text:
    EUGENE RODDY v. STATE.
    No. A-7165.

      Opinion Filed April 19, 1930.
    Rehearing Denied May 10, 1930.
    (287 Pac. 765.)
    John L. Ward, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Tulsa county of conjoint robbery or robbery with the use of firearms, and was sentenced to confinement in the state penitentiary at McAlester for a period of 25 years, and to pay tlie costs of the prosecution. From which sentence and judgment the defendant has appealed.

The evidence on the part of the state tends to show that C. F. Selsor was engaged in the drug business in West Tulsa, Okla.; that said Selsor was alone in the drug store about 2 o’clock the morning, of November 9, 1927; two men came to his place of business and held a gun on him and told him to “stick ’em up”; that the language used by the two men who came in was used by the defendant in this case; that the defendant had a revolver of some kind, and, when the witness Selsor held up his hands, the other man who ivas with the defendant went to the cash register and got about |60 in money; witness Selsor testified he had known the defendant a number of years; that the defendant had a charge account at his store; that defendant wore a mask over his face when he came in, and that after he pointed the gun at the witness he pushed the witness back to the cigar counter and punched him with the gun; the defendant leaned over the cigar case and held the gun on him while the other party that was with him got the money. Witness further testified that while they were in the drug store the mask dropped off the defendant’s face, and he positively recognized the defendant.

On cross-examination the attorney for the defendant questioned the witness Selsor and asked him regarding statements he had made, in which he stated he could not recognize either one of the men. Selsor testified he did not tell any one for two or three days after the robbery that one of the parties who robbed him was Eugene Roddy. It is contended by the defendant that the witness Selsor had stated to different parties that he did not recognize either of the parties who had held him up and robbed him. Selsor says he was undecided for some time as to whether or not he would file a complaint against the defendant.

The prosecuting witness testified that the lights were burning in the store, and that the defendant in this case was within a very few feet of the witness when the mask he had over his face dropped off.

The testimony on behalf of the defendant tends to establish an alibi, in fact, that is the defense made by the defendant, that he was not at the drug store and took no part in the robbery, and denies he knew anything about the robbery, and further tends to show that he was at another place when the robbery was committed. The defendant called several witnesses who testified where they had seen the defendant at certain hours during the evening and night the robbery is alleged to have taken place. The testimony further tends to show a number of witnesses who testified for the defendant were parties who claimed to have been with the defendant on the evening and night of the robbery, and that some of the parties had been associated with the defendant for quite a while, and they were frequently seen evenings around a certain restaurant in the city of Tulsa. The testimony further tends to show that the defendant was a married man, and at the time of the robbery was staying with his mother and stepfather; that his vocation was a cook. Without setting out in detail all of the testimony, the foregoing is in substance the testimony introduced in the case.

Fourteen errors are assigned by the defendant as grounds upon which he insists this case should be reversed. The defendant, prior to the beginning of the trial, filed a demurrer to the information, which was overruled by the court, and defendant excepted, but, as the overruling of the demurrer is not assigned as one of the grounds for a reversal of this case, we take it the defendant considered there was no merit in his demurrer, and for that reason does not argue the same.

The first question argued by the defendant in his brief is that the defendant was not given a fair and impartial trial by the jury selected from the entire panel as required by law.

The defendant contends that he was deprived of his right to a fair and impartial trial of his peers as provided by the Constitution of the United States and the Constitution of the state of Oklahoma, and the laws of the state of Oklahoma, in that the court denied him the right to select from the entire panel in attendance on the court at the time. In the county of Tulsa it is shown they have four district judges, and four divisions of the district court; that the jurors, when regularly drawn under the provisions of the statute, are used by the different divisions of the court. The record shows that considerable testimony was taken on the question of the selecting of the trial jury. Similar questions to the one raised in this case have been before this court in different forms, in all of which cases the courts have held that the important thing to be considered was, Were .the rights of the defendant impaired or prejudiced by the manner in which the jury was drawn, selected, and sworn, and did the manner of selecting and swearing the jury deprive the defendant of a fair and impartial jury to sit in the tidal of his case? If by reason of the method of securing the trial jury in this case the defendant was denied any right guaranteed him under the Constitution and laws of this state, then the court should have quashed the panel and ordered a new jury drawn. A substantial compliance with the law in drawing, selecting, and impaneling the jury is sufficient.

In Yonng v. State, 41 Okla. Cr. 226, 271 Pac. 426, this court in the second paragraph of the syllabus said:

“The statute of this state providing for the impaneling of jurors in criminal cases is not in all particulars mandatory. A substantial compliance will be sufficient where the deviation is not material and has not prevented an accused from having a fair and impartial jury, selected by lot from the entire panel.” Michael et al. v. State, 42 Okla. Cr. 124, 274 Pac. 900, and Sanders v. State, 46 Okla. Cr. 293, 287 Pac. 846.

There is no showing in this record that the jurors selected were biased or prejudiced against the defendant, or that the defendant’s rights were prejudiced by reason of the jury that was selected to try his case. It is not shown that the defendant, by reason of the jurors being-called as they were, examined and impaneled to try his case, did not secure a fair and impartial jury. The challenge of the defendant was without merit, and it was not error for the court to overrule the same. If one division of the district court of Tulsa county was entitled to impanel its jury from the entire number of petit jurors forming the regular panel for the entire term of court it would necessarily follow that the other divisions presided over by the district judges would have to impanel its jurors from open or special venires. We hold that this was not the intent of the lawmakers of the state when the law was passed. To sustain the contention of the defendant would ; entail a very great expense to the taxpayers of the district No fixed rule can be applied, for the reason a juror may be excused from the regular panel before the examination o £ ; the case, and whether or not a juror should be excused before being examined rests in the discretion of the court, and the laws of the state should not be disturbed, unless it /’it shown that such exercise has been abused to the actual i prejudice of the complaining party. Beatty v. State, 5 Okla. Cr. 105, 113 Pac. 237; Mathews v. State, 19 Okla. Cr. 153, 198 Pac. 112.

The defendant cites Grant v. State, 11 Okla. Cr. 396, 114 Pac. 919, and several other authorities in support of his contention that his motion to have the jury selected from the entire panel in attendance on the district court of Tulsa county. A careful reading of the authorities cited by the defendant shows they are not in point.

The defendant insists that the court erred in giving instruction No. 5. In instruction No. 5 the court defined the essential elements of the crime charged in the information. The defendant insists the instruction is abstract, ambiguous, and contradictory (the court, in defining the elements of the crime, used these words: “With the use of firearms or other dangerous weapons”), and that it did not limit the taking of the property by the use of firearms. This instruction was simply defining the elements necessary for the state to establish before the jury would be authorized to convict the defendant. While this instruction may not be drawn as artistically as the defendant thinks it should have been drawn, it substantially and fairly states the' essential elements necessary to convict for conjoint robbery or robbery by the use of firearms.

The defendant complains that the court erred in its instruction No. 6, wherein the court tells the jury that the essential elements may be the fear of any unlawful injury, immediate or future, of the person or property of the person from whom said property is taken. This instruction contains nothing to mislead the jury from the facts in this case, and, when taken in connection with all the other interactions, we do not think it injured the defendant or prejudiced the jury against him.

In Hooper v. State, 7 Okla. Cr. 43, 121 Pac. 1087, this court, in the second paragraph of the syllabus, said:

“When an error has been committed upon the trial of a case, it is the duty of this court upon an inspection of the entire record to determine whether or not the defendant suffered any material injury from such error. Unless such injury appears, the error will not be ground for reversal.”

The defendant argues at length on several of the court’s instructions not being applicable tO' the facts in this case. After a careful reading of the instructions, and considering them together, we hold that the contention of the defendant as to the instructions of the court being erroneous is not of sufficient merit to warrant the court in reversing the case. The instructions, when considered together, are fair, and substantially covered the law applicable to the facts in this case.

The defendant contends that the court erred in overruling his motion for a new trial and his motion in arrest of judgment, and that the court should have sustained his motion for a new trial because of the misconduct of the jury, and particularly the conduct of the juror Walter Blagg, as appears by affidavit attached to the motion, and as further appears from the testimony of the jurors given in open court before arriving at their verdict; the defendant’s position being that the juror Walter Blagg qualified on his voir dire that he had no prejudice against the defendant, and that he was not biased or prejudiced, whereas before they reached their verdict it was shown he did not answer correctly or truthfully. The record discloses that, when the jury had retired to the jury room to consider its verdict, Walter Blagg, one of the jurors, mentioned to the other members that, after the mother of the defendant came in, he recognized her, and also recognized the boy, but had always known him by the name of Sanders; > that the jury came into' the courtroom, and was there questioned by tbe court, and tbe juror, Walter Blagg, stated to the court: 1

“Mr. Ward asked if I knew tbe defendant, and I answered, ‘no.’ I did not recognize him for tbe reason I knew him by another name, tbe name of Sanders. I did not recognize bim until after tbe trial began and bis mother came in. Mr. Ward did not ask me if I knew Dr. Selsor; be overlooked that I presume, be did not ask me that question.
“Mr. Ward. Tbe explanation of this juror is very satisfactory to tbe defendant. I think bis purpose was entirely honest, fair and square.”

From the record it would seem that, when the question came up in the jury room as to tbe knowledge tbe juror Blagg bad of tbe defendant and tbe prosecuting witness, tbe jury was brought into court, and there in court, with the consent of all parties, tbe juror was permitted to state bis acquaintance with tbe defendant, and also tbe prosecuting witness, and the defendant by bis counsel acquiesced in the statements of the juror, and conceded to him an honest purpose.

. The jury then returned to the jury room and tbe ver-diet returned finding tbe defendant guilty. We do not think tbe objection of the defendant on the ground that the juror Blagg was biased or prejudiced possesses merit, or that, by reason of hir former acquaintance with either the defendant or prosecuting witness, it prejudiced tbe rights of tbe defendant. We think tbe failure of the defendant to object at tbe time tbe jury was brought into ‘ tbe courtroom, and tbe acquiescence of tbe defendant in tbe honesty and integrity of tbe juror, was sufficient to waive any objection be might have to tbe juror, and we bold that be did waive it by not objecting at the time if there was any reason for disqualifying tbe juror because of Ms acquaintance with the defendant and prosecuting witness. The defendant accepted the explanation of the juror as satisfactory, and, when the verdict was returned against him, he filed an affidavit of one of the jurors as to what took place in the jury room.

This court has repeatedly held that, a juror cannot impeach the verdict of the jury by testimony of any one of the jurors in which questions of the Mnd complained of herein are discussed. Spencer v. State, 5 Okla. Cr. 7, 113 Pac. 224; Keith v. State, 7 Okla. Cr. 156, 123 Pac. 172.

There are other errors discussed by the defendant, but, after a careful study of the record, we fail to find any error committed by the trial court in ad,mission or rejection of the testimony or in its instruction to the jury that would warrant a reversal of this case. The testimony as to the identity of the defendant is positive, and the jury, after considering all the evidence, found the defendant guilty. Finding no fundamental or prejudicial errors in the record, the judgment is affirmed.

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


source: Caselaw Access Project

author: CHAPPELL, J.

license: Public Domain

text:
    GARR NICHOLS v. STATE.
    No. A-7284.
    Opinion Filed May 2, 1930.
    Rehearing Denied May 17, 1930.
    (287 Pac. 1106.)

      Mauntel & Spellman, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, Garr Nichols, hereinafter called defendant, was convicted in the district court of Woods county of the crime of attempted larceny of live stock, and his punishment fixed at imprisonment in the state penitentiary for two and one-half years.

The evidence of the state shows that defendant on or about the 8th day of July, 1928, attempted to steal certain calves, the property of Martin Sebits, which calves were located in a pasture near the town of Waynoka in Woods county; that defendant prepared to steal these calves by purchasing a lariat rope with which to rope them, and committed the overt act toward carrying his intention into effect by going to the pasture, capturing four of the calves and tying three of them to trees in the pasture, and putting one of the calves in a temporary corral which had been built around some trees in the pasture in a very secluded spot.

The evidence of the state further shows that defendant was familiar with the pasture, having been employed by Sebits at different times; that defendant knew how to handle a lariat rope, and that defendant was thoroughly familiar with the pasture and all the property kept therein; that defendant was seen by some boys, Sunday afternoon before his arrest, driving in his car near where the calves were concealed. The curiosity of the boys being aroused, they went to the place where they had seen defendant, and, finding three calves tied to trees and one calf in the small corral, they reported these facts, and an investigation resulted in the arrest of defendant a few days later.

The defendant did not take the witness stand, but offered evidence of his previous good character and certain other evidence to contradict the evidence of the state. His counsel argued that the facts proven by the state only showed at most a preparation for the act, and that if any crime had been contemplated it had been abandoned.

The defendant first contends that the court erred in overruling the motion of defendant for a new trial on the ground of newly discovered evidence. This assignment of error is based on what counsel contend to be the misleading effect of the evidence introduced at the trial as to the dimensions of two certain pieces of lariat rope; one piece introduced as an exhibit on the part of the state and another piece introduced as an exhibit on the part of the defendant. The evidence of the state was that about two days before these calves were found tied up in the Sebits pasture that defendant purchased from a merchant in Waynoka forty-eight feet of seven-sixteenths lariat rope, and that the rope found on these calves, while cut in three pieces, measured a total length of 48 feet, and the merchant from whom the defendant purchased this rope identified the rope introduced by the state as the same make and dimension of rope that he had sold the defendant.

The evidence on the part of defendant was that on the very day the calves were discovered to be tied up with eer- ' tain rope, that they saw a piece of new lariat rope at the filling station of defendant’s father. The purpose of this /evidence being to show that the rope which defendant ! purchased two days before from the Waynoka merchant could not have been the rope tied to the calves because that rope was in defendant’s father’s filling station at Way-nota too late for defendant to have used it.

At the trial defendant’s father took the witness stand in defendant’s behalf and produced a new piece of lariat rope, forty-eight feet in length, which he claimed was the rope that was in the filling station on this particular Sunday. On rebuttal the state called Mr. Me-Gurn, the man who had sold defendant this particular rope that he had previously identified, and McGurn testified that the rope defendant introduced was a heavier rope and of larger dimension than the one he had sold defendant. The alleged newly discovered evidence is to the effect that after the trial the defendant had these two pieces of rope measured, with the result that McGurn was mistaken in testifying as to the dimension of this rope. and that the measurement of the rope introduced by this defendant was of the same dimension that McGurn testified he had sold this defendant. The purpose of this newly discovered evidence was primarily to impeach the testimony of McGurn by showing that he was mistaken as to the rope he had sold defendant, and to render his evidence less credible before the jury.

Motions for a new trial on account of newly discovered evidence are addressed to the discretion of the trial judge, and his action will never be disturbed by this court unless a manifest abuse of discretion appears. Further, this court has repeatedly held that a new trial on the ground of newly discovered evidence will never be granted, unless it appears from the application that defendant has exhibited due diligence to procure the evidence at the trial.

In the case at bar both pieces of rope were in the courtroom at the trial. They were available to defendant and\ his counsel for the purposes of measurement at that time, \ and could have been as easily measured in court as out of court, and before the trial was concluded as well as after it was concluded. At the close of the trial, and as the jury were about to be taken to the jury room, they requested permission of the court to take the exhibits of rope to the jury room with them. This the court refused to permit, but did permit the jurors to make an inspection of the ropes in the courtroom in the presence of court and counsel, and thus defendant’s counsel’s attention was particularly called to the importance of the rope in the minds of the jury. There is no showing of diligence to procure the measurement of the rope. If the defendant desired to measure the rope or have it measured, a request should have been made to the court that they be granted opportunity to make the measurements before the close of the trial. Again this evidence Avould merely have been contradictory of a Avitness who had previously testified, and the showing, if made, would have been cumulative of defendant’s testimony. The court therefore did not err in overruling the motion for a new trial.

The defendant next contends that the court erred in refusing to direct a verdict of not guilty and in overruling his demurrer to the state’s evidence. The defendant Avas charged with the crime of attempted larceny of live stock. An attempt to commit a crime consists of three elements: (1) The attempt to commit the crime, (2) performance of some act toward the commission of the crime, (3) the failure to consummate its commission. State v. Thomason, 23 Okla. Cr. 104, 212 Pac. 1026; Ex parte Turner, 3 Okla. Cr. 173, 104 Pac. 1071.

In order that there may be an attempt to commit a crime, either statutory or at common law, there must be some overt act in part execution of the intent to commit the crime, but which falls short of the completed crime; the difference between attempt and commission being that the act or step fails to produce the result intended. No definite rule applicable to all cases can be laid down as to what constitutes an overt act or acts tending to accomplish a particular crime. Each case must depend largely upon its particular facts and the inferences which the jury may reasonably draw therefrom. The accused must take at least one step beyond preparation, by doing something directly moving toward and bringing him nearer the crime he intends to commit. The act must be such as will apparently result in the usual and natural course of events, if not hindered by extraneous causes, in the commission of the crime itself. The act relied upon need not be an act which is ordinarily a part of the criminal transaction itself, but it may be one which, although somewhat remote, leads up to it.

In the case at bar the evidence shows that the acts consummated by the defendant constitute all the elements of an attempted offense, as defined above. (1) There is evidence of the intent to commit the crime. (2) There is evidence of the performance of the overt act toward the commission of the crime in going to the pasture, taking possession of these calves and tying part of them to the trees, and restraining another in the temporary corral, and (3) we have the failure of the defendant to complete the crime.

The defendant further complains of instruction No. 7. This instruction, when considered with all the other instructions in the case, correctly states the law as applicable to the facts.

Finally defendant contends that the county attorney was guilty of misconduct in his argument to the jury. There is no recital outside of what is contained in the objection itself to the effect that the county attorney or special prosecutor made the argument complained of. The trial court stated that he did not hear the argument that counsel for defendant contends was made. This court has repeatedly held that objections of this hind must be supported by recitals contained in the case-made, showing that the argument as complained of was in fact made.

In Payne et al. v. State, 21 Okla, Cr. 110, 209 Pac. 334, this court said

“Where the record is incomplete touching upon alleged disparaging remarks made in the closing argument, this court will presume that the trial court ruled correctly.”

It appears from the record that defendant was accorded a fair trial, the evidence supports the verdict of the jury, and the errors complained of are not sufficient to require a reversal of the case.

For the reasons stated, the cause is affirmed.

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


author: DAVENPORT, J.

text:
    WESS HAMMONS v. STATE.
    No. A-7013.
    Opinion Filed Jan. 11, 1930.
    Rehearing Denied May 17, 1930.
    (287 Pac. 1076.)

      Jones & Clift and J. H. Harper, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was charged by information with willfully, unlawfully, and feloniously abandoning and de-sorting his wife, Winnie Hammons; was tried and convicted and sentenced to imprisonment in the state penitentiary for a term of seven years; motion for new trial was filed, considered, and overruled; and the defendant has appealed to this court. On the 5th day of September, 1927, the defendant appeared in open court and waived arraignment, and took time to plead. The defendant filed a demurrer to the information on the 14th day of November, 1927; the court, having; considered the demurrer, permitted the county attorney to amend by interlineation, so that it would state the charge against the defendant was made and filed in the justice court by complaint after the amendment was made; the demurrer of the defendant was overruled; and defendant excepted. On the 15th day of November, 1927, the case was called for trial, and the state announced ready; the defendant announced that he was not ready, for the reason that the amendment to the information had just been filed, anci “that the defendant had not been arraigned on the amended information and given time to plead or prepare his defense,” and requested that he be arraigned and given time to prepare his defense to the amended information, which request was denied by the court, and defendant duly excepted. A jury was impaneled and sworn, and the defendant was found guilty.

Winnie Hammons, called as a witness on behalf of the state, testified she was the wife of the defendant; they were married July 24, 1927; that she and the defendant did not live together after they were married; they married Sunday night, and Wess said he had to go out close to Claypool to get some cows; he would be down home as soon as he got them straightened out — “I need not look for him before the middle of the week; he has never come back since, nor has he contributed anything whatever to my support; I had sexual intercourse with Wess Hammons before this marriage; we had been going together for three years, November, about the 5th, and he kept putting the marriage off on account of financial affairs; we had sexual intercourse the first time between Ringling and Wilson; Wess said if anything happens I will marry you, we are engaged anyway; he had promised before this to marry me; the first time he promised me was between Ringling and home; I do not remember the first time I had sexual intercourse with him, some time in the early spring I think; I can’t remember, it has been so long; Wess Ham-monds is the father of my child; I never had sexual intercourse with any other man.”

On cross-examination, witness stated:

“Wess and I was engaged the first time he had intercourse with me; it was early in the spring about three years ago; it was upon his promise of marriage that we had intercourse the first time; I told mother about the time We had intercourse; I did not tell my father Wess had intercourse with me; I told my mother about the first time we had intercourse; the Sunday before we were married my father, mother, and myself went to see Wess, and my father told him he had to marry me; I saw the defendant at a skating rink after we were married and asked him when he was coming; that was a week after we were married, and he had never come to the house; we went to town that Saturday and saw Wess going into a drug store, and we followed him and I spoke to him, and he spoke to me, and I said, ‘Why haven’t you come?’ and he said, ‘I could-n’t get off down there; I have done all the law compels me to, and I am going to stop; your papa has already compelled me to do all the law requires.’ And I said, ‘Brother, you might go a little further.’ Wess said, ‘What are you following me around for?’ and I said, ‘Wess, I want to know what you are going to do; if anybody ever loved you it is me;’ and he said, ‘I don’t give a damn how much you love me; you were having a good time running after men and getting by with it.’ I commenced crying, and said, ‘Don’t you ever intend to come?’ and lie said he did not. ‘I said I was not coming, and I am not coming.’ ”

J. P. Wade testified on behalf of the state:

“I am the justice of the peace for Earl township, Jefferson county, Okla.; that a complaint was filed against Wess Hammons in my office in which he was charged with seduction; a warrant was issued upon the complaint, which complaint charging the defendant with seduction was introduced in evidence. The justice of the peace further testified that the case had not been dismissed; the case was not tried for the reason the defendant married the girl, and no further action was taken on the complaint; the sheriff told me about the marriage.”

The defendant in his own behalf testified he lived near Bingling; he had known the complaining witness about five years—

“I never associated with her very much; I saw her about the 10th or 15th of March at Kingling; she asked me to drive around with her; prior to that time I had never had intercourse with her; I never had intercourse with her under a promise of marriage; the first time I had intercourse with her was about the 10th of March, 1927; I have never had intercourse with her since that time; on Saturday before I married the girl her father came to- Mr. Dillard’s place and called me and I went to the door, and she was there and told me to come out to where her father and mother were, and she told me she was in trouble, and T told them I did not know anything about it; I married her to protect myself from being hurt; her father said I had to doi it, and I told him if I was guilty I would not mind doing it; he said she laid it on me and I would have to marry her.”

On cross-examination, witness stated he did not know : what the prosecuting witness said when “I said I did not know whether it was mine or not; I told her I was not going down to her father’s because I was afraid of her dad; I was under arrest at the time I married this girl, charged with seducing her; I married her the night after I was arrested during the day; there has never been anything further done with the prosecution; I married her to avoid being prosecuted on that charge ; I did not tell her I would be down to her father’s place at any particular time; I filed suit to annul the marriage; I was not afraid to do1 that; I was not afraid to make it generally kno wn in this case that I thought some other man was the father of the child; I have not contributed anything to the support of the prosecuting witness or the child; I don’t know what my intentions were when I married her; I did not intend to abandon her at the time I married her; I found out later I wasn’t the cause; I met her four or five years ago; I never did go with her very much; I never had intercourse with her until June, 1927; I only had intercourse with her twice before I was married; I don’t know when the child was born, when I discovered she was pregnant, I sued for divorce.” The record further shows that the defendant was seen driving home with the prosecutrix, six miles from Ringling, coming out of the pasture gates known as Joe Cates’ pasture on Red Oak creek, on the 23rd day of December, 1926. The foregoing is, in substance, the testimony contained in the record.

The defendant has assigned nineteen errors alleged to have been committed in the trial of the case. We will consider the following assignments:

“3. Error of the court in proceeding to trial over the defendant’s objections without the defendant having been arraigned and pleaded to the amended information filed , herein.
“4. Error of the court in refusing to arraign the defendant on the amended information, and in not giving;, the defendant time and opportunity to' plead and prepare I his defense.” \
“6. Error of tbe court in trying tbe defendant over bis objections, without arraignment, or plea of not guilty entered either by him or tbe court on bis refusal to plead to tbe amended information.
“7. Error of, the court in proceeding to try the defendant without a plea of not guilty having been first entered in tbe action there being no issue of tbe fact to try in tbe cause.”

These assignments all relate to the plea of tbe defendant. Tbe record shows: That tbe defendant Avas arraigned on tbe original information and took time to plead. That be thereafter filed a demurrer, which demurrer was considered by tbe court, and leave granted the county attorney to amend information by interlineation so it states that the charge against tbe defendant of seduction was made and filed in the justice court by complaint. When this amendment by interlineation was made, the court then overruled tbe demurrer of tbe defendant, which was excepted to by tbe defendant. ' On tbe following day, after tbe demurrer of tbe defendant bad been overruled and the information was amended, tbe case was called, and tbe state announced ready for trial. Tbe defendant announced not ready, and stated that tbe amendment to tbe information had just been filed, and that defendant had not been given time to plead or prepare his defense, and requested that be be arraigned and given time to plead and prepare bis defense on tbe amended information, which was overruled by tbe court and defendant excepted. The court overruled the request for time to plead, and stated:

“Let tbe record show that on yesterday permission was given to amend, and it was stated at the time what tbe amendment Avould be, and tbe defendant has bad knowledge of what tbe amendment would be for one day.”

Tbe court directed a jury to be called and impaneled. Tbe defendant then moved tbe court to vacate and set aside the amended information for the reason that no sufficient proceeding was filed herein to confer jurisdiction upon this court, and for the further reason he had never been arraigned on the information filed herein before the court, and has never had an apportunity to have an examining trial, and has never been awarded an examining trial on the information filed herein.

“The Court: Has he ever been arraigned?
“Mr. Harper: We waived arraignment upon the original information but not upon the amended information.
“The Court: You did on the original?
“Mr. Harper: Yes, sir.
“The Court: Overruled.
“Mr. Harper: The defendant objects to qualifying the jury on his part unless directed to do so by the court, and in such event he would not waive any right, and objects to proceeding to' trial at this time and in waiving his right to plead.
“The Court: Yes, sir; go ahead and take the jury.”

Section 2512, C. O. S. 1921, is as follows:

“An information may be amended in matter of substance or form at any time before the defendant pleads,*** and may be amended after plea on order of the court where the same can be done without material prejudice to the right of the defendant; no amendment shall cause any delay of the trial, unless for good cause shown by affidavit.”

Section 2627, C. O. S. 1921, provides:

“If the defendant refuse to answer the indictment or information by demurrer or plea, a plea of not guilty may be entered.”

The question presented is, Was the trial upon the amended information without a plea being entered by the defendant erroneous, and, if so, is the defendant injured thereby? The record in this case shows that the defendant waived arraignment on the original information and demurred to the same. The information was permitted to be amended by the court, and the court then overruled the demurrer of the defendant. The defendant then moved the court to vacate and set aside the amended information, giving his reason for so doing, which motion was overruled, and defendant excepted; and the case was called for trial.

The defendant objected to going to' trial on the ground he had not had time to plead and did not enter a plea. While the record in this case discloses that the defendant did not enter a plea of not guilty to the amended information, it shows that he pleaded to the amended information and had waived arraignment to the original information. It is not necessary that the defendant be arraigned on the amended information, as the amendment to the same did not change the charge against the defendant.

The trial proceeded, and the court instructed the jury that the defendant had entered his plea of not guilty to the charge against him. It is urged by the defendant that he is entitled to a new trial for the reason that he did not plead to the original information. An arraignment is necessary to fix the identity of the accused and inform him of the charge against him, and to give him an opportunity to plead. We do not think that a formal entry to the charge of a plea of not guilty is necessary after the amendment was made to the information. The defendant had been arraigned and moved to quash the amended information. Under the provisions of the statute, the defendant had properly raised his objections to the amended information and the statute specifically provides that the amendment shall in no case cause delay in the proceedings except for good cause shown by affidavit. There was no good cause shown by affidavit by the defendant as to why the trial should be delayed. No contention is made that the defendant would have entered any other plea than that of not guilty. The record discloses that the defendant had the benefit of such plea at the trial; that the court so advised the jury in its instructions that the defendant had entered his plea of not guilty. The question of arraignment and of plea has been before this court many times. In Ray v. State, 40 Okla. Cr. 413, 269 Pac. 509, this question was before this court, and the court cited with approval the following cases: Ryan v. State, 8 Okla. Cr. 623, 129 Pac. 685; Simpson v. State, 16 Okla. Cr. 533, 185 Pac. 116; Thomas v. State, 17 Okla. Cr. 550, 190 Pac. 711; Sherman v. State, 19 Okla. Cr. 269, 200 Pac. 262; Brown v. State, 33 Okla. Cr. 217, 242 Pac. 1065.

“The history and origin of the former strict rule and a reason why it should now be modified by the modern liberal rule is found in the case of Garland v. [Washington] State, 232 U. S. 642, 34 S. Ct. 456, 58 L. Ed. 772.”

We hold that the rights of the defendant were not prejudiced by reason of the ease going to trial without his entering a formal plea of not guilty after he had waived arraignment and demurred to the original information and moved to vacate and set aside the amended information; there being no showing that the defendant was prejudiced in any way whatever by the action of the court in calling the case for trial.

It is next contended by the defendant that under the; statute there was no information or indictment pending ' against him for seduction at the time of his arrest or marriage. The language of section 1845, C. O. S. 1921, is as follows:

“Any person charged by information or indictment with the offense of seduction who shall, before the trial of such charge, marry the female whom he was accused of seducing, thereby procuring the dismissal of such charge, and who shall within two years after said marriage, without the fault of his said wife, such fault amounting to acts committed by her after said marriage as would entitle him to a divorce under the laws of this state, shall abandon her or refuse to live with her, or shall be so cruel to her as to compel her to leave him or shall be guilty of such outrages or cruelties towards her as to make their living together impossible, thereby leaving her or forcing her to leave him, and live apart from each other, shall be guilty of the offense of abandonment after seduction and marriage; and any person convicted of said offense shall be confined in the penitentiary for a term of not less than two nor more than ten years; and said marriage shall be no bar to the qualifications of said female to testify against the defendant; and the female so seduced and subsequently married and abandoned as herein provided, shall be a competent witness against said defendant.”

The Legislature made the offense a felony, and evidently knew there were two ways in which a felony could be prosecuted in this state, first, by indictment; second, by information. The Legislature also knew that, before an information charging a felony could be filed in the district court, there must be a preliminary examination based upon a preliminary complaint or information, so that, when the Legislature used the words contained in section 1845, supra, it must have had in mind every step necessary in the prosecution of a felony case by the use of an information. Under the provisions of the statute, the first step necessary to be taken is the filing of a preliminary com(plaint or information before an examining magistrate, and we hold that the filing of the preliminary complaint or charge in the court of an examining magistrate is a necessary step in a- prosecution by information, and that it is clearly the legislative intent to prevent abandonment after marriage, where a prosecution for seduction has been commenced. We cannot place so narrow a construction upon the statute as to hold that it was never intended that a person charged with the crime of seduction and under arrest on a preliminary complaint should escape punishment after marriage because at the time of such marriage the state of the prosecution had not reached so far as to have included the filing of a final information in the district or superior court; to so hold, in our judgment, would practically defeat the very purpose of the statute, and would permit a defendant who had a charge preferred against him in the court of an examining magistrate to escape prosecution where, if the prosecution had'proceeded far enough tO' have a preliminary trial in the court of an examining magistrate, and transcript had been sent to the district or superior court, it would be complete under the terms of the statute. It is apparent that the Legislature intended to' punish offenders in the manner provided for the prosecution of felony cases, irrespective of the stage to which the preliminary had advanced, and we hold, that, when it used the word “information or indictment,” the intent of the Legislature was to cover cases where the charge, information, or complaint had been filed in the court of an examining magistrate charging the offense of seduction. It is apparent the Legislature intended to punish offenders who marry the party seduced in order to avoid prosecution in the manner provided for the prosecution of felony cases, irrespective of where the information, charge, or complaint is filed or the stage to which the prosecution has advanced. The defendant in this case cannot take advantage of th^ law by marrying the seduced party and stop the prosecu-) tion on a charge of seduction against him or secure a suspension of the prosecution, and then raise the question that the charge, information, or preliminary complaint filed in the court of the examining magistrate is not an information within the meaning of the statute upon which a proper prosecution was based, and pending at the date of his marriage or charge filed in the justice court. We hold that the preliminary complaint was sufficient upon which to predicate a prosecution for seduction; that it is within the intent of the Legislature when it used the language, “by information or indictment.” We hold further that the testimony is sufficient to sustain the judgment.

The defendant next complains of certain instructions of the court, but upon a careful examination of the instructions, and considering them together, we hold that the court properly declared the law. There are other errors assigned, but they are not considered of sufficient merit to warrant a reversal of this case.

The case is affirmed.

On Rehearing.

The original opinion in this case was rendered January 11, 1930. The petition for rehearing filed January 25, 1930.

On consideration of the petition for rehearing and brief filed in support of the same, and after a careful examination and study of the facts contained in the record, we believe that the ends of justice will be served by a modification of the sentence in this case from seven years to four years; and, as so modified, the judgment is affirmed.

The petition for rehearing is denied, and mandate ordered to issue forthwith.

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


text:
    HASKELL PURDIN et al. v. STATE.
    No. A-7215.
    Opinion Filed April 26, 1930.
    Rehearing Denied May 17, 1930.
    (287 Pac. 807.)
    Jesse A. Harp, for appellants.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

This is an appeal wherein the plaintiffs in error, hereinafter called defendants, were convicted of the crime of shooting one Willie Morris with intent to kill him, and each sentenced to a term of five years’ imprisonment in the state penitentiary.

Counsel for defendants presents and argues two propositions for a reversal of this judgment; the first is that the evidence is insufficient to' sustain the verdict and judgment. This conviction is based very largely on circumstantial evidence. It appears from the evidence of the state that the shooting occurred at about 12 o’clock at night when these defendants were in the act of burglarizing the chicken house of William Morris, the father of Willie Morris; said chicken house being located about 40' or 50 yards southwest of the residence. Willie Morris bad been to a basketball game in the town of Grove. When he got back to his father’s house near the town of Bernice where he lived, his attention was attracted by a noise at the chicken house. He went into the house and notified his father, and together they started out to the chicken house. Between the house and the chicken house was a storm cellar; the elder Morris went around one side of this and Willie Morris around the other. When they got around to the other end of the storm cellar, someone fired several shots from the chicken house. The elder Morris had two bullet holes through his hat and Willie received one shot in the body. It would be impossible to set out all the circumstances which point to the guilt of these defendants without making the opinion of too great length. It is sufficient to say that all the facts and circumstances considered together clearly establish the guilt of these defendants.

The defense interposed was an alibi. All the facts and circumstances were before the jury under proper instructions of the court. The weight of this evidence was for the jury, and, since there is sufficient evidence in the record to support the verdict, the cause must be affirmed unless the court committed fundamental error in the admission or rejection of evidence.

The defendants contend that the court erred in permitting certain incompetent evidence to be admitted over the objections and exceptions of defendants and that the admission of such evidence was clearly prejudicial to the substantial rights of the defendant. An examination of the record discloses that the incompetent testimony com- '■ plained of was by the trial court excluded and withdrawn / from the consideration of the jury. This action on the part / of the court was all that the defendants were entitled to. Some of the evidence excluded was clearly admissible under the theory of the state, but the trial court, out of an abundance of precaution, excluded it.

In the case of Rogers v. State, 9 Okla. Cr. 277, 131 Pac. 941, this court said:

“The admission or exclusion of testimony which, in the light of subsequent developments during the trial, indicates conclusively that no injury did or could have resulted is not ground for reversal of a judgment.
“The admission of testimony which is of doubtful competency, and which is afterwards by the court excluded out of an abundance of caution, is not error sufficiently prejudicial to justify a reversal.”

An examination of the record discloses that the trial court did everything possible to assure these defendants a fair and impartial trial. The evidence being sufficient to support the verdict of the jury and the errors of law complained of not being sufficient to require a reversal, the cause is affirmed.

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


text:
    ROBERT WHITEHEAD v. STATE.
    No. A-7322.
    Opinion Filed April 26, 1930.
    Rehearing Denied May 17, 1930.
    (287 Pac. 808.)

      C. H. Glazner, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of McIntosh county on a charge of having possession of choctaw beer and his punishment fixed at a fine of $150 and confinement in the county jail for a period of thirty days.

During the progress of the trial, the state called T. II. Waddle, who identified the affidavit which he had made to procure the search warrant. The state then called A. R. Kirkpatrick, who identified the search warrant and the return thereon under which witness had searched the premises. The witness Waddle was then asked to testify as to what they found under the search. The defendant objected because the search and seizure was illegal and ! void, and made in violation of law and the defendant’s ; constitutional rights. Thereupon the jury was excused \ and the matter presented to the court. In his brief the defendant says: “In this ease there is no search warrant of any hind whatever, introduced in the records of this case, and no proper showing has been made that the officers making the search had any authority whatsoever to search the residence of Robert Whitehead, the county attorney had recorded as Exhibits A. and B., a purported affidavit for search warrant and a purported search warrant, but such search warrant was not introduced in evidence and no showing was made that any valid warrant of any description had ever been issued, or had ever been served on this defendant, Robert Whitehead, at the time his place was searched, he was not at home, therefore could not waive any facts in the search warrant that may have been had, and no search warrant having been introduced in evidence in this case should have been quashed upon the timely objections of this plaintiff in error.”

In the case of Reutlinger v. State, 43 Okla. Cr. 261, 277 Pac. 950, this court said:

“Where a motion is filed to suppress the evidence secured by the service of a search warrant, the burden rests on the defendant to establish the insufficiency of the affidavit and the illegality of the search and seizure. The presumption of law is that the affidavit for the search warrant was sufficient and the search made under the warrant legal.”

In the case of Weeks v. State, 41 Okla. Cr. 95, 270 Pac. 858, this court laid down the rule that it was reversible error for the state to introduce the affidavit and warrant as evidence. In the case of Ford v. State, 45 Okla. Cr. 161, 282 Pac. 370, this court laid down the procedure for the defendant to pursue in making his record to present the issue of the sufficiency of the affidavit and search warrant for this court. The presumption of law is that the affidavit and warrant were sufficient and the service of the warrant legal. The burden is upon the defendant to establish the insufficiency of the affidavit and the illegality of the warrant or the service thereof.

The defendant next contends that the evidence is insufficient to support the verdict of the jury. The evidence of the state was that in the search of defendant’s premises they found four and one-half gallons of choctaw beer. After qualifying, the witnesses testified that this beer was in fact intoxicating. Under the allegations of the information, the state must prove either that the choc-taw beer was in fact intoxicating or that it contained more than one-half of 1 per cent, alcohol measured by volume, and was capable of being used as a beverage. The evidence being sufficient to support the verdict, and the errors of law complained of being without merit, the cause is affirmed.

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


author: EDWARDS, P. J.

text:
    Ex parte C. C. COLSTON.
    No. A-7824.
    Opinion Filed May 17, 1930.
    (288 Pac. 1114.)
    Mathers & Mathers, for petitioner.
    J. Berry King, Atty. Gen., for respondent.-
   EDWARDS, P. J.

This is an original proceeding in habeas corpus. Petitioner alleges that he is charged in the district court of Grady county with robbery with firearms and by order of the district judge has been transported to the state penitentiary, where he is now held pending his trial; that he is subjected to abuse, torture, and mistreatment. These allegations are amplified with such detail as to lend to them the appearance of truth. At the time the petition was filed, this court declined to issue the writ or a rule to show cause, but appointed the Honorable Harve L. Melton, district judge at McAlester, Okla., as referee to take evidence touching the allegations made and return the same to this court. This was done, and the report has been filed, consisting of some seventy-five typewritten pages of testimony of witnesses both for the state and petitioner. An examination of this testimony clearly discloses that the allegations of mistreatment are untrue and the petition without merit. Counsel for petitioner has filed a motion to dismiss the petition, setting out that “* * * petitioner does not believe he is entitled to the relief prayed for under the evidence and that counsel was misinformed of the true facts at the time of filing his petition.”

The writ is denied.

DAVENPORT and CHAPPELL, JJ., concur.


author: PER, CURIAM.

text:
    WALTER DOUGLAS v. STATE.

      No. A-7384.
    Opinion Filed May 17, 1930.
    (288 Pac. 1114.)
    John T. Levergood, for plaintiff in error.
    The Attorney General, for the State.
   PER, CURIAM.

Plaintiff in error was convicted in the county court of Pottawatomie county on a charge of having unlawful possession of intoxicating, liquor, and his punishment fixed by the jury at a fine of $50 and confinement in the county jail for a period of one month.

The appeal in this case was filed in this court on the 21st day of May, 1929. No briefs have been filed on behalf of plaintiff in error, and no appearance was made for oral argument.

Upon a careful examination of the record we find no errors depriving the appellant of any substantial rights.

The evidence being sufficient to support the verdict, the cause is affirmed.


author: EDWABDS, P. J.

text:
    G. G. (Tang) CLARK v. STATE.
    No. A-6759.
    Opinion Filed May 17, 1930.
    (288 Pac. 365.)
    Howe & Howe, J. W. Warren, and R. L. Evans, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWABDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Choctaw county of murder, and was sentenced to life imprisonment in the state penitentiary.

The information properly charges defendant with the murder of Ivory Willingham by shooting with a rifle. The record discloses that the parties were negroes living in the city of Hugo ; that some time prior to the homicide defendant had been keeping company with Alma Burkes; that he had been away from the city for some two or three months, and Ivory Willingham had possibly surplanted him in her affections, and for that reason he held malice against Willingham. The killing, took place soon after dark in the rear of a restaurant where Alma Burkes worked. Only one shot was fired, so seriously wounding Willingham that he died some three or four days later. Just prior to the homicide, defendant attempted to borrow a pistol from Mack Wood, but did not procure it. He then went to the place of one Lee, and asked for a pistol, but, .on being told by Lee that he had none, he took a Winchester rifle from under the bed and went away with it. Both of these witnesses testified that he was drinking. Deceased made a dying statement, in substance, that he was going through the alley back of Burk’s place and met defendant, spoke to him, and that defendant shot him; that he was not doing anything, just going through the alley at the time he was shot. After the shooting, defendant fled, and was later apprehended at Hobart, Okla. Defendant testified in his own behalf, admitting that he fired the fatal shot, but claimed it was in self-defense; that at the time he fired deceased was approaching him with a ‘knife. There was testimony that he stated to certain officers after his arrest that, if deceased had any weapon at the time he shot him, he did not know it.

A transcript of the record was filed in this court in 1927; the appeal was long delayed on account of the inability of the court reporter to furnish a transcript of the testimony, which was not filed until October, 1929. No briefs in support of the appeal have been filed.

On account of the serious nature of the charge and the sentence imposed, we have examined the record with particular care to ascertain if there is any jurisdictional' or fundamental error. The record is brief, and the trial appears to have been entirely regular. The evidence reasonably sustains the verdict, and there is no material error apparent.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    ALBERT SMITH v. STATE.
    No. A-7417.
    Opinion Filed May 17, 1930.
    (288 Pac. 367.)
    B. Harrison Wohl, for plaintiff in error.
    J. Berry King, Atty. Q-en., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Blaine county on a charge of destroying evidence, and was sentenced to pay a fine of $150 and to serve 60 days in the county jail.

Defendant was prosecuted under section 1646, Comp. Stat. 1921, which defines a misdemeanor for any person to willfully destroy any paper, instrument, matter, or thing which he knows is about to be produced in evidence upon any trial, proceeding, inquiry, or investigation authorized by law, with the intent to prevent the same from being produced. The record discloses that at the time charged the sheriff, with two other persons, with a search warrant, went to the residence of defendant, and procured a bottle of whisky, and then arrested the defendant, and, while on the way with him to the county seat, defendant seized the bottle in the overcoat pocket of the sheriff and threw it into the Canadian river. The defendant admits that he took the bottle of whisky from the pocket of the sheriff and threw it into the river, but excuses his act by saying that he was angry because the sheriff would not permit him to make some arrangements for the care of his family while he was under arrest.

The record is brief, and there is little conflict in the ^testimony. The appeal was lodged in this court in June, 1929. No briefs in support have been filed. We have examined the record, and find no material error. Under all the circumstances, however, we are of the opinion that the punishment assessed is more severe than the facts warrant, and that the judgment should be modified by reducing it to a term of 30 days in the county jail and a! fine

As modified, the case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    W. W. WASHBURN v. STATE.
    No. A-7342.
    Opinion Filed May 17, 1930.
    (288 Pac. 371.)
    L. A. Wallace, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of ■ Okmulgee county on a charge of perjury and was sentenced to serve a term of five years in the state penitentiary.

The information alleges-, in substance, that defendant was produced as a witness in the district court in a case wherein the state prosecuted one Jack Whitehead, charged with murder. That he was sworn as a witness by the deputy court clerk, and it then became a material question in the trial of said cause whether or not said Whitehead was present at the city of Beggs at the hour of 10:45 to 11 a. m. May 18, 1927. That defendant did testify, in substance, that he shaved said Whitehead at the town of Hallett between the hours of 9:26 and 10 o’clock a. m., May 18, 1927; that said Whitehead was not in Beggs between the hours of 10:45 and 11 a. m., May 18, 1927, but was in Hallett, some. 100 miles north of Beggs. That said testimony was false and untrue, etc.

The state proved that defendant was sworn as a witness in the case of State v. Jack Whitehead, that he testified in substance that he was a barber and on May 18 he shaved said Whitehead between 9:26 and 10 o’clock a. m. It was further proved that the distance between Hallett and Beggs is 69 and a fraction miles; that under the conditions of the dirt road between the two places it would require not less than 1 hour and 45 minutes to drive from one town to- the other. Roy Wilson testified for the state that he participated in the robbery of the bank at Beggs in which W. J. McAnally was killed, and that Whitehead was one of the participants in the robbery and homicide. Whitehead, who was defendant in the case in which the perjury is charged to have been committed, testified for defendant in substance that he had been convicted for the murder of McAnally and was serving a life sentence in the penitentiary; that he was shaved at the shop of defendant at about the time testified to by defendant, and then drove from Hallett to Beggs and participated in tlie bank robbery and homicide. He admitted, on cross-ex-animation that he testified at his own trial directly contrary to this and denying his participation in the crime.

Two points are particularly stressed in defendant’s brief: First, that the court erred in instructing the jury over defendant’s exceptions that the punishment is fixed by the second subdivision of section 1636, Comp. Stat. 1921. Second, that the state wholly failed to prove the materiality of defendant’s testimony upon which the charge of perjury is predicated.

Section 1636 is as follows:

“Perjury is punishable by imprisonment in the penitentiary as follows:
“First. When committed on the trial of an indictment for felony, by imprisonment not less than ten years nor more than twenty years. Second. When committed on any other trial or proceeding in a court of justice, by imprisonment for not less than five nor more than ten years. Third. In all other cases by imprisonment not more than five years.”

The Attorney General has filed what in effect is a confession of error upon both these principal assignments. Upon the first proposition it is as follows:

“This first question, which the Attorney General considers very serious, may be stated thus:
“This conviction was for false swearing in the trial of Jack Whitehead in the district court of Okmulgee county wherein said Whitehead was being tried on an information charging him with the murder of one McAnally.
“The court, over the objection and exception of defendant, instructed the jury that the punishment was prescribed by the second subdivision of section 1636, supra. It is contended by counsel for defendant here that the punishment for perjury committed on the trial of a felony is fixed by the first subdivision of section 1636, and not by the second subdivision thereof. The first subdivision of said section provides that perjury committed on the trial of an indictment for felony shall be punishable by imprisonment not less than ten years nor more than twenty years.
“This was the trial of a felony by information instead of indictment. Is the punishment different? We think not.
“Section 1636 is a statute adopted with the Territorial Code. Before statehood a felony could be tried only on a charge by indictment; since statehood felonies may be tried by information as well. Before statehood the language ‘on trial of an indictment for felony’ was undoubtedly used to distinguish between a trial of a felony where a conviction could follow and a preliminary trial of a felony for the purpose of binding the defendant over to the district court to answer the charge. The law-makers appreciated the fact, no doubt, that perjury committed in the preliminary trial of a felony was not as serious an offense or so likely to' obstruct or miscarry justice as a final trial because the falsity of such testimony might be discovered between the time of the preliminary and the final trial, while if perjury is committed on the final trial of the defendant, it might not be discovered until after the defendant is wrongfully acquitted. Therefore, in the opinion of the Attorney General this court should construe the first subdivision of section 1636, supra, to apply to perjury committed on the trial of either an indictment or information for felony, and that the second subdivision would apply to civil trials and preliminary trials for felony trials of misdemeanors and other trials and proceedings in courts of justice.

“In the recent case of Patterson v. State, 44 Okla. Cr. 298, 280 Pac. 862, this court held:

“ 'A trial court has no authority to authorize the jury by his instructions to fix any punishment other than that provided by the statute.
“ Where the court, in its instructions, submits to the jury a smaller penalty for the offense than that prescribed by law, and where the defendant excepts to such instruction and objects to the giving of the same, and where a smaller penalty is assessed by the jury than that fixed by law, the cause will be reversed.’
“If our construction of section 1636, supra, is correct, and we believe it is, then the doctrine announced in the Patterson Case will require a reversal of this judgment.”

Upon the second assignment it is said in the brief of the Attorney General:

“On this proposition there is enough evidence to show the materiality of Washburn’s testimony had the charge been for false swearing in the case of robbing the bank at Beggs, Oklahoma, but there is nothing in the record, so far as we have been able to discover, to show that Mc-Anally was killed, or, if so, that he was killed at the time of the Beggs bank robbery. The trial court instructed, as a matter of law, that Washburn’s testimony was material in the murder trial and defendant’s counsel contends that there is no evidence to support the giving of such an instruction.
“We are of the opinion that there is substantial merit in this latter contention and if this court after an examination of the record arrives at the same conclusion reached by the Attorney General in this case, the judgment will have to be reversed and the cause remanded for another trial.”

Referring to the first assignment above set out: Section 1636, Comp. Stat. 1921, fixing the punishment for perjury committed in a judicial proceeding was a part of the act long prior to statehood as section 2007, Statutes of 1890. At that time felonies were prosecuted by indictment only, and the first subdivision of this section fixing the punishment for a perjury committed on the trial of an indictment for a felony was intended to and did apply to the trial of all felony cases. Misdemeanor cases were prosecuted by. information or complaint, and the punishment for perjury committed in the trial of this class of cases was fixed by the second subdivision. Since statehood, by article 2, § 17, of the Constitution, felonies may be prosecuted either by indictment of a grand jury or by information where a preliminary examination before a magistrate is had or has been waived. Therefore the words “of an indictment” in the first subdivision of section 1636, supra, is obsolete, and that subdivision fixes the punishment for perjury committed on the trial for a felony whether the prosecution is by indictment or by information.

This court, in the case of Patterson v. State, 44 Okla. Cr. 298, 280 Pac. 862, held in effect that where the trial judge, over the objection of defendant, submitted and the jury fixed a less penalty than that authorized by law, the case must be reversed. The writer of this opinion dissented from the majority of the court in that case, being of the opinion that a prior opinion in that case, Patterson v. State, 42 Okla. Cr. 255, 275 Pac. 387, was the better rule; but the court having held to the contrary upon reason well supported by authority, we adhere to the opinion announced there, and this case falling squarely within the rule must be reversed.

Upon the second assignment of error above set out, there may possibly be enough evidence to show that Mc-Anally was killed in the Beggs bank robbery, but this is not sufficient. There is an entire absence of evidence showing or tending to show the issues involved in the trial of the case of the state against Whitehead. It is not shown that the testimony of defendant was in any way material or pertinent in that case. It was not shown ex-; cept by inference that a charge of murder was even pending against Whitehead in the district court of Okmulgee county, or that he was being tried on such a charge. No indictment, information, or court record of any kind was introduced. No testimony was offered to show what defense was interposed to such charge, if there was any such charge, and the record is entirely silent as to the issue involved. Assuming that Whitehead was charged with the murder of McAnally, it cannot be determined from this record whether the plea was guilty or not guilty; whether it was self-defense, alibi, insanity, or some other defense. In the trial of a charge of perjury the materiality of the alleged false testimony is an essential element of the crime. To determine its materiality the state must show the issue joined in the case where the testimony was given. Section 1628, Comp. Stat. 1921; Stanley v. U. S., 1 Okla. 336, 33 Pac. 1025; Rich v. U. S., 1 Okla. 354, 33 Pac. 804; Meyers v. U. S., 5 Okla. 173, 48 Pac. 186; Pate v. State. 10 Okla. Cr. 100, 133 Pac. 1132; McFarland v. State, 12 Okla. Cr. 201, 153 Pac. 619; Huffine v. State, 13 Okla. Cr. 239, 163 Pac. 557; Downard v. State, 26 Okla. Cr. 274, 223 Pac. 718; Wright v. Satte, 30 Okla. Cr. 425, 236 Pac. 633, 634.

The general rule is stated in 21 E. C. L. 259, as follows: “The materiality of the testimony must be established by evidence and cannot be left to presumption or inference, and proof that the testimony was admitted on the trial is not sufficient to warrant a jury in inferring that such testimony was material to the issue.” See, also, Fletcher v. State, 20 Wyo. 284, 123 Pac. 80.

In the case of Wright v. State, supra, this court said:

“First, that the record of the trial in which the alleged false testimony was given is not produced, and there is no sufficient proof that the case was at issue or was legally on trial. Second, that there is no proof that the evidence alleged as the basis of perjury wag material. Third, there is no sufficient corroboration in proof of the alleged perjury as required by law.
“Considering these assignments in the order set out, an examination of the record discloses that there was no production of the record nor any authenticated transcript, nor any waiver of such record, nor was there sufficient parol proof on this point. The journal was not offered in evidence showing the court to have been in session, nor is any proof made that the defendant in the case tried was present or had pleaded to the information, or that a jury had been called and impaneled. The charge on which the defendant was tried was of perjury in a judicial proceeding, and the essential facts to establish the proceeding to have been in a competent tribunal should have been made.”

Some other assignments of error are presented, but since the case must be reversed, it is not necessary to discuss them.

For the reasons assigned, the case is reversed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    FREEMAN BASSETT v. STATE.
    No. A-7380.
    Opinion Filed May 17, 1930.
    (288 Pac. 392.)

      E. E. Ammons, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter for convenience referred to as the defendant, was convicted of having in his possession spirituous, fermented malt and intoxicating liquor, to wit, about one quart of whisky, with the unlawful and wrongful intent then and there on the part of him the said Freeman Bassett of bartering, selling, giving away, and otherwise disposing of the same contrary to the statutes, and was sentenced to pay a fine of $200 and costs, .and to be confined in the county jail for 90 days, from which judgment the defendant has appealed to this court.

An abstract of the testimony is as follows: Ed Allen testified for the state, as follows:

“I went to Freeman Bassett’s on about the 10th of November, 1928; I signed the affidavit before a justice of the peace for a search warrant; when we drove, tip a girl went in the house and told some one to hurry and pour it out; Mr. High and Mr. Waddle went in the house, and I went to the west door and served a copy of the warrant on Freeman’s wife; then I went into the kitchen; Mr. High was standing by the cook stove with a fruit jar in his hand; it had something like a pint of dishwater in it; the dishpan was on the stove, and the dishwater smelled very strongly of whisky; I really don’t think I examined the dishpan; there was a hole in the floor in one of the rooms, looked like it had been burned through the wood; I smelled whisky there; I could not say whether there was any whisky in any quantity mixed in the dishpan or in the fruit jar, there was whisky in it; there was some jugs and jars around there; I did not taste anything we ■found there.”

Witness was then asked the following questions:

“Q. I will ask you, if you know, to answer the question yes or no, if the question is now sustained, if you knew on the 10th of November, 1928, what the general reputation was in and about the city of Eufaula, as to being a place where intoxicating liquor was kept for sale in violation of law?
“The Court: The question has been modified, do you desire to object to the question as it is now put?
“Mr. Ammons: Yes.
“The Court: Overruled.
“Mr. Ammons: Exceptions.
“Q. What is the answer? A. Yes sir.
“Q. Was that reputation good or bad? A. Bad.”

On cross-examination, witness stated:

“I had no idea how much whisky was there; I believe I smelled whisky where it was poured through the floor; I never examined the dishpan; I never said there was whisky in the dishpan, I said there was whisky in the jar; I don’t know how much dish water was in the jar, I don’t know how much whisky was in it, there was between a pint and a quart of liquid in the jar; I did not taste it, I could not have done it then. The defendant Freeman Bassett was not at home at the time.”

A. B. High testified he was at the defendant’s place about the 10th of November, 1928; Mr. Allen was under the steering wheel when they drove up:

“I jumped out on the right hand side of the car; when we drove up Freemans girl was at the wood pile; when we stopped the car the girl ran into the house, I took after her; Mr. Allen had the search warrant; she beat me to the dishpan and there is where I found the whisky in a fruit jar, it had not all been poured out; in the southwest room there was a pretty fair hole in the floor; there Was,. some empty jars, bottles and things like that in the room; I don’t remember whether there was any smell of whisky in these jars or bottles; the dishpan was full of dishes and water in it; the water in the dishpan was warm and brought out the smell of whisky very strong; the fruit jar had whisky and dishwater in it.”

The witness High was asked the same question as the witness Allen was asked, as to whether he knew the general reputation of the defendant’s residence as being a place where intoxicating liquor was kept for the purpose of bartering, selling, giving away, and otherwise furnishing the same. The defendant objected, and the objection was overruled, and the defendant excepted. The witness then ansAvered that the reputation was bad.

On cross-examination, Avitness stated that there was whisky in the home of the defendant but it was impossible to tell just how much there was of it: “I smelled whisky in the dish water in the pan and in the fruit jar.” On redirect examination, witness stated he remembered the defendant was at home when he was arrested.

Freeman Bassett testified in his own behalf that he was out of town the time the officers claim to have gone to his house; that he did not have any whisky in his residence when he left home; does not know what occurred during his absence; “I did not have any whisky in my possession; the search was made while I was living with my family.” Witness was asked about having been previously convicted of violation of the prohibitory laws and admitted he had been convicted once. “When I returned home, my family advised me the officers had been there raiding.” Witness admitted about seven or eight years ago he was convicted of violating the prohibitory laws. This is all the testimony introduced in the case.

At the close of the state’s testimony, the defendant demurred to the testimony on the ground that it was insufficient to sustain a conviction, which was overruled, and defendant excepted.

The defendant has assigned ten errors alleged to have been committed in the trial of his case. The ninth and tenth assignments will be considered together; the ninth being that the court erred in permitting the case to go to the jury, for the reason that the evidence failed to show that there was as much as one quart of whisky found at the premises mentioned in the information. Tenth, the verdict of the jury is contrary to the law, the verdict of the jury is contrary to the evidence, and that the verdict of the jury is contrary to both the law and the evidence. In the record it was stipulated that no question as to the validity of the search warrant would be raised by the defendant. An examination of the record shows.that the home of the defendant was searched by the officers. One of the officers stated that a girl said something about pouring out something as they went into the house. The other officer, according to his own testimony, got out of the car first, says the girl ran in the house, but says nothing about her saying to pour something out. When the officers got in the house, they found a dishpan on the stove, with dishes in it, and a fruit jar near the dishpan with dishwater in it. Both of the officers say it had some whisky in it. They also say there was an odor of whisky in the dishpan, and also at the hole in the floor in one room of the house. They found no quantity of whisky except the quantity found in the fruit jar, which neither of the officers tasted; the testimony of the officers being that the dishwater in the pan and the fruit jar in which there was some dishwater smelled like the odor of whisky. No quantity is given, the allegation in the information be ing that they found about a quart of whisky. The word “about” is an indefinite term, and might be interpreted to mean any quantity of whisky less than a quart. The defendant was not at home, and on his return he was advised that the officers had been to his house and searched it. He stated positively that when he left home he did not have any whisky; that he had nothing to do with any whisky found there. He admits that seven or eight years ago he had been convicted of the violation of the prohibitory laws, but in that connection the court limited his statement as only going to his credibility as a witness. There is no testimony in the record showing that the defendant, at the home where he resided, had ever sold, bartered, given away, or otherwise furnished to any one any quantity of whisky.

The testimony in this case tends to show that, if any whisky was found, it was less than one quart, and therefore the quantity of whisky found was not prima facie evidence of intent to sell, barter, give away, and otherwise furnish to others. Where the quantity of whisky is less than a quart, the intent to sell is the gist of the offense, and in this case there is no testimony whatever tending to show the intent of the defendant to barter, sell, give away, or otherwise furnish the whisky alleged to have been found at the home of the defendant, nor is there any testimony connecting the defendant with the possession of the whisky. All the testimony tended to show that whatever was found, if any, was found in the defendant’s home in his absence. The testimony is insufficient to sustain the judgment.

The case is reversed.

EDWABDS, P. J., and CHAPPELL, J., concur.


text:
    H. A. PRUITT v. STATE.
    No. A-6870.
    Opinion Filed May 17, 1930.
    (288 Pac. 390.)
    Sigler & Jackson, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of being engaged in the wholesale business of buying green, raw, and uncured skins of fur-bearing animals, without his having first applied to the Fish and Game Warden and received a license to engage in such business, and was sentenced to pay a fine of $25 and costs of the prosecution. From which judgment the defendant has appealed to this court.

There is no controversy about the facts in this case; the defendant admits he bought two opossum hides from a party, and at the time he bought the hides he had not applied to the Fish and Game Warden and received a license to engage in said business.

The defendant assigns four errors alleged to have been committed by the trial court, all of which relate to the act under which the defendant was prosecuted, and the defendant argues that the act under which he was convicted is unconstitutional and void, for the following reasons. That it is an unreasonable and arbitrary act, and that it requires the defendant to dispose of all hides he buys before February 10th of each year; and makes it a crime for him to have in his possession any hide after February 10th.

The defendant further contends that said act violates section 2, of the Bill of Bights, which section provides that:

“All persons have the inherent right to life, liberty, the pursuit of happiness, and the enjoyment of the gains of their own industry.”

That the said act is unconstitutional because the title of the bill is not broad enough to cover dealers in hides; also', that the act violates section 57, art. 5, of the Constitution of the state, which section of the article provides that:

“Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title, except general appropriation bills, general revenue bills, and bills adopting a code, digest, or revision of statutes,” etc.

The only question to be decided in this case is: Is the act under which the defendant was prosecuted unconstitutional? It is not disputed by the defendant that the Legislature had the right to pass the act under consideration, the contention of the defendant being that in passing the said act the title to the same is not broad enough to cover the offense charged against the defendant, and that the said act embraced more than one subject. The title to the act under which the defendant was prosecuted, found on page 53, c. 35, of the Session Laws 1927, is as follows:

“An Act relating to fish, game and fur-bearing animals; providing for the taking, keeping, propagating and protection thereof, for open and closed seasons thereon, for licenses in relation thereto, defining crimes and penalties, and repealing previous laws.”

The defendant is prosecuted under section 12, of the said act, which is as follows:

“No person shall engage in the wholesale business of buying green, raw, cured or uncured hides or skins of fur-bearing or predatory animals as defined by this act, without first applying to the State Fish and Game Warden, and upon the payment of a license fee of $25, and receiving a license to engage in such business. Such license shall be good for the current year issued and shall expire on the 10th day of February of each year. Any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor and upon conviction shall be fined in the sum of not less than $25 nor more than $100.”

The title to this act is general with reference to fish, game, and fur-bearing animals, and as to the subdivision of the title, we have the words, “for licenses in relation thereto,” and defining the crimes and penalties. Every legislative act is presumed to be constitutional, and the court should not declare any act to be unconstitutional, unless it is clearly so. If there is any doubt the expressed will of the Legislature should be sustained. Ex parte Hunnicutt, 7 Okla. Cr. 213, 123 Pac. 179; State v. Wheatley, 20 Okla. Cr. 28, 200 Pac. 1004.

In Haggerty et al. v. St. Louis Ice Manufacturing & Storage Co., 143 Mo. 238, 44 S. W. 1114, 40 L. R. A. 151, 65 Am. St. Rep. 647, is an able discussion of a law similar to the one in this case, and in that case the court held adversely to the contention of the defendant in this case.

In Re John Powell, 6 Okla. Cr. 496, 120 Pac. 1022, in the first paragraph of the syllabus, the court held:

“(a) It is not necessary for the title to an act of the Legislature to embrace an abstract of its contents. It is sufficient, if the title contains a reasonable intimation of the matters under legislative consideration, to state the subject of the bill in general terms, and with fewest words, in accordance with the general custom to which the framers of the Constitution intended the Legislature to conform.
“(b) When there are numerous provisions having one general object, the title is sufficient if it fairly indicates the general purpose of the act. The details providing for the accomplishment of such purpose are to be regarded as necessary incidents.
“(c) All the provisions of this act are for one object only — the care of delinquent and dependent children, as expressed in the title.”

In the body of the opinion the court held that the law was not invalid because the title did not state it created a juvenile court and probation officer, as both the juvenile court and probation officer were essential to the care of neglected and dependent children; the title to said act : being:

“An act to define dependent, neglected and delinquent children, and to regulate the treatment, control and custody thereof by county courts.”

This court has held that the constitutional provision should receive a broad construction, and that the courts should not declare the act unconstitutional unless it is clearly so. If a doubt exists, the act of the Legislature should be sustained. It is a well-settled rule of all courts that statutes are entitled to presumptions which favor their constitutionality. Bishop v. City of Tulsa, 21 Okla. Cr. 457, 209 Pac. 228, 229, 27 A. L. R. 1008.

Where the statute is subject to two constructions, one conforming to, and the other controverting, the Constitution, courts will adopt that construction which conforms to the Constitution. Ex parte Hunnicutt, supra; Ivey v. State, 112 Ga. 175, 37 S. E. 398; State ex rel. Fortier v. Capdevielle, 104 La. 561, 29 So. 215.

We have carefully read the brief of the defendant, and the authorities cited therein, and we cannot agree with the defendant’s contention with reference to the bill in question containing more than one subject.

We hold that the statute under which the defendant was tried and convicted is not in violation of the Constitution of the state of Oklahoma.

The judgment is affirmed.

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


text:
    W. R. COLLIER v. STATE.
    No. A-7332.
    Opinion Filed May 17, 1930.
    (288 Pac. 388.)
    W. B. Garrett, for plaintiff in error.
    The Attorney General, and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Greer county of the crime of shooting with intent to kill one De Witt Cordell, with a deadly weapon, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of two years.

The evidence of the state is that this assault occurred on Sunday afternoon at the home of defendant in the city of Mangum. De Witt Cordell, the person shot, was thirteen years of age. He together with Curtis Wetsel, a boy ten years old, and another young boy, were pulling alfalfa from the edge of the place owned by defendant and hauling it on some toy trucks like they were hauling feed. That the defendant came out of the house and shaded his eyes with his hands, turned and went back into the house, and soon came out with something in his hands like a gun, he got between two little outhouses and shot. That the Wet-sel boy heard the bullet pass and that the second shot hit De Witt Cordell, inflicting a wound near the appendix which the doctors testified was usually fatal. That officers were called immediately after the shooting and went to defendant’s house to arrest him. At that time defendant stated to the officers that he had not done any shooting, that he did not have a rifle, and did not know Cordell had been shot. Defendant requested the officers to verify his statement by his wife, who also stated that they never had had a rifle in the house. That the officers searched the house at that time, but found no rifle, but, searching the yard, did find an empty 22-short shell and a 22-long shell near where defendant had stood at the time witnesses said he did the shooting. That, after putting the defendant in jail, the officers came back and again searched the house thoroughly, but found no rifle. On going back the next day, however, and searching the basement, they found a cistern, and that the gun had been dropped into this cistern.

In this trial of the case, defendant’s wife took the witness stand, and admitted that she told the officers that there was no rifle on the place and had never been, and testified that she dropped the rifle in the cistern after her husband had been taken to jail, and that he knew nothing about it. Defendant testified that he heard a noise out at his chicken yard, took the gun, and went out because a dog had been bothering his chickens, and that he fired twice at this dog, and that, if he hit the boy, it was accidental. He also' admitted that he told the officers immediately after the shooting that he had not fired the shots and did not own a rifle. Defendant denied that he had had any difficulty with the boys, prior to that time, of playing with his alfalfa. In rebuttal the state showed that just a few days before the defendant had had difficulty with one of the Cordell boys over this same alfalfa. The evidence being sufficient to support the verdict of the jury, the cause must be affirmed, unless the errors of law complained of by defendant are sufficient to require a reversal.

The defendant complains that the court erred in refusing certain requested instructions. The instructions of the court given on its own motion fairly state the law of the case, and were as favorable to the defendant as the evidence would justify.

The defendant next contends that the court erred in failing to instruct the jury on the grade of felonious assault defined by section 1764, C. O. S. 1921. This section defines that grade of felonious assault which is commonly known as assault with a dangerous weapon with intent to do bodily harm. The information charged the defendant under section 1756, C. O. S. 1921, and the evidence of the state makes out a case under that section. The defendant’s testimony did not tend to reduce the crime to any included offense, but merely renders the act of the defendant excusable, and would entitle him to an acquittal, if believed. There was no middle ground for the jury to take. There was either a deliberate assault with intent to kill, with near fatal results, or an excusable accident by reason of the right of defendant to protect his chickens against the attack of a dog. It is not error to refuse to give requested instructions if the law of the case as applicable to the evidence is sufficiently covered in the general instructions. Tate v. State, 45 Okla. Cr. 271, 281 Pac. 820; Craighead v. State, 45 Okla. Cr. 184, 282 Pac. 476.

It is next contended that the trial court erred in overruling the defendant’s challenge for cause to the juror Tyler Crittenden. The record discloses that the defendant exercised a peremptory challenge as to this juror, and thereafter exercised the balance of his peremptory challenges. Counsel for defendant cites the case of Tegeler v. State, 9 Okla. Cr. 138, 130 Pac. 1164. The facts in the Tegeler Case and the facts in the case at bar are not the same. In the Tegeler Case the juror served on the panel and participated in the trial and in the return of the verdict against the defendant. In the case at bar the juror was excused on peremptory challenge, and did not sit in the case. It appeared from the voir dire examination of this juror that defendant was a customer of his bank; that he had known defendant for about twenty years; that such business relations and acquaintance would not influence his verdict; that he had an opinion in the case, but that opinion would not interfere with the evidence; that he had heard both sides of the case discussed, but that he had no fixed opinion, and that he would try the case fairly upon the evidence introduced and the instructions of the court; that it was not such an opinion as would influence his action as a juror.

Before this court will reverse a case, it must affirmatively appear that the action of the trial court in overruling the challenge to the juror resulted in the failure of the defendant to secure a fair and impartial trial. In the case of Brewer v. State, 44 Okla. Cr. 361, 280 Pac. 473, 474, this court said:

“It is settled by numerous decisions of this court that a defendant has no vested right to have any particular juror out of a panel. His right is that of objection rather than that of selection, and if the trial court is of the opinion that any juror is not fair and impartial or is for -any reason disqualified he may excuse him either upon challenge of one of the parties or upon his own motion, without challenge. Whether or not a juror should be excused rests in the sound discretion of the court. Unless such discretion is abused, there is no error. Boutcher v. State, 4 Okla. Cr. 576, 111 Pac. 1006; Mathews v. State, 19 Okla. Cr. 153, 198 Pac. 112.”

The defendant complains of other errors, but they are all without merit. The evidence of the state was sufficient to establish the fact that the defendant willfully and deliberately shot at a young inoffensive boy because he was playing with some of his property and that such shot almost cost the life of the noy. The denial of the defendant at the time he was arrested that he owned a gun or had done any shooting, together with the fact that the gun was found two days later concealed in a cistern under the house, and the explanation that the defendant made in his defense that he was shooting at a dog, strengthened the state’s case rather than constituted a defense. The jury were extremely merciful to the defendant. Under the evidence in the case, they would have been justified in giving the defendant the maximum punishment. The errors of law complained of being insufficient to require a reversal of the case, the cause is affirmed.

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