text:
    DEAN NALL v. STATE.
    No. A-9110.
    Oct. 16, 1936.
    Rehearing Denied Nov. 6, 1936.
    (63 Pac. [2d] 113.)
    Ernest P. Smith, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted of second-degree burglary, and sentenced to be confined in the state penitentiary for a term of two years.

The record in this case was filed in this court on March 25, 1936; no brief has been filed in support of defendant’s assignment of errors. A careful examination of the record discloses no fundamental error. The evidence is sufficient to support the verdict of the jury. The case is therefore affirmed.


source: Caselaw Access Project

author: ITPDEGRAFF, Special J.

license: Public Domain

text:
    E. A. W. CANNON v. STATE.
    No. A-9131.
    Nov. 13, 1936.
    (62 Pac. [2d] 657.)
    Meacham, Meacham & Meacham, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen. (Sam. H. Lattimore, Asst. Atty. Gen., and Lowell R. Smith, Co. Atty., of counsel), for the State.
   ITPDEGRAFF, Special J.

The information, in substance, charged that in the said county, on or about the 26th day of April, 1935, E. A. W. Cannon, the defendant, did willfully, unlawfully, and feloniously and with malice aforethought and with premeditated design to kill and murder one J. L. Whitlock by inflicting certain mortal wounds with a .32-caliber pistol with the felonious intent on the part of him, the said E. A. W. Cannon, to kill and murder the said J. L. Whitlock.

From the judgment rendered November 9, 1935, he appeals.

The only errors assigned are that the court erred in allowing the state to introduce the bloody clothing of the deceased and in overruling defendant’s objection thereto, and that the fifteen-year sentence imposed by the trial court is excessive.

A substantial statement of the evidence is as follows:

Herman Swartz testified that he lived two miles south and a half east of Rocky, and was acquainted with E. A. W. Cannon, the defendant, and had known him about 23 years; that he knew J. L. Whitlock, the deceased, and had known him about the same length of time; that the defendant came to his house about 1 o’clock p. m. on the afternoon of April 26, 1935; that the defendant came to talk to him about the Cannon estate; that he (Swartz) was the administrator of the estate of Sarah C. Cannon, deceased; that some property of the estate was to sell on the following Monday; that the property under discussion was to be sold. At 1:15 p. m. the deceased drove up in a car with Tom Cannon and called him, Swartz, out to the car to engage him in conversation; that the deceased was driving the car and was sitting on the left side under the steering wheel, and T. J. Cannon was seated beside him in the front seat, and that he, .Swartz, got in the back seat; that no conversation was had at that time between the deceased and the defendant. The defendant remained on the premises about ten or fifteen minutes and got in his car and drove off. The deceased, J. L. Whit-lock, and Tom Cannon and Swartz talked about twenty minutes. The defendant returned, stopped his car about fifteen feet from J. L. Whitlock’s car, and the defendant got out of his car and came to the-car in which the deceased was sitting. The defendant opened the car door with his left hand, pulled a pistol out of his right hip pocket, and shot the deceased twice as the deceased sat in the car with his hands resting on the steering wheel. After shooting the deceased twice, he shot his brother, Tom Cannon, once while he was attempting to get out of the car, and once as he was fleeing from the car toward the kitchen door. The defendant fired another shot at him, missing him. The deceased died a few minutes later in the bedroom. The defendant said to Swartz, “I am not going to hurt you or your family. I am getting tired of people meddling in my business.” The witness had, prior to April 26, had a conversation with the defendant concerning the deceased, and the defendant had understood the deceased was going to buy the place. The deceased and the defendant were not good friends. The defendant said that the deceased had lied on the witness stand on the hearing of the probating of the estate. The defendant had made this statement to him several times.

T. J. Cannon testified that he was a brother of the defendant; that he went with the deceased to the probate judge’s office in Cordell, and from there to Hobart to Mr. Carder’s office to see about the estate of Sarah C. Cannon; that he left Mr. Carder’s office and went to Mr. Swartz’ and stopped there to talk to him, and that he saw the defendant there. Mr. Swartz came out to the car and got in, and the defendant left in his car. The defendant returned in a few minutes, got out of his car, came over to the car in which the men were seated, pulled a gun from either his pants pocket or bosom, and said, “You sons of bitches needn’t think you can put anything over me. I’ll just kill you.” The defendant opened the car door and shot the deceased twice. The deceased was sitting with his hands upon the steering wheel. After the shots were fired at deceased, Cannon jumped out of the car. The defendant shot T. J. Cannon in the jaw bone, and as he ran shot him again between the shoulders in the back. Then the defendant turned and fired again at the deceased as the deceased was going toward the house. The witness was not present when the deceased died.

W. H. Dean testified that he was undersheriff of Wash-ita county; that he had the deceased’s clothing in his possession; and that they were in the same condition as when they were removed from the body of the deceased. There were two gunshot wounds upon the body of the deceased, one under the left armpit on the side, and another several inches below on the left side and ranging slightly toward the front.

Hugh Ferguson testified that he was the postmaster in the town of Rocky, and that he examined the gunshot wounds and that there were two wounds, one about in line with the left nipple, and one just below that.

Perry B. Sullens testified that he was deputy sheriff of Washita county, and went to Farwell, Tex., to return the defendant, and that the defendant told him the shooting was over his father and mother’s estate.

As a witness in his own behalf, the defendant testified that on the morning of the 26th day of April, 1985, about 9:30 o’clock, he went to Hobart to the office of Mr. Carder, a lawyer, and was there fifteen or twenty minutes; that he left this office, but returned there again about 11:30 and talked to Mr. Carder. On that occasion while he was in the office the stenographer announced that Mr. Whitlock and Mr. Cannon wanted to see Mr. Carder. The defendant left Carder’s office without being seen by the deceased or Tom Cannon, and went out to Mr. Swartz’, and was talking to Mr. Swartz when his brother, T. J. Cannon, and the deceased came up. The deceased called Mr. Swartz to the car. The defendant remained on the premises about ten or fifteen minutes after their arrival, when he went to his home. He returned to Mr. Swartz’ and did not know that T. J. Cannon and the deceased were still here. Arriving at Mr. .Swartz’, he got out of his car and said, “How-de-do, Mr. Whitlock,” and the deceased answered, “I’ll kill you, you God-damn-son-of-a-bitch.” Deceased got out of the car and advanced toward defendant. When the deceased got out in front, defendant told him to stop. Defendant’s brother was out of the car and went around the corner, and said, “Jesse, kill him; kill him, Jesse.” Defendant told the deceased to stop, but Mr. Whitlock ran toward the defendant, and defendant then fired two shots. Defendant testified Whit-lock had a knife in his right hand. The trouble arose over a lawsuit begun three years before. Defendant admitted the gun introduced in evidence looked like his gun; and that he had carried the gun ever since the deceased had threatened him over the estate a few years before. After the shooting, he left the state and went to Friona, Tex., to his daughter’s.

The defendant had several character witnesses to testify that he was a man of good character.

. The foregoing substantially states both ' the state’s and the defendant’s theories of the case. The record shows that the deceased, J. L. Whitlock, had been a witness to the will of Sarah C. Cannon, mother of the defendant, and that in the ensuing litigation over the estate the deceased had been called upon to testify as a witness at various hearings. It further appears that his testimony had aroused bitterness toward the deceased on the part of the defendant, and the defendant had accused the deceased, both to his face and in conversations with others, of having lied on the witness stand. The land on which the defendant was living, which was a portion of the estate, was to be offered by the administrator, Herman Swartz, for sale on Monday following the date of the killing.

1. The admission of the clothing of the deceased in evidence was competent. The bullet holes in the clothing became of importance in refuting or substantiating the self-defense plea of the defendant, and verifying the testimony of the state’s witnesses, and was properly admitted.

2. Upon a careful consideration of the record, we are of the opinion that this conviction was justified by the facts and circumstances in evidence, and any other verdict than the one rendered would have been against the weight of the evidence. The jury had the witnesses before them and could see their manner of testifying, and they no doubt in determining the truth took into consideration all the circumstances of the case.

3. It is our conclusion, after a careful examination of the entire record, that the defendant had a fair and impartial trial and that his conviction is sustained by the evidence.

The judgment is therefore affirmed.

DOYLE and DAVENPORT, JJ., concur.


author: DAVENPORT, J.

text:
    JOHN CARRUTHERS v. STATE.
    No. A-9088.
    Oct. 23, 1936.
    Rehearing Denied Nov. 13, 1936.
    (63 Pac. [2d] 118.)
    Guy P. Horton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Weldon Perris, Co. Atty., for the State.
   DAVENPORT, J.

In this opinion the parties will be referred to as they appeared in the trial court. The defendant, John Carruthers, was tried for murder, convicted, and sentenced to imprisonment in the state penitentiary for life. Motion for a new trial was filed, considered, overruled, and the defendant has appealed.

In substance the testimony is as follows: Dora Hunni-cutt stated:

“On June 12th or 13th, 1935, I lived in Altus, Oklahoma, at 419 East Commerce, across the alley from Josie Shanks; we visited hack and forth nearly every day; I was in Josie’s house the night before we went to the party at Cat Wilsons; me and my husband, and Josie and John were all invited to the party; I went over to Josie’s house for the purpose of dressing for the party; when we left to go to the party the house ivas all in order except the bed had not been made; on our way to the party we stopped at the hotel and Josie asked my husband to go in and tell John Carruthers she wanted to speak to him; when John came out Josie told John she had polished his shoes and wanted him to come to the party; Josie was dressed that evening in a white slip underneath her evening dress; we had a nice time at the party; it was conducted orderly and I did not see any misconduct; we drank some beer and then had something else. The defendant, John Car-ruthers, came to' the party before we left, and talked to his wife who- was also at the party; his wife went out and talked with him and he left in a taxicab; he did not leave Avith Josie and me.
“From the party we went to the beanery where Josie was talking to Carruthers; after that we visited two or three places and took some drinks at Big Sons; we stayed around there an hour or so and the deceased began crying; we left for home about four or four-thirty in the morning; John and Josie were together and walked behind me and my husband; John and Josie went across the alley to their home before my husband and I came into my house; my son Vernon, about tAvelve years old, opened the door for us to come in. The next thing I knew John Avas standing at the windoAV knocking and telling, us to get up, that Josie had killed herself.
“Some one called the police. Neither Josie, my husband or myself were drunk; Josie seemed to be happy and care free all that evening; John Carruthers had been going with Josie for some time. Josie had gone away from the parties a few minutes and changed her dress; she handed me the Avhite dress she had on earlier in the evening; she did not bave any gun with her during the time we were at the different places after we left the party. When I reached the scene of the killing John Carruthers had the head of the deceased on his lap, rubbing or patting her cheek; I do not remember whether he was fully dressed or not.”

Yernon Hunnicutt, the twelve year old boy, stated:

“I understand the meaning of an oath, and know right from wrong; I remember the night Josie Shanks was killed; I was living at Mr. Kizziar’s place; I got up that morning and opened the door for father and mother; I took care of my little brothers and sisters while they were gone; when father and mother came in they went to bed; I layed down on a pallet, and the next thing I hears was a little racket, and then I heard a gun fire, and I heard Josie say, 'Oh John, don’t hurt me.’ I had heard Josie talk lots of times and knew her.voice. I jumped up and stood by the lavatory just outside the door, and then ran over and looked in the door and saw John and Miss Josie; John had her head in his lap; her head was down stairs and her feet upstairs. I ran back and woke mamma. I heard John say, 'Wake up Josie, Josie done killed herself, the onliest woman I love.’ ”

Ivan Stout, a graduate engineer, testified to going down to the place about 10:30 or 11 o’clock the morning after the killing and making a plat of the place.

H. A. Savage, sheriff of Jackson county, stated: "I was called the morning of June 13th, 1935, about 5:20, and without dressing completely I hastened to the scene of the tragedy. I examined the body of the deceased, and her clothing, and could not find any powder burns. I told the defendant there at the time that he killed the girl; he denied it.” Witness further stated that the gun was found in the crook of the arm of the deceased, and that the safety was locked.

F. B. Tims stated:

“I am a funeral director and undertaker; I was called to the scene of the tragedy, and found the body; there were no powder burns on the body or clothing. The bullet ranged down from its entrance.”

Dr. Spears stated:

“I made an examination of the gun shot wound that caused the death of the deceased, Josie Shanks.” Dr. Spears further stated “that the bullet entered to the left of the nipple and came out on the right side of the spine, angling: about forty-five degrees. There were no powder burns on the body.”

The defendant, John Carruthers, testifying in his own behalf, stated:

“I live in Altus; came from Texas to Oklahoma; on the night of the trouble I was working as a porter at the New Orient Hotel. Josie Shanks and the Hunnicutts came by the hotel where I was working, and later I went to the dance; Josie told me she had shined my shoes and arranged so I could dress and come to the dance.
“When I got down to the party it was about over; my wife Mollie was standing on the porch; I got out of the car and went as far as the ditch; Mollie watched me and so I started back, they told me the party was over; in returning to the car to go back to1 the hotel Mollie called me and I talked with her, she was trying, to get me to go home, and I told her I had to go back to the hotel to work; as I started away Mollie hugged and kissed me and stood with her arm around my neck; Josie objected to me having anything to do with Mollie; I came back to the hotel after I had been to the dance; Dora and Josie came up to the beanery, which is a cafe concern and eating joint; I stopped the taxi cab in front of the beanery and Josie came out and asked me for a nickel, and she put it in the piano and played the record, ‘In the Evening When the ,Sun Goes Down.’ After the piece had been played Josie began, crying and wanted to go over to Rocks; there at Rocks we tried to play the piano and it would not play; Josie was standing in the lunch room with her head down and I said, ‘Liven up and get with the crowd,’ and Bill says, ‘Yes, Josie, come on in here and I will give you a dress to put on,’ as Bill thought Josie’s dress was torn; Bill was the woman that stayed with Rock; the bunch of them were dancing^ but I did not see Josie dancing. She changed her dress and came out and asked me to go with her to1 Big Sons, and sat down on the bench and was crying, the whole bunch was trying to get her to hush, we left and went to Big Sons place and went home. We had all been drinking and I drank a good deal.
“After my brother and his wife left the party, Josie, Dora and her husband and myself went to the hotel; we stopped and I told Josie I had better get back on the job, and she wanted me to go home with her; I stopped at the hotel and told her if I could get off I would catch up with them, I caught up with them. In going home we reached Josie’s place before you get to the Hunnicutt home; when we got home I unlocked the door and went upstairs with Josie; she tried to play the radio but it was disconnected, and she went into the room and began to cry, and I asked what she was crying about; she said, ‘Well, John, you come down there and hug and kiss your wife right before me, I couldn’t stand it,’ Josie told me, ‘John, you have got to do one thing or the other, you have got to take me or Mollie,’ and I said, ‘Well, Josie, I would-n’t give Mollie and the children up for no woman I ever seen,’ and asked her to lay down. I was in bed and dozed off to sleep. A shot woke me and when I' woke Josie was standing at the head of the stairs and began falling down stairs, and I went on down behind Josie and picked her head up and put it in my lap, and said, ‘Josie, look what you done,’ and I said, ‘Where are you hurt at, poor Josie, the onliest woman I love.’ I got up and slipped on my breeches and went over and knocked on the Hunnicutt window, and told them to come over Josie had hurt herself bad, and I went back and put Josie’s head in my lap. Dora Hunnicutt came over and says, ‘Poor Josie, I knew she had a gun.’ I went upstairs and slipped on my shirt and shoes, came hack and told the parties to call the officers. I was holding her when the sheriff came. It was my gun, I had been leaving it there at the house, Josie wanted it for protection when she stayed by herself. The gun shoots a steel cartridge caliber 3'80; when the gun is fired the cartridge flies out to the side of the gun and another one goes into the barrel. If you were facing west and pulled the trigger the shell would go north. I did not shoot Josie. I have been living with Josie off and on. From the time I heard the shot until Josie fell down the stairs she did not say a word; I could hear her breathing. I was asleep at the time the shot was fired; I did not see the Hunnicutt boy there at all.
“This gun has a safety catch on it and it operates up and down, just a slab on a hinge that pushes up and catches on the barrel that works back and forth. The safety is easy to operate. I did not pick the gun up after the shot was fired and put it on safety. I did not touch the gun.”

On cross-examination witness stated:

“I told Josie, look what you done, I did not say, look what I have done. I think there was one shot fired from the gun; I did not shoot Josie nor did I wipe the finger prints off the gun; I did not put the gun on safety. Her husband comes over to see her often; I was not jealous of him. Josie committed suicide, the only cause I gave her was I told her I would not give up my wife, but she wanted me to quit my wife and children; I knew it was against the law to live with a woman I was not married to but negroes are not like white folks, nearly all negroes do that. My clothes were down at Josie’s place. She fell all the way down to where the stairs turned; I don’t know whether there were any bruises on her body or not; I did not pay any attention as to which hand she had the gun in; I did not give her any cause; I cannot show by handling the gun how she shot herself as I did not see her shoot.”

Mollie Carruthers testified in behalf of the defendant and stated: She and John had lived in Altus about seven years.

“We have four children; the night Josie was killed I attended a social function in the colored neighborhood with my brother and his wife; I saw John down at the house where the party was held, and also Josie Shanks; I knew John had been living there part of the time. John came up to the house in a taxicab and I went out and asked him how he was feeling, and asked him if he was going to star at the party; I told him I was having a nice time and that he ought to try to change his ways, and come on home to me and the children and take care of us as he should; just- before he left I hugged and kissed him; Josie was standing on the porch; John left the party by himself. John has always provided for me and the family.”

On further cross-examination witness stated:

“John and I did not have any trouble, I did not tell you in your office that X was glad this girl was out of the way. Yes, I am John’s wife.”

On cross-examination, H. A. Savage, the sheriff, stated:

“A party cannot hold this gun in their hands and shoot themselves without powder burning themselves; a person can place this gun right against their person and shoot like this from the left side, and it will come out through the body; you cannot put the gun so close to your person that it will not show powder burn; I have not tried it on a human being with clothes on but I have tried it on different things. Carruthers made a statement in my presence saying Josie was on the stairway facing east at the time the shot was fired, and said, ‘Look what I done.’ I never knew an automatic pistol to go off by being dropped on the floor. I have known other pistols to be discharged by falling on the floor; I have never known an automatic not on safety to be thrown on safety by falling and jarring.”

Ernest Hathaway, testifying for the state in rebuttal, stated he was a peace officer for five or six years; that he had considerable experience with pistols of the caliber of the one in question; this gun would powder burn the clothes of any one at a distance of eighteen inches or less.

The foregoing is the substance of the testimony introduced at the trial.

The defendant has assigned six errors alleged to' have been committed in the trial of his case, but in his brief he argues only the sixth assignment, which is as follows:

“The verdict of the jury and sentence of the court is not supported by the evidence, and is contrary to the evidence in said case and that there is insufficient evidence to sustain said conviction.”

The testimony introduced may be correctly summarized in brief as follows: The defendant had been living in adultery with Josie Shanks. They had been to a party that night and had been drinking a great deal and returned to Josie’s room. The twelve year old negro boy, Yernon Hunicutt, says he heard a racket and a shot, and heard the deceased, Josie .Shanks, say, “Oh, John .don’t hurt me.” That he went over and looked in the Shanks house and ran home and called his mother. There was some conflict in the testimony as to who woke Dora Hunni-cutt and her husband. They were aroused and went to Josie Shanks’ room and there found her dead body, the defendant holding her head in his lap and saying, she was the onliest woman he loved. The gun was found in the crook of tbe arm of tbe deceased on tbe stairway. It was an automatic pistol, and when picked up the safety was on. The doctor’s testimony shows that the bullet entered below the left breast and passed out of the body to the right of the spinal column ranging downward from the point of entrance to the point of exit, and that there were no powder burns on the body. Other evidence tends to show there were no powder bums on the clothes. The defendant insists that the deceased was crying after they came home and he asked what she was crying about, and she told him he would either have to give up Mollie and the children or give her up, and he told her he would not give up Mollie and the children for any woman he ever saw.

He says he dozed off to sleep and was awakened by the shot, claiming, the deceased had committed suicide. He admitted the pistol was his; that he had left it at Josie’s house as she wanted it for protection when she was alone. No complaint is made by the defendant on the instructions of the court, and there are no errors in the record committed by the court on the question of the admission or rejection of the evidence. The testimony shows that the shell ejected from the pistol was over to the right and away from the stairway, and that when fired the pistol discharged the shell to the right and would throw another shell into the barrel. The record fails to disclose whether or not the deceased was left or right handed, and no expert testimony was offered to show it would be possible for the deceased to have held the gun with her right hand and inflicted the wound the testimony shows was inflicted on her body.

Section 3062, O. S. 1931, is as follows:

“On the trial of an indictment or information, questions of law are to be decided by the court, and the questions of fact are to be decided by the jury; and, although the jury have the power to find a general verdict, which includes questions of law as well as of fact, they are bound, nevertheless, to receive the law which is laid down as such by the court.”

In Parnell v. State, 39 Okla. Cr. 361, 265 Pac. 660, this court in the first paragraph of the syllabus stated:

“Where there is evidence from which a jury may reasonably and logically find the guilt of an accused, the weight and credibility of such evidence is for the jury, who see and observe the witnesses, and this court will not substitute its judgment in such case for that of the jury.”

In Hardeman v. State, 15 Okla. Cr. 229, 230, 175 Pac. 948, the court in the third paragraph of the syllabus stated:

“The guilt or innocence of a defendant is peculiarly within the province of the jury to determine, and when the jury renders a verdict of guilty, which is approved by the trial court, and there is evidence in the record to sustain the verdict, this court will not reverse the case because the evidence is in conflict.”

In Wininger v. State, 55 Okla. Cr. 78, 24 Pac. (2d) 664, in the second paragraph of the syllabus, this court said:

“Before the Criminal Court of Appeals will reverse a conviction upon the ground that the verdict of the jury is contrary to the evidence, it must find there is no testimony in the record from which the jury could rationally conclude that appellant was guilty, unless it appears from the record that the jury were influenced by improper motives in arriving at their verdict.”

In Pickett v. State, 35 Okla. Cr. 60, 248 Pac. 352, in the first paragraph of the syllabus, this court said:

“Where the evidence and the reasonable and logical inferences and deductions to be drawn from it are sufficient to convince the jury beyond a reasonable doubt of the guilt of a defendant, this court will not disturb the verdict for insufficiency.” Choate v. State, 37 Okla. Cr. 314, 258 Pac. 360; Campbell v. State, 23 Okla. Cr. 250, 214 Pac. 738.

We are of the opinion that the state’s evidence as summarized above and as it appears in the record in this case is amply sufficient to authorize the court in submitting the case to the jury, and to warrant the jury in reasonably concluding that the defendant was guilty of the crime charged, and the jury had sufficient evidence, though conflicting, to warrant it in returning the verdict it did.

The judgment of the district court of Jackson county sentencing the defendent to a term of life imprisonment in the state penitentiary, at McAlester, is hereby affirmed.

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


text:
    VICTOR LOFTIN v. STATE.
    No. A-9093.
    Nov. 20, 1936.
    (62 Pac. [2d] 664.)

      Morrill & Snodgrass, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the .State.
   DAVENPORT, J.

The plaintiff in error was convicted of the crime of attempt to commit burglary, and his punishment fixed for a term of two years in the state penitentiary. He will hereafter be referred to as the defendant.

This is a companion case to cases Nos. A-9089 and A-9166, W. J. Luker v. State, 60 Okla. Cr. 151, 161, 62 Pac. (2d) 255, 259, and reference is made to the two cases for the testimony as it is not deemed necessary to set it out in full in this case. The testimony is sufficient to sustain the conviction.

It is urged by the defendant that the court erred in admitting the testimony of witness Davis, as to the searching of the car of the defendant W. J. Luker without a search ivarrant to search the car. The record shows that the defendant in this case and W. J. Luker were under arrest and in custody of the officers at the time the car of the. defendant Luker, who was charged jointly with this defendant, was searched. The defendant insists that the testimony secured by the officers without a search warrant was unlawfully secured and improperly admitted.

The testimony shows that the defendant was arrested at the W. J. Lnker home, and after he had been placed under arrest by the officers and while the officers were taking W. J. Luker and this defendant to the hospital, the officers searched the car of the defendant Luker. This court holds that it was not necessary for the officers to have a search warrant to search the premises of the defendant, his person, or his car, after he had been placed under arrest upon the belief and information that the officers had received that the defendant and W. J. Luker had committed a felony.

In Berg v. State, 29 Okla. Cr. 112, 233 Pac. 497, 498, in the eighth paragraph of the syllabus this court said:

“In case of a lawful arrest, the arresting officer may take from the person arrested any instruments of crime or anything else reasonably deemed necessary to his own or the public safety, and the use of such things on the trial of the person arrested is not objectionable as obtained by unlawful search and seizure.”

The court did not err in admitting, the article found in the defendant W. J. Luker’s car by the officers who searched the car after the defendant in this case and W. J. Luker were under arrest and in the custody of the officers.

It is next urged by the defendant that the court improperly instructed the jury as to the law applicable to the facts in the case. The court’s second instruction is as follows: “As you have been told, the offense for which the defendant is being prosecuted is attempt of burglary in the second degree, and if the alleged attempted burglary had been completed it would have been burglary in the second degree, and the same is made punishable by imprisonment in the penitentiary for a term of not less than two years nor more than seven years. And if you find the defendant guilty as charged, of attempt to commit burglary in the second degree, you will assess his punishment by confinement in the state penitentiary for any term not less than one year nor more than three years and six months.”

.Section 1932, O. S. 1931, in the second paragraph fixes the punishment for burglary in the second degree for any term not exceeding seven years and not less than two years.

Section 1822, O. S. 1931, first paragraph, is as follows :

“First. If the offense so attempted be punishable by imprisonment in the penitentiary for four years or more, or by imprisonment in a county jail, the person guilty of such attempt is punishable by imprisonment in. the penitentiary, or in a county jail, as the case may be, for a term not exceeding one-half the longest term of imprisonment prescribed upon a conviction for the offense so attempted.”

The defendant in his argument discusses at length that under the law the trial court had no authority to authorize the jury by its instruction to fix the punishment other than that provided by the statute, and further in his argument he says that this court submitted to the jury a smaller penalty for the offense than that prescribed by law, that the court’s .instruction was duly excepted to by the defendant, and that where a smaller penalty is assessed by the jury than that fixed by law the case will be reversed, citing Patterson v. State, 44 Okla. Cr. 298, 280 Pac. 862, and Beck v. State, 14 Okla. Cr. 3, 166 Pac. 753.

The authorities cited by the defendant correctly state the law as applied to the cases cited, but in this case the conditions that existed in Patterson y. State, and Beck v. State, supra, do not exist. Under the statute in this case a party convicted of attempted burglary might be sentenced for one-half of the maximum penalty assessed if the burglary had been committed. The court’s instruction advised the jury that if it found the defendant guilty it might sentence him for not less than one year nor more than three years and six months; the maximum under the statute on a conviction for burglary is seven years and the minimum two years. Therefore the instruction of the court covered one-half of the maximum penalty that might be imposed for an attempted burglary, and this court does not agree with the contention of counsel that the instruction of the court is reversible error. The instruction is as fair to the defendant as it is to the state, and is within the statute covering a charge of attempted crime, and as the jury found the defendant guilty and imposed a penalty of two years, he cannot complain of the instruction of the court which covered the law applicable to the facts.

After a careful reading and study of the facts in this case, we feel compelled to hold that the rights of the defendant were properly protected in the trial. On the conflicting evidence, the court under proper instruction submitted the conflict to the jury, and the jury by its verdict found against the defendant.

In Tillery v. State, 23 Okla. Cr. 226, 214 Pac. 198, this court held a conviction will not be set aside where there is some substantial evidence to support the verdict.

In the trial of all criminal cases the jury is the exclusive judge of the weight of the evidence, and if there is a clear conflict in the evidence, or it is such that different inferences can be drawn from it, this determination will not be interfered with, unless it is clearly against the weight of the evidence or it appears to have been influenced by passion or prejudice. There is nothing in the record to indicate that passion or prejudice entered into the consideration of the jury in arriving, at its verdict. The jury was correctly instructed as to the law, and by its verdict found against the defendant, and this court is not inclined to disturb the verdict.

There are no errors in the record which would justify this court in reversing this case. The evidence is sufficient to sustain the verdict.

The case is affirmed.

EDWARDS, P. J., and DOYLE, J., concur.


author: DOYLE, J.

text:
    DEWEY BUTLER v. STATE.
    No. A-9108.
    Nov. 20, 1936.
    (62 Pac. [2d] 662.)

      H. H. Cook and I. L. Cook, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment rendered upon the verdict of a jury finding the defendant, Dewey Butler, guilty of the crime of larceny of livestock and fixing his punishment at five years’ imprisonment in the penitentiary.

The information in substance charges that in Atoka county, on or about the 1st day of November, 1932, Dewey Butler, Lonnie Butler, and Ed Whisenhunt, acting, conjointly and together committed the crime of larceny of livestock, and did take, steal, and carry away from the possession of one E. C. Newman, without his consent, one dark brown mare mule five years old and one dark brown horse mule four years old, said mules being then and there the property of said E. C. Newman.

A severance was granted and the defendant, Dewey Butler, was tried on the 23d day of October, 1935.

The grounds of the motion for a new trial, and here assigned as error, are that the verdict of the jury was not supported by sufficient evidence and is contrary to law; that there was a fatal variance between the allegations of the information that the stolen mules were the property of E. C. Newman, while the proof showed that Tom Franks was the owner.

The evidence on the part of the state showed that the prosecuting witness, E. 0. Newman, lived with his father-in-law, Tom Franks, on a farm in the Butler community in Atoka county, about 15 miles east of the city of Atoka. That on or about November 1, 1932, the two mules described in the information were taken from the Newman place to the home of Ed Whisenhunt, about 10 miles south of Boswell, from there they were taken across Red River, and sold to Joe Goss.

Ed Whisenhunt testified that the mules were brought to his place by Dewey Butler and Lonnie Butler; that he and Dewey Butler took them on across the river and sold them to Joe Goss for $50; that Dewey Butler paid him $5 for assisting him in selling, the mules; that upon his separate trial, nearly two years before, he was convicted and sentenced to serve a term of five years and was serving the term; that Will Whisenhunt and his wife were there and they all had breakfast before he and Dewey Butler took the mules across the river.

Joe Goss testified that he lived in Fannin county, Tex., three miles south of Red river; that on the 5th day of November, 1932, at his house and store he bought a pair of mules from Ed Whisenhunt for $50; that there was a young man about 23 years of age with him, and he asked the young man if the title was all right, and he said he thought it was; that he paid $30 in cash and gave a check for $20, payable to Ed Whisenhunt. He further testified that about two months later he delivered the mules to a young, man by the name of Newman, who came to his place and identified the mules as his property.

Will Whisenhunt testified that he lived at Boggy Bridge, during the first part of November, 1932; he moved with his wife to Ed Whisenhunt’s place 10 miles south of Boswell; that Clarence Butler moved them, and that Dewey Butler and Lonnie Butler, also brothers, went with them. That after the defendants were arrested, the defendant, Dewey Butler, tried to get witness to move out of the country, and they moved him and his wife to Lindsay, Okla.; thereafter he was located by the sheriff and returned to testify as a witness.

Laura Whisenhunt testified that she was the wife of Will Whisenhunt; that they formerly lived on Smith Butler’s place near Boggy Bridge; that in November, 1932, she with her husband went to Ed Whisenhunt’s place in Lonnie Butler’s car, to pick pecans. A few days after they were there Clarence, Lonnie, and Dewey Butler came there one morning before they were up and they all had breakfast there that morning. Ed Whisenhunt told his wife that he and Dewey Butler were going across the river; Dewey was present when he told her this.

J. E. Price testified that he lived in the Butler community; that shortly after Dewey Butler got out of jail he came to see him and told him that he would give him $50 to go down in Texas to pay the man back his money for the mules and fix it so he would not identify the defendant. The next day he told the defendant, Dewey Butler, that he did not want to have anything to do with it.

E. C. Newman and Tom Franks testified as to the loss and recovery of the mules, and as to the ownership of the mules. The testimony of both witnesses was in substance to the effect that E. C. Newman and his wife lived with his father-in-law, Tom Franks; that Franks was the owner of the mules in question and Newman farmed the place with the mules for a share of the crop and fed and cared for the mules; that at the time of the theft, Newman had left his wife at the place and had gone out west to pick cotton. Franks testified that Newman, worked the place for a share of the crop; that he, Franks, owned the mules, but he was not at the place when the mules were taken.

When the state rested, the defendant interposed a demurrer to the evidence on the ground that there is a fatal variance between the allegations of the information as to the ownership of the alleged stolen property, and the proof offered by the state herein.

On the part of the defense, W. E. and Mary Wood each testified that Dewey Butler was at their place to get some medicine for his wife about 8 or 9 o’clock of the night the mules were taken.

Mrs. Prescille Gavitt testified that some time after dark on the night the mules were reported to have been talien, Dewey Butler called at her place in the Butler community.

Mrs. Dewey Butler testified that she was sick on the night of the alleged larceny, and that her husband spent the night at home.

Mary Butler testified that Dewey Butler’s wife was sick and she spent the night at their home; that Dewey Butler went to bed that night about 10 o’clock and next morning got up about 4 or 5 o’clock.

The defendant as a witness in his own behalf testified that he was at home the night of the larceny, had nothing to do with it, and knows nothing about it.

It appears from the foregoing that the undisputed facts and circumstances prove all the elements necessary to sustain the offense charged. The only contention urged is that the evidence was insufficient to connect this defendant with such felonious taking.

While the jury is the exclusive judge of the weight of the evidence and the credibility of the witnesses, and where there is credible evidence in the record, which, if believed, is sufficient to authorize the jury to conclude that the defendant is guilty of the offense charged, this court will not disturb the judgment.

We think the evidence was amply sufficient to connect this defendant with the commission of the offense.

The second assignment of error relates to- the fact that the information alleges that the mules in question were the property of E. C. Newman, while the proof discloses that the title to the mules was in his father-in-law, Tom Franks.

Section 2888, St. 1931, provides:

“When an offense involves the commission of, or an attempt to commit a private injury, and is described with sufficient certainty in other respects to' identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material.”

Under this rule of criminal pleading the name of the owner is not material if the proof discloses all the essential facts necessary to constitute the offense charged, including the possession of the property by the alleged owner.

The possession of the property by the alleged owner, E. C. Newman, was sufficient to make it the subject of larceny. The title may be held either in the owner or the possession of the person from whom it is taken. This cannot be held to constitute a variance.

In Dickson v. State, 28 Okla. Cr. 378, 231 Pac. 315, this court held:

“In a prosecution for larceny, the name of the owner of the property stolen is only required to identify the transaction, so' that the defendant, by proper pleading, may protect himself against another prosecution for the same offense.”

In the case of Little v. State, 21 Okla. Cr. 1, 204 Pac. 305, it was held that:

“The actual condition of the legal title of property alleged to have been stolen is immaterial to the thief; so far as he is concerned, one may be taken as the owner who is in personal possession of the property and whose possession was unlawfully disturbed by the taking. The possessor of the goods from whom the thief took them may properly be described as the owner of the property in the indictment or information.” And see Carson v. State, 30 Okla. Cr. 438, 236 Pac. 627; Leyerle v. State, 31 Okla. Cr. 179, 237 Pac. 871; Sanders v. State, 35 Okla. Cr. 139, 249 Pac. 356.

There was no exception taken to the instructions given and no criticism made upon them in this court. They correctly and fully present the law of the case, and the defendant, from all the record discloses, had a fair and impartial trial.

It follows that the judgment should be, and is, affirmed.

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


text:
    Ex parte MACK SCHERER.
    No. A-9228.
    Nov. 20, 1936.
    (62 Pac. [2d] 660.)
    Squyres, Hunt & Gay, for petitioner.
    Jess L. Pullen, Asst. Atty. Gen., and Lewis R. Morris, Co. Atty., and E. W. Brown, Asst. Co. Atty., for respondent.
   DOYLE, J.

This is an application for discharge from imprisonment by writ of habeas corpus on the part of Mack Scherer, confined in the county jail of Oklahoma county by Stanley Rogers, sheriff, under commitment issued by the district court of said county upon an information filed therein charging Mack Scherer with the crime of grand larceny, to wit, the theft of 30 barrels of crude oil of the value of $30, the personal property of Roy Smith.

It is alleged that said restraint is illegal because the facts set out in the information, if true, would constitute as a matter of law a misdemeanor only, and that said information does not state facts sufficient to constitute the crime of grand larceny or other felony, for which reasons the district court of Oklahoma county is without jurisdiction to try the offense charged in said information, and referring to sections 2274 and 2275, Okla. Stats. 1931, which read as follows:

“2274. Any person who' shall unlawfully make or cause to be made any connection with or in any way tap or cause to be tapped, or drill or cause to be drilled a hole in any pipe or pipe line or tank laid or used for the conduct or storage of crude oil, naphtha, gas or casinghead gas, or any of the manufactured or natural products thereof, with intent to deprive the owner thereof of any of said crude oil, naphtha, gas, casinghead gas or any of the manufactured or natural products thereof, shall be guilty of a felony, and upon conviction shall be punished by confinement in the penitentiary for a term of not less than one year or more than five years.”
“2275. Any person who shall unlawfully take any crude oil or gasoline, or any product thereof, from any pipe, pipeline, tank or other receptacle or container with intent to deprive the owner thereof of said crude oil, gas or gasoline or any product thereof shall be guilty of a misdemeanor, and upon conviction shall be punished by a fine of not more than one hundred dollars ($100.00), or by imprisonment in the county jail not to' exceed sixty (60) days, or by both such fine and imprisonment.”

Counsel contend that under the opinion of this court in the case of Hart v. State, 59 Okla. Cr. 396, 60 Pac. (2d) 411, holding that an information charging offense of tapping a pipe line, which failed to allege that pipe line alleged to have been tapped was laid or used for conduct or storage of crude oil, and its derivatives was insufficient to' charge a felony as defined by section 2274, supra.

We think this contention is without merit. Section 1774 of the Penal Code (St. 1931) provides as follows:

“An act or omission which is made punishable in different 'ways by different provisions of this code, or other penal statute, may be punished under either of such provisions, except that in cases specified in Sections 2805 and 2808 (1817, 1820) the punishment therein prescribed is substituted for those prescribed for a first offense; but in no case can it be punished under more than one; and an acquittal or conviction and sentence under either one, bars the prosecution for the same act or omission under any other.”

In the case of Hays v. State, 22 Okla. Cr. 99, 210 Pac. 728, this court, construing this section, held that “where two statutes of the same class make an offense punishable in different ways, an accused may be proceeded against and punished under either of such statutes.”

In Tracy v. State, 24 Okla. Cr. 144, 216 Pac. 941, 944, it was contended that “since it was recited in the information that the property stolen was an automobile, the defendant could not be convicted of grand larceny.”

This court held:

“Where two statutes provide different penalties for the same class or kind of offense, the state may elect under which the prosecution may be maintained.”

In the case of State v. Bunch, 23 Okla. Cr. 388, 214 Pac. 1093, it was held:

“As. between specific statutes prescribing different penalties for any offense, the state may elect to try an offender under either statute.”

The petition was demurred to by counsel for respondent. The application and the demurrer thereto were presented to the court, both by brief and oral argument.

The general rule is that all questions which may arise in the orderly course of a criminal prosecution are to be determined by the court to whose jurisdiction the defendant has been subjected by law, and the fact that the defendant has a good and sufficient defense to a criminal charge on which he is held will not entitle him to his discharge on habeas corpus.

Under the provisions of section 1774, supra, and the decisions of this court construing the same, the demurrer to the petition herein is, we think, well taken, and should be sustained.

For the reasons stated, the writ of habeas corpus will be denied. It is so ordered.

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


text:
    ALFRED DAVIS v. STATE.
    No. A-9083.
    Sept. 25, 1936.
    Rehearing Denied Nov. 20, 1936.
    (63 Pac. [2d] 112.)
    John W. Blanton, for appellant.

      Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

Appellant, Alfred Davis, was tried and convicted on an information charging that in Garvin county on the 28th day of October, 1935, he did have in his possession about 27 pints of whisky with the unlawful intent to barter, sell, or otherwise furnish the same, the jury leaving his punishment to be fixed by the court. Motion for new trial having been overruled, he was on December 14, 1935, by the judgment of the court, sentenced to pay a fine of |250 and to confinement in the county jail for 30 days.

To reverse the judgment he appeals and assigns as error that the trial court erred in admitting incompetent evidence over the objections of the defendant and in refusing to strike such evidence, and in overruling the demurrer to the evidence at the close of the state’s case.

Earl Glenn, chief of police of Wynnewood, testified that on the date alleged he saw the defendant in a car headed north at the stop sign at Commercial avenue on Main street in Wynnewood. That he told him he wanted to talk to him and defendant asked him, “Is this a shake down?” He told him “Yes,” and the defendant drove on down the street. That he got in Paul Baker’s car and! they followed him. The defendant’s car went in the ditch, and he commenced to throw bottles out of the car. That Baker arrested the defendant. That they found a case and a half of whisky in, and near by, the car.

Paul Baker testified that he was undersheriff of Gar-vin county; that on the date alleged he saw the defendant half a block north of the city park in Wynnewood in a car that was in the ditch and the defendant was throwing whisky out of the car; that he threw out around 20 pints; that he arrested the defendant and found 6 pints of whisky in the car and a pint on his person.

When the state rested, the defendant moved to strike all the testimony of the witnesses, for the reason that the same was obtained illegally and unlawfully, which motion was overruled. The defendant then interposed a demurrer to the evidence on the ground that it was insufficient to show that he had committed the offense charged in the information, which demurrer was overruled; the defendant then moved the court to' direct the jury to render a verdict of acquittal for the reasons stated, which motion was overruled, exceptions reserved.

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

It appearing that the defendant being under lawful arrest, the officers had a right, as an incident of that arrest, to' search his car and his person where they saw him violate the law.

In the case of McAdams v. State, 30 Okla. Cr. 207, 235 Pac. 241, this court held:

“Where peace officers, without a warrant, on suspicion merely, illegally attempted to arrest a person suspected of the commission of a misdemeanor (transporting whisky), and as a sequence to such attempted arrest the offense is actually committed in the presence of and to the certain knowledge of the officers, the offender, under the circumstances set out in the text, may be legally arrested without warrant for the offense so committed in the officers’ presence.
“(a) As an incident to such legal arrest the person and automobile of the offender may without a warrant be searched for contraband goods.”

It is the province of the jury to try the issue joined by a plea of not guilty, and, if the evidence for the state, uncontradicted, will support a conviction, this court will not ordinarily interfere with the verdict against the defendant.

It appearing that the defendant had a fair and impartial trial, the judgment appealed from is accordingly affirmed.

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


text:
    HAPPY DUNN v. STATE.
    No. A-9038.
    Sept. 10, 1936.
    Rehearing Denied Nov. 20, 1936.
    (63 Pac. [2d] 772.)

      Bishop, Bishop & Seay, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and. Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to' as the defendant, was convicted in the district court of Carter county of the crime of the larceny of an automobile, and sentenced to serve a term of ten years in the penitentiary. Motion for new trial was filed, considered, overruled, and exceptions saved, and defendant appeals.

The testimony on behalf of the state in substance is, on the 3d day of September, 1934, Alimón Forbes drove his Ford two-door coach to the side of the hotel; about 8 o’clock Forbes missed his car and reported to the police his car was gone. Later on he was notified the car had been located in a Ford garage, at Seminole, in Seminole county, Okla. The witness further stated he went to Seminole and identified the car by some peculiar dents that had been caused by a wreck while his wife was driving the car; there was also' further identification, as the wife had received a cut on the hand and left bloodstains on the top of the car. He positively identified the car by the secret number under the hood. The car was taken without his knowledge or consent. He had bought the car in Ohio, and had a bill of sale for it.

Raymond Shoemaker, testifying for the state, stated: “I live in Ardmore. I am a plain clothes peace officer. When I received notice of the loss of Forbes’ car, we instituted a search, and with the assistance of Mr. Scruggs, highway patrolman, the car was located in Seminole, in the possession of a Mr. Anderson.” Witness further stated the motor number had been changed but the secret number had not. They brought the car in to the Ford Motor Company, in Seminole.

M. D. Lane, testifying for the state, stated: “I bought this car from the defendant. The defendant gave me his name as J. D. Hart. I traded the defendant a Willys-Knight car and gave him $75.” The canceled check was introduced in evidence. Witness Lane positively identified Happy Dunn as the person who sold the car under the name of J. D. Hart.

There was also introduced a title receipt from the state of Texas. The defendant or some one for him made application to the state of Oklahoma for a certificate of title. No testimony was introduced by the defendant.

The defendant alleges 14 errors which he insists are sufficient to warrant this court in reversing his case. When the state rested, the defendant filed an oral demurrer and a motion asking for an instructed verdict, both motions were heard, considered, overruled, and exceptions duly saved. The defendant then announced he rested.

The defendant first argues his fourth assignment, which is as follows: “Because of error of the court in refusing to sustain the motion of the defendant to dismiss this case for the reason that the court did not have jurisdiction to try the same.”

In order to properly consider this assignment, it will be necessary to briefly refer to the record heretofore made in this case. On the 26th day of January, 1935, this case was assigned by the court to be tried on the 11th day of February, 1935; on the 28th day of January, 1935, said case was passed for arraignment until February 5, 1935. February 5, 193'5, defendant appeared in open court and waived arraignment and ashed for time in which to plead and was given twenty-four hours. February 6, 1935, defendant entered his plea of not guilty of the crime charged against him. February 11, 1935, a jury was waived and the case passed subject to call. This case then stood on call until the 3d day of April, 1935, when the defendant filed a motion for continuance, which motion was granted, and the case passed until the 16th day of April, 1935, and was then reset for the 20th day of June, 1935, and then by order of the court set for trial on the 27th day of June, 1935.

Before the case was called for trial, the defendant came in, notwithstanding heretofore a jury had been waived, and demanded a jury. A jury was duly impaneled and sworn, and the case proceeded to trial and resulted in a verdict of guilty, leaving the punishment to the court, and the court sentenced the defendant on the verdict returned by the jury to serve a term of ten years in the penitentiary at McAlester, for the crime for which he was tried and convicted.

It is urged by the defendant that the court had no jurisdiction to try the defendant for the reason: “There had never been a transcript filed in this case in the district court conferring upon the court any jurisdiction at all.”

Evidence was taken, and it was conclusively shown by the district clerk, the county attorney, and the justice of the peace who heard the case that, when the case was called before the justice of the peace for preliminary ex-animation, the defendant appeared and waived preliminary examination, and was held to the district court, and that ball was fixed by the justice of the peace at $8,000; that the order of the court showing defendant waived examination was filed in the district court and bail fixed at $3,000, was written on the back of the original complaint which charged the defendant with the commission of the crime, and the clerk’s record shows the complaint wasi received from the justice of the peace and filed in his office. When the court was hearing the testimony, the original complaint could not be found. However, without setting out the testimony in full, the court made a finding that the testimony was sufficient to show the complaint made before the justice o-f the peace, holding the defendant to the district court, and fixing bail at $3,000, was filed in the clerk’s office. Its absence could not be accounted for.

The record further shows that prior to the time of filing this motion the defendant appeared in open court and waived arraignment and took time to- plead, and entered a plea of not guilty, and a jury was waived and the case assigned for hearing, and then passed from time to time, and finally, when the case was called for trial, the defendant appeared and demanded a jury trial, notwithstanding the jury had previously been waived.

The authorities cited by the defendant to sustain his contention that his motion to dismiss for want of jurisdiction of the court should have been sustained contained good law if the facts in the record sustained the defendant’s contention. This court is not inclined to disturb the findings of the trial court when the finding is based upon sufficient facts to sustain the same. The evidence shows without doubt that the complaint against the defendant filed in the justice court was filed in the district clerk’s office in Carter county, and the proof by the justice of the peace and county attorney shows the order of the justice of the peace holding the defendant to the district court and fixing his hail at $8,000 was written on the hack of the complaint. What became of the complaint and order, or how it got out of the files of the clerk’s office, this court will not undertake to say, but it will say that, notwithstanding the original complaint and order holding, the defendant to the district court have been extracted from the files, and no one seems to knowi where they are, the testimony showing what took place at the preliminary hearing, and the complaint was received by the district clerk and filed in the clerk’s office.

The defendant in this case, as shown by the record, seems to have attempted to trifle with the court, and the court as shown by the record indulged the defendant to the fullest extent, even after he had waived a jury and the case was continued from time to time, the court then ordered a jury called in order that the defendant might have a fair and impartial trial. The motion of the defendant to quash the information and dismiss the case on the ground that the trial court had no jurisdiction was properly overruled.

The next question argued by the defendant is that the court erred in refusing to give his requested instruction, which is as follows:

“Comes now the defendant, Happy Dunn, and requests the court to instruct the jury that in the event they find the defendant guilty, then it is the duty of the jury to assess the punishment.”

The requested instruction was refused and defendant excepted. Section 3107, O. S. 1931, is as follows:

“In all cases of a verdict of conviction for any offense against any of the laws of the State of Oklahoma, tbe jury may, and shall upon the request of the defendant assess and declare the punishment in their verdict within the limitations fixed by law, and the court shall render a judgment according to such verdict, except as hereinafter provided.”

Under this statute there is no question but what the defendant was entitled to have in instruction from the court advising the jury to assess or fix the punishment. The defendant complains and places great stress upon the question that, when he made his motion requesting the court to direct the jury, in the event it found the defendant guilty, then it would be the duty of the jury to assess the punishment. The record discloses this motion was made by the defendant under the section of the statute, supra, and the court refused the requested instruction, but on examining the seventh instruction of the court it reads in part as follows:

“You are therefore instructed, gentlemen of the jury, that should you find in this case beyond a reasonable doubt that the defendant, Happy Dunn, did, in Carter county, Oklahoma, on or about the 3rd day of September, 1984, unlawfully, wilfully, wrongfully, stealthily, fraudulently and feloniously take, steal and carry away one Ford, automobile, the personal property of one Alimón Forbes, without the consent and against the will of him, the said Alimón Forbes, * * * then and in that event it will be your duty to find .the said defendant guilty of larceny of an automobile and so state in your verdict and fix his punishment by confinement in the state penitentiary for a term of not less than five nor more than 20 years.”

The court in its fifth instruction advised the jury:

“If you find the defendant guilty beyond a reasonable doubt of the crime charged in the information herein and' are unable to agree upon the punishment you will so state in your verdict, and the punishment will be fixed by the court.”

Notwithstanding- the court refused to give the requested instruction to the jury as to fixing the punishment, the court’s general instruction is specific upon that question and directs the jury, if it finds the defendant guilty, to fix the punishment at not less than five nor more than 20 years, following the language of the statute.

In Crouch v. State, 23 Okla. Cr. 325, 214 Pac. 747, in the second paragraph of the syllabus, this court said:

“A general instruction advising the jury that, if they should return a verdict of guilty, ‘then, you will indicate therein the penalty to be inflicted,’ is a sufficient compliance with the statute on that subject.”

In the case we are considering, the court specially advised the jury, if they found the defendant guilty, to fix his punishment, giving the minimum and maximum punishment that could be imposed. In view of the general instructions given by the court to the jury, we hold that the court did not err in refusing to' give the instruction requested by the defendant.

There are other errors assigned by the defendant that are not discussed, but upon an examination of the record and the defendant’s brief in support of the assignments they do not possess sufficient merit to warrant a reversal.

The record in this case has been carefully examined and studied, as well as the brief of the defendant. Defendant’s counsel have ably presented their side of the case was guilty of the crime charged against him, and fail to' arrive at the conclusion that the defendant in this case was not guilty of the crime charged against him, and that he had been given every opportunity, and did have a fair and impartial trial; that the court indulged the defendant by continued delays, and by calling a jury in order that he would have no complaint against the court for not being -willing to see be was tried without bias or prejudice.

This record is such that the patience of the trial court must have been taxed, and, when the original complaint in this case, with a transcript of what had taken place at the preliminary trial, was lost, removed, or destroyed, the trial judge seems to have been willing to give all parties in the case a chance to clear up, if possible, the disappearance of the complaint that was shown to have been filed in the clerk’s office, or to find the same.

The testimony in this case shows the defendant guilty; he had an opportunity to present all the facts to the jury; he had a fair and impartial trial. There is no reason in the record why this court should reverse this judgment. The judgment of the trial court is affirmed.

EDWARDS, P. J., and DOYLE, J., concur.


author: PER CURIAM.

text:
    Ex parte RAY JACKSON.
    No. A-9233.
    Nov. 23, 1936.
    (62 Pac. [2d] 661.)
    L. A. Justus, Jr., for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sim T. Carman, County Atty., for the State.
   PER CURIAM.

This is an original petition filed by Ray Jackson, in which he alleges he is restrained of his liberty by R. B. Conner, sheriff of Osage county, in the county jail of Osage county.

Petitioner further states that he filed a petition in the district court of Osage county, and that the said petition was denied. That upon a preliminary hearing had before a justice of the peace there was no evidence introduced which showed or tended to show in any manner that an offense had been committed by the petitioner, or that any offense had been committed against the laws of the state of Oklahoma. That there is no evidence introduced tending to show probable cause or belief that he had committed a crime, but that all the evidence at the preliminary trial hearing affirmatively and conclusively shows that the money alleged to have been embezzled was the property of the petitioner and that the crime of embezzlement had not been committed by this petitioner.

The testimony taken before the justice of the peace has been carefully examined by this court, and the court holds that there is no competent evidence in the record showing, or tending to show that the petitioner has com-mittted a crime against the laws of the state of Oklahoma.

It is therefore considered, ordered, and adjudged that the petitioner is entitled to the relief prayed for. Writ awarded, and petitioner ordered discharged.


text:
    CARL PRUITT v. STATE.
    No. A-9090.
    Nov. 25, 1936.
    (63 Pac. [2d] 776.)

      Brett & Brett, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error was by information charged with larceny of domestic animals; was tried, convicted, and sentenced to serve a term in the state penitentiary at hard labor for eight years, from which judgment and sentence the defendant appeals.

In substance the testimony is as follows: E. A. Felker, a resident of McCurtain county, owned certain cattle and! horses that ran on the range; he was the owner of two sorrel ponies; the last time he saw these ponies was in the spring of 1934; he missed them in November, 1934, and] found them at Dallas, Tex., in December, 1934, in the possession of L. M. Pack. Witness further stated he had never seen the defendant Carl Pruitt in the country where the horses ranged; that John Helm and Sam Key went with him to Dallas, Tex., to see the ponies.

The evidence further shows that the defendant had; transported the ponies of the witness Felker to Dallas, Tex., and sold them to L. M. Pack.

The defendant admits he sold the two ponies in question to L. M. Pack. The defendant further testified he bought these ponies from Roy Rhoden, at Fort Towson, Okla.; at the time he bought the ponies he was trading, buying, and selling stock; that he had a pasture near Fort Towson in which he kept them. The defendant further stated he used the bank’s pen for temporary purposes. The defendant noticed the brand on the ponies at the time he purchased them and told Key it was Ervin Felker’s brand, and stated he had no information the horses were stolen. Sam Key stays around Fort Towson part of the time, and north of Swink, and up around Little River and Cypress, and has a cabin up there. This cabin is twelve or thirteen miles northwest of Wright City, and Mr. Fel-ker’s stock ranged between Cypress and Little River, and northwest of Wright City, which is about six or seven miles from the Felker Ranch.

Roy Rhoden stated ,Sam Key approached him in Fort Towson, where he was sitting, in a car with some other parties, and after passing the time of day asked him if he wanted to purchase a pair of ponies.

“I went down to Howard Wynn’s Grin to look at the ponies, and paid Key $30 for them; I sold them to Carl Pruitt, about nine o’clock in the morning, and he took them away in a pickup; I never heard of them any more. I did not know I was going to be a witness in the case until Carl came and told me he had been arrested for stealing those horses. I sold the horses to Carl; I do not remember the exact time I sold them to him, all I •know is a man named Sam Key sold them to me, and he had lived in the community off and on for ten or fifteen years; he is one of the Key boys that lived in and near Port Towson; he was living north of Wright City; I do not know where he is now.”

Lewis Collins testified for the defendant, and stated:

“I know Hoy Rhoden; I saw him buy some horses •from Sam Key; Sam Key came to where Roy Rhoden and I were and wanted to sell two horses; Cooney-Ra.y-Cald-well was with us; I have known Sam Key for sixteen years. The horses were at the Howard Wynn Gin and we went down to look at them; Sam Key used to live in the mountains in the neighborhood of the Cypress School House north of Wright City. Roy Rhoden is a trader. He kept his stock in Halls lot at Fort Towson. He had a pasture south of Fort Towson known as the Woodchop pasture.”

Ray Caldwell in substance testified to the same facts as did the witness Lewis Collins.

The defendant has filed thirteen assignments of errpr. His thirteenth assignment is the only assignment necessary to be considered, as it states:

“Because the trial court erred in overruling defendant’s motion for a new trial.”

The other assignments are set forth in the motion for a new trial. The defendant in his brief has incorporated, either in substance or detail, all of the evidence that was introduced in the case, and states this testimony was incorporated in the brief in order that the court may see and realize that the verdict fo the jury is contrary to the evidence, contrary to the law, and is. the result of bias, passion, or prejudice on the part of the jury.

The first argument presented by the defendant is the seventh assignment of error, directed at the action of the court in disqualifying O. F. Stewart and his regular deputies to serve any process in the case, and the appointment of special officers, O. B. Hubbard and Forrest Parson, as special deputies to summons twelve talesmen to serve as jurors. The defendant insists that the action of the court in disqualifying the regular sheriff and his deputies is a reversible error. With this contention of the defendant that the court committed reversible error in having the special deputies to summon the talesmen ordered by the court we cannot agree.

Section 800, O. S. 1931, is as follows:

“At any time during the term of any court, after the petit jury has been drawn and summoned in the manner herein provided for, when, for the trial of any cause, civil or criminal, the regular panel of jurors shall appear to be insufficient, the jury may be completed from talesmen, or the court may direct that an open venire be issued, to the sheriff or other suitable person, for such number of jurors as may be deemed necessary, to be selected from the body of the county, or from such portion of the county as the court may order: Provided, that no person shall serve as a talesman of tener than once a year.”

It will be seen from this statute that when the regular panel is exhausted, or shall appear to be insufficient, the court may direct. that an open venire be issued to the sheriff or other suitable person to summon such other jurors as may be deemed necessary to be selected from the body of the county, or from such portion of the county as the court may order.

The record shows the sheriff’s name was on the information as a witness, and the court seemed to have taken every precaution necessary to see the defendant had a panel of impartial jurors to sit in the trial of his case. The récord fails to show how many of the talesmen served by tbe special officers were empaneled in tbe trial of tbe case, if any, and there is no charge that tbe jury was impartial, unfair, biased, or prejudiced against the defendant by reason of tbe fact that they were summoned by a special officer to appear as tbe jurors ordered to be summoned by tbe court.

Tbe action of the court in ordering tbe jurors named in tbe special yenire to be summoned by tbe special officer did not bias or prejudice tbe rights of tbe defendant or prohibit him from having a fair and impartial trial. There is nothing in the record to show that tbe court acted unfairly in ordering the special venire to be served by tbe special officers, and tbe contention of tbe defendant as to tbe action of tbe court being unreasonable is untenable and without merit. No authorities are cited by tbe defendant supporting bis contention.

Tbe defendant complains that tbe court erred in permitting tbe testimony of L. M. Pack, taken at tbe preliminary trial, to be read in evidence in the trial of bis case, on the ground that it is not sufficient to show that tbe defendant Carl Pruitt Avas confronted by tbe witness in the preliminary trial at the time tbe witness Pack is alleged to have given tbe testimony introduced. It is true, as argued by tbe defendant, that article 2, § 20, of tbe Constitution provides, among other things, that tbe defendant shall be confronted by tbe witnesses against him.

An examination of tbe record shows that he must have been confronted by tbe witness L. M. Pack at tbe preliminary trial, for tbe reason the following questions were propounded to L. M. Pack and tbe following answers given:

“Q. Do you know Carl Pruitt, tbe defendant here? A. Yes, sir. Q. You bought these two ponies of Carl Pruitt here? A. Yes, sir.”

It is further shown the defendant on the witness stand admitted he sold the ponies to L. M. Pack, of Dallas, Tex. He testified be bought them from Roy Rhoden. On the showing made it was not error for the court to admit the transcript of the testimony of L. M. Pack taken at the preliminary trial.

The testimony in this case shows that the defendant had possession of these ponies at Port Towson, and that he took them away from Fort Towson in what is described by the witness as a pickup, and some time later he took .the ponies to Dallas and sold them to L. M. Pack. He testified he bought them from Roy Rhoden. Rhoden saysi he bought them from Sam Key. Sam Key was not present at the trial. It was shown that Sam Key went with the owner of the ponies to L. M. Pack’s place, in Dallas, Tex., and identified the ponies. All of this testimony was presented to the jury under proper instructions of the court.

In Parnell v. State, 39 Okla. 361, 265 P. 660, in the first paragraph of the syllabus this court said:

“Where there is evidence from which a jury may reasonably and logically find the guilt of an accused, the weight and credibility of such evidence is for the jury, who see and observe the witnesses, and this court will not substitute its judgment in such case for that of the jury.” Carruthers v. State, 60 Okla. Cr. 173, 63 Pac. (2d) 118.

In Pickett v. State, 35 Okla. Cr. 60, 248 Pac. 352, in the first paragraph of the syllabus this court said:

“Where the evidence and the reasonable and logical inferences and deductions to be drawn from it are sufficient to convince the jury beyond a reasonable doubt of the guilt of a defendant, this court will not disturb the verdict for insufficiency.” Choate v. State, 37 Okla. Cr. 314, 258 Pac. 360; Campbell v. State, 23 Okla. Cr. 250, 214 Pac. 738; Carruthers v. State, supra.

The jury heard all the evidence and had an opportunity to judge the demeanor of the witnesses on the stand, and from the verdict returned it is clear that they did not believe the statements of defendant’s witnesses. The evidence is sufficient to sustain the judgment.

The defendant was accorded a fair and impartial trial. There are no errors in the record that would justify this court in reversing the case.

The judgment is affirmed.

EDWARDS, P. J., and DOYLE, J., concur.


author: EDWARDS, P. J.

text:
    Ex parte FRED H. REILY.
    No. A-9222.
    Nov. 25, 1936.
    (62 Pac. [2d] 1035.)

      George F. Short, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, for the State.
   EDWARDS, P. J.

This is an original proceeding in habeas corpus. Petitioner alleges he is unlawfully restrained by the sheriff of Pottawatomie county on a judgment of direct contempt imposed by the district judge. That such judgment is a denial of a constitutional right to he heard before the imposing of punishment. This court issued a writ directed to the sheriff returnable November 24, 1936. No return has been filed.

The transcript of the proceedings showing that petitioner, as an attorney, was engaged in a trial at the time of the contempt adjudged is in part as follows:

“By Mr. Monnet: Q. But you had1' your ten thousand dollars, didn’t you? Mr. Fred H. Reily: We object as repetition. The Court: Sustained. Mr. Reily: Trying to brow-beat this old gentleman, this witness. (Whereupon the jury was excused from the courtroom, and the following proceedings were had in the absence of the jury.) The Court: I hope that I am personally not getting to the point— Mr. Reily: If the court please, if I said anything I would like to withdraw it from the record, if I said anything I ought not to, and I apologize to the court for anything I have said. The Court: The court does not feel that it can accept your apology. I want to say, Mr. Reily, that I hesitate, being a young man as I am; to criticize members of the bar that have been here much longer than I have, but it has come to the place in conducting this court that it is necessary that I adopt some measures of stopping such practice. Counsel knows, being an experienced member of the bar, that such remarks are highly prejudicial, improper and contemptuous. That is the reason I say I hope I am not letting my personal feelings get away with me, but I have taken just about all I can take as presiding Judge in conducting this trial. For that reason the court finds yon guilty of contempt and fines you $25. Mr. Reily: I want time to sue out a writ of habeas corpus with the Criminal Court of Appeals. The Court: Counsel is ordered and directed at this time to pay the $25. Mr. Reily: I refuse to' pay it, and I will sue out a writ of habeas corpus. I had an absolute right to malee my record. The Court: Counsel is remitted (sic) to the county jail for the further period of 24 hours.”

It is doubtful if any contempt is shown. If so, it must be for some extraneous reason not apparent on the face of the transcript. This occurred November 7th. The written commitment was not filed until November 9th.

It is the duty of the officer to whom a writ or rule to show cause is issued to make return. Section 689, Okla. St. 1931. When no return is filed, the court may discharge petitioner. Ex parte Pruitt, 31 Okla. Cr. 294, 238 Pac. 501; Ex parte Owens, 37 Okla. Cr. 118, 258 Pac. 758; Ex parte Bass, 139 Okla. 31, 280 Pac. 824.

The transcript discloses that punishment was imposed without petitioner being given an opportunity to be heard. This right to be heard is constitutional. Article 2, § 25„ Const., section 13437, Okla. St. 1931; Ex parte Sullivan, 10 Okla. Cr. 465, 138 Pac. 815, Ann. Cas. 1916A, 719; Pryor v. State, 48 Okla. Cr. 91, 290 Pac. 345. The denial of this right goes to the jurisdiction to assess punishment. When this right is denied, the court has no jurisdiction to enter judgment, and if he attempts to do so, his act is void and the person imprisoned under such judgment may have his conviction inquired into in a habeas corpus proceeding. Ex parte Sullivan, supra; Ex parte Brown, 43 Okla. Cr. 339, 278 Pac. 671.

There is a further reason why petitioner should be discharged. The law requires the commitment issued on a judgment for contempt shall set forth the substance of the offense. Section 1959, Okla. St. 1931. Ex parte Dawes, 31 Okla. Cr. 397, 239 Pac. 689. The commitment here makes no pretense of stating the substance of the offense.

The judgment entered is void, and the commitment is void. The writ is awarded, and the petitioner is discharged.

DAVENPORT and DOYLE, JJ., concur.


text:
    ABE FERGUSON v. STATE.
    No. A-8979.
    Nov. 28, 1936.
    (62 Pac. [2d] 1033.)
    John F. Vaughan, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter ,for convenience referred to as the defendant, was by information jointly charged with Harrol Garrison and Dallas Garrison; was jointly tried with Harrol Garrison, convicted, and his punishment fixed at two years in the state penitentiary.

The information charges Harrol Garrison, Dallas Garrison, and Abe Ferguson with making a connection with a certain storage tank, the property of the Federal Petroleum Corporation, a corporation.

The testimony on behalf of the state shows that Ernest Knorr stated he was the agent of the Federal Petroleum Company on the 16th day of January, 193'5; that the company had some storage tanks wherein they kept gasoline and kerosene; on the night of the 15th, or the early part of the 16th, he was called to the tanks and found a garden hose had been dropped into the tank from the opening on top of the tank and gasoline was running out- into a barrel near the tank. Considerable evidence was introduced as to barrels being found at other places.

Dallas Garrison, testifying for the state, stated be went down to the Federal Petroleum tanks and that he took a garden hose with him; that he got the hose at Abe Ferguson’s house.

The agent, Ernest Knorr, who testified he was the agent of the Federal Petroleum Company, on direct examination undertook to say the cap was on the top of the tank, but on cross-examination he could not say positively that it was; that the cap might have been off the opening in the tank the gasoline was being syphoned out of.

The defendant demurred to the testimony offered on behalf of the state as being insufficient to prove, or tend to prove, the material allegations contained in the information, and stated said allegations wholly fail to show the making, of the connection with the storage tank used for the purpose of storing gasoline.

The defendant was charged with the violation of section 2274, O. S. 1-931, which is as follows:

“Any person who shall unlawfully make or cause to be made any connection with or in any way tap or cause to be tapped, or drill or cause to be drilled a hole in any pipe or pipe line or tank laid or used for the conduct or storage of crude oil, naphtha, gas or casinghead gas, or any of the manufactured or natural products thereof, with intent to deprive the owner thereof of any of said crude oil, naphtha, gas, casinghead gas or any of the manufactured or natural products thereof, shall be guilty of a felony, and upon conviction shall be punished by confinement in the penitentiary for a term of not less than one year nor more than five years.”

We have quoted in substance the testimony. The Attorney General in his brief admits that the evidence is to some extent circumstantial as to whether or not the defendant by his actions violated the section of the statute under Avhich he is charged. The Attorney General further admits- that Dallas Garrison, if his statement be true, is an accomplice of this defendant, and that Dallas Garrison testified he did not actually witness the hose being put in the tank, and he does not know who put it in the tank. The only statement Dallas- Garrison made is that he got the hose at the home of the defendant. The accomplice is not corroborated by any witness connecting the defendant with the crime.

Considering the evidence as shown by the record, it is not deemed necessary to extend this opinion further than to say there is no positive proof on behalf of the state showing any property belonging to the Federal Petroleum Corporation, a corporation, was interfered with, nor is there any evidence showing that the Federal Petroleum Corporation, a corporation, and the Federal Petroleum Company is one and the same corporation. The proof is silent on this point. The evidence does not sustain the allegations in the information. There is no evidence that the Federal Petroleum Corporation, a corporation, was the owner or had any interest in the tank alleged to have been connected with, or the gasoline alleged to have been taken.

There is no evidence to show the quantity of gasoline taken, or its value. The defendant, if guilty of any offense, is guilty of the larceny of the quantity of gasoline alleged to have been taken, and in the absence of proof of its value the district court would be without jurisdiction to try the defendant. The evidence is insufficient to sustain a conviction under section 2274, O. S. 1931.

There are other errors assigned by the defendant but the view we take of this record it is not necessary to consider them. For the reason stated herein the judgment of the trial court is reversed.

EDWARDS, P. J., and DOYLE, J., concur.


text:
    RALPH PAYNE v. STATE.
    No. A-9085.
    Dec. 5, 1936.
    (63 Pac. [2d] 779.)

      Clearman & Ellis and Francis K. Trimble, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

Ralph Payne, the defendant in the lower court, was by information charged with mayhem; was tried, convicted, and sentenced to a term of four years in the state penitentiary, from which judgment and sentence he appeals.

Arthur Trammell, a witness for the state, in substance stated:

“I am acquainted with Ralph Payne and Orval Grim. On June 22, 1935, I was running a filling station at 283 South Cheyenne. About 9 o’clock in the morning Ralph Payne came to the filling station and told me to give him four gallon of gasoline. While I was servicing the car, Orval Grim came up, got out of his car, and went into the filling station. Ralph Payne also went in; they ask me if I had a deck of cards and I told them I thought I had; they went into the back room and was playing cards. Later I heard a noise back of the filling station and ran back there and found Ralph and Orval in a clinch down on the floor; Orval had Ralph’s head between his legs, and as I entered the door hit him in the face with his fist and on the back with a bottle. I separated them, they stood there and cussed each other for a while, calling each other vile names. I told Ralph to get out; and Ralph said he was sorry. I also told Orval to get out; he wanted to argue with me. I walked slowly toward the front part of the building. Before I got to the front of the building Orval was calling me to come there; when I got there Ralph was in a stooping position, I put my hand on him and told him to turn Orval loose, and to not hit him any more. Orval was lying on the floor; I did. not see anything in Ralph’s hand at that time but later I saw a pair of pliers; I told Ralph to get out, and he said £Grim — you s o— b , you have had enough' — ’ Grim was sitting up by that time; I noticed Grim’s eye was standing out like the whole eyeball was out of the eye. I did not remember seeing any other wounds on his face.
“I saw Ralph after they went to> fighting the second time; I did not see him go to' the car to' get the pliers. I did not see him go back to the room when he engaged in the fight the second time. Shortly after I separated them the second time I saw Ralph had a pair of pliers in his hand.”

All the state’s testimony shows that Grim and Ralph went into the back room at the filling station and engaged in a card game; that an argument came up and; Grim had Payne down when Arthur Trammel separated them, and Payne went out, and two witnesses testify he went to his car and got a pair of pliers and went back into the room. There is no dispute in the testimony on the question that the defendant Payne struck Grim with the pliers, and gouged or punched out one of his eyeballs, which had to be removed, as the doctors could not get it back in the socket.

The defendant admits he met the prosecuting witness, Grim, at the filling station; that they went into the back room at the filling station and engaged in a card game, which grew into a row and a fight, and Arthur Trammell separated them, the defendant claiming Grim owed him $5. The defendant admits that after the first fight he staggered toward the front door, and says he was addled, that he might have gone as far as the front door.

“I thought I would go back and take .another shot, I thought Orval was gone; when I went back Orval made this remark, ‘you damn little s-of— b-, I will whip you any way you want to.’ I realized I had the pliers and reached back and got them and says, ‘You are trying to cover too much territory.’ I first hit him with my fist and then hit him with the pliers, and that knocked him and the chair back together and he fell on his face. I hit him but once with the pliers.”

The foregoing is in substance the testimony.

The defendant has assigned ten errors alleged to have been committed by the trial court. In his brief he argues but one, and that is: “That the verdict of the jury, and punishment fixed by said jury, and judgment of the court are not justified by the evidence. The punishment fixed is excessive and resulted from passion and prejudice rather than from sound and discreet deliberation of the said jury.”

The defendant urges that the prosecuting witness, Grim, was the aggressor in the first altercation, and for that reason he was entitled to defend himself. The proof of the state in this- case shows conclusively that defendant, when Arthur Trammell separated them, left the scene of the difficulty, and went through a hall into another room, and witnesses say the defendant went to his car and got a pair of pliers; the difficulty, so far as the prosecuting witness Grim was concerned, was over; that the defendant again entered the room where Grim was and the fight was renewed. There is no justification shown for the defendant returning to the room where Grim was, and the proof clearly shows that he went to the car for the purpose of getting the pliers to assault and beat Grim with; that when he went back into the room where Grim wras he knocked him down and punched out one of the balls of his eyes, necessitating the removal of the same, by reason of the injury he lost one of his eyes.

There is no testimony to justify the action of the defendant. The jury heard the testimony and saw the witnesses, and had an opportunity to judge of their demeanor while on the stand. There is no complaint made as to the law given to the jury by the court. The only argument urged strongly by the defendant is that the punishment is. excessive. With this contention we cannot agree.

It is unfortunate that men lose their temper and fight, bruise, and injure each other, but there is no justification in this record for the defendant in this case, after he left the scene of the difficulty and went outside of the room, to go to his car and get his pliers and go back and beat up the prosecuting witness as the proof shows he did, causing him to lose his eye, thereby maiming and disfiguring him for life.

In Parnell v. State, 39 Okla. Cr. 361, 265 Pac. 660, in the first paragraph of the syllabus, this court said:

“Where there is evidence from which a jury may reasonably and logically find the guilt of an accused, the weight and credibility of such evidence is for the jury, who see and observe the witnesses, and this court will not substitute its judgment in such ease for that of the jury.” Carruthers v. State, 60 Okla. 173, 63 Pac. (2d) 118, and Pruitt v. State, 60 Okla. 210, 63 Pac. (2d) 776.

The defendant was accorded a fair and impartial trial. The court correctly advised the jury as to the law applicable to the facts. There are no errors in the record to justify this court in modifying or reversing the judgment. The judgment of the trial court is affirmed.

EDWARDS, P. J., and DOYLE, J., concur.


text:
    HARLEY DE ARMOND v. STATE.
    No. A-9104.
    Dec. 5, 1936.
    (62 Pac. [2d] 1285.)
    W. H. Cooper, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called the defendant, was convicted of conjoint robbery with firearms, and sentenced to be confined in the state penitentiary for a term of 50 years.

The record in this case was filed in this court on April 6, 1936; no brief has been filed in support of the defendant's assignment of errors. A careful examination of the record discloses no fundamental error. The evidence is sufficient to support the verdict of the jury. The case is therefore affirmed.


text:
    LOUIE DE ARMOND v. STATE.
    No. A-9105.
    Dec. 5, 1936.
    (62 Pac. [2d] 1285.)
    W. H. Cooper,, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called the defendant, was convicted of conjoint robbery with firearms, and sentenced to be confined in the state penitentiary for 35 years.

The record in this case was filed in this court on April 6, 1936; no brief has been filed in support of the defendant’s assignment of errors. A careful examination of the record discloses no fundamental error. The evidence is sufficient to support the verdict of the jury. The case is therefore affirmed.