author: DAVENPOK.T, P. J.

text:
    J. E. MOORE v. STATE.
    No. A-8847.
    Oct. 25, 1935.
    (50 Pac. [2d] 746.)

      Priest & Belisle, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   DAVENPOK.T, P. J.

The plaintiff in error, for convenience hereinafter referred to as the defendant, was convicted of embezzlement and his punishment fixed at a fíne of $1,000, and imprisonment in the state penitentiary for a term of ten years.

The record in this case is voluminous, containing 930 pages. It is not deemed necessary to set out the testimony in detail. The testimony in narrative form that it is deemed necessary to incorporate in this opinion shows the following facts:

On or about the 22d day of June, 1938, the defendant in this case was president of the Capitol .State Bank of Capitol Hill, Oklahoma City, Okla.; there was on deposit in said bank at that time $1,654.81, in small accounts running from a few dollars up in the neighborhood of one hundred dollars, known as inactive accounts; these accounts were carried separate from the active ledger, in what was known as a dormant ledger. The only record kept by the bank daily to keep the books in balance of these dormant accounts was what was known as a control sheet in the active ledger. Between the 22d day of June, 1933, and the 11th day of August, 1933, the defendant by the use of forged checks or debit memorandums extracted the said sum of $1,654.81 represented by these small inactive accounts, and that by reason of the defendant so withdrawing and extracting this amount the defendant, as president of the Capitol State Bank of Capitol Hill, embezzled said amount.

The state, in order to sustain its allegations, called in chief James M. Fitz, who was an assistant of the bank commissioner, who testified the bank closed on December 30, 1933, and his examination showed, considering the withdrawals, the bank was out of balance $1,654.81. The witness identified the bank’s records on the report to the banking department showing the amount of the shortage.

Hoy Harshal and P. J. Winkler testified in substance to the same facts as did the witness Fitz. George Fox, a special assistant to the bank commissioner, identified a number of the exhibits as being in the handwriting of the defendant.

Lester Johnson, a bookkeeper in the Capitol State Bank of Capitol Hill, from 1925 until it closed, testified he was keeping one of the books at the bank at the time it closed; that the inactive ledger was kept in the vault; the inactive accounts of the depositors were kept in a loose-leaf ledger; the books were kept in balance by a control sheet in the active ledger, and when a check or deposit slip against one of the inactive accounts came in for posting in the ledger kept by him he would post the debit slip against the control sheet, but that Earl Buttrill, cashier in the bank, would always demand the return of the debit memorandum, check, or draft against such inactive account, and that Mr. Buttrill or some one other than the bookkeeper posted them on the account affected.

Witness Johnson further stated, when State Exhibit No. 21 was presented to him, that he handled ten of the items contained in the exhibit, and the ones he handled he posted on the control sheet in the active ledger, and took the sheet representing that account out of the inactive ledger and gave it to Mr. Buttrill; that would be the last time he would have occasion to see' the sheet; he was familiar with the handwriting of defendant Moore; upon examination of Exhibits 33 to' 47, all except Exhibit 47 was in the handwriting, of Mr. Moore, and Exhibit 47 was in the handwriting of Earl Buttrill; at the time Exhibits 33-47 came to his hands for posting he knew in whose handwriting they were, and that they were in J. E. Moore’s handwriting; with the system employed when money was paid out of this the debit slips would be taken out of the teller’s window, then the check would be run to the bookkeeper in order to balance that window.

“Earl Buttrill brought to me to post on his account sheet on the inactive accounts; Mr. Buttrill insisted on me not charging them to the individual customer but to extract them from the inactive list and bring them to him; I never saw the defendant Moore write any of the debit slips, nor did I see the defendant receive any of the money; when I returned the ledger sheet to Mr. Buttrill that was the last I knew anything about the transaction.”

Earl Buttrill, testifying for the state, says:

“I was cashier of the Capitol State Bank of Capitol Hill, Oklahoma City, Okla.; had been working in the bank since June, 1924, until it closed on December 30, 1933; Mr. Moore was the recognized head of the bank up until it closed, from September, 1932. I am acquainted with the handwriting of Mr. Moore.”

Witness identified the 112 instruments marked as Exhibit 60 in the record, and stated the signatures in this exhibit were in the handwriting of Mr. J. E. Moore.

“I knew the inactive accounts were kept in a separate ledger which remained in the vault during the day; all other ledgers were brought out where the bookkeepers could use them. There were two teller windows in the bank at the time it closed; I worked at No. 1 chiefly; Lester Johnson was teller at window No. 2. All the employees in the bank occasionally worked at either of the windows, and all of the employees had access to cash in the windows during the day.
“Exhibits from 33 to 47 were first handled in No. 1 window; I handled them before they got out of the window ; from there they Avent to the bookkeeper. Exhibits 33 to 46, inclusive, are in the handwriting of Mr. J. E. Moore. In handling these items Mr. Moore came to the window and took the money out on debit slips and came to me to get the money. Exhibit 47, being the McOourry account for $129, Mr. Moore and I went back to the inactive accounts and figured that Mr. McCourry had already checked out the money in some manner or other, and that the money really belonged to the bank. Mr. Moore always gave me the inactive ledger sheet to be checked against, and I made the file on them. Mr. Moore and I discussed keeping this inactive ledger sheet; the only ivay I could figure out the bank could keep the balance and know if the inactive sheet had been tampered with was to keep the. sheet in a separate file Avith the balances thereon.”

The witness further stated:

“I kept Exhibit 21 in a separate file; when the debit sheets were sent to the bookkeeper in order to keep his books in balance, they were charged off the control sheet in his active ledger, and I made a file of the inactive accounts which were so charged; I have seen Mr. Moore write debit slips and take out cash on them. I have received no promise of immunity or assistance of any kind from the banking department in consideration of my testifying in this case, although I was charged with a like offense in the district court of Oklahoma county.”

Earl Buttrill was recalled by the state as a witness, and stated:

“I have worked for the bank nine years and six months; have been cashier since 1925; I was seventeen years old at the time I became cashier; held the position from 1925 until some time in April, 1926. In 1928 I was again elected cashier, and continued to hold that position until the closing of the bank.”

Witness identified a number of exhibits offered in evidence as being in the handwriting of J. E. Moore.

Other witnesses were called to identify the signature of J. E. Moore, and a number of experts identified many of the exhibits as being in the handwriting of J. E. Moore.

The state introduced testimony showing the amount of the shortage, and the method by which the defendant drew the money from the bank.

The defendant, testifying in his own behalf, stated:

“I have lived in Oklahoma City the past 15 years; I first became president of the Capitol State Bank of Capitol Hill, Oklahoma City, in 1926, holding 80 shares of the stock at that time; I held that position until June or July, 1929, at which time I sold my stock and retired as president of the bank. Later I purchased 100 shares in the bank, and abont September, 1932, I again became president of tbe bank; when I was last connected with the bank, Joe Huckins, Jr., J. F. Hoffman, Otto Rose, Earl Buttrill, and a man by the name of Schroyer, and I were directors. Between 1929 and 1932 I was president of the Capitol Hill Mortgage & Investment Company. I state positively, after examining documents 33 to 46, that I did not write any, or either, of these exhibits, nor did I ever receive any consideration by reason thereof.”

The defendant further stated:

“After I examined Exhibit 21, which is known in the record as the inactive ledger sheet alleged to have been tampered with, I received no part of the money extracted from any part of those balances. I performed the usual duties of the president of such institutions, and would usually make the loans; Earl Buttrill was cashier; his duties were principally to look after the clerical department, collect notes, and supervise the mechanical part of the bank; I knew where the inactive ledger was kept; I never took out any sheets from that ledger, nor did I write any checks or debit memorandums against them; I never handed such a debit memorandum or check, together with an inactive account, to Earl Buttrill, and received from him any money, debit slips, or memorandums; I never discussed with Earl Buttrill any method of handling the sheets which make up Exhibit 21, nor did I know any money was being taken unlawfully or illegally from the inactive accounts.
“The signature on .State Exhibit 59 is my signature. I have examined State Exhibit No. 60, consisting of 112 memorandums; that portion of State Exhibit 60-A, the signature, is in my handwriting; I did not sign exhibit designated as State Exhibit 60-B; I at no time knew anything about a shortage in the inactive ledger account.”

The defendant denied positively he had embezzled any of the funds of the bank or had any connection with the embezzling of any of the funds; he did not draw out or authorize any one to draw any funds from the inactive accounts carried on a separate ledger as sueb. Tbe defense offered testimony of a number of experts wbo attempted to show that many of the memorandums and vouchers offered in evidence by the state as being signed by the defendant were not the signature of the defendant, and sought to show that Earl Buttrill had been the man who had manipulated the inactive ledger accounts. Considerable testimony was introduced by the state as to a note that had been taken up by the Capitol Mortgage & Investment Company, of Capitol Hill, signed by J. E. Moore, which note was finally taken out of the bank or adjusted by some one. The state in introducing this testimony offered it for the purpose of showing the method of doing business by the defendant.

There was a shortage in the bank of fl,654.81, and the testimony of the state shows how the funds were withdrawn, and the testimony of the defendant also attempts to show that the withdrawal of the funds illegally was not done by the direction, connivance, co-operation, or acquiescence of the defendant.

The foregoing is all of the testimony that it is deemed necessary to recite in this opinion.

The defendant has assigned 12 errors alleged to have been committed by the court in the trial of his case, which he deems possess sufficient merit to warrant this court in reversing his case. The defendant in his brief, in presenting his argument in support of his assignment of ei*rors, discusses the assignments under three propositions:

“First. That the information is duplicitous, ambiguous, vague, indefinite and uncertain and. that there is more than one offense attempted to be charged therein, and instruction number eight is an erroneous statement of the law.
“Second. That the court admitted incompetent, irrelevant, immaterial, inflammatory and prejudicial evidence over the objection of the defendant, which said evidence pertained to alleged offenses not in any wise connected with or of any probative value in establishing the offense charged, and committed error in giving instruction numbered six.
“Third. That the court erred in giving instruction numbered seven, objected and excepted to- by the defendant, in which instruction the court failed to instruct the jury, as a matter of law, that the witness Earl Buttrill was an accomplice and that his testimony, as a matter of law, must be corroborated.”

The defendant urges that the information in this case is duplicitous, and attempts to charge more than one offense, and that by reason of its charging’ more than one offense in the same count the court erred in refusing to sustain his motion to dismiss and his demurrer to the testimony of the state.

In his argument the defendant relies upon Boultinghouse v. State, 24 Okla. Cr. 369, 218 Pac. 173, paragraph 1 of the syllabus in Berry v. State, 17 Okla. Cr. 186, 187 Pac. 248, and Carter v. State, 6 Okla. Cr. 232, 118 Pac. 264, as sustaining his position that the information is duplicitous, and charges more than one offense in the same count.

In answering the argument of the defendant, the state cites section 9193, O. S. 1931, and argues that this section is not a part of the regular Criminal Code, but was adopted in 1913, relating to banks and banking. Said section provides :

“Every officer, director, employee or agent of any bank, who embezzles, abstracts, or willfully misapplies any of the moneys, funds, credits or securities of the bank, with intent in either case to injure or defraud the bank or any individual, person, company or corporation, or to deceive any officer of tbe bank, or tbe bank commissioner, or any agent appointed to examine the affairs of such bank, and any person who with like intent aids or abets any officer, director, employee or agent of such bank in any violation of this section shall be deemed guilty of a felony, and upon conviction thereof shall be punished' by a fine of not less than five hundred dollars, nor exceeding five thousand dollars, and imprisonment in the penitentiary for a period of not less than five years nor more than 50 years; and the principal offenders and those aiding and abetting same may be charged in the same count, and separate offenses may be charged, in separate counts, in the same indictment and tried together.”

The information setting forth the facts constituting the charge in this case, in part, reads as follows:

“That at different times from day to day during the time from June 22,1933, to and including August 11,1933, the said defendant, J. E. Moore, then and there being, did then and there charge these inactive accounts with the amount of the balance represented by same by drawing a check signing the depositor’s name thereto or making a debit memorandum and filing the same in said bank as a charge against the aforesaid accounts without the knowledge and consent and the authority of said owners of the inactive accounts and thereby did create a shortage in the funds, credits and securities of said bank above named in the sum of $1,654.81, and did so use the same to his own personal use and benefit, all of which being done while he, the said defendant was president and an active managing officer of said bank and by said acts did embezzle, abstract, and willfully misapply $1,654.81 of the moneys, funds, credits and securities of the said above named bank with the intent on his part to injure and defraud said bank and all individuals, persons, companies and corporations therein interested of the sum of $1,654.81 and with the further interest on his part to deceive the other officers and directors of said bank and the Bank Commissioner of Okla-boma and his agents, appointed to examine the affairs of said bank. * * *”

In State v. Bunch, 23 Okla. Cr. 388, 214 Pac. 1093, 1094, this court said in part:

“In this case the embezzlement charged, in the amount of $5,845.61, was probably made up of a multitude of items derived from various sources. But one offense is stated, and it is not necessary in such a case to plead specifically a description of the individual items composing the aggregate. The manifest purpose of this statute was to. make a blanket provision covering any or all such delinquencies, constituting but one offense.”

In Davis v. State, 40 Okla. Cr. 231, 267 Pac. 674, in a prosecution under the same section of the statute this prosecution is based, but prior to its amendment by chapter 18'5, Session Laws 1923, now section 9193, O. S. 1931, in which case the court in the second paragraph of the syllabus stated:

“An information, based on section 4178, Comp. St. 1921, which alleges that an officer of the bank did abstract and willfully misapply the moneys, .funds, and credits of the bank, is not duplicitous in alleging both an abstracting, and willfully misapplying of the funds of the bank in the same count.”

It is also held in the Davis Case that while the statute defines the offense and enumerates disjunctively the acts which, either committed separately or together, constitute the offense, all such acts may be charged in the same action conjunctively, since they each by themselves may constitute the offense, all together do> no more, and constitute the same offense. Griswold v. State, 23 Okla. Cr. 136, 212 Pac. 1018.

In Willis v. State, 134 Ala. 429, 33 So. 226, 233, the Supreme Court of Alabama said, in part:

“The next important question raised upon the record is whether the prosecution could be compelled to elect to prosecute for one particular act of embezzlement. The evidence shows that the defendant was a station agent of the railroad company, and as such had full charge and control of its business at that station; Avas the custodian of all money arising out of the sale of tickets, collected all freight and express charges, made disbursements, and kept the books. Furthermore, the evidence tended to show that, by a system of false entries upon the books and other dubious practices, he endeavored to conceal his withholding of small sums of money which came into his possession from time to time by virtue of his employment; and, by a system of falsification, he managed to conceal * * * his acts of conversion of his employer’s money.”

The tendency of the evidence strongly supports the theory that the defendant’s system constituted a series of withholding of his principal’s sum of money for the purpose of ultimately acquiring a large sum. Where this is the case the doctrine of election does not apply since a series of acts would constitute but one offense. Fulkerson v. State, 17 Okla. Cr. 103, 189 Pac. 1092; Carl v. State, 125 Ala. 89, 104, 28 So. 505; Brown v. State, 18 Ohio St. 496, 513; State v. Wetzel, 75 W. Va. 7, 83 S. E. 68, Ann. Cas. 1918A, 1074; State v. Peters, 43 Idaho, 564, 253 Pac. 842; State, v. Noland, 111 Mo. 473, 19 S. W. 715.

In line with the authorities cited, we hold that the information properly stated facts sufficient to advise the defendant of the charge against him, and the court did not err in overruling his motion to dismiss and his demurrer to1 the information on the ground stated in the motion and the demurrer. No motion was made by the defendant to require the state to elect on which of the items alleged to have been embezzled it would ask for a conviction; the defendant evidently treating the information at the time he went to' trial as being sufficient to properly charge an offense against him.

The information in this case was drawn on the theory that defendant had committed but one offense, and that he as officer of the bank had failed to account for funds received by the bank by reason of a series of petty and continued conversions of the money in small sums manifestly difficult, if not impossible, to prove. Such an information in a case of embezzlement is not only permissible but is supported by the highest authorities in construing statutory regulations, similar to ours relating to misappropriation or embezzlement of trust funds coming into the possession of the defendant as an officer of the bank.

There are authorities which hold that where the crime consists, not in embezzlement of a single definite quantity of coin or bills, but in a failure to account for a number of small sums, a series of petty and continuous peculations, where it would manifestly be impossible probably for the defendant himself, but much more for the prosecution, to state what the money embezzled consisted of, an allegation of a certain amount is sufficient.

In the case of embezzlement by a public officer, or one intrusted with public funds, considerable latitude is permitted in the description of the money embezzled, for it is at times impossible to trace the particular funds in a ease of an officer handling the funds coming through as many avenues and so many different individuals. The allegation of a particular gross amount is therefore usually held sufficient.

The defendant, in arguing his proposition 2, earnestly argues that the court admitted incompetent, irrelevant, immaterial, inflammatory, and prejudicial evidence over Ms objections, which evidence he says pertains to an alleged offense not anywise connected with or of any probative value in establishing the offense charged, and that the court committed error in giving instruction No. 6. The defendant further argues that the court abused its discretion in permitting the state to reopen its case after the announcement by the state that it rested, and permitted the state to introduce testimony in regard to other offenses not connected with or having any probative value in establishing the offense charged.

The defendant cites Welch v. State, 41 Okla. Cr. 207, 271 Pac. 172, and many other cases, which he insists sustain his contention that the court committed error in permitting the state to open its case and introduce evidence of a transaction which the defendant insists had no connection with the offense for which he was being tried.

The question now is, Do the facts in the record bear out the contention of the defendant that the testimony offered by the state is not connected with the offense for which the defendant was being tried? It appears from the record that the evidence to which the defendant objected was originally offered as a part of the state’s case in chief, but upon insistent objections by the defendant such offer was by the court denied. However, the check in question was admitted by the court to show a sample of the defendant’s handwriting.

The record further discloses that during the introduction of rebuttal testimony by the state the court announced that further consideration had convinced it that the offer which had. been previously denied should have been allowed, and the court would now grant leave to the state to introduce the evidence as a part of its case in chief without prejudice to the rights of the defendant to introduce testimony contrary thereto. The court permitted the state to introduce evidence showing that prior to the time the defendant came back as an official of the bank in 1932, the bank held a personal note of the defendant, which by various payments had been reduced to the sum of $2,000, which note of the defendant for $2,000 was held by the bank when he became president. It further appeared that the assumption of the presidency of the bank complicated the situation relative to the handling of his note; that on the 5th day of November, 1932, the said note was taken out and a note for the same amount executed by the Capitol Mortgage & Investment Company, with which the defendant had some connection, and was placed among the assets of the bank. On July 8, 1933, a check in the sum of $2,000, payable to the order of the bank, and signed, “Cap. Mtg. & Inv. Co., J. E. Moore,” was charged against the account of the Capitol Mortgage & Investment Company, and the $2,000 note taken out.

The testimony further discloses that J. F. Hoffman, president of the Capitol Mortgage & Investment Company, and Otto Rose, a director of said corporation, testified that no authority was given the defendant to draw the check against said mortgage company. This transaction clearly shows that it was interwoven and connected with the defendant’s transactions, and was a part of the scheme carried out by the defendant in the operation, management, control, and withdrawal of the funds of which he is charged with embezzling. This mortgage note transaction of the defendant being a part of the transaction of the defendant with the bank, it was properly admitted in evidence.

In discussing his proposition 3, the defendant insists the court erred in giving instruction No. 7, in which instruction he says the court failed to instruct the jury, as a matter of law, that the witness Earl Buttrill was an accomplice, and his testimony, as a matter of law, must be ■corroborated. Instruction No. 7 is as follows:

“You are instructed that the prosecution in this case uses the testimony of a witness who may be culpably implicated in the commission of the crime of which the defendant is accused, that is, he may be one who knowingly and voluntarily co-operated or aided or assisted in the commission of the crime of which the defendant is accused; and whether or not he is such a person is a question of fact for you to determine from the evidence before you. If you believe from the evidence in the case that such witness is implicated in the crime charged in the information as above defined, then, in law, such witness is an accomplice, and you are instructed that a conviction cannot be had upon the testimony of an accomplice unless such witness be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof, but such other evidence, to be sufficient to corroborate the evidence of the accomplice, must tend to connect the defendant with the commission of the crime of which the defendant is accused.”

The defendant insists that the court should have advised the jury that Earl Buttrill was an accomplice instead of giving instruction No. 7 as it did. With this contention we cannot agree. There is no doubt about the law being that if a witness testifies in a case, and the testimony shows he is an accomplice, he. must be corroborated by other circumstances and facts before the jury would be warranted in finding a verdict of guilty. If the defendant in this case, after he heard the court give the jury instruction No. 7, felt that it was not a correct and sufficient statement of the law that should be given the jury by the court, it was his duty to prepare a special instruction setting* forth what he believed to be the law, and requesting the court to give it. The record does not show that the defendant made any such request.

This court in many cases has held that where the facts are undisputed or admitted the question as to whether or not the witness is an accomplice is generally one of law for the court, but where the evidence is conflicting as to whether or not the witness is an accomplice is a question of fact to be submitted to the jury under proper instructions. Moore v. State, 14 Okla. Cr. 292, 170 Pac. 519; Cudjoe v. State, 12 Okla. Cr. 246, 154 Pac. 500, L. R. A. 1916F, 1251; Jolliffee v. State, 21 Okla. Cr. 278, 207 Pac. 454.

The record discloses that the defendant in this case denied his guilt, and denied that he had signed many of the checks or debit memorandum slips, and that question was submitted to the jury as a question of fact based upon the conflicting testimony in the record. It is clearly shown by the record that the testimony of Earl Buttrill is fully corroborated as to facts sufficient to connect the defendant with the crime. Defendant’s connection with said transaction was shown by the testimony of Lester Johnson, a bookkeeper in the bank, by Otto Rose, a director and former vice president of the bank, and by J. M. Fitz, with the banking department, and P. J. Winkler, also connected with the banking department. Other circumstances, checks, debit slips, and evidence by various witnesses show conclusively the guilt of the defendant, and under the evidence in this case, in our opinion, if the jury regarded its oath, it could not have failed to return a verdict of guilty. The evidence is sufficient to sustain the verdict. The defendant was accorded a fair and impartial trial. The instructions clearly, succinctly, and correctly advised the jury as to the law applicable to the facts. There are no errors in the record warranting a reversal.

The judgment is affirmed.

EDWARDS and DOYLE, JJ., concur.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    KATIE DAVIS v. STATE.
    No. A-8916.
    Oct. 25, 1935.
    (50 Pac. [2d] 755.)

      Charles R. Freeman, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Mat-son, Asst. Atty. Gen., for the State.
   DOYLE, J.

By information, appellant, Katie Davis, and Ellis Eaton were jointly charged in the district court of McIntosh county with the murder of Jeff Davis, her husband, in said county on the 7th day of .September, 1934, by shooting him with a pistol.

Demand for a separate trial was made and severance granted. The defendant Eaton, tried first, was convicted and sentenced to imprisonment for life.

Upon appellant’s trial the jury found her guilty of murder and assessed the punishment at imprisonment for life. Her motion for a new trial having been overruled, she has. appealed from the judgment entered upon such conviction.

The evidence shows or tends to show the following-facts: Katie Davis, a full-blood Cherokee Indian, when about 16 years of age left her home to live with Ellis Eaton, a Cherokee Indian, and lived with him until Eaton left that country.

Katie’s maiden name was Stop. After Ellis Eaton left, she returned to her parents’ home near Tahlequah, where a child was born to her; this child lived but a short time. On July 22, 1926, she married Jeff Davis, a full-blood Creek Indian, about 60 years old, a widower and father of several grown children. Jeff Davis was a man of considerable property. Shortly after his marriage to Katie Stop, he made a will, devising to' her all his property, including approximately $18,000 in cash, except the sum of $1 to each of his four children. Jeff Davis and his wife, Katie, lived in Checotah. Early in 1934, Ellis Eaton returned to his former home near Tahlequah, after serving a sentence in the California penitentiary. Shortly after Eaton’s return, he and Katie began to associate with each other, whenever she visited her parents near Tahlequah. This association continued until the time of the murder of Jeff Davis and for a few days subsequent thereto. It appears that in July, 1934, Jeff Davis sued Katie for a divorce on account of her association with Ellis Eaton. This suit was pending at the time of the commission of this murder, although there is evidence in the record that Jeff Davis had asked that the suit be dismissed. In November, 1934, while this prosecution was pending, Katie Davis relinquished her right under the will to any of the estate of Jeff Davis reserving only her homestead right to her home in Checotah.

On September 6, 1934, Katie Davis and Ellis Eaton left Tahlequah, in Katie Davis’ car, and drove out into the country. Later that day they picked up a young man, Scott Bread, a cousin of Katie’s, and about 4 o’clock in the afternoon they left that community and drove to Hul-bert and Wagoner, and then in a roundabout way to the town of Checotah, stopping on the east side of town shortly before midnight. Ellis Eaton and Scott Bread left the car, Eaton taking a pistol belonging to Katie, and went to the home of Jeff Davis; there Ellis Eaton shot and killed Jeff Davis. Katie Davis remained in the automobile. After having killed Jeff Davis, Ellis Eaton and Scott Bread returned to the car and drove to the home of Ellis Eaton’s sister at Knoxville, Ark.

The next day they returned to the vicinity of Tahle-quah, where Ellis Eaton was arrested, and later Katie was arrested and placed in jail at Muskogee. At that time she denied any knowledge of the fact that her husband had been killed. She told the officers who questioned her that she, Avith Ellis Eaton and Scott Bread, had left Tahlequah about 4 or 4:80 Thursday and had arrived in Knoxville about 8 o’clock that night. This was the story they had agreed to tell while they were at the house of Eaton’s sister at Knoxville. Later Katie made a statement to the county attorney of McIntosh county contradictory of the statement that she had made while confined in jail at Muskogee.

Scott Bread testified that he lives in Tahlequah, age 17 years, cousin of Katie Davis, lived with her and her husband at Checotah three years ago for about one year. Thursday morning about 10 o’clock saw Ellis Eaton and Katie at her father’s house in Tahlequah and that afternoon about 4 o’clock they came to Tom Crittenden’s place in Katie’s car, a Ford V8, and took him to Hulbert, on the way stopping at Eaton’s mother’s place, then drove through Wagoner to Muskogee, arriving there about 9 o’clock that night, had ham sandwiches and coffee, then drove to Che-eotah, went around the town on a dirt road, and stopped at the last filling station east of town. There Ellis Eaton got out and told witness to> come along and show him where Jeff Davis lived. Then Eaton pulled a gun from under his shirt and stuck it in his belt. They walked along an old road to the house, and Eaton knocked on the door, Mr. Davis opened the door, Eaton spoke to him and ivalked in, Mr. Davis backed away, and witness started back to the gate, hearing a shot, ran back and looked in at the door; Eaton was standing with a gun in his hand and Mr. Davis was lying on the floor. Eaton came out and witness went back to the car with him, they got in and Eaton drove the car towards Gore, from there through Sallisaw to Fort Smith and on to Knoxville, Ark., arriving at Eaton’s sister’s home about day-light- Friday morning. That when he got in the caí» that afternoon, Katie was drunk and when they returned from Jeff Davis’ house she was asleep in the car. On the way to Gore, Eaton said, “I’ve killed me a man.”

Appellant, Katie Davis, as a witness in her own behalf, testified that she was the widow of Jeff Davis; that along in 1920 or 1921, she lived with Ellis Eaton about six or seven months; failing to keep his promise to marry her, she went back to live with her mother; her age at that time was 16 years; that four or five months after leaving him her child was born, but did not live very long; that Eaton left and was gone for about eleven years; that in 1926 she married Jeff Davis and lived with him in Che-cotah until the time of his death. In July, 1934, he filed a suit for divorce, a week or two later she met him in Muskogee, they talked things over and he said, “We’ll go on home together.” That in April, while visiting her parents, Ellis Eaton called at their home; stayed there but a few minutes. After that he would come there whenever she visited her parents, and she told him she did not want him around the place, that he ought to stay away; that her husband had given her a pistol for her protection; that she would stay with her parents two or three days, sometimes a week when her husband was away from home and would return to Checotah when he called her; that Eaton would come to' the house and beg, her to drive around town with him, that she always told him she did not want to go, that he would insist on her going, saying: “There ain’t but one thing I know to do if you don’t go- with me. You come go with me or I’ll get rid of you,” and he would ask her to come and live with him again and she always told him she would not. Eaton told her he was going to have her or he was going to kill Jeff Davis, and she said, “I would-n’t hurt Jeff for nothing in the world.”

That on Wednesday at 10 o’clock she left Checotah and drove to the home of her parents and that afternoon drove to the Ford garage and paid a bill and came out and found Ellis Eaton in her car; that she asked him to get out, he would not so she drove to the north part of town and left him there, and returned to her father’s. The next morning she drove downtown to1 a store and when she came out found Eaton in the car, he asked her where she was going and she told him she was going home to Che-cotah, he said, “Get in the car I’ll drive you over to' your Dad’s house”; when she got in the car he drove out of town two or three miles and stopped the car and forced her to take four or five drinks of liquor, and that is all that she remembers; that she does not remember driving through Hulbert or through Wagoner; that she remembers stopping some place, Muskogee or somewhere else, but does not remember going through Checotah, and does not remember Eaton and Bread getting out of the car or coming back; that the next thing she remembers was stopping at Eaton’s sister’s place in Arkansas just about daylight; that she was sick all day Friday and begged Eaton to bring her back. Eaton was reading a newspaper that day, and called his sister and said, “There is the man that he had killed,” then she saw it in the paper and she said, “What in the world made you do such a thing?” and that was the first time she knew anything about him killing Jeff.

On cross-examination she stated that she never did tell anybody that Eaton had threatened to kill her husband, because she did not think he meant it; that she had received letters from Ellis Eaton and had written letters to him once or twice. She was then handed a letter and asked what it was and answered, “I wrote this letter,” and against objection the letter was admitted in evidence and read to the jury, as follows:

“State’s Exhibit C
“Checotah, Okla., May 8, 1934.
“Dear Baby, I have good news to tell you when ever I see you. I no you like the plan we have and hope So anyway. But if I don’t come over this week I will be there first of the week Why I Said that We have Some Bill We got to pay by the 10th any way. I don’t want to move on Friday like you told me and I will look for letter from you Soon. I Sure do get lonesome Baby Say Baby will you addresses an letter in care of Mrs. Joe Golden in My Name please Because I may be gone Some these days when I received your letter. Someone may See. So please, Honey. I Still love you as all way.
“From your love one Katie To my Baby
Ellis Eaton
“Ans Soon Baby
“E Gentry is the Sreet I have told you.”

On redirect she testified this letter was never mailed to anybody. Asked what does it mean or what did she have in mind when yon say here, “I know you like the plan we have and hope so anyway,” answered, “We had a plan to go to Seattle, Washington in October.” “I had a plan to pick Ellis up and for him to drive and leave him up there to get him out of the way.” “That is what I had in mind.”

Appellant also admitted having made certain statements and admissions out of court on the 13th day of September, 1984, and stated she signed the written statement because the county attorney told her it would make it a lot easier on her. The material part of which statement is that she had been corresponding with Ellis Eaton and seeing him off and on for about two or three months; that she did not knoiv whether or not her husband had made a will; that she was with Ellis Eaton nearly all day Thursday, the 6th, and Scott Bread got in her car down on the street in Tahlequah late in the afternoon and Ellis Eaton drove west to Hulbert then through Wagoner; that they stopped a little while at Muskogee, then headed for Checotah. Then stopped close to the last filling station on the east side of town and Ellis Eaton and Scott Bread went from there to Jeff Davis’ house and she ivent to sleep in the car; that when they came back, Ellis Eaton said, “Let’s go,” and he headed towards Gore and Sallisaw and said they would go over to his sister’s at Knoxville. They arrived at Knoxville about daylight, and stopped at Ona-wake Smith’s, Ellis Eaton’s half sister, and stayed there until Saturday morning; that she was drinking pretty heavy that day; that the first time she ever heard Ellis Eaton talk about killing Jeff was about two weeks before it was done, when they were out on the east side of Tahlequah and she told him she would not hurt Jeff for nothing in the world, and he said that did not make any difference he was going to do it anyhow.

Some objections were made and exceptions taken to the rulings of the court in the admission of evidence.

It is insisted by counsel for appellant that the court erred in admitting in evidence the letter written by appellant and addressd to Ellis Eaton, which letter had never been mailed, nor delivered to, nor received by said Ellis Eaton; that said letter was therefore incompetent as tending to show that appellant had conspired with the said Ellis Eaton to effect the death of Jeff Davis, her husband.

On a trial for murder any evidence which fairly tends to prove a conspiracy between the persons accused to commit the murder and a motive for the murder is admissible.

A defendant who takes the witness stand in his own behalf waives his constitutional privilege of silence, and the prosecution has the right to cross-examine him upon his evidence in chief with the same latitude as would be exercised in the case of an ordinary witness, as to circumstances connecting him with the crime. Harrold v. Territory, 18 Okla. 395, 89 Pac. 202, 10 L. R. A. (N. S.) 604, 11 Ann. Gas. 818.

In the case of Radney v. State, 36 Okla. Cr. 240, 253 Pac. 913, 918, this court said:

“Generally speaking, when a defendant takes the witness stand in his own behalf, the right of cross-examination extends not only to the facts stated by him on his direct examination, but to all other facts connected with them, whether directly or indirectly, which tend to enlighten the jury upon the issues in the case.”

In Creek v. State, 16 Okla. Cr. 492, 184 Pac. 917, 919, this court said:

“When the defendant takes the witness stand in his own behalf, he is to be considered a witness for all purposes, and is subject to a proper cross-examination upon all matters material to the issues joined. If, on direct examination, he opens a certain subject for investigation, he cannot be heard to complain if on cross-examination questions are asked him, the answers to which would tend to limit, explain, or modify the testimony he has given in chief.”

It is also' insisted that the court erred in admitting in evidence “A purported confession of defendant Katie Davis.”

It appears from the record that when the written statement signed by appellant was offered in evidence, counsel for appellant objected; the jury retired from the courtroom, thereupon appellant as a witness in her own behalf testified that she signed the statement in the office of the county attorney; that Miss Whybark, the office girl, was present and took down the statement, and Mr. Coodey was there and they told her to answer the questions and tell the truth; and that she read it before she signed it.

Mere admission of inculpatory facts is not necessarily a confession; when a person only admits certain facts from which the jury may or may not infer guilt there is no confession.

A statement, declaration, or admission made by one accused of crime, explaining suspicious circumstances, for his own defense from which the jury may or not infer guilt, is not a confession and does not come within the rule that confessions must be voluntary to be admissable. Wilson v. State, 17 Okla. Cr. 47, 183 Pac. 613; Edwards v. State, 58 Okla. Cr. 15, 48 Pac. (2d) 1087.

In this case it appears that appellant made the statement, not for the purpose of conceding that she was guilty of murder, or with any view to1 confess her guilt, but in the line of a denial — not an expressed but an implied denial. However, the instructions given by the court included the law of confessions, correctly stated.

Applying the foregoing rules to the questions here presented, we are of opinion that the trial court did not commit error in admitting in evidence the letter in question or in admitting appellant’s written statement.

The remaining assignment of error is that “the court erred in refusing to grant a mistrial on motion of plaintiff in error.”

It appears from the record that during the progress of the trial before calling the last witness, counsel for appellant asked the court to have the jury retire. The jury being absent, he called the county attorney as a witness and on examination he elicited the fact that some fifteen days prior to the commencement of the trial the county attorney and one John Taylor, then sitting upon the jury, had taken a deer hunt together in the state of New Mexico. On cross-examination the state showed that neither this case nor any other case then pending in the district court of McIntosh county was discussed between Mr. White and Mr. Taylor, while they were on the deer hunt or at any other time.

Counsel for appellant being duly sworn testified:

“My name is Charles B. Freeman, attorney for Katie Davis. At the time of the examination of the jury in this case, I did not personally know Mr. Taylor. Neither did I know that he had been so intimate with the county attorney as to be with him for ten days on a deer hunt down in New Mexico within the last thirty days. Had I known this fact, I certainly would have stricken him from the jury. Now, in view of the foregoing, I move the court to order a mistrial in this case.”

This motion was denied. Exception reserved.

It is contended that such action of the court was prejudicial error.

Sections 2996 and 2997, O. S. 1931, provide the general and particular causes for challenge to jurors in criminal cases.

Section 2998 reads as follows:

“A challenge for implied bias may be taken for all or' any of the following causes, and for no other:
“First. Consanguinity or affinity within the fourth degree, inclusive, to the person alleged to be injured by the offense charged or on whose complaint the prosecution was instituted, or to the defendant.
“Second. Standing, in the relation of guardian and ward, attorney and client, master and servant, or landlord and tenant, or being a member of the family of the defendant, or of the person alleged to be injured by the offense charged, or on whose complaint the prosecution was instituted, or in his employment on wages.
“Third. Being a party adverse to the defendant in a civil action, or having complained against, or been accused by him in a criminal prosecution.
“Fourth. Having served on the grand jury which found the indictment, or on a coroner’s jury which inquired into the death of a person whose death is the subject of the prosecution.
“Fifth. Having served on a trial jury which has tried another person for the offense charged in the indictment or information.
“Sixth. Having been one of the jury formerly sworn to try the indictment or information and whose verdict was set aside, or which was discharged without a verdict, after the cause was submitted to it.
“Seventh. Having served as a juror in a civil action brought against the defendant for the act charged as an offense.
“Eighth. If the offense charged be punishable with death, the entertaining of such conscientious opinions as would preclude his finding the defendant guilty of, in which case he shall neither be permitted nor compelled to serve as a juror.”

In the case of Queenan v. Territory of Oklahoma, 11 Okla. 261, 71 Pac. 218, 61 L. R. A. 324, and on appeal to the Supreme Court of the United States, 190 U. S. 548, 23 S. Ct. 762, 47 L. Ed. 1175, the respective appellate courts held:

“The right of defendant to object that a juror was disqualified because it appeared during the trial that he had been convicted of a felony, contrary to his statement on his voir dire, is waived by failure to raise the question until after verdict.”

Under this rule the motion for a mistrial on the ground that the juror Taylor was incompetent ivas obviously in-, tended to preserve the right, if any, as one ground of a motion for a new trial.

It will be observed that the challenge under consideration as ground for a mistrial does not come within the terms of the statute. The law tenders to a defendant a jury for the trial of his case, and by accepting the jury he Avaives any objection thereto for bias either actual or implied in the mind of any of the jurors.

The purpose of examination of a juror on his voir dire is to ascertain whether there are grounds for a challenge for either actual or implied bias; also to enable the defendant to exercise intelligently his peremptory challenges.

The competency of a juror is, under the statute, a question to be determined by the trial court in the exercise of a sound discretion. The discretion given, however, is not intended to deprive the defendant of his right of trial by an impartial jury, and the statute cannot be regarded as changing in any degree the essential qualifications which jurors must possess. Temple v. State, 15 Okla. Cr. 176, 175 Pac. 733.

We are of opinion that the juror Taylor was not shown to be incompetent or disqualified as a juror.

In the case of State v. Carter, 121 Iowa, 135, 96 N. W. 710, the Supreme Court of Iowa held “that the relation of attorney and client between a venireman and the county attorney is no1 ground for challenge in a criminal case.”

In Decker v. Laws, 74 Ark. 286, 85 S. W. 425, it was held that the fact “that a juror is on friendly relations with one of the parties does not render him incompetent.”

In Scott v. Rues, 26 Misc. 834, 56 N. Y. S. 1057, it was held “that a juror has had business relations with the counsel of one of the parties does not render him incompetent.”

In the case of Mathews v. State, 19 Okla. Cr. 153, 198 Pac. 112, 113, this court held:

“The mere fact that a prospective juror is a depositor in the bank interested in the prosecution of the defendant will not disqualify such juror, where it is not shown that his business relations are such as might influence his verdict or cause the bank to oppress him or place him at the mercy of the bank.”

It follows there was no error in denying the motion for a mistrial, nor was there error in overruling on this ground the motion for a new trial.

One of the grounds of the motion for a new trial was that the evidence was insufficient to justify or support the verdict, in that it fails to show that appellant conspired with her eodefendant to murder her husband.

Our Penal Code, St. 1931, § 1808, provides:

“All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals.”

The statute abrogates the distinction between an accessory before the fact and a principal, and all who would be accessories before the fact at common law are to be charged, tried, and prosecuted as principals.

We have carefully considered all the testimony in the case, and we cannot resist the conclusion that the verdict was fully warranted by the evidence.

The instructions given by the court to which no objection was made or exception taken submitted the issue of murder and of manslaughter in the first degree and fully covered the law of the case.

A most careful review of the whole record satisfies us the trial was without material error.

A fair and impartial trial in which appellant’s legal rights were properly respected appears to have been accorded to her.

The judgment appealed from is therefore affirmed.

DAVENPORT, P. J., and EDWARDS, J., concur.


author: DAVENPORT, P. J.

text:
    ALBERT DOCKER v. STATE.
    No. A-8933.
    Oct. 25, 1935.
    (50 Pac. [2d] 762.)
    F. Leonard Sibel, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, for convenience hereinafter referred to- as the defendant, was convicted of burglary in the second degree, and his punishment fixed at imprisonment in the state penitentiary for two years.

The testimony of J. F. Shultz, on behalf of the state, is, in substance, as follows:

“I live at 1611 West Cleveland, Guthrie, Okla.; on the 6th day of September, 1933,1 had a store at 1718-West Noble, in Guthrie; when I came to open the store, I found a glass had been broken out of one of the windows; that a bed spring and board that had been nailed over the window as a shield to protect the window was partly down; I then investigated and found some of my rugs had been taken, among others was a congoleum rug; I notified the officers and later went with the police to the place of Mr. Bowen, who had my rug. Mr. Bowen gave a description of the rug to the officers and I later identified it. One rug that was taken was a 9x12, and one was 6x9. They were neAV Avhen taken, but secondhand when we found them, as they had been used.”

Further testimony showed that the defendant sold this rug to Mr. Bowen for $2.50 about 8 o’clock the night of September 6,1933. The defendant did not deny he sold the rug to Mr. Bowen. The defendant claims to have purchased the rug from one Curtis Ashworth for 50 cents. The defendant states he delivered the rug to Mr. Bowen about 5 o’clock in the afternoon. The defendant further in his testimony admits he had pleaded guilty to two felonies prior to this charge.

W. F. Wanzer, testifying, for the defendant, stated the defendant had worked for him for some time, and had alAAmys been reliable and trustworthy while working at his place.

The state offered testimony of the officers making the arrest shoAving that Mr. Bowen, some time after the rugs were taken, reported to them he had a rug he had bought from the defendant, and the officers went and examined the rug, and then called Mr. Shultz, from whose store the rug was taken, and identified the rug as one of the rugs taken from his store.

John Mahoney, chief of police, stated after they learned of the burglarizing of the Shultz store, on or about the 6th day of September, 1933, they investigated the case and arrested the defendant and had him at the police station; that Ashworth, the other boy they had arrested, was in jail in the city jail; after Docker was brought in they each told their story as to how they came into possession of this rug; neither of them admitted he was the one who' went into the building, but stated the rugs were taken out of the building and carried south on Fifth street, and up to the east end of town, and then over to Mr. Bowen’s home by Docker, the defendant. “The defendant told me just how it happened.” The other officers corroborated the chief of police in this statement. The only conflict in the testimony is that the defendant denied he went into the building and took the rug, but claims he bought it from Curtis Ashworth.

The defendant, in his first assignment of error, states that the court erred in overruling his motion for a new trial. An examination of the motion for a new trial discloses that the only ground set forth in the motion for new trial is that the verdict rendered and found is contrary to the law and evidence.

The defendant, in his petition in error, has assigned several errors alleged to have been committed by the trial court, but upon an examination of the record it discloses that he did not direct the court’s attention to these assigned errors by incorporating them in his motion for a new trial. An assignment not incorporated in a motion for a new trial that does not relate to any fundamental or jurisdictional question cannot be considered by this court.

This court has repeatedly passed upon the question as to its jurisdiction to' consider errors assigned, and has universally held that errors occurring during the trial, unless fundamental or jurisdictional, cannot be considered in this court unless they are incorporated in the motion for a new trial, and thereby submitted to the trial court, and its ruling thereon excepted to, and such ruling afterward assigned as error in this court. Ledgerwood v. State, 6 Okla. Cr. 105, 116 Pac. 202; Crump v. State, 7 Okla. Cr. 535, 124 Pac. 632; Stinchcomb v. Myers, 28 Okla. 597, 115 Pac. 602; Cardwell v. State, 20 Okla. Cr. 177, 178, 201 Pac. 817.

Only those assignments of error preserved in the motion for a new trial will be considered on appeal, unless the error is of fundamental character. Duncan v. State, 40 Okla. Cr. 347, 268 Pac. 998; Holloway v. State, 39 Okla. Cr. 88, 89, 263 Pac. 176; Ballew et al. v. State, 55 Okla. Cr. 247, 28 Pac. (2d) 993.

The evidence is sufficient to sustain the verdict. The defendant was accorded a fair and impartial trial. There are no fundamental or jurisdictional errors in the record. The jury was correctly instructed as to the law applicable to the facts. The case is affirmed.

EDWARDS and DOYLE, JJ., concur.


author: EDWARDS, J.

text:
    OSCAR C. FISHER v. STATE.
    No. A-8914.
    Oct. 25, 1935.
    (50 Pac. [2d] 754.)

      Toby Morris, for plaintiff in error.
    Mac Q.' Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   EDWARDS, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Cotton county of larceny of domestic fowls and his punishment fixed at a term of two and one-half years in the state penitentiary.

The record discloses that at the time charged there was stolen in the nighttime from the premises of George Gerber, Sr., 97 chickens. The larceny was discovered early the next morning, and the owner, with the assistance of other persons, tracked a car leading from the scene of the theft to the home of defendant’s'father in Comanche county, where they found the chickens. Forty-three of these chickens were distinctly marked by having the back toe cut off. The chickens were identified by the owner and members of his family. Defendant and one Holford were seen together in the neighborhood the afternoon before the larceny. The car belonging to defendant showed evidence of having been used to transport chickens. There are other circumstances tending to prove the guilt of defendant. Defendant did not take the stand, but it was agreed the father of defendant, if present, would testify the chickens in question were his property and raised by him. The claimed testimony of this witness was impeached by proof of statements made by him to the officers at the time the chickens were discovered at his premises. As is usual in a larceny of this kind, committed in the nighttime, the evidence is circumstantial; but clearly the facts proven are consistent with each other and inconsistent with any reasonable conclusion or hypothesis except that of defendant’s guilt. The facts and circumstances were such the jury could reasonably and logically arrive at a verdict of guilty. Penrod v. State, 38 Okla. Cr. 46, 258 Pac. 1052; Halsey v. State, 42 Okla. Cr. 221, 275 Pac. 405; Webb v. State, 54 Okla. Cr. 150, 16 Pac. (2d) 261.

The information is based on section 2276, Okla. Stat. 1931, and in addition to the allegation of larceny of domestic fowls, it further alleged they were of a value of $30. This, defendant contends, brings the charge under the general larceny statute, section 2256, Okla. Stat. 1931, and not under the special domestic fowl statute, section 2276. The state, however, treated the allegation of value as surplus-age and made no proof of value. The court instructed the jury under section 2276. There is some division in the authorities, but under the rule of this jurisdiction, the procedure was proper. Crowell v. State, 6 Okla. Cr. 148, 117 Pac. 883; Newcomb v. State, 23 Okla. Cr. 172, 213 Pac. 900.

Prior to 1929 the law made larceny or theft of domestic fowls a felony without regard to value; however it applied only to fowls stolen in the nighttime from the messuage of another. Section 2119, Comp. Stat. 1921. By chapter 20, § 1, Session Laws 1929, this statute was amended and became section 2276, Okla. Stat. 1931.

Just before entering on the trial, the state, by leave of court, amended the information by addition of the words, “* * * while acting conjointly and together with Will W. Holford * * *,” making the information read “* * * that Oscar C. Fisher, while acting conjointly and together with Will W. Holford, did then and there,” etc. This amendment, defendant argues, is of substance and defendant was entitled to additional time to plead. This is not tenable. The preliminary complaint contained this allegation but a severance was taken and the allegation in reference to Holford was dropped. The defendant only was on trial and the state might have proved the connection of Holford with the larceny without this amendment. No prejudice could have resulted. Our statute for amendment is liberal. Section 2830, Okla. Stat. 1931. The decisions of this court are also1 liberal. Sanditen v. State, 22 Okla. Cr. 14, 208 Pac. 1040; Wertzberger v. State, 25 Okla. Cr. 1, 218 Pac. 721; Chamblee v. State, 48 Okla. Cr. 337, 291 Pac. 143.

Defendant further argues that the court erred in his instructions Nos. 6 and 7. These instructions are applicable to the chicken stealing statute, section 2276, Okla. Stat. 1931, and the error complained of is that defendant insists the instructions should be under the general larceny statute, section 2256, Okla. Stat. 1931. .Since we hold the trial under section 2276 was proper and the allegation of value surplusage, it follows the instructions were proper.

Upon consideration of the entire record we perceive no material error.

The case is affirmed.

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


text:
    Ex parte HOWARD WAGNER.
    No. A-9016.
    Oct. 30, 1935.
    (50 Pac. [2d] 1135.)

      Howard Wagner, in pro. per.
    Mac Q. Williamson, Atty. Gen., and Smith 0. Matson, Asst. Atty. Gen., for respondent.
   DOYLE, J.

(after stating the case). In his petition for a writ of habeas corpus, Howard Wagner alleges that he is unlawfully imprisoned and detained in the state penitentiary, without authority of law, under a judgment of conviction entered in the district court of Osage county, for the offense of obtaining money by false pretenses, wherein he was sentenced to serve a term of three years in the state penitentiary, and to pay a fine of $6,600, and costs in the sum of $94; that the penitentiary sentence imposed by said district court has been fully served, in that the only valid sentence imposed upon the petitioner by said district court was confinement in the penitentiary for the term of three years. It is agreed that the term of confinement for three years had fully expired on December 17, 1934, and that the respondent warden is holding the petitioner in custody on the theory that thereafter he was serving time one day for every dollar of the fine and costs, until the same shall be satisfied.

In the recent case of Ex parte Autry, 58 Okla. Cr. 88, 50 Pac. (2d) 239, 241, the question herein presented in a somewhat different form was.considered by this court. The petitioner Autry, convicted of a felony, was sentenced to pay a fine of $1,500 and costs and ordered to be committed in the state penitentiary, “until said fine and costs are paid or time served for the same.”

It was held that the Legislature has full authority to define crimes and to prescribe punishments, and to determine where prisoners may be sent; and that the courts have no discretion as to the place to which criminals may be sentenced except as the Legislature gives it. The sentence is always imposed and received under and interpreted by the law to which it is subject.

The pertinent part of the opinion in the Autry Case is as follows:

“The office of the write of habeas corpus is to afford the citizen a speedy and effective method of securing his release when illegally restrained of his. liberty. Its scope, when directed to an inquiry into' the cause of imprisonment in judicial proceedings, extends to questions affect: ing the jurisdiction of the court and the sufficiency in point of laAv of the proceedings. Mere errors, or irregularities in a judgment- or proceeding of a court under and by virtue of which a person is imprisoned, which are not of such a character as to render the proceedings void, cannot be reviewed on an application for a writ of habeas corpus. Where a prisoner in custody under sentence of conviction seeks to be discharged on habeas corpus, the inquiry is limited to the questions whether the court in which the prisoner was convicted had jurisdiction of the person of the defendant and of the crime charged, and did the court have jurisdiction to render the particular judgment? Ex parte Grant, 32 Okla. Cr. 217, 240 Pac. 759; Ex parte Owens, 37 Okla. Cr. 118, 258 Pac. 758. * * *
“This leaves for our determination the question of the power and authority of the trial court to sentence a defendant convicted of a felony to imprisonment in the state penitentiary to enforce the payment of a fine and costs until the same shall be satisfied at the rate of $1 per day.
“The written law of this state makes no such specific provision. * * *
“Article 33, chapter 17, entitled ‘Execution of Judgment,’ provides:
“Section 3151. ‘When the judgment is imprisonment in a county jail, or a fine, and that the defendant be imprisoned until it be paid, the judgment must be executed by the sheriff of the county or subdivision. In all other cases when the sentence is imprisonment, the sheriff of the county must deliver the defendant to the proper officer, in execution of the judgment.’
“Section 3164. ‘When any poor convict shall have been confined in any prison for the space of six months, for non-payment of fine and costs only, or either of them, the sheriff of the county in which such person shall be imprisoned shall make a report thereof to any two justices of the peace for such county; if required by such justices, the said keeper shall bring such convict before them, either at the prison, or at such other convenient place thereto as they shall direct; the said justices shall proceed to- inquire into tbe truth of said report, and if they shall be satisfied that the report is true, and the convict has not had since his conviction any estate, real or personal, with which he could have paid the sum for the nonpayment of which he was committed, they shall make a certificate thereof to the sheriff of the county, and direct him to discharge such convict from prison and the sheriff shall forthwith discharge him.’
“Section 3166. ‘The fees herein provided * * * for the clerk of the district court, the clerk of the superior court, the clerk of the county court, the sheriff, the county attorney, the constable, and the justice of the peace, as provided in this act, and all costs in the prosecution of all criminal actions shall in case of conviction of the defendant be adjudged a part of the penalty of the offense of which the defendant may be convicted, whether the punishment for such offense be either imprisonment, or fine, or both, and fixed either by the verdict of the jury, or judgment of the court, trying the case, and the payment of such fees and costs in addition to the payment of the fine assessed, shall be enforced by imprisonment until the same shall be satisfied, at a rate of one dollar per day of such fees and costs, or fine, or both, whether the defendant shall perform labor on the public road or highway, or remain in prison.7
“Under the statute, when a judgment is payment of a fine and costs, the court has power and authority to enforce the payment of same by imprisonment of the defendant in the county jail, until the fine and costs are satisfied, and prescribing the rate per day for determining the period of imprisonment for the nonpayment of the same. The payment of the fine and costs is the punishment. The commitment until the fine and costs are paid or satisfied is no part of the punishment, it is the mode of executing the sentence; that is, of enforcing the payment of the fine and costs of prosecution. The power of the court to order a defendant adjudged to pay a fine and costs is not confined to cases- where a fine only is imposed, but also extends to cases where both confinement and a fine are imposed as a punishment and includes the power to add to such fine the costs of prosecution.
“When the place of imprisonment is not specified in the law to be the state penitentiary, such imprisonment cannot be enforced in the penitentiary. To an imprisonment in the penitentiary infamy is attached.
“Our penal code provides:
“ ‘A sentence of imprisonment in the state prison for any term less than for life, suspends all the civil rights of the person so sentenced, and forfeits all public offices, and all private trusts, authority or power, during the term of such imprisonment-.’ Section 1813, St. 1931.
“The fundamental law of the United States and of the state of Oklahoma alike prohibit the taking of the citizen’s life, liberty, or property, unless by the judgment of his peers, or the law of the land.
“ ‘Judgment of his peers,’ is a term of expression borrowed from Magna Charta, and it means a trial by jury; the words ‘or law of the land’ have the same origin and are to the same effect as ‘due process of law’ in the Bill of Bights, Constitution, art. 2, § 7, declaring that:
“ ‘No person shall be deprived of life, liberty, or property, without due process of law.’
“It means judgment of the law in its regular course of administration through courts of justice.
“The terms ‘law of the land’ and ‘due process of law’ are synonymous, and mean that every citizen shall hold his life, liberty, and property under the protection of the general rules which govern society. Sutton v. State, 35 Okla. Cr. 263, 250 Pac. 930.
“ ‘Due process of law,’ as used in the Bill of Bights, § 7, supra, is intended to protect the citizen against arbitrary action, and to secure to all persons equal and impartial justice.
“The Legislature has the power under the state Constitution to define crimes and prescribe punishments, and to provide as the punishment for violations of the law defined as felonies the payment of fines and confinement in the penitentiary, and to provide for the enforcement of the payment of the same by further confinement after the imprisonment part of the sentence has been served.
“Punishment for crime is not restricted to the deprivation of life, liberty, or property by due process of law, but also embraces deprivation or suspension of political or civil rights. The enactment of section 1813 above quoted, was in the proper exercise of this power.
“No one would deny the proposition thai a person cannot be taken to the state penitentiary, and detained there as a punishment without an accusation, trial by jury, conviction, and sentence in the due and orderly course of law. Nothing less than these forms would amount to due process of law, when an infamous punishment is to be imposed. No one would deny that such an act, done by the state, would be in direct defiance of the Constitution. When a defendant convicted in the due and orderly course of the law is adjudged to- pay a fine and costs and the court in execution of the sentence orders the defendant To be taken to the state penitentiary at McAlester, Oklahoma, to be incarcerated in said penitentiary until the said fine and costs are paid or time served for the same,’ such imprisonment would be another and separate punishment. The very statement of the proposition would seem to be its proof, and such imprisonment would not be due process of law. In such a case due process of law requires that a defendant shall not be subjected to a punishment infamous in character to enforce the payment of a fine and costs or until the same is satisfied. Upon the record before us it appears that petitioner had imposed upon him another and separate punishment of an infamous - character, with the jury fixing only a fine.
“In the case of In re Bonner, 151 U. S. 242, 14 S. Ct. 323, 326, 38 L. Ed. 149, Mr. Justice Field, speaking for the court, said:
“ ‘When the jury have rendered their verdict, the court has to pronounce the proper judgment upon such verdict; and the law, in prescribing the punishment, either as to the extent or the mode or the place of it, should be followed. If the court is authorized to impose imprisonment, and it exceeds the time prescribed by law, the judgment is void for the excess. If the law prescribes a place of imprisonment, the court cannot direct a different place not authorized. It cannot direct imprisonment in a penitentiary, when the law assigns that institution for imprisonment under judgments of a different character. * * *
“ ‘The prisoner is ordered to be confined in the penitentiary, where the law does not allow the court to send him for a single hour. To deny the writ of habeas corpus in such a case, is a virtual suspension of it; and it should be constantly borne in mind that the writ was intended as a protection of the citizen from encroachment upon his liberty from any source, — equally as well from the unauthorized acts of courts and judges as the unauthorized acts of individuals.
“ ‘The laws of our country take care, or should take care, that not the weight of a judge’s finger shall fall upon any one, except as specifically authorized. A rigid adherence to this doctrine will give far greater security and safety to the citizen than permitting the exercise of an unlimited discretion on the part of the courts in the imposition of punishments, as to their extent, or as to the mode or place of their execution, leaving the injured party, in case of error, to the slow remedy of an appeal from the erroneous judgment or order, which, in most cases, would be unavailing to give relief.’
“This court is of the opinion that for the reasons stated the trial court had no power, authority, or jurisdic-ion under the law to sentence petitioner to confinement in the state penitentiary, in execution of the sentence of fine and costs to enforce the payment of the same.”

In the case of Ex parte Wilson, 114 U. S. 417, 5 S. Ct. 935, 940, 29 L. Ed. 89, Mr. Justice Gray speaking for the court said:

“For more than a century, imprisonment at hard labor in the state prison or penitentiary or other similar institution has been considered an infamous punishment in England and America.
“Among the punishments ‘that consist principally in their ignominy,’ Sir William Blackstone classes ‘hard labor, in the house of correction or otherwise,’ as well as whipping, the pillory, or the stocks. 4 Bl. Comm. 377. And Mr. Dane, while treating it as doubtful whether confinement in the stocks or in the house of correction is infamous, says, ‘Punishments, clearly infamous, are death, gallows, pillory, branding, whipping, confinement to hard labor, and cropping.’ 2 Dane, Abr. 569, 570.
“The same view has been forcibly expressed by Chief Justice Shaw. Speaking of imprisonment in the state prison, which by the statutes of Massachusetts was required to be at hard labor, he said: ‘Whether we consider the words “infamous punishment” in their popular meaning, or as they are understood by the Constitution and laws, a sentence to the state prison, for any term of time, must be considered as falling within them. The convict is placed in a public place of punishment, common to the whole state, subject to solitary imprisonment, to have his hair cropped, to be clothed in conspicuous prison dress, subjected to hard labor without pay, to hard fare, coarse and meager food, and to severe discipline. Some of these a convict in the house of correction is subject to; but the house of correction, under that and the various names of work-houses and bridewell, has not the same character of infamy attached to it. Besides, the state prison, for any term of time, is now by law substituted for all the ignominious punishments formerly in use; and, unless this is infamous, then there is now no infamous punishment other than capital.’ Jones v. Robbins, 8 Gray [Mass.] 329, 349. In the same case, Mr. Justice Merrick, while dissenting from the rest of the court upon the question whether under the words ‘the law of the land’ in the Constitution of Massachusetts an indictment by a grand jury was essential to a prosecution for a crime punishable by imprisonment in the state prison, and taking a position upon that question more accordant with the recent judgment of this court in Hurtado v. California, 110 U. S. 516, 4 S. Ct. 111 [28 L. Ed. 232], yet concurred with the other judges in holding that such imprisonment at hard labor was an infamous punishment. [Jones v. Robbins] 8 Gray [(Mass.) 329] 370-372.
“Imprisonment at hard labor, compulsory and unpaid, is, in the strongest sense of the words, ‘involuntary servitude for crime,’ spoken of in the provision of the ordinance of 1787, and of the thirteenth amendment of the Constitution, by which all other slavery was abolished.”

The Constitution of our state designed as a bulwark against the power of oppression is broad enough to accomplish its purpose. The Bill of Rights forming a part of our fundamental law embraces a number of declarations of principles calculated to protect the people in the full enjoyment of civil liberty, as against the acts of the government, one of which is that excessive fines shall not be imposed, nor cruel or unusual punishments inflicted.

The highest function of this court is to pass upon constitutional questions involving the life and liberty of the citizen. The Legislature has full authority to provide prisons, and to determine where prisoners may be confined ; and the courts have no* discretion as to. the place or prison to which criminals may be sentenced except as the Legislature gives it. In the exercise of this authority the Legislature has enacted article 33, chapter 17, of our Code of Criminal Procedure entitled, “Execution of Judgment,” and have provided that the payment of fines and costs adjudged against a defendant shall be enforced by imprisonment in the county jail until the same shall be satisfied or the' prisoner otherwise discharged as provided by law.

The judgment and sentence in this case is as follows:

“It is therefore, hereby considered, ordered, adjudged and decreed by the court that the said Howard Wagner be committed to and be imprisoned in the state penitentiary at McAlester, in the state of Oklahoma, and confined in said penitentiary for the term of three years for said offense of obtaining money under false pretenses and pay a fine of $6,600, said term of sentence to begin at and from date of delivery to warden, and that said defendant pay the cost of this prosecution taxed at $94 for which judgment is hereby rendered against the said defendant; and thereupon the defendant is by the court notified of his right of appeal.”

It will be observed that the judgment and sentence is silent as to the enforcement of the payment of the fine and costs, and in that respect it is a correct and proper form of judgment, for the sentence is always imposed and received under and interpreted by the law to which it is subject. The court and the prisoner act with the knowledge of this fact, and must be presumed to understand that there is an existing law for the enforcement of payment of the fine imposed and the costs of the prosecution.

The questions presented in the case at bar have been determined and decided in the Autry Case holding that the imprisonment of a defendant by the warden of the state penitentiary to enforce the payment of the fine and costs is without authority of law.

It appearing from the admitted facts of the record that the sentence of confinement in the penitentiary for the term of three years has been fully served and expired oh December 17, 1934, and that petitioner has been unlawfully imprisoned and detained without authority of law by respondent since such expiration and is entitled to be forthwith released and discharged from the imprisonment of which he complains, he is therefore by the judgment of this court discharged therefrom, and it is ordered that respondent be, and he is hereby, directed to forthwith discharge and release said Howard Wagner.

Writ granted; petitioner discharged.

DAVENPORT, P. J., concurs. EDWARDS, J., not participating.


text:
    LEE BALDOCK v. STATE.
    No. A-8927.
    Nov. 1, 1935.

      (50 Pac. [2d] 1131.)
    A. Wayne Billings and M. H. Gordon, for plaintiff in error.
    •Mac Q. Williamson, Atty. Gen., and Smith 0. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Lee Baldock, herein referred to as the defendant, was convicted of manslaugh ter in the first degree on an information filed in the district court of Woodward county, August 6, 1984; wherein it was charged that the said Lee Baldock in said county, on the 31st day of July, 1934, did kill and murder one Roy Nettles, by shooting, him with a pistol.

In accordance with the verdict returned by the jury, the court, on December 12, 1934, rendered judgment and sentenced the defendant to imprisonment in the penitentiary for a term of 35 years. From the judgment, the defendant appeals.

In order to present the questions raised as to the sufficiency of the evidence, and by exceptions taken to the instructions, we will briefly state the facts, also excerpts, from the testimony of the witnesses.

It appears from the evidence that Roy Nettles and his wife lived at the home of his mother-in-law, a two-room house facing east at Twelfth and Jackson, in the city of Woodward. The defendant lived at Henryetta, but had been visiting his uncles Jim and Bud Slaughter in Woodward, for about a month.

That in the forenoon of the 31st day of July, 1934, the defendant and two or three others were at the home of the deceased drinking beer, and in the afternoon of that day these parties returned to the home of the deceased and Jimmie Heekin and Bob Hamilton had a scuffle or fight in the house. About 3 o’clock all the parties left the place. The deceased with Jimmie Heekin returned to his home that afternoon about half past five. The deceased was lying on a bed in the front room and Jimmie Heekin was sitting on a trunk when the defendant Baldock entered the front door and shot Roy Nettles three or four times with a Smith & Wesson pistol.

Jimmie Heekin testified that Lee Baldock came in and said to Boy, “Yon think yon are a tongh son-of-a-bitch, don’t yon,” and Boy said, “No, I don’t pretend tO' be.” Baldock said, “Well, we had just as well get this trouble oyer with,” and commenced to shoot. That each time Nettles raised up on the bed the defendant shot him; winess said, “Man, don’t kill him,” and the defendant turned and struck witness over the head with the gun and left, with Jim Slaughter and William Croy, who- were standing in the door when the defendant fired the shots. Boy said, “Take me to the hospital,” and he helped him up and out into the car and took him to the Woodward Hospital. He further testified that he saw a pistol under the bed there that morning and when he returned from the hospital with the sheriff he found the pistol in the same place he had seen it that morning.

Doctor C. B. Silverthome testified that Boy Nettles was received at the hospital at 5:50 p. m., that he found four gunshot wounds in the region of the heart and lungs, causing internal hemorrhage resulting in death within three hours. That the patient asked his opinion and he told him he could not recover, and knowing he was about to die made a statement saying:

“A man came in the house, walked up to the bed and said something like, ‘You are a tough guy,’ and he said, ‘I don’t know as I am,’ and he said, ‘We had just as well settle this right here, hadn’t we?’ and he said, ‘I guess we had,’ and as he started to get up off the bed the other party began shooting. The deceased said that his gun was lying under the bed.”

William Blevins, sheriff, testified that he was called to the hospital and found the doctors examining Boy Nettles; from there with Jimmie Heekin he went to the Hamilton house and from there to Jim ¡Slaughter’s house; there Boh Hamilton got in the car and said the defendant was down at the Katie roundhouse; he found him there, arrested him, searched him, and found about a pint of whis-ky on him, and then placed him in jail. That the gun Jimmie Heekin brought from the Hamilton home was an automatic .32, that it was loaded, 7 shells in the magazine and one in the barrel, and he could not observe evidence of any burnt powder.

At the close of the state’s evidence in chief, the defendant asked the court to advise the jury to return a verdict of not guilty, on the ground that the evidence does not warrant a conviction.

The defendant, as a witness in his own behalf, testified that he lived at Henryetta, but had been visiting his two uncles, Jim and Bud Slaughter, for about a month. That he had been drinking beer in the forenoon at Roy Nettles’ home with Blackie Heekin and Bob Hamilton, and that afternoon he was drinking beer there again with them, and Kenneth McCutcheon came in; then Roy Nettles came in with an automatic pistol in his belt. Bob Hamilton and Blackie Heekin were fighting, and when Bob hollered, '‘‘Enough,” Roy Nettles pulled his pistol out and said, “Go ahead and kick his head off”; then Kenneth McCutcheon and. Roy Nettles went out the back door. “McCutcheon came back and told us we had better leave, that Roy Nettles was coming in and would' kill us all, and they all left the place.” About two hours later Bob Hamilton came to Jim Slaughter’s drunk and had a .38 revolver; that he took the gun from Hamilton and said, “Bob you stay here and sleep and sober up,” and Bob said, “Give me that gun and I will get some whisky,” and he said, “No I want you to stay here tonight and straighten up and I will go and get you a drink some place.” That he then went to the Hamilton house; Boy Nettles was on the bed, and be said, “Roy I want to buy a pint of whisky,” and Boy got the whisky, that he told him, “We have Bob over there to straighten him up and he will stay with me,” and Boy said, “Damn you, are you going to straighten up this trouble, we will just settle it now,” and grabbed his gun; that he does not know which fired the first shot; that Nettles dropped over on his face and Blackie Heekin reached over to pick up his gun and witness hit him on the head. That Jim Slaughter and William Croy came there shortly after the trouble; “that the reason he shot Boy Nettles was because he grabbed his gun to shoot me.”

On cross-examination he admitted that he had been convicted at Kansas City, Mo., on the charge of larceny from the person.

William Croy testified that the defendant is his stepson ; that he was at the Hamilton place when Bob Hamilton and the Heekin boy had a fight between 2 and 3 o’clock that afternoon. That they were all drinking. Later Bob Hamilton came to Jim Slaughter’s. That when Lee Baldoek left Jim Slaughter’s house, Mrs. Slaughter said, “You had better go down there they may have some trouble,” and with Jim Slaughter he followed him to the Hamilton house. That he was at the porch when the last shot was fired, stepped in and grabbed Lee and started dragging him off down the road, and before leaving saw the automatic lying, between Nettles’ feet, as he was crouched about half way up on the bed.

Jim Slaughter testified that William Croy and Lee Baldoek were guests at his home in Woodward. That Bob Hamilton came to his place that afternoon and was carrying a gun and he talked him out of the gun and a little later gave it back to him. That Lee Baldoek then talked to him and finally got possession of the gun; that Hamilton was drunk and was demanding another drink; Baldock said he would get him one there, and Hamilton went into the house and Baldock started away; then he followed him, and Mr. Croy came out of the house and followed witness. That he had just stepped on the porch when the shooting took place and he saw Roy Nettles, Lee Baldock, and Blackie Heekin in the room. That he saw Lee Baldock standing with a gun in his hand and Roy Nettles standing beside the bed with a gun in his hand. They were probably three feet apart; that as he went in the shooting started, and Roy Nettles kind of settled down and the gun dropped from his hand. That the Heekin boy was sitting on a trunk and appeared to be drunk; that he reached over on the floor for something, and Baldock turned around and hit at him.

Several witnesses testified that they had carefully examined the walls and ceiling of the room where the shooting occurred, but were unable to discover evidence of any shot on the part of the deceased or bullet marks of any kind.

The theory of the prosecution is that it was a deliberate, wanton murder; the theory of the defense was justifiable homicide in self-defense.

The first and second asignments of error are that the verdict is contrary to law and unsupported by the evidence. It is a sufficient answer to the contentions made to say that the testimony tended strongly to prove that the killing was premeditated and deliberate, and taking the testimony of the defendant, he is guilty of manslaughter in the first degree upon his own statement. We think the evidence was sufficient to support a verdict for the crime charged. Fortunately for the defendant, the jury, in mercy, or in a mistaken view of the law, or the facts, found Mm guilty of manslaughter in the first degree. Thig the jury had a right to do.

The same question is raised in several assignments of error based upon exceptions taken to certain instructions ,given by the court.

And it is insisted that the court erred in failing to instruct the jury on the law of self-defense.

The court of its o wn motion gave seventeen instructions, and it appears that counsel for the defendant presented no request for instructions.

In the defendant’s brief, it is said:

“There was no request made for an instruction on the issue of self-defense, but this court has held that it is the duty of the trial court, where there is any evidence of self-defense, to instruct the jury thereon, and that a failure to do so constitutes reversible error.” Citing Collegenia v. State, 9 Okla. Cr. 425, 132 Pac. 375.

The distinction between the Collegenia Case and this case is that in the Collegenia Case no instruction whatever was given on the issue of self-defense.

The court gave the following instruction defining self-defense as applicable to. the evidence, in the words of section 2237, O. S. 1931:

“VIII. You are instructed that homicide is justifiable when necessarily committed in the lawful defense of one’s own person, or of his or her husband, wife, parent, child, master, mistress, or servant, when there is a reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and there is imminent danger of such design being accomplished.”

The court instructed the jury upon the presumption of innocence of the defendant, the doctrine of reasonable doubt, and that Ms plea of not guilty placed upon tlie state the burden of proving, the allegations of the information, and each and every material part thereof, to their satisfaction, beyond a reasonable doubt.

We do not think that there is any merit in the contentions made. The instructions as a whole embody the law as applicable to the case, and they contain no such erroneous statement of the law as was likely to mislead the jury. Where counsel for a defendant believe that the instructions of the court should more definitely or fully state any proposition embraced in the charge, it is the duty of counsel to prepare and present to the court a correct and complete instruction, and request that it be given, and in the absence of such request this court will not consider an objection that an instruction, correct as far as it goes, does not fully state the law, or that the court failed to instruct upon any given proposition, where the instructions, considered as a whole, embody the law applicable to the case. Merriott v. State, 18 Okla. Cr. 247, 194 Pac. 263; Fitzsimmons v. State, 14 Okla. Cr. 80, 166 Pac. 453; Dickson v. State, 26 Okla. Cr. 403, 224 Pac. 723.

The case appears to have been fairly tried, and submitted to the jury by instructions, not only free from reversible error, but free from reasonable criticism.

The judgment appealed from must therefore be, and it is, affirmed.

DAVENPORT, P. J., and EDWARDS, J., concur.


author: DAVENPORT, P. J. EDWABDS, J.

text:
    DICK TAGGART v. STATE.
    No. A-8929.
    Nov. 8, 1935.
    (50 Pac. [2d] 1134.)
    (53 Pac. [2d] 102.)
    Dissenting Opinion Nov. 21, 1935.
    Owen F. Renegar, for plaintiff in error.
    ■Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of having possession of about three gallons of intoxicating liquor, and was sentenced to be imprisoned in the county jail for ninety days, and to pay a fine of $250.

The testimony in this case is brief on behalf of the state. The officers said they had a search warrant, but they do not say for what property it authorized them to search; they do state they went and searched a room at 117 West Noble street, in Oklahoma City, Okla.; they admit there was no one in the room at the time; the door was locked and they broke the hasp, and in the room they searched they found about three gallons of whisky. The defendant was not in the room. There is no testimony showing he was seen in possession of the room. Some of the officers said they had information that the defendant had the room.

A witness for the state, W. E. Agee, stated:

“I talked with the woman at the building who said she was renting* rooms to different parties; I do not know who she was; I did not serve her with a copy of the search warrant.”

The woman mentioned by the witness for the state was not called as a witness to show tO' whom she had rented the room. The testimony discloses there were a number of rooms in the building, and this was one of the rooms having a door opening from this room to another room which was locked and barred, at the time the officers claim this search was made. There is no testimony showing that after they broke the lock and searched this room that they posted a copy of the search warrant. One of the parties claimed that he saw a copy of the search warrant in the sink in the room they searched. ¡Some of the officers claim they had a conversation with the defendant, after he was arrested, in which he said he was just selling, a little whisky.

The defendant testified in his own behalf and denied the key the officers took from him was a key for the lock the officers claim was on the door and presented the lock he claimed the key they took from him belonged to; he also denied he had anything to do with the room the officers claimed to have searched; that he did not own or have any interest in the whisky found therein, and that he did not make any statement to the officers while under arrest that he was selling any whisky, or that it was his room. He positively denied the statements made by the officers with reference to the room and whisky, the selling of the whisky, and the key to the lock the officers claim was on the door. The state did not offer any rebuttal.

The defendant insists that the court erred in overruling his motion for a new trial, and insists that the evidence is insufficient to sustain a conviction.

The only statement introduced by the state in attempting to show the defendant’s connection with this building is a conversation some of the officers allege they had with the defendant after he was arrested. The defendant positively denies he had a conversation with the officers after he was arrested as to the room they claim to have searched or the whisky found; but if such conversation was held it was an extrajudicial confession, and this court has often held that you cannot prove the corpus de-licti by an extrajudicial confession.

In Blakemore v. State, 39 Okla. Cr. 355, 265 Pac. 152, this court in the first paragraph of the syllabus said:

“The corpus delicti in a criminal case cannot be established by the confession of the defendant alone. There must be independent evidence, either direct or circumstantial, of the corpus delicti before a conviction can be had.” Cherry v. State, 33 Okla. Cr. 37, 241 Pac. 833; Boggess v. State, 46 Okla. Cr. 283, 287 Pac. 764.

To establish the guilt of an accused of a criminal charge, it is necessary that two' distinct propositions be proven: First, that a criminal act has been committed, usually designated as corpus delicti; second, that the guilt of such act attached to the particular person charged with the commission of the offense. Coppler v. State, 52 Okla. Cr. 275, 4 Pac. (2d) 700.

The evidence is insufficient to sustain the conviction, and the motion for a new trial should have been sustained. The case is reversed.

DOYLE, J., concurs. EDWABDS, J., dissents.

EDWABDS, J.

(dissenting). I find myself unable to agree with the majority opinion. The case is reversed on the sole ground that the evidence is insufficient. The rule announced by many decisions of this court is that where there is any competent evidence from which a jury may reasonably and logically find a verdict of guilty, this court will not disturb the judgment on the ground of insufficient evidence. White v. State, 13 Okla. Cr. 76, 162 Pac. 232; Parks v. State, 18 Okla. Cr. 277, 194 Pac. 281. We find the following testimony in the record: J. R. Orrell, a police officer, testified:

“Q. Do you know the defendant Dick Taggert? A. Yes, sir. Q. How long have you known him? A. I imagine, about a year and a half. Q. I will ask you if on or about the 22nd day of May, 1934, you had occasion to go to his premises on West Reno? A. Yes, sir. Q: West Reno, was he there? A. No, not at that place. Q. Where was he? A. 527 West Washington is where we found him. * " * Q. Did you have a conversation with Dick about the place? A. As we drove up he said, ‘You are just a little too late.’ Q. Just what did he say as to being, too late? A. He wouldn’t tell. Q. Did you have any conversation with him as to what his business was? Mr. Renegar: Objected .to unless the officers informed him that any statements he might make would be used against him. The Court: Overruled. Mr. Rennegar: Exception. A. He told us that he was selling a little whisky, and just trying to get along.”

W. E. Agee, deputy sheriff, testified to the seizing of three gallons of whisky at the place.

George Kerr, a deputy sheriff, testified of assisting in the search and seizure of the whisky then as follows:

“Mr. Daugherty: When the officers brought this man to the sheriff’s office, did you have a conversation with him? A. Yes, he said it was his room down there and that the whisky belonged to him.”

Then defendant’s counsel brought out on cross-exam- . ination that defendant had just left the place before the search was made.

Defendant was the only one who testified in his behalf. He admitted previous convictions under the liquor law. I am of the opinion the evidence amply sustains the judgment, and for that reason I dissent.