text:
    ROBERT PORTER v. STATE.
    No. A-3585.
    Opinion Filed Jan. 7, 1922.
    (202 Pac. 1039.)
    (Syllabus.)
    1. Trial — Instruction on Credibility of Witnesses. An instruction on/ the credibility of witnesses concluding with the language that, if the jury believe that any witness has testified falsely, they are at liberty to disregard the whole or any portion of the testimony of such witness, “unless such testimony is corroborated by other competent evidence,” held not error.
    (a) It is the better practice to instruct the jury generally on the credibility of witnesses, without reference to corroboration,
    2. Witnesses — Impeachment of Defendant — Improper Question as to Conviction Under Void Statute. Whe're a defendant on trial had, prior to that time, been convicted of an alleged offense under a statute which had then been repeatedly declared unconstitutional and void by the highest appellate court of the state, it was error, for the purpose of affecting the credibility of the defendant, for the court to compel the defendant to admit that he had once been convicted under such void statute.
    . Appeal.from County Court, Payne County; Wilberforee Jones, Judge.
    Robert Porter was convicted of the unlawful sale of intoxicating liquor and sentenced to serve 30 days in the county jail and pay a fine of $50, and he appeals.
    Reversed and remanded.
    Freeman E. Miller, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall and E. L. Fulton, Asst.'Attys. Gen., for the State.
   BESSEY, J.

Robert Porter, plaintiff in error, referred to in this opinion as the defendant, was, by information filed in the county court of Payne county, March 24, 1919, charged jointly with William Cooper with having sold one-half pint of whisky to Charles R. Scott on the 22d day of March, 1919. By verdict of the jury he was found guilty and his punishment fixed at imprisonment in the county jail for a period of 30 days and to pay a fine of $50. From tbe judgment rendered on the verdict he appeals..

The verdict of the jury in this case rests upon the testimony of Charles R. Scott, a deputy sheriff, and that of Wm. Hubbard. The testimony of Charles R. Scott is to the effect that he was informed- by Joe H. Floyd, another deputy sheriff, that the., sheriff of Payne county was coming to Cushing that night, and instructed the witness Charles Scott to go to the part of town called North Town, for the purpose of discovering violations of the prohibitory law; that Joe Floyd gave the witness $4 with which to purchase whisky; that witness went to North Town and met a colored woman named Laura, and asked her if she knew where he could get some whisky; she replied that she would get him some if he would give her the money.; that he did not trust the woman and did not pay her the money, but instructed her to bring the whisky to him; that after waiting for some time for the return of the colored woman he went into a restaurant operated by the defendant and William Cooper and asked Porter and Cooper if they knew where he could find the colored woman Laura — that she was going to get some whisky for him — and that Cooper told the witness that he could get him the whisky; that at this time the witness feigned intoxication and that Cooper and Porter got up and went out of the house, and that Cooper was gone about five minutes, when he came back and told the witness that the whisky would be there in a few minutes; that Cooper and the witness then walked outside in front of the restaurant and Porter, the defendant, came to them there and handed to Cooper a half-pint of whisky, which Cooper, in turn, handed to the witness; that the purpose of this witness in purchasing liquor was to get evidence to enable the officers to make some raids later that night, and that the sheriff paid this witness for procuring this testimony.

The witness Hubbard stated that he was with the witness Charles Scott the night in question, and testified that he saw the defendant, Porter, hand a bottle of whisky to another negro, who in turn handed it to Scott; that he knew of Scott’s trying to buy liquor from others and that he bought a quantity of choc beer at another place that night.

The defendant testified in his own behalf, denying any knowledge of or participation in the transaction: William Cooper, the codefendant, who” had been informed against for the same offense, pleaded guilty to the charge, and afterwards testified on behalf of the,defendant, taking the entire guilt and responsibility upon himself and denying that Porter, the de-fendánt here, had anything whatever to do with the procuring of the whisky. In addition to- this, the affidavit of the defendant in support of a motion for a continuance, setting forth what an absent witness, Bennett White, would testify to if present, was admitted as to the testimony of White without objection, and was to the same effect.

If the testimony of the' witnesses Scott and Hubbard is tru,e, the defendant is guilty as charged; if the testimony of the defendant and his witnesses is true, the defendant should havé been acquitted. From a careful reading of the entire testimony, it appears that this was a close case on the facts.

The assignments of error urged in defendant’s brief are as follows: (1) An erroneous statement of the law concerning the weight to be given to the testimony of an impeached witness, as contained in instruction No. 7; (2) error of the court in permitting the state to show that the defendant had been convicted of the alleged crime of having and keeping a' place with the intent to sell intoxicating liquor therein, from which judgment of conviction it was shown that an appeal had been taken to this court, and which appeal was then pending, undecided, in this court; (3) that the court erred in giving instruction No. 5; (4) that the court erred in refusing to give instruction No. 3 offered by the defendant.

The first assignment of error is leveled at that part of instruction No. 7 which concludes as follows:

“You are at liberty to disregard the whole or any portions of such witness' testimony unless the testimony of such witness be corroborated by other competent and material evidence."

In the earlier cases decided by this court such an instruction was held to be equivalent to instructing the jury that when there is such corroboration they must give full credence to the testimony of such witness. Rea v. State, 3 Okla. Cr. 276, 105 Pac. 289, 139 Am. St. Rep. 954; Gibbons, v. Ter., 5 Okla. Cr. 212, 115 Pac. 129; McKnight v. State, 7 Okla. Cr. 235, 122 Pac., 1118.

In the MeKnight Case, supra, the law announced by. Judge Armstrong was stated as follows-.

“An instruction advising the jury that they are at liberty to disregard the testimony of any witness who they believe from the evidence has testified falsely, except in so far as his testimony is corroborated by other evidence or facts and circumstances in the case, should not be given. The jury cannot be bound by the court to believe the testimony of such witness, jwhether corroborated or not.
“When such an instruction is given by the trial court over the objections and exceptions of the' accused, and the record discloses a close case on the facts, a judgment of conviction will be reversed."

But this court, in the case of Cole v. State, 18 Okla. Cr. 430, 195 Pac. 901, has refused to follow the rule announced in the earlier! eases cited, and states the rule, in substance, thus:

“The better plan is for the trial court not to attempt to give the jury instructions as to which witnesses or what testimony they may believe or not believe.' A general instruction on the credibility of witnesses on that question is a sufficient guide for the jury. ”

But the giving of an instruction in the language here given, with the qualifying “unless corroborated” clause, is not ordinarily reversible error. .The technical meaning of the language “unless the testimony of such witness be corroborated” is susceptible of the construction given in the earlier eases, but jurors ordinarily are not inclined to and often are not capable of technically analyzing the syntax of a sentence. They will view the subject treated from a common sense standpoint. From the reading of the whole instruction, considered with-the other instructions, it is fair to assume that the court meant-and the jury understood that the jury were at “liberty” to accept or reject the testimony of any'witness, whether corroborated or not. We therefore adhere to the rule as.announced in the Cole Case.

It is next contended that the court erred in the admission of certain testimony, over the objection of the defendant, showing that the defendant had been convicted of “keeping a place with the intent to sell intoxicating liquor therein, ’ ’ some time prior to the trial in this action, and that an appeal from this former conviction was then pending, undecided, in this court. This court has held in the case of Manning v. State, 7 Okla Cr. 367, 123 Pac. 1029, that—

“Where defendant takes the witness stand in his own be,half, he may be asked if he has ever been convicted of a felony or of any offense showing want of moral character. The purpose of this evidence is to affect his credibility as a witness by showing that he has been convicted of a felony or of any offense indicating a want of moral character. The fact that an appeal is pending from such conviction will not render such evidence inadmissible. It is the verdict of the jury upon such accusation that affects the credibility of the witness.

While there ¡are decisions in other states announcing a contrary doctrine, to the effect that a conviction is not final until the appeal is decided and that while such appeal is pending it cannot be shown that the defendant was convicted of such former offense, for the purpose of affecting the credibility of the defendant or for any other purpose, we think the law as announced in the Manning Case is supported by the weight of authority and the better reasoning.

However, in this case there is a factor not appearing in the Manning Case. It appears in the record, and this court will take judicial notice, that at the time of the trial of the case at bar this court had decided a number of other cases holding that the statute (section 4, c. 26, Session Laws of 1913) was unconstitutional. This statute is as' follows:

“It shall be unlawful for any person to rent to another or to keep a place with the intention of, or for the purpose of manufacturing, selling, bartering, giving away, or otherwise furnishing, any spirituous, vinous, fermented or malt liquors, or any imitation thereof, or substitute therefor; or any liquors or compounds 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. Any person violating any provision of this section shall be punished by a fine.of not less than fifty ($50.00) dollars, nor more than two thousand ($2,000.00) dollars, and by imprisonment of not less than thirty (30) days in the county jail, nor more than five (5) years in the state penitentiary.”

It was beyond the, power of the state Legislature to declare a mere criminal intent alone, unconnected with some overt act, as constituting a crime. It necessarily follows that at the time of the trial of the offense here charged the charge embodied in and relied upon in the former conviction was not a crime, and had been so announced by this court prior to the time of the trial of this case below. Proctor v. State, 15 Okla. Cr. 338, 176 Pac. 771, and other eases following.

The fact that this defendant had been convicted for this so-called crime may have caused the jury to believe that his testimony was unworthy of credence and that he was probably guilty of the offense here charged, of selling intoxicating liquor, and under the peculiar circumstances here it was prejudicial error to permit the testimony of this former conviction to go to the jury. The defendant sought in every way possible to exclude this damaging testimony from the jury, and after the close of the testimony requested the court to instruct the jury in part as follows:

"The court instructs the jury that the Criminal Court of Appeals has. repeatedly decided that it is the law of this state that the statute of the state criminal laws, attempting to make it a felonious crime to keep and maintain a place for the purpose and' with the intention of selling intoxicating liquors therein contrary to the laws of this state, is unconstitutional, inasmuch as it seeks to make a mere intent to violate the law a crime. * * * The defendants were neither charged nor convicted of any offense against the laws of the state of Oklahoma that were valid and constitutional laws in force and effect.”

The above instruction was refused. It would seem that, after the appellate court had decided this penal statute to be a nullity, in fairness to the defendant he would be entitled to an instruction that the statute so declared unconstitutional was without any force or effect.

As has been said, this was a close case on the facts. The defendant was convicted largely upon the evidence of a "cap-per" or “decoy" evidence man, who testified that he was employed and paid for discovering and procuring evidence in this ease.

We think the error in attacking the credibility of the defendant was serious, and, under the circumstances, prejudicial to the rights of the defendant; and the cause is therefore reversed and remanded.

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


source: Caselaw Access Project

author: jBBSSEY, J,

license: Public Domain

text:
    FRANK SMITH v. STATE.
    No. A-3762.
    Opinion Filed Jan. 7, 1922.
    (202 Pac. 1046.)
    (Syllabus.)
    1. Evidence — Declarations of Coconspirator After End of Conspiracy. If a conspiracy has come to an end, whether by success or by failure, the admissions of one conspirator, by way of narrative of past facts, are not admissible in evidence against the. others.
    2. Witnesses — Impeachment of Defendant — Evidence of Good Reputation. Where the veracity of the defendant who is a witness in his own behalf iS called in question, his general reputation for-truth may be sustained by character witnesses who know that reputation, and the refusal of the court to permit such reputation to be shown is error.
    Appeal from Superior Court, Creek County; Gaylord R_ Wilcox, Judge.
    Prank Smith was convicted of robbery and sentenced to-a term of five years in the state penitentiary, and he appeals..
    Reversed and remanded.
    R. K. Robertson and Ben Braden, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and E. L. Pulton, Asst. Atty.. Gen., for the State.
   jBBSSEY, J,

Frank Smith, plaintiff in error; referred to in this opinion as the defendant, was by information filed in the superior .court of Creek county May 19/ 1919, charged jointly with Sam Hazlett with robbing Mrs. Miles Foreman of four diamond rings. A severance was later taken and the defendants tried separately. At the trial of this defendant a verdict finding the defendant guilty as charged was rendered, November 25, 1919, and his punishment was assessed at five years’ imprisonment in the state penitentiary at MeAlester. From the judgment of the court on the verdict he appeals.

The testimony on the part of the state is to the effect that this defendant, Frank Smith, and the codefendant, Sam Haz-lett, went to the rooming house of Mrs. Miles Foreman in Shamrock, Okla., on the night of the 25th of April, 1919, and asked her to get them a drink of whisky; that Mrs. Foreman informed them that she had no whisky; that later they demanded money, and finally, by force, violence, and threats of bodily harm, took from her four diamond rings; that one of the rings was afterwards found in a pawnshop in Oklahoma City; and that the defendant was arrested in Wichita Falls, Tex., and two other of the rings found secreted in the sweatband of- his hat. There was admitted in evidence, over the objections of the defendant, an alleged confession of the co-defendant, Hazlett, made some time after the alleged offense, to the effect that he and the defendant had committed the robbery. Independent .of this confession, the state’s testimony sufficiently supported the allegations of the information.

The defendant’s testimony was to the effect that he and Hazlett and .others were drinking whisky and choc beer at the resort kept by Mrs. Foreman and became intoxicated there; that while there both men lost or were robbed of their money; that they demanded of Mrs. Foreman that their money be returned to .them.; that she .denied any knowledge of their loss; and that they then threatened to go to the police station and inform the peace officers and have her arrested; that thereupon Mrs. Foreman, in order to prevent her arrest, voluntarily gave them her diamond rings, as security until their money could be returned to them.

There, is an unreconeilable conflict in the testimony of the state and that of the defendant. If the testimony of the state is to be believed, the defendant is guilty as charged; if. the testimony produced by the defendant is to be believed, he is clearly not guilty.

Numerous assignments of error have been urged as. grounds for a reversal of this case. The Attorney General, in his brief, has confessed error in two of the assignments urged, and these only will be noticed.

The evidence on the-part of the state tends to show that the defendant and Hazlett committed this crime jointly and were coconspirators in consummating the offense, and that the court , erred in admitting in evidence an admission of the other codefendant after the accomplishment and consummation of the common design. The admissions and declarations of one conspirator can be introduced in evidence against the others when made during the progress of the conspiracy and in furtherance of its object, but the declaration of a coeonspirator, made after the accomplishment of the object of the conspiracy, would not be admissible against the defendant. While Hazlett was testifying as a witness for the defendant, the following appears of record:

'‘Mr, Wallace: Q. I will ask you to state whether or not .at the time of your arrest if you held a conversation with Abner Bruce in which you stated to him that you would go ahead and tell him all about it? A. Explain to me what about.
“Q. That you would go ahead and tell all about it, and stated to him, in substance, that you and this man held up Mrs. Foreman and took these diamonds away from her, but you was afraid to [tell it] on account of the fact that you was afraid Smith would kill you.
“Mr. Robertson: That is objected to, if the court please, as incompetent, irrelevant, and immaterial, and for the further reason that no proper foundation has been laid, and the time and place not specified, or in whose presence, or that the dee-laration was made in the presence of Frank Smith, who is now being tried on this charge.
“The Court: Fix the time and the place.
“Q. I will ask you at the time of your arrest, two or three days after this affair at Shamrock, in Wichita Falls, Tex., in the presence of U. J. Jones, deputy sheriff here, and Abner Bruce, sheriff, in a conversation that you had with Abner Bruce, if you did not tell him that you and this man Smith did take these diamonds away from Mrs. Foreman, and that you ran away with them, and that you would make a clean breast of it, but that you was afraid this 'man Smith would kill you?
“Mr. Robertson: Objected to on the ground and for the reason that the question is incompetent, irrelevant, and immaterial, no proper foundation having been laid, and the reason that the question calls for admission against the interests of the defendant, Frank Smith, who was not present when -the conversation was had, and said conversation or admission would not in any way bind the said Frank Smith herein.
“The Court: Objection overruled.
“Mr. Robertson: To which ruling of the court defendant excepts.
“Q. Just answer it yes o.r no. A. If put in that way, I would have to say no; not in just that way.”

The following appears as part of the testimony of the arresting officer, Abner Bruce:

“Q. I will ask you to state if, in that conversation — state what the conversation that you had with Sam Hazlett was, re-¡gar ding what he told you as to the guilt or innocence of this man in this matter. I will ask you to state whether or not at the time of your arrest that you held a conversation with Abner Bruce in which you stated to him that you would go ahead and tell all about it, and stated to him in substance that you and this man had held up Mrs. Foreman, and took these diamonds ¡away from her, but that you was afraid to on account ■of the fact that you was afraid that Smith would kill you?
"Mr. Bobertson: We object to that.
"Thd. Court: Ask him, ask the.witnessi if Sam Hazlett at that place stated that to him. Ask the question. A. He did.”

TJ. J. Jones, a deputy sheriff, was asked the same question, in substance, as propounded to Abner Bruce and gave a like answer.

After the close of the testimony the defendant requested the following quoted instruction, which was by the court refused :

"You are instructed, gentlemen of the jury, that there has been submitted in evidence an alleged confession by the witness Sam. Hazlett, who was jointly with the defendant now on •trial informed against for the conjoint robbery charged, and that this alleged confession or statement of this witness, Sam Hazlett, has been admitted in evidence solely for the purpose .of affecting the credibility of the witness Sam Hazlett, and is not to be considered by you as evidence of the guilt of the defendant Frank Smith of the offense charged in the information.”

What Hazlett said after the deed had been fully consummated, and not on the occasion of the robbery, and in the absence of the defendant, was not competent testimony as against the defendant. It is well settled that, if a conspiracy has come to an end, and whether by success or by failure, the admissions of one conspirator, by way of narrative of past : facts, are not admissible in evidence against the others. Gon-' zalus v. State, 7 Okla. Cr. 444, 123 Pac. 705; Sparf v. U. S., 156 U. S. 51, 15 Sup. Ct. 273, 39 L. Ed. 343; Wigmore on Evidence, § 1076; 1 R. C. L. Admissions and Declarations, par. 61.

Under the state of the record here the jury doubtless received this confession as direct evidence against the defendant. The confession could have been adinissible for only one •purpose, namely, for the purpose of affecting the credibility of the witness Hazlett, and the admission of this testimony and subsequent refusal of the offered instruction was' prejudicial error. ' This error was further emphasized by the fact that the county attorney, in his closing argument to the jury, commented upon this confession as an evidential fact, showing the guilt of the defendant.

Another error complained of is that the defendant called and offered in his behalf three witnesses to testify to his general reputation for truth and veracity, which offer was by the court refused. The testimony of the defendant was directly in conflict with the testimony of the witnesses for the state, and, where the veracity of a witness is in any manner called in question, his reputation for veracity may be sustained by proof of his general reputation for truth and veracity. Under such circumstances it is important for the jury to know something about the credibility of the witness, and the refusal of the court to permit the introduction of the testimony here offered was highly prejudicial to the rights of the defendant. Gilbert v. State, 8 Okla. Cr. 329, 127 Pac. 889; Friel v. State, 6 Okla. Cr. 532, 119 Pac. 1124; Davidson v. State, 15 Okla. Cr. 85, 175 Pac. 120.

For the reasons given, this case is reversed and remanded.

DOYLE, P. J., concurs.

MATSON, J., not participating.


author: BESSÉY, J.

text:
    D. D. DAVIDSON v. STATE.
    No. A-3589.
    Opinion Filed Jan. 7, 1922.
    (209 Pac. 779.)
    (Syllabus.)
    "Í. Indictment and Information — Indefiniteness—Lewdness. An information charging the accused of lewd conduct on a public highway in Caddo county held not sufficiently definite, under the circumstances in this case, to enable the defendant to properly prepare his defense.

      2. Appeal and Error — Prejudicial Error — Admission of Evidence of Other Offenses. Where, on the trial of one charged with lewd conduct, the court permitted the introduction of testimony tending to show that the defendant may have been guilty of other like offenses about that time, it was error, under the circumstances in this ease.
    a. Under such circumstances no one could say whether all the jurors concurred in the guilt of the defendant as to the particular offense charged.
    Appeal from County Court, Caddo County; W. H. Stark-wether, Judge.
    D. .D. Davidson was convicted of the crime of lewd and indecent exposure of his person and sentenced to imprisonment in the county jail for 60 days, and to pay a fine of $500, and he appeals.
    Reversed and remanded.
    C. H. Carswell, for plaintiff' in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. 'Gen., for the State.
   BESSÉY, J.

The plaintiff in error, herein referred to as the defendant, at the time of the offense charged was a man of the age of 70 years, residing with his wife and children in Cad-do county, about seven miles from Carnegie. The record shows that he had hitherto been a man of good character, who had in previous years been county clerk and county superintend-ent of schools in adjoining counties.

The defendant testified that he was affected with prostitis, and that he went into the park, as he supposed and intended, to a secluded spot, to relieve himself.

The evidence on the part of the state is to the effect that a number of school children attending school in Carnegie, on their way home from school on several occasions in March, 1918, saw the defendant in a park adjacent to the public highway remove some of his clothing, lewdly exposing his person to the children passing along the highway. The exact date and place was indefinitely fixed. Without objections on the part of the defendant the witness testified to several alleged indecent exposures in this park. The charging part of the information was that—

The defendant “did then and there (on the 22d day of March, 1918) intentionally, willfully, and unlawfully and lewdly expose his person and private parts in a public place, to witj on the public highway, before a great number of female school children.”

The sufficiency of this information was challenged by a demurrer to the information, on the ground that it was indefinite and incomplete, and designated no particular place where the offense was said to have been committed. The demurrer was overruled, and an exception taken and allowed. The defendant for the same reason, objected to the introduction of testimony in support of the indefinite charge,- which objection was likewise overruled.

Section 20 of the Bill of Rights of our Constitution provides that an accused person “shall be informed of the nature and cause of the accusation against him. ’ ’ Section 5738, R. L. 1910, provides that an information should contain “a statement of the acts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.” There may have been, and probably were, as many as 100 miles of public highways in Caddo county. We think, in fairness, to the defendant, in order that he might, prepare to meet the accusation, that he should have been informed definitely or approximately where or upon what highway the offense charged was said to have been committed. There is another reason why the place should be stated with some particularity in an action of this character. The record discloses, in an indefinite way, that the defendant was accused of other like offenses, all said to have taken place in the park. The defendant had a constitutional right to be tried for but one specific offense at this trial, and the accusation should have been sufficiently definite to enable him to plead former jeopardy in the event a like accusation should be subsequently lodged against him. Irvin v. State, 15 Okla. Cr. 260, 176 Pac. 83; Price v. State, 9 Okla. Cr. 359, 131 Pac. 1102.

Furthermore, the defendant had a right to the concurrence of at least five jurors in any verdict rendered in this ease. Under the evidence here one or more jurors may have believed him guilty of one offense and innocent of the others. Other jurors may have believed the defendant guilty of still another offense. Under such a state of the testimony, this court cannot say whether there was a concurrent verdict on the offense charged. True, there were no objections interposed to the tes-tiony tending to show other offenses about that time, but we think the error fundamental under the circumstances. There was indefinite testimony to the effect that several offenses were' committed; who, then, can tell on which offense the verdict was in fact based? Persons accused of an offense should not be convicted on general accusations; the evidence should be confined to the specific crime charged.

The evidence of the other alleged offenses did not tend to explain any motive of the defendant, nor to show that the offense was a part of a system, or otherwise explain or elucidate the crime charged, so as to come within the general rule under which evidence of other alleged crimes can be introduced. Miller v. State, 9 Okla. Cr. 255, 131 Pac. 717, L. R. A. 1915A, 3088; Littrell v. State, 21 Okla. Cr.—, 208 Pac. 1048; 209 Pac. 184.

For the reasons stated, the ease is reversed and remanded.

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


author: DOYLE, P. J.

text:
    BEN DRISKELL v. STATE.
    No. A-3826.
    Opinion Filed Jan. 7, 1922.
    (202 Pac. 1045.)
    (Syllabus.)
    1. Appeal and Error — Affirmance—Failure to File Brief — Sufficiency of Evidence. In a felony case where the defendant appeals from a judgment of conviction and no briefs aré filed or argument presented, this court will examine the record, and if the evidence is sufficient to support the conviction, and no error is apparent, will affirm the judgment.
    2. Rape — Evidence Supporting Conviction in Second Degree. In a prosecution for rape, evidence held sufficient to support the verdict and judgment of conviction for rape in the second degree.
    ■ Appeal from District Court, Coal County; J. H. Linebaugh, Judge.
    Ben Driskell was convicted of rape in the second degree, and he appeals.
    Affirmed.
    C. M. Threadgill, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment of conviction rendered upon a verdict of a jury finding the defendant, Ben Driskell, guilty of rape in the second degree, and fixing his punishment at imprisonment in the penitentiary for the term of five years.

The information charges:

“That Ben Driskell, in said county and state on the date and year aforesaid, did knowingly, willfully, unlawfully and feloniously accomplish an act of sexual intercourse with one Alba Tempia, a female person of the age of fourteen years, and not the wife of him, the said Ben Driskell. ”

No brief has been filed and no appearance made on behalf of the plaintiff in error in this court. When the case was called for final submission, it was submitted on the record, and we have nothing before us but the petition in error and ease-made.

The errors assigned are that the verdict is contrary to law and the evidence, and that the court erred in overruling the defendant’s motion for a directed verdict of acquittal.,

Alba Tempia, the prosecutrix, testified:

“I live at Cottonwood, with my father and brother. My mother died when I was a baby. I was 14 years old on the 12th day of February, 1919. A few days after my birthday, I was on my way to Coalgate to get some bread. The defendant came along in a car and stopped in front of McBride's and asked me if I wanted to ride. I said, ‘Yes, sir,' and I got into the car. He drove into the woods towards the cemetery and stopped. Then he pulled me out of the car and had sexual intercourse with me. He took me back to where he got me, and I went on to town. He is the father of my baby that was born on the 23rd day of November.”

Flamindo Tempia testified:

“I have lived in and around Coalgate 16 years. Alba Tempia is my daughter. She was born on February 12, '1905, in Coalgate. Her mother died in 1906.”

Susie Bonino and Rosa Bonino both testified that they were present when Alba Tempia was born, and that her age was 14 years at the time alleged.

Jesse Phillips,' sheriff of Coal county, testified:

“I arrested the defendant and had a conversation with him at the time, in which he said he had a hard case, but if he was to get a divorce from his wife and marry her he could beat it.’’

George Aslin testified he was. present when the defendant made this statement to the sheriff.

When the state rested, the defendant moved the court to direct a verdict of acquittal, which motion was overruled.

The defendant did not take the witness stand, and did not offer any testimony.

After a careful examination of the record, we are satisfied that the defendant had a fair and impartial trial, and there can be no doubt of the sufficiency of the evidence to sustain the verdict and judgment of conviction.

The judgment of the district court of Coal county is affirmed.

MATSON and BESSEY, JJ.', concur.


author: BESSEY, J.

text:
    E. R. NIX v. STATE.
    No. A-3693.
    Opinion Filed Jan. 10, 1922.
    (202 Pac. 1042.)
    (Syllabus.)
    1. Appeal and Error — Discretion of Court — Denial of Continuance for Defendant’s Illness. Where, in a motion for a continuance, the defendant urges that he is a necessary witness in his own behalf, and is physically and mentally unable to stand the strain and tension, of a trial and to properly aid and advise his counsel, held, that the overruling of the motion, under the circumstances recited in the opinion, was not error.
    2. Forgery — Fraudulent Alteration of Canceled' Check — "Writing of Another.” The fraudulent alteration of a canceled check, used as a receipt or voucher, bearing the indorsement of the payee, may be the subject of forgery.
    (a) Such instrument may be “the writing of another,” within the meaning of section 2637, R. L. 1910.
    3. Trial — Remarks of Court. Alleged prejudicial remarks of the court held not to be reversible error.
    4. Evidence — Venue Shown fay Circumstantial Evidence. The venue of the offense of forgery may be shown by circumstantial evidence.
    Appeal from District Court, Hughes County; George C. Crump, Judge.
    E. R. Nix was convicted of forgery in the second degree and sentenced to serve a term of six months in the state penitentiary, and he appeals.
    Affirmed'.
    Turner & Lucas, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall', Asst. Atty. Gen., for the State.
   BESSEY, J.

E. R. Nix, the plaintiff in error, hereafter called the defendant, was convicted in the district .court of Hughes county, Okla., on the 6th day of December, 1919, upon an indictment for forgery, charging that the defendant, on the 4th day of May, 1918, was the duly appointed and acting guardian of Minnie McCoy, and that on that day, as guardian, he made and delivered a check drawn upon the American National Bank of Holdenville, payable to his ward, in the amount of $6; that said cheek was by Minnie McCoy indorsed and presented to the bank for payment, and that she received from the bank the sum of $6; that afterwards, on the 14th day of January, 3919, the defendant, having in his possession this canceled cheek, bearing the indorsement of his ward, Minnie McCoy, and having and using this cheek as a voucher against' the estate of Minnie McCoy, feloniously' and fraudulently altered the same by inserting an “0” between the figure “6” and the “00” following a period, and by adding the letters “ty” to the word “six” as originally written in the check, thus making the amount of this check and voucher read “$60.00” instead of “$6.00,-” that the alteration of this check and voucher was done by the defendant for the purpose of cheating and defrauding his ward, Minnie McCoy, by later presenting the check and voucher as a receipt for money paid his ward in his final settlement and accounting with his ward.

The testimony produced by the state at the trial definitely and sufficiently supported the allegations of the indictment. The defendant did not take the stand and produced no witnesses or testimony in his behalf, except two witnesses introduced as character witnesses, whose testimony was to the effect that the defendant’s general reputation as an honest, law-abiding citizen in and about Holdenville where he lived, was good.

The defendant’s assignments of error, for convenience, may be grouped as follows: (1) Error of the court in denying defendant’s motion for a continuance; (2) insufficient facts charged and proved to constitute the crime of forgery; (3) prejudicial remarks of the court; (4) that the court erred in his instructions to the jury and in his refusal to give instructions requested by the defendant; (5) error in failing to prove venue.

. The motion for a continuance declared, in substance, that the defendant was not physically able to undergo the strain and tension of a trial; that defendant had for months been under the care of a physician, being afflicted with a diseased condition of the prostate gland, and that his mental and physical condition, was badly impaired, to such an extent that he had ¡been unable to properly advise with counsel and prepare his defense; that he had recently been examined by three competent physicians, who had recommended an immediate operation, and that a recovery from the operation would require from six weeks to a year. The motion for , a continuance was supported by the affidavits of the physicians, in which they stated that the defendant was very nervous, irritable, and unaccountable for his statements and actions. The motion was further supported by the affidavit of John E. Turner, of, counsel for the defendant, who stated that the defendant was a material witness in his own behalf, and that he had been unable to concentrate his mind on the case and that it had been impossible to properly prepare for trial; that it was necessary that the deféndant be present at the trial and strong enough physically' to undergo the strain of a trial, and be in such condition mentally that he could concentrate his mind upon the circumstances and facts connected with the matters with which hé stood charged, which' he was not able to do at that time. No showing was made, 'however, indicative of what defendant’s testimony would be.

A second and further ground for a continuance was urged, to the effect that Dr. Hugh Scott, a physician who had treated the defendant, was a material witness on behalf of the défend-ant; that he had recently been recalled into the United States army and was beyond the reach of process of the court; that this witness, if present, would testify that the defendant was in a highly nervous and irritable state of mind, likely to say anything and to commit acts contrary to and in derogation of his former acts, statements, and declarations, and that for more than three months the defendant had been deficient in mental capacity.

The matters and things set out in the motion for a continuance and in the affidavits in support of it, for the most part, indicate that counsel for defendant feared or were apprehensive of defendant’s mental capacity, indicating that he was not then of sound mind and not of sound mind at the time of the alleged offense. The record shows that the court so considered the motion, and that he gave the defendant and his counsel opportunity to inquire into the sanity of the defendant in the manner prescribed by law, which offer was by defendant’s counsel waived.

After the overruling of the motion for a continuance, the record of the subsequent proceedings shows that the defendant was physically able to be and was present at the trial; that the act of forgery charged was definitely and clearly proved, and that the circumstances surrounding the alteration of the instrument, as charged, were susceptible of no explanation indicative of a want of felonious intent; that the defendant did not take the stand or offer any explanation, and" under the circumstances disclosed in this record, irrespective of the state of his health, he could have made no explanation that would have in any way justified the act, save and excepting a plea of insanity.

The defendant was present in the courtroom at the time of the hearing of the motion for a continuance, where the trial judge had an opportunity to observe his physical condition; beyond this, the record shows that the trial judge, for some days previous, had observed the defendant in passing to and from his home in Holdenville. The rule as stated in 16 Corpus Juris, p. 457, is as follows:

“Continuances based on the mental or physical condition of defendant at the time of application therefor are addressed largely to the discretion of the trial court. However, where it appears that the accused is too sick to attend trial, it has been held that the court must grant a continuance, even though the testimony of the principal witness for the state, without Which a conviction is impossible, will be lost. On the other hand, where it does not appear that the accused would be better able to go to trial at a subsequent term, and there is' evidence that he might actually be less able, a continuance may very properly be refused. The exercise of sueh discretion will not be held to be abused where the court determines his alleged physical disability or illness by a personal inspection or examination.”

The illness of an accused which may prevent Mm from properly presenting his defense or rendering the assistance to counsel that he otherwise would do is generally held a reasonable ground for a continuance. However, a motion for a continuance because of the illness of a party is addressed to the sound discretion of the trial court — a discretion with wMch the appellate court will not interfere unless it appears- that it was.abused to such an extent that prejudice or injury results. Rose v. Monarch, 150 Ky. 129, 150 S. W. 56, 42 L. R. A. (N. S.) 660, 667, and notes and annotations thereto.

In passing upon a motion for continuance in a criminal ease upon the ground of the physical condition of the accused, the trial judge may consider the testimony produced as well as the condition of the accused as it appears to him. Gregg v. City of Kingfisher, 8 Okla. Cr. 8, 125 Pac. 1093; notes to Rose v. Monarch, supra; Rawlins v. State, 124 Ga. 31, 52 S. E. 1; Goddard v. State, 78 Ark. 226, 95 S. W. 476; Lipscomb v. State, 76 Miss. 223, 25 South. 158; Rucker v. State, 77 Ark. 23, 90 S. W. 151; Humphrey v. Humphrey, 3 Neb. Unof. 467, 91 N. W. 856.

From all that appears in the record, we conclude that the trial court did not abuse his- discretion in overrulifig the motion for a continuance.

It is next claimed that the allegations contained in the indictment and the proof offered in support thereof constituted no statutory offense; that the instrument in controversy was not the “act of another,” as contemplated by statute. This, charge was doubtless predicated upon the second paragraph of section 2637, R. L. 1910, which is as follows:

“Any person who, with intent to defraud, falsely marks, alters, forges or counterfeits: * * *
“Second. Any instrument of writing, being or purporting to be the act of another, by which any pecuniary demand or obligation is or purports to be created, increased, discharged, or diminished, or by which any rights or property whatever are, or purport to be, transferred, conveyed, discharged, diminished, or in any manner affected, the punishment of which is not hereinbefore prescribed, by which false marking, altering, forging or counterfeiting any person may be affected, bound or in any way injured in his person or property, is guilty of forgery in the second degree.”

It is contended by the defendant that after the $6 check in controversy was delivered to Minnie McCoy and by her indorsed and cashed, and the canceled cheek returned to the defendant, this canceled check, bearing her signature and in-dorsement, had then spent its force as an order to pay money, was “functus officio,” was evidence of no obligation between the parties, and therefore not subject to a penalty for forgery by way of alteration. This was all true, in so far as the instrument related to an order to pay money, but after its payment and the return of the instrument to the defendant, with the signature and indorsement of his ward, it then had another function — it was then, a receipt or acquittance from the ward to the defendant, as guardian, for money which he could plead payment of in an action in assumpsit against him by the ward; and when the defendant, for a fraudulent purpose, changed the amount of this receipt or acquittance from $6 to $60, with the intent and for the purpose of filing the same as a voucher from his ward in his final settlement- with her and taking credit for the larger amount, such alteration, in our opinion, constituted forgery.

Under the circumstances here, the instrument was originally the instrument and writing of the defendant, but after it had performed its function as an order to . pay money it seems clear to us that it then became the receipt or acknowledgment "of another,” in this case the ward, for the-payment of money received by her; it then became her receipt, the fraudulent alteration of which would constitute forgery.

From the reference books and reports we find that it is well settled that a receipt is .the subject of forgery provided it would operate as the foundation of another’s liability or be prejudicial to his rights, if genuine. Any change in such an instrument which alters its legal effect or makes it speak in a substantial matter a different legal language, and causes any obligation to be increased, diminished, or discharged, is forgery. 19 Cyc. 1381; 12 R. C. L. 147; Wharton’s Crim. Law §§ 885-887.

In the ease of Gordon v. Commonwealth, 100 Va. 825, 41 S. E. 746, 57 L. R. A. 744, appears this language:

"To add to a canceled check the words ‘in full of account to date’ with intent to alter its effect as a receipt, constitutes forgery. * * * The addition to a check of the words ‘in full of account to date’, may constitute forgery if made at any time after the check is delivered to the payee. ”

A returned check, marked "Paid,” according to business usage and custom and common understanding, constitutes a valid receipt from the person indorsing the check and receiving payment. Such being its function and legal effect, where the receipt or voucher has been raised or altered, to the injury of the maker of the receipt, it may be the subject of forgery. As to the character of an instrument which may be the subject of forgery, it must be such that if it were genuine it would have some apparent legal efficacy. It must be one which would work some prejudice to another, affecting his person or property rights; one which, from its nature and the course of business, might deceive or mislead, to the prejudice of another. Notes and annotations to People v. Munroe, 100 Cal. 664, 35 Pac. 326, 24 L. R. A. 33, 38 Am. St. Rep. 323.

A receipt may be the subject of forgery, although the fraud intended was never consummated- It is sufficient to show that the person sought to be injured might have been defrauded had the forgery succeeded. Commonwealth v. Brown, 147 Mass. 585, 18 N. E. 587, 1 L. R. A. 620, 9 Am. St. Rep. 736; State v. Wooderd, 20 Iowa, 541.

It is next urged that the court made certain prejudicial remarks in the course of the trial. Before the jury had been impanéled or called into the box, while the motion for a continuance was being discussed, and just before the court overruled1 the'motion, the court said, among other things, “I don’t think, Mr. Turner, this affidavit is made in good faith; I don’t think it is.” Defendant complains that this statement, made just a few. minutes before the jury was called into the box for examination, was necessarily heard by them or some of them, and that the jurors who afterwards qualified must have been influenced by the remarks. In support of this assignment of error the defendant relies upon the case of Boyer v. State, 16 Okla. Cr. 388, 183 Pac. 620; the trial judge in the Boyer Case being the judge sitting in the case at bar.

In the Boyer Case, while the motion for a continuance was being urged, the trial court made the following remarks:

"The court took judicial notice that when the case was called he [Mr. Norvell] got sick all at once, and from the conduct of the attorney just before the case was called and this [the motion] it is simply a ruse to pass the case over,”

In the opinion written by Judge Armstrong the court said:

. “We do not approve the remarks of the court made in open court, and in the presence of the jurors assembled from whom a jury to try the case1 was to be selected, * * * but1 we do not think that in making said remarks the court committed such error as alone should cause a reversal of this case.”

A further perusal of the Boyer Case indicates that in that case the court and the attorney for the defendant assumed a hostile attitude from the beginning of the trial, and that disparaging remarks and side remarks were indulged in by both the court and the defendant’s attorney during the further progress of the trial, and that the situation became so tense that the attorney for the defendant was twice fined for contempt of court. We conclude, therefore, that the circumstances in the Boyer Case show an altogether different state of facts than is here involved, and that the declaration of Judge Armstrong, “we do not think that in making said remarks the court committed such error as alone should cause a reversal of this case,” applies with much greater force in this case.

It is further urged that the court erred in giving certain instructions and in refusing to give an instruction requested by the defendant. The instructions given by the court of which complaint is made, touching upon circumstantial evidence, intent to defraud, and the alteration of the instrument in controversy, have been examined, and are held to fairly state the law with reference to the subjects treated. . The instruction requested by the defendant and refused by the court was as follows:

“The defendant requests the court to instruct the jury that before you can find the defendant guilty you must find beyond a reasonable doubt that the check which is alleged by ,the state to have been altered is the writing, of some • person other than the defendant.”

The question of law.sought to be raised by this requested instruction has been, we think, sufficiently treated elsewhere in this opinion, and we hold that there was no error in refusing to give the instruction.

Finally, it is urged that this cause should be reversed, for the reason that the state failed' to prove that the crime was committed in Hughes county. Ordinarily, forgeries are not committed in public places nor in the presence of witnesses. The possession of the forged instrument in the county-where the forgery was alleged to have been committed is prima facie evidence, that the forgery was committed in that county. If a genuine instrument has been altered, the place where it is first known to have been altered is, prima facie, the place where such alteration is made, although it may have been originally issued elsewhere. It is often difficult, ' indeed, sometimes impossible, to prove exactly where the alteration was made, and it therefore becomes necessary to resort to circumstantial evidence to prove venue. 19 Cyc. 1425, 1426; Gritts v. State, 6 Okla. Cr. 534, 118 Pac. 673, 120 Pac. 669.

There is a presumption that the forgery was uttered in the county where the fraud was perpetrated or attempted. 12 R. C. L. 153, and cases there cited.

Finding no prejudicial error in this record; the judgment of the trial court is affirmed.

DOYLE, P. J., concurs.

MATSON, J., not participating.


text:
    STATE v. G. W. YOUNG et al.
    No. A-3547.
    Opinion Filed Jan. 10, 1922.
    (203 Pac. 484.)
    (Syllabus.)
    1. Criminal Law — Statute on Conspiracy as Defining a Felony. Chapter 260, Session Laws 1915, making it a crime for two or more persons' to conspire to commit any offense against the state of Oklahoma, or to defraud the state of Oklahoma In any manner, or for any purpose, and providing that “all the parties to such conspiracy shall be liable to a penalty of not more than ten thousand dollars ($10,000.00) or to imprisonment for not more than two years or to both fine and imprisonment in the discretion ■ of the court or jury," creates and defines an offense that is a felony.
    Z. Conspiracy — Preventing Competition in Letting Public Contracts —Parties to Offense. Under the provisions of this statute, it is an offense against the state for two or more persons to conspire and agree together to prevent competition in the letting of a contract to do public work, and all who take part in such conspiracy while it is in execution, and all who, with knowledge of the facts, concur in the plans originally formed, and aid in executing them, are fellow conspirators.
    Appeal from County Court, Carter County; M. F. Winfrey, Judge.
    G. W. Young and five others were jointly indicted for conspiracy. The indictment was transferred from the district court to the county court, where the defendants’ so-called pleas to the jurisdiction of the county court were sustained, and defendants discharged, and the state appeals under Rev. Laws 1910, § 5990.
    Affirmed as to jurisdiction, and the judgment of the district court quashing the indictment held final.
    Omitting caption and formal parts, the indictment is as follows:
    “On the 15th day of June, in the year of our Lord one thousand nine hundred and eighteen, and prior to the finding of this indictment, W. F. Whitson, G. W. Young, and Ben Stephens, they the said W. F. Whitson, G. W. Young, and Ben Stephens being the duly elected, qualified and acting county commissioners of Carter county, Okla., and E.E. Gravelle, Tom Ellis, and C. C. Baker, did then and there unlawfully, willfully, and corruptly combine, confederate, conspire, and agree together and with each other to cheat and defraud Carter county, Okla., in the sum of $2,276.18, by then and there rejecting two certain bids of J. P. Sherman, who was then and there the lowest and best bidder, for the construction of bridges and culverts on section F of the state highway in Carter county, Okla., as follows: One of!- the said bids being for $2,772.72 on miles 1, 2, 3 of said section and the other bid being for $14,-953.81 on miles 3, 4, 5, 6 of said section F and to accept two certain higher bids for the construction of the identical bridges and culverts, embraced in and covered by the bids of the said J. P. Sherman, to wit, the bids of one Tom Ellis, in amounts and for construction of bridges and culverts on section F of the state highway in Carter county,- Okla., as follows: One of said bids being for $3,654.07 on miles 1, 2, 3 of said section, and the other bid being for $16,328.64 on miles 3, 4, 5, 6 on said section F, aforesaid, the net difference between the said bids being $2,276.18, the Ellis bid being that amount higher than the low bid of the said Sherman, all of the said bids aforesaid being submitted by the said Sherman and Ellis, in pursuance of a certain advertisement asking for bids for the construction of bridges and culverts, published, as required by law, by the board of county commissioners in the daily Ardmoreite, a newspaper of general circulation in Carter county, Okla., and thereafter, to wit, June 18, 1918, the said E. E. Gravelle did then and there, in pursuance of said agreement and. conspiracy, and to effect the object thereof, offer and deliver to the said J. P. Sherman $400 in lawful money of the United States of America, in consideration that the said Sherman permit and allow the rejection of his said bids aforesaid, in order that the bids of the said Tom Ellis might be accepted by the board of county commissioners and contract for the construction of said bridges and culverts be awarded to the said Tom Ellis, by the said board, all of which actions of the said Gravelle, were known to and procured by the said Tom Ellis, and for the purpose that he might secure the contract for the construction of the said bridges and culverts aforesaid.
    “In pursuance of said agreement and conspiracy, the said C. C. Baker, acting county engineer of Garter county, Okla., at the solicitation of the said Tom Ellis agreed to and with the said Tom Ellis to certify and approve as county engineer, such claims as the said Tom Ellis might file against the state of Oklahoma, and against Carter county, Okla., in the event he, the said Tom Ellis, was successful in securing the rejection of the Sherman bids, by the board of county commissioners, and the awarding of the said contract to himself on the basis of his said bids, which he, the said Ellis, then and there knew was $2,276.18 higher than the lower and best bid as submitted by the said Sherman, and the said C. C. Baker did certify and approve certain claims against the state of Oklahoma and against Carter county, Okla., on the basis of the said Ellis bids, then and there knowing said Ellis not to be the lowest and best bidder on said construction aforesaid, and thereafter, W. F. Whitson, G. W. Young, and Ben Stephens, constituting the board of county commissioners of Carter county, Okla., and being in session as a board of county commissioners within and for Carter county, Okla., on the 18th day of June, 1918, did then and there, in pursuance of said agreement and conspiracy, and to effect the object thereof, willfully, unlawfully, corruptly reject the low and best bids aforesaid of the said J. P. Sherman, for the construction of certain bridges and culverts on said section F of the state highway in Carter county, Okla., on miles 1, 2, 3, 4, 5, 6, as aforesaid, the said W. F. Whitson, G. W. Young, and Ben Stephens then and there knowing that the said bids of the said J. P. Sherman was the lowest and best bids offered and submitted, for the construction of said bridges and culverts aforesaid, and thereupon, following the rejection of the said Sherman bids, the bids as aforesaid, submitted by Tom Ellis, were unlawfully and fraudulently accepted, and contract awarded to him, the said Tom Ellis, for the construction of the bridges and culverts, as described in his bids aforesaid, which accepted bids of the said Tom Ellis, were then and there well known to the commissioners, and each of them aforessaid, to be higher in the amount of $2,276.18 than the lowest and best bid, which said letting and awarding of said contract to Tom Ellis was for the express purpose of cheating and defrauding Carter county, Okla., in said sum aforesaid; the motion of rejection of the low bids aforesaid and acceptance of the higher bids aforesaid, and awarding of said contract was made by W. F. Whitson, and seconded by Ben Stephens, and thereupon all of said county commissioners, to wit, W. F. Whitson, Ben Stephens, and G. W. Young, voting ‘Aye’ on said motion, did then and there unlawfully, willfully and fraudulently reject the lowest and best bid, and award the contract to Tom Ellis on the higher bids, and thereafter, in pursuance of said agreement and conspiracy, and with intent to effect the purpose and object thereof, the said Tom Ellis did then and there unlawfully, willfully, and corruptly make out and file certain claims with the county clerk of Carter county, Okla., for the difference between the higher and the lower bids, as aforesaid, the numbers and amounts of said claims being as follows, to w’t: Claim No. 199, warrant No. 171, for $705.35; claim No. 874, warrant No. 789, for $46.20; claim No. 1304, warrant No. 1065, for $996.80; claim No. 621, warrant No. 481, for $347.80, which said claims C. C. Baker, acting county engineer, in pursuance to said agreement and conspiracy, and with the intent to effect the purpose and object thereof, did then and there unlawfully, willfully, and corruptly approve and certify as true and correct, and thereafter, in pursuance to said agreement and conspiracy, and with the intent to effect the purpose and object thereof, W. 'F. Whitson, Ben Stephens, and G-. W. Young, constituting the board of county commissioners within and for Carter county^ Okla., aforesaid, did then and there unlawfully, willfully, and fraudulently approve and allow said claims and issue warrants to the said Tom Ellis in payment thereof, the said allowance of claims and issuance of warrants aforesaid, being ordered by the affirmative vote of each and every member of the said board of county commissioners, and thereafter, in pursuance to said agreement and conspiracy and with the intent to effect the purpose and object thereof, the said Tom Ellis did then and there unlawfully, willfully, and corruptly accept and receive said warrants in payment of the above aforesaid claims, thereby cheating and defrauding Carter county, Okla., in the sums of the respective amounts of said claims aforesaid, the total thereof aggregating $2,106.35, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”
    Order of the court entered January 11, 1919:

      "This cause coming on to be heard on motion of the county attorney to transfer same to the county court, and it appearing that the indictment returned and filed herein on the 2d day of January, 1919, charged an offense against the laws of this state, and it further appearing to the full satisfaction of this court that the same should not be by this court transferred to the county court of Carter county:
    "It is therefore ordered that this ease, together with the indictment and all papers relating thereto, be, and the same is hereby, ordered not to be transferred to the county court, and that said indictment is hereby quashed, and the defendants, if in custody, ordered released.
    "W. F. Freeman, Judge.”
    Order of the court entered March 26, 1919:
    "This cause coming on for hearing on this the 26th day of March, 1919, upon the motion of the county attorney of Carter county, Okla., to transfer the same to the county court of Carter county, Okla., and it appearing'that the indictment returned and filed on the 2d day of January, 1919, charges an offense over which this court has no jurisdiction, and that the same is within the jurisdiction of the county court of Carter county, Okla:
    "It is therefore ordered that this cause, together with the indictment and all papers relating thereto, be, and the same is hereby, transferred to the county court of Carter county, Okla.
    "Thos- W. Champion, District Judge.”
    Journal entry of judgment:
    "Now, on this the 10th day of April, 1919,'the same being a regular judicial day of the April, 1919, term of the county court in and, for Carter county, Okla., came on to be heard the above-styled and numbered cause, and came the plaintiff, the state of Oklahoma, by R. B. Brown, county, attorney; and came the defendants, G. W. Young, W. F. Whit-son, Ben Stephens, E. E. Gravelle, Tom Ellis, and C. 0. Baker, in person and by their attorneys.
    “And thereupon came on to be heard the plea to the jurisdiction of the court filed herein by the defendants; and the court, having heard said plea and argument of counsel therein, is of the opinion that the law is with the defendants, and that the defendants’ plea to the jurisdiction of the court should be sustained.
    “It is therefore ordered, adjudged and decreed by the court that the plea to the jurisdiction of this court filed herein by the above named defendants be, and the same is hereby, sustained, and that the defendants are hereby released from custody, and their bondsmen are released and relieved from any liability on their said bonds.
    “And to the sustaining of the defendants’ plea to the jurisdiction of the court, the plaintiff, the state of Oklahoma, then and there, in open court, excepted and gave notice of appeal to the Criminal Court of Appeals of the state of Oklahoma; and an extension of time being asked by the plaintiff in which to make up and serve case-made, the same was granted, and the plaintiff is allowed sixty days from this date in which to make up and serve its case-made, the defendants to have ten (10) days thereafter in which to suggest amends, and'the same to be settled on five days’ notice by either party. M. F. Winfrey, County Judge. ’ ’
    From this judgment the state appeals to this court under authority of the third subdivision of section 5990, Rev. Laws. The question reserved is answered in the opinion.
    S. P. Freeling, Atty. Gen., W. C. Hall, Asst. Atty. Gen., R. R. Brown, Co. Atty., and John L. Hodge, Asst. Co. Atty.,' for the State.
    J. A. Bass, Champion & George, Brett & Mathers, and Brown & Williams, for defendants in error.
   DOYLE, P. J.

(after stating the facts as above). G. W. Young, W. F. Whitson, and Ben Stephens, county commissioners of Carter county, C. C. Baker, acting county engineer of said county, and E. E. Gravelle and Tom Ellis were jointly indicted in the district court of Carter county for unlawfully conspiring for the purpose of preventing competition in the public letting of contracts for the construction of certain bridges and culverts on section F of the state highway in Carter county. The indictment was returned on the 2d day of January, 1919. The county attorney moved to transfer the indictment to the county court. On the 11th day of January, 1919, the motion was overruled, and the court, W. F. Freeman, presiding judge, ordered the indictment quashed and that the defendants be discharged. Thereafter, on the 26th day of March, 1919, on the motion of the county attorney, said indict-mqpt was transferred to the county court by order duly entered in the district court, Thos. W. Champion, presiding judge.

The defendants filed in the county court what they term “a plea to the jurisdiction of the court,” on grounds substantially as follows:

"(1) That said district court has by an order not appealed from, which is a valid and binding order, quashed said indictment, and there is nothing before this court in consequence thereof to hear and determine.
“ (2) That this court has no jurisdiction of this cause, because article 7, § 12, of the Constitution precludes county courts from trying any public officer for official misconduct in office, and article 7, § 10, of the Constitution confers on district courts jurisdiction to hear and determine all cases, except where exclusive jurisdiction is by the Consitution or by law conferred on some other court, and that the district court of Carter county is by the Constitution given exclusive jurisdiction to hear and determine this ease.”

The county court entered judgment sustaining this plea, and ordered that the defendants be discharged. The state reserved the question of jurisdiction and this judgment is now brought into review in this court.

Counsel for the state in their brief say:

“The sole question involved in this appeal is that of jurisdiction of the county court to try defendants under the charge preferred; and this question is itself twofold. In the first place it involves jurisdiction to try those defendants who were, at the time of the alleged offense, county officers and in the second place it involves jurisdiction in the absence of jurisdiction to try officers to try those defendants who are not officers upon a joint charge of conspiracy with such officers.
“Plaintiff in error first maintains that jurisdiction to try said defendants is vested exclusively in the county court, therefore the order of the district court quashing the indictment and discharging the defendants is a nullity; second, that the county court has jurisdiction to try defendants who were not officers, independent of jurisdiction to try said officers, while defendants in error contend that said county court has no such jurisdiction. If the contention of the defendants in error be correct, then said defendants are entitled to be discharged; if incorrect, the case should be remanded to the county court of Carter county for trial upon its merits, as to those over which said court has jurisdiction.”

Counsel on both sides in their arguments pro and con erroneously assume that this indictment was for a conspiracy as defined by section 2232, Rev. Laws, which prescribes:

“If two or more persons conspire * * * to commit any crime, * * * they are guilty of a misdemeanor.”

Section 12 of article 7 of the Constitution, among other things, provides that the county court shall not have jurisdiction in any action against officers, for misconduct in office.

In Ex parte Moody, 3 Okla. Cr. 590, 108 Pac. 431, it is said:

“The prohibition contained in the Constitution against the exercise by the county court of jurisdiction in actions against officers for misconduct in office is not limited to actions for the removal of such officers from the positions which they occupy on account of the official misconduct, but extends to and includes any and all actions against such officers for misconduct in office, it matters not what the nature of the action or the punishment inflicted may be.”

And see State ex rel. v. Russell, 33 Okla. 141, 124 Pac. 1092.

We find no reason to doubt the correctness of the rule announced in the Moody Case. However, in the view we have taken of the disposition of this case, the fact that this is a charge of conspiracy against officers and private citizens is wholly immaterial.' We think the indictment in this case charges a conspiracy as defined by chapter 260, p. 621, Session Laws 1915, which reads as follows:

“Section 1. If two or more persons conspire either to commit any offense against the state of Oklahoma, or to defraud the state of Oklahoma in any manner or for any purpose, and if one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty of not more than ten thousand dollars ($10,000.00) or to imprisonment for not more than two years or to both fine and imprisonment in the discretion of the court or jury.”

Under the provisions of this section it is an offense against the state for two or more persons to conspire and agree together to prevent competition in the letting of a contract to do public work, and all who take part in such conspiracy while it is in execution, and all who with knowledge of the facts concur in the plans originally formed, and aid in executing them, are fellow conspirators.

The test by which to determine the question of jurisdiction to try the indictment in this case is, Does this section define an offense.'that is a felony? The definitions of “felony” and “misdemeanor” in this state are statutory, and not constitutional. Under the provisions of our Penal Code all crimes are classed as felonies or as misdemeanors, accordingly as they are or are not punishable by imprisonment in the penitentiary. Sections 2085, 2086, and 2087, Rev. Laws. And the test by which to determine whether an offense defined by the statute shall be deemed a felony or misdemeanor is made to depend upon whether the same is punishable by imprisonment in the penitentiary, or in the county jail. In statutes creating or defining offenses, the language usually expressly indicates whether the offense is to be deemed a felony or misdemeanor. It will be noticed that the statute under consideration is silent in reference to the place of imprisonment.

The statute in question was adopted from the federal statutes. Volume 2, § 5440 (U. S. Comp. St. § 10201). The language of this statute is almost identical with the language used.in the federal statute. The offense defined by this section of the federal statute (section 5440) has by numerous decisions of the Supreme Court of the United States been held to be an infamous crime. Mackin v. U. S., 117 U. S. 348, 6 Sup. Ct. 777, 29 L. Ed. 909; U. S. v. De Walt, 128 U. S. 393, 9 Sup. Ct. 111, 32 L. Ed. 485; Parkinson v. U. S., 121 U. S. 282, 7 Sup. Ct. 896, 30 L. Ed. 959; In re Claasen, 140 U. S. 204, 11 Sup. Ct. 735, 35 L. Ed. 409; Ex parte Bain, 121 U. S. 12, 7 Sup. Ct. 781, 30 L. Ed. 849.

In Maekin v. U. S. it was held the offense defined by this section is an infamous crime, and persons cannot be held to answer otherwise than on the presentment or indictment of a grand jury. The test is whether the crime is one for which the statute authorizes the court to award an infamous punishment, not whether tbe punishment ultimately awarded is an infamous one.

Under the decisions of the Supreme Court of the United States, the test 'to be applied in determining whether an offense is an infamous crime is the character of the punishment which may be inflicted, and an infamous crime is one punishable by imprisonment in a state prison or penitentiary.

Wharton says that “infamous crimes” are convertible with “felonies.” Whart. Cr. Law, par. 561.

It is said in Cooley,¡ Const. Law, p. 29, the' punishment of the penitentiary must always be deemed infamous, and so must any punishment which involves the loss of civil or political privileges.

It is a well-settled general rule that, when a statute enacted by one state is literally or substantially adopted by the Legislature of a sister state, or by Congress, or is imposed by Congress upon a United States territory, the judicial construction already placed upon it by the courts of the state where it originated accompanies the statute, and is to be treated as incorporated therein. State v. Caruthers, 1 Okla. Cr. 428, 98 Pac. 474.

It follows as a sound rule of statutory construction that, when a statute enacted by Congress is literally adopted by the Legislature of this state, the judicial construction already placed upon it by the Supreme Court of the United States accompanies the statute, and is to be treated' as incorporated therein, unless such construction would be in derogation of some general law.

Another rule is that a penal statute must be construed with such strictness as to carefully guard the rights of the accused, and at the same time preserve the obvious intention of the Legislature; what the legislative intention was, however, can be derived only from the words used in the statute.

In Ex parte Cain, 1 Okla. Cr. 7, 93 Pac. 974, the Supreme Court of this state, construing the penal clause of the prohibitory provision of the Constitution, which declares a violation of the provision "shall be punished on conviction thereof, by a fine of not less than fifty dollars and by imprisonment not less than thirty days for each offense,” held this constitutional provision self-executing, and the offense therein created to be a misdemeanor, and that the word "imprisonment” in its ordinary sense contemplates and means.within the common jail rather than the penitentiary.

In the opinion it is said that, under the statute (section 2091, Rev. Laws), the maximum punishment for said offense is imprisonment in the county jail not exceeding one year, and by a fine not exceeding $500, or both such fine and imprisonment. We think this definition does not apply where a statute creates or defines a crime which is punishable by imprisonment for a term of years, and we have no doubt that the word "imprisonment” as used in the statute in question has a broader signification, and empowers a court to sentence a person convicted to imprisonment in the penitentiary, when the punishment imposed is for a longer period than one year.

Answering the question of jurisdiction submitted for our decision, therefore, we say:

The district court of Carter county, and not the county court of said county, had exclusive jurisdiction to try the indictment in this case. Our Code of Criminal Procedure provides :

"The court may either óf its own motion or upon the application of the county attorney, and in the furtherance of justice, order an action or indictment to be dismissed; but in that case the reasons of the dismissal must be set forth in the order, which must be entered upon the minutes. ’' Section 6099, Rev. Laws.

In the State v. McDonald, 10 Okla. Cr. 413, 137 Pac. 362, it is said:

“The effect of this statute is to abolish the common-law right of the prosecuting attorney to nolle prosequi an indictment or information, except with the consent of the court. It goes further, and, under certain conditions, vests the trial judge with the power, whenever in his judgment the interest of justice may require it, to order the dismissal of an indictment or information, with or without the consent of the county attorney.”

Our Code further provides that appeals to this court may be taken by the state “upon judgment for the defendant on quashing or setting aside an indictment or information.” Section 5990, Rev. Laws.

It follows that, the state not having appealed from the judgment of the district court of Carter county quashing the indictment in this case, said judgment of dismissal is a finality.

MATSON and BESSEY, JJ., concur.


author: PER CURIAM.

text:
    GORDON BROWN v. STATE.
    No. A-3981.
    Opinion Filed Jan. 11, 1922.
    (203 Pac. 1118.)
    Appeal from District Court, Carter County; Thos. W. Champion, Judge.
    Gordon Brown was convicted of manslaughter in the second degree, and he appeals.
    Appeal dismissed.
    Rutherford Brett and Mathers & Coakley, for plaintiff in error.
   PER CURIAM.

The plaintiff in error, Gordon Brown, was by information charged with the murder of one Lon Hardy, alleged to have been committed in Carter county on or about the 30th daj of August, 1919, by shooting him with a pistol. Upon his trial the jury returned a verdict finding him guilty of manslaughter in the second degree, and assessing his punishment at confinement in the county jail for a period of 12 months and by a fine of $1,000. From the judgment in pursuance of the verdict, on the 18th day of November, 1920, the defendant appealed by filing in this court on May 16, 1921, a petition in error with case-made. Plaintiff in error, by his counsel of record, has filed a motion to dismiss his appeal. It is therefore considered, adjudged, and ordered that said motion be sustained, the appeal herein dismissed, and the cause remanded to the trial court, with direction to cause the judgment and sentence to be carried into execution. Mandate forthwith.


text:
    STATE v. G. W. YOUNG et al.
    No. A-3548.
    Opinion Filed Jan. 16, 1922.
    (203 Pac. 489.)
    (Syllabus.)
    Counties — Jurisdiction in District .Court to Try Charge of Misconduct of County Commissioners — Violation of Statute as Misconduct in Office. Const, art 7, § 10, provides: “The district courts shall have original jurisdiction in all cases, civil and criminal, except where exclusive jurisdiction is' by this Constitution, or by law, conferred on some other court.”
    Const, art, 7, § 12, provides that the county court shall not have jurisdiction “in any action against officers for misconduct in office.”
    Section 1652, Rev. Laws, provides: “Any county commissioner who shall fail to perform any duty required of him by law shall be fined in a sum not less than fifty nor more than one thousand dollars, or by imprisonment in the county jail not less than thirty days nor more than one year, or by both such fine and imprisonment.”
    Held, under the constitutional provisions, the district court, and not the county court, has jurisdiction'to try an indictment charging misconduct in office.
    Held, further, that a violation of section 1652, supra, constitutes misconduct in office.
    Appeal from. County Court, Carter County; M. F. Winfrey, Judge.
    G. W. Young, W. F. Whitson, and Ben Stephens were jointly indicted for official misconduct in office, and the county attorney moved to transfer the indictment to the county court.
    This motion was overruled, and the court ordered the indictment quashed and the defendants discharged, and the State appeals on a question reserved. Judgment of dismissal held final.
    See, also, 20 Okla. Cr. 383, 203 Pac. 484, 490.
    S. P. Freeling, Atty. Gen., W. C. Hall, Asst. Atty. Gen., R. R. Brown, Co. Atty., and John L. Hodge, Asst. Co. Atty., for the State.
    J. A. Bass, Champion & George, Brett & Mathers, and Brown & Williams, for defendants in error.
   DOYLE, P. J.

G. W. Young, W. F. Whitson, and Ben Stephens, the duly elected, qualified, and acting members of the board" of county commissioners of Carter county, were jointly indicted as such on a charge that they did willfully and unlawfully disregard the plan and profile approved by the department of highways of the state of Oklahoma in the construction of a bridge on section “J,” mile “5,” of the state highway in Carter county.

The county attorney moved to transfer the indictment to the county court. On the 11th day of January, 1919, the motion was overruled, and the court, W. F. Freeman presiding judge, ordered the indictment quashed, and that the defendants be discharged. Thereafter, on the motion of the county attorney, said indictment was transferred to the county court by order duly entered in the district court, Thos. W. Champion presiding judge. The defendants filed in the county court what they term "a plea to the jurisdiction of the county court” on grounds substantially as follows:

"First. That said district court has by an order not appealed from, which is a valid and binding order, quashed said indictment, and there is nothing béfore this court, in consequence thereof, to hear and determine.
"Second. That this court has no jurisdiction of this case, because article 7, § 12, of the Constitution, precludes county courts from trying any public officer for official misconduct in office, and article 7, § 10, of the Constitution confers on district courts jurisdiction to hear and determine all eases, except where exclusive jurisdiction is by the Constitution or by law conferred on some other,court, and that the district court of Carter county is by the Constitution given exclusive jurisdiction to hear and determine this case.”

The county court entered judgment sustaining this plea, and ordered that the defendants be discharged. The state reserved the question of jurisdiction, and appeals to this court under authority of the third division of section 5990, Rev. Laws.

The case is a companion case to that of G. W. Young et al. v. State, decided at this term, 20 Okla. Cr. 383, 203 Pac. 484, 490.

Section 10 of article 7 of the Constitution is as follows:

"The district courts shall have original jurisdiction in all cases, civil and criminal, except where exclusive jurisdiction is by this Constitution, or by law, conferred on some other court.”

Section 12 of article 7, among other things, provides that the county court shall not have jurisdiction “in any action against officers for misconduct in office. ’ ’

In Ex parte Moody, 3 Okla. Cr. 590, 108 Pac. 431, it is said:

“The prohibition contained in the Constitution against the exercise by the county court of jurisdiction in actions against officers for misconduct in office is not limited to actions for the removal of such officers from the position which they occupy on account of the official misconduct, but extends to and includes any and all actions against such officers for misconduct in office, it matters not what the nature of the action or the punishment inflicted may be.”

And see State ex rel. v. Russell, 33 Okla. 141, 124 Pac. 1092.

The statute under which the indictment in this case is framed reads as follows:

“Any county commissioner who shall fail to perform any duty required of him by law shall be fined in a sum not less than fifty nor more than one thousand dollars, or by imprisonment in the county jail not less than thirty days nor more than one year, or by both such fine and imprisonment.” Section 1652, Rev. Laws.

The offense defined by this section is a misdemeanor, and a violation of this section constitutes “misconduct in office.”

The phrase “misconduct in office” includes any willful malfeasance, misfeasance, or nonfeasance in office. Bishop substantially defines “misconduct in office” in its penal sense as any act or omission in breach of a duty of public concern by one who has accepted public office, provided: his act is willful and corrupt, and is not judicial. Bishop’s New Crim. Law, pars. 459, 460.

Answering the question of jurisdiction submitted for our decision, therefore, we say the district court of Carter county, and not the county court of said county, had exclusive jurisdiction to try the indictment in this case.

The state not having appealed from the judgment of the district court of Carter county quashing the indictment in this case, said judgment of dismissal is a finality.

MATSON and BESSEY, JJ., concur.


text:
    STATE v. G. W. YOUNG et al.
    No. A-3549.
    Opinion Filed Jan. 16. 1922.
    (203 Pac. 490.)
    Appeal from County Court, Carter County; M. P. Winfrey, County Judge. .
    G. W. Young, W. F. Whitson, and others, as members of the Board of County Commissioners, were jointly indicted, for official misconduct in office, and the county attorney moved to transfer the indictment from the district to the county court, which motion was overruled, and the indictment quashed, and the State appeals on a reserved question. Held that the district, and not the county, court had exclusive jurisdiction, and that, the State not having appealed from the judgment quashing the indictment, such judgment is final.
    See, also, 20 Okla. Cr. 383, 203 Pac. 484, 489.
    S. P. Freeling, Atty. Gen., W. C. Hall, Asst. Atty. Gen., R. R. Brown, Co. Atty., and' John L. Hodge, Asst. Co. Atty., for the State.
    J. A. Bass, Champion & George, Brett & Mathers, and Brown & Williams, for defendants in error.
   PER CURIAM.

G. W. Young, W. F. Whitson, and Ben Stephens, the duly elected, qualified, and acting members of the board of county commissioners of Carter county, were jointly indicted as such on a charge that—

They “did then and there unlawfully and willfully buy from the Froebe G-ray Construction Company $4,528 of road material, to wit, steel, without first advertising for bids therefor and letting the contract of the purchase of said steel at a public letting as by law provided.”

The statute under which the indictment in this case is framed reads as follows:

“Any county commissioner who shall fail to. perform any duty required of him by law, shall be fined in a sum not less than fifty nor more than one thousand dollars, or by imprisonment in the county jail not less than thirty days nor more than one year, or by both such fine and imprisonment.” Section 1652, Rev. Laws.

This is a companion case to that of G. W. Young, W. F. Whitson, and Ben Stephens v. State, 20 Okla. Cr. 383, 203 Pac. 484, this day decided. The orders made and judgments rendered by the district and county courts are identical, and the state appeals upon the same question reserved, which has been answered in the companion case to the effect that the district court of Carter county had exclusive jurisdiction to try the indictment in this case.


text:
    Ex parte PRIMO PASSINI.
    No. A-4148.
    Opinion Filed Jan. 18, 1922.
    (203 Pac. 242.)
    (Syllabus.)
    1. Habeas Corpus — Right to Bail — Burden of Proof on Petitioner. Upon an application for bail by writ of habeas corpus, after commitment, for a capital offense, by an examining magistrate, the burden of proof is upon the petitioner to show that the proof of his guilt is not evident nor the presumption thereof great.
    2. Same — Insufficiency of Evidence- Evidence on application for bail considered, and held insufficient to show that petitioner is entitled to be admitted to bail as a matter of legal right.
    Primo Passini was committed on a charge of murder and his petition for bail denied, and he brings habeas corpus to be let to bail.
    Writ denied and bail refused.
    E. C. Marianelli and ¡Philos-S. Jones, for petitioner.
    The Attorney General and E. L. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

In this proceeding petitioner Primo Pas-sini by his attorneys presented to this court a verified petition, wherein he alleges that he is illegally restrained of his liberty by Austin Park, sheriff of Latimer county, and that his illegal confinement and detention consists in this, to wit, that an order of commitment was issued by H. E. McLarty, justice of the peace in and for Wilburton, Latimer country, on the 2d day of December, 1921, upon a preliminary examination had upon a complaint wherein petitioner was charged with the crime of murder, alleged to have been committed in said county on or about the 20th day of November, 1921, by shooting and killing one Sesto Pranzini, and that under the evidence introduced on said examination the proof of his guilt is not evident nor the presumption thereof great. It is also averred that on application for bail before E. F. Lester, judge of the district court of Latimer county, hearing was had, and petitioner was denied bail.

The rule is well settled that on the hearing of an application for admission to bail by one held under a commitment for murder the burden of proof is on the petitioner to show that the proof of his guilt is not .evident nor the presumption .thereof great. The theory of the state was that it was a lying in wait assassination. The defendant did not take the witness stand on the preliminary examination nor on the hearing of his application for bail before the district court.

Without entering into a discussion of the facts in evidence, we deem it sufficient to say that upon a careful consideration of all the evidence presented we are of opinion that the petitioner is not entitled to be admitted to bail as a matter of legal right. It is therefore considered and adjudged that the writ be denied, and bail refused.

MATSON and BESSEY, JJ., concur.


text:
    ALBERT BENSON v. STATE.
    No. A-3837.
    Opinion Filed Jan. 19, 1922.
    (203 Pac. 241.)
    (Syllabus.)
    Homicide — Shooting with Intent to Kill — Sufficiency of Evidence-In a prosecution for shooting another with intent to kill, evidence held sufficient to support the'verdict and judgment of conviction.
    Appeal from District Court, MeCurtain County; Geo. S. March, Judge.
    Albert Benson was convicted of assault with intent to kill, and he appeals.
    Affirmed.
    Jeff D. McLendon, for plaintiff in error.
    The Attorney General and E. L. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Albert Benson, was convicted on a charge of shooting with a shotgun one John Lane, with intent to kill the said Lane, and his punishment fixed at imprisonment in the penitentiary for a period of six months. He has appealed from the judgment rendered upon such conviction, but there has been no appearance on his behalf in this court. The errors assigned question the sufficiency of the evidence to sustain the verdict.

It appears that the complaining witness, John Lane, and the defendant, Albert Benson, are negroes, and the shooting occurred in Shawneetown, McCurtain county, where the defendant conducted a store.

John Lane testified:

"My baby girl was having spasms; the defendant’s dog had bit her on the arm; I went up there to kill that dog; I took my gun; I says, ‘Cousin Albert, I did not come here to harm nothing but the dog;’he says,‘God damn it, go out and kill the dog; ’ I went out and shot the dog; the moment I shot he ran and got a single-barrel shotgun and shot me with buckshot in the leg; then he ran into the house and gets his automatic, and then he shot me in the neck and in the side; my little girl was at home when the dog bit her.”

•John Wesson testified:

"I heard John Lane say he was going to kill the dog for biting his child; Albert Benson told him not to kill the dog; it was best for him to go on home and let that dog alone; Lane said he was going to kill the dog, and Benson told him if nothing else would do to go ahead and kill him; the dog was out in the yard, and Lane went out and shot at him; when he shot the dog Benson shot him; then Lane asked me to go home with him; I told him I had my baby in the wagon, and I would go up there and tell my boy to wait until I got back; he walked on a piece and stopped; I told him to go on, ‘I will overtake you;’ just as I turned around Benson shot him twice with an automatic shotgun; at that time Lane had his gun in one hand down,at his side.”

Dr. L. H. Hall testified:

“I was called to dress the wounds of John Lane; I found that several bird shot entered the shoulder, one or two entered the face, and one entered his eye. ’ ’

For the defense, John Craig testified:

“I was in the defendant’s store and heard a shot outside; I went to the door and there was another shot; John Lane was out there with a Winchester, and he fired another shot at the dog, and missed the dog; then Albert Benson came to the door and asked him what he was doing, and told him to go on home and behave himself, and went back in the store and was waiting on some customers; then John Lane shot the dog, and Benson jumped out the door and shot him in the leg. John Lane threw the gun right towards him, and he jumped off the porch and out of the way, and went in the house; John Lane was back of the store, and Benson shot twice; I guess it was him; I did not see him; I saw John Lane throw up his hands and drop his gun; then he crawled through the fence and went off a little ways and fell down. ’ ’

As a witness in his own behalf, the defendant testified:

“I run a store and farm at Shawneetown; John Lane came around the house to the well, and he called the dog and fired two shots; I could see him out of the window; I walked to the door and said, ‘You ought to be ashamed of yourself, the way you are doing shooting in this yard, trying to make folks think that you run the county and everything else’; I made that remark and went back in the house; he fired another shot at the dog, and said, ‘You black son of a bitch, you come out and take your medicine; you understand me?’ Well, I walks to the door; he was standing with his gun this way, so I just picked up my gun and I jumped quick and shot; he went around the house and fell; then ,he came back towards the store again, and he shoved his gun out; I just reached back and got that automatic, and made two shots, and that settled it.”

While the defendant is not represented in this court, we have carefully examined the record, both as to the law and the evidence. It is obvious that tbe case was one for tbe consideration of the jury, and, finding no error prejudicial to the substantial rights of the defendant, the judgment of the lower court is affirmed.

MATSON and BESSEY, JJ., concur.