text:
    WILLIAM DALTON v. STATE.
    No. A-916.
    Opinion Filed November 22, 1911.
    (118 Pac. 1001.)
    1. APPEAL AND ERROR — Sufficiency of Record — Presumptions. Where it is not shown by the record that the court appointed a time for pronouncing judgment, or that for this reason objection was made by defendant before judgment was rendered, it will be presumed that the judgment was pronounced at a time appointed by the court in conformity with the requirements of the statutes.
    2. TRIAL — Verdict of Guilty — Pronouncing Judgment. Sections 6901 and 6902 (Snyder’s Stat.), Procedure Criminal, prescribing that after a verdict of guilty is returned the court must appoint a time for pronouncing judgment at least two days after the verdict, if the court remains in session so long, are intended to guard the rights of defendant from a hasty judgment, and _ to give the defendant sufficient time to prepare and file a motion for a new trial, or in arrest of judgment.
    (Syllabus by the Court.)

      Appeal from Superior Court, Logan County; J. M. Sandlin, Judge.

    William Dalton was convicted of violation of the prohibitory law, and appeals.
    Affirmed.

      John A. Remy, for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error was convicted in the superior court of Logan county of the crime of having possession of intoxicating liquors, with the intention of violating the provisions of the prohibition law by selling the said liquors.

The jury impaneled to try the case, on May 16, 1910, returned a verdict, finding the defendant guilty. On May 17th, the defendant filed a motion for a new trial. On June 4th, the court overruled the motion for a new trial, rendered judgment, and sentenced the defendant to serve a term of six months in the county jail, and to pay a fine of $500. To reverse this judgment, an appeal was perfected.

It is contended by counsel for plaintiff in error that "the judgment rendered and sentence so imposed were contrary to law, in that the court did not appoint a time for pronouncing judgment, as required by sections 6901 and 6902 of the Code of Criminal Procedure, which provide:

Sec. 6901, Snyder’s Stat.:

“After a plea or verdict of guilty, or after a verdict against the defendant on a plea of a former conviction or acquittal, if the judgment is not arrested or a new trial granted, the court must appoint a time for pronouncing judgment.”

Sec. 6902:

“The time appointed must be at least two days after the verdict, if the court intend to remain in session so long; or, if not, at as remote a time as can reasonably be allowed.”

The record before us does not show that after the verdict against the defendant was returned the court appointed a time for pronouncing judgment; neither does it appear that, on the part of the defendant, objection for this or any other reason was made to pronouncing judgment and sentence. It appears, however, that the judgment was not rendered until 19 days after the verdict was returned, and the presumption must be that the court appointed this time for pronouncing the judgment. It would seem that the evident purpose of the foregoing provisions is to guard the rights of a convicted defendant from a hasty judgment 'against him, and to give such defendant sufficient time to prepare his motion for a new trial, or in arrest of judgment. Neither of these reasons are available to show prejudice in the case at bar.

We think the court was amply justified in assessing the maximum punishment in this case, and in so doing its action.meets with our approval.

The appeal being wholly without merit,, the judgment of the superior court of Logan county is hereby • affirmed, and the cause remanded forthwith, with direction to enforce the judgment herein.

FURMAN, P. J., and ARMSTRONG, J., concur.


source: Caselaw Access Project

author: FURMAN, P. J.

license: Public Domain

text:
    BOB WALKER v. STATE.
    No. A--854.
    Opinion Filed November 23, 1911.
    (118 Pac. 1005.)
    1. APPEAL AND ERROR — Record—Arguments of Attorneys — Review. The argument of attorneys to the jury is a part of the trial of a cause, and improper statements, made by an attorney in such argument in open court, and in the presence of the trial judge, to be reviewed by an appellate court, must be shown by proper recitals in the case-made or bill of exceptions, approved and certified to by the trial judge, and cannot be shown by affidavits.
    2. TRIAL — Transcribing Proceedings — Prejudicial Error. If the attorney' for a defendant requests the trial court to direct the court stenographer to take down and transcribe any statement of attorneys, or other proceedings occurring in the presence of the court which constitute a part of the trial, for the purpose of incorporating such statement in the ease-made, and the court refuses to comply with this request, -this may be shown by affidavits or other competent evidence; and such refusal, when so shown, will be held to be prejudicial error, without regard to the merits of the question, because it involves the right of a defendant to prepare and present a fair statement of what occurred in the trial court for review upon appeal.
    3. APPEAL AND ERROR — Petition in Error. A petition in error is the means by which questions are brought up and presented from the trial, court to the appellate court; and the appellate court is not required to consider errors occurring during a trial, unless such errors are incorporated in the petition in error.
    (Syllabus by the Court.)

      Appeal from District Court, Cleveland County; R. McMillan, Judge.

    Bob Walker was convicted of larceny, and appeals.
    Affirmed.

      A. Hut chin and William Woods, for appellant.

      Smith C. Matson, Asst. Atty Gen., for the State.
   FURMAN, P. J.

The most serious question involved in this appeal is presented in defendant’s motion for a new trial, as follows :

“Because of the misconduct of the prosecuting counsel, Ben Williams, over the objection of the defendant, in his closing remarks to the jury, in which he used in substance the following language: T want to know why they did not come up like honest, men, and all be tried together [referring to the defendant, Bob Walker, and the codefendants, G. L. Jones and Buck Jones, who were not on trial], instead of asking for a severance and being tried separately,’ which remarks and conduct were at the time excepted to by the defendant as being improper, prejudicial, and calculated to improperly influence the minds of the jurors in arriving at a verdict.”

We find upon an examination of the record that it does not contain any recital, approved by' the trial judge, sustaining this statement in defendant’s motion for a new trial. When the motion for a new trial was presented to the trial court, the attorney for appellant took the stand, and testified as a witness that the language incorporated in the motion for a new trial was actually used by the prosecuting attorney; but the county attorney and Mr. Williams, who assisted in the prosecution, both testified that they did not remember that any such language was used. This is all that appears in the record upon the subject.

In the case of Saunders v. State, 4 Okla. Cr. 264, 111 Pac. 965, this court held that the argument of attorneys to the jury is a part of a trial, and that improper statements, made by an attorney in the argument of a case, in open court, in the presence of the trial judge, to be reviewed by an appellate court, must be shown by proper recitals in the case-made or bill of exceptions, and cannot be shown by affidavits.

On the same question, in the case of Cochran v. State, 4 Okla. Cr. 387, 111 Pac. 977, this court said:

“If it is permissible to incorporate such questions in the case-made by affidavits, where would the matter end? If one part of the case-made, as to matters occurring in open court during the progress of the trial, can be incorporated in the record by affidavits, why could not all such matters also be so incorporated in the record? What, then, would become of the statutory provision that the case-made must be certified to by the trial judge? As to the proper manner of incorporating in the record questions which arise during a trial in open court, in the case of Turner v. State, 4 Lea, 209, the Supreme Court of Tennessee said: ‘This being a matter occurring in open court, the proper mode to put it in the record would have been to request the judge to insert it over his own signature in the bill of exceptions.’ ”

See, also, Beatty v. State, 5 Okla. Cr. 106, 113 Pac. 237; Johnson v. State, 5 Okla. Cr. 15, 113 Pac. 552.

Counsel for defendant have ample protection against injustice in the argument of counsel for the state, and as to any matter that may occur in open court, in section 1 of article 7, Session Laws of 1905, p. 326, which is as follows:

■ “It shall be the duty of the court reporter to take down in shorthand, and to correctly transcribe, when required, all the proceedings upon the trial of any cause, as well as all statements of counsel, the witnesses or the court, made during the trial of any cause or with reference to any cause pending for trial, when required by a party or attorney interested therein, and all other matters that might properly be a part of a case-made for appeal or proceeding in error. An attorney in any case pending shall have the right to request of the court or stenographer that all such statements or proceedings occurring in the presence of the stenographer, or when his presence is required by such attorney, shall be taken and transcribed. A refusal of the court to permit, or, when requested, to require any statement to be taken down by the stenographer, or transcribed after being taken down, upon the same being shown by affidavit or other direct and competent evidence, to the Supreme Court, shall be deemed prejudicial error, without regard to the merits thereof.”

This statute provides the only instance in which affidavits or other evidence may be incorporated in a case-made as to what occurred in open court, and in the presence and hearing of’ the trial judge, and these affidavits, or other evidence, can only be introduced for the purpose of showing that the trial court refused to permit, or, when requested, refused to require any statement taken down by the stenographer, or transcribed after having been taken down and incorporated in the record. This showing may be made by affidavits, and when it is made the statute is mandatory, and requires a reversal of the judgment of the trial court, without regard to the merits of the cause. This is not only the statute law, but it is right in principle, because it safeguards and protects the fairness and integrity of proceedings in all trial courts; and when this right is denied to a defendant, the cause must be reversed. If counsel do not see fit to avail themselves of this statutory provision, and'if they differ with the trial court as to what actually did occur, such difference cannot be settled by affidavits or oral testimony.

But even if affidavits and oral testimony were admissible, for the purpose of showing that improper arguments were made by the attorney for the state in his closing argument, we could not consider the question here presented, because it is not incorporated in the petition in error, and therefore is* not properly presented for our determination.

We find no material error in the proceedings of the trial court. The judgment is therefore affirmed.

ARMSTRONG and DOYLE, JJ., concur.


author: DOYLE, J.

text:
    LON WILLIAMS et al. v. STATE.
    No. A-683.
    Opinion Filed November 23, 1911.
    (118 Pac. 1006.)
    1. INDICTMENT AND INFORMATION — Requisites of Information- — -Necessity of Preliminary Examination or Waiver. Section 17, Bill of Rights, prescribes: “No person shall be prosecuted for a felony by information without having had a preliminary ■ examination before an examining magistrate, or having waived such preliminary examination.” Held, that under the constituí tional provision the precedent fact that a preliminary examination has been had or waived constitutes a jurisdictional basis for a prosecution on information in the district court. It is the fact that there was a preliminary examination, or a waiver .thereof, and a judicial determination thereon by the examining magistrate that a felony has been committed, and that there is probable cause to believe that defendant is guilty thereof, that, confers jurisdiction on the district court and authorizes the county attorney to file an information in said court charging the crime committed according to the facts in evidence on such examination; or for the offense charged in the preliminary information when such examination has been waived by the defendant.
    2. INDICTMENT AND INFORMATION — Requisites of Information —Indorsements. When a defendant is held and committed for trial upon a preliminary examination, section 6629, Code of Criminal Procedure, prescribes that: "The magistrate must in like manner indorse on the information an order signed by him,” to that effect. In this ease a preliminary examination was had, and the defendant held and committed for trial to the district court. This order was entered on the magistrate’s docket, but was not indorsed on the information. Held that, even though the examining magistrate failed to indorse his finding and order on the preliminary information, the district court had jurisdiction to order that a proper indorsement be made.
    8. INDICTMENT AND INFORMATION — Requisites of Information —Allegation as to Preliminary Examination. The fact that there has been a preliminary examination or a waiver thereof need not be stated or averred in the information, or shown affirmatively by the prosecution. That the defendant did not have a preliminary examination is a fact to be established on a plea in abatement or on a motion to quash; otherwise all essential preliminary proceedings will be presumed.
    (Syllabus by the Court.)

      Appeal from District Court, Caddo County; Frank M. Bailey, Judge.

    Lon Williams and another were convicted of grand larceny, and sentenced to imprisonment in the penitentiary for five years, and appeal.
    Affirmed.
    C. H. Carswell, for plaintiffs in error.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiffs in error were convicted in the district court of Caddo county upon an information filed in said court on September 24, 1909, wherein it' was charged that in the county of Caddo on June 20, 1909:

“Lon Williams and William West then and there being did then and there, commit the crime of grand larceny by then and there'unlawfully, wilfully and-feloniously by fraud and stealth take, steal and carry away the following personal property, to wit, one sorrel mare of the value of $75.00; one dun colored mare of the value of $85.00; one set of harness of the value of $12.00 ; one buggy of the value of $60.00; one physician’s emergency bag of the value of $5.00; one case of physician’s instruments of the value of $3.75; one Kelly pad of the value of $6.00; one soap case of the value $ .50- — all of the "value of $241.25 and the property of one M. M. Roland, with the unlawful and felonious intent then and there,” etc.

Upon their arraignment the defendants filed a plea in abatement, wherein it is in substance averred that on their preliminary examination had and held before B. F. Holding, judge of the county court on the preliminary information, said judge as such examining magistrate' failed to make a finding that the offense charged therein or any other offense triable on indictment had been committed, or that there was sufficient cause to believe that said defendants were guilty of any such offense, and that the examining magistrate failed to indorse his order of commitment on the preliminary information as required by section 6629, Snyder’s Stat.

Upon a hearing had on said plea in abatement before the Honorable R. McMillan, then presiding judge, the preliminary information was introduced in evidence. Thereon was the following indorsement:

“It appearing to me that the offense in the within named information has been committed, and that there is sufficient cause to believe the defendants Lon Williams and William West guilty thereof, I order that they be held to answer the same, and that they are admitted to bail in the sum of one thousand dollars each. B. F. Holding, Judge.”

It appeared from the uncontradicted testimony of the examining magistrate, the county attorney, the clerk of the district court, and the entries on the docket of the examining magistrate, that on June 22, 1909, the preliminary information was filed and warrant issued thereon, and the defendants arrested and brought before the county court. Their preliminary examination was set for June 30th. At which time an examination was had and held and judgment entered, and the order made that said defendants be held to await trial at the next term of the district court. The indorsement upon the preliminary information was not made at that time; but about three months thereafter it was then made upon an order Of the district court to withdraw the transcript and preliminary information for the purpose of making indorsement.

After hearing the evidence, the court overruled said plea. “That the court erred in overruling defendants’ plea in abatement/’ is the only assignment of error presented by this appeal, and it is contended that on the facts in evidence in support of said plea the county attorney was without authority to file the information and the district court did not acquire jurisdiction. In this state a person charged by information with a felony has a constitutional right to a preliminary examination therefor.

Section 17 of the Bill Rights declares:

“No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination.”

Section 6629, Code of Criminal Procedure, provides:

“If, however, it appear from the examination that any public offense triable on indictment has been committed, and that there is sufficient cause to believe the defendant- guilty thereof, the magistrate must in like manner indorse on the information an order signed by him to the following effect: It appearing to me that the offense in the within information mentioned (or any other offense, according to the fact, stating generally the nature thereof), has been committed, and that there is sufficient cause to believe that the within named A.' B. guilty thereof, I order that he be held to answer the same.”

Our Code of Criminal Procedure was adopted from Oklahoma Territory, and prior to statehood all felonies were prosecuted on indictment. This fact explains the word “indictment” as used in said section. There can be no question but that the defendants’ constitutional right to a preliminary examination before an examining magistrate was fully accorded in this case. The preliminary information was in substance the same as the information filed by the county attorney in the district court.

Under the constitutional provision the precedent fact that a preliminary examination has been had or waived constitutes the jurisdictional basis for a prosecution for a felony by information in the district court, and, even though the examining magistrate failed to indorse his finding and order on the preliminary information, the district court had jurisdiction to order that a proper indorsement as prescribed by the statute be made. The finding and order of the magistrate made upon the preliminary examination and entered on his docket was sufficient to confer jurisdiction on tire district court.

It is the fact that there was a preliminary examination or a waiver thereof and a judicial determination thereon by the examining magistrate that a felony has been committed and that there is probable cause to believe the defendant guilty thereof, that authorizes the county attorney to file an information in the district court charging the crime committed according to the facts in evidence on such examination or for the offense charged in the preliminary information when such examination has been waived by the defendant, and such an adjudication is necessary to confer jurisdiction upon the district court. The information alone cannot confer jurisdiction, because, as prescribed by the constitutional provision, it cannot lawfully be filed until after there has been a preliminary examination or a waiver thereof. The determination of the examining magistrate would seem to be no less important and jurisdictional than is the finding of the grand jury upon an indictment.

Since statehood, by virtue of this constitutional provision, which has been held to be self-executing in Re McNaught, 1 Okla. Cr. 528, 99 Pac. 241, informations in criminal prosecutions have to a large extent superseded indictments.

The fact that there has been a preliminary examination or a waiver thereof need not be stated or averred in the information, or shown affirmatively by the prosecution. Canard v. State, 2 Okla. Cr. 505, 103 Pac. 737, 139, Am. St. Rep. 949; Wood v. State, 3 Okla. Cr. 553, 107 Pac. 937; Caples v. State, 3 Okla. Cr. 72, 104 Pac. 493, 26 L. R. A. (N. S.) 1033.

That the defendant did not have a preliminary examination is a fact to be established by the defendant on a plea in abatement or on a motion to quash; otherwise all essential preliminary proceedings will be presumed.

The provisions of our Criminal Code prescribing the procedure on a preliminary examination are practically the same as the California Code.

In the case of People v. Wallace, 94 Cal. 497, 29 Pac. 950, it was held that:

“When, as a result of an examination, such an order has in fact been made and entered upon the docket of the justice, it would seem that no further action upon his paid .is necessary in order to authorize the district attorney to file an information against a defendant for the offense named in the order.”

In the case of People v. Tarbox, 115 Cal. 57, 46 Pac. 896, the court used the following language:

“Good practice requires that the return of the examining magistrate should be made and filed before the information is filed; but we are not prepared to say that the filing of the information after the examination was had, and the order holding the defendant to answer was in fact made, was more than an irregularity, which would not justify a reversal of the judgment where it does not appear that it affected any substantial right of the defendant.”

See, also, People v. Wilson, 28 Pac. 1061; Ex parte Fowler, 5 Cal. App. 549, 90 Pac. 958.

Section 6629, supra, is similar to that of the North Dakota Code. In the case of State v. Rozum, 8 N. D. 548, 80 N. W. 477, it was held:

“Where the committing magistrate did not indorse his order of commitment on the complaint, but entered it upon the docket which the law requires the magistrate to keep, and "a copy of which must be returned to the district court, held sufficient, as it is the making of the order that gives the district court jurisdiction, and not the place of its entry.”

In the case of People v. Wright, 89 Mich. 70, 50 N. W. 792, the court used the following language:

“Prom the return made by the magistrate upon the order of the court in this case it appeared that the respondent, when brought before the magistrate prior to the time the information was filed, had waived his examination; but the justice had failed and neglected to so certify in his return of the proceedings had by and before him to the circuit court. By his return, made under the order of the court, the fact was made to appear that the respondent did waive such examination, and the justice then certified that he had found in the proceedings before him that ‘the offense charged in the complaint and warrant has been committed, and there is just cause to suspect the said Charles T. Wright to have been guilty thereof.’ These proceedings had all been had before the justice, and these questions adjudicated, prior to the time of the filing of the information; but the fact of the waiver of the examination had not yet been certified to the circuit court at that time, though all the other proceedings in the case had been so certified and filed in the circuit court. Under these circumstances, the circuit court was not in error, when the further return was exhibited to it that such an adjudication had actually been had by the magistrate prior to the time the information had been tendered, in holding the information good, and refusing to quash it upon the grounds stated by respondent’s counsel.”

The foregoing authorities fully confirm our conclusion that the failure of an examining magistrate to indorse his findings and order in the first instance on the preliminary information is not jurisdictional, and that, where the proper order has been made and entered and is shown on the transcript transmitted to the district court, that in itself is sufficient to show jurisdiction.

For the reasons stated, we are clearly of opinion that the lower court properly overruled the plea in abatement.

The judgment of the district court of Caddo county is therefore affirmed.

FURMAN, P. J., and.ARMSTRONG, J., concur.


text:
    A. SMITH v. STATE.
    No. A-761.
    Opinion Filed November 24, 1911.
    (118 Pac. 1003.)
    1. DISORDERLY HOUSE — Prosecution—Evidence, (a) In prosecutions for keeping a house of ill fame, it is competent to introduce evidence of the general reputation of the house in the neighborhood in which it is situated, as to its being a place where lewd and lascivious persons of both sexes congregate for the purpose of unlawful cohabitation or sexual intercourse.
    (b) Evidence of the general bad character and reputation and of lewd conduct of the inmates and frequenters of a house is competent, for the purpose of showing that such house is a house of ill fame.
    2. TRIAL — Misconduct of Prosecuting Attorney — Argument. (a) Although the county attorney may have indulged in improper remarks in his closing address to the jury, yet, if such remarks, when objected to, are withdrawn from the consideration of the jury by the trial court, and there is no reason to believe in the light of the evidence that the defendant suffered injury thereby, such remarks will not be ground for a new trial.
    (b) Where the guilt of the appellant is clearly established, and there is no reason to believe that upon a second trial an intelligent and honest jury could or would reasonably arrive at any other' verdict than that of guilt, a new trial will not be granted, except for fundamental errors.
    (Syllabus by the Court.)

      Appeal from Noble County Court; H. B. St. Clair, Judge.

      A. Smith was convicted of keeping a disorderly house, and appeals.
    Affirmed.
    Appellant was prosecuted by information for keeping a house for persons to visit for unlawful sexual intercourse. Upon the trial of this case, the following evidence was admitted:
    A. C. Ñicewander testified that he was the sheriff of Noble county, Okla., and was acquainted with appellant and knew that, on or-about the 21st day of November, 1909, appellant was engaged in the business of running a rooming house and restaurant in the city of Perry, Noble county, Okla.; that on said date he found several women and a couple of men in the rooming house kept by appellant; that this was'between 9 and 10 o’clock at night; that he arrested the women and placed them in jail; that, upon being released the next day, they left town; that on the same night witness arrested four other women on the street near appellant’s place of business; that witness had frequently seen women hanging around appellant’s place of business at night; that the women arrested by witness, and women seen at other times at appellant’s place of business, had a bad reputation for virtue, and were what is known as streetwalkers; that witness had seen such women hanging around appellant’s place of business at all times of the night; that witness had frequently had occasion to enter the rooming house kept by appellant, and had seen men and women there frequently who had bad reputations.
    J. R. Dale testified that he was deputy sheriff of Noble county, Okla.;.that he knew appellant; that in November, 1909, appellant was engaged in the business of running a restaurant and rooming house in the city of Perry, Noble county, Okla.; that between 9 and 10 o’clock, on the night of November 21, 1909, witness was with the sheriff of Noble county when two or three women were arrested in the rooming house kept by appellant; that two men were with one of the women; that the women arrested had the reputation of being prostitutes; that prior to this time witness had seen women hanging around appellant’s place of business who had the reputation of being prostitutes.
    Henry B. Harrison testified that he lived in Perry, and was acquainted with appellant, and was acquainted with his place of business; that, on or about the 21st day of November, 1909, he saw women hanging around appellant’s place of business who. had the reputation of being prostitutes; that on several occasions witness was accosted by such women, and requested to come and spend some money with them.
    L. T. Shockey testified that he lived in Perry; that he was acquainted with appellant; that he knew his place of business during November, 1909; that during this time he knew that women hung around appellant’s place of business who were known as streetwalkers in town.

      A. F. Wilcoxen testified that he lived in Perry, and that he was acquainted with appellant, and knew his place of business during November, 1909; that he knew the reputation of women who had been arrested at appellant’s place of business, and their reputation was that of being streetwalkers, or prostitutes.
    Appellant testified in his own behalf that he kept a restaurant and rooming house in the town of Perry; that his place of business was kept for the public generally; that his patrons consisted of whites, negroes, and everybody else; that he was sick and in bed the night that the sheriff raided his house and arrested him, and made him get up out of bed; that the sheriff also arrested some women that night; that he told the sheriff the women arrested were married women; that he did not know of any unlawful sexual intercourse that had taken place in his house; that there were three men there that night, but the women arrested were not the wives of these three men; that appellant did not know of anything wrong going on in his house; that he kept it as nice as he could; that he did not know of any women going out of the rooming house, and accosting men to spend money with such women.
    Appellant was found guilty by the jury, and his punishment was assessed by the trial court at a fine of $100.

      H. A. Johnson, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   FURMAN, P. J.

(after stating the facts as above). First. In prosecutions for keeping a house of ill fame, it is competent to introduce evidence of the general reputation of the house in the neighborhood in which it is situated, as to its being a place where lewd and lascivious persons of both sexes congregate .for the purpose of unlawful cohabitation or sexual intercourse, and also to prove the general reputation of either the men or the women, for virtue, who congregate at such house. See Carroll v. State. 4 Okla. Cr. 242, 111 Pac. 1021.

“Evidence of the general bad character, reputation, and conduct of the inmates and frequenters of a house is competent lo show the character of the house.” (Ency. of Evi. vol. 4, p. 727.)

See, also, 14 Cyc. p. 505, and authorities there cited. The court therefore did not err in overruling the objections of counsel for appellant to the testimony offered in this case.

Second. The record discloses the fact that the following occurred during the closing argument of the county attorney. The county attorney addressed the jury as follows:

“Gentlemen of the jury, the defendant’s place of business is the worst house, of prostitution in town, and a man was murdered in that vicinity once, and I ask you to find the defendant guilty, or else another murder will be committed there, and cost the county thousands of dollars, and by finding the defendant guilty is the surest way to prevent it. (To the foregoing statement of the county attorney the defendant by his counsel excepts, and moves the court to direct the jury not to consider the statements of the county attorney, for the reason that the same are prejudicial to the rights of the defendant, and wholly unsupported by the evidence.) The Court: Yes, gentlemen of the jury, you are instructed to disregard such statements of the county attorney; the same being improper.”

It was error for the county attorney to state to the jury that a murder had been committed at the place of business kept by appellant; but it appears that as soon as objection was made to this remark the court instructed the jury that it was improper, and should not be regarded by the jury. If this was a close case, the ruling of the court in excluding the remarks of the county attorney might not have been sufficient to prevent injury therefrom to appellant; but in the light of the testimony, if a new trial were granted, there is no reasonable ground to believe that upon a second trial an intelligent and honest jury could or would reasonably arrive at any other verdict than that of guilt. It would therefore be a waste of time and an unnecessary expense, and an interference with the enforcement of law and justice, to set aside this verdict, merely because the county attorney, in the heat of argument, made improper remarks, when such remarks are promptly excluded from the consideration of the jury by the trial judge. We believe that the verdict .of the jury is right upon the evidence, and therefore the judgment of the lower court is in all things affirmed.

ARMSTRONG and DOYLE, JJ., concur.


author: ARMSTRONG, J.

text:
    HOMER JORDAN v. STATE.
    Nos. A-999, A-1000.
    Opinion Filed November 25, 1911
    (118 Pac. 813.)
    1. APPEAL AND ERROR — Record.—Due Diligence. When an appellant, who has been convicted of an offense in a trial court in this state, seeks a reversal of a judgment in’this court, on the ground that he was unable to present enough of the record on appeal to disclose prejudicial error, the record must conclusively show that he has exercised every possible diligence to obtain a proper case-made, and through no fault of his has been unable to do so. Farmer v. State, 5 Okla. Cr. 151, 114 Pac. 753.
    2. APPEAL AND ERROR — Sufficient Record — Correction. Where a transcript of the record or case-made has been filed in this court in due time, and by proper motion it is made to appear that any matter is of record in the court from which the appeal is taken touching the cause appealed, or any evidence heard on the trial of said cause, or that any statement, or certificate, or motion, or other matter is omitted from such record or case-made, or are insufficiently stated therein, this court will allow the appellant a reasonable time within which to prepare such omitted parts of the transcript of the record or case-made under the direction of the trial judge, and file such corrections in this court; and when so filed such corrections or added parts will have the same force and effect as though they had been originally incorporated in the record or ease-made when first filed in this court.
    (Syllabus by the Court.)

      Appeals from Payne County Court; P. D. Mitchell, Judge.

    Homer Jordan was convicted on two indictments for violating the prohibitory law, and appeals.
    Affirmed.

      Springer & Oursler, for plaintiff in error.

      Smith C. Matson and B. G. Spilman, Asst. Attys. Gen. (Andrezv Wood, of counsel), for the State.
   ARMSTRONG, J.

Iiomer Jordan was convicted in two cases, in the county court of Payne county, in August, 1910, for violations of the prohibitory law. In case.No. A999, he was charged with conveying intoxicating liquor unlawfully from one place to another designated in the information, and his punishment fixed at a fine of $100, and 30 days’ confinement in the county jail. In case No. A1000, he was charged with having the unlawful possession of intoxicating liquor with the intention of selling the same, and his punishment fixed at a fine of $100, and imprisonment in the county jail for a period of 30 days.

Plaintiff in error contends that he was deprived of his right of appeal by reason of the failure of the court stenographer of the county court of Payne county to furnish a transcript of the evidence, and upon this ground seeks a reversal of the judgments of conviction in these cases. This is the sole question at issue.

The record discloses that the plaintiff in error was given 120 days from August 25, 1910, the date upon which the judgments appealed from were rendered, in which to file petition in error and case-made in this court. He was given 90 days at first, but, on account of the stenographer being behind with her work, the time was extended. This extension allowed him until the 23d day of December to perfect the appeal. On December 21, 1910, evidence was taken on a motion for a new trial, based upon the ground that plaintiff in error had been unable to perfect his appeal in the time allowed by law, because the stenographer could not furnish a transcript of the evidence in time. One of the attorneys for the plaintiff in error testified on the hearing upon this motion that he told the stenographer, about the 12th of December, that she need not make the transcript of the evidence. At this time, there remained 11 days within which to perfect the appeal, and it is not shown that the stenographer could not have gotten out the transcript within this time.

In the case of Farmer v. State, 5 Okla. Cr. 151, 114 Pac. 753, this court held: '

“Where counsel for a defendant have exercised all possible diligence to obtain a case-made within the time prescribed by section 69-48, Snyder’s Stat., and have been unable to do so through no fault of theirs, the trial court should set aside a conviction and grant the defendant a new trial.’^

In the case under consideration, we do not think the record shows that counsel exercised all possible diligence to obtain the case-made within the time prescribed. 'In the absence of such showing, this court cannot indulge in the presumption that such diligence was used. Cases will only be reversed upon the contention made here when the law has been strictly complied with, and the plaintiff in error has not been guilty of laches.

'This court, in the case of Farmer v. State, supra, held further :

“Under section 6077, Snyder’s Comp. Laws of Oklahoma 1909, where a transcript of the record or case-made has been filed in this court in due time, and by proper motion it is made to appear that any matter is of record in the court from which the appeal is taken touching the cause appealed, or any evidence heard on the trial of said cause, or that any statement or certificate, or motion, or other matter, is omitted from such record or case-made, or are insufficiently stated therein, this court will allow the appellant a- reasonable time within which to prepare such omitted parts of the transcript of the record or case-made under the direction of the trial judge, and file such corrections in this court; and when so filed such corrections or added parts will have the same force and effect as though they had been originally incorporated in the record or case-made when first filed in this court.”

See, also, Dobbs v. State, 5 Okla. Cr. 475, 114 Pac. 358.

Under the rule announced in the cases, supra, plaintiff in error could have filed a petition in error and transcript of the record in this court on or before December 23, 1910, and then filed an application here to be permitted to supplement the record by incorporating the transcript of the evidence, and upon proper showing would have been permitted to do so, and his whole case would have been before this court within the time required. But no such action was taken, and we do not think the record shows that diligence upon his part to perfect these appeals which entitles him to a reversal of the judgments on the ground relied upon.

There being no other questions raised, the judgments of the trial court are affirmed.

FURMAN, P. J., and DOYEE, J., concur.


text:
    H. E. BOUCHER v. STATE.
    No. A-733.
    Opinion Filed November 25, 1911.
    (118 Pac. 1102.)
    1. INDICTMENT AND INFORMATION — Joinder of Offenses. The offenses of selling and giving away whisky, when committed by the same person at the same time, may be joined in the information or indictment as constituting but one offense; and proof of either of these acts will sustain a conviction.
    2. NEW TRIAL — Appeal • — ■ Review — Insufficiency of Evidence. Where there is any evidence in the record from which a jury could legitimately arrive at the conclusion that the appellant is guilty, a new trial will not be granted on the ground of the insufficiency of the evidence, unless' it be made to appear by the record that the jury was influenced by improper motives in convicting the appellant. 1
    (Syllabus by the Court.)

      Appeal from Oklahoma County Court; Sam Hooker, Judge.

    H. E. Boucher was convicted of violating the prohibitory law, and appeals.
    Affirmed.

      Giddings & Giddings, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   FURMAN, P. J.

The information charged appellant with the crime of bartering, selling, and giving away intoxicating liquor, to wit, whisky, to one J. C. Hopewell.

In the case of Antonnelli v. State, 3 Okla. Cr. 580, 107 Pac. 951, in an opinion by Judge Owen, this court held that the offenses of selling and giving away whisky, when committed by the same person at the same time, might be joined in an information or indictment as constituting but one offense; and that proof of either of the acts mentioned in the information or indictment would sustain a conviction. In the case at bar, the evidence does not show, as a matter of fact, that appellant received any money for the whisky which it was testified was furnished by him to the party named in the information.

The testimony of M. M. Murray was as follows:

“Q. You are a police officer? A. Yes, sir. Q. And were on the 19th day of January, 1909? A. Yes, sir. Q. I ask you if you know the defendant in this case, H. E. Boucher ? A. Yes, sir; I have been raiding in there, and he has been in there. (Defendant objects as to what he has been doing in there, and moves to strike out the answer.) Q. I will ask you how you came to get acquainted with him? A. Through my work. Q. What kind of work? (Objected to as incompetent, irrelevant, and immaterial. Objection sustained, and exception noted.) Q. Did you see him on the 19th of January, 1910? A. Was that the date in question ? I don’t exactly remember the dates. Q. Did you swear to the complaint in this case? A. Yes. Q. The date you swore to the complaint, did you see him? A. Yes, sir. Q. Where did yon see him on that date? A. 215 South Robinson. Q. What was he doing, if anything, at the time you saw him? A. ITe was in the building there, and I was on the outside when I saw him. He was standing around there quite a while until some fellow came in, and he handed him a bottle, and the fellow took a drink, and I came around and got the bottle. Q. Do you know what was in that bottle? A. Yes, sir.”

The witness further testified that after having secured the bottle given by appellant to the party named in the information he tasted it; that the bottle contained whisky. W. M. Patch, who was also a policeman, testified to the same facts that were testified to by M. M: Murray.

This evidence, if true, clearly proves that appellant either gave or sold J. C. ITopewell whisky on the occasion charged in the information, and under the law it is immaterial as to whether this whisky was a sale or gift from appellant to said Plopewell. It is true that appellant and Hopewell both directly contradicted the testimony of the witnesses for the state. This conflict in the evidence was a question for the jury to settle, and, they having found in favor of the testimony of the state, we cannot disturb the verdict.

We find that the charge of the court was in all respects correct. The judgment of the lower court is therefore in all things affirmed.

ARMSTRONG and DOYRE, JJ., concur.


text:
    JAMES MYERS v. STATE.
    No. A-834.
    Opinion Filed December 4, 1911.
    (119 Pac. 136.)
    1. RAPE — Elements of Offense — Degree. An act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under the age of 16 years, is rape in the second degree, whether such act is accomplished by means of force or with consent.
    2. INDICTMENT AND INFORMATION — Duplicity — Charge of Rape. The information alleged that the defendant did "commit the crime of rape by then and there unlawfully, willfully, and feloniously rape, ravish, and carnally know” and have sexual intercourse with a female under the age of 16 years, to wit, the age of 15 years. Held, not duplicitous, as it only charges rape in the second degree.
    3. RAPE — Evidence—Other Offenses. On a trial for statutory rape, where the female is under the age of consent, evidence of similar acts of sexual intercourse within the year preceding the time alleged in the information was properly admitted for the purpose of showing the intimate relations of the parties, and as corroborative of the evidence of the particular act relied upon for a conviction.
    4. SAME — Evidence—Other Offenses. Evidence was admitted of the pregnancy of the prosecutrix and the defendant’s treatment of her by giving her medicine, and his abduction of her for the purpose of concealing her pregnancy. Held, not error to permit the prosecution to introduce evidence which is competent and relevant as tending to establish the defendant’s guilt of the crime charged, because it also tends to establish his guilt of another and different offense.
    5. AEPEAL AND ERROR — Record—Questions Presented for Review. Where persons who gave affidavit in support of an application for change of venue in a criminal prosecution were called, sworn, and examined on the hearing of the application, but the ease-made does not contain a' transcript of their testimony so taken, the Criminal Court of Appeals will not review the action of the' trial court in denying the application.
    6. APPEAL AND - ERROR — Writ of Error — Presentation of Questions in Trial Court — Information. The objection to an information that it states that the defendant waived a preliminary examination before a justice of the peace, .and was by the justice held! to answer, will not be considered by the Criminal Court of Appeals where it was not presented to the trial court by a plea in abatement, nor a motion to quash or set aside the information before the jury was sworn, but only by objection to the-reading of the information to the jury.
    (Syllabus by the Court.)

      Appeal from District Court, Caddo County; G. A. Brown, Judge.

    James Myers was convicted of statutory rape, and appeals-
    Affirmed.

      McKnight & Heskett, for plaintiff in error.

      Charles West, Atty. Gen., and Smith C. Matson and B. G. Spilman, Asst. Attys. Gen., for the State.
   DOYLE, J.

The plaintiff in error, James Myers (hereinafter designated the defendant), was convicted in the district court of Caddo county of the crime of rape in the second degree, and sentenced to be imprisoned in the state penitentiary at hard labor for a term of 10 years. The judgment and sentence was pronounced and entered March 18, 1910. He has appealed from this judgment and the orders of the court denying his motions for a new trial and in arrest of judgment.

The assignments of error will be considered in the order presented in the defendant’s brief. The information upon which the defendant was tried and convicted, omitting the title, verification, and indorsements, reads as follows:

“Now, at the- February term of the district court of the Fifteenth judicial district of the state of Oklahoma sitting within and for the county of Caddo, in said state, begun and held at Anadarko, in said county and state, on the 1st day of February, in the year of our Lord, one thousand, nine hundred and nine, comes Theodore Pruett, county attorney, and gives the court to know and be informed that on the-day of October, in the year of our Lord, one thousand, nine hundred and eight, at and within said county, one James Myers, then and there being, did then and there commit the crime of rape by then and there unlawfully, wilfully, and feloniously rape, ravish, and carnally know and have sexual intercourse with one Ada White, a female person under the age of sixteen years, to wit, of the age of fifteen years, and he, the said James Myers, being then and there a male person, and not the husband of her the said Ada White; that the said James Myers waived a preliminary examination for the above offense before P. L. Jorgenson, justice of the peace in and for the city of Anadarko, Caddo county, Oklahoma, on the 20th day of January, 1909, and was by the said P. L. Jorgenson held to answer the same. Contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Oklahoma.”

The defendant filed a demurrer to the information upon the grounds:

“That said information is not direct and certain as to the offense charged, in this: That it merely charges the defendant with the offense, of rape, and is not sufficient to show the defendant whether he is being prosecuted for rape in the first degree, or rape in the second degree.’

The judgment of the court overruling the demurrer was excepted to and is here assigned as error. Counsel contend that the allegation “rape, ravish, and carnally know” charges force, violence, and want of consent, which under our statute is rape in the first degree; that, eliminating this clause from the information, it charges rape in the second degree, thus charging two degrees of rape in one count; that for this reason the information is bad for duplicity. As we view it, the contention is without merit. Rape and its degrees is defined (section 2353, Comp. Laws 1909) as follows:

“Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances: 1st. Where the female is under the age of sixteen years. * * * 4th. Where she resists but her resistance is overcome by force and violence.”

Section 2356:

“Rape committed upon a female under the age of fourteen years, or incapable, through lunacy or any other unsoundness of mind, of giving legal consent, or accomplished by means of force overcoming her resistance, is rape in the first degree.”

Section 2357:

“In all other cases rape is of the second degree.”

The information simply charges the crime of rape in the second degree under the first subdivision of the statute. The allegation, “rape, ravish, and carnally know,” would be fully sustained by proof of carnal intercourse with a female under the age of 16 years. Whether the act is accomplished by means of force or with consent is immaterial. Therefore this clause did not extend, limit, or modify the crime charged, and might have been omitted. However, it is not inconsistent, and, at most, it may be treated as mere redundance. The demurrer was properly overruled.

The overruling of the defendant’s application for a change of venue is assigned as error. The verified application of the defendant was supported by the affidavits of nine other affiants. The record shows that six of said supporting affiants were called, sworn, and examined upon the hearing of the application, but the case-made does not contain a transcript of their testimony so taken. In the absence of this testimony, this court will not review the action of the trial court thereon. The presumption is that the court properly denied the change of venue.

The overruling of the defendant’s challange for cause to the juror W. M. Haslett is assigned as error. There was no error in the ruling of the court upon the qualifications of this juror. His examination did not show him to be disqualified within the statute and previous rulings of this court. Turner v. State, 4 Okla. Cr. 164, 111 Pac. 988.

The next assignment of error is that the court erred in overruling defendant’s objection to the reading of the information to the jury. The record shows that after the jury was sworn to try the case the following objection was interposed:

"The defendant now objects to the reading of the information in this case to the jury for the reason that the information contains allegations and surplusage prejudicial to the defendant.”

It is here insisted that the following statement in the information was prejudicial:

“That said James Myers waived a preliminary examination for the above offense before P. L. Jorgenson, justice of the peace in and for the city of Anadarko, Caddo county, Oklahoma, on the 20th day of January, 1909, and was by the said P. L. Jorgenson held to answer the same.”

If this objection had been properly made by plea in abatement, or motion to quash or set aside the information filed before the jury was sworn, any right the defendant might have would be preserved and reviewed upon appeal, but, where an objection to an information for a defect of form apparent on the face thereof is raised for the first time by an objection to the reading of the information to the jury, it comes too late, and will not be considered. However, it might be well to state that the following instruction was given by the court:

“You are instructed that the information in this case is no evidence of the defendant’s guilt. It is merely the charge upon which he is placed on trial, and no juror should allow himself to be influenced in any degree against the defendant on account of the charge therein.”

Three assignments of error are based on the rulings of the court in the admission of and in refusing to strike out certain evidence. Under these assignments, it becomes necessary to make a brief statement of the evidence.

It is undisputed that at the time in question Ada White was fifteen years of age. Ada White testified that she had known the defendant about five years; that at the time in question she was living with her parents on the defendant’s ranch in Caddo county; that in the month of October, 1908, on returning from school, the defendant was at her home, and asked her mother if she could go with him to drive up some horses from the pasture; that her mother consented, and she went with him', and while ir the pasture he had intercourse with her; that she was not the wife of the defendant; that the defendant had had sexual intercourse with her before that time; that in the spring of 1907 while she was at his ranch house he put his arms around her, had her sit on his lap, and laid her on a bed, and tried to have intercourse with her; that he tried several times thereafter to have intercourse with her; that in the fall of 1907, when she was herding his cattle, he rode up to her, and lifted her off of her horse, and succeeded in having intercourse with her by using vaseline; that this was the first time; that during that winter she' helped to herd his cows, aud he would often go with her, and have intercourse with her; that the defendant had sexual intercourse with her off and on from the first time until the time alleged in the information, relating the time, place, and occasion of several such acts; that her “courses stopped” in July, 1908, and the defendant gave her three bottles of medicine and two boxes of some kind of pills to take, and her mamma gave her “Lida Pinkerton Medicine”; that the defendant told her not to take her mother’s medicine, but to pour out just as much as she was supposed to take; that as a result of sexual intercourse with the defendant she became pregnant, and on March'24, 1909, a child was born to her; that the child died when it was 91/2 months old; that on January 1, 1909, the defendant met her in the hay field, and took her in a buggy to Lawton, and from there to a place nine or ten miles below Chattanooga where the defendant had another ranch; that he told her he was taking her away so that her mother would not find out her condition; that while they were there he was arrested, and she only saw him once afterwards, which was at Oklahoma City when he tried to come into their house, and her mother shot him; that she .was acquainted with the defendant’s handwriting and identified a letter which was handed to her on the train while coming to the trial as his handwriting. The letter reads as follows:

“Oklahoma City, 2-15-09. Dear Ada: The bearer of this must have a talk with you; he will tell you some things that I want you to know. I am afraid that your mother and father will force you to testify in their case against me and ruin the best friend' they have in the world. You must get very sick on your way up tomorrow and remain so until the trial will have to await over for another court. Now, Ada, try this for once to be brave and save your best friend on earth. My God, can you forget what we used to talk so much about. It will be suicide for the old man. If you testify I will just have to kill myself; no -pen for J. Myers.”

On cross-examination it was shown that Myers frequently gave her money, and that in the fall of 1908 he gave her a pony.

Mrs. Azalia White testified: That she was the'mother Ada White. That they lived on and near the defendant’s ranch in the years 1907 and 1908. That the defendant frequently stopped at their house, and early in October, 1908, he came there and said that he wanted to change teams, and, when the girls came home from school, Ada went with him to drive the horses up .from the pasture. That on January 1, 1909, they missed Ada. A few days later her brother brought her home. That later they went to live at Oklahoma City, and the defendant came to their home and rapped, and said:

“ ‘This is Jim Myers, and I want to see Ada.’ I said, ‘You are not my friend. You will go to hell and burn forever for what you have done.’ And he said: T know it,’ and I said: ‘How dare you come to my house and demand entrance after you have wrecked and ruined my family.’ ”

That she then shot him, and he ran away.

J. L. Jackson testified that he was acquainted with the defendant; that on January 2, 1909, as deputy sheriff of Comanche county, he arrested him on a warrant issued on a charge of kidnapping Ada White at the defendant’s ranch on Deep Red, 35 miles south of Lawton; that Ada White was then with him, and, when he first saw them, the girl was in a tent; that'he turned the girl over to her brother at Chattanooga; that the defendant volunteered the statement that “he would not have harmed the girl; that he was just trying to show her a friendly favor that the family would not do, and, if the girl had not been tired and worn out, they would not have got her; that he would have had her on the Ft. Worth and Denver train that day.”

W. P. Smith testified that as an officer he took charge of the defendant at' Lawton on a warrant of arrest for rape, and while bringing him to Caddo county he voluntarily stated that:

“He had a nice place prepared for her in California where she would be well cared for, and, if Mr. White had kept still, he would have taken her ■ there, and the girl would have been back here soon, and nobody would have known anything about it, and he was doing it for the interest of the girl and the sympathy he had for her.”

There was no evidence offered on the part of the defendant.

The evidence relating to the pregnancy of the prosecutrix and the birth and death of the child, and the evidence relating to the medicine which prosecutrix testified was furnished her by the defendant, was introduced over the defendant’s objections thereto as being incompetent and irrelevant, and a motion was also made to withdraw this evidence from the consideration of the jury for the same reason.

In support of this assignment, counsel cite the case of People v. Soto, 11 Cal. App. 431, 105 Pac. 420, and quote from the opinion the following language:

“While proof of pregnancy of a child under the age of consent has been held to be evidence that the statutory crime of rape has been committed, it has never been held admissible, so far as we are aware, except it tends to prove the corpus delicti!’

• On the undisputed facts in the case at bar it would be a sufficient answer to this contention to further quote the concluding language of the opinion in the Soto case, which is as follows:

“While under our system of pleading one particular act or some special time is required to be selected for the purpose of a conviction in cases of this character, the records in this court disclose that this offense, the debauching of a child, is frequently accompanied by a series of acts of sexual intercourse, and the punishment for this infamous crime ought not to be made to hang upon a technical application of the rules of pleading and evidence, where the only question is which one of innumerable acts was selected by the district attorney as the basis of the prosecution.”

There are several reasons why the rulings of the trial court should be sustained. The prosecutrix had testified without objection to numerous acts of sexual intercourse, and the state had not been asked to elect which of these it would rely upon for a conviction. It appears, however, that the case was tried with reference to the act committed in October, 1908, as charged in the information, and no testimony was offered or admitted as to any subsequent act of intercourse. While there is a direct conflict of authority on the admissibility of evidence of subsequent acts of sexual intercourse, the rule is almost uniform that in a prosecution for statutory rape of one under the age of consent, evidence of acts anterior to the commission of the act charged is admissible, not primarily to prove other offenses, but for the purpose of showing the intimate relations of the prosecutrix and the. defendant, and as corroborative of the evidence of the particular act charged.

It logically follows that the correlative facts of the pregnancy of the prosecutrix and the defendant’s treatment of her by giving her medicine, and his abduction of her for the purpose of concealing her pregnancy, and, the birth and death of her child, being so intimately and inseparably connected with the circumstances of the specific offense charged, that this evidence was competent and relevant for the purpose of showing the relations of the parties, and as corroborative circumstances to be considered by the jury in determining whether or not the defendant committed the specific offense charged.

The assignments of error based upon the instructions of the court, and the refusal of the court to give the single requested instruction to direct a verdict of not guilty, are as devoid of merit as the subsequent assignment that the verdict is contrary to law, and is not sustained by sufficient evidence.

The motion for a new trial and in arrest of judgment presents no questions that have not been considered. The defendant on the evidence adduced is beyond a possible doubt guilty of one of the most heinous crimes that can be committed, alike against society and the law, and he has been adjudged to suffer the maximum punishment of the law. However, there is no adequate punishment for such a crime as his. The anomalous provision in the Penal Code that makes this offense rape in the second degree is well worthy of the consideration of the Legislature, and it is to be hoped that it will amend the provision defining rape in the first degree to read under the age of 18 years, or at least 16 years, instead of 14 years, as it is now.

The judgment of the district court of Caddo county is in all things affirmed. Mandate to issue forthwith.

FURMAN, P. J., and ARMSTRONG, J., concur.