text:
    FRANK LANE v. STATE.
    No. A-9651.
    Nov. 2, 1939.
    (95 P. 2d 654.)

      E. Moore, of Coalgate, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment of the district court of Coal county, rendered on March 23, 1939, in pursuance of a verdict convicting Frank Lane of larceny of domestic fowls and assessing his punishment at imprisonment in the state penitentiary for a term of one year.

It appears from the record that appellant, Prank Lane, and Joe Lawson were jointly charged with the crime of larceny of domestic fowls.

The information charges that in Coal county, on or about the 5th day of September, 1938, said defendants did unlawfully and feloniously take, steal and carry away about forty turkeys, the personal property of one George Harris, without the knowledge or consent of the owner.

Appellant’s conviction was upon his separate trial.

The petition in error and case-made were filed in this court on May 19, 1939.

The only errors assigned are that the verdict and judgment are contrary to both the law and the evidence, for this reason the court erred in overruling the demurrer to the evidence and in denying appellant’s motion for a new trial.

The only question presented for review by the record is the sufficiency of the evidence to support the verdict and judgment.

It appears from the evidence that George Harris, who lived 14 miles west of Coalgate, was the owner of about 80 turkeys on the date alleged; Mr. Harris missed about 40 of his turkeys, made a search for them, and on ,September 24th, he found 40 head of them near Bill Perry’s place, a mile and a quarter from his house, then he went to the county seat and notified Marvin Balch, the county attorney, and they went out to Bill Perry’s, and Mr. Harris picked out his turkeys by his mark, a webb split on the right foot between toes and a nick from the first joint of the left wing.

Bill Perry testified that he lives four miles south of Tupelo, that he was present when George Harris and two other men put a flock of turkeys into his lot, and Mr. Harris picked out 40 of them that had his mark; that he had seen these turkeys there for eight or ten days before, and that he had 23 turkeys himself there, that he lives about a mile and a quarter from the defendant, Prank Lane.

Theodore Johnson testified that he lives a quarter of a mile south of Tupelo, was acquainted with the defendant, Frank Lane, that about 11 o’clock on the night of September 5th, Prank Lane and Joe Lawson came to his house and told him their truck had broke down a little over half a mile south of his house, and he got up and went with them. Riley High and his wife were at the truck, a 36 Chevrolet pick-up, and there were turkeys in it; Lane said he was hauling them for these people; that he took Mr. Lawson and Mr. High and his wife back to their home to get their trailer, their place was one mile east and a mile south of Hudson’s store, and. the pick-up truck was something, like three or four miles north and east of the store; that coming back his car went dead, and he waited there until they came on, when they came by they would not pull his car, so he rode on with them to the pick-up. Mr. Lane was there and the turkeys were still in the truck, they backed the trailer up to the pick-up and put the turkeys into the trailer, Lawson and the Highs went back with the turkeys in the trailer, and Frank Lane took him home in his pick-up.

Riley High testified he was staying out there with Joe Lawson, his wife’s stepfather; about the 5th of September, 1938, Joe Lawson penned up some turkeys there and they were taken away the night of the 5th by Frank Lane and Joe Lawson; that Joe Lawson asked him and his wife if they wanted to go with them to get their furniture, Frank Lane had been there that evening* and looked at the turkeys. When he drove up that night they were in bed. He came in and sat on the side of the bed, and asked him if he wanted to go to Okmulgee and get his furniture. He said, “I will take you up there for $6,” and he answered, “I have not got the money and I will have to pick it out in cotton.” So they loaded the turkeys, then pulled out and got over this side of Tupelo and the car broke down, something went wrong with the gears. Frank and Joe went to Tupelo to get a truck and he and his wife waited there until they came back with this man Johnson. They did not bring the chain to pull the car in, so Joe asked Johnson how much he would charge to take them home and he said 50 cents. Johnson drove them to about a quarter of the house and they got out and walked to the house. Joe got his trailer and he got his car and they drove back to> the pick-up. Joe and Frank loaded the turkeys into the trailer, and Joe started back with them. When they got back just this side of Goose creek the car had a flat. It was getting pretty close to daylight when the truck broke down. Joe turned the turkeys out, got the car started and drove about a half a mile, and the rear axle broke, so he went after a team and it was getting daylight when he came back, that he got a. team from Louis Lane and pulled the car and trailer in; that Louis Lane is the son of Frank Lane.

• ■ Obie Hudson testified that be runs a store three and a half miles south of Clarita, and on the night of the 5th day of September some people came1 there and got gas. Theodore Johnson was one; he was headed north; that he knows Frank Lane and Joe Lawson. Frank Lane lived a mile straight east and a little, north of his store, and Joe Lawson lived a mile east and a mile south of the store. That his store is a mile south of Goose Creek, that he was driving to Allen the next morning and saw Joe Lawson’s car there, and noticed that the trailer was empty.

Mrs. High testified that on the 5th of September she was living with her stepfather, Joe Lawson, the 5th was on Monday, Labor Day. That night Frank Lane came over to take some turkeys off the place that were supposed to belong to him and Mr. Lawson. They were all in bed asleep. Uncle Frank wanted to make a.deal to go to Ok-mulgee to get their furniture, they talked about 20 minutes and decided to go, and were to give him $6 to' haul their things, they started on with the turkeys and got up close to Tupelo and the truck broke down. Joe and Uncle Lane went away and got Mr. Johnson to come and fix the truck, and with her husband she stayed with the truck. Up to this time Frank Lane said the turkeys belonged to him. When Mr. Johnson came up, he said those turkeys belonged to Joe Lawson and Gladys. That just before this case was filed Frank Lane asked her and her husband to leave and go to Wichita Falls to pick cotton, and she said, “Uncle Frank, we have not got the money, and the kids have not got any clothes”, and he said, “Uncle Frank will get the clothes”, and her husband said he was not going to do it, and Frank Lane walked away. That Joe Lawson was in jail in this case at that time.

Walter Clark, sheriff, testified that he made a search for the turkeys and went to Joe Lawson’s house and there talked to Joe Lawson and Frank Lane, that Frank Lane said that he and Joe Lawson were 50 and 50 on some turkeys, and Joe decided to sell his part and made a deal with Riley High to go to Okmulgee to get his furniture, and High was to pay him $6 for the trip. That they loaded the turkeys up at Joe’s in his pick-up; on the way they broke down and he sent the turkeys to Joe’s house; that ■he asked him how he knew they hauled them back and he said, that he knew that, because the turkeys were out there and he offered to show them to him that night. That he arrested Joe Lawson and put him in jail that night.

When the state rested the defendant interposed a demurrer to the evidence which was overruled.

A number of witnesses qualified as character witnesses. Each testified that Frank Lane’s general reputation in that community for honesty was good.

Hettie Ann Lane, wife of the defendant, testified that on the 5th day of September, somewhere about dark, her husband left home and said he was going to Okmulgee with Riley High and his wife, that they were at their home for dinner that day. Riley High said, “We will go tonight”. Her husband said, “Allright, and if you say so we will go, it will cost you $6 and your gas bill.” That last year they lived with Joe Lawson and when they moved away they left five hens and a gobbler with him to raise on halves, on Sunday before Labor Day they went down there to see the turkeys, they were in the barn. That they raised eight turkeys at their place this year.

As a witness in his own behalf the defendant testified that he had a son and daughter married and a little girl at home with his wife. That Joe Lawson was his wife’s brother and they lived out there nearly a year; that when he moved away he left five hens and a gobbler with Lawson, that during the spring and summer he saw the turkeys there. The night of September 5th, he was to move Riley High; Joe Lawson said he had some turkeys up, some 25 or 30, maybe more, and Joe said he was leaving the country and selling out, and he would like to sell his turkeys, and he told Joe that as to his part he could leave them but that he could sell his part. That when he took the turkeys he thought they were the turkeys that Lawson had raised on halves, that when he went to Joe Lawson’s that night he found Riley High and his wife in bed, they talked about the trip a little, and after that were ready to go. Joe Lawson said he had the turkeys up and wanted to take them, that the prices were up and he could get more money out of them at Okmulgee and they all insisted on taking the turkeys. Riley High and Lawson helped to load the turkeys, and they started on with them, and drove to about a mile south of Tupelo when some cogs stripped on the transmission and he told them he could not take the turkeys to Okmulgee. They then walked up to Theodore Johnson, an automobile mechanic, and told him he had stripped his gears on his transmission and asked him to come and pull the truck up to his place. That Riley High and his wife stayed at the truck, and when they returned in Johnson’s truck, Lawson and the Highs decided to go back home and get a car and trailer and come back to take the turkeys home. That he asked Johnson what he would charge to take them to their place, he said 50 cents, and he took them; that later in the night they came back and backed their trailer up to the pick-up, loaded the turkeys on the trailer and drove south with them; that Johnson got in the pick-up with him and he drove to his place; that he returned home the next day. That he asked Lawson if he got back with the turkeys and he said they did. That after Lawson was arrested he had a conversation with Mrs. High, and she said, “Frank, we are in a devil of a fix, we ain’t got no money, means or friends, and Riley has got a brother at Wichita Falls, Tex., and if I could get to him, he has plenty of ihoney and would help us out of this trouble,” and he told her, “Well, can’t you fix your car and go and see him”, and she said, “I would like to make a deal with you to go down with us and bring us back”, and he told her he was busy gathering his crop, and he could not make the trip, and that was the conversation; that he never told her that he wished she would leave the state; that he thought these turkeys were the ones Joe Lawson had raised on the halves.

While the evidence is conflicting as to whether of not appellant knowingly participated in the commission of the offense charged, it was the sole province of the jury to judge the weight of the evidence and the credibility of the witnesses. The jury accepted as true the testimony of the state’s witnesses, and having done so, this court would not be authorized to substitute its judgment for that of the exclusive triers of the facts.

It is only when there is a total failure of substantial evidence of the elements, or some one element of the offense that this court on appeal is permitted to reverse a conviction on the ground that the evidence is insufficient to sustain it.

The instructions of the court, to which no objection was made, fully covered the law. of the case, and were as favorable to the defendant as the law warranted.

A careful examination of the record leads to the conclusion that appellant has no substantial ground for complaint,, either of the rulings of the court or the verdict of the jury. As shown by the record, appellant had a fair and impartial trial, and the judgment of the lower court should be affirmed. It is so ordered.

BAREFOOT and DAVENPORT, JJ., concur.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    FORREST ARMSTRONG v. STATE.
    No. A-9587.
    Nov. 9, 1939.
    (95 P. 2d 919.)

      John F. Pendleton, of Nowata, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The information in this case, filed in the district court of Nowata county, charged that in said county on or about the 28th day of July, 1934, the defendant, Forrest Armstrong, did kill and murder P. R. Bowers with a certain deadly and dangerous weapon, to wit: A pocket knife with blade three inches long by inflicting certain mortal wounds, of which said mortal wounds so inflicted the said P. R. Bowers on the 31st day of July, 1934, did die.

Upon his trial the jury returned a verdict finding him guilty of manslaughter in the first degree and fixed his punishment at imprisonment in the state penitentiary for five years.

Motion for new trial was duly filed and overruled; May 31,1938, the court- pronounced judgment and sentence in accordance with the verdict.

The questions presented by this appeal and argued in the briefs are based on rulings of the trial court in the admission of evidence against the defendant’s objections.

Upon the trial the defendant admitted the hilling, and claimed he was justified in doing so in his own self-defense.

The evidence shows that there was a dance at the home of Bill Petty, a few miles northeast of Wann, on Saturday night, July 28, 1934, which was attended by at least 25 people of that neighborhood; that the defendant had a difficulty with Bill Edens in the east room of the house, in which no weapons were used; that the deceased took hold of the defendant while George Edens held his brother, Bill, and they separated them. The deceased then went out on the front porch of the house, and was followed by the defendant, and there the defendant stabbed the deceased, inflicting the fatal wound.

The widow of the deceased testified that with her husband she attended the dance at Bill Petty’s home; that a difficulty arose between the defendant and Bill Edens in the east room; that her husband held Armstrong and said: “Forrest, don’t fight any more; don’t cause any more trouble, we are having such a good dance, don’t have any more trouble.” Then her husband went out on the porch; in just a few minutes she followed, and her husband was standing in the yard holding his side, and he said, “I have been stabbed in the stomach; Forrest Armstrong did it.” That her husband’s brother, Otto and Mr. Cantrell put her husband in a car and they drove to the hospital in Bartlesville with him, where he remained until he died on the following Tuesday, at 8 ;45 p. m.

George Edens testified that he was at the dance and at Bill Petty’s residence, saw some kind of altercation between his brother Bill Edens and Forrest Armstrong, in the southeast room, and they went together. P. R. Bowers had hold of Armstrong and he took hold of his brother; there were no licks struck; that after they were separated he went into the other room; that as he went off the porch he heard some one say, “P. R.” is stabbed.

John Jackson testified that he went to Petty’s place that night to see Mr. King, to get a mowing machine; that the first trouble started between Edens and Armstrong; that he did not know P. R. Bowers, who was trying to keep down the fighting; that he did not see anybody hit Armstrong with a- chair. Later he saw Edens hit Armstrong with his fist, then somebody hit Edens, after he had hit Petty, and that was before Bill Edens was stabbed; that Forrest Petty and Bill Petty and Foxiest Armstrong all three of them had knives; that he was in there about two minutes while the fight was going on and he left and went home.

Y. E. Cantrell testified that he lives at Wann, attended the dance that night at the Petty place and was present when the trouble started between Forrest Armstrong and Bill Edens. P. R. Bowers and George Edens separated them. P. R. said, “Let’s don’t have any trouble, let’s don’t break up the dance, we are all having a good time, let’s don’t break up the dance.” That shortly after that he saw P. R. Bowers out on the south porch, then Bill Petty started out and somebody knocked him down with a chair, then Forrest Armstrong went out, then he went out with his wife. P. R. and Wood Bowers were standing out there, Wood said somebody stabbed P. R. and he asked P. R. who did it, and he said Forrest Armstrong. That they put P. R. in his car and took him to the doctor.

The testimony of several other witnesses for the state was substantially the same as that of those above quoted; they each testified that the deceased did not hit the defendant or strike him with a chair.

Hugh Owen testified that he is now sheriff; that on July 28, 1934, he was a deputy sheriff. He produced the knife that was taken from the defendant; it was admitted in evidence without objection; that the day following, the dance he arrested the defendant and brought him to No-wata. ; that if the defendant had any bruises or injuries he did not notice them.

He further testified that the next day the defendant said he was so drunk that he didn’t remember a thing that-happened.

On the part of the defense, J. S. Holland testified that he was present at the Petty home that night, that he was on the outside and saw P. R. Bowers knock Armstrong down on the front porch with a chair, and Armstrong went down on his hands and knees, then he walked off.

Viola King testified that she arrived at the dance about 11 o’clock and shortly afterwards saw P. R. Bowers pick up a chair in the room and he raised it up and started through the crowd with it; that it was a little old white looking cowhide bottom chair.

J. H. King testified that he was standing by his wife near the south door and saw P. R. Bowers pick up a chair and he backed out with his wife.

On cross-examination be stated that it was about 15 minutes alter 11 when be arrived at tbe dance; that when he stepped out Bill Edens came out and told him that be bad been cut; that he never saw anything further that happened there that night.

Ernest Petty testified that his age was 22 years; that he was at home that night and saw P. R. Bowers hit Forrest Armstrong with a chair; he hit him twice, and he identified the chair which was offered in evidence.

Forrest Petty testified that he was at home that night and saw P. R. Bowers hit Forrest Armstrong with a chair; that Forrest Armstrong was not drunk; that his father was feeling pretty good and witness himself was drunk.

The defendant, as a witness in his own behalf, testified substantially as follows: That his age is 27 years, had lived in the Wann neighborhood all his life. Was at the dance at Bill Petty’s house; that when the fight started he was about the middle of the east room and P. R. Bowers hit him with a little chair that had a cow-hide bottom; that he did not give him any reason to strike him, and there were 20 or 25 persons in the room at the time; that after he was struck a couple of times that he went out the door and Bowers hit him on the back of the head with the same chair, and knocked him down on his hands and knees and he got his knife out of his pocket and stabbed him to keep him off, then he went back in the house; that he thought it was necessary to do it to protect himself and he did not have his knife out in the house. That after his arrest he did not tell Hugh Owen that he was drunk, but did tell him that he had been drinking, then said to him, “Hugh, I haven’t talked to my attorney yet, and I am not talking.”

The errors assigned and argued will be considered in the order presented in the defendant’s brief.

The first assignment is that the court erred in permitting, the testimony of Dr. C. W. Crawford, deceased, who had testified at the preliminary examination, to be read in evidence, for the reason that due and proper notice, thereof, as required by the Constitution, was not given to the defendant.

The record shows that the name of the deceased witness was indorsed upon the information, and that six days before the trial notice was served upon the defendant, the state would offer in evidence the testimony of said deceased, taken at the preliminary hearing.

Thus it appears there was a full compliance with section 20 of the Bill of Eights. Const, art. 2, sec. 20, Okla. St. Ann.

The second assignment is that the court erred in permitting the introduction of the evidence of Dr. G. W. Crawford, deceased, for the reason that the witness, Mrs. Alberta Ozbun, court reporter, had been away from the state for sometime and did not know whether the transcript of the testimony was in its original condition, and the contention is made that said transcript had not been filed in the court clerk’s office, as required by the Code of Criminal Procedure. Sec. 2800, 22 Okla. St. Ann. § 258.

She testified that she was court reporter and took "the testimony at the preliminary hearing and delivered the transcript of the testimony to the court clerk; that she had read the transcript and had also read her notes and this was the transcript which she had made, and that it looked to be in the same condition as when she deposited it in the court clerk’s office.

In the case of Exleton v. State, 30 Okla. Cr. 224, 235 P. 627, 628, this court said:

“The transcript of the evidence offered had not been filed with the clerk of the district court as provided by section 2491, Compiled Statutes 1921, supra [section 2800, St. 1931, 22 Okla. St. Ann. § 258]. But this court in the case of Baldock v. State, 16 Okla. Cr. 203, 182 P. 265, has held that such filing is not essential. It is apparent that section 2491, supra [section 2800,- St. 1931, 22 Okla. St. Ann. § 258], insofar as it relates'to the filing of this transcript with the clerk of the court, is a directory and not a mandatory statute, its purpose being to provide a depository so that the question of the authenticity and identity of the transcript may not be drawn in question.”

In the recent case of Willard v. State, 66 Okla. Cr. 344, 92 P. 2d 600, this court held: ,

“A paper or document is Tiled/ so far as rights of parties are concerned, when it is delivered to and received by proper officer with whom it is filed.”

In the opinion it is said:

“A paper is said to be filed when it is delivered to the proper officer, and by him received to be kept on file. 1 Littleton 113; 1 Hawk. PI. Cr. 7, 207.
“Since the word file means to deposit in a court or public office a paper or document, filing consists of delivery of the same to the proper officer for the purpose of being kept on file by him in a proper place.
“In the sense of a statute requiring the filing of a paper or document, it is filed when delivered to and received by the proper officer to' be kept on file. The word carries with it the idea of permanent preservation of the thing so delivered and received; that it may become a part of the public record. It is not synonymous with deposit. People v. Peck, 67 Hun 560, 22 N. Y. S. 576.”

In the case of Bauer v. Samples, 181 Okla. 161, 72 P. 2d 813, the Supreme Court held:

“A pleading is filed within the contemplation of the law when it is delivered to the proper officer with the •intention that it shall be kept by bim and became a part of tbe filings in the case.”

It follows from the foregoing that the court did not err in admitting the transcript of the evidence of Dr. G. W. Crawford.

The third assignment is that the court erred in admitting the dying declaration of P. R. Bowers, as shown by the testimony of Dr. G. W. Crawford, for. the reason that the same was not made under the sense of impending death.

The testimony objected to was substantially as follows :

“I first saw the deceased July 28th, about midnight in front of my office at Dewey, I instructed those with him to take him to the hospital at Bartlesville immediately; I arrived there within 20 minutes. We took him to the major operating room and examined him, he had a stab wound one or one and a half inches long, about two inches to the left and two inches above the navel, it extended into the abdominal cavity, getting larger as it got deeper. It extended into the stomach and punctured the large intestines. I was with him almost continuously until he died. He told me about how he received this wound; his physical condition was extremely critical; he was clear of mind; this statement I was just relating was made after he was informed of the seriousness of his condition; that lead him to state shortly afterwards that he would have to give up.”

Cross-examination by Mr. Pendleton:

“Q. Did he, at any time prior to the time he made the statement that he was going to- give up, realize he was serious and might die? A. Yes, sir. Q. Did he have hopes of recovery until he made that statement? A. Yes, sir, I think so. Mr. Pendleton: Then we object to any time prior to that? It is admissible after the time he made the statement. And we now ask that the jury be instructed not to consider any such statement. The Court: The jury will not consider any statement the deceased made prior to the time he had given up hope of recovery, because a statement made under the sense of impending death after he realizes that death is close at hand, any statement that he makes then is competent, and you may consider any statement the deceased may have made to the doctor after he realized impending death. By Sams: (Continuing the reading of said transcript.) Q. He never had a chance after he was cut? A. Very slight. Q. He did not realize that he had no chance right at first? A. He had not given up hope. Q. When was this statement made? A. On Tuesday. After this statement was made to him as to his condition, he made the statement he would have to give up. Mr. Pendleton: The defendant moves to strike all of the testimony of the doctor with reference to any dying declaration. The statement is not a dying declaration, made under the sense of impending death, and it is incompetent, irrelevant and immaterial. The Court: Overruled.”

Redirect examination:

“Q. Did he tell you he knew he was going to die? A. Yes, sir. Q. Did he tell you on Tuesday? A.Yes, sir. Q. Was that on the day he told you he was going to give up? A. Yes, sir, after he told us who cut him. Q. Who did he say cut him? A. The same person — Frosty Armstrong. Q. What time that day did he die? A. 8:45.”

On cross-examination witness stated:

“The statement was made after he had been informed of his condition — that his condition was extremely perilous. The patient said that the injury was inflicted by a person known to him as Frosty Armstrong, that there had been no previous trouble between them, that the alleged assailant, without provocation, ran up in front of him and with an oath and threat, stabbed him. From my recollection, he gave this sequence of events that occurred. By some difficulties that developed, he saw that it was no place for him, and he decided to find his wife and go home. That he went out of the house on the front porch and while there searching for his wife, the man he named as Frosty Armstrong, raised up and said something about ‘I have you now’ and stabbed him. Mr. Pendleton: Now comes the defendant and moves to strike all of the testimony in regard to the dying statement, for the reason the same does not come within the rule making it a dying declaration. The Court: Overruled under the admissions expressed to the jury in regard to this testimony.”

Our Constitution guarantees that:

“In all criminal prosecutions the accused shall have the right * * * and be confronted with the witnesses against him.” Bill of Bights, Const, art. 2, sec. 20, Okla. St. Ann.

This right has always been deemed one of the most sacred and valuable safeguards of the citizen. It protects the accused against the peril of conviction by means of ex parte testimony or affidavits given in his absence, or when he had not the right of cross-examination, with the exception that in homicide cases dying declarations made by the victims are held admissible as evidence, because they were admissible at common law, and as a matter of compelling necessity to prevent a failure of justice. Mulkey v. State, 5 Okla. Cr. 75, 113 P. 532.

The rule is universal that before dying declarations can be admitted in evidence it must appear that they were made under a sense of impending death, but it is not necessary that the person making them state at the time that they are so made, as that fact may be proved, not only by what the declarant said, but by the condition, by the nature and extent of his wounds, or from his conduct or other circumstances of the case. Poling v. State, 12 Okla. Cr. 27, 151 P. 895, Ann. Cas. 1918E, 663; Morehead v. State, 12 Okla. Cr. 62, 151 P. 1183, Ann. Cas. 1918C, 416; Stealer v. State, 10 Okla. Cr. 460, 138 P. 395; Addington v. State, 8 Okla. Cr. 703, 130 P. 311; Morris v. State, 6 Okla. Cr. 29, 115 P. 1030.

In Stealer v. State, supra, this court held :

“The constitutional pro-vision that ‘In all criminal prosecutions the accused shall have the right to be confronted with the witnesses against him’ (Bill of Rights, §20) is not infringed by permitting the testimony given on the preliminary examination of the defendant by a witness who has since died to be read against him upon the trial.of the case.”

The foregoing authorities abundantly show that the objections interposed to- the declarations were untenable, and that the court committed no error in admitting in evidence the declarations of the deceased.

Finally it is contended that the verdict is not sustained by the evidence.

A consideration of the evidence impresses the writer with the thought that the defendant might well have been convicted of murder. We have seldom read a record in a homicide case where there were less palliating, circumstances in behalf of the defendant, than this case presents.

As we view the record, the jury in charity for the weakness of humankind, lessened the crime to manslaughter in the first degree and was exceedingly merciful in assessing the punishment.

A careful examination of the whole case leads to the conclusion that no error has been committed to the defendant’s prejudice. The judgment of the trial court is therefore affirmed.

BAREFOOT and DAVENPORT, JJ., concur.


author: BAREFOOT, J.

text:
    J. B. ODOM v. STATE.
    No. A-9576.
    Nov. 9. 1939.
    (95 P. 2d 916.)
    L. D. Akin, of Shawnee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Thomas C. Wyatt, Co. Atty., of Shawnee, for the State.
   BAREFOOT, J.

Defendant was charged in the district court of Pottawatomie county with the crime of driving an automobile while under the influence of intoxicating liquor; was tried, convicted, and sentenced to the penitentiary for a period of three months, and has appealed.

It is urged for reversal of this case that the court erred in refusing to permit counsel for defendant on the voir dire examination of jurors to inquire, whether or not they would sacrifice their personal opinion as to whether or not 8.2 beer was intoxicating and accept the provision of Congress and the Legislature that the same was not intoxicating. In other words, it is contended that the Legislature having provided in section 1, chap. 158, Session Laws 1933, 37 Okla. St. Ann. § 151, as follows: “Beverages containing more than three and two tenths (3.2%) per cent, alcohol by weight are hereby declared to be intoxicating; all other beverages are declared to be nonintoxicating. The manufacture, distribution and sale of beverages containing more than one-half of one (M¡ of 1%) per cent, alcohol by volume and not more than three and two-tenths (3.2%) per cent, alcohol by weight is hereby declared subject to the rules and regulations hereinafter provided”; that, therefore, one who had drunk only 3.2 beer cannot be charged and convicted under the statute which prohibits one from driving an automobile while under the influence of intoxicating liquor. Oklahoma Statutes 1931, § 10324, 47 Okla. St. Ann. § 93.

This court has recently had this question up for consideration in the case of Ashcraft v. State, decided in opinion of Jan. 11, 1940, 68 Okla. Cr.-, 98 P. 2d 60, and in that case it was clearly distinguished what, to our minds, the intention of the Legislature was in the passage of each of the above acts. It is unnecessary to lengthen this opinion by quoting from that case, only to say that we held under Oklahoma Statutes 1931, § 10324, 47 Okla St. Ann. § 93, that it was in the intention of the Legislature to punish those who were in fact under the influence of intoxicating liquor, whether it be caused from drinking beer with an alcoholic content of 3.2 per cent., or liquor in excess thereof.

In the instant case there is no evidence in the record that defendant drank 3.2 beer. The evidence of the state was that the defendant was under the influence of intoxicating liquor; that he staggered and had to be helped into the automobile by the officer who arrested him, and that he smelled whisky on his breath.

The question propounded to the jurors by counsel was a question of law, and the court, therefore, did hot err in refusing to permit counsel to interrogate the jurors thereon.

The trial court in impaneling the jury made the remark: “The question is whether or not the individual is under the influence of intoxicating liquor. If a man has been drinking one bottle of beer and it makes him drunk he is just as drunk as if he drank whisky.” This was excepted to' by defendant, and is urged as error. As stated above, there was no evidence in this case that the defendant drank beer and not whisky.

In the case above cited, the court held exactly what the court stated; that it Avas a question of fact as to whether a party was under the influence of intoxicating liquor, and it made no difference whether it was from drinking beer or other intoxicating liquor. State v. Parquette, 54 R. I. 283, 172 A. 613; Commonwealth v. Bridges, 285 Mass. 572, 189 N. E. 616.

The judgment and sentence in this case is for confinement in the penitentiary for a period of three months. The statute assessing the punishment, Oklahoma Statutes 1931, § 10324, 47 Okla. St. Ann. § 93, provides as follows:

. “It shall be unlawful for any person who is under the influence of intoxicating liquor, or who is a habitual user of narcotic drugs, and the having on or about one’s person or in said vehicle of said intoxicating liquor is prima facie evidence of a violation of this act, to operate or drive a motor vehicle on any highway within this state, as defined in section 1, of this act, and any person violating the provisions of this section shall be deemed guilty of a felony and shall be punished by imprisonment in the penitentiary not more than one year, or by fine of not more than two' thousand ($2,000.00) dollars, or by both imprisonment and fine.”

It will be noted that this statute does not provide for a jail sentence, but only for a. penitentiary sentence or a fine. The facts in this case are that defendant was a married man and had four children. He lived on a small farm about three miles from Shawnee. He had come into town and was returning to his home. His car collided with a car driven by Mr. Crawford, on the streets of Shawnee. His car was swerving from side to side, and when it struck the Crawford car, was on the wrong side of the street. There was only a small damage to the fender of the Crawford car. He was able to drive it to the police station after the collision. There is nothing in the record to show that defendant’s car was damaged by the collision. A police officer who was present immediately arrested defendant and took him to the police station in the Crawford car. He testified defendant was under the influence of intoxicating liquor. That he staggered and had to be helped into the car, and that he smelled whisky on his breath: The evidence is corroborated by Mr. Crawford’s son, who was 17 years of age, and in the car at the time of the collision.

Defendant testified that the collision occurred by reason of the fact that the radius rod on his car was broken or loose and this caused his car to swerve, and that he could not control the same. He also introduced a mechanic, who testified a car would swerve from side to side when the radius rod was broken. He also1 introduced in evidence a witness who testified that he had assisted defendant in wiring up his radius rod just before the accident happened. The defendant, while on the witness stand, did not deny that he had been drinking and his counsel did not see fit to inquire of him in reference thereto.

On cross-examination he testified that he had served a jail sentence in a whisky case in the federal court. One witness testified to the good character of defendant, but the court instructed the jury not to consider this evidence for the reason the witness testified it was based upon what he himself believed, from having lived near defendant in Shawnee.

After a careful consideration of this evidence, we are of the opinion that the verdict of the jury was based upon the fact that- the. statute did not permit the giving of a jail sentence, and the further fact that defendant testified that he had served a jail sentence in a whisky case. Under all the facts, we are of the opinion that the judgment and sentence should be reduced to a fine of $100 and the costs of this case, and that, in the event said fine and costs are not paid, defendant should serve the time in the county jail of Pottawatomie county in the manner provided by law.

It is, therefore, ordered that the judgment of the district court of Pottawatomie county be modified and affirmed as above stated.

DOYLE, P. J., and DAVENPORT, J., concur.


author: DAVENPORT, J.

text:
    TOMMIE KNIGHT v. STATE.
    No. A-9590.
    Nov. 9, 1939.
    (95 P. 2d 905.)
    M. Bristow, Morton Perry, and Thad Klutts, all of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen. for defendant in error.
   DAVENPORT, J.

The defendant was by information charged with the crime of robbery; was convicted and sentenced to serve a term of 40 years in the penitentiary; from which sentence and judgment, the defendant appeals.

The testimony on behalf of the state shows that the defendant had been previously convicted and served a term in the penitentiary for larceny of an automobile.

Dr. Austin R. Stough, testifying on behalf of the state, stated that he saw W. P. Dorris in the Samaritan Hospital about 2 o’clock a. m.

“He was covered with blood, Ms head and face, and we cleaned him up. He had two or three cuts on his face, one large one on his lip, and one on his chin; and his eyes and nose were swollen, and his entire face was just black and blue; and he had two or three knots on his head, one small cut on the back part of the right side, and the inside of his mouth was cut pretty bad; his inside lip and his lower lip was torn from his gum, and his upper lip was torn from his gum; his nose was swollen quite a bit at the time. I thought it was possibly a break, but later I decided it was practically a dislocated cartilage from the bone; and his eyes were very bad cut and swollen, almost closed. I don’t think there was any permanent damage to his eyes. His face was all swollen; and there were bruised spots over it, covering almost the entire area of his face, with some small skinned areas beside the cuts. I took about three sutures in the upper lip and about two in his chin; then I had to take several stitches inside his mouth to repair his lip. I have seen Mr. Dorris since I have been here to-day.”

On cross-examination the witness stated:

“I saw him about 3 o’clock in the morning. I don’t know how he got to the hospital. I think he had been there 20 or 30 minutes before I saw him. I couldn’t detect any odor of liquor on him. I would not say there wasn’t any. The bruises and cuts on his face and head were apparently inflicted with some blunt object. I believe it could have been done with a man’s knuckles.”

Louise Mashburn, testifying for the state, stated that she was 17 years of age and lived at 324 West Chickasha.

“On April 16th, or thereabouts, I was at the A & A Buffet. I went down there about 8 or 8:30 and left about 10:30. I went down there with Juanita Price. Prior to that time I was acquainted with Tommie Knight. When Juanita Price and I got to the A & A Buffet, we went in and started dancing. The A & A Buffet is at 409 West Reno. I did not know Dorris prior to that time. When I first saw him, he was seated down there in a booth. He asked Juanita and I what we wanted. Juanita and I were dancing; and be called me and them over there. Juanita came back and got me; and all three went in and sat down by him. I don’t know what time it was when Tommie Knight came in. He started talking to me. He did not sit down at that time. After Tommie had left, Bill asked if that was my boy friend; and I said he was. He said, ‘Why don’t you get them, and we will all go out to the Trocedero Night Club?’ I don’t know where it is located. I had never been out there before. We all went together out some place. Bill Dorris told me he had a car outside. He had taken two' drinks at that time. I asked Tommie to go. He hesitated at first. He went with us from there. We went down in the 200 block on West Reno, and got a pint of whisky first. We went to a number of different places, out to the Atlas Buffet, the Oasis, Swing Time, and Happy Time. I don’t remember our dancing anywhere except the Oasis. We all went down to a place where they have tourist cabins. I don’t know where it was, myself. We went south, I think. It was out on the New Castle road. I don’t know just when we got there; but I imagine it was after midnight. Those wlm went to the tourist cabin were Bill Dorris, Tommie, Juanita, and I. We were just in one tourist cabin. The car was parked out in front of the cabin we were in. It was Bill Dorris’ car; and the same one we started out in. The car was right at the cabin. We went in the cabin; and Bill Dorris started to- undress. He pulled out everything he had in his pockets, and laid them on the table. 1-Ie was starting to take his coat off; and Tommie said, ‘Look here, Bill.’ And about that time he hit him. He just knocked him down on the floor. Bill tried to get up. Every time he would, do that, Tommie would hit him again. I did not see him do anything but hit him with his fist. Juanita and I were standing in the corner; and Tommie just kept hitting. Bill. Bill got up, and got on the bed; and Tommie hit him again. He kept on hitting- him. Juanita went up and tried to get him to stop, and he hit her. I tried to get him to stop, and he hit me, and knocked me out. I fell in the floor; and Juanita picked me up. When I got up, I had a black eye; and my nose was skinned up about like that. I had a big skinned place on the side of my cheek. He just had his money in Ms pocket. I did not see any billfold. He bad $26 in money. That is all I saw. I don’t know how much he had when we started out that evening. Every time he would go> to do anything, he would pull all his money out of his. pocket, and hold it in his hand.”

At this time a number of bills were introduced, marked State’s Exhibit “1.”

The witness continued:

“He had the bills wadded up in his hand; and every time, when he started to do anything, he would just pull out what he wanted. As far as I remember, Bill Dorris paid all the bills that night. Juanita and I walked out of the door of the cabin first. Bill was still laying on the bed when we walked out. He was bleeding. There was blood on the floor. I don’t know whether there was any blood on Tommie Knight or not. We had all three left in Bill Dorris’ car, Tommie, Juanita, and myself. Bill was left in the cabin. Juanita said she saw him standing in the door. The last place I saw him was on the bed. Tommie drove Bill Dorris’ car in which we left the cabin. I next saw the money when we got out at Brock Park. Brock Park is on Southwest 29th street. During the ride up towards Brock Park, we hit a big bump. I bounced up and hit the car on top, and then come back and hit on the windshield. We left the car right at the park. I saw the money at the park. I counted it out to Tommie. I counted out $26 in bills to- Tommie. I found it laying on the ground there by the car. We got out of the car ; and we walked up there; and Tommie asked us about the money. We didn’t have it; and to prove it to him'that I didn’t have it, I said I would go back and look for it, and just as I was going back, I found it laying on the ground. It was laying just a little back from the left-hand front door. There was $26. I gave it to Tommie; and he took it. He didn’t give either of us any part of it. We went out and sat down by some bushes; and Tommie said he Avas going to get a cab, and to just sit there until he came back. When he left, Juanita and I got up and said we were going home, and we did. We didn’t report it to the police. Saturday night after this occurred on Friday night, I was arrested. Juanita was with me when I was arrested. Tommie Knight, the defendant now on trial, is the Tommie Knight that was with us that night.”

On cross-examination the witness stated:

“I am 17 years of age. My name is Louise Mashburn. The other girl’s name is Juanita Price. We were at the A & A Dance Hall when we first met up with Bill Dorris. I had never seen Bill Dorris before. I did not know whether he was married or not. Dorris suggested that I come up and drink something. 1 drank a Dr. Pepper. It was between 9 and 10 o’clock. Tommie just stayed there a few minutes, and said he was going down to the cafe. That was when Bill Dorris asked me if Tommie was my boy friend. Dorris suggested that we go and get Tommie, and let Tommie be my date, and Juanita be his. There was another girl there; the other girl was Mary Castleberry. Bill Dorris paid for everything as far as I know. Later Dorris suggested we go and get some whisky. We did go and get some whisky. I drank some of it; and Juanita drank some of it. We got the whisky in the 200 block West Reno. We got a pint at that place on West Reno. All six of us drank that pint. About an hour after that, Bill Dorris suggested we get some more whisky. When we got to the Oasis, Tommie and I were dancing; and Dorris got another pint. He brought it in; but I didn’t drink any of it. Mary Castleberry and Otis Brown drank some of it. Mary Castleberry is 15. I don’t know how old Otis Brown is. After we drank this whisky, we went back to the A & A, and left Mary Castleberry and Otis Brown there. We left the A & A then, and went out to the cabins. On our way out to the cabins, Bill got very drunk. He was driving his automobile while drunk. I don’t know where this tourist camp is. It is south of county line. I don’t know how far southwest. It is the Davis Tourist Camp, and is on the New Castle road. I don’t think we went through New Castle to get to these cabins. I don’t know whether the money introduced in evidence here is the money that Bill Dorris had. I don’t know whether he did anything to Juanita just before Tommie struck him or not. I was pretty well intoxicated. We came back from the tourist camp and went east on 29th street. Tommie was going to take us girls back home, and he was then going to go back and get Bill. We started home, and something happened to the car. Tommie said he was going to get a cab, and said go on home.” •

On redirect examination the witness stated:

“Tommie didn’t hit me any more after I found the money at the side of the car. I didn’t take the money out of my pocket during that ride out there; nor did I take the money from the cabin. After the wreck happened, Tommie demanded the money; and I told him I didn’t take it, and went back to the car, and there it was laying. I don’t know where the county line is. The name of the tourist cabin where the fight was, was Davis.”

Juanita Price testified for the state. Her testimony in substance is the same as Louise Mashbum testified as to where they met Dorris and the defendant Tommie Knight on the evening of the alleged robbery, and what took place up until the time that Tommie Knight beat up Dorris, then took the money of Dorris and his car, and drove away from the cabin leaving Dorris in the cabin.

Juanita Price stated that she was only 14 years of ■age. The testimony shows that when they were getting ready to leave the car of Dorris where they had partially wrecked it, that the defendant accused the girls of having the money, and one of them told him that to prove to him that they did not have it that she went to the car, and near the car on the outside of the left-hand door, they found the money and gave it to the defendant.

H. S. McDonald testified for the state in substance as follows:

“I am a member of the Oklahoma City Police Department. On the 16th of April, 1938, I received a call around 1 a. m. About 5 a. m. I arrested Tommie Knight at Sheaf-fer’s beer joint at 130 West Reno. I took him immedi- • ately to- the station.”

The witness identified the shirt that was worn by Tommie Knight at the time of his arrest, and was taken off him at the police station. His testimony tended to show that the shirt was bloody.

The witness continued:

“Bills similar to the one you have handed me were taken off of Tommie Knight at the time he was examined in the detective bureau. We, also-, took off him a pink receipt for $1 for a jacket he had purchased. Tommie Knight stated to us that he had bought the jacket at Sheaffer’s, and gave the man a dollar for it.”

On cross-examination the witness stated:

“It was about one a. m. when we made the arrest. I don’t remember the exact date, but it must have been the 17th or the 16th.”

Jean Wells, testifying for the state, stated that he was a member of the police force of Oklahoma City, and that he was with Mr. McDonald at the Sheaffer’s beer parlor, 130 West Reno avenue, when Tommie Knight was arrested; that he was acquainted with Tommie Knight personally.

“The defendant in this case is the same man that was convicted September 6, 1932, for the larceny of a car, and given five years. When I arrested him he had $25.25 in money and a receipt for a jacket he had bought. The money you have handed to me is the same money we took off the defendant Tommie Knight. We never did find his billfold that night.' The shirt exhibited to me is the shirt Tommie Knight was wearing the night we arrested him; and it was bloody at that time.”

The receipt taken off Tommie Knight for $1 was introduced in evidence over the objections of the defendant.

The witness continued:

“This receipt was in his pocket at the time we arrested him. The $20 and the 25 cent piece shown me, we found on him at the time of his arrest. We went in a police car, but received information from a Mr. N. E. Lowery, a cab driver. He directed us where to go. We went to Brock Park on Southwest 29th street, and turned north on it It is the first street east of Pennsylvania and north of Southwest 29th street. We noticed a car with dimmers on, and so we turned around and went back to Southwest 29th, and then about to- Southwest 28th and Pennsylvania, and there found this 1936 Terraplane. Later I learned it was Mr. W. P. Dorris’ car. When we found this car it was about 4:30 in the morning. When we found the car, the lights were on dim. The car was damaged so that it would not run.”

N. E. Lowery was called as a witness. He testified that he drove a cab for the Capitol Hill Company; that he was on duty on the morning of April 16, 1938:

“I made a call about 3:58 in the morning. When I got to 29th and Kentucky, that boy sitting right over there was at that place at 29th and Kentucky. I didn’t know him at that time. I have since learned his name is Tommie Knight. There was no one with him at that time. He got in the car; and I asked him where he wanted to go. He said to head it west. He said he had a couple of girls out there that were drunk, and he wanted to go and pick them up. He said for me to go to the first little short street this side of Pennsylvania on the east side of that park. I drove north about 75 yards, and he told me to stop and turn my lights out, and he would go and get the girls. I stopped and turned my lights out. He went out there around in the bushes, and I figured he had some one out there and needed help. He had two girls out there that were drunk, but he came back and said they were gone. This was on the east side of the park. I drove north about a block and a half. There is a blind street. It is not opened through. I turned there and went back to 29th, and then west to Pennsylvania; As we were driving along through the park, we saw a parked car setting there with dim lights. I don’t know what kind of a car it was. I didn’t stop. I drove around there; and he asked me what it would cost him to go to Happy Time Night Club; and I told him. We were out there about five minutes. The place was closed up and dark. From there we went to Swing Time Night Club, which is on Southeast 29th. We were there about 15 or 20 minutes. He was talking quite a bit of the time. He made a remark two or three times, and said, ‘Now you don’t know nothing.’ I told him, ‘I don’t know nothing.’ In the meantime he told me he had been in the penitentiary, and said if anything has happened out in this end of town,, they could lay it on me. He cautioned me if I happened to be stopped any place, not to tell where I got him or had taken him. We never did find the girls. I let him out in the one hundred block on California in front of the Logan Hotel. He gave me $2.50 for my driving.”

Mr. Wahl testified that he was a member of the Highway Patrol, and received a call in the early morning of April 16, to go to the tourist camp on the road southwest of town:

“The tourist camp is in Oklahoma county. The section line there is the county line; and the tourist camp is on this side of the section line. I saw W. P. Dorris at the camp. He was in the office of the camp when I first got there. At that time I had not seen. Tommie Knight or the girls. When we got to the tourist camp, W. P. Dorris was there. His eyes were practically swollen shut, and his nose, I believe, double the width it is at the present time. His face was terribly beaten up. He was bloody, and was terribly beaten up and in sort of a daze he had been beaten so bad. By Mr. Perry: We object to that. By the Court: Sustained.”

The witness continued:

“I received a billfold at the Davis Tourist Camp. Mr. Dorris handed it to me. I later went to the police station, and saw Tommie Knigbt there. He was under arrest when I got there.”

The witness examined the shirt, marked state’s exhibit 2, and identified it as the shirt Tommie Knight had on when he got to the police station.

Frank Gough was called as a witness for the state; and the defendant interposed an objection for the reason that the witness’ name was not indorsed on the information; which objection was overruled by the court. The defendant excepted.

The witness stated that he was a member of the police department, in the bureau of records; that he fingerprinted Tommie Knight, and took his picture. “I took a picture of Mr. Dorris at his home. I took the picture on the 16th day of April.”

Over the objections of the defendant the picture of Dorris was introduced in evidence.

W. P. Dorris testified that he lived at 1312 Northeast 17th street:

“I work for the Frisco Railroad, and have for about 20 years in November this year. I am a married man, and have a child by my first marriage. On April 16th or late in the evening of the 15th, I went down to the A & A Buffet. This cafe is on Reno. I met two girls. I have seen them here today. They testified as witnesses. Their names, I believe, are Juanita Price and Jewell Mashburn. Up to that evening I had never seen Tommie Knight. I met him that night. The girls called him over and introduced him to me. We went automobile riding that night. I could not tell the jury how many different places we went. The four of us went together and rode in my car, a Terra-plane 1936. I don’t know the number. The tag is 78 — 033. After we had been to the different night clubs, we started to the Davis Tourist Camp on Highway 277. This camp is in Oklahoma county. Tommie rented the cabins. I paid for it. We went in tbe cabin; and tbe next thing Tommie bit me. Every time I would start to get up, be would bit me again, and then be must have knocked me out, because when I came to, they were gone; so I came over to- tbe cabin' office and told tbis man I bad been beaten up. When we started out that evening, I bad $40. When we got to the cabin, I bad $26. When I came to myself, and came out of tbe cabin, I didn’t have any money. I did not give any one permission to take my money; nor did I give Tommie Knight or any one else permission to take my car away from where it was parked. I immediately told the man in tbe cabin office to call tbe officers. In a short while they came. When tbe officers came, my bead and face were beaten, my cuts were all bleeding, and I couldn’t hardly see out of my eyes. I don’t know what I was bit with. It must have been with bis fist, because nobody else could bit me that bard besides Tommie. I felt like something awful bard bit me. I must have been kicked, because my face could not have been in tbe condition it was without being kicked. There were cuts in my upper lip inside and out, and my eyes Avere black. My nose was swollen twice its natural size. It was cut inside, and some stitches were taken. All of tbe bills and money I had was taken there that night. The next time I saw Tommie Knight was at tbe justice court.”

Tbe witness pointed out the defendant on trial as being the Tommie Knight that robbed him.

On cross-examination tbe witness stated that be was 35 years old, married, bad a family, one child by a previous marriage: .

“I met these people at 7:30 or 8:30 in tbe evening. I first saw tbe two girls, and I got to talking to them. Later Tommie came along. I was introduced to him. I suggested that tbe four of us go riding. I didn’t suggest that we go on Reno and get some whisky. We got tbe whisky. I don’t recall who paid for it. I wouldn’t say that I didn’t pay for the whisky. After they got that liquor, I believe we went to some night club on 29th. It Avas known as a dance hall. I do not know how long we stayed there. From that place we went on to some other place. We went to one, I believe, that was called the Happy Time. We were there probably an hour. From there we went to the cabins. I don’t know of any second pint of whisky. If there was a second pint of whisky bought, I know nothing of it. I don’t recall that I paid for a second; pint or that there was a second pint. I wasn’t drunk. I didn’t commence pulling off my coat and lay my money on the table in the cabin. I must have had my money in the billfold or my pants pocket. It was not laying on the table. When I came to, I was laying on the bed. I don’t know where I was when the two girls and the defendant Tommie Knight left. I was not standing at the door watching them. I did not have any money on the table. I don’t know whose money Avas on the table, if any one’s: After I came to my senses, I talked to the tourist cabin manager. Mr. Wahl, I believe that’s his name, was the first officer I talked to. I didn’t talk to Bill Eads. The defendant and the girls did not stop me in the road. I didn’t tell anybody that these people stopped me in the road. The only statement I made was in the justice court. I did not testify, in the justice court that they stopped me in the road. I told them I met them in the A & A Night Club. I did not talk to Bill Eads about this.”

On redirect examination the witness stated:

“I do not know how many times I was struck. I know it must have been several. I do not remember seeing the girls and the defendant leave the cabin. I do not remember the man who runs the cabin finding a billfold and giving it to me. I had a billfold. I went in the cabin with the money I described, and came out without it. If it was on the table or in my pocket, it was taken from me and without my consent.”

The foregoing is the substance of the evidence for the state.

Murray Gibbons, called as a witness on behalf of the defendant, stated that he was an attorney, licensed to practice law in the state of Oklahoma, and maintained an office in Oklahoma City. “I know Tommie Knight. I have known him for a little over a year. I think I first became acquainted with him in April or May last year.”

The witness testified to having had some business with the defendant in the nature of collection of claims. He stated that the defendant got his money he collected for him sometime the latter part of March.

Juanita Price was called for cross-examination:

“My name is Juanita Price. I am the same Juanita Price who testified in this action before in this court. I knew I was charged here for participation in the crime that is alleged against the defendant in this case.”

Louise Mashburn was recalled and cross-examined further, and admitted that she knew she was charged jointly with' the defendant in this case.

When the state rested, the defendant demurred to the evidence of the state, and moved the court to instruct the jury to return a verdict of not guilty in this case. The demurrer was overruled; exceptions saved.

Bill Ketchum testified:

“My name is Bill Ketchum. I run the Happy Time Night Club. I saw the defendant at my place of business the night it is alleged that this robbery took place. It was about 10:30 or 11 o’clock. He bought some beer and paid for it. He had money.”

On cross-examination the witness said he did not see any one with him.

“There was a bunch of girls there, but I don’t know whether any of them were with him or not. I do not remember seeing this man that he beat up. He could have been there, but I did not pay any attention to him. The defendant drank some beer out at my club that night. The next time I saw him after that was at the preliminary. I don’t know when it happened. The only thing that I know is that the constable came out and asked me if I saw him out there. He drank two bottles of beer. There was quite a few customers, but I do not know how many. I have a place where I sell beer. He was standing against the bar when he was drinking his beer.”

Selma Justice, called as a witness, stated:

“My name is Selma Justice. It is Justice, but it was O’Donald then. I work at the Toot-and-Tell’em Barbecue. That is at 1530 Southwest 29th street. It was on the 15th and 16th of April. I know the defendant. I saw him there on about the 15th of April, 1938. I don’t remember just what time he came in. It was at night, in the latter part of the evening, somewhere around 7 or 8 o’clock, something like that. I think he bought a bottle of beer and two or three cokes, and maybe some gum. He made some purchases. Well, he had some money in his billfold. I saw some bills in his billfold. I don’t know how many.”

On cross-examination:

“My name was Selma O’Donald when this happened, when Tommie knew me at that time. I have known Tommie off and on, I guess, for the last five or six years. I didn’t know him before he went to the penitentiary. They do not dance at my place. It is just a barbecue stand. I wouldn’t know if some one came with Tommie to the barbecue stand or not. At the time Tommie was in there, it was a time when we were not very busy. I don’t believe that I saw him after that evening until today. I think he drank two cokes there, and he bought the girls all a coke that were in there, Mary Ellen and Marie, and I think Edith one, and bought George something to drink.”

Mary Ellen Clark testified in substance to the same facts as did .Selma Justice.

George E. Reinert stated that his name was George E. Reinert and that he ran the Toot-and-Tell’em Barbecue Stand.

• “The defendant was in my place the latter part of the week. I don’t know exactly what day, but he was around there until about ten in the evening, and bought the girls some drinks, and bought me a coke. He paid for the drinks with a dollar bill. He had some more- bills in his purse. I don’t know the denominations.”

Tommie Knight testified for himself:

“My name is Tommie Knight. I am the defendant in this case. I am 23 years of age. I have lived in Oklahoma City going on 16 years. I am a rig builder; worked at that close to three years. I first met up with the complaining witness at the A & A Cabaret. That is located on BenO'. I know Louise Mashburn; have known her about five or six months. I have seen Juanita Price twice. About 8:30 in the evening, I judge, when I went into the cabaret, I walked in and they were sitting there drinking beer. I walked on past them, and Louise got up and came on up to talk to me, and they asked me to sit down. I told them, ‘No,’ that I had some business to attend to-, and I left. I went up to the White-Way Cafe at 125 West Beño. I probably stayed there about thirty minutes, and came back down to the A & A. When I got back down to the A & A, I walked back to the back. They had been out somewhere else. I don’t know where they had been; but they came back in, and wanted me to go with them riding. I told them, No,’ I didn’t care to go, and they insisted. I didn’t tell them I was broke. I told them I didn’t have any money to' spend. Mr. Dorris said that was all right, they did not care, to come and go with them; and I went with them. We went to 211 West Eeno to get a pint of whisky. Mr. Dorris bought it. The whole bunch drank it. We went from there to other places, and drank beer; then we went to the Happy Time. Dorris got the second pint of liquor, and paid for it. From there we went to the cabin at Mr. Dorris’ suggestion. All of us went in the cabin. All of us were in the cabin, and Mr. Dorris walked in first; I was next; and the girls walked in behind us. Mr. Dorris pulled everything out of his pockets and laid them on the table. He had a bottle of whisky, and put that on the table; and me and Mr. Dorris had a drink of whisky. He drank a couple of swallows more than I did. I didn’t drink much. I drank last. He walked around behind me and took, hold of Juanita Price. He took hold of her arm, and said, ‘Come on,’ and said something else to her, and said, ‘Come on, I am going to get in your breeches,’ and when he did that, I turned around and knocked him down. He tried to get up, and I hit him and knocked him down, and he tried to get up, and I knocked him down again. I reached down and got him under the arms right up under here (indicating) and started to set him on the bed; and when I did, he hit me over on the side of the chin, and grabbed me around the neck; and when I got him loose, I hit him four or five times; and then he sat down on the bed, and said, ‘Don’t hit me no more,’ and threw his hands up (indicating). He was pretty bloody. When I turned around toward the table, he raised up like he was going to hit me again; and when he did, I turned around and hit him again. When I did, he caught my arm and pulled me down on the bed with him. We wrestled on the bed and fought for quite awhile. Finally he said, ‘Let’s don’t fight any more.’ He said he had enough. Then I got back up; and he said, ‘Let’s leave here and let’s go back to town.’ The girls said they were not going to ride with him; he was too drunk. The girls wet a towel and handed it to me; and I wiped the blood off my hands. I pitched it to Mr. Dorris, but he just lay back down on the bed and put his hands over his face. The girls were crying and saying. ‘You have killed him.’ I said, ‘No, I haven’t killed him. He will be all right.’ We went out, and I said, ‘Bill, I am going to take the girls home, and I will be back after you.’ He never said anything. I walked over and told him again I was going to take these girls home, and that I would be back after him. He said, ‘O. K.,’ and we went out and got back in the car. That was what he said. We got in Dorris’ car, and drove off. We got to 28th street and Pennsylvania avenue, and the car went dead. We went over a railroad track, and Louise bumped her face right against the dashboard. I did not hit either one of the girls. I went up to the city and got a taxi, and went back and tried to find the girls, biit they had gone. I got out of the taxi in front of the Morgan Hotel, and could not see the man I wanted to see, and walked around to the Sheaffer Beer Garden, and ordered a cup of coffee. The law came in and got me. I did not take Mr. Dorris’ money.”

On cross-examination the witness stated that Tommie Knight was his correct name; and the substance of his cross-examination which covers 15 pages of the record is the same as the direct examination, showing the different places where they had gone that evening before they went to the cabin; and the defendant specifically denied that he took the money. He admits he drove the prosecuting witness Dorris’ car away from the cabin.

In rebuttal testimony of the state, Juanita Price was called and stated that when they went into the cabin that Mr. Dorris did not say anything insulting to her; nor did he do anything insulting.

“He did not say, ‘Come on, I am going to get into your breeches.’ When we got ready to leave, we girls did not say that Mr. Dorris was too drunk to drive us, and that we did not want to go with him. The defendant did not say that he would take us girls to town, and that he Avould come back and get Mr. Dorris.”

Louise Mashburn was called in rebuttal:

“I did not hear Mr. Dorris say to Juanita Price, ‘Come on, I am going to get in your breeches.’ There was nothing said by Dorris before the defendant hit him. When we were leaving, the defendant did not say to us girls that he would take us to town and come back and get Dorris. We did not refuse to ride back to town with Dorris; nor did we say that Dorris was too drunk for us to ride with him. I don’t know now what he said to him when we were in the cabin. I knew he was going to take us to the tourist cabin when we started out there, because that is where he said we were going.”

"Paul Nowlin stated that he ran the Davis Tourist Camp.

“This billfold and the driver’s license registered to Tommie Kniglit, I first saw in the station. My wife found it in the cabin. It did not have any money in it at the time it was found. When they left the cabin in the car, I would say they were driving 40 miles an hour.”

On cross-examination the witness stated it was night and dark, but the moon was shining.

At the close of the testimony, the case was argued by the attorneys, and the jury returned the following verdict (omitting the caption) :

“We, the jury impaneled and sworn in the above entitled cause, do upon our oaths find the defendant guilty and fix his punishment at imprisonment in the state penitentiary for a term of 40 years. J. D. Oasey, Foreman.”

Motion for a new trial was filed, in which the defendant alleged 13 errors; which motion was overruled; and defendant reserved an exception.

The first assignment of error filed by the defendant is error of the trial court in overruling motion of plaintiff in error for a new trial. The motion for a new trial includes all of the other errors alleged by the defendant; and the defendant in his argument insists that the court, in giving instructions 1, 6, and 8, erred as to the law.

This court has carefully examined the instructions of the trial court; and when considered in their entirety, they correctly advised the jury as to the law applicable to the facts.

The defendant in this case is not only guilty of robbery, but is guilty of making a vicious assault on the prosecuting witness, W. P. Dorris, and beating him into insensibility, and incapacitated him for any further resistance; then stole the money of the defendant and his car, and drove away from the cabin where the robbery took place; and as be drove away with tbe girls, be ran tbe car into a railroad track and wrecked it to sncb an extent that it would not run any farther. He left tbe girls that were with him, claiming that be would go get some conveyance to take them home, but, as shown by tbe record, when he got back down to where the car bad been wrecked, tbe girls bad gone.

The record in this case discloses that the prosecuting witness was a married man; that be bad gone down town, and dropped into these places known by every name imaginable; but on proper investigation they are dance balls, beer joints, and places where people often congregate to make plans to entice innocent people away from homes and get them out into cabins or on tbe highway; and then rob them of their properties; and young girls are often persuaded out to these hell holes and seduced.

This is a flagrant case of premeditated robbery; and from the record in this case, this court is inclined to believe that the girls acquiesced, if they did not participate, in the robbing of the prosecuting witness Dorris.

One of the girls testified that when the car was wrecked, the defendant in this case wanted to know what had become of the money. She told the defendant that she did not have it, but that she would go back to the car and look; and that she started back tO' the car; and when she got to the car, she saw the money lying on the ground in front of the door on the driver’s side of the car.

Keeping in mind that it was nighttime and the association these girls had with the defendant prior to this night, and that they had never met the prosecuting witness before, it is difficult to believe that this girl found the money on the ground.

It is more reasonable to suppose that she was carrying the money, and. had carried it from the time they left the cabin where they had robbed Dorris, until the wreck; and in the effort to get out, if the money was found on the ground, she dropped it.

Her testimony is not very clear as to why she volunteered to go back and look for the money, and then accidentally found it on the ground that night.

The record shows in this case that the girls were mere children, one 14 years of age and the other 17, out at night ■ without any parental protection or friends with them, picked up a stranger, and going from dance hall and beer joint to dance hall and beer joint, drinking whis-ky, and then going out to a tourist camp where cabins were rented.

The record does not show for what purpose the cabins were rented, but it indicates they were rented for immoral purposes.

The defendant had been convicted prior to this robbery and had served a term in the penitentiary.

It is not deemed necessary to extend this opinion further, except to- say that considering all of the facts and circumstances in this case it is the opinion of this court that the defendant, assisted by the two girls that were with him, robbed Dorris of his money and of his car.

The defendant Knight was a habitual criminal; and while the punishment imposed by the jury in this case seems large, yet this court feels that the only way to break up the robbery of these people is to sustain the verdict of the jury, where the defendant has been given a fair and impartial trial.

Finding' no* errors in the record warranting this court in reversing tbe case, the judgment of the trial court is affirmed.

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


author: BAREFOOT, J. BAREFOOT, J.

text:
    CARL DANNENFELSER v. STATE.
    No. A-9650.
    Nov. 9, 1939.
    On Rehearing Dec. 12, 1939.
    (95 P. 2d 913; 96 P. 2d 1065.)
    J. P. Evers, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Dixie Gilmer, Co. Atty., and Ed Crossland, Asst. Co. Atty., both of Tulsa, for the State.
   BAREFOOT, J.

The defendant was charged with the crime of forgery in the second degree, in the district court of Tulsa county; was tried, convicted, and sentenced to serve a term of five years in the penitentiary, and has appealed.

He filed a motion for new trial, which was overruled by the court, and he then made application to have a case-made prepared at the expense of the county. Testimony was heard by the trial court upon said application, and, after such hearing, the application was denied. We have examined the evidence and do not see that there was an abuse of discretion by the trial court in refusing this application.

The appeal was by purported transcript, and we have examined the same. It contains the information, and upon examination we find that the same was in proper form. The transcript does not contain the instructions of the court as required by the statutes. Oklahoma Statutes 1931, § 3146, 22 Okla. St. Ann. § 977.

In the case of Gaines v. State, 61 Okla. Cr. 8, 65 P. 2d, 422, this court said in the syllabus:

“1. Whether a transcript of the record shall be furnished the defendant at the expense of the county is a question to be left to the discretion of the trial court, and unless this discretion has been abused, it will not be set aside.
“2. When an appeal is had upon a transcript, the court will examine the indictment or information, or any demurrer or plea thereto, the minutes of the trial, the instructions given by the court or refused, and the judgment of the court. If no jurisdictional or fundamental error has been committed, the judgment will be affirmed.”

In the body of the opinion the court said:

“It will thus be seen that under the statute the granting of the request to furnish the record at the expense of the county is a matter left to the discretion of the trial judge. This is as it should be. The courts should, and we are sure will, be careful in protecting tbe rights of defendants who are Avithout means and whose cases should be reviewed on appeal. But, on the other hand, the rights of the county should be guarded, and when the evidence shows that the defendant, or those who should assist him, are able to do so, then the county should not be required to furnish the expense of preparing the record.
“Trial courts should, and will, exercise their sound discretion in protecting the rights of defendants who have been convicted and who' desire to appeal their cases to the higher courts. No fixed rule ought to be established. Where extreme penalties have been inflicted, or where the court deems it proper that the questions involved are sneh that should be passed upon by the higher courts, or whether or not the appeal is frivolous, will all be taken into consideration by the court in the exercise of its sound dis--cretion, to the end that the rights of the defendant may be properly safeguarded, and also the rights of the county protected from the expense of unnecessary appeals. The mere filing of an affidavit by the defendant, or his statement that he is unable to pay the expense of the appeal, should not alone determine the right of the county to furnish the transcript of the record.”

Finding no error in the record, it is ordered that the judgment of the district court of Tulsa county be affirmed.

DOYLE, P. J., and DAVENPORT, J., concur.

BAREFOOT, J.

The defendant, who is now confined in the penitentiary at McAlester, by reason of the fact that he conld not make bond, and had no means to employ counsel to- represent him, filed a petition for rehearing, and the same was granted by this court, and was set for rehearing on December' 12th, 1989. At this time a hearing was had before the court, and at the suggestion of the Pardon and Parole Attorney, the defendant was permitted by the Governor to attend this hearing in person. The. County Attorney of Tulsa County was also present at the hearing.

Without detailing- the facts as they were developed it is the opinion of the court, after hearing these facts, that justice will be done by modifying the judgment and sentence in this case from five years in the penitentiary to one year in the penitentiary. The trial court indicated, when overruling the motion for new trial, that if he had the power under the law, he would reduce the judgment and sentence. The county attorney of Tulsa county agreed that the reduction to one year’s imprisonment in the penitentiary would be in the interest of justice. The judgment and sentence of the district court of Tulsa county is therefore modified and affirmed as above stated.

The warden of the penitentiary at McAlester is directed that if this defendant has served sufficient time in the penitentiary to satisfy a term of one year as provided ■by the law, and the rules and regulations of the prison, to immediately discharge him. If such time has not been served, defendant will be detained until said term is satisfied.

DOYLE, P. J., and DAVENPORT, J., concur.


text:
    W. L. KING v. STATE.
    No. A-9692.
    Nov. 16, 1939.
    (96 P. 2d 95.)

      R. N. Linville, of Elk City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State..
   DOYLE, P. J.

W. L. King, appellant, was informed against, tried, convicted and sentenced to pay a fine of $100 and be confined in the county jail for 30 days for the crime of unlawful possession of intoxicating liquor. The judgment and sentence was pronounced April 14,1939. Prom which judgment an appeal was attempted to be taken by filing with the clerk of this court on July 6, 1939, a petition in error with case-made.

The Attorney General, on August 17, 1939, filed in this court a motion to dismiss the appeal, for the reason:

“That from said date the defendant had 60 days within which to appeal from said, judgment, and that for good cause shown he could have obtained an additional 60 days but that he did not ask for, nor receive, an order extending the time within which to appeal; and that, as shown by the record, said appeal was not filed until July 6, 1939, more than 60 days from the date of the entering of the judgment and sentence.”

Attached to said motion is a duly attested certificate of the trial judge, wherein he states:

“That said case-made, signed and settled herein on the 12th day of May, 1939, is true and correct and that the orders shown in said case-made are the only orders made and entered by said court, that the said county court of Washita county made no order herein granting an extension of time in said case in which to file an appeal beyond the time allowed by statute, that no application was made for such order herein.”

The Code of Criminal Procedure provides in part as follows:

“In misdemeanor cases the appeal must be taken within 60 days after the judgment is rendered: Provided, However, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding 60 days.” Section 3192, Sts. 1931, 22 Okla. St. Ann. § 1054.

It has been uniformly held that, in order to give this court jurisdiction, the appeal as prescribed by section 3192, supra, must be filed with the clerk of this court within the time which an appeal may be taken, and, where an appeal is not perfected by filing in this court a petition in error with case-made attached, or a transcript of the record, within the time prescribed by the statute, this court does not acquire jurisdiction of the appeal, and such appeal will be dismissed. Newton v. State, 38 Okla. Cr. 217, 260 P. 84.

For the reason stated, the motion to dismiss is sustained, and the cause remanded to the trial court, to enforce its judgment and sentence.

BAREFOOT and DAVENPORT, JJ., concur.