the defendant were in no way attempted to be impeached, we think the court below should have advised the jury to acquit the defendant. In our opinion the evidence fails so far to support the verdict that the necessary inference is that the verdict was the result of passion or prejudice. Because the evidence does not sustain the conviction, the judgment is reversed.

MATSON and BESSBY, JJ., concur.


author: PER CURIAM.

text:
    F. S. MILLER et al. v. STATE.
    No. A-3644.
    Opinion Filed June 11, 1921.
    (197 Pac. 121.)
    (Syllabus.)
    . Appeal and Error — Time for Appeal — Misdemeanors. An appeal to this court lies from the judgment of conviction, and in a misdemeanor case the greatest length of time allowed for lodging the appeal in this court is 120 days from the date of the rendition of judgment.
    2. Same — Right of Appeal — Legislative Control. While the appeal may be taken by defendant as a matter of right from judgment of conviction, the manner of taking and perfecting such appeal is a proper matter of legislative control, and the statute prescribing the manner in which an appeal can be taken is mandatory.
    3. Same — Necessity for Appeal in Statutory Time. A failure to file the appeal in the appellate court within the time allowed by law is fatal to the appeal, and the appellate court has no discretion to hear and determine appeals on the merits when they are not taken within time prsecribed by statute.
    Appeal from County Court, Texas County; George M. Frittz, Judge.
    F. S. Miller and Fred Miller were convicted of a violation of the prohibitory liquor laws, and appeal.
    Appeal dismissed.
    James E. Breslin, for plaintiff in error.
    S. P. Freeling, Atty, Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an attempted appeal from the county court of Texas county, wherein on the 10th day of June, 1919, a judgment of conviction was rendered against each of the defendants of maintaining a liquor nuisance, and punishment of each fixed at a fine of $200 and imprisonment in the county jail for a period of sixty days. Defendants have attempted to take an appeal from this judgment.

The Attorney General has filed a motion to dismiss the appeal on the ground that the same was not filed in this court within 120 days from the date the judgment was rendered.

An examination of the record discloses that judgment was rendered on the 10th day of June, 1919, and that the case made and petition in error were not filed in this court until the 15th day of October, 1915, more than 120 days after the rendition of said judgment. This being an attempted appeal from a judgment of conviction for a misdemeanor, the greatest length of time within which the appeal must be lodged in this court is 120 days from the date of the rendition of judgment. Section 5991, Revised Laws 1910. The appeal to this court lies from the judgment. Section 5988, Revised Laws 1910.

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

The statute prescribing the manner in which an appeal can be taken is mandatory, and a failure to file the appeal in the appellate court within the time allowed by law is fatal to the appeal. Green v. State, 7 Okla. Cr. 5, 120 Pac. 1037; Gorman v. State, 9 Okla. Cr. 351, 131 Pac. 939.

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

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

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


text:
    P. McCAULEY v. STATE.
    No. A-3594.
    Opinion Filed June 11, 1921.
    (198 Pac. 519.)
    Appeal from County Court, Stephens County; G. T. Burrows, Judge.
    P. McCauley was convicted of unlawful possession of intoxicating liquor, and he appeals.
    Reversed.
    J. B. Wilkinson, for plaintiff in error.
    S. P. Freeling, Atty Gen., and W. C. Hall and E. L. Fulton, Asst. Attys. Gen., for the State.
   PER CURIAM.

Plaintiff in error, P. McCauley, was convicted on an information charging that he did willfully and unlawfully have in his possession two quarts and one pint of whisky, for the purpose and with the intent of bartering, selling, giving away, and otherwise furnishing the same to other persons. The jury failed to agree on the punishment. Motion for new trial was duly filed and overruled; the court sentenced the defendant to be confined for 60 days in the county jail and to pay a fine of $100 and costs. To reverse the judgment he appeals.

The principal question presented is the sufficiency of the evidence to support the conviction.

For the state, E. R. Young, sheriff, testified that he had known the defendant about 18 years; that in serving a search warrant he went out to the defendant’s place, about nine miles east of Duncan, and found two quarts and one pint of whisky in an outhouse that he supposed was on the defendant’s premises; that Mr. Gossett, city marshal, went with him.

Marshal Gossett testified that they found two quarts and one pint of whisky buried in some cotton seed, about a quarter of a mile from where the defendant lived.

For tbe defense, Dan McCauley testified that—

“I bought the whisky the officers found from Bill Phillips, in Duncan, and he delivered it at the cotton seed house, and I put it in the cotton seed. I did not tell the defendant it was there.”

The defendant testifying in his own behalf stated that he did not know anything about the whisky found in the cotton seed house; O. H. Marshall had charge of the seed house; that he never knew it was there until it was discovered; never had anything to do with it.

Upon careful consideration we think the testimony is insufficient to warrant the verdict of the jury. Before a jury is authorized to find a defendant guilty in any criminal case, there must be evidence sufficient to prove that an offense has been committed, and to identify the defendant with the commission of it as charged in the information.

Because the evidence is insufficient to support the conviction, the judgment is reversed.


text:
    BEN HOWELL v. STATE.
    No. A-2931.
    Opinion Filed June 13, 1921.
    (198 Pac. 516.)
    (Syllabus.)
    Intoxicating Liquors — Insufficiency of Evidence. In a prosecution for violating the prohibitory liquor law, evidence held insufficient to sustain a conviction.
    Appeal from County Court, Pawnee County; George E. Merritt, Judge.
    Ben Howell was convicted of violating the prohibitory liquor law, and he appeals.
    Reversed.
    Redmond S. Cole, for plaintiff in error.
    R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Ben Howell, was ■eonvieted at the October, 1916, term of the county court of Pawnee county on a charge of unlawfully conveying intoxicating liquor from a building in the town of Jennings to a place near the Palace Rooming House in said town, and his punishment fixed at a fine of $100 and imprisonment in the county jail for a period of 90 days.

The evidence for the state shows that the defendant started from a little outhouse carrying a sack containing 20 bottles '■of beer, and was going into the Palace Rooming House when lie was arrested by the officers.

As a witness in his own behalf the defendant testified he :had lived in Jennings two years and was half owner of the Palace Rooming House; that about six weeks previous to his arrest he had ordered from Joplin for his own personal use a barrel of beer, and when it came he asked and received permission to lock it in .a nearby building, owned by the town justice of Jennings; that he never sold any of this beer and had never been convicted of a violation of the prohibitory liquor laws and had never ordered or received but the one barrel; that on the night of his arrest he saw two boys, naming them, peeping through a crack into the room where the beer was and he ordered them away from the place; that he put all the beer that was left in a sack to take to his room in the- Palace Rooming House, to keep the boys from stealing it; that he had kept the beer in the outbuilding because the rooming house was a public place; that the outhouse where the beer was kept was 50 feet in the rear of the Palace Rooming House.

We deem it unnecessary to consider the other errors assigned. It is sufficient to say, after a careful examination and ■consideration of the testimony, we are of the opinion that the ■conviction is not sustained by the evidence. Wherefore the judgment is reversed.