author: DAVENPORT,, J.

text:
    BEN SCHUH v. STATE.
    No. A-6788.
    Opinion Filed September 14, 1929.
    (280 Pac. 869.)

      A. Lee Battenfield and C. F. Gowdy, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT,, J.

The plaintiff in error, hereinafter referred to as the defendant, and Anita Greer, were jointly charged with the murder of L. F. Greer. On motion of Anita Greer a severance was taken, and. the state placed the defendant on trial first, which trial resulted in a verdict of guilty as charged in the information and fixed his punishment at imprisonment in the state penitentiary for life. Motion for new trial was filed, considered, and overruled, and exceptions duly saved. The court sentenced the defendant in accordance with the verdict of the jury to be confined in the state penitentiary for life. From, the judgment of the court on the verdict the defendant appeals.

The testimony on behalf of the state, in substance, shows that L. F. Greer and Ms wife, Anita Greer, were in business at the town of Spavinaw, in Mayes county, Oklahoma, and that Ben Schuh, the defendant, had been working for the Greers for some time. The state presented its testimony on the theory that the defendant Schuh and Anita Greer, the wife of the deceased, had conspired to kill L. F. Greer, and in furtherance of that conspiracy L. F. Greer was killed by defendant and Anita Greer.

The testimony in this case tends to show that the defendant in this case and Anita Greer became infatuated with each other; the defendant was often seen at the place of business of deceased, but for some time prior to the death of Greer the defendant had not been working for the Greers, but had been living in Spavinaw; that Anita Greer, in company with others, started to Tulsa, and defendant Schuh joined them a short distance from Spavinaw and made the trip with them; when they reached Tulsa, the defendant Schuh and Anita Greer left the other parties with the understanding that at a certain hour they would join them at a drug store in Tulsa. On another occasion, Anita Greer and Myrtle Miller made a trip to Tulsa, and the defendant joined them at Salina, which was on the road between Spavinaw and Tulsa, and went to Tulsa with them; on this occasion, on their arrival in Tulsa, Miss Miller joined a friend of hers, and the defendant and Anita Greer were left together with the understanding at a certain hour she would join the defendant and Mrs. Greer for the return trip; on the return trip, the defendant left the car at Salina and Anita Greer and Miss Miller returned to Spavinaw. Miss Miller states the reason for defendant Schuh joining them at Salina was that her mother and sister were in Spavinaw and going to Salina that day to catch a train for their home, and that Schuh went to Salina to join them in order that the mother and sister of Miss Miller would not know that Miss Miller was accompanying the defendant and Anita Greer to Tulsa.

The testimony of the state tends to> show that, on Friday night prior to the Saturday evening the body of deceased was found in his home, Schuh was in the town of Spavinaw; that he went out in the afternoon fishing in a motorboat, and asked something about a hammer he owned which he kept in the boathouse where the defendant kept the motor. The testimony also tends to show that the defendant and Mrs. Greer were together on Friday about the lunch hour, and on Friday evening defendant went to the place of business of the Greers and was there for some time. The defendant and Mrs. Greer were in the screened porch which joins the place of business and engaged in a conversation, and, as the hour for closing the place of business arrived, the employee of Greers was advised to close the store for the night, which was done. At the time the place of business, was closed, the defendant and Mrs. Greer were on this porch at the rear of the business house and only a short distance from the house occupied by M'r. and Mrs. Greer.

The testimony further shows that the defendant Schuh had been occupying a room at the Case Hotel, and Friday afternoon he checked out and advised them he was going to leave the next morning for his home in Iowa. The proprietor of the Case Hotel, Dr. Case, states he heard defendant in the room he had been occupying some time during Friday night. It was further shown by the state that defendant Schuh. was in the Bennett Restaurant Saturday morning about 5 o’clock; that later other parties joined him, and he was there for some time; he told the parties in the restaurant he was leaving that morning for his home in Iowa; later he went to the place of business of the Greers and asked one of the employees if Mrs. Greer was up, and they said they did not know, but the employee went and called Mrs. Greer, who came out and had a conversation with the defendant; that he bid goodby to Mrs. Greer and the parties in the place of business and a number of parties in the town of Spavinaw, and left the town of Spavinaw about 8 or 8:3G a. m., on Saturday, the day L. F. Greer was found in his room at night murdered.

The testimony further shows that about noon Saturday the defendant had some work done on his car in the town of Jay, in Delaware county; then some time in the evening the defendant is in Yinita, about 30 miles from Spavinaw; just what hour he arrived in Vinita no one seems to know; he bought a ticket from Vinita to his home town in Iowa, checked his trunk and put his car in a garage, then goes to the Grand Cafe and ordered something to eat; while defendant was eating his meal in the Grand Cafe, the state contends that a man by the name of Reamer, who was- acquainted with the defendant, came in and asked defendant if he had come from Spavinaw, and he said he came from Joplin. Reamer himself was not called as a witness, but a witness who testified to this statement claims he had just walked into the Cafe and claims to have heard the conversation. Two other witnesses who were sitting on stools near Reamer, both of whom knew Reamer well, testified they did not hear what the conversation was.

The testimony further shows that the defendant remained in the city of Vinita until about 2 o’clock a. m., Sunday morning, when he took the train for his home town in Iowa; that from Kansas City he wrote some cards back to some people at Spavinaw.

The testimony of the state tends to show that prior to the defendant leaving Spavinaw there was an understanding between -Mrs. Greer, Myrtle Miller, and the defendant, that the defendant would write Mrs. Greer and address his letters to Miss Miller, and when Miss Miller received the letters she would deliver them to Mrs. Greer. The state claims two letters were written by the defendant Schuh, from Varina, Iowa, to Mrs. Greer, addressed to Myrtle Miller, and were intercepted before they reached Mrs. Greer. These letters purported to have been written from Iowa by the defendant, speak in endearing terms of love and contemplated marriage when Mrs. Greer has left her home and joined the defendant. As shown by the record, the last time the defendant was seen in the town of Spavinaw was about 8 or 8:30 o’clock a. in., Saturday before the body of the deceased, L. F. Greer, was found in his home when the fire was discovered on the bed where the body of the deceased was found.

The state offered some testimony tending to show that a hammer, similar to the one claimed to have been owned by the defendant, was found in the Greer home, but the-hammer was not produced at the trial; the state being unable to account for the hammer after it was seen in the hands of one of the attorneys for the defendant Anita Greer. No testimony was offered by the state to show this defendant was in Spavinaw any time after his departure in the morning before the body of Greer was found in his house where the bed was on fire. The testimony shows that the fire was discovered about dark; statements of witnesses vary as to the exact time, but all fix the time around 7 o’clock; all admit that it was late enough that the lights were on in the business house and that the fire in the bedroom on the bed where the body was found caused a short in the electric wiring and the lights in the place of business of the Greers went out, and that Anita Greer, the wife of the deceased, was the one to discover the fire in their home.

In the production of the testimony against this defendant, the state sought to establish a conspiracy between the defendant and Anita Greer, the wife of the deceased, to kill the deceased.

It is not clear from the testimony on behalf of the state as to what time the state contends the blows that took tbe life of L. P. Greer were administered, or wbat bour tbe deceased died. Dr. Case testified in bis opinion that it might bare been several bonrs after tbe blows were struck before tbe body was found. Tbe undertaker and bis helper, who went to Spavinaw to get the body and started to handle tbe body and put it in tbe undertaker’s basket, stated the body was still limber and difficult to handle; that after they got tbe body to Yinita, which is a distance of about 30 miles, tbe body was still limber. Tbe testimony of tbe undertaker further shows that, when they started to embalm tbe body and began drawing, blood from tbe body, it was warm, and as it ran down tbe table it was warm enough to cause vapor to rise; that rigor mortis bad just begun to set in, and that be would say tbe length of time Mr. Greer had been dead before examining tbe body about 1 o’clock Sunday morning was something like eight hours; that he based bis statement upon tbe condition of tbe blood of tbe body; that rigor mortis begins to set in from three to eight hours after tbe death of a party.

Two physicians were called as witnesses for tbe defendant, who testified upon an examination of tbe body of tbe deceased they found a blister on the left ring finger about three-fourths of an inch long and about three-eighths of an inch wide containing fluid; that tbe condition of this blister indicated Greer was alive when tbe burning took place, at least there was circulation in the body at tbe time of tbe burning.

Tbe foregoing is in substance tbe testimony offered by the state up to tbe time of tbe finding of tbe body, and in substance tbe testimony of tbe doctors and tbe undertakers that were called by tbe defendant to examine the body.

The theory of the state in this case is that the defendant, acting with Anita Greer, conspired to take the life of L. F. Greer, and that in furtherance of that conspiracy blows were administered to the deceased from the effects of which he died. During the trial the court permitted the state to prove, over the objections of the defendant, statements claimed by the witnesses to have been made by Anita Greer, the alleged coconspirator of the defendant in this case, in the absence of the defendant and after the death of L. F. Greer. The witnesses attempted to give statements of Anita Greer as to the cause of the death of the deceased, and as to the fact that he could not have shot himself, as there were no shells, for the only gun on the place; as to the length of time since she visited the deceased in his room prior to the discovery of the fire, and various statements to Dr. Case; and as to the. actions and emotions and grief of Anita Greer; and as to the general conduct of Anita Greer at the home where the body was found, and other statements as to whisky being found in the Greer home and as to where a hammer was in the house, and the request of Anita Greer with reference to how the windows of the house were to be closed and how they should be fastened. And further as to statements made by Anita Greer, in the absence of the defendant, as to where the deceased was on the Saturday afternoon prior to the discovery of the body in his home. All of these statements were objected to by the defendant, on the ground that they were inadmissible because they were made in the absence of the defendant and after the death of L. F. Greer.

The defendant in this case has assigned several errors alleged to have been committed by the trial court. We will first consider the second assignment, which is as follows:

“That severance was called for by the said Anita Greer and the same was by the court granted and the state elected to try Ben Schuh first. This trial was proceeded with on the 14th day of March, 1927, and the same day being a day of the regular term of this court. That during which term the state proceeded on the theory of conspiracy between the said Ben Schuh and Anita Greer to effect the death of the said Leonard Greer, and that the trial court allowed the introduction of evidence over the objections of Ben Schuh and allowed the state to show all the action of Anita Greer and everything she said and did immediately before and after the death of the said Leonard Greer, and permitted the state to introduce all declarations and statements of Anita Greer after the said Leonard Greer had been killed. That such evidence would be admissible only before the consummation of the act, and not afterwards.”

This second assignment of error avers that the court erred in permitting the several witnesses to testify to statements made by Anita Greer, a codefendant, after the death of L. F. Greer, and in the absence of the defendant. It is urged by the defendant that the admission of the testimony complained of was prejudicial to his rights and deprived him of that fair and impartial trial guaranteed to him by the Constitution and laws of this state. A “conspiracy” is a combination between two or more parties to do a thing, criminal or unlawful in itself. This conspiracy may be proven by facts and circumstances if sufficient, and when shown to have existed, that the statements and acts of the conspirators made and done in pursuance of the common design may be proven against the other in a prosecution against the others for the commission of the crime; but for such testimony to be admissible it must be proven, first, that a conspiracy actually existed, and the declarations made must be in pursuance of the common design, but nothing said or done by one conspirator, in the absence of the one on trial after the crime has been accomplished, is admissible. Washmood y. U. S., 10 Okla. Cr. 254, 136 Pac. 184.

Underhill on Criminal Evidence (3d Ed.) § 709, p. 963, lays down the principle that acts declared by a conspirator cannot be admitted as against a coconspirator unless such acts were performed or such declarations made in aid or in execution of the conspiracy, so the acts or declarations must occur during- the life of the combination, that is, after the formation of the corrupt agreement and before consummation or abandonment of the object of the conspiracy. 8' Cyc. 680.

In Wolfe v. State, 38 Okla. Cr. 412, 262 Pac. 505, this court, in the syllabus, said:

“Where two or more persons are jointly charged with the commission of a crime, and only one of them is put on trial, statements made by the eodefendant after the termination of the conspiracy between the defendant and the codefendant, if any existed, in the absence of the defendant on trial are not admissible against the defendant; and where such statements are prejudicial, their admission is reversible error.”

In this case there is no direct and positive testimony as to the conspiracy between the defendant and his co-conspirator, Anita Greer, to take the life of L. F. Greer. The question to be considered by this court is: Does the mere fact that the defendant had worked for the deceased, and had gone back and forth to the city of Tulsa with Anita Greer, the wife of the deceased, in company with others, and that the defendant had been seen with Anita Greer at the place of business of the Greers, and in and near Spavinaw, and the writing of letters to Anita Greer after the defendant had gone to Iowa, establish a conspiracy?

The defendant in this ease entered his plea of not guilty to the charge, which placed the burden upon the state to prove each and every material allegation in the information, and if the state failed to do so, the defendant had the right to stand upon his constitutional right and urge that the proof on behalf of the state was insufficient to sustain a conviction. The defendant did not have to attempt to explain how the deceased met his death. The defendant does not have to assume the burden of explaining, or attempting to explain, how the deceased met his death. The Attorney General in his brief says:

“There was no attempt on the part of the defendant to explain how Greer met his death, the only evidence introduced in defense of the charge was the testimony of two physicians to the effect that in their opinion the deceased must have been alive at the time his body was burned by the fire, which would have made the deceased alive on Saturday afternoon some nine or ten hours later than the time it is admitted that Schuh left Spavinaw.”

The testimony shows that the defendant in this case left Spavinaw about 8 or 8:30 o’clock a. m., Saturday before the body of the deceased was found at 7 o’clock p. m., of said date. It is true the testimony of the two physicians called to testify on behalf of the defendant did state that in their opinion, at the time the blister was made on the ring finger of the hand of the deceased, the deceased was alive, or that there was circulation in his body.

We have set forth, in substance, the testimony of the witnesses who testified in the case with the view of trying to ascertain whether or not a conspiracy, as charged in the information, existed between the defendant and Anita Greer, his codefendant. There is no positive evidence of such a conspiracy, and if a conspiracy was shown to exist it was by circumstantial evidence. The condition of this record is such that it is immaterial whether or not a conspiracy existed between the defendant and Anita Greer to take the life of L. F. Greer, for the reason that if a conspiracy existed it terminated on the death of L. F. Greer, and it was error for the court to admit, over the objection of the defendant, testimony of certain witnesses as to declarations and acts of Anita Greer which were not made in the presence of the defendant and after the death of L. F. Greer. The statements made thereafter by Anita Greer in the absence of the defendant were not binding on the defendant; they were not competent, and their admission was prejudicial to the rights of the defendant. The defendant was entitled to a verdict as to his guilt free from prejudice that might reasonably arise from the incompetent testimony referred to above.

The defendant has assigned other errors alleged to have been committed by the trial court, but, the view we take of this record, it is not deemed necessary to consider them. After reviewing all of the testimony carefully, we have come to the conclusion that the defendant did not have that fair and impartial trial to which he is entitled under the law, and are of the opinion this case should be reversed and remanded, and it is so ordered. The warden of the penitentiary is ordered to deliver the defendant to the sheriff of Mayes county, Oklahoma, to await further action of the district court of said county.

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


source: Caselaw Access Project

author: CHAPPELL, J.

license: Public Domain

text:
    C. W. TITTLE v. STATE.
    No. A-6638.
    Opinion Filed September 14, 1929.
    (280 Pac. 865.)
    Poe & Lundy, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county on a charge of manslaughter in the first degree, and his punishment fixed at a term of 99 years in the state penitentiary.

The information is as follows:

“That Byron Kirkpatrick, the duly qualified and acting county attorney of Tulsa county, Oklahoma, who prosecutes in the name and by the authority of the state of Oklahoma, comes now into the district court for Tulsa county, state of Oklahoma, on this the 14th day of September, A. D. 1926, and gives the court to understand and be informed that C. W. Tittle, on the 4th day of September, A. D. 1926, in Tulsa county, state of Oklahoma, and within the jurisdiction of this court, did unlawfully, willfully, maliciously, and feloniously, without authority of law, and with a premeditated design upon the part of said defendant to effect the death of one L. J. Smith, shoot and discharge into the body of the said D. J. Smith certain leaden or metal bullets from a certain revolver or pistol, loaded with gunpowder and leaden or metal bullets, which he, the said C. W. Tittle, then and there had and held in his hand, then and there and thereby inflicting in and upon the body of the said L. J. Smith certain mortal wounds, from which said mortal wounds the said L. J. Smith did then and there languish and die, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.
“Byron Kirkpatrick, County Attorney.
“By T. L. Wallace, Deputy.”

The defendant alleges that there are certain errors upon which he relies for a reversal of this case, which are as follows:

“(1) Errors occurring at the trial, which will be subdivided into (a) remarks of the court, to which exceptions were taken; (b) the exclusion of evidence offered and inclusion of evidence objected to, which will be set out under this point.
“(2) Error of the court in giving instruction No. 7.
“(3) That the court did not instruct on the entire law of the case.
“(4) That the verdict and judgment based thereon is cruel and unusual punishment, is excessive, and is the result of passion and prejudice.”

The defendant complains first of what he claims was an improper remark of the judge in the trial of the ease. The defendant was being cross-examined and. was asked:

“Q. And your wife is of a highly excitable disposition sometimes; is not that true?
“Mr. Poe: Objected to as incompetent, irrelevant, and immaterial, and not proper cross-examination.
“Mr. Wallace: This is just preliipinary.
“The Court: Overruled.
“Mr. Poe: Exception.
“The Court: He claims they had difficulties and had various troubles and it has been testified that he kicked her out of the bed and a lot of stuff like that. He may inquire.
“Mr. Poe: Note our exception.”

The defendant strenuously argues that the language of the court, “a lot of stuff like that,” was highly improper as a comment on the evidence, and as expressing the opinion that the evidence did not amount to anything. While the remarks of the court were ill-advised, it is not a comment on the evidence, but a statement of facts the court gives for permitting the testimony inquired about by the state. It was admitted by the defendant, and testified to by his wife, that at different times they had had trouble, that he had threatened to whip her and that on two occasions he had gone for some rope with which to whip her, and that he had kicked her out of bed, and that only a few days before the killing herein they had had a difficulty, and the defendant had left home and had gone to Galveston, Texas, where he remained for about two days, and after which he returned to his home. Then follows testimony connected with himself and family, in which defendant had tried to show by his wife that he was evidently insane at these different times when he had abused her.

In the case of Van Meer v. Territory, 15 Okla. Cr. 34, 79 Pac. 264, in paragraph 2 of the syllabus, this court said:

“Improper conduct will not be presumed on the part of a trial court, and a case will not be reversed on that ground unless such misconduct is affirmatively made to appear by the record itself, or other proper showing.’7
In the case of Calloway v. State, 38 Okla. Cr. 418, 262 Pac. 696, in paragraph 4 of the syllabus, this court said:
“It is not every improper remark of a trial court that will justify a reversal; if the remarks are such as might reasonably influence the jury against the defendant, a new trial should be granted; but if, after an examination of the record, it is clear that the verdict is right, and that, even if the remarks had not been made, the jury could not reasonably have returned a different verdict, the conviction will be affirmed.”

In ruling upon the admissibility of evidence, trial courts should carefully abstain from commenting upon the weight or effect of testimony; but where such remarks are made, and it is clear that they could not have injured the defendant, they will not constitute ground for new trial. There is nothing in the record to show that the remarks of the court were in any manner intended to mean that the evidence given by the defendant of his insanity was referred to by the court “as stuff.” The statement of the court was that a lot of matter had been introduced by the defendant, showing Ms disposition at different times, and the court thus refers to it as matters of the same Mnd or character, and not as a comment upon the weight of the evidence.

The defendant next complains that the court erred in refusing evidence offered, in which the defendant was trying to show peculiar acts of an uncle. There is nothing in the record to show that the uncle was ever insane. Dr. Butler was asked if he remembered any actions, conversations, or experiences with the uncle which would indicate to him that the uncle’s mind was deranged or unbalanced. The court sustained an objection to> this question, and the defendant then offered to show that, if the witness be permitted to testify, said witness would testify as follows:

“While in talking he would make some very unreasonable statements and before he would get through he would contradict himself.”

If the statement that said uncle would make some very unreasonable statements, and before he got through would contradict himself, showed mental derangement, then most of the population of Oklahoma would be fit subjects for the lunatic asylum. While the rule is, “When insanity is relied on as a defense to homicide, great latitude is allowed in admitting evidence having any tendency to throw light on the mental condition of the defendant at the time of the commission of the crime,” we are of the opinion that the proof offered did not in any way tend to establish the insanity of the defendant and the evidence was properly excluded. The defendant was permitted to prove that his father had been sent to the asylum for a period of six weeks at one time, that the mother was mentally deficient, and that the defendant had had spells of epilepsy. After offering this proof, the defendant offered in evidence the history of insanity, the pathological reports, and the conclusion of medical experts, all shown by the records of the insane asylum of the state of Arkansas, all of which was excluded.

It is the contention of the defendant that the exclusion of this evidence was grievous error, and highly prejudicial to the defendant and his defense. The records of the insane asylum of the state of Arkansas were not the best evidence. The defendant had already been permitted to show that his father was confined there, and by the testimony of the doctor who examined him that he was insane. The records offered could add nothing to the uncontradicted testimony of the superintendent of the hospital and the doctor who examined him, and were therefore properly excluded.

The defendant next complains that the court erred in giving instruction No. 7, which reads as follows:

“You are instructed that the law presumes every person to be sane and of sound mind, able to distinguish right from wrong as applied to any particular act, and to understand the nature and consequences of such act, until a reasonable doubt of his sanity is raised by competent evidence, and that it is an essential ingredient of crime that a person, to be guilty of crime, must have, at the time of its commission, sufficient mental capacity and reason to enable him to distinguish between right and wrong as applied to the act that he is then about to do. Although one may be in a diseased or unsound condition of mind, brought about by any condition, such as brooding over wrongs done to him, either real or imaginary, or produced by any other cause, if, at the time such person commits a crime, he knows and understands the nature and character of such act and its consequences, and at that time knows that it is wrong and criminal to commit such act, and has sufficient mind to apply that knowledge to his own acts, and to know that if he does commit such act he will do wrong and subject himself to punishment, then and in that event such diseased or unsound condition of mind is not sufficient to exempt or exonerate him from criminal liability.
“So, in this case, although the jury may believe from the evidence beyond a reasonable doubt that at the time of the commission of the crime charged in the information, if they find and believe beyond a reasonable doubt that the defendant did commit it as charged, still, if they further find and believe from the evidence beyond a reasonable doubt that at the time said crime was committed the defendant had sufficient mind and reason to know and distinguish right from wrong-, and that if he did commit such crime it would be in violation of the law and subject him to punishment, and to know and realize the consequences of his act, then and in that event he connot escape criminal liability under his plea of insanity, and the jury should find him guilty as charged in the information, and fix his punishment as defined to you in these instructions.” .

In order to get a proper understanding of the instructions of the court, it will be necessary to consider instruction No. 7 in .connection with instruction No. 6, which reads as follows:

“You are instructed that the defendant has interposed as a defense in this case the defense of insanity. When the defense is interposed, the burden of proof is upon the defendant, unless the evidence on the part of the state is sufficient for that purpose, to introduce sufficient evidence to raise in your minds a reasonable doubt of his sanity. It is not required that the defendant shall prove his insanity to the satisfaction of the jury beyond a reasonable doubt, or by a preponderance of the evidence. It is sufficient if he introduced sufficient evidence to raise in your minds a reasonable doubt of his sanity, and, when he has done this, you are instructed that the burden of proof is upon the state to prove such a state of sanity of tbe defendant as would make bim criminally liable, by competent evidence beyond a reasonable doubt, before you would be justified in convicting the defendant of tbe crime charged in the information, and if you believe that tbe state has failed to prove by competent evidence beyond a reasonable doubt, the sanity of tbe defendant, and if, from all tbe evidence in the case, there is a reasonable doubt in your minds as to the sanity of the defendant, you should give the defendant the benefit of that doubt, and return a verdict of not guilty.”

The defendant relies on the case of Adair v. State, 6 Okla. Cr. 284, 118 Pac. 416, 44 L. R. A. (N. S.) 119. In paragraph 2 of the syllabus this court said:

“Section 7000 provides: An act done by a person in a state of insanity cannot be punished as a public offense.’ Held, that the latter section does not in effect modify the former, but is supplemental to it; that under these provisions the test of criminal responsibility for committing an act, which is a crime under the law, is the mental cap'acity to distinguish between right and wrong as applied to the particular act, and to understand the nature and consequences of such act, or knowing its wrongfulness the defendant is not criminally responsible, if by reason of insanity he did not have the will and mental power to refrain from committing such act.”

The defendant argues that instruction No. 7 is fatally defective, because it did not include the words “the defendant is not criminally responsible if by reason of insanity he did not have the will and mental power to refrain from committing such act.” The opinion in this case was written by Judge Doyle.

In the case of Roe v. State, 17 Okla. Cr. 587, 191 Pac. 1048, 1051, in paragraph 1 of the syllabus, in an opinion written by Judge Matson, this court said:

“Under subdivision 4 of section 2094, Rev. Laws 1910, the test of criminal responsibility for committing an act which is declared to be a crime is fixed at the point where the accused has mental capacity to distinguish between right and wrong as applied to the particular act, and to understand the nature and consequences of such act.”

In the body of the opinion, on page 598 of 17 Okla. Cr., 191 Pac. 1052, this court said:

“In Alberty v. State, 10 Okla. Cr. 616, 140 Pac. 1025, 52 L. R. A. (N. S.) 248, in construing section 2094, supra, this court held: ‘Under this provision, the test of criminal responsibility for committing an act which is declared to be a crime is fixed at the point where the accused has mental capacity to distinguish between right and wrong, as applied to the particular act, and to understand the nature and consequences of such act.’
“Again, in the case of Smith v. State, 12 Okla. Cr. 307, 155 Pac. 699, this court in another opinion, speaking through Doyle, P. J., held: ‘The true test of criminal responsibility, where the defense of insanity is interposed, is whether the defendant had sufficient reason to know right from wrong.’ To the same effect is the holding in Owen v. State, 13 Okla. Cr. 195, 163 Pac. 548.
“These are the later opinions of this court construing the test of criminal responsibility as applied to all classes of persons alleged to have been insane at the time of the commission of the act, and if there is any apparent conflict between these decisions, and the earlier decisions of this court upon the same subject, the later opinions are controlling, and must be held and construed to overrule the doctrine announced or the rule laid down to the contrary, if any, in Adair v. State, 6 Okla. Cr. 284, 118 Pac. 416, 44 L. R. A. (N. S.) 119.”

It will thus be seen that, in the case of Roe v. State, supra, this court overruled the doctrine announced in Adair v. State, supra, that “the defendant is not criminally responsible, if, by reason of insanity, [he] did not have the will and mental power to refrain from the committing such act.”

In the case of McNeill v. State, 18 Okla. Cr. 1, 192 Pac. 256, this court re-stated the rule laid down in Roe v. State, supra, as the true test of the insanity of the defendant. These opinions were both written by Judge Matson and concurred in by Judge Doyle.

In the case of Sloan v. State, 25 Okla. Cr. 23, 218 Pac. 717, 720, in an opinion by Judge Doyle, in the body of the opinion, this court said:

“The doctrine that an irresistible impluse resulting from a disordered mind relieves from criminal responsibility, though the accused was capable of distinguishing between right and wrong with respect to the act in question, is not recognized in this jurisdiction. The capacity to know right from wrong, and to know that the particular act being committed is wrong, is recognized as the correct rule in Oklahoma to test the question of criminal responsibility. Roe v. State, 17 Okla. Cr. 587, 191 Pac. 1048; Snodgrass v. State, 15 Okla. Cr. 117, 175 Pac. 129; Owen v. State, 13 Okla. Cr. 195, 163 Pac. 548; Smith v. State, 12 Okla. Cr. 307, 155 Pac. 699; Alberty v. State, 10 Okla. Cr. 616, 140 Pac. 1025, 52 L. R. A. (N. S.) 248. In Roe v. State, supra, it is said:
“ ‘The statute of this state does not recognize the doctrine that one may be so possessed with an uncontrollable impulse as to compel him to do what he knows to be wrong and a crime, and yet be relieved from all criminal responsibility. A condition might be conceived of an uncontrollable insane impulse sufficient to relieve one of criminal responsibility under our statute; but this would only ax-ise when the diseased condition of the accused’s mind was such as to destroy the power of the accused to comprehend the nature and consequences of the particular act, and to know that it was wrong at the time of its commission’.”

It will thus be seen that in all the decisions of this court following the case of Hoe v. State, supra, this court has repudiated that part of paragraph 2 of the syllabus in Adair v. State, which defendant alleges should have been included in .instruction No. 7. Instructions Nos. 6 and 7 as given in this case are a true and correct statement of the law of insanity. In order that there may be no further misunderstanding of the position of this court upon the question, the language, “the defendant is not criminally responsible if by reason of insanity he did not have the will and mental power to refrain from committing such act,” is expressly overruled as not being a part of the true test of criminal responsibility in a defense of insanity.

Finally the defendant urges that the verdict was the result of passion and prejudice and was cruel and uncertain. The verdict of the jury reads as follows:

“We, the jury, drawn, impaneled, and sworn in the above entitled cause, do upon our oaths find the defendant guilty of the crime of manslaughter in the first degree as charged in the information herein, and fix his ' punishment at confinement in the state penitentiary for 99 years.
“C. M. Bell, Foreman.”

There is nothing uncertain about this verdict. It finds the defendant guilty of manslaughter in the first degree, and fixes his punishment at confinement in the state penitentiary for 99 years.

The evidence on the part of the state discloses that the defendant, while in a drunken condition, was temporarily compelled to remain away from his home, on account of the fact that the deceased and his family were in the home and refused to vacate, and that the defendant’s wife was staying in the home, and the defendant staying at another and different place; that about the hour of midnight the defendant went into his home and called to the deceased, and when deceased came into the room where the defendant was standing that the defendant immediately began shooting deceased, and continued to shoot until five shots had been fired into the body of the deceased.

The question of the insanity of the defendant was fully and fairly submitted to the jury, both by the evidence and the instructions, and the jury found this issue against the defendant. It is not possible, in a trial of a case of this magnitude, to prevent error from creeping into the record, but the errors complained of by the defendant are not sufficient to require a reversal of this case. The verdict of the jury is definite, and the fact that they fixed the punishment at 99 years is not sufficient to show that it is either cruel, inhuman, or uncertain. In the light of all the evidence in the case, the verdict is one that could have been justly returned by the jury.

For the reasons stated, the cause is affirmed.

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


text:
    CHARLES E. PATTERSON v. STATE.
    No. A-6088.
    Opinion Filed September 14, 1929.
    (280 Pac. 862.)

      For former opinion, see 42 Okla. Cr. 255, 275 Pac. 387.
    Mauntel & Spellman, Howard W. Patton, and Math-ers & Whiteside, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Woodward county on a charge of robbery with firearms, and was sentenced to serve a term of 10 years in the state penitentiary.

On the 16th of March, 1929, this court handed down an opinion affirming the cause. 42 Okla. Cr. 255, 275 Pac. 387, 389. Defendant has filed a petition for rehearing, alleging in substance that the court erred in its conception of the facts as shown by the record and erred as to the law applicable thereto; the real question presented being, Was it reversible error for the trial court, over the exceptions and objections of the defendant, to instruct the jury that the minimum penalty for the crime charged was 5 instead of 25 years’ imprisonment in the penitentiary?

In the original opinion filed on March 16, 1929, the court used the following language:

“In advising the jury as to the punishment for the crime charged, the court instructed them that the maximum penalty was death and the minimum punishment imprisonment for a term of not less than five years; the court evidently having in mind that chapter 44 of Session Laws of Oklahoma of 1925, was in force at the time of the commission of this offense. In this the court was in error. The punishment at that time was fixed by section 1, c. 85, of the Session Laws of Oklahoma 1923, and the minimum punishment was confinement in the penitentiary for a term of not less than twenty-five years. The court and county attorney should have been better advised. In Lilly v. State, 7 Okla. Cr. 284, 123 Pac. 575, Ann. Cas. 1914B, 443, it was said, in substance, that the punishment for an offense should be under thé statutes as they existed at the time the offense is committed. See, also, Ensley v. State, 4 Okla. Cr. 49, 109 Pac. 250; State ex rel. v. McCafferty, 25 Okla. 2, 105 Pac. 992, L. R. A. 1915A, 639; Williams v. State, 7 Okla. Cr. 529, 124 Pac. 330.”

In the recent case of Cornett et al. v. State, 40 Okla. Cr. 172, 267 Pac. 869, this court said:

“Where the court in its instructions submits to the jury a smaller penalty for the offense that than prescribed by law, but of the same kind, and where the defendant does not call the attention of the court to, nor except to, the error in defining the punishment, and a smaller penalty is assessed by the jury, the error being beneficial to defendant, the defendant upon appeal will not be heard to complain that such instruction is prejudicial. The error in such case is not reversible.”

The difference between the case at bar and the Cornett and other cases cited by the state to support the verdict is that in the case at bar the instruction was excepted to by the defendant. Not only did the defendant object to tbe giving of tbe instruction, but be excepted to tbe verdict of tbe jury when returned, and in bis motion for new trial be assigned tbe giving of sucb instruction as error and that tbe verdict was contrary to law. In bis petition in error and petition for rebearing in tbis court be alleges that tbe giving of tbis instruction is reversible error and that tbe verdict is contrary to law.

This court has held in a number of cases that, where the court in its instructions, submits to tbe jury a Smalley penalty for tbe offense than that prescribed by law, but of the same kind and character authorized, and where the defendant does not call tbe attention of tbe court to, nor except to, sucb erroneous instruction defining tbe punishment, and a smaller penalty is assessed by the jury, tbe error being, beneficial to tbe defendant, tbe defendant on appeal .will not be beard to complain that sucb instruction is prejudicial. Tbe error in sucb case is not reversible. Cornett v. State, supra; Coleman v. State. 6 Okla. Cr. 276, 118 Pac. 594.

All tbe authorities cited by tbe state in its reply brief are cases where tbe defendant saved no exceptions and requested no other and further instructions, and where tbe punishment was of tbe character authorized by tbe state, so that none of these cases are in point upon tbe question now under consideration by tbis court.

In tbe case of Beck v. State, 14 Okla. Cr. 3, 166 Pac. 753, tbis court in paragraph 2 of tbe syllabus said:

“A trial court has no authority to authorize tbe jury by-bis instructions to fix any punishment other than that provided by tbe statute.”

In tbe body of tbe opinion, on page 6, of 14 Okla. Cr., 166 Pac. 754, this court discusses tbe precise point in issue in this case:

“For tbe purpose of disposing of this case, it is not necessary to determine tbe assignment based upon tbe instruction of tbe court authorizing tbe jury to fix tbe punishment at from one to ten years. It will be noted, however, that in this case tbe instruction was specifically objected to and tbe court’s attention called to the fact that it did not state tbe law. When this objection was made and the court’s attention directed to the specific point, it was error to give tbe instruction, and tbe court was wholly without warrant in doing so. Tbe statute fixes tbe punishment for this offense at not less than two years nor more than ten years, and tbe trial court bad no right to substitute the minimum of one year for tbe minimum of two years as fixed by the law of tbe land.
“We are not unmindful of the doctrine announced in the case of Coleman v. State, 6 Okla. Cr. 252, 118 Pac. 594, and the authorities there cited. It does not appear from the Coleman Case that the instruction was given over the objection and exception of the accused, nor does it so appear from the quotations in any of the cases relied upon to support that opinion. A careful examination of all of these opinion has not been made by the writer. We know of no sound rule of law,, however, that allows the trial court to substitute his instructions for the statute as promulgated by the lawmakers. A trial court will sometimes inadvertently make these mistakes, and when they are acquiesced in by counsel for the defendant, and no objection is made and no exception reserved, and when the punishment is of that character authorized by the statute, there might be some warrant for upholding a judgment of conviction, and it is probable the class of cases quoted in the Coleman Case, supra, was the classi the various courts were considering. This would not be sound policy, however, when the action taken by the court was over the objection and exception of a defendant.”

The people speaking through the Legislature enact the laiv and fix the penalty for its violation. No one will contend that the defendant would have any right to ask a penalty less than that fixed by the Legislature. Certainly if the defendant cannot do so neither could the state. Trial judges are human, and are more or less moved or controlled by the influences, impulses, and desires that move humanity in general. The Legislature fixed the penalty for robbery with firearms at a minimum of 25 years in the penitentiary or death as the maximum. If a trial judge may say that the minimum penalty for robbery Avith firearms is 5 years when the Legislature has said 25, then he may go further and say that the minimum punishment would be only one day.

The Constitution provides that one who barters, sells, gives away, or otherwise furnishes intoxicating liquors shall be fined not less than $50 and confined in the county jail for a period not less than 30 days. If the trial judge, because he feels that the penalty inflicted for such offense is excessive, may instruct the jury over the objection of the defendant or the state that the minimum fine is $1 and the imprisonment one day in the county jail, then such judge has power to overthrow and destroy the Constitution of this state. To state such a proposition is to at once prove its falsity. The penalty may not be fixed according to the whim or notion of the trial judge, but must be fixed according to the standard set by the people as expressed by the law of the state. As was well said by this court in Beck v. State, supra:

“A trial court has no authority to authorize the jury by his instructions to fix any punishment other than that provided by the statute.”

In the case at bar the instruction was erroneous. The defendant excepted to it, and strenuously insists that it is not the law. The state should have excépted to it also and pointed out to the trial court what the law was.

In the Texas case of Washington v. State, 68 Tex. Cr. R. 589, 151. S. W. 818, 819, a case turning upon the misdirection of the jury as to punishment, the court says:

“If the ruling of the court, being erroneous, leads or probably leads to * * * a conviction when it would not otherwise have occurred, * * * then * * * the error is fatal, and the judgment should be reversed.”

See, also, Dekelt v. People, 44 Colo. 525, 99 Pac. 330; Bostic v. State, 22 Tex. App. 136, 2 S. W. 538; Graham v. State, 29 Tex. App. 31, 13 S. W. 1013; Moody v. State, 30 Tex. App. 422, 18 S. W. 94; State v. Milligan, 170 Mo. 215, 70 S. W. 473; State v. Sands, 77 Mo. 118; Bird v. State, 154 Ark. 297, 242 S. W. 71; James v. State, 53 Ala. 380.

The question involved in this case is so important and far-reaching in its effect that this court cannot say that the error complained of is a harmless one. There are two equally interested parties in a criminal case, the state and the defendant. Each of the parties has rights which the courts are bound to protect. The state has a right to have the court tell the jury what constitutes the crime and the punishment fixed by law for the commission of such crime. The defendant has the same right, and is equally interested with the state in having the court instruct the jury particularly as to what constitutes the offense and what the punishment for the same may be.

We are not unmindful of the fact that this court has many times held that it will not reverse a conviction on the ground of the misdirection of the jury, unless it appears from an examination of the entire record that the error complained of has probably resulted in a miscarriage of justice or constitutes a substantial violation of tbe Constitution or statutory rights of the defendant.

To say that the giving of an instruction over the exceptions of the defendant or the state, authorizing the jury to fix a penalty less than that prescribed by statute, is harmless error, is to destroy such doctrine. This court absolutely cannot disregard error of such magnitude and fundamental import. If an error of this nature is passed over as harmless, then every safeguard that the law and the decisions have erected to insure a fair trial can be overthrown and disregarded by the court with a wave of the hand and a passing deference to the doctrine of harmless error.

For the reasons stated, the opinion heretofore rendered in this cause affirming the conviction is vacated and set aside, and the cause reversed and remanded, with directions to the trial court to proceed with the trial of the case in conformity with the law.

DAVENPORT, J., concurs.

EDWARDS, P. J., dissents.


author: EDWARDS, P. J.

text:
    DEE VOLK v. STATE.
    No. A-6778.
    Opinion Filed September 14, 1929.
    (280 Pac. 862.)
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Payne county of the crime of robbery, and his punishment fixed at a term of five years in the state penitentiary.

The appeal was lodged in this court in October, 1927. No briefs in support of the appeal have been filed. The record discloses that, at the time charged, defendant, with a female companion, with firearms held up one J. E. Thompson, operating, a filling station at the town of Perkins, and took from him some |22 or $23 in money. The defense is alibi. The evidence convinces us that defendant was properly convicted.

Where an appeal is prosecuted to this court upon conviction for a felony, and no briefs in support of the appeal are filed, this court will not search the record to discover some error upon which to predicate a reversal, but will examine the record for fundamental or prejudicial error, and if none appear, and the evidence reasonably supports the verdict, the judgment will be affirmed. We have done this, and find no material error.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    ED STOTT v. STATE.
    No. A-6730.
    Opinion Filed September 14, 1929.
    Rehearing Denied September 29, 1929.
    (280 Pac. 634.)

      Madden & Hubbell, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

This case was prosecuted in the district court of Cotton county, Oklahoma, upon information filed 'by the county attorney, in which it is alleged that on the 9th day of July, 1926, Ed Stott, plaintiff in error, hereinafter called defendant, did then and there willfully, unlawfully, wrongfully, knowingly and felon-iously accomplish an act of sexual intercourse with, carnally know, and rape one Ruby Swinford, a female person under the age of 16 years, to wit, of the age of 14 years, and not the wife of the said Ed Stott. The defendant was found guilty, and his punishment fixed by a jury at imprisonment in the state penitentiary for 10 years.

Defendant urges that the evidence of the prosecutrix was contradictory and uncorroborated, and that the defendant positively denied the act of intercourse complained of, and urges that there is no corroboration of the testimony of the prosecutrix.

The prosecutrix, Ruby Swinford, was born on the 13th day of June, 1912, and the crime was alleged to have been committed on the 9th day of July, 1926, which would have made her 14 years and 26 days old at the time of the commission of the offense. In her direct testimony she told a straightforward and simple story of how the defendant came to her father’s house and asked her father, who was sick, to send her with him to the defendant’s house to' get some fresh vegetables and buttermilk for the sick father; that, instead of taking her to his home, the defendant took her by a roundabout way, and on the trip committed four separate acts of intercourse with her. On cross-examination, defendant’s counsel did succeed in having the witness contradict herself in some details of the crime, but she always stuck to her story that the defendant actually had intercourse with her four times, and failed in one other trial. Considering the age of the witness and the natural timidity of a young girl in telling the revolting details of this kind of crime, her evidence, even if uncorroborated, was sufficient to justify a verdict of guilty.

The defendant contends that there is no corroboration of the evidence of the prosecutrix. Mrs. J. A. Swinford, the mother of the prosecutrix, corroborated her in her evidence as to the coming of the defendant to' the home and the pretext upon which she was induced to leave. The mother testified that the prosecuting witness left in company with the defendant, that she was 14 years old, that when the prosecutrix returned she did not bring any vegetables or buttermilk, that the defendant did not return with her, and that when the girl returned she was very dirty.

Bart Claiborne testified that he saw the prosecutrix and the defendant together the date fixed by the prose-cutrix as the time when the crime was committed; that when he approached the car the prosecutrix got into the car, and the defendant pretended to be working with his car; that the girl was lying down in the seat; that the defendant remarked, “I need pulling,” and the witness answered, “I think so myself;” that the circumstances under which he saw the prosecutrix and the defendant were such that his suspicions were aroused, and he reported the matter to the county attorney; that the witness accompanied the county attorney and the sheriff to the home of the prosecutrix; that the prosecutrix made a statement, which was written down, and that following the making of this statement the sheriff arrested the defendant; that the day following the arrest of the defendant the witness accompanied the county attorney and the sheriff and the prosecutrix over the route the prose-cutrix had told them the defendant took her; and that the prosecutrix pointed out the places where the alleged acts of intercourse were committed, and witness found, from the condition of the weeds and the lay of the ground, physical signs corroborating the evidence of the prose-cutrix.

The county attorney, Toby Morris, and the sheriff testified to the taking of the statement and the visit to the scenes of the crime, practically the same as the witness Claiborne and the prosecutrix. C. L. Rice testified to seeing the defendant and the prosecutrix about a quarter of a mile north of the South Mountain View schoolhouse. Mrs. H. D. Pickett testified that she saw the defendant and 'the prosecutrix at her father’s filling station, and described the purchase of soda water and all other matters in connection with their visit there; her evidence being substantially the same as that of tbe prosecutrix. Dr. R. W. Johnson testified that he made a physical examination of the prosecutrix, and that upon an examination he found a rupture of the hymen and the labia was swollen, and that the appearance of the hymen was that it had recently been ruptured. All of this testimony clearly corroborates the testimony of the prosecutrix upon every material fact she testified to, except the actual act of intercourse.

At the close of all the testimony, the court required the state to elect on which of the several acts of sexual intercourse it would rely for conviction, and the state elected to rely on assault No. 3, being the one claimed to have been made one mile north of East Cache bridge, where prosecutrix was chained. This court has held that a defendant may be convicted upon the uncorroborated testimony of the woman. Wines v. State, 7 Okla. Cr. 459, 124 Pac. 466; Douglas v. State, 19 Okla. Cr. 257, 199 Pac. 927.

In the case of Browning v. State, 31 Okla. Cr. 373, 239 Pac. 272, paragraph 2 of the syllabus, this court held:

“Where there is evidence from which the jury may reasonably and logically find the defendant guilty of the crime charged, in the absence of unusual circumstances, this court will not set aside the jury’s verdict on account of insufficiency of the evidence.” Wilson v. State, 32 Okla. Cr. 139, 240 Pac. 155; Shields v. State, 32 Okla. Cr. 344, 240 Pac. 661; Tennison v. State, 32 Okla. Cr. 257, 240 Pac. 323.

The defendant was 44 years of age, a married man, with a family. By false pretense and in a guise of friendship for a sick father, he induced this 14 year old girl to accompany him on what she supposed was an errand of mercy, to obtain food and drink for her father. The evidence indicates that the defendant never intended to get any vegetables or food, but that he did intend to do the very thing which he did do, and that was to rape this young, innocent girl. After having accomplished his vile purpose, and without having visited his garden or procured any vegetables or milk for the sick father, he compelled or permitted the little girl to walk back home, and now contends that, because in some details she is forced on cross-examination to seemingly contradict herself in her story of what happened, therefore her evidence is of such an unreliable nature that the cause should be reversed. The prosecutrix told a reasonable story. She was corroborated by disinterested witnesses. This evidence was amply sufficient to warrant a verdict of guilty.

For the reasons stated, the judgment is affirmed.

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


text:
    JOHN KING v. STATE.
    No. A-6718.
    Opinion Filed September 14, 1929.
    (280 Pac. 855.)

      I. L. Cook, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

John King, plaintiff in error, hereinafter called defendant, was jointly informed against with his brothers Lee King and Munford King in the district court of Atoka county, charged with stealing one hog, the property of one Calicoat. A severance was demanded, and the state elected to try the defendant John King first. The trial resulted in a verdict of guilty with punishment assessed at imprisonment in the state penitentiary for two years.

But two questions are presented as grounds for the reversal of this judgment. First, error of the trial court in overruling the demurrer to the information. The charging part of the information is as follows:

“That one John King, Lee King and Munford King late of Atoka county, did in Atoka county, and in the state of Oklahoma, on or about the 26th day of February in the year of our Lord, one thousand nine hundred and' twenty-six and anterior hereto commit the crime of larceny of domestic animals in the manner and form as follows:
“This is to say, the defendants did in said county and state, at the date above named, unlawfully, wrongfully, knowingly, willfully, knowingly, stealthfully and feloniously, take, steal and carry away, by fraud and stealth one hog of the personal property of one W. E. Calicoat, the true owner thereof, with the unlawful, willful, wrongful, fraudulent and felonious intent then and there on the part of them the said John King, Lee King and Munford King to permanently deprive him the said W. E. Calicoat of said property and livestock and to convert the same to the use and benefit of them the said John King, Lee King and Munford King.”

The statute defining the offense reads as follows:

“Any person in this state who shall steal any horse, shall be guilty of a felony and upon conviction shall be punished by confinement in the state penitentiary for a term of not less than five years nor more than ten years; and any person in this state who shall steal any cow, or hog shall be guilty of a felony and upon conviction shall be punished by confinement in the state penitentiary for a term of not less than two (2) years, nor more than ten years. The word ‘horse’ as used in this act, shall include all animals of the equine species, and the word cow shall include all animals of bovine species.” Section 2116, C. O. S. 1921.

The particular objection to the information in this case is that the property stolen is not described with enough particularity to identify the transaction. The property is described as “one hog, the personal property of W. E. Calicoat.”

In the case of Adair v. State, 15 Okla. Cr. 619, 180 Pac. 253, 255, this court held:

“In an information for the offense of larceny of livestock which describes the livestock stolen as ‘two certain steers’ it is sufficient description of the property charged to have been stolen.”

In the body of the opinion it is said:

“The defendant most earnestly insists that the information is not only duplicitous, but is also fatally defective because the property therein alleged to have been stolen is not sufficiently described. With this contention we cannot agree. The said information is certainly not duplicitous, does not charge two different offenses, and does not tend to mislead the defendant as to the offense charged. That ‘two certain steers’ is a sufficient description of the property in an information for the larceny of livestock alleged to have been stolen is not an open question in this court, having been decided adversely to the insistence of the defendant. In Garnett Roebuck v. State, 14 Okla. Cr. 241, 170 Pac. 277, which was a conviction for the larceny of . livestock, the information describes the property alleged to have been stolen in the identical words of description as in the information in the instant case 'two certain cows’, and in the opinion in said case Presiding Judge Doyle says: 'The information in this case is unquestionably sufficient, and would be good on a demurrer thereto’.”

Cyc. lays down the rule to be:

“An animal is usually sufficiently described by giving its ordinary name, without further particulars.” 25 Cyc. 82.
'' 'Hog’ or 'Head of hogs’ is enough to cover any variety of swine.”

Under the foregoing decisions of this and other courts construing the sufficiency of indictments and informa-tions charging this crime, the information in this case sufficiently described the animal stolen, and the trial court did not err in overruling the demurrer to the information.

The second assignment of error questions the sufficiency of the evidence to sustain the conviction. While the evidence is circumstantial, and while there is a conflict in the evidence as between the state and the defendant, there is sufficient competent evidence in the record to support the verdict of the jury. This court has always held that, where there is a conflict in the evidence and there is any competent evidence to support the verdict of the jury, the conviction will not be set aside for insufficiency of the evidence. Browning v. State, 31 Okla. Cr. 373, 239 Pac. 272; Wilson v. State, 32 Okla. Cr. 139, 240 Pac. 155; Shields v. State, 32 Okla. Cr. 344, 240 Pac. 661; Tennison v. State, 32 Okla. Cr. 257, 240 Pac. 323; Miller v. State, 43 Okla. Cr. 184, 277 Pac. 687; Reynolds v. State, 43 Okla. Cr. 353, 278 Pac. 358.

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

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


text:
    DAVE DOWNS v. STATE.
    No. A-6784.
    Opinion Filed September 14, 1929.
    (280 Pac. 856.)
    C. C. Wells and S. A. Fowler, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Harmon county on a charge of selling intoxicating liquor, and was sentenced to serve a term of 30 days in the county jail and to pay a fine of $50.

Defendant was jointly charged with one Elmer Stewart with selling six pint bottles of intoxicating liquor, home brew, a liquor containing more than one-half oí 1 per cent, of alcohol, measured by volume, and capable of being used as a beverage.

The record discloses that the sheriff had in his custody Hugh Gates and Russell Williams, two negroes, one of them having been convicted of violating the liquor law and the other of stealing chickens. He suspected the illicit sale of intoxicating liquor in the neighborhood of the Carl store, and with a deputy sheriff took these negroes there to assist him in locating the place of sale. Williams and Gates were furnished money by the sheriff to purchase liquor; they accosted defendant who is a negro, and sought to buy beer from him. Defendant informed them that he did not have any, and after some further conversation drove away and attempted to find some, but was unable to do so, but informed them there was a place over west where they might get some. The two then got in the car with Downs and went to the place of the co-defendant Stewart, and there bought some beer and paid him for it. They bought six bottles, drank part of it, and started back to Carl, and were met by the sheriff. Gates, a witness for the state, testified as follows :

“Q. Did Mr. Downs ever tell you that he had any beer, or any interest in any? A. No, sir.
“Q. Did he take any interest in the purchase of this beer? A. Not for a while he didn’t. * * *
“Q. What did you say to Stewart? A. He came to the car, and we asked if he had some beer, and he said, ‘Yes,’ but it wasn’t his. * * *
“Q. You and Russell bought two bottles of beer and paid for it and drank it? A. Yes. * * *
“Q. Did the beer remain there with you and Williams until you got back to Hollis, and five bottles were there on the back seat together between you and Williams? A. Yes, sir.
“Q. Don’t you know it was a fact that Downs did not put any beer there A. He did not.
“Q. All he did was to go over there with you and Russell? A. Yes.
“Q. He told you he didn’t know where there was any beer? A. Yes. * * *
“Q. You had three bottles on the back seat with you, and Mr. Downs had the one he drank out of. Who paid for the one Downs drank? A. He did.”

At the time the sheriff stopped the car in which defendant, Williams, and Gates were riding, defendant contended that he had nothing to do with the sale of any beer, but merely went with the other negroes to buy some. The codefendant Stewart pleaded guilty, and testified in substance that he sold the beer to Williams and Gates, that defendant had no interest or connection with it, nor with the sale, except that he came there with Williams and Gates. The defendant here is prosecuted on the charge of selling. It appears to us that the evidence clearly is that defendant, with two other negroes, went to the place of Stewart and bought from him the beer in question; that Williams and Gates paid for what they purchased and defendant paid for the bottle he drank. The evidence does not disclose that defendant made any sale, and it is insufficient to sustain the charge.

The case is reversed.

DAVENPORT and CHAPPELL. JJ.. concur.


text:
    G. L. HORTON v. STATE.
    No. A-6717.
    Opinion Filed September 14, 1929.
    (280 Pac. 857.)

      Meacham, Meacham & Meacham and W. W. Peterson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Roger Mills county on a charge of assault with intent to kill, and his punishment fixed at a term of four years in the state penitentiary.

The first contention is made that the verdict is in’ definite, and not responsive to the issues, and purports to be for an offense not defined by statute. The defendant was informed against for shooting at another with intent to kill, under section 1756, Comp. St. 1921. The sufficiency of the information is not questioned. The court in his instructions properly defined and submitted to the jury the crime of shooting another with intent to kill, and also the lesser and included offense of shooting another with intent to do bodily harm, but without intent to kill, as defined by section 1764; Comp. Stat. 1921. The instructions upon this point are:

“(3) Now, if you find and believe from the evidence beyond a reasonable doubt that the defendant * * * did then and there unlawfully, willfully, wrongfully, intentionally, and feloniously make an assault in and upon one H. C. Dykes with a certain shotgun and did then and there wrongfully, intentionally, and feloniously * * * shoot the said H. C. Dykes, with the unlawful and felonious intent on the part of him, the said G. L. Horton, to kill the said H. C. Dykes, then in that event you will find the defendant guilty of an attempt to kill the said H. O. Dykes, as charged in the information, and so say by your verdict.
“But if, under the evidence and these instructions, you entertain a reasonable doubt of the guilt of the defendant of an attempt to kill the said H. C. Dykes, as charged, but do find and believe from the evidence beyond a reasonable doubt that the said Gr. L. Horton, did * * * willfully, wrongfully, intentionally, and feloniously, with intent to do bodily harm, without justifiable or excusable cause, shoot * * * one H. C. Dykes with a certain shotgun, with the unlawful and felonious intent to injure the said H. C. Dykes, although without any intent to kill the said H. C. Dykes, then in that event you should find the defendant guilty of assault with a dangerous weapon with intent to do bodily harm, without justifiable or excusable cause.
“(4) If from the evidence and these instructions you find beyond a reasonable doubt that the defendant is guilty of an attempt to kill the said H. C. Dykes, as charged in the information, or of an assault by shooting * * * said H. C. Dykes with intent to do bodily harm, without justifiable or excusable cause, without intent to kill, but have a reasonable doubt of which of said offenses he is guilty, then you should give him the benefit of such doubt and find him guilty of the latter offense, to wit, shooting * * * said H. C. Dykes with intent to do bodily harm, without justifiable or excusable cause. If you entertain a reasonable doubt of the guilt of the defendant of either of said offenses, then you will find him not guilty.”

None of the instructions were excepted to, and no requests for additional instructions were presented, nor was any objection to the verdict made when returned. No assignment of error predicated on the instructions or the verdict was made in the motion for a new trial. No assignment is made in the petition in error of error in the instructions given, or in the failure to give additional instructions. The insufficiency of the verdict is there assigned as follows:

“Second. Because the verdict rendered in said cause and the judgment and sentence in said cause are contrary to law.”

It is very doubtful if the point sought to be made that the verdict is too indefinite to sustain the judgment is properly preserved, under the record as stated.

The jury returned its verdict finding defendant “guilty of an attempt to kill, as charged in the information herein,” and fixed the punishment at four years in the state penitentiary. By the instructions above quoted, the court defined and submitted to the jury only two assaults, that of shooting another “with intent to kill,” and that of shooting another ‘“without intent to kill, but with intent to do bodily harm.” The error in instruction No. 3, submitting assault with intent to kill, is in naming the offense “attempt to kill.” This offense should have been named “shooting with intent to kill.” This error, no doubt, crept into the instructions from the fact that article 19, c. 6 (sections 1755-1757) Comp. Stat. 1921, defining this assault is headed: “Attempts to Kill.” Also the subhead of the section defining this offense — i. e., section 1756 — is, “Attempt to Kill.” That is, the codifier or compiler has named this offense “attempt to kill,” and the court erroneously adopted this name, instead of the correct name of “shooting with intent to kill.” This is a mere misnomer in the instructions and in the verdict. The elements of the offense are correctly stated to the jury; they must have found the existence of these necessary elements, in order to render the verdict of shooting with intent to kill, designated by them as “attempt to kill.”

If this error in the verdict and instructions had been called to the attention of the trial court, it would no doubt have been corrected; but, this not having been done, it is well settled that, if it can be determined from tbe verdict what the jury intended, it will be upheld, and all reasonable intendments and inferences will be indulged with reference to the entire record to sustain it. Stansell et al. v. State, 30 Okla. Cr. 265, 235 Pac. 937; Harrell v. State, 43 Okla. Cr. 278, 278 Pac. 404.

It is also argued that the cause was not prosecuted by the county attorney, but by special counsel employed by the prosecuting witness. The record upon this point is that the case was conducted by Mr. Blosser and Mr. Brown, attorneys, privately employed. The county attorney was not present. No objection whatever was made until both the state and defendant had introduced their evidence and rested. Objection was then made, and the court in substance stated that, the county attorney being sick and unable to be present in court, he will then appoint Messrs. Blosser and Brown as special prosecutors. They continued until the trial was concluded. A private person may employ an attorney to assist in the prosecution, but the county attorney should not lose control of the case. Johnson v. State, 35 Okla. Cr. 212, 249 Pac. 971; Smith v. State, 37 Okla. Cr. 85, 256 Pac. 944.

When the county attorney is disqualified, or unable to attend to the duties of his office, the court may appoint some suitable person to perform for the time being the duties of the county attorney. Section 2725, Comp. Stat. 1921; Byxbee v. State, 41 Okla. Cr. 272, 272 Pac. 493; Nance v. State, 41 Okla. Cr. 379, 273 Pac. 369; Hayes v. State, 41 Okla. Cr. 302, 274 Pac. 41. If counsel for defendant were of the opinion that the attorneys appearing for the state were not under the direction of the county attorney, they should have made timely objection, so the court might appoint some attorney to act for the state, in tbe absence of tbe county attorney. As soon as tbe objection was made, the court did so appoint. Tbe objection came too late.

Lastly, it is urged that tbe punishment assessed under all tbe circumstances is excessive, and that tbe judgment should be modified. Tbe Attorney General states that he does not contest a reduction of tbe punishment, if it is considered excessive. The record is that the prosecuting witness, Dykes, at tbe time he was shot by defendant, was armed with a Winchester rifle and fired at defendant, and that he is not altogether free from fault. Justice requires that the judgment be reduced to confinement in the penitentiary for a term of two years, and, as modified, is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


author: EDWARDS, P.. J.

text:
    RAYMOND WILSON v. STATE.
    No. A-7015.
    Opinion Filed September 21, 1929.
    (280 Pac. 1111.)
    James H. Mathers and Goodwin & Freeman, for plaintiff in error.

      Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P.. J.

Tbe plaintiff in error, hereinafter called defendant, was convicted in tbe district court of Garvin county of robbery with firearms, and was sentenced to serve a- term of 25 years in tbe state penitentiary.

Tbe record discloses that at tbe time charged defendant, with W. R. Calloway, Lawrence Calloway, and Vivian Calloway, with firearms, held up and robbed tbe First National Bank of Wynnewood, taking from it about $7,590 in cash and some $7,200 in coupon bonds, and some $26,000 in registered bonds.

No briefs in support of tbe appeal have been filed. Where an appeal is prosecuted to this court upon conviction for a felony, and no briefs in support of tbe appeal are filed, this court will not search tbe record to discover some error upon which to predicate a reversal, but will examine tbe record for jurisdictional or fundamental error, and if none appear, and tbe evidence reasonably supports the judgment, it will be affirmed. We have done this, and find that tbe evidence amply sustains the verdict and judgment, and that no error requiring a reversal is made to appear.

Tbe case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur,


author: DAVENPORT, J.

text:
    JOHN GILL v. STATE.
    No. A-6754.
    Opinion Filed September 21, 1929.
    Rehearing Denied October 19, 1929.
    (281 Pac. 163.)

      Bridges & Ivy and Jones & Clift, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was charged by information with the crime of murder, and convicted of manslaughter in the second degree and sentenced to serve a term of three years in the penitentiary. Motion for new trial was filed, considered, and overruled, and defendant has appealed to this court.

The testimony of the state is that John Hodges and R. A. Grimes, on the 23d day of November, 1926, had gone to the home of a brother and Mr. Grimes for the purpose of getting a cow and loading the cow in the truck and driving back to the home of R. A. Grimes, in the city of Waurika, and the said Hodges and Grimes were returning along the Meridian highway, a short distance south of Waurika; just south of where the killing occurred there is somewhat of an incline with a short left turn in the road and then a short distance and another turn, which goes down the hill. The proof further shows that it was on the road where it straightens out to the north, and about 75 yards from the turn that Grimes and Hodges had some trouble with the truck Grimes was driving, and the lights of the truck went out; Grimes stopped the truck on the east side of the road, the west wheels being on the traveled road from 3 to 5 feet, leaving a space from 20 to 25 feet of the highway on the west of the truck along, which travelers could pass; when the truck stopped deceased got out on the east side and took a lantern and some tin foil for the purpose of repairing the lighting system. Deceased walked towards the southeast corner of the truck, and remarked that a car was coming at a rapid rate of speed from the south. Grimes says he heard the engine of the car as it came thundering up back of them, and the automobile dashed by the west side of the truck barely missing the truck, coming at a rate of speed from 50 to 60 miles an hour. When the automobile passed the truck Grimes says he noticed something under it, but could not tell what the object was; that the automobile continued down the hill at a rapid rate of speed and he got off the truck to see if he could find the deceased, and discovered the body of the deceased in the highway about 25 yards north of the front part of the truck. Deceased was either dead or breathing his last at the time the witness got to him. Deceased was bleeding from a severe cut on his scalp and also from his body. Grimes says he “drug” his body out of the road, and later the body was taken to Waurika to the undertaker’s establishment.

The testimony further shows that upon an examin-1 ation it was found that the skull was crushed, collar bone broken, and other severe cuts and bruises on other parts of the body; the attending physician testifying that the wounds on deceased’s body were sufficient to produce death. The state introduced some other testimony as to an experiment with the same car that the defendant was driving the night of the accident down the hill, which testimony was objected to by the defendant as being incompetent, irrelevant, and immaterial.

On behalf of the defendant, Tom Gill, a brother of the defendant, was called and testified, in substance, that he was riding with his brother, John Gill, on their way from Ryan to Waurika at the time the accident occurred, and “we were driving at about 35 miles an hour as we approached the filling station just south of the top of the hill and cut off the feed and reduced the speed to about 18 or 20 miles an hour; I did not see the truck at all; the deceased stepped in front of the car driven by the defendant when the car was about 10 or 12 feet of deceased; the defendant swerved the car to the left and endeavored to miss the truck; it seemed to me we were in about the center of the road; I said to the defendant, it looks like a man; about that time we hit an object in front of the car; the defendant stopped his car after we had passed the foot of the hill and we briefly discussed what we should do. It was dark and we heard no voices or exclamations and we thought possibly it was hijackers and decided not to go back.”

The defendant offered to prove that a short while before John Hodges started to Waurika with R. A. Grimes he was under the influence of intoxicating liquor, and had whisky in his possession. The court sustained the objection of the state to this testimony, and the defendant excepted.

The defendant in his own behalf testified, in substance, that he was a farmer and worked at day labor; at the time the accident occurred he was working at an oil mill at Ryan and was on his way home; he was acquainted with John Hodges; “the speedometer on my car had not been working for some time, and I ordinarily drove at the rate of 25 miles an hour; at the time I reached the filling station at the top of the hill I was driving about 25 miles an hour and slowed down to possibly 18 or 20; the light shined on the truck as I was coming around the curve, but I only saw it for an instant and did not see it after I turned my car to the left and at the time I was passing the same;” he would say he was about 200 feet away at the time he saw the truck.

Connie Ray also testified, as a rebuttal witness for the state, with reference to the condition of the Durant six cylinder the defendant was driving1 at the time he struck the deceased, and stated, “I drove this car over the same road that the defendant was driving, at the time the accident occurred.” This testimony was given over the objection of the defendant, and witness stated he had been in the automobile business for three years; “I had driven this car before, and I started down the hill with the car 25 miles an hour and passed the first curve and about half way down the hill I threw the brakes on, it was running about 85 miles then, putting on the brakes did not have any effect on it and did not stop the car; I was coasting from the top of the hill until I put on the brakes; I put on the brakes at the place where I was shown deceased was struck; I finally stopped the car at the foot of the hill; I stopped the car as soon as I could.”

This is, in substance, all the testimony we deem necessary to set out to arrive at a proper decision.

The defendant has assigned seven errors alleged to have been committed by the trial court, the first being that the court erred in overruling his motion for a new trial. This assignment of error is the only one we deem necessary to consider, as the motion for new trial embraced all the grounds set forth in the other assignments of error.

The defendant argues at length that the evidence in this case does not justify a conviction. It is not denied by the defendant that his car struck the deceased and killed him. The defendant urges that the accident could not he avoided, and that the deceased when he came in front of his car was so near that the defendant could not stop his car in time to prevent the collision with the deceased. The testimony shows the scene of the accident was on a winding road and from the direction the defendant was approaching the truck in which the deceased had been riding the defendant was traveling down grade. The testimony is in conflict as to the rate of speed the defendant was traveling at the time he struck the deceased. The defendant urges that this accident occurred without the negligence of the defendant, and that, if any one was negligent, it was the deceased; that the deceased knew the car was coming from the south and that it was going to pass him, and the deceased went from the southeast corner of his truck to the southwest corner of the truck. The state urges that the testimony shows that, the defendant was driving at an unusual rate of speed along a dangerous highway, and that he was not using such care as is required to drive a car upon public highways in order to protect the life and safety of pedestrians who are traveling on the highway, and that the defendant by his reckless driving was guilty of culpable negligence. The testimony shows that the ■ brakes on the car the defendant was driving were in a very bad condition; that the collision occurred on a public highway, one of the main avenues of travel running south through the state; that the defendant knew this was a public traveled highway, and that he started down the slope of this hill at a speed of 25 miles an hour, and with only one light on his car burning.

The question in this case the jury had to determine was the question as to whether or not the defendant at the time of the accident was driving in such a reckless and careless manner, and at such a rate of speed as to endanger the lives of pedestrians, and, after considering all the evidence under the instructions of the court, a verdict of guilty of manslaughter in the second degree was returned.

This court has repeatedly held that, where there was any competent testimony, though conflicting, this court would not disturb the verdict of the jury. We hold there was sufficient testimony to warrant the court in submitting the question to the jury, and, the jury having arrived at a verdict of guilty on conflicting testimony, this court will not disturb the same.

After an examination of the entire record we hold that defendant was occorded a fair and impartial trial; that the court properly instructed the jury as to the law; and that the errors complained of are not sufficient to justify a reversal of this case.

The judgment is affirmed.

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


text:
    MINERVA MALONE v. STATE.
    No. A-6979.
    Opinion Filed September 21, 1929.
    (281 Pac. 153.)

      Glaseo & Glaseo, for plaintiff in error.
    W. B. M. Mitchell, Co. Atty., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of McClain county on a charge of manufacturing intoxicating liquor, and her punishment fixed at a fine of $50 and imprisonment in the county jail for a period of 30 days.

The defendant complains that the court erred in admitting the evidence obtained by the search of her private residence, for the reason that the affidavit was insufficient to authorize the issuance of a search warrant. The affidavit, with indorsements, reads as follows:

“Complaint for Search Warrant for Private Residence.
“State of Oklahoma, McClain County, ss.
“W. C. Cox of lawful age, being first duly sworn, deposes and says: That he has reasons to believe, and does believe, and that there is probable cause to believe, that intoxicating liquors are being sold, bartered, given away or otherwise furnished, or are kept for the purpose of selling, bartering, giving away or otherwise furnishing in violation of the laws of the state of Oklahoma, at lot 6 in block 185 of the city of Purcell, Oklahoma; that af-fiant’s reasons for such belief are that A. G. Jennings told him that intoxicating liquors were being manufactured, sold, bartered, given away or otherwise furnished in violation of the laws of the state of Oklahoma at the above named and described place, and that the place is the private residence of Minerva Malone and that the said private residence is being used as a place of public resort, and as a place for storing intoxicating liquors; and asks that a warrant be issued to W. C. Cox, under-sheriff of McClain county, state of Oklahoma, directing him to search said premises for any such liquors and to seize the same and do all things thereunder as is required by law.
“W. C. Cox.
“Subscribed and sworn to before me this 28 day of July, 1927.
“Geo. F. Johnson, Justice of the Peace.”

Indorsed:

“Filed July 27, 1927, Geo. F. Johnson, Justice of the Peace, I have examined the within complaint and recommend that a warrant do issue.
“W. B. M. Mitchell, County Attorney.”

The affidavit was wholly insufficient to authorize the issuance of a search warrant, and the evidence obtained by such search was inadmissible. Bayne v. State, 42 Okla. Cr. 81, 274 Pac. 694; James v. State, 43 Okla. Cr. 192, 277 Pac. 682.

There being no other evidence in the record except that obtained by the illegal search of defendant’s premises, the cause is reversed. ■

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


author: PER CURIAM.

text:
    FRANK CERDAY v. STATE.
    No. A-6996.
    Opinion Filed September 21, 1929.
    (281 Pac. 153.)
    C. C. Campbell and Wm. T. Powell, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Cotton county on a charge of having the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $50 and to be imprisoned in the county jail for 30 days.

The record discloses that at the time charged a search of defendant’s residence was made, and in a bath tub was found a mixture of creosote, which witnesses testified had the smell of whisky in it. Some of this was analyzed and found to contain 3.3 per cent, ethyl alcohol, “the kind that is used as a rubbing alcohol,” and that it was incapable of being used as a beverage. The evidence is insufficient to sustain the judgment.

The case is reversed.


text:
    RAY BROWN et al. v. STATE.
    No. A-7037.
    Opinion Filed September 21, 1929.
    (281 Pac. 152.)
    Guy D. Talbot, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Alfalfa county on a charge of having unlawful possession of intoxicating liquor, and were sentenced as follows: Ray Brown to pay a fine of $250 and be confined in the county jail for a period of three months; Lon Brown to pay a fine of $200 and to be confined in the county jail for a period of sixty days.

The evidence discloses that six gallons of whisky were found in a granary on a farm owned by L. S. White. The officers concealed themselves in the granary, and, when the defendants came into the granary, the officers arrested them, and they were charged with having possession of this whisky. Nowhere in the record is there any evidence connecting the defendants with having possession of the whisky, nor is there any evidence that they knew the whisky was in the granary. The evidence is insufficient to sustain the judgment.

The case is reversed.


text:
    BILL NOWLIN v. STATE.
    No. A-7032.
    Opinion Filed September 21, 1929.
    (281 Pac. 152.)
    Hussey & Chaney, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   CHAPPELL, J.

The evidence on the part of the state is that Tom Bryan, deputy sheriff of Kiowa county, accompanied by Lee Watson and Mr. White, deputy sheriffs, having a search warrant for the premises of the defendant, visited those premises and made a search; that they found six barrels of mash, three or four cream cans, fixed to connect up, a worm for a still, and a stove; that this still was located about 200 yards from the place where the defendant resided. There is a conflict in the evidence as to whether the premises upon which the still •was found was occupied by or under the control of the defendant. There was a path leading from the house of the defendant to a well, and from the well 50 or 60 steps to the still, which was concealed in a clump of weeds. The officers testified that the only path leading to the still was from this well. The officers testified that the same tracks that led from the house to the well continued on to the still. The testimony was that the officers went straight from the house to the still; that one of them went back to get the defendant; that he saw him crossing the field, commanded him to stop, and arrested him, took him down to the car, and left him there with one of the officers, while the other officer went up to destroy the mash and bring the still to the car; that when these officers got back the defendant had escaped, and they saw him in a weed patch about a quarter of a mile away, and that when they tried to get up to him he ran off across the line into Comanche county.

The defendant explains his crossing the field by saying he was going to mail a letter for his wife, and explains his escaping from the officers by saying he knew they would put him in jail, and if he was in jail he could not make bond, and so he ran away to hunt some bondsmen. On cross-examination the defendant admitted he did not ask the officers what they arrested him for. The defendant was also asked if he did not make a statement to Mr. Bryan that, if he could get a minimum of 30 days and $50, he would plead guilty of this charge, and the defendant said he did not remember whether he made any statement like that or not. On motion of defendant’s counsel, these questions and answers were excluded by the court.

The defendant contends that the verdict of the jury is contrary to the evidence and the law. The location of the still and mash, the path leading from defendant’s house to the still, the tracks from the defendant’s house to the still, the actions of the defendant in escaping from the officers, together with the other circumstances in the case, were sufficient to justify the jury in finding the defendant guilty. This court has so often said that it will not disturb a verdict of the jury, where there is any competent evidence to support the same, that it is unnecessary to cite authorities.

For the reasons stated, the cause is affirmed.

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


text:
    LAWRENCE R. GILCHRIST v. STATE.
    No. A-6930.
    Opinion Filed September 21, 1929.
    (281 Pac. 151.)
    Brown Moore and John W. Whipple, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error was convicted in the district court of Payne county of manslaughter in the second degree, and his punishment fixed at a fine of $750.

It is shown by affidavit that since the appeal was taken to this court, the plaintiff in error departed this life. Since in a criminal action the purpose of the proceedings is to punish the defendant, the action must necessarily abate upon his death. It is therefore ordered that the proceedings in the above-entitled cause and the judgment rendered therein be abated, and that the district court of Payne county enter its appropriate order to that effect.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    G. S. HILDRETH v. STATE.
    No. A-6985.
    Opinion Filed September 21, 1929.
    (281 Pac. 151.)
    L. C. McLean, for plaintiff in error.
    Dan Mitchell, Co. Atty., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Garfield county on a charge of having possession of intoxicating liquor with intent to sell the same, and his punishment fixed at a fine of $500 and imprisonment in the county jail for a period of six months.

The evidence of the state was that the sheriff and his two deputies, Peel and Malter, and Federal Prohibition Agent DeMonbrun had a search warrant for the premises occupied by the defendant, and that as a result of the search of the premises they found more than 100 bottles of beer and 3 pints of whisky. This whisky and beer was hid around in various places, some in the creek, some in a spring, and some covered over with sod, and in addition to that they found a gallon jug half-full of beer, and 10 one or two gallon jugs, that were empty and had a smell of beer and whisky in them, and a 10-gallon keg. They found a 15-gallon keg with the head out, and fresh mash, with burners and 15 feet of hollow wire attached, capable of being used in manufacturing beer or whisky, and about 500 empty beer and whisky bottles in defendant’s house. There was a path leading from the defendant’s house, with fresh tracks, and the defendant Avas seen by the officers near where part of the beer was buried. The knees of his pants were wet and muddy. The officers testified that the defendant admitted that all of the beer found was on premises under his control, but that the 3 pints of whisky was found across the road from defendant’s house. The officers further testified that several cars, with people, came and stopped at the premises while the search was being made.

This in substance is the evidence of the state. The defendant first contends that the evidence is insufficient to support the verdict of the jury. There is no merit in this contention.

The defendant next contends that the punishment is excessive. The jury left the fixing of the punishment to the trial judge, who sentenced the defendant to pay a fine of $500 and be imprisoned in the county jail for six months. This case appears to be one of those cases where punishment of this character is justified .

For the reasons stated, the cause is affirmed..

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