author: BESSEY, J. MATSON, P. J.

text:
    WILLIAM BARNGROVER v. STATE.
    No. A-4525.
    Opinion Filed Sept. 20, 1924.
    (229 Pac. 304.)
    (Syllabus.)
    1. Intoxicating Liquors — Evidence of Reputation of Place — Maintaining Liquor Nuisance. In a prosecution in which the charge is made that the defendant kept and maintained “a public nuisance at his home and premises (describing its location), the same being a place where spirituous liquors are bartered, sold, and given away,” it is competent to introduce evidence of the general reputation of the place as being a place where such liquor is kept or distributed in violation of law; but such evidence of reputation alone will not support a conviction. Evidence of such reputation is competent only to corroborate some direct testimony indicating that the place is a public nuisance, as charged.

      2. Same — Indefinite Proof of Possession of Liquor at Private Residence Insufficient. Where the charge is the keeping and maintaining of a public place where intoxicating liquors are being sold, indefinite proof of mere possession of an undetermined quantity at a private residence is not sufficient to sustain the charge without some direct proof indicating that it was a public place or that liquor had there been sold in violation of law.
    (a) The direct evidence adduced on this point held insufficient.
    Matson, P. X, dissenting.
    Appeal from County Court, Payne County; Raymond H. Moore, Judge.
    William Barngrover was convicted of maintaining a public nuisance, and he appeals.
    Reversed and remanded.
    John P. Hickam, for plaintiff in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

William Barngrover, plaintiff in error here, defendant in the trial court, was, in the county court of Payne county, on the 18th of October, 1922, convicted of keeping and maintaining a public nuisance, where spirituous liquors were bartered, sold, and given away, with his punishment fixed at confinement in the county jail for a period of thirty days and to pay a fine of $50.

The defendant urges that the conviction should be set aside because the evidence did not support the verdict; that the conviction is based upon evidence obtained by the search of the private residence of the defendant, without any showing that this residence was a public place, and without proof that spirituous liquor was there bartered, sold, or given away, excepting only the testimony of the raiding officers, who said that the place had the reputation of being a place where intoxicating liquors were sold.

The five officers who made the raid were the only witnesses for the state. In making the raid they procured evidence, largely circumstantial, that the defendant had had possession of an undetermined quantity of whisky, but proof of possession is only one of the elements of the offense of keeping and maintaining a public nuisance. To sustain a conviction on that charge there must be proof tending to show that the place was a place of public resort where intoxicating liquors were consumed or from which distribution was made. There was no proof whatever that this residence was a place of public resort and no positive proof that any person had procured intoxicating liquor there, excepting the testimony of a policeman who, in reply to the question, “Did you watch that place on the 20th day of May?” said, “I watched old man Feas-ter. He was headed towards Barngrover’s, going down that way, and I was watching for him to come back. He went to Barngrover’s and turned east, and in a little bit he came back.” This policeman then testified that he arrested Feaster with a bottle of whisky in his possession; that he took him over to the police station, and then, with other officers, returned and raided the Bamgrover residence.

This residence was in the vicinity of other residences, near stores and shops, and this officer did not see Feaster enter the residence or come out of it, and did not know positively where Feaster got the whisky.

The raiding officers said the defendant did not at once respond to their demand for admittance; that they heard moving footsteps inside the house and the sound of breaking glass. After an entrance was effected, they found in the upper story of the residence a quantity of baled hay and some loose hay on the floor; they found that some of this hay was damp and gave off an odor of whisky; and they found a broken bottle containing a small quantity of whisky. They also found fragments of two glass containers of one-gallon capacity, and a hammer nearby, also a funnel.

The defendant testified that this place was his residence, occupied by the five members of his family; that he was and had been employed steadily in lucrative positions by oil companies; that the upstairs portion of his residence consisted of two rooms which were used as storerooms and playrooms for the children; that there was some junk — odds and ends,' including some bottles — in this upstairs part of the house when he moved in; that he did not place the bottles there and-did not break them, and knew nothing about any funnel being there. Defendant denied that he ever had whisky in this upstairs part of the house.

Under this state of the evidence, even though the jury found that there was or had been whisky in the house, it does not necessarily follow that the defendant had it there for the purpose of sale or for any illegal purpose constituting a necessary element of maintaining a public nuisance. None of the officers actually knew of anything indicating that whisky was being sold there, except that the place bore such reputation.

A portion of the statute upon which this prosecution was based (section 7022, Comp. Stat. 1921), is as follows:

“All places where any spirituous, vinous, fermented or malt liquors, or any imitation thereof or substitute therefor; or any malt liquors or compounds of any kind or description whatsoever, whether medicated or not, which contain as much as one-half of one per centum of alcohol, measured by volume, and which is capable of being used as a beverage, except preparations compounded by any licensed pharmacist, the sale of which would not subject him to the payment of the special tax required by the laws of the United States; is manufactured, sold, bartered, given away or otherwise furnished in violation of any provision of this act; and all places where any such liquor is kept or possessed by any person in violation of any provision of this act; and all places where persons congregate or resort for the purpose of drinking any such liquor, are hereby declared to be public nuisances, and upon the judgment of any court of record finding such place' to be a, nuisance under this section, the sheriff, his deputy, or undersheriff, or any constable of the proper county, or marshal or police of any city where the same is located, shall be directed to shut up and abate such place by taking possession thereof and destroying all liquors found therein, the keeping or sale of which is prohibited by this act, together with all signs, screens, bars, bottles, glasses, and other property used in keeping and maintaining said nuisance; and the owner or keeper thereof shall, upon conviction, be adjudged guilty of maintaining a public nuisance, and shall be punished by a fine of not less than fifty dollars nor more than five hundred dollars, and by imprisonment in the county jail not less than thirty days nor more than six months. ’ ’

In numerous cases this court has held that, where one is charged with keeping a place in such manner as to constitute a public nuisance, its general reputation as such may be shown. Hurst v. State, 25 Okla. Cr. 102, 219 Pac. 151; Friedman v. State, 19 Okla. Cr. 124, 198 Pac. 350; Bland v. State, 18 Okla. Cr. 514, 196 Pac. 732; Tindell v. State, 18 Okla. Cr. 721, 196 Pac. 555; Felas v. State, 16 Okla. Cr. 631, 185 Pac. 839; Sibenaler v. State, 16 Okla. Cr. 576, 185 Pac. 448; Davis v. State, 16 Okla. Cr. 372, 182 Pac. 908; Dunbar v. State, 15 Okla. Cr. 513, 178 Pac. 699; Ward v. State, 15 Okla. Cr. 150, 175 Pac. 557; Cameron v. State., 13 Okla. Cr. 692, 167 Pac. 339; Caffee v. State, 11 Okla. Cr. 263, 145 Pac. 499.

In each of the cases just cited there was evidence of a ' positive character indicating that the place was a place of public resort, or that it contained bar fixtures or other paraphernalia indicating an illegal intent to sell or dispose of liquor, or proof that the place was frequented by persons who habitually violated the liquor or gambling laws of the state.

The corpus delicti cannot be proven by reputation alone. It would be -a dangerous and unwarranted assumption of authority for this court by judicial construction to read into this public nuisance statute a proviso that the keeping or maintaining of a public place where liquors are sold or consumed could be established by reputation alone. The true character and the reputation of a place might be quite different. A bad reputation might be founded on mere rumor. Insidious slanderers or tale-bearers might give to a person or place a bad reputation. entirely undeserved. Reputation alone, without some evidence of a positive nature, should not be held sufficient to establish a specific fact or condition.

Quoting from the state’s brief in Patterson v. State, 17 Okla. Cr. 495, 190 Pac. 271, this court said:

“The evidence, attempting to show that persons congregated and resorted on the defendant’s premises for the purpose of drinking such liquors, wholly fails. The evidence as to the general reputation of the premises is without force.”

In Francis v. State, 16 Okla. Cr. 543, 185 Pac. 126, this court said:

“A legal conviction for keeping a bawdyhouse cannot be had upon evidence alone that the house in question has the general reputation [of being a place] where lewd and lascivious persons of both sexes congregate for the purpose of unlawful sexual intercourse.”

And in the case of Putman v. State, 9 Okla. Cr. 535, 132 Pac. 916, 46 L. R. A. (N. S.) 593, the first syllabus reads:

“In prosecutions lor keeping a house of ill fame, it is competent to introduce evidence of the general reputation of the house in the neighborhood in which it is situated as to its being a place where lewd and lascivious persons of both sexes congregate for the purpose of unlawful cohabitation or sexual intercourse. But such evidence alone will not support a verdict. It must be corroborated by some other fact or circumstance tending to prove the character of the house.”

Unless the state on another trial of this cause can produce some direct evidence tending to show that the residence of defendant was a place of public resort, or that it was a place where intoxicating liquor was kept for sale, this prosecution should abate.

The judgment of the trial court is reversed and the cause remanded for further proceedings in accordance with this opinion.

DOYLE, J., concurs.

MATSON, P. J.

I dissent from the conclusion reached by the majority of the court in this case. The statute makes “all places where any intoxicating liquors are kept or possessed by any person in violation of any provision of the act” a public nuisance. While the record is not definite as to the amount of whisky discovered by the searching officers at the defendant’s residence, a quantity of this whisky was introduced in evidence. How much also is not shown by the record. Whether a quantity sufficient to be prima facie evidence of an intent to violate the law is not disclosed. In this court the burden is on the appellant to bring before the court enough of the record to enable the court to pass intelligently upon all the questions presented in the appeal. If the appellant does not do so, all presumptions will be resolved against him on appeal. There is no presumption of innocence after a verdict of guilty. Jones v. State, 10 Okla. Cr. 216, 136 Pac. 182, 137 Pac. 122; Edwards v. State, 9 Okla. Cr. 306, 131 Pac. 956; Coleman v. State, 6 Okla. Cr. 271, 118 Pac. 594; Starr v. State, 9 Okla. Cr. 210, 131 Pac. 543; Johnson v. State, 21 Okla. Cr. 17, 204 Pac. 311.

The appellant as a witness in the trial court testified that he did not know that this whisky was in his residence. He did not claim he had it there for his own use. So the jury, in my opinion, were not justified in finding that, if the whisky was there and in the possession of the appellant, it was there for a lawful purpose. -

Appellant’s conduct at the time of the search clearly indicates to my mind a guilty conscience. When the officers were outside of his residence, and had made known their presence there, the appellant was on the lower floor of the residence. He immediately went up stairs. This whisky was located in the second story. The officers heard the breaking of glass, and when they went into the house and up stairs they found two glass gallon bottles and two quart bottles which had evidently contained whisky, also some baled hay, a hammer, and a funnel. These bottles had been broken, and the broken glass was on the floor, and recently spilled whisky on the floor, and the hay smelled strongly of whisky, and a quantity of whisky was found in some of the broken pieces of bottle.- The defendant admits that he had been living in that house five months at the time the search was made. He admits that he had put the hay in the room in which the whisky was found. However, he denied that he knew anything about the whisky being in that room. It does not stand to reason that a man of ordinary intelligence could live in a house for five months with two five-gallon bottles of whisky and two quart bottles in a room in his house, unconcealed, without his having gained some knowledge of its presence there. This conclusion is strengthened by the fact that he himself placed the bales of hay in that same room, and that the bales of hay and the whisky were close together cannot be successfully denied under the proof in this ease. That the bottles had been recently broken at the time of the raid is evidenced by the fact that there was a considerable quantity of whisky on the floor of the room, and that the hay smelled strongly of whisky. Alcohol evaporates rapidly when exposed to the air, and the smell soon disappears. This is a matter of common knowledge which the jury undoubtedly considered. The circumstances of the finding of a funnel in the room where this whisky was discovered indicates that whoever had the whisky was using the funnel for the purpose of filling smaller receptacles from the five-gallon bottles.

There is also some circumstantial evidence in the record from which the jury might have inferred that the appellant made a sale of a half pint of whisky to a man by the name of Feaster. Feaster was not produced as a witness by either side. The record shows that he left that community shortly after this occurrence and had not been heard of since. The state should have obtained his presence, perhaps, by having arrested him for unlawful conveyance of intoxicating liquor, but the fact that he was not produced by either party, in my opinion, creates no greater presumption one way than the other. All together, the circumstances are consistent with the inference of guilt.

No question is raised in this appeal as to the validity of the search. There is evidence that the place where this liquor was found had the general reputation of being a place where intoxicating liquors were kept for sale and sold.

I do not think this court should substitute its judgment for that of the jury and determine what the proper infer-enees are from, the circumstantial evidence, and what weight should be given to evidence that is conflicting.

It has always been the rule of this court that before a conviction will be reversed upon the ground that the verdict is contrary to the evidence this court must find that there is no testimony in the record from which the jury could rationally conclude that the appellant was guilty. Ostendorf v. State, 8 Okla. Cr. 362, 128 Pac. 143; Caple v. State, 3 Okla. Cr. 621, 105 Pac. 681; Bishop v. State, 9 Okla. Cr. 175, 130 Pac. 1173.

This conviction is not based solely on proof of the general reputation of the appellant’s place of residence as being a place where intoxicating liquors were sold.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    MATTIE CLARK v. STATE.
    No. A-4372.
    Opinion Filed Sept. 20, 1924.
    (228 Pac. 791.)
    (Syllabus.)
    1. Homicide — Evidence Supporting Conviction of Manslaughter in First Degree. In a prosecution for murder, evidence considered, and held sufficient to support the verdict convicting the defendant of manslaughter in the first degree.
    2. Evidence — Certified Testimony at Preliminary Examination of Absent Witness. In a prosecution for murder, where the testimony of a witness was given on the preliminary examination, and his testimony was taken by the reporter in the presence of the defendant and her counsel, who had opportunity to cross-examine him, and such testimony is transcribed, .duly certified, and filed with the court clerk, held that, if the witness is not present at the final trial, and the state shows that such witness cannot with due diligence be found within the jurisdiction of the court, the testimony of the witness may be read to the jury.
    3. Same — Predicate Sufficient for Introducing Certified Testimony. Proof of predicate for the introduction of the transcript of the testimony of an absent witness taken upon the preliminary examination held competent and sufficient.

      Appeal from District Court, Tulsa County; Redmond S. Cole, Judge.
    ■Mattie Clark was convicted of manslaughter in the first degree, and she appeals.
    Affirmed.
    E. I. Saddler and C. E. Corbett, for plaintiff in error.
    George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error, Mattie Clark, was by information charged with the murder of one Elnora Hurst on the 27th day of March, 1920. Upon her trial she was found guilty of manslaughter in the first degree and her punishment fixed at imprisonment in the penitentiary for the term of four years. She has appealed from the judgment rendered upon such conviction.

It is conceded that in the city of Tulsa, in the forenoon of thé 27th day of March, 1920, the defendant, Mattie Clark, the wife of one Fay Clark, killed Elnora Hurst, her mother-in-law, by shooting her four or five times with a pistol.

The theory of the defense was excusable homicide on the ground of insanity of the defendant at the time of the commission of the homicide, and the only question for the jury on the evidence was whether the homicide was excusable on the ground of insanity, as was claimed by the defendant, or murder or manslaughter in the first degree.

The evidence shows that the defendant, Mattie Clark, married Fay Clark in January, 1918, and they made their home off and on with his mother, Elnora Hurst, on North Greenwood street, Tulsa.

"William Cherry testified that the defendant’s mother-in-law lived next door to him, and the defendant and her husband, Fay Clark, lived with her; that he had a taxi stand at the Red Wing Drug" Store, corner of Greenwood and Brady streets, Tulsa; that he saw the defendant at the Red Wing Drug Store, and had a conversation with her, in which she said that her husband hit her this morning; that the defendant was wearing a coat or cloak, and had her hand under the same as though she was holding her stomach; a few minutes later the deceased, Elnora Hurst, came by and spoke to him, and then walked north on the Interurban tracks; that the defendant came out of the drug store and started on behind her, and he heard her call, “Mother, Mother”; that deceased and the defendant had a few words which he did not hear; then he saw the defendant pull a pistol and shoot at Elnora Hurst, firing four or five shots; that they were about thirty feet from him when the first shot was fired; that he ran after the defendant and overtook her and said, “Look here, Mattie, what is the matter with you?” and she said, “Mr. Cherry, Mama has mistreated me,” and he said, “Don’t you know that this is wrong,” and she said, “I could not help it, mother mistreated me, I only wanted to get my clothes from the house”; that she gave him the pistol, and he said, “Come on to the police station,” and she said, “All right”; that they got in his car, and he drove to the police station with her, and gave the gun to the officers.

Horace Calvert testified that he knew the defendant and her mother-in-law, Elnora Hurst; that he was sitting in Cherry’s car near the Red Wing Drug Store, and saw the defendant in the drug store; Cherry got out of the car and went in the drug store to answer a telephone call, and then came back out, and the deceased, Elnora Hurst, came by, walking north on the Sand Springs’ track; that he saw the defendant come out of the drug store, and she called, “Mother,” and Elnora Hurst turned and kept walking, and the defendant began shooting with a pistol; that they were eight or nine feet apart when the first shot was fired.

Ernest Pierce testified that he was standing on the curb near the Red Wing Drug Store, saw Elnora Hurst walking north on Greenwood street, and saw the defendant come out of the drug store; that the defendant followed and called Elnora Hurst, then fired four or five shots; that Elnora Hurst went on and fell into Stratford's Drug Store, which is about a hundred and twenty-five feet from the Red Wing Drug Store.

In support of the defense of insanity the evidence tended to show that the defendant at the time of the homicide was pregnant, and had been for four and one-hálf months; that the deceased, Elnora Hurst, had abused and mistreated her, and as a result of such treatment the defendant had suffered a miscarriage; that the night prior to the homicide there was a fight between the defendant and her husband, and the deceased engaged in the struggle, resulting in the defendant being struck in the stomach and struck on the head by her husband with a flashlight and thrown out into the street in her night clothes; that this and other cruel treatment during the time of her pregnancy had caused puerperal insanity, and she was not responsible for her acts and deeds.

The errors assigned question the sufficiency of the evidence to sustain the verdict, and that the court erred in allowing the evidence of Dr. C. E. Smith, taken at the preliminary hearing, to be read on the trial of the cause over the objections of the defendant.

Counsel in their brief say:

“We claim that the state failed to establish a predicate for this evidence, and that the proper foundation for the same was not laid at the time it was offered and admitted by the trial court, over the objections of the defendant.”

It appears that on the preliminary examination Dr. C. E. Smith, a witness for the state, testified that he was a prac-tieing physician in Tulsa, and on the day Elnora Hurst was shot was called and found her in the drug store; that he took her to the hospital and made an examination, and found that she was suffering from four gunshot wounds entering the body from the rear; that she died during said examination from internal hemorrhage, the result of the gunshot wounds.

Considering the competency of the testimony as it is met by the objections urged, it appears that a witness called by the state, H. C. Peek, deputy sheriff, testified:

“I have been acquainted with Dr. C. E. Smith some eight or ten years; I received' a subpoena issued by the court clerk for Dr. Smith and other witnesses for the state in this case; I went to his place of residence, and was informed that he was in the state of Florida; I haven’t seen Dr. Smith for three or four months, and my information is that he has been in the state of Florida for the past three or four months. I made return on the subpoena that he could not be found.”

The subpoena and the return of ■ the officer was then offered in evidence.

Ernest Pierce testified that he knew Dr. C. E. Smith for three or four years; that Dr. Smith lived at the Red Wing Hotel; that witness lived at the same hotel and saw him there every day before the doctor left the city three or four months previous; that he had received information from others at the hotel that Dr. Smith went to Chicago.

The record further reads as follows:

“The Court: Is there any question about the identity of this transcript?
“Mr. Saddler: No, I guess not.
“Mr. Goldesberry: It is agreed by and between counsel for the state and the defendant that the transcript of the testimony taken at the preliminary examination in this case, and filed in open court on December 6, 1921, is the testimony taken at the preliminary examination of the state witnesses who testified before Justice of the Peace H. J. Gray, taken in shorthand by J. D. Payne, district court reporter, and transcribed by him and signed and certified to by him.
"The Court: Go ahead and read the testimony. (Exception reserved.)”

It is a well-settled rule in this state that, where the testimony of a witness was given at a preliminary examination and his testimony taken by the reporter in the presence of the defendant and his counsel, who had opportunity to cross-examine him, and such testimony is transcribed and filed with the court clerk, and if such witness is not present at the final trial, and the state shows that such witness cannot with due diligence be found within the jurisdiction of the court, the testimony of the .witness may be read to the jury. Jeffries v. State, 13 Okla. Cr. 146, 162 Pac. 1137; Fitzsimmons v. State, 14 Okla. Cr. 80, 166 Pac. 453.

It follows that the objections were properly overruled, and there was no .error committed in allowing the subpoena for this witness and the return thereon to be received in evidence for the purpose of showing what had been done towards serving the same upon the absent witness.

Complaint is made of the charge of the court in that the same improperly submitted the law of insanity as a defense.

The court by its instructions authorized the jury to convict the defendant of murder or manslaughter in the first degree, or to acquit her on the ground of insanity, and no objections were made or exceptions taken thereto. The instructions as to the defense of insanity conform to well-settled rules declared by this court in Adair v. State, 6 Okla. Cr. 284, 118 Pac. 416, 44 L. R. A. (N. S.) 119; Alberty v. State, 10 Okla. Cr. 616, 140 Pac. 1025, 52 L. R. A. (N. S.) 248; and Smith v. State, 12 Okla. Cr. 307, 155 Pac. 699.

It is also insisted that the verdict is contrary to the evidence.

The weight of the evidence on the issue of insanity was a question for the jury under the instructions of the court, which gave the defendant the benefit for all reasonable doubt. We think the evidence fully warranted the findings of the jury.

The case appears to have been tried with exceptional care and marked ability, both on the part of the judge who presided and the able counsel who represented the state and those who represented the defendant as well, and the jury were evidently in sympathy with the defendant.

It is apparent that justice has been done, and, finding no error prejudicial to the substantial rights of the defendant, the judgment rendered on the verdict is affirmed.

MATSON, P. J., and BESSEY, J., concur.


author: BESSEY, J.

text:
    GUS LA FORGE v. STATE.
    No. A-4530.
    Opinion Filed Sept. 27, 1924.
    (228 Pac. 1111.)
    (Syllabus.)
    Former Jeopardy- — Punishment for Illegal Possession of Liquor Under Federal Law as Bar to Punishment for Same Possession Under State Law. Our statutes provide that whenever it shall appear upon the trial that the accused has already been acquitted or convicted upon any criminal prosecution under the laws of another state, government, or country, founded upon the act or omission in respect to which he is upon trial, this is a sufficient defense.
    (a) By virtue of this statute, where one has been punished for the illegal possession of intoxicating liquor under the federal law, he cannot be again punished for the illegal possession of the same whisky, at the same time and place, in violation of the laws of this state.
    Appeal from County Court, Payne County; Raymond F. Moore, Judge.
    Gus La Forge was convicted of the illegal possession of intoxicating liquor, and he appeals.
    Reversed.
    Walter Mathews, for plaintiff in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

Gus La Forge, plaintiff in error, was in the county court of Payne county found guilty of the unlawful possession of certain spirituous liquor. Iiis punishment was fixed by the jury at imprisonment in the county jail for a period of 30 days and to pay a fine of $100. From the judgment on the verdict he appeals.

The accused entered his plea of not guilty, and also interposed a plea of former jeopardy, or plea in bar, showing that he had been convicted and punished for the illegal possession of the same spirituous liquor in the federal court for the Western district of Oklahoma. Proof of that fact was made by the introduction in evidence of the records of the case in federal court, supported by oral testimony showing that the liquor involved in both cases was the same, and that the illegal possession charged was at or about the same time.

By the great weight of authority in both the federal and state courts it has been held that punishment for possession or transportation of intoxicating liquors under the federal law does not prevent punishment under a state law for the same character of offense growing out of the same identical act; and that such conviction for a violation of a state law is not necessarily in conflict with the state or federal constitutional provisions against double jeopardy. The underlying reasons for sueb holding are well and fully discussed in the following eases: United States v. Lanza, 260 U. S. 377, 43 Sup. Ct. 141, 67 L. Ed. 314; State v. Rhodes, 146 Tenn. 398, 242 S. W. 642, 22 A. L. R. 1544, with annotations at page 1551; Annotations, 16 A. L. R. 1237.

However, in this state this question of double punishment is governed by statute. Section 2290, Comp. Stat. 1921, provides as follows:

“Whenever it appears upon the trial that the accused has already been acquitted or convicted upon any criminal prosecution under the laws of another state, government or country, founded upon the act or omission in respect to which he is upon trial, this is a sufficient defense.”

In the case of United States v. Lanza, supra, at the conclusion of the opinion written by Chief Justice Ta|t, it is said:

“If Congress sees fit to bar prosecution by the federal courts for any act when punishment for violation of state prohibition has been imposed, it can, of course, do so by proper legislative provision; but it has not done so. If a state were to punish the manufacture,- transportation, and sale of intoxicating liquor by small or nominal fines, the race of offenders to the courts of that state to plead guilty and secure immunity from federal prosecution for such acts would not make for respect for the federal statute, or for its deterrent effect. But it is not for us to discuss the wisdom of legislation; it is enough for us to hold that, in the absence of special provision by Congress, conviction and punishment in a state court, under a state law, for making, transporting, and selling intoxicating liquors, is not a bar to a prosecution in a court' of the United States, under the federal law, for the same acts.”

The principle announced by Chief Justice Taft concerning federal statutory modifications relating to double punishment will apply with equal force to state statutes. Our statute above quoted (section 2290, C. S. 1921) is susceptible of but one construction. And a conviction in a federal court for the same act as charged in a prosecution in a state court is a conviction under the laws of a different “government” within the meaning of the statute; and by virtue of the statute alone such conviction is a complete defense to a prosecution for the same act or omission in the courts of this state. If the Legislature desires to abrogate this rule and fall in line with other states pursuing a contrary policy, such change must be made by the Legislature. This court would have no right by judicial construction to abrogate a plain provision of the statute in order to harmonize our practice with that of other states, or for any other reason.

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

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


text:
    A. F. FINLEY v. STATE.
    No. A-4480.
    Opinion Filed Sept. 27, 1924.
    (228 Pac. 1003.)
    (Syllabus.)
    1. Statutory Provisions. If a defendant, prosecuted for a public offense, whose trial has not been postponed on his application, is not brought to trial at the next term of court in which the indictment or information is triable after it is filed, the court must order the prosecution dismissed, unless good cause to the contrary be shown. Section 2913, Comp. St. 1921.
    2. Continuance — Right to Dismissal for Delay — Burden on State to Prove Good Cause for Postponement. A defendant is not required to show a reason why he should be accorded a speedy trial. The statutes and the Constitution accord him that right without any such showing on his part. The burden is only on the defendant to show that the trial has not been postponed on his application, and. when the defendant has made this proof, the burden is then on the state to prove that good cause existed for such postponement; otherwise the cause should be dismissed.
    Appeal from County Court, Wagoner County; W. B. Moss, Judge.
    A. F. Finley was convicted of the unlawful possession of intoxicating liquor, and he appeals.
    Reversed, with instructions.
    T. J. Lillard, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, J.

A. F. Finley, plaintiff in error, here designated the defendant, was in the county court of Wagoner county charged jointly with his wife with having in his possession two quarts of spirituous liquor, with the intent to sell the same. In the trial court the wife was acquitted; by the verdict of the jury the defendant was found guilty as charged, with his punishment fixed at confinement in the county jail for a period of 30 days and to pay a fine of $50. From the judgment rendered later, he appeals.

Since the questions involved in this appeal are purely questions of law, an extended recital of the facts will be unnecessary. Defendant admitted the possession of the liquor seized by an officer in defendant’s restaurant, the rear portion of which was occupied as the family residence. The restaurant portion was in charge of the defendant’s wife, and defendant claimed that the liquor was for her personal use and not for sale. There was evidence tending to support the allegations in the information that the liquor was for sale; there was also substantial evidence tending to support the defendant’s claim that it was for the use of his wife upon the advice of a physician.

This prosecution was commenced by the filing of the information in the county court on the 17th day of February, 1922. The defendant and his wife were forthwith arrested and required to give bond for their appearance at the next ensuing (the April) term of court. This they did. On April 3, 1922, the defendants filed a written demand or request for a trial at that term of court, as provided in sections 2912 and 2913, Comp. Stat. 1921.

These sections of our statutes are as follows:

“When a person has been held to answer for a public offense, if an indictment or information is not filed against him at the next term of court at which he is held to answer, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown.
“If a defendant, prosecuted for a public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of court in which the indictment or information is triable after it is filed, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown.”

Upon presentation of the motion demanding a speedy trial, the court, over the objections of the defendants, made an order setting the case for trial on August 28, 1922, at the regular term of court following. The record contains no showing made by the county attorney as a basis for a continuance, and none was suggested by the court. Upon this point the record is silent.

On August 28th the defendants filed their motion to dismiss the appeal because the defendants were not granted a trial at the term following the filing of the information and that the cause was continued over the term without their consent and against their protests, written and oral. This motion was by the court overruled, as shown by the entry in the criminal trial docket, as follows:

“Aug. 28, 1922. Motion to dismiss heard and overruled. Exceptions by defendants. Jury impaneled and sworn. Verdict — Guilty as to A. F. Finley and a fine of $50.00 and 30 days in county jail. Verdict — Not guilty as to Effie Finley.”

Usually in criminal actions it is the defendant who seeks to delay the trial, but if an accused person desires a speedy trial our statutes and the Constitution guarantee him that right. Sections 6 and 20, art. 2, of the Constitution of Oklahoma, read as follows:

“The courts of justice of the state shall be open to every person, and speedy and certain remedy afforded for. every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice.”
“In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed.”

Sections 2912 and 2913 of the statutes, supra, were designed to aid in enforcing the constitutional right, and all must be construed together to determine their application to the facts in this case. The record shows that these defendants had just recently come to this state from another state. It is argued that they were practically among strangers and that they were in danger of being surrendered to their bondsmen and in danger of being incarcerated in jail pending their trial if it was postponed. It appears further that they had received a communication purporting to come from the Ku Blux Elan, directing them to forthwith leave the country, with veiled threats of punishment at the hands of the “Invisible Empire” if they failed to comply with the order.

These defendants were therefore in a quandary as to whether they should abide the mandates of the visible government, as nominated in the bond for their appearance in court, or take flight to escape punishment from an invisible government. And they may have desired a speedy trial in order to leave the country as directed. It may have been their purpose to migrate to some other country, such as Turkey or Bussia, where their persons and property might be more secure.

These facts and observations are set out to show that in this ease there was an impelling reason why these defendants were insisting upon their constitutional right to a speedy trial. A defendant is not required to show a reason why he should be accorded a speedy trial. The statutes and the Constitution accord him that right without any such showing on his part.

In the case of Parker v. State, 7 Okla. Cr. 238, 122 Pac. 1116, 124 Pac. 80, the first syllabus reads as follows:

“Where a defendant seeks to secure the dismissal of a prosecution against him, upon the ground that he was not brought to trial at the next term of the court in which the prosecution was triable after it was filed therein, as is provided by sections 7047 and 7048, Comp. Laws 1909, the burden is on the defendant to prove that the trial has not been postponed on his application. When the defendant has made this proof, the burden is then on the state to prove that good cause existed for such postponement.”

In the ease of McLeod v. Graham, County Judge, 6 Okla. Cr. 197, 118 Pac. 160, the court quoted with approval from People v. Morino, 85 Cal. 515, 24 Pac. 892, as follows:

“A party charged with crime has the constitutional right to a speedy trial, and the court has no discretionary power to deny him a right so important. * * * It was enough for the defendant to show that the time fixed by the statute, after information filed, had expired, and’ that the cause was not postponed on his application. If there was any cause for holding him for a longer time without trial, it was for the prosecution to show it. The court could not presume it.”

The state wholly failed to meet the requirements of showing that a continuance was necessary. This burden, under the circumstances, was upon- the state.

These constitutional and statutory rights are designed to prevent prosecutions and captious delays in criminal trials, in which the accused, whether innocent or guilty, might be imprisoned or detained under bond indefinitely. On the other hand, these provisions were not designed to hamper the state in the prosecution of criminal cases. Where no showing for delay is made by either party, the presumption arises that the delay was necessary or that it was due to the desire of the accused. Head v. State, 9 Okla. Cr. 356, 131 Pac. 937, 44 L. R. A. (N. S.) 871. But where the accused insists and keeps insisting upon a speedy trial, without any showing being made by the state justifying a delay, that presumption does not exist. The adoption of a contrary rule of judicial construction would render the statutes and constitutional provisions relative to a speedy trial nugatory.

The judgment of the trial court is reversed, with instructions to abate the prosecution.

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


author: MATSON, P. J.

text:
    BRUCE COLLINS et al. v. STATE.
    No. A-4264.
    Opinion Filed Sept. 29, 1924.
    (228 Pac. 993.)
    (Syllabus.)
    1. Evidence — Testimony of Accomplice — Necessary Corroboration. A conviction may not be had on the uncorroborated testimony of an accomplice. If there be evidence corroborating an accomplice, such evidence must go further than to show merely the commission of the offense; it must be such that tends to connect the defendant with the commission thereof.

      2. Trial — Whether Witness Accomplice — When Question, for Court and When for Jury. When the facts are not disputed, it becomes a question of law for the court to say whether a witness is an accomplice. On the other hand, where there is a dispute as to whether a witness did certain things which would make him an accomplice, the matter is for the jury.
    3. Same — Question Held for Jury. In the trial of this cause, the court submitted to the determination of the jury the question of whether the witness A. R. was culpably implicated with the defendants B. C. and G. R. in the commission of the offense; evidence examined, and held, that there is a sufficient dispute therein to have authorized the trial court to' submit such issue to the jury.
    4. Evidence — Accomplice Testimony — Sufficiency of Corroboration. Evidence corroborating an accomplice need not cover every material point testified to by the accomplice, or be sufficient alone to warrant a verdict of guilty. If the accomplice is corroborated as to some material fact' or facts by independent evidence tending to connect the defendant with the commission of the crime, the jury may, from that fact, infer that he speaks the truth as to all.
    5. Homicide — Evidence Sustaining Conviction for Murder. Evidence examined, and held sufficient to sustain the verdict and judgment.
    6. Sufficiency of Instructions. Instructions examined, and held to cover the law of the case as disclosed by the evidence.
    Appeal from District Court, Rogers County; Charles "W. Mason, Judge.
    Bruce Collins and George Rowden were convicted of the crime of murder, and they appeal.
    Affirmed.
    On the 23d day of May, 1921, the county attorney of Rogers county filed in the district court of said county an information jointly charging the defendants Bruce Collins and George Rowden with the crime of murder, alleged to have been committed in said county on the 9th day of May, 1921, by shooting, with a premeditated design to effect death, one Ules Jones with a revolver.
    On the 28th day of June, 1921, the defendants were arraigned, and each entered a plea of not guilty to the charge, and the cause was set for trial on September 15, 1921. On September 16, 1921, the cause came on regular for trial and the parties announced ready for trial, a jury was impaneled and sworn, evidence on both sides given, the jury instructed as to the law of the case, and on September 20, 1921, the jury returned a verdict as against both defendants, finding them guilty of murder, and assessing their punishment at imprisonment in the state penitentiary for life. The defendants each excepted and objected to the receiving, filing, and recording of the verdict, which objeetions were overruled and exceptions reserved, and the court set the 30th day of September, 1921, to pronounce judgment on the verdict.
    On the 30th day of September, 1921, the defendants filed a motion for a new trial, which was overruled and excepted to, and the trial court thereupon pronounced judgment against each defendant in accordance with the verdict of the jury.
    On March 25, 1922, a petition in error and case-made were filed in this court after all the preliminary steps necessary to the taking of the appeal were made in the trial court.
    Numerous errors are assigned in the petition in error. It will not be necessary to set out in detail all of these assigned errors, as the only error relied upon for reversal and argued in the brief is that the evidence is wholly insufficient to sustain the verdict and judgment. A concise statement of the evidence is as follows:
    The defendants Bruce Collins and George Rowden were both residents of Rogers county, Okla. Collins was a Cherokee Indian by blood, and resided with his family about seven miles west and a little north of the city of Claremore. As far as disclosed by the record George Rowden maintained no permanent place of abode.

      This homicide was committed on Monday, the 9th day of May, 1921, according to the testimony of two state’s.witnesses, at about 1 o’clock in the afternoon, on a public highway about three-quarters of a mile from the residence of the defendant Collins, in a hollow along said mountainous highway known as “Hickory Hollow.” The place of its commission was an out of the way place in a sparsely settled country, on a road that was seldom traveled, and at a point on said road where high embankments were located on either side thereof.
    The deceased, Ules Jones, and his brother, Albert Jones, who was also killed, and one James Canfield, commonly called “Arkansas,” and the defendant George Rowden had been engaged in the illicit manufacture of whisky for about two weeks prior to the commission of the homicide on the farm of one Russell Foster, who was a son-in-law of the defendant Bruce Collins, at a place on said farm about a quarter mile distant from the Collins home. It appears that Can-field and Ammon Rowden, a nephew of George Rowden, assisted the Jones boys and George Rowden in the manufacture of this whisky, although they had no interest in the partnership.
    The undisputed evidence may be summarized as follows: First, That the parties above named were engaged in this illicit business for the time and at the place mentioned. Second. That while they were so engaged, the defendant Bruce Collins at different times visited the place and was seen in possession of the rifle with which it afterwards developed that the homicide was committed. Third. That on the Sunday night immediately preceding the commission of the homicide Ammon Rowden stayed all night at the home of the defendant Bruce Collins and ate breakfast there the next morning. Fourth. That Ammon Rowden left the- home of Bruce Collins shortly after breakfast that morning and went to the camp where this whisky was being made. Fifth. That about 9 o’clock that morning the Jones boys and George Bowden had a settlement of their partnership business, and the Jones boys broke camp with the determination to move their distillery to another location south of the city of Claremore; that preparatory to making such move they loaded the distillery into a farm wagon, together with 500 pounds of sugar and some chops and other materials used in the manufacture of their whisky. Sixth. That before the Jones boys and Canfield had left the camp Ammon Bowden, and afterwards George Bowden, left. Seventh. That when the Jones boys and Canfield left they left in two conveyances, one a surrey, to which was hitched a team of ponies, the property of Canfield, and the other a wagon in which was loaded the distillery and other property, and to which was hitched a team of mules, the property of the Jones boys. Eighth. That in leaving the camp Albert Jones was driving the surrey and Ules Jones was driving a team of mules, and that Canfield was assisting Ules Jones. Ninth. That after they had driven a distance of from two to three miles in a roundabout way, over this rough mountainous road, one of the wheels of the wagon broke down, and that Ules Jones and Canfield unhitched the mules and drove them over to Collins’ house, where they borrowed Collins’ wagon, and returned to the scene of the breakdown and reloaded the distillery, sugar, chops, etc., into the Collins wagon, hitched the mules thereto, and again proceeded on their way.
    As to the other material features of the case the evidence is conflicting. The principal witnesses for the state were Ammon Bowden and James Canfield, commonly called “Arkansas.”

      Ammon Rowden testified substantially as follows: That he is 29 years old, and had lived in Claremore all his life except six or seven years that he lived in Missouri; that he had been at Collins’ home on the 9th day of May, 1921; that he had known Ules Jones for about a year, and that he saw Ules Jones on the Russell Foster place on the 9th of May, 1921, between 9 and 10 o’clock in the morning, and that the defendant George Rowden was there, and that he saw George Rowden talking to Albert Jones and Ules Jones; that he was there about 30 minutes and then returned to the Collins place; that he afterwards saw George Rowden at the Collins place something like an hour after he had seen him at the Russell Foster place; that Bruce Collins was at home; that George Rowden came up and asked Collins if he was ready to go, and Collins said, “just in a few minutes”; that Collins was dressed in a pair of yellow pants, and the witness did not remember what kind of shirt, but that Collins got a pair of blue overalls and put on over these pants; that after Collins did this the three of them, George Rowden, Collins, and himself, all went to Hickory Hollow; that they went out northwest from Collins’ place and hit the hollow and went up the road in the hollow and climbed a point right up from the road, a very high point where the road was narrow, and a few trees along the edge of the cliff of rock; that it was tolerably level along the top of the point; that on the way up there he heard George Rowden and Collins talking, and one of them said to the other, “They may go a different road, the other way”; that after they got up on top of the point Collins and George Rowden walked off a few steps and talked a few minutes and came back, and Collins told him to go over to another point south of there; that before they left Collins’ house he heard them say that they were going to get this whisky still; that after he was located on this south point he saw a fellow they called “Arkansas” driving a wagon np the hollow; that he after-wards heard five shots fired; that when they went up there Collins was carrying a 25 U. M. C. Winchester rifle, and that George Rowden had a 45 Colts pistol; that after the shooting George Rowden came over and got him to take him back to the place where he had left them; that George Rowden was carrying a 45 sixshooter in his hand; that when he got back to the point he saw Collins with the rifle, and that Collins was looking around on the ground for some empty shells. He said he had three shells in his hand, but could not find the others; that he looked down in the road below and saw Ules Jones in the wagon, in the spring seat on the north side of the wagon; that he believed Jones was dead; that he did not move any. He was lying over on his arm over on the back of the spring seat; that he was about 25 or 30 yards from Jones; that he did not examine his body; that after this they left there and went back around the mountain between 300 and 400 yards of Collins’ house and went to where these boys had been camped on the Russell Foster place; that he and his uncle went that way, and Collins left them on the hill; that Collins told them they had better come that way, and that he (Collins) would come around the edge of the bluff; that they never did anything after they got to the Russell Foster place, but then went back by the trail to the top of the hill between there and Mr. Collins’ house, and there saw Mr. Collins about a quarter of a mile from Collins’ house; that Collins asked George Rowden where he was going, and George said he was going to Foster’s, “and he told me I had better stay with him. I told him all right, and then went to Collins’ house, and stayed there all that afternoon and that night and the next day until between 11 and 12 o’clock”;'that while he was there that evening he heard a conversation between Bruce Collins and Ben Collins, Bruce’s son, in which Bruce Collins told Ben that he had killed those two Jones boys and that without a chance it would be proved on him, and if it is that he wanted Ben to take care of his mother; that this conversation took place a little after sundown there at the Collins place next to the barn lot fence; that Collins was arrested that night. The witness also testified that when he was on top of the hill, and just before they told him to go over to the other point, and before the shooting, that he told George Rowden and Collins not to hurt anybody; that, if they did not give up the stuff, "very well, don’t hurt anybody”; that they said they were going to take it "whether or no”; that at the time of this homicide George Rowden was staying with some folks who lived 1 mile south and about 2% miles or 3 miles east of the Collins place.
    James Canfield testified in substance as follows: That he was twenty-two years of age. That he knew Ules Jones, had known him a little over a month; that he knew Bruce Collins and George Rowden. The first time he had seen George Rowden was in the month of April, 1921; that he saw him and Albert Jones going to town; that on the morning of the 9th of May, 1921, he saw George Rowden at Russell Foster’s place with the Jones boys; that they were packing up and loading the wagons to leave there that morning; that Ammon Rowden was down there that morning; that he judged they left there about 9 o’clock; that they had a two seated surrey and a wagon behind it; that after driving a distance the wagon broke down; that Ules Jones unhitched the mules and went to Bruce Collins’ home to borrow a wagon; that they broke down about 2% miles from Collins’ home; that he did not see Collins at home at the time; that after they borrowed the wagon, hitched the mules up to the wagon, and started back to the place where their wagon had broken down, he drove the team back to the place, but that Ules walked over there by a different route; that Ules was there when he got there; that they unloaded the stuff out of one wagon into the other one, and then started on their way home; that he did not know which direction they were going. They stopped at a spring in Hickory Hollow and got a drink of water. They drove on about 20 or 25 yards from the spring and were stopped; that there.-was a big mountain on each side of the road, and timber and rocks upon them; that some fellows up on a hill hollered down and asked what they were loaded with, and Albert Jones told them that "we are loaded for bear,” and they said "unload that whis-ky and that still out of the wagon,” and Albert said "Boys, if you want it, come down and get it,” and they said, "Unload that whisky and that still, out of that wagon, and do it damned quick too,” and at that time Ules Jones applied a vile epithet to them and started the team forward with the wagon, and he did not drive more than 4 or 5 steps until he was shot; that the witness was right at the back end of the wagon with a big rock in his hand at the time; that he was walking behind the wagon so that if anything happened while they were going up hill he could scotch the wagon with the rock; that when the shot was fired he looked up the hill and saw a man up there-; that he had on a pair of yellow-waist overalls and a gray shirt; that when Ules was shot he dropped over in the spring seat and went to hollering "Oh me, mercy, lordy! Oh me, mercy, lordy!” and that after that the witness turned right back down the hollow and left the way that they had come; that he did not see anybody else down there, but before he turned he heard a racket up to his right up on the hill that gave .him a scare, and he .turned the other way and went back around the hill and hit another canyon and went that way, and before he stopped he went to Collinsville; that on the way to Collinsville he met a fellow and asked him the way back to Claremore, and was told he would have to go through Collinsville to get to Claremore from that place; that when he got pretty near to Collinsville he met another fellow and asked the distance to Collinsville and was told the distance, and after he got to Collinsville he hunted up an officer there and then telephoned to Gene Haver-field at Claremore and talked to Mr. Haverfield over the telephone ; that after he had talked to Haverfield he hired a car and drove back to a schoolhouse not far from where the homicide occurred, and met Mr. Haverfield there; that after they met Mr. Haverfield and Mr. Green, the sheriff, and another fellow, that the witness stayed with the car and the other parties went down to Mr. Collins’ house and left him with the car; that the last time he had seen Collins before the killing was on the Saturday night previous; that he had not talked to Collins; that Collins had been down to where they had been camped once or twice; that he had heard him talk to the boys down there; that immediately after the conversation took place, when Ules Jones was shot in Hickory Hollow, he saw Bruce Collins step out from behind a big rock on the hill and shoot right down over the peak; that he never came back to the place where the shooting occurred until the next day about 10 o’clock; that when they got back there Ules Jones was lying up in the wagon in the spring seat dead; that he had been shot. Witness could see one bullet hole in'his belly and another one through his jaw, that came out down in his neck; that at that time the team which was in front of the mules had turned the surrey around and had come down and hooked the wheels with the wagon, and that was the way they found them the next day; that Gene Haverfield, John Green, and he believed a fellow by the name of Thurmond, was with him at that time; that he had seen Bruce Collins with a gun, what he called a Winchester; that he had the gun down at their camp; that he had seen him with it four or five times. (Witness is then handed a gun, marked State’s Exhibit 1, and testifies that that is the gun lie had seen Collins have. The gun had certain distinguishing marks on it that witness identified.) That he only saw one person up. on the hill at the time Ules Jones was shot, and just one shot was fired while he was standing there; that he heard some shots after he left; that they were fired right close together. (Witness indicating by snapping his fingers.) That the only thing that was between the witness and the person doing the shooting was a bunch of leaves that hid him from the person doing the shooting, and after he turned and left there he had a mountain between him and where the shooting was taking place.
    E. A. Haverfield testified in substance as follows: That he lived in Claremore, was a deputy sheriff; that he remembered the occasion of receiving a call in regard to the killing of the Jones boys; that after receiving the call he met Jim Canfield at the Limestone schoolhouse and had a talk with him there at the schoolhouse,' and then went to Bruce Collins’ house and arrested Mr. Collins; that.John Green and Bibe Leseo were with him; that he had a conversation with Bruce Collins at the time; that witness asked Bruce Collins where he was between 12 and 1 o’clock that day, and Collins told him he was in his pasture north and west of his house. When arrested Collins said he wanted to change his clothes. He had on a pair of bib overalls, and there was a khaki pair of pants lying on the trunk and he started to change them and take his bib overalls off and asked for these khaki pants, and said, “I will just leave this here,” and he came with his bib overalls on. I asked him if he had heard anything of the shooting scrape, and he said he had heard nothing. The next morning witness said he went to the scene of the shooting about 7:30 or 8 o ’clock and found Ules Jones killed; that there were two teams and a wagon and surrey there; that at the place there is a deep canyon and a bluff on the south side of the canyon a distance something like 8,200 feet, pretty nearly straight up; that on the top of the bluff was a place where somebody had been sitting and had trimmed some limbs off of some bushes and had idone some whittling, and there was shavings out there and tracks. Theré was one track went down towards the wagon to something like 30 feet, and then went around the point of the hill and went southwest something like 100 feet, and another track came in there, and they both went across a creek and stopped. He found two empty cartridges, twenty-five Remington cartridges; that Tom Dean found one of them something like 30 feet from the top of the hill, the other one was something like 60 or 70 feet below; that the witness found the last one; that the shells were found something like 100 or 125 feet from the place where the body of Ules Jones was. found, one about 30 feet and the other one about 60 or 70 feet from the top of the hill where the people had been sitting; that George Rowden was arrested on the 10th of May, between 9 and 10 o’clock, in the city of Clare-more. (The witness then described the wounds that were found on the body of Ules Jones, and the condition in which the bullets were found, and which way they were headed.)
    Doctor M. H. Gordan testified in substance as follows: That he is a physician and made an examination of the body of Ules Jones; that he had been shot twice, one bullet passed through his right arm, going into his right groin, hit his left arm going into the groin and cut the femoral artery in two. The other shot had entered at the left jaw and came out on the right side and into the right shoulder, passing through the clavicle bone, hitting the bone and shattering it and into the axillary space; that the. bullets ranged downward; that they were copper-jacketed bullets, and had split up, and when they hit the bones they splattered, and only small pieces of them could be found. Some of the small pieées were recovered. Witness was then shown some small pieces of bullets, and identified one of the pieces .as one that was taken from Ules Jones’ body, lodged against the femnr bone; that Ules Jones was dead and died from the effect of these gunshot wounds.
    Tom Dean testified in substance as did the witness Haverfield relative to the finding of the shells at the place of the homicide, although there was some slight discrepancy between the testimony of this witness and Haverfield as to the distance where the shells were found from the top of the precipice and as to the height of the precipice.
    J. Herbert Moore, testified that he is an undertaker; that he knew Ules Jones in his lifetime, and that he had charge of the body and burial of Ules Jones. (Witness then described the location of the wounds on the body of Jones.)
    E. A. Haverfield, recalled, testified for the state that he had recovered a 25 Remington rifle from the house of Bruce Collins on Wednesday morning after the tragedy, and that the rifle, in his opinion, had been freshly shot.
    Albert Kirkwood, for the state,
    testified in substance as follows: That on the 9th day of May, 1921, he was working at Jones, about 8 miles west of town; that he was at Claremore that day and left about 3 o’clock, traveling in a wagon; that on his way home he met the defendant George Rowden about 50 yards west of the bridge over the Verdigris river; that he did not see Rowden until he was right at his mules’ heads; that he had a conversation with Rowden there; that John Langley and Mrs. Langley, and a fellow by the name of Bill Dowell was with them; that he and Rowden talked something about a dance that had been held over there, and Rowden asked him if he had seen “Arkansas,” and the witness told Rowden he did not know “Arkansas,” and Rowden said that “Arkansas” was about 5 feet tall and wore an old slouch hat and had drooped shoulders, and I told him I did not meet him; that he talked with Rowden two or three minutes; that this was about 5 o’clock in the afternoon. On cross-examination witness testified that the first person he told about this conversation with Rowden was Jim Jones, the man he was working for at that time; that he worked for Jones about two weeks, and has since been working for J. L. Daniels; that he did not know anything about Daniels being mad at Bruce Collins; that Daniels lives about 4 or 5 miles from Jones’ place; that he told Jones about the conversation when he got home that evening.
    With the testimony of this witness the state rested its case.
    The Defense.
    Mrs. Bruce Collins testified in behalf of the defendants in substance, as follows: That she is the wife of the defendant Bruce Collins, and lived 7 miles west of Claremore, and had lived there since 1901; that she is a native of the Indian Territory, and a Cherokee Indian by blood; that on Sunday night, May 8, 1921, there was at her house the following persons: Bruce Collins, Ammon Rowden, Columbia Foster, Hazel Moody, Belle Niece, and Ben Collins; that Belle Niece, Hazel Moody, and Columbia Foster were her daughters, and that Ben Collins was her son; that they had breakfast on Monday, May 9th at about 5:30 or 6 o’clock; that she left home about 7 o’clock that morning; went over to Mr. Jury’s house, driving a one-horse buggy; that Hazel Moody went with her; that, when they left to go to Mr. Jury’s, Ben Collins, Ammon Rowden, and Mr. Niece were at the barn fixing an automobile, but when she got back from Mr. Jury’s Ben Collins and Mr. Niece were not at the house; that they had gone a place that day; that she got back home about 11 o’clock; that she loaned one of the Jones boys and this boy they called “Arkansas” the wagon; that she did not pay any attention to which way they left with the wagon; that her husband, Bruce Collins, was at the barn at the time; that they had dinner there at home about 12 o’clock; that Bruce Collins was at home for dinner; that Bruce did not leave home after the witness got back from Jury’s with a gun and change his clothes when leaving; that Bruce Collins did not own the gun; that the gun belonged to Ben Collins; that it was not at home that day until Ammon Rowden brought it there about 2 or 2:30 in the afternoon and set it down in the corner of the room; that Ben Collins returned from Tulsa about dark that day; that after dinner Hazel Moody left the place; that the defendant Bruce Collins was at home at the time; that she was at home when Mr. Haver-field came there and took her husband into custody; that she asked Haverfield what was the matter, what he was taking Bruce for, and that Haverfield said that he was accused of killing a man in Hickory Hollow; that this was about 8 o’clock that night; that she did not know of George Rowden having been at their house that day; that she was at home the next evening when the officers came to get Am-mon Rowden.
    Belle Niece, for the defendants,
    testified in substance that she is the daughter of Bruce Collins, and was at her father’s home on the 8th and 9th days of May, 1921; that the first person to leave the place on the morning of the 9th of May was Ammon Rowden, and that he left there some time between 9 and 10 o’clock; that her husband, Ben Collins, left there about the same time, and also her mother and her sister Hazel went to Mr. Jury’s place after a little bit, about the same time; that her mother got home something like 11 o’clock; that after that she again saw the defendant George Rowden there at the house; that he came and stayed a few minutes and went on; that her father was there at the house at the time; that at the noon hour, just before they ate dinner, one of the Jones boys and this boy they called “Arkansas” came and asked her mother for the wagon; said they had broken their wagon; that the defendant Bruce Collins was not with George Rowden and Ammon Rowden at her house together before noon on that day; that her father, mother, her sister Hazel, Bancroft Jury, and herself all had dinner at her father’s house that day; that Ammon Rowden came back to the house something like 2 o’clock that afternoon; that she saw him just as he was going into the house, and that he had a rifle in his hand; that it was her brother Ben’s rifle; that she 'did not recall just where her father was at that time; that her father remained at the house the rest of the afternoon, and was there at supper time; that her brother Ben returned about 6 or 7 o’clock that afternoon; that her husband did not come back with Ben; that her mother brought the boy Bancroft Jury back with her from Mr. Jury’s house that day.
    Bancroft Jury, a witness for the defendants, testified in substance that he lived about 8 miles from Claremore; was fourteen years old; that he saw Mrs. Collins on the 9th day of May, 1921, about 9:30 o ’clock when she came down to his father’s house; that he went home with Mrs. Collins; that they got there about 11 o’clock, and that Bruce Collins was there; that he saw Bruce Collins at the barn; that Bruce Collins helped him put the horse and buggy up when they got back to their place; that after they got back to Collins’ two boys came there and borrowed a wagon and went away; that this was before dinner; that in the afternoon Mrs. Hazel Moody went over to Mr. Foster’s place; that about 2 o’clock that afternoon Ammon Rowden came there to the house; that he never saw Ammon Rowden before he got to the house; that when he first saw him he was standing in the door; that at this time Bruce Collins was out in the yard reading; that from the time he came back with Mrs. Collins to the time Ammon Bowden came to the Collins home that afternoon Bruce Collins had not been away from the house.
    John Wilkerson, a witness for the defendants, testified in substance as follows: That he .lives 7 miles west of Clare-more; that he knows Jack Falling and George Bowden; that Jack Falling was at his house on the 9th day of May, 1921; that on that day the witness and his wife left home and went to Claremore; that they left about 9 o’clock in the morning and returned about 6 or 7 in the afternoon; and when they left Jack Falling was there, and when they got back that evening he was still there; that at that time Falling was crippled up with rheumatism. .
    Bussell Foster, a witness for the defendants, testified in substance as follows: That he lives 4 miles west of Clare-more, and was living there on the 9th day of May, 1921; that his place is on the east side of the Verdigris river; that he knows George Bowden and knew him on the 9th day of May, 1921, and saw him on that day; that he had not seen him for about a week before; that George Bowden came to his place about 5 o’clock in the evening on the 9th of May, 1921, and stayed there all night and slept in the same bed with him; that Bowden seemed to sleep soundly and snored.
    Ben Collins, a witness for the defendants, testified in substance as follows: That he lived about 7 miles west and one mile north of Claremore; that he was at home on the 8th day of May, 1921, and spent the night there at his father’s place that night; that his father, mother, and his sister Mrs. Niece and his sister Mrs. Moody and Ammon Bowden stayed there that night, and Bill Howard stayed until about 11 o’clock, and a cousin and another sister may have stayed there, but witness was not sure about that; that Ammon Rowden left there early the next morning, and that his mother also left there some time in the morning; that he went to Tulsa the next morning; left about 10 o’clock, and got back just before dark; that Ammon Rowden was there when he got back; that Ammon and his father and all the folks were in the house when he got back; that he had supper at home that evening; that he was the owner of a 25 Remington rifle; that he had loaned this rifle to Ammon Rowden some three or four days before the 9th of May, and that Rowden had not returned it to him when he started to Tulsa that morning; that the next time he saw the gun was when Gene Haverfield and John Green and Tom Dean came and got it. Witness denied that he had a conversation with his father and Ammon Rowden on the evening of May 9th in which his father told him that he killed the Jones boys and that, if they took him away, for him to take care of his mother. (Witness is then shown the gun which had been introduced in evidence, and identified it as his gun.) That there was a fight out at his father’s place on the afternoon of May 8th between Ammon Rowden and Albert Jones. On cross-examination the witness admitted that his father met him on the road on his return from Tulsa just north and a little west of Warren Hintchley’s house, and that at that time his father was driving a bay horse hitched to a buggy, and that his father then turned around and drove back home behind him; that he judged this to be a little later than 6 o’clock in the evening; that when he met his father up at Hintehley’s house he had a talk with him.
    Jack Falling, a witness for the defendants, testified that he is sixty-six years old, and a full-blood Cherokee Indian; that on the 9th of May, that year, he was over at his sister’s, Mrs. Wilkerson’s, and stayed there all day; that he had rheumatism at that time, and could not get around, but was in bed; that George Rowden came to the Wilkerson house that day; that Rowden got there about 11 o’clock in the morning and stayed there until 4 o’clock in the afternoon; that Mrs. Wilkerson’s place is about a mile from the bridge across the Verdigris river on the Collinsville road.
    Mrs. Bruce Collins was recalled as a witness in behalf of the defendants, and testified in substance as follows: That her husband, Bruce Collins, hoed in the garden that afternoon, and .that late in the evening after her daughter Hazel came back they heard that Russell Foster was bad sick and decided to go over to stay up with him, and started over there, but the horse had been driven to Jury’s and back and up to Foster’s and back home and he was too tired to go over there; that they met Ben Collins over by Warren Hintchley’s place, and that Bruce Collins asked Ben to take him over there, but Ben said it would be dark before he could get there, and he did not have any lights on his car, so they came on back home.
    On cross-examination the witness testified that she could have told about this trip over to Hintchley’s when she was first on the stand if she had thought about it, but she did not just remember about starting over there at that time. Further in this connection the witness testified as follows:
    “Q. Mrs. Collins, you testified positively that they did turn him loose in the pasture, didn’t you? A. No, I did not. Q.. Who got this horse up, Mrs. Collins, after you decided to go over to Russell Foster’s place? A. Well, they hadn’t unhitched him when Hazel came with him. Q. Where had Hazel been? A. Hazel had been over to Foster’s. Q. You received the information that Russell Foster was very sick, then, didn’t you, from Hazel? A. Yes, sir. Q. You heard this little Bancroft Jury testify, didn’t you? A. Yes, sir. I did. Q. And you heard him say the horse ‘never left there any more that day, didn’t you? A. Well, I don’t know whether he thought any more about it than I did before. Q. And you also heard him testify that Mr. Collins never left the place from the time you folks got back, at 11:00 o’clock, as you say, until the officers came and took him away? A. Yes, sir; I heard him say it. Q. Now, I will ask you to state if you didn’t hear your own daughter get on the witness stand and testify to the same state of facts? A. Well, she might have been like I was; she might have never thought about that at all; he never asked it in that way at all.”
    Hazel Moody, a witness in behalf of the defendants, testified in substance as follows: That she is the daughter of the defendant Bruce Collins, and was at her father’s home on the morning of May 9th and drove with her mother to Mr. Jury’s on that morning and got back to her father’s place about 11 o’clock; that her father was there when she got back; that she left again about 1 o’clock and went over to Lee Foster’s place.
    Lee Foster, a witness for the defendants, testified in substance as follows: That he lived 4 miles west of Claremore, and was living on that place on the 9th of May, 1921; that his son Russell Foster was living with him on that day, and was sick with the “flu”; that he saw George Rowden on his horse on the evening of the day this killing took place, and Rowden stayed there all night and slept with Russell Foster; that he was up during the night giving Russell Foster medicine; that George Rowden seemed to sleep well and snored right along.
    John Yinita, a witness for the defendants, testified in substance as follows: That he lived at Oolagah when he was at home; that on the 9th day of May, 1921, he was working for Joe Gish; that Gish’s place is northwest of Clare-more; that Gish’s place is about a mile and a quarter north of Collins’ place; that he had lived over there about two years; that he knew Ammon Rowden when he saw him; that on the morning of the 9th day of May, 1921, he was out hunting some horses for Gish; that he was all over the bottoms south of Gish’s place hunting for these horses; that it was about 10 o’clock in the morning that he saw Ammon Rowden right at the mouth of what was called Spring Hollow; that Spring Hollow is on Collins’ place; that Spring Hollow is about a half mile or a little farther from Hickory Hollow; that he just happened to meet Ammon Rowden as he came down through the woods; that Rowden was carrying a rifle, and that he spoke to Rowden and asked Rowden if he would sell the rifle, and Rowden told him it was not for sale.
    On cross-examination witness testified that Spring Hollow was east of Hickory Hollow, and that it was nearer the Collins home than his home is; that Spring Hollow is not over 400 yards from the Collins home; that Ammon Row-den was not in sight of the Collins home; that the first person he ever told about seeing Ammon Rowden down there was Ben Collins; that he told Ben Collins about it about a week before the trial.
    Bruce Collins, one of the defendants, testified in substance as follows: That he was fifty years old, and had lived in Rogers county about twenty years; that he had seen Ules Jones four or five times in his lifetime; that he had been down to the place where they had been making whis-ky, which is about a half a mile from his home; that Ammon Rowden stayed at his house on Sunday night May 8th and left there the next morning; that Rowden came back to the house about 10 o’clock and remained a few minutes; that a short time after Ammon Rowden was at the house George Rowden came there and remained about 8 minutes and went away; that he (Collins) stayed at the house all that morning and had dinner there that day and did not go with George Rowden and Ammon Rowden to Hickory Hollow; that he did not kill Ules Jones or have anything to do with it; that Ammon Rowden had the rifle that day; that he saw him with it when be returned to tbe bouse at 10 o’clock that morning and again when be returned to tbe house about 3 o’clock that afternoon; that it was Ben Collins’ gun; that he did not have any conversation with bis son Ben Collins near tbe bouse late on tbe evening of May 9th; that be met Ben Collins near Hintehley’s place about dark when Ben was coming home from Tulsa on tbe evening of May 9th; that be never heard anything about tbe shooting until be was arrested about 8 o’clock on tbe night of May 9th.
    George Rowden, one of tbe defendants, testified in substance that be is forty years old and bad known Bruce Collins six or seven years; that be was born in Missouri and lived there until be was two years old, then lived in Kansas for seven years, then moved to Oklahoma; that be is troubled with bis eyesight; that be was interested in tbe distillery which tbe Jones boys were running; that they bad been running it about two weeks before tbe shooting; that they bad a settlement of their business on tbe morning of May 9th about 8 o’clock; that be spent tbe night of May 8th down at tbe camp with tbe boys; that Ammon Rowden came down there on tbe morning of May 9th; that be and Ammon Rowden were not on very good terms with each other; that Ammon Rowden did not have any gun when he came to tbe camp, but left there with .a rifle — a 25 Remington rifle; that be never saw Ammon Rowden any more that day after be left' tbe camp with tbe rifle; that be never saw Mr. Collins on the 9th of May to talk to him; that he learned of tbe shooting at Hickory Hollow when be was in Claremore on the morning of May 10th; that after be left camp on tbe morning of May 9th be went to Collins’ and remained there three or four minutes and then went to John 'Wilkerson’s home; got there about 11 o ’clock and stayed until about 3:30 or 4 in tbe afternoon with Jack Falling, and then went to Lee Foster’s; that on tbe Way from Wilkerson’s to Lee Foster’s be met Mr. Kirkwood right at the Verdigris bridge; that he was traveling east and Kirkwood going west; that he talked with Kirkwood, who never mentioned "Arkansas’ ” name to him; that he spent the night of May 9th at Lee Foster’s, and left there about 7 the next morning on the road to Claremore with Lee Foster; that he slept with Russell Foster.
    On cross-examination witness testified that he told Bruce Collins at about 10 o’clock May 9th that he was going over to Foster’s place; that he helped the Jones boys load the wagon that morning; they had five hundred pounds of sugar and two sacks of chops and other things in the wagon; that he left the camp before the Jones boys; that Ammon Row-den left there before he did.
    Ammon Rowden, recalled as a witness in rebuttal for the state, testified in substance that he had never had Ben Collins’ rifle down at the camp at any time while they were making whisky; that he never met John Vinita out in the woods as testified to by John Vinita on the morning of May 9th.
    James Canfield, recalled as a witness in rebuttal for the state, testified in substance that Ammon Rowden never had possession of a rifle down at the whisky camp during the time that the witness was there; that he had seen Bruce Collins with the gun down there; that he never saw Ammon Rowden have a rifle the morning that they broke camp.
    Louis Jury, a witness for the state in rebuttal, testified that he is fifty-four years old, the father of Bancroft Jury; that Bancroft was thirteen years old; that Mrs. Collins came to his place on the morning of the 9th of May about 10 o’clock in the morning; that it is about 4 miles or 4% from Collins’ place to his place; that it takes about an hour to make the drive at an ordinary gait.

      Bill Jury, called as a witness in rebuttal for tbe state, testified that he was living with his father, Louis Jury, about 7 miles northeast of Collinsville on May 9, 1921; that he remembered Mrs. Collins being over on that day; that he was planting corn that day, and came into the house about 11 o’clock that morning; that Mrs. Collins was still there; that her daughter Hazel Moody was with her; that they left there between 11 and 12 o’clock that day; that Bancroft Jury went with them; that it is about 4 or 5 miles from Collins’ place to their place, and that it takes about an hour to drive it.
    Mrs. John Langley, called as a witness for the state, testified that she is a native of Indian Territory, a Cherokee Indian by blood, and that she knew Mrs. Bruce Collins; that she saw Mrs. Bruce Collins in Claremore on the morning of the 15th of September, 1921, near the Farmer’s State Bank; that she had a conversation at that time; that Mrs. Collins asked her not to testify that she saw George Bowden talking to Albert Kirkwood on the dump west of Claremore on the evening of May 9, 1921, and that in such conversation Mrs. Collins stated that they had to protect George Bowden in the trial in order to help Bruce Collins.
    Belle Niece, recalled as a witness in behalf of the defendant, testified that her father did not tell her on May 9th at his home in the presence of Ammon Bowden and George that they were going out to get the whisky and still from the Jones boys.
    The foregoing is substantially the material evidence in the case. Numerous details of minor importance have been omitted. The record is very voluminous; the trial having consumed a period of over four days.
    James S. Davenport and Jennings, Hall & Battenfield, for plaintiffs in error.

      George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

(after stating the facts as above). There is but one question involved in this appeal; the insufficiency of the evidence to sustain the conviction. For that reason the court has deemed it expedient to set out at considerable length in the statement of the case a detail of the testimony of witnesses in order that a comprehensive understanding may be had of the issues involved, thereby avoiding an extended argument on the sufficiency of the evidence.

It is contended that this conviction is based on the testimony of one Ammon Rowden, an alleged accomplice of these defendants, and that there is no sufficient evidence to corroborate the said accomplice.

The statute of this state requires, and this court has repeatedly held, that one may not be convicted on the uncorroborated testimony of an accomplice, and further that, if there be corroborating evidence, such evidence must go further than to show merely the commission of the offense, and must be such that tends to connect the defendant with the commission thereof. Section 2701, Comp. Stats. 1921; Kirk v. State, 10 Okla. Cr. 281, 135 Pac. 1156.

Further, this court has held that when the facts are not disputed it becomes a question of law for the court to say whether a witness is an accomplice. Cudjoe v. State, 12 Okla. Cr. 246, 154 Pac. 500, L. R. A. 1916F, 1251; McKinney v. State, 20 Okla. Cr. 134, 201 Pac. 673.

On the other hand, where there is a dispute as to whether a witness did certain things which would make him an accomplice, the matter is for the jury. Cudjoe v. State, supra; McKinney v. State, supra.

On the questions of accomplices and accomplice testimony the court gave the following instructions:

“No. 3. You are instructed that all persons concerned in the commission of a crime, whether they directly commit the act constituting the offense or aid and abet in its commission, are principals and are punishable under the law.
“You are instructed that by the term ‘‘concerned in the commission of a crime’' means that one must either commit the crime himself, procure it to be done, or aid and abet in its commission. A mere mental assent or acquiescence in the commission of a crime by one who did not procure or advise its commission, who takes no part therein, gives no counsel or word of encouragement to the perpetrator of the crime, does not in law constitute such a person a participant in the crime.
“You are instructed that 'aid and abet,’ and ‘aiding and abetting,’ as used in these instructions, means to assist and supplement the efforts of another in the commission of a crime with knowledge of the wrongful purpose of such other person, or giving counsel and encouragement to such other person in the commission of such crime.”
“No. 9. You are instructed that the prosecution in this case uses the testimony of a witness who may be culpably implicated in the commission of the crime of which the defendants are accused; that is, he may be one who knowingly and voluntarily co-operated or aided or assisted in the commission of the crime of which the defendants are accused. And whether or not he is such a person is a question of fact for you to determine from the evidence before you. If you believe from the evidence in the case _that such witness is implicated in the crime charged in the information as above defined, then in law such witness is an accomplice, and you are instructed that a conviction cannot be had upon the testimony of an accomplice unless such witness be corroborated by such other evidence as tends to connect the defendants with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof, but such other evidence to be sufficient to corroborate the evidence of an accomplice must tend to connect the defendants with the commission of the crime of which the defendants are accused."

There is a sufficient dispute in the evidence to have authorized the trial court to submit to the determination of the jury the question of whether the witness Ammon Eowden was culpably implicated with Bruce Collins and George Eow-den in the commission of the offense. If the jury found that he was not an accomplice (which they could have done under the evidence), then the testimony of Ammon Eowden alone, if believed, is sufficient to sustain this conviction. Dickson v. State, 26 Okla. Cr. 403, 224 Pac. 723; Highfill v. State, 26 Okla. Cr. 420, 224 Pac. 729.

However, if it be conceded that the jury arrived at the conclusion that Ammon Eowden was an accomplice, there is sufficient corroboration of his testimony in that given by Canfield, and the credibility of these witnesses was a matter solely for the jury.

Evidence corroborating an accomplice need not cover every material point testified to by the accomplice or be sufficient alone to warrant a verdict of guilty. If the accomplice is corroborated as to some material fact or facts by independent evidence tending to connect the defendant with the commission of the crime, the jury may from that fact infer that he speaks the truth as to all. Moody v. State, 13 Okla. Cr. 327, 164 Pac. 676.

Here the defendants each interposed as their defenses an alibi, and on this phase of the law the court gave the following instructions:

"You are further instructed that the defendants in this case have interposed as one of their defenses what is known in law as an alibi; that is, that the defendants were at another and different place at the time of the commission of the crime alleged and charged in the information herein, and therefore could not have committed the crime. The law is that such a defense is proper and legitimate, and the jury-should consider all the evidence bearing upon this point, whether introduced by the state or the defendants, and if, after a careful consideration of all the evidence in the ease, you are convinced beyond a reasonable doubt that the defendants were not at another and a different place at the time of the commission of the crime charged in the information, then the defense known in law as an alibi has failed, and you should then consider the case the same as if the defendants had never interposed this defense. But if you entertain a reasonable doubt, after a careful consideration of all the evidence in the case, as to whether the defendants were in such other and different place at the time the crime was committed, then you should resolve that doubt in favor of the defendants and acquit them.”

The court also covered the law with respect to conspiracies. The instructions as a whole are intelligent and comprehensive, and cover in an able manner every possible phase of the law of the case disclosed by the evidence. We find no error in them (considered either separately or collectively) prejudicial to the substantial rights of these defendants.

While there is some conflict in the evidence, we think the circumstances surrounding this killing as detailed by the witness Canfield strongly' corroborate the testimony of Am-mon Rowden and impress an impartial reader of this evidence with the conviction of the truthfulness of Rowden’s testimony.

This crime is one of a most horrifying and brutal nature. That the jury did not fix the punishment at death instead of imprisonment for life was due, no doubt, largely to the fact that the deceased himself was and had been a law violator.

These defendants were ably defended in the court below by several of the best exponents of criminal law in this state. They were afforded a fair and impartial trial. If any errors were committed, they were of snch minor importance as not to deserve serious consideration as having in any degree prejudiced these defendants before the jury. The judgment as to each defendant is affirmed.

BESSEY and DOYLE, JJ., concur.