text:
    MARVIN HUNSANER v. STATE.
    No. A-10511.
    Dec. 12, 1945.
    (164 P. 2d 404.)

      Clayton Carder and Finis C. Gillespie, both of Hobart, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and E. J. Broaddns, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Marvin Hunsaker, was charged, in the district court of Kiowa county with the crime of grand larceny; was tried to a jury, who returned a verdict of guilty but left the punishment to the discretion of the trial court; the court, thereupon, sentenced the defendant to' serve a term of three years’ imprisonment in the State Penitentiary, from which judgment and sentence this appeal was taken.

The first assignment of error is that the evidence is insufficient to show that defendant was guilty of the commission of the offense charged in the information. This assignment of error is directed to two propositions.

First, it is contended there is not sufficient proof of want of consent of the owner to the taking of the property.

Second, it is contended there is no substantial testimony identifying the property found in possession of defendant as that of the alleged owner, Bill Shwen.

The information alleged that the defendant committed the crime of grand larceny on or about September 15, 1943. The property stolen consisted of various automotive tools, most of which were described in the information, of the approximate value of $200, which tools belonged to one Bill Shwen, but were in the possession and control of his mother, Mrs. Annie Shwen.

At the time of the alleged theft, Bill Shwen was in the military service of the United States. He had left Ms tools, wliicb had considerable value, in the dwelling house of his mother.

Mrs. Annie Shwen testified that while she was on a visit to Mineo, between the 10th and 18th of September, her house was entered and the tools belonging to her son were taken; that she didn’t give anybody permission to take the tools. She described the tools which were stolen. Later, after the sheriff and other officers had testified concerning the finding of certain tools in the possession of the defendant, Mrs. Shwen was recalled and testified that the tools which the sheriff had identified as being the ones found in the possession of the defendant and one Greenwood were the tools which belonged to her son. Some of these tools were marked with the letter “S” and on some of them the letter “S” had been removed by filing.

W. P. Dugan, sheriff of Kiowa county, testified that he was advised of the theft of the tools and chest which belonged to Bill Shwen; that he received information that Bob Greenwood had some tools of that description; that he went to Greenwood’s and got the tools and, after talking to Greenwood, he went to the iceplant to talk to the defendant, Marvin Hunsaker. That the defendant told him that he let Mr. Greenwood have the tools and that the defendant claimed in that conversation that the tools were purchased by him. Upon inquiry by the sheriff, the defendant said that he did not know the man from whom he had purchased the tools and that there was nobody present when the purchase was made. That he placed the defendant under arrest and searched a locker at the iceplant which belonged to the defendant and found several other tools which were brought into the courtroom and identified by the witness. (Most of these tools were the ones which were later identified by Annie Shwen as belonging to her son.)

J. M. White, deputy sheriff, testified that after Marvin Hunsaker was placed in jail that he had occasion to talk to him. In his testimony, the witness stated:

“A. Marvin asked to talk to me, asked me if I would go out in the hall with him. So I did. And he said that I had befriended him in a case before where we questioned him, and on being in the penitentiary before.— Mr. Carder: We move to strike that evidence as being highly prejudicial, pertains to no issue in this case, and generally incompetent, irrelevant, and immaterial. The Court: Strike that about — the last part about him being in the penitentiary. The jury won’t consider that. * * * A. And he asked me what he should do, that he thought I had been a friend to him, and told him the truth in the other case. And he asked me what should he do, plead guilty or try to beat it.”

Bob Greenwood testified that he is a maintenance man for the Southwest Ice & Central Dairy Products Company. That in the latter part of September, 1943, he was living in Oklahoma City, but that a short time after that date he moved to Hobart. That the defendant, at the time of his arrest, was employed by the same company for which the witness is employed. That in the latter part of September, the defendant gave him a toolbox to be used by him in moving feed from Oklahoma City. That the defendant, at that time, told him to take it and have it painted and he could use it. That after he moved to Hobart, the defendant asked him what he had done with the box and the defendant told him that the box might be hot and for him to get rid of it. That after this conversation with the defendant, he became suspicious of the tool-box and went to one of the officers of Kiowa county and told him of the conversation with the defendant. That the tool box had a value of $40 or $50.

Mitch Hill testified that he was deputy sheriff of Kiowa county. That he accompanied the sheriff to the building where the defendant worked to make his arrest. The witness, then, identified certain tools which were in the courtroom as the tools which were in the defendant’s possession at the time of his arrest.

Julius Jones testified that he worked at the ice plant with the defendant. That he saw the defendant with certain of the tools which were in the courtroom, in the latter part of September. That the defendant came to him and wanted him to swear that he (the witness) saw defendant buy the tools from one Tuscon. That at the request of the defendant, he went to the office of the defendant’s attorney and gave him a written statement that he saw the defendant buy the tools from Tuscon. That the statement was false, as he had never seen defendant buy any tools. However, he further testified that he never at any time told counsel for defendant that the written statement which he gave was false. That he was a friend of the defendant and, at the time of his arrest, thought he was innocent and wanted to do something to help him out.

Alford Shackleford testified that he worked at the ice plant with the defendant. He testified that he had seen certain of the tools, which were in the courtroom, in the possession of the defendant at the ice plant. That, when the officers came to the ice plant to arrest the defendant, the defendant came to him and wanted him to dispose of some tools and dies and thread cutters that he had there at the ice plant, but that he never had a chance to dispose of them. That, later, the defendant came to Mm and asked Mm to go with him to his lawyer’s office and give a written statement that he saw the defendant purchase certain tools from one Tuscon. That he went to the office of counsel for defendant and did give him a Avritten statement to that effect, but, however, the statement was false, as he never did see the defendant purchase the tools. The witness further testified that he had spent the night in jail. That Avhen the defendant’s case Avas set for trial, he left the county because he did not want to testify. That he Avas arrested at Lubbock, Tex., by the officers and placed in jail.

Raymond Burton testified that he worked for the ice company at Hobart. That certain of the tools which were in the courtroom had been taken from him by the officers. That the tools Avith red paint on them, which Avere taken from the witness, were tools Avhich he got from the defendant, Marvin Hunsaker. That the defendant came to him after charges had been filed against defendant and wanted the witness to testify that he had seen the defendant buy the tools from another person, but that he refused to be a Avitness for the defendant. This Avitness also had given a written statement to counsel for defendant which was not quite so strong as the statement' given by the other two Avitnesses, but in the statement, the Avitness said that he saw a man bring some tools to the ice plant where Marvin Hunsaker Avorked, but that he did not see Marvin buy the tools. The Avitness further testified that the identification marks on the tools had been filed off by the time he saw them and that Marvin told him to mark them with red paint.

The defendant did not testify and offered no evidence in his behalf.

The defendant contends that the state failed to prove want of consent of the owner, Bill Shwen, to the taking of the property.

Want of consent of the owner may be proved by circumstantial evidence. Fuller v. State, 70 Okla. Cr. 408, 106 P. 2d 832; Coffey v. State, 29 Okla. Cr. 168, 232 P. 968; Devore v. State, 33 Okla. Cr. 403, 243 P. 999.

In Little v. State, 21 Okla. Cr. 1, 204 P. 305, it is stated:

“The actual condition of the legal title of property alleged to have been stolen is immaterial to the thief; so far as he is concerned, one may be taken as the owner who is in personal possession of the property and whose possession was unlawfully disturbed by the taking. The possessor of the goods from whom the thief took them may properly be described as the owner of the property in the indictment or information.”

The witness, Mrs. Shwen, testified that the tools belonged to her son, but had been left in her house and in her possession while he was serving with the armed forces. She testified as to the forcible entry into the house while she was gone on a visit and that the chest of tools was taken without her consent. This was a sufficient showing of lack of consent to sustain the conviction for larceny.

As to the second contention that the tools which were found in possession of defendant were not properly identified as being the tools belonging to Bill Shwen, we cannot agree. The prosecutor might have developed this angle of the case more fully, but the testimony of the mother, coupled with the evidence of the sheriff and the statements made by the defendant, were sufficient to make a prima facie showing of guilt. The similarity of the tools found in possession of the defendant to those taken from the residence of Mrs. Shwen, the letter “S” appearing on some of the tools, identification marks being filed off of others, were all strong circumstances against defendant. In addition, Mrs. Shwen testified on direct examination:

“Q. I would like for you to look at these tools here. Are these the tools that were in your house that were taken? A. They are.”

Then, on cross-examination, she stated:

“Q. According to your best judgment, all these tools belonged to your son? A. Yes.”

It is next contended that the county attorney committed reversible error by referring to the fact, in his closing argument, that defendant did not take the witness stand, citing 22 O. S. 1941 § 701.

The record does not contain the full argument of the county attorney in connection with this assignment of error. The record shows the following occurrence:

“And thereupon, said cause was argued to the jury by counsel for the State of Oklahoma and the defendant. And thereupon, during the argument for the state by U. Y. Jones, county attorney, the following proceedings was had: Mr. Jones: He has made no explanation of this at all. Mr. Carder: Comes now the defendant and shows that the county attorney in his remarks to the jury referred to the fact that Marvin Hunsaker did not take the stand, and that he had made no explanation of it at all, and now moves the court to grant a mistrial for the reason of the comment of the county attorney on the fact that the defendant did not take the witness stand. Mr. Jones: He has shown no evidence at all. The Court: Proceed. It will be overruled. Mr. Carder. Exception. Mr. Jones: He has made no explanation of this at all to the sheriff’s force of this county, as shown by their evidence on the stand here today. Mr. Carder: Your Honor, we again renew our motion. The Court: It will be overruled. Mr. Carder: Exception.”

At the hearing on the motion for new trial, the court, in overruling this objection, concurred in the contention of the county attorney that the statement complained of was made by the county attorney in his argument to show why the defendant was charged when Raymond Burton was not charged, as they each had been found in possession of part of the stolen goods. The county attorney’s position was stated as follows:

“Burton explained to the sheriff’s force, as shown by the evidence in this case, that he had purchased these tools that were in his possession from Hunsaker, and the sheriff testified that Hunsaker had told the sheriff that he had sold these tools to Burton. And the statement made was to show that Hunsaker had made no explanation of his possession to the sheriff’s force, and, consequently, charges were filed against Hunsaker.”

As has been many times said by this court, ordinarily, error cannot be predicated upon mere unexplained excerpts of remarks of counsel to the jury. Enough must appear of record to advise this court of what preceded the alleged objectionable remark, and the meaning to be deduced from the context, and whether or not they were invited or provoked by the remarks made by the opposing counsel. Wilson v. State, 24 Okla. Cr. 332, 217 P. 885; McDonald v. State, 59 Okla. Cr. 318, 58 P. 2d 345.

Standing alone, the quotation in dispute might appear objectionable as a comment on the failure of the defendant to testify. However, the county attorney contended and the court agreed that the statement at which the objection was directed was only a part of a statement of the county attorney in which he was referring to the fact that the defendant, at the time of his arrest by tbe sheriff, did not explain to the sheriff where he got the tools, bnt that Raymond Bnrton, who likewise was fonnd in possession of certain of the tools, did make an explanation of his possession, and no charges were filed against Burton, while charges were filed against the defendant.

In Payne et al. v. State, 21 Okla. Cr. 416, 209 P. 334, it is held:

“Where the record is incomplete touching upon alleged disparaging remarks made in the closing argument, this court will presume that the tidal court ruled correctly.”

In McDonald v. State, supra, the county attorney used the following language:

“What does the defense say about this? They don’t say anything, it is undisputed.”

The record, in that case, did not contain any of the argument of counsel, except the above excerpt, to which objection was made by counsel for defendant. In disposing of the contention therein raised, this court stated:

“The statute, section 3068, supra, is comprehensive in the extreme and this court will not enlarge nor extend its provisions so as to prevent a fair discussion of the evidence, even though the defendant did not testify and called no witnesses in his behalf. This statute will not be deemed to go to the extent of prohibiting comment upon inferences reasonably to be drawn from a failure to controvert the state’s evidence by proof other than that which might be given by the defendant personally. Murrell v. State, 34 Okla. Cr. 413, 246 P. 644; McDaniel v. State, 35 Okla. Cr. 425, 250 P. 804; Soper v. State, 22 Okla. Cr. 27, 208 P. 1044.
“Ordinarily, error cannot be predicated upon mere unexplained excerpts from the remarks of counsel to the jury . Enough must appear of record to advise the appellate court of what preceded the alleged objectionable remarks and their meaning to be deduced from the context, and whether or not they were invited or provoked by remarks made by the opposing counsel.”

In Chesser v. State, 63 Okla. Cr. 84, 73 P. 2d 191, 192, this court held that the statement of the county attorney in his argument to the jury, “Why couldn’t they contradict the state’s testimony, but not one place do they do that,” and “I say again there is no evidence offered to contradict the state’s evidence in this case,” was not a comment on the failure of the defendant to testify.

There is nothing in the record here to show whether the alleged objectionable remark was made in the opening or closing argument of the county attorney, or whether it was in response to some criticism made of the county attorney’s action in not prosecuting the witness Burton. With the record in such an incomplete condition, this court feels bound by the finding of the trial court that the alleged remark was not a comment on the failure of the defendant to testify.

In this case, the evidence of guilt is chiefly that defendant was found in .possession of property which had been recently stolen. He made incriminating remarks.

In Chesser v. State, supra, in discussing the weight to be given to evidence of possession of recently stolen property, this court stated:

“Originally from the very nature of the case the fact of possession of property recently stolen is generally accompanied by other corroborative or explanatory circumstances of presumption. If the defendant secreted the property, if he cannot show how he became possessed of it, if he gave false, incredible or inconsistent accounts of the manner in which he acquired it, or that it had been sold to him by a stranger, if he has attempted to obliterate from the stolen property marks of identity, or ownership, these and all like circumstances are properly considered as throwing light upon and explaining the fact of possession, and render it morally certain that such possession can be referable only to a criminal origin, and cannot otherwise be rationally accounted for.”

Upon a consideration of the entire record, we have found no error of sufficient importance that would warrant us in disturbing the verdict. The judgment of the district court of Kiowa county is accordingly affirmed.

BAREFOOT, P. J., concurs. DOYLE, J., not participating.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    Ex parte BILL TILLMAN.
    No. A-10682.
    Dec. 19, 1945.
    (164 P. 2d 649.)

      J. M. Springer, of Nowata, for petitioner.
    Randell S. Cobb, Atty. Gen. and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   JONES, J.

This is an original proceeding in habeas corpus instituted by the petitioner, Bill Tillman, to secure his release from confinement in the State Reformatory at Granite.

The facts which are the basis for this action are undisputed. On August 13, 1941, the petitioner was committed from Stephens county to the State Reformatory to serve a term of five years for larceny of an automobile. On April 14, 1943, he was released on parole. On August 2, 1943, he was arrested and charged in the district court of Logan county with the crime of larceny of an automobile. On August 31, 1943 his parole was revoked but he continued to be held in jail in Logan county until he was tried and convicted of larceny of an automobile and sentenced to serve a term of six years in the State Reformatory. He was again committed to the Reformatory on June 4, 1944. An appeal was taken to this court on November 13, 1944, by filing a petition in error with case-made attached. Tillman v. State, No. 10584, not yet decided. On August 29, 1945, the petitioner executed bail in the sum of $3,000, which was approved by the court clerk of Logan county, and a release issued in the case where the appeal had been taken from the sentence of six years given the accused in Logan county. When the warden of the State Reformatory was presented with the release, he refused to grant the petitioner his release, but contended that he had been serving time on the six year sentence and not on the old sentence of five years from which he was paroled. Under the evidence of the warden, it is agreed that the petitioner, with credit for good behavior which he had earned, had one year and 18 days to serve at the time he was paroled and that he has served one year four months, and two days since he was received on the commitment from the district court of Logan county.

The question presented is whether the petitioner is entitled to credit on the first sentence for the time which he has served since his commitment from the district court of Logan county, as it is conceded by the state that if he is entitled to this credit, he has already served more than enough time to earn release from confinement on the first commitment from Stephens county.

21 O.S. 1941 § 61 provides:

“‘When any person is convicted of two or more crimes before sentence has been pronounced upon him for either, the imprisonment to which he is sentenced upon the second or other subsequent conviction, must commence at the termination of the first term of imprisonment to which he shall be adjudged, or at the termination of the second or other subsequent term of imprisonment, as the case may be.”

In Ex parte Halbert, 45 Okla. Cr. 167, 282 P. 478, it is stated:

“Where there are one or more convictions and judgments thereon, the accused should be incarcerated upon the first conviction under which he is apprehended and delivered for imprisonment for tlie period of time therein named, followed by confinement for the fine and costs if same are not paid At the end of that period of confinement, the imprisonment should commence upon the second conviction and terminate in like manner and so on.”

In Ex parte Smith, 33 Okla. Cr. 175, 242 P. 284, 285, it is stated in the opinion:

“Now where there are a series of convictions and judgments thereon, bearing in mind that our statute contemplates that each judgment shall be satisfied separately, and applying such provisions to this case, it would seem logical for the sheriff to confine the accused upon the first conviction for the period of imprisonment therein named, followed by confinement for the fine and costs therein named, in the event the same are not paid; that at the end of that period of confinement, the imprisonment named in the judgment upon the second conviction, and imprisonment for the fine and costs therein, would begin and terminate in like manner; and so with the third. This conclusion is deduced from and based upon the decisions cited and the provisions of sections 6332, 2782, 2774, and 2303, Comp. Stat. 1921 [28 O. S. 1941 § 101; 22 O.S. 1941 §§ 980, 976; 21 O.S. 1941 § 61].
“Decisions to the contrary in other states, and in this state prior to the passage of the 1913 statute herein referred to, will not control in the face of the policy outlined in the statutes and decisions cited.
“We hold, therefore, that under the conditions here shown the periods of imprisonment do not run concurrently, and that the first judgment must be satisfied in full before the second can be held to begin, and the second, before the third.”

It would seem that under the provision of the statute above quoted and the authorities herein above cited that immediately upon receipt of petitioner at the State BefSrmatory, he should have been listed as commencing to serve time on the first charge for which he was given the parole and that the warden erred in showing that this imprisonment was for the second conviction which was appealed to this court. Irrespective of the above statute and decisions, fairness and justice to the accused would require that he be allowed to serve his first commitment rather than the second because, since the second conviction has been appealed, it might be reversed and accused would never have to serve any time upon that charge. At least, in the absence of some provision of law to the contrary, he should be entitled to credit on the old charge until the conviction in the second case becomes final.

Since under the facts the petitioner has served more than enough time to entitle him to his release under the first conviction which he sustained and in consideration of the fact that he had made an appeal bond, appealing to this court from the second conviction which he has sustained, it is apparent that the warden is now restraining him of his liberty without authority of law and that he should be granted his immediate release.

It is, therefore, ordered that the warden of the State Reformatory at Granite, Oklahoma, correct his record so as to give the petitioner, Bill Tillman, credit for the time he has served in the State Reformatory since June 4, 1944, on the commitment issued in the district court of Stephens county, wherein the petitioner was sentenced to serve five years for the larceny of an automobile, wherein he is listed as prisoner No. 13938.

It is further ordered that the record in the office of the warden of the State Reformatory, pertaining to the commitment from the district court of Logan county, wherein petitioner is listed as prisoner No. 14841 be corrected to conform to the above order.

It is further ordered that the warden be and he is hereby directed to release the said Bill Tillman from imprisonment in the State Reformatory upon receipt by him of a release issued by the court clerk of Logan county, wherein the petitioner, Bill Tillman, has filed an appeal bond in perfecting an appeal to the Criminal Court of Appeals from the conviction sustained in the district court of Logan county, provided that the said warden of the State Reformatory has no other or further commitment which would legally require him to continue holding the said Bill Tillman in custody.

BAREFOOT, P. J., concurs. DOYLE, J., not participating.


author: BAREFOOT, P. J.

text:
    LOUIS HENRY COOK v. STATE.
    No. A-10502.
    Dec. 19, 1945.
    (164 P. 2d 652.)

      Mathers & Mathers, of Oklahoma City, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and George Miskovsky, Co. Atty., of Oklahoma City, for defendant in error.
   BAREFOOT, P. J.

Defendant, Louis Henry Cook, was charged in the district court of Oklahoma county with the crime of assault with intent to kill, was tried, convicted of assault with a dangerous weapon, and sentenced to serve a term of five years in the State Penitentiary. From this judgment and sentence he has appealed.

In the brief of defendant, all assignments of error are discussed together, and will be so considered here.

A brief statement of the facts as revealed by the record is necessary. The defendant had married in September, 1936. Prior to their marriage, his wife informed him that the prosecuting witness, James Houston Johnson, had raped her when she was 16 years of age. On July 5, 1913, the defendant went to the home of the prosecuting witness, whom he had never before known, and asked if his name was Johnson. Upon being told that it was, defendant stated, “I think you owe my wife an apology.” He then related what his wife had told him about witness having raped her seven years prior thereto. After a lengthy discussion, in which Johnson told him that nothing like that had occurred, and that he did not even know his wife, the defendant left, stating to the witness, “Let’s just forget it.”

On July 9, 1943, the defendant returned to the home of the prosecuting witness, and when Mr. Johnson opened his door, defendant stated, “I have decided that you are the one.” Witness invited him to come in and talk it over, and he answered: “No. You talked me out of this once before, and we are not going to talk it over this time.” Just as the wife of Johnson entered the room, defendant pulled a gun and put it to Johnson’s back, and said, “Let’s get going.” They started out of the front door, and Johnson stumbled, and when they came near the automobile, defendant pushed Johnson, and he fell, and defendant shot him through the head. Defendant immediately entered his car and drove away, and soon appeared at the police headquarters and gave himself up. On the same evening he made a written statement to the officers, and this statement was introduced in evidence.

Mrs. L. C. Walbracht testified for the state. She lived in one side of the duplex occupied by the Johnsons, and witnessed the difficulty from the time defendant and Mr. Johnson went out of the house onto the porch. She followed them, and attempted to keep defendant from taking Mr. Johnson to his automobile, and. from shooting him. Her testimony was that the prosecuting witness did nothing but comply with the orders of defendant; that he said nothing to defendant, and defendant shot him without cause. The wife of the prosecuting witness corroborated the testimony of her husband and of Mrs. Valbracht. Defendant also corroborated this testimony up to the point of the shooting, but testified that the prosecuting witness said his wife was a liar, and that everything went black, and he did not know or realize what had happened until he awoke in a sanatorium in Oklahoma City, some time thereafter.

Defendant’s wife testified that the prosecuting witness had raped her seven years prior to this difficulty, in an apartment house in Oklahoma City. This occurred some time before her marriage to defendant. She told defendant about it prior to their marriage, and they had talked about it at intervals thereafter. She had not told her mother or sister with Avhom she lived until shortly before July 5, 1943. The mother-in-law of defendant, two of his sisters and his wife all testified to certain peculiarities of defendant, and as to his being moody just prior to the time of his first visit to the home of the prosecuting witness on July 5, 1943. Other witnesses, including one doctor, also testified in behalf of the defendant, and a number of witnesses testified as to his previous good reputation. '

The defense presented was that of temporary insanity.

The record reveals that defendant was released from the county jail of Oklahoma county on the application of the county attorney, for the reason that defendant had been ordered committed to the State Hospital for the Insane at Norman, Oklahoma; and with the request that a hold order be entered for his return to Oklahoma county to answer a charge, of assault with intent to kill at such time as he might be released from said hospital. This order was made on July 28, 1943, and defendant was returned to Oklahoma county and was tried on September 22, 1943.

It has often been held that an order entered in the county court sending one to the state insane asylum for treatment is not proof of insanity, and that the order so made is not admissible in evidence where one is on trial, and the issue of insanity is involved. Rice v. State, 80 Okla. Cr. 277, 158 P. 2d 912; Ex parte Gilbert, 71 Okla. Cr. 268, 111 P. 2d 205; In re Maas, 10 Okla. 302, 61 P. 1067.

Dr. D. W. Griffin, superintendent of the Hospital at Norman, was called as a witness by the defendant. His testimony was that defendant was sane, and that he knew right from wrong, and was able to properly defend himself. He testified that defendant was what is known as “a marginal psychopath, and likely later on may degenerate into a true form of insanity.”

The question of insanity was properly submitted to the jury, and the evidence being sufficient to sustain the judgment and sentence rendered, this court will- not reverse the same.

It is also contended that the court erred in refusing to give certain requested instructions offered by the defendant, and in refusing to permit the asking of certain hypothetical questions.

An examination of the record reveals that the court permitted the hypothetical question asked by defendant to be answered; and that a number of the requested instructions were fully covered by the court’s general instructions. Other requested instructions were not proper statements of the law as applicable to the facts here presented. Other requests were that the court charged the jury with reference to certain questions, but no instruction was prepared concerning these issues. A careful examination of the instructions of the court reveals that they fully and fairly covered the law as applied to the issues here presented, and the defendant was in no wise prejudiced by the instructions given in this case.

The contention that the judgment and sentence entered in this case is “cruel, unusual, and unjustified,” and that the defendant should be given a suspended sentence cannot be upheld. This court does not have the power or authority to direct the trial court to suspend the sentence in any case. This defendant was charged with assault with attempt to kill, which provides a penalty of not to exceed ten years in the penitentiary. The jury found him guilty of “assault with a dangerous weapon,” which is an included offense, and carries a penalty of not to exceed five years in the State Penitentiary. This was the punishment assessed by the jury. The evidence here presented would have justified the sustaining of a verdict of assault with intent to kill. The jury was very lenient with defendant, and we find no reason to modify the verdict in this case.

For the reasons above stated, the judgment and sentence of the district court of Oklahoma county is affirmed.

JONES, J., concurs. DOYLE, J., not participating.


text:
    ROY HILL v. STATE.
    No. A-10498.
    Jan. 2, 1946.
    (165 P. 2d 146.)

      Amos T.' Hall, of Tulsa, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Roy Hill, was charged in the court of common pleas of Tulsa county with the offense of driving an automobile while under the influence of intoxicating liquor; was tried, convicted, and sentenced to serve one year in the county jail and pay a fine of $500 and costs, and has appealed.

On September 5, 1943, about 1:30 a. m., the defendant, while driving a Pontiac coupe automobile, collided with an automobile being driven by one Fletcher Crawford on east Apache street, just outside the city limits of Tulsa. The evidence is disputed as to who was at fault in the collision and as to whether the defendant was under the influence of intoxicating liquor in the driving of his automobile. However, this disputed question of fact was decided adversely to the defendant by the jury and, since no question as to the sufficiency of the evidence is raised by this appeal, it is unnecessary to make an extensive review of the evidence.

The contentions of the defendant may be considered under two headings: First, the alleged error of the court in refusing to grant a mistrial upon a proper showing. Second, the punishment assessed by the jury is excessive under the facts of the case.

The defendant testified in his own behalf. He contended that he was driving Avest on Apache street in a lawful manner, and that, as he started to go around a car at the intersection of Quincy and Apache streets, Crawford, the prosecuting witness, turned the corner from Quincy street onto Apache street. That the lights on Crawford’s car were not burning and that because of these factors the collision occurred Avithout fault of the defendant. That he was not under the influence of intoxicating liquor, but had drunk two bottles of beer earlier in the evening. A man and woman Avho were riding with defendant corroborated most of his testimony.

The prosecuting Avitness testified that he and his family had been to a late show in Tulsa and were on their way home. That he turned off of Peoria onto Apache street and that the defendant tried to pass a car on Apache street and crashed into the car being operated by Crawford. Crawford’s wife was cut on the chin, requiring several stitches to be taken, and their seven months old baby had his arm broken. Officers who were called to the scene of the collision testified that, in their opinion, the defendant was under the influence of intoxicating liquor.

While the defendant was on the witness stand, the record discloses that the folloAving occurred:

“Q. Had you ever been charged in a case of this kind before? Mr. Hall: We object to that for the reason that it is incompetent, irrelevant, and immaterial. The Court: Sustained. Whereupon the following proceedings were had out of the hearing of the jury: Mr. Hall: Comes now the defendant and moves the court to declare this case a mistrial for the reason that the question just asked the defendant by the counsel for the state is calculated to arouse the bias and prejudice of the jury, and to suggest to the jury that the defendant has been involved in a similar violation prior to this time. By the Court: Overruled. Mr. Hall: Exception.”

It is proper to ask a defendant on cross-examination whether he has been convicted of crime for the purpose of affecting the credibility of the defendant as a witness. Graham v. State, 80 Okla. Cr. 159, 157 P. 2d 758; Pryor v. State, 51 Okla. Cr. 345, 1 P. 2d 797.

However, it is improper to ask the defendant if he has been charged with a crime. A discussion of the principle is not again required for the reason that the doctrine is too weli established to be misunderstood. The only purpose for which such a question could be asked would be to prejudice the defendant in the eyes of the jury.

In Corliss v. State, 12 Okla. Cr. 528, 159 P. 1015, this court held:

“Counsel have no right, under the law in this jurisdiction, to inquire of a witness whether or not he has been arrested upon a criminal charge. A witness can only be asked for the purpose of affecting his credibility if he has been convicted of crime.”

In Rogers v. State, 8 Okla. Cr. 226, 227, 127 P. 385, it is stated:

“Every defendant in a criminal case is entitled to fair treatment on his trial, and a prosecuting attorney should not be permitted to ask questions which he knows to be illegal for the purpose of prejudicing the defendant, or to make remarks in the examination of a witness which contain unfair reflections upon the defendant. In the examination of witnesses, he should confine himself exclusively to developing legal evidence against the defendant, and should reserve his comments on the testimony for his argument to the jury; and it is the duty of trial courts to rigidly enforce this rule.”

And again in Watson v. State, 7 Okla. Cr. 590, 124 P. 1101, it is held:

“In jury trials, incalculable harm is often done by counsel in asking known incompetent questions in the hearing of the jury and thereby forcing the adverse party to object to them also in the hearing of the jury, which manifests a fear of the incompetent questions, and gives emphasis to the harmful matter they are supposed to contain.”

We will consider this assignment of error in connection with the proposition that the punishment assessed by the jury is excessive under the facts. As herein above pointed out, there was a dispute in the testimony of the state and that of the defendant as to whether the defendant was under the influence of intoxicating liquor and who was at fault in the collision that occurred. We have had a large number of appeals from convictions concerning this offense. In a great majority of the convictions, the accused is given a fine, especially where it is his first offense. Since no inquiry was made by the prosecuting attorney as to any prior convictions sustained by the defendant, we assume that this is the first offense allegedly committed by the accused. We have sustained convictions where the penalty assessed the accused on a charge of this nature was as severe as that assessed in this case, but in those cases, the proof of guilt was conclusive and the accused was an old offender. In this case, the defendant was employed as a defense worker in an aircraft plant. It is our conclusion, after a careful study of the record, that the question asked by the prosecuting attorney Avas highly improper and had the effect of causing the jury to assess more punishment than they would have if such question had not been asked. Under such circumstances, it becomes our duty to modify the sentence assessed against the accused.

At the time the question Avas asked and objection Avas interposed by counsel for defendant, the prosecuting attorney did not ask any further questions of this nature, or which were prejudicial to the defendant. If he had done so, the error would have been so serious that this court Avould have had the duty of reversing the conviction. However, the testimony of the state as to the defendant’s intoxication and the unsatisfactory nature of the evidence offered by defendant on this point convinces us of defendant’s guilt. Under such circumstances, we feel that the asking of this question was not the factor which caused the jury to find the defendant guilty, but that it was so harmful in its effect that it caused the jury to assess an excessive punishment.

It is therefore ordered that the judgment and sentence of the court of common pleas of Tulsa county be reduced from a sentence of one year in the county jail and a fine of $500, to a sentence of 90 days in the county jail and a fine of $250 and costs, and the judgment and sentence of the court of common pleas of Tulsa county as thus modified is affirmed.

BAREFOOT, P. J., concurs. DOYLE, J., not participating.


text:
    In re WILLIAM FRANK THOMAS.
    No. A-10698.
    Jan. 2. 1946.
    (165 P. 2d 149.)
    Earl E. James, of Oklahoma City, for petitioner.
    Randell S. Cobb, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Warren Edwards, Co. Atty. of Oklahoma County, and Fred Hoyt, Asst. Co. Atty., both of Oklahoma City, for respondent.
   BAREFOOT, P. J.

Petitioner, William Frank Thomas, filed his application in this court, praying for reduction of bail.

Petitioner alleged that he was being illegally held in the county jail of Oklahoma county, Okla.; that he was charged with the crime of burglary in the second degree after former conviction of a felony, by preliminary complaint in the justice court, and that he had been ordered placed under a $1,500 bond for his appearance; that thereafter, on application of the county attorney of said county, said bail had been raised to $15,000; that said bail was excessive, and he prayed that same be reduced.

To this petition a response was filed by George Goff, sheriff of Oklahoma county, in compliance with an order to show cause issued by this court ou November 17, 1945. It was alleged in said response:

“That said petitioner William Frank Thomas stands charged with burglary in the second degree by preliminary information, and said charge is now pending on preliminary hearing in the justice court of Otis D. James, justice of the peace; and that said preliminary information alleges the petitioner to be guilty of said offense after a former conviction of a felony for which your respondent holds a commitment of the said petitioner.
“Your respondent would further show that the skid petitioner stands charged by information in the district court of Oklahoma county with the crime of burglary in the second degree in cause number 17292; that the petitioner stands charged by information in the district court of Oklahoma county with the crime of burglary in the second degree in cause number 17293; and that the petitioner was convicted in the district court of Oklahoma county in cause number 17294, and sentenced to ten years in the penitentiary, on the 17th day of November, 1945.
“Your respondent would further show that said petitioner stands charged with the crime of burglary in the second degree in the District Court of Oklahoma County in cause number 17390, and in all of said causes he is alleged to be guilty of a felony after a previous conviction of a felony.”

A hearing was had before this court on November 21, 1945, at which time the court refused to grant the relief prayed.

Under other circumstances, the bail fixed in this case might be held excessive, but the response and evidence offered at the hearing show clearly that this petitioner, in addition to the charge here presented of second-degree burglary, stands charged with the same offense in two other cases in the district court of Oklahoma county, and lias been tried in another case, convicted and sentenced to serve a term of ten years in the State Penitentiary, which case is now being appealed to this court. In all of the above-mentioned cases, defendant is charged after previous conviction of a felony. It was also disclosed at the hearing in this case that petitioner was charged with similar offenses in other counties of this state.

Under the above statement, this court does not feel justified in reducing the bond fixed in this case.

For the reasons above stated, the petition is denied.

JONES, J., concurs. DOYLE, J., not participating.


text:
    In re JESSE W. MERCER.
    No. A-10657.
    Jan. 2, 1946.
    (165 P. 2d 150.)
    Jesse W. Mercer, in pro. per.
    Bandell S. Cobb, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for respondent.
   BAREFOOT, P. J.

The application of petitioner for habeas corpus was submitted to this court on September 26, 1945.

In this petition it is revealed that petitioner is now confined and is serving a term in the State Penitentiary by reason of a judgment and sentence of the district court of Comanche county, Okla., where he was tried and convicted and sentenced to serve a term of 20 years for rape in the first degree. No appeal was filed.

Petitioner complains of the instructions of the court, the admission of incompetent and irrelevant testimony, that the verdict is contrary to the law and the evidence, and that the petitioner was denied the right of appeal.

This being a petition for habeas corpus, no part of the evidence, the instructions of the court, or even the judgment and sentence, appear as a part of the petition. It will thus be noted that this petition comes clearly within the rule so often announced by this court, that a petition for writ of habeas corpus cannot be substituted for an appeal. The reason for this rule is obvious, and needs no discussion. Ex parte Sannes, 77 Okla. Cr. 71, 138 P. 2d 561; Ex parte Wright, 78 Okla. Cr. 157, 145 P. 2d 772.

There is no proof to support the allegation that petitioner was denied the right to appeal his case to this court.

For the reasons stated, the petition for writ of ha-beas corpus is denied.

JONES, J., concurs. DOYLE, J., not participating.