text:
    GEORGE W. DODD v. STATE.
    No. A-3917.
    Opinion Filed April 16, 1923.
    Rehearing Denied Nov. 24, 1923.
    (219 Pac. 952.)
    (Syllabus.)
    Homicide — Evidence Sustaihing Conviction of Manslaughter in First Degree. Evidence and instructions examined, and conclusion reached that defendant had a fair and impartial trial, and that no prejudicial error occurred.
    Appeal from District Court, Kiowa County; Thomas A. Edwards, Judge.
    George W. Dodd was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.
    George L. Zink, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

George W. Dodd, plaintiff in error, hereinafter referred to as defendant, was, on the 14th day of August, 1920, adjudged guilty of the crime of manslaughter in the first degree for the killing of one Marshall Brooks, and sentenced to serve a term of 12 years’ imprisonment in the state penitentiary.

This killing occurred on the corner of two of the business streets of the town of Mountain View on the 26th day of April, 1920, at about 1 or 1:30 in the afternoon. The killing was the outgrowth of enmity by the defendant toward the deceased. This enmity, defendant claims, was mutual, and was occasioned because defendant claims to have discovered, about three months before the killing, that deceased and defendant’s wife had become intimate with each other. Up until about two months before the killing, and for some time previous thereto, defendant and deceased had lived on adjoining farms about five miles north of the town of Mountain View. At the time of the killing, however, defendant was a resident of the city of Anadarko, Okla., to which place he had removed after discovering this alleged intimacy between his wife and the deceased, and defendant testified that he moved to Anadarko for the purpose of taking his wife from the neighborhood in which the deceased lived. Before removing to Anadarko, the defendant sought the deceased on an occasion when the deceased was working in his field. On that occasion defendant himself testified that he had the following conversation with the deceased :

“Q. Did you ever meet Brooks at all after that, and ever have any conversation with him? A. Yes; I met him after that. Q. Now, tell the jury about your meeting with him and where. A. Well, I made up my mind early after this trouble — after I suspected Brooks of being the man the letter was written to — I didn’t want to meet him or live in the community and that one of us should move out of the country, and I made up my mind I had better move and that I would stay out of trouble and live for my family, if possible. I finally decided I would go and have a talk with him, and we met and had a talk. Q. Where did you meet? A. In the cornfield. Q. Whose cornfield? A. His cornfield. Q. Who went up there? A. I went to where he was gathering corn. Q. Tell the jury about it. A. When I first went up and when he first saw me, he jumped and went around back of his wagon and reached in his hip pocket after his gun, and I told him I hadn’t come to hurt him but to talk the matter over, and we stood there and talked quite a while. Q. Did you tell him what your wife told you? A. I told him all my wife told me. Q. You told him? A. I told him about him coming there to see her and trying to make love to her and making love to her, and about him writing her letters and her -writing letters to him. Q. What did he say about it? A. He said he done it; he said, ‘George, yes; I have.’ Q. What else was said on that occasion? Just tell all the conversation. A. I told him I had made up my mind and I had thought I would kill him, but that I had finally decided I wouldn’t kill him, that I would keep out of trouble and live for my children and live for my wife. Q. What did he say to that? A. Well, I told him that I didn’t think we ought to live as neighbors any longer, or come in contact with each other at all, and he said he had too much property — was too well fixed to think about selling out and moving, and I told him I had already sold out and was going to move away. Q. What else was said between you? A. I told him he had almost ruined my life, and that it was hard for me to feel like myself, and that I could have killed him at different times. He said, ‘ George, I have expected that you would kill me, and it has worried me, and I have had to go fixed to protect myself.’ Q. What else was said? A. There? Q. Yes. A. Then we had an agreement not to never meet each other or to ever meddle with each other’s business and avoid meeting each other, and we further agreed that if one put himself in the other’s path that both would know it meant trouble, and I said, ‘Brooks, you know this is the kind of trouble that causes men to kill each other, and we simply can’t afford to meet each other after having that kind of trouble.’ He said, ‘Certainly we can’t, and we will naturally go prepared for each other.’ Q. Now, Mr. Dodd, after that conversation did you ever meet Brooks again and be in close proximity to him, between that time and the time when you met in Mountain View on the 26th of April? A. I met him one time after that. Q. Was he close to you? A. He passed me in a car in the road as I was going to Mountain View, one Sunday evening just below his house. Q. Nothing was said on that occasion? A. Nothing at all, he just drove around me; I had a load of household goods going to town with them, aiming to ship the next morning. Q. You were moving away at that time? A. I was moving away at that time, and he passed me in this ear.”

As to what occurred immediately preceding and at the time of the killing, the defendant testified as follows:

“Q. Did you see Brooks at all that day? A. Did I see Brooks at all? Q. Yes. A. While the old man was talking to me I looked across the street diagonally from where I was standing and seen Brooks standing down the street by the side of the drug store, talking to Gib Wilson and some other fellow; I don’t know who the other fellow was. Q. Were they in plain view of where you were ? A. Yes, sir; they were in plain view of where I was. Q. Where were you standing —just about where? A. Well, sir, I was standing by the pillar. Q. In front of the bank — at the corner of the bank? A. In front of the bank. Q. On the corner at the corner of the bank? A. At the corner of the bank, yes, sir; I was standing there. Q. On which side of the pillar? A. I was on the south side of the pillar and to the south side on the southwest corner was where I was standing. Q. Against the pillar? A. Yes, sir; I had this arm against the pillar at this time, I think, that I looked over and seen these men. Q. Did you see Brooks do anything while he was over there? A. I was watching them, and they were talking. They had their backs to the drug store and their faces to the east, standing there against the drug store place, and I seen them both look over there at me, and they looked at me more than one time. Q. Did they move from where they were standing when you first saw them? A. They didn’t move right at that time when I first saw them. Q. When did they move? A. Directly they moved after they talked a little bit. Q. Where did they move to? A. To the corner of the drug store and went east. Q. That is, who went up to the corner? A. Brooks and Wilson. Q. Then east across the street? A. Across the street. Q. Where did they go then? A. To the corner of the hardware store. Q. All right, then what did they do? A. They were talking and stepped up on the corner and looked east — I mean looked north— and there was nothing to prevent them from seeing me from where I was. I know they must have saw me from where they were. Q. Did they stop there any length of time? A. They hesitated there; they didn’t stop for any length of time, and stepped down on a little walk that goes across the street. They were talking and they turned and walked north. Q. Along that little crossing that crosses the street to the First National Bank? A. Yes, sir. Q. How were they walking, towards yon? A. They were walking side by side— Brooks was on the right. Q. Do you think they saw you? A. I am sure they seen me from where they was, and from where they was standing. Q. Tell the jury how they approached you exactly and what happened? A. Well, they was — when they first walked up there at the corner of the hardware store I was afraid they would come across there; I wished they would go on east, and I knew Brooks to be a drinking man. As they started across that thought come in my mind about him being a drinking man, and I thought of the trouble I had had and what my brother-in-law had told me about Ab Dunaway. It all come in my mind then. I knowed that old man Howel had told Brooks I was in town, and I knew that he could see me, and if they had walked straight on in that footpath from one corner of the street there to the other he would have missed me about eight feet to the west. Well, I was watching them all the time that they was walking across the street. Brooks, he had his knife in his hand, in his right hand, and in his other he had a block of wood, or a stick of wood, something of the kind. I couldn’t tell just what, and when they neared me I could see Brooks looking at me. He was looking at me when they got near enough I could catch his eye, and to my great surprise when they got in about ten feet of the sidewalk Brooks he angled to the northeast and Wilson come north. Well, I naturally thought it meant trouble and serious trouble. I thought of what Ab Dunaway had told me about Brooks and Wilson, and I didn’t know who would start the trouble first. In order to keep Wilson from taking me by surprise, I took two or three steps southeast from that pillar. I was watching Brooks close all the time from the time he left this sidewalk, and just before he had this knife in his hand, and just before he got to where I couldn’t see all he was doing he dropped his knife down toward his pocket, and I thought he meant to drop the knife on the ground and get a gun, and in order to keep Wilson from surprising me I took three or four steps southeast from where I was standing and at this time Brooks stepped up on the sidewalk directly in front of me, and I began firing at him at once. Q. Do you know how many shots you fired? A. No; I don’t know how many shots I fired. Q. When did you first fire? A. When Brooks fell. Q. Did you fire any shot at Brooks after he fell? A. No; I did not. I fired the shots as fast as I could pull the trigger, and he fell immediately after I fired the last shot. Q. You say that he lowered his hand with the knife in it, what did you think he was going to do? A. I thought he was going to put that knife in his pocket, or drop it on the ground and switch the knife for a gun; that is what I thought. Q. Going to pull a gun? A. Yes, sir; that is what I thought. Q. Did you believe danger was imminent to you? A. Yes, sir; I did. Right at that time I did.”

As to what occurred at the time of the shooting, S. A. Elkins, a state witness, testified as follows:

“Q. Now, tell what took place from the time you saw Dodd come out from that pier? A. Well, when he came out from the pier he brought the gun out rather in front of him, and he made something like about three steps, and as he made those three steps he made a little circle, come to the west a little, and then circled back to the east and had the gun in Ms right hand, and brought it kinda around and shot, and shot twice in succession, and then there was just a pause and then the third shot. Q. What was the distance as to time between the first and second shots? A. Well, I would say it was about this (knocks three times). Q. Then the distance of time between the first and second shots was shorter than the distance of time between the second and third shots? A. Yes, sir. Q. Did you see Brooks at the time the shots were being fired? A. No, I didn’t see Brooks at the time the shots were being fired. Q. What prevented you from seeing him? A. My whole vision was centered on the man doing the shooting. Q. Was Dodd between you and Brooks? A. Nobody between Dodd and me. Q. I say was Dodd between you and Brooks? A. I don’t know, I couldn’t state that. Q. Was any one else on the sidewalk there besides Dodd and Brooks? A. Yes; there was a number on the sidewalk there. Q. Where were these? A. They seemed to be east and immediately in front of this pier — in front of the First National Bank. There seemed to be a bunch of men standing in front, and Mr. Dodd had come a little west to get around that bunch. Q. Dodd was north of the bunch of men standing on the sidewalk? A. Yes, sir. Q. And this bunch of men was between Dodd and Brooks? A. Yes. Q. And is that the reason that Brooks — Dodd had to come around these men, to come west, to go around the men standing on the sidewalk, that it? A. I presume so. Q. He did go around these men standing on the sidewalk? A. Yes, sir. Q. Was any words spoken that you heard? A. Not that I heard. Q. Did you see the body of Brooks after the shooting? A. Yes, sir. Q. Can you state where the wounds on the body were? A. Well, there was one wound in the side of the head there back of the ears that seemed to have come out on the right side near the collar bone, and then there was a shot in the breast below the nipple, a little bit from the center, and then there was another wound in the left side that came out of the right side. It seems as if the bullet had entered a little bit back of the center of the body.”

Other eyewitnesses for the state testified substantially as the witness Elkins. There were other witnesses who were in a position to see Brooks at the time the shooting commenced, and their testimony was to the effect that Brooks made no effort to attack the defendant at the time of the killing, and further there is testimony in the record that, shortly after the killing, the defendant stated that he had done “what he came there to do” or “what he intended to do.” There is no evidence that the deceased was armed at the time of the killing other than that he had an open knife in his right hand, and just prior to the killing had been whittling on a piece of wood which he held in his left hand. After the killing, the knife was found in the deceased’s right hand, and the piece of wood was found near his body.

The testimony on behalf of the state presents a case of murder. The defendant’s testimony cannot be said to present a case of justifiable homicide in self-defense. The most favorable view that can be taken of his testimony is that it tends to reduce the degree of the homicide to that of manslaughter in the first degree, of which degree he was found guilty. Two defenses were interposed, insanity and self-defense. The trial court instructed the jury on both issues. No complaint is made of the instructions covering the defense of insanity. This cause' is asked to be reversed solely because of the giving of instruction No. 9, which reads as follows:

“No. 9. The law of self-defense is given a person for his protection’ and it cannot be pleaded as a defense by one who himself is the aggressor, or who enters voluntarily into a difficulty armed with a deadly weapon, no matter in how much danger he may be placed in the course of the difficulty, nor how imminent it may become.
“In this connection you are further instructed that, if the defendant, George W. Dodd, armed himself with a deadly weapon for the purpose of having a difficulty with the said Marshall Brooks, and having reason to believe that it would or might result in death or serious bodily harm to defendant or said Marshall Brooks, or if said defendant sought to take the law in his own hands and kill said Marshall Brooks, then the defendant cannot plead self-defense in this ease.”

Under the undisputed evidence of the state and under the defendant’s own testimony, there was no real or apparent necessity for taking the life of Brooks in order for the defendant to save his own life or prevent great bodily injury being done to him. The facts and circumstances in this case are almost identical with the facts and circumstances in the case of Nutt v. State, 8 Okla. Cr. 266, 128 Pac. 165, in which it is said by this court that the issue of self-defense was not presented by the evidence, and a conviction for murder sustained.

While in this case, as in the Nutt Case, it is contended that the trial court failed to fully cover the law of self-defense, and examination of the court’s charge discloses that the law on that issue was covered by instructions Nos. 8, 10 and 11 in a manner more favorable to the defendant than the evidence warranted.

After a careful examination of the entire record, the conclusion is reached that the defendant had a fair and impartial trial; that under his own testimony he was not entitled to an acquittal, and under the testimony for the state he should have been convicted of murder; that the conviction for manslaughter in the first degree was the most favorable view to the defendant the jury could take of the facts in this case. The judgment is affirmed.

DOYLE and BESSEY, JJ., concur.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    WALLACE TONGKEAUKA v. STATE.
    No. A-4181.
    Opinion Filed Nov. 20, 1923.
    (219 Pac. 963.)
    (Syllabus.)
    Rape — Evidence Sustaining Conviction. In a prosecution for statutory rape, evidence held sufficient to sustain the verdict, and that no reversible error was committed on the trial.
    Appeal from District Court, Caddo County; Will Linn, Judge.
    Wallace Tongkeauka was convicted of rape in the second degree, and he appeals.
    Affirmed.
    Morgan & Osmond, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of conviction rendered on the verdict of a jury finding appellant guilty of rape in the second degree and fixing his punishment at imprisonment in the penitentiary for a period of one year. The information charged that in Caddo county on the-day of September, 1919, Wallace Tongkeauka, did feloniously have sexual intercourse with May Saukadota, a female person, who was then 14 years old, and not the wife of the said defendant.

The errors assigned are that the verdict of the jury is not sustained by sufficient evidence; that the court erred in admitting incompetent evidence; that the court erred in failing to properly instruct the jury on the law of the case.

It appears that the prosecutrix and the defendant are Indians, and that defendant was at the time charged a married man.

Prosecutrix in substance testified that in August, 1919, she attended a dance at Apache Jim’s; that she left the dance with the defendant and went out to one side, and they had sexual intercourse; that in the month of September, 1919, the defendant came to her home and asked her to go to the fair at Carnegie with him; that she got in his car and went with him to the fair and that evening they went to his home and occupied the same bed that night, and he had sexual intercourse with her; that her age at that time was 14; that she had attended the Haskell Indian school that year. Her age was also shown by the records of the Indian agency offered in evidence to be 14 years at that time.

Her father testified that the defendant was a married man, and that he told him to stay away from his daughter; that in the month of September he saw the defendant and Ms daughter in bed together in the big tent at the Indian camp near Carnegie.

There was no testimony offered on the part of the defense.

We have carefully examined the record, and not one of the errors assigned can be sustained. The testimony is such that it unquestionably supports the verdict, and there was no objection made or exceptions taken to the instructions given by the court. The record shows that the defendant had a fair trial. The judgment of the district court of Caddo county is accordingly affirmed.

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


text:
    HOMER FRYE et al. v. STATE.
    No. A-3979.
    Opinion Filed June 20, 1923.
    Rehearing Denied Nov. 24, 1923.
    (219 Pac. 722.)
    (Syllabus.)
    1. Larceny — Evidence Sustaining Conviction of Grand Larceny in Nighttime from Person. In a prosecution for grand larceny, evidence held to sustain a conviction for grand larceny in the nighttime from the person of another.
    2. Evidence — “Corpus Delicti” Defined. The “corpus delicti” means, when applied to any particular offense, the-actual commission by some one of the particular offense charged.
    3. Same — Corpus Delicti Established by Circumstantial Evidence. It is not essential that the corpus delicti should be established by evidence independent of that which tends to connect the accused with its perpetration. The same evidence which tends to prove one may also tend to prove the other, so that the existence of the crime and the guilt of the defendant may stand together inseparable on one foundation of circumstantial evidence.
    4. New Trial — Deliberations of Jury — Impeachment of Verdict by Affidavits or Testimony of Jurors. The deliberations of the jury axe secret, and ordinarily cannot be shown by the affidavits or oral testimony of the jurors.
    5. Trial — Quotient Verdict Assessing Punishment1 — Validity. A verdict in a criminal case, assessing the punishment at a certain number of years’ imprisonment, will not be set aside upon proof that each member of the jury wrote down the number of years which he thought proper, and that the several numbers thus written down were added up and the sum divided by 12, where there is no proof that the jurors agreed beforehand to be bound by the result thus obtained.
    Appeal from District Court, Carter County; Thos. W. Champion, Judge.
    Homer Frye and another were convicted of grand larceny, and they appeal.
    Affirmed.
    Charles A. Coakley, Thos. Norman, and James H. Ma-thers, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this ease charges that the defendants, Homer Frye and Charley Burton, did in Carter county, on or about the- 20th day of March, 1920, commit the crime of grand larceny, in that by stealth and fraud, and without the consent- of the owner, during the nighttime, they did take, steal, and carry away from the person of G. B. Peel the sum of $700. Upon their trial the jury found them guilty and assessed their punishment at imprisonment in the penitentiary for the term of five years. From the judgment rendered on the verdict they appeal.

It is contended that the verdict of the jury in this ease is not supported by sufficient evidence.

There is little,, if any, conflict in the testimony as to the following facts:

The defendant Frye was running a pool hall on Caddo street, in Ardmore, and the defendant Burton was an employee at a place called the Mint. On the date alleged, G. B. Peel, representing a Boot Beer Barrel Company, went to Ardmore and met Frye in his pool room. After talking over the root beer business they went to the Mint, a gambling house, where corn liquor was sold. Frye introduced Peel to Burton. After taking two or three drinks, Frye and Peel spent the afternoon visiting other joints and gambling houses, including a second visit to the Mint. Peel then went to his hotel, and after supper met Frye again. Later they met Burton, and all three went to Burton’s room at the Bandol and there spent most of the night drinking whisky and gambling. That Peel had1 been drinking to excess is conceded by all, and he was found the next morning in a dazed condition in the lobby of the Bandol Hotel. All his money was gone, also his diamond ring. A policeman and a deputy sheriff searched Burton’s room the next morning while he was in bed and found 13 $20 bills in his clothes. Later they arrested Frye, and he had one $20 bill and some small change.

It is argued by counsel for appellants:

“That in the absence of direct testimony of any one taking the money, the state cannot claim to have proved the corpus delicti, unless the money found on defendants the next day is identified as having been the property of Peel.”

G. B. Peel testified:

“After supper I met Frye again, and later we met Burton on Main street. He went and got a pint of whisky. He said it cost $10, and I gave him $5. He suggested that we go to his rooms in the Bandol Hotel. They gave me some kind of knock-out drops and relieved me of $700 and some odd dollars, also my diamond ring. The $700 was all in $20 bills. The last I remember, Burton and Frye and two women were in the room. I woke up in the lobby the next morning. All my money was gone, also my diamond ring.”

Mrs. Mclver testified;:

“I was stopping at the Randol Hotel. That night about 9 o’clock, I met Mr. Burton, and he invited me to come to his room. Later I went in. Mr. Peel, Mr. Frye, Mr. Burton, and two girls were in the room. The men were drinking whisky and gambling. Mr. Peel had a great big roll of $20 bills in his hand. Mr. Burton said if they could not get his money gambling they had something else they were sure they could get it with. He was talking to us girls. While I was there they drank a pint, maybe a quart, of whisky, and they insisted on us girls not leaving, because they said they were going to get Peel’s money, and they would split it with us if we would stay. Mr. Peel was well filled up, and so was Mr. Burton; but Mr. Frye did: not drink very much. Mr. Frye insisted that I should not leave and suggested that they would split the money with me if I stayed.”

Cecil Crosby testified:

“As an officer I assisted in the investigation. I found Georgia Ray in the depot at Berwyn between 11 and 12 o’clock the next night. I searched her and found a diamond ring and $17 in money. She said Peel gave her the ring; that she had a man drive her from Ardmore to Berwyn.”

The defendant Frye testified:

“About 11 o’clock Peel came back to my place and said he wanted me to walk around with him a little while. Mr. Burton came in a little later. Peel said: ‘Burton has a room at the Randol Hotel. Suppose we go up there and meet some girls.’ It was then about 12 o’clock. We went to Mr. Burton’s room and took a few drinks and played cards. The girls came in while we were there. Mr. Peel had some whis-ky in his pocket and took it out and set it on the dresser and said, ‘Everybody help yourselves.’ I guess I was there an hour and a half. Mr. Jones came up there hunting Arthur Gill, and' Mr. Peel invited him to have a drink. Jones took one or two drinks. We talked for 10 or 15 minutes, and when we got through talking only me and Jones were in the room. I said, ‘I believe I will go home,’ and Mr. Jones and I walked down the hall and saw Mr. Peel talking with a man in his shirt sleeves. Mr. Peel had some money in his hand when Jones came in. One of the girls took his ring and said, ‘Honey, I believe I will keep this ring.’ Peel said, ‘Yes, you can have it, you can have anything I got,’ and he waived the money in his hand at this girl.”

Witness denied making the statement if he could not get Peel’s money gambling he would get it some other way.

The defendant Burton testified:

“The first time I met Peel was at the Mint. He and Mr. Frye came in. I think they came in the second time, about 11:30 that night. I met them again at Mr. Frye’s place. Peel wanted to go somewhere to buy whisky. I told him all the places in Ardmore closed about 11 or 12 o’clock. He said he had some in his pocket if we could go somewhere to take it, and Mr. Frye suggested that they go up to my room at the Randol. We went to my room; and Peel had two pint bottles of whisky. We had several drinks. He wanted some girls, and I told him to ring for the porter. He did, and it was not very long until the girls came in. We were playing a game called ‘twenty one.’ Some 10, 20, 30, and 40 dollar bets were made. Quite a little money changed hands; possibly $200 changed hands in this, game. I suggested that he should give the girls some money, and I gave two of them $5 each, Mr. Frye gave one of them $5, and Mr. Peel handed one of them a $20 bill. I started to the toilet and met two boys. They asked me to come down on the next floor and take a drink with them. I went to their room and took a few drinks and stayed quite a while. When I came back, they were all gone. I had about $300. That was the money the ■ officers found in my pockets the next morning. I did not take any money off this fellow, and I did not make the statement, ‘If I could not get his money one way, I would get it another.’ ”

The claim, that the corpus delicti was not proven, obviously is without merit. The “corpus delicti” means, primarily, “the body of the offense”; but in applying it, courts and text-writers have not at all times agreed as to what is meant by the “body of the offense.” This court holds that the term means, when applied to any particular offense, that the particular crime charged has actually been committed by some one. Green v. State, 7 Okla. Cr. 194, 122 Pac. 1108; Brown v. State, 9 Okla. Cr. 382, 132 Pac. 359.

Direct evidence to establish the corpus delicti is not required. Circumstantial evidence may be resorted to for the purpose of proving the corpus delicti in the. same way and to the same extent that it may be for the purpose of connecting the accused with the commission of the offense. The same evidence which tends to prove one way also tend to prove the other, so that the commission of the crime and the guilt of the accused may stand together inseparable on one foundation of circumstantial evidence. George v. United States, 1 Okla. Cr. 307, 97 Pac. 1052, 100 Pac. 46.

McClain says:

“The corpus delicti need not be shown by direct evidence, that is, there need not necessarily be proof of loss of property by theft distinct from the fact showing that property found in the defendant's possession was wrongfully taken from the owner thereof. Proof of the act is not necessary where the circumstances can only be explained by a felonious act.” 1 McClain on Criminal Law, § 612.

It appears that the evidence connecting these defendants with the offense was entirely circumstantial. The test by which to determine the sufficiency of circumstantial evidence in a criminal prosecution is whether the facts and circumstances tending to connect the accused with the crime charged are of such conclusive nature as to exclude to a moral certainty every rational hypothesis except that of guilt, and the jury in this case were so instructed by the court. It is the province of the jury to determine the circumstances surrounding the alleged crime, and if, assuming as proved the facts which the evidence tends to establish, they can be accounted for upon no rational theory which does not include the guilt of the accused, the proof cannot be said to have failed. Accepting therefore as true the testimony of the state’s witnesses, the evidence does, we think, point with such certainty to the guilt of the defendants as to warrant the verdict found.

The second and last assignment of error is that the punishment assessed against these defendants was the result of a quotient verdict.

The record shows that in support of alleged misconduct of the jury, “in that the jury arrived at their verdict by striking an average,” assigned as one of the grounds for a new trial, the court heard the testimony of two of the jurors. One J. A. Smith testified:

“One juror wanted two years, one wanted three years, five wanted five years, and two wanted ten years. I believe it was Mr. Taylor suggested that we all put down on a piece of paper the number of years and add them up and divide by twelve. We did that, and it gave them four years and ten months. Then we took a second vote of five years and it was unanimous.”

The testimony of the other juror, D. A. Cochran, was in substance the same.

No objection was made in the trial court to the admission of this evidence, although it has been repeatedly decided by this court that a juror cannot be heard to impeach his verdict. Vanderburg v. State, 6 Okla. Cr. 485, 120 Pac. 301; Keith v. State, 7 Okla. Cr. 156, 123 Pac. 172; Overton v. State, 7 Okla. Cr. 203, 114 Pac. 1132, 123 Pac. 175; Star v. State, 9 Okla. Cr. 210, 131 Pac. 542.

The precise question here presented was passed on by the Texas Court of Criminal Appeals in the case of Cravens v. State, 55 Tex. Cr. R. 519, 117 S. W. 156, 16 Ann. Cas. 907. It is held that—

“A verdict in a criminal case, assessing the punishment of the defendant at a certain number of years’ imprisonment, will not be set aside upon proof that each member of the jury wrote down the number of years which he thought proper, and that the several numbers thus written down were added up and the sum divided by twelve, when there is no proof that the jurors agreed beforehand to be bound by the result thus obtained, and when, in fact, the number of years finally determined upon was slightly different from such result, the jury having taken several votes after going through the process of addition and division. In order to vitiate a verdict determined by lot, the proof must show that the jury, before drawing lots, agreed to be bound by the result.”

In this case it is not claimed that the jury did not unanimously agree as to the guilt of these defendants, and it is not shown by the proof offered that there was an agreement that the quotient should fix the punishment and the quotient was not agreed to in fixing the punishment.

In our opinion the trial court rightfully refused' to set aside the verdict.

The instructions were full, fair, and correct, and covered all questions of law involved in the case. No others were requested by the experienced counsel who so ably represented the defendants.

A careful reading of the record convinces us that no error prejudicial to the substantial rights of the defendants was committed on the trial, and the verdict meets with our approval.

The judgments herein are therefore affirmed.

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


author: PEB CUBIAM.

text:
    RED McGOVERN et al. v. STATE.
    No. A-3967.
    Opinion Filed April 21, 1923.
    Rehearing Denied Nov. 24, 1923.
    (219 Pac. 722.)
    Appeal from County Court, Oklahoma County; W. B. Taylor, Judge.
    Bed McGovern and another were convicted of maintaining a liquor nuisance, and they appeal.
    Affirmed.
    H. F. Tripp, for plaintiffs in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   PEB CUBIAM.

This is an appeal from the county court of Oklahoma county, wherein the plaintiffs in error, hereinafter referred to as defendants, were jointly tried and each convicted of maintaining a liquor nuisance, and punishment against each assessed at a fine of $250 and imprisonment in the county jail for a period of 90 days.

The sole ground relied upon for a reversal is that the evidence is insufficient to sustain the conviction. Defendants were charged with maintaining the alleged nuisance on premises located on Fiftieth street in Oklahoma City, Okla., about 1% miles west of the Belle Isle Lake, said premises being commonly known as Bed McGovern’s roadhouse.

The undisputed evidence is that on the 25th day of September, 1920, O. A. Cargill, county attorney, Ned; Looney, assistant county attorney, and certain officers from the sheriff’s office of Oklahoma county made a raid on said premises after dark on the evening of said day, and found these defendants out there in apparent possession of the premises and in control of certain intoxicating beverages on said premises; that there was nobody else there at the time; that defendants sold Looney 6 pints of beer (choctaw beer); that said liquor contained approximately 5 per cent, alcohol measured by volume; that in a barrel or keg on said premises were also found about 100 pints of this beer on ice; that the place had the general reputation of being a place where intoxicating liquors were received and kept and sold, and where people congregated for the purpose of drinking intoxicating liquors. No evidence was introduced in behalf of the defendants.

This prosecution is based on section 7022, Compiled Statutes 1921, which makes all places where a spirituous, vinous, fermented, or malt liquor or any imitation thereof or substitute therefor * * * which contains as much as one-half of 1 per cent, of alcohol measured by volume, and which is capable of being used as a beverage, * * * and all places where any such liquor is kept or possessed by any person in violation of any provision of this act, and all places where persons congregate or resort for the purpose of drinking any such liquor a public nuisance, and further provides that upon conviction the owner or keeper thereof shall be adjudged guilty of maintaining a public nuisance, and punished by a fine of not less than $50 nor more than $500, and by imprisonment in the county jail not less than 30 days nor more than 6 months.

The court is of the opinion that the evidence is sufficient and shows that the defendants were on the occasion alleged in the information the keepers of the premises, and that the place as kept by them was a place where intoxicating liquors were received and kept and sold in violation of the prohibitory liquor laws of this state. The judgment of conviction as to each defendant is therefore affirmed.


text:
    Ex parte V. W. SPENCE.
    No. A-4940.
    Opinion Filed Dec. 1, 1923.
    (220 Pac. 479.)
    (Syllabus.)
    Habeas Corpus — Conviction under Unconstitutional Law. A person who has been convicted of violating an unconstitutional law will be discharged on habeas corpus.
    Habeas corpus by Y. W. Spence for release from custody.
    Writ allowed, and petitioner discharged.
    C. R. Fegan, for petitioner.
    The Attorney General, and N. W. Gore, Asst. Atty. Gen., for respondent.
   DOYLE, J.

This is a petition for writ of habeas corpus for the discharge of V. W. Spence, from the penitentiary at McAlester, wherein it is alleged that he is unlawfully restrained of his liberty by J. H. Townsend, warden; that the cause of said restraint is a commitment issued by the district court of Logan county, C. C. Smith, Judge, on a charge that he did have in his possession mash fit for distillation, for the purpose of using said mash for the distillation of spirituous liquors; which judgment was rendered on the 10th day of September, 1923, wherein he was sentenced to be confined in the penitentiary at McAlester for a term of one year and to pay a fine of $100; and alleging that said restraint is unauthorized because the act approved February 5, 1923, chapter 1, Session Laws 1923, making it a felony to possess mash, etc., fit for distillation, is unconstitutional and void as determined by the decision of this court in the ease of In re D. E. Smith, 24 Okla. Cr. 415, 218 Pac. 708.

The Attorney General concedes that the writ should issue, and the petitioner be discharged.

In the case of Ex parte Smith, supra, the statute upon which this prosecution is based was held unconstitutional and void. It follows that petitioner is unlawfully imprisoned and restrained of his liberty by the respondent, and that he is entitled to be discharged from the imprisonment of which he complains, and he is therefore by the judgment of this court discharged therefrom.

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


author: MATSON, P. J.

text:
    J. P. WILLIAMS v. STATE.
    No. A-4128.
    Opinion Filed Dec. 8, 1923.
    (220 Pac. 667.)
    (Syllabus.)
    1. Intoxicating Liquors — General Reputation of Home Incompetent to Prove Unlawful Possession. Ordinarily, upon a trial under an iniormation charging that the defendant had possession of intoxicating liquors with the intention of violating the prohibitory liquor law, evidence of the general reputation of defendant’s home as a place where intoxicating liquors ¡aire kept for sale is incompetent to prove the charge.
    2. Same — General Reputation of Place Admissible to Show Intent. "Where evidence discloses the possession of intoxicating liquor in a place of public resort, fitted up with all the fixtures and appurtenances of a liquor saloon, the general reputation of such place as a place where intoxicating liquors are kept for sale is admissible on the question of criminal intent, where the crime charged is the unlawful possession of intoxicating liquor with intent to sell the same.
    3." Same — Reputation as Public Resort not Predicate for Evidence of Reputation as Place for Sale of Liquor. Proof that defendant’s home had the general reputation of being a place of public resort is not a sufficient predicate to authorize the admission of evidence of the general reputation of such place as a place where intoxicating liquor is kept for sale.
    Appeal from County Court, Logan County; A. H. Boles, Judge.
    J. P. Williams was convicted of the offense of unlawful possession of intoxicating liquor, and sentenced to pay a fine of $100 and to imprisonment in the county jail for 30 days and appeals.
    Reversed and remanded.
    B. F. Garrett, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

J. P. Williams was convicted in the county court of Logan county on the 15th day of October, 1921, of the offense of unlawful possession of intoxicating liquor, and punishment was fixed as above stated. The information charged the possession of one quart of whisky on the 28th day of March, 1921.

The state introduced two witnesses, the sheriff and a deputy sheriff, who testified that on the 28th day of March, 1921, they searched the defendant’s residence in the city of Guthrie, and found in the kitchen thereof one quart of whis-ky; that the defendant was not at home at that time. In addition thereto these witnesses were permitted to testify over the objection and exception of defendant, that they were acquainted with the general reputation of the defendant’s home as a place of public resort, and both testified that such reputation was bad. After having so testified, these witnesses were also permitted to testify that they knew the general reputation of defendant’s home as a place for the sale of whisky, and also, over objection, testified that such reputation was bad.

The testimony of these two witnesses constituted the state’s case, and it is here contended that the admission of the evidence of the general reputation of defendant’s home as a place of public resort was improper, and, further, that the admission of the additional evidence of its reputation as a place where whisky was sold, based1 upon evidence of its reputation as a place of public resort, was also erroneous. Further, it is contended that without this incompetent evidence, admitting for the sake of the argument that the whis-ky was possessed by the defendant, there is no evidence, either direct or circumstantial, that tends to show any unlawful intent to sell or otherwise dispose of any of such whisky.

To justify or sustain a conviction of having possession of intoxicating liquors with the intent to violate any of the provisions of the prohibitory liquor law there must be evidence sufficient not only to prove possession but also to( prove the criminal intent: When the verdict is manifestly contrary to the evidence, or the conviction is based on entirely insufficient evidence, the judgment of conviction will be reversed. Ward v. State, 15 Okla. Cr. 61, 175 Pac. 60.

The general rule as to evidence of the general reputation of the premises in a trial for unlawful possession of intoxicating liquor is stated in Thompson v. State, 9 Okla. Cr. 525, 132 Pac. 695, as follows:

“Upon a trial under an information charging that the defendant did have the possession of intoxicating liquors with the intention of violating the provisions of the prohibitory [liquor] law, evidence of the general reputation of his home or barn is incompetent to prove the charge.”

The only departure from the foregoing general rule is stated in Ward v. State, 15 Okla. Cr. 150, 175 Pac. 557, as follows:

“Where the evidence discloses the possession of intoxicating liquors in a place of public resort, fitted up with all the fixtures and appurtenances of a liquor saloon, the general reputation of such place as a place where intoxicating liquors are kept for sale is admissible on the question of intent, where the crime charged is the unlawful possession of intoxicating liquors with intent to sell the same.”

In the body of the opinion in the latter case it is said:

“If the proof shows that possession of such liquor was in a place of public resort, why should not the reputation of such a place be admissible * # * on the question of intent to sell? This court has unequivocally held that the reputation of the place of keeping may be proved, where the offense charged is maintaining a place for the purpose of sale. We see no good reason for admitting such evidence in that class of cases, and in excluding it in this class, where the facts show possession in a place of public resort.”

Thus it will be seen that evidence of the general reputation of the premises as a place where liquors are sold is ordinarily not admissible in a prosecution for the unlawful possession of intoxicating liquor with intent to sell. In this jurisdiction the only exception to such general rule is as stated above, and evidently in this case the prosecuting officers believed they were complying with the premise that the place must be a place of public resort by merely proving the general reputation of the place as one of public resort. Such was not the holding in the Ward Case. Before evidence of general reputation of the premises will be held to be admissible in prosecutions of this kind there must be specific evidence that the place itself was a place of public resort, not simply that it bore such reputation.

The evidence here complained of, therefore, was inadmissible. Was it prejudicial? We think it was. The evidence shows that only one quart of whisky was found in the kitchen of the home of the defendant; that the defendant was not at home at the time. There was no evidence that the place was fitted up for drinking purposes; that there were any vessels or other things around the premises suitable for drinking intoxicating liquor; that the defendant ever made a sale of liquor from said premises, or that people were seen in and around said premises in an intoxicated condition.

The possession of one quart of whisky in a person’s home is not presumptive evidence of an intention to violate the provisions of the prohibitory liquor laws. To constitute such presumptive evidence the quantity of spirituous liquor possessed at a person’s residence must be in excess of one gallon. Section 6999, Compiled Statutes 1921. It is apparent from all the evidence, therefore, that the only evidence having any bearing whatever on the criminal intent of the defendant was the incompetent evidence of the general reputation of the place as a place of public resort, used as a basis for the introduction of evidence of the general reputation of the place as a place where whisky was sold in violation of law. This incompetent evidence, erroneously admitted over the objection and exception of defendant, was clearly prejudicial to his rights, and requires a reversal of the judgment, as otherwise the evidence of criminal intent is wholly insufficient.

For reasons stated the judgment is reversed, and the cause remanded to the county court of Logan county for further proceedings not inconsistent with this opinion.

DOYLE, J., concurring.

BESSEY, J., absent, not participating.


text:
    LAURA CARR v. STATE.
    No. A-4268.
    Opinion Filed Dec. 3, 1923.
    (220 Pac. 479.)
    (Syllabus.)
    1. Indictment and Information' — Not Necessary to Negative Statutory Exceptions in Information for Unlawful Possession of Narcotic Drugs. Whether or not narcotic drugs alleged to have been possessed by the defendant were drugs other than those acquired and procured upon the prescription of a regularly licensed and actively practicing physician, dentist, etc., for legitimate medicinal purposes, and whether the quantity possessed was more than one dose acquired for such purposes, are exceptions which, by express provision of the statute, are not necessary to be negatived in an information charging the unlawful possession of such narcotic drugs.

      2. Statutes — Title Fairly Indicating General Purposes Sufficient. It is not necessary for the title to an act to embrace an abstract of its contents. An act may have numerous provisions; if such provisions have one general object, the title is sufficient if it fairly indicates the general purpose of the act. The details provided for the accomplishment of such purpose are regarded as necessary incidents.
    3. Statutes — Narcotic Law not Local or Special. Section 46, art. 5, of the Constitution, has application only to local or special laws. Chapter 60, Session Laws 1919, p. 95 (sections 8886-8888, Compiled Statutes 1921), is a general law, and the constitutional inhibitions as to legislative action contained |in section 46, art. 5, Constitution, have no application to such law.
    4. Poisons — Not Necessary to Prove Exceptions in Antinarcotic Statute. The necessity of the state, in the first instance, to prove the negative that the defendant was not such person as was excepted from the operation of the antinarcotic statute is obviated by the provisions of the statute itself.
    5. Appeal and Error — Conviction not Set Aside Because of Conflicting Evidence. A conviction will not be set aside because of conflicts in evidence, where there is evidence in the record from which the jury could reasonably conclude that the defendant is guilty as charged.
    Appeal from District Court, Garfield County; J. C. Bob-berts, Judge.

      Laura Carr was convicted of the unlawful possession of narcotic drugs, and she appeals.
    Affirmed.
    On the 14th day of June, 1921, the county attorney of Garfield county instituted this prosecution in that court by 'filing therein an information charging the plaintiff in error, Laura Carr (hereinafter referred to as defendant), with the unlawful possession of a quantity of cocaine concealed about her premises at 120 East Oklahoma street in the city of Enid.
    On September 16, 1921, the defendant demurred to the information on the grounds that the information did not state an offense against the laws of the state and on the further grounds that the statute upon which the information is based is unconstitutional and void. The demurrer to the information was overruled, and the defendant entered a plea of not guilty, and the ease was called for trial on September 20, 1921, resulting in a verdict finding the defendant guilty as charged. On the 22d day of September counsel for defendant filed a motion for a new trial for the reasons that, among others, the verdict was contrary to law; that the verdict was contrary to .the evidence; the court erred in overruling the demurrer to the information; that court erred in overruling the demurrer to the evidence and in refusing to direct a verdict of not guilty; that the court erred in failing to instruct the jury on all the propositions raised by the evidence; that the verdict was the result of bias and prejudice on the part of the jury, and that the court erred in giving instructions Nos. 4 and 5.
    Said motion for new trial having been overruled, the trial court on the 7th day of October, 1921, pronounced judgment against the defendant on the verdict returned, fixing the punishment at seven years in the penitentiary and the fine of $1,000.

      After several extensions of time to make and serve case-made, the petition in error with case-made attached was filed in this court on March 29, 1922, and the appeal appears to be regularly before the court for decision on the merits. The facts substantially are as follows: Laura Carr, the defendant, was the keeper and owner of a large rooming house for colored occupants located at No. 120 Bast Oklahoma street in the city of Enid. On the 5th day of March, 1921, shortly after midnight, "W. J. Hallum, a policeman of said city, together with P. E. Stalder, T. L. Letson, and "W. L. Cook, who were also policemen of that city, made a search of defendant’s premises, and Hallum found therein a bottle of cocaine under substantially the following circumstances: Hallum was searching the defendant’s bedroom when defendant started towards her bath room, adjoining the bedroom, with a paper pie plate containing the remains of' a lunch which she had bought earlier in the night, with the pretense of throwing the remains of the lunch into a slop bucket located in the bathroom. Both the bathroom and bedroom were lighted at that time, but Hallum watched the defendant through the door leading from the bedroom into the bathroom. He saw her put her hand into a laundry bag used for disposing of dirty clothes. Hallum then went immediately into the bathroom and searched this bag and found therein the bottle of cocaine. Hallum says he immediately told the defendant of what he had found and that she thereupon offered him $50 if he would throw the contents of the bottle into the bath tub and say nothing about it. Hallum told her she was talking to the wrong person. "Whereupon the defendant stated, “we ought to be able to settle this here,” and asked if $100 would not interest him.
    After discovering the bottle of cocaine, Hallum called Stalder and Letson, who were searching other parts of the premises, and they also saw the bottle of cocaine, and heard the defendant state that she wanted to settle the matter out of court. The defendant was arrested, and later put up $50 cash bond for her appearance in the police court the next day. Subsequently this prosecution was instituted against her.
    The defendant admitted the search and admitted that Hallum had a bottle of cocaine which he claimed to have found in the laundry bag that night, but defendant denied any knowledge of the cocaine being in the bag and claimed that she did not know how it got there, if it was found there, and also testified that she had 12 roomers in her house at that time, all of whom used the bathroom and some of whom had access to the laundry bag for the purpose of depositing dirty sheets and towels therein. Defendant admitted that she had a short time prior to her arrest on this charge pleaded guilty to the crime of unlawful possession of narcotic drugs.
    C. D. Roseman and Warren K. Snyder, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

(after Stating the facts as above). The petition in error covers the identical grounds covered by the motion for a new trial above referred to in the statement of the case. It will be necessary, however, in this opinion to refer to those grounds only relied upon by counsel in the brief filed in behalf of this defendant, as it is the rule of this court that all grounds of error included in the petition in error and not supported by argument and the citation of authority in the brief will be considered as abandoned.

It is first contended that the information is insufficient to state the crime of unlawful possession of narcotic drugs as defined by section 8887, Compiled Statutes 1921.

That provision of the act covering this alleged offense reads as follows:

“It shall * * * be unlawful for any person who shall not be so registered as provided by the said act of Congress, and who shall not, also, be a regularly licensed pharmacist as aforesaid, or who shall not be a regularly licensed and actually practicing physician, dentist or veterinary surgeon, or who shall not be a railroad or express company which shall have made, for the preceding year to the Corporation Commission of the state the report required by law to be made to such Commission annually by transportation companies, to have in his or her possession or under his or her control or to have concealed in or about premises in his or her possession or under his or her control, any quantity whatsoever of the aforesaid narcotic drugs, other or more than one dose of such narcotic drugs, acquired and procured upon the prescription of a regular licensed and actively practicing physician, dentist or veterinary surgeon, for legitimate medicinal use. ’ ’

The charging part of the information is as follows:

“That on or about the 5th day of March A. D. 1921, in said county of Garfield and state of Oklahoma, one Laura Carr, did then and there unlawfully, willfully, and feloniously have in her possession and under her control, and have concealed about her premises, at about street No. 120 E. Oklahoma street, in the city of Enid, Okla., a quantity of narcotic drugs, to wit, cocaine and morphine, while the said Laura Carr was not then and there a regularly and duly licensed pharmacist, nor a regularly licensed and actively practicing physician, dentist, or veterinary surgeon, nor. a railroad or express company, nor a firm, person, or corporation licensed or authorized as provided by act of Congress of the United States of America of December 17, 1914, to sell, give away, dispense, receive, conceal, buy, or in any manner facilitate the transportation, concealment, or sale of, or distribution of the aforesaid narcotic drugs, nor a person registered as provided by said act of Congress, contrary to the form of the statute in such ease made and provided, and against the peace and dignity of the state of Oklahoma.”

It is insisted that the information, in addition to the charge contained, should have further charged that the quantity found was in excess of one dose. In connection with this assignment of error it is pertinent to the inquiry to note a further provision of section 8887, supra, which is as follows:

“Provided, further, that it shall not be necessary to negative any of the aforesaid exceptions in any complaint, information, or indictment, or any writ of proceeding laid or brought under this act.”

Whether or not the drugs alleged to have been possessed by the defendant were drugs other than those acquired and procured upon the prescription of a regularly licensed and actively practicing physician, dentist, or veterinary surgeon, for legitimate medicinal purposes, or whether the quantity possessed was more than one dosé acquired for such purposes, was an exception that we think was not necessary to be negatived under the provisions of the act itself. Such matters were peculiarly within the knowledge of the defendant.

Further it is contended that the demurrer to the information should have been sustained because the title to the act contains no reference or mention in relation to the act of Congress of the United States of December 17, 1914, being U. S. Comp. St. § 6287g et seq. (referred to in the body of the act) as is required by section 57 of article' 5, Constitution. Also that said act is unconstitutional because it violates section 46 of article 5 of the Constitution. Both of these contentions are untenable. The title of the act reads as follows:

“An act relating to narcotic drugs; prohibiting the selling, giving away, dispensing, manufacture, production, unlawful possession, transportation and unlawful use of narcotic drugs; defining narcotic drugs; providing penalties for the violation of this act; and declaring an emergency.” Laws 1919, e. 60.

It is not necessary for the title to an act to embrace an ' abstract of its contents. Although an act may have numerous provisions, if such provisions have one general object, the title is sufficient if it fairly indicates the general purpose of the act. The details provided in the accomplishment of such purpose are regarded as necessary incidents. In re Powell, 6 Okla. Cr. 495, 120 Pac. 1022; Jackson v. State, 22 Okla. Cr. 338, 211 Pac. 1066.

It was not necessary for the title to the act to contain a detailed statement of the contents of the act of Congress of December 17, 1914. Reference to such act was made in the body of the statute merely as incidental to its enforcement, and the courts of this state will take judicial knowledge of the contents of acts of Congress. 15 R. C. L. pp. 1064, 1065.

We conclude, therefore, that the title of the act is sufficient to meet the requirements of section 57, article 5, of the Constitution.

The act is not violative of any of the provisions of section 46, article 5, of the Constitution, because such section relates wholly to limitations on the power of the Legislature to enact local or special laws. As the statute here in question is neither a local nor a special law, such constitutional inhibitions as are contained in section 46 of article 5 have no application to it. The other attacks against the constitutionality of-the statute are covered by the opinion of this court in Ex parte Bryson, 21 Okla. Cr. 152, 205 Pac. 190.

The objection urged against paragraphs 4 and 5 of the court’s charge to the jury are covered by what has heretofore been said relative to the sufficiency of the information and to the constitutionality of the statute.

The necessity of the state in the first instance to prove the negative that the defendant was not such person as was excepted from the operation of the statute is obviated by the provisions of the statute itself.

Finally it is urged that the evidence is insufficient to sustain the verdict and judgment. There seems to be a conflict in the evidence only as to whether or not this defendant actually had in her possession and under her control the narcotic found by the officers in the search of her premises on March 5, 1921. There is an abundance of evidence in the record to the effect that such narcotic was in her possession and under her control at the time it was found. The mere fact that the defendant herself denied any knowledge of the presence of the narcotic on her premises is not sufficient reason to authorize this court to reverse the judgment and remand the cause to the trial court for a new trial. Under our system of jurisprudence such conflicts in evidence must necessarily be settled by the jury. The jury is in a much better position to determine the weight of evidence and the credibility of the witnesses than is this court. Convictions will not be set aside because of conflicts in the evidence, where there is evidence in the record from which the jury could reasonably conclude that the defendant is guilty as charged.

While the defendant in this ease was given the maximum term of imprisonment by the trial judge, we cannot see, in view of the fact that the record discloses that defendant had been previously convicted of the same crime some months before, that the punishment imposed is excessive.

The judgment is affirmed.

DOYLE, J., concur.

BESSEY, J., absent, not participating.


author: BESSEY, J.

text:
    ALVIS FEARS et al. v. STATE.
    No. A-4037.
    Opinion Filed July 21, 1923.
    Rehearing Denied Dec. 4, 1923.
    (220 Pac. 1117.)
    Appeal from District Court, Tulsa County; Frank Mathews, Judge.
    Alvis Fears and Joe Creason were convicted of conjoint robbery, and they appeal.
    Appeal dismissed as to Fears; affirmed as to Creason.
    J. M. Springer, for plaintiff in error.
   BESSEY, J.

Alvis Fears and Joe Creason were charged with the crime of conjoint robbery, and by a verdict of a jury were found guilty as charged, the jury failing to assess the punishment. The court, in rendering judgment on the verdict, assessed the punishment of each at confinement for five years in the state reformatory at Granite. From this judgment they appeal.

This cause was regularly submitted at the March, 1923, term of this court, and the attorney for plaintiffs in error appeared and argued the case orally. The court then made an order giving plaintiffs in error until April 1, 1923, to file briefs. The order of the court has not been complied with and no briefs have been filed.

An examination of the record discloses no fundamental errors, and the evidence, although some of it is circumstantial and some of it conflicting, is sufficient to sustain the verdict.

Information before this court discloses that Alvis Fears is at this time a fugitive from justice; that in another case pending in this court, wherein he was convicted of murcfer and sentenced to the penitentiary, it appears that he was granted executive clemency in the form of a leave of absence from the penitentiary, and that he has violated the terms of said leave and escaped. It appears, therefore, that this case as to him should be, and the same is, dismissed, for the reason that he eannot be made to respond to any order or judgment of this court.

The judgment of the trial court as to the plaintiff in error Joe Creason is affirmed, for the reason that there is competent evidence to support the verdict, and that no fundamental error appears in the record, and that the record otherwise indicates that he was accorded a fair trial.

DOYLE, J., concurs.

. MATSON, P. J., absent, and not participating.


text:
    TOM ADAMS v. STATE.
    No. A-4064.
    Opinion Filed May 26, 1923.
    Rehearing Denied Dec. 4, 1923.
    (220 Pac. 59.)
    (Syllabus.)
    1. Venue — Refusal of Change¡ of Venue Where Petition Insufficient. Where the petition for a change of venue fails to meet the statutory requirements, there is no error in the trial court in striking the petition from the files and refusing the change.
    2. Appeal and Error — Trial—Instructions on Accomplice — Failure to Instruct as to Corroboration not Error Unless Instruction Requested. Whether or not one jointly charged with defendant with the commission of the crime is an accomplice is generally a mixed question of law and fact, and, where the evidence is conflicting on such issue, the trial court should submit the question to the jury under proper instructions, and should further instruct as to the necessity of corroborating an accomplice by independent evidence tending to connect defendant with the commission of the crime; but failure to instruct as to the necessity of such corroboration will not be held to be reversible error where no such instruction was requested, and where there is ample corroborating evidence introduced; such alleged error being harmless under the provisions of section 2822, Comp. St. 1921.
    3. Statutes — Sufficiency of Title to Act Making it Felony to Steal Automobile. The title to the act (chapter 102, Sess. Laws 1919; section 2120, Comp. St. 1921) is held not to be, in contravention of section 57, art. 5, Constitution.
    Appeal from District Court, Nowata County; C. W. Mason, Judge.
    Tom Adams was convicted of the larceny of an automobile, and he appeals.
    Affirmed.
    Bert Van Leuven, for plaintiff in error.
    George F. Short, Atty. Gen., and Leon S. Hirsh, Sp. Asst. Atty. Gen., for the State.
   MATSON, P. J.

Plaintiff in error, Tom Adams, was jointly informed against with one Emmett Taylor in the district court of Nowata county charged with the theft of an automobile the property of one William Myers, alleged to have occurred in said county on or about the 18th day of December, 1920. On a separate trial Adams was found guilty of the offense, and his punishment fixed at imprisonment in the state penitentiary for a period of 15 years.

The facts are about as follows: William Myers was the owner of a Buick Six automobile, 1920 touring model. When not in use Myers kept his car in a public garage in the city of Nowata. On the 18th day of December, 1920, a daughter of Myers’, who had been using the car, took the same to the garage for the purpose of leaving it there. This occurred about 4:30 in the afternoon. The owners of the garage were at that time busy cleaning it out, and had the Myers girl to park the car in the street near the garage. One of the employes of the garage saw the car parked there as late as 6:30 in the evening. The car was missed about 7:30 that evening, and immediately a search was made for it, and the officers notified that it was missing. Some time later that night, probably between 10 and 12 o’clock, this defendant and his codefendant, Emmett Taylor, were found in possession of the car in the city of Tulsa, Okla., and were there arrested, charged with its theft, and were on the next day brought back to the city of Nowata.

Taylor voluntarily testified as a witness on behalf of the state, in this prosecution, and detailed the circumstances under which the ear was taken. Adams denied taking the car, but testified that Taylor stole it, and that he was merely riding with Taylor to the city of Tulsa at the time they were arrested.

The first alleged error assigned as grounds for reversal is the action of the trial court in striking and overruling the motion and application of the defendant for a change of venue from the county. This application alleges that the defendant cannot have a fair and impartial trial in said county for the reason that the minds of the inhabitants of the county generally are so prejudiced against him by reason of the activities of the Nowata county automobile association, which embraces every automobile owner in Nowata county, and which association had interested itself in the prosecution of the case to the extent of employing special counsel to assist the county attorney, and by reason of the offer of rewards, etc., and the application is accompanied by a copy of an advertisement contained in the Nowata Star, which advertisement of the Nowata county automobile association offers a standing reward of $250 for the arrest and conviction of any one stealing an automobile from any citizen of Nowata county, and a further reward of $100 for the return of a stolen automobile, and a further reward of $1,000 for the dead body of any automobile thief taken in resisting arrest after having stolen any automobile from any citizen of No-wata county. The application is subscribed and sworn to by the defendant, Tom Adams. No affidavit of any residents in said county as to the truth of the allegations in such petition were filed therewith.

The statute upon which this application and petition for a change of venue was based is as follows:

“Any criminal cause pending in the district court may, at any time before the trial is begun, on the application of the defendant, be removed from the county in which it is pending to some other county in said judicial district, whenever it shall appear in the manner hereinafter provided, that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein. Such order of removal may be made on the application of the defendant by petition, setting forth the facts, verified by affidavit, if reasonable notice of the application be given to the county attorney and the truth of the allegations in such petition be supported by the affidavits of at least three credible persons, who reside in said county. The county attorney may introduce counter affidavits to show that the persons making affidavits in support of the application are not credible persons and that the change is not necessary, and may examine the witnesses in support of said application in open court in regard to the truth of said application; and if it be made to appear by the affidavits and examination of witnesses that a fair and impartial trial cannot be had in the county, a change shall be granted and the order made by the court. When there are several defendants in any indictment or criminal prosecution, and the cause of the removal thereof exists only as to one or more of them, the other defendants shall be tried and all proceedings had against them in the county, in which the case is pending, in all respects as if no order of removal had been made as to any defendant.” Section 2628, Compiled Statutes 1921.

The trial court struck the petition from the files and overruled the motion for a change of venue because said petition and application did not meet the requirements of the statute.

The question here presented is not one of first impression in this court. In the case of Black v. State, 3 Okla. Cr. 547, 107 Pac. 524, the identical situation here presented was before the court, and in that case the court said:

“The application for change of venue is in regular form, and alleges that, owing to the prejudice and feeling against the defendant in Hughes county, he cannot have a fair and impartial trial in said county. This application is supported by the affidavit of the defendant only. It is not supported by affidavit of three disinterested persons as required by the statute. * * * A grant of change of venue is within the sound discretion of the court, even when the requirements of the statute have been complied with, and this court has. repeatedly held that it will not reverse the judgment of the lower court for the failure to grant a change of venue unless it plainly appears that the discretion of the court has been abused to the prejudice of the defendant. The journal entry recites the fact that the attorneys for the defendant requested the court to issue subpoenas for witnesses and permit them to take oral proof in support of a change of venue, and gave as a reason therefor that while the feeling was very high and the prejudice very strong against the defendant, yet they were unable to secure the affidavit of any person to these facts. Counsel cites no authority for this kind of a proceeding. The statute provides the only method of proof. We find no error in the action of the court in refusing this request and in overruling the motion for a change of venue.”

In the later ease of Bookman v. State, 12 Okla. Cr. 49, 151 Pac. 1074, this court, speaking through Doyle, presiding judge, said that where the petition for a change of venue is only supported by the affidavit of the defendant and his attorney the application for a change of venue does not conform with the requirements of the statute, and for such reason is properly overruled.

Section 20 of article 2 of the Constitution in part provides:

“In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed: Provided, that the venue may be changed to some other county of the state, on the application of the accused, in such manner as may be prescribed by law.”

It will be noted from the foregoing constitutional provision that the accused may change the venue of a criminal prosecution to some county other than that in which the crime was committed on application and in such manner as may be prescribed by law. The statute allowing a change of venue to the accused (section 2628, supra) gives the state the right to call witnesses to refute the statements of the application and supporting affidavits, and, in order to give the state an opportunity to refute such statements, provides that reasonable notice must be given of the hearing of the application. Should the defendant be permitted to dispense with the affidavits and call witnesses at the hearing, the requirements of notice would . be circumvented and the state would be at the mercy of a party whose chief and material interest might be delay by any means within his power. This and other reasons have caused courts almost unanimously to hold that the requirements of the statutes pertaining to supporting affidavits is mandatory. We hold, therefore, that the trial court did not err in striking the petition and application for change of venue from the files and in overruling the motion as presented. Also see Macklin v. State, 53 Tex. Cr. R. 197, 109 S. W. 145; 16 Corpus Juris, p. 212, § 320.

Next it is contended that the trial court erred in failing to instruct the jury that the defendant could not be convicted on the uncorroborated testimony of an accomplice. In this connection it is contended that the codefendant, Emmett Taylor, was an accomplice of Tom Adams in the commission of the crime, and that the only evidence in the record tending to establish Tom Adams’ connection with the theft of the automobile is the testimony of Taylor.

The trial court submitted the question to the jury as to whether or not Taylor was an accomplice under the facts disclosed by the evidence, and further in the general charge defined the meaning of the word “accomplice.” The court did not, however, instruct as to the necessity of the state corroborating an accomplice by other evidence tending to connect this defendant with the commission of the crime, and neither was such an instruction requested by the defendant. We think, under the holdings of this court in the following case's: Good v. State, 21 Okla. Cr. 328, 207 Pac. 565, and cases cited — that Taylor was an accomplice, and that the court should have given an instruction upon the necessity of corroboration in this case; but we do not believe that the failure to so instruct, in the absence of a spe-ciñe request therefor, should result in a reversal of this judgment. In fact there is evidence in the record independent of the testimony of Taylor tending to connect the defendant with the commission of this crime, and sufficient in law to corroborate the accomplice. Independent of the testimony of Taylor there is testimony of another witness who saw this defendant near th'e place where the car was stolen just a few minutes before the car was taken, and, further, this defendant was, in conjunction with Taylor, found in possession of the ear in the city of Tulsa just a few hours after the car was stolen. Defendant’s explanation of his connection with the car does not impress this court as being true, and, further, this court is not authorized to reverse a judgment of conviction solely because of misdirection of the jury unless it appears that the error complained of has probably resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right. Section 2822, Compiled St. 1921.

In this ease there was no miscarriage of justice, and It cannot be said that where there is sufficient evidence tending to corroborate the accomplice that the failure of the trial court, in the absence of a request therefor, to instruct on the necessity of corroborating evidence, deprived this defendant of any constitutional or statutory right.

It is also contended that the statute upon which this prosecution is based, to wit, chapter 102, Session Laws 1919 (section 2120, Compiled Statutes 1921), is unconstitutional and void because the title to said act is in violation of section 57, art. 5, Constitution. The question here presented has been decided adversely to defendant’s contention in the ease of Jackson v. State, 22 Okla. Cr. 338, 211 Pac. 1066, and Newcomb v. State, 23 Okla. Cr. 172, 213 Pac. 900.

While the punishment assessed by the jury is within five years of the maximum under the statute, the record discloses that this is not the first conviction of defendant for automobile larceny. Defendant admitted his previous conviction of grand larceny in connection with the theft of an automobile in Creek county, for which he was sentenced and served a term of three years’ imprisonment in the Oklahoma Reformatory at Granite, Okla. While the punishment is severe, it cannot be said to be excessive for a second offender.

DOYLE and BESSEY, JJ., concur.


text:
    HUGH KENNEDY v. STATE.
    No. A-3921.
    Opinion Filed May 12, 1923.
    Rehearing Denied Dec. 4, 1923.
    (220 Pac. 61.)
    (Syllabus.)
    1. Evidence — Admissibility of Evidence Although Tending to Prove Separate Offense. Evidence tending to show design or plan to commit the crime charged is admissible, although it may have tended to show defendant guilty of a separate offense.
    2. Same — Relevancy and Competency of Evidence Tending to Show Design. The kinds of conduct which may evidence design are innumerable, and the relevancy of such evidence and its .competency must vary with the circumstances under which the conduct takes place and be construed according to every- ! day experiences and common sense. Por evidence held admissible to show design to commit the crime charged see body of opinion.
    3. Trial — Defective Verdict — Objection in Trial Court. A verdict, not' void, but merely defective, should be objected to in the trial court.
    4. .Continuance — Overruling of Motion for Absent Witness not Erroneous. Where defendant had two days in which to procure the attendance of an absent witness, and after such time made no further showing that such delay was insufficient to procure the witness, an order overruling an application for a continuance based on the absence of the witness two days before the case was tried presents no error.

      Appeal from District Court, Le Flore County; E. F. Lester, Judge.
    Hugh Kennedy was convicted of grand larceny, and he appeals.
    Affirmed.
    Neal & Neal, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

This is an appeal from the district court of Le Flore county, wherein the plaintiff in error, Hugh Kennedy, hereinafter referred to as defendant, was convicted of the crime of grand larceny, and his punishment fixed at imprisonment in the state reformatory at Granite for a period of one year.

Defendant was convicted of stealing about $27 in money from one Walter Cook, who was at that time (9th day of August, 1919) running a barber shop in the town of Le Flore, Okla. Cook testified that he left his barber shop some time between 5 and 6 o’clock on the afternoon of that day, after closing the back door and turning the latch on it and closing and locking the front door; that he left the money in the cash drawer in the barber shop and last saw it about 4:80 that day; that after leaving the barber shop he went into the store of the defendant’s father, which was also the post office, to see if he had any mail, and then went across the street to a store for the purpose of purchasing a pair of shoes; that he returned to the barber shop about 30 minutes later, unlocked the door, and that he and his father entered the shop; that he noticed that the back door was open about a foot; that he then discovered that the money was missing from the cash drawer; that the defendant had been in the shop that day on numerous occasions, and had left the shop just a short time before witness closed the shop and went to buy a pair of shoes; that among the bills which were stolen was a $5 bill which'had been previously torn in two and pasted together with brown paper.

Another witness testified that on the 13th of August, 1919, in the morning, the defendant appeared at his store in the town of Le Flore and presented a $5 bill which had been torn in two and pasted together with brown paper, in payment of a small purchase made by defendant. This $5 bill was afterwards recovered and identified by Cook as one of the bills lost by him from the cash drawer, and was also identified by the cashier of the bank at Le Flore as a bill that he had torn in two and given to a brother of Walter Cook, and this brother also testified that he had turned this particular bill over to Walter Cook, and it was put in the cash drawer at the barber shop on the day of the larceny.

There is also evidence by a couple of witnesses that a few days before the alleged commission of this larceny by the defendant, the defendant was seen in Cook’s barber shop in a crouching position, close to the cash drawer from which ihis particular money was stolen.

Defendant did not deny the possession of the $5 bill with the peculiar marks of identity on it, but explained his possession by testifying that he had received it in payment of a debt due him by another young man of that community, and there is some evidence in the record tending to corroborate the defendant’s story of how he became possessed of this particular money. On the other hand, the other young man positively denied having given defendant this particular bill.

Among several assignments of error, the one particularly relied upon for reversal is the alleged error of the trial court in permitting, over objection and exception of defendant, the evidence of defendant’s presence in the barber shop of Cook, on the two occasions above referred to, when Cook was absent and defendant was seen in a crouching position close to the cash drawer from which this particular money was abstracted. It is urged, in the brief of counsel for defendant, that the admission of this evidence was erroneous and prejudicial, in that it tended to prove defendant’s guilt of a separate crime, having no connection or bearing upon the issues in this ease.

We believe the evidence was admissible on the theory that the defendant designed to burglarize and steal from the barber shop of Cook, and that the larceny for which he was convicted was part of a preconceived plan or design to steal money from the cash drawer of Cook’s shop, and that his prior conduct was so closely related in point of time and similar in its circumstances to the circumstances under which this larceny was evidently committed as to be indicative of a design on the part of defendant to commit this, larceny. Under such circumstances the fact that it may have also tended to show the defendant guilty of a separate offense was immaterial. We recognize that it is impossible to establish any general or fixed rule which will be definite enough to determine whether evidence of defendant’s former acts and conduct will be relevant to prove design in every instance. The kinds of conduct which may evidence design are innumerable, and the relevancy of such evidence and its competency must vary with the circumstances under which the conduct takes place, and be construed according to our everyday experiences and to common sense. We hold that the evidence here complained of was admissible under the circumstances in this case to show a design on the part of the defendant to commit the larceny which was here evidently committed under similar circumstances, and it also tended to show the defendant’s knowledge of the premises and of the location of the place where Cook kept his money.

Further, it is contended that the verdict rendered is so indefinite and uncertain as to be void, and that the trial court was without jurisdiction to sentence the defendant to imprisonment for one year in the state reformatory on the verdict as rendered.

No objection was made to the reception of the verdict. Nor do we find from the record that this assignment of error was ever raised in the trial court. The verdict finds the defendant “guilty of grand larceny as charged in the information,” and fixed his punishment at “one year in the reform school.” There is no penal institution in this state designated “reform school.”

The trial court instructed the jury that if the defendant was found guilty the jury should assess punishment “at imprisonment in the state penitentiary for a term not exceeding five years.” The verdict was not void, as it clearly found the defendant “guilty of grand larceny as charged in the information.” The defect of incorrectly naming the reformatory was waived by failure to object to the reception of the verdict, and further by failure to move in arrest of judgment. Had defendant objected to this apparent defect in the verdict at the time the same was returned, the verdict, no doubt, would have been reformed, but defendant will not be heard to raise a technical question of this kind for the first time on appeal. Having by his conduct in the trial court waived the defect as to the incorrect name of the place of imprisonment, the verdict was sufficient to authorize the court to pronounce judgment of conviction and to imprison defendant in the state reformatory at Granite, an institution provided for the incarceration of convicted felons.

The assignment that the trial court erred in overruling the motion for a continuance of the cause on account of an absent witness is not meritorious. An alias subpoena was issued for such witness, and the record discloses that it was two days thereafter before the defendant was called upon to introduce any evidence in the case. Why the witness did not appear at this later date is not disclosed by the record; at any rate defendant did not again urge his application for further delay. We think it apparent defendant had ample time to get the witness or else should have made a further showing of his inability to procure his attendance before closing his case.

Judgment affirmed.

DOYLE and BESSEY, JJ., concur.


text:
    J. E. STINSON v. STATE.
    No. A-4095.
    Opinion Filed Oct. 18, 1923.
    Rehearing Denied Dec. 4, 1923.
    (220 Pac. 63.)
    (Syllabus.)
    Homicide — Evidence Sustaining Conviction for Shooting with Intent to Kill. In a prosecution for shooting another with intent to kill, the evidence held sufficient to sustain a conviction, and that no material error was committed on the trial.
    Appeal from District Court, Harmon County; T. P. Clay, Judge.
    J. E. Stinson was convicted of shooting another with the intent to kill, and he appeals.
    Affirmed.
    R. D. Miller and S. B. Garrett, for plaintiff in error.
    George F. Short, Atty. Gen., and Baxter Taylor, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, J. E. Stinson, was tried and convicted upon an information which charged him with having on the 28th day of September, 1920, assaulted one R. D. Sinclair by shooting him with a shotgun with the felonious intent the said Sinclair to kill. In accordance with the verdict of the jury he was by the judgment of the court sentenced to imprisonment in the penitentiary for a term of two years.

This appeal is based entirely upon the alleged insufficiency of the evidence to support the verdict. The evidence shows that the defendant and the complaining witness are farmers living in the same neighborhood; that the defendant’s son and a daughter of the complaining witness are husband and wife, and there was a dispute existing between the defendant and the complaining witness relative to domestic difficulties between said son and daughter. On the day alleged, about 2 o’clock p. m., the complaining witness was riding on a load of cane drawn by a team of mules that he was taking to a sorghum mill when the defendant stepped from a cane patch and shot him with a shotgun. The complaining witness jumped off of the load of cane, and the defendant fired another shot. Reloading his gun he fired three more shots. The complaining witness had one shot wound in the scalp, two or three in the back, and two in the left arm. When the defendant was arrested that evening he stated to the sheriff: “I went to the cane patch and stayed there until Mr. Sinclair passed the second time.” The sheriff asked him: “What did you stay there for all day?” Defendant said: “Did you ever go out to murder a man? If you ever do you will find it a bigger job than you think it is” — and told the sheriff that he shot five times. The gun was loaded with BB shot.

He interposed two defenses: The first that he acted in self-defense, and, second, that of insanity.

As a witness in his own behalf the defendant testified:

“My age is 46 years. I live in the northwest corner of Harmon county. My oldest boy married Mr. Sinclair’s daughter. On the day of the difficulty I started over to the sorghum mill to see when I could get my cane ground. I was in Orr’s cane patch, and saw Mr. Sinclair and Roy Smith pass. That was about three hours before the shooting occurred. Then I saw Mr. Sinclair driving' along there with a load of cane. I walked towards the wagon. My object was to see him and see if we could get together and settle our affairs. Mr. Sinclair reached for his gun, and I shot him when I saw the gun. I thought he intended to shoot me. He had been threatening me for two or three years. I was about 40 or 50 yards from him when I spoke. After the first shot he kept trying to get his gun, and every time I shot it seemed to me like he was trying to get his gun out.”

There was no evidence tending to support the insanity defense. Upon the defendant’s own testimony he was not warranted in shooting the complaining witness, and the statements of the defendant to the sheriff, as testified to by him, were not denied by the defendant.

The cause appears to have been fairly tried. It was submitted to the jury by instructions which fully cover the law of self-defense and the defense of insanity, and the verdict appears to have been fully justified by the evidence. We are satisfied from an examination of the record that no error was committed on the trial upon which a reversal of the judgment of the district court would be authorized, and it is therefore affirmed.

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