text:
    DENZIL CHASTAIN et al. v. STATE.
    No. A-6936.
    Opinion Filed Jan. 31, 1930.
    (287 Pac. 826.)

      Brett & Brett, Cargill & Whiteside, and Guy P. Horton, for plaintiffs in error.
    J. Berry King, Atty. Gen., and V. P. Crowe, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiffs in error, hereinafter for convenience called the defendants, were charged by information with the crime of murder, and the defendant Denzil Chastain was convicted of murder and his punishment fixed at life imprisonment. The defendant Bert Pope was found guilty of manslaughter in the first degree and his punishment fixed at confinement in the state penitentiary for forty years. Each of the defendants filed a motion for a new trial, which was overruled, and his appeal was perfected by the filing of petition in error and case-made in this court.

The evidence on behalf of the state tends to show that on the first day of July, 1927, the two defendants went to a dance hall at a place called Lake Lahoma, in Jackson county, Okla.; in going to the lake the evidence tends to show they had gone to the home of one of the defendants and secured some beer to drink; the kind of beer is not disclosed by the record. The defendants were driving in a Ford car and were accompanied by Lanard Wilkerson, who testified for the state. When the defendants were preparing to leave the dance for their homes, Clyde Loftis came and told the defendants that Leslie Bellows would like to ride back to Blair, Okla., with them. The defendants told Loftis it was all right and the deceased left the dance hall with the defendants, in a one-seated Ford car, the deceased riding in the middle of the seat with the defendants; the deceased told the defendants after leaving Lake Lahoma, where the dance was being held, that he wanted to go to Blair, bnt when they got to the road leading to Blair instead of turning in that direction they went on in another direction, and as the defendants stated, for the purpose of getting to the farm occupied by a man by the name of McClelland, where they desired to get some beer.

The evidence further tends to show that, after they had driven some distance, Leslie Bellows said something about wanting the defendants to turn on the road leading to Blair, and the defendants advised him they desired to go by the McClelland place, and the deceased said that it was all right with him for them to take him home after they had gone to the McClelland place.

The state called Lynn Gillispie as a witness who testified, in substance, that:

“The-deceased came to my house; I saw he was hurt pretty bad and I called to my brother-in-law and told the women to get in the other room, and I took him in the house and put him to bed and saw his condition; he was pretty bloody; I noticed two wounds on his face was about all I could tell about; I had the ordinary lamplight; there was blood on his clothing; I went and called the deputy. sheriff and the doctor at Blair; the deceased, I judge, was at my house about an hour; the doctor and Mr. Parks came and took him to Blair; the deceased walked out of the house.”

The witness Gillispie then testified as to following the tracks down the road to where it is alleged the trouble took place. The witness stated:

“I learned the name of the deceased, who came to my house, was Leslie Bellows.”

On cross-examination witness described the road from Ms home down to the place where they found the evidence of blood on the ground and stated:

“I could not tell how many tracks there were on both sides of the road, and in the middle; it looked like two different shoe tracks there on the east side of the road; it looked like the boy had lain across the east rut with his ■head in the middle of the road and his feet on the east side of the road; looked like a car had passed that point; when the Bellows boy came to my house he was pretty weak; I think he was conscious.”

The witness was recalled, and after several questions, the following questions were asked the witness:

. “Q. I will change that question and ask you to repeat any statement by Leslie Bellows to you, not what you said but what he said?
“Mr. Whiteside: I want to preserve the record if the court please. The defendant objects for the reason that the same is hearsay, incompetent, irrelevant and immaterial, and no proper predicate has been laid for the introduction of such testimony.
“Mr. Crowe: I think it is a part of the res gestae.
“The Court: I overrule ,the objection. Admitted as a part of the res gestae.
“Mr. Whiteside: Give us an exception.
“Q. Just tell the jury now what he said? A. He said the boys beat him up, made him suck them off; and he also said they lived at Altus; and said one of them had on a gray suit of clothing and the other a blue pair of pants.
“Mr. Whiteside: Give us an exception.
“Q. Will you state whether he made any statement to you as to the color of hair of either of the boys? A. Well, he said one of them—
“Mr. Whiteside: At this time, the defendants would like for this objection to the statements of this witness in relating as to what the deceased told him to go to all this line of testimony, and ask that our exceptions be saved.
“The Court: All right. All right, let the record so show.
“A. He said one of them was light complectioned and had light hair.”
“I had gotten the deceased in the house at the time and I was taking his shoes off; I started taking them off immediately after I got him in the house; from the time he said ‘hello’ to me and directing my attention and got him in out there, and until I got him in the house where he made the statement, approximately it might have been three or four minutes.”

The witness for the state, Dr. R. Z. Taylor, was recalled and stated that he went to the hospital and the deceased made a statement there; the witness stated he advised the deceased of his condition being near death, or in danger of losing his life. Witness Taylor was asked the following question:

“Q. Will you now relate as near as you can the statement made by Leslie Bellows, at the hospital, after you so advised him of his injuries, and the manner in which he had received them?
“Mr. Whiteside: We object to that for the reason that the same is incompetent, irrelevant and immaterial, and hearsay, and no proper predicate having been laid for the admission of the same.
“The Court: Overruled.
“Mr. Whiteside: Give us an exception.
“Q. Tell it as near as you remember, Doctor?
“Mr. Whiteside: This objection is made to all the statements made by the deceased, which this witness may relate, and give us an exception thereto.
“The Court: Let the record so show and the same ruling.
“A. Leslie Bellows said that he reached the dance hall—
“Mr. Whiteside: Pardon me just a minute, Doctor, you are now going to testify about what Les Bellows said there at the hospital, is that correct? A. Yes, sir.
“Mr. Whiteside: All right.
“Q. Gfo ahead. A. —about dark. That after the dance he left the grounds with two men whose names he didn’t know but that the boy living on the Shield’s place knew who they were. That he left—between these men.
“Q. Pardon me for interrupting, will you relate whether or not there was any statement made with reference to who made the arrangement for him to leave with them? A. Yes, sir, he said that the boy living on the 'Shields place told them to let him ride that he was all right, and that he got in the car to come by Blair as they went to Altus.
“Q. Did he tell you what kind of car? A. He said it Avas a Ford roadster with a three piece tire rack and truck or delivery body. He said that before leaving Lake Lahoma that they told him to strike a. match and look in the bottom of the car, and he did, and that each or both men picked up ‘hand-knuckles’; that a little piece, I don’t remember the distance, from the dance hall, on the public road, Avhile the car was moving that they made him suck them off, or I believe his words was suck their peters. He said that as he started that they hit him over the head and made him keep it up until he had sucked them both off.
“Mr. Whiteside: If the court please, I would like to ask one question. Doctor, was that statement made .which you are detailing reduced to Avriting by anyone as he Avas making the statement? A. Yes, sir.
“Mr. Whiteside: The defendant at this time objected to the Doctor testifying from memory for the reason that it shows that the same was reduced to writing, and if so that the best evidence in the absence of the shoAving of an impossibility of the production.
“The Court: Overruled.
“Mr. Whiteside: Give us an exception.
“A. —that they drove about ten miles on the public or main road and that he thought he was close to the old Shields place. That they got out of the car, and the man with the dark trousers on driving hit him. And that they caught his head and hit him on top of the head with knucks. And one said, ‘Faster,’ and he yelled or hollowed and that they told him to quit yelling; that they left him and came back and hit him three or four times, then left, and he looked and saw that they were gone.
“Q. Would you pardon me for interrupting, do you recall whether he made any statement as to what they said to him Avhen they came back to where he was on the road, or anything said about killing him. A. Let’s see if I can get the words to that. He said when they came back there one said, ‘Kill that God damned son of a bitch,’ or the equivalent to that, may not have been the exact words. He said he then went to a house to stay all night. As I remember he did not fully know the name of the people Avhere he went. Going back a little, in one place he said they both hit him.”

The state also offered what it termed the dying declaration of the deceased, which was admitted over the objection of the defendant, and described as State Exhibit A, which is as follows:

Questions by Dr. Taylor:

“Q. Leslie, Avhat time did you get to Gillispie’s this morning? A. About 2 o’clock.
“Q. Leslie, are you listening? A. I’m trying to.
“Q. Not very well? A. As well as I can.
“Q. Leslie, we want to talk seriously to you now. In a few minutes you are going on tlie operating table. Did you know that you are in a bad shape? A. Yes, sir.
“Q. Do you realize that in this work we have to question you? In a very few minutes, and before we do we want you to realize that you might not wake up. Did you know that Leslie? A. I never thought of it. It might happen.
“Q. Yes, it might happen. We Avant you to realize that. The reason we want you to realize that Ave are going to question you, the county attorney is going to question you about Avhat happened. We Avant you to realize that so that you will tell nothing but the whole truth. Do you realize that, Leslie? A. Yes, sir.
“Q. Leslie, do you realize this might be your last day that you might not wake up? A. Yes, sir, I Avant to tell everybody goodbye.
“Q. Alright, alright. Listen, Mr. Yates, the County Attorney, is going to talk to you, and ask you to tell the truth about what happened from the time you got in the car until you got beat up. A. Yes, sir.
“Q. All right.

Questions by L. B. Yates, County Attorney:

“Q. Your name is— A. Leslie BelloAVS.
“Q. You went up to— A. The dance hall.
“Q. Last night. Where? A. Lahoma Lake.
“Q. About what time did you go out there? A. I went out just about 8 o’clock. I started Avhen the sun hadn’t hardly gone down.
“Q. Now, did you dance any? A. No, sir.
“Q. Did you— About what time did you see these boys that you came back with? A. Eight after the dance was over.
“Q. Did you see them before the dance was over? A. No, sir.
“Q. How came you to see them at that time? A. I was watching for a way to come home. I lived at Blair and they lived at Altus. They told them— The boys on Mr. Shield’s place ask the two boys from Altus to let me ride. They said I was all right. If I wasn’t all right I wouldn’t want to ride with anybody.
“Q. Did you get in the car with the two boys? A. Yes, sir, set down in the middle.
“Q. In the front seat? A. Yes, sir.
“Q. Between the two boys? A. Yes, sir.
“Q. Did you know these boys? A. No, sir, one was named Jack and one Cicero, something like Cicero, I think it was Cicero.
“Q. Did they call one of them Jack? A. I am sure one was Jack and one Cicero. The last might be wrong but I know they called one of them Jack.
“Q. What kind of a car were they in? A. A Ford roadster with a three piece tire rack on the side of the car and a delivery body on the back of it.
“Q. Were they drinking any, Leslie? A. No, sir.
“Q. Did not drink anything last night? A. I never drank anything but some water.
“Q. You didn’t drink any whisky or beer? A. No, sir.
“Q. Were these boys drinking you got in the car with? A. Yes,-sir.
“Q. Did they drink any after you got in the car with them? A. No, sir. They began slapping me.
“Q. They both began slapping you around after you got in the car? A. Yes, sir. They says, 'You’re a coward to strike a match and look in the bottom of the floor’ and I says, 'I’m not.’
''Q. Did you strike the match? A. Yes, sir, I did.
“Q. What did you see when you struck the match, if anything? A. I saw hand -knucks.
"Q. Just one? What then? A. I struck a match and looked down, then one boy grabbed one and one the other.
"Q. Where were you at that time? A. We were right there close to the dance hall.
“Q. Was the car going at that time? A. No, sir.
“Q. Was it stopped? A. Yes, sir.
“Q. Hadn’t you ever started then? A. No, sir.
"Q. Did you— what did you think when they picked up the knucks? A. I thought they were just—I wasn’t thinking about them jumping on me, I was just riding home with them.
“Q. Then they did start back to Altus? A. Started back to Altus and they made me suck their peter.
"Q. About how far did you get from the dance hall before they made you do that? A. About fifty yards.
“Q. Did you get off the main road? A. No, sir.
“Q. Did you stop in the middle of the road? A. No, sir. Stopped in the middle of the road, beat me in the head and hit me three or four times.
"Q. Then did they get out of the car? A. They was already out.
"Q. You were out too? A. Yes, sir, they made me get out, they beat me.
“Q. Were any cars coming by where you were stopped? A. Not that I noticed, not that I know of.
“Q. Did you ever get back in the car again after they beat you up? A. No, sir.
“Q. Where was it they got out of the car and beat you up? A. I think it was pretty close to old man Shield’s place. It might not ’have been very close either but it seemed like it wasn’t very far.
“Q. Had you been talking to them? A. No, sir, I didn’t tell a word to them. Sam Wilson told them to get out of there in the first place.
“Q. Had you turned off the main road when they stopped and told you to do- that? A. No, sir, I wouldn’t do that for a hundred dollars right now.
“Q. No. Had you been in the car some little bit before the boys mentioned it? A. No, sir, the only time we got in the car was when we started off.
“Q. About how many ¿miles had you gone before you got out? A. I guess ten miles.
“Q. Before you got out? A. Yes, sir.
“Q. Now you stated about them beating you. Did they beat you any before you got out of the car? A. Some.
“Q. What did you do when they would hit you? A. Try to dodge them and tell them to quit but they wouldn’t do it.
“Q. Leslie, after you stated they had gone about ten miles then did you get out of the car? A. Yes, sir.
“Q. What was the first thing they did after they got o'ut of the car? A. I started out of the car and they hit me in the head with the knucks.
“Q. Was that the one driving the car that did that? A. Yes, sir.
“Q. What else? A. They said they were going to kill me, anyway.
“Q. They said they were going to kill you, which one said that? A. Both of them.
“Q. After they got out of the car what was it they said to you? A. They just grabbed me around the neck and never said a word and hit me right on top of the head, they hit me on top of the head again, and said, ‘Faster, faster/ and I said, ‘Oh/ and they said, ‘Quit that yelling, quit that yelling.’
“Q. Did they say anything else to you then? A. No, I don’t think so, only Bert Wallace, one thing he said—
“Q. Wait a minute. After you got out of the car what was they made you do if anything? A. The only they hit me in the head.
“Q. You said something they made you do? A. Made me suck them. The one driving the car said, ‘Stay with it.’
“Q. Which one was that? A. The driver.
“Q. The one they called Jack? A. The one with the blue serge pants. The other had on a grey suit.
“Q. Did both of them make you suck them? A. Yes.
“Q. Where were you at the time, out on the road? A. In the car.
“Q. You were in the car? A. Yes, sir, I forgot this, I started to sucking and this other boy got the knucks and hit me on the head and I stopped and then they hit me again.
“Q. Did they make you go ahead and finish? A. Yes, sir.
“Q. Which one of them hit you? A. The one that was driving with the blue pants on.
“Q. I believe you stated they hit you with the knucks? A. That was the one that was driving.
“Q. Did the other one hit you with the knucks? A. Yes, sir, two or three times, they both hit me with the knucks.
“Q. Did either one have a knife? A. Not that I know of, but they stole mine. It was a green handle with, an ‘S’ on one side of it. I want it for my brother gave it to me before he went to California.
“Q. Well, I’ll find it for you if I can. Now, after they beat you up what did they do to you? A. I was laying there so numb I don’t know what they was doing only I saw them leave.
“Q. Did they come back and threaten to kill you? A. Yes, sir. They hit me two or three times, then went to the car, then came back and threatened to kill me before they left.
“Q. Then they did leave? A. Yes, sir.
“Q. Did you hear either one of them say anything about your condition, about whether you were dead? A. No, sir.
“Q. But you were pretty numb? A. Yes.
“Q. Did they say anything about finishing you up when they came back? A. Yes, sir, they did.
“Q. What did they say about that, Leslie? A. Jack, that had on the blue suit said, ‘That God damn son of a bitch, I’ll kill you in a minute.’ He’ll kill anybody.
“Q. WTho said that? A. The other one said that Jack would do that. They didn’t kill me but just the same as dead, that is the way I felt.
“Q. Then did the boys leave you out there? A. Yes, sir, I looked around to see where they were.
“Q. And they were gone? A. Yes.
“Q. What did you do after they left? A. I got up and went to the other place and tried to stay all night.
“Q. Did they let you come in? A. Yes, sir.
“Q. You know whose place it was? A. I know but I can’t think.
“Q. Was it Gillispie’s? A. Gillispie or Lispie.
“Q. Did you see any other house as you went down the road? A. I never noticed.
“Q. Leslie, did you see these boys drinking any beer or whisky before or after they left thé dance? A. No, sir, but I could smell it on them right strong as soon as they walked up.
“Q. I guess that’s all.”

The testimony on behalf of the state further shows the deceased left the dance hall at Lake Lahoma with the defendants and later in the night came to Lynn Gillispie’s place badly beaten up. The defendants testify in their own behalf and admit that they went to Lake Lahoma dance hall; they state that on their way there they drank a bottle of beer each; that while there they danced one or two dances and about the time they were ready to start home, Clyde Loftis came to them and asked if they would let the deceased ride in their car to his home at Blair, and they agreed to do so; they dehy they compelled the deceased to commit the outrageous crime the state attempts to show in what is termed the dying declaration of the deceased. The defendants admit the deceased wanted them to take him home to Blair and they told him they were going to McClellands to get some more beer and that they would take him home.

The defendant Chastain claims they drove on some distance when they discovered something wrong with one of the front wheels of the car, and that he got out and looked at it, and then started to get back in the car:

“I started to get my hat out of the tool box and deceased Bellows was standing back near the hind wheel; I did not notice when he got out of the car; he got out some time after I got out; I was reaching in the tool box to get my hat out of the box and the deceased said he wanted us to take him home, and I told him I would take him as soon as we went to the McClelland place, and he said, ‘By God, I will make you take me home,’ and ran at me and I grabbed him and kept him from striking me; I had a jack in the tool box and I was bringing it up and hit him; he had a knife in his hand; when I struck him he fell against the ear on the east side; we had a fight there when he said he was going to make me take him home and ran at me with a knife; I pulled the jack out of the box I was bending over to get my hat, and struck at him when he ran in to me; he fell, and was lying over the rut on the east side of the road with his head toward the west, partly under the car and behind the wheel; I do not know what became of the deceased; I was standing there talking to Bert Pope; Bert asked me what we were going to do with him and while we were trying, to decide what to do with him, why he got up and went off. He wasi behind the car and we were standing in front and on the east side; I waited a few minutes thinking he might be coming around the end of the car and then stepped back and could not see him; I never saw him any more that night; we got home about 1:15.”

The defendant denied any mistreatment of the deceased, or compelling him to do anything, or having any trouble with him up to the time he claims he stopped the car to look at the car wheel to see what was wrong with it. Defendant Chastain claims he struck the deceased with a jack in self-defense to keep him from cutting him with a knife.

The defendant Bert Pope testified in substance to the same as did the defendant Denzil Chastain; denying any mistreatment of the deceased, or having any trouble with him until the car stopped, to look at the wheel to see if anything svas wrong with it. The defendant Pope admits that the defendant Chastain struck the deceased with a jack; he states he had nothing to do with it, took no part in it, and admits they left the scene of the difficulty without making any effort to find the deceased, or report the same to any one.

The record is voluminous and to set out the testimony in detail would make this opinion too lengthy.

The defendants have assigned sixteen errors alleged to have been committed by the court in the trial of their case. We will first consider the tenth assignment, which is as follows:

“Because the court erred in admitting in evidence certain alleged statements alleged to have been made by the deceased to one Lynn Gillispie, to which testimony and admission of the same, the defendants and each of them objected and excepted at the time.”

It is urged by the defendants, that the testimony of Lynn Gillispie, which goes to the statements claimed to have been made by the deceased at the witness Gillispie’s house, detailing the way the difficulty occurred, and what the deceased claims each party of the difficulty did and said, which was admitted as being statements made in the absence of the defendants, and the defendants insist that the statements made were not a part of the res gestae. The record discloses that this conversation was admitted by the court on the theory that it was a part of the res gestae, having been made within a few minutes after the assault was made upon the deceased. The defendants cite in support of their contention the case of Smith v. Territory, 11 Okla. 669, 69 Pac. 805, 806, the seventh syllabus being as follows:

“Declarations, to become a part of the res gestae, must accompany the act which they are supposed to characterize and explain, and, to make such declarations competent as evidence, they must exclude the idea of a narration of past occurrences or events.”

In Price v. State, 1 Okla. Cr. 366, 98 P. 447, this court in the second paragraph of the syllabus, said:

“Declarations, to be a part of the ‘res gestae,’ need not be precisely coincident in point of time with the principal fact. If they spring out of it, shed light upon and tend to explain it, are voluntary and spontaneous, and are made at a time so near it as to preclude the idea of deliberation or fabrication, then they are to be regarded as contemporaneous, and are admissible as evidence.”

The record in this case discloses that a difficulty occurred, something like a quarter of a mile from the home of the witness Lynn Gillispie, and that some time after midnight, the deceased came to the Gillispie home, called him, and when he went out he found the deceased badly beaten, scarred and bleeding, suffering with pain, and when questioned as to how he received his wounds, the deceased detailed to the witness how it occurred; he could not tell just where they were at the time of the difficulty, but'it is apparent from the record that when he left the scene of the difficulty he was in a dazed condition, suffering from pain, and was bleeding profusely, as the testimony shows that blood was found at different places along the route traveled by the deceased from the scene of the difficulty to Gillispie’s home.

The question for this court is, considering all the facts and circumstances, Was the condition of the deceased such as to preclude deliberation and fabrication of the story told the witness? It is urged by the defendants that the statements, attributed to the deceased by Gillispie, were not spontaneous deliberations springing out of, and contemporaneous with the principal facts sought to be proven, and were not made at a time so near to as to preclude deliberation and fabrication, and that the rule is that these elements, must accompany the statements, whether the statements are made by the deceased or by the defendant. The defendants’ contention is that a sufficient time had elapsed, between the time of the ending4 of the difficulty and the arrival of the deceased at the Gillispie home, to give the deceased time to deliberate and fabricate statements as to the facts. It cannot be definitely determined how long after a crime has been committed statements made by a party cease to be a part of the res gestae.

In Clingan v. State, 15 Okla. Cr. 483, 178 Pac. 486, in the third paragraph of the syllabus the court said:4

“Spontaneous declarations springing out of and contemporaneous with the principal fact sought to be proven, and which are made at a time so near to it as to preclude the idea of deliberation and fabrication, whether they be declarations of a deceased or 'of á defendant or of bystanders, are admissible as part of the ‘res gestae’.”

In Morehead v. State, 12 Okla. Cr. 62, 151 Pac. 1183, 1184, Ann. Cas. 19180, 416, in the sixth paragraph of the syllabus the court said:

“On a trial for murder, declarations of the deceased made under such circumstances as will raise the reasonable presumption that they are the spontaneous utterances ,of thought created by or springing out of the homicidal act, and made SO' soon thereafter as to' exclude the presumption that they are the result of premeditation and design, and without knowledge of which the principal fact might not be properly understood, are admissible as part of the res gestae.”

In the body of the opinion this court said:

“No fixed measure of time or distance from the main occurrence can be established as a rule to determine what shall be a part of the res gestae. Each case must necessarily depend on its oiwn circumstances to determine whether the facts offered were really part of the same continuous transaction.”

And further on the court says:

“The rule is well stated that: If such declarations ‘are made under such circumstances as will raise the reasonable presumption that they are * * * created by or springing out of the transaction itself, and so soon thereafter as to exclude the presumption that they are the result of premeditation and design, they will be admissible as part of the ‘res gestae’.”

In Dodd v. State, 29 Okla. Cr. 311, 233 Pac. 503, the first paragraph of the syllabus is as follows:

“It is not possible to define the term ‘res gestae’ by any exact definition which will fit all cases. The term in a general way may be defined as the circumstances, facts, and declarations which grow out of the main fact and shed light upon it and tend to explain it, are voluntary and spontaneous, and made at a time so near, either prior or subsequent to the main act, as to exclude the idea of deliberation or fabrication.”

In Cook v. State, 27 Okla. Cr. 215, 226 Pac. 595, this court in the first paragraph of the syllabus states as follows :

“Hearsay evidence may be admissible as a part of the res gestae. One of the recognized exceptions to the rule that hearsay evidence is not admissible is where spontaneous statements or exclamations are made by an injured person, declaring the circumstances of the injury, where such statements are made immediately after the injury or during such indefinite time thereafter as the stress of pain, fear, or excitement prevents the reflective faculties of the narrator to control, so that the utterances are spontaneous and in direct response tO' the sensations produced by the physical shock or mental excitement. The utterances, to come within the exceptions to the rule, must be under the uncontrolled domination of the senses, so near in point of time that considerations of self-interest and reflection could not have been fully restored.”

In this case the witness fixes the time the deceased arrived at his house, and it would seem from the distance the deceased traveled to reach the home of the witness Gillispie, would not require more than thirty or forty minutes, and the declaration as to what occurred at the time, under the circumstances, we believe effectually excludes the presumption that they were the result of premeditation or design, and that such statements as made by the deceased to the witness Gillispie were of the very highest importance in the case, and that the court did not err in admitting the evidence of the witness Gillispie as to the statements made by the deceased.

It is next urged by the defendants in their ninth assignment of error, that the court committed error in permitting the state to introduce evidence pertaining to the alleged dying declaration made by the deceased; that the action of the court in admitting the statement as a dying declaration and testimony as to what was said by the deceased at the time the dying declaration was reduced to writing was prejudicial to the rights of the defendants; and the defendants urge that the statement was not the statement of the deceased but the dictation of the county attorney, at least in some particulars. The defendants insist that the statements were not made under a sense of impending death and without a hope of recovery of the deceased at the time such declarations were made, and should not have been admitted in evidence; citing Bilton v. Territory, 1 Okla. Cr. 566, 99 Pac. 163, in support of their contention. The third paragraph of the syllabus in that case reading as follows:

“In order to render dying declarations admissible, it must be shown that the declarant was not only in articulo mortis, but under the sense of impending death, without hope of recovery, at the time such declarations were made.”

And the defendants then urge at length the questions that were propounded to the deceased, and the answers by the deceased such as to show that they were not intended to be admitted as dying declarations. The defendants cite in support of their contentions, the case of Peoples v. Smith, 164 Cal. 451, 129 Pac. 789; Wratislaw v. State, 18 Okla. Cr. 150, 194 Pac. 273.

The record in this case shows that the written dying declaration of the deceased was taken during the morning of the day he died; that immediately after the conclusion of the tailing of the statement he was taken to the operating table and given an anaesthetic and never regained consciousness. The record further shows that the wounds inflicted upon the deceased were fatal wounds, from the effects of which he died. That the deceased was advised by the attending doctor that he would soon be placed on, the operating table and might not wake up, and deceased said he wanted to tell everybody good-bye.

In Canty v. State, 20 Okla. Cr. 114, 201 Pac. 531, the second and third paragraphs of the syllabus are as follows:

“It is the province of the court to determine, in the first instance, the admissibility of declarations offered in evidence as dying declarations.”
“Where it is shown that deceased had been advised by the attending physician, and that the advice was such as to induce in his mind a belief that recovery was impossable and death impending, a declaration, made by deceased after he had been so advised, is admissible as a dying declaration.”

In McClendon v. State, 36 Okla. Cr. 11, 251 Pac. 515, the first paragraph of the syllabus is as follows:

“To warrant the admission of a statement as a dying declaration, it is not essential that there be an express declaration that declarant is going to die, or that he has no hope of recovering. It is sufficient if it satisfactorily appears that . * * * he could not survive, whether it be directly proven by the express language of the declarant or from the other circumstances of the case, such as the nature and extent of the injuries, his evident danger, the opinion of medical attendants, stated to him, or the length of time between the time of statement and death.”

In the body of the opinion it is said:

“It is not essential that there be an express statement that declarant is going to die or that he has no hope of recovery. If the circumstances, the nature and extent of the injuries, his evident danger, or the opinion of medical attendants, stated to him, or other circumstances, such as the length of time between the time of the statement and death, make it evident that he believed he could not survive, they are sufficient to make the declaration admissible. Under this rule, announced many times by this court, the statement was properly admitted as a dying declaration. Hawkins v. State, 11 Okla. Cr. 73, 142 Pac. 1093; Poling v. State, 12 Okla. Cr. 27, 151 Pac. 895, Ann. Cas. 1918E, 663; Allen v. State, 16 Okla. Cr. 136, 180 Pae. 564.”

It is a universal rule that before dying declarations can be admitted in evidence, it must appear that they are made under a sense of impending death, but it is not necessary that the person making them state at the time they are made he is going to die, as that fact may be proven, not only by what the declarant said but also by his condition, by the nature or extent of his wounds, or from his conduct, or other circumstances of the case. We hold that the court properly admitted the statements of Dr. Taylor and the statements of the deceased reduced to writing a few hours prior to his death as dying declarations.

The defendants urge in their' fourth assignment of error the misconduct of one of the jurors sufficient to entitle them to a new trial. Where it is claimed there is misconduct by a juror, by reason of separation or having conversation with some one before the case is finally submitted, the burden is on the defendant to show that he suffered some prejudice by reason of the separation. Chappell v. State, 44 Okla. Cr. 267, 280 Pac. 639, and cases therein cited.

There is nothing in the record to show that the rights of the defendant were in any way whatever prejudiced, by the conversation had by one of the jurors with a friend as the jurors were being taken in to a restaurant to get their meal, therefore this contention is without merit.

The defendants urge that the court should have sustained their motion for a new trial. After a careful examination of the record we find that the facts in the case, if believed by the jury, were sufficient to sustain the verdict. If the facts in this case are true, these defendants are guilty of conduct unworthy of the respect of any good citizen, and they are guilty of wantonly and wilfully taking the life of a poor unfortunate weak-minded boy.

There are other errors assigned but they are not considered of sufficient merit to warrant this court to reversing this cause. After a careful study and reading of the record in this case, we fail to find any error prejudicial to the rights of the defendants of sufficient merit to reverse the case. The defendants were accorded a fair and impartial trial; the court substantially instructed the jury as to the law applicable to the facts in the case. No fundamental or prejudicial errors appearing in the record, the judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


source: Caselaw Access Project

author: CHAPPELL, J.

license: Public Domain

text:
    CARL GRIFFIN v. STATE.
    No. A-6988.
    Opinion Filed Jan. 31, 1930.
    (287 Pac. 820.)
    L. A. Wallace, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the superior court of Okmulgee county of the crime of burglary in the second degree and sentenced to serve a term of three years’ imprisonment in the state penitentiary.

' The evidence of the state substantially established1 that: • The defendant lived in the city of Henryetta. On the night of February 25, 1927, while J. B. Hopkins and his family were away from his residence, which is located in the city of Henryetta, the residence was broken into by some person picking the lock on the front door of the house. About 8:30 that evening, J. B. Hopkins’ son returned to the home and noticed a light in the lower floor of the house. This light was turned out when he drove up, and Hopkins ran toward the front of the house to see if anybody would come out that way and then returned to the back of the house, and again to the front, and again to the rear. When he started back toward the front of the house the third time, two men darted from the house. Hopkins gave chase and caught this defendant about 150 feet from the house. A neighbor of Hopkins ran up and held the defendant until the police arrived and took him to jail. The only thing missing from Hopkins’ house was a pistol, and this was later found in the home of the defendant.

The only defense interposed to the charge by this defendant is that he was so drunk on that occasion that he did not know what he was doing and that he has no recollection of having entered the home of Hopkins. At the time of his arrest, however, he had in his possession a flash-light and also a spatula with which he had evidently picked the lock on the front door of Hopkin’s house. The pistol found in the defendant’s home was identified as the pistol of Hopkins, and the younger Hopkins testified that the defendant Was one of the men who ran from the house when he returned to his father’s home.

The defendant first contends that the evidence is insufficient to sustain the conviction for the reason that the evidence as a whole showed the defendant to be in such a state of intoxication as to render his mind incapable of forming a specific intent to commit the crime. There is some evidence tending to show that the defendant had been drinking that evening, but all the disinterested witnesses testified that he was not in such a state of intoxication as to render him irresponsible for his conduct or to prevent him from forming the illegal intent required as a basis for the commission of the crime.

Tom Hopkins testified:

“Q. What was his condition that night with reference to being drunk or sober? A. He seemed to be a normal man, in awful good fighting condition.”

Jim Stormont, police chief:

“Q. What iwas the condition of this defendant with reference to! being drunk or sober? A. Well, I could smell liquor on him.
“Q. He was pretty drunk, wasn”t he, Mr. Stormont? A. I wouldn’t say he was drunk, he could handle himself pretty well.”

C. W. Boots, deputy sheriff:

“Q. What was his condition as to being drunk or sober? A. Acted sober to me.”

S. A. Hamil:

“Q. I will ask you to state, Mr. Hamil, from your observation of him, talking with him, that night, are you able to tell the jury whether he was intoxicated? A. Very little, if any, would be my observation.
“Q. Did he talk like a rational man? A. Yes, he talked like a rational man.”

Defendant testifying in his own behalf said he was drunk and had no remembrance of the entrance into the home or how he got there. Witness Price, a codefendant, testified that the defendant had been drinking that day. The question of whether the defendant was so drunk that he 'was incapable of forming the intent to commit the crime was one of fact for the jury. There is ample evidence to establish the fact that the defendant was sufficiently sober.at least to know what he was doing and the evidence was therefore sufficient to support the verdict of the jury.

It is next contended that the trial court erred in the admission of certain incompetent, irrelevant, and immaterial evidence. The evidence complained of was brought out by the defendant on cross-examination of the witness Stormont, testifying for the state, in which the defendant elicited from such witness the fact that defendant loafed around “choc” joints and that he had been run out of town by the witness as chief of police. This court has repeatedly held that an appellant will not be permitted to profit by any alleged error which he or his counsel in the first instance invited by opening the question or by their own conduct. Defendant had called ¡witnesses who testified to his good character, and Avhen the Avitness Stormont was being cross-examined it appears that counsel was trying to discredit the Avitness by asking him to name a single time when he had arrested the defendant or when the defendant had done any act which indicated that he was a man of bad character. On redirect examination the court permitted the state to go into these matters in order that the witness might explain the reason why he believed the general reputation of this defendant as an upright and law-abiding citizen was bad. Counsel for defendant invited Avhatever error was occasioned by the admission of this alleged incompetent evidence and cannot profit by the same. Carter v. State, 6 Okla. Cr. 232, 118 Pac. 264; Boswell v. State, 8 Okla. Cr. 152, 126 Pac. 826; Klein v. State, 15 Okla. Cr. 350, 176 Pac. 414; Davis v. State, 35 Okla. Cr. 156, 249 Pac. 164.

It is next contended that instruction No. 6 is erroneous.

Instruction No. 6 reads as follows:

“In this case, the defendant, Carl Griffin, does not deny he entered the home of the prosecuting 'witness, Hopkins, but says he was intoxicated to such an extent that he did not know what he was doing,, or where he was, or anything that happened. In this connection, you ¿re instructed that voluntary intoxication is no defense to the commission of crime, but where it appears that a defendant is in such a state of intoxication as to render the mind incapable of forming or entertaining the specific intent essential to constitute the offense charged, a verdict of not guilty should toe returned. Whether or not such a state of intoxication existed is a question of fact for the jury. So, if you believe and find from the evidence in this case, that the defendant, Carl Griffin, was under the influence of intoxicating liquors, at the time of the offense alleged in the information, to such an extent that his mind was incapable of forming a specific intent to enter and burglarize the home of the prosecuting witness, and that he did not kndw what he was doing, and had no felonious intent to commit said' crime, or if you have a reasonable doubt thereof, it will be your duty under the law, not to convict him for the crime of burglary, as alleged in the information.”

It is contended that this instruction left the jury in doubt as to how to apply the clause, “and that he did not know what he was doing.” The only evidence in the record to the effect that he did not know what he was doing was given by the defendant himself, and if the jury was misled by this instruction it was because the defendant himself had not made himself clear. The instruction was applicable to the defendant’s testimony. While the instruction is not as skillfully drawn as it might have been, we apprehend that the jury did not have any difficulty in applying the law as contained in the instruction as to the defendant’s theory of the case and to his testimony. The defendant admitted that he Avas in the home of Hopkins. The fact that he ran when the son returned to the home, the fact that a flash-light and spatula were found in defendant’s possession, and the fact that a pistol taken from Hopkins’ home Avas found in defendant’s home shortly after the entering, together with the evidence of disinterested ¡witnesses as to the defendant being sober and all the other facts and circumstances offered in evidence, are sufficient to support the verdict of the jury.

The errors of law complained of not being fundamental, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


author: EDWARDS, P. J.

text:
    MIRL FOSTER et al. v. STATE.
    No. A-7053.
    Opinion Filed Jan. 31, 1930.
    (287 Pac. 787.)

      L. C. McLean, for plaintiffs in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiffs in error were convicted in the county court of Garfield county on a charge of having the possession of a still; defendant Mirl Foster was sentenced to serve six months in the county jail and to pay a fine of $500; defendant Robert Foster was sentenced to serve three months in the county jail and to pay a fine of $250.

Judgments were rendered on February 6, 1928, and the appeal was lodged in this court June 5, 1928. No extension of time for filing the appeal appears. By section 2808, Comp. Stat. 1921, an appeal from a conviction for a misdemeanor must be taken within sixty days after judgment, unless the court or judge, for good cause shown, extend the time not to exceed sixty days additional. The sixty days Iwithin which the appeal could have been taken expired, and there has been no extension of time by the court or judge. The appeal was filed too late.

The appeal is dismissed.

DAVENPORT and CHAPPELL, JJ., concur.


author: CHAPPELL, J. CHAPPELL, J.

text:
    OTIS COLLINS et al. v. STATE.
    No. A-7003.
    Opinion Filed Jan. 4, 1930.
    On Rehearing Feb. 15, 1930.
    (288 Pac. 353.)

      Britton H. Tabor, for plaintiffs in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of McIntosh county on a charge of having possession of intoxicating liquor, to wit, six gallons of whisky, and their punishment fixed at a fine of |50 and confinement in the county jail for a period of 30 days for each of them.

The evidence of the state was that the officers went to the premises occupied by the defendants with a search warrant for the purpose of searching the premises. When the officers reached the house occupied by the defendant Seism, not finding the defendant at home, they tried to serve the copy of the warrant on a daughter of the defendant. She rushed to the back of the house and fired a gun apparently as a signal. The officers immediately left the house and scattered over the premises, and after a short time found a 50-gallon copper still with 6 gallons of whisky, 3 barrels of beer, some empty barrels and jugs. A team was in the orchard near the house with fresh tracks leading from the team to' the still, and also fresh tracks leading from the house of the defendant Collins, who lived on the same premises. The evidence of the state further shoWed that the tracks that led from the team to the still were different from those that led from the home of Collins to the still.

The defendants denied that they were the owners of or in possession of the still, or that they knew anything about the liquor. The court instructed the jury properly on circumstantial evidence.

This court has repeatedly held that, where there is any competent evidence in the record supporting the verdict of the jury, a ndw trial will not be granted because of insufficient evidence. Adams v. State, 43 Okla. Cr. 179, 277 Pac. 688; Miller v. State, 43 Okla. Cr. 184, 277 Pac. 687; Burrows v. State, 43 Okla. Cr. 256, 277 Pac. 685.

There being competent evidence in the record to support the verdict of the jury, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.

On Rehearing.

CHAPPELL, J.

On the 4th day of January, 1930, an opinion was handed down in this case affirming the conviction as to both the defendants. The defendant George Seism has filed a petition for rehearing on the ground that the evidence was insufficient to support the verdict of the jury as to him..

The petition for rehearing is granted, and, upon a further consideration of the evidence, the court is of the opinion that there is not evidence sufficient in the record to support the verdict of guilty as against the defendant George Seism.

For the reasons stated, the cause is reversed as to him.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    WILLIE RITCHIE et al. v. STATE.
    No. A-6984.
    Opinion Filed Feb. 15, 1930.
    (287 Pac. 1110.)
    A. J. Stevens and L., Z. Lasley, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiffs in error, Willie Ritchie and Guy Rhodes, hereinafter called defendants, were jointly informed against, tried, and convicted in the district court of Woods county for the crime of larceny of live stock, and each sentenced to serve a term of two years in the state penitentiary.

The evidence of the state was that Noah McGinnis was the owner of a red calf about one Iweek old which he kept in a lot on his farm not far from his residence; that on the 16th day of September, 1927, McGinnis and his wife met the defendants and Milo Brewer riding in a spring wagon, driving a brown horse and a gray mule and leading a couple of horses behind the wagon; that on the morning of September 17th, McGinnis and his wife were awakened by a noise on the public highAvay in the vicinity of their coav lot; they looked out the door and saw this spring ¡wagon with the gray mule and the brown horse hitched to it with the two horses being led behind and heard a noise like somebody putting the calf into the Avagon; that they followed the tracks of this wagon for about four miles, and overtaking defendants and Brewer asked them what they did with the calf. Defendants denied having the calf, and a search failed to disclose the calf. On the next morning McGinnis ¡went back to the place where he had overtaken defendants and there found the calf across the fence on the Schupbach’s place near where he overtook the defendants the night before. Later in the day defendants came back to Schupbach’s place riding in the same spring wagon but driving a different team.

Milo Brewer, an accomplice, testified that he and the defendants took the calf from McGinnis’ lot and hauled it away in the spring wagon; that when they saAV McGinnis following them they put the calf over the fence at Schupbach’s place; that they went back the next morning to see if the calf had. been found; that defendant Ritchie offered him a horse, saddle, and $5 to leave the country so Ritchie and Rhodes could swear that it was Brewer that stole the calf. There is evidence in the record that defendants admitted they took the calf but claimed they did it in fun. Neither of the defendants took the witness stand, but each produced witnesses to testify that they had a good reputation for honesty and as law-abiding citizens prior to the commission of this offense.

Defendants contend the court erred in overruling the demurrer to the information for the reason that the description of the property was insufficient. to put the defendants on notice. The property was described as, “one red calf of the age of one week, of the personal property of one Noah McGinnis.”

This court has repeatedly held that the description was sufficient where the class of animal as “two certain cows” was the only description in the information. Roebuck v. State, 14 Okla. Cr. 241, 170 Pac. 277; Adair v. State, 15 Okla. Cr. 619, 180 Pac. 253; Martin v. State, 35 Okla. Cr. 248, 250 Pac. 552; King v. State, 44 Okla. Cr. 311, 280 Pac. 855.

The defendants next contend that there was a fatal variance between the date of the crime as alleged in the complaint and the date as alleged in the information. The complaint alleges the crime to have been committed on the 17th day of August, 1927, while the information alleged that it was committed on the 17th day of September, 1927. Time is not the essence of the offense of larceny, and the date of the commission of the offense may be proven to be within three years prior to the date of the commencement of the prosecution.

The defendants next contend that the evidence is insufficient to sustain the verdict and judgment for the reason that the only evidence in the case -which in any way connects the defendants with the commission of the crime is the testimony of Milo Brewer who was an accomplice, and that his testimony was not sufficiently corroborated. It is not necessary that the accomplice be corroborated on every point, but it is sufficient if he be corroborated by the facts and circumstances and other evidence tending to connect the defendants with the commission of the offense charged. There is sufficient evidence is the record corroborating the evidence of the witness Brewer to sustain the verdict of the jury.

Defendants next contend that the court erred in permitting the state to read the transcript of the evidence given by the witness Brewer in a former trial of the case for the reason, that no proper showing Was made that Brewer was out of the state and his evidence could not be procured for the trial. The state offered evidence to show that Brewer was out of the state at the time of the trial and had been out of the state for some days prior thereto; that he was sick and confined in a hospital at Wichita, Kan.; and that bis attendance could not be procured at the time of the trial. Where it is shown by the evidence that at the time of the trial any witness is absent from the state, that is a sufficient predicate to authorize the reading of said witness’ testimony given at a preliminary examination or former trial where defendant had been confronted by the (witness and had been given opportunity for cross-examination. Edwards v. State, 9 Okla. Cr. 306, 131 Pac. 956, 44 L. R. A. (N. S.) 701; Baldock v. State, 16 Okla. Cr. 203, 182 Pac. 265; Burns v. State, 37 Okla. Cr. 435, 258 Pac. 926.

The defendants also contend that the evidence offered by the state to show absence of the witness from the state was hearsay, and therefore incompetent and insufficient to prove absence of the witness. The proof that a witness is a nonresident of, and is absent from, the state, offered as a predicate for introducing in evidence a transcript of the testimony of such witness, taken at a preliminary hearing, is not incompetent as hearsay, although based upon statements made to the witnesses by whom such proof of nonresidence and absence is made, since the fact of nonresiden.ee or absence can generally be proven in no other manner. Henry v. State, 32 Okla. Cr. 67, 240 Pac. 128.

The defendants next contend that the court erred in giving instruction No. 3. In this instruction the court told the jury that if the testimony of the witness Milo Brewer was true, then he was an accomplice with the defendants and his evidence would have to be corroborated. Under the facts in the case it was the duty of the court to give this instruction.

Defendants also complain because the trial court failed to define the word “steal.” In the case of Underwood v. State, 23 Okla. Cr. 119, 212 Pac. 1010, 1011, this court said:

“The word ‘steal’ has a uniform signification in common as well as legal parlance; it means the felonious taking and carrying away of the personal goods of another; it means to take without right, secretly, and without leave or consent of the owner.”

This word has a well-defined meaning, and the instructions were sufficient without a definition of the word.

The proof on the part of the state being ample to support the verdict of the jury and no meritorious defense being interposed, and there appearing no sufficient error in the record to require a reversal, the cause is affirmed.

DAVENPORT, J., concurs.

EDWARDS, P. J., absent, not participating.


author: DAVENPORT, J.

text:
    CHARLEY SMITH v. STATE.
    No. A-6763.
    Opinion Filed Feb. 15, 1930.
    (287 Pac. 1103.)

      Hodge & Schenk, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of the crime of manslaughter in the second degree, and his punishment fixed at two years in the state penitentiary. Motion for a new trial was filed, considered, and overruled, and the defendant has appealed by petition in error with case-made attached to this court.

The first question urged by the defendant is the action of the trial court in overruling his motion to quash the indictment returned by the grand jury against him. The defendant in his action states as grounds for quashing the indictment that the court in issuing his order for drawing the grand jury did not direct the same to the sheriff and court clerk, as the law directs, but to Jesse J. Lasley, deputy court clerk for Carter county, and T. B. McLish, undersheriff of said county; that all of the twenty-four men drawn by the deputy court clerk and the undersheriff qualified; that the said trial judge from the said qualified jurors selected the requisite number necessary for a grand jury without ordering the names of all jurors drawn from the box and qualified as grand jurors placed in the box and shaken Up and a sufficient number drawn from the box to constitute a grand jury.

Section 3517, C. O. S. 1921, provides for calling a grand jury in part as follows:

“Prior to or during any term of court at which a grand or petit jury shall be required, the judge of the district court shall certify to the clerk of the district court the number of jurors that will be required for either a grand or petit jury and shall direct said jury to be drawn and summoned at such time as he may indicate. Upon receiving such order, the clerk of the district court, or his deputy, shall notify the sheriff, or his deputy, of the time of the drawing of such jury, and the sheriff, or one of his deputies, and the clerk of the district court, or one of his deputies, shall take the box containing the names of the jurors so selected, and thoroughly shake the same * * *. The first names drawn, to the number stated in the judge’s order, not to exceed twenty-four, if a grand jury is ordered, shall be summoned as grand jurors, and the grand jury shall be empaneled from said persons.”

It is urged by the defendant that the order of the court filed with the court clerk directing that the deputy court clerk and the undersheriff draw twenty-four names from which a grand jury was to be selected was a violation of the statute, and, by reason of the action of the court, the indictment should be quashed.

It is also contended by the defendant that the indictment should have been quashed because the names of the men summoned to serve as grand jurors were not, after they had qualified as leg’al jurors, placed in a box and twelve names drawn therefrom and the twelve names thus drawn sworn to sit as a grand jury, instead of a selection of twelve from the twenty-four summoned and qualified by the district judge, as was done in this case. There is no contention by the defendant that the district judge did not select from the twenty-four summoned twelve men to sit as the grand jury and that the twelve men selected were impaneled as a grand jury and did return the indictment in this case, nor is there any charge made that the district judge in selecting the grand jury acted improperly in making his selection, nor is it disputed that all of the twelve men selected were qualified to sit as grand jurors. The only question being urged is the manner in ¡which' they were selected. Section 3517, C. O. S. 1921, provides the manner of selecting the members, of the grand jury as follows:

“* * * The first names drawn, to the number stated in the judge’s order, not to exceed twenty-four, if a grand jury is ordered, shall be summoned as grand jurors, and the grand jury shall be empaneled from said persons.”

There is no provision in chapter 7, art. 6, of our Code 'of Criminal Procedure (Comp. St. 1921, §§ 2510-2546), that requires the court when impaneling a grand jury to place the names of the jurors summoned and qualified in a box and then draw the twelve men to constitute the grand jury from the box; the only requirement being that the twelve men selected for a grand jury must be impaneled from the twenty-four persons whose names were first dralwn from the list by the clerk and the sheriff; there being no contention that the officers who drew the list of names from the jury box failed to list the names correctly, nor does the defendant charge any bias or prejudice on the part of any member of the grand jury. The rights of the defendant were not prejudiced. Therefore we hold that the action of the trial court in overruling defendant’s motion to quash the indictment was proper. Gravitt v. State, 44 Okla. Cr. 45, 279 Pac. 968.

It is next urged by the defendant that the court committed error in overruling the demurrer to the indictment. The indictment contains sufficient facts to advise the defendant of the crime of which he stood charged, and the court did not commit error in overruling his demurrer to the same. Martin v. State, 35 Okla. Cr. 248, 250 Pac. 552; Scott v. State, 40 Okla. Cr. 296, 268 Pac. 312.

The defendant in the third assignment of error questions the sufficiency of the evidence to support the verdict and sentence. The evidence on the part of the state is, in substance, as follows:

The defendant was driving a Ford coupe along the public street in the city of Healdton, going in the direction of a town by the name of Wilson. The street on which he iwas driving was a paved street about eighteen feet in width. The accident occurred on the 18th day of November, 1926, about the noon hour. The deceased, Obera Holder, and a young boy by the name of Harrison Bray, were walking east along the paved street on their way to their respective homes from school. The deceased lived' with her parents on a street that ran north and south and on the east side of the street about 15 feet from the intersection ¡with a paved street running east and west on which the defendant was. driving his car. At the time of the accident, the testimony tends to show the defendant, his wife, and a man by the name of Barney Roberts were riding in the seat together. Defendant was driving the car. The testimony further tends to show that the defendant crossed the Ringling Railroad at a point about 229 feet west of where he struck the deceased; that from where he crossed the railroad there was a gradual descent, and there was nothing to obstruct the view of a person driving along the highway in either direction. The testimony further tends to show that, after defendant crossed the railroad tracks going east, J. W. Harris, who was driving a water wagon, was driving along the street between defendant’s car and where the deceased and her companion were walking, and, just before the defendant struck the deceased with his car, Harris turned south off of the street at a point about 143 feet east of the railroad crossing and 86 feet east of the intersection of the street running north and south and west of the home of the deceased; that the defendant passed Harris just as he turned to go into the yard, and in so doing turned his car over to the left or to the north side of the paved street; and that up to the time he struck the deceased he had not turned his car back to the south side of the street. Harris, who was driving the water wagon, testified that when he turned off of the street Miss Holder and Bray were about 80 feet east of him, walking along the concrete slab. The evidence further tends to show that, when the defendant’s car struck the deceased, her body was thrown into the air and fell violently to the pavement approximately 15 or 20 feet east of the point where she was struck. Harrison Bray testifies, in substance, that the defendant was driving the car along the north side of the street, and did not sound his horn as he approached the intersection of the street, and that Miss Holder had almost crossed from the south to the north side of the street when the defendant’s car struck her about 3 feet from the north edge of the pavement. The testimony as to the rate of speed the defendant was driving at the time he struck the deceased is conflicting. Where there is any competent testimony to go to the jury and the evidence is conflicting, this court will not attempt to weigh the evidence, but will leave that question to the jury’s determination. In this case, the jury evidently believed the testimony of the witnesses for the state, as shown by its verdict, and, the jury having so decided, this court will not disturb the same. There is sufficient testimony to sustain the verdict of the jury.

The defendant in his fourth assignment contends that the court erred in the admission and rejection of the testimony offered, the admission and rejection of which was prejudicial to the defendant. An examination of the record shows that the court admitted, over the objections of the defendant, the ordinances of the city of Healdton. The question to be determined is not the question as to whether or not the entire ordinances of the city of Healdton were material and relevant, but the question is whether or not the admission of the same prejudiced the defendant’s rights and prevented him from having a fair and impartial trial. The admission of evidence not germane to the issue involved, but which in no way tends to show the guilt of the defendant, while not approved by the court, is not prejudicial error sufficient to warrant this court in reversing the case. The evidence offered must have prejudiced the defendant in order to warrant a reversal. Davis v. State, 15 Okla. Cr. 427, 177 Pac. 625; Waldon v. State, 16 Okla. Cr. 402, 183 Pac. 637.

An examination of the record shows that most of the instructions complained of are applicable to the law of murder or manslaughter in the first degree, of neither of which crimes was the defendant convicted; the defendant being convicted of manslaughter in the second degree. Taking the instructions of the court in their entirety, they substantially covered the law applicable to the facts in this case, and that the technical inaccuracies of which defendant complains did not militate against or prejudice the defendant and are not of sufficient merit to' justify a reversal of this case. The action of the court in refusing to give instructions 2, 3, and 5, requested by the defendant, did not prejudice the defendant, as the court had substantially covered the points in his general instructions.

It is further urged by the defendant that the court erred in overruling his supplemental motion for a new trial based upon the ground of newly discovered evidence. The record discloses that, if the conversation took place between Harrison Bray and Bernice and Joseph Jenkins, it occurred shortly after the killing, and Everett Jenkins, the father of the witnesses whom it is alleged had the conversation with Harrison Bray on the school grounds, was a witness called by the defendant in the trial, and, the father being called as a witness, it is apparent, if the children had the conversation alleged, the father must have known it before the trial. Further, it is apparent that this newly discovered evidence set out in the motion for a new trial, if of importance at all, is of such slight importance to this case as to have had no probable effect on the result of the trial. Under the showing made in this case, we do not think the court erred in overruling the supplemental motion for a new trial.

There are other errors in the record which are not necessary to mention, as they are not of sufficient merit, to justify reversal of the case. The defendant had a fair and impartial trial. The court substantially instructed the jury as to the law applicable to the facts in the case.

Finding no. reversible error, the judgment of the trial court is affirmed.

EDWARDS, P. J., not participating.

CHAPPELL, J., concurs.


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    EARL STRONG v. STATE.
    No. A-7048.
    Opinion Filed Feb. 15, 1930.
    (287 Pac. 1091.)

      C. W. Myers, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was jointly charged with James Parr and Aubrey Kelly, with the crime of robbery with firearms, was separately tried and convicted, and sentenced to be confined in the state penitentiary for a period of twenty-five years. Defendant’s motion for new trial was duly considered and overruled, and the case appealed to this court by case-made with petition in error attached.

The testimony on behalf of the state is as follows: J. C. Pointer testified, in substance, that:

“Ward McCann and I met Bill and Mildred Jones at the corner of First street and Robinson avenue, in Oklahoma City, about 9 o’clock the evening of October 7, 1927, and drove McCann’s automobile a mile.and a half east of the State Capitol on Twenty-Third street, and then turned south and drove about a half mile and stopped the automobile and turned out the lights; in about ten minutes another car with three men in it passed the car, and immediately after they passed they stopped the car and ordered us to get out at the point of a revolver, and took from me a billfold containing $12 and a Iwrist watch.”

Witness stated the size of one of the men that participated in the robbery was about the size of the defendant, but he could not positively identify the defendant, Earl Strong, as being one of the robbers.

Ward McCann testified, in substance, the same as did J. C. Pointer; and stated wbat the robbers took from him. McCann identified Earl Strong as being one of the robbers. Billy Jones testified in substance the same as McCann and Pointer, and stated her sister Mildred was in New Mexico; she stated she could not identify Earl Strong as one of the men who robbed them. Prom the testimony contained in the record the only witness who attempted to identify Earl Strong was Ward McCann; all of the witnesses testifying it was dark and that the robbers used a flashlight.

The defendant offered as his defense an alibi. He called J. T. Nelson, 'who testified in substance that he owned a barber shop and confectionery in Packingtown; that he knew Earl Strong; that Earl Strong was at his place of business between 8 and 9 o’clock, October 7, 1927, the night it is alleged the robbery took place. Packing-town being in the southwest part of Oklahoma City, and. the alleged robbery taking place about two miles east of the State Capitol.

Alvin Essary testified he saw Earl Strong between 8:30 and 9 o’clock on the night of the robbery in a confectionery in Packingtown. Prank Sakaley testified he saw Earl Strong at the drug store in Packingtown about 8 p. m., the evening of the alleged robbery. Harry Tralinger also testified that he saw Earl Strong in Packing-town, the night of the alleged robbery, about 8 o’clock that evening.

R. C. Strong, the father of the defendant, testified he was employed at Wilson & Company plant, in Oklahoma City; that he went to bed at 8:30 p. m. October 7, 1927; he got up at 9:45, and saw Earl Strong in bed in his room; he was up again at 11:30 and Earl was still in bed. John Gharron testified he took Earl Strong’s sister home from the public library in Oklahoma City, reaching there about 10:30, and that he saw some one asleep where it is alleged Earl Strong slept. Elizabeth Strong, the nineteen year old sister of the defendant, testified that when she arrived home about 10:30 Earl Sti’ong was asleep on a cot. Mollie Ballard also confirmed the testimony as to the time Elizabeth Strong and John Gharron reached home.

The defendant in his own behalf denied having anything whatever to do with the robbery, and in detail told where he was the afternoon of the day of the alleged robbery at night up until the next morning, and stated he was at his father’s home; that he had 'been in Packingtown all that evening up until the time he returned home and went to bed; he had visited with several parties in the confectionery and other places.

In support of a supplemental motion for ,a new trial, the testimony developed that on the night of the alleged robbery for which the defendant was charged, three men a short distance away from where this robbery took place held up and robbed the occupants of another car, and they found near where the robbery of this car took place some cards of Ward McCann and other papers that had been taken from him in the robbery for which this defendant was tried. It was brought out in the hearing, of the supplemental motion that subsequent to the defendant’s trial this testimony was used in the trial of James Parr and Aubrey Kelly, and they were acquitted by a jury. The defendant insists that he should have been granted a new trial, and in support of that has assigned ten errors alleged to have been committed in the trial of his case. The defendant urges that the court erred in overruling his objection to going to trial for the reason that a list of the 'witnesses who were to testify against him had not been furnished him as required by law. An examination of the record shows the list of the witnesses called by the state to testify against him had been served upon him, the number of days prior to calling the case for trial as required by the statute, and that the only complaint of the defendant is that the street addresses given of some of the witnesses were not correct at the time the list was served on the defendant. The record further shows that all of these witnesses were used in the preliminary hearing, and that the defendant had knowledge of who the witnesses were and had ample opportunity and time to locate them. In Little v. State, 25 Okla. Cr. 190, 219 Pac. 424, this court in the first paragraph of the syllabus said:

“The omission of the post office addresses of certain, witnesses for the state, on the list of witnesses for the state served on the defendant, is not vital, where the post office addresses are known to the defendant, and 'where each of the witnesses had testified; and been cross-examined at the preliminary trial.”

It is next urged by the defendant that the court made unfair comments during the cross-examination of the witness Ward McCann which was prejudicial to the rights of the defendant and deprived him of a fair and impartial trial. We have examined the record and read the remarks made by the court in the taking of the testimony, and we do not think the remarks complained of by the defendant in any way whatever indicated to the jury the opinion of the court upon any fact brought out by the testimony in the case. All defendants, whether guilty or innocent, are entitled to have the facts determined by a jury Without any intimation or comment from the trial judge. We fail to find in any of the remarks of the court anything that would indicate a disposition on the part of the court to be unfair, or that anything said by the court in any way whatever tended to show his bias or prejudice in the case.

It is next contended by the defendant that the trial court erred in permitting the state to introduce certain evidence alleged to be prejudicial to the defendant. Said evidence complained of by the defendant being as follows:

“Q. I will ask you since that time if anyone has approached you with threats concerning your testimony in this lawsuit if you testified against Earl Strong and Aubrey Kelly and James Parr? A. Yes, sir.
“Q. I will ask you to state whether or not Mr. Mackey, the attorney in this case, called you to his law office in the past few days and talked to you concerning your testimony in this case? A. Yes, sir.
“Q. Are you afraid to testify against these boys? A. I am. * * *
“Q. That was not Earl Strong? A. No.”

An examination of the record shows that no objections were made by the defendant to the questions complained of, and the answers of the witness to the same. The testimony, if objected to at the time by the defendant, would in all probability have been excluded by the court, as it was not admissible. However, if the defendant desires to preserve his record it is his duty to object to the questions when propounded to the witness, and if his objections are overruled and the witness allowed to answer the questions, then move to strike the questions and answers, and if his motion is denied, to save an exception, and not sit idly by and wait until after a conviction is had and then complain of the action of the trial court in admitting improper testimony.

It is next contended by the defendant that the trial court erred in sustaining certain objections to oral evidence offered by the defendant, as to evidence given by certain witnesses in a former trial.

Before the testimony offered by the defendant could properly be admitted, it was the duty of the defendant to show that in the former trial of the case no record was] kept of the testimony, and the subject sought to be inquired about was material to the issue of the case on trial. No effort was made by the defendant to show that the testimony offered and excluded by the court was material to the issue in this case, nor was there any testimony offered to show that in the case inquired about the testimony was not reported. We hold the court was correct in its ruling.

It is next urged by the defendant that the court erred in giving instruction No. 9, as to the law of an alibi. The question of a proper instruction upon the law, when the defense interposed is an alibi, has been before this court often. In Spess v. State, 20 Okla. Cr. 94, 201 Pac. 395, this court approved the instruction in form and substance the same as the instruction complained of in this case, citing Thompson v. State, 6 Okla. Cr. 50, 117 Pac. 216.

The holding of the court in Spess v. State, supra, conclusively settles the question as to the proper instructions upon the evidence of an alibi, and the trial court did not err in giving instruction No. 9 complained of by the defendant.

It is next contended by the defendant that the verdict is void and insufficient upon which to base a judgment of conviction. Section 2738, C. O. S. 1921, reads as follows:

“A general verdict upon a plea of not guilty, is either ‘guilty,’ or ‘not guilty,’ which imports a conviction or acquittal of the offense * * * it is either ‘for the state,’ or ‘for the defendant.’ When the defendant is acquitted on the ground that he was insane at the time of the commission of the act charged, the verdict must be ‘not guilty by reason of insanity.’ When the defendant is acquitted on the ground of variance between the charge and the proof, the verdict must be ‘not guilty by reason of variance between charge and proof’.”

The verdict returned against the defendant in this case, omitting the caption, is as follows:

“We the jury drawn, empaneled and sworn in the above entitled cause, do upon our oath find the defendant guilty and fix his punishment at twenty-five years in the state penitentiary.”

The defendant complains of the form of the verdict, and discusses the question of his not being present at the time the verdict was rendered, and the court not appointing any one to represent him. There is no charge that the jury did not return a verdict in form as set forth herein, nor is there any contention that the court in any way whatever interfered with the jury in returning its verdict. The contention of the defendant we think is (Without merit. This court at a very early date had this question before it in the case of Williams v. State, 11 Okla. Cr. 82, 142 Pac. 1181, 1182; the form of the verdict in that case being similar to the verdict in this case, and which verdict reads as follows:

“We, the jury, sworn and impaneled in the above entitled cause, do upon our oaths find the defendant guilty and assess his punishment at two years in state penitentiary.”

The defendant in this case was advised of the charge against him, and the jury by its verdict showed that it was finding the defendant guilty of the charge. The verdict in this case is sufficient, although it is not in proper form. The counsel for the defendant knew the charge filed against the defendant and the nature of the crime for which he .was being tried. The verdict was sufficient to warrant the court in rendering judgment on the same, and sentencing the defendant to the penitentiary.

It is next urged by the defendant that the court erred in permitting the witness Morris to testify over his objection to certain statements made by the brother of the defendant in the presence of the witness. The conversation being as follows:

“Q. All right, I wish you would tell the jury just what the conversation was you heard there and the circumstances under which you heard it?
“Mr. Mackey: Just a moment. That was a conversation between the defendant—
“A. Earl Strong and his brother?
“Mr. Mackey: Earl Strong and his brother?
“A. Yes, sir.
“Mr. Mackey: To which the defendant Earl Strong objects as being incompetent, irrelevant and immaterial.
“The Court: Overruled.
“Mr. Mackey: Exception.
“A. When we was bringing the boys out of the office after we had them there for identification, the girls were up there; Earl’s brother was at the head of the stairs waiting to see him as he c ame out. Earl asked me if he could see him and have him get some cigarettes for him. I told him he could. He walked over to him and said, ‘Don’t worry.’ ”
“Mr. Mackey: Who said that?
“A. His brother said, don’t worry, we are framing an alibi for you. Earl told him to keep his mouth shut or keep your damn mouth shut, or something.”

The defendant insists that this testimony was prejudicial for the reason that the defendant in the trial of the case offered as a defense an alibi. In Loudenback v. Territory, 19 Okla. 199, 91 Pac. 1030, 14 Ann. Cas. 988, the Supreme Court of the territory passed upon a similar question to the question raised here, and in the third paragraph of the syllabus said:

“A prosecution may on a trial show by the testimony of other witnesses a conversation between a defendant and. another party; and it may prove the statements made by both the defendant (which are in the nature of admissions against his interests) and by the other party to the defendant. But it is for the jury to say, from all of the conversation, as to whether or not the statements made by the defendant are admissions against his interest.”

The admission in this case of the statement of the brother of the defendant, and the defendant’s reply, was not such an error as to warrant this court in reversing the case, and as the language used by the defendant in the Conversation could only be interpreted to mean that he desired his brother not to discuss the case in the presence of the other parties, it should not be considered as a declaration against his interest, or prejudicial to his rights.

It is next contended by the defendant that he should be granted a new trial upon his supplemental motion on newly discovered evidence. This showing is not sufficient to Warrant this court in reversing this case, as it is apparent from the record that if the defendant had used due diligence he could have learned what the testimony of the witnesses would be, as they had testified in the preliminary against the defendant when they were charged with robbing their car, which was alleged to have been '■•robbed a short distance from where the car the defendant ■is alleged to have assisted in robbing. Several witnesses testified in this case in support of the defendant, as to having seen the defendant in Packingto/wn on the evening of the alleged robbery, which was in the southwest part of Oklahoma City, and the robbery is alleged to have taken place east of Oklahoma City about a mile and a half from what is known as Twenty-Third Street road. The defendant was identified by only one witness. The credibility of the witnesses and the weight of the evidence was a question for the jury. It is apparent from the record that the defendant’s previous record greatly influenced the jury in arriving at a verdict of guilty.

Where the jury hears the testimony and the instructions of the court, and has an opportunity to-judge of the demeanor of the witnesses upon the stand, and arrive at a verdict of guilty, this court is not disposed to disturb the same. In this case the defendant, if guilty, was assisted by two other parties. The defendant says he was not guilty nor was he present. The instructions of the court correctly advised the jury as to the law. The penalty imposed in this case, when considered in light of . all the facts and circumstances surrounding the same, is excessive, and we think the requirements of the law would be met by a modification of this sentence from twenty-five years to fifteen years, and as so modified the judgment is affirmed.

CHAPPELL, J., concurs.

EDWARDS, P. J., not participating.


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    FRANK LASLEY v. STATE.
    No. A-7057.
    Opinion Filed Feb. 15, 1930.
    (287 Pac. 1055.)
    Meacham, Meacham & Meacham, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Washita county on a charge of grand larceny, and his punishment fixed by the jury at imprisonment in the state penitentiary for a term of three years. It is from this conviction that he appeals.

Tlie evidence of the state shows that on the 7th of October, 1926,. the defendant and Delmar Rhodes, who was jointly charged with defendant, stole some goods and merchandise from a freight car which was located on the side track of the Rock Island Railroad Company in Weather-ford in Custer county, and took the property to the farm of Glen Lasley, a brother of the defendant, which farm was located in Washita county. This prosecution was instituted in Washita county under the provisions of section 2433, O. O. S. 1921, which reads as follows:

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

After the stolen goods had been taken to the farm of Glen Lasley, where both defendant and Rhodes were staying, they were afterwards removed to Caddo county, where the stolen property «was afterwards found. Edgar Klein, a witness for the state, testified that he assisted the defendant and Rhodes in moving this property from the Glen Lasley farm in Washita county to the place where it was found in Caddo county, but testified that he had nothing whatever to do with the original taking of the goods from the freight car at Weatherford and the asportation to the farm of Lasley in Washita county. The defendant, learning that officers were investigating the theft of the goods, fled, and was arrested about a year later in San Diego, Cal. Defendant did not testify in Ms own behalf at the trial, but did offer evidence to impeach the witness Edgar Klein as to truth and veracity. The evidence of the state established the stealing of the goods from the possession of the Rock Island Railroad Company in Custer county and the asportation of the same to the Lasley farm in Washita county and the finding of the stolen goods in Caddo county.

The defendant first contends that the verdict is not supported by sufficient evidence. His principal contention is that the evidence is insufficient, for the reason that the witness Klein was an accomplice, and that the only evidence connecting the defendant with the crime was furnished by this witness, and that his testimony was not corroborated, as required by section 2701, C. O. S. 1921.

In order to constitute a witness an accomplice in the crime, he must have participated therein either by being present at the time the crime was committed, or, if absent, by counseling and advising the active participants in the crime and encouraging its commission by words, acts, or deeds. It is not contended by defendant that the witness Klein was actually present at the time these goods were stolen from the freight car at Weatherford nor knew that the goods were to be stolen nor that Klein assisted those who took such property, in the original asportation thereof, to the farm of Glen Lasley in Washita county; but it is contended that, because Klein thereafter assisted the thieves to conceal the stolen property by taking it from the point in Washita county where the defendant had transported it to, to the place in Caddo county where the stolen property was found, this action on his part, after knowing the property was stolen, made him a. principal in the original taking.

The real question is Avhether or not the original taking and asportation of the stolen property was complete Avhen the property 'was first taken to the farm of Glen Lasley in Washita county. The stolen goods were removed from the Lasley farm in Washita county to the place in Caddo county where they Avere found, evidently because the thieves thought the property might be discovered if left at the Glen Lasley place. The state contends and is sustained by the record that Klein merely aided the thieves to conceal this stolen property after the larceny thereof had been fully completed. California has a statute the same as Oklahoma.

In the case of People v. Stakem, 40 Cal. 599, in paragraph 2 of the syllabus, that court said:

“In a prosecution for grand larceny, a party defendant who Avas not present, and did not participate in the theft, but subsequently, with a guilty knowledge that it was stolen, received and aided in the disposition of the stolen property, is not, under the statute in this state, an accessory after the fact, but is liable as a receiver of stolen goods as defined by the statute.”

In the case of State v. Dalton, 65 Wash. 663, 118 Pac. 829, that court said:

“An accomplice is one who, iwith criminal intent, acts with others, and participates in the commission of a crime.
“A witness did not become an accomplice in a burglary through knowledge that the goods had been stolen, and through going with one of the burglars to> get goods stolen in the burglary Avhere the latter had placed them.
“Knowledge that a crime has been committed, and concealment of such knowledge, does not make one an accomplice, unless he aided or participated in the offense.”

In Johnson v. State, 24 Okla. Cr. 326, 218 Pac. 179, 181, this court said:

“There can be no accomplice, until it has been shown that the principal committed the offense, and that the accomplice previously advised and abetted, or furnished the means by which the crime was committed by the principal.”

The test by which to determine whether a witness is an accomplice is to ascertain whether he could be indicted for the offense for which the accused is being tried. Mayes v. State, 11 Okla. Cr. 61, 142 Pac. 1049; Motsenbocker v. State, 29 Okla. Cr. 305, 233 Pac. 487.

Under the authorities cited, Klein was not an accomplice, and it was therefore not necessary that his evidence should be corroborated.

It is next contended that the trial court erred in refusing to give a requested instruction to the effect that the witness Klein was an accomplice and that his testimony had to be corroborated. Since Klein was not an accomplice, it was not error for the court to refuse to give the instruction.

It is next contended that the trial court erred in overruling the demurrer to the information. The information charged the crime of larceny to have been committed in Washita county. Defendant contends that the information should have gone farther and alleged that the original taking was in Custer county, and that the stolen goods were afterward carried into Washita county. This question has never been passed upon by this court.

In the case of People v. Mellon, 40 Cal. 648, that court said:

“In a prosecution for larceny, the venue may be laid in any county into which the stolen property may be conveyed.
“When the venue has been laid in the county to which the stolen property has been brought, it is not necessary to state in the indictment, facts showing the commission of the larceny in another county.
“In such case, it is competent to the prosecution to prove that the property was stolen in another county, before it was brought into that in which the venue is laid.”

In the body of the opinion that court said:

“The venue in the indictment is laid in Yuba county. The defendant objected to the admission of evidence to prove that the property was stolen in Sacramento county, on the ground that the indictment alleged that the larceny 'was committed in Yuba county. It is provided by the Criminal Prac. Act (Sec. 92), that when property feloniously taken in one county by larceny, etc., has been brought into another, the jurisdiction of the offense shall be in either county. The statute does not prescribe the form of the indictment in such case, but the offense is considered as committed in each county into which the thief carries the propérty, and each removal of the property isi regarded as a new caption and asportation. It is accordingly held, that it is proper to charge the thief with the commission of the offense in the county into which he took the property. Some of the cases hold that it is not improper to charge him, also, in the same indictment, with the commission of the larceny in the county where the property was first stolen; but none of the cases brought to our notice held that it is necessary. (See 2 Arch. Crim. Pr. 355, and Notes; 2 Bish. Crim. Proceed., See. 687, and Notes). In Haskins v. People, (16 N. Y. [344]) Denio., Ch. J., said: ‘It is unnecessary, and I think it Kvould have been erroneous, to have set out in the indictment the offense in Cayuga county. The courts of Onondaga county had no jurisdiction of that transaction as a distinct offense. It /was simply a matter of evidence, to characterize what was done in Onondaga, and to show the quality of the act.’ The venue was properly laid in Yuba county. It was unnecessary to state in the indictment the facts showing the commission of the larceny in Sacramento county. We are also of the opinion that it was proper for the prosecution to prove that the property was stolen in Sacramento county, before it was taken into Yuba county.” People v. Murphy, 51 Cal. 376; People v. Prather, 134 Cal. 388, 66 Pac. 483, 724; State v. Willette, 46 Mont. 326, 127 Pac. 1013; Watson v. State, 36 Miss. 593; Commonwealth v. Ddwitt, 10 Mass. 154; Haskins v. People, 16 N. Y. 348; State v. Smith, 66 Mo. 61.

The venue was properly laid in Washita county. It was unnecessary to state in the information the facts showing the commission of the larceny in Custer county. It was also proper for the prosecution to prove that the property was stolen in Custer county and was taken into Washita county.

The evidence being sufficient to support the verdict of the jury, and the errors complained of being without merit, the cause is affirmed.

DAVENPORT, J., concurs. EDWARDS, P. J., absent, not participating.


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    OLIVER THOMPSON et al. v. STATE.
    No. A-7082.
    Opinion Filed Feb. 15, 1930.
    (287 Pac. 1086.)

      William Blake and Ed Crossland, for plaintiffs in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiffs in error, hereinafter called the defendants, were convicted in the district court of Tulsa county on a charge of grand larceny, and sentenced to a term of imprisonment in the state penitentiary at Mc-Alester, for a period of three years, and have appealed to this court. Petition, with case-made attached, was filed in this court on June 23, 1928. Under the rules of this court, where an appeal is not supported, it is presumed the appeal has been abandoned or is without merit. In cases of this character the court will carefully examine the record to ascertain whether any fundamental or prejudicial errors were committed by the trial court.

The testimony shows that Oliver Thompson was working for the party from whom the tires are alleged to have been stolen; that Oliver and his brother Joe Thompson entered into an agreement 'whereby they were to steal certain tires from the company Oliver was working for in order to pay off some indebtedness they had; that the tires were finally located at the home of Joe Thompson, and both defendants admit they were tires that had been taken at the place of .business of D. 0. McCreery, doing business as McCreery Tire & Service Company.

After a careful reading of the record, we find that the information charges an offense; that the evidence is sufficient to sustain the judgment; the court in its instruetions correctly gave the jury the law as applied to the facts in this case; that the defendant was accorded a fair and impartial trial; there are no fundamental or prejudicial errors in the record.

The judgment is affirmed.

EDWARDS, P. J., not participating. CHAPPELL, J., concurs.