text:
    ALBERT ELLIS v. STATE.
    No. A-8496.
    March 3, 1933.
    (19 Pac. [2d] 972.)

      J ohn L. Hodge, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Marvin .Shilling, Co. Atty., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Carter county of robbery with firearms, and was sentenced to death.

Because of the extreme punishment and the questions raised by this appeal, we state the facts more fully than otherwise would be necessary. In the latter part of August, 1932, defendant, a married man, age 25 years, and one Oscar Brandon, left the place they were staying near the city of Ada and went to the town of Madill, and from there via Ardmore to Sulphur, taking some two days to make the journey. On the night of August 28, on highway 18 between Ardmore and Sulphur, they came to a narrow point in the Arbuckle mountains, and there barricaded the highway with a road plow and some large stones so that a car could not pass, then concealed themselves. On this day John E. Weber of Texas, driving a Buick automobile, accompanied by his wife, his sister-in-law and three daughters, drove from Texas to Turner Falls and Sulphur, and in the early evening started on this highway to return to Texas. On arriving at this barricade they stopped the car, and about this time defendant and Brandon came from their place of concealment, and gave a command which apparently the party in the car did not hear. He then gave a second command and fired his pistol. Defendant and Brandon required the occupants of the car to get out; defendant holding a pistol on them while Brandon searched them. During this time both defendant and ' his companion used vile, profane, and threatening language. They took some property from Weber and other members of the party, and, having completed the search, they said they would take the car and would take one of the party. Weber pleaded with them not to harm his family and told them to take the car and offered to go with them, which defendant and Brandon refused. Then the wife and the sister-in-law offered to go, but all these offers were refused. They informed Weber they would take the youngest daughter, a girl 18 years old, weighing less than 100 ■pounds. Weber and his wife pleaded with them not to harm her, as did also the daughter, and they agreed they would not. They stated in substance that she was to convey them a distance and return with the car. Defendant and Brandon then took the girl by the arms and all got in the front seat and left. They drove south a mile or two at a high speed, struck a bridge, and caused a blowout in one of the tires. They went some distance further and stopped to' fix the tire, and, while Brandon was working on it, defendant forced the girl from the car and outraged her, after which she was again outraged by Brandon. Some distance further they bound, gagged,' and left the girl, and soon afterwards abandoned the car, and defendant and Brandon separated. Defendant was arrested the next day near Wapanucka while traveling on foot. He was armed with a .45 Colt’s pistol. Brandon was also arrested. Defendant informed the arresting officers that they had arrested the wrong man, but later made a full statement admitting the facts substantially as set out. Ellis was tried separately, and this appeal is by him alone. Defendant’s counsel reserved his statement until the conclusion of the testimony for the state. The cross-examination of the state’s witnesses apparently sought to raise a reasonable doubt of defendant’s identity as the person who committed the crime. Defendant did not testify.

The first contention of defendant is that section 2543, St. 1931, under which defendant is prosecuted, is in violation of article 2, § 9, state Const., which forbids cruel or unusual punishment. This fixes the punishment for robbery with firearms at imprisonment in the penitentiary for five years as a minimum and the death penalty as a maximum. The courts and text-writers agree that the term “cruel or unusual punishment” is not susceptible of exact definition. Originally, no doubt, this prohibition was intended to forbid punishment of a barbarous character as the whipping post, the pillory, burning at the stake, breaking on the wheel, dismemberment, mutilation, or punishment in the nature of torture. Some of the authorities intimate that a punishment so disproportionate to' the character of the offense for which it is imposed as to shock the conscience and moral senses of the people is cruel and unusual. See, in this connection, 16 C. J. p. 1354; State v. Feilen, 70 Wash. 65, 126 Pac. 75, 41 L. R. A. (N. S.) 418, Ann. Gas. 1914B, 512, and authorities cited; In re O’Shea, 11 Gal. App. 568, 105 Pac. 776; Cole v. State, 48 Okla. Cr. 220, 291 Pac. 141; Robards v. State, 37 Okla. Cr. 371, 259 Pac. 166.

The criminal who with firearms holds up, robs, and assaults persons traveling the highways is a potential murderer. The display of force, the abuse and threats made in this case indicate that, if any resistance had been made by the Weber party, or if they had failed to comply with the demands of defendant and his companion, they were in danger of death. The punishment fixed by the Legislature for this class of crimes is not within the constitutional prohibition against cruel and unusual punishment.

It is argued also that the court erred in permitting the state to propound questions to the Weber girl of statements made by defendant and his companion in reference to other jobs. It is insisted this is an attack upon the character of defendant. This complaint is directed to the following question and answer:

“Q. Did they say anything about what else they were going to do that night? A. Talked about accomplishing other jobs as they called them.”

There is nothing improper in this question and answer. At the time defendant was engaged in the commission of a crime. The statements made were a part of the res gestae, and tend to throw light on the transaction and to show plan and scheme. In this connection it is also1 argued that it was error to permit counsel for the state to ask a witness for defendant if he had served a term in the penitentiary. This witness, an aunt of defendant, testified she had known him all his life. She was then asked to- state his history, and she did testify in substance that he was an ignorant country hoy; that he had little schooling; that his stepmother drove him away from home; that he had a wife and children, and had been in extremely needy circumstances, and had been unable to get employment. The state objected to this line of evidence,' but counsel for defendant insisted:

“* * * He is entitled to be tried according, to the opportunity he has had and according to' his status in life surroundings, etc., * * * a real ignorant country boy, the penalty ought not to be as heavy on him as a man of good sound mind. * * *”

- Objection was sustained to some of these questions and overruled as to others and the history and circumstances of defendant given at some length. In cross-examination of this witness she was asked if defendant had served a term in the penitentiary. The testimony of this witness clearly was to get before the jury the defendant’s theory that he was a country boy; that owing to poverty and the stress of circumstances, and for the purpose of maintaining his family, he was led into this crime. This testimony offered by defendant has the effect of placing his character, reputation, and life history before the jury. Having done this, defendant is not in a position to complain if other parts of his history and his status in life are called to the attention of the jury.

Next, it is contended the court erred in his instructions to the jury. In instruction 4 the court in substance told the jury that evidence showing, or tending to show, other offenses than that charged, could not be considered except as they might tend to1 connect defendant with the crime charged in the information. Defendant’s counsel excepted; the court then asked that he prepare a more full instruction or point out the particular objection to the instruction; he did not do so, but said:

“The law don’t require counsel for the defendant to come in and point out to the court the specific charge and items that the law requires the court to give.”

The objection is directed more to the admissibility of the testimony of the rape of the girl taken from the scene of the robbery than to the instruction. The instruction should have been more full, but it is not fundamentally erroneous and not prejudicial. Defendant’s counsel did not conform to the usual requirements by pointing out to the court the particular objection to the instruction. Boutcher v. State, 4 Okla. Cr. 585, 112 Pac. 762; Inman v. State, 22 Okla. Cr. 161, 210 Pac. 742. However, in a case of this gravity, if the instruction were incorrect and prejudicial, the failure of counsel to point out the objection or to make a written request for instruction would not deter us in correcting an error. Some other objection is made to the instructions, but they are not of sufficient importance to require discussion.

The most earnest argument is made that the court erred in permitting the state to introduce the evidence of rape as we have detailed. Counsel insist the rape was a separate, distinct, and different transaction from the robbery; that proof of rape was not necessary to establish the robbery, and threw no light upon it and was prejudicially erroneous. In support of this proposition, he states the well-settled rule that evidence of an offense other than the one charged is admissible only when it tends to prove the offense charged and has some logical connection therewith, citing: Stanfield v. State, 30 Okla. Cr. 82, 235 Pac. 256; Frazier v. State, 31 Okla. Cr. 322, 239 Pac. 186; Ricker v. State, 39 Okla. Cr. 58, 263 Pac. 160; Welch v. State, 41 Okla. Cr. 207, 271 Pac. 172; Fray v. State, 46 Okla. Cr. 260, 285 Pac. 142; State v. Willson, 113 Cr. 450, 230 Pac. 810, 233 Pac. 259, 39 A. L. R. 84.

He further insists the evidence was not admissible as res gestae, citing numerous authorities.

The state contends the evidence was competent and admissible as being a part of the res gestae, as showing a scheme of criminal action, as proof of intent, as proof of identity, as proof of motive, and for the consideration of the jury in determining the punishment. At the time this evidence was introduced by the state, the issue of guilt or innocence was being tried. This involved the fact of the robbery and circumstances incident thereto, as well as the identity of the accused as the person committing it. The evidence tended to show that a part of the robbery was the taking of the young girl of the party by defendant and his companion from the scene of the robbery. This appears from the fact that they refused to permit any other member of the party to go with them, but forced the young girl to go. The rape occurred in a few minutes, while they were escaping from the scene in the automobile taken in the robbery. This is all a part of the res gestae, and tends to throw light on the intent and motives of the defendant and his companion in committing the robbery. It was a part of the carrying out of the plan of the robbery formed before or at the time. Rex v. Bond, 2 K. B. 389; Beam v. State, 18 Okla. Cr. 529, 196 Pac. 720; Ellis v. State, 22 Okla. Cr. 11, 208 Pac. 1051; Sledge v. State, 40 Okla. Cr. 421, 269 Pac. 385; Carmack v. State, 44 Okla. Cr. 171, 279 Pac. 964.

It is admissible for another reason, at the time this evidence was admitted, defendant’s counsel by cross-examination had sought to raise a doubt of the identity of defendant by questioning the ability of the witnesses to identify him in the darkness as one of the robbers and by questioning their ability to describe the dress and appearanee of the robbers under the condition of the light and darkness at the time and place. This evidence therefore was admissible on the question of identity. The young girl who was forced to accompany defendant and his companion and was the victim of the outrage was better able to identify positively the defendant than any other member of the party, and, if in so doing she disclosed a further crime by defendant and his companion, they cannot complain. 16 C. J. 586; Tudor v. State, 14 Okla. Cr. 67, 167 Pac. 341; Johnson v. State, 35 Okla. Cr. 212, 249 Pac. 971; , Quinn v. State, 54 Okla. Cr. 179,16 Pac. (2d) 591; State v. Baker, 125 Kan. 173, 263 Pac. 1059; State v. Robinson, 170 Iowa, 267, 152 N. W. 590.

We think, too, the evidence was admissible as casting light on the entire transaction and is competent for the consideration of the jury in determining the atrocity of the offense and fixing the punishment. In Cross v. State, 11 Okla. Cr. 117, 143 Pac. 202, this court said:

“Evidence is admissible, in the trial of a criminal cause, which tends directly to prove the guilt of the accused, although it may also' show, or tend to show, the commission of a separate and distinct felony, and this is true although the admission of such testimony may arouse resentment in the minds of the jury and result in a greater punishment than would ordinarily be inflicted.”

See, also, Abshier v. People, 87 Colo. 507, 289 Pac. 1081.

Lastly, it is argued the punishment is excessive for the crime of robbery and should not be permitted to stand. This point has been partially disposed of by what was said under the first assignment. We have given this contention serious consideration. On reading the record, we see that defendant and his companion acting together for a criminal purpose with firearms got in their power a man and his family peacefully traveling the highway, whom they cursed, threatened, and robbed, then took their automobile and youngest daughter, transported her a short distance, and ravished and left her bound and gagged by the roadside. We are not willing to say that the punishment imposed is excessive.

Upon a consideration of the entire record, the judgment will be affirmed.

The original time for the execution having passed, owing to the pendency of this appeal, it is considered, ordered, and adjudged by this court that the judgment and sentence of the district court of Carter county be carried out by the electrocution of the defendant on Friday, May 5, 1933.

DAVENPORT and CHAPPELL, JJ., concur.


source: Caselaw Access Project

author: EDWARDS, P. J.

license: Public Domain

text:
    LEON ADDINGTON v. STATE.
    No. A-8469.
    March 3, 1933.
    (19 Pac. [2d] 976.)
    J. H. Long, for plaintiff in error.

      J. Berry King', Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Earl Pruitt, Go. Atty., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, ivas convicted in the district court of Jefferson county of robbery with firearms, and his punishment fixed at imprisonment in the state penitentiary for a term of 30 years.

Pending the determination of said appeal, plaintiff in error was enlarged on an appeal bond at $15,000, and on the 11th of January, 1933, he participated in the attempted robbery of a hank at Carmine, Tex., and in such attempt was killed. The state admits the death, but has moved for a dismissal of the appeal and forfeiture of the bail bond for the reason that the terms of the bond were violated prior to the death of defendant.

In a criminal action, the purpose of the proceeding being to punish defendant in person, the action must necessarily abate upon his death. It is therefore adjudged and ordered that said action do abate, and that the cause he remanded to the district court of Jefferson county, with directions to enter its appropriate order to that effect.

DAVENPORT and CHAPPELL, JJ., concur.


author: DAVENPORT, J.

text:
    W. E. McBRIDE v. STATE.
    No. A-8476.
    March 3, 1933.
    (19 Pac. [2d] 1088.)

      E. M. Connor, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was tried for embezzlement, convicted, and sentenced to pay a fine of |50, and to be confined in the county jail for 30 days.

The record discloses the defendant was arrested and brought before the court and entered his plea of not guilty, and the court fixed a date for a preliminary trial; the case was continued from that date until June 2, 1932. When the date arrived for the preliminary to' be held, the state insisted the defendant was charged with a misdemeanor, and that the case was assigned regularly for trial. The defendant objected to going to trial on the merits, insisting he was not ready for trial; that he had only arranged for a preliminary. The court announced the case was called for trial. The defendant demanded a jury, and the court issued a special venire, and, in order to give the defendant an opportunity to get his witnesses, continued the hearing from the morning session until 1:30 o’clock June 2, 1932.

When the court reconvened at 1:30 o’clock, the court asked Mr. Connor if he had his witnesses present, and Mr. Connor replied, “We decided we could not get them. We are ready for trial.” There are two corrections in the record in this statement of Mr. Connor that are unexplained. As typewritten, the answer of Mr. Connor is as follows: “We have decided we would not need them.” In the word “would” there is a capital “C” written, and the word “need” is erased and the word “get” written in, which makes the statement as it comes to this court read, “We could not get them. We are ready for trial.”

Several errors have been assigned by the defendant that relate to the question of errors committed by the court in the trial of the case. If the defendant had stood upon his objection to going to trial, on the ground that the case had been assigned for a preliminary hearing on June 2, 1932, and not for a final trial, his contention would have been good, and the court would have had no right to force him to trial, but he did not choose to do so. After the court had ordered a special venire and had adjourned until 1:30 in the afternoon, the defendant in open court, as disclosed by the record, as hereinabove quoted, stated: “We are ready for trial.” No motion was formerly made by the defendant for a continuance. The defendant does not contend he asked for a continuance or made any showing why he could not go to trial.

In Ex parte Hudson, 3 Okla. Cr. 393, 106 Pac. 540, 107 Pac. 735, 736, this court said:

“A party may waive any provision either of a Constitution * * * or statute intended for his benefit.”

In State v. Frisbee, 8 Okla. Cr. 406, 127 Pac. 1091, 1095, this court defined the law to be:

“A defendant in a criminal case may waive any right not inalienable, given him by the statute or by the Constitution, either by express agreement or by conduct, or by such failure to insist upon it in seasonable time as will operate as an estoppel to his afterwards setting it up against the state.”

In the body of the opinion, at page 420 of 8 Okla. Cr., 127 Pac. 1091, 1097, the court said:

“When a defendant voluntarily announces ready for trial, this operates as a waiver of all preliminary steps prescribed for preparation for trial.”

The fact that the defendant announced ready for trial waived all preliminaries up to that time. The failure of the defendant to- incorporate in the case-made a transcript of the evidence, the proceedings relating to the impaneling of the jury, the instructions of the court, and the rulings of the court made in the progress of the trial, the other errors complained of by the defendant are not properly before this court for consideration. There being no fundamental or prejudicial errors in the record sufficient to- warrant a reversal, the case is affirmed.

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


author: CHAPPELL, J.

text:
    JACK MEIGS v. STATE.
    No. A-8467.
    Feb. 24, 1933.
    Rehearing Denied March 18, 1933.
    (21 Pac. [2d] 49.)
    Yance & Bliss, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Muskogee county of the crime of larceny hy fraud, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of four years.

The evidence of the state was that Eoss Linder posed as a real estate man and thus became acquainted with C. H. Youngblood, a young mechanic in Muskogee; that Linder represented to Youngblood that he had a rich Indian client who wished to purchase a residence in Muskogee; that, since Linder had no automobile and Young-blood did have one and could thus get about the city, he arranged for Youngblood to find, if possible, such a house on an agreement to split the commission; that Youngblood spent several days seeking to locate such a house; that on November 2, 1931, Linder phoned Youngblood that the Indian was at a certain place and wanted him to come down and meet him; that Youngblood went down and was introduced to one Jack Meigs as the Indian who wanted to purchase the place; that whisky was produced and all the parties took several drinks; that Linder then invited Youngblood to play a little penny ante, borrowing $10 from Meigs to match the $10 of Youngblood’s; that at that time Meigs displayed a roll of bills; that, after Linder had lost this $10 and another he borrowed from Meigs, Meigs insisted on being permitted to' play his own money, and got into the game in place of Linder; that, after several hands were played, Meigs bet $200 that Youngblood had four eights, and, Youngblood not having much money in front of him, Linder suggested that he write a check for $200 and told Meigs it would be good; that Meigs refused to take a check and insisted that Youngblood go to the bank and get the money; that Meigs proposed that Linder take Meigs’ hand and put it in his pocket and that Youngblood put his hand in his pocket and that Linder and Youngblood go to the bank and get the money and come back and finish the game; that this was done, and shortly afterward Linder and Youngblood returned to the room where the game was going on, with the $200; that the parties, had been playing with matches and putting the money paid for the matches in a regular size match-box; that Youngblood’s $200 was placed in the box and Young-blood given two slips marked $100 each with which to bet; that thereupon the hands were shown and Meigs had nothing, not even a pair; that it had been agreed that the game would be closed when this hand was played; that Young-blood started to' count his matches preparatory to counting the money when Linder went to the door, at a knock, and received a bottle of whisky; that this bottle was passed to Youngblood, who refused to drink at that time; that Meigs and Linder pretended to drink and again passed the bottle to Youngblood, who took a drink; that this whisky contained knock-out drops and Youngblood was rendered unconscious in a very short time; that, when he woke up, the money was gone; that Linder helped him out of the room and told him Meigs had the money and that it would be returned to him as soon as he got sober; that Meigs and Linder were brothers-in-law, professional gamblers, and without any occupation; that Youngblood tried for several days to' get his money back, and, failing, went to the county attorney, who brought the prosecution.

Defendant admitted that he was engaged in a poker game with Youngblood, but claimed that he won the money in an ordinary game and that no knock-out drops were used in the whisky.

Defendant contends that there is a fatal variance between the information and the proof; the information charging larceny by fraud, and the proof showing, if anything, larceny by stealth.

A reading of the record discloses that Linder and Meigs were engaged in the business of entrapping unwary victims and taking their money away from them in whatever way might be necessary to get the money. It is apparent that the real estate transaction was but a blind to get Youngblood into the game and take away from him— either with a game of cards or knock-out drops — whatever money he might have with him.'

This court has had under consideration the questions of the necessary allegations of an information and the difference between larceny by fraud or stealth and embezzlement. Bivens v. State, 6 Okla. Cr. 521, 120 Pac. 1033, there following and approving Flohr v. Territory, 14 Okla. Cr. 477, 78 Pac. 565; Glaze v. State, 13 Okla. Cr. 431, 165 Pac. 211. It has also been held that the crime may be shown by proof that property was taken feloniously. People v. Jersey, 18 Cal. 338; People v. Smith, 23 Cal. 280; People v. Smallman, 55 Cal. 185.

It is apparent from the evidence and the authorities above cited that there was no variance between the allegations of the information and the proof.

It is next contended that the court erred in admitting certain incompetent evidence. An examination of the record discloses that the evidence complained of by counsel for defendant was admitted in most instances without objection on his part and without any exceptions or motion to take and exclude the same from the jury.

Defendant may not sit silently by and permit the introduction of incompetent testimony without objection, and predicate error thereon.

It appears from the evidence that the scheme used by defendant and Linder was from its inception conceived in iniquity with the sole purpose of cheating and defrauding Youngblood of his money. It may be defendant and Linder did not know just how this fraud would finally terminate. They laid their plans and weaved the net and finally got Youngblood into it, and awaited developments to determine just how they would g,et his money. Although they did not know the exact amount of money they would get, it was undoubtedly their scheme to get all they could at any one time and continue the conspiracy if they believed it possible to obtain more from him. This plan is similar to fake horse races, foot races, wrestling matches, and other fake gambling games by which the unsuspecting individual is fleeced of his money by first obtaining his confidence by pretending to have some other deal or purpose, and then fleecing their victim.

Men who- engage in such practices as this record discloses these men engaged in will not be permitted to escape just junishment because of inconsequential errors or legal technicalities.

The defendant being clearly guilty of the crime of which he was charged and convicted, and no fundamental error appearing in the record, the cause is affirmed.

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


text:
    ARTHUR WALTON v. STATE.
    No. A-8486.
    March 18, 1933.
    (20 Pac. [2d] 194.)

      Grim & Grim, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith O. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, for convenience hereinafter referred to as the defendant, was convicted on a charge of having possession of intoxicating liquor, and was sentenced to pay a fine of $100, and be imprisoned in the county jail for 30 days, and appeals.

The testimony in this case is very brief. It shows that the officers of Ellis county procured a search warrant and went to the residence of the defendant and searched his home and found fifteen gallons of whisky. The state did not introduce any evidence of containers or vessels of any kind; the only evidence introduced against the defendant being possession of the whisky.

Defendant’s testimony tends to' show that a man by the name of John Wing had left the whisky at his place, and was to come back later and get it. John Wing was not called as a witness, and the testimony is not clear as to whether or not the defendant took the proper steps to secure the attendance of Wing, if such a man in fact existed. No sufficient showing was made for the absence of Wing.

The jury, under proper instructions of the court, found the defendant guilty, and under the evidence it could not have done otherwise. The possession of the whisky was not sufficiently accounted for by the defendant.

The defendant in his assignment of errors complains of the argument made by the special prosecutor in his closing remarks to the jury. All of the argument is not included in the record, and for that reason this court cannot say the argument of the special prosecutor was improper, as it was probably made in answer to the argument made by the defendant.

The jury was properly instructed as to- the law applicable to the facts in the case. No errors appearing- in the record sufficient to warrant a reversal, the case is affirmed.

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


text:
    In re OPINION OF THE JUDGES. In re LUKE NICHOLS.
    No. A-8477.
    March 18, 1933.
    (20 Pac. [2d] 192.)
   CHAPPELL, J.

From an examination of the records of this court we find that no appeal has been taken in said case, and that the time for appeal has expired. The question then presented is: Has there been an observance of all the formalities of law essential to the taking of human life? That is, has the trial, conviction, and sentence of death been in accordance with the law of the land?

Upon a careful examination of the record, we find that an information was filed in the district court of Alfalfa county, on the 12th day of May, 1932, sufficiently and correctly charging defendant with murder in the killing, of one Mrs. Harriet Crawford. That a certified copy of the information with a list of witnesses indorsed thereon was served on defendant as required by the Constitution. That on the 21st day of May, 1932, defendant was arraigned on said charge, had benefit of counsel, was advised by the court of all his statutory and constitutional rights, and took twenty-four hours in which to plead.

That on the 31st day of May, 1932, in open court, defendant, accompanied by his counsel, entered his plea of guilty; the court then announced that he would hear testimony to enable him to pronounce the proper judgment, and set June 7, 1932, at 9 o’clock, as the time for said hearing.

That on the 7th day of June, 1932, defendant appeared in person and by his counsel and asked permission to withdraw his plea of guilty and enter a plea of not guilty, which request was by the court granted, and trial set for July 11, 1932.

That on July 7, 1932, the parties appeared in open court, and the court continued the trial of said cause until August 1,1932.

That on August 1, 1932, defendant appeared in open court, accompanied by his counsel, and asked permission to withdraw his plea of not guilty and enter a plea of guilty. The application was granted and a plea of guilty entered. Thereupon the court stated he desired to take testimony of witnesses to enable him to pronounce sentence upon such plea of guilty, and upon the same day heard the testimony of thirteen witnesses for the state, and of defendant, and five witnesses in his behalf.

It appears from the evidence of the state and the admissions of defendant that he had been keeping company with the deceased for about two years; that deceased was a widow and the mother of two children; that defendant was a carpenter and had lived in the town of Cherokee for a number of years; that on the evening, of the homicide he went to the place where he boarded, changed his shirt, got the pistol with which the homicide was committed, got in his car, and drove back up town; that he met the deceased on a crossing and asked her to go for a ride; that she told him she could not, but would see him later; that he drove up the street, turned his car around, came back down on the other side of the street for several blocks, parked his car and waited for deceased; that when she came up, he fired one shot into her body; that after she fell to the sidewalk, he stood over her and fired four other shots into- her body, any one of which, the doctors testified would have been fatal; that immediately after the shooting, he ran to his car, started it, and was driving off when the officers fired at him and stopped him. That he took off his ring and asked the officers to give it to his daughter, telling them he was “set to die that way”; that no woman could double cross him. The only justification offered was the claim that because of a previous gunshot injury defendant might have been weakened mentally.

At the conclusion of the testimony, defendant offered to waive time for judgment and sentence, but the court refused such waiver and fixed August 4, 1932, at 10 o’clock a. m., as the time for judgment and sentence, and on that day the court pronounced judgment and sentence of death according to law.

This court has held that a conviction of crime may be had in three ways; either by the verdict of the jury, by findings of fact by the judge where a jury is waived (section 1739, C. O. S. 1921), or by a plea of guilty. In re Opinion of the Judges, Nathan Rightsell, 54 Okla. Cr. 152, 14 Pac. (2d) 238.

Where a defendant is informed against for murder and pleads guilty, the court is authorized to pronounce judgment and sentence according to law, as fixed by section 1739, C. O. S. 1921.

The record discloses that Luke Nichols is guilty of murder in the killing of Mrs. Harriet Crawford; that all the formalities of law essential to the taking of human life have been observed; and that the slaying of this woman warrants the extreme penalty of the law.

DAVENPORT, J., concurs. EDWARDS, P. J., absent.


text:
    CARL EVANS v. STATE.
    No. A-8499.
    March 18, 1933.
    (20 Pac. [2d] 192.)
    W. O. Moffett, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as tjie defendant, was convicted of larceny of an automobile, and was sentenced to serve a term of ten years in the penitentiary, and appeals.

The testimony on behalf of the state in substance shows that Verna Harlan was the owner of a Ford automobile, and parked the same on the public street in the city of Tulsa, that within a few minutes thereafter she missed her car, and the following morning, which was Sunday, the defendant in this case was found in possession of the car at the state penitentiary at McAlester, Okla.

The defendant denies that he drove the car from Tulsa to McAlester, but says that a cousin of his came to his home in Tulsa and advised him that the car belonged to ' a sister of his cousin, and that the cousin drove with him to McAlester in the car, the defendant desiring to see his brother who was in the penitentiary.

At the trial of the ease, this cousin, whose name is given in the record, was not called as a witness, and no reason given why he was not called.

The evidence in this case is sufficient to sustain the judgment.

Several errors have been assigned by the defendant as grounds for reversal of his case. The only question before this court is the question as to whether or not the testimony of the state is sufficient to warrant the jury in returning a verdict of guilty.

The jury, after hearing the testimony, found against the defendant.

This court has repeatedly held that, where there was any competent evidence to' sustain the verdict, it would not disturb the finding of the jury.

The record has been carefully examined, and we fail to find any fundamental or prejudicial errors in the record sufficient to warrant a reversal.

The judgment is affirmed.

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


text:
    LOUIS HARRISON v. STATE.
    No. A-8489.
    March 25, 1933.
    (20 Pac. [2d] 586.)
    Joe Adwon, for plaintiff in error.

      J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county of the offense of maintaining and operating a disorderly house, and his punishment fixed by the jury at a fine of $500, and imprisonment in the county jail for a period of six months.

The Attorney General has filed a motion to strike the case-made from the files for the reason that the same was not served upon the county attorney within the time prescribed and allowed by the trial court.

It appears from the record that judgment was pronounced on the 7th day of July, 1932, at which time, according to the minutes of the court, defendant allowed an extension of 50 days within which to make and serve case-made. That on July 29, 1932, the trial court granted a further extension of 30 days within which to' make and serve case-made; the two orders extending time to make and serve case-made amounting to' 80 days. The case-made was not served on the county attorney until October 24, 1932, which was 109 days after the rendition of the judgment.

This court in numerous cases has held that the case-made must be served, signed, and settled within the time fixed by the court, and that where this is not done the case-made will not be considered by this court.

With the case-made stricken, no question is raised in the appeal which the court may decide upon consideration of the transcript of the record alone. Counsel for defendant relies upon certain misconduct of the county attorney in asking improper questions and making improper remarks, which alleged misconduct would only he presented were the case-made properly before the court.

Counsel also contends that the punishment imposed is excessive.

This question could arise only from a consideration of the evidence, which, with the case-made stricken, is not before the court.

No- reversible error appearing upon the face of the transcript, and no reason appearing for a reduction of the punishment, the cause is affirmed.

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


text:
    MRS. RUBY WINGO v. STATE.
    No. A-8508.
    March 25, 1933.
    (20 Pac. [2d] 586.)

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

The plaintiff in error, hereinafter for convenience referred to as the defendant, was convicted of having possession of intoxicating liquor, and sentenced to pay a fine of $50, and to be confined in the county jail for 30 days.

The condition of the record is such that it is only necessary to1 consider defendant’s first assignment of error, that the court erred in overruling her motion to suppress the evidence obtained by an unlawful search of the home and premises of the defendant. The facts disclosed on defendant’s motion to suppress shows that the officers possessed of a John Doe warrant, which described the premises to be searched as a one-story frame building and outbuildings located in the N. E. % of section 22, township 13 north, range 3 west, Oklahoma county, Okla. The affidavit for the search warrant described the premises to be searched as a one-story frame building and outbuildings located in the N. E. % of section 28, township 13, range 3 west, Oklahoma county, Okla.

The testimony taken in support of the motion to suppress the evidence secured by the officers shows that the premises searched was the home of the defendant. The affidavit for the search warrant does not name the defendant, nor does it state facts necessary to comply with section 3223, Okla. St. 1931, which is as follows:

“A search warrant shall not be issued except upon probable cause, supported by affidavit, naming or describing the person, and particularly describing the property and the place to be searched.”

.Section 2639, Okla. St. 1931, is as follows:

“No warrant shall he issued to search a private residence, occupied as such, unless it, or some part of it, is used as a store, shop, hotel, boarding house, or place for storage, or unless such residence is a place of public resort.”

This court has repeatedly held that evidence obtained by the search of a private residence, on a warrant based on affidavit not containing statutory exceptions, is inadmissible. Robinson v. State, 49 Okla. Cr. 114, 295 Pac. 396.

No magistrate has power to issue search warrant for private residence unless it is made to appear that the same comes within the exceptions of the statute. Foster v. State, 27 Okla. Cr. 270, 226 Pac. 602; Williams v. State, 30 Okla. Cr. 39, 234 Pac. 781; Kolander v. State, 33 Okla. Cr. 31, 241 Pac. 837.

In Kinney v. State, 32 Okla. Cr. 115, 240 Pac. 325, this court said:

“Evidence * * * obtained by unlawful search and seizure, should be excluded.”

In Ford v. State, 34 Okla. Cr. 184, 245 Pac. 909, this court said:

“Where a magistrate has no jurisdiction to issue a search warrant, the warrant so issued is a nullity, under which a peace officer cannot legally act in any capacity, and evidence obtained thereby is inadmissible.”

The Attorney General in his brief directs the attention of the court to Miller v. State, 34 Okla. Cr. 103, 245 Pac. 68, and Brandt v. State, 34 Okla. Cr. 400, 246 Pac. 1106, and states: “The decision of this court in the Miller Case, and other cases, to the same effect, clearly supports the contention of counsel that a search of the premises of the defendant, in the N. E. % of section 28, was not supported by any showing of probable cause, describing premises located in an entirely different section from the affidavit for the search warrant, and did not set out the name of this defendant as the owner of the premises but only used the name of John Doe, which was meaningless so far as this defendant was concerned.”

This court accepts the statement of the Attorney General, and holds that the motion of the defendant to suppress the evidence should have been sustained as being an unreasonable and unauthorized search, and that the evidence obtained by virtue of such a search should have been suppressed.

For the reasons stated, the judgment of the trial court is reversed, with directions to dismiss the case.

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


text:
    FRANK SLOAN v. STATE.
    No. A-8501.
    April 1, 1933.
    (20 Pac. [2d] 917.)

      Bailey E. Bell and Gerald B. Klein, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted on his plea of guilty in the district court of Pawnee county of theft of domestic fowls, and his punishment fixed at a term of 4% years in the penitentiary.

Defendant was arrested under suspicious circumstances, was incarcerated in jail over night, and the following day was taken to the office of the assistant county attorney and there questioned at length. The following day he was again questioned, and he contends that under a promise of a short sentence he was induced to agree to enter a plea of guilty, although he informed the county attorney and his assistant that he wanted to call an attorney, but that he was informed if he did so he would be prosecuted on eight cases and that the maximum punishment might be 40 years; that he was made to believe his punishment would be very much less if he entered a plea of guilty. After sentence was passed, defendant called an attorney and filed his motion and amended motion to withdraw his plea of guilty and to enter a plea of not guilty. After a hearing, this was denied. The only contention made is that the court erred and abused his discretion in denying this motion.

The general rule of law as stated by numerous decisions of this and other courts is that an application to withdraw a plea of guilty is addressed to the sound discretion of the trial court; that the law favors the trial of criminal cases on the merits and where it reasonably appears a plea of guilty was influenced by persons in authority or apparent authority which has led a defendant to' believe that by entering a plea of guilty his punishment will be thereby mitigated, he should be permitted to withdraw the plea of guilty and to enter a plea of not guilty and the refusal to permit him to do so is an abuse of discretion. Jenkins v. State, 6 Okla. Cr. 516, 120 Pac. 298; Polk v. State, 26 Okla. Cr. 283, 224 Pac. 194; Hart v. State, 29 Okla. Cr. 414, 233 Pac. 1095; Howington v. State, 30 Okla. Cr. 243, 235 Pac. 931; Cook v. State, 45 Okla. Cr. 69, 281 Pac. 819; Logenbaugh v. State, 47 Okla. Cr. 392, 288 Pac. 611; Kelley v. State, 47 Okla. Cr. 1, 288 Pac. 1001.

Defendant, in support of his application to withdraw the plea of guilty, testified at some length and in substance that he was first questioned by the sheriff and was then taken to> the office of the assistant county attorney, and was there further questioned as to his guilt and that of his codefendants, and was told that, if he would “come clean” and would plead guilty, he would receive a light punishment, which he was led to believe would be 60 days in jail and a fine; that later’ the county attorney told defendant if he did not plead guilty he would prosecute him to the fullest extent of the law and would file separate charges which would carry a maximum of 40 years in the penitentiary. At the conversation with the county attorney the prosecuting witness was also present.

The sheriff was called as a witness by the state, and in his testimony admits he told defendant:

“* * * that if he would tell me the facts in this case about Harbison’s chickens and if there was anybody else connected with him, I would give him some leniency in this case. * *

In reference to the punishment, he further testified that the assistant county attorney read the law to defendant; that the minimum was 60 days and $100 and the maximum 5 years. The prosecuting witness, Harbison, called for the state, on cross-examination said:

“Mr. Harbison, you stated that Mr. Mitchell told him that if they would plead guilty, he would only file one case against them? A. Yes, sir. Q. What did he tell them he would do if they didn’t plead guilty? A. He told them he would prosecute them on all of the cases. Q. To the maximum sentence? A. Yes, sir. Q. How much? A. Five years was the limit. Q. And did he tell them it would be 40 years on the 8 charges? A. Well, if they would get five years on each case, it would figure up 40 years. Q. He explained that to them in your presence, did he, Mr. Harbison? A. He just told them that if they would plead guilty, he would file one case and if not, he would prosecute them in all the cases and if they drawed the limit in each case that would amount to 40 years. * * *”

The assistant county attorney testified:

“* * * a. They were arrested Thursday night and Friday we called Frank Sloan up to the county attorney’s office and I told him, I said, Trank, we have you charged with stealing chickens, we are going to ask you some questions and understand you don’t have to tell us anything, but if you do tell us anything, we will use it against you.’ The first thing he wanted to know Avas what the penalty is for it. So I got the statute down and read it to him and told him the limit was five years, and the minimum would be a county jail sentence of not to exceed 60 days or a fine not to' exceed $200 or both such fine and county jail sentence, and I think Burkdoll and I both told him, we says, ‘We think you know a whole lot about the chicken thefts that has been operating in this county and if you have anything you want to tell us about, we would like to hear it.’ Q. Did you, at that time, promise Frank Sloan, or anybody else 60 days and $100.00 or any other sentence for that matter? A. No, sir. * * * Q. Mr. Raba, you did discuss the penalty of 60 days and $100.00 fine there, didn’t you? A. When I read the statutes. Q. Did you explain that that 60 days would be served in the county jail in Pawnee county? A. Yes, sir. * * *”

The county attorney did not testify, but brought by cross-examination his connection with the matter. There is some considerable controversy as to what was said in reference to the plea of guilty, the filing of other charges, and the punishment to be imposed. A defendant not represented by an attorney under circumstances as here shown, in making an agreement to plead guilty, is not on equal terms with the representatives of the state. A defendant will not be permitted to trifle with the court by deliberately and advisedly entering a plea of guilty and then, if dissatisfied with the sentence, capriciously withdrawing it; particularly is this so when he has counsel when the guilty plea is entered. An agreement for a plea of guilty made between a defendant and the prosecuting officer should be carefully scrutinized, and, where it reasonably appears that a defendant is laboring under a misapprehension at the time he enters his plea of guilty and makes such fact known in apt time, he should be permitted to withdraw his plea of guilty and to enter a plea of not guilty.

The case is reversed, with instructions to the lower court to set aside the judgment to permit defendant to withdraw his plea of guilty aud to- enter a plea of not guilty, and. for other proceedings in conformity with this opinion.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    WADE VARDEMAN v. STATE.
    No. A-8461.
    March 3, 1933.
    Rehearing Denied April 1, 1933.
    (20 Pac. [2d] 194.)

      Rogers & Klein, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Okfuskee county of the crime of grand larceny, and his punishment fixed by the court at) imprisonment in the state penitentiary for a period of two years.

It is contended that the failure of the court to- permit counsel for defendant to- examine generally each prospective juror individually was prejudicial to- him.

The record discloses that on the general examination of prospective jurors the court said:

“Not a single member in the box knew the defendant, and no-t one knew anything about the facts in the case.”

After the court has asked jurors as to their legal qualifications, it is hardly necessary for the state or defendant’s counsel to- ask them the same questions, although sometimes this is done. When any part of the questioning is denied or excluded, in order to preserve the question the proper procedure for defendant’s counsel is to. dictate into the record the questions he desires to ask the jurors, and obtain a ruling of the court thereon, thereby enabling this court to determine if the trial court abused its discretion in refusing to permit counsel to ask the questions. It further appeal’s from the record that the trial court had permitted defendant’s counsel to ask the jurors general questions, and had offered to- permit further individual examination if counsel so- desired, but this offer was refused.

The manner and extent of examination of jnrors, touching their qualifications, cannot be prescribed by any definite, unyielding rule, but rests to a large extent in the sound discretion of the trial judge. In the examination, such latitude should be given the parties as will enable them to procure a jury free from outside influence, bias, or personal interest. Jones v. State, 20 Okla. Cr. 154, 201 Pac. 664.

The purpose of a voir dire examination of prospective jurors is to aid in the selection of a fair and impartial jury, and to enable defendant to exercise his peremptory challenges.

A speedy administration of justice makes it necessary that the trial court have discretion to control the examination of jurors. Otherwise, defendant’s counsel might conduct a filibuster similar to those sometimes conducted in Congress, thereby materially delaying the trial or even preventing the obtaining of a jury. But the court should be very careful not to abuse this discretion, allowing defendants’ counsel the necessary latitude to enable him to determine against whom he will exercise his peremptory challenges.

There is nothing in the record in the case at bar showing abuse of judicial discretion in the rulings of the trial court in connection with the voir dire examination of jurors; but, on the contrary, the record discloses ample opportunity was given counsel for defendant to examine jurors, consistent with the commendable effort of the trial judge to dispatch the business before the court.

It is next contended that it was an abuse of discretion on the part of the trial judge to permit the indorsement of the name of the codefendant on the information. ■

There is no merit in this contention, as clearly appears from the decisions of this court. Cudjoe v. State, 12 Okla. Cr. 246, 154 Pac. 500, L. R. A. 1916F, 1251; Cloud v. State, 41 Okla. Cr. 395, 273 Pac. 1012; Varner v. State, 42 Okla. Cr. 42, 274 Pac. 43.

It is also contended that the court erred in giving instruction No. 7. The first objection urged against the instruction is it assumes the accomplice testified truthfully.

No rule for construing constructions is more familiar than that the instructions must be construed as a whole. When instruction No. 7 is construed in connection with the other instructions given, the trial court nowhere assumed the testimony of the accomplice was true, but, on the contrary, the jury was left unhampered to determine the credibility of the witnesses and the weight to be given their testimony.

Further, it is contended the instruction is erroneous because the court told the jury under the undisputed facts in that case, “as a matter of law Franks was an accomplice in so far as the crime alleged in this case is concerned.”

It is urged that, inasmuch as there cannot be an accomplice without a principal, the jury was told that Vardeman was the principal of Franks, the accomplice, and hence guilty with Franks.

There cannot be an accomplice without a principal. Any instruction given on accomplice testimony would necessarily disclose that truth; and yet this court has held that where the evidence discloses that the state is relying for a conviction in part on the testimony of an accomplice, it is the duty of the trial court to instruct on the necessity of corroborating that testimony. McKinney v. State, 20 Okla. Cr. 134, 201 Pac. 673; Hewett v. State, 38 Okla. Cr. 105, 259 Pac. 144.

In the case at bar, Franks’ testimony makes him an accomplice, and the defendant denies any connection with the crime. If the defendant was culpably implicated in the theft, it was because of the testimony of Franks and the other evidence tending to- connect defendant with the commission of the offense. Therefore, it was necessary for the trial court to tell the jury that as a matter of law Franks was an accomplice. It was only fair to- defendant to tell them that Franks had placed himself in that category.

In Adams v. State, 21 Okla. Cr. 448, 209 Pac. 189, this court approved an instruction in language similar to the one in the case at bar, which told the jury that a certain witness for the state was an accomplice.

It follows from a consideration of instruction No. 7, that the trial court did or said nothing that this court has not' repeatedly said should be done by trial judges where the facts are similar to- this case.

It is also contended that instruction No. 7 was erroneous becausei it amounted to- a peremptory instruction of guilty.

Again we say that the instructions must be considered as a whole, and, when so considered, it did not amount to any intimation of the guilt of defendant.

Other errors are complained of, but they are equally without substantial merit. The cause is therefore affirmed.

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


author: PER CURIAM.

text:
    IRA WEBER v. STATE.
    No. A-8473.
    April 1, 1933.
    (22 Pac. [2d] 1119.)
    W. F. Duncan, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called the defendant, was convicted of larceny of domestic fowls, and given a term in thq penitentiary at McAlester of nine months, and appeals.

The record in this case was filed in this court on Sep-. tember 26, 1932; no brief in this case was filed in support of the defendant’s assignment of errors. A careful examination of the record discloses no' fundamental error, and the evidence is sufficient to support the verdict of the jury.

The case is therefore affirmed.


author: PEB CURIAM.

text:
    HOWARD KENYON v. STATE.
    No. A-8423.
    Feb. 17, 1933.
    Rehearing Denied June 23, 1933.
    (22 Pac. [2d] 1120.)

      L. Z. Lasley, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PEB CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Woods county of child desertion, and was sentenced to serve a term of one year in the state penitentiary.

The appeal is by transcript. An application was made to this court for an order requiring that the lower court furnish defendant with a transcript of the testimony taken, and this court on September 20, 1932, so ordered, since which time nothing further has been filed in this court. The record discloses no reason for interference by this court with the judgment.

The case is affirmed.


text:
    JOHN YOESTING v. STATE.
    No. A-8531.
    May 12, 1933.
    (22 Pac. [2d] 1120.)
    Justin Hinshaw, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, John Yoesting, was convicted in the county court of Cleveland county, of having unlawful possession of intoxicating liquor, and sentenced to pay a fine of $50 and serve a term of 30 days in the county jail.

Judgment was rendered on November 7, 1932, and the appeal was lodged in this court on March 3, 1933. No briefs in support of the appeal have been filed. An examination of the record discloses no jurisdictional or fundamental error. The evidence reasonably sustains the judgment.

The case is affirmed.


text:
    JOE L. MARTIN v. STATE.
    No. A-8503.
    March 3, 1933.
    Rehearing Denied April 1, 1933.
    (20 Pac. [2d] 196.)
    E. S. Bowles, W. F. Brumfield, and J. C. Ryan, for plaintiff in error.

      J. Berry King, Atty. Gen., Smith G. Matson, Asst. Atty. Gen., and Paul W. Cress, Co. Atty., of Perry, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, being arraigned in the district court of Noble county, charged with the crime of murder in the killing of one Pete Von Nearop in said county, entered his plea of guilty to- said offense; thereupon the court heard evidence and took the matter of punishment under advisement, and thereafter and at the time fixed for pronouncing judgment and sentence, the court adjudged the defendant to be guilty of murder and fixed his punishment at death by electrocution at the state penitentiary in McAlester.

It appears from the record that deceased, Pete Von Nearop, was a horse trader; that defendant met him at Winfield, Kan., and they journeyed together to Lela, in Noble county; that on the night of July 26, 1932, defendant committed an assault upon deceased with a heavy iron holt and apparently also- with an ax; that, after deceased had been rendered unconscious, defendant bound his head in a gunny sack and dragged his body to- an abandoned oil pit; that defendant took $17.25 from the pockets of deceased, and, tying a heavy iron wheel to deceased’s neck, dragged him into- this pit filled with water, while deceased was yet alive and struggling; that defendant then took the four horses, one mule, a wagon, a hack, and other personal property of deceased and fled; that, when he was arrested near Perkins, he denied knowing deceased or having been connected with him; that, on being taken to the scene of the crime, he admitted the killing; that, on being arraigned for preliminary hearing in the county court, he was advised of his constitutional rights, and, having no attorney and no- money to employ one, the court appointed E. ,S. Bowles, former county attorney of Noble county, to defend him; that thereupon, after conferring with counsel, he waived preliminary hearing and was bound over to the district court; that on the 1st day of August he was arraigned in the district court of Noble county before John S. Burger, judge of the district court, and thereupon said court appointed E. S. Bowles to represent him; that he requested time to plead, and the court granted same and fixed the time as August 2, 1932, at 1:30 p. m.; that on the 2d day of August, 1932, defendant entered his plea of not guilty; that on the 17th day of August, 1932, he appeared with counsel and asked leave to withdraw his plea of not guilty and enter his plea of guilty; that the court thereupon advised him that the punishment for murder was life imprisonment or death by electrocution, and that, if he entered his plea of guilty, the court might pronounce judgment of death; that he was twice so admonished by the court, and thereupon in open court announced that he entered his plea of guilty; that thereupon the court fixed the 20th day of August, 1932, at 9 o’clock a. m. to pronounce judgment and sentence upon his plea of guilty; that on the 20th day of August, 1932, the court proceeded to hear evidence offered by the state and by defendant for the purpose of aiding the court in fixing the punishment; that, after hearing evidence on behalf of the state and defendant and listening to arguments of counsel for both parties, the court, desiring time to study the statements of defendant and the testimony offered in the case, continued the case until 1:30 p. m. August 24, 1932, for judgment and sentence; that on the 24th day of August, 1932, the court heard further evidence offered by the defendant, and thereupon found defendant guilty of the crime of murder upon his plea of guilty, and fixed his punishment at death by electrocution in the state penitentiary at McAlester.

It thus appears from the record that defendant is -guilty of an aggravated case of murder for the purpose of robbery, and that the trial court was very careful to see that every constitutional and statutory right was granted to him, appointing him an attorney, giving him two days in which to plead, fifteen days later, on his application to withdraw his plea of not guilty and plead guilty twice admonishing him that the death penalty might be inflicted, hearing evidence to determine the gravity of the offense and the punishment to be inflicted, and adjourning the case to August 20th and thereafter to August 24th to consider the evidence, at which time the court pronounced the judgment and sentence complained of.

The court is to be commended for the manner in which he conducted the hearing and the effort he made to see that defendant deceived all of his constitutional and statutory rights.

Section 1739, C. O. S. 1921, authorizes the court on a plea of guilty of murder to fix the punishment at imprisonment for life, or death. This act is constitutional, and the court had undoubted power to pronounce the judgment and sentence of death imposed in this case. In re Opinion of the Judges (John Henry Prather), 6 Okla. Cr. 18, 115 Pac. 1028; State v. Johnson, 1 Okla. Cr. 154, 96 Pac. 26.

On September 3, 1932, defendant made application to the court to file a motion for a new trial after sentence and judgment, which application was by the court denied: Defendant contends that the court abused its discretion in denying this application.

Section 2621, C. O. S. 1921, provides:

“The court may, at any time before judgment, upon a plea of guilty, permit it to be withdrawn and a plea of not guilty substituted.”

In construing this statute, this court has held that a plea of guilty may be withdrawn upon permission of the court after, as well as before, judgment , is pronounced. Howington v. State, 30 Okla. Cr. 243, 235 Pac. 931; Turner v. State, 33 Okla. Cr. 97, 242 Pac. 1053; Cook v. State, 45 Okla. Cr. 69, 281 Pac. 819.

It is always within the sound discretion of the trial court to either grant or deny this character of application. Factor v. State, 49 Okla. Cr. 308, 294 Pac. 206. There is nothing in the record to indicate any abuse of discretion upon the part of the court. But, on the other hand, it appears that the court gave due consideration to all of the matters that had previously been presented, and properly reached the conclusion that the application should be denied.

Contention is also made that the punishment is excessive and should be commuted to life imprisonment. From defendant’s own statement, he is guilty of an atrocious crime. A defenseless and almost helpless cripple is premedita,tedly murdered for the purpose of robbery. No extenuating circumstances appearing in the record, commutation of sentence is denied.

The original time for the execution having passed, owing to the pendency of this appeal, it is considered, ordered, and adjudged by this court that the judgment and sentence of the district court of Noble county be carried out by the electrocution of defendant on the 5th day of May, 1933.

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


text:
    W. M. HAMES v. STATE.
    No. A-8492.
    March 25, 1933.
    Rehearing Denied April 14, 1933.
    (20 Pac. [2d] 915.)
    Homer Caldwell and C. R. Reeves, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Edna Clary Clark, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county of the crime of burglary in the second degree, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of three years.

The evidence of the state was that defendant and his codefendant, Opal Henson, came to the premises at 1036 Northeast Eleventh street, which property was owned and in the possession of Mrs. Willa Helms, at some time in the afternoon of the day of the burglary, ostensibly to rent the house; that this house was furnished, and that Mrs. Helms was at the premises with another party who wanted to' rent it; that she told defendant she had promised toi let the other party have the house if she wanted it, and could not consider renting it to him; that on the same day, a little after 9 o’clock, defendant came to the premises in his Ford car, accompanied by his codefendant; that parties living nearby heard glass breaking, and called Mrs. Helms, who lived nearby; that Mrs. Helms and her husband came over to- the premises immediately, and met defendant coming out of the house; that some rugs had been rolled up and carried out on the porch and furniture disarranged in the house; that in a short time defendant got in his car and drove rapidly away; that a few days later, Mr. Helms saw defendant and caused his arrest; that he had taken the license number of defendant’s car, and on investigation of the records it developed that defendant was the owner of that car.

The defense was an alibi.

It is first contended the information is ambiguous and indefinite, and does not charge any offense.

Defendant was charged under section 2063, C. O. S. 1921, which reads in part as follows :

“Any person who breaks and enters in the day time or in the night time * * * any building or any part of any building, * * * in which any property is kept, with intent to steal therein * * * is guilty of burglary in the second degree.”

The principal complaint is that the information did not charge sufficient ownership of the building or the property located therein.

In Sallee v. State, 51 Okla. Cr. 414, 1 Pac. (2d) 794, this court said:

“Proof of any kind of rightful possession of the house burglarized, as against the burglar, is sufficient to sustain the allegation of ownership of such house.”

In Wilson et al. v. State, 50 Okla. Cr. 310, 297 Pac. 826, this court said:

“An indictment which charges a breaking and entering with intent to> commit larceny is sufficient. It need not be alleged who owned the goods that were in the building, nor whose goods defendant intended to steal.”

Measured by these authorities, the information was sufficient to charge the offense.

It is next contended the county attorney misstated the law to the jury and argued defendant’s reputation.

The record discloses that defendant, testifying for himself, admitted he had been .convicted of violating the prohibitory liquor laws. The county attorney had a right to refer to this in his argument, and to discuss it would not be attacking defendant’s character when he had not put the same in issue. A witness may be asked if he has ever been convicted of violating the prohibition law. Hendrix v. State, 4 Okla. Cr. 611, 113 Pac. 244; Crawford v. Ferguson, County Judge, 5 Okla. Cr. 377, 115 Pac. 278, 45 L. E. A. (N. S.) 519; Fowler v. State, 8 Okla. Cr. 130, 126 Pac. 831; Hargis v. State, 33 Okla. Cr. 283, 243 Pac. 986.

The county attorney committed no error in making his statement to the jury, since the prosecution may in every case argue the law and the evidence.

It is next contended that the court erred in refusing to instruct upon circumstantial evidence.

Circumstantial evidence was not relied on by the state for conviction in this case. Defendant was positively identified by both Mr. and Mrs. Helms as being the person encountered at the scene of the burglary, coming out of the house, and practically caught in the commission of this crime. The jury was properly instructed on the law and the evidence.

Finally, it is contended the court erred in admitting hearsay evidence.

The trial court permitted a witness for the state to testify that he examined the records and that the license tag was in the name of the defendant. Defendant objected to this evidence on the ground that it was incompetent, irrelevant, and immaterial, and, after cross-examining fully on the subject, moved to take this evidence from the jury, which motion was by the court denied. Helms and his wife had already testified that this automobile number was on the car driven by defendant. It was error for the trial court to admit this character of evidence, but, since it was merely cumulative, it could not have changed the result of the trial, and therefore did the defendant no harm.

Under the state of this record, it was not error for the court to refuse to sustain defendant’s objections to this evidence.

A careful examination of the record reveals no fundamental error. The cause is therefore affirmed.

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


text:
    H. C. HASTINGS v. STATE.
    No. A-8483.
    April 14, 1933.
    (21 Pac. [2d] 48.)
    S. R. Harper, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was by information jointly charged with Lowell Terry of the crime of grand larceny; was tried separately, convicted, and sentenced to imprisonment in the state penitentiary at McAlester for five years, and appeals.

The testimony on behalf of the state shows that on or about the 25th day of February, 1932, W. C. Crook lost twoi bales of cotton from the cotton yard at Chattanooga, Comanche county, Okla.; Mr. Crook was a deputy county weigher at the cotton yard; the two bales of cotton were marked by a gin number and yard number; the cotton was missed on the morning of February 26, 1932.

The testimony further shows that on the morning of February 26, 1932, this defendant and codefendant, Lowell Terry, appeared in the city of Altus with the two bales of cotton that had been taken from the gin yard where Mr. Crook was the weigher; defendant was arrested; and the tickets taken off the bales of cotton were found in the overcoat pocket of the defendant. The defendant did not offer any evidence.

The defendant contends the court erred in overruling his motion for a new trial. The motion for a new trial ..covers all the questions raised by the defendant. It is urged by the defendant that the state failed to1 prove the value of the two bales of cotton that had been taken by the defendant, which cotton was identified by the prosecuting witness, Crook. It is necessary, as contended by the defendant, that, in order to. give the court jurisdiction, and to ascertain whether or not the larceny charged was petit or grand larceny, the value of the property taken must be established.

The testimony shows the weight of the bales of cotton taken, and it further shows that about the same time this cotton was taken the defendant and Lowell Terry had stolen at one time four bales of cotton and sold them In Frederick for $100; at another time they had gotten three bales, of cotton and sold them for $80. In view of the fact that the weight of the bales of cotton was disclosed by the testimony, and that the price of the other bales of cotton that the defendant had assisted in taking on or about the same time this cotton was taken is given and shows to. have been on an average of more than $25 a bale, and in view of the further fact that the question of the value of the property taken was not raised by the defendant in the trial of the case, no1 issue being joined as to the value of the property taken, and the taking of the bales of cotton not being disputed by the defendant, we hold that the testimony is sufficient to sustain the verdict and judgment.

The other errors complained of by the defendant are without merit. The defendant was accorded a fair and impartial trial; the court properly instructed the jury as to the law applicable to the facts in the case.

The judgment is affirmed.

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


text:
    H. C. HASTINGS v. STATE.
    No. A-8482.
    April 14, 1933.
    (21 Pac. [2d] 49.)
    S. R. Harper, for plaintiff in error.
    J. Berry King,- Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was by information jointly charged with Houston Sullivan, of the crime of burglary, >was tried separately, convicted, and sentenced to serve a term of seven years in the state penitentiary at McAlester.

The record was filed in this court October 11, 1932. No brief has been filed in support of the defendant’s assignment of errors. The testimony on behalf of the state shows on the night of the 24th of December, 1931, the smokehouse of W. R. Moore was burglarized and about $150 worth of hog meat, sausage, and fruit taken. The meat was traced to the home of Marvin Terry, and, on or about three days after it was received there, the defendant, Lowell Terry and a man by the. name of McFarland loaded a portion of the meat, sausage, and fruit into a car and hauled it away. The defendant denies that he had anything to do with the burglary or handled any of the meat.

A careful examination of the record shows that the evidence is sufficient to sustain the conviction; that defendant was accorded a fair and impartial trial.

No' errors appearing in the record to warrant a reversal, the judgment of the trial court is affirmed.

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


text:
    JOE SMITH v. STATE.
    No. A-8488.
    April 14, 1933.
    (21 Pac. [2d] 51.)
    J. F. Murray, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Edna Clary Clark, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, entered his plea of guilty in the county court of Kay county to possession of 700 pints of home brew beer containing more than one-half of 1 per cent, of alcohol measured, by volume and capable of being used as a beverage, and to possession of 55 gallons of beer in process of manufacture, and his punishment was fixed by the court at a fine of |200 and imprisonment in the county jail for a period of four months. The appeal is by transcript.

Section 2814, C. O. S. 1921, provides, among other things:

“Instead of the case-made plaintiff in error may attach to his petition in error a transcript of the proceedings of record in the trial court.”

The record proper includes the following papers: (1) Indictment and copy of the minutes of the plea or demurrer; (2) copy of the minutes of the trial; (3) charges given and refused; (4) a copy of the judgment.

Defendant has included in his transcript of the proceedings his motion for leave to withdraw his plea of guilty and enter a plea of not guilty, with his affidavit in support thereof, all of which is no part of the record proper.

The statute (section 2777, O. O. S. 1921) specifically defines what constitutes the record proper; and a transcript of such record proper is the only record that can be authenticated by the certificate of the clerk of the trial court. All other matters included in the transcript constitute no part of the record, although the clerk has encumbered the transcript with them.

In .Smiser v. State, 19 Okla. Cr. 87, 198 Pac. 110, 111, the court, after stating of what the record proper consists, said:

“The only matters in the record, therefore, which may be properly considered by the court under this appeal are the foregoing papers, which constitute the record proper.”

No demurrer was filed or other proceedings had to question the sufficiency of the complaint, defendant submitting himself to the jurisdiction of the court and entering his plea of guilty. A transcript of the record does not present for review the proceedings and orders on a motion for change of venue, nor orders overruling motion for new trial, nor an application for continuance, nor an application for leave to withdraw plea of guilty. Motions, of this kind can only be presented to this court by petition in error and case-made.

No fundamental error appearing on the face of the record, the case is 'affirmed.

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


text:
    LEE LUNSFORD v. STATE.
    No. A-8505.
    April 14, 1933.
    Rehearing Denied April 28, 1933.
    (21 Pac. [2d] 52.)

      W. M. Wallace and Wetzel Welden, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith O. Matson, Asst. Atty. Gen., and Edna Clary Clark, for the State.
   CHAPPELL, J.

Plaintiff in error, Lee Lunsford, hereinafter called defendant, was convicted in the county court of Canadian county of unlawful possession of a still, and his punishment fixed by the jury at a fine of $50 and imprisonment in the county jail for a period of 30 days.

The evidence of the state was that the officers with a search warrant searched the place of one Warren, looking for a still; that not finding any there, they went to some school land adjoining, and, in a clump of brush, found a still set up and warm as though recently used; that this still was found at about 10 o’clock in the morning; that the officers concealed themselves and waited for some one to come; that the next day — some time in the forenoon-defendant came to the still, walked around it, feeling of some pipes, shook out a sack, and spread it over the top of one of the barrels; that when the officers arose and called to defendant he started to run, but, after a few steps, halted.

Warren testified that after the officers were at his place, he told defendant that if he had a still down there he wanted him to take it away, and that defendant knew the officers had been there looking for a still.

The defense was that defendant was looking for the still so that he could deliver it to the officers.

Defendant in his brief says:

“The only issue in the case is, Was the defendant in possession of the still at the time he was arrested?”

The fact that defendant came to the still, examined it, and rearranged some of the material; that when halted by the officers he fled when first accosted; and that he was warned by Warren to get the still away from there — was sufficient proof to establish his possession.

Some contention is made that the complaint was insufficient because it did not allege that the still had not been registered as required by law.

Defendant is prosecuted under section 2, c. 42, Session Laws 1923-24, same being section 2608 of the Oklahoma Statutes 1931. He filed no demurrer to this complaint, nor was any objection made to- the introduction of evidence on the ground that the complaint did not state facts sufficient to constitute a public offense, nor did he file any motion in arrest of judgment on the ground of the alleged insufficiency of the complaint.

In this court for the first time counsel attacks the sufficiency of the complaint in the brief filed, although no such attack was made in the motion for a new trial filed in the lower court nor in the petition in error filed in this court.

There are numerous decisions of this court holding that where defendant goes to' trial without demurring, to the complaint or information or objecting to- the introduction of evidence, the objection should be overruled if by any intendment or presumption the complaint or information can be sustained. Wilsford v. State, 8 Okla. Cr. 535, , 129 Pac. 80; Love v. State, 12 Okla. Cr. 1, 150 Pac. 913; Harrison v. State, 12 Okla. Cr. 398, 157 Pac. 707; Brashears v. State, 38 Okla. Cr. 175, 259 Pac. 665; Chamberlain v. State, 42 Okla. Cr. 410, 276 Pac. 507; McDermott v. State, 35 Okla. Cr. 416, 250 Pac. 810; Payne v. State, 53 Okla. Cr. 37, 6 Pac. (2d) 1073.

Other errors are .complained of, but they are not sufficient to require discussion in this opinion. ■

For the reasons stated, the judgment is affirmed.

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


text:
    RALPH SIGLER v. STATE.
    No. A-8408.
    April 28, 1933.
    (21 Pac. [2d] 1073.)
    Glaseo & Ballard, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

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

Defendant was jointly charged with John Hunter, Jack Hunter, and Roy Baker, hut was tried separately. Briefly stated, the evidence is that at the time charged defendant, and the other three named, drove from Oklahoma City to Purcell, and about 3 o’clock a. m. drove into a filling station of which Charles Alford was in charge. Defendant was driving the car. All got out, and Baker pointed a pistol at Alford, forced him into the automobile, and defendant got in and started the engine. The two Hunters went inside the station, broke open the cash register, and took its contents — about $25. They then drove toward Oklahoma City, and in Cleveland, county stopped the car and tied Alford to a telephone pole. He succeeded in getting loose, and telephoned to Norman. The call was relayed to' Oklahoma City, and was picked up by the police car’s radio, and, as the car driven by defendants approached Oklahoma City, it was intercepted and pursued by a police car. It slowed down, and all the occupants, including defendant, abandoned it and fled. Defendant was pursued by one policeman and fled in the direction of another, but was only arrested after he had been shot at twice. Upon his arrest he gave a fictitious name and made a false statement to the officers.

His defense is that Joe Baker, a defendant, coerced and forced him into what he did at the time of and subsequent to the robbery, and that he drove the car under duress and was not a participant in the crime. He testified to this defense in detail. The state then, in rebuttal, called Joe Baker, the codefendant, who had been convicted of another robbery, and was confined in the state penitentiary. He testified the robbery was according to a plan and arrangement between the witness, the defendant, and the Hunters; that defendant furnished the money to buy the pistol, and drove the car for the purpose of assisting in the robbery.

Defendant first contends the court erred in refusing his requested instruction No. 1, which is in substance that to constitute one a party to a crime it is necessary that he commit, aid, or abet its commission; that consent and acquiescence is not sufficient to constitute one a participant — citing Moore v. State, 4 Okla. Cr. 212, 111 Pac. 822; Carrico v. State, 16 Okla. Cr. 118, 180 Pac. 870; Nichols v. State, 50 Okla. Cr. 409, 298 Pac. 886. The request is argumentative and incorrect in form. If, however, it calls the attention of the court a proposition of law applicable to the facts, it would have been the duty of the court to cover the proposition so presented. Thomas v. State, 13 Okla. Cr. 414, 164 Pac. 995; Smith v. State, 51 Okla. Cr. 292, 1 Pac. (2d) 814.

Defendant, in his second request, submitted this: “Gentlemen of the jury, you are instructed that an act which would otherwise be a crime may be excused on the grounds the defendant acted under compulsion or duress, if the compulsion or duress be present, imminent, and impending, and of such a nature as to induce a well founded apprehension of serious bodily harm if the act be not done. In other words, if from the evidence in this case you should find, or have a reasonable doubt, that the defendant in this case did not do the act or acts alleged to have been committed by him of his own free will and accord, but that he acted at the command, direction and because of the fear of another, then your verdict should be in his favor and you should acquit him.”

This requested instruction was given by the court, and covers the contention made so far as supported by the evidence. The evidence of defendant is, not that he gave mental consent and acquiescence to. the-robbery, but is that he did not .give his assent or acquiescence, but acted under duress. This theory is covered by the instruction given.

Next it is contended the court erred in failing to instruct the substance of section 3071, Oída. ,Stat. 1931, that a conviction cannot be had on the testimony of an accomplice, unless corroborated. No request for such an instruction was made. As recited, the state, in its case in chief, did not rely on the testimony of the codefendant and accomplice, Baker, but he was called to rebut the testimony of defendant that he acted under duress and coercion, and, while his testimony is that of an accomplice, it is by way of rebuttal and not a part of the case in chief. In such state of the record, counsel, if they desired an instruction on corroboration of an accomplice’s testimony, should have requested it. Failing to do so, it was not error for the court to omit such an instruction.

On an examination of the entire record and a consideration of the defendant’s testimony and the circumstances disclosed, we are satisfied defendant had a fair trial, and fail to see how the jury could have arrived at any conclusion other than that of defendant’s guilt.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    ROLLINS PLUMMER v. STATE.
    No. A-8420.
    April 28, 1933.
    (21 Pac. [2d] 1119.)

      David Tant, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma, county of the crime of child abandonment, and his punishment fixed by the court at imprisonment in the penitentiary for a period of one year.

The appeal, which is by transcript, was filed in this court on the 30th day of May, 1932.

No briefs have been filed and no appearance made for oral argument in the case.

An examination of the record discloses no fundamental errors.

The case is therefore affirmed.

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


text:
    Ex parte HATTIE D. YANDELL.
    No. A-8507.
    May 12, 1933.
    (22 Pac. [2d] 114.)

      Hattie D. Yandell, guardian, pro se.
    J. Berry King, Atty. Gen., and George J. Fagin, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

This is an original proceeding in habeas corpus. Petition is filed by Hattie D. Yandell, guardian, in behalf of Ozie Yandell, who will be referred to as petitioner. It alleges that said Ozie Yandell is unlawfully restrained by the warden of the penitentiary; that said restraint is by virtue of a commitment of the district court of Hughes county on a conviction in said court on a plea of guilty of burglary.

It is alleged the conviction and the commitment are void for the reason that at the time said Ozie Yandell was an insane and incompetent person and had been so adjudged by the county court of Seminole county. Attached to the petition is a certified copy of the judgment and commitment and of the judgment of the county court of Seminole county adjudging Ozie Yandell to be an insane, incompetent person. It is alleged that said Ozie Yandell appeared without counsel and none was appointed for him, and by reason of his insanity was incapable of waiving any of his legal rights, and for that reason the district court was without jurisdiction to' render judgment. The argument is made that a person insane at the time of the commission of an offense can never be punished for such an offense or that a person who- commits an offense while sane and thereafter becomes insane cannot be punished so long as he shall remain insane. In support of his contention petitioner cites In re Wright, 74 Kan. 406, 86 Pac. 460, 89 Pac. 678. In this case Wright was charged with burglary before the municipal court of the city of Wichita, sitting as an examining magistrate. The defense of insanity was interposed and defendant was committed to jail in default of bond. The defendant previously had been adjudged insane by the probate court and committed to an asylum. The court there held that where a defendant had been adjudged insane by the probate court and a preliminary hearing is thereafter had before a committing magistrate on a charge of felony and the fact of insanity is pleaded in abatement, the committing, magistrate is without jurisdiction to< commit the accused where he makes no examination nor finding of his mental capacity. The court states had this been done a conflict of jurisdiction would have arisen and a more difficult question presented. The gist of the holding seems to be that the accused having been adjudged insane, and that fact having been pleaded, the presumption of insanity prevails in the absence of any proof and finding to rebut. No authority is cited. The practice in this state would not require any such finding by the magistrate, but the question of insanity would be determined in the trial court under the provisions of sections 3106, 3212-3219, Okla. Stat. 1931. Under our law this case is not in point.

The further case of Mabry v. Hoye, 124 Miss. 144, 87 So. 4, is cited. This was a habeas corpus case wherein Home, who was insane and confined in an insane hospital, was afterwards indicted for murder; Mabry, the sheriff, sought by means of habeas corpus to obtain the custody of Horne so he might be placed on trial for the crime charged. The court denied the writ and in reviewing the statutes said that Horne, having been adjudged insane by the chancery court and by its order committed to the custody of the superintendent of the hospital, was properly held by the superintendent and could not be tried for the crime. The question for decision in that case was whether or not one who had been adjudged a lunatic and committed to an insane hospital might be taken from the custody of the superintendent and put on trial for a crime he had committed after being adjudged a lunatic. The Supreme Court, under the statutes, held, that the chancery court had full jurisdiction and denied the writ. This case does not support the contention of petitioner.

It is fundamental that habeas corpus cannot be invoked for the release of one imprisoned under a judgment and commitment by a court of competent jurisdiction unless the judgment and sentence is clearly void. After a judgment of conviction has become final, the question of defendant’s insanity at the time of the commission of the offense or at the time of trial cannot be raised on habeas corpus. Ex parte Stevenson, 187 Cal. 773, 204 Pac. 216. See, also, In re Selowsky, 189 Cal. 331, 208 Pac. 99; People ex rel. Cassidy v. Lawes, Warden, 112 Misc. 257, 182 N. Y. S. 545, 546; Winslow v. Green, 155 Ind. 368, 58 N. E. 259; Ex parte Heytz, 17 Okla. Cr. 698, 192 Pac. 698.

In the Cassidy Case, supra, wherein it was sought by habeas corpus to release one convicted of a felony because of his imbecility at all times, the court said:

“ ‘Want of jurisdiction is want of power to proceed.’ But there was no want of power to proceed. The Supreme Court had jurisdiction of the offense in this case and of the prisoner; this is conceded. It also had the power and it was its duty to proceed, unless the mental defect of the prisoner was brought to1 the attention of the court and established by competent proof. The naked assertion of the prisoner’s imbecility at this time, or the mere admission of it by the Attorney General in this proceeding, is not sufficient to undermine the jurisdiction of the trial court and render the trial a nullity. People ex rel. Scharff v. Frost, 198 N. Y. 110, 91 N. E. 376, 139 Am. St. Rep. 801.”

In the Heytz Case, supra, this court held:

“A petition for a writ of habeas corpus alleging that petitioner was unlawfully restrained of his liberty by the chief of police under a sentence for vagrancy imposing a fine, and that petitioner was insane, and had been so adjudged, as evidenced by an attached certificate of the clerk of court, held not to allege facts sufficient to warrant issuance of the writ.”

A somewhat similar question was presented in the case of In re McWilliams, 254 Mo. 512,164 S. W. 221, 222; the court said:

“We conclude that since the probate courts have no jurisdiction in criminal cases, since the degree of insanity which will authorize the adjudication of a person as insane is not always the same degree as will excuse the same person when tried for a crime, since it is unthinkable to urge that the will of the insane person’s guardian shall be substituted for the custody of the criminal court, and therefore in the absence of an express statute the rule at common law should prevail in the trial of the alleged insane defendant; that is, that the trial judge upon his own inspection and view of the accused, or in his discretion, upon examination of the proceedings of the probate court may either impanel a jury and try as a preliminary matter the question of the present insanity of the accused, or submit the questions of insanity, with the whole case, to the jury which tries accused for the felony, and if guilt be found, folloAV the proceedings set out in sections 1430 et seq., in such wise as the then mental condition of the defendant, as found by the jury, may render appropriate.”

See, also, In re Selowsky, 189 Cal. 331, 208 Pac. 99, and Ex parte Shaffer, 70 Mont. 609, 227 Pac. 37.

The judgment is not void, and the petitioner is not entitled to release by habeas corpus.

The writ is denied.

DAYENPOET and CHAPPELL, JJ., concur.


text:
    J. W. BURNS v. STATE.
    No. A-8437.
    March 18, 1933.
    Rehearing Denied May 19, 1933.
    (21 Pac. [2d] 1075.)
    C. R. Reeves, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to' as the defendant, was by information jointly charged with one E. E. Hodgins, of the crime of forgery; was tried separately, convicted, and sentenced to serve five years in the state penitentiary at McAlester. From the judgment and sentence the defendant appeals.

The testimony in this case tends to show that the defendant and one E. E. Hodgins were officing together in the Key building, in the city of Oklahoma City; that one Maxine Shelly was working for the parties; that there was delivered to Maxine .Shelly a number of checks purporting to be signed, Citizens’ Refining Company, by Ira W. Conner, treasurer. The testimony further tends to show a check dated July,29, 1931, made payable to- the American Operatives Agency, for $10, signed Citizens’ Refining Company, by Ira W. Conner, treasurer, • was indorsed, American Operatives Agency, by E. E. Hodgins, Maxine Shelly, and J. W. Burns; that Maxine Shelly was requested to get the check cashed. The check was not genuine. The testimony shows it was a forgery, and that the purported company signing the check did not have any money in the bank upon which it was drawn.

The defendant denies he had anything to do with the issuing of these checks or procuring the money received therefrom, and claims that Hodgins is the man who issued these checks. The jury heard the testimony and had an opportunity to judge the demeanor of the witnesses on the stand, and their interest or lack of interest in the conviction of the defendant, and decided the issues against the defendant. This court will not disturb the finding of the jury where there is any competent testimony to1 warrant the jury in returning a verdict of guilty.

Many other questions are argued by the defendant, which it is not deemed necessary to consider separately as a careful examination of the record shows they are not of sufficient merit to warrant a reversal of this case. The defendant was accorded a fair and impartial trial. There are no fundamental errors in the record, and under the testimony in this case the jury was warranted in returning a verdict of guilty. The judgment of the trial court is affirmed.

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