text:
    JOHN WALKER et al. v. STATE.
    No. A-5342
    Opinion Filed Dec. 6, 1920.
    Rehearing Denied May 10, 1921.
    (197 Pac. 520.)
    (Syllabus.)
    INTOXICATING LIQUORS — Unlawful Receiving. In a prosecution for receiving intoxicating liquors from a common carrier, evidence held sufficient to support the conviction.

      Appeal from County Court, Atoka County; J. M. Humphreys, Judge.

    John Walker and Felix Taylor were convicted of receiving intoxicating liquors from a common carrier, and they appeal.
    Affirmed.

      J. H. Gernert, for plaintiffs in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall and E. L. Fulton, Asst. Attys. Gen., for the State.
   DOYLE, P. J.

This is an appeal from the judgment of the county court of Atoka county, rendered in pursuance of the verdict; the punishment of each defendant having been fixed at a fine of $50 .and confinement in the county jail for 30 days.

The information in substance charged that John Walker and Felix Taylor did, on or about the 22d day of February, 1919, receive from the Missouri, Kansas & Texas Railway, a common carrier, six quarts of whisky. The main question in the case is whether or not the evidence is sufficient to sustain the conviction. The evidence, on which this conviction rests, is substantially as follows: At the date alleged the defendant John Walker was seen to step off the passenger train at the Missouri, Kansas & Texas depot in Stringtown, and meet the defendant Felix Taylor and slip him a check for the trunk in question. A few minutes later Taylor appeared in the baggageroom and handed the check to the station agent, Chas. Neal, who testified :

“I saw the defendants at the station. Taylor told me he had a check for a trunk; I walked through the waiting room into the baggageroom. Taylor was standing near the trunk when I walked in, and he pointed to it, and I took the checks. The officers stepped up, looked at the checks and arrested 'Taylor. The trunk came from Kansas City, and the check read from Kansas City. As I stepped out of the baggageroom, Walker came in, and I heard him sav it did not belong to him.”

Deputy Sheriff Summers testified:

“I saw John Walker get off the train. He started down the platform south. Felix Taylor walked up beside him, and Walker slipped the cheek into Taylor’s right hand. Walker went into the baggageroom and took the check off of the trunk, and handed both checks to Charley Neal, the station agent and he took them into his office. I told Taylor I would take charge of him and the trunk. He said, ‘That is not my trunk; it belongs to John Walker.’ Deputy Sheriff Cox came in with Walker, and Walker said Felix Taylor’s brother gave him the check for the trunk at Muskogee. We opened the trunk, and found six pints of whis-ky and five gallons of alcohol.”

Deputy Sheriff Cox testified:

“I saw the defendant Walker get off the train and meet Felix Taylor, and he slipped a ticket to Taylor. I followed Taylor into the baggageroom, and heard him say to the agent that it was John Walker’s trunk. Walker said that it was not his trunk. ¡The whisky was in bottles, and the alcohol was in cans in the trunk.”

The state rested, and the defendants moved the court to direct a verdict of acquittal, which was overruled.

The defendant Walker testified:

“I live near Stringtown. I was, in Muskogee, visiting my daughter. I was on the train, and Jess Taylor asked me if I was going home. I said ‘Yes,’ and he handed me the cheek to give to his brother Felix, and said to tell him he would be down Sunday. I did not see the trunk. When I got off the train I met Felix Taylor, and said, ‘Here is the check Jim sent you,’ and I handed it, to him.”

The defendant Taylor testified:

“I was at the depot, and received the check from John Walker. I went into the baggageroom to get the trunk. I gave the check to Mr. Neal, and he took the check off the trunk and put it on the string. Mr. ¡Summers walked up and said, ‘I want to see what is in that trunk.’ I said, ‘Help yourself; it is not mine.’ I did not know there was any liquor in the trunk until Mr. Cox opened it. It was not my trunk.”

The information in this case is under the first clause of section 1, c. 186, Session Laws 1917, which reads:

“It shall be unlawful for any person in this ¡State to receive directly or indirectly any liquors, the sale of which are prohibited by the laws of this state, from a common or other carrier.”

It is contended by the defendants that the evidence does not show that they received the trunk from the railway company. We think that when the defendant Taylor pointed out the trunk and delivered to the station agent the check therefor, and the station agent took the check and removed the duplicate check from the trunk, such acts constituted a delivery to the defendant Taylor. The evidence tends to show that the defendants acted in concert with the common design to receive the trunk with its contents. In that respect it was a question for the jury as to whether or not the defendant Walker was aiding and abetting the defendant Taylor in the commission of the offense. In our opinion the evidence on the part of the state, if crea-ited, as it was, was amply sufficient to sustain the conviction.

Finding no error in the record requiring a reversal, the judgment is affirmed.

ARMSTRONG and MATSON, JJ., concur.


source: Caselaw Access Project

author: MATSON, J.

license: Public Domain

text:
    BILL LUTHER v. STATE.
    No. A-3620
    Opinion Filed Dec. 4, 1920.
    Rehearing Denied May 10, 1921.
    (197 Pac. 533.)
    (Syllabus.)
    1. ATTORNEY GENERAL — Powers as Prosecutor — Signing and Presenting1 Informations. When requested by the Governor or either branch of the Legislature, the Attorney General is authorized to appear for the state in any court of the state to prosecute a criminal action, and in this respect he is clothed with the same powers as the county attorney, and may sign and present an information in such action.
    2. APPEAL AND ERROR — Presumption of Attorney General’s Authority to Prosecute. Where defendant fails to' question the authority of the Attorney General to appear in the capacity of a public prosecutor in tbe trial court, it will be presumed on appeal that the proceedings were in all respects regular, and that the Attorney General was clothed with the prerequisite authority to appear in that capacity.
    3. INDICTMENT AND INFORMATION — Misnomer of Offense-Effect. The misnomer of an offense in an information does not affect the validity of the information, provided that in addition thereto there is contained in the information sufficient direct allegations of fact to charge the offense defined by the statute.
    4. APPEAL AND ERROR — Review—Sufficiency of Evidence. Where there are-facts and circumstances in evidence undented which authorized the jury to reasonably conclude that defendant was guilty of the crime charged, the judgment will not be reversed because of the insufficiency of the evidence.
    5. SAME — Reduction of Sentence. The judgment modified on the recommendation of the Attorney General.

      Appeal from, District Court, Ottawa County; S. C. Fullerton, Judge.

    Bill Luther was convicted of the crime of keeping a gambling house, and sentenced to serve a term of four years in the state penitentiary, and he appeals.
    Modified and affirmed.

      Nesbitt & Nesbitt, for plaintiff! in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   MATSON, J.

It is first contended that the trial court erred in overruling the demurrer to the information. IThe particular grounds of demurrer relied upon are: (1) That the information does not substantially conform to the requirements of the laws of the state; that there is no valid information filed; (2) that the information does not state facts sufficient to charge an offense under the laws of the state.

Under the first alleged ground of demurrer above set forth, it is contended- that the information is fatally defective, for the reason that the same was never signed by the county attorney before it was filed in court. The information purports to be signed by S. P. Freeling, Attorney General of the state of Oklahoma, C. W. King, Assistant Attorney General of Oklahoma, and by A. W. Turner, county attorney. In this connection it is contended, however, that at the date of the filing of the information the said A. W. Turner was not the county attorney of Ottawa county, Okla., and had no authority whatever to sign said information in any such official capacity.

It is not questioned, however, but that the information was signed by the Attorney General of this state, and by one of his duly qualified and acting Assistant Attorneys General.

Section 8057, Revised Laws 1910, provides, among other things, that—

The Attorney General shall, “when requested by the Governor or either branch of the Legislature, appear for the state and prosecute or defend in any court or before any officer, in any cause or manner, civil or criminal, in which the state may be a party or interested.”

It is unquestionably true that upon request of the Governor or either branch of the Legislature, the Attorney General is authorized to appear for the state and prosecute a criminal action, and in this respect he is clothed with the same powers as the county attorney. Dupree v. State, 14 Okla. Cr. 369, 171 Pac. 489, L. R. A. 1918D, 365.

The authority and power of the Attorney General to appear, present the information, sign the same, and prosecute this case in the trial court was not raised therein. Counsel who appeared for defendant in the trial court did not question the fact that the Attorney General was clothed with a request from the Governor to appear and prosecute this particular action, but relied entirely upon the failure of the county attorney to sign the information, at a time when he was the duly qualified and acting county attorney of Ottawa county, as fatal to its validity. We think this contention without merit. The Attorney General undoubtedly had the same power to appear, present, and sign an information, when requested by the Governor or either branch of the Legislature, as had the county attorney, and if defendant questioned such power and authority on the part of the Attorney General, it was his duty to plead in abatement of the action or to move to quash the information upon the ground that it was not found, indorsed, presented or filed as prescribed by the statutes. See section 5780, Revised Laws 1910.

The failure of defendant to move to set aside the information or to abate the action for such reason was a waiver on his part to question the authority of the Attorney General to appear in the capacity of a public prosecutor in the district court in this action, and in the absence of a showing that defendant in any manner questioned in the trial court the authority of the Attorney General to sign and present this information, it will be presumed on appeal that the proceedings were in all respects regular, and that the Attorney General was clothed with the prerequisite authority to appear in that. capacity. It is the opinion of this court, therefore, that, irrespective of the question of whether or not A. W. 'Turner was county attorney at the time this information was filed, it appearing conclusively that -the information was signed by the Attorney General of this state, and presented by him, without any proper attack being made in the trial court questioning such authority, it must be held that the information was properly indorsed, presented, and filed, in sufficient conformity with the statutory provisions governing the presentment of in-formations in criminal causes in the trial courts of record in this state.

The second ground of demurrer, to wit, that the information does not state facts sufficient to charge an offense under the laws of this state is based on the proposition that it fails to allege the commission of an overt act on the part of the defendant, but merely charged him with the keeping of a place, without alleging any facts as to. what kind of a place defendant kept.

This prosecution is 'based upon section 6, chapter 26, Session Laws 1916. There is a recital in the information which names the crime as that of “keeping a place/’ We do not think that this misnomer of the offense affected the validity of the information, provided that in addition thereto there is contained in the information sufficient direct allegations of fact to charge the offense defined by the statute. State v. Robey, 74 Wash. 562 134 Pac. 174; State v. Moser, 94 Wash. 465, 162 Pac. 582; McKissick v. State, 11 Ga. App. 721, 76 S. E. 71; Speer v. State, 130 Ark. 457, 198 S. W. 113.

In the Speer Case, supra, the Supreme Court of Arkansas held:

“Where an indictment a'gainst ‘an officer sufficiently charges a neglect of duty, a demurrer should not be sustained because the indictment called it ‘malfeasance in office.’ ”

In the body of the opinion it is said:

“The name of the crime is controlled by the specific acts charged, and an erroneous name of the charge does not vitiate the indictment” — citing several cases.

An examination of the information in this case convinces the court that it contains sufficient allegations of fact to constitute a good charge against defendant of unlawfully, willfully, and knowingly keeping and conducting a certain room in the town of Douthat, Ottawa county, Okla., in and at which there was played for money and other representatives of value certain specific games prohibited by chapter 26, Laws 1916.

It is also contended that the court erred in not sustaining the demurrer of defendant interposed to the evidence of the state, and in not advising the jury to return a verdict of not guilty because of the insufficiency of the evidence. The evidence in this case on the part of the state clearly establishes that the unlawful games of poker and craps were played at for money on premises leased by defendant, and in a room of a building erected by him. Tne prosecution had to rely upon the testimony of certain officers of that county, and other witnesses, whom it is clear from their direct and cross-examination were not friendly to the state, ’but it may be stated that there are facts and circumstances in evidence which authorized the jury to reasonably conclude that defendant, if not the real owner and operator of the unlawful premises, was aiding and abetting in its operation during the time alleged in the information. Defendant did not take the witness stand, nor make any denial of his alleged connection with this unlawful enter-, prise

The jury returned a verdict of guilty, but were unable to agree on the punishment, and requested the court to inflict the punishment. The court sentenced defendant to serve a term of four years in the state penitentiary. 'The maximum punishment prescribed by the foregoing section of the statute is a term of five years in the state penitentiary. The Attorney General has suggested to the court that the ends of justice would be best subserved by modifying the judgment to provide a term of two years imprisonment in the state penitentiary instead of four years. The court takes the view that the recommendation of the Attorney General is proper; that while the evidence in this case is sufficient to connect defendant with the commission of the offense, yet in view of the additional fact that the jury was unable to agree on the punishment and the punishment imposed being so near the maximum under the law, it appears that the ends of justice would be fully met by modifying the judgment to provide two years’ imprisonment in the penitentiary, as recommended by the Attorney General

The judgment, therefore, is accordingly modified to provide a term of imprisonment of two years in the state penitentiary, instead of four years, and, as so modified, is affirmed.

DOYLE, P. J., and ARMSTRONG, J., concur.


author: DOYLE, P. J.

text:
    HERBERT IRBY v. STATE.
    No. A-3019
    Opinion Filed Sept. 29, 1920.
    Rehearing Denied May 10, 1921.
    (Syllabus.)
    (197 Pac. 526.)
    1. HOMICIDE — Murder—Conviction of Manslaughter — Right to Complain. In a prosecution for murder, when the court submits -the issue, and the jury finds the defendant guilty of manslaughter in the first degree, in a case where the law and the facts make the crime murder, it is an error in the defendant’s favor, of which he has no cause to complain.
    2. EVIDENCE — Experiments Made out of Court. Evidence of experiments made out of court, and not in the presence of the jury, is admissible upon the same principle that the experiments themselves may be conducted in the jury’s presence.
    3. SAME — Similarity of Circumstances for Court. Where the competency of evidence of experiments depends upon similarity of circumstances and conditions, the question is one for the court to determine.
    4. SAME — Circumstiinc.es Approximately Similar. If the evidence shows that the experiments were made under circumstances approximately similar to those which surrounded the original transaction, and such experiments would serve to shed any light upon that transaction, it would be - admissible, although such experiments might not have been made under exactly similar conditions as attended the original transaction. The results of such experiments are not conclusive, but are mere circumstances to be considered with the other evidence in the case, and are to bo weighed and determined by the jury.
    5. APPEAL AND ERROR — Discretion of Trial Court — Permitting Articles to be Taken to Jury Room. Where the jury in open court request permission to take with them to the jury room, to inspect during them* deliberations, articles introduced in evidence, the granting or the refusal of the request is in the discretion of the trial court, the exercise of which will not be reviewed on , appeal without an affirmative showing that the discretion was abused.

      Appeal from. District Court, Tillman County; Frank Mathews, Judge.

    Herbert Irby was convicted of manslaughter in the first degree, and appeals.
    Affirmed.
    The information in this case charged that in Tillman county, on or about the 11th day of July, 1916, the defendant, Herbert Irby, did 'kill and murder Ruby Irby, his wife, by shooting her with a pistol.
    The evidence shows that the defendant and the deceased were married at Ardmore on the 23d day of May, 1916. The next day they returned to the home of her father, Rev. L. P. Morris, who was living at Cornish. After staying there a little more than a week, the defendant left, saying that he was going to Ardmore. Three days later he wrote a letter to his wife, saying, in effect, that he had deserted her. In about a week he returned to the home of his wife’s parents. After staying there about three weeks, the couple left on a Sunday morning in June in a covered wagon drawn by a team of mules, the property of the father of deceased. They drove to Grandfield, Tillman county, and were there about three weeks at the time Mrs. Irby was shot. A substantial statement of the evidence is as follows:
    City Marshal Sadler, of Grandfield, testified:
    “I was called to the home of Mr. Hilliard between 8 and 9 o’clock the evening of the 11th day of July, this year. I found Mrs. Herbert Irby lying on the ground, with her feet towards the wagon between the two wheels. The wagon was fronting north, and stood in the yard- a little north and west of the Hilliard house. It was 67 feet from the door of the house to the wagon. I picked up a pistol about 3 feet north of her, and 2 or 3 feet from her right hand. It had an empty shell in it, and the other chambers were empty. She died in a few minutes; I arrested Herbert irby. He said he wanted to go to the telephone station to talk to some one at Singling. When they answered he said,‘Is that you, John? They have me under arrest.’ We went back to Billiard’s. He said, ‘She came out there and stepped on the brake beam and reached down by my side and got the gun from under a quilt and stepped down off the brake and squatted down on the ground and shot herself.’ That is about his words. He didn’t seem to be excited at the time. I examined the body of the deceased, and found she was shot on the right side of the head, the skin was broken under her eye, and she had a bruise above the hip.”
    Dr. F. Rosenberger testified:
    “I am a practicing physician at Grandfield. I examined Mrs. Ruby Irby, and found her suffering from a gunshot wound in the head. The point of entrance was about an inch above the ear. Her heart was beating faintly, and she died in a few minutes. The apparent course of the bullet was upward and backward. • There was no powder burns anywhere upon her face. There was a slight discoloration about the eye, and a slight abrasion below the eye.”
    Dr. Chapman testified:
    „ “I am a practicing physician at Grandfield, I arrived at the scene after Dr. Rosenberger. She was still breathing. We picked her up and carried her into Mr. Hilliard’s house. She was dead when we reached the house. The wound was about an inch above the right ear. The bullet ranged upward and backward. There was a bruise near the right eye.”
    Rev. L. P. Morris testified:
    “Ruby Irby, the deceased, was my daughter. She was 17 in January, and was married to the defendant the 23d day of May. The next day they came to my house and stayed there a little over a week, and the defendant left, saying that he was going to hunt some work; three days later she received a letter from him. The letter is identified and offered, it s n part as follows:
    “ ‘June 7 — 16.
    “ ‘Dearest Wife :
    “ 'Will try in my poor humble way to tell you how I feel this morning. Ruby I have done you wrong — and God knows I am sorry — but I dont believe you really love and trust me as you should. And, I have just awakened out of a dream, a dream that causes me great pain — but I truly believe we will both be better off, if we never see each other again.
    “ T know now that I do not love you as I should and I believe there is another you love more than you do me. And for these reasons I am not going to come back or let you come to me. You can get a divorce in one year, on the grounds of desertion and then you will be free to do as you please. * * * Now sweetheart for my sake please do not take it hard. I have been told by several people that you loved another so I am doing this for your own sake, as well as for mine. I thought I loved you when I married you but now I know that I dont. I could easily learn to love you but knowing that you have loved others before you met me, I had rather we part.
    “ ‘Now dont think that I have found some one else whom I love for I haven’t. I dont know if I ever will love anyone. I dont know what true love is. And I donfc care if I never know and Ruby if our little Herbert is on the road go to Johnie and he will give you medicine to knock it. I know you dont want to have him now, and neither do I, so now just as quick as you find out go and get the medicine or else get your mother to help you. Ruby if there is any thing you want me to know tell my mother and she can get word to me some way — if you get sick and need some money tell her and I will send it, 'but if you dont want any of these, please do not worry her for her heart is near enough broke with our trouble so now I will close leaving it up to God to judge me and take care of us both and forgive me if I am not doing right I will say Good bye Yours
    “ ‘Herbert.
    “ T. S. Ruby if you want to you can go on and use your own name for I do not ask you to keep mine.’
    ‘‘Something like a week after she received the letter he came back. They stayed there until about three weeks before her death. They left on a Sunday morning; I don’t remember what day of the month, but it was in June. I let them have a wagon and a team of mules, and they were going to the harvest field in Tillman county. 1 am a minister, and at that time I was living at Cornish. I was at Grandfield the next morning after the tragedy, and was present when three cartridges were found on the ground under the wagon brake.”
    Mrs. O. L. Hilliard testified:
    “I live with my husband and four children in Grand-field. I met the defendant and his wife about three weeks before her death. He was working in the harvest fields and they were camping out. A few days later they came to my home. She stayed with me most of the time, except at nights. The defendant was out in the harvest fields when he was not at my house. The wagon was about 40 or 50 feet north and west of the house; the defendant went out that day, and came back about 1 o’clock, and said one of his mules was sick, and;he had decided to go home. He ate his dinner and went to the Davis lumber yard. He came back, and asked his wife to get his gun, and she gave it to him, and he went over to the lumber yard. When he came back the gun was put in my dresser drawer. He asked his wife for some money, and she told him that' she had given it to her little brother. He said, ‘Your brother don’t need it; when you need any money I can get it.’ I noticed that he was angry. She wanted to get some peaches, and suggested that we go over to Mr. Carley. They had an orchard. While she was gone the defendant came in and asked me if Ruby had given me $2. I told him ‘No,’ and he said she told him that she had given me $2, and he said, ‘Mrs. Hilliard, you don’t know the trouble I have had; you don’t know what I have had to contend with.’ She came back directly in a jolly good humor. I asked her if she told Herbert she had given me $2, and she said, ‘No; I didn’t tell him anything of the kind.’ She asked him for sonn money to pay for the peaches, and he gave her a dime. 1 was in the kitchen, and she came back and said, ‘We will let- the peaches go.’ Later we went over to Mr. Rosenber-ger to get some peaches, and while we were there she said, Mrs. Hilliard, please.do hot tell Herbert that you had to pay for these peaches; I. will get the money some time, and send it to you after I get home.’ After we came back from Mrs. Rosenberger we went to the wagon. The defendant was sitting on the ground. She walked up to him and said, ‘Sweetheart, I know where we can get some peaches.’ He said, ‘Well, you will have to go and get them.’ She said, ‘No; you will have to go with me, because they might think I am stealing them.’ We went to the house, and I asked her why she didn’t stay and let him go home with the wagon. She said, ‘If I did, I would never see him any more. Mrs. Hilliard, you don’t know how I have suffered ; I am afraid Herbert is going to kill me.’ I said, T would not think that.’ She said she was going home to her father’s the next day with Herbert in the wagon. After her conversation with her husband that evening she went out upon the sidewalk crying, and I followed her a little ways and asked her what was the matter. ;She didn’t answer me she walked off up the sidewalk, and I went back in the house. The defendant came in and asked me where Ruby was, or where she went, and I told him I didn’t know. He said, T believe she has gone to telephone her people.’ He sat there a little while and said, ‘If I have to go after her she will wish she hadn’t gone.’ It was just getting dark. She was gone about 40 minutes when she came back. She was still crying. We went into the kitchen, and she laid her hand on my shoulder and said, ‘Mrs. Hil-liard, Herbert is going to kill me; maybe it is for the best; I don’t know what to do.’ She walked out the kitchen door towards the wagon. I stepped back, and then looked out again. She was standing on the wagon. I saw a flash of a revolver, and I saw her throw her hands up like this and fall backward. I ran and called for help. The flash was from the side of the wagon; I would say that the flash was about 2 feet long. My little boy was out there in the yard.”
    Joe Hilliard testified:
    “I am 11 years old. I was out there by the well with my little brother and the dog. I saw Mrs. Irby when she passed by. She came out of the house by the back door and went to the wagon. She got up on the wagon brake. Herbert Irby was in the wagon when the shot was fired. I saw Herbert Irby jump out of the wagon and pick up his wife. When she was standing upon the brake it looked to me like her hands were on the side of the wagon bed. When she fell backward she threw them up. I saw Herbert Irby fling something down aside of him when he got out of the wagon. I asked him if he wanted me to go for a doctor, and he said, ‘Yes.’ ”
    O. F. Hilliard, testified:
    “I knew the defendant and his wife about three weeks. During that time I went with him to town to get some groceries; and she went to the picture show. .He said.he wished he had his gun; that he was going to get shet of her. He told me a time or two in' the harvest field that he was going to get shet of her. Mrs. Irby stayed with my wife while- we were working in the harvest. I did not see him have the gun in the -harvest field but once, but I saw him have it in the house several times while he was staying there.”
    E. M. Linsey testified:
    “I am in the grocery business at Grandfield; I closed the store that evening, and was going home in my car, and I saw Mrs. Irby lying on the side of the road. My son was driving the car. He stopped, and I got out and asked her if she was sick. She didn’t answer. I spoke to her a time or two, and went over near her. She jumped up and threw up her hands, and said, ‘Is he gone?’ or something like that, and started off. That was one block north and one block west of the Hilliard home. We started back and met Mr. Irby, her husband. He asked me if I had seen a young woman around there anywhere. I told him I did,' and I asked him who she was, and what she was doing out there that time of the night. He said her name was Irby, and she had spells like that. I went back with him to where I had seen the woman, and she was gone.”
    J. D. Beavers testified:
    “I live one block south and one east of the Hilliards. I saw the defendant in front of Mr. Hilliard’s door that evening. I saw a car stop nearly a block from my house. Me and my wife’s sister were sitting in front of my house. We saw a man get out of the car. Shortly af-terwards I heard a woman crying. Mr. Bosworth was over at his house, and said, ‘John, did you hear that?’ I said, ‘Yes.’ We saw a woman going down the road crying, and followed her a little ways, and she went down to Mrs. Hilliard’s house. We met the defendant, and told him that we saw a woman going down the road crying. He did not say anything.”
    A. B. Corley testified:
    “I am in the livery business at Grandfield. I li\e one block east, across the street from Hilliard’s. I heard a pistol shot, and I heard Mrs. Hilliard screaming, and I ran over there and met Mr. Hilton, and we went to the wagon. Mrs. Irby was lying on the east side of the wagon, her feet below the brake beam and her head just a little to north of east. The defendant seemed cool and calm, and seemed to me to be indifferent; he was rolling and smoking cigarettes. The next morning I picked up three cartridges about 2 feet north of where the blood was. Two were right together, and the other six inches from these two. Mr. Morris, father of Mrs. Irby, was there when I picked up the cartridges.”
    E. S. Bostic testified:
    “I was a deputy sheriff. Mr. Sadler took charge of the defendant, and later delivered him to me. I asked him if he wanted to go and see his wife, and he said he didn’t give a damn whether he ever saw any of her folks or her either.”
    Ira A. Sessions testified:
    “I am in the furniture and undertaking business at Grandfield. I made an examination of Mrs. Irby’s face, and found that the bullet entered right above the ear and broke the skin on the other side of her head. The hair was not singed or powder-burnt, and her face was clear of powder burns.”
    F. G. Rosenbaum testified:
    “I live a little more than a block from where the shooting occurred. I heard a pistol shot, and I heard a woman scream. I started that way with Mr. Gibbs. We found this woman lying on the ground, and her husband standing close by. I asked him what was the matter, and he said, ‘she shot herself.’' ”
    J. W. Hubbard testified:
    “I am in the hardware business at Grandfield, and I have had experience in using firearms. I was present, with four or five others, and we made experiments with this pistol.”

      Over the objections of the defendant he further testified:
    “We shot the pistol several times. The cartridges used were the' same kind, but of a different brand. We tried it on some tissue paper. We placed some hair on the paper and shot the pistol at it at about 2 feet, and it showed considerable powder burns, and at 3 feet it showed considerable powder burns.”
    F. H. Hurst, over the objections of the defendant, testified:
    “I first held the pistol about 10 inches from the ground, and shot it straight down through some hair on tissue paper. The force of - the explosion blew a great deal of the hair away, and singed it more or less. I then shot the gun 2 feet from a paper napkin against a bank of dirt. The napkin was considerable powder-burnt. Then 3 feet from the napkin, and it was powder-burnt. Then four feet, and there were some signs of powder-burns. I shot 7 feet at a piece of cloth, and that showed a little powder burn, and I shot at 10 feet, and there were very small specks of powder, if any, at that distance.”
    William Williams testified:
    “I was present when the experiments were made. At 2 feet the powder passed clear through the napkin, and at 3 feet the powder showed on the paper.”
    For the defense, Reed Davis testified:
    “I am in the lumber business at Grandfield. The defendant was at my lumber yard that afternoon, doctoring a sick mule. There was a stranger there who had been on a drunk, and he took slight offense at the defendant in some way, and took out his pocketknife and started towards the defendant, and the defendant got up and moved away. That is about all I noticed. The defendant and his wife stayed at my house a short time. The first night they had a little quarrel about going to the show. The next day the defendant went out threshing, ana she went to Mr. Hilliard’s.”
    A. C. Starkey testified:
    “I was the second man that arrived there. I looked at the wagon. There was a bed in the back end of the wagon. The wagon sheet was raised up on the east side about a foot and a half; it was lower on the other side and tied.”
    J. B. Hutchinson, chief of police at Ardmore, and F. C. Ingham, of Ringling, qualified as character witnesses, and testified that the general reputation of the defendant for being a peaceable, law-abiding citizen in the community in which he lived was good.
    J. P. Irby testified:
    “1 am the father of the defendant. I was with my son when he was in the custody of Mr. Bostic. -I didn’t hear Mr. Bostic ask him if he desired to see his wife, and my son did not say, “No; I don’t want to see her or any of the damn family.’ ”
    As a witness in his own 'behalf the defendant testified:
    “I am 19 years old. I was raised in and around Ard-more; I was married at Ardmore on the 2‘3id day of May, 191.6. The next day we went to her father’s house. I stayed there about two weeks and went to Ardmore. I wrote the letter introduced in evidence. Then I wrote her another letter, and told her that I did not mean what: I wrote before. I told her to meet me in Madill. She came, and we stayed there that night, went to Ardmore the next day and from there to Ringling, and from there to her father’s house, and stayed there about three weeks, then came to 'Grandfield in a covered wagon. I had two chairs in the front end, and the bed was on the back end of the wagon. I came back that day with one of my mules sick. I asked my. wife if she had any money. She said, ‘Yes.’ I told her that I would have to have some to buy feed for the mules; she said it was not necessary. I led the sick mules over to Mr. Davis’, and we doctored the mules for about 30 minutes. There was a bootlegger in there that I had a few words with on Monday. He made a break at me with his knife, and I .iumped away, so I decided to go and get my gun from my wife. I told her what I wanted with it. She laughed, and asked me to take it and arrest him. I went back to the lumber yard and stayed over an hour. I returned to the house about 4:30, and told my wife I would lay down and take a nap, and she fanned me a little, I asked my wife about the rnonev again. She flushed up, and seemed to get mad, and I said, ‘Ruby, don’t get mad, for you are not in a condition to get mad.’ She left the house then. I asked Mrs. Hilliard if my wife had given her $2, and she said, ‘No.’ My wife had told me that she had given her $2. After supper I returned to the house again. I said, ‘Mrs. Hil-liard, I don’t care about the money, but I wish you would tell me the straight about it.’ My wife got mad, and walked out the front door. I walked out to the wagon and put my gun under the quilt. I went in and asked Mrs. Hilliard, ‘Where has she gone?’ She said, ‘We don’t know.’ I said, T expect she has gone over to telephone her father.’ I sat in the doorway, and then I got up and went in the direction that Mrs. Hilliard’s boy said my wife went. I didn’t meet any one the first trip. I went again, and met an old gentleman and a young man, and I asked them if they had seen a young lady up there. They said, ‘Yes,’ and we went to the corner. One of the men said he found her on the ground; that she got up and staggered off south from there. I returned to the house. She was there lying on the bed. I went out to the wagon and doctored the mule a little. T thought I would return to my wife and make up. * returned and sat down on the back door step 5 or 10 minutes. Then I went back to the wagon and decided that I would lay down up there the rest of the night. My head was towards the south. I saw my wife and Mrs. Hilliard going to get a bucket of water. The next time I saw my wife she was up on the brake beam of the wagon. I thought I would wait until she spoke. She reached over with her left hand, her right hand on the bed, and she reached down and got the pistol and raised it up and broke it. I saw her pull some shells out. and I turned my head to look at the mules and then I heard the report of a gun; I jumped out of the wagon and got my wife up in my arms.”
    “By a Juror: That gun being covered up and it being dark in the wagon, where or how did your wife find that gun? A. Well, it was not dark. It was moonlight. Mr. Saddler came. I told him how it occurred. We went to the telephone office, and I talked to my brother at Ringling and told him that Ruby had shot herself, and that I was arrested. I didn’t make! the statement to Mr. Hilliard that if I had a pistol I would kill somebody; I walked to the grocery store with Mr. Hilliard, and I saw her and a young man coming up the street. They never looked at mé, and I walked on in and said to Mr. H.illiard, ‘That is a pretty nice joke.’ I never at any time or place stated to Mr. Hilliard that I intended to make away with my wife, and I did not make the statement that Mr. Bostic testified I made. I loved my wife, and I don’t believe that there ever was a man in the world who loved or thought any more of his wife than I did of mine.”

      Mounts & Davis, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, and W. C. Hall, Asst. Attys. Gen., for the State.
   DOYLE, P. J.

(after stating the facts as above) . This appeal is from a judgment of conviction for manslaughter in the first degree, the punishment having been assessed at imprisonment in the penitentiary for a term of four years. The information charged the defendant, Herbert Irby, of having committed the crime of murder by killing his wife, Ruby Irby, by shooting her with a pistol. The theory of the prosecution appears to have been that the killing was an assassination. The defendant sought an acquittal of the charge against him on the ground that he had no connection whatever with the shooting, and as a -witness in his own behalf testified thab his wife shot herself. One of the grounds for a new trial and assigned as error and now urged for a reversal of the judgment is that the evidence was insufficient to establish his guilt, and this insistence called for the foregoing extended synopsis of the testimony. It is obvious that upon the evidence it was a question for the jury to determiné as to whether or not the defendant shot Ruby Irby, or whether the fatal shot was self-inflicted. Carefully considering the whole testimony in the case, we feel constrained to say that we have seldom read a record of conviction where there was less palliating circumstances in behalf of the defendant than this case presents. On the contrary, the defendant’s conduct from the beginning to the end shows “a heart regardless of social duty and fatally bent on mischief.”

The evidence on the part of the state, discloses that the defendant deliberately shot and killed his wife, and the physical facts show that the denial of the defendant is -wholly incredible. However, it was for the jury to judge of the weight of the evidence and the credibility of the witnesses.

The next assignment is based on exceptions reserved to the admission of evidence of experiments made in regard to the effect of powder fired from the pistol which killed the deceased upon a napkin and upon tissue paper at distances ranging from 3 to 10 feet. The undisputed evidence was that there was no powder burns on -the head or neck néar where the bullet entered, and this evidence was admitted as tending to show the distance of the pistol from the deceased’s head when the fatal shot was fired.

In Ruling Case Law, vol. 10, § 189, it is' said:

“Evidence of experiments made out of court, and not in the presence of the jury, is admissible upon the same principle that the experiments themselves may be conducted in the jury’s presence. * * * An expert in gunshot wounds who has conducted a series of experiments with pistols of the same caliber as. that with which a homicide was committed, as well as of the pistol in question, as to the nature and effect of wounds inflicted thereby and of the manner in which they are produced, may be permitted to testify as to the result of such experiments, nor is his testimony to be excluded as ex parte and manufactured evidence.”

As a general rule an experiment introduced for the purpose of proving that the alleged result is obtained by a certain act or operation, considered as existing in the case, should not be permitted unless the conditions and circumstances under which the experiment is made are similar to those shown actually to have existed in the case. However, if the evidence shows that the experiment was made under circumstances similar, or approximately similar, to those which surrounded the original transaction, and sucii experiment would serve to shed any light upon that transaction, it would be admissible, although such experiment might not have been made under exactly similar conditions as attended the original transaction. The want of exact similarity would not exclude, but would go to its weight with the jury. 1 Michie on Homicide, p. 832, and cases cited. Where the competency of evidence of experiments depends upon similarity of circumstances and conditions, the question is one for the court to determine. We are satisfied that the court did not err in admitting evidence 'of the experiments as tending to shed some light on the firing of the fatal shot, and its weight was for the jury to determine.

The next assignment is' that the court erred in permitting the jury to take with them to their room certain exhibits. IThe record shows that on request of the jury the court permitted them to take the cap, letter, and revolver. We have decided this question adversely to the defendant’s contention in the case of Hopkins v. State, 9 Okla. Cr. 104, 130 Pac. 1101, Ann. Cas. 1915B, 736, wherein it is held:

“Where the jury in open court request permission to take with them to the jury room, to inspect during their deliberations, articles introduced in evidence, the granting or refusal of the request is within the discretion of the trial court, the exercise of which will not be reviewed on appeal without an affirmative showing that the discretion was abused.”

The only remaining assignment is, “Error of the court in submitting to the jury the question of. manslaughtei.” The record shows that the defendant reserved exceptions .to the instructions submitting the issue of manslaughter in the first degree. It is contended that under the evidence the defendant should either have been convicted of murder or acquitted, and that no instructions for manslaughter in the first degree should have been given. In support of this contention we are cited by counsel for defendant to Leseney v. State, 15 Okla. Cr. 247, 163 Pac. 956, in which it was held reversible error to instruct on manslaughter in the first degree when the evidence tended to show that the defendant was guilty of murder alone, and there was no evidence to support the charge of manslaughter in the first degree. In all other cases it has been uniformly held by this court that, even if the evidence did not warrant an instruction for manslaughter, it is an error in the defendant’s favor of which he has no cause to complain. Under the provisions of the Code of Criminal Procedure — i

“The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, cr o., an attempt to commit the offense.” Section 5923, Rev. Laws.

In the case of Lytton v. State, 12 Okla. Cr. 204, 153 Pac. 620, it is said:

“It is sufficient answer to the contentions made to say that we thinic after a careful survey of the facts in evidence, that there was no element of self-aefense in this case. Considering the testimony of all the witnesses in the case excepting that of the defendant, there is no doab„ m our minds that the homicide was a deliberate and premeditated murder; and, while the defendant's account of the killing differs somewhat from that given by the other witnesses, he is, we think, guilty of murder upon his own statement. It would seem that the demands of justice and the protection of society clearly required in this case that the penalty prescribed by the law for the punishment of the crime of murder should have been imposed upon the defendant. However, the court submitted the question of manslaughter in the first degree, and the jury found the defendant guilty of this lower degree. It is the province; of the jury, if the defendant is found guilty, to determine and fix the degree by their verdict, and ’ it has been uniformly held by this court that if the jury in a homicide case find the defendant guilty of a lower degree, where the law and the facts malee it murder, it is an error in favor of the defendant of which he cannot complain.” Cannon v. Territory, 1 Okla. Cr. 600, 99 Pac. 622; Reed v. State, 2 Okla. Cr. 589, 103 Pac. 1042; Atchison v. State, 3 Okla. Cr. 295, 105 Pac. 387; Warren v. State, 6 Okla. Cr. 1, 115 Pac. 812, 34 L. R. A. (N. S.) 1121; Kent v. State, 8 Okla. Cr. 188, 126 Pac. 1040; Jones v. State, 8 Okla. Cr. 576, 129 Pac. 446; Steward v. State, 9 Okla. Cr. 327, 131 Pac. 725; Moutry v. State, 9 Okla. Cr. 623, 132 Pac. 915; Robinson v. State, 15 Okla. Cr. 456, 177 Pac. 925.

From a full consideration of all the evidence we are convinced that the jury would have been fully justified in convicting the defendant of murder, and he has cause to congratulate himself that the jury found him guilty of manslaughter in the first degree only, and assessing the minimum punishment. However, upon the record our duty is performed by an affirmance of the judgment. The judgment of the district court of Tillman county is therefore affirmed.

ARMSTRONG and MATSON, JJ„ concur.


author: ARMSTRONG, J.

text:
    QUILLIE McCONNELL v. STATE.
    No. A-3274
    Opinion Filed Jan. 27, 1919.
    Rehearing Denied May 10, 1921.
    (197 Pac. 521.)
    (Syllabus.)
    1. WITNESSES — Incriminating Evidence — Right to Silence — Waiver. Bill of Rights, § 21, of the Constitution providing, ‘‘No person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided.'’ simply protects each person in the right of silence. It does not mean that he shall not be allowed or permitted to give testimony which may tend to incriminate him. The right of silence is one which may be waived, either by agreement or by the voluntary act of the witness, and is waived if the right'is not asserted in apt time.

      2. CRIMINAL LAW — Incriminating Evidence — Right to’ Silence. Before any person can secure immunity under section 27 of the Bill of Rights of our Constitution on account of incriminatory evidence, given by him, as a witness, for the state, such witness must have testified under an agreement' made with the prosecuting attorney, approved by the court, or such witness must have claimed the privilege of silence, which was. by the court denied and such witness must have been compelled bjr the court to so testify.
    3. JUDGMENT ANI) SENTENCE — Stay of Execution — Validity Under Procedure Criminal (section 5970, Rev. Laws 1910) pro> viding, “No iudge, court or officer other than the Governor can reprieve or suspend the execution of a judgment of death * * * unless a writ of error is allowed and taken,” a reprieve can only be granted bj' the Governor pending the perfecting of an appeal in the case, and an order of the court staying the execution of the judgment of death indefinitely, entered after the term in which the judgment was rendered, is without authority of law, and is therefore a nullity.
    4. APPEAL AND ERROR — Reduction of Sentence — Power of Court. Under Procedure Criminal (section 6003, Rev. Laws 1910), this court in the furtherance of justice has the power to modify any judgment appealed from by reducing the sentence.
    5. SAME — Modification of- Death Sentence. The power of this court to modify a judgment inflicting the death penalty for murder to imprisonment for life at hard labor, when deemed proper in the furtherance of justice, is not the power to commute by the chief executive of the state. The judicial power to modify a judgment and the executive power to pardon or commute are wholly distinct in their nature. The one is an award of justice. The other is an act of grace.
    6. ' SAME. Plaintiff in error upon a plea of guilty was sentenced to suffer death. The record shows that on September 3, 1917, he was arraigned on an information filed August 25th, charging murder, alleged to have been committed on August 22, 1917, and pleaded not guilty. Upon proper showing that he was a poor person, the court appointed counsel to defend him. September 22d, he filed petition for a change of venue. October 1st, the court denied the change of venue, also his motion for a continuance, and called the case for trial, whereupon plaintiff in error withdrew his plea of not guilty and entered a plea of guilty. The court on October 18, 1917, rendered judgment and sentence of death. During the interim plaintiff in error, without notice to his counsel, was used as a witness for the state on the trial of his codefendant. After judgment, plaintiff in error filed motion for a new trial and for leave to withdraw his plea of guilty. The following term the court made an order suspending indefinitely the execution of the death warrant. Plaintiff in error prays that on the alleged errors and in furtherance of justice the sentence be modified to imprisonment for life; the Attorney General agrees that such modification should be made. Held that, upon a full consideration of the record and the irregularities complained of, the court is of opinion that in furtheran'o of.justice the judgment and sentence of death by electrocution should be modified to imprisonment for life at hard labor, and, as so modified, affirmed.

      Appeal from District Court, Lincoln County; Chas. B. Wilson, Judge.

    Quillie McConnell was convicted of murder, and appeals.
    Modified and affirmed.

      Roscoe Cox, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

This appeal is from a judgment rendered on a plea of guilty to a charge of murder under which plaintiff in error, Quillie McConnell, was sentenced to suffer the punishment of death by electrocution.

Errors are assigned upon orders overruling motions for continuance, for change of venue, and for a new trial; also, upon various orders of the court setting and resetting the date of execution.

It appears from the record that plaintiff in error, Quil-lie McConnell, and Noah Barnard, were by information filed in the district court of Lincoln county on the 25th day of August, 1917, charged with the crime of murder alleged to have been committed in said county on the 22d day of August, 1917, by shooting one George E. Arnold with a pistol.

On September 3, 1917, plaintiff in error was arraigned and pleaded not guilty. September 22d, plaintiff in error filed his verified application for a change of venue on the ground that the prejudice existing in this county against affiant is such that he has at various times been in danger of losing his life at the hands of the citizens of said county; that, because of said prejudice against affiant, he believes and alleges that a fair and impartial trial cannot be had by affiant in said county, which application was supported by six corroborating affiants.

October 1, 1917, the county attorney filed about 75 controverting affidavits to the effect that there does not exist any well-defined or expressed prejudice generally throughout the county against the defendant, Quillie McConnell, that would prevent him from securing a fair and impartial trial in said county, and that at no time during the pen-dency of this prosecution has the defendant been in danger of losing his life at the hands of the citizens of said county.

On the issue thus joined, the state called as witnesses each of plaintiff in error’s supporting affiants. Thereupon counsel for plaintiff in error stated that the defendant demanded an opportunity to examine the affiants who made counter affidavits for the state for the purposes of showing that these affiants believe the defendant is guilty, which request was refused, and the court denied the petition for a change of venue and allowed an exception.

Whereupon plaintiff in error filed a motion for continuance on the ground:

“That said defendant was at the time of his arrest unable and has at’all times since been unable of his own means to employ an attorney, and that an attorney was appointed by the court to defend him; that since said defendant has had the benefit of counsel, said counsel has been engaged in procuring a change of venue for the trial of said cause, and for this reason, and for the reason that such a short time has elapsed said defendant’s counsel has been unable to properly prepare for the defense of this defendant.”

In support of the motion, Roscoe Cox was sworn and stated:

“That it has been less than a month since I was appointed to defend this affiant; that I am young in the practice of law; that I have never engaged in the criminal practice, and have never had a capital case; that.-1 have'by the force of circumstances been compelled to look after the practice of a partner who has gone to war and also the practice of another attorney who is going to war; that it would require all my time and perhaps more from the time I was appointed to properly prepare the defense in this case; that I don’t think at this time1 that I am prepared to make a proper defense for the defendant; that I could prepare a proper defense if given additional time.

“The Court: Motion for continuance overruled. Exception allowed.”

Thereupon the case was called for trial.

“Mr. Cox: The defendant wishes at this time to withdraw his plea of not guilty and enter a plea of guilty, and I will say that in this connection that the only way that the defendant could protect his rights and make a consistent fight, in the first instance was to appeal to the court for a change of venue, and a continuance of his cause, and that matter should not be considered against him but should rather be considered in his favor.

“The Court: You have heard, Mr. McConnell, what your attorney has said in reference to your plea. Is it your wish at this time to withdraw your plea of not guilty and enter a plea of guilty?

“McConnell: Yes, sir.

“The Court: You do this after a full consideration of your case and after consultation with Mr. Cox, do you?

“McConnell.: Yes, sir.

“The Court: And fully understand the nature of your plea?

“McConnell: Yes, sir.

“The Court: Let the plea of not guilty be withdrawn and the plea of guilty be entered, and let defendant be taken back. A later day will be fixed for the judgment and sentence of the court.”

October 18, 1917, the court rendered judgment and sentenced plaintiff in error “to suffer death by electrocution at the state penitentiary at McAlester, on the 14th day of December, 1917,” and remanded plaintiff in error to the custody of the sheriff. And on the same day, defendant being present in person and by his attorney, the following proceedings were had:

“The Court: Mr. McConnell, stand up. I have sentenced you for the crime for which you have been convicted to death, the sentence to be executed on the 14th day of December, 1917. I see fit to change that date from December 14 to December- 28, 1917, and you will be sentenced to be executed by the warden of the penitentiary at McAlester on the 28th day of December, 1917.

“McConnell: What difference does it make?”

November 19, 1917, a motion for new trial, including application for leave to withdraw plea of guilty, was filed in part as follows:

“That said defendant was surprised at the sentence of the court. That, relying upon an almost unbroken line of precedent, defendant expected a life sentence upon his plea of guilty.

“That after defendant’s plea of guilty was received and before sentence and while in custody of the law, he was taken into court and required to give testimony in the trial of the man who was charged jointly with this defendant in the commission of the crime with which he was charged and for which he was sentenced. That defendant was brought into court and required to testify in said cause, without notice to his counsel; that defendant’s counsel was not informed and did not know that defendant was going to be required to give testimony in said cause, and said counsel was not present in court when defendant was required to so testify. That defendant was required and did so testify without being informed of his constitutional rights. That defendant was examined and cross-examined by the state and by the attorneys for defendant’s alleged accomplice, and the testimony thus elicited was unfair and prejudicial to defendant, in that it was heard and received by the court that later sentenced said defendant. That defendant was ignorant of his rights and had no opportunity to be informed thereof and did not know that defendant had so testified until more than three days after the sentence of said defendant.

“That the action of the trial court, in refusing a change of' venue for the trial of defendant’s cause, placed defendant in the position where he had to plead guilty or proceed to trial in a county hostile to him and before a prejudiced jury.”

It further appears from the record that the court made the following order:

“Stay of Execution.

“Now on this 14th day of January, 1918, comes on the hearing of defendant above for a stay of the execution of the sentence pronounced upon the above defendant, Quillie McConnell, in the above-entitled case, and the court having heard the evidence produced., and being fully advised in the premises, finds notice of appeal has been given to the county attorney and filed with the clerk, and that said execution should be stayed pending the appeal of said defendant.

“It is therefore ordered, adjudged, and decreed that the execution of the sentence of death pronounced against the defendant above in the a'bove-entitled case be stayed pending the appeal of said defendant, -and that the clerk of said court notify the warden of the state penitentiary at McAlester, Okla., that said - execution has been stayed.

“Chas. B. Wilson, Jr., District Judge.”

From the records in the office of the Governor, it appears that on December 19, 1917, the Governor issued an order staying the execution of the plaintiff in error until January 25, 1918. On January 19, 1918, the Governor made another order staying the execution until March 1, 1918, and on Febrüary 23, 1918, the Governor issued another order staying the execution until April 26, 1918. On March 1, 1918, an appeal was perfected by filing in this court a petition in error with case-made, and an order was entered by this court suspending and staying the execution of the death warrant until the appeal would be determined, and until further order of this court.

It is urged on behalf of the plaintiff in error that the state in calling him as a witness before the court pronounced judgment and sentence on his plea of guilty, thereby granted him immunity from further prosecution and punishment for the crime charged in the information.

Bill of Rights, § 21, provides:

“No person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided.”

And Bill of Rights, § 27, provides:

“Any person having knowledge or possession of facts that tend to establish the guilt of any other person or corporation charged with an offense against the laws of the state, shall not be excused from giving testimony or producing evidence, when legally called upon so to do, on the ground that it may tend to incriminate him under the laws of the state; but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may so testify or produce evidence.”

Our Procedure Criminal (section 5879) provides:

“When two or more persons are included in the same indictment or information, the court may, at any time before the defendants have gone into their defense, on the application of the county attorney, direct any defendant to be discharged from the indictment or information, that he may be compelled to be a witness for the state.”

iThere is nothing in the record before us tending to show that plaintiff in error was not a voluntary witness for the state on the trial of his codefendant.

In the case of Scribner v. State, 9 Okla. Cr. 465, 132 Pac. 933, Ann. Cas. 1915B, 381, the foregoing constitutional provisions were construed by this court/ and it was held that section 21 of the Bill of Rights “simply protects each person in the right of silence. It does not mean that he shall not be allowed or permitted to give testimony which may tend to incriminate him. The right of silence Is one which may be waived, either by contract or by the voluntary act of the witness, and is waived if the right is not asserted in apt time.” And that—

“Before any person can secure immunity under section 27 of the Bill of Rights, on account of incriminatory evidence, given by him as a witness before a grand jury or in any court, such witness must have testified under an agreement made with the prosecuting attorney, approved by the court, or such witness must have claimed the privilege of silence, which was by the court denied, and such witness must have been compelled by the court to so testify.”

If it were shown by the record that plaintiff in error was not a voluntary witness for the state, the point raised would be properly presented. The record does not disclose any of the facts connected with the homicide, and no appeal was taken by the codefendant from the judgment of conviction against him; therefore there is nothing before this court showing the circumstances under which plaintiff in error testified as a witness for the state. However, it is manifestly apparent that in common fairness to plaintiff in error, who it appears is a boy about eighteen years of age, his counsel should have been notified that the state intended to use him as a witness on the trial of his eode-fendant, and he should have had the benefit of consulting his counsel before being called as such witness. In this connection, we must confess that we know of no precedent in American criminal jurisprudence, where a defendant in a murder case voluntarily testified as a witness for the state against a codefendant, that he was afterwards sentenced to suffer the extreme penalty of the law.

It is also urged that the order of the trial court entered January 14, 1918, suspending indefinitely the execution of the judgment and sentence, was in effect a setting aside of the judgment and sentence.

The general power of a court to reconsider its judgment and sentence and reverse, vacate, or modify it at any time during the term in which it was rendered, or to increase or diminish the sentence which it has imposed, where the original sentence has not been executed, or put into operation, is undeniable. This power is inherent in all courts of record. Rupert v. State, 9 Okla. Cr. 226, 131 Pac. 713, 45 L. R. A. (N. S.) 60.

It appears from the record that the order was not made during the term in which the judgment was rendered. Our Procedure Criminal (section 5970, Rev. Laws) provides that—

“No judge, court or officer other than the Governor can reprieve or suspend the execution of a judgment of death, except the sheriff, * * * unless a writ of error is allowed and taken.”

Under this provision an order of the court or trial judge staying the execution of a judgment of death, entered after the term in which the judgment was rendered, is without authority of law and is therefore a nullity.

See Opinion of the Judges, 3 Okla. Cr. 315, 105 Pac. 684.

It is also urged that the trial court abused its discretion in refusing to permit the plaintiff in error to withdraw his plea of guilty.

Our Procedure Criminal (section 5804, Rev. Laws) provides that—

“The court may, at any time before judgment, upon a plea of guilty, permit it to be withdrawn, and a plea of not guilty substituted.”

In Jenkins v. State, 6 Okla. Cr. 516, 120 Pac. 298, it is said:

“In respect to the question of discretion, courts have distinguished between the higher and lower grades of crime, and construing this section of the statute in a felony case, and especially in a capital case, if the defendant has entered a plea of guilty without the benefit of counsel or was influenced to enter such plea, either by his counsel, or by the prosecution, or by act of the court, he should be accorded the right of trial by jury, by permitting him at any time before judgment to withdraw his plea of guilty and substitute therefor a plea of not guilty. In such cases the refusal' of a trial court to permit this to be done would be considered an abuse of judicial discretion.”

It is also urged that it was an abuse of discretion for the court to neglect, before pronouncing judgment and sentence, to take the testimony as provided by section 5954, Procedure Criminal, which provides that—

“After a plea or verdict of guilty in a case where the extent of the punishment is left to the court, the court, upon the suggestion of either party that there are circumstances which may be properly taken into view, either in aggravation or mitigation of the punishment, may in its discretion hear the same summarily at a specified time and upon such notice to the adverse party as it may] direct.”

It does not appear from the record that any suggestion or request was made under the statute.

Finally, counsel for the defendant contends that if this court finds that immunity was not granted, or the judgment and sentence vacated, that at least the judgment and sentence should in furtherance of justice be modified to imprisonment for life under the power granted by Procedure Criminal (section 6003, Pev. Laws) providing:

“The appellate court may reverse, affirm or modify the judgment appealed from, and may, if necessary or proper, order a new trial.”

And the Attorney General consents to such modification.

Upon a painstaking examination of the record, we are inclined to think that, without the power given under the statute to modify the judgment and sentence, we would be constrained to reverse the judgment and remand it for a new trial.

In the case of Fritz v. State, 8 Okla. Cr. 342, 128 Pac. 170, it is said:

“The power of this court to modify a judgment inflicting the death penalty for murder to imprisonment for life at hard labor, when deemed proper in the furtherance of justice is in no sense the power of commutation of the sentence of the lower court. Commutation can be granted only by the chief executive of the state, and is granted as a matter of clemency. The judicial power to modify a judgment and sentence and the executive power to pardon, parole, or commute are wholly distinct in their nature. The one is an award of justice, and the other is an act of grace. Commutation is a matter of discretion, and may be refused. Justice is imperative, and must not be denied. The fact that the Governor has the power to commute does not abridge the defendant’s right to appeal to this court for relief.”

Under the provisions of our Procedure Criminal, it is the duty of this court to review the record, and in a proper case, if necessary, in the furtherance of justice, modify the judgment.

For the reasons stated, we think that this is a proper case to exercise the power of the court, and that the judgment and sentence of death by electrocution should be modified to imprisonment for life at hard labor.

The judgment of the district court of Lincoln county is' therefore modified to the extent that the sentence will he changed from the infliction of the death penalty to that of imprisonment in the state penitentiary at hard labor for life, and as thus modified the judgment is affirmed.

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


author: PER CURIAM.

text:
    Ex parte SARAH E. SPOON.
    No. A-3863
    Opinion Filed Oct. 20, 1920.
    (192 Pac. 698.)
    Application by Sarah E. Spoon for reduction of bail.
    Denied,
    Blanton, Andrews & Osborn, for plaintiff in' error.
    Tbe Attorney General, W. 0. Hall, Asst. Atty. Gen., and Mac. Q. Williamson, Oo. Atty., for respondent.
   PER CURIAM.

In this proceeding Sarab E. Spoon by her attorneys has presented to this court a duly verified petition, wherein she alleged that she is unlawfully imprisoned and restrained of her liberty in the county jail at Pauls Valley, Garvin county, by the sheriff of said county in default of a bond in the sum of $4,000; that the amount of said bond so fixed is excessive and unreasonable; that she is practically without property of any kind, and is therefore unable to make the same; that her present .physical condition is such that if she is further deprived of her liberty such confinement will result in serious impairment of her health and endanger her life; and prays that said bond be reduced to the sum of $2,500. The record shows that the petitioner was charged with and held for the murder of one Bill Henry, alleged to have been committed on or about the 6th day of September, 1920; that upon a habeas corpus hearing the district judge properly held she was entitled to bail, and fixed her bond at $4,000. An information for murder was filed, and her trial thereto resulted in a mistrial.

This court will not grant redijetion of bail in cases of this kind unless it clearly appears that the amount fixed by the trial court is excessive, and the mere fact that a defendant cannot make bond in a certain sum does not make such sum excessive.

Regard must be had to the nature of the crime charged and the character of -the testimony bv which it is supported. The alleged condition of petitioner’s health is contested by the state. Upon a consideration of the proof in the case we are of opinion that this court would not be justified in granting a reduction of bail. The district court of Garvin county will be in session next month, and if the petitioner is not granted a trial at that time, and has not in the meantime made bail in the amount fixed, we are inclined to think that the trial court or the judge thereof should again consider the matter, and in the event of refusal this court will consider any supplemental application that may be presented.

On. the record before us the writ will be denied.


author: PER. CURIAM.

text:
    CLINTON C. BLASDEL v. STATE.
    No. A-3830
    Opinion Filed Nov. 6, 1920.
    (192 Pac. 1107.)
    Appeal from District Court, Garfield County; James B. Cullison, Judge.
    Clinton C. Blasdel was convicted of grand larceny, and lie appeals.
    Appeal dismissed,
    H. J. Sturgis, for plaintiff! in error.
    The Attorney General, W. C. Hall, Asst. Atty. Gen., and Ernest P. Smith., Co. Atty., of Enid, for the .State.
   PER. CURIAM.

Plaintiff in error, Clinton O. Blasdel, was charged jointly with Quinicy Kygar, V. W. Garrett, and J. V. Hollingshead with the theft of one Buick automobile, alleged to be the property of one C. E. Gannon. A severance was granted, and upon his trial plaintiff in error was convicted, and his punishment fixed at 15 years’ imprisonment in the penitentiary. Prom the judgment rendered in accordance with the verdict on February. 13, 1920, an appeal was perfected by filing in this court on August 10, 1920, a petition in error with case-made.

On October 26, 1920, counsel for the state filed a motion to dismiss the appeal, for the reason that plaintiff in error is a fugitive-from justice. In support of said motion is the affidavit of C. E. Dewing, sheriff of Garfield county, the material part of which motion is set forth in the opinion in the case of Blasdel v. State, 18 Okla. Cr. 80, 192 Pac. 1106, this day rendered, and for the reasons stated in said opinion the motion to dismiss the appeal herein is sustained.

The appeal is .'therefore dismissed. Mandate forthwith.


text:
    S. H. RHINE v. STATE.
    No. A-3542
    Opinion Filed Nov. 9, 1920.
    (193 Pac. 52.)
    Appeal from County Court, Tulsa County: W. B. Williams, Judge.
    S. H. Rhine was convicted of the unlawful possession of intoxicating liquors, and sentenced to pay a fine of $125, and to serve a term of 30 days’ imprisonment in the county jail, and he appeals.
    Appeal dismissed, and cause remanded with direction.
    W. L. Coffey, for plaintiff in error.
    S. P. Preeling,- Atty. „ Gen., and E. L. Pulton and W. C. Hall, Asst. Attys. Gen., for the State.
   PER CURIAM.

This is a purported appeal from a judgment of conviction rendered against defendant, S. H. Rhine, in the county court of Tulsa county on the 8th day of March, 1919, wherein defendant was sentenced to pay a fine of $125 and to be imprisoned in the county jail of Tulsa county for a period of 30 days for having in his possession certain intoxicating liquors with intent to sell the same.

The Attorney General has filed a motion to dismiss the appeal, which, among other grounds, includes the ground that the judgment was rendered on the 8th day of March, 1919, and the petition in error, with case-made attached, was not filed in this court until the 8th day of May, 1919, which was 61 days after the rendition of judgment, and that the record does not disclose that the trial court granted any additional time beyond the 60 days allowed by statute to perfect an appeal in misdemeanor cases and for such reason this court has acquired no jurisdiction of the appeal. The motion to dismiss the appeal was filed in this court on the 12th day of August, 1920, and no response has been made thereto by counsel representing defendant. An examination of the record discloses that the motion of the Attorney General to dismiss 'the appeal is well taken. The following cases are in point: Gunter v. State, 13 Okla. Cr. 83, 162 Pac. 231; Hampton v. State, 13 Okla. Cr. 85, 162 Pac. 237; Rhodes v. State, 13 Okla. Cr. 86, 162 Pac 230.

For the reason that the appeal was not/lodged in this court within the time allowed by the statute this court acquired no jurisdiction to entertain the appeal, and the same is dismissed, and: the cause remanded to the trial court, with directions to enforce its judgment.


text:
    T. P. BRUMLEY v. STATE.
    No. A-3543
    Opinion Filed Nov. 10, 1920.
    (193 Pac. 49.)
    Appeal from County Court, Atoka .County; J. M. Humphreys, Judge.
    T. P. Brumley was convicted -of the crime of manufacturing whisky, and he appeals.
    Reversed and remanded.
    J. H. Gernent, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and E. L. 'Fulton, Asst. Atty. Gen, for the State.
   PER CURIAM.

This is an appeal from a judgment of conviction rendered against defendant in ithe county court of Atoka county on the 15th day of February 1919, for manufacturing whisky, the defendant being sentenced to serve a term of six months’ imprisonment in the county jail and to pay a fine of $500. From this judgment he has appealed, and contends that the evidence is wholly insufficient in law to sustain the conviction.

With this contention the court is impelled to agree. Defendant was charged with the crime of manufacturing whisky, and an examination of ithe record discloses evidence tending to establish an attempt only to manufacture whisky. There is an entire absence of proof in the record that defendant, although it might reasonably be inferred from the evidence that he was engaged in the process of distilling whisky, ever made any of' the finished distilled product known as whisky, as charged in the information.

Under section 5923, Revised Laws 1910, defendant could be charged with the commission of an offense, and convicted only of an attempt to commit the offense In this case, however, the jury was not instructed that defendant could be convicted of an attempt to commit the offense, and the verdict finds defendant guilty of the crime of manufacturing whisky, and the judgment conforms to the verdict. Had the theory of defendant’s guilt of an attempt to commit the offense charged been submitted to the jury there would be reason for holding the evidence insufficient to sustain such a conviction. However; as this was not done, and as the evidence falls' shont of showing a completed crime, the judgment of conviction must be reversed because of insufficient evidence to sustain it.

It is ordered, therefore, that the judgment of conviction be, and the same is hereby, reversed, and the cause remanded to the trial court for further proceedings not inconsistent with this opinion.


text:
    ARTHUR COBBS v. STATE.
    No. A-3540
    Opinion Filed Nov. 10, 1920.
    (193 Pac. 51.)
    Appeal from Superior Court, Okmulgee County; R. E. Simpson, Judge.
    Arthur Cobbs was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.
    See also 17 Okla. Cr. 704, 186 Pac. 1099.
    R. C. Roland, for plaintiff in error.
    The Attorney General and W. O. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Arthur Cobbs, was convicted in the superior court of Okmulgee county, on a charge of unlawfully conveying intoxicating liquor, and in accordance with the verdict of the jury he was, on the 8th day of January, 1919, sentenced to be confined in the county jail for a period of 30 days andi to pay a fine of $50, and that he pay the costs. Prom the judgment he appeals. No brief has been! filed, and when the case was called on the assignment for final submission no appearance was made on behalf of the plaintiff in error.

It appears that the instructions fairly covered the law of the case, and we are unable to find any error in the record. It follows that the judgment must be and the same is hereby, affirmed. Mandate forthwith.


text:
    CLINTON CUNNINGHAM v. STATE.
    No. A-3556
    Opinion Filed Nov. 12, 1920.
    (192 Pac. 1104.)
    Appeal from -County Court, Wagoner County,; W. B. Moss, Judge.
    Clinton Cunningham was convicted of violating the prohibitory liquor law, and he appeals.
    Affirmed.
    C. E. Castle, for plaintiff in error.
    - S. P. Preeling, Atty. Gen., and W. C. Hall and E. L. Pulton, Asst. Attys. Gen., for the State.
   PER CURIAM.

The plaintiff in error was tried and convicted oñ a charge that he did unlawfully have possession of intoxicating liquor, to wit, 6 gallons of Choc, with the intention of selling the same. and his punishment fixed; at 30 days in*jail and a $50 fine. Prom the judgment rendered on the verdict he appeals.

The assignments of error question the sufficiency of the information to charge an offense and the sufficiency of the evidence to support the verdict. We think the information is sufficient.

The evidence for the state shows 'that the sheriff of Wagoner county raided the house of the defendant, and discovered a 16-gallon keg of Choc beer; that he tasted it; 'that it was fermented and very strong, and that it was intoxicating; that he had drunk Budweiser, Blue Ribbon, and other kinds of beer, and that this Ohoe beer was abouit three times as strong; that Choc was made of hops, meal, and sugar fermented. The testimony, of three or four other witnesses for the state was, in substance, the same. A witness for the defendant testified that he had drunk some of this Choc beer, and that the same was not intoxicating. The defendant did not. testify. In our opinion the evidence was sufficient to sustain the verdict.

Finding nothing in the record to indicate the defendant did not have a fair trial, the judgment herein is affirmed.


text:
    JOHN A. BOURBONNAIS v. STATE.
    No. A-3551
    Opinion Filed Nov. 12, 1920.
    (192 Pac. 1106.)
    Appeal from County Court, Pottawatomie County; Clarence Robi-son, Judge.
    John A. Bourbonnais was convicted of violating the prohibitory liquor law, and appeals.
    Affirmed.
    G-. A. Outeelt, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty.. Gen., for the State.
   PER CURIAM.

The plaintiff in error was tried and convicted on an information, charging that he did unlawfully convey intoxicating liquor, to wit, chock beer, and his punishment fixed at 30 days confinement in the county jail and a fine of $50. From the judgment rendered on the verdict on, the 29th day of March, 1919, an appeal was perfected by filing in this court on May 24, 1919, a petition in error with case-made. No brief has been filed. The Attorney General has moved to affirm for failure to prosecute Ithe appeal.

Finding nothing in the record to indicate that the defendant did not have a fata trial, the 'judgment is affirmed. Mandate forthwith.


text:
    WALTER BRASHEARS v. STATE.
    No. A-3577
    Opinion Filed Nov. 12, 1920.
    (192 Pac. 434.)
    Appeal from County Court, McIntosh County; Horace B. Reubelt, Judge. 1 i
    Walter Brash ears, convicted of a violation of the prohibitory liquor law, appeals.
    Affirmed.
    John W. Robertson,- for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted on an information charging the unlawful conveyance of intoxicating liquor and in accordance with the verdict of the jury was sentenced to be confined in the county jail for SO days and to pay a fine of $50. From the judgment an appeal was perfected by filing in this court on June 36th, 1919, a petition in error with case-made. No brief has; been filed, and no appearance made on behalf of plaintiff in error when the case was called for the final submission. The motion of the Attorney General to affirm the judgment for failure to prosecute the appeal is therefore affirmed.


author: PER CU'RIAM.

text:
    LEX LANE v. STATE.
    No. A-3578
    Opinion Filed Nov. 12, 1920.
    (192 Pac. 1104.)
    Appeal from County Court, Ottawa County; C. S. Wortman, Judge.
    Lex Lane was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.
    Mason, Church & Jones, for plaintiff in error.
    The Attorney General and W. 0. Hall, Asst. Atty. Gen., for the State.
   PER CU'RIAM.

Plaintiff in error, Lex Lane, was convicted on an information charging that he did have possession of 25 half pints of whisky with the unlawful intention of selling the same. An the 3d day of May, 1919, judgment was rendered, in accordance with the verdict of the jury, and he was sentenced to be confined in the county jail for 30 days and pay a fine of $50. From the judgment, he ap(-peals.

No brief has been filed, and, when the case was called for final submission, no appearance was made on behalf of plaintiff in error. Thereupon the Attorney General moved the court to affirm the judgment. A cursory examination of the record discloses there is no merit whatever in the various errors assigned.

The judgment of the lower court is affirmed. Mandate forthwith.


text:
    B. ROSE v. STATE.
    No. 3568
    Opinion Filed Nov. 12, 1920.
    (192 Pac. 1105.)
    Appeal from County Court, Atoka County; J. M. Humphreys, Judge.
    B. Rose was convicted of a violation of the prohibitory liquor law and he appeals.
    Affirmed.
    C. McCasland, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, B. Rose, was convicted on an information charging that he did have possession of intoxicating liquor witli the intention of selling the same, and was by the court sentenced to be confined in the county jail for 30 days and to pay a fine of $50. From the judgment an appeal was taken, by filing in .this court on June 12, 1919, a duly certified transcript of the record proper. No brief has been filed, and no appearance made on behalf of plaintiff in error, when the case was called for final submission.

The motion of they Attorney G-eneral to affirm the judgment for failure to prosecute the appeal is therefore affirmed.


text:
    JOHN HENDRIX v. STATE.
    No. A-3567
    Opinion Filed Nov. 12, 1920.
    (193 Pac. 48.)
    Appeal from Oounty Court, Atoka County; J. M. Humphreys, Judge.
    John Hendrix was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.
    0. McCasland, for plnint'ff in error.
    The Attorney General and TV. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted on an information charging that he did unlawfully furnish to one Wilburn Thompson one pint of intoxicating liquor, and in accordance with the verdict of the jury was sentenced to be confined in the county jail for 30 days and pay a fine of $50. From the judgment an appeal was taken by filing a duly certified transcript of the record proper in this court on June 12. 1919. No brief has been filed, and no appearance made on behalf of the plaintiff in error, when the ease was called for final submission. The motion of the Attorney General to affirm the judgment for failure to prosecute the appeal is therefore affirmed.


text:
    W. A. PICKARD et al. v. STATE.
    No A-3729
    Opinion Filed Nov. 16, 1920.
    (192 Pac. 432.)
    Appeal from District Court, Cherokee County; E. B. Arnold, Judge.
    W. A. Pickard and Sarah Pickard, convicted of manslaughter in the first degree, appeal.
    Appeal dismissed.
    J. I. Coursey, W. E. Foreman, and W. H. Kisner, for plaintiffs in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiffs in error were tried and convicted of manslaughter in the first degree and their punishment assessed at 10 years’ imprisonment in the penitentiary, upon an information charging that in Cherokee county, on or about the 11th day of February. 1919, W. A Pickard and Sarah Pickard did kill and murder one Virgil Hutchens with deadly weapons, to wit, a certain pistol and certain knives and certain large rocks, and on the 23rd day of September, 1919, the court rendered judgment and sentence' in accordance with the verdict, from which judgment the defendant appealed by filing in this court on March 19, 1920, a petition in error with case-made.

On September 22, 1920, their counsel of record filed a motion asking that their appeal herein be dismissed, which motion was duly served on the county attorney of Cherokee countyjand the Attorney General.

Plaintiffs in errors’ motion to dismiss the appeal is sustained. It is ordered and adjudged that the appeal be dismissed and the cause remanded to the lower court.


text:
    WALTER CAMPBELL v. STATE.
    No. A-3607
    Opinion Filed Nov. 20, 1920.
    (192 Pac. 432.)
    Appeal from Superior Court, Creek County; Gaylord R. Wilcox, Judge.
    Walter Campbell was convicted of violating the prohibitory laws, and he appeals.
    Affirmed.
    P. W. Jacobs and Oscar Cooper, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error waá tried and convicted in the superior court of Creek county upon an indictment returned at the January, 1919, .term of the district court and duly transferred to ithe superior court of said county, which charged that the defendant, Walter Campbell, did have in his possession 21 half pints of whisky and one pint of gin with the unlawful intent to sell the same, and his punishment was fixed at six months’ imprisonment in the county jail and a fine of $600. Prom the judgment rendered in accordance with the verdict on the 14th day of June, 1919, he appeals. No brief? has been filed. When the case was called for final submission, the Attorney General moved to affirm the judgment for failure to prosecute the appeal. The motion to affirm is sustained, and the judgment herein is affirmed. Mandate forthwith.


text:
    WALTER M. MERIWEATHER v. STATE.
    No. A-3616
    Opinion Filed Nov. 20, 1920.
    (192 Pac. 433.)
    Appeal from District Court. Oklahoma Counts’-; Edward Dewes Oldfield, Judge.
    Walter M. Meriweather, convicted of shooting another with intent to do bodily harm, appeals.
    Affirmed.
    J. Q. A. Harrod, fori plaintiff in error.
    The Attorney General and W. O. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

This appeal is from a judgment rendered on a verdict of a. jury finding the defendant guilty of shooting another with intent to do bodily harm, and fixing' his punishment at imprisonment in the county jail for a period of four months. The information in substance charges that in Oklahoma county, on the 6th day of September. 1918. defendant. Walter M. Meriweather, did' shoot one Arthur Wallace -with' a shotgun with intent to do great bodily harm. The evidence shows that the defendant shot a boy named Arthur Wn"iut-as alleged. The defense made was that the shooting was accidental. Counsel for plaintiff in error states in his brief that he has been unable to find error in the record sufficient to warrant a reversal of the cause. We have examined the record carefully and fail to find any error. The judgment appealed from herein is, therefore, affirmed.


text:
    JIM BALDWIN v. STATE.
    No. A-3599
    Opinion Filed Nov. 20, 1920.
    Rehearing Denied Nov. 22, 1920.
    (193 Pac. 431.)
    Appeal from District Court, McOurtain County; C. E. Dudley, Judge.
    Jim Baldwin was convicted of the crime of conjoint robbery, and sentenced to serve a term of 20 years’ imprisonment in the state penitentiary, and he appeals.
    Affirmed.
    J. D. McLendon, J. Paul Stewart, and Warren & Warren, for plaintiff in error.
    S. P. Freeling. Atty'. Gen., and W. O. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from the district court of Mc-Curtain county, wherein, on the 8th day of February, 1919, defendant. Jim Baldwin, was convicted of the crime of coirR'int robber-'', and sentenced to serve a, term of 20 years’ imprisonment in the state penitentiary.

The cause has been pending on appeal in this court since the 4th day of August, 1919. No brief has been filed in behalf of defendant, nor was any appearance made to orally argue the cause at the time same was submitted.

Rule 9 of this court provides (12 Okla. Cr. viii, 165 Pac. x) :

“When no counsel appears, and no briefs are filed the nr,-n-t will examine the pleadings, the instructions of the court and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment.’’

After a careful examination of the record, this court finds no error sufficiently prejudicial to authorize a reversal of this judgment, and the same is, in accordance with rule 9, supra, affirmed.


author: PER OURIAM.

text:
    JOE DUCA et ux. v. STATE.
    No. A-3217
    Opinion Filed June 22, 1920.
    Rehearing Denied November 22, 1920.
    (192 Pac. 1105.)
    Appeal from County Court, Pittsburg County; S. F. Brown, Judge. Joe Duca and Mrs. > Joe Duca were convicted of violating the prohibition law, and-they appeal.
    Affirmed as to Mrs. Joe Duca, and reversed as to Joe Duca.
    W. N. Redwine, for plaintiff in error.
    S. P. Preeling, Atty. Gen., and W. G. Hall, Asst. Atty. Gen., for ^be State.
   PER OURIAM.

Joe Duca and Mrs. Joe Duca were jointly indicted by tbe grand jury for selling whisky to one Erank White. The cause was duly transferred from the district court to the county court. Upon their trial they were convicted, and in accordance with the verdict were each sentenced to he confined for!30 days in the county jail and pay a fine of $50. Prom the judgments they appeal.-

The principal contention is that the evidence does not support the verdict. Prank White, the only witness for the state, testified that at the time alleged he was chief of police of Hartshorne, where the defendants lived, and at that time bought a pint of whisky from Mrs. Joe Duca and paid her $1.50 for it, and that the mayor of Hartshorne was present at the time. Pie was then, asked. “Was Joe Duca there?” and answered: “I don’t think he was. If he was I did not see him in the house.” The state rested, and the- defendant Joe Duca' moved the court to direct a verdict of acquittal, “for the reason there is not sufficient evidence to convict said Joe Duca.” As witness in their own behalf, the defendants each testified that they did not sell any whisky to Prank White.

Obviously, the evidence is insufficient to sustain the conviction of Joe Duca. While the testimony of the complaining witness that be bought! the whisky of Mrs. Joe Duca is contradicted by the testimony of both of the defendants, yet the jury werei the judges of the credibility of the witnesses, and they have seen fit to believe the complaining witness, -and'wei find no sufficient reason, to disturb their finding as to the defendant Mrs. Joe Duca.

Por the reason -stated, the judgment is reversed as-to Joe Duca and is affirmed as to Mrs. Joe Duca.


text:
    Ex parte P. M. WYNN.
    No. A-3891
    Opinion Filed Dec. 7, 1920.
    (193 Pac. 635.)
    Application of P. M. Wynn for writ of habeas corpus to be let to bail.
    Leave granted to- withdraw petition.
    J. W. Barry, for petitioner.
   PER OURIAM.

This is an application for writ of habeas corpus to be admitted to bail, filed December 7, 1920. Leave granted to withdraw petition on the date the same was filed.


text:
    Ex parte HUGH COCKRUM.
    No. A-3897
    Opinion Filed Dec. 21, 1920.
    (193 Pac. 635.)
    Petition of Hugh Coekrum for a writ of habeas corpus to be let to bail.
    Petition granted.
    O. A. Welch, S. E. Welch, and W. D. Welch, for petitioner.
    The Attorney General, W. O. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

The petitioner, Hugh Coekrum, filed in this court on December 16tb, 1920. a petition wherein be avers -tba-t be is illegally restrained of bis liberty by H. B. Westerbrook, sheriff of Pushma-taha county, and that his unlawful imprisonment consists in this: that by indictment duly returned by a grant jury of said county petitioner and John Witt were jointly charged with the murder of V. M. Smith; that a bench warrant duly issued and he was committed on said warrant; that an application for bail was denied by the district judge of said county.-

Attached to said petition are numerous affidavits in support thereof and the controverting affidavits of six witnesses for the state have been filed.

It is further averred that the proof of his guilt is not evident) nor the presumption -thereof great, and that for this reason he is entitled to be admitted to bail.

By agreement of parties the cause was submitted upon the affidavits.

Upon a consideration of the testimony submitted it'is the conclusion of the count that bail should be allowed. It is therefore ordered that the petitioner, Hugh Oockrum, be admitted to-bail in the sum of twenty thousand dollars, bond to be conditioned as b;y, 1-aw required, and to be approved by the count clerk of Pushmataha county.


text:
    R. E. GOFF v. STATE.
    No. A-3456
    Opinion Filed April 10, 1920.
    Rehearing Denied Jan. 15, 1921.
    (194 Pac. 250.)
    Appeal from Superior Court, Creek County; .Gaylord R. Wilcox, Judge.
    R. E. Goff was convicted of selling whisky, -and he appeals.
    Affirmed.
    R. B. Thompson and R. Shaba, for plaintiff in error.
    W. O. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, R. E. Goff, was convicted in the superior court of Greek county on a charge of selling whisky to one E. W. Taylor, and was! sentenced to be confined for 39 days in the county jail and pay a fine of $350 and the costs. From the judgment he appealed by filing in this court on September 5. 1918, a petition in error with case-made. No brief -has been filed. When the ease was called for final submission, no appearance was made on behalf of the plaintiff in error. An examination of the entire record fails to disclose anything whereof the plaintiff in error had just right of complaint.

The judgment is therefore affirmed. Mandate forthwith.