author: PER CURIAM.

text:
    LEE CURRIN v. STATE.
    No. A-4108.
    Opinion Filed Oct. 21, 1922.
    (209 Pac. 1119.)
    Appeal from County Court, Bryan County; John Finneyr Judge.
    Lee Currin was convicted of selling whisky, and he appeals.
    Appeal dismissed, on motion of defendant, and cause-remanded.
    Deck & Newman, for plaintiff in error.
   PER CURIAM.

Plaintiff in error, Lee Currin, was convicted on a charge of selling one H. M. Smith a quart of whis-ky, and in accordance with the verdict of the jury was sentenced to be confined! in the county jail for 30 days and pay a fine of $50. From the judgment rendered on the 12th day of September, 1921, an appeal was perfected. The defendant now by his counsel of record moves the court to dismiss his appeal, which motion is sustained, and the appeal is hereby dismissed, and the cause remanded to the lower court. Mandate forthwith.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    A. B. CHRISTMAN v. STATE.
    No. A-4121.
    Opinion Filed Oct. 25, 1922.
    (209 Pac. 969.)
    (Syllabus.)
    Appeal and Error — Appeal of Fugitive from Justice — Dismissal. Where a defendant has been convicted and sentenced, and perfects an appeal, this court will not consider his appeal, unless defendant is where he can be made to respond to any judgment or order which may be rendered in the ease. And where a defendant makes his escape from the custody of the law and becomes a fugitive from justice, the appeal will be dismissed.

      Appeal from District Court, Tulsa County; Redmond S. Cole, Judge.
    A. B. Christman (alias John Bradshaw) was convicted of robbery jointly committed, and he appeals.
    Appeal dismissed.
    J. M. Springer, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, A. B. Christman, alias John Bradshaw, was convicted in the district court of Tulsa county on an information jointly charging plaintiff in error and others with the crime of robbery, alleged to have been committed on the 28th day of December, 1920, by robbing the Guaranty State Bank of Sperry, Okla., in the sum of $1,426. The jury by their verdict fixed his punishment at 20 years in the penitentiary. From the judgment rendered on the verdict, an appeal was perfected by filing in this court on November 9, 1921, a petition in error with case-made.

The Attorney General has filed a motion to dismiss the appeal, which, omitting formal parts, is ,as follows:

“That said A. B. Christman has, since the perfecting of said appeal in this honorable court, departed from the state of Oklahoma without leave; that he went to the state of Texas, and the Attorney General is informed and believes and so states the fact to be, that, while in said state of Texas, said A. B. Christman was convicted in said state for stealing one or more automobiles, was tried on said charge and convicted, and is at this time either serving sentence in the penitentiary of the state of Texas, or is resting under said sentence and is confined at this time either in the penitentiary of the state of Texas, or is in one of the common jails of said state, by reason and because of which said supersedeas bond, and the conditions thereof have been breached and violated, and respectful request is made of this honorable court to dismiss said appeal.”

The' question presented by the motion to dismiss is the same as decided in, Justus v. State, 13 Okla. Cr. 55, 161 Pac. 1177; Williams v. State, 11 Okla. Cr. 35, 141 Pac. 453; Gorrell v. State, 10 Okla. Cr. 697, 143 Pac. 341; Peel v. State, 9 Okla. Cr. 234, 131 Pac. 548; Belcher v. State, 9 Okla. Cr. 50, 130 Pac. 515.

In these eases it was • held that, where a defendant has been convicted and sentenced and perfects an appeal, this court will not consider the appeal unless defendant is where he can be made to respond to any judgment or order which may be rendered in the case, and, where the defendant makes his escape from the custody oil the law and becomes a' fugitive from justice, his appeal will be dismissed.

MATSON and BESSEY, JJ., concur.


author: MATSON, J.

text:
    CHARLES H. WASHINGTON v. STATE.
    No. A-3786.
    Opinion Filed Oct. 28, 1922.
    (209 Pac. 967.)
    (Syllabus.)
    1. Parent and Child — “Failurei to Furnish Food, Clothing, Shelter, and Medical Attendance” for Child. The omission óf a parent to furnish necessary food, clothing, shelter, or medical attendance for a minor child such as to make the parent guilty of a misdemeanor as defined by section 2434, Rev. Laws 1910, means the omission to furnish food, clothing, shelter, or medical attendance necessary and required for the preservation of the health and life of the child.
    2. Same — Prosecution' for Neglect of Child — Admission of Evidence of Criminal Assault of Father on Ch'ild Prejudicial. In a trial of a parent for willfully omitting to furnish necessary food, clothing, et cetera, for his minor children, evidence to the effect that defendant attempted to criminally assault one of his children was improperly admitted over objection of defendant’s counsel; and such evidence,; taken in connection with other incompetent and irrelevant evidence admitted without objection, together with an erroneous instruction as to the purpose for which such! evidence might be considered by the jury, was reversible error..
    Appeal from County Court, Texas Couunty; George M. Fritz, Judge.
    Charles H. Washington was convicted of willfully and unlawfully failing to furnish necessary food, clothing, shelter;, and medical attendance for his minor children, and he appeals.
    Reversed.
    John L. Gilson, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty-Gen., for the State.
   MATSON, J.

Charles H. Washington, sometimes called George Washington, was prosecuted by information filed in the county court of Texas county on the 4th day of December, 1919, for willfully and unlawfully failing to furnish necessary-food, clothing, shelter, and medical attendance-for certain of his minor children. The cause was tried to a jury in March' 1920, resulting in a verdict of guilty with punishment assessed at a fine of $500 and 6 months’ imprisonment in the county jail. Defendant took the proper steps, and thereafter perfected an appeal, and the cause is now before this court on numerous assignments of error.

We deem it unnecessary to consider seriatim these various; assignments, as the Attorney General has filed a confession, of error, which is as follows:

"Plaintiff in error was charged by information with the-crime of failing to furnish necessary food, clothing, shelter,, and medical attention to his minor children, and was convicted by the jury in the county court of Texas county, Okla., of said offense, and his punishment fixed at 6 months in the county jail and a fine of $500.
"We have carefully read the record in this ease, and it seems to us that the main question at the trial was whether or not plaintiff in error guilty of cruelty to Ms eMldren and of cruelty to Ms wife. TMs question, together with the great mass of testimony regarding other matters, was introduced without any objections. The court in instruction 4 told the jury that there had been a great deal of evidence introduced that was not objected to and which was immaterial to the issues involved, but did not point out what that evidence was, except that he instructed the jury that the testimony relative to the treatment by plaintiff in error of his wife was immaterial and should not be considered by them. Inasmuch as testimony had been introduced showing the treatment of his minor children as to punishing them and whipping them, the jury would be justified in concluding that they could properly consider the testimony bearing upon that fact, and especially in view of the further provision in instruction No. 4, wherein the court told the jury that they could not consider plaintiff in ■error’s treatment of his wife ‘except for the purpose of assisting you in arriving at a conclusion as to the defendant’s general conduct toward the minor children in the home. ’ The only thing charged against plaintiff in error was, that he failed to furnish necessary food, clothing, shelter, and medical attention. He was not charged with 'the mistreatment of his children in the way of whipping them or in the way of making assaults upon them, and yet the court permitted a great mass of testimony to go to the jury, and while it was not objected to, yet in view of the instructions of the court, we are unable to say that plaintiff in error had a fair trial.
“In instruction No. 6 the court told the jury that, in arriving at their verdict, they had the right to take into consideration the circumstances surrounding plaintiff in error’s financial and social ability to furmsh necessary clothing, food, shelter, and medical attention, and if the jury believed that he furnished food, clothing, shelter, and medical attention consummate with his financial and social standing that they should find for the plaintiff in error and acquit him. This instruction, without a doubt, placed upon plaintiff in error the burden of proving these things. It is true neither this instruction, nor instruction 4, nor any instruction in fact, was objected to, but impress us as being fundamentally wrong. In other words, from an entire inspection of the record, we believe that plaintiff in error did not have a fair and impartial trial. We do not think there is any merit in any of the propositions presented by counsel for plaintiff in error unless possibly the failure of the court on the motion of counsel for plaintiff in error to withdraw from the consideration of the jury the voluntary statement of Mrs. Williams, the prosecuting witness, relative to certain acts of plaintiff in error concerning her several years prior to the time of the prosecution.
“For the reasons as stated, we recommend that the judgment of the "trial court be reversed. ’ ’

This prosecution is based on section 2434, Revised Laws 1910, which is as follows:

“Any parent of any child who willfully omits, without lawful excuse, to perform any duty imposed upon him by law to furnish necessary food, clothing, shelter or medical attendance for such' child is guilty of a misdemeanor.”

In construing an identical statute, in the case of People v. Pierson, 176 N. T. 201, 68 N. E. 243, 63 L. R. A. 187, 98 Am. St. Rep. 666, the court used this language:

“It would seem that the legislative intent in adopting this provision of the Code is reasonably clear, although possibly more precise language could have been employed. It contemplates that there are persons upon whom the law casts a duty of earing for minors, but it does not specify the persons. They are, however, those upon whom the duty is ‘by law imposed/ They are designated in the statutes and in the common law as the parents, guardians, or those who by adoption or otherwise have assumed the.relation in loco parentis. The duty of such person is specified by the • provisions of the section. .It is ‘to furnish food, clothing, shelter, or medical attendance/ Giving the statute a reasonable construction by applying the rule of necessity, it is apparent that it means the necessary food, clothing, shelter, or medical attendance required' for the preservation of the health and life of the child.”

While, as stated in the confession of error filed by the Attorney General, few objections were made to the introduction of irrelevant and incompetent evidence, and practically no exceptions' taken to the court’s instructions, we think it apparent that this defendant did not have that fair and impartial trial provided by the Constitution and laws of this state.

A perusal of the transcript of the evidence discloses that the defendant was tried, not so much for failure to provide necessary food, clothing, shelter, and medical attendance for his children, as he was for cruelty to his wife and children, and for abusive language to them covering a period of years not limited by any statute.

About the only evidence that defendant failed to furnish necessary food to his children is to the effect^ (and this testimony is from the lips of two of his daughters who admit they were "mad” at their father) that defendant had biscuits and eggs to eat while they were only furnished corn bread, maize bread, and feterita bread at such times. Both defendant and his wife deny the truth of such testimony, and state that all the family ate at the same table and had the same food; and it must be remembered that during the period of time covered by this testimony this government was in the midst of a great war, during which food restrictions were placed upon its citizens, especially in the consumption of wheat flour.

As to the failure to furnish necessary clothing, the testimony of the prosecuting witnesses is to the effect ( and this testimony is from the lips of defendant’s children) that they did not have as nice clothing as other children of less wealthy parents in that immediate neighborhood; that their underclothing was made of flour sacks; but the evidence is undisputed that these children attended church and Sunday school regularly, and witnesses in those gatherings saw nothing unusual or lacking in their dress. . It is somewhat inconsistent, to* say the least, to testify that a parent denied his children wheat flour and yet had enough flour sacks to furnish underclothing for eight children throughout the year. We cannot reconcile the statements of these witnesses that they were denied wheat flour with their further statement that they were compelled, to wear flour sacks for underwear; and it might be added that if the father ate all the wheat flour and yet had enough flour sacks to furnish underclothing for. eight children, he was-, a powerfully big biscuit eater, and the writer has seen some big biscuit eaters in his time. Both parents deny that the children had no other underwear than that made from flour sacks.

There is no substantial evidence that defendant at any time ever failed to furnish necessary medical attendance for his children, neither is there any substantial evidence .that these children were denied proper shelter. At times some of them slept in a dugoiit, but we are convinced from the record of the evidence in this case that they did so from choice and! not from compulsion.

The court permitted one daughter of defendant to go so. far- as to testify that defendant' at one time attempted to commit a criminal assault upon her. Her testimony in this respect, is as follows:

“Q. Is there anything- you think of, Mrs. Williams, that hasn’t been brought out by questions that I have asked you? A. There is one thing I would like toi say; he not very long-ago at one time tried to ruin me and Ii know it. Mother was away from' home, and he would pull at me and pick at me, and he was fixing to go to bed one Saturday night, and I had taken my bath, and I was fixing to go to bed and he caught me by the arm and told me I would have to come and sleep with him and warm him up,, and what did he mean if he did-n’t intend to ruin me?
“By Mr. Gilson: We object to that and ask that it be ¡stricken from the jury.
“By the Court: Overruled.
“By Mr. Gilson: Exception.”

It will be noted that objection was made to this evidence ¡and motion to strike it from the consideration of the jury, that such motion was overruled, and proper exception saved. The admission of this evidence alone is a sufficient reason for reversing this judgment. The defendant was not on trial for any such offense, and the only purpose for which such evidence .could have been introduced in a prosecution of this kind was to exeite the prejudice and passion of the jury against defendant.

We deem it unnecessary to go into any further discussion ¡of the merits of this appeal. The prosecution was the outgrowth of family differences, and was occasioned b|y the pronounced animosity of one married daughter of defendant, who, ■at the time of the prosecution, was living separate and apart from him, and was not on speaking terms with him, and who, <on cross-examination, admitted that she was “mad” at him.

It is not our purpose to condone the action and conduct of (defendant toward his wife and children. If the testimony of ¡some of his children is true, he was very cruel both to his wife and to them, but that was not the issue in this case. Those were not the offenses for which defendant was being tried. If the officers had been in possession of evidence sufficient to convict of such offenses defendant should have been prosecuted therefor, and evidence of such offenses should not have been injected into a prosecution for willfully omitting to furnish necessary food and clothing for his children.

This trial is full of glaring error occasioned by the admission of incompetent and irrelevant testimony, but we must admit that few objections were made thereto and few exceptions taken. But objection was made to some of this testimony, and the objection overruled by lthe court, to which exception was taken, sufficient to require the reversal of the judgment. The instructions, instead of curing any of the numerous'errors in the admission of evidence, only tended to aggravate them. The evidence in this case tends to establish that defendant’s children did not like the food furnished at bis table, not that such food was insufficient for the preservation of the health and life of such children; that they were displeased with the clothing furnished, not that the wearing of such clothing led to the contraction of any sickness by them or was insufficient considering the weather conditions. While there is a tendency these days, on the part of girls of the age of defendant’s daughters, to wear peekaboo waists and elock-stitch silk hose, this court has not yet arrived at that esthetic state to hold that such apparel is necessary to the preservation of the health and life of minor females, much less to the protection of their morals. It is evident to us that defendant was not fairly tried, and that the verdict is the result of prejudice and passion occasioned by the admission of incompetent and irrelevant evidence.

The judgment is reversed.

DOYLE, P. J., and BESSEY, J., concur.


text:
    ARTHUR VINEYARD v. STATE.
    No. A-3845.
    Opinion Filed Oct. 28, 1922.
    (209 Pac. 783.)
    (Syllabus.)
    1. Continuance — Ground of Absent Witness — Insufficient Showing. Where a motion and application for a continuance alleges that a witness material to the defense is temporarily absent from the state, which motion and application and the supporting affidavit are based solely on hearsay, and! it does not appear from either that there is any greater likelihood that such witness could be produced at a later term than the one at which the trial was had, the application was properly overruled.
    2. Same. For other reasons holding no abuse of discretion in overruling the motion for a continuance in this case, see body of opinion.
    3. Indictment and Information — Conviction of Assault to Do Bodily Harm Proper Under Information Charging Assault With Intent to Kill. On an information charging assault and battery with intent to kill with a deadly weapon, or such other means or force likely to produce death, as defined by section 2336, Rev. Laws 1910, one may be convicted of assault with intent to do bodily harm with any sharp or dangerous weapon, as defined by section 2344, Rev. Laws 1910'. The first paragraph of syllabus in Polk v. State, 15 Okla. Cr. 324, 176 Pac. 538, is expressly disapproved.
    Appeal from District Court, Coal County; J. H. Line-baugh, Judge.
    Arthur Vineyard was convicted of assault with a dangerous weapon, with intent to do bodily harm, and he appeals.
    Affirmed.
    J. G. Ralls, for plaintiff in error.
    The Attorney General and Ei. L; Fulton, Asst. Atty. Gen., for the State.
   MATSON, J.

Arthur Vineyard, Roy Rose, B. Rose, and Bill Rose were jointly charged by .information filed in the district court of Coal county on the 28th day of October, 1919, with intent to kill one Tom Sparks by striking, cutting, stabbing, wounding, and injuring said Tom Sparks with a certain knife. The said offense was alleged to have been committed on or about the 30th day of September, 1919. A severance was granted, and the state elected to try Arthur Vineyard first. The jury found defendant guilty of an assault with a dangerous weapon with, intent to do bodily harm, and fixed .his punishment at imprisonment in the penitentiary for a period of two years and six months.

The cutting and wounding of Sparks occurred near the ■.south boundary line of the eity of Lehigh at a time when certain officers of the city and county were attempting to arrest •these parties for speeding their automobile and for drunkenness. There seems to have been a general attempt on the part --of most of the1 defendants to resist the attempt of the officers to arrest them, and in the melee which followed the cutting •/occurred.

As is generally the case in such melees, the evidence is -.somewhat conflicting, but the witnesses for the state testify to a state facts which, if believed, are sufficient to support the .-conviction. It is not contended that there is a lack of suffi..cient evidence.

Numerous errors are assigned in the petition in error, and --were presented to the trial court in the motion for a new trial. While counsel states in the brief that none of these errors are abandoned, he has failed to support many assignments by the citation of authority or the presentation of argument. Under the rules of this court, all assignments of error not supported by argument or authority must be treated as abandoned. The crowded condition of the court’s docket precludes :,a search of the record for errors and the books of authorities on error assigned but not covered in the brief. We will pro- ■ eeed to consider, therefore, those errors only which are urged " in the brief' as sufficient grounds for the reversal of this judg- ; ment.

The first error assigned is the action of the trial court ■ in overruling the application and motion of defendant for a r continuance. This motion was presented on the 5th day of . April, 1920, the day the ease was set and called for trial. It is based on tbe absence of one Hoskins, who is claimed to be a material witness for the defendant. The application states that Hoskins was a resident of Atoka, Okla., and that on the -day of March, 1920 (the day of the month not being given), defendant caused a subpoena to be issued for such witness in proper form, and that the same was placed in the hands of the sheriff of Atoka county, who learned upon investigation that the said Hoskins had temporarily left Atoka eounty, and was at that time in Banger, Tex.

All the information as to said Hoskins having left Atoka county, and being then in Banger, Tex., as disclosed by the application for a continuance and the affidavit of the sheriff in support thereof, shows clearly that the same is based solely on hearsay. Not a witness was produced in support of the affidavit who knew of his own knowledge that the said Hos-kins had left Atoka county only temporarily, that it was his intention to return to said eounty in the near future, or that he was then located in the city of Banger, Tex. The application and the supporting affidavit are based solely on information, and it does not appear from either that there is any greater likelihood that the said witness could be produced at a later term of court than at the term at which this cause was tried.

Further, it appears from the record that this information was filed in the trial court on the 28th of October, 1919, nearly six months before the cause was called and set for trial. The witness Hoskins, and all these defendants, were residents of the city of Atoka. With a reasonable amount of diligence it is apparent that they could have kept in closer touch with the witness, and could have been able to either secure his attendance or preserve his testimony, under section 6026 et seq., Bevised Laws 1910.

Further, we are convinced from an examination of the .entire record that there is no reasonable probability that upon :a subsequent trial^with the testimony which it is stated in the motion the witness Hoskins would give, a different result would likely occur, and, unless such probability does appear, this court would not, even had diligence been shown, be authorized to set aside a conviction on this ground alone. Williams v. State, 17 Okla. Or. 452, 190 Pac. 892,

It is also contended that the trial court erred! in overruling the motion in arrest of judgment, it being contended that plaintiff in error was charged in the information with assault with intent to kill by cutting and stabbing the complaining -witness, under section 2336, Revised Laws 1910, and that the .jury was not authorized to return a verdict for an assault with a dangerous weapon with intent to do bodily harm, as •provided in section 2344, Revised Laws 1910.

Counsel cites and relies upon the ease of Polk v. State, 15 Okla. Cr. 324, 176 Pac. 538, in support of this contention. “While there is some language in the Polk Case which tends to support the contention of counsel, it is apparent from the reading of the entire opinion in that case the judgment in that case was reversed because of the indefiniteness of the verdict .and the finding of defendant guilty on an issue not submitted to the jury. The first paragraph of the syllabus in the Polk •Case is too broad in statement, in conflict with earlier decisions •of this court, and is expressly disapproved.

The information in this case is based upon the second sub-división of section 2336, and charges an assault and battery with intent to kill by cutting, stabbing, wounding, and injuring the prosecuting witness with a knife. That an assault and battery necessarily includes an assault needs the citation of no authority. That an intent to kill would necessarily include an intent to do bodily harm is equally apparent. It follows that, on a charge of assault and battery with intent to kill with a deadly weapon, or other means or force likely to produce death,, as defined by section 2336, Revised Laws 1910, one may be convicted of assault with intent to do bodily harm with any sharp or dangerous weapon, as defined by section 2344, Revised Laws 1910. The view here taken is supported by the opinion in the case of Russell v. State, 9 Okla. Or. 692, 133 Pac. 475, and also by the opinion in Parks v. State, 14 Okla. Cr. 413, 171 Pac. 1129, wkerein it was held:

“Where the information charges any grade of assault and battery, there may be a conviction of the same or any lesser grade of assault which is necessarily included in such a charge.”

We find no error in the action of the trial court in overruling the motion in arrest of judgment..

For reasons stated, the judgment is affirmed.

DOYLE, P. J., and BESSEY, J., concur.


author: BESSEY, J.

text:
    BOB BURCHETT v. STATE.
    No. A-3785.
    Opinion Filed Oct. 28, 1922.
    (209 Pac. 970.)
    (Syllabus.)
    1. New Trial — Separation of Jury — Presumption of Performance of Duty. The legal presumption is that jurors perform their duty in accordance with the oath they have taken, and that presumption is not overcome by proof of the mere fact that during an adjournment of the trial the jurors were permitted to separate. The defendant must affirmatively show that by reason thereof he was denied a fair and impartial trial, or that his substantial rights were prejudiced thereby.
    2. Same — Separation of Juror During Recess — Necessity for Showing of Injury. Th'e fact that a juror in a capital case became separated from his fellow jurors at a recess during the trial, and left the custody of the officer who had the jury in charge, is not sufficient ground to grant a new trial, where it is not shown that the juror engaged in acts or conversation inconsistent with his duty as a juror during such separation. The contrary presumption prevails,, where a jury separates after the final submission of the cause.
    3. Homicide — Verbal Insults no Justification for Killing — Mitigation of Punishment. Opprobrious epithets and verbal insults, made towards the accused, however aggravating and contemptible they may be, are not sufficient justification for the taking of the life of the offender: where, under such circumstances, the verdict is for manslaughter, this court will not be justified on account of such provocation in mitigating the punishment fixed by the jury.
    Appeal from District Court, Sequoyah County; E. B. Arnold, Judge.
    Bob Burchett was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.
    McCombs & McCombs, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

By verdict of a jury on December 6'¡, 1919, Bob Burchett was found guilty of manslaughter in the first degree, and his punishment assessed at confinement in the state penitentiary for a term of 17 years.

The information in this case recited that Bob Burchett committed the crime of murder on November 1, 1919, by shooting Jobe Spence with a shotgun. The pleadings and evidence raised an issue of murder, an issue of manslaughter in the first degree, an issue as to self-defense, and an issue as to which of the parties provoked the difficulty. The testimony is voluminous, but may be summarized as follows:

Some time prior to the alleged killing the plaintiff in error, herein referred to as the defendant, was convicted in the district court of Sequoyah county of the crime of burglary, and was sentenced to the penitentiary for a term of three years; the deceased, Jobe Spence, was the prosecuting witness in that case. The defendant was released from the penitentiary on August 13, 1918, upon a parole issued by the governor of the state of Oklahoma. This parole was granted upon recommendation of Judge Pitchford, who tried the case and who entertained grave doubts of defendant’s guilt; of the state pardon and parole attorney; and of the county attorney who had prosecuted the defendant, this county attorney fleing also the prosecutor in the ease at bar. The parole record •was excluded from the jury, but was attached to and made d part of the motion for a new trial.

After defendant’s release from the penitentiary he stayed /or short periods in various places until the month of January, 1919, when he moved to a small farm near Gans, belonging to his Indian wife. There he lived with his wife, industriously pursuing his labors and conducting himself in a straight-forward, honorable, and upright manner until this difficulty occurred. Soon after the defendant moved- to this neighborhood the deceased, Jobe Spence, began to seek and take advantage of opportunities to insult, abuse, and humiliate the defendant in public places and before the citizens with whom he came in contact by referring to him as a convict and a thief, probably for the purpose of provoking a difficulty which would-result in the revocation of defendant’s parole. This treatment upon the part of Spence continued as opportunities offered until the day of the killing.

On the afternoon of that day defendant left his home and went to the town of Gans to purchase household supplies, and while he was in this little town the deceased, Spence, who was in an intoxicated condition, followed him around from place to place, cursing and abusing him; calling him a thief, and several times inviting him to fight. The defendant apparently tried to avoid the deceased and as soon as his business was transacted'returned to his home. Later Spence, returning to his home, passed along the public highway adjacent to the defendant’s premises, arriving at the home of a Mr. Gilbert, located about 300 yards from defendant’s home, just about dark. At this time defendant and his wife were seated in their home, with the doors open, and heard the voice of the, deceased, who was still upbraiding and abusing the defendant to Mr. Gilbert and his wife.

The defendant’s house was about 100 yards from the road, and there was a gap in the fence through which one approached the house from the road. The deceased left the Gilbert home and rode on down the road as far as this gap, where he stopped, and again invited the defendant to come out and fight him. Defendant in his testimony says that he listened to this abuse as long as he could bear it, then took his shotgun, containing one loaded shell, and started toward the spot where the deceased'was; that after he had gone 30 or 40 feet his wife persuaded him to return to the house; that the abuse and insults were resumed by the deceased as he passed, beyond the gap, whereupon defendant again took his gun and went down toward, the deceased. There the defendant said to the deceased, “If you will get off your horse, we will have this out.” The deceased then, according to defendant’s testimony, made a move, indicating to defendant that he intended to draw a weapon, and the defendant then shot and killed the deceased.

The testimony on the part of the state shows that the body of the deceased was found some little distance from the gap in the fence, in the public highway, at a low place, where there were some trees and underbrush; that there were tracks of a man leading from defendant’s house, and, after some deviation, returning to the house; that soon after the tragedy the sheriff and other officers came to the defendant’s house, ■and found no onel there, but found the evening meal prepared and on the table, but undisturbed. They then went to the ■ home of a relative of defendant, where they were informed that the defendant was there in bed. They found him covered up in the bed, feigning sleep. He denied, or at least pretended not to know anything about the tragedy, and also told a falsehood about the whereabouts of his shotgun.

There was evidence tending to show that the character of the defendant, as to his being an industrious, law-abiding citizen, was good; and that the deceased, when intoxicated, was of a turbulent, quarrelsome disposition. There was evidence that each of them had threatened violence against the other; the testimony of a former convict was to the effect that the defendant had told him while in prison that he would some day kill the deceased. Defendant testified that when he heard the abuse and threats of the deceased so near his home on the night of the tragedy it' had grown dark, and that he feared and anticipated that the deceased would come to the house and do him and his family great bodily violence and harm. The testimony of both the state and the defense to some extent indicated that there was probable ground for this fear.

The instructions of the court have been carefully considered, and we find that they fairly cover every phase of the issues raised. Without going into a detailed discussion of the instructions given, we hold that the instructions,, separately and as a whole, were fair to the defendant.

The defendant earnestly contends that there was prejudicial error committed by the officers of the court in permitting the jiirors to converse with witnesses and others after the court had ordered that the. jury be placed in charge of a sworn bailiff, with instructions not to permit them to mingle or converse with others. It was shown by ex parte affidavits that during the progress of the trial there were a great many people attending court; that there were 25 to 30 witnesses for the state, some of whom were actively assisting the prosecution; that on the morning of December 6th the bailiff, accompanied by only 11 jurors, went from the Bonham Hotel to the courthouse, a distance of four blocks, and that the twelfth juror went to the courtroom unaccompanied by the bailiff, and did not reach the courtroom until some little time after the other jurors arrived there; that this twelfth juror went into the courthouse and up the stairs to the courtroom in company with one of the witnesses interested in the prosecution and subpoenaed by the state; and that such conduct •on the part of this juror was calculated to be and was in fact prejudicial to the rights of the defendant; that while at the hotel the jurors came in close contact with witnesses and others, in .the lobby of the hotel and in the dining room where they* sat at a separate table, but in the same room where witnesses and others were seated at other tables, and where conversations were being carried on relative to the trial. There was no showing that any juror conversed with any witness about the facts involved in the case.

The rules established in the several states in this country as to the effect of the separation of a jury or of the misconduct of jurors before final submission of a cause are by no means uniform. This state in an early case, Armstrong v. State, 2 Okla. Cr. 567, 103 Pac. 658, 24 L. R. A. (N. S.) 776, took,a middle ground which has since been followed. In the Armstrong Case it was announced:

“The legal presumption is that jurors perform their duty in accordance with the oath they have taken, and that presumption is not overcome by proof of the mere fact that, during an adjournment of a trial, the juro.rs were permitted to separate. The defendant must affirmatively show that by reason thereof he was denied a fair and impartial trial, or that Ms substantial rights were prejudiced thereby.”

In the case of Weatherholt v. State, 9 Okla. Cr. 161, 131 Pac. 185, it was held that the fact that a juror in a capital case became separated from his fellow jurors at a recess during the trial, and left the custody of the officer who had the jury in charge, is not sufficient ground to grant a new trial, where it is not shown that the juror engaged in acts or conversation inconsistent with his duty as a juror during such separation. The contrary presumption prevails, where a jury separates after the. final submission of the cause.

In the case of Burns v. State, 8 Okla. Cr. 554, 129 Pac. 657, one of the grounds for a new trial was supported by the affidavit of a witness to the effect that on Friday and Saturday when the trial was in progress, before final submission, the jury were taken to the Holland Hotel office, which was in the front part of the building, and that the bailiff in charge of the jury permitted the jurors to converse indiscriminately with various persons in and about the hotel office, sometimes out of his hearing; that some of them wandered down the hall to the wash-basin and toilet room, prior to entering the dining room for their meals; that some of the jurors used the telephone and talked to persons whose names were unknown. In this case it was held that the motion for a new trial on the ground of improper separation of the jury, supported by such an affidavit, was properly overruled.

In the case of Roddie v. State, 19 Okla. Cr. 63, 198 Pac. 342, a motion" for a new trial was supported by affidavits, showing that a juror, Lee Nettles, had formed and expressed an opinion adverse to the defendant previous to his being sworn as a juror, and had made the statement that the defendant was guilty and should be punished; it was shown further that this juror and his wife had their living rooms in the same building with and across the hall from the office of the father of the dceeased; that this juror’s wife attended the trial of the ease; and sat in the courtroom with the wife and the mother of the deceased; that the juror, during a recess in the trial, went to. his living rooms and talked with his wife; that he had first told the bailiff that he wanted to get his overcoat, and one of the bailiffs went and got his coat for him; he then insisted that he should go to his room and get .some face cream; the bailiff took the juror upstairs, and allowed him to enter his room; one of the bailiffs followed, and found him talking to his wife and making no effort to get what he said he wanted, and that the bailiff was compelled to forcibly take, him from the room and place him with the other jurors. Under the circumstances in this ease the court was justified in finding, as it did, that the acts and conversations of this juror, under the circumstances outlined, were prejudicial, whether they occurred before or after the final submission of the cause to the jury; and the holding in the Roddie Case is not in conflict with the former holdings of this court touching the presumption that there was no prejudice in those cases; the presumption that the action of the juror was not prejudicial was' overcome by the proof offered^

Following the rule in the decisions above outlined, we hold that there was no sufficient showing made, and no legal presumption arose from the showing, which was made, that the conduct of any one or more jurors in this case operated to the prejudice of the defendant.

Finally, it is urged that the repeated insults of the deceased toward the defendant were calculated to goad a man under such circumstances to acts of violence, and, though not amounting to justification, were sufficient to appeal to the conscience of this court to order a modification of the judgment by reducing the penalty imposed.

The power of this court to do this is conceded, but we must also bear in mind that the authority to grant pardons and paroles is lodged with the Governor. The facts appearing in the parole record might appeal to the Governor oh an application for clemency in this case. We are loath to establish a precedent holding that verbal insults and opprobrious epithets alone are sufficient cause for this' court to reduce the punishment fixed by a jury which had before it for consideration all the competent evidence in the case. The letters attached to the parole were not competent evidence. Conceding that the provocation was great, the evidence shows that the deceased was unarmed and was shot from his horse in the nighttime, on the public road, by the defendant in hiding among trees and underbrush. The aggravated provocation was doubtless considered by the jury; otherwise the verdict would probably have been for murder instead of manslaughter.

The judgment of the trial court is affirmed.

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


text:
    EARL TALLON v. STATE.
    No. A-3789.
    Opinion Filed Nov. 20, 1922.
    (210 Pac. 309.)
    (Syllabus.)
    1. Homicide — Evidence of Demeanor of Accused Prior to Homicide to Show State of Mind. Evidence of the actions, conduct, and general demeanor of defendant a short time prior to the commission of the homicide is competent as tending to show the state of mind of defendant at the time of the killing.
    2. Appeal and Error — Harmless Error — Failure to Indorse Name of Witnesd Before Trial. The failure to indorse on the information priori to the commencement of the trial the name of a witness to be used in chief against defendant in a capital case is immaterial, provided the name of such witness, with his post office address, appeared in the list of witnesses to be called in chief by the state, served on defendant in compliance with section 20, article 2, of the Constitution.

      3. Trial — Waiver, of Error in Name, of Witness in List Served on Defendant. By announcing ready for trial without objecting to the inaccuracy of the name of any witness contained in the list of witnesses served on defendant in a capital case, defendant waives such inaccuracy; where it appears from the entire record that such inaccuracy in the name of the witness must have been known to defendant before the ease was called for trial.
    4. Witnesses — Wide Range of Cross-Examination to Shiow interest or Animus. For the purpose of discrediting a witness, a wide range of cross-examination is permitted as a matter of right in regard to his motives, interest, or animus as connected- with the cause or parties thereto. The motives, interest, or animus of . a witness are not collateral matters, and these may be shown and considered by the jury in estimating the credibility of a witness, and as to such matters he may be contradicted.
    5. Same — Extent of Cross-Examination Discretionary. The extent to which a cross-examination into the motives, interest, and animus of a witness may go must necessarily be left largely to the discretion of the trial judge.
    Appeal from District Court, Johnston County; J. H. Line-baugh, Judge.
    Earl Tallón was convieted of the crime of manslaughter in the first' degree, and sentenced to serve a term of 15 years’ imprisonment in the state penitentiary, and appeals.
    Affirmed.
    Ratliff & Ratliff, for plaintiff in' error.
    George P. Short, Atty. Gen., and R. E. Wood, Asst. Atty. Gen., for the state.
   MATSON, J.

This is an appeal from the district court of Johnston county, wherein Earl Tallón was convicted of the crime of manslaughter in the first degree, and sentenced to a term of imprisonment in the state penitentiary for 15 years.

Defendant shot and killed Bill Gaylor on the night of the 7th of May, 1919, when the said Bill Gaylor and several others were riding to their homes from a dance, which had been held at the home of Edgar Johnson, a farmer who lived a few miles north and east of the town of Tishomingo. Deceased and those with him were riding in a two-seated hack, with a team of mules hitched thereto. Deceased and a girl about 12 years old, by the name of Cobb, were riding in the front seat; deceased was driving. Eay French and a girl were riding in the back seat, and two girls were riding in the back end of the hack, with their feet hanging out at the rear.

There is some conflict as to the distance from Johnson’s house to the point where the killing took place; some witnesses say between a quarter and a half a mile, while others place the distance at approximately three-quarters of a mile.

Defendant shot deceased while he was'Still in the hack, inflicting a mortal wound in the right temple. Defendant was standing at that time on the ground at the' side of the road on the right side of the hack. There were two* other persons with defendant at the time'of this shooting; one his brother, Harry, the other a young man by the name of Mack Covey; and those witnesses to the tragedy who were riding with deceased testify that when the hack approached defendant and those with him they separated, the defendant going to the right side of the hack and the other two parties to the left side thereof; that defendant inquired, “Is Bill Gaylor in there?” and immediately began to shoot; that as soon as the first shot was fired deceased placed his left arm around the little girl who was riding with him, and that there was also shooting toward deceased from the left side of the hack. Deceased also received a bullet wound in the left arm near the elbow. This bullet struck a bone, and was extracted near the wrist.

Some of the witnesses who were traveling along the road behind the hack in which deceased was traveling also testified that there were shots from both the right and left sides of the hack. Defendant denied that there was shooting by any one except himself, and that he was on the right side of the hack during all the time the shooting took place. That is also the testimony of his brother and his friend, Mack Covey. Defendant claims that deceased first fired two shots at him, and that he returned the fire with three shots from his- pistol in self-defense. ' ‘

There is evidence to the effect that defendant and deceased had a difficulty at the dance about 30 minutes before the shooting took place, in which difficulty deceased struck defendant over the head with a breast chain, inflicting a scalp wound which bled profusely; that this fight took place in the house where the dance was being held, and arose because deceased announced his intention of going home and taking the girls with him. Defendant protested with deceased because defendant had not had an opportunity to dance as many sets as deceased, and defendant desired that the girls not leave until he and others had/ an opportunity to finish dancing the set which deceased had already danced. Defendant also claims, and some of those who were with him that night testify, that after the fight at the house deceased, before he went to gei-in his.hack, stated that he would get defendant before he went home that night.

In explanation of how he happened to be at the scene of the killing, defendant claims that he and the parties with him had gone to a branch close to the place where the killing occurred for the purpose of washing the blood from his head. There is some testimony to the effect that defendant- was offered an opportunity to wash the blood from his head at Johnson’s home before he departed.

There is also evidence in the record to the effect that deceased ran away from defendant after the fight at Johnson’s house, and immediately began preparations to get into his hack and leave for home. This fact was known to, defendant and those with him.

There is also some evidence, elicited on cross-examination of defendant’s witnesses, to the effect that defendant had a fight with Johnson after the fight defendant had with deceased at the house and before the killing took place. Counsel for defendant objected to this line of cross-examination. The trial court overruled the objection, to which exception was taken, and it is contended in the brief of counsel for defendant that such action constitutes the most serious error in the ease.

We believe this cross-examination was proper. Defendant and his witnesses had testified that deceased was the aggressor in the fatal difficulty; that he had made .threats against the life of defendant; and that he had fired the first shot. This evidence comes within the rule laid down in the cases of Williams v. State, 4 Okla. Cr. 524, 114 Pac. 1114, and Hampton v. State, 7 Okla. Cr. 291, 123 Pac. 571, 40 L. R. A. (N. S.) 43, in which it is held that it is competent to put in evidence the action, conduct, and general demeanor of defendant before the killing for the purpose of proving that he was armed and in a vicious humor, provided only that such conduct is so near the time of the homicide as to tend to show the state of mind of defendant at the time of the killing. The evidence here elicited clearly had a tendency to show the state of mind of defendant at the time of the killing, and was so closely connected with the killing in point of time as to make it admissible, in our opinion, for the purpose stated. For an elaborate discussion of the question here involved, and for numerous citations of authorities, see the case of Williams v. State, supra. We find no error committed by the trial court under this assignment.

It is also contended that the trial conrt erred in permitting the state to use one F. C. Cobb as a witness in chief against defendant. In connection with this assignment of error, the record discloses the following facts: Both the state and defendant announced ready for trial, and the state proceeded to call the witnesses in chief against defendant, and among others the witness F. C. Cobb was called to the stand, whereupon counsel for defendant interposed an objection to such witness testifying on the ground that his name was not indorsed on the information. The name “-Cobb” was indorsed on the information, and in compliance with section 20, article 2, of the Constitution defendant was properly served with a list of the names of the witnesses, together with their post office addresses, to be used by the state in chief against him. On this list appeared the name of “J. C. Cobb,” post office address, Durant, Okla. The record discloses that F. C. Cobb lived in Durant, Okla.; that he had testified in the preliminary examination against defendant, so that it clearly appears that in serving the list of the names of the witnesses on defendant a typographical error was made in the first initial of the name of this witness. There is no contention1 that defendant was misled by such mistake. There was no objection to proceeding to trial on the ground that the name of any witness was incompletely] or incorrectly indorsed on the information or on the list of witnesses. The failure to indorse the name of the witness Cobb on the information prior to the commencement of trial in a capital case was immaterial, provided his name appeared upon the list of .witnesses to be called in chief against defendant. Carnes v. State, 14 Okla. Cr. 585, 179 Pac. 475; Smith v. State, 5 Okla. Cr. 282, 114 Pac. 350. So the objection here urged that the name of Cobb was not indorsed on the information was not well taken.

Also, it has been held that announcing ready for trial without objecting to any inaccuracy as to the name of any witness is a waiver of such defect, if any. Galbert v. State, 12 Okla. Cr. 571, 160 Pac. 332. It has repeatedly been held that, although the accused in a capital ease- has a constitutional right to have furnished to him, at least two days before the ease is called for trial, a list of the witnesses to be used against him in chief by the state, he can waive this privilege and does waive it by announcing ready for trial without objecting that any list has not been furnished to him. It follows a fortiori that, if the accused can waive the privilege of having any list whatever furnished him, he can in the same manner waive any inaccuracies in such a list which are apparently known to him. In this case the accused undoubtedly knew that the name “ J. C. Cobb,” furnished in the list' of witnesses, was intended for “F. C. Cobb,” who had testified against him in the preliminary examination. Under such circumstances the doctrine of waiver should be applied in this ease. We find no error prejudicial to accused in the action of the trial court in overruling the objection urged against the witness F. C. Cobb testifying.

Finally, it is contended that the trial court erred in permitting the state, on cross-examination of one of defendant’s witnesses, to ask certain incompetent and irrelevant questions, the answers to which elicited incompetent evidence prejudicial to defendant. The record discloses that one of the witnesses for defendant had testified to certain alleged threats by deceased against defendant, and on cross-examination, and otherwise, the state attempted to disclose the state of the witness’ feeling for deceased by showing that deceased had caught witness in the act of stealing corn from him, and had at that time shot at witness. We think that this evidence was competent for the purpose of showing a probable motive on the part of the witness in so testifying, and also to show the state of the witness’ feeling toward deceased, the occurrence' of the stealing of the corn being so near in point of time to the killing as to have a tendency to show the prejudice of this witness against deceased. For the purpose of discrediting a witness, a wide range of cross-examination is permitted as a matter of right in regard to his motives, interest, or animus as connected with the cause or parties thereto. The motives, interest, or animus of a witness are not collateral matters, and these may be shown and considered by the jury in estimating the credibility of a witness, and as td such matters he may be contradicted. Castleberry v. State, 10 Okla. Cr. 504, 139 Pac. 132; Pittman v. State, 51 Fla. 94, 41 South. 385, 8 L. R. A. (N. S.) 509.

The extent to which a cross-examination into the motives, interest, and animus of a witness may go must necessarily be left largely to the discretion of the trial judge. In this ease we find no abuse of discretion such as would require a reversal of the judgment in permitting the witness to be cross-examined as to this matter.

We have carefully read the testimony of the witnesses. The state, in the trial of this ease, made a clear ease of lying in wait assassination. Defendant attempted to justify the killing on the ground of self-defense. The jury decided the controverted issue of fact against defendant. That the defendant was only convicted of manslaughter in the first degree is attributable no doubt to the unusual zeal displayed by his counsel, who conducted his defense in a very able manner.

Finding no reversible nor prejudicial error in the. record, the judgment is affirmed.

DOYLE, P. J., and BESSEY, J., concur.


text:
    CHARLEY RED v. STATE.
    No. A-4031.
    Opinion Filed Nov. 21, 1922.
    (210 Pac. 407.)
    Appeal from County Court, Payne County; Raymond H.. Moore, Judge.
    Charley Red was convicted of a violation of the prohibitory law, and he appeals.
    Affirmed.
    Higgins & Berton and Walter Mathews, for plaintiff in1 error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen.,, for the State.
   PER CURIAM.

The plaintiff in error, Charley Red, was convicted in the county court of Payne county sitting at Cush-ing, on a charge that he did have in his possession about 15 gallons of fermented, malt, and intoxicating liquors, to wit, 15 gallons of “chock beer,” with the unlawful intent to sell the same, and in accordance with the verdict of the jury was sentenced to' be confined in the county jail for 30 days and to pay a fine of $50. From the judgment rendered on the verdict on the 24th day of May, 1921, an appeal was perfected by filing in this court July 2, 1921, petition in error with case-made. No brief has been filed. When the case was called for final submission, the Attorney General moved to affirm the judgment for failure to prosecute the appeal. For the reason stated,-the motion to affirm is sustained.

The judgment is therefore affirmed.


author: DOLYE, P. J.

text:
    JOHN HALE v. STATE.
    No. A-4033.
    Opinion Filed Nov. 21, 1922.
    (210 Pac. 407.)
    (Syllabus.)
    Unlawful Sale of Liquor, In a prosecution for the unlawful sale of intoxicating1 liquors, the evidence considered and held sufficient to sustain the conviction.
    Appeal from County Court, Stephens County; G. T. Burrows, Judge.
    John Hale was convicted of. violation of the prohibitory liquor law, and he appeals.
    Affirmed.
    Wilkinson & Saye, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   DOLYE, P. J.

The plaintiff in error, John Hale, was convicted in the county court of Stephens county upon an information charging that in said county on or about the 15th day of April, 1921, he did then and there unlawfully sell four pints of whisky to one Joe B. Tipton for the sum of $15, and his punishment was fixed at a fine of $250 and confinement in the county jail for 30 days. From the judgment rendered in accordance with the verdict on the 21st day of May, 1921, an appeal was perfected by filing in this court in due time a petition in error with ease-made.

No brief has been filed, and when* the ease was called for final submission the Attorney General moved to affirm the judgment for failure to prosecute the appeal.

An examination of the record shows that the testimony of the witnesses for the state support the allegations of the information and that no evidence was offered on the part of the defendant. It also appears that the assignments of error are not sustained by the record.

It is the opinion of the court that the appeal is without merit, and that the judgment of the lower court should be affirmed, and it is so ordered.

MATSON and BESSEY, JJ., concur.


text:
    SAM H. HAYS v. STATE.
    No. A-3727.
    Opinion Filed Nov. 22, 1922.
    (210 Pac. 728.)
    (Syllabus.)
    1. Embezzlement — Sufficiency of Information Against Public Officer — Insufficiency of Evidence^ — Inadvertent Failure to Report and lirregular Application of Public Fund. The allegations contained in the complaint held sufficient to charge embezzlement under the provisions of section 7437, Rev. Laws 1910.
    (a) Held, further, that where an information states that any officer is. by law charged with the receipt, safe-keeping, transfer, or disbursement of money, and states that such money was embezzled and was not kept and disbursed as provided by law, but was appropriated to his own use, not in keeping with his trust, such averments are sufficient.
    (b) Under this statute proof of an inadvertent or innocent failure to report and pay to the county treasurer, as by law provided, where there is no proof of an appropriation of the fund not in keeping with the officer’s official trust, of itself and alone is insufficient to sustain the charge of embezzlement.
    ,(c) Where a fund was actually applied as the law directs, though for good reasons it was not done in the manner and at the time prescribed by law, such irregular application alone does not constitute embezzlement under this statute.
    2. Statutes — Offense Governed by Spepial Statute Rather than Penal Code. Where statutes not a part of the Penal Code make any specific act criminal, and statutes in the Penal Code make the same act a criminal offense, th'e offense and punishment (thereof shall be governed by the special provisions relating thereto. Section 2092, Rev. Laws 1910.

      3. Criminal Law — 'Prosecution Under Either of Two Statutes of Same Class Prescribing Different Punishment. Where two statutes of the same class make an offense punishable in different ways, an accuded may be proceeded against and punished under either of such statutes'. Section 2794, Rev. Laws 1910.
    4. Embezzlement — Definition of Embezzlement in Special Statutes May be Considered. Under proper averments the definition of embezzlement as found in section 3213, Rev. Laws 1910, may be considered in aid of defining embezzlement under the provisions of section 7437, Rev. Laws 1910, both of which statutes are specific in their nature, and. not a part of the general Criminal Code.
    5. Evidence — Records and Reports; of State Examiner and Inspect- or but not Conclusions Admissible in Prosecution of Court Clerk. Under the provisions of section 5115, Rev. Laws 1910, the official reports and records of the state examiner and inspector, in so far as they pertain to th'e issues involved, may be introduced as primary evidence, subject to explanation or impeachment. Mere conclusions of such officer, not based on his official record, are inadmissible.
    6. Embezzlement — “Public,Money” and “Revenue” Considered Synonymous. In a proper case, where a court clerk misappropriates public money, he may be prosecuted under section 7437, Rev. Laws 1910. In such case “public money” and “revenue” may be considered synonymous.
    Appeal- from District Court, Washita County; Thomas A. Edwards, Judge.
    Sam H. Hays was convicted of embezzlement, and he appeals.
    Reversed and remanded.
    A. M. Beets, J. I. Howard, and Geo. B. Rittenhouse, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, J.

The plaintiff in error, Sam H. Hays, in this opinion! referred to as the defendant, was on October 23, 1919, in the district court of Washita county, convicted of the crime of embezzlement of certain public money belonging to said county in October, 1916, while the defendant was the court clerk of said county, charged with the receipt and safe-keeping of this money, in violation of his trust as court clerk. The defendant’s punishment was fixed by the court at confinement in the state reformatory at Granite for a period of three years and to pay a fine of $350. From this judgment and sentence he appeals.

While the defendant was court clerk of Washita county during the years 1915 and 1916, he kept two bank accounts, a personal account and an official court clerk’s account. His official funds and the record thereof were not methodically kept, and in the course of time were inadvertently confused and found incorrect. The particular fund here involved, $175, fine and costs in a certain criminal case, was deposited with other money in his official account, as shown by the proof offered at the trial. Upon an audit of his accounts other sums were found unpaid, and the defendant, by several cheeks, paid to his successor in office and to the county treasurer all the money composing his official deposit. There was no evidence of a mingling of his private and the public moneys, and it appears that the particular item here referred to was included in the amount paid by these several payments to the county officials. At the close of defendant’s term of office he demanded an audit of his books and accounts, offering to pay for the same himself, but this request was denied at that time. Some months later the county commissioners had an audit made and brought suit to recover the sum of $3,492.91, recovering judgment, by agreement, in the amount of $2,092.95 and costs, which defendant paid out of his personal funds. The record before us seems to indicate that these matters and discrepancies grew out of a careless system of bookkeeping or want of any system, and partly as the result of some disputed áccounts for deputy, hire and special help in the court clerk’s office, and there was no direct evidence of any intent to defraud or to gain any personal advantage in the use of this or other official funds. There was evidence tending to show that defendant did not report this particular item in any monthly report, and that it was not paid over to the county treasurer at the time required by law; but there was no showing of a personal, private use of this or any of the public funds in defendant’s keeping. On the contrary, there was positive evidence that this particular fund was paid over in January, immediately following the expiration of his term of office, and about three months after it was collected by him.

The amended information charges that—

“Sam H.. Hays did * * * commit the crime of embezzlement in the manner and form as follows: That is to say, the said Sam H. Hays at all times from the 4th day of January, 1915, until the 2d day of January, 1917, was the duly elected, qualified, and acting court clerk of Washita county, Okla., and' in said county and state, on or about the 2d day of October, 1916, the sum of $175 good and lawful money of the United States and of the value of $175 was received from one W. A. Murphy .by the said Sam H. Hays, by virtue of his said office, , as clerk’s fees and sheriff’s costs and fine in a certain criminal case No. 68, styled ‘The State of Oklahoma v. Elmer Murphy,’ in said case No. 68, being then and there pending in the district court of Washita county, and then and there being dock'eted in the criminal appearance docket No. 3 of said district, court; that the said Sam H. Hays, as court clerk of said 1 Washita county, Okla., was charged ' with the collection, receipt, and safe-keeping of certain public money and property belonging to said Washita county, to wit, clerk’s fees for docketing, filing, and recording written instruments in said case No. 68 and for sheriff’s fees for work done and performed in said case No. 68, and for fine imposed on defendant by the court in said case No. 68, as aforesaid; that the said Sam H. Hays, as court clerk of said Washita county, as aforesaid, was charged with the further duty of making verified monthly reports of work done in the preceding month to the board of county commissioners, showing the total fees' charged and collected in each ease and paying the same to the county treasurer; that the sum of $175 was due the said Washita county from the said Sam H. Hays as clerk’s fees for docketing, filing, and recording written instruments in said case No. 68, as aforesaid, and for sheriff’s fees, for work done and performed in said ease No. 68 as aforesaid, and for fine imposed on defendant by the court in said case No. 68, as aforesaid, and the said Sam H. Hays having collected said money, by virtue of said office as aforesaid, belonging to said Washita county, he, the said Sam H. Hays, did then and there unlawfully, willfully, fraudulently, and feloniously embezzle, convert, and appropriate and convert to his own use ' and benefit and to. uses unknown to affiant and to uses not in keeping with his trust imposed upon him by law said public money so collected, in the sum of $175, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the state of Oklahoma.”

The demurrer was filed to this amended information on the ground that the facts stated were insufficient to charge any offense under the statutes of this state. This motion was by the court overruled.

Besides the two general statutes in our Penal Code (sections 2243 and 2671, R. L. 1910) relating to embezzlement by officers, there are a number of other statutes defining embezzlement not found in the Penal Code proper. Section 7437, R. L. 1910, under the provisions of which this defendant was charged and tried, and which became effective May 16, 1913, is in part as follows:

"If any county treasurer, or other officer or person charged with the collection, receipt, safe-keeping, transfer or disbursement of the public money, or any part thereof, be-longing to the state or to any county, precinct, district, city, town or school district of the state, shall convert to his own use or to the use of any other person, body corporate or other association, in any way whatever, any of such public money, or any other funds, property, bonds, securities, assets or effects of any kind received, controlled or held by such officer or person by virtue of such office or public trust for safe-keeping, transfer or disbursement, or in any other way or manner, or for any other purpose; or shall use the same by way of investment, in any kind of security, stocks, loan property, land or merchandise, or in any other manner or form whatever; or shall loan the same, with or without interest, to any person, firm or corporation, except when authorized by law; or if any person shall advise, aid or in any manner knowingly participate in such act, such county treasurer or other officer or person shall be deemed guilty of an ' embezzlement of so much of said money or other property, as aforesaid, as shall be converted, used, invested, loaned or paid out as aforesaid; and upon conviction thereof, such county treasurer or other officer or person shall be sentenced to imprisonment in the penitentiary at hard labor for a term of not less than three years nor more than twenty-one years, and also to pay a fine equal to double the amount in money or other property so embezzled as aforesaid.”

Section 3214, R. L. 1910, which went into effect June 28, 1910, is as follows:

“At each monthly meeting of the board of county commissioners or, if monthly meetings are not held, at each quarterly meeting, the clerk of the district court, the clerk of the superior court, the clerk of the county court, the county clerk and the register of deeds shall each file a verified report of the work of the preceding month or quarter, showing the total fees charged in each case, and shall pay all of such fees into the county treasury and file duplicate receipts therefor with the county clerk.”

In this connection section 3213, R. L. 1910, a portion of the same act as the section last quoted, provides that where a. county officer fails or refuses to account for or to pay over public funds as the law directs, he shall be deemed guilty of embezzlement:

“Any county, township and district officer who is required by law to make monthly or quarterly reports to the board of county commissioners who fails or refuses to make such reports, or1 who makes a false or fraudulent report, shall be deemed guilty of a misdemeanor and in addition to his punishment he shall forfeit his office; and when any such officer shall fail or refuse to account for or to pay over any money in his official capacity, he shall be deemed guilty of embezzlement, and in no case shall any- county officer retain any perquisites of his office. ’ ’

It is claimed that this statute under which the information in this case was drawn (section 7437, R. L. 1910) is a part of a revenue statute, applying only to officers charged with the duty of collecting and disbursing taxes, that all the sections preceding and following this section so indicate, and that this statute does not apply to money collected by a court clerk. According to constitutional classifications this act, as originally passed, was a codified revenue measure which could not originate ini the Senate, but after its adoption in conformity to the- Constitution its provisions should be interpreted to give effect to its object and purposes. This court clerk was charged with the misappropriation of fines and costs which had become, upon their collection, a part of the public revenue to be used for the maintenance of schools and for other purposes. We think the phrase “or other officer” in this section includes the court clerk, and that the words “public money” include fines and costs collected by the court clerk. Doubtless it was the in-' tention of the Legislature to include every kind of public revenue, whether derived from taxation or otherwise. Fines, collected by a court clerk go into the same hopper with moneys collected b'y direct taxation. Whenever any fund under the control of any public officer becomes public money it comes within the purview of this statute. Fulkerson v. State, 17 Okla. Cr. 103, 189 Pac. 1092.

Our constitutional provision that every act shall embrace but one subject, which shall be clearly expressed in the title, specifically excepts codifications and revenue measures. Section 57, art. 5, of the Constitution.

Defendant complains that the state failed to make out a case under section 7437, supra, for the reason that the proof failed to show that the funds in question were appropriated to defendant’s use: that the defendant should have been prosecuted, if at all, under the provisions of sections 3213 and 3214.

By the terms of section 3213 a failure or refusal to account for or to pay over such funds constitutes embezzlement; in such case, under the provisions of the Criminal Code (section 2671, R. L..1910), an embezzlement amounting to a! felony. Sections 7437 and 3213, supra, are-both special statutes, as distinguished from the general statutes in the Penal Code, defining embezzlement by officers.

Section 2092, R. L. 1910, is as follows:

“If there be in any other chapter of the laws of this state a provision making any specific act criminal and providing the punishment therefor, and there be in this Penal Code any provision or section making the same act a criminal offense or prescribing the punishment therefor, that offense and the punishment thereof shall be governed by the special provisions made in relation thereto, and not by the provisions of this Penal Code.”

Under the provisions of sections 3213 and 3214 the illegal retention and failure to pay over the public funds would amount to an appropriation of the fund, not in keeping with defendant’s trust, amounting to embezzlement as therein defined. The language used, “When any such officer (court clerk) shall fail or refuse to account for or to pay over any money in his official capacity he shall be deemed guilty of embezzlement,” indicates that the willful failure or refusal alone to pay over or account for public funds as provided by law constitutes the offense. This statute was designed to prevent a county officer, on one pretext or another, from retaining for an indefinite period, for his own advantage, portions, of the perquisites of his office, pending adjustments, audits, offsets, and claims in litigation.

The prosecution might have been brought under the provisions of section 3213, invoking the penalty provided in the Penal Code (section 2681, E. L. 1910), but the state elected to and did try the defendant under the provisions of section 7437, in which one of the material elements of the offense is a personal appropriation of funds. The state, having made its election to try the defendant under the provisions of the latter section, was bound by such election. To sustain a conviction under this section, it must be shown that there was a private appropriation of the fund as charged in the information, and the mere failure to report and pay over the fund, without any private appropriation or conversion, would not be sufficient. State v. Bunch, 23 Okla. Cr.—, 214 Pac. 1093.

This court has held in former decisions, construing section 3213, that the offense of embezzlement by an officer is complete so soon as he wrongfully fails or refuses to account for or pay over any money in his official capacity, as required by law. Warner v. Mathews, 11 Okla. Cr. 122, 143 Pac. 516; McDaniel v. Brown, 16 Okla. Cr. 149, 181 Pac. 156.

If the information in this case had been based on section 3213, the facts here shown, if the acts were corruptly done, might have been sufficient to sustain a conviction; but it was essential under the information filed to show that this officer made a private,' personal appropriation of the fund, or an appropriation not in keeping with his official trust, to sustain the conviction under the provisions of section 7437, under which this action was maintained. There was no such misappropriation of this fund shown by the evidence.

Complaint is made by defendant that the court, among other instructions, gave the following:

“You are instructed that the law in force at the time the offense charged in this case is alleged to have been committed required the court clerk to file with the board of county commissioners a verified' report at each monthly meeting of such board, covering the. work of the preceding month, showing the total fees charged in each case and the total fees collected in each case, and to pay all such fees monthly into the county treasury, and to file duplicate receipts therefor with the county clerk, and that the failure or refusal of any court clerk to account for or to pay over any money in his official capacity constitutes the crime of embezzlement; but, in this connection, you are instructed that proof of a mere failure to pay over ■money, standing aloné, would not support a conviction for embezzlement. ’ ’

This instruction, we think, was intended to state the law applicable to all the facts proved bearing upon the issue of a personal conversion. True, the statute enjoining the duty of reporting and paying monthly is a later statute, but this statutory duty to report and pay monthly may be considered as explanatory of defendant’s official conduct and to throw light upon the issue of whether or not the defendant personally converted or diverted the fund to his own advantage.

It is contended by counsel for defendant that the court erred in permitting Arthur Jones, after he had qualified as an expert licensed accountant and deputy state examiner and inspector, to testify that he had made an official examination of the official accounts of the defendant, and particular objection is made to the following: -

“Q. In checking up Mr. Hays were you able to ascertain the amount he paid to his successor?
“Counsel for Defendant: We object to that as not proper rebuttal testimony.
“The Court: Well, I’ll let him reopen his ease for that.
“Q. Did you ascertain? A. Yes, sir; I did.
“Q. Did Mr. Hays pay his successor all the money he was due Washita county?
“Counsel for Defendant: Now, that’s objected to as not proper rebuttal, and the witness not being qualified in that regard, and calling for a conclusion of the witness, the record being the best evidence, incompetent, irrelevant, and immaterial.
“The Court: Overruled.
“Counsel for Defendant: Exceptions.
“Q. You may answer. A. He did not pay his successor all the money that was due Washita county — all of it.
“Counsel for Defendant: I move to strike the answer of the witness from the record and. ask the court to instruct the jury not to consider it, for the reason that it is incompetent and a conclusion based on no predicate, and not sufficient predicate for the admission of such testimony.
“The Court: Overruled.
‘ ‘ Counsel for Defendant: Exceptions.
“The Court: Anything further?
“Counsel for Defendant: Nothing further.
‘ ‘ Comes now the defendant and moves the court to instruct the jury to return a' verdict of not guilty for the reason that the evidence is insufficient to support a verdict of guilty under the information in this ease and of the crime charged therein.
“The Court: Overruled.
“Counsel for Defendant: Exceptions.
“The Court: Now, upon consideration the court is of the opinion that the last question asked and the answer thereto should be stricken out, and, gentlemen of the jury, it is stricken and withdrawn from your consideration, and is not to be considered by you for any purpose whatever in making up your verdict in this ease. ’ ’

Defendant contends this evidence was incompetent and prejudicial, and that the error was not cured by its withdrawal from the jury. Under the circumstances here we think this objection is well taken. This examiner’s testimony, authenticating his official reports as well as the. reports themselves, was competent as tending to throw light upon the question of whether or not the offense was committed, but mere conclusions of the examiner, independent of his official report, are incompetent. For the reasons previously stated, the motion to direct the jury to return a verdict of not guilty should have been sustained.

With the contention of defendant that the investigations, reports, and findings of this examiner and inspector were not the best evidence we cannot agree.. This was a state officer, charged with the duty of examining the books and accounts of officers or custodians of state or county funds and making written reports thereof, to be filed and kept in his office, for the use of the executive department and others. Ample provisions are made to facilitate such examinations, so that the findings and reports will correctly state the facts. This officer, in our opinion, comes within the purview of section 5115, R. L. 1910, as follows:

‘ ‘The books and records required by law to he kept by any county judge, county clerk, county treasurer, register of deeds, clerk of the district court, justice of the peace, police judge or other public officers, may be received in evidence in any court.”

This rule is a reasonable one, well calculated to meet the ends of justice. In this instance it would have been unreasonable to expect the jury to inspect, audit, and reach correct conclusions from the introduction of a great multitude of book entries, reports, receipts, and complicated documentary evidence. The average jury would be lost in a maze of compli-eated facts and figures, from which they might or might not make correct deductions. The state examiner and inspector is s disinterested, skilled accountant, with facilities for arriving at correct results, and his official written reports, it seems to us, under this statute should be received as primary evidence for what they might be worth. Of course, the correctness of his deductions may be challenged on cross-examination or by direct evidence to the contrary. Bradshaw v. State, 18 Okla. Cr. 619, 197 Pac. 715; 22 Corpus Juris, “Evidence,” p. 615.

•Since it appears that the defendant voluntarily paid the county treasurer the fine and costs here involved, and since there appears to have been no willful personal appropriation of this item, it follows that a material element of the crime charge! under the provisions of section 7437, R. L. 1910, was not proved, and for that reason the cause should be reversed and remanded; and it is so ordered.

DÓpjE, P. J., and MATSON, J., concur.