text:
    CHARLEY THOMPSON v. STATE.
    No. A-2679.
    Opinion Filed January 26, 1918.
    (169 Pac. 1125.)
    INTOXICATING LIQUORS — Principal—Statute—Evidence. To constitute one a party to a crime under section 2104, R.ev. Laws 1910, it is necessary that such person either commit the crime himself or aid, a-bet, or counsel its commission. For facts which fail to disclose guilt under this rule see opinion.

      Appeal from County Court, Bryan County; J. L. Rappolee, Judge.

    Charley Thompson was convicted of violating' the prohibitory liquor law, and he appeals.
    Reversed, and remanded for a new trial.

      George Trice, for plaintiff in error.

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

The plaintiff in error, Charley Thompson, was charged in the county court of Bryan county, jointly with G. T. Hazeltine, William Huddart, and Gordon Gregg, with unlawfully conveying intoxicating liquors from one place in Bryan county, Okla., to another place therein, and upon conviction by a jury was adjudged to pay a fine of $150 and serve a term of 60 days in the county jail. The appeal is as to Thompson only.

It appears from the evidence introduced on behalf of the state that Hazeltine was engaged in transporting intoxicating liquors from Dallas, Tex., to a point near Caddo, in Bryan county, Okla., for one Oscar Moon, who lived at Coalgate, and was engaged in the illicit sale of intoxicating liquors at that place; that Moon was in the habit of sending a wagon and team to meet automobiles furnished and driven by Hazeltine and his employees at a point near Caddo in Bryan county; that Gregg was in the employ of Hazeltine; that Huddart was a regular employee of Moon. Moon had paid Hazeltine for bringing the whisky to the place where it was seized. The payment was made by checks signed by Moon which were delivered by Huddart in person. These checks were identified by Huddart and introduced in evidence in the case.

Thompson appears to have been employed occasionally by Moon and Huddart, and made the trip in question to a point near Caddo in a wagon in company with Huddart. Upon reaching the vicinity of Caddo in the afternoon, Huddart left Thompson and the wagon, walked to. Caddo, and took a train to Denison, Tex., where he met Hazeltine and Gregg.

The violation of the prohibitory liquor law out of which this prosecution arose occurred in November, 1915. Upon this occasion Hazeltine and Gregg, who lived at Denison, Tex., went to Dallas, Tex., about the 1st of November, and secured between 90 and 100 gallons of whisky and brought it to Denison in two Ford automobiles. They were met at Denison by Huddart. The three drove in automobiles to a point near Caddo, and were followed by officers of Bryan county. When they arrived at a point where the wagon and team driven by Huddart and Thompson from Coalgate was camped for the night, they began to unload the whisky onto the ground. One or two cases had been placed in the wagon. The officers came up and arrested them while they were engaged in unloading and reloading the whisky. Hazeltine, Huddart, and Gregg were doing the work. Thompson was asleep in the wagon, and according to the officers had taken no part in the transaction. He was awakened and taken into custody, however, and a charge was filed jointly against the entire party.

There is no proof offered which in any way connects Thompson with the transportation of the whisky from Denison, Tex., to the point where it was being loaded into •the wagon, or which shows that he was in any wise interested therein.

The entire record is silent as to any affirmative act or utterance on the part of the plaintiff in error, Thompson, that in any way indicates that he had assisted, aided, or abetted in the offense for which he was convicted.

The only assignment of error that we shall discuss is based upon the proposition that the proof fails to connect the defendant with the commission of the offense charged, and that the verdict is therefore contrary to the law and the evidence.

The state relies upon the provisions of section 2104, Rev. Laws 1910, to sustain this conviction. This section is as follows:

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

We are of opinion that the proof disclosed by the record does not bring the plaintiff in error under the provisions of this section of the statute as construed by this court in Moore v. State, 4 Okla. Cr. 212, 111 Pac. 822. In the Moore Case it is said:

“To constitute one a party.to a crime under this statute, it is necessary that such person be concerned in the commission of the offense, that is, that he either commit, it or aid or abet in its commission; and it is not sufficient that he merely acquiesced therein. Consenting and acquiescing are mere mental acts, which, unless communicated to the perpetrator of the offense, in no manner aid or abet him in its perpetration. To be concerned in the commission of crime, one must either commit the crime himself, or procure it to be done, or aid or assist, abet, advise, or encourage its commission. But a mere mental assent to or acquiescence in the commission of a crime by one who did not procure or advise its perpetration, who takes no part therein, gives no counsel, and utters no-word of encouragement to the perpetrator, however wrong morally, does not in law constitute such a person a participant in the crime.”

The facts disclosed clearly indicate to our mind that Thompson fully intended to convey the whisky in question from the point near Caddo, in Bryan county, where-it was delivered, to Coalgate, in Coal County, Okla., but the officers made the arrest at an inopportune time to-fasten the guilt on him as to the transportation of the liquor from Denison, Tex., to the point where it was delivered. Since the state’s testimony indicates clearly that this part of the work was done by Hazeltine and his employees, and was not participated in, directly or indirectly, by Thomspon, the conviction cannot be sustained.

The criminal laws cannot be made to punish a person for criminal intent unexpressed by any action, but can only be made to punish his criminal act done by himself or another who is influenced to do the same by him or counseled, aided, or abetted in doing such act by him. The intent may have existed, and no doubt did, but the act had not been accomplished at the time of the arrest.

The judgment is reversed, and the cause remanded, with directions to grant a new trial.

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


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    JOHN EMYHTUBBY v. STATE.
    No. A-2680.
    Opinion Filed January 26, 1918.
    (169 Pac. 1124.)
    1. KAPE — Elements of Offense — Proof. That the prosecutrix was not the wife of the defendant must be alleged and proved as an essential ingredient of the crime of statutory rape, but this fact may be proved by facts and circumstances in evidence from which the conclusion may be drawn, and direct and positive testimony is not necessary.
    2. RAPE — Degree—Sufficiency of Evidence. In a prosecution for statutory rape, the evidence considered, and held sufficient to sustain the verdict of guilty of rape in the second degree.

      Appeal from District Court, Marshall County; Jesse M. Hatchett, Judge.

    John Emyhtubby, alias John Wallace, was convicted of rape in the second degree, and he appeals.
    Affirmed.

      Chas. A. Coakley and F. E. Kennamer, for plaintiff in error.

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

Plaintiff in error, hereinafter called the defendant, was convicted in the district court of Marshall county of the crime of rape in the second degree, and his punishment was fixed at imprisonment in the penitentiary for the term of two years. He appeals from the judgment rendered in pursuance of the verdict.

The information charges that John Emyhtubby, alias John Wallace, did in said county and state on or about the-day of January, 1915, commit the crime of rape upon the person of Nicie Tyubby, a female person under the age of 16 years, to wit, 14 years of age, and not the wife of said defendant, who was then and there a male person over and above the age of 18 years. It appears from the record that the prosecutrix and the defendant are full-blood Indians, and at the time the act of sexual intercourse by the defendant with the prosecuting witness is alleged to have been committed she lived at the home of her mother, about a mile south of the town of McMillan, in Marshall county.

The principal question presented upon the record is the sufficiency of the evidence to sustain the verdict. The evidence in the case was substantially as follows:

C. A. Bums, the first witness for the state, testified that he had known defendant for about 12 years; that he was about 22 or 23 years of age; that he was acquainted with Nicie Tyubby, and she was bom in May, 1900. Gilbert Pickens testified that the prosecutrix, Nicie Tyubby, was his niece, and that her age was 14 years; that he had known the defendant about 15 years, and his age was 22 or 23 years; that he was a married man. Mrs. Gilbert Pickens testified that the prosecutrix was the daughter of her sister, and her age was 14 years; that the prosecu-trix was the defendant’s sister-in-law, and the prosecu-trix’s mother was the wife of Arch Wallace, a brother of the defendant; that the prosecurtix’s baby was born in August, 1915. The prosecutrix testified that the defendant was the father of her baby; that she lived with her mother, Mrs. Arch Wallace, and the defendant visited there, and on two or three occasions he came to her pallet where she was sleeping, and each time had sexual intercourse with her, and that he was the father of her baby. This was all the. evidence in the case.

The first contention of counsel for the defendant is that “the state failed to prove by any competent testimony that the defendant was over the age of 18 years!” It is sufficient to say that the contention is wholly destitute of merit.

The next contention is that “the state failed to prove that the prosecuting witness, Nicie Tyubby, was not the wife of the defendant.” It is true there is no direct testimony that the prosecutrix was not the wife of the defendant, but it was shown that the prosecutrix, at the time a child under the age of 14 years, was living with her mother, and bearing her maiden name. We think that the facts and circumstances in evidence indicate beyond question that the prosecutrix was not the wife of the defendant.

In the case of Brenton v. Territory, 15 Okla. 6, 78 Pac. 836, Ann. Cas. 769, the court said:

“One of the materia,! averments necessary to be proved by the territory is that the prosecutrix was not the wife of the defendant. It is not necessary that such' averment shall be proved by direct and positive testimony. Any facts and circumstances in evidence from which the jurors were satisfied beyond a reasonable doubt that she was not his wife were sufficient.”

It is also urged that there is a fatal variance between the allegations of the information and the proof, in that it is alleged the rape was committed upon the person of Nicie Tyubby, while the record shows the prosecutrix testified as follows: “Q. Your name is Mary Anoatubby? A. Yes.” It appears that all the other witnesses testified that the prosecutrix’s name was Nicie Tyubby, and no question was raised as to the identity of the prosecutrix in the court below. The question was not raised by request for an instruction, nor was it raised in the motion for a new trial, and is raised for the first time in thite court.

Only prejudicial errors raised by exceptions reserved require a new trial, and it is only when we are satisfied that the verdict was contrary to law, or to the evidence, or that injustice has been done,, that we are permitted to reverse a conviction, whether or not an exception has been taken in the trial, court.

After a careful examination of the record our conclusion in this case is that the verdict was in accordance with the evidence.

Finding no prejudicial error in the record, the judgment appealed from is affirmed.

ARMSTRONG and MATSON, JJ., concur.


author: ARMSTRONG, J.

text:
    EXIE JONES v. STATE.
    No. A-2681.
    Opinion Filed January 26, 1918.
    (169 Pac. 1133.)
    EVIDENCE — Accomplice Testimony — Sufficiency. The uncorroborated statement of an accomplice which tends to connect another with the commission of a crime is insufficient to support a judgment of conviction.

      Appeal from District Court, Qarvin County; F. B. Swank, Judge.

    Exie Jones was convicted of forgery in the first degree, and he appeals.
    Reversed and remanded, with direction to grant a new trial.

      Cruce, Potter & Cruce, for plaintiff in error.

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

The plaintiff in error, Exie Jones, was convicted at the September, 1915, term of the district court of Garvin county, on a charge of forgery in the first degree, and his punishment 'fixed at imprisonment in the state penitentiary for a term of ten years.

Richard Lewis, Emma Clemmons, and Exie Jones were jointly charged by information in the district court of Garvin county with forging a warranty deed to lands belonging to Alta Grimmet. The parties were all negroes. Richard Lewis appears to have been dealing in freedman lands in Garvin county, and had sold a number of tracts to C. M. Dorchester at Pauls Valley. The proof on behalf -of the state indicates that Lewis coerced Emma Clemmons into impersonating the Grimmett woman when the deed was executed to C. M. Dorchester. The jury, however, convicted her along with Lewis and Jones as a principal in the crime. The deed was signed by mark only. The Lewis negro owed Dorchester some money and went to him with a proposition to sell the land in question. Dorchester offered to give him the debt and $50 in cash in addition. The land amounted to 30 acres and the total purchase price under this agreement amounted to $70. No witnesses were introduced on behalf of the state at the trial whose testimony connects Exie Jones with the forgery directly or indirectly in any way, except a statement made by the codefendant, Emma Clemmons. She made a statement to the county attorney prior to the trial, and also testified at the trial to the effect that Richard Lewis forced her to go with him to the post office building in Pauls Valley to execute the deed; that she passed Exie Jones as she entered the post office; that he was standing in front of the building; that he said to her that he wanted her to go into the post office and touch the pen, and that she asked him what for, and he replied that it did not make any difference just so she touched it. Dorchester thought he was getting good title to the land, and did not know that the deed he was taking was a forgery. The Clemmons woman appears to have received $5 for her part in the transaction.

There is no proof that Jones received anything out of the transaction; nor that he ever talked to any • one who was interested or was in any wise connected with the transaction, except the statement of the codefehdant, Emma Clemmons, above quoted. This statement is not corroborated, and there are no other facts and circumstances sufficient to connect the plaintiff in error, Exie Jones, with the forgery. The judgment of conviction imposes ten years’ imprisonment on the plaintiff in error. The uncorroborated statement of the codefendant that the plaintiff in error desired her to touch the pen, with no other facts connecting him with the transaction, is insufficient to support the judgment.

For this reason, the judgment must be reversed, and the cause remanded, with directions to grant a new trial.

Reversed.

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


text:
    J. B. McDANIEL v. STATE.
    No. A-2795.
    Opinion Filed January 26, 1918.
    (169 Pac. 1128.)
    APPEAL AND ERROR — Sufficiency of Evidence. A judgment of conviction rendered im a trial court will not be disturbed on appeal, when there are facts and circumstances tending reasonably to support the conclusions of the jury and the judgment of the court, unless there be substantial error disclosed by the proceedings.

      Appeal from, District Court, Greer Cotmty; T. P. Clay, Judge.

    J. B. McDaniel was convicted of murder, and he appeals.
    Affirmed.

      E. M. Stewart, for plaintiff in error..

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

The plaintiff in error, J. B. McDaniel, was convicted at the January, 1916, term of the district court of Greer county, on a charge of murder, and his punishment fixed at imprisonment in the state penitentiary for life. No briefs have been filed in this cause by either side, and no appearance made for oral argument on the part of the plaintiff in error. The cause was therefore submitted on the' record, and will be reviewed for fundamental error only.

The information charges the plaintiff in error with the murder of his wife, Mollie McDaniel, on the 14th day of October, 1915. The proof offered' on behalf of the state was wholly circumstantial. During the night of October 14th, Mollie McDaniel was found dead in bed. She was sleeping with her. two children — a girl about 12 years of age, and a boy about nine; she had separated from her husband, the plaintiff in error, and had sued for divorce. McDaniel had apparently been in the railroad service in the car repairing department, and lived for a number of years in Southern California. From California he went to Oregon and engaged in farming, and from Oregon he moved to Greer county, Okla. It appears that he traded his Oregon land for a farm in Greer county; that his experience in farming in Oregon had been expensive, and his finances were reduced to such an extent that he could not move his family to Oklahoma when he came; that at a later date funds were secured from a brother of Mrs. McDaniel and sent to her. She then came to Greer county, Okla. Some hostile telegrams were sent by the plaintiff in error to Mrs. McDaniel before she left Oregon. He apparently thought she would not join him in Oklahoma and would refuse to live with him further. When Mrs. McDaniel arrived in Oklahoma she telephoned to her husband, the plaintiff in error, who came to the depot after her and the two children. From this time until the death of the deceased, it seems that there was very little peace in the family. The proof indicates that the plaintiff in error had not infrequently •choked and abused his wife, upon one occasion injuring her more or less severely and tearing her wearing apparel; that a few days prior to her death, when she had filed a suit for divorce, she charged the plaintiff in error with these acts of mistreatment in the presence of the sheriff ■of Greer county, and they were not denied at the time; that upon the night of the homicide, and prior thereto, the plaintiff in error had endeavored to persuade his wife ■to come hack and live with him. She had uniformly refused to do so. She had rented. apartments in a house near to the home formerly occupied by her and the plaintiff in error, and had moved into these apartments with the children. There were two other persons living in the* house at the time. The deceased slept in her room with her- two children. McDaniel arranged with persons owning the house to sleep in the adjoining room. The two •other persons who occupied the premises were away from home on the date of the homicide. Mrs. McDaniel apparently knew that they were to be away that night and expressed to a neighbor great fear that her husband would kill her before the night had passed. McDaniel came upon the premises before time to retire and began to persuade his wife to return and live with him. She declined to ■do so again and went into the room where he slept and sat and talked to him for some time and finally asked ‘him to give her the shotgun. He refused to do so at first, but finally took the shells out and gave it to her. ‘She took it and went into her room, fastened the door, .and went to bed. ,. She had no shells herself. The only other shells found on the premises were in the trunk belonging to the plaintiff in, error and were locked up. The two shells he took from the gun at the time he gave it to his wife were retained by him. When the body of Mrs. McDaniel was discovered the gun was lying beside her and next to her person under the covers. A string had been tom from the lining of the quilt and tied around the trigger of the gun and tied to her toe. The charge went in at the right side of the neck just below the jawbone and severed the jugular vein and fractured the skull in several places. The physician testified that the shot ranged inward and upward. Death was probably instantaneous. The body was lying in a comfortable position on the left side. One of the legs was slightly drawn upward. The little boy sleeping with her was. lying close to her body, and the blood seems to have saturated his person and apparel. The quilt lying over the persons upon the bed showed powder burns on the outside portion. or the top of the same when seen by witnesses. The gun was beneath the quilt and other items of cover. There were two shells in the gun, only one of which had been discharged. There appeared to be some blood stains on the string which was tied to the toe of the deceased and to the-trigger on the gun. Numerous experiments were made with the gun and the string for the purpose of determining whether or not the string tied upon the trigger as this one was when found would pull the trigger and discharge the gun. The first effort broke the string without throwing the trigger. The second effort did likewise, and all effort to throw the trigger when the string was tied in. the manner it was found to be when first discovered' proved fruitless in this respect. The only effort which succeeded in throwing the trigger was to change the-manner in which it was tied so as to fasten it upon the extreme point of the same, in which manner the trigger was thrown. The plaintiff in error, testifying in his own behalf, denied shooting his wife, and said that he heard ;a noise during the night which sounded like a window had fallen; that he got up and went into the room occupied by his wife and two children; that he discovered that she had been shot; that he made no outcry and did not wake the children, but dressed in a different suit from the one he had been wearing and went to call some nearby neighbors; that he left the little boy lying in his mother’s blood and the little girl lying at the foot of the bed undisturbed, and, in fact, did not wake them at all. When the neighbors who were notified arrived he escorted them into the room, removed the quilt, and pointed out the gun and the manner in which it was fastened to the person of the deceased. Upon the arrival of the officers the next morning they discovered the fact that the gun would not shoot tied as it was, and that the deceased had been shot by a gun held on top of the quilt covering her person, instead of one lying under the quilt. The theory advanced by the defendant was that the deceased had committed suicide. That of the state was that the plaintiff in error had murdered the deceased.

There were no eyewitnesses, and the case of the state was therefore left to stand upon circumstantial evidence. We have read carefully the entire evidence in the record, and while it is to our minds not overwhelming, and in many respects more or less unsatisfactory, yet it cannot be said that there is not evidence tending reasonably to support the findings of the jury.

Under the uniform holdings of this court, when no error of law appears, a judgment of conviction is not reversed where there are facts and circumstances tending reasonably to support the findings of the jury and the judgment of the court. The record indicates clearly that the trial court endeavored to and did give the plaintiff.' in error a fair and impartial trial. His instructions were' fair, and all issues were clearly and concisely submitted' to the jury in an impartial manner. Under this state of the record only one question arises, and that is whether' or not the verdict of the jury is contrary to the evidence.. If it is not, no reversal can be had; if it is, a reversal would follow. It is our opinion that there are many facts' and circumstances shown by the record and introduced' by the state which are not incompatible with the innocence of the plaintiff in error. There are other facts' and circumstances, however, which are incompatible with-his innocence. The more one reads the record the more thoroughly he becomes impressed with the guilt of the prisoner. It was the duty of the jury at the trial to resolve all doubts in favor of the plaintiff in error and to find him guilty only upon competent evidence beyond a. reasonable doubt. The charge of the court told them that all the facts and circumstances proven should not only be consistent with the guilt of the defendant, but consistent' with each other and inconsistent with any other reasonable hypothesis or conclusion than that of his guilt. In answer to this charge and many others explicitly defining the rights of the plaintiff in error, the jury, who-saw and heard the witnesses testify and who were given all the facts and circumstances at first hand, returned a verdict of guilty, and fixed the punishment at life imprisonment. No fundamental error is disclosed by a most careful scrutiny of the record.

It therefore follows that the judgment must be affirmed.

Affirmed.

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


text:
    JASPER REED v. STATE.
    No. A-2870.
    Opinion Filed January 26, 1918.
    (169 Pac. 1133.)
    ABATEMENT OF PROSECUTION — Death of Accused. In a criminal prosecution, the purpose, of the proceeding being to punish, the defendant in person, the action must necessarily abate upon his death, and where it is made to appear to this court that a plaintiff in error has died pending the determination of his appeal, the cause will be abated.

      Appeal from Superior Court, Muskogee County; H. C: Thurman, Judge.

    Jasper Reed was convicted of keeping and maintaining a place where intoxicating liquors were kept for sale, and he appeals.
    Order that proceedings abate.

      P. A. Gavin, for plaintiff in error.

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

The plaintiff in error, Jasper Reed, was convicted in the superior court of Muskogee county under an indictment charging that in said county on or about December 1, 1915, Jasper Reed willfully and feloniously kept and maintained a place at 706 N. Third St. in the-city of Muskogee, where intoxicating liquors were kept for the purpose of selling the same, and in pursuance of the verdict he was sentenced to imprisonment for one year in the penitentiary and to pay a fine of $100 and costs. To reverse the judgment an appeal was perfected.

The Attorney General has filed a statement showing that after the appeal was taken the plaintiff in error was killed in a fight. His death having been suggested, the proceedings abate. In Carson v. State, 12. Okla. Cr. 461, 158 Pac. 689, it is said:

“In a criminal prosecution, the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death, and where it is made to appear that the plaintiff in error has died pending the determination of his appeal the cause will be abated.”

It is therefore adjudged and ordered that the proceedings in this cause do abate, and the same is remanded, with direction to the trial court to enter its appropriate order to that effect. ■

ARMSTRONG and MATSON, JJ., concur.


author: MATSON, J.

text:
    C. B. NEWTON v. STATE.
    No. A-2495.
    Opinion Filed January 28, 1918.
    (170 Pac. 270.)
    1. FORMER, JEOPARDY — Question for Jury. Upon the interposing of a plea of former jeopardy in the trial of any criminal case, a question of fact ordinarily arises, which should be submitted to ■ the jury for deteiunination, unless the court is satisfied as a mat- ■ ter of law that the plea interposed is insufficient to raise the question of former jeopardy. In such event it is not error for the court to refuse to submit said plea to the jury if as a question of law it is insufficient.

      2. SAME — Plea of Former Jeopardy — Sufficiency. Record examined, and plea of former jeopardy interposed in this case held insufficient as a question of law.

      Appeal from County Court, Oklahoma County; William H. Zwick', Judge.

      C. B. Newton was convicted of assault and battery, . and his punishment fixed at a fine of $10, and he appeals.
    Judgment affirmed.

      Harvey B. Winn, for plaintiff in error.

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

The following statement of facts and the proposititon relied upon to reverse this case are copied from the brief for plaintiff in error:

“This is a case in which the plaintiff in error as defendant in the lower court was charged by the State of Oklahoma with assault and battery, and was commenced in the justice court by filing' a criminal complaint as follows :
“ ‘In the Justice Court of T. F. Donnell, Justice of the Peace in and for Oklahoma District, Oklahoma County, State of Oklahoma. The State of Oklahoma, Plaintiff, v. C. B. Newton, Defendant, Complaint. R. H. Phenix, of lawful age, being first duly sworn on his oath deposes and says that in the county of Oklahoma and State of Oklahoma, and on the 12th day of September, 1914, the above-named defendant, C. B. Newton, did then and there unlawfully commit an assault and battery upon the person of R. H. Phenix by beating and striking with his fists the aforesaid R. H. Phenix contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the State of Oklahoma.
“ IR. H. Phenix.
“ ‘Subscribed and sworn to before me this 12th day of Sept., 1914. T. F. DONNELL,
‘Justice of the Peace.’
“On this complaint a warrant was issued, the defendant was arrested, pleaded not guilty, gave appearance bond, and on the 19th day of October, 1914, filed his answer alleging former conviction, as follows:
“ ‘In the Justice Court, before T. F. Donnell, Justice of the Peace in Oklahoma City District said County and State. State of Oklahoma, Plaintiff, v. C. B. Newton, Defendant. Case No. -. Answer. Comes now the defendant above named, and for a defense alleges the following grounds:
“‘(1) He is not guilty of the charges as alleged in the complaint.
“‘(2) On the 12th day of September, 1914, the defendant submitted himself to G. W. Stephenson, a justice of the peace in said district, to Be dealt with as the court deemed proper, and after a full statement of all the facts in this cause having been heard, the said court found the said defendant guilty of assault and battery upon the person of Phenix, and assessed a fine against said defendant in the sum of $5 and costs in the sum of $1.50; that s'aid defendant paid said fine and costs in full; that the offense so submitted is the same with which the defendant is charged in the complaint in this court, and all of which defendant is ready to make proof.
“ ‘Wherefore the defendant prays that the plaintiff be estopped from obtaining a second judgment in this cause, and that he go hence without day.
“C. B. Newton, Defendant.
“ ‘Subscribed and- sworn to before me this the 19th day of October, 1914. -, “ ‘Justice of the Peace.’
“The case was tried on the issues made up to a jury in the justice court, the jury finding defendant guilty with a request that the justice assess the penalty, and the justice discharged the jury, and took the case under advisement from the 19th day of October, 1914, until the 22d day of October, 1914, on which date he pronounced judgment against the defendant assessing a fine of $50 and costs.
“Op, the 23d day of October, 1914, the defendant filed his appeal bond in said cause, and the appeal was filed in the county court of Oklahoma county on the 26th day of October, 1914, and was subsequently "set for hearing in said court on the 2d day of March, 1915. On the 2d day of March, 1915, the following motion- was interposed by defendant to dismiss said action:
“ ‘By Mr. Winn: Comes now the defendant, and moves the court to dismiss this action against the defendant, C. B. Newton, for the reason of former jeopardy in this: That at the trial of the case in the justice court of T. F. Donnell in this county there was a jury demanded and duly impaneled and sworn to try the case, that the evidence was introduced before the jury, and the case was argued by counsel, and the jury tried to consider a verdict, and returned into court with a verdict of guilty, and then and there refused to assess the amount of the fine as a penalty, and without the consent of the defendant left that for the ■ consideration of the court to fix the amount of the fine, and that the court, the said justice of the peace, took the case under advisement from the 19th day of October, 1914, up to the 22d day of October, 1914, under advisement as to the amount of fine to be' fixed by the court without the consent of the defendant herein and that on the said trial, to wit, the 19th day of October, 1914, the jury impaneled in -said cause, and-sworn to try the cause and render a true verdict therein •was discharged on that said day without having rendered a full verdict in the case, against the wishes and consent of the defendant, for which reason the defendant asks the court to discharge the defendant for the reason of former jeopardy, as shown in the foregoing statement. And the defendant for the further reason asks the court to discharge him from this cause, and as a reason therefor says that on the 12th day of September, 1914, the defendant, C. B. Newton, without any knowledge on his part’ as to there having been filed a complaint and a warrant issued herein before T. F. Donnell went of his own accord before a justice of the peace, G. W. Stephenson, justice of the peace of Oklahoma City district, Oklahoma county, Okla., who was then a duly elected, qualified, and acting justice of the peace in'said district, and to him, as said justice of the peace, made a full statement of the assault for which he stands charged in the complaint as filed before T”. F. Donnell, justibe of the peace, and after the court had heard all the statements of the defendant, he adjudged the- defendant guilty of assault and battery as shown by the record of said justice of the peace which reads:
“ ‘ “State of Oklahoma, Plaintiff, v. C. B. Newton, Defendant. Comes now on this 12th,day of September, 1914, C. B. Newton in person and enters plea of guilty on his own motion, and upon his verbal statement that no greater offense than an assault with his fists upon one Phenix in Oklahoma City, September 12, 1914, and a fine of $5 and. costs of this action is imposed upon said defendant, and, same being paid into court, said defendant is discharged from custody. George W. Stephenson,
“ ‘ tl Justice of the Peace.” ’
“The statement as made, we believe, is sufficient for the court to understand the nature of the issues between the plaintiff in error and the defendant in error, and we will proceed to state the proposition upon which the plaintiff in error relies to, secure a reversal of a judgment in this case:
“Proposition 1. A voluntary appearance by any person before a justice of the peace of the county in which he has committed an assault and battery upon another person, and submitting himself to the justice, and making a full statement, giving the facts and circumstances under which he committed the assault and battery, and is by the said justice adjudged guilty of the assault and battery, fined the sum of $5, and costs of $1.50, which fine and costs are paid in full, and a judgment of conviction entered upon the docket of said justice. Such person is not thereafter subject to a prosecution by information charging him with the same offense.”- ■

It will be noted from the foregoing statement that the question here presented was raised in the lower court by a motion to dismiss the action, and as a ground for new trial it was presented to the lower court that error had been committed in failing to sustain said motion. Nowhere did the defendant interpose as a defense to said action in the county court a plea of “autrefois convict,” as provided by section 5802, Rev. Laws 1910. It is unnecessary, however, in this case to pass -upon the question whether or not the above plea raises an issue of fact which the court should have submitted'to the jury, although pleaded in the form of a motion to dismiss, for the reason that on its face said plea is insufficient to raise the question of former jeopardy as a matter of law, even had the provisions of section 5802, swpra, been complied with.

Sections 17 and 30 of article 2 and section 19 of article 7 of the Constitution provide respectively:

Section 17, art. 2:

“No person shall be prosecuted criminally in courts of record for felony or misdemeanor otherwise than by presentment of indictment or by information. No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination. Prosecutions may be instituted in courts not of record upon a duly verified complaint.”

Section 30, art. 2:

“The right of the people to be secure in. their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized.”

Section 19, art. 7:

“All judges of courts of this state, and justices of the peace, shall, by virtue of their office,, be conservators of the ..peace throughout the state.
“The style of all writs and processes shall be ‘The State of Oklahoma.’ All prosecutions shall be carried on in the name and by the authority of the State of Oklahoma. All indictments, informations, and complaints shall conclude, ‘Against the peace and dignity of the state.’ ”

The first section above quoted requires a prosecution instituted in a justice of the peace court to be upon a duly verified complaint. The next section secures the people against unlawful seizures or arrests, and provides that the property and person of citizens of this state shall not be molested by warrant of arrest except upon probable cause supported by oath or affirmation. The latter section requires all criminal prosecutions to be in the name of and by the authority of the State of Oklahoma. Undoubtedly these provisions were placed in the Constitution for a purpose. Nobody would have a right, therefore, to submit a plea of guilty to an offense committed against the peace and dignity of the State of Oklahoma without there had been first filed a duly verified complaint, charging such person with such offense. The latter provision would require also that the prosecution of said offense should be by the duly qualified officers of the state chosen for said purpose. These'sections would prevent and do prevent a person from voluntarily appearing and pleading guilty to an offense without any verified complaint being first filed against him.

Section 6176, Rev. Laws 1910, provides:

“In all misdemeanor cases, before a warrant shall issue for the arrest of the defendant, the complaint must be submitted to the county attorney, or drawn by him and indorsed as follows: ‘I have examined the facts in this case and recommend that a warrant do issue/ and then filed with the court; If the action be brought without such in-dorsement the complaining witness must file with the court a bond to be approved by the court in a'sum not less than fifty dollars, conditioned to pay all costs, and the county shall in no event be liable for any costs incurred in that action, unless the complaint be first so indorsed by the county attorney.”

The statute clearly establishes a rule to make effective' the foregoing constitutional provisions. It provides a method whereby a private citizen may institute a criminal prosecution by a verified complaint, but if said cpmplaint is not submitted to the county attorney with a statement of the facts that can be proven, and if it does not receive his indorsement that he has examined the facts and recommends that a warrant shall issue, then the prosecuting witness is required to put up a bond for costs as a deterrent against malicious or unwarranted prosecutions. In this way prosecutions by duly verified complaint in the name of and by the authority of the state are secured. A prosecution cannot be said to be in the name and by the authority of the state where the person guilty of the offense procures his own prosecution without notice to the prosecuting officers of the state or to the prosecuting witness, and without a duly verified complaint. A justice of the peace is not permitted to accept a plea of guilty under such circumstances. These provisions of the statutes safeguard the liberty of those accused of a crime by preventing malicious and unauthorized private prosecutions, and at the same time guarantee to the people, of the state that fraudulent prosecutions may not be obtained by the defendant or with his connivance. Evans v. Willis, County Judge, 22 Okla. 310, 97 Pac. 1047, 19 L. R. A. (N. S.) 1050, 18 Ann. Cas. 258; State v. Simpson, 28 Minn. 66, 9 N. W. 78, 41 Am. Rep. 269; State v. Cole, 48 Mo. 70; State v. Wakefield, 60 Vt. 618, 15 Atl. 181; State v. Goetz, 65 Kan. 125, 69 Pac. 187.

It is also contended that former jeopardy attached upon the discharge of the jury in the justice of the peace court after the verdict and without the consent of the defendant, because the justice of the peace had no right to assess the penalty where the jury rendered a general verdict of guilty without naming the penalty. Counsel cites a number of statutes in force in the Territory of Oklahoma prior to statehood to sustain this contention. Since the passage of the acts of 1907 and 1908 relative to assessment of punishment by juries, contained in Rev. Laws 1910, secs. 5933 to 5935, inclusive, we think this contention is wholly without merit. Section 5934 provides as follows:

“Where the jury find a verdict of guilty, and fail to agree on the punishment to be inflicted, or do not declare such punishment by their verdict, the court shall assess, and declare the punishment and render the judgment accordingly.”

In the trial in the justice of the peace court a verdict of guilty was rendered. The court pronounced judgment on said verdict by inflicting a fine of $50 and costs, and the defendant appealed from this particular judgment to the county court, where he was fined $10 and costs. Th-1 part of the judgment of the justice of the peace court p >- viding a fine of $50 was superseded by the judgment of the county court reducing the fine to $10. Under the express provisions, however, of section 5934, supra, the j is-tice of the peace had authority to assess and declare the punishment within the statutory limits which were within his jurisdiction, and to render judgment accordingly. Blair v. State, 4 Okla. Cr. 359, 111 Pac. 1003.

After a careful consideration of all the questions raised by counsel for plaintiff in error, we believe there is no merit in the contentions made that plaintiff in error was deprived of any substantial right to his prejudice, and the judgment is therefore affirmed.

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


text:
    WILL ROGERS v. STATE.
    No. A-2534.
    Opinion Filed February 2, 1918.
    (170 Pac. 269.)
    VENUE — Embezzlement. If a person, in one county, is intrusted by another with personal property, to be returned to the owner, and afterwards tabes it to another county, and there embezzles it, he cannot be tried for the crime in the county where he received it, unless he had conceived the intent of committing the crime when he received it.

      Appeal from District Court, Bryan County; Jesse M. Hatchett, Judge.

    Will Rogers was convicted of the crime of embezzlement, and appeals. Judgment reversed.
    Case dismissed.

      Jones & McCasUmd and R. M. Rainey, for plaintiff in error.

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

The plaintiff in error, Will Rogers, was convicted in the district court of Bryan county upon information filed against him in said county, charging him with the embezzlement of two mules, the property of one B. C. Freeny. He was sentenced to serve a- term of one year and one day in the penitentiary.

Among other things, it is contended that the district court of Bryan county, as shown by the record in this case, did not have jurisdiction'to try this offense. The question raised was presented to the lower court by a motion for the court to instruct the jury to return a verdict of not guilty, and also by requested instructions to the effect'that although defendant was in possession' of the mules in Bryan county, that fact was not sufficient to prove embezzlement, unless it be also shown that there was a wilful and felonious intent to appropriate the mules in said Bryan county to the use and benefit of said Rogers, and without the consent of said Freeny. The court refused to instruct the jury to acquit, and also refused to give several requested instructions along the line above indicated. We have carefully examined the evidence in this case, and have reached the conclusion from the testimony of the prosecuting witness, R. C. Freeny, that the district court of Bryan county did not have jurisdiction to try this offense.

The possession of the mules was obtained in Bryan county. Freeny let. Rogers have a pair of mules. to use during the crop season, but for some reason or other Rogers did not make a crop with these mules, of which fact Freeny was aware, and afterwards he told Freeny that he wanted to use the mules for the purpose of peddling some goods from house to house, which was satisfactory to Freeny. Freeny testified that all he desired was that Rogers break said mules and return them to him. He was asked on cross-examination if Rogers had authority to take the mules where he wanted to so he broke them to work, and Freeny answered that it made no difference. The evidence shows that Rogers took' the mules into the adjoining county of Atoka, and it was there that he converted same to his own use. There is not a line of testimony to the effect that he formed any intention to convert or embezzle the mules while in Bryan county. So far as the record shows, there was no criminal intent formed to convert the mules in Bryan county by Rogers — no evidence is in the record to show that any such intent existed, and it clearly appears from the testimony of the prosecuting witness that so far as he was concerned it was perfectly all right for Rogers to take the mules into Atoka county, provided he broke them and returned them to him after they were broken to work. There is nothing in the record to dispute the testimony of the prosecuting witness. We are convinced that he told the truth about the transaction, but upon his own statement the venue of this action lay in Atoka county. . .

To sustain the jurisdiction in Bryan county, the state .relies upon the following statute:

Sec. 5616, Rev. Laws 1910: “When' property taken in one county, by burglary, robbery, larceny, or embezzlement,'has been brought into another, the jurisdiction of the offense is in either county. But if, before the beginning of the trial of the defendant in the latter, he be indicted or information be filed against him, in the former county, the sheriff of the latter must, upon demand, deliver him to the sheriff of the former county, upon being served with a certified copy of the indictment or information, and üpon a receipt indorsed thereon by the sheriff of the former county, of the delivery of the body of the defendant, and is, on filing the copy of the indictment and the receipt, exonerated from all liability in respect to the custody of the defendant.”

It will be noted that the wording of this statute requires that “property taken in one county by embezzlement,” etc., be brought into another county, in order for jurisdiction to prosecute to lie in either. There must be a taking by embezzlement in the first county; proof merely of the possession of property in the first county which was afterwards embezzled in the second county is not sufficient to sustain a jurisdiction to prosecute in the first county. All that was proven in this case was that the possession was obtained in Bryan county. This is not sufficient under said statute. In People v. Murphy, 51 Cal. 376, it is held:

“If a person, in one county, is intrusted by another with personal property, to be returned to the owner, and afterwards takes it to another county, and there embezzles it, he cannot be tried for the crime in the county where he received it, unless he had conceived the intent of committing the crime when he received it.”

In the body of the opinion it is said:

“It is true that the property alleged to have been embezzled was received by the prisoner from its owner in the county of San Joaquin; but its receipt constituted no. part of the offense within section 781, Penal Code, unless accompanied with the intent at the time upon the part of the prisoner to fraudulently convert the property to his own use.”

The statutes of California relative to the venue in cases of embezzlement and larceny are identical with those of Oklahoma. Other‘cases to the same effect are People v. Gordon, 133 Cal. 328, 65 Pac. 746, 85 Am. St. Rep. 174; People v. Meseros, 16 Cal. App. 277, 116 Pac. 679; Yost v. State (Tex. Cr. App.) 38 S. W. 192.

We are not unmindful of the fact that some states hold that the prosecution may be maintained in the county in which the possession of the property is obtained without any further evidence showing a fraudulent removal from that county or an intent to convert same upon removal. The decisions that support this rule are from states which have a broader statutory provision than that of Oklahoma, and some of which do not have a constitutional provision that the defendant is entitled to be tried by a jury in the county in which the crime is committed. Embezzlement is defined by the statutes of Oklahoma as follows:

Section 2670, Rev. Laws 1910: “Embezzlement is the fraudulent appropriation of property by a person to whom it has been intrusted.”

Therefore there must be a fraudulent appropriation of the property before a crime has been committed. There was no such appropriation by the defendant in Bryan county, nor is there proven any intent on his part to remove said property from said county for the purpose of appropriating same, nor that he received it with that purpose in view. On the contrary, the showing is here that he took the property out of Bryan county by tacit permission of the prosecuting witness, and was under no contract to account back to ■ the prosecuting witness in Bryan county.

Nor do we believe that section 5612, Rev. Laws 1910, would confer' jurisdiction of the trial of this crime in Bryan county. Said section provides:

“When a public offense is committed, partly in one county and partly in another county, or the acts or effects thereof constituting or requisite to the offense, occur in two or more counties, the jurisdiction is in either county.”

If it be admitted that the receipt or possession of the property is to be deemed an act “requisite to the commission of the offense,” we do not think this would sustain the position of the prosecution, for it is not every act required to consummate the offense that falls within the meaning of this section. But the limitation is “the acts or effects thereof,” which clearly means that there must be a wrongful act done which was necessary to the commission of the offense or to accomplish its purpose in one or the other of the counties. Our constitutional provision (section 20, articlé 2) entitling the defendant to be tried by a jury in the county in which the crime was committed could hardly be construed to authorize a prosecution for a crime in a county where the acts and intentions of the defendant were without criminality. Clearly, then, the construction required to be placed upon section 5612, supra, is that the acts and effects which are criminal must occur in one or the other of the counties, so that the completed crime is consummated by the combination of said criminal acts in the two counties. It can hardly be successfully contended that the constitutional provision aforesaid would permit the state to prosecute for crime in a county where it is not shown that the defendant had ever done a wrongful act, or intended so to do.

We think, therefore, that the foregoing opinions state the proper rule, and should be followed where the constitutional provisions and the statutes are like those in Oklahoma.

The judgment is therefore reversed, with instructions to the trial court to dismiss the cause.

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


text:
    GARNETT ROEBUCK et al. v. STATE.
    No. A-2542.
    Opinion Filed February 2, 1918.
    (170 Pac. 277.)
    3. APPEAL AND ERROR — Discretion of Trial Court — Continuance. An application for a continuance is addressed to tbe sound discretion of tbe trial court, and tbe ruling of that court will not be reviewed unless an abuse of discretion is shown.

      2. INDICTMENT AND INFORMATION — Demurrer—Objection to Introduction of Evidence. Objections to tbe sufficiency of an indictment or information should be taken by a demurrer thereto as provided by our Code of Criminal Procedure. Section 5791, Rev. Laws 1910, our code further provides. “When the objections mentioned in section 5791 appear upon the face of the indictment or information, they can only be taken by demurrer, except-that the objection to the jurisdiction of the court over the subject of the indictment or information, or that the facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty, and in arrest of judgment.” Section 5799, Rev. Laws 1910. Under this provision, if it apijears .that the facts stated do not constitute a public offense, an objection to the introduction of evidence on that ground is sufficient to raise the question.
    3. INDICTMENT AND INFORMATION — Absence of Preliminary Proceeding — Variance—Objections. Objections to an indictment or information based upon the absence of any essential preliminary proceeding should be made by proper motion or plea before pleading to the merits, and the question of a variance -between the allegations of the original complaint before the committing magistrate and the information can be raised only by proper motion or plea filed before the jury is sworn.
    4. LARCENY; — Cattle Theft — Sufficiency of Evidence. In a prosecution for cattle theft, the evidence examined and held sufficient to support the verdict.

      Appeal from District Courts Choctaw County; C. E. Dudley, Judge.

    Garnett Roebuck, Will Brown, and D. Graham were convicted of cattle theft, and they appeal.
    Affirmed.

      Works & Copping, for plaintiffs in error.

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

The plaintiffs in error were jointly tried and convicted in the district court of Choctaw county on an information charging that:

In said county on or about the 23d day of September, 1914, “the said Will Brown, D. Graham, and Garnett Roebuck did then and there unlawfully, willfully, wrongfully, feloniously, and by stealth and fraud take, steal, and carry away two certain cows the personal property of Jim Ar-rett, without the consent and against the will of the said' Jim Arrett, and with the felonious intent on the part of the said Will Brown, D. Graham, and Garnett Roebuck to convert and appropriate the said cows to their own use and benefit and deprive the owner, the said Jim Arrett, thereof, contrary to," etc.

The jury by their verdict assessed the punishment of Garnett Roebuck at five years’ imprisonment, and the punishment of Will Brown and D. Graham at three years’ imprisonment in the penitentiary. From the judgments rendered on the verdicts they appeal.

It appears from the record that upon arraignment the defendants entered pleas of not guilty. When the case was called for trial, the defendants moved for a continuance, and filed the affidavit of the defendant Roebuck in support thereof, the substance of which was that the defendants could not safely proceed to trial without the testimony of one Garfield Colbert, a material witness who, if present, would testify that on the day alleged in the information he saw some parties put two cows in the slaughter pen east of Hugo; that he was acquainted with the defendants and they were not the persons who put said cows in said pen; affiant stating that they had exercised due diligence to- have said witness present by causing a subpoena to fissue for him, and the return of the sheriff showed that said ■witness could not be found in Choctaw county; “that said witness is a resident of Choctaw county, and has been for a number of years, and affiant believes that if this cause is continued until the next term of court he can have said witness present or have his testimony.” It further appeared that Garfield Colbert was a fugitive from justice. Error is assigned on the action of the court in denying the continuance.

The granting or refusal of a continuance rests in the sound discretion of the trial court, and the ruling of that court will not be reviewed unless an abuse of discretion is shown. We think that the trial court acted within its discretion in denying the continuance.

It is next urged that the information is insufficient. The record shows that the first objection to the sufficiency of the information was made when the prosecuting witness was sworn and called as the first witness for the state, at which time defendants’ counsel objected to the introduction of testimony:

First. “For the reason that the information fails to charge any offense against the laws of the state; and, second, no property is described in the information with such certainty as to be a bar to a further prosecution under another information, and is so indefinite as not to put the defendants on notice as to the offense with-which they are charged, in order that they can make a proper defense in this case.”

Which objection was overruled and exception allowed.

Objections to the sufficiency of an indictment or information should be taken by a demurrer thereto, as provided by our Code of Criminal Procedure. Section 5791» Rev. Laws 1910.

Our Code further, provides:

“When the objections mentioned in section 5791 appear upon the face of the indictment or information, they can only be taken by demurrer, except that the objection to the jurisdiction of the court over the subject of the indictment or information, or that the facts stated do-not constitute a public offense, may be taken at the trial, under the plea of not guilty, and in arrest of judgment.”' (Section 5799, Rev. Laws 1910.)

Under this provision, if it appears that the facts stated do not constitute a public offense, an objection to the introduction of evidence' on that ground is sufficient to raise the question. However, when the objection to an information for a defect of form apparent on. the face thereof is raised for the first time by objection to the introduction of evidence, it comes too late, and the objection should be overruled if the facts stated- constitute a public offense. The information in this ■ case, is unquestionably sufficient, and would be good on a demurrer thereto. It follows that the objection made was very properly overruled.

The remaining assignments of error require a brief statement of the evidence.

Jim Arrett testified that he lived southeast of Hugo; that his cattle ranged between his home and Horse Prairie; that he missed one red cow pied on her shoulder, and one red and white spotted cow branded “J. E.” on the hip, from his range, and the next day he found these cows in a pen at Hugo.

Jim Merrill testified that he lived southeast of Hugo and saw the defendants driving two cows past his place; one was a red cow pied across the shoulder and the other a red and white speckled cow; it was just before sun-up; that they were going west; that Jim Arrett lived about a mile and a half southeast; that Roebeck was riding a bay horse, Brown was riding a sorrel, and Graham was riding a mule.

George Oakes testified that he lived four and one-half miles southeast of Hugo; knew the defendant Roebuck; saw the defendants early in the morning driving two cows; one was red and one was red and white. Roebuck was riding a bay horse, another a sorrel, and the other was riding a mule bareback; that he did not notice any 0 brands; that he telephoned Mr. Collins that he saw these negroes driving the cows.

C. J. Maurer testified that he was in the butcher business at Hugo, and identified the defendant Roebuck as the ma-n who came into his place of business and offered to sell him two cows which he had out in the Mus-grove slaughter pen.

Deputy Sheriff Upchurch testified that he was notified that some cattle, were being driven by Mr. Oakes’ place, and with Deputy Sheriff Ratclif went, about three miles east of Hugo; that it had rained the day before and they could see where two riding horses and one • a mule had driven two cows, and they tracked them to the Mus-grove slaughter pen and there found the cows; that they returned to Hugo and arrested Will Brown and Garrett Roebuck; that Brown said he was just helping, and Roebuck said he just happened to be with these parties.

Deputy Sheriff Ratclif testified that he arrested the defendant Graham and he asked him about driving the cows and he said he was only helping the others and knew nothing about it. ,

For the defense, Ben Willis testified that he saw Gar-nett Roebuck, and two other negroes southeast of town near the brickkiln driving two cows; one was a red and white spotted cow and branded with three D’s on hip and side; that Roebuck’s horse was limping and one of "the negroes was riding on a sorrel mule; that it was between 8 and 9 o’clock in the morning of September 23d.

Jim Johnson testified that he kn'ew the cows owned by Garnett Roebuck’s mother; that one was a red and white spotted cow and one was an old speckled cow, and they were branded with three D’s and that he knew Jim Ar-rett’s cattle and his brand was “J. E.”; that on September 23d, he saw the defendants driving two cows, but did not notice the brands.

Garnett Roebuck’s wife testified that they lived with his mother west of Hugo; that on September 23d Garnett came home just before noon; that these two boys were with him and they were driving two red and white spotted cows that were branded “D” in three places.

The defendant Roebuck testified that on September 22d he was down on Horse Prairie looking for his mother’s cattle; that Will Brown was with him and he asked D. Graham to help drive the range; that he found two of her cows; one was red and white speckled, the other red and white spotted branded with three “D’s”; that he started home the next morning after sunup and met George Oakes in the road near his home; that they put the cattle in a little pasture; that he never put a cow in the Musgrove slaughter pen and never told any one that he had two cows in the slaughter pen for sale; that Will Brown and D. Graham were hired'and paid by him to help bring these cattle home.

The defendant Graham testified that he helped drive Louisa Roebuck’s cattle to her home; that he does not know where the Musgrove slaughter pen is and ‘ did not make any statement to Mr. Ratclif as to what he was doing with the cattle.

The defendant Brown testified that Garnett Roebuck hired him to help him with the cattle; that he does not know where the Musgrove slaughter pen is; that he supposed that the cattle belonged to Louisa Roebuck.-

When the evidence was all in the defendants filed what they term a plea in abatement on the ground that they had never, nor had either of them, had an examining trial and never had waived such examination, in that the complaint filed before the examining magistrate charged them with the theft of two cows branded “J. T. connected,” the property of- Jim “Erett”; that these facts developed after the commencement of this trial. Which plea was overruled and exception allowed.

Thereupon defendants moved the court to instruct the jury to return a verdict of not guilty for the following reasons:

“(1) .Because the evidence in the cause is insufficient upon which to base a verdict of guilty and any verdict of guilty would be contrary to the law and the evidence.
“(2) Because there is a variance in the evidence adduced and the allegations of .the information filed in this cause, and the charge against these defendants in the examining trial, in this, that the information charges the larceny of two cows, without any brand or description whatever, The criminal complaint made- before the justice of the peace, upon the examining trial, and upon which these defendants were held and are now being tried, charged the defendants with larceny of two cows, the property of Jim Érett, one dark red cow branded J. T. connected, and one red and white spotted cow branded J. T. connected, the property of Jim Erett — and the evidence adduced by the state upon which the state seeks a conviction shows that the two cows are branded J. E.; that the description of the two cows is not the same as the two cows with which they stand charged with stealing, and were held upon examination to answer for stealing.”

Which motion was overruled, and which ruling of the court is assigned as error.

The defendants waived preliminary examination and-were held to answer to the district court upon a complaint charging the sanie offense for which the defendants were informed against and tried in the district court, and, if it did not, the question of a variance between the allegations of the original complaint and the information could only be raised by a motion to set aside or quash the information, filed before the trial began; otherwise it is •waived. In this case it appears from the record there was no such variance, and if a plea or motion properly raising the question had been entered, it would have been the duty of the court below to overrule the same.

In Tucker v. State, 8 Okla. Cr. 428, 128 Pac. 313, it is said:

“We think that it was never contemplated that the information should charge the crime in the same language,, or word for word as charged in the preliminary complaint filed before the committing magistrate,”

In Ponosky v. State, 8 Okla. Cr. 116, 126 Pac. 451, it was held that:

“When it. appears that the charge in the complaint before the committing magistrate- is substantially the same as that charged in the information, a motion to quash on the ground that the offense charged in the information differs from that charged in the complaint upon which the defendant was held to answer is unavailing, and was properly overruled.”'

In our opinion the court very properly overruled the - motions filed by the defendants.

The only other assignment of error argued by counsel for the defendants i's that the trial court erred in not charging the jury on the law of circumstantial evidence. It is only necessary to say, in disposing of this assignment, that no objection was made nor exception saved to any of the instructions given, and that no request for such instruction was made. It may be added that had such an instruction been requested, under the evidence in the case it would have been properly refused.

Finding no error in the record, the judgments appealed from are affirmed.

ARMSTRONG and MATSON, JJ., concur.