text:
    WATSON NED v. STATE.
    No. A-4859.
    Opinion Filed Dec. 26, 1924.
    (231 Pac. 550.)
    (Syllabus.) .
    1. Trial — Verdict to be Found on Evidence Producedi at Trial in Open Court in Presence of Accused. In a criminal prosecution the verdict of the jury must be found upon evidence produced at the trial in open court, in the presence of the defendant.
    2. Same — Juror not to Consider Facts Within His Knowledge not in Evidence. A juror, having knowledge of facts not in evidence, has no right to consider them in reaching a verdict.
    3. Same — Conviction on Verdict Reached on Statements of Juror as of Personal Knowledge Set Aside. A verdict of conviction will be set aside, where during the deliberations of the jury a juror makes statements to his fel’ows as of his personal knowledge concerning material issues in the case, and which influenced the jury in arriving at their verdict.

      4. Same — Search by Bailiff at Instance of Juror, to Determine Whether Accused Armecí,; and Report by Bailiff Held Misconduct on Part of Both. On a trial for murder, where it was made to appear, on motion for new trial, that the bailiff, acting on the request of a juror, searched the defendant to see if he was carrying a pistol, then reported to the jury that he made the search and found him unarmed, held, misconduct on the part of the juror and the bailiff.
    Appeal from District Court, Marshall County; Porter Newman, Judge.
    Watson Ned was convicted of manslaughter in the first degree',, and he appeals.
    Reversed, and new trial granted.
    Minter & McClendon, Ratliff & Ratliff, Marion Shelling, and Don Welch, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore and G. B. Fulton, Asst. Attys. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Watson Ned, was charged by information with the murder of Will Ritter. Upon the trial the jury found him guilty of manslaughter in the first degree, and assessed his punishment at imprisonment in the penitentiary for the term of 99 years. A motion to set aside the verdict and for a new trial was duly filed, which was overruled, and on the 29th day of May, 1923, judgment was rendered in pursuance of the verdict. To reverse the judgment this appeal was taken by filing in this court on September 24, 1923, a petition in error with ease-made.

Among the assigned grounds for reversal are: The receiving of evidence out of court; misconduct of the jury in having the defendant searched by the bailiff, and by causing the result of the search to be communicated to them; misconduct of the jury as shown on the hearing of the motion for a new trial.

The Attorney General has filed a confession of error, which we adopt as the opinion of the court. It is as follows:

“The record discloses the following facts, to wit:
“At about 11 o’clock on the morning of December 9, 1920, Will Ritter and one of his relatives, Newt Ritter, who were collectors for the Singer Sewing Machine Company, went to the farm of Watson Ned, a full-blood Chickasaw Indian, who lived a few miles northwest of Madill, for the purpose of collecting $13, from plaintiff in error, which was due, for a sewing machine plaintiff in error had bought.
“At the time the collectors drove into his farmyard the plaintiff in error was out in the yard boiling water in an iron pot, preparatory to scalding a hog, and had laid a butcher knife and a high-powered rifle near by.
“The collectors informed him of their mission to the effect that they had come to collect the remaining $13 on the sewing machine. Ned told them that he did not have the money at that time, but if they would wait until about sundown he would get it for them; that he was expecting a warrant from the county clerk; and that if they would wait until the mailman arrived that he would pay them off. The collectors told him that they had waited long enough to collect this money, and had been instructed to either collect the money or take the sewing machine; that the contract under which the sewing machine had been sold to Ned provided that in case payments were not made that the company or its agents had a right to take back the sewing machine. Ned told them that he did not think they had a right to go in his house and take the sewing machine, but that if they would wait upon him for a few hours he would get the money and pay them; but they refused to wait any longer, and said it was their intention to take the sewing machine at that time. Ned told them he would not permit them to take it off of his premises.
“This conversation lasted for about 45 or 50 minutes, most of which was a discussion as to the rights of the parties under the contract. The conversation became heated and inflammatory, and during the latter part the collectors took out their knives and began whittling on sticks. Ned becoming alarmed at this conduct, stepped over back of a small wood pile, picked up an ax, and began chopping wood. The collectors slowly walked around the wood pile toward him in a menacing manner, and making threatening statements. As a witness in his own behalf he testified as follows:
“ ‘Q. How long had you been actually talking about this; how long had they been there? A. Well, probably 40 or 50 minutes, something like that nearly; it seemed to me like that was the longest conversation over one thing that I ever heard from any man.
“ ‘Q. What else happened? A. Well, he says, “I came to get the machine; we are bound to have the machine or the money one.” “Well,” I said, “Well, you all go on because I ain’t going to let you go into the house and get the machine at all, not at all.” And the conversation was getting pretty high, and I was a little bit afraid, and wanted to get them off; I thought they had been there long enough too. I said, “Well, you go on, and I will go and get the horse, and I will be on after you and settle this thing.” Just as I was saying that, I didn’t want to stay there any longer. I turned this way. That is the first time I took my face from them two men there at the door.
“ 'Talk louder.
“ ‘A. I say that was the first time I taken my face from their face, from the face of them men since we met at the door, and so I says, like that old man was there and the young man there, and I was standing out here, and as I says that I turned this way, and in turning I said, “You need not think of going in that house and getting the machine out, ’ ’ and just as I turned about like that, I was looking back, and the young—
“ ‘Q. Why did you walk back? A. I was afraid they would jump on me, and I had that little wood pile between them; they had their knives, and I had the ax, therefore I thought I had protection there, and that is why I walked back to the fire.
“ ‘Q. How did you get to your gun? A. Well, I was— says to them, “If you will wait, I will go and get my horse,” and in doing so I walked around and picked up a bucket of water, and put it on the fire, and put it out. They was sorta back here. I made the excuse— there was a bucket of water setting back there, and this gun, I will show you where it was, right there, right in here, so I making that excuse I walked out there thinking to make them think I was going to pick up the bucket of water when I got there; I walked and made a jump and went around and got the gun. Of course they was walking around on that side, and I walked around on this side, and we met at the east door.
“ ‘Q. What did you start to get your horse for? A. After I put out the fire, I aimed, to come to town, provided if I didn’t get that warrant in the mail that was coming that day.
“ ‘Q. Did you tell them that you were going to get your horse and come to town if it didn’t come on the mail? A. Yes. Said, “God damn it, we will show you,” just as I was looking back, I hadn’t quite taken my eyes off both of them — not both of them, one of them there, and I seen him make a step with his right foot, with his foot that way, and of course all that was left to me was to shoot, and I shot when he done like that, and one went that way and the other one this way.’
“The plaintiff in error was tried and convicted for the murder of Newt Bitter and his punishment assessed at 7 years in the penitentiary, and was again tried in this case and convicted, and his punishment assessed at 99 years. The plaintiff in error herein filed a motion for a new trial, to which was' attached two affidavits to the effect that the jury, during its deliberations, received evidence out of court, and the bias and prejudice of some of the jurors which resulted in an unfair trial.
“These two questions constitute the. only assignment of error. The affidavits attached to the motion for a new trial were as follows:
“ ‘I, C. A. Beane, being first duly sworn on oath, state:
“ ‘I attended the trial of Watson Ned in the district court of Marshall county, Okla., which was held on the 8th, 9th, and 10th of May, 1923; I was in Madill on the night the jury was deliberating on their verdict in said ease, and while sitting on the lawn in front of the county courthouse heard one of the jurors make the following statement: “I do not care what the charge says, or what those lawyers say, I know what is in that contract. I worked for a man who used that kind of a note, and that Indian knew that those men had a right to get that machine. Anybody knows that who can read. I can’t read much, but I can read enough to know that, and I will tell you what the contract says. It says the dealer has a right to go into your house or anywhere else that you can find the stuff whether you agree to it or not, and you can get one of those contracts and read it, and if it don’t say that I will agree to turn him loose.” The same man also said that he knew all about a high-power rifle, and that they kicked worse than a shotgun, and, if that Indian had held that gun as he said, it would have jumped clear out of his hands. In reply to a suggestion that he should have about what he had been given in a former trial, the same man who had made the statements said, “Yes; and if we give him that he will appeal or be pardoned and come back here and kill half of us.”
“ C. A. Beane.’
“ ‘I, J. R. McClendon, being duly sworn on my oath, state: That I am one of the attorneys for the defendant in cause No. 496, wherein the state of Oklahoma is plaintiff and Watson Ned is defendant; that on the night of May 9, 1923, while sitting on the courthouse lawn, west of the courthouse, in conversation with Mr. C. A. Beane and another person, whose name I do not know, my attention was attracted to a discussion of the case, then on trial, by the jury, which was then in the juryroom in the southwest corner of the county courthouse; while discussing this verdict, I heard one of the jurors say in substance that it did not matter what the charge of the court said, or what the attorneys said, that he knew something about those contracts, meaning “the contract on which Watson Ned purchased a machine from the Singer Sewing Machine Company”; that it had not been brought out in the testimony; that he knew that those contracts gave the Singer Sewing Machine Company the right to enter the defendant’s premises or any one else’s premises and take sewing machines whenever they could find them, no matter whether it had been sold or traded, or how the party .got possession of it; that he had worked for a man who used the same kind of contracts, and that he had read them and knew what they contained; that anybody who could read could understand; that he couldn’t read much, but that he could read enough to know that when he signed one of those contracts that he gave the company a right and thereby consented that they might come to his premises and take the machine whether he told them they might take it or not. Another juror suggested that he thought that he had a right to defend his home and his property, but that he did not believe that he had a right to kill those people, that he thought he should have about the same sentence as he had in the other case. In reply to this, the party who had made the statement with reference to the contract said, “If you are going to give him 5 or 10 years, he will appeal the case or be pardoned, and come right back here and kill half of us, and that before he would agree to give him that, he would turn him loose.” The same juror also stated that the stuff he swore about the manner in which he held the gun- was absolutely untrue; that he knew of his own knowledge all about a high-power rifle; that they kicked worse than a shotgun; that if the Indian had held the rifle as he said he did, that it would have jumped out of his arms, and that this fact would have been easy proven by Sneed if he had tried. Affiant further says that he was also informed by the bailiff who had charge of this jury, that the question of whether or not the defendant had a pistol was discussed at the McCoy restaurant, and that he told the jury that he did not believe that he had a pistol; that he thought the thing he saw in his pocket was a bunch of papers, but that some of them insisted that he should be searched; that when they returned to the courthouse, he went to the defendant and told him that the jury thought he had a pistol; that he didn’t think he had, but that he just wanted to see so that he might assure the jury; that he examined him and he did not have a pistol; that he went back to the jury and told them that they need not be uneasy; that what he had was only a bunch of papers.
“‘J. R. McClendon.’
"Under these two affidavits plaintiff in error in his brief argues that the evidence which the jury received out of court is of two kinds, first, evidence as to the kicking power of the gun used by the defendant; second, evidence as to the kind of contract deceased had with reference to their right to enter the home of the defendant over his objections. The contracts were not introduced in evidence, and on the motion for new trial the above affidavits were not rebutted by the county attorney.”
‘ ‘ Section 20, art. 2, of the Constitution, provides that one of the constitutional rights of the defendant is 'to be confronted with the witnesses against him.’ In the case of A., T. & S. F. Railway Co. v. Davis & Young, 26 Okla. 359, 109 P. 551, the rule was laid down: 'When it is reasonably within the power of a party to offer evidence upon the facts, and rebut the inferences which the circumstances tend to establish against him, and he fails to offer such proof to rebut same, the natural conclusion is that the proof, if produced, would support the inferences against him, and the jury is justified in acting upon that conclusion.’
"In the case of State v. Lowe, 67 Kan. 183, 72 P. 524, the Supreme Court of Kansas said: ‘(1) A new trial for misconduct of the jury should be allowed where a juror of his own personal knowledge states to his associates, while deliberating on their verdict, facts, prejudicial to the defendant which are not in the testimony, unless it is shown that the defendant suffered no prejudice from the misconduct. (2) The defendant, who was charged with the larceny of property, and who claimed to have taken the same by mistake, may testify directly as to his intention in the taking of the property.’
“In the case of State v. Burton, 65 Kan. 704, 70 P. 640, another Kansas case, the court said: ‘ (1) When a juror in a capital ease makes a statement to his fellow members about material matters outside the evidence, and of a prejudicial character, based on his personal knowledge, it will vitiate the verdict, unless a clear showing is made that the defendant suffered no prejudice from the misconduct. (2) While the law allows a separation of the jury, with the permission and under proper admonition of the court, until a final submission of the ease, if it appears that enemies or friends of the accused will endeavor to influence the jury, or that jurors, in commingling with the public during the trial, will be exposed to improper extraneous influences, or be affected by the passions or prejudices existing outside the courtroom, it is within the province and duty of the court to keep the jury together under the restraining supervision of an officer during the trial. ’
“This ruling was also adhered to in the following cases:
“ ‘The modern jury must arrive at their verdict from evidence regularly produced in the course of the trial proceedings, and so it is that the jurors cannot act on their personal knowledge in arriving at a verdict. Nor are they privileged to influence other jurors by making statements as of'personal knowledge concerning material issues in the case. If, such statements are made, and the jury thereby influenced, the verdict will be set aside. To this rule no exception can be admitted, either in civil or criminal cases. In criminal eases more emphatically there can be no exception because among the rights absolutely secured by the Constitution to the accused is the right to be confronted with the witnesses against him.’ 16 Ruling Case Law, p. 304, citing State v. Gaymon, 44 S. C. 333, 22 S. E. 305, 31 L. R. A. 489, and note 51 Am. St. Rep. 861;.People v. Dunn, 157 N. Y. 528, 52 N. E. 572, 43 L. R. A. 247; and the note in 134 Am. St. Rep. 1053 et seq.
“ ‘Defendant was charged, under section 31 of the crimes act, with carnally and unlawfully knowing a female under the age of 18 years. After the jury had retired to consider of their verdict, and had discussed the guilt and innocence of the defendant for about 15 minutes, two ballots were taken. Nine jurors voted for conviction, and three for acquittal. Then, while the jury were consulting in regard to the age of prosecutrix, one of the jurors stated to the other members of the jury that ‘‘three years ago she was a small girl, wearing short clothes, and that he saw her about three years ago at a baptism in short dresses,” and other similar language, and thereupon one of the jurors who had voted for acquittal said: ‘‘If that’s the case, we will vote for conviction.” Then a ballot was taken, a conviction unanimously voted for by all the jury. Held, that a new trial should be granted.’ State v. Woods, 49 Kan. 237, 30 P. 520.
“ ‘It is ground for new trial that one of the jurors, on a trial for false pretenses, stated as a fact, while the jury were deliberating that defendant had been convicted on a former trial, and also that he had defrauded a third person, whose evidence in that regard had been excluded.’ State v. McCormick, 57 Kan. 440, 46 P. 777, 57 Am. St. Rep. 341.
“ ‘New trial for misconduct of jury should be allowed where a juror states of his own knowledge facts prejudicial to defendant which are not in evidence. State v. Lowe, 67 Kan. 183, 72 P. 524.
“ ‘Where one of the jurors stated in the presence of his fellows and during their deliberation that he knew that defendant had been selling beer, because he drank some of it himself, and that he knew that defendant had followed the liquor business for years, whereupon the jury, which had stood largely for acquittal, agreed to a conviction, a new trial should have been granted.’ State v. Duncan, 70 Kan. 883, 78 P. 427.
“ ‘Where it was in issue whether the person who sold the liquor was an employee of defendant, it was ground for new trial that one of the jurors stated in the consultation room as of personal knowledge that such person was in the employ of defendant.’ State v. Beam, 1 Kan. App. 688, 42 P. 394.
“ ‘A juror, in a prosecution for grand larceny, swore that he did not know defendant, that he knew nothing of the case, and that he was without prejudice, but when the jury retired he stated that defendant was equally guilty with a codefendant who had confessed, because both were members of a certain tough gang. Held ground for a new trial. ’ State v. Parker, 25 Wash. 405, 65 P. 776.
“ ‘In a prosecution for conniving at. the prostitution of his wife, where accused had stated that a certain place at which he worked was a saloon and a restaurant, and that his wife stayed at the hotel which was at the same place, a statement by a juror in the jury room that, if the jurors would go to the house, “they would find it to be a house of prostitution yet,” was ground for a new trial.’ State v. Lorenzy, 59 Wash. 308, 109 P. 1064, Ann. Cas. 1912B, 153.
“ ‘Where a juror in a capital case makes a statement to his fellow jurors about material matters outside the evidence, and of a prejudicial nature, based on his personal knowledge, it will vitiate the verdict., unless no prejudice is clearly shown.’ State v. Burton, 65 Kan. 704, 70 P. 640.
“ ‘It is reversible error for the jury, after retiring, to listen to statements of one of their number as to the credibility of a material witness.’ Tate v. State, 38 Tex. Cr. R. 261, 42 S. W. 595.
“ ‘Where jurors in an arson case, familiar with the locality in question, explained to fellow jurors that certain tracks in question could not have been made by one R., and drew a plat to illustrate, the evidence being on a material issue, and not sworn to by any witness, there was reversible error. ’ Buessing v. State, 43 Tex. Cr. R. 85, 63 S. W. 318.
“ ‘In a prosecution for burglary, in which defendant claimed that he casually went into the room to await the arrival of a train, a statement by one of the jurors, after going to the jury room, that defendant was lying, because, he (the juror) lived out that way, and the train did not stop there, was' misconduct, authorizing a reversal of the conviction.’ Dixon v. State, 46 Tex. Cr. R. 154, 79 S. W. 310.
“ ‘Where on a trial for burglary the jury at first stood seven to five for acquittal, whereupon one of them made statements derogatory to defendant’s morals, and stated that he had refused him permission to visit his house, and that all the citizens of the immediate community had contributed $5 each to prosecute horse thieves, and, referring to another case, stated that he did not remember whether defendant belonged to the D. gang of thieves, etc., a conviction based on circumstantial evidence will be set aside.’ Crow v. State, 47 Tex. Cr. R. 225, 82 S. W. 1033.
“ ‘Conduct of a juror in telling the jury, in the jury room, that defendant had hit prosecuting witness on the head with an ax handle on another occasion was ground for a new trial.’ Mann v. State, 47 Tex. Cr. R. 250, 83 S. W. 195.
“Under the foregoing statement of facts and the above-cited authorities, we think that this plaintiff in error did not receive a fair trial by an impartial jury of twelve men, but that the jury did actually receive and consider outside evidence prejudicial to the rights of this plaintiff in error. We therefore respectfully submit to this honorable court our confession of error, and suggest that this cause should be remanded back for a new trial. ”-

After a careful examination of the record, we conclude that the confession of error is well founded. The facts as shown by the affidavits and evidence produced in support of the motion for a new trial stand undisputed by the state. Our Procedure Criminal provides that a new trial shall be granted when a verdict has been rendered against a defendant by which his substantial rights have been prejudiced, “when the jury have received any evidence out of court, other than that resulting from a view of the premises.” Section 2754, Comp. Stats. 1921.

For such gross misconduct of the jury as appears from the proof in support of the motion for new trial, the verdict of the jury must be set aside, the judgment of conviction reversed, and a new trial granted to the defendant.

The warden of the penitentiary will surrender the defendant, Watson Ned, to the custody of the sheriff of Marshall county, who will keep him in custody until discharged therefrom according to law.

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


source: Caselaw Access Project

author: PEE CUEIAM.

license: Public Domain

text:
    AARON COKELY v. STATE.
    No. A-4707.
    Opinion Filed Dec. 30, 1924.
    (231 Pac. 330.)
    Appeal from Dewey County Court; E. L. Foster, Judge.
    Aaron Cokely was convicted of the manufacture of intoxicating liquor, and he appeals.
    Eeversed.
    Hoyt & Butler, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   PEE CUEIAM.

This is an appeal from a judgment of conviction rendered in the county court of Dewey county on the 7th day of April, 1923, wherein Aaron Cokely was adjudged guilty of the offense of manufacturing intoxicating liquor, and his punishment fixed by the jury at imprisonment in the county jail for 90 days and to pay a fine of $400. Several assignments of error are relied upon for reversal of this judgment. It will only be necessary to refer to two of them.

The first ground for reversal relied upon is that the evidence is wholly insufficient to sustain the conviction. This conviction is based upon the testimony of a self-confessed ae-complice, and an examination of the transcript of the evidence discloses that the only corroboration of the accomplice’s testimony, outside of hearsay and other incompetent evidence, is to the effect that the crime had been committed. The alleged corroborating evidence does not of itself tend to connect this defendant either directly or circumstantially with the commission of the offense. Such alleged corroboration is not sufficient to sustain the conviction. Section 2701, C. 0. S. 1921; Kirk v. State, 10 Okla. Cr. 281, 135 P. 1156.

The defendant did not take the witness stand in his own behalf. Special counsel employed to prosecute in his closing argument to the jury remarked “I wish it were possible that we could have heard what the defendant had to say about the case.” This remark constituted a comment upon the failure of the defendant to testify, and, under section 2698, Compiled Oklahoma Statutes 1921, is ground for a new trial.

After a consideration of the entire record, the conclusion is reached by the court that this conviction is not based upon any evidence tending to connect the defendant with the commission of the offense other than that of the self-confessed accomplice, and that the remark of special counsel, above referred to, commenting upon the failure of the defendant to testify was prejudicial to his substantial rights, and that there were other errors committed in admitting hearsay and incompetent evidence over the objection and exception of defendant.

For such reasons the judgment is reversed.


author: MATSON, P. J.

text:
    VIRGIL AMMONS v. STATE.
    No. A-4687.
    Opinion Filed Dec. 30, 1924.
    (231 Pac. 326.)
    (Syllabus.)
    1. Trial — Right of Accused to Affirmative Instruction on Theory of Defense. Supported by His Testimony. It is incumbent on the trial court to give, and the defendant has a right to have, when requested, an affirmative instruction to the jury applicable to his testimony, based upon the hypothesis that it is true, when such testimony affects a material issue in the case and would, if believed, constitute ground for reversal.
    2. Homicide — Exclusion of Evidence that Prosecuting Witness Had General Reputation of Being Violent and Quarrelsome, Erroneous. Where the issue of self-defense is raised and there is ..some evidence to support it, it is error to exclude evidence that the prosecuting witness, prior to and at the time of the difficulty, had the general reputation of being a violent, quarrelsome, and turbulent man, and that such general reputation was known to the defendant.
    Appeal from District Court, Marshall County; George S. Marsh, Judge.
    Virgil Ammons was convicted of assault with intent to kill by shooting, and he appeals.
    Reversed and remanded.
    On the 2d day of December, 1920, an information was filed in the district court of Marshall county, Okla., charging the plaintiff in error, Virgil Ammons, with an assault with intent to kill upon the person of one Jim Allen by shooting him. On the 12th day of December, 1922, the ease was called for trial in said court, and the defendant filed his motion for a continuance, which was by the court overruled, and the defendant duly excepted. Thereupon the trial was proceeded with; a jury was selected and sworn; and evidence introduced on the part of the state and the defendant.
    After both sides had rested, the defendant presented his four requested instructions, all of which were by the court denied, and the defendant excepted to the ruling of the court on each of said requested instructions. Thereafter, the court gave to the jury his written instructions and counsel argued the case to the jury. Thereafter and on December 13th, the jury returned into open court their verdict of guilty of assault with intent to kill and fixing the punishment of the defendant at confinement in the state penitentiary for 2 1-2 years. Thereafter and on the 15th day of December, the defendant filed his motion for new trial, and on the 16th day of December he filed his motion in arrest of judgment, and on the 16th day of December, 1922, both of said motions were overruled and judgment rendered on the verdict, and the defendant excepted and gave notice of appeal, and his appeal bond was set at $2,500, and on the same date he filed said bond and the same was approved.
    On the 23d day of January, 1923, the defendant filed his supplemental motion for a new trial on the ground of newly discovered evidence, and on the 24th day of January, 1923, this motion was overruled and the defendant excepted. On the 16th day of December, 1922, judgment and sentence was rendered on the verdict. Written notice of appeal was served on the court clerk and the county attorney of Marshall county, Okla., on March 31, 1923. On the 6th day of April, 1923, the case-made was duly served, and it was agreed between attorneys for plaintiff and defendant that the same was correct and plaintiff (defendant in error) waived notice of the time and place of settlement. On the 14th day of April, 1923, the case-made was duly settled by Hon. Porter Newman, the district judge, Avho overruled the supplemental' motion for new trial, and the same was attested by the court clerk, and on the 16th day of April the case-made was duly settled by Hon. George S. March, who as district judge tried the ease, and presided throughout the entire proceeding except the hearing on the supplemental motion for new trial, and the same was then attested by the court clerk, and on the 17th day of April, 1923, the completed case-made was filed in the office of the court clerk of Marshall county, Okla., and withdrawn for filing in this court.
    The assignments of error are as follows:
    (1) That the court erred in overruling the motion for a continuance.
    (2) That the court erred in overruling the motion for a new trial.
    (3) That the court erred in overruling the supplemental motion for new trial.
    (4) That the court erred in overruling the request of the defendant for an instruction on the law of self-defense and in refusing to submit that issue to the jury.
    (5) That the court erred in ruling out evidence offered by the defendant to prove the reputation of the prosecuting witness, the man who was shot, as to whether or not he was a turbulent, quarrelsome, and violent man; also, evidence that this reputation was bad and was so known to the defendant.
    The Attorney General has filed a confession of error, which is as follows:
    “This is an appeal from a judgment of the district court of Marshall county finding the defendant guilty of shooting with intent to kill and fixing his punishment at 2% years in the state penitentiary. The record discloses the following state of facts, briefly told:
    “ ‘The plaintiff in error and the prosecuting witness met on the roadside near the home of the plaintiff in error on the morning of the alleged shooting and engaged in a quarrel about certain damages done to one or the other’s crop by the livestock of the other one. They separated, and the prosecuting witness went to a neighbor’s house and sought to borrow a double-barrel shotgun. Ammons, the plaintiff in error, and his partner were engaged in threshing an oat crop on a tract of land jointly rented by them, and in the afternoon of the same day Allen, the prosecuting witness, appeared at the oats thresher riding horseback. He rode up and occupied a position where he could see Ammons and sat upon his horse for some little while. Ammons became somewhat concerned and went to his partner and told him to go to Allen and tell him to leave the premises; that he (Ammons) did not want to have any trouble with him, Ammons’ partner went to Allen and informed him of Ammons’ request. Shortly after this, Ammons drove his team into the field to get a load of sheaf oats and bring to the thresher. Some other person was engaged in hauling the threshed oats to the granary or barn and at about the same time that Ammons left the thresher, this party left there with a load of threshed oats for the granary and Allen went with him. When they arrived at the granary, Allen assisted the driver in unloading the oats, hitched his horse to the rear standard of the wagon, and rode in the wagon back to the thresher. It is contended by Ammons that when Allen first appeared at the thresher, he (Ammons) observed that Allen’s right-hand pocket contained something bulky which he (Ammons) thought to be a pistol. In this connection, Ammons was corroborated by other witnesses in this supposition. Ammons had returned to the thresher with a load of sheaf oats before Allen returned from the granary riding in the wagon. The driver of the wagon drove up and turned his wagon to back into the thresher for another load of threshed oats, and when the wagon stopped, Allen, who was seated on the side board of the wagon body near the front end, got up and walked toward the rear end of the wagon, and in doing so also walked in the direction of where Am-mons was standing. When about half the length of the wagon body, he thrust his right hand into his right pocket, and Am-mons began firing at him and fired three shots altogether. Allen fell in the wagon body, and when picked up by parties present at the thresher, there was discovered half a brick in the wagon body where he had fallen, which had not been seen there before he fell, and which there is every reason to believe, fell ont of his pocket. The above statement sets forth about all of the material testimony introduced.’
    “On the trial of the case Ammons admitted the shooting and entered a plea of .self-defense. When the court was asked to instruct the jury as follows:
    ‘ ‘ ‘ The law gives to every person the right in self-defense to- protect himself from unlawful attacks of his adversary, and, if necessary to save his own life or prevent great bodily injury, he may take the life of his assailant. The law of self-defense, however, is given to a citizen for his protection and is defensive in its nature and not offensive. It implies that the person unlawfully attacked has the right to use such force as reasonably appears to be necessary under the circumstances for his protection; but the law of self-defense does not imply the right of attack, and one who willfully and unlawfully provokes a difficulty, or who voluntarily enters into a difficulty armed with a deadly weapon believing that the same may prove fatal, cannot avail himself of the right of self-defense and shoot or injure his adversary, no matter how great his peril may become thereafter.
    “ ‘Now, in this case if you believe from the evidence, or have a reasonable doubt thereof, that Jim Allen attacked the defendant, or made an assault upon him at the time of the shooting with a deadly weapon, and that the defendant believed he was in imminent danger of being killed or receiving great bodily injury at the hands of the said Jim Allen, and that it was necessary for him to shoot the said Jim Allen in order to protect himself, then the defendant would be justifiable on the ground of self-defense in shooting the said Jim Allen. And in this connection you are instructed that it is not necessary that the danger of being killed or receiving great bodily injury be actual or real before the defendant would have the right to shoot said Jim Allen, but it is necessary that the said Jim Allen must have made some demonstration of hostility towards the defendant that made the defendant honestly and really believe that he was in danger of being killed or suffering great bodily injury, and that such danger was imminent and about to fall, and not in the future. And in ascertaining whether that condition existed, you will view the circumstances from the standpoint of the defendant as they appeared to him at the time.
    “ ‘You are further instructed that it is only to save himself from what appeared to him, as a reasonable man, to be imminent danger of losing his life or suffering great bodily injury at the hands of the said Jim Allen, that would justify the defendant in shooting the said Jim Allen. If at the time, and immediately prior to the shooting, the said Jim Allen advanced towards the defendant, whether armed with a deadly weapon or not, but it did not reasonably appear to the defendant that he was in imminent danger of being killed or receiving great bodily injury at the hands of the said Jim Allen, and that under those circumstances he shot the said Jim Allen, then he would be guilty of an offense and could not avail himself of the defense of self-defense.’ —he refused to do so, and gave instead thereof instruction No. 2, which is as follows:
    “ ‘Now in this case if you find from the evidence beyond a reasonable doubt that the defendant, Yirgil Ammons, in the county of Marshall and state of Oklahoma, on or about the 11th day of August, 1920, intentionally and wrongfully shot one Jim Allen with a pistol with intent to kill him, then it will be your duty to convict the defendant of an assault with intent to kill, and you will assess his punishment at imprisonment in the penitentiary for any term not more than ten years,’ which instruction practically directs the jury to find the defendant guilty.
    “Other errors are complained of, but we deem it unnecessary to consider them, and while we regret very much to have to do so, we think it becomes necessary to the discharge of our duties as a state official, owing the same duty to the plaintiff in error that we do to the state, to confess and admit that the trial court should have given to the jury an instruction by which they might have considered all the facts presented to them in order to determine whether or not plaintiff in error had just cause to believe, and did believe, that he was in imminent danger of death or great bodily harm at the hands of the prosecuting witness.
    “In the opinion of this court in the case of Mulkey v. State, 5 Okla. Cr. 75, 113 P. 532, written by Mr. Justice Doyle, in the closing thereof, it completely determines the right of a person on trial to have an instruction upon the question of self-defense when there is any evidence introduced tending to show that the person being tried was being attacked or about to be attacked, by his adversary.
    “In addition to the above error committed by the court, we also call attention to the language used by special counsel, Senator MePherren, hired to prosecute, which remarks are no doubt based upon the error committed by the court in refusing to give an instruction upon the question of self-defense. The remarks are as follows:
    “ ‘As I stated to you, gentlemen of the jury, the law of self-defense requires that before a citizen can shoot in his self-defense, there must be an overt attack on the part of the person shot. In this ease the testimony clearly shows that this defendant shot old man Allen when he was doing nothing that he did not have the right to do, and when he was not making any assault upon this defendant at all, and the court has not instructed you upon the law of self-defense for the reason that, the testimony of the defendant himself does not bring this ease within the rule of self-defense.’
    “We think the plaintiff in error is entitled to a new trial and respectfully suggest that the cause be reversed.”
    Don Welch, J. O. Minter, and J. R. McClendon, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

(after stating the facts as above). After an examination of the record, the conclusion is reached that the confession of error of the Attorney General should be sustained.

While it is not necessary for the trial court to instruct on some theory of the law not supported by the evidence (Newby v. State, 17 Okla. Cr. 291, 188 P. 124), it is nevertheless incumbent on the trial court to give, and the defendant has a right to have, when requested, an affirmative instruction to the jury applicable to his testimony, based upon the hypothesis that it is true, when such testimony affects a material issue in the ease and would, if believed, constitute ground for acquittal. Peyton v. State, 16 Okla. Cr. 410, 183 P. 639; Crittenden v. State, 13 Okla. Cr. 351, 164 P. 675, and cases cited. An examination of the testimony of the defendant discloses a ease of self-defense based on apparent danger to his life. The defendant requested an instruction on this issue. The trial court refused to give the requested instruction and failed to give any instruction or instructions whatever on the issue of self-defense. Under such circumstances, the refusal to give the requested instruction or one other covering this issue was error, and in this case prejudicial to the rights of this defendant, as it deprived him of consideration by the jury of the only defense relied upon for an acquittal.

Whether the defendant believed, at the time he shot the prosecuting witness, that he ivas in imminent danger of death or great bodily harm at the hands of the prosecuting witness, and that it was necessary to employ the force used to prevent such injury, and whether the defendant under the circumstances of this case had reasonable grounds for such belief, were all questions of fact for the jury under proper instructions of the court as to the law of apparent self-defense.

The question is not how much evidence there was on the issue of self-defense, nor does the court believe such evidence, but is there any evidence tending to support such issue? If there is, it is the duty of the trial court to submit such issue to the jury and instruct the jury on the law applicable hereto if found to be true, although the court may disbelieve it. Beard v. U. S., 158 U. S. 550, 15 S. Ct. 962, 39 L. Ed. 1086. The refusal of the trial court to submit such issue in this case after request by the defendant to do so is held to be reversible error.

The defendant introduced some witnesses and offered to prove by them that the prosecuting witness had the general reputation in the community in which he lived, prior to and at the time of the difficulty between him and defendant, of being a violent, quarrelsome, and turbulent man, and also that this general reputation was known to the defendant. The court excluded this proffered testimony. This, too, was error prejudicial to defendant.

The remarks of the specially employed counsel assisting in the prosecution (quoted at length in the Attorney General’s confession of error,) tended to aggravate the error of the trial court in refusing to submit the issue of self-defense-;

For all of these apparently prejudicial errors, the judgment is reversed, and the cause remanded to the district court of Marshall county, with instructions to grant the defendant a new trial and for further proceedings not inconsistent with this opinion.

BESSEY and DOYLE, JJ., concur.


text:
    BENNIE MILAM v. STATE.
    No. A-4196.
    Opinion Filed Dec. 30, 1924.
    (231 Pac. 326.)
    (Syllabus.)
    Appeal and Error — Affirmance Where Appellant Files no Brief nor Appears. In a felony conviction, where no brief is filed and no appearance made to orally argue the cause, the court will carefully examine the record, including the transcript of the evidence, and, if no" prejudicial error appears and the evidence is sufficient, the judgment will be affirmed.

      Appeal from District Court, Rogers County; C- W. Mason, Judge.
    Bennie Milam was convicted of robbery, and he appeals.
    Affirmed.
    De Graffenreid & De Graffenreid, for plaintiff in error.
    The Attorney General, for the State.
   MATSON, P. J.

The plaintiff in error, Bennie Milam, was jointly charged with one Blackie Long in the district court of Rogers county with the crime of robbery alleged to have been committed by them on the 15th day of April, 1921, by robbing one R. R. Henderson, agent of the Missouri Pacific & Iron Mountain Railway Company in the city of Clare-more, Okla.

The petition in error and case-made were filed in this court on the 6th day of February, 1922, and the cause was finally submitted on the record on the 6th day of October, 1924. No brief has been filed in behalf of plaintiff in error and no appearance was made to orally argue the cause.

This being an appeal from a judgment of conviction for a felony, the court has carefully examined the record, including the transcript of the evidence, in connection with the errors assigned. The evidence on the part of the state is sufficient, if believed, to sustain the conviction. The only serious question in the evidence is its sufficiency to identify the plaintiff in error as one of the persons who robbed the station agent of the Missouri Pacific Railway Company at Claremore, Okla., on the date alleged. The said agent positively identified this plaintiff in error as one of those engaged in said robbery. The defense interposed was an alibi; plaintiff in error contending that he was at the time of the robbery in his room at a rooming house about a block and a half distant from the place where the robbery occurred. This apparent conflict in the evidence was for the decision of the jury. The information sufficiently charges the offense; the instructions were fair and covered the law of the case; and no reversible error appears to the court upon the examination of the entire record. It is the opinion of the court, therefore, that the judgment should be affirmed, and it is so ordered.

BESSEY and DOYLE, JJ., concur.


author: DOYLE, J.

text:
    FRANK WHEELER v. STATE.
    No. A-4613.
    Opinion Filed Dec. 31, 1924.
    (231 Pac. 549.)
    (Syllabus.)
    Intoxicating Liquors — 'Evidence Sustaining Conviction for Maintaining Liquor Nuisance. In a prosecution for maintaining a ■■liquor nuisance, evidence held sufficient to sustain a verdict and judgment of conviction.
    Appeal from County Court, Murray County; W. G. Long, Judge.
    Frank Wheeler was convicted of maintaining a public nuisance, and he appeals.
    Affirmed.
    Colbert & Ferris, for plaintiff in error.
    George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Frank Wheeler, was convicted on a charge of maintaining a public nuisance, in that he did unlawfully and willfully keep and maintain a place of public resort on Davis avenue in the city of Sulphur, which place was a place commonly resorted to by persons for the purpose of obtaining and drinking intoxicating liquors, and in accordance with the verdict of the jury was sentenced to pay a fine of $250 and be confined in the county jail for 30 days.

The principal ground relied on for a reversal of the judgment is that the evidence is legally insufficient to support the verdict. C. H. Parks, sheriff, testified that the defendant had been occupying the place two or three months; that he saw lots of people at the place that frequently got drunk; that he found whisky on the premises twice, and found whisky hid in the back yard; that he knew the general reputation of the place as being a place where people obtained whisky, and that reputation was bad. R. T. Pullen testified that he saw a man named Settle, who whs working for the defendant, come out of the place with a bottle of whisky in his pocket, that he knew the general reputation of the place as to being a place where whisky was being handled, and it was bad. Emmett Rice testified that he hauled fellows to the place once or twice, and that they would have whisky when they got back to his car. Two other witnesses testified that they were acquainted with the general reputation of the defendant’s place as being a place where whisky was kept for unlawful sale, and that reputation was bad. At the close of the state’s evidence there was a motion by the defendant for a directed verdict of acquittal, on the ground that the evidence is insufficient to warrant his conviction, which motion was overruled. Exception reserved.

The rule repeatedly announced by this court is that it has no power to reverse a judgment of conviction on the ground that the verdict is not supported by the evidence, unless there is no substantial evidence tending to show the guilt of the defendant, or that the evidence fails so far to support the verdict that the necessary inference is that the jury must have acted from passion or prejudice. We have set forth a sufficient statement of the material testimony introduced by the state, and it is apparent that there is substantial evidence tending to show the defendant’s guilt, and in our opinion it is amply sufficient to support the verdict.

Having carefully examined the other questions raised by the assignments of error, we are of the opinion that no error is shown in any of the other questions raised.

The judgment of the lower court is accordingly affirmed.

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


text:
    DEWEY PRUITT et al. v. STATE.
    No. A-4581.
    Opinion Filed Dec. 31, 1924.
    (231 Pac. 899.)
    (Syllabus.)
    Intoxicating Liquors — Evidence of Unlawful Possession Sufficient as to one Defendant and Insufficient as to Other. In a prosecution for unlawful possession of intoxicating liquor, evidence held sufficient to sustain a conviction as to one of the defendants and insufficient as to the other.
    Appeal from County Court, Carter County; M. P. Winfrey, Judge.
    Dewey Pruitt and Jimmie Lynch were convicted of unlawful possession of intoxicating liquor, and they appeal.
    Affirmed as to Jimmie Lynch, and reversed as to Dewey Pruitt.
    Mathers & Coatley, for plaintiffs in error.
    George P. Short, Atty. Gen., and Gilbert B. Pulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this ease charges that the defendants Jimmie Lynch and Dewey Pruitt did, in Carter county, about the 15th day of August, 1922, have in their possession intoxicating liquor with intent to sell the same. Upon the trial they were found guilty, and the punishment of each assessed at a fine of 50 dollars and 30 days’ confinement in the county jail. They have appealed from the judgments rendered upon the verdict.

The first assignment of the petition in error relates to the sufficiency of the evidence to sustain the verdict.

E. S. Gravitt testified that he was with Mr. Kearsey and they stopped an automobile coming from the south into Heald-ton; Dewey Pruitt was driving the car, and Mr. Morrow was in the front seat with him; Jimmie Lynch was in the back seat; as the car approached them Jimmie Lynch broke a half-gallon jar, which was wrapped in paper, by pitching it out of the ear.

Mr. Kearsey testified that he saw the car leave Healdton going south with Dewey Pruitt, Jimmie Lynch, and Bill Morrow in it; Mr. Gravitt was with him when they saw the car coming back; when the car was about 100 yards from them, the man in the back seat, Jimmie Lynch, threw out a package wrapped in paper; that he stopped their car, went to the place where the package fell, and found a little whis-ky in the broken part of a jar.

Bill Morrow testified that he was an oil field worker and started in Dewey Pruitt’s car to the derrick south of town to look at a string of tools; that as they drove by the hotel Jimmie Lynch hollered at Dewey Pruitt and said he wanted to go with him; Pruitt drove down to the derrick and stopped there while he attended to his business, something like 15 minutes, then they all started back to town; that he and Pruitt were in the front seat and Lynch in the rear seat; as they drove up the road they met Mr. Gravitt and Mr. Kearsey; that he saw paper and some broken glass when the bottle broke; that neither he nor Pruitt had any whisky or had anything to do with it.

As a witness in his own behalf Dewey Pruitt testified he was 21 years old, was a service car driver, never was arrested before for any offense; that Mr. Morrow employed him to drive him to an oil rig about one mile south of Healdton; that as they started off Jimmie Lynch hollered and said, “Where are you going?” and he told him south of town a little piece, and Lynch said he wanted to rid? with him; that after Mr. Morrow got through with his business at the oil derrick he started to drive him ‘back to town, and Mr. G-ravitt and Mr. Kearsey held them up; that he had no whisky in the ear, and was merely driving Mr. Morrow for a service fee; that Mr. Kearsey and Mr. G-ravitt searched the car and then walked back and brought the paper and a broken jar back.

The defendant Jimmie Lynch did not testify. As to his guilt or innocence it is obvious that the case was one for the consideration of the jury. As to the defendant Dewey Pruitt we are impelled to the conclusion that the evidence is not sufficient to connect him with the commission of the offense charged, and a verdict of not guilty ought to have been returned as to him.

The test by which to determine the sufficiency of circumstantial evidence is whether the circumstances tending to connect the defendant with the offense charged are of such conclusive nature as to exclude as to a moral certainty every rational hypothesis except that of his guilt. It is true the defendant Pruitt was the owner and driver of the car, but this was not a prosecution for transporting whisky. The charge was unlawful possession with intent to sell, and we think the facts and circumstances in evidence are insufficient to show possession by the defendant Pruitt.

Some other errors are claimed, but we do not regard them of sufficient merit to discuss. The evidence of defendant Jimmie Lynch’s guilt was ample to warrant the verdict and judgment. The judgment as to him is accordingly affirmed.

For the reasons stated, the judgment of conviction as to the defendant Dewey Pruitt is reversed.

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


author: PER CURIAM.

text:
    WALTER NEFF v. STATE.
    No. A-4916.
    Opinion Filed Dec. 31, 1924.
    (231 Pac. 897.)
    (Syllabus.)
    Abatement of Prosecution — Death of Accused Pending Appeal. In a criminal action, the purpose of the proceedings being to punish the defendant in person, the action must necessarily abate upon his death.
    Appeal from District Court, Ottawa County; J. J. Smith, Judge.
    Walter Neff was convicted of transporting intoxicating liquor, second offense, and he appeals.
    Order that proceedings abate.
    Burns & Turner, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error, Walter Neff, was convicted in the district court of Ottawa county, on a charge of transporting whisky, second offense, and his punishment fixed at a fine of $500 and imprisonment in the penitentiary for a term of two years. From the judgment rendered on the verdict, on May 19, 1923, an appeal was perfected by filing in this court on November 16, 1923, a petition in error with ease-made.

Since the appeal was taken, and before tbe final submission of the cause, suggestion of tbe death of tbe plaintiff in error, Walter Neff, has been made. In a criminal action, tbe purpose of tbe proceedings being to punish tbe defendant in person, tbe action must necessarily abate upon bis death.

It is therefore considered, adjudged, and ordered that the proceedings in this cause, and especially under tbe judgment therein rendered, have abated, and that the district court of Ottawa county enter its appropriate order to that effect.


text:
    TOM GILSTRAP v. STATE.
    No. A-4593.
    Opinion Filed Dec. 31, 1924.
    (231 Pac. 896.)
    (Syllabus.)
    Appeal and Error — Affirmance—Sufficiency of Evidence. In a prosecution for larceny of live stock, evidence held sufficient to sustain the verdict and judgment of conviction.
    Appeal from District Court, Jefferson County; Cham Jones, Judge.
    Tom Gilstrap was convicted of larceny of live stock, and be appeals.
    Affirmed.
    J. H. Mathers, for plaintiff in error.
    Tbe Attorney General, for tbe State.
   DOYLE, J.

' The information in this case charges that the defendants, Bill Mundell and Tom Gilstrap, in Jefferson county, on or about the 3d day of June, 1922, did take, steal, and carry away two head of cattle, the personal property of George Fulson. It appears that the defendant Bill Mundell pleaded guilty and testified as a witness for the state on the trial of his eodefendant, Tom Gilstrap, which trial resulted in a verdict of guilty, and his punishment fixed at imprisonment for a term of two years in the state penitentiary. He has appealed from the judgment rendered upon the verdict, but no brief has been filed and no appearance made in his behalf in this court.

When the case was called for final submission, it was sub- • mitted on the record. The errors assigned are the usual ones, that the court erred in overruling the motion for a new trial and erred in rulings on the admission and exclusion of testimony, and that the verdict is not sustained by sufficient evidence.

While the defendant is not represented in this court, we have carefully gone through the record and find it free from substantial error. The testimony on the part of the state, if credited, as it was, was amply sufficient to sustain the verdict. Without setting out the record as to the particular objections made on the rulings of the court on the admission of testimony, it is sufficient to say that we find no error therein. The other assignments of error are not sustained by the record, and will not, therefore, be noticed.

If appearing that the defendant had a fair trial, the judgment of the lower court is affirmed.

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


text:
    WALTER ZAIONC v. STATE.
    No. A-4848.
    Opinion Filed Jan. 6, 1925.
    (231 Pac. 897.)
    (Syllabus.)
    Appeal and! Error — Prosecution Abated upon Death of Accused. In a criminal action, the purpose of the proceedings being to punish the defendant in person, the action must necessarily abate upon his death.
    Appeal from District Court, Pittsburg County; Harve L. Melton, Judge.
    Walter Zaionc was convicted of assault with intent to kill, and he appeals. Order that proceedings abate.
    Counts & Counts, for plaintiff in error.
   PER CURIAM.

Plaintiff in error, Walter Zaionc was convicted on an information charging that he did shoot at one W. J. Price with a gun with the intent to kill the said Price, and his punishment fixed at imprisonment in the penitentiary for the term of one year and one day. From the judgment rendered on the verdict he appealed by filing in this court September 8, 1923, petition in error with case-made.

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 in the form of an affidavit of his counsel of record, wherein it is averred that the said Walter Zaionc was killed in an automobile accident in Latimer county on the 2d day of March, 1924.

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, adjudged, and ordered that the proceeding in this cause, and especially under the judgment appealed from, has abated, and that the district court of Pittsburg county enter its appropriate order to that effect.


author: BESSEY, J.

text:
    MRS. WALTER NEFF v. STATE.
    No. A-4830.
    Opinion Filed Jan 6, 1925.
    (231 Pac. 898.)
    (Syllabus.)
    Intoxicating Liquors — Illegal Possession — Insufficient Evidence. The evidence held insufficient to sustain the verdict.
    Appeal from County Court, Ottawa County; W. M. Thomas, Judge.
    Mrs. Walter Neff was convicted of illegal possession of intoxicating liquor, and she appeals.
    Reversed, and remanded.
    J. W. Stalcup, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

On December 6, 1924, an order was made and entered by this court, dismissing this cause for want of service of notice of appeal or service or waiver of summons. A subsequent inspection of the files and dockets disclosed that service of summons was waived by the Attorney General, and that a record thereof was inadvertently omitted. The order of dismissal heretofore made herein is therefore set aside, and the cause is submitted and decided on the merits.

The record discloses that on June 3, 1923, the premises of Walter Neff, husband of plaintiff in error, were searched, and upon the evidence there obtained he was arrested, and subsequently convicted of illegal possession of intoxicating liquor. The day following the arrest and incarceration of Walter Neff, and in his absence, the premises were again searched. The officers said that as they approached the place they saw Mrs. Neff go hurriedly into the kitchen; that they followed her, and detected the odor-of whisky in a sink, and found a bucket there containing about a spoonful of corn whisky; that there was a pipe leading from this sink to the rear of the lot, and that they detected the odor of whisky at the end of this pipe.

Notwithstanding the recent development in the emancipation of women, a wife is still presumed to be under duress of her husband, where a crime is committed by the husband in her presence. In this case the husband had just been carried away and incarcerated in jail. The whisky the officers smelled may have belonged to him, and the wife may have had no intention of disposing of the liquor. The evidence as to Mrs. Neff is insufficient to support the verdict against her.

The judgment of the trial court is therefore reversed, and the cause remanded.

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


text:
    FRANK BLUMHOFF v. STATE.
    No. A-4638.
    Opinion Filed Jan. 6, 1925.
    (231 Pac. 900.)
    (Syllabus.)
    Appeal) and Error — Larceny—Possession of Recently Stolen Property— Effect as Evidence — Erroneous Instruction — Harmless Error. The possession of recently stolen property by a defendant is merely an evidential fact to be considered by the jury in connection with all the other facts and circumstances disclosed by the evidence.
    (a) An instruction stating that possession of recently stolen property, unexplained, is evidence of guilt, is an incomplete and erroneous statement of law.
    (to) Notwithstanding this misstatement of law, where the defendant sought to justify his possession by proof, tending to show that he had purchased the property from a stranger, and the court! told the jury) that, if they believed that the defendant had so purchased the property or had any reasonable doubt as to whether he had done so, they should resolve that doubt in his favor and acquit him, the error is rendered harmless.
    Appeal from District Court, Stephens 'County; Cham Jones, Judge.
    Frank Blumhoff was convicted of larceny, and he appeals.
    Affirmed.
    E. H. Bond, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

Frank Blumhoff, plaintiff in, error, defendant in the trial court, was a farmer who lived in the same neighborhood with and near the farm of the complaining witness, J. T. McFatridge. Both men had horses which were allowed to run at large. About the 18th day of February, 1922, a three-year old black Percheron horse was missed by the complaining witness. The proof offered by the state indicates that this horse was found in the possession of the defendant, and recovered from him about three weeks later. At the time the complaining1 witness had last seen this horse before its disappearance, it had a thick, heavy mane and tail, and weighed about 1,100 pounds, and his value was stated to be $100. When recovered the animal’s mane had been roached and the tail thinned out. The defendant claims that he purchased this horse for $50 cash from a passing stranger, and his story is corroborated by three witnesses who claimed to have been present or near by when the purchase was made.

The only serious question raised by this appeal is the sufficiency of instruction No. 5, which was as follows:

“You are further instructed, gentlemen, that aside from his plea of not guilty, as a defense to this charge, the defendant contends that he purchased this horse. And in this connection you are instructed that the possession of recently stolen property, unexplained, is evidence of guilt; but should you find that the defendant did purchase said horse, or should you entertain a reasonable doubt as to whether or not he-purchased said horse, you should resolve that doubt in his favor and acquit him.”

Technically, the statement in this instruction that “possession of recently stolen property, unexplained, is evidence of guilt” is not a correct statement of the law. Such possession may raise an inference of guilt, and should be considered as an inferential circumstance, along with all the other evidence in the case, to be given such weight as the jury may deem proper. Cheeves v. State, 18 Okla. Cr. 480, 196 P. 726; Cox v. Ter., 2 Okla. Cr. 668, 104 P. 378. But under the evidence in this case the latter part of the instruction as given gave to the defendant all the rights that would have been accorded him if the instruction had been technically correct.

The defendant claimed that he purchased the horse from a stranger. On the ground he assumed to justify his possession, the court told the jury that, if they believed that defendant did so purchase the horse, or entertained a reasonable doubt as to whether or not he did so, they should resolve that doubt in his favor and acquit him. Under the evidence that was all that the defendant could expect. The defendant objected ¡to this instruction, and an exception was allowed, which was enough to challenge the sufficiency of the instruction. However, where an instruction is bad in form, the defendant might have offered an instruction properly stated in lieu thereof, and this defendant did not do. In any event, an erroneous instruction will not work a reversal where the rights of the defendant have not been impaired. Section 2822, Compiled Statutes 1921.

The witnesses who corroborated the defendant concerning the purchase of the horse were unable to definitely identify the horse, or to relate clearly the details of the transaction. The jurors saw the witnesses and heard their accounts of the transaction and were better able than this court to determine whether they testified truthfully. It was within the province of the jury, if they believed that these witnesses, including the defendant, were giving false testimony, to reject their evidence entirely. The fact that the horse’s mane had been roached and that its tail had been thinned by cutting out some of the hair; and the defendant’s explanation that he had purchased the horse, for cash, from a stranger, unidentified and not produced at the trial, may have been considered by the jury as circumstances indicative of guilt.

All things considered, this court would not be justified in setting aside the verdict of the jury.

The judgment of the trial court is affirmed.

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


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    ROY CRUMP v. STATE.
    No. A-4606.
    Opinion Filed Jan. 6, 1925.
    (231 Pac. 901.)
    (Syllabus.)
    Evidence — Evidence Obtained by Illegal Search. Evidence obtained by a search of the defendant’s home by an illegal search and seizure is inadmissible.
    Appeal from County Court, Comanche County; P. G. Fullerton, Judge.
    On rehearing.
    Judgment of conviction reversed.
    For former opinion, see 28 Okla. Cr. 115, 228 P. 1118.
    J. F. Thomas and Leslie P. Ross, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Roy Crump, was convicted on a charge that he did have in his possession whisky, with the unlawful intent to sell the same. In accordance with the verdict of the jury he was sentenced to pay a fine of $250 and he confined in the county jail for 30 days. From the judgment an appeal was taken by filing in this court, on March 21,1923, a petition in error with case-made.

The testimony of Robert Jackson and W. P. Pierce is in substance that they went to the defendant’s home in the city of- Lawton on the night of the date alleged and entered and found a pitcher that had a mixture of whisky and vinegar, or something else in it, which they seized and turned over to the chief of police.

J. C. F'roneberger, chief of police, testified that a liquid of liquor was turned over to him by Robert Jackson or Pike Pierce, which he poured into a jug, and that it had a smell of whisky. The jug and its contents were introduced in evidence.

The record shows that this testimony was introduced over the objections of the defendant on the ground that it was not shown that the officers had a search warrant, and for the further reason that if they had a search warrant it was issued by the police judge, who under the law hás no authority to issue search warrant.

In support of these objections the witness Jackson testified that he believed he had a search warrant! or Mr. Pierce had one, but that he was not certain, and that he did not know whether the search warrant was served when the raid was made or afterwards; that it was issued by the municipal judge as he remembers. Witness Pierce testified that he did not have a search warrant, and did not see any search warrant.

At the close of the state’s evidence the defendant moved that all the evidence be withdrawn from the consideration of the jury for the reason that such evidence was illegally procured without a search warrant, which motion was overruled. The defendant also moved for a directed ver-diet of acquittal for the reason that the testimony was ih-sufficient to warrant a verdict of guilty, which motion was overruled.

By numerous decisions of this court it is held that evidence obtained by officers of the court by an illegal search and seizure is inadmissible. Committi v. State, 28 Okla. Cr. 380, 231 Pac. 316, and cases collated. The search of the defendant’s home, as shown by the record . in this case, was an unauthorized trespass and an invasion of the constitutional rights of the defendant. It follows that all of the evidence on the part of the state should have been excluded on the defendant’s objection, and the motion for á directed verdict should have been sustained.

The judgment of the lower court is accordingly re>versed.


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    EARL BYXBEE v. STATE.
    No. A-4380.
    Opinion Filed Jan. 10, 1925.
    (231 Pac. 898.)
    (Syllabus.)
    Intoxicating Liquors — Information for Manufacturing Liquors Insufficient on Demurrer. The mere charge that one manufactured “intoxicating liquors,” without naming the kind or character, is insufficient where the sufficiency of the information is challenged by demurrer, as in this case.
    Appeal from County Court, Woods County; L. T. Wilson, Judge.
    On rehearing.
    Former affirmance set aside, judgment reversed, and cause remanded.
    For former opinion, see 28 Okla. Cr. 100, 228 P. 1004.
    J. W. Barry, for plaintiff in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

Earl Byxbee, plaintiff in error, defendant in the trial court, was on the 16th day of March, 1922, found guilty of illegally manufacturing intoxicating liquor. By the verdict of the jury his punishment was fixed at confinement in the county jail for a term of 90 days and a fine of $500. From the judgment rendered in accordance with this verdict he appeals.

This cause was originally affirmed by this court in an opinion rendered October 4, 1924. On rehearing it was shown that the record before us was erroneous, and, after the same was corrected to conform to the facts and the record in the trial court, this court orders the affirmance of October1 4’, 1924, set aside, and in consideration of the corrected record the judgment of the trial court is reversed for reasons following:

The charging part of the information, as it appears in the corrected record, is as follows:

“At and within the county of Woods, state of Oklahoma, Earl Byxbee, the defendant above named, then and there being, did vdilful^y, intentionally, and unlawfully make and manufacture intoxicating liquors in violation of the prohibitory laws of the State of Oklahoma, contrary to and in violation of the statute in such case made and provided and against the peace and dignity of the state of Oklahoma.”

This information is fatally defective, in that it does not designate the kind or character of intoxicating liquor. Cole v. State, 16 Okla. Cr. 103, 180 P. 713; Fletcher v. State, 2 Okla. Cr. 300, 101 P. 599, 23 L. R. A. (N. S.) 581.

There are many kinds of intoxicating liquors that come within the prohibition of the statutes, such as ale, wine, beer, extracts, alcoholic medicines, certain tonics, several kinds of commercial alcohol and many kinds of fermented beverages. The accused is entitled to know the kind of liquor he is charged with making, selling, or transporting illegally, in order that he may fairly prepare his defense. 14 R. C. L. 187, and cases cited. The mere charge that one manufactured “intoxicating liquors,” without designating the kind, is insufficient where the information is challenged by demurrer, as in this case.

The judgment of the trial court is therefore reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

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


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    SAM WELLS v. STATE.
    No. A-4655.
    Opinion Filed Jan. 10, 1925.
    (231 Pac. 1087.)
    (Syllabus.)
    1. Trial — Witnesses—Codefendant not Compelled! to Testify — Comment on Failure of Codefendant to Testify Improper. A co-defendant is competent as a witness only at his own request. He is given the opportunity to testify if he desires to do so, and he cannot be compelled to testify either for himself, a codefend-ant, or for the state, where he is a party in the case. And any comment on the failure of a codefendant to testify is not within the latitude of legitimate argument.
    2. Appeal and! Error — Comments of County Attorney on Failure of Codefendant to Testify Held Prejudicial. Where there is a close question of guilt on the evidence, comments of the county attorney in his argument to the jury, calling attention to the fact that the codefendant failed to testify, were prejudicial to both defendants.
    Appeal from District Court, Beckham County; T. P. Clay, Judge.
    Sam Wells was convicted of larceny of a calf, and he appeals.
    Reversed and remanded.
    See, also, 26 Okla. Cr. 269, 223 P. 1118.
    Tracy & Minton, for plaintiff in error.
    The Attorney General, and G. B. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

Sam Wells, plaintiff in error, hereafter referred to as the defendant, was jointly charged with Wilson Weaver with the larceny of a red calf. At the trial, by a verdict of the jury, both defendants were found guilty and each was sentenced to confinement in the penitentiary for a term of two years. A motion for a new trial which was filed was sustained as to Weaver, but overruled as to this defendant. Wells alone, prosecutes this appeal.

Practically the only questions involved in this appeal are whether the evidence is sufficient to support the verdict and whether the court erred in overruling the defendant’s motion for a new trial for reasons appearing in the bill of exceptions, made a part of the record in this case. This bill of exceptions discloses the following:

“While the county attorney was making his opening address to the jury, the county attorney made the statement in substance and effect as follows: T am sorry that the defendants did not place Wilson Weaver on the stand. I wanted to ask him certain questions.’ To which remarks of counsel for the state the defendants at once objected and excepted, and asked the court to restrain the county attorney from all references to the fact said defendant did not testify in his own behalf, and the court thereupon told the county attorney that such remarks were not permissible and advised the jury to disregard them. That thereafter, during the. same argument, the county attorney frequently made the statement, in substance and effect, that ‘the defendants did not deny this.’ That the defendants objected and excepted to said remarks, and the court again, several times, advised the jury wholly to disregard the same. And the defendants at the time objected to all said remarks, and excepted to the same, and asks that this bill of exceptions be allowed, signed, and ordered filed as of the record in this case.”

This bill of exceptions was allowed, signed, and the court clerk ordered to file the same as part of the record.

In order that the two assignments of error to be treated in this opinion may be understood, it will be necessary to recite some of the facts disclosed by the record in this case.

From the evidence it appears that at about 1 or 2 o’clock of the afternoon of Saturday, February 11, 1922, Wilson Weaver and Sam Wells went to the farm of S. T. Bonifield, in Beckham county, and purchased from him a red muley male calf, about one year old, having certain white marks on the forehead, flanks, and other portions of the body, and having been branded with a flying “K”; the brand being then somewhat obscured by the growth of hair on the animal. The consideration was $12.50, which was paid by a check written by Weaver, as agent for John Basham for whom Weaver had been buying cattle in the neighborhood. Wells informed Bonifield that they had some other business to attend to and would return later to take the calf away. About sundown the two men returned, at which time Wells sold Bonifield some posts and Bonifield returned to Wells the Weaver-Basham check in part payment for the posts. The two men then led off the calf which they had purchased, by means of a rope tied around its neck.

Defendant claims that after they had proceeded some distance, they tied this calf' to a fence along the highway and went to a place where they had some whisky hidden, and that when they returned they could not find the calf. By this time it was 8 or 9 o’clock at night, and both men were more or less under the influence of intoxicating liquor. They commenced to search thereabouts for the calf that had broken away, and between 9 and 10 o’clock they found a male calf, a red muley animal, which they supposed to be the one they had purchased, and drove it to the home of defendant Wells. On the following morning they butchered this calf and hung the dressed meat in the barn and buried the offal, hide, and head near by. The calf which they had actually purchased from Bonifield was found a day or two later on a neighbor’s premises. Bonifield identified this calf and corroborated the defendant Wells concerning the circumstances of its purchase. Wells said that when the check which Weaver had given on Basham for the purchase price of the calf was returned to him in part payment for the posts, he told Bonifield he regarded it as a cancellation of the check, and that he did not intend to present it for payment.

On Monday, the day following the butchering the calf, a deputy sheriff went to search the premises of the defendant Wells. A portion of this officer’s testimony is as follows:

“Q. State to the jury what took place when you first met Mr. Wells, and from then on through the search. A. Well, I went to Mr. Wells and told him I had a search warrant for his place, and he said, ‘All right, go ahead.’ I said, ‘We have got a beef missing and want to search for it,’ and he said, ‘Help yourself.’ I went over to the barn and found four quarters of what looked to be a yearling hanging up in the barn. I said, ‘Sam, where is the hide?’ He said, ‘Right over the fence, there, buried.’ I said, ‘Get a shovel, let’s dig it up.’ We got a shovel and dug it up. I asked Sam why he buried it, and he said it wasn’t worth a ‘damn.’ The hide was put down first and the entrails on top of the hide. Wells told me they bought a yearling from Mr. Bonifield; * * that they might have gotten hold of the wrong one. I said, ‘Sam, you don’t mean to tell me that Bonifield’s animal wasn’t branded.’ He said, T didn’t see any brand.’ He said T am willing to pay old man O’Brien for this animal if it belonged to him.’ He said, ‘They was both muley, red yearlings, and the one I bought got away, and I might have gotten the wrong one. I had it tied with a bridle rein, and it broke the bridle rein and got away.’ He said that if it was O’Brien’s calf he would go and pay for it.”

This conviction rests largely on circumstantial evidence. A seemingly rational explanation was made by the defendant of his possession of the property, making it a close question upon the facts for the consideration of the jury. For this reason the misconduct of the county attorney complained of, as disclosed by the bill of exceptions, may have been the decisive influence that caused the jury to bring in a verdict of guilty. Notwithstanding the fact that the court admonished the jury to pay no attention to the prejudicial remarks of the county attorney, the prejudicial effect was probably not cured. The motion for a new trial was sustained as to Weaver, and the question here presents itself as to whether this motion should not also have been sustained as to Wells because of these remarks.

Under the 'Constitution and statutes of this state, Weaver could not be compelled to testify in his own behalf. It follows, therefore, that Wells could not force Weaver to testify in his behalf. It will be noted in the bill of exceptions that the remarks of the county attorney applied to both defendants. The court, in admonishing the jury to pay no attention to the remarks of the county attorney, should have gone further and told the jury that the defendant Wells had no power to compel his codefendant, whether willing or unwilling, to testify in his behalf. In the case of Hopkins v. State, 11 Okla. Cr. 385, 146 P. 917, the court said:

“Under the constitutional and statutory provisions, no presumption could arise from the failure of the defendant on trial to call his codefendants as witnesses in his behalf, and the jury should have been left to try the issue upon the evidence introduced. * * * The defendant had no more right than the state had to call his codefendants as witnesses, and that his failure to call certain codefendants as witnesses should create no presumption against him.”

If this be the rule, the prejudicial remarks made by the county attorney, under the circumstances here shown, were equally prejudicial against both defendants, so that if Weaver was entitled to a new trial for this reason, Wells would likewise be entitled to a new trial. The reasons and authorities for this conclusion are well stated in the Hopkins opinion, supra.

This being a close case on the facts, in which the jurors may well have entertained a reasonable doubt of the defendant’s guilt from the facts appearing in evidence tending to show that the defendants may have made an honest mistake in the recovery and slaughter of the calf in question, the prejudicial remarks of the county attorney may have been the turning point in the case which dissolved that doubt and caused the jury to bring in the verdict of guilty —and this notwithstanding the fact that the court admonished the jury to pay no attention to the objectionable remarks.

On this question the statute, section 2698, Comp. Stat. 1921, provides that in all criminal proceedings the person charged shall, at his own request, but not otherwise, be a competent witness, and that his failure to make such request shall not create any presumption against him, or be mentioned on the trial; and if commented upon by counsel it shall be ground for a new trial. In the case of Irvin v. State, 11 Okla. Cr. 301, 146 P. 453, it was said:

“A codefendant is competent as a witness only at his own request. He is given the option to testify if he desires to do so” and “he cannot be compelled to testify, either for himself, a codefendant, or for the state, while he is a party in the case. * * * And any comment on the failure of a codefendant not on trial to testify is not within the latitude of legitimate argument.” Buxton v. State, 11 Okla. Cr. 85, 143 P. 58.

The defendant contends that he purchased a calf similar to the one in question; that the calf accidentally got away; and that he took the calf in question, believing it to be the one he had purchased. The state’s theory of the transaction was that the defendant purchased a calf similar to the one in question for the purpose of creating a situation or chain of circumstances that would enable him to escape prosecution for the stealing of the calf which he took and butchered. In other words, it is the theory of the state that the defendant intended to steal a calf in the first instance, and that the purchase of the other calf was for the purpose of evading detection. There is evidence to support both theories, and which of the theories was the correct one was a question for the jury.

This being a close question on the evidence, the comments of the county attorney as to the codefendant’s failure to testify were prejudicial to both defendants. And for the error of the trial court in denying defendant Wells’ motion for a new trial, the cause is reversed and remanded.

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


text:
    CLAUDE SHILKETT v. STATE.
    No. A-4631.
    Opinion Filed Jan. 10, 1925.
    (232 Pac. 127.)
    (Syllabus.)
    1. Health — Legislative Authority for Board of Health to Adopt Buies Effective as Law. Within reasonable bounds, the Legislature may confer regulative powers upon the state board of health and give! to that board authority to adopt rules and regulations having the force and effect of law.
    2. Same — Obstructing Health Officer — Necessary for Information to Allege Promulgation of Bules and Authority of Officer. Where the public health statutes make no specific provision for the suppression or control of rabies and there are no averments in the information that the state board of health promulgated any rules on that subject, the courts will noti assume that such rules were promulgated.
    (a) The authority of a local health officer to act in Hie premises should be pleaded.
    Appeal from County Court, Nowata County; W. H. Thomason, Judge.
    Claude Shilkett was convicted of obstructing a health officer, and he appeals.
    Reversed and remanded.
    C. F. Gowdy, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

On March 20, 1923, in the county court of Nowata county, Claude Shilkett, plaintiff in error, was by a verdict of a jury found guilty of obstructing a health officer, with his punishment fixed at a fine of $100. From the judgment rendered in accordance with the verdict, he appeals.

Plaintiff in error, defendant in the trial court, claims that the information does not state a public offense. The charging part of the information is as follows:

“That the said Claude Shilkett then and there being, did then and there willfully, intentionally, and unlawfully obstruct a health officer, to wit, Dr. J. P. Sudderth, by then and there removing one coyote or allowing the same to be removed from his premises in the city of Nowata, Okla., and failing and refusing to furnish said coyote to said health officer for the purpose of having said coyote, or the head of said coyote, tested for rabies, said coyote having bitten one Joe Mason, contrary to section 6813, Laws of 1910, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the state.”

This prosecution was brought under the provisions of section 8694, Comp. Stat. 1921, which reads as follows:

“Any person who willfully opposes or obstructs any health officer or physician charged with the enforcement of the health laws, in performing any legal duty, is guilty of a misdemeanor.”

The authority of the local health officer, known as the county superintendent of public health, is found in section 8672, Comp. Stat. 1921, a portion of which reads as follows:

“Said county superintendent of public health shall have power to abolish nuisances that are dangerous to public health, to isolate persons affected with dangerous and contagious diseases, and to do such other things, with the approval of the state board of health, as may be deemed necessary for the preservation of the public health within said county.”

The statute does not in express terms make provision for the suppression or treatment of rabies, and there is no sufficient allegation that the keeping of the coyote constituted a nuisance.

Within reasonable bounds, the Legislature may confer regulative powers upon the state board of health, and give to that board authority to adopt rules and regulations having the force and effect of law. People ex rel. Barmore v. Robertson, 302 Ill. 422, 134 N. E. 815, 22 A. L. R. 835.

The statute, by inference at least, gives the state board of health power to make and enforce reasonable regulations ; but there is no allegation in the information that the board of health promulgated any rules relative to animals afflicted with rabies, by authority of which the county superintendent of public health assumed to act; and the courts cannot assume that such rules were promulgated.

It follows, therefore, that to sustain a prosecution of this character the written accusation should aver that the state board of health made, promulgated, and published some rule or regulation concerning rabies, and that the accused resisted or interfered with the operation of such rule sought to be enforced by an authorized agent charged with that duty.

The statement in the information, “said coyote having bitten one Joe Mason, contrary to section 6813, Laws of 1910, and contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the state,” makes a fairly good accusation against the coyote, but the information states no offense against the person in charge of the animal.

The cause is reversed and remanded.

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