text:
    IRVIN HERBERT GORE et al. v. STATE.
    No. A-4595.
    Opinion Filed Sept. 8, 1923.
    Rehearing Denied Nov. 10, 1923.
    (219 Pac. 153.)
    (Syllabus.)
    1. Homicide — Information—Allegation as to Means — Proof. An information charging murder by mortally wounding the deceased with firearms and burning his body will support a verdict of guilty upon proof that death was caused by one or the other, or both.
    2. Evidence — Evidence of Taking Shoes from Accused to Compare with Tracks near Homicide Admissible. Evidence of the taking of the shoes from an accused person under arrest, charged with murder, for the purpose of ascertaining whether they correspond to the tracks found near the place of the homicide under the circumstances here, may be introduced by the state, over the objection of the accused that' evidence so obtained is in violation of his constitutional right to immunity from being compelled to give incriminating evidence against himself.
    3. Evidence — Testimony of Witness at Preliminary Hearing— Predicate Sufficient. There was a sufficient showing made that witnesses who had testified at the preliminary examination were out of the state at the time of the final trial; and the record of their testimony taken at the preliminary trial could be introduced as the deposition of such witnesses on final hearing.
    4. Witnesses — Interrogations of Accused as to Other Convictions. In this state the accused may be interrogated concerning other convictions for crime. Whether an offense involves moral turpitude is not the test in this state.
    5. Trial — Homicide—Instruction as to Sufficiency of Circumstantial Evidence — Evidence Sustaining Conviction of Murder. Instructions examined, and held sufficient.
    The evidence analyzed, and found sufficient to support the verdict.
    Appeal from District Court, Ellis County; T. P. Clay, Judge.

      . Irvin Herbert Gore and another were convicted of murder, and they appeal.
    Affirmed.
    Hoyt & Butler, Adkins & Kimbrough, and Chas. H. Keffer, for plaintiffs in error.
    Geo. F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

Irvin H. Gore and Clyde L. Harwell were jointly convicted of the murder of Lee Duke, alleged to have occurred the 28th day of March, 1922. At the trial, October 7, 1922, by a verdict of the jury plaintiffs in error were found guilty of murder as charged, and their punishment was assessed at imprisonment in the state penitentiary for life. From the judgment on the verdict they bring this appeal.

For convenience in this opinion the plaintiffs in error will be designated as defendants.

The deceased, Lee Duke, in the spring of 1922, arranged with the owner of a ranch in Ellis county, comprising about 20 sections of land, located about 6 miles southwest of Arnett, to permit Duke and these defendants to live in one of the ranch houses, with the privilege of pasturing not to exceed 50 head of live stock there. In consideration of this privilege the deceased and the defendants promised to keep the pasture fences, gates, and the premises generally in repair. Pursuant to this agreement they moved onto the premises and occupied a double house, granary, and stable. Some distance away they constructed a cave or dugout, where, without the knowledge of the ranch owner, they commenced to manufacture whisky. The land thereabouts was of a sandy nature, with clumps of shinnery and plum bushes growing. Shinnery bushes were placed in the mound of sand and earth of which the roof of the cave was made, so that it had the appearance of other shinnery thickets around about.

The defendants claim that the deceased, Duke, had' an arrangement with some person whose name, residence, and identity are not disclosed in the record to dispose of the whisky which they were to make. According to defendants’ testimony, the defendants and the deceased had manufactured about 30 gallons of whisky, and were waiting for this man to come and take it. The parties interchangeably used an old Ford roadster to run errands and bring in supplies. On Monday the defendants were on the premises while the deceased was away. At about 4 o’clock in the afternoon Duke returned, and a half hour later the defendants took the car and started. to go to where their relatives lived in Dewey county, about 30 miles distant, .for the purpose of procuring meat and other supplies, and to visit with their relatives. Duke remained on the ranch premises alone. On the following morning, at sunrise, neighbors saw the ranch house in ñames. A number of persons who saw the fire assembled at the place after the building was nearly consumed, and saw in the ruins the charred body of a man lying on some wire bed springs. By means of a gas pipe they pulled the springs on which the body lay from the burning mass. Later an autopsy was held over this body, which disclosed that this man had first been shot twice, there being two mortal shotgun wounds. The body was identified as the body of Duke by the finding of a gold tooth, a silver finger ring, and portions of unburned clothing corresponding to the clothing last seen on the deceased. The remains of an automatic shotgun belonging to the deceased was also found in the burning embers. No whisky was found anywhere on or about the premises. Some shoe tracks were observed, leading away from tbe house, through some thickets, orchard, and pasture, meandering in different directions, and these tracks were later found to correspond to the tracks made by the shoes taken from defendant Harwell by the officers after his arrest.

Both defendants testified in detail as to their movements from the time they left the ranch until they were arrested the following day. They claim they had a lot of automobile trouble during the night; that their lights would not work, and they borrowed two lanterns from different people along the way; a spark plug had to be cleaned; the timer became disconnected, and, finally, near morning, the car refused to move, and they reclined in the car seat and slept until morning. Their movements, as testified to by them, from the time they left the ranch until about 1 o’clock the next morning were fully corroborated by witnesses for the state. There was no direct corroborating evidence to the account given by defendants covering the time from 1 o’clock a. m. until some time after sunrise that morning.

It was the theory of the state that the defendants shot Duke late in the evening, and then took Duke’s ear and drove to Harmon; that from there, after consultation between themselves, in order to conceal the murder they returned to the ranch early the following morning, and set the house on fire, and then left for the home of some of their relatives in Dewey county, some 30 or more miles distant, where they were seen at about 9 o’clock that morning. The defendants say that they learned from a brother of the deceased late Tuesday that the ranch house had burned, and that Duke was probably burned to death. They then drove back towards the ranch, as they say, to see about it. At an intervening town they put in a long distance call to learn the details, and while waiting for the call to be put through they were arrested. No motive was shown for the killing, either on the part of the defendants or any other person.

The theory of the defendants was that this customer who was to come for the whisky, or some other person who may have known that whisky was there, attempted to take it from Duke by force, and in doing so wounded or killed him, and afterwards burned the house to conceal his dead body. There was no evidence to this effect; it was merely suggested as a possibility or probability, deduced from surrounding circumstances. There was some suspicion against the owner of the ranch, who aided the defendants to make their defense.

There was not much direct evidence implicating the defendants; the evidence pointing to their guilt was largely circumstantial. They and the deceased had been lifelong friend's, and had never had a quarrel nor any misunderstanding, so far as this record shows. The shoe tracks shown in testimony were doubtless made by the defendant Harwell, but the state could not show definitely when they were made. These tracks were at places where these defendants may have been a day or two previous. There' was some testimony tending to show that at the time of the fire there was a saddle horse belonging to Duke in the lot, with fresh perspiration on his back, and a damp saddle blanket and saddle near by. Other witnesses said the perspiration on the horse was dry.

This case was well tried in the trial court, and it has been exceptionally well presented and briefed in this court. The record contains 641 pages, no part of which is superfluous. The recital of further unimportant details in this opinion would prolong the narrative unnecessarily.

The assignments of error which we consider meritorious may be grouped thus:

(1) That the information was indefinite and duplicitous, in that it charged that death was produced by shooting and mortally wounding the deceased and by burning him to death.

(2), That the court erred in permitting the evidence of the identity of shoe tracks shown by placing one of the shoes belonging to defendant Harwell into tracks made in the sand near the scene of the murder, for the reason that the shoes so used were forcibly removed from defendant while under arrest, and that it amounted to obtaining self-incriminating evidence by coercion.

(3) Error of the court in permitting the state to show that the defendants had on previous occasions pleaded guilty or been convicted of offenses not involving moral turpitude.

(4) Alleged erroneous instructions given.

(5) That the evidence is insufficient to support the verdict, in that the evidence amounts to no more than a mere suspicion, and, being circumstantial, does not preclude every other reasonable hypothesis than the guilt of defendants.

The mere fact that an information in one count describes more than one criminal act does not make it defective, provided it clearly appears that the accused is charged with the commission .of but one crime, and where the other crimes stated are descriptive of the ways and means of the commission of the crime charged. Elliott v. State, 4 Okla. Cr. 224, 111 Pac. 820, 140 Am. St. Rep. 683; section 2558, Comp. Stat. 1921; People v. Schiessel, 127 App. Div. 510, 112 N. Y. Supp. 45, and cases treated. The offense charged was murder; the information stated that the offense was accomplished by mortally wounding the deceased with firearms, and burning his body with fire. Defendants’ counsel, with much skill and ingenuity, argue that, if the information states but one offense, then it is incumbent upon the state to prove that the fire was the ultimate cause of death after proof of the mortal gunshot wounds. This court will not indulge such technical refinements. The information charged that the deceased suffered death from the mortal gunshot wounds and from fire following. The primary object of this proceeding was to find out whether these accused were guilty of murder. It would amount to an absurdity to hold that murderers should go free because in a case like this the state was unable to prove that life was extinct before the fire consumed the body, or because it was unable to prove that the gunshot wounds and the fire together caused death. If the proof shows that the defendants were responsible for both the mortal wound and the fire following, with homicidal intent, what right have the defendants to demand that a showing be made that one or the other was the proximate cause of death? For this reason, if a new trial were • granted, and' the pleadings amended as suggested, the accused would not be given any right or advantage not accorded under the information as it stands. This holding is in keeping with principles of common justice and with the spirit of the law as outlined in several different sections of our Criminal Code, among which is section 2564, Comp. Stat. 1921, as follows:

"No indictment or information is insufficient, nor can the trial, judgment, or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”

Section 21 of our Bill of Rights provides that—

"No person shall be compelled to give evidence which will tend to incriminate him.”

A like provision is found in the federal Constitution. Do these constitutional provisions or prohibitions protect one accused of crime and under arrest from being compelled to surrender his shoes to the arresting officer for the purpose of ascertaining whether the shoes fit the tracks found at the scene of the crime? This constitutional right was primarily designed to prevent the ancient practice of extorting confessions from suspected persons by torture — the rack, the thumbscrew, confinement in dungeons, the lash, and other means of physical torture', and in modern times to prevent what is commonly called the “third degree.” These inhuman practices used as a means of obtaining confessions of guilt or for obtaining evidence against others often resulted in the conviction of innocent persons. The prohibition was not designed to protect those guilty of crime or to hamper or prevent the detection of crime, where the means employed have no tendency to fasten guilt upon innocent persons. Every person accused of crime must be accorded every constitutional right; but one accused of crime is not clothed with any sacred or unusual rights, except that he may claim immunity from any and all practices that have a dangerous tendency to implicate those who may be innocent. These being absent^ the paramount inherent rights of society should prevail. Although there are decisions to the contrary, we think the taking of the shoes of' this defendant to see if they fit the tracks found at or near the scene of the murder was not prejudicial, and had no direct tendency to extort or force a confession, or to implicate others who might be innocent. Ricketts v. State, 23 Okla. Cr. 267, 215 Pac. 212.

The principle here .involved is well stated in State v. Graham, 74 N. C. 646, 21 Am. Rep. 493, thus:

“The object of all evidence is to elicit the truth. Confessions which are not voluntary, but are made either under the fear of punishment if they are not made, or in the hope of escaping punishment if they are mad'e, are not received as evidence, because experience shows that they are liable to be influenced by those motives, and cannot be relied on as guides to the truth. But this objection will not apply to evidence of the sort before us. No fears or hopes of the prisoner could procure the resemblance of his tracks to that found in the cornfield. This resemblance was a fact calculated to aid the jury and fit for their consideration. Evidence of this sort is called by the civilians 'real evidence,’ is always admissible, and is of greater or less value according to the circumstances.”

See, also, Wigmore on Evidence, 3123, 3328; Myers v. State, 97 Ga. 76, 25 S. E. 252; State v. Puller, 34 Mont. 12, 85 Pac. 369, 8 L. R. A. (N. S.) 762, 9 Ann. Cas. 648.

It is claimed the court erred in permitting the defendants to be interrogated on cross-examination concerning former convictions of crimes committed by them, not involving moral turpitude. Whether or not an offense involves moral turpitude is not the test in this state. The accused may be interrogated concerning other convictions of crime. Section 585, Comp. Stat. 1921; Hendricks v. State, 23 Okla. Cr. 18, 212 Pac. 330.

The testimony of two witnesses taken at the preliminary examination was reád in evidence, over the objections of defendants. Without a detailed explanation, we hold that the showing made that both witnesses were out of the state constituted a sufficient predicate for the introduction of this testimony in this manner.

Defendants complain of this instruction:

■ “You are instructed that the state relied for a conviction in this case upon what is known as circumstantial evi-deuce; and in this matter you are instructed that, to warrant a conviction upon circumstantial evidence, each fact necessary to the conclusion sought to be established — that is, the guilt of the defendants — must be proved by competent evidence, beyond a reasonable doubt, and that all facts and circumstances proved should not only be consistent with the guilt of the accused, but consistent with each other and inconsistent with any other reasonable hypothesis or conclusion than that of their guilt, and sufficient to produce in your minds the reasonable moral certainty that the accused committed the offense against them. And you are instructed that, when the circumstances are sufficient under this rule herein given you, they are competent, and are to be regarded by the jury as competent for your guidance as direct evidence.”

Defendants say the word “all” and the expression “reasonable moral certainty,” as italicized by us, made the instruction misleading. Under some circumstances such criticism might be seriously considered, but under the evidence here we do not think that the jury could have been misled by this instruction, considered with all the other instructions given. Jurors ordinarily are not expert logicians, capable or prone to analyze language for fine distinctions of meaning. This instruction means, and the jury doubtless understood, that the facts proved as a whole should indicate the guilt of the accused, and should exclude every indication that some other person committed the crime.

It was seriously urged at the trial and in the motion for a new trial, as well as before this court, that the evidence was insufficient to support the verdict. There were and are some good reasons offered to support this claim, such as the want of a proven motive, the failure of the state to show that the accused were in the vicinity of the ranch house in the early morning preceding the fire, the apparently rational explanations of defendants as to their whereabouts, corroborated in many particulars by disinterested witnesses, the reasons given for making a detour out of Harmon to avoid bad roads, their effort to return to the ranch as soon as they were informed of the fire by a brother of the deceased, and the explanations given concerning the tracks, all of which seems natural and reasonable, considering all that appears in this record.

If the writer of this opinion had been a juror he would have hesitated, indeed probably refused, to concur in the verdict as rendered. However, upon questions of fact the jury may have been better able to reach a correct conclusion than the members, of this court. The jurors saw the several exhibits introduced, not transmitted with the record; they saw the defendants and the various witnesses in court, and had an opportunity to observe their demeanor, their apparent candor or want of candor, and whether or not they appeared to be actuated by any bias or ulterior motive. The jurors doubtless considered the fact that the defendants drove out of Harmon at about 1 o’clock of that morning in a direction exactly opposite the town of Yici, their declared destination (this defendants admit, saying they did so to avoid bad roads), considered the fact that defendants purchased and used an unusually large amount of gasoline for a car to have consumed in traveling the distance they say they traveled, considered the fact that during the early portion of the trip, until after midnight, the defendants, especially one of them, appeared to have been under the influence of liquor, and considered the fact that no liquor was found anywhere on the premises after the fire. These circumstances, considered conjunctively, may have justified the jury in finding the defendants guilty, to the exclusion of every other reasonable hypothesis. This court will not, under such circumstances, be justified in substituting its conclusions of fact for those found by the jury. If there is a total want of evidence on some essential point this court would be justified in setting a verdict aside; but, where there is some evidence on all the points involved, this court cannot ordinarily pass on the weight or probative force of the evidence. Subsequent developments may indicate that this is a ease meriting executive clemency.

The judgment of the trial court is affirmed.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    WALT STEEN v. STATE.
    No. A-4265.
    Opinion Filed Nov. 12, 1923.
    (219 Pac. 428.)
    Appeal from County Court, Ottawa County; Q. P. Mc-Ghee, Judge.
    Walt Steen was convicted of selling intoxicating liquors, and he appeals.
    Appeal dismissed.
    A. W. Turner, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

Judgment was rendered on the 18th day of January, 1922. Petition in error and ease-made were filed in this court on the 22d day of March, 1923, 63 days after the rendition of judgment. On the 22d day of October, 1923, the Attorney General filed a motion to dismiss this appeal on the ground that the same was not lodged in this court within 60 days after the rendition of the judgment, no order having been made by the trial court extending the time beyond said 60 days fixed by statute as provided by section 2808, Compiled Statutes 1921. No response has been made to the motion to dismiss the appeal. An examination of the record discloses that the motion is well taken. The appeal is therefore dismissed. Holly v. State, 16 Okla. Cr. 164, 181 Pac. 518; Danna v. State, 16 Okla. Cr. 114, 180 Pac. 869.


text:
    JESSIE STEELE v. STATE.
    No. A-4292.
    Opinion Filed Nov. 12, 1923.
    (219 Pac. 429.)
    Appeal from County Court, Major County; Harry Randall, Judge.
    Jessie Steele was convicted of the unlawful manufacture of intoxicating liquors, and she appeals.
    Appeal dismissed.
    John Y. Roberts, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

This is an appeal from the county court of Major county, wherein, on the 15th day of December, 1921, plaintiff in error was convicted of the crime of manufacturing intoxicating liquor, and sentenced as above indicated. Petition in error and case-made were filed in this court on April 12, 1922, 118 days after the rendition of the judgment. ' No order of the trial court appears of record extending the time to take the appeal beyond the1 60 days allowed by statute in misdemeanor eases. Unless such extension is made by the trial court this court acquires no jurisdiction to entertain the appeal. Danna v. State, 16 Okla. Cr. 114, 180 Pac. 869; Krivanek v. State, 11 Okla. Cr. 172, 144 Pac. 188.

Appeal dismissed.


author: BESSEY, J.

text:
    R. E. GLOVER v. STATE.
    No. A-4107.
    Opinion Filed Nov. 12, 1923.
    (219 Pac. 725.)
    (Syllabus.)
    1. Intoxicating Liquors — Unlawful Possession — Reputation of Place to Prove Intent. Where two gallons and one quart of intoxicating liquor are legally seized by public officers at a place of, public resort, the general reputation of such place as being a place whére intoxicating liquors are kept and sold may be shown, as tending to establish the intent of the person in charge of the place, where such person is charged with illegal possession.
    (a) Rule distinguished from that applying in cases where the offense consists of a single, distinct transaction, as the illegal sale to some designated person, or a specific illegal transportation.
    2. Same — Instruction as to Permitting Possession of Liquors. A criticized instruction relating to “permitting other persons’’ to keep liquor on the premises examined, and held appropriate under the evidence.
    Appeal from County Court, Stephens County; G. T. Burrows, Judge.
    R. E. Glover was convicted of the unlawful possession of intoxicating liquor, and he appeals.
    Affirmed.
    Wilkinson & Saye, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

The plaintiff in error, R. E! Glover, here designated' the defendant, was on the 31st day of August, 1921, in the county court of Stephens county, found guilty of having had illegal possession of two gallons of whisky on the 14th day of June, 1921. The defendant was by the court sentenced to pay a fine of $100 and to serve a term of sixty days in the county jail. From this judgment defendant appeals to this court.

The evidence shows that the defendant had been in Duncan for a period of about six months prior to the trial; that soon after coming to Duncan, in addition to his employment as a service car driver, he owned and operated a sleeping tent. These public sleeping quarters were managed by the defendant and his wife until just a short time prior to his arrest, when he turned over this portion of his business to á Mr. Kelley, still retaining the ownership of the tent. The defendant continued to lodge there and to look ¡after the business in Mr. Kelley’s absence.

I. B. Gossett, chief of police of the town of Duncan, testified that he went to this place and found the defendant in charge, and searched the place with the consent of the defendant, who told the officer that the place belonged to him and to go ahead and make the search; that upon searching he found two gallons of whisky hidden in a nail keg covered with old clothes, and at another place in the tent a quart of whisky; that the place was a public rooming house, or resort — a place where divers persons were in the habit of congregating. Another officer who accompanied the chief of police testified to practically the same state of facts. Both testified in their examinations in chief that the place or resort bore the reputation of being a place where intoxicating liquors were kept and sold, contrary to the law.

The defendant says that he had no previous knowledge that this particular whisky there found by the officers was on the premises, and that he knew nothing of the ownership or the purpose for which it was kept.

The defendant complains that the testimony of these officers and others, to the effect that this place or resort had a general reputation of being a place where intoxicating liquors were illegally kept and sold, was inadmissible and prejudicial. With this contention we cannot agree. In the case of Ward v. State, 15 Okla. Cr. 150, 175 Pac. 557, it was held that, where the evidence discloses the possession of intoxicating liquors in a place of - business, and where the crime charged is the unlawful possession of such liquors with intent to sell, the general reputation of such place as a place where intoxicating liquors are kept for sale is admissible upon the question of intent. If the charge had been a specific sale or a specific transportation, the rule would be different. Hurst v. State, 25 Okla. Cr. 2, 219 Pac. 151. Where an element of the offense is the intent with which the liquor found was kept, the general reputation of the place where it was kept is admissible to corroborate direct testimony indicative of such intent.

It is argued by counsel for defendant that this rule should not apply to a public rooming house or sleeping quarters, such as was shown in evidence here; that the reputation of such a place as being a place where intoxicating liquors were sold would not operate as an asset to the business or an advantage to the owner of the place. We fail to see the foree of this argument. If it were well and commonly known that intoxicating liquors could be purchased at such a place it might materially enhance the popularity of the place with the tippling element of the community, or with transient patrons who frequently make inquiry for such a resort. Indeed, it could easily be carried to such a length that the keeping of roomers would become an incident only to the business of illegally disposing of intoxicating liquors.

Defendant complains of the language used in one of the instructions, namely:

“The law of this state provides that keeping in excess of one quart of any spirituous, vinous, fermented, or malt liquors, or any imitation thereof or substitute therefor, or in any manner permitting any other person to have or keep any such liquors in or about his place of business shall be prima facie evidence of an intention to violate the prohibitory liquor laws.”

This language is fairly declarative of the law found in the statute—

“Or in arty manner permitting any other person to have or keep any such liquors in or about his place of business.” Comp. St. 1921, § 6999.

We conclude, therefore, that the evidence relative to the general reputation of the place where the liquor was found, shown to be a place of public resort, was admissible; that there was an issue of fact fairly before the jury as to the ownership of the liquor, and the purpose of the owner’s possession thereof, and that the finding of the jury upon that issue should not be disturbed, and that the instruction complained of fairly stated the law of prima facie evidence of illegal possession.

The judgment of the trial court is therefore affirmed.

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


author: MATSON, P. J.

text:
    LOVELACE BARNETT v. STATE.
    No. A-4304.
    Opinion Filed Nov. 12, 1923.
    (219 Pac. 726.)
    (Syllabus.)
    Appeal and Error — Necessary Showing, for Reduction of Punishment. Before this court is authorized to modify a judgment of conviction by a reduction of the punishment imposed, it must clearly appear that the punishment imposed is excessive or probably the result of passion and prejudice on the part of the trial jury, or else that some substantial error of law has occurred at the trial prejudicial to the defendant in the amount' of punishment imposed.

      Appeal from District Court, Ottawa County; S. C. Fullerton, Judge.
    Lovelace Barnett was convicted of grand larceny, and lie appeals.
    Affirmed.
    Burns & Turner, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

Conviction for the crime of grand larceny, alleged to have been committed in Ottawa county on or about the 24th day of April, 1921, by stealing certain jewelry of the aggregate value of $280, the personal property of Mr. and Mrs. S. W. Abrams. Judgment was rendered on October 15, 1921. Petition in error and case-made were filed in this court April 15, 1922.

Counsel for plaintiff in error have filed a brief in this case in which they admit that no error of law was committed at the trial, but request this court to examine the transcript of the testimony and modify the judgment of conviction for the following reasons: First, Because the property stolen was afterwards recovered and returned to the owners. Second, Because plaintiff in error had, on May 12, 1923, another judgment affirmed against him in this court in another criminal prosecution, 23 Okla. Cr. 363, 214 Pac. 948. Third, Because the evidence discloses that the plaintiff in error was probably the tool of other persons equally guilty with him who have escaped punishment.

The aforesaid grounds constitute no legal reason for modification of this judgment. Two years imprisonment for the crime of grand larceny in the taking of $280 worth of jewelry is certainly not prima facie evidence of excessive punishment. The other grounds urged might appeal to one having power to exercise executive clemency, but as legal grounds for modification of the judgment they possess no merit. Before this court would be authorized to modify the judgment, some substantial error of law should' be shown. It is admitted by counsel for plaintiff in error that no such error occurred in the trial of this case.

The judgment is therefore affirmed. Mandate forthwith.

BESSEY and DOYLE, JJ., concur.


text:
    J. V. WELCH v. STATE.
    No. A-4308.
    Opinion Filed Nov. 17, 1923.
    (219 Pac. 951.)
    Appeal from County Court, Cotton County; J. C. Norman, Judge.
    J. V. Welch was convicted of the unlawful manufacture of intoxicating liquors, and he appeals.
    Reversed.
    Hays Dillard, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

Appeal from the county court of Cotton county. Conviction for unlawful manufacture of intoxicating liquor, to wit, corn whisky. Punishment fixed at a fine of $100 and imprisonment in the county jail for 30 days. Judgment rendered February 28, 1922. Petition in error and case-made filed in this court April 18, 1922.

Among the errors assigned are that the trial court erred in refusing to direct the jury to return a verdict of not guilty because of the insufficiency of the evidence and refusal to grant plaintiff in error a new trial for that reason. Plaintiff in error was charged with the crime of manufacturing com whisky. There is no evidence in the record to show that he ever at any time manufactured com whisky. The only evidence that in any way tends to connect him with such crime is that, on a search of his premises, three pints of whisky were found concealed in a barn over which the plaintiff in error had control. Had this prosecution been for unlawful possession of intoxicating liquor with intent to sell the same there would have been .more substantial evidence to sustain the verdict and judgment, but such offense is not necessarily included within the charge of manufacturing whisky, and the mere proof of possession of whisky, together with slight circumstantial evidence tending to prove intent to sell, is not sufficient to sustain a conviction for unlawfully manufacturing the whisky possessed, even if possession be conclusively proved to be in the accused.

The Attorney General has filed a brief in this case virtually admitting that the evidence is insufficient to sustain the verdict and judgment. With such conclusion we agree, and for reasons stated the judgment is reversed.


author: PEE CUEIAM.

text:
    JOE HAMILTON et al. v. STATE.
    No. A-4247.
    Opinion Filed Nov. 17, 1923.
    (219 Pac. 951.)
    Appeal from County Court, Dewey County.
    Joe Hamilton and another were convicted of petit larceny, and they appeal.
    Eeversed and remanded.
    W. P. Hickok, for plaintiffs in error.
    The Attorney General, for the State.
   PEE CUEIAM.

Appeal from judgment of conviction rendered in county court of Dewey county January 6, 1922. Petition in error with case-made attached filed in this court March 16, 1922. Information charged the theft of one overcoat, the property of Leonard "Walker, of the value of $10, alleged to have been committed by plaintiffs in error on November 16, 1921. Each plaintiff in error fined $25 and costs of prosecution. The principal contention is that evidence is insufficient to sustain conviction.

This conviction is based solely on circumstantial evidence, and an examination of the record discloses that the evidence adduced by the state against plaintiffs in error is not sufficient to meet the requirements of the rule that the facts and circumstances proved must not only be consistent with and point to guilt, but that they must be inconsistent with innocence.

The plaintiffs in error were high school1 students attending a basket ball game at another school in the county, and left their Ford car parked on or near the school grounds; the game was played after dark in the school building, and the overcoat was taken some time during the game. Plaintiffs in error discovered the coat in the car the next morning, and before leaving for their home made inquiry to discover its owner, and gave information that they were in possession of it. Not discovering who the owner was, they took the coat with them, and upon their return to their own school the next day, and while in school, their car was searched, and the coat discovered under the back seat, where they had put it. There is no evidence to connect these plaintiffs in error with the original taking of the coat. The conviction is based upon possession by them the next day. How the coat got into their car the plaintiffs in error do not pretend to know. Whether it was a prank of some one attending the game or the intentional act of an enemy to fasten this crime on plaintiffs in error may either be inferred from the proof with more certainty than that either of these parties deliberately stole the coat. Certain ill feeling on the part of others attending the game was shown to' exist against plaintiffs in error. On the other hand, it is also shown that plaintiffs in error had no nse for the coat, as they both had overcoats better than the one alleged to have been stolen. These yonng men bore good reputations, and had never previously been charged with crime. Their conduct on finding the coat was not such as conclusively to indicate guilt. On the other hand, the preponderance of evidence and the inferences arising therefrom are entirely consistent with innocence, and reasonably explainable on that hypothesis. They should not be branded' with the stigma of having committed a crime on circumstantial evidence which, at most, if unexplained, would raise only a suspicion of guilt.

The judgment is reversed as to each plaintiff in error, and the cause remanded to the trial court, with direction to dismiss the cause unless additional proof may be possessed by the prosecuting officers to indicate an unlawful taking of this property by the accused.


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    T. S. BASON v. STATE.
    No. A-4564.
    Opinion Filed Nov. 17, 1923.
    (219 Pac. 952.)
    Appeal from County Court, Pottawatomie County; Clarence Bobison, Judge.
    T. S. Bason was convicted of the unlawful possession of intoxicating liquor, and he appeals.
    Bemanded, with directions to abate.
    T. Gr. Cutlip, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff! in error, T. S. Bason, was convicted, in tbe county court of Pottawatomie county, on an information charging tbe unlawful possession of intoxicating liquor, to wit, corn whisky, and was sentenced to be confined in the county jail for 30 days and to pay a fine of $50 and the costs. From the judgment an appeal by case-made and.petition in error was perfected by filing the same in this court on February 7, 1923.

Since the appeal was taken and before the final submission of the cause, suggestion of the death of the plaintiff in error has been made, and his counsel of record has for this reason filed a motion to abate the cause, stating that plaintiff in error died on October 24, 1923.

In a criminal action, the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death. It is therefore considered and adjudged that the proceedings in this cause and especially under the judgment rendered therein do abate.

The cause is therefore remanded to the county court of Pottawatomie county, with direction to enter its appropriate order to that effect.


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    KENNETH DENNISON v. STATE.
    No. A-4242.
    Opinion Filed Nov. 17, 1923.
    (219 Pac. 957.)
    (Syllabus.)
    1. Rape — Evidence Sustaining Conviction for Assault with Intent to Commit Rape. In a prosecution for assault with intent to commit rape, evidence examined and held sufficient to sustain the verdict and judgment.
    2. Same — In Assault on Female Under Age of Consent — Proof of Nonconsent Unnecessary. In a prosecution for an assault upon a female under the statutory age of consent with intent to commit rape, it is not necessary to prove that the acts were done against her will. Whether she consented, submitted, or resisted is wholly immaterial.
    3. Appeal and Error — Harmless Error — Instructions in Prosecution for Assault with Intent to Commit Statutory Rape. In a prosecution for assault to commit rape, the trial court necessarily had to define the crime of rape as applied to the facts in the case, and, although it was unnecessary for the court to state in such instructions the punishment applicable to certain degrees of rape, such error did not prejudice the defendant.
    4. Appeal and Error — Necessity for Showing Prejudicial Error— Instructions. This court is not authorized to reverse a judgment of conviction because of erroneous instructions unless, after an examination of the entire record, it appears that the error complained of probably resulted in a miscarriage of justice, or else constitutes a substantial violation of the constitutional or statutory right of the defendant.
    Appeal from District Court, Woods County; Arthur Q-. Sutton, Judge.
    Kenneth Dennison was convicted of assault with intent to commit rape, and he appeals.
    Affirmed.
    This is an appeal from a judgment rendered in the district court of Woods county on the 13th of October, 1923, in accordance with a verdict finding the plaintiff in error (hereinafter referred to as defendant) guilty of the crime of assault with intent to commit rape and fixing his punishment as above stated.
    The information charged the offense to have been committed on one Agnes Mitchell on or about the 26th day of June, 1921. Agnes Mitchell at that time was a girl about 16 years of age and had been attending the Alva high school. The defendant at the time of the commission of the alleged offense was about 18 years and 6 months old. The defendant and prosecutrix were not acquainted with each other prior to the occasion of their meeting on June 26, 1921, and had never been in company with each other.

      On the evening of June 26, 1921, which was Sunday, Agnes Mitchell, Frances Shaw, and Etta Gibson, whose respective ages were 16, 15 and 15, and who were friends to each other and students in the Alva high school, went together to attend certain Chautauqua exercises which were then being conducted in the city of Alva. There had been a slight rain that afternoon, and after having gone to the Chautauqua entertainment, because of the threatening of rain, these three girls concluded that they would return to their respective homes before the entertainment was over. They started on their journey homeward, walking together, when they were overtaken by the defendant Kenneth Den-nison, Lee Schultz, and Mortimer Welsh, who were all riding in a Ford car belonging to the defendant and driven by him. It appears that Lee Schultz lived near the prosecutrix and was acquainted with her and the other girls, as was also Mortimer Welsh; that the defendant was acquainted only with Etta Gibson. They asked the girls to take a ride with them, but the girls refused to go. Whereupon the boys drove to the public square in the city of Alva, and there Lee Schultz alighted from the car, after which Dennison and Welsh again accosted the girls to take a ride with them, and Etta Gibson said that she had to go home, and according to the testimony of the prosecutrix and that of Frances Shaw they each stated' that they wanted to go home. Whereupon the boys said get into the car and they would take them home. The girls got into the automobile, and at the request of Etta- Gibson the boys drove around the public square, a couple of times and then took Etta Gibson home, where she got out of the car. Instead of taking Agnes Mitchell and Frances Shaw home, Dennison drove out west of Alva to a park known as Hatfield’s Park; the prosecutrix contending that she protested and requested the defendant to take her home, as did also Frances Shaw. Then they drove into the park. According to the state’s witnesses, Dennison promised to turn around in the park and take them back home, but instead of doing so he drove down into the park, turned his car around, stopped' the engine, turned out the lights, and then began an assault upon the person of the prosecu-trix, Agnes Mitchell, who was sitting in the right side of the front seat with him. About the same time Mortimer Welsh began to act familiar with Frances Shaw, who was sitting in the rear seat with him, and the Shaw girl jumped out of the rear seat, stating that she was going to walk back to Alva, and Welsh jumped out behind her and walked up to her and persuaded her not to walk back to Alva. This consumed at least five minutes of time. The Shaw girl and Welsh then returned to the car, where they had left the defendant and Agnes Mitchell, and according to the testimony of the Shaw girl the defendant was over on top of the Mitchell girl and the Mitchell girl was asking for help and endeavoring to prevent the defendant taking liberties with her. The Shaw girl then requested the Welsh boy to help the prose-cutrix, but Welsh refused, stating that he did not see that she needed any help or that the defendant was doing anything that required interference by him. Whereupon the Shaw girl started to another car which was parked out there some 30 or 50 yards distant, and Welsh immediately followed her. In a short time the Mitchell girl came running over to this other car; her hair was disheveled, her clothes torn, and shortly after reaching the car she fainted. The defendant also shortly thereafter came over to the other ear, and the Shaw and Mitchell girls (after she had been revived) requested the young men who were in the other ear to drive them back to their homes, which was done. When the Mitchell girl reached home, she was nervous, excited, and crying, with the left sleeve of her dress torn nearly out and the dress unbuttoned behind. She immediately made complaint to her mother and stepfather, who were then at home-. Her stepfather was a commercial traveler and had to leave on his trip in about 30 minutes after the girl reached home and did not return until about a week later, after which time these proceedings were instituted against this defendant.
    The testimony of the prosecuting witness is amply sufficient to sustain the verdict and judgment, corroborated as it is by that of all of the disinterested witnesses in the ease.
    The defendant took the witness stand in his own behalf and introduced also his companion on that trip, Mortimer "Welsh, as a witness. The theory of the defendant was that the Mitchell and Shaw girls were both willing to take a joy ride on that occasion, and that they had hardly got outside of the limits of the city of Alva when they began to love and caress these young men, and that they merely returned the affections bestowed so willingly upon them, and that the defendant had no intention of committing a rape upon the prosecuting witness, and that he only hugged and kissed' her and “petted her,” as was customary on such occasions within the confines of Hatfield’s Park. The admitted conduct of the prosecuting witness and of the Shaw girl brand as likely fabrications the testimony of both Welsh and the defendant.
    C. H. Mauntel, for plaintiff in error.
    George F. Short, Atty Gen., and John Barry, Asst. Atty. Gen., for the State.
   MATSON, P. J.

(after stating the facts as above). It is insisted that the evidence is insufficient to sustain the verdict and judgment; that at most it merely indicates that the prosecutrix was at all times willing to go to Hatfield’s Park; that she made no objection to going there; that she was anxious and willing to be “petted” by the defendant in the ear; that she did not begin to struggle or complain that the defendant was trying to use improper means or to employ improper methods toward her until she was discovered in a compromising position by Frances Shaw and Mortimer Welsh when they returned to the car.

While the testimony of the defendant and of Welsh might support such theory, the testimony of the other witnesses substantially contradicts any such position and indicates clearly that the defendant assaulted the prosecuting witness with improper motives and with intent to have intercourse with her willingly if she would submit and otherwise if she would not submit. The evidence in this case discloses that the prose-cutrix was of the age of 16, of previous chaste and virtuous character, and that the defendant was at that time over the age of 18 years. It would be immaterial, therefore, whether the prosecutrix resisted or not if the defendant took such liberties with her that clearly indicated an intention upon his part to have sexual intercourse with her. Lee v. State, 7 Okla. Cr. 141, 122 Pac. 1111.

We do not mean to say, however, that the evidence in this record indicates without contradiction that the prosecutrix was a willing subject, or that there is no substantial evidence that the defendant used force upon her against her will and resistance. In fact, the more credible evidence is to the effect that the defendant assaulted the prosecutrix against her will, that she resisted’ his attacks, and that his intention was to accomplish an act of sexual intercourse with her by means of force, and we consider the evidence amply sufficient to sustain the judgment and decline to disturb the finding of the jury upon the ground of the insufficiency of the evidence.

It is next contended that the trial court erred in defining certain degrees of rape and stating the punishment imposed for such grades of rape in the instructions to the jury. In this connection it is contended that such instruction, while technically correct, had no bearing whatever on the ease. We cannot altogether agree with this contention. Perhaps it was unnecessary for the court to state the punishment applicable to certain degrees of rape, but that did not necessarily injure the defendant in the trial of this ease. Necessarily, in order to determine whether or not the defendant intended to commit the crime of rape upon the prosecutrix, the trial court had to instruct the jury just what the crime of rape was as applied to the facts in this case, and an examination of the definitions of rape as given discloses that the instructions defining rape- were applicable to the facts of the case. We find, therefore, no error in the instructions sufficient to authorize a reversal of the judgment upon this ground.

After the jury had retired to consider of their verdict, they were returned into open court and in the presence of the defendant the following proceedings were had:
“By the Court: Have you agreed on a verdict, gentlemen?
“By the Foreman: No, sir; we have not. We would like some instructions.
“By the Court: All right, what is it?
“By the Foreman: If the court please, we would like to know if we could be permitted by law, if we find this defendant guilty — have we got the right to send him to the reform school instead of the penitentiary?
“By the Court: Under an executive order of the Governor no person under the age of 25 who has committed his first crime shall be sent to the penitentiary, but every such person must be sent to the reform school, and even though you should fix the penalty in the penitentiary the court would be required under the executive order, to send him to the reform school instead of the penitentiary. So in the event you find the facts to be such that you fix the penalty, you may fix it in the reform school instead of the penitentiary, if you so desire; but even if you fix it in the penitentiary, as I stated, the court will be required to send him to the reform school because of his first offense. Anything further, gentlemen?
“By the Foreman: I believe that is all.
“By the Court: Very well, you may retire.
“By Mauntel: To all of which remarks of the court the defendant objects and excepts.” '

Thereupon the jury retired in charge of their bailiff and thereafter returned a verdict finding the defendant guilty as charged and fixing his punishment at one year and one day in the reformatory.

Counsel for defendant in arguing this assignment of error has the following to say:

“The jury doubtless did denounce the practice of these young people, they doubtless felt that some punishment should be meted out, and the court misdirected the jury by telling them that the defendant instead of going to the penitentiary or reformitory at Granite should be sent and would be sent to a reform school, such as this state maintains at Pauls Valley; and it was upon this instruction that the jury finally agreed to find the defendant guilty and fixed the penalty at one year and one day in the reformatory. This instruction, taken in conjunction with instruction No. 3, had the exact effect of convicting this defendant for acts which do not constitute a crime against the laws of this state, but which are reprehensible probably from a moral standpoint, but are not denounced by the criminal laws of this state.”

With reference to the punishment to be assessed for the crime charged, the court in the general charge to the jury gave the following instruction:

“No. 4. Any person who is guilty of an assault with intent to commit any felony, except an assault with intent to kill, is punishable by imprisonment in the state penitentiary not exceeding five years, or in a county jail not exceeding one year, or by a fine not exceeding $500, or by both such fine and imprisonment.”

No objection was made or exception taken to the latter instruction. It appears from such instruction that the jury were told that if a punishment exceeding one year were to be imposed, the place of imprisonment of necessity should be in the state penitentiary; if less than one year, in the county jail; or if a less punishment than that were imposed, then a fine not exceeding $500, and in addition the jury were told that they might impose both a fine and imprisonment in the eounty jail. The verdict of the jury clearly indicates, considering the instructions together, that they intended' to impose a higher punishment than by imprisonment in the county jail or else they would not have fixed the term of imprisonment at one year and one day. They were evidently not misled by the use of the words “reform school.” There is no penal institution in this state known as a “reform school.” There is a state training school for juvenile offenders between the ages of 10 and 16 years located at Pauls Valley. The defendant being over the age of 18 years would' not be subject to admission under any circumstances to that institution. To say that the jury would not have found him guilty had they not believed they could send him to such institution seems wholly without merit when, under the court’s instructions, the jury were at liberty to impose only a fine upon the defendant without imprisonment at all, and yet the jury refused to assess only a fine as punishment or even a small term in the county jail which they had liberty to do under the court’s instruction. We think it is a fair inference from the verdict and all the instructions given that the jury was not misled by the reference made to a “reform school.” The jury fixed the place oí imprisonment not in the “reform school,” but in the reformatory, and the state has such an institution located at Granite, OMa., and the judgment of the court conformed with the verdict and fixed that place as the place of imprisonment under the verdict. This assignment of error in our opinion is clearly speculative, and to reverse a judgment of conviction and remand the cause in the face of the facts would, as we view it, do violence to that provision of our Code which requires this court not to set aside a judgment on the ground (among others) of the misdirection of the jury unless it appears in the opinion of this court that the error complained of has probably resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right.

The defendant had no right in the first instance to demand that he be imprisoned in the state training school for juvenile offenders. Upon conviction he could only be imprisoned in the reformatory at Granite or in the county jail or else punished by fine. The jury had the opportunity to imprison him in the county jail or by fine and refused to do so.

Careful and painstaking consideration of the record convinces the court that the defendant had a fair and impartial trial, and that he was ably defended in the lower court, and that no error occurred prejudicial to his substantial rights.

For reasons stated, the judgment is affirmed.

BESSEY and DOYLE, JJ., concur.


author: DOYLE, J.

text:
    HIRAM MARSHALL v. STATE.

      No. A-4371.
    Opinion Filed Nov. 17, 1923.
    (219 Pac. 955.)
    (Syllabus.)
    Intoxicating Liquors — Evidence Insufficient to Sustain Conviction for Unlawful Sale. In a prosecution for selling intoxicating liquor, evidence reviewed, and held insufficient to support the verdict and judgment of conviction.
    Appeal from' County Court, Pawnee County; Cbas. Verne, Judge.
    Hiram Marshall was convicted of violation of the prohibitory' liquor law, and he appeals.
    Reversed, and new trial granted.
    McCollum & McCollum and T. S. Hurst, for plaintiff in error.
    George F. Short, Atty. Gen., and Baxter Taylor, Asst. Atty. Gen., for the State.
   DOYLE, J.

In the information in this case Hiram Marshall was charged with having sold one-half pint of whisky to one Ernest Wichita. Upon his trial the jury found him guilty and fixed his punishment at confinement in the county jail for 60 days and’ a fine of $200. His motion for a new trial was denied, and he appeals from the judgment rendered in pursuance of the verdict.

In order to present the question raised as to the sufficiency of the evidence, we will briefly state the same.

The state relied for this conviction upon the testimony of Ernest Wichita, who testified:

“I saw the defendant by Katz’s corner or Roe’s Grocery Store. I wanted to buy some whisky that day. I had an idea he had some. I asked him, and he said, ‘Yes,’ that he would be back in a few minutes. I told bim I would wait for him. It was not long until he came back with a half pint. I tasted it, to see if it was whisky, then put it in my pocket. I paid him $2 there on the street in front of Roe’s Grocery Store. I was in the back end of Katz’s store when he gave me the whisky. Somebody saw me, I guess, putting this whisky in my pocket, and just as soon as I got out of the store the city marshal came and got me.”

His cross-examination was as follows:

“Q. What time of the day was it? A. Along in the evening.
“Q. Would you say it was as late as 2 o’clock? A. Right about 2, a little after.
“Q. How long had you known the defendant? A. I did-n’t know him.
“Q. Had you seen the defendant at any other place in Pawnee on that day? A. No, sir.
“Q. Were you down at Kelly’s Feed Yard that morning? A. Yes, sir.
“Q. And one Blaine was with you? A. Yes, he was at the yard.
"Q. You boys were about to have a fuss? A. He claimed we were.
“Q. Now in this difficulty in the wagon yard, Tine Kelly finally told you to go? A. Yes.
“Q. Did you see the defendant there that morning? A. No, sir; I did not see him.
“Q. How long had it been since you had a drink? A. I had a drink that morning, extract.
“Q. You say you saw the defendant there in front of Roe’s Grocery, and he said he would go and get this liquor? A. He said he would be back.
“Q. How long was he gone? A. About an hour.
“Q. Did you go back to Kelly’s Yard alter Blaine left? A. Yes, I went down there just to let him know I didn’t come there for any trouble.
“Q. Did you see the defendant when you went back the second time?. A. No, sir.
“Q. You had drank some extract that morning before you went to the yard? A. Yes.
“Q. Did you have enough to make you intoxicated? A. No, I knew what I was doing, all right.”

C. H. Wilkerson, city marshal of Pawnee, testified:

“About 1 or 1:30 Constable Callahan told me that Wichita’s father-in-law reported that. Wichita had a gun on him and that he was afraid. I told Callahan that the first one that saw him would search him for this gun. In about two hours, or something like that, he came in a ear, and Callahan remarked, ‘There is Ernest now,’ so we took him over to the jail and in searching him for the gun we found this bottle and turned him and the bottle over to sheriff.”

As a witness in his own behalf the defendant testified:

“I buy and sell horses and keep my live stock at Kelly’s Yard, and I work for Kelly. I saw Wichita, the complaining witness, at the yard that morning about 8 o’clock, talking to another Indian, Elmer Blaine. I thought they were going to fight. Mr. Kelly ordered them out of the yard. Shortly afterwards Wichita came back, and he and Mr. Kelly had some words, and Kelly ordered him out of the yard. Wichita started towards a neckyoke, but Mr. Kelly beat him to it and made him go out of the yard. At 9 o’clock I went over and dragged the race track until nearly noon, then came back with Mr. Hulse and went home to dinner, then went back to the yard. Doc Rule and I went uptown, and we met Mr. Wilkerson, city marshal, in front of the picture show, and I talked to him about the races. Then we returned tó the yard. I didn’t see Wichita on that trip. I did not sell Wichita any whisky, I never did sell any whisky. I don’t drink at all. I don’t know that I ever tasted whisky; that Wichita seemed to be intoxicated when he was at the yard that morning. This was the first time I was ever arrested. ’ ’

Tine Kelly testified:

“I run a feed yard, and I am a member of the city council. I have known the defendant four or five years. I have known Wichita four or five years. He came to my yard that morning drunk, and called to Elmer Blaine to come over. They commenced talking angry, and I thought they were about to get into a fight, so I told them to go out on the street. They went out, and Wichita pulled off his coat. Shortly afterwards Wichita came back and jumped on me, saying that ,he could go any place he wanted to and I could not make him get out. I told him to get out, and he started for a neckyoke. I beat him to it and made him get out. The defendant was standing there at the time. I never did see the defendant have any whisky. About 2 o’clock the defendant and Doe Buie went uptown. I rode up horseback and saw them talking to City Marshal Wilkerson, then they came back to the bam.”

B. W. Buie testified:

“I am a veterinarian. I was at Kelly’s barn that morning and heard Wichita and another Indian quarreling. Kelly ordered1 them out of the yard. A little later Wichita came back to the yard and raised a quarrel with Kelly and started to get a buggy neckyoke, and Kelly picked up the neckyoke and told Wichita to get out and stay out of the yard. The defendant was standing by Kelly when the trouble occurred. He passed me as he left the yard, and I heard him say, ‘I will get both of you son-bitches before night.”

George Osborne testified:

“I was at the blacksmith shop across from Kelly’s feed barn. About half past 1 or 2 o’clock the defendant called him over and wanted to trade horses. We talked trading for about an hour and finally traded about 3 o’clock, when one of the city marshals came down and arrested the defendant.”

One of the grounds of the motion for new trial assigned as error is that the court erred in requiring the defendant to go to trial in the absence of his regular counsel, T. S. Hurst.

In support of this ground, T. S. Hurst testified that he had known the defendant for several years and was employed by him as counsel in this ease, about the 5th of May; that he talked with the county attorney about setting the case the following week, but did not agree upon a definite date; that on Sunday morning before May 8th, he was called1 to Oklahoma City on another case; that he thought he would be back on the Monday following; that prior to that time he had made no definite arrangements for witnesses; that part of his defense was going to be that the prosecuting witness is a disreputable Indian, and is not worthy of belief, which fact he could prove by a large number of the best citizens of Pawnee; that he was also going to introduce testimony to the effect that defendant was a man of good repute; that he knew defendant for several years at Okemah, and he was never suspected of being a bootlegger there, but was always a good citizen.

C. C. McCollum testified that he was the attorney who represented the defendant on May 8th, 'that he did not know defendant prior to that time and had not seen him until about 20 minutes to 10 that morning, when defendant came to his office and said that he had employed Mr. Hurst to look after his case, that Mr. Hurst had not returned and his case needed immediate attention, that he talked with the county attorney and advised that Mr. Hurst had made arrangements to go ahead with the case that morning, and the jury were already in the courtroom, that he consented to go to trial as a matter of accommodation to Mr. Hurst.

It is strenuously urged that the evidence was insufficient to sustain the verdict, and that the verdict is the result of passion and prejudice, and that the punishment assessed by the jury is excessive.

Carefully considering all the evidence in the case, we do not believe that it is sufficient to warrant the verdict of the jury. The only fact admitted or established beyond any reasonable doubt was the possession of a half pint of whisky by the complaining witness. His testimony is certainly contradictory as to the other essential facts. He first states that he purchased and paid for the whisky on the street, that the defendant told him to wait there and he would return in a few minutes, and that it was not long until the defendant came back with a half pint. On cross-examination he states that the defendant was gone about an hour before he returned, and that he gave him the whisky in Katz’s store. He also states that as he left the store the officers arrested him. These officers testify that they had been looking for him for about an hour and a half when he drove up in a car and they arrested him.

In view of the facts disclosed by the record, when the testimony of the witness Wichita is analyzed and given its proper force, it cannot be said that it is sufficient to satisfy any fair-minded man of the defendant’s guilt beyond a reasonable doubt.

The judgment of the county court is therefore reversed, and a new trial granted.

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


text:
    E. T. COX v. STATE.
    No. A-4290.
    Opinion Filed Nov. 24, 1923.
    (220 Pac. 70.)
    (Syllabus.)
    1. Robbery — Evidence Sustaining Conviction. Evidence examined and held sufficient to sustain the verdict and judgment.
    2. Appeal and Error — Review—Objection to Information First Made on Appeal. Where the defendant, in this court, for the first time objects to the sufficiency of the information, the objection should be overruled if, by any intendment or presumption, the information can be sustained.
    3. Evidence — Admissibility of Evidence Although Tending to Prove Other Offenses. Evidence that the defendant, at the time he was arrested, was armed, resisted arrest, and attempted to escape, is competent, and the admissibility of such evidence is not affected by the fact that incidentally it tended to prove the defendant guilty of other offenses.
    4. Trial — Instructions as to Lower Degree ,of Crime Unnecessary Where no Evidence. The trial court is not required to instruct as to the lower degree of the crime charged, if there is no evidence tending to reduce the crime to such degree.
    Appeal from District Court, Oklahoma County; Hal Johnson, Special Judge.
    E. T. Cox was convicted of robbery, and he appeals.
    Affirmed.
    On the 2d day of April, 1921, the county attorney of Oklahoma county filed in the district court of said county an information charging plaintiff in error, E. T. Cox (hereinafter referred to as defendant), with the crime of-robbery, alleged to have been committed by him on the 7th day of March, 1921, by taking $10 in money, of the personal property of R. S. Burkhart, from the possession and person of said Burkhart, against his will, and by fear of immediate death caused by a revolver had and held in the hands of the said E. T. Cox.

      Succinctly stated, the facts are about as follows: Burk-hart, the complaining witness, was a single, man about 48 years of age and engaged in the business of electrical contracting, with his place of business located on West Second street, between Broadway and Bobinson streets, in the city of Oklahoma City. On the night of March 7, 1921, he had attended a show at the Majestic Theater, and there met a young lady by the name of Dorothy Bue, and made an engagement to later call on her and her sister at their residence on West Third street in Oklahoma City. After leaving the show Burkhart went to his place of business and there engaged for a time in working on his books, after which he closed his office and' started west on Second street to fill his engagement with these young ladies. He had walked to near the corner of Second and Dewey when, according to his testimony, he was accosted by a man who told him to “stick ’em up,” and who backed him into an alleyway at the side of a brick building standing there, and who there, at the point of a revolver placed in his back, relieved him of $10 in currency, and also at the time took from his person a Columbian half dollar which Burkhart was carrying as a pocket piece, but which coin the robber returned to Burkhart at Burkhart’s request. Burkhart also claims that he saved a valuable watch that he was carrying by withdrawing the same from his pocket and holding the same between his body and the wall of the brick building, with his body pressed against the watch. There was an electric light burning at the corner of Second and Dewey, the robber was unmasked, and Burkhart claims that he was able to obtain a good view of the robber by means of the light reflecting on the robber’s face at the time of the robbery.
    After relieving Burkhart of this money, the robber compelled him to walk west in an alleyway between Second and Third streets and ordered him not to look back. Upon being thus commanded, Burkhart walked west in the alley to the west side of Dewey street, and there turned around, and the robber was nowhere to be seen. Burkhart then retraced his steps, going east on Second to Hudson street, and looked in several places to see if he could find the robber, but, being unable to locate him, he then went east to Broadway, where he notified an officer of the holdup and was there directed to go to the police station and make a report of same, which he did, giving a detailed description of the man whom he alleged had robbed him. C. C. York, an officer then on duty, was detailed to go with Burkhart in search of the robber, and they made a trip in a car looking for the robber, but failed to find any one answering the description. Later on that night, however, York, in the absence of Burk-hart, picked up a young man whom, he thought answered the description that Burkhart had given and took this young man to the police station. Later Burkhart was called, and the young man was discharged.
    Nothing happened in connection with the search for the robber until the next night, when York took his car, a sawed-off shotgun and his revolver, and started out again in search of the man. He drove up to the intersection of Second and Dewey street and turned north on Dewey, and as he did so the lights on his automobile shown brightly upon a man who was standing in the alleyway between Second and Third Street on the west side of Dewey. York passed in the car and dove north to Third street, where he turned around and drove back along the west side of Dewey street to the point where he had seen the man standing. Drawing the shotgun, York told the man he was an officer and to come to him, but before doing so York had seen two bright objects, one in each hand of the man. Instead of coming to York the man backed np against a hedge fence and threw one of the objects over the fence and then started to run. York followed him up to Third street and west along Third street for a block or more and fired one shot to frighten him when the man darted in behind a house. York, however, was close upon him and accomplished his arrest, placing handcuffs on him. This man proved to be the defendant, E. T. Cox. He was possessed of a nickel-plated, long-barreled, 22 revolving pistol, which he had thrown over the hedge when the officer accosted him, and also a search light. He fully answered the description given by Burkhart to the officers the night before. After his arrest he was taken to the police station, and the prosecuting witness Burkhart was called and there identified him as the man who had robbed him the night before. Burkhart had given a description to the officers of the person who robbed him, including the statement that the man carried a long-barreled nickel-plated revolver and a search light at the time he was robbed, having used the search light to distinguish the Columbian half dollar at the time he returned it to him (Burkhart).
    The defense interposed was an alibi — the defendant claiming that he was at the home of his mother and father at 4121/2 West Reno in Oklahoma City that night, that his mother was sick and that he waited upon her and gave her certain medicine at intervals of two hours apart, one dose at 8 o’clock and another at 10 o’clock, after which he retired. The robbery occurred at about 10:20 p. m. Defendant admitted, however, that he left the premises to mail a couple of letters between the hours of 9 and 10 and that he was gone only a few minutes, which were not sufficient to. permit him to have committed this robbery. Defendant was corroborated by certain of his relatives and intimate friends who lived at the rooming house.

      There are other facts and circumstances in evidence which are not necessary to detail, and which do not involve any legal propositions presented in this appeal.
    O. T. Shinn, for plaintiff in error.
    George F. Short, Atty. Gen., and Baxter Taylor, Asst. Atty. Gen., for the State.
   MATSON, P. J.

(after stating the facts as above). It is first contended that the evidence is insufficient to sustain the verdict and judgment. While there is a sharp conflict in the evidence, if the evidence introduced by the defendant and his witnesses was to receive credence by the jury to the exclusion of the state’s evidence, an acquittal should have resulted. On the other hand, the evidence as to the identification of the defendant by the prosecuting witness was positive, and supplemented as it was by the subsequent attempt of the defendant on the occasion of his arrest to escape and his explanation for being at the place where he was arrested at the time of his arrest, and the further fact that the prosecuting witness gave the police, immediately after the robbery, a detailed description of the person who robbed him, which tallied with the defendant, and also that defendant carried, when arrested, a pistol and search light like those described by the prosecuting witness before any arrest was made, all point conclusively to his guilt, and convince this court that the jury made no mistake in the conclusion reached.

It is well established in this jurisdiction that, a judgment of conviction will not be reversed because of the insufficiency of the evidence, where the evidence is conflicting, if there is evidence in the record, apparently credible and competent, from which the jury could reasonably and rationally conclude that the defendant was guilty of the crime charged. High v. State, 9 Okla. Cr. 523, 132 Pac. 509; Curry v. State, 9 Okla. Cr. 38, 130 Pac. 513; Dotson v. State, 14 Okla. Cr. 50, 166 Pac. 902; Prather v. State, 14 Okla. Cr. 327, 170 Pac. 1176.

Next it is contended that the information is insufficient to charge the crime of robbery. The information was not demurred to in the lower court, neither was any motion in arrest of judgment interposed on the ground of the insufficiency of the information to state facts sufficient to charge the crime of robbery. ,

While the information is somewhat inartifieially drawn and does not go into detail as to the manner of the use made by the accused' of the revolver alleged to have been had and held by him, we deem it sufficient by inference and intendment to charge the crime of robbery.

It has been repeatedly held by this court that, where a defendant goes to trial and for the first time objects to the indictment or information when the state attempts to introduce testimony thereunder or upon appeal, or by habeas corpus, the objection should be overruled, if, by any intendment or presumption, the indictment or information can be sustained. McDaniel et al. v. State, 8 Okla. Cr. 209, 127 Pac. 358; Wilsford v. State, 8 Okla. Cr. 535, 129 Pac. 80; Edwards v. State, 5 Okla. Cr. 20, 113 Pac. 214; White v. State, 4 Okla. Cr. 143, 111 Pac. 1010; Ex parte Spencer, 7 Okla. Cr. 113, 122 Pac. 557.

It is also contended that the trial court erred in permitting the state to show by the witness York that at the time witness arrested the defendant on the night of the alleged robbery the defendant was armed, resisted arrest, and attempted to escape. In this connection it is contended that the evidence thus admitted tended to prove the guilt of the defendant of other offenses not directly connected with the offense charged.

No objection was interposed to this evidence in the trial court, and for that reason no reviewable question is presented in this court. The evidence of the possession of the revolver, which answered the description given by the prosecuting witness, and of the search light, which also answered the description given by the prosecuting witness, and of the description of the clothing worn by the defendant at the time of his arrest, which also answered the description given by the prosecuting witness, were all admissible on the question of the identity of the defendant with that of the man who committed the robbery. The evidence of his attempted escape from arrest and resistance to arrest were provable as indicating a consciousness of guilt on his part, and the admissibility of this evidence was not affected by the fact that it tended to prove the defendant guilty of other offenses. Hill’s Criminal Evidence, §§ 54, 115, and 118; Robinson v. State, 8 Okla. Cr. 674, 130 Pac. 121; Vickers v. United States, 1 Okla. Cr. 452-462, 98 Pac. 467.

It is also contended that the trial court erred in limiting the jury in its instructions to a consideration of first degree robbery only. The information charged robbery in the first degree. The undisputed evidence was to the effect that the robbery was accomplished by putting the person robbed in fear of immediate injury to his person. Robbery accomplished by putting the person robbed in fear of immediate injury to his person is robbery in the first degree.

The trial court is not required to instruct as to the lower degree of the crime charged, if there is no evidence tending to reduce the crime to such degree. Hunter v. State, 3 Okla. Cr. 533, 107 Pac. 444; Morris v. State, 4 Okla. Cr. 233, 111 Pac. 1096; Hopkins v. State, 4 Okla. Cr. 194, 108 Pac. 420; Updike v. State, 9 Okla. Cr. 124, 130 Pac. 1107; Robinson v. Territory, 16 Okla. 241, 85 Pac. 451; Newby v. State, 17 Okla. Cr. 291, 188 Pac. 124.

The instructions as a whole fairly cover the law of the ease as applied to the evidence, and are free from prejudicial errors.

After a careful examination of the entire record, the court is of the opinion that defendant had a fair and impartial trial, that there is ample evidence in the record to sustain the verdict and judgment, and that no error occurred during the progress of the trial sufficiently prejudicial to authorize a reversal of the judgment.

For reasons stated, the judgment is therefore affirmed.

DOYLE, J., concurs.

BESSEY, J., absent, not participating.


text:
    JOE WILLIS v. STATE.
    No. A-4294.
    Opinion Filed Nov. 24, 1923.
    (220 Pac. 72.)
    (Syllabus.)
    1. Homicide — Error Favorable to Defendant — Submission of Issue of Manslaughter Where Law and Facts Show Murder. In a prosecution for murder, when the court submits the issue, and the jury finds the defendant guilty of manslaughter in the first degree, in a case where the law and the facts make the crime murder, it is an error in the defendant’s favor, of which he has no cause to complain.
    2. Appeal and Error — Necessity for Prejudicial Error — Evidence. A conviction will not be set aside because of error in the admission of evidence, unless, in the opinion of this court, such error probably resulted in a miscarriage of justice or deprived defendant of some constitutional or statutory right, to his prejudice.

      Appeal from District Court, Choctaw County; G. M. Barrett, Judge.
    Joe Willis was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.
    John Cocke and Warren, Warren & Warren, for plaintiff in error.
    George F. Short, Atty. Gen., and John Barry, Asst. Atty. Gen., for the State.
   MATSON, P. J.

On the 3d day of November, 1921, plaintiff in error, Joe Willis (hereinafter referred to as defendant), was convicted of the crime of manslaughter in the first degree in the district court of Choctaw county, on an information charging defendant with the murder of one George Clemmons, alleged to have been committed in said county on or about the 24th day of July, 1920. The punishment was fixed by the jury at imprisonment in the state penitentiary for a term of 10 years.

But two assignments of error are urged by counsel for the defendant as grounds for reversal of this judgment. First is that the court erred in instructing the jury upon the issue of the guilt of the defendant of the crime of manslaughter in the first degree.

In this connection it is contended that the facts and circumstances as viewed from the evidence introduced by the state disclosed that the defendant was guilty of the crine of murder; that the facts and circumstances viewed from the evidence as introduced by the defense disclosed that the defendant acted in his necessary self-defense; that there was no evidence to justify an. instruction on the law of manslaughter in the first degree; and that the giving of such instruction was clearly prejudicial to the substantial rights of this defendant.

The court instructed the jury on the issue of the defendant’s guilt of manslaughter in the first degree without objection on the part of the defendant and without any exception being taken to such instruction. His failure to thus object and except within itself was a waiver of this alleged error. Steward v. State, 9 Okla. Cr. 327, 131 Pac. 725.

However, under the repeated decisions of this court, it is uniformly held that a defendant who has been convicted of manslaughter cannot complain that the court charged' on that degree of felonious homicide and that the evidence would not justify such a charge. Especially is this true where the evidence is sufficient to have authorized his conviction of a higher grade of the offense than that for which he was convicted. Counsel for the defendant admit in the brief filed that the evidence on behalf of the state in this case is sufficient to sustain a conviction for murder. That the giving of a manslaughter instruction under the circumstances as disclosed by this record was not error is supported by the following authorities: Weatherholt v. State, 9 Okla. Cr. 161, 131 Pac. 185; Steward v. State, 9 Okla. Cr. 327, 131 Pac. 725; Irby v. State, 18 Okla. Cr. 671, 197 Pac. 526; Harper v. State, 20 Okla. Cr. 43, 200 Pac. 879, 882; Smith v. State, 20 Okla. Cr. 301, 202 Pac. 519, 520; Wilmoth v. State, 20 Okla. Cr. 453, 203 Pac. 1055, 21 A. L. R. 590.

Second, it is assigned that the court erred in permitting the state to impeach the defendant on immaterial matters for which no predicate had been laid, and over the objection and exception of the defendant.

An examination of the record in connection with the second assignment of error discloses that the attempt to impeach the defendant here complained of failed, in that the impeaching witness was nnable to fasten the alleged impeaching statement as being directed by the defendant against the deceased.

The matter to which the defendant’s attention was directed in the foundation for his. impeachment was competent for that purpose; but inasmuch as the attempt to impeach the defendant failed of accomplishment, and in view of the fact that counsel for the defendant did not consider it off enough import to move that what little evidence was permitted to go to the jury be stricken and withdrawn from the jury’s consideration, we fail to see wherein defendant was in the least prejudiced by reason of the matters and things urged under this assignment, in view of the mandatory provisions of section 2822, Compiled Statutes 1921, that no judgment must be set aside by this court because of the improper admission of evidence unless the same, in the opinion of the court, probably resulted in a miscarriage of justice or deprived defendant of some constitutional or statutory right to his prejudice.

Upon a consideration of the entire record, it is the opinion of the court that the judgment should be affirmed. It is so ordered.

DOYLE, J., concurs.

BESSEY, J., absent, not participating.