text:
    C. W. TIPTON v. STATE.
    No. A-10198.
    Feb. 10, 1943.
    (134 P. 2d 154.)
    Zink & Cunningham, of Hobart, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, C. W. Tipton, was! charged in the county court- of Kiowa county with the unlawful possession of intoxicating liquor, was tried, convicted and sentenced to serve 30 days in the county jail, pay a fine of flOQ, and has appealed.

There are many assignments of error set forth in the brief of defendant, but in the view ivhich we have taken of this case it becomes necessary to discuss only one of them.

It is insisted that the court erred in OArerruling the motion filed by the defendant to suppress the evidence for the reason that the description of the property to be searched is defective and insufficient.

The description in the search warrant was as fol-Ioavs :

“The second house south of the Chicoline Peed Mills, being a square white house located between the Blackwell, Enid, .SouthAvestern R.R. Tracks and Eastern Ave. at approximately the southeast comer of the City of Hobart, Kiowa County, Oklahoma.”

The evidence of the defendant was to the effect that there were no buildings in his vicinity known as the Chicoline Feed Mills and that if there had been such a business it would have been necessary to have given the legal description of it because it was not a landmark nor so prominent in itself that it could be found without a resort on the part of the officer to other evidence to ascertain its location.

Two witnesses testified for the defendant that they did not know anything, about the Chicoline Feed Mills, but that they did know of the Chickasha Cotton Oil Company, which was located near the home of defendant. It further appears that the railroad tracks mentioned in' the search warrant had been owned by the St. Louis & San Francisco Railroad since 1910. That prior to such time it had borne the name of Blackwell, Enid, Southwestern Railroad. The evidence of the state further disclosed that there were several buildings between the tracks commingled together, some of them belonging to the Chick-asha Cotton Oil Company and some to the Chicoline Feed Mills. The Chicoline Feed Mills were not known generally in the community and none of the witnesses who testified knew exactly which of the buildings belonged to- the Chicoline Feed Mills and which to the Chickasha Cotton Oil Company. It is further shown that the house of defendant was over two< blocks from the southeast corner of the city.

Under this state of the record it is apparent that an officer executing the search warrant would have been unable to have served it upon the defendant at his residence without resorting to evidence outside of the description contained in the search warrant to determine the correct location of defendant’s home.

It is settled law that the place to be searched must be described in the search warrant with such reasonable certainty that the officer to whom it is directed has no discretion as to the place to be searched but can ascertain it from the search warrant itself. Cook v. State, 40 Okla. Cr. 219, 267 P. 1045; Wofford v. State, 40 Okla. Cr. 18, 266 P. 494; Smith v. State, 40 Okla. Cr. 366; 269 P. 376; Preston v. State, 42 Okla. Cr. 372, 276 P. 784, reversing 40 Okla. Cr. 403, 269 P. 507; Linderman v. State, 43 Okla. Cr. 166, 277 P. 602.

For the reasons hereinabove stated, the court erred in overruling the motion to suppress the evidence.

The judgment of the county court of Kiowa county is accordingly reversed and the defendant discharged.

BAREFOOT, J., concurs. DOYLE, J., absent.


source: Caselaw Access Project

author: DOYLE, J. DOYLE, J.

license: Public Domain

text:
    JOHN W. CASSELL v. STATE.
    No. A-10155.
    Sept. 2, 1942.
    On Petition for Rehearing Feb. 10, 1943.
    (128 P. 2d 1016; 134 P. 2d 372.)

      Walter H'ubbell and Wm. T. Powell, both of Walters, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, J.

The information in this case in substance charges that in Cotton county on the 18th day of October, 1940, defendant, John W. Cassell, did then and there, unlawfully and feloniously, in the daytime, take, steal, and carry away without the knowledge or consent and against the will of one Walter Cooper, 14 turkeys, the personal property of the said Walter Cooper, with the unlawful and felonious intent to deprive the owner thereof.

Upon his trial a verdict finding the defendant guilty as charged was returned and his punishment fixed at a fine of $50.

Motion for new trial was duly filed and overruled. He has appealed from the judgment rendered on the verdict May 12, 1941. The petition in error with .case-made attached was filed in this court on October 6, 1941.

The grounds of the motion for new trial and set forth in the petition in error are: That the court erred in overruling defendant’s demurrer to the evidence, for the reason there was a material variance between the information and the proof, and that the verdict of the jury is not supported by sufficient evidence, and is contrary to the law and the evidence.

The information was drawn under section 2276, Sts. 1931, 21 O. S. 1941 § 1719, which provides :

“Every person who shall take, steal and carry away any domestic fowl, or fowls, and any person purchasing or receiving such domestic fowl, or fowls, knowing them to have been stolen, shall be guilty of grand larceny, regardless of the value thereof, and upon conviction shall be punished by imprisonment in the penitentiary not exceeding five years, or by fine not exceeding two hundred dollars, or by confinement in the county jail not exceeding two months, or by both such fine and imprisonment. Laws 1915, ch. 55 § 1; Laws 1929, ch. 20, p. 17 § 1.”

The material facts in the case, as disclosed by the record, are substantially as follows:

Walter Cooper lived in Cotton county, eight miles south and three and a half miles west of Walters. On October 18, 1940, he missed 14 of his turkeys; later found 13 of his turkeys at the B. & O. Cash Store, in Temple. One of the 13 had one of his toes cut off, and the turkeys appeared to have been swabbed with iodine, and he had been using that in doctoring them for canker mouth. His daughter, Helen, age 19 years, lived at home, claimed the turkeys, she had run after them and looked after them, but he owned the old turkeys and the family got the benefit of what the turkeys sold for.

Several other witnesses for the state identified the turkeys as being the property of the Cooper family.

The defendant sold the B. & 0. Cash Store 14 turkeys the same day.

As a witness in his own behalf, the defendant testified that the turkeys he sold to the B. & O. Store were turkeys that he had raised himself. The testimony of his wife and son was in support of his defense, and three qualified as character witnesses and testified that his reputation as a law abiding citizen was good.

It would serve no useful purpose to give a further synopsis of the testimony; the jury, after due consideration, decided the issues of fact adversely to the defendant.

The fact that the minor daughter of the alleged owner of the stolen turkeys claimed the turkeys cannot be held to constitute a variance, because the actual status of the legal title to stolen property is no concern of the thief. 25 Cyc. 89.

The Code of Criminal Procedure 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.” Sec. 2888, Sts. 1931, 22 O. S. 1941 § 406.

In the case of Little v. State, 21 Okla. Cr. 1, 204 P. 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.”

The possession of the property by the alleged owner, Walter Cooper, was sufficient to make it the subject of larceny, and the title may be held either in the owner or the possession from whom it is taken.

It is well settled that 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. Dickson v. State, 28 Okla. Cr. 378, 231 P. 315; Keasler v. State, 38 Okla. Cr. 255, 259 P. 1059; Gunter v. State, 16 Okla. Cr. 476, 184 P. 797; Ponoksy v. State, 8 Okla. Cr. 116, 126 P. 451.

While the evidence is conflicting, it is the province of the jury to determine whom of the witnesses to believe, and Avhom to disbelieve, or whose testimony to disregard, and to declare by their verdict what the truth is.

Where there is substantial evidence to support the verdict, this court will not reverse the conviction on the ground of the insufficiency of the evidence. It is only where the evidence obviously does not warrant the inference of guilt that the court will interfere.

After an examination of the entire record, we are satisfied that the substantial rights of the defendant have not been prejudiced by any error of law, and we find no good reason for disturbing, the verdict because of insufficient evidence to sustain it.

The judgment of the district court of Cotton county herein is therefore affirmed.

BAEEFOOT, P. J., and JONES, J., concur.

On Petition for Rehearing.

DOYLE, J.

A petition for rehearing was filed in this case on the 9th day of September, 1942. In this petition it is alleged:

“That said plaintiff in error did on the 12th day of May 1942, forward by mail to the Attorney General of Oklahoma his written brief in said cause but by some oversight same was not filed by said Attorney General after service upon him in this case. Plaintiff in error does hereto- attach said brief to- this petition in error and make it a part hereof.”

The petition was granted and counsel for defendant was permitted to orally argue the same, which was done on the 22nd day of October, 1942, and this case was resubmitted and has again been considered. It was revealed at the time of oral argument that counsel for defendant forwarded by mail copies of brief addressed to-the Attorney General, and not to the clerk of this court. For some reason these briefs were- not filed with the clerk of this court prior to the decision of September 2, 1942. It was a mistake of counsel to send copies o-f his brief to the Attorney General instead of to the clerk. However, we have now carefully examined the briefs, have heard oral argument, and reconsidered the record and are of the opinion that we came to the correct conclusion in the decision rendered on the 2nd of September, 1942. However, that part of the- opinion and syllabus which refers to briefs not having been filed by counsel for defendant is withdrawn and the judgment and sentence of the district court of Cotton county is affirmed and the petition for rehearing denied, and mandate ordered to issue immediately.


author: BAREFOOT, J. DOYLE, J.

text:
    G. M. COBURN v. STATE.
    No. A-10057.
    Feb. 17, 1943.
    (134 P. 2d 372.)

      J. M. Springer, of .Stillwater, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and David P. Hervey, Co. Atty., of Stillwater, for defendant in error.
   BAREFOOT, J.

Defendant, G. M. Cobum, was charged in the county court of Payne county with the crime of unlawful possession of intoxicating liquor, to wit, 15 pints of whisky; was tried, convicted, and sentenced to pay a fine of $100 and to serve 60 days in the county jail. From this judgment and sentence he has appealed.

A motion to dismiss this appeal has been filed by the state. A response thereto has been filed by defendant. From an examination of the record the motion to dismiss the appeal is overmled and this case, which has been briefed both by the defendant and the state, will be considered on its merits.

The charges arise by reason of a search of the premises or home of defendant a mile and a half northwest of the city of Stillwater, on June 5, 1940, by three deputy sheriffs of Payne county, who searched the premises by reason of a search warrant, and found therein 15 pints of tax-paid whisky; three pints in the refrigerator and twelve pints in the basement.

The first contention of defendant is that the whisky which was offered in evidence was not properly identified. It is unnecessary to state the evidence. We have carefully examined the record, and the officers who conducted the search identified the whisky and also the box in which it was placed, and on which the names of the officers were written at the time of the search. There is no merit in this contention, and it is highly technical.

It is also contended that the county attorney propounded questions to defendant which attempted to degrade the defendant before the jury. One of these questions was: “Q. Well, how many brands of whisky did they take from you?” And at another time, when being questioned with reference to the search of his premises, he was asked: “Q. Had they ever done that before? A. Yes.” This answer was stricken out of the record by the court. It is evident that the defendant was not prejudiced by these questions. Nor was he prejudiced by the fact that the county attorney excepted to some of the rulings of the court. There is nothing in the record to show that the exceptions were taken for the purpose of prejudicing the rights of the defendant.

It is next contended that the court erred in refusing to give certain requested instructions. We have examined these instructions. Every point covered by these special instructions that was proper and material to the issues involved was included in the general instructions given hy the trial court.

The contention that the court erred in giving instruction No. 8 cannot be sustained. The case of Walton v. State, 53 Okla. Cr. 24, 3 P. 2d 213, cited by defendant, does not sustain this contention. This instruction embodies the very terms which the court in that case holds to be a proper instruction based upon the statute with reference to “prima facie evidence.”

There is nothing in the record which shows that this defendant did not have a fair and impartial trial. This court by an examination of its own records recalls that this defendant has been before it on other occasions. Hisl persistence in violating the terms of the prohibition laws seems to have no end, notwithstanding his age and physical condition.

The judgment and sentence of the county court of Payne county is affirmed.

JONES, P. J., concurs. DOYLE, J., dissents.

DOYLE, J.

(dissenting). With what intent a persons keeps intoxicating liquor is always a question for the jury, to be determined upon a consideration of the evidence; in the determination of that question the jury is required by the statute to consider the keeping of a certain amount of intoxicating liquor as “prima facie evidence” of an intention to convey, sell or otherwise dispose of such liquor, but the evidence may be rebutted by other evidence in the case, whether shown by the evidence on the part of the defense, or by the state in connection with the evidence proving possession, if any has been proved, the jury must also take into consideration the presumption of innocence of the accused until the contrary is proved beyond a reasonable doubt.

In the case of Committi v. State, 28 Okla. Cr. 380, 231 P. 316, 317, under the statute (sec. 2626, O. S. 1931, 37 O. S. 1941 § 82) we said:

“It is error to charge that ‘the term “prima facie,” as used herein, means that it is such evidence as in the judgment of the law is sufficient to establish the fact of unlawful intent, if it be credited by the jury, unless rebutted, and the contrary proved, and remains sufficient to establish the unlawful intent,’ because it places upon defendant the burden of raising a reasonable doubt, of his unlawful intent to so convey, sell, or dispose of such liquor. Since the statute only means to make such evidence competent and sufficient to establish the unlawful intent, unless rebutted, or the contrary proved, yet it does not make it obligatory upon the jury to convict after the presentation of such proof. Whether or not such evidence is sufficient to overcome the presumption of innocence of a defendant and establish his guilt beyond a reasonable doubt, when all the evidence, including the presumptions, is considered, is for the determination of the jury.”

Counsel for defendant requested the court to give the following instruction:

“The court instructs the jury that the term ‘prima facie’ evidence as used in the statute, and as heretofore defined to you in these instructions, is such evidence as in the judgment of the law is sufficient to- establish the fact, if it be credited by the jury, and evidence of such possession is sufficient to establish the unlawful intent, •unless rebutted or the contrary proven, yet it does not make it obligatory upon the jury to convict, after the presentation of such proof, whether or not such evidence is sufficient to overcome the -presumption of innocence of the defendant and to establish his guilt beyond a reasonable doubt, when all the evidence, including the presumptions, is considered, is for the determination of the jury, and the term ‘prima facie’ evidence as applied to the evidence does not shift the burden of proof.”

The instruction requested should have been given. Citing Huff v. State, 12 Okla. Cr. 138, 152 P. 464; Beal v. State, 12 Okla. Cr. 157, 152 P. 808; Butler v. State, 12 Okla. Cr. 530, 159 P. 1090.

For the reasons stated, I think the judgment should be reversed and the cause remanded with direction to grant a new trial according to law.


author: JONES, P. J.

text:
    INA WOOD v. STATE.
    No. A-10199.
    Feb. 17, 1943.
    (134 P. 2d 1021.)

      George Croom, of Tulsa, Stanley Belden, of Cush-ing, and Herman Rosenfeld and Samuel A. Neuburger, both of New York City, for plaintiff in error.

      Arthur Garfield Hays, and Joseph A. Klausner, both of New York City, for American Civil Liberties Union.
    John Lee Smith, of Throckmorton, Tex., and Sam S. Gill, of Oklahoma City, for Knights of Pythias.
    Osmond K. Fraenkel, of New York City, for National Lawyers Guild.
    Abraham J. Isserman, of Newark, N. J., and Nathan Witt, of New York City, for National Federation for Constitutional Liberties.
    Ralph B. Gregg, of Indianapolis, Ind., and Fred A. Tillman, of Pawhuska, amici curiae for American Legion.
    Mac Q. Williamson, Atty. Gen., and Lewis R. Morris, County Atty., and John Eberle, Asst. County Atty., both of Oklahoma City, for defendant in error.
   JONES, P. J.

The defendant, Ina Wood, was charged by an information filed in the district court of Oklahoma county with criminal syndicalism, was tried, convicted and sentenced to serve ten years imprisonment in the State Penitentiary and to pay a fine of $5,000, and,has appealed.

The information filed against defendant is identical to the information filed against Alan Shaw, which was construed by this court in the case of Shaw v. State, 76 Okla. Cr. 271, 134 P. 2d 999, this date decided.

The state’s proof herein is substantially a repetition of the proof offered in the ;Shaw Case. The same books, records, and writings introduced in the Shaw Case were introduced as exhibits and incorporated as a part of the record in the trial of this defendant. It was agreed by counsel for the state and defendant that the same questions of law appeared in the instant case as were discussed by this court in the case of Shaw v. State, supra, and that the disposition of Shaw v. State would control in the disposition of this case.

In accordance with this agreement and by reason of the admission as evidence of boohs, pamphlets, and writings without a proper predicate being laid for their admission, and for the failure of the court to submit to the jury the issue as to whether the advocation of the principles purportedly advocated by defendant created a clear and present danger of the commission of unlawful acts to bring about an industrial or political change in our government by such means, the judgment of the district court of Oklahoma county must be reversed.

It is therefore ordered that the judgment of the district court of Oklahoma county be and the same is hereby reversed and this cause is remanded for further proceedings against the defendant in accordance with the views which we expressed in the case of Shaw v. State, supra.

BAREFOOT, J., concurs. DOYLE, J., absent and not participating.


text:
    ELI JAFFEE v. STATE.
    No. A-10185.
    Feb. 17, 1943.
    (134 P. 2d 1027.)

      George Groom, of Tulsa, Stanley Belden, of Cushing, and Herman Rosenfeld and Samuel A. Neuburger, both of New York City, for plaintiff in error.
    Arthur Garfield Hays, and Joseph A. Klausner, both of New York City, for American Civil Liberties Union, amicus curiae.
    John Lee Smith, of Throckmorton, Tex., and Sam S. Gill, of Oklahoma City, for Knights of Pythias, amicus curiae.

      Osmond K. Fraenkel, of New York City, for National Lawyers Guild, amicus- curiae.
    Abraham J. Isserman, of Newark, N. J., and Nathan Witt, of New York City, for National Federation for Constitutional Liberties, amicus curiae.
    Ralph B. Gregg, of Indianapolis, Ind., and Fred A. Tillman, of Pawhuska, for American Legion, amicus curiae.
    Mac Q. Williamson, Atty. Gen., and Lewis R. Morris-, Co. Atty., and John Eberle, Asst. Co. Atty., both of Oklahoma City, for defendant in error.
   JONES, P. J.

The defendant, Eli Jaffee, was charged by an information filed in the district court of Oklahoma county with criminal syndicalism, was tried, convicted and sentenced to serve ten years imprisonment in the State Penitentiary and to- pay a fine of $5,000, and has appealed.

The information filed against defendant is identical to the information filed against Alan Shaw, which was construed by this court in the case of Shaw v. State, 76 Okla. Cr. —, 134 P. 2d 999, this date decided.

The state’s proof herein is substantially a repetition of the proof offered in the Shaw -Case, with the exception that Eli Jaffee told the county attorney after he was arrested that he was a member of the Communist Party. The remainder of the case is identical with the :Shaw Case. The same books, records, and writings introduced in the Shaw Case were introduced as exhibits and incorporated as a part of the record in the trial of this defendant. It was agreed by counsel for the state and defendant that the same questions of law appeared in the instant case as were discussed by this court in the case of Shaw v. State, supra, and that the disposition of Shaw v. State would control in the disposition of this case.

In accordance with this agreement and by reason of the admission as evidence of books, pamphlets, and writings Avithout a proper predicate being laid for their admission, and for the failure of the court to submit to the jury the issue as to whether the advocation of the principles purportedly advocated by defendant created a clear and present danger of the commission of unlawful acts to bring about an industrial or political change in our government by such means, the judgment of the district court of Oklahoma county must he reversed.

It is therefore ordered that the judgment of the district court of Oklahoma county be and the same is hereby reversed and this cause is remanded for further proceedings against the defendant in accordance with the views Avhicli we expressed in the case of Shaw v. State, supra.

BAREFOOT, J., concurs. DOYLE, J., absent and not participating.


author: BAREFOOT, J.

text:
    CHARLES (BUD) RICHARDSON v. STATE.
    No. A-10158.
    Feb. 17, 1943.
    (134 P. 2d 375.)

      Wm. T. Powell, of Walters, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., J. Walker' Field, Asst. Atty. Gen., and C. C. Campbell, Co. Atty., of Walters, for defendant in error.
   BAREFOOT, J.

Defendant, Charles (Bud) Richardson, was charged in the district court of Cotton county with the crime of larceny of an automobile, was tried, convicted and sentenced to serve a term of five years in the penitentiary, and has appealed.

For a reversal of this case, the following errors are assigned:

“(1) That the testimony of the accomplices of the defendant was not corroborated, and that the state’s evidence by reason thereof is insufficient to support the conviction.
“(2) That the evidence of the state wholly failed to show that the automobile in question was taken by the defendant for the purpose of converting the same for his own use and benefit, and that it was taken merely for a joy ride by persons who were under the influence of intoxicating liquor.”

This charge is the outgrowth of the taking of an automobile belonging to Grover Hensley, a citizen of Cotton county, on the night of January 23, 1939. It involves three young men who lived at Wichita Falls, Tex., and who came to Temple, in Cotton county, on January 23, 1939, in a wrecker. The names of the other parties were Wilson Humphreys and Auffie Chase. Wilson Hum-phreys had a brother living in Cotton county, about five miles west and two miles south of Comanche. There was some evidence that the wrecker which they brought from Wichita Falls had been taken without the consent of the owner, but had been taken by Wilson Humphreys, and not by this defendant. This wrecker had been stuck in a ditch, and abandoned. This was on a Friday night, and about January 23, 1939. On that night the three boys went to1 the home of Bob Mooney, in Temple, where Grover Hensley had a room, and took Hensley’s Ford automobile from under a tree in the Mooney yard, and drove it away. Wilson Humphreys drove the car. All of the boys were intoxicated at the time.

The car was driven about eight miles from town, was stuck in a mud hole, and abandoned, the three boys walking to the home of Bill Humphreys, the brother of Wilson Humphreys, arriving there some time Saturday morning. They remained there until Monday morning, when Bill Humphreys took them to Walters, and they returned to their homes in Wichita Falls, Tex. Later they were arrested there, and this charge was filed in Cotton county on February 7, 1941.

The record is not very complete, but it may be inferred that Wilson Humphreys and Auffie Chase entered pleas of guilty to the charge and were sentenced to serve terms in the reformatory at Granite, and while serving their terms were used as witnesses for the state and against this defendant, who stood trial on the charge.

It is the contention of the defendant that the evidence of Wilson Humphreys and Auffie Chase, who were accomplices of the defendant, was not corroborated in the manner prescribed by law.

The statute upon which this contention is based is Oklahoma Statutes 1931, sec. 3071, O. S. A. (1941) Title' 22, § 742, which reads as follows:

“A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of tlie offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof.”

This statute has been construed by this court many times. It is unnecessary to1 cite the cases or quote from them. Each case stands upon the facts of that case, and subject to the legal principles announced in the many cases. Brewer v. State, 63 Okla. Cr. 389, 75 P. 2d 901; Scott v. State, 72 Okla. Cr. 305, 115 P. 2d 763; Lucas v. State, 68 Okla. Cr. 359, 98 P. 2d 933.

In the case of Wilkins v. State, 70 Okla. Cr. 1, 104 P. 2d 289, 303, after citing and reviewing many cases decided by this court, we said:

“Also in the Howerton Case, after citing the cases that have held the evidence sufficient and insufficient to corroborate the accomplice, we say ([65 Okla. Cr. 457], 88 P. 2d [904] 905) :
“ ‘From these different cases it may be determined that in accordance with certain general well-defined propositions of law stated in the different opinions, that each ca.se stands or falls on the particular testimony of that case.’ ”

We have examined the record, and there is no ques.tion but that these witnesses were accomplices of the defendant. It is unnecessary to give in detail a full discussion of the testimony. The fact that they were in Cotton county at the time the automobile was taken and with a previously stolen automobile which had been abandoned, together with the evidence that the three of them went to the home of Bill Humphreys', the brother of one of them, near where the car was stolen, and the voluntary admission of the defendant to the sheriff of Cotton county that he came from Wichita Falls to Temple with the witnesses, and the evidence of the car being stuck in the mud hole while he was in the car, is sufficient corroboration of the testimony of the two accomplices, under the law of this state. The defendant further testified that he knew the car was stolen, but that he did not drive it.

The second contention of the defendant presents a somewhat more difficult situation. While there may be extenuating circumstances in this case, after reading the entire record carefully we cannot say that the evidence is entirely insufficient to support the judgment and sentence. This court, in the case of Hughes v. State, 61 Okla. Cr. 40, 65 P. 2d 544, had before it a case somewhat similar to' the instant case, yet there is a very clear distinction in the facts in that case and this one. There it was shown that the party who took the automobile had no intention of appropriating the same to his own use. The taking thereof was a mistake, and under the belief that it was a car belonging to the brother of the defendant. The case was reversed for this reason. While the evidence here reveals that the defendant and his companions were all intoxicated at the time of taking the car, and that the car was only driven a short distance and abandoned, yet, under all tbe circumstances and in view of the fact that the jury found the defendant guilty, we are unable to say that the case should be reversed.

We do desire, however, to call attention to the fact that we have a statute which deals especially with the taking of an automobile without the consent of the owner, for the purpose of using it for “joy riding”, and not for the purpose of theft. The county attorneys of this state should and will use their good judgment in coming to a conclusion as to when charges should be filed under this statute, which is Okla. Stat. 1931, sec. 1892, Okla. Stat. Ann. (1941) Tit. 21 § 1787, and which carries with it a penalty of not to exceed a fine of $100 and costs. § 1788. The statute under which this defendant was charged and convicted carries with it a penalty of not less than ñve years in the penitentiary, 21 O. S. 1941 § 1720, and this was the punishment he received. Under the law, this being the minimum punishment, we are unable to reduce the punishment, or we would unhesitatingly do so, under the facts in this case.

We have carefully examined the instructions given by the court. No exceptions were taken thereto. They fully protect the rights of the defendant. No special instructions were requested by defendant. An instruction was given by the court with reference to what was necessary to corroborate the evidence of the two accomplices.

Finding no error, the judgment and sentence of the district court of Cotton county is affirmed.

JONES, P. J., and DOYLE, J., concur.


text:
    OSCAR N. O’NEIL v. STATE.
    No. A-9871.
    Feb. 24, 1943.
    (134 P. 2d 1033.)
    David Tant, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., and Lewis R. Morris, Co. Atty., and Walter Marlin, Asst. Co. Atty., both of Oklahoma City, for defendant in error.
   BAREFOOT, J.

Defendant, Oscar O’Neil, was charged in the district court of Oklahoma county with the crime of “Forgery in the second degree after1 former conviction of a felony,” was tried, convicted, sentenced to serve a term of ten years in the penitentiary, and has appealed.

This charge is the outgrowth of the passing and uttering of the following check, as alleged in the information: “Laredo, Texas, May 12th, 1939. No. 88-31.

Laredo National Bank

“Pay to- — Cash—or order $25.00 Twenty-five and no/100 Dollars TJ. S. Government Depository
“(Signed) J. W. Singleton.”
“Endorsed:
“Beatrice E. Williamson
“Tradesmens National Bank
“Oklahoma, National Bank.”

The statute under which defendant was prosecuted is section 2125, Okla. Stat. 1931, Okla. Stat. Ann. 1941, Tit. 21, § 1577:

“Every person who sells, exchanges or delivers for any consideration any forged or counterfeited promissory note, check, bill, draft, or other evidence of debt, or engagement for the payment of money absolutely, or upon any contingency, knowing the same to be forged or counterfeited, with intent to have the same uttered or passed, or who offers any such note or other instrument for sale, exchange or delivery for any consideration, with the like knowledge and intent, or who receives any such note or other instrument upon a sale, exchange or delivery for any consideration with the like knowledge and intent, is guilty of forgery in the second degree.”

The statute with reference to increasing the punishment where a former conviction of a felony is pleaded, is § 1817, Okla. Stat. 1931, Okla. Stat. Ann. 1941, Tit. 21, § 51:

“Every person who, having been convicted of any offense punishable by imprisonment in the penitentiary, commits any crime after such conviction, is punishable therefor as follows:
“1. If the offense of which such person is subsequently convicted is such that upon a first conviction an offender would be punishable by imprisonment in the penitentiary for any term exceeding five years, such person is punishable by imprisonment in the penitentiary for a term not less than ten years.”

The case-made in this case was filed in this court on May 22, 1940. There has been unnecessary delay in disposing of this case. A number1 of reasons exist therefor. The brief of plaintiff in error was not filed until June 11, 1941. On November 6, 1941, a motion was made by the state to dismiss the appeal for the reason that the trial judge had not signed the certificate to the case-made within the time prescribed by the statute. On December 9, 1941, a motion Avas filed by defendant to amend the case-made, and on December 10, 1941, an order was made permitting the withdrawal of the case-made for the purpose of amending the same. On December 12, 1941, the case-made was refiled, as amended. On December 19, 1941, the state was given 30 days within Avhich to file a brief. There was some question as to whether the Attorney General or the county attorney of Oklahoma county would file this brief, and to this day no brief has been filed, either by the Attorney General, or by the county attorney of Oklahoma county.

An opinion was prepared dismissing the appeal and affirming the case for the reason that the trial judge had not signed the certificate to' the case-made within the time prescribed by the statute. When this error was corrected and the case-made refiled, that opinion was not entered.

For a reversal of this case, it is now contended:

“First: Point 1. (Germane to assignments of error 1, 2, 3 and 5) There was a fatal variance between the alleged forged instrument offered in evidence and the' copy set out in the information in that the information alleged the forged instrument to have been signed by J. W. Singleton, and the alleged forged instrument offered in evidence, State’s Exhibit No. 1, was signed J. M. Singleton.
“Second: Point 2. (Germane to 1st, 4th and 5th assignments of error) The information alleged the former conviction of defendant to have been obtained in case No. 100743 in the district court of Oklahoma County, Oklahoma, on July 29, 1936. The evidence introduced in support of this allegation showed a conviction in case No1. 10743, District Court, Oklahoma County, Oklahoma, on the 29th day of September, 1936. Since these allegations related to matters of substance, the variance was fatal and the court should have sustained the defendant’s motion for an instructed verdict.
‘Point 3. (Germane to 1st and 5th assignments of error) The evidence was wholly insufficient to sustain the verdict of the jury for the reason
“(First) There was a failure of proof that the check was false or forged.
“(Second) If fictitious as alleged in the information, that it was signed by the defendant.
“(Third) That the defendant had guilty knowledge of its spurious character.”

The record reveals that it is alleged in the information that the forged check which was uttered and passed, was signed J. IV. Singleton, and the check offered in evidence was signed J. M. Singleton. (A photostatic copy of the check appears in the record, and it reveals a very close resemblance in the letters “W” and “M” in the signature. )

It is contended that this constituted a fatal variance between the allegations in the information and the proof. We have examined many authorities and find that they are in conflict. We have carefully read these cases, and have come to the conclnsion that under the facts and circumstances, and the construction that has been placed upon criminal pleadings by this court, this is not a material variance, or one of substance, and that the court did not err in refusing to SO' hold. Oklahoma cases which seem to uphold the theory that this would be a material variance are: Stokes v. State, 12 Okla. Cr. 378, 157 P. 278; Logan v. State, 47 Okla. Cr. 266, 287 P. 1112; Moss v. State, 4 Okla. Cr. 247, 111 P. 950; and other states: Short v. State, 98 Tex. Cr. R. 472, 266 S. W. 419; State v. Horn, 93 Mo. 190, 6 S.W. 96; and State v. Taylor, 15 Kan. 420, 421.

The cases which support the theory that it would be an immaterial variance are: Wells v. Territory, 1 Okla. Cr. 469, 98 P. 483; Smith v. State, 34 Okla. Cr. 318, 246 P. 883; Dickson v. State, 28 Okla. Cr. 378, 231 P. 315; Leasure v. State, 46 Okla. Cr. 70, 283 P. 1023. Other states: People v. Smith, 103 Cal. 563, 37 P. 516; Beavers v. United States, 6 Cir., 3 F. 2d 860; and People v. Northcott, 46 Cal. App. 706, 189 P. 704, 705.

The second question raised, that the allegation in the information that the prior conviction was in case No. 10011¡S, when the judgment introduced in evidence revealed it was case No. lOUjB, seems to us to be very technical. It is evident that this was a clerical error. When objection was raised thereto, the county attorney announced that there was one too many naughts, and asked that he be allowed to amend the information. While this was not formally done, we do not think this case should be reversed for this reason.

The question that has given us more serious trouble is the allegation in the information that the prior conviction was on the 29th day of July, 1936, and that the judgment introduced in evidence in support of this allegation showed to have been dated the 29th day of September, 1936.

In 58 A.L.R. page 20, et seq., and 82 A.L.R. 345, there appear elaborate notes which discuss statutes embracing penalty for second or subsequent offenses. These notes give citations and discussion of cases from all the different states, and the federal courts. We have read many of the cases, and especially those in which the questions here involved are more closely discussed. The statutes are not all similar, but the principles discussed are very similar.

Without giving the history of these statutes and a discussion of their constitutionality, which may be read in the notes above cited, we will be content to announce some of the general rules which may be arrived at by a reading of the cases closely bearing upon the issues in the instant case.

On page 64 of 58 A.L.R. this rule is announced by the annotator:

“It has been generally held that, in order to subject an accused to the enhanced punishment for a second or subsequent offense, or as an habitual criminal, it is necessary to allege in the indictment the fact of a prior conviction or convictions.”

And on page 66, of 58 A.L.R., it is said:

“The reason or basis for this rule is well stated in Long v. State (Tex.) supra [36 Tex. 6], wherein the court held it necessary to allege in the indictment the fact of the former conviction or convictions, for whatever affects the degree of punishment must be alleged. In discussing the necessity of this allegation in the indictment for the prior offense, the court said: ‘The prisoner is not tried over again for his first offense but he has a right to know that the question of his having committed a first offense is to be presented to the jury, and, if it be shown that he did commit a former offense, that his punishment will be increased thereby, so that he may rebut this fact in any manner the law points out to him. The question of identity certainly may be raised, and he has a right to show that he is not the person named in the former record. He might also show that the court had no jurisdiction to try the case, or that the judgment of conviction had been set aside, a new trial granted him, and that he had been acquitted. How is he to make any of these defenses unless notified by the indictment of the intention of the state to hold him as guilty of a second or third offense? Lord Campbell, Ch. J., in an English case, observed: “A statement of a previous conviction does not charge an offense. It is only the averment of a fact which may affect the punishment. The jury do not find the person guilty of the previous offense; they only find that he was previously convicted of it, as a historical fact.” Reg. v. Clark (1853) Dears. C. C. 198, 201, 169 Eng. Reprint, 694. Apply this principle to the case at bar1. The indictment contains no reference to a former conviction. The prisoner is not put upon his guard, nor enabled to' make any defense against this charge of a former conviction; that is thrown in as a make weight on the trial, and when the state had closed its other evidence, and he is forced to submit without the power of resistance. My understanding of the statute is simply this, that the legislature intended that this fact, like any other material- fact shown against the prisoner, should be shown in strict accordance with the rules and principles of law; and I believe there is no other way in which this can be done, than by giving the defendant timely notice in the indictment that the fact will be shown against him on the trial.’ ”

The great weight of authority sustains the principles announced in this case, and approves the reasoning therein stated. However, tlie application of just what should and should not he stated in the information is at variance in the different cases. And as to what constitutes a “variance” between the allegations of the indictment or information, there is also a conflict. Under the Oklahoma decisions, this general rule has been announced by the great majority of cases:

“A variance in a criminal case is an essential difference between the information and the proof, and a variance is not material unless it is such as might mislead the defense, or expose the defendant to the injury of being put twice in jeopardy for the same offense.” Woods v. State, 22 Okla. Cr. 365, 366, 211 P. 519.

Applying this rule to the case at bar, the inquiry is made, How could the defendant have been misled in offering his defense? Certainly as to the typographical error in the number of the case he could not have been misled. As to the allegation in the information that he was charged as having been convicted on July 29, 1936, when the judgment and sentence introduced in evidence show the conviction to have been on September 29, 1936, we cannot see how this would have prejudiced him or caused him to be twice put in jeopardy for the same offense. Through all the cases which we have read, it has been deemed sufficient to allege the facts of the prior conviction, and the proof of the same by the proper records just as was done in the instant case. It will be observed that the judgment and sentence introduced in evidence in this case give the name of the court and the county in which the judgment and sentence was rendered, it being the identical county in which defendant was charged and was being tried in this case.

It will further be noted that the court clerk of Oklahoma county was placed upon the witness stand and positively identified the defendant as the person who had been charged, tried and convicted in the former case.

We recognize the rule that the burden of proof is on the state to prove the allegations of the information beyond a reasonable doubt. But when this burden is performed, either by direct or circumstantial evidence, the defendant then has the opportunity of presenting his defense. If the defendant had been misled or prejudiced by reason of the error in the number or date, then there would have been a material variance, but we cannot see how defendant was misled or prejudiced. Either of the dates alleged in the information was prior to the time on which he was charged in the case on trial, and a proof of either of these dates would have been sufficient to have sustained the allegations of the information as to his prior convictions. By the great weight of authority and best reasoned cases, it may be said that it is not necessary to allege the date at which the prior conviction occurred. Of course, it would be necessary to show that the conviction was prior to the charge upon which defendant was being tried. There is a line of decisions which hold that where a definite allegation is made in the information, it is necessary that the evidence conform strictly to the allegation as made, and this is especially true as to the allegations of an instrument which is fully set out therein. We see the force of this argument if the allegation is material to the issues involved and is necessary to prove. But if it is immaterial, we do not see the force of this reasoning.

Counsel for defendant cite the case of Childress v. State, 131 Tex. Cr. R. 187, 100 S. W. 2d 102, 103, and which is based upon the case of Morman v. State, 127 Tex. Cr. R. 264, 75 S.W. 2d 886. We concede that the Childress Case is directly in point, and sustains the contention of defendant. However, in view of the decisions of our own court, we refuse to- follow the rule announced in the Childress Case.

In the case of Wilborn v. State, 26 Okla. Cr. 437, 224 P. 214, 215, Judge Bessey, in writing the opinion, said :

“The defendant, in support of this alleged error, cites a number of decisions from the Texas Court of Criminal Appeals. The rules of practice in the Texas Court of Criminal Appeals are more technical than those followed by this court. Our statutes contemplate, and this court has uniformly held, that immaterial technicalities must be disregarded. An information should contain a statement of the acts constituting the offense, in ordinary and concise language, in such manner as to enable a person of common understanding to know what is intended. Section 2555, Comp. Stat. 1921, 22 O. S. 1941 § 401. No information is insufficient by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits. Section 2564, Comp. 'Stat. 1921, 22 O. S. 1941 § 410. The name of the person whose signature was forged was a peculiar one. It is apparent that the defendant could not have been misled by the discrepancy in the spelling of the name. Moreover, it comes within the doctrine of idem sonans, as recognized by this court and by weight of authority in other appellate courts. Claycomb v. State (22 Okla. Cr. 315), 211 P. 429; 19 R.C.L. 1334.”

In the case of White v. State, 58 Okla. Cr. 401, 54 P. 2d 214, 215, this court had before it a case of where a defendant was charged with burglary in the second degree. He was also charged as a second offender. The information charged that he had been convicted in Sedg-wick county, Kansas; of both burglary and grand larceny and had served a term in the State Penitentiary at Lansing. Certified copies of the record of the prior conviction, judgment and sentence were admitted in evidence. It was contended by counsel for defendant that the proof showed that the defendant had been convicted of grand larceny and not of burglary, and that there was therefore a variance between the proof and the allegations of the information. Judge Edwards, in disposing of this contention, said:

“The journal entry of judgment admitted by stipulation recites a conviction for grand larceny and a sentence to the Kansas Penitentiary for a term of five years.
“It is therefore evident that there is no variance in the charge for which defendant was convicted in the state of Kansas and in the information here alleging the prior conviction, and even if there were variance we think it would be immaterial under the provisions of article 6, chap. 15, Okla. Stat. 1931, 21 O. S. 1941, §§ 51 to 54.”

While the facts in that case are not exactly as those in the case here under consideration, the reasoning is the same.

In the case of Jacobs v. United States, 58 App. D. C. 62, 24 F. 2d 890, 891, the Court of Appeals of the District of Columbia held:

“But such an averment of prior conviction does not charge an offense. As stated by Lord Campbell in the case of Reg. v. Clark, 20 Eng. L. & Eq. Rep. 582: ‘It is only the averment of a fact which may affect the punishment. The jury do not find the person guilty of the previous offense; they only find that he was previously convicted of it, as an historical fact.’ It is apparent, we‘think, that Jacobs could have suffered no prejudice because of the averment in the indictment that his prior conviction was on the 7th, instead of on, as the record disclosed, the 17th day of April, 1923. This is even more apparent, when it is considered that a similar discrepancy between the date upon which the second offense was alleged to have taken place and the date of its actual occurrence would not have constituted a variance.”

In McCarren v. United States, 7 Cir., 8 F. 2d 113, the court said:

“The essential thing is that the jury determine whether defendant has been previously convicted.”

As to the contention that the evidence is insufficient to sustain the judgment and sentence, we cannot agree.

The record reveals that the defendant resided in the State of Texas; that he was in Oklahoma City during the month of December, 1938, and was taken to the Detention Hospital on December 23,1938, as a public patient, and released therefrom on January '5, 1939. During this time he met the witness Beatrice E. Williamson, who was a widow with four children, and a nurse at the hospital. He made several visits to the hospital to see her after he was released, and came to see her at least 12 or 15 times between January and May, in that year, and had a number of dates with her. On May 11, 1939, she went from the hospital to the Wells Roberts Hotel with him. While there, in the lobby of the hotel, she was introduced by O’Neil to a man by the name of Singleton. Something was said by O’Neil about getting a check cashed. The next morning, May 12, 1939, the defendant went to the hospital and had with him the check that has heretofore been quoted, and asked Mrs. Williamson to cash the same. She took it to the grocery store where she traded, indorsed it, and secured the sum of $25 thereon, and gave the money to the defendant.

There was introduced in evidence four other checks which the defendant got Mrs. Williamson to indorse and give him the money thereon. All of these checks were returned unpaid, and bore the signatures of various parties. The total amount of money received by defendant as a result of uttering and passing these forged checks amounted to over $100. The previous conviction of defendant was in Oklahoma county, and was the result of passing a forged check in the sum of $1,600, and he was sentenced to serve two years in the penitentiary for this offense.

Under this state of facts, it cannot be contended that the evidence is insufficient to sustain the conviction.

The evidence clearly shows that the defendant deliberately formed a plan and scheme to defraud Mrs. Williamson, and that he secured her confidence, and with deliberate design secured the money from her. When the checks were returned unpaid, the grocer charged them hack to her account, and she was paying them out at the time of this trial.

It may be stated that during the trial it wag contended by defendant that he had made an effort to repay the money, but by reason of not being able to pay the full amount of the checks, his tender had been refused. During the trial, and while the defendant was on the witness stand, the county attorney permitted him to pay the complaining witness the sum of $103.50, the amount of the checks, but not quite enough to pay all of the costs. This was done in the presence of the jury trying the defendant.

Of course, the payment of this money after the filing of the information could not defeat the charge against him, as in embezzlement cases it could only be considered for the purpose of mitigation of the punishment. The minimum punishment being ten years in the penitentiary, the jury could give very little relief.

The judgment and sentence in this case was for a term of ten years. This is the minimum punishment provided by the statutes for the crime for which defendant Avas convicted, taking into consideration the fact that he had been previously convicted of committing a felony. It is therefore impossible for this court to modify the judgment and sentence. We have no hesitancy in saying that had we the power to do so, the sentence would be reduced to a period of five years in the penitentiary.

For the reasons above stated, the judgment and sentence of the district court of Oklahoma county is affirmed.

JONES, P. J., and DOYLE, J., concur.


text:
    LON PRESLEY v. STATE.
    No. A-10032.
    Feb. 24, 1943.
    (134 P. 2d 595.)
    TIendon & Hendon, of Shawnee, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Lon Presley, was charged in the district court of Pottawatomie county by information with the crime of assault with intent to kill, was tried, convicted and sentenced to' serve five years in the State Penitentiary, and has appealed.

The only ground urged for a reversal of this case is that the trial court erred in overruling the motion for continuance filed by defendant.

The motion for continuance reads as follows:

“Comes now the defendant and moves the Court to continue the trial of the above entitled cause now set for hearing on the 11th day of September, 1940, for the reason that said defendant is unable to proceed to trial at this time, and for cause shows:
“1. That defendant has been at all the times during the pendency of this cause in the District court, without estate, or funds with which to employ counsel in the defense of this charge; nor was it possible until the 7th day of September, 1940, through the charity of defendant’s kinsmen in Stephens County, Oklahoma, and in the State of Texas, for defendant to procure funds with which to employ counsel to represent him at this trial; that said defendant, as soon as he was able to procure such funds, defendant did employ and retain the law firm of Hendon & Hendon at Shawnee to make his defense in the District Court; that on account of the short time before said trial, as it is now set, said attorneys have not had sufficient time to counsel with defendant, or to consult with witnesses, and to otherwise prepare for trial, or to defend in this cause.
“2. That said defendant is unable to proceed to trial at this time, for the reason that he is unable to have in Court certain witnesses, whose testimony is vital and necessary in the proper defense of the said Lon Presley, defendant herein.
“That said witnesses: Homer Pruitt of St. Louis, Oklahoma, and Tommie Powers, 200 block South Osage St., Shawnee, Oklahoma, have been subpoenaed, and said subpoena returned not found, and said defendant will be unable to have said witnesses in court at this term, or at this setting of this Court; That said witnesses are only temporary away, and can be present and testify at the next setting of criminal cases in this Court.
“That said witnesses, if present would testify, in substance, as follows: ‘That on the day, and at the time of the difficulty between the complaining witness, and this defendant, and at the time and place of the commission of the act, as alleged to have been committed by the defendant, Lon Presley, the complaining witness, one J. J. Harper, and without the provocation on the part of defendant, picked up an chopping Axe, and while holding the same in his right hand, with said Axe up-raised and threatening defendant, advanced toward the said defendant, and that the said defendant fired the gun in question only after the said Harper had approached dangerously close to the said Presley, and then defendant fired said gun to one side to intentionally miss the said Harper, so as not to injure Harper; that it was only after Presley had warned Harper to drop the Axe,, and to stop, and upon Harper’s failure to stop, did Presley fire the gun resulting in the injury to Harper.’
“Said witnesses will further testify that defendant at the time he appeared in the yard with said gun, that he was chasing a pack of dogs, among, which there was one female dog in heat, being chased by a pack of male dogs; that said dogs had been for.some time in the yard of the said defendant, there deploying themselves according to their canine inclinations, in the presence and to the annoyance of defendant’s family. That it was after defendant had chased said dogs away, and while returning to his house with his shot-gun, that the complaining witness, Harper, appeared from behind Presley, called to him, and commenced the argument, and later was in the act of committing the assault upon the defendant.
“That said defendant is unable to have said witnesses present in court, and to have the advantage of such material testimony, as more fully set forth in the affidavit of the said defendant, Lon Presley, hereto attached as ‘Defendant’s Exhibit A’, as a part of this Motion.”

Attached to the motion is the affidavit of the defendant setting forth that the witnesses would testify to the facts, which affidavit, so far as said facts are concerned, is in the same language as is set forth in the motion. The affidavit further recites that the evidence could not be furnished through any other witnesses.

A short statement of the facts should be made in order to better discuss this contention of the defendant.

The defendant, Lon Presley, lived in a tenant house on the farm and close to the home of J. J. Harper, the prosecuting witness. The defendant owed Harper several months’ rent and Harper had made a demand for payment. About noon on Sunday, October 15, 1939, the defendant fired two shots from a shotgun at Harper, one of them taking effect causing serious bodily injuries from which Harper later recovered.

It was the contention of the state that the defendant, while intoxicated and without provocation, shot Harper as he was emerging from a toilet. The physical facts, including the finding of several shot in the door of the toilet, and the testimony of two eye-witnesses corroborated Harper’s testimony.

The defendant testified that Harper had an axe in his hand and was starting towards him when he was forced to fire in self-defense; that he had taken his gun out in Harper’s yard to chase some dogs that had been annoying him; that he had not had anything to drink until after the shooting.

A consideration Of the motion and affidavit thereto attached shows that it is insufficient on its face to require the court, as a matter of law, to grant the continuance.

In the case of Petty v. State, 11 Okla. Cr. 438, 147 P. 782, it is stated:

“An affidavit for continuance on the ground of the absence of material witnesses, who are out of the state, Which states that the defendant expects to' procure their attendance at the next term of court, to> be sufficient should state the grounds of such expectation, so that the court may determine whether or not it is reasonable.”

The motion of defendant recites that he has issued subpoenas for the two witnesses and they have been returned not found; that said witnesses will be unable to appear during said term of court, but that they can be present and testify in the next setting of criminal cases.

To be sufficient on its face the motion should have stated the whereabouts of the absent witnesses and the facts with reference to when they would return to1 the jurisdiction of the court, so that the court may determine from an examination of the motion whether or not it was reasonable to expect that the witnesses could be procured for attendance at the next term of court.

In reviewing the refusal of a continuance on account of the absence of witnesses, the record will be examined and the evidence adduced at the trial considered by this court to determine whether there are any facts which show that the defendant was materially prejudiced by reason of the failure of the court to grant a continuance.

In the testimony of the defendant concerning the witness Homer Pruitt, the defendant testified:

“Q. (By Mr. Hendon, Attorney for Defendant) Did you see this man Homer Pruitt there that day? A. No; I never did see him. Q. He lived in a little house up north? A. Yes, sir. Q. You understood later he was there, or present? A. Yes; he told me later, he didn’t know anything about it until the shooting was over, is all I know of him being there.”

This testimony of defendant refutes his affidavit that Pruitt was an eyewitness and would corroborate what defendant testified concerning the shooting. The witness Hurst who' testified for the state was with Pruitt and if his testimony is believable Pruitt would have corroborated the story of the prosecuting witness rather than that of defendant. There Avas some evidence in the record that Pruitt had moved to California and there is nothing in the record from Avhich the court might conclude that he would ever return to1 the state.

As to the witness Tommy Powers, the defendant testified that Powers Avas a bootlegger and had brought him a half gallon of Avhisky on that date. Considering the character of this Avitness, as testified to by the defendant, and the lack of any proof as to his present Avhereabouts, it is clearly no abuse of discretion to refase to continue the case because of his absence.

It has been a rule of consistent observance by this court that a motion for a continuance upon the ground of absent Avitnesses is addressed to the sound judicial discretion of the tidal court, and unless an abuse of this discretion appears, a judgment of conviction will not be reversed. Also, that a motion for continuance should show due diligence upon the part of the defendant to have the absent Avitnesses present for the trial. At the time the motion Avas presented the trial court made the following statement:

“The application for continuance is denied for this reason: This case was set for trial on April 17, 1940; on April 17 it was continued to' April 18; on April 18 it was stricken from the assignment. On August 28 it was set for trial for ¡September 9. During all the time the matter was set for hearing Emmons Arrington, a member of the local bar, appeared on behalf of the defendant. When the case was set for trial on September 9 said Emmons Arrington was attorney of record. For the further reason that the praecipe for subpoena was not filed until September 7, which was Saturday before the day when the case was set for trial on September 9; that the case had been set for trial since August 28'; that the defendant himself was dilatory in procuring counsel; that the present counsel appeared on August 9, and at counsel’s request the matter was continued until September 11 — or at least at counsel’s request for continuance the Court continued the matter to September 11 — counsel didn’t request it be continued to September 11. The Court specifically holds the present counsel is not at fault because of the fact they were employed the day before the matter was called for trial, but the Court does hold that the defendant himself for a period of six months has been represented by counsel, and that he has been dilatory, and the Court believes that the processes of the Court must be followed with diligence, and for that reason the application for continuance is denied.”

After a consideration of the whole record, it is our conclusion that the defendant has had a fair trial; that there is no doubt of his guilt; and there was no abuse of discretion on the part of the trial court in refusing to grant a continuance.

The judgment of the district court of Pottawatomie county is accordingly affirmed.

BAREFOOT and DOYLE, JJ., concur.


text:
    CLYDE HAGAN, Jr., v. STATE.
    No. A-10119.
    March 3, 1943.
    (134 P. 2d 1042.)

      Harry C. Kirkendall, of Enid, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Hugh Conway, Co. Atty., of Enid, for defendant in error.
   BAREFOOT, J.

Defendant, Clyde Hagan, Jr., was charged in the district court of Garfield county with the crime of larceny by fraud, was tried, convicted, sentenced to serve a term of one year in the penitentiary, and has appealed.

To properly consider the assignments of error presented, it is necessary to make a brief statement. There is very little conflict in the evidence of the state and the defendant. On January 14, 1941, a complaint was filed in the justice court, charging the defendant with the larceny of 39 bushels of wheat of the value of $29.64. When the information was filed in the district court on February 1, 1941, he was charged with the larceny of 114% bushels of wheat, by reason of the evidence at the preliminary hearing. On February 6, 1941, a motion for continuance was filed on the ground that the defendant had not had time to prepare for trial, and 'on account of the illness of his attorney. The motion was heard on! February 10, 1941, and the case continued to February 17, 1941, at which time the trial commenced.

The first assignment of error is that the court erred in refusing to grant a further continuance. The doctor who examined counsel made the following statement: “To Whom It May Concern:

“I desire to state that I am treating Mr. Harry Kir-kendall for exaggerated bronchial irritation following influenza and have recommended he use his throat as little as possible until improved.”

Upon this statement the case was passed until February 17th. No further evidence was offered on the 17th, except that defendant had not had ample time to prepare for tidal. Under the record, we do not find that there was an abuse of discretion by the court in refusing to grant further continuance. The only witness whom it was contended was not present was William Linneger, who was a codefendant, and who had left the state and has never been apprehended.

It was further contended that it was error to permit the endorsement on the information of six additional witnesses on the morning of the trial. The record does not reveal the exact date the names were endorsed. In the brief of the state it is stated that the endorsement was made a week prior to the trial. In the defendant’s brief it is stated that he did not see the names until the date of the trial. It appears from the record that two of the witnesses were not called to the stand, and the evidence of the others was upon mostly immaterial matters, and questions upon which there was little, if any, dispute. It is the general rule that permission to endorse additional names on the information prior to trial is in the sound discretion of the trial court; and, under the facts, we do not find there ivas error amounting to an abuse of this discretion.

Bussell M. Baulston was operating an elevator at Garber, in Garfield county, Okla. On January 4, 1941, he received a telephone call from William Linneger, at Enid, with reference to the purchase of wheat. Mr. Bauls-ston had previously had dealings with Mr. Linneger, who was an associate of the defendant, and at the time of this telephone call was of the opinion that he had been defrauded in former sales of wheat to these parties. He informed them that they could get the wheat, and at the same time began laying' plans for their detection. He had his automatic scale examined and tested. He arranged for one of his employees to be secretly located near where the scale was operated. When the parties arrived at Garber with two trucks of 400-bushel capacity each, he had them drive to the place where the wheat ivas loaded from the chute. The automatic scale was located in the cupola of the elevator and the wheat was elevated to the scale by means of cups attached to a revolving leather belt. At the top the wheat went into the scale hopper and then into the automatic scale, Avhich Avas set to dump four bushels at a time. The weight box on the side of the scale contained weight to- the amount of 240 pounds, which is the weight of four bushels of wheat. When this amount of Avheat filled into the scale, it would automatically dump. If additional weight or pressure was applied to the weight box, an additional amount of wheat equivalent to the amount of weight or pressure applied Avould go into the scale before it would trip. As much as five and a half bushels could thus be made to dump each time, instead of the regular four bushels.

Photographs of the scale were introduced, and they revealed, as testified, that by pressing the foot upon a certain part of the machinery, this additional weight might be applied direct. It was the evidence of the state that Avhen Mr. Brown, who was running the motor at the elevator, started the same, the defendant, Clyde Hagan, Jr., went to the cupola where the automatic scale was located, and where the witness Mr. Revell was stationed, and that by placing his foot on the weight box at different times, he was enabled to secure a greater amount of wheat than the automatic scale registered. Mr. Revell noted that the box Avould become overloaded when this pressure Avas applied by defendant.

Immediately on defendant leaving the cupola, Mr. Revell reported to Mr. Raulston what had transpired, and what he had seen. The defendant and his codefendant each moved their trucks Avith the loads of Avheat into the public street near the office of the elevator, and immediately went into the office for the purpose of paying for their wheat. Defendant was informed by Mr. Raulston that he oAved the sum of $224.96 for 296 bushels of wheat at 76 cents per bushel, as shown by the scale weights. Defendant then paid him that amount in currency and Mr. Raulston issued him a receipt therefor. Mr. Linneger, his codefendant, did the same.

Prior to this time Sir. Raulston had telephoned to the sheriff’s office at Enid, and a deputy sheriff, Mr. Leon Coyle, came to the office, and Avhen defendant started to move the load of wheat, he was forbidden to do so by the deputy sheriff. Mr. Raulston then told the defendant that he was not satisfied Avith the amount of wheat on the trucks, and that he would have to take them to Enid and have them weighed. The defendant protested by saying this would be 60 miles out of his way, and that if Mr. Raulston was not satisfied with the weight of the wheat, he Avould dump it back into the elevator and he could pay him his money back. Mr. Coyle, the deputy sheriff, refused to permit this to be done, and he required the defendant to take his trucks to Enid, and upon their being weighed it Avas found that defendant’s truck contained 39 bushels of wheat more than he had paid for, and that the truck of Mr. Linneger, his codefendant, contained 75 bushels more wheat than he had paid for. Defendant offered to- pay for the excess amount of wheat, but this was refused, and charges were preferred, charging the defendant with larceny by fraud of the extra amount • of Avheat. Afterwards attachment proceedings were brought by Mr. Raulston’s company and others, in which all of the wheat and the trucks were attached for loss theretofore sustained in the manner hereinbefore mentioned. It is unnecessary to- further refer to- this civil action.

There was evidence in the record that there was an attempt on the part of Mr. Linneger to turn his truck over on the way to- Enid, and the state contended this .was under the direction of Mr. Hagan. There was also evidence that upon a previous occasion defendant had purchased wheat from the same elevator under similar circumstances as above stated; it being contended by the state that a conspiracy existed between defendant and others to commit larceny by fraud in the manner above outlined. There was also evidence offered of misstatements of defendant as to the- correct weight of his truck, prior to going to- Garber for the purpose of securing the wheat.

Tt may be stated that defendant took the witness stand and denied tampering with the scale at any time, and further testified that he offered to pay for all the wheat, after it was reweighed at Enid.

The contention of defendant is best stated in his brief:

“The defendant contends in this case that there is no larceny by fraud if all the facts and circumstances testified to by the state were true, by reason of the fact that under the well-established principles of law in other jurisdictions and of the well-established principles of law in the State of Oklahoma. The writer of this brief believes the well-established principle of law to be that if the owner consents to the taking of his goods, it is not larceny, although the consent is given solely for the purpose of apprehending the taker in the commission of the apt and that the object of the law is to prevent larceny by punishing it and not procuring the commission of larceny that the offender may be punished.
“The defendant further believes- and contends that if the consent to the taking was obtained by use of trick or device or fraud, it is still not larceny if the owner transfers the title to the thing taken for if he transfers title, there is not trespass and hence, no larceny and there can be no larceny when title is obtained by fraud or trick unless the owner is ignorant of the facts, while in this case, the undisputed testimony shows that Raulston, the owner, knew everything that is alleged to have happened concerning manipulating; of the scales when he took the money and issued receipt therefor and passed title to Hagan.”

As to certain principles of law, as contended by the defendant, the state does not disagree. This principle is announced in 36 C. J. p. 777, § 139, and is as follows:

“If the owner of money or a chattel delivers it to another with the intention not only' of parting with the possession, but also of investing the person to whom it is delivered with the title to it, such person is not guilty of larceny in receiving it, although the delivery was induced by the most flagrant fraud or by the commission of a forgery, for the reason that the title having passed, there is no one other than himself in whom an indictment for larceny can lay the ownership and possession of the thing taken.”

But it is contended by the state that there was no passing of the title by Raulston to the defendant of the excess bushels of wheat, and that there was no intention on his part to pass the title to any property except the exact amount of wheat that was paid for by the defendant, and that receiving of the excess amount of wheat amounted to larceny by fraud.

It will be noted that there is a close distinction between the contentions of the defendant and the state. The authorities, many of which we have read, note this distinction in cases of this character, and have discussed them very fully. We shall refer to some of these authorities.

A general discussion of the question here involved appears in 32 Am. Jur. p. 913, §§ 27-29, and which is cited by both the defendant and the state, and is as follows :

“Since want of consent by the individual affected, to the taking, is an essential element of larceny, his instigation of or consent to the felonious taking of his property negatives such element and constitutes a defense to a prosecution for the crime. The question most frequently arises in cases where an attempt has been made to entrap the thief. One who seeks to- entrap another in the commission of larceny must take care that in his efforts he does not overreach himself and consent to the taking of his property. Therefore, the setting: o-f such trap must not go further than to afford the would-be thief the amplest opportunity to carry out his purpose, formed without such inducement on the part of the owner of the property as to put him in the position of having consented to the taking. The principal line of distinction in the cases seems to be whether there has been an active, as distinguished from a passive, inducement, to the taking, on the part of the owner or his agent. If the criminal design originates with the accused, and the owner or his agent or servant does not suggest the design or actively urge the commission of the crime, the mere fact that the owner, suspecting the accused, in person or through his servant or agent exposes the property, neglects to protect it, or furnishes facilities for the execution of the criminal design, under the expectation that the accused will take the property or avail himself of the facilities furnished will not amount in law to a consent, although the agent or servant, by the instructions of the owner, appears to co-operate in the execution of the crime.. On the other hand, the owner may not himself or through his agent solicit a suspected party to come forward and commit the criminal act, and, when the act is committed, be heard to say that he did not consent to it. If he, either in person or by a duly authorized agent, suggests to the accused the criminal design and actively urges, co-operates with, and assists the accused in the taking of the goods, such conduct amounts to a consent to the taking and the criminal quality of the act is wanting. Moreover, at least under some circumstances, the mere fact that the plan for obtaining the property was wholly or partly that of the accused is not controlling. Where the owner of property, by himself or through his agent, actually or constructively, aids in the commission of the offense, as intended by the wrongdoer, by performing or rendering unnecessary, some act in the transaction essential to the offense, the would-be criminal is not guilty of all the elements of the offense.
“If the consent of the owner to the taking of property is obtained by fraud or a fraudulent trick or device, such consent will not necessarily prevent the taking from being larceny. Although the rule is that there must be a taking against the will of the owner or a trespass to the possession, an a.ctnal trespass is not always necessary. The requirement may, in a proper case, be deemed sufficiently met where the owner is induced by some fraud or trickery to deliver the property in question to one who feloniously converts it to his own use. The form of the fraud or trick by which possession is obtained is immaterial. In all cases, it results in the absence of a real consent, and some courts declare that the possession of the taker in such a case is not lawful, but wrongful, that there is a continuous wrongful taking from the time possession is thus obtained, and that when the felonious intent to deprive the owner of his property permanently without color of right or excuse and to convert it to the use of the taker without the owner’s consent is added to~ such wrongful taking, larceny becomes complete: While the animus furandi is necessary to make the offense larceny, its absence and the fact that the transaction was intended as a joke would not set up a true consent on the part of the person hoaxed, or establish a bailment, and the joker’s possession would still be had for want of any consent. In cases, at least, where a transfer of title as well as possession to the trickster is not involved, the prevailing rule is that any scheme, whether involving false pretenses or other fraudulent trick or device, whereby an owner, of property is swindled out of it with the preconceived intent of the swindler not to pay for it, is classed as larceny and is punished accordingly. In the majority of jurisdictions the view is taken that the fact that the victim is himself guilty of an illegal or fraudulent intent, pursuant to which he parts with his money or property, does not alter the rule.
“Whatever may be the correct view as to whether a subsequent felonious conversion of property obtained by fraud or trick, but without intent to convert it, is larceny, it seems clear that a larceny by fraud cannot be predicated upon a fraudulent conversion of property received from the owner with his consent, in good faith with the intention of handling it lawfully in his behalf and in accordance with his wishes, and without any fraudulent purpose and intent existing at the time of so receiving it.
“It is a well-settled general rule that the requirement of a felonious taking against the will of the owner is sufficiently met, and that larceny is committed, where a person intending to steal another’s personal property obtains possession of it, although by or with the consent of the owner, by means of fraud or through fraudulent trick or device, and feloniously converts it pursuant to such intent. The rule is applied not only in cases where the possession of the property is obtained directly from the owner, but also in cases where it is obtained from his agent or a bailee or custodian thereof. The fraud or trick practiced on the person from whom possession is thus obtained enables the requirement of a trespass to the possession of the owner to be met either on the theory that it so vitiates the transaction that the owner retains constructive possession and the conversion is therefore a trespass or on the theory that the fraud or trick itself takes the place of a trespass or is equivalent thereto. It is sometimes said that the requirement of a taking, in larceny is met by a constructive taking in these cases. Although, as indicated by the usual statement of the rule, the cases generally involve an actual felonious conversion of the property, and there is authority to the effect that such a conversion is essential to the completion of the offense, the rule Avould seem to' depend upon the view taken as to whether the requirement of trespass is sufficiently met by the fraudulent taking or must await the actual conversion. There is authority to the effect that the crime is complete as soon as the property is received, or as soon as the felonious intent is added to the fraudulent taking. While it is not necessarily larceny merely to take an unauthorized use of property obtained for another pretended purpose, the perpetrator of the fraud need not go so far as to sell the property in order to make the offense complete, even though such was his intention when he obtained possession thereof.
“Under the foregoing general rule, larceny may be committed in a variety of particular ways involving the obtaining of possession through trick, fraud, or false pretext, among which may be mentioned the obtaining, with felonious intent, of possession of tlie property of another from the bailee of the owner by a secret change or substitution of checks, tokens, or other marks of identification and the inducing of another to' part with possession of his money through a pretended finding and division of ‘lost’ property, or in exchange for the ‘finder’s’ interest therein.
“In accord with the general rule stated previously in this section, the felonious conversion of personal property by one obtaining possession thereof with felonious intent, in the guise of a purchaser, under circumstances negativing any intention on the part of the séller to1 part with the title until full payment is made, is larceny in cases where possession is obtained by means of false representations or the giving of a false token, such as a worthless check, as down payment; in cases where one intending to convert the property obtains possession in the guise of a purchaser under a conditional sale agreement and appropriates it to such a use as to prevent its reclamation by the seller; in cases where the owner parts with possession upon the understanding that immediate cash payment is to be made and the pretended purchaser appropriates or removes the property without paying for it; and in cases where, by fraud, or collusion with the seller’s employee, the purchaser obtains and carries away a greater quantity of the purchased article than he pays or agrees to pay for.”

Many of the statements contained in the above quotation are applicable to the facts here. There is not the slightest evidence that any criminal design originated with Raulston. He did not at any time “suggest or actively urge” the commission of the crime. He suspected the accused, and to some extent laid the trap by asking one of his employees to watch the scale, and by testing the scale, but as stated, this will not amount “in law to' a consent” to the taking of the property. There can be no question from the evidence that it ivas the intention of defendant to fraudulently secure the excess wheat and appropriate the same to his own use. This is one of the distinguishing elements as recognized by the authorities and by the text above quoted as to when larceny is committed rather than the obtaining of property by embezzlement or false pretense; and under the facts, this case comes clearly within the terms of the statute of larceny by fraud.

In the recent case of Riley v. State, 64 Okla. Cr. 183, 78 P. 2d 712, we have had occasion to discuss the larceny statute, and to' distinguish to some extent the difference between the crimes of “embezzlement,” “larceny,” and “false pretense.” We have there reviewed the earlier decisions of this court, and cited authorities from many states. The distinction between these crimes is sometimes very close, but there are underlying differences which are clearly pointed out by the authorities. It is unnecessary for us to again review them.

In the instant case it is contended that defendant under the facts is not guilty of larceny, but if guilty of any crime it is of obtaining money by false pretense. After a careful examination of the evidence and the authorities from this and other states, we cannot agree with this contention.

One of the best reasoned cases distinguishing the difference in these three crimes is the case of People v. Miller, 169 N. Y. 339, 62 N. E. 418, 422, 88 Am. St. Rep. 546, where it is said:

“The distinction between larceny, false pretenses, and embezzlement was concisely stated in the brief opinion of the court in Com. v. Barry, supra [124 Mass. 325] : ‘If a person honestly receives the possession of the goods, chattels, or money of another upon any trust, express or implied, and, after receiving them fraudulently converts them to his own use, he may be guilty of the crime of embezzlement, but cannot be of that of larceny, except as embezzlement is by statute made larceny. If the possession of such property is obtained by fraud, and the owner of it-intends to part with his title as well as his possession, the offense is that of obtaining property by false pretenses, provided the means by which they are acquired are such as in law are false pretenses. If the possession is fraudulently obtained, with intent on the part of the person obtaining it, at the time he receives it, to convert the same to his own use, and the person parting with it intends to> part with his possession, merely, and not with his title to the property, the offense is larceny.’ In this case the complainant’s money was not obtained by the defendant by such means or representations as in the criminal law constitute false pretenses. But the jury could have found that he did obtain the money by means of a fraudulent device, with the intent on his part at the time he received it to convert it to his own use, and also that the complainant intended to part with her possession, merely, and not with the title; and so' the verdict convicting the defendant of larceny was warranted by the evidence.”

The argument that defendant had not come into possession of the property, but that the title of the same had passed to him, is untenable. The authorities generally, and in this state, are to the effect that it is unnecessary to even move the property from the premises of the owner if the same has been severed therefrom with the intention on the part of the accused to appropriate it to his own use. Blakley v. State, 49 Okla. Cr. 10, 292 P. 878; Brinkley v. State, 60 Okla. Cr. 106, 61 P. 2d 1023; 36 C. J. pp. 749 and 750, §§ 48, 49 and 50.

Here the wheat had been placed in defendant’s trucks; the trucks had been moved by defendant from the premises of the owner to the public street. He was ready to remove the same, with the absolute possession when he had paid the owner, and which he had done. He knew at this very time that he had secured more wheat than he had paid for, and that this was brought about by his manipulation of the scale as above indicated. Taking this fact into consideration, and the further fact that wheat had been taken by the defendant at other times, as shown by the record, it is very clear that larceny by fraud had been committed, as contemplated by the terms of the statute.

“Larceny” is defined by Oklahoma Statutes 1931, § 2253, O. S. A. 1941, Tit. 21, § 1701, as follows:

“ ‘Larceny’ is the taking of personal property accomplished by fraud or stealth, and with intent to- deprive another thereof.”

It is contended by the defendant that the evidence in this case clearly shows an entrapment, and to support this cites 32 Am. Jur. § 27, heretofore quoted in full, and the case of State v. Hull, 33 Ore. 56, 54 P. 159, 161, 72 Am. St. Rep. 694. A careful reading of the text and the case cited does not bear out the contention that the facts as here shown constituted an entrapment. The correct principle of law is set out in the Hull Case, when the court says:

“And in Williams v. State, 55 Ga. [391], 395, Mr. Justice Bleckley, in his usual clear and lucid style, puts the law thus: ‘It seems to be settled law that traps may be set to catch the guilty, and the business of trapping has, with the sanction of courts, been carried pretty far. Opportunity .to commit crime may, by design, be rendered the most complete; and, if the accused embrace it, he will still be criminal. Property may be left exposed for the express purpose that a suspected thief may commit himself by stealing it. The owner is not bound to take, any measures for security. He may repose upon the law alone, and the law will not inquire into his motive for trusting it. But can the owner directly, through his agent, solicit the suspected party to come forward and commit the criminal act, and then complain of it as a crime, especially where the agent, to whom he has intrusted the conduct of the transaction, puts his own hand into the corpus delicti, and assists the accused to perform one or more of the acts necessary to constitute the offense? Should not the owner and his agent, after making everything ready and easy, wait passively, and let the would-be criminal perpetrate the offense for himself in each and every essential part of it? It would seem to us that this is the safer law, as well as the sounder morality, and we think it accords with the authorities.”

See, also, 1 Bish. Cr. Law, 5th Ed., sec. 262.

The next assignment of error is that the court erred in refusing to give three requested instructions presented by the defendant, and in giving instructions numbered 5 and 6, to which defendant excepted. We have carefully examined the requested instructions, and also the instructions given. It is unnecessary to here quote them in full.

The first requested instruction is a correct, abstract statement of law. The evidence presented did not justify the giving of this instruction. A part of it could not have been given without an explanation thereof. The second requested instruction is contrary to- the evidence of both the state and the defendant himself, and should, therefore, not have been given. The same is true of the third requested instruction.

As to the instructions numbered 5 and 6, to which defendant excepted, instruction No. 5 was a general charge which defined the crime of larceny. It contained the four essential elements of the crime, to wit:

“(1) That there must be a taking and carrying away from the possession of another. (2) That the thing taken away must be the property of another. (B) That the taking was against the will of the owner and (4) that the taking was with a felonious intent.” 36 C. J. p. 923, § 530.

Instruction No. 6 was with reference to the statutes on aiding and abetting. There was very little evidence upon which to base this instruction, and it might as well not have been given, but there is nothing in it that prejudiced the rights of the defendant. Insofar as the evidence was concerned there was no issue made by the defendant. The defense which he presented, and which he now presents, aside from the fact that he did not tamper with the scale and there was no intention on his part to commit the crime of larceny, was wholly a question of law. He could have raised this question by a demurrer to the evidence. It was not necessary to have an instruction to present this issue. As to whether he tampered with the scale and the question of intent to commit larceny were presented by instruction No. 5 as above outlined.

36 C. J. p. 930, sec. 545, states the rule as follows:

“When the evidence shows the consent of the owner to have been obtained by trick or fraud, an instruction defining larceny by these means, and distinguishing larceny from obtaining" money by false pretenses, should be given; but if there is no evidence that the owner’s consent was obtained by trick or fraud, or if the evidence shows that the trick practiced by accused merely gave him access to property which he took without the owner’s consent, an instruction distinguishing the two crimes should not be given because likely to confuse the jury.”

From what lias heretofore been stated, it will be observed that defendant in the instant case was only given access to the property with an opportunity to' commit the larceny thereof. At no time was there a consent to the taking, or a suggestion that the same should be taken. It was therefore not error to refuse the requested instructions, and there was no error in the instructions given by the trial court.

Objections are made to the final argument of the county attorney. It is stated in defendant’s brief:

“The case made discloses that during the closing argument the county attorney made the statement to the jury as follows: ‘The defendant Hagan has been arrested for shoplifting and stealing.’ ”

An examination of the record does not reveal what, if any, statement was made by the county attorney. It only shows an objection by attorney for defendant, and a reply by the county attorney. Under the rules of this court, it is necessary for the record to show what statements were made by the county attorney before a case will be reversed. Newcomb v. State, 23 Okla. Cr. 172, 213 P. 900; Wilson v. State, 24 Okla. Cr. 332, 217 P. 885.

It is further objected that the county attorney said: “We are breaking up a racket.” The record reveals that this statement was made by the county attorney. Prom an examination of the evidence, we cannot say that the statement was unjustified. Evidence had been submitted as to a conspiracy of several parties to carry out the very facts charged in the information. It does not appear by the verdict that the defendant was prejudiced by any remarks of the county attorney to the jury. 17 C. J. 297; § 3637, 24 C. J. S., Criminal Law, § 1901; Coker v. State, 26 Okla. Cr. 230, 223 P. 711; Tapedo v. State, 34 Okla. Cr. 165, 245 P. 897; Sweet v. State, 68 Okla. Cr. 44, 95 P. 2d 242; Gregg v. State, 69 Okla. Cr. 103, 101 P. 2d 289; Wagner v. State, 73 Okla. Cr. 317, 121 P. 2d 322.

Finding no error, the judgment of the district court of Garfield county is affirmed.,

JONES, P. J., concurs. DOYLE, J., absent and not participating.