text:
    ADDIE KIMBROUGH v. STATE.
    No. A-9306.
    April 21, 1939.
    (89 P. 2d 982.)

      Eaton & Wheeler, of Okmulgee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error was by information charged with the crime of murder, was convicted of manslaughter in the first degree, and sentenced to serve a term in the state penitentiary for 60 years. The record was properly preserved and from the judgment and sentence the defendant has appealed.

The testimony in substance in brief is as follows:

Columbus Reed stated:

“I live eleven miles east of Okmulgee. I knew Alex Rolland in his lifetime. He was my brother-in-law. I know Addie Kimbrough. Have known him since 1924. I attended a picnic in July, 1936, south of Eram. Henry Brazor was conducting the picnic. We drove my truck and my brother-in-law, and wife, and Otto Whitaker, and John Phillips, accompanied me. There wasn’t very many people on the picnic ground when we got there. It was 11:00 or 11:30 at night. After we had been there awhile, Addie Kimbrough, the defendant, came up to me and asked me to take my brother-in-law’s gun, and I told him I would; he was going out towards the road at that time, and I followed him out in the direction of my truck, I asked him what the racket was about and he said, 'Son Taylor is trying to run over me,’ that Son Taylor had slapped his wife and that he was going to kill him. Alex Rolland, my brother-in-law, started towards Son Taylor with a revolver in his hand, I grabbed him; I do not know what make of pistol he had. After I grabbed him and scuffled with him, he carried me pretty near back to the stand and I twisted the gun out of his hand, and stuck it back in my left hand and said, ‘Some of you men take the gun.’ George Brazor took the gun and told me he threw it back over across the barbecue pit by a big tree. When I seen him again he was coming up to me and I held Alex by the hand, held his shoulder and I said ‘Come on, let’s go,’ and he said, ‘All right, I am ready.’ We started to go back to the truck. About that time I heard my sister say, ‘Don’t shoot.’ We started to the truck to go home. Addie walked up and said, T told you to be quiet,’ and sticks the gun right across my arm, just like this, and shot him there the first time. Not a word was said between Alex Rolland and Addie. Alex was not armed at that time. Nor was he making any effort to shoot or hurt anyone. When Addie Kimbrough shot, Rolland fell back. Addie walked up and shot him twice more after he fell on the ground. The first time Addie shot Rolland, he stuck the gun right up in his face. Alex Rolland never said a word to Addie. After the first shot there was a little lapse of time before the next two shots took place. After Rolland was shot the only thing he said was, ‘Bring me a drink of water.’ ”

This was in Okmulgee county, Okla.

On cross-examination the witness restated that he was a brother-in-law of the deceased; that Rolland had been drinking a little bit, but he was not drunk. “He went to the picnic with me. Kimbrough asked me to take deceased’s gun. The deceased shot at Son Taylor. After Kimbrough asked me to disarm my brother-in-law, I took him out towards the truck. We stopped at the gate. He shot at Taylor after we had stopped at the gate.”

He was up near the barbecue stand and saw Taylor slap his wife.

“I saw Taylor slap Rolland’s wife. We were standing at the gate when we saw him slap the woman. I couldn’t prevent him from shooting at Taylor. I caught him around the arm but could not stop him. Taylor was running when Rolland shot twice at him. Rolland did not shoot at Kim-brough. I took the gun away from him after he had shot at Son Taylor. The reason I did not throw his arm up was that I was afraid I would get shot. The gun my brother-in-law had is a .22 caliber. I employed Mr. Payne to assist the prosecution in this case. Rolland was not doing anything at the time the defendant shot him. He did not say anything; neither did the defendant say anything to him. The defendant walked up and asked deceased, ‘Didn’t I tell you to keep quiet.’ I had hold of the deceased when the defendant shot him. I was holding him and trying to find out what started the argument between he and Son Taylor. The wife tried to get Alex to go back and let Son Taylor alone. Henry Brazor, my brother-in-law George, and I were on good terms. Sadie Brazor was in the stand at the time of the shooting. The only guns I saw that evening was the one I took away from my brother-in-law, Alex Rolland, and the one Addie Kimbrough had. The Kim-brough gun made the loudest noise. As near as I can get it, I took the gun off Alex about fifteen or twenty minutes before Addie Kimbrough came up. I didn’t tell Addie that I had taken the gun off him.”

Grace Rolland, Harmon Nonnette, Otto Whitaker, and George Brazor, as witnesses for the state, testified in substance the same as Columbus Reed, all stating that prior to the shooting of the deceased, deceased had some trouble with Son Taylor and that the deceased discharged his pistol twice at Son Taylor, that Columbus Reed got hold of the deceased and was holding him, and the defendant came up and then went away for a few minutes and returned where Reed still had hold of the deceased and walked up close to them and fired at the deceased. They all stated that the deceased fell at the first shot, and that defendant then fired two more shots into the body of the deceased while he was laying on the ground.

Erie Upton, the sheriff of Okmulgee county, stated in substance:

“I was called out to the neighborhood south of Eram around 3:00 o’clock in the morning. I met Addie Kim-brough the defendant. Kimbrough had called me and told me he had had some trouble and had killed a fellow and wanted me to come out for him. I learned it was Alex Rolland that Kimbrough had killed there. The gun he turned over shot a 32-20 Winchester shell. I believe it was a Spanish make. It was not an American gun. I have the shells, both loaded and empty, that were in the gun at that time. There were three loaded and three empty shells. I don’t believe I examined the gun to see if it had been recently fired; however, I threw the cylinder out to see how many shells had been fired and to see if there were any loaded shells in the cylinder.”

The gun was introduced in evidence without objection on the part of the defendant.

On cross-examination the witness stated that the defendant advised him where he would be, and that he drove out to the place designated and met the defendant.

“I asked him what happened and he told me something about it. I went, out to the scene of the killing and made some investigation. I brought the defendant in to jail, and it was getting daylight. Jim Mason and I went back together. When I got out to the picnic grounds, I saw a nigger by the name of Reed and one by the name of Joe Sango. There were several there, but I did not know any of them by namei I did not know the Brazor boys. I talked to Columbus Reed about 6:30, maybe 7:00 o’clock in the morning. I have known the defendant four or five years.”

Fentrice Brook testified on behalf of the state, and stated:

“My name is Fentrice Brook. I live four miles east of Morris. I knew Alex Rolland during his lifetime. I know Addie Kimbrough. I attended the picnic on the 19th of July, 1936, south of Eram. It was after dark when I got to the picnic grounds.- It was practically daylight next morning when I left. Son Taylor and Alex Rolland got into trouble first. I don’t know what it was about. I heard two shots fired. Alex Rolland fired the first two. That was at the time he and Son Taylor was having their trouble. I know Columbus Reed. He was present. He had hold of Alex Rolland at the time he fired the two shots. I didn’t see the pistol. I don’t know how long Columbus Reed held Alex Rolland. Reed carried Alex around towards the gate. It was a good ways from Columbus’s truck. It wasn’t long after the first shooting until there were other shots fired— I would say something like five minutes. I saw Addie Kim-brough when the last shots were fired. Addie Kimbrough did the last shooting. I didn’t hear anything said. At the time the defendant Kimbrough began shooting he and Alex Rolland wasn’t very far apart. They were close together. I didn’t hear either one of them say anything. There were three shots fired at the last shooting by Addie Kimbrough. The last three shots fired by Addie Kimbrough was louder than the two fired by Rolland at Son Taylor. When Kim-brough fired, Rolland fell backwards and I don’t know whether he fell on his face or his back. Rolland fell when the first shot was fired by Kimbrough. After Kimbrough fired the last shot he turned and left. There was one shot fired and then the two right behind each other.”

On cross-examination the witness stated that there were five shots fired that evening. He did not count them but he knew there were five:

“I didn’t see the deceased Rolland and Kimbrough either have a gun; but I heard the shots, and I know who fired them. Addie fired the last shots.” He said, “I saw Addie shoot. He was shooting with a gun. I didn’t see the gun. I saw Francis Myers yesterday, here at the court house, and talked to him but not about this case. I did not tell Myers that when this shooting was going on that I saw Alex Rolland with a gun. I was not talking with any one about the guns.”

On re-direct examination the witness stated the last three shots were the same sound.

Grace Rolland was recalled on behalf of the state, and stated that Alex Rolland was dead.

“He died about 20 minutes after he was shot up there at the picnic ground. He was buried in the North-West Cemetery. I attended the funeral. He was shot three times, in his breast once, in his stomach once, and in his chin. I know Alex Rolland died from the effects of the gunshot wound.”

On re-direct examination the witness stated that Rolland was 25 years of age and in good health at the time of the trouble.

The foregoing is the substance of the evidence introduced by the state.

Arthur Claire, called in behalf of the defendant, stated:

“My name is Arthur Claire. I live south of Eram. I have lived in this country 30 years. I am a farmer. I know where Addie Kimbrough lived on July 19, 1936. And, also, know where there was a picnic going on at that time. I was down to the picnic grounds a little while that evening. I went down about 9 o’clock and left about 10. I saw the defendant Kimbrough and Alex Rolland there. There was no difficulty whatever occurred while I was down at the picnic grounds. I live about 70 rods from where the picnic was held. About 3 o’clock in the morning I heard some shooting. The first three shots I heard — two of them were right together, it seems they waited just a little bit and then the other. There was just a second between the first ones and just a little while and then I heard three more shots. I heard six shots. The first three shots were louder than the last three. I did not see a gun on either Alex Rolland or Addie Kimbrough while I was at the picnic grounds. I had gone to bed and some people came down to the well to get some water and woke me up and later I heard the shooting. I am positive that I heard three shots the first time and then three more. I looked at the body on the truck next morning and I saw three holes in the body. The largest gun would make the loudest report. I was down there later and stepped some distances from different points designated by the parties who were present that night. I didn’t put the figures down. The section line is north of the stand and must be about 18 steps. This picnic ground is on the same side of the road as my house. The place where they showed me the shooting occurred was towards the gate from the stand. It was closer to the gate than to the stand.”

Joe Sango testified for the defendant ■ and stated:

“My name is Joe Sango. I live 16 miles east of here, south of Eram. I am a farmer. I know Addie Kimbrough; have known him about seven years. I did not know Alex Rolland in his lifetime. I had only seen him once. There were six shots fired there all together. Alex fired three shots the first time. He was shooting at Fred Taylor. Fred Taylor was running when Alex was firing the shots. Alex walked around the stands and started back on the north side and Kimbrough walked around on the north side coming east to talk to Alex and said, ‘If you don’t cut this fuss out you might kill somebody.’ Alex turned back and said, T will kill you, you black s— of a b — .’ There were three shots fired. The same gun made the first shots.” “Did you see the last or hear the reports ?” “I heard the reports. The two last shots were loudest. Kimbrough’s gun, I guess. The last two shots were loudest. After the shooting Kim-brough walked off. Alex fell right down backwards. I know Columbus Reed. I did not see him at the time. I was about ten steps from where the shooting occurred — back off east. The shooting took place between the stand and the gate, closer to the gate than to the stand.”

On cross-examination the witness stated that he had been at the picnic grounds about all night, that the shooting occurred about 2 or 3 o’clock in the morning. “When he fired the first three shots he was standing there by the stand. I didn’t see who shot the first shots. No, I reckon Alex was shooting the first three. The party that fired the first three shots was Alex Rolland. Rolland was pretty full at the time. I was not drinking. I had had a drink or two. Kimbrough did not seem to have been drinking. The shooting took place between 2 and 3 in the morning. I stayed at the picnic grounds until daylight, after the officers came. Kimbrough was not there at that time. I don’t know who fired the last three shots. I know Kimbrough fired the last two. I saw him with the gun up. I was about ten steps away from them. I don’t know whether Kimbrough went and got his gun or not. When the first three shots were fired, Kimbrough talked to Alex Rolland and said somebody would have to take him home. After that Kimbrough walked up to Rolland. I heard what he said to him. That was after the first three shots. The first three shots were fired at Taylor. Kimbrough walked up to Rolland and talked to him a good while, then the gun commenced to fire out there. The small gun fired first it sounded like; then the gun that sounded loudest fired the last times. I saw Kimbrough shooting. Kimbrough left after the shooting.”

Addie Brazor testifying for the defendant stated she was the wife of Henry Brazor; that she was at the picnic on the night of the killing; that she did not know who did the shooting; nor did she count the shots. It seemed to her that there were five or six shots in all; did not know whether the shots were different in sound as she paid no attention to it. The first shooting was near the stand in which she was working; that the defendant came to her house after the shooting; that she is a sister of Harmon Nonnette; that her brother Nonnette came to her home and remained there quite awhile and her husband Brazor and the defendant Kimbrough went to the home of Mrs. Ganus to phone for the officers; that she heard no statement by the defendant to the effect that he intended to kill the deceased and if there was any one there who did not like it he would give them some of-the same dope; that it was not made in her presence, and that she did not get between her brother Nonnette and defendant.

Son (or Fred) Taylor testified for the defendant and stated: “On July 19, 1936, I attended the picnic”; that the deceased Alex Rolland shot three times at him. “I was standing close to the gate, between the stand and the gate.”

On cross-examination witness stated:

“In my judgment Rolland was drunk. I had no difficulty further than that he walked up to me and started talking. I pushed his wife; she walked up in my face and called me a God-damned black s— of a b — , and I pushed her. When I pushed her back out of my face is when he went to shooting at me. I don’t know whether his wife was drunk or not. I have known Rolland two years. When Rolland was standing near me Columbus Reed was not by his side; nor was he standing beside him when Rolland started firing. Columbus Reed was not standing there when Rolland began shooting at me. Rolland had a big gun; it sounded like a big gun to me. I did not hear the other shots.”

Simon Myers testifying on behalf of the defendant stated that he was at the picnic; the shooting took place about 3:30 in the morning; there were two sets of shots fired that night. Alex Rolland fired the first three shots; and later on there were three shots fired. When defendant Kimbrough came up where Alex was and was trying to talk about shooting among the crowd, he told him he might shoot some innocent person. Alex cursed and said he would shoot him. “At that time the people rushed back against me and about that time the shot was made. I did not see this made, the first shot there, but Addie made the second two. The first shot did not seem to be from the same gun. It did not seem to be as loud as the last two. I was not in a position to see the guns.”

Bud Walker and Jim Taylor were called as witnesses and testified in substance to the same facts as the other witnesses for the defendant.

J. W. Anderson and Omlsted Mays testified as to the condition of the defendant’s gun at the time he started to the picnic with it.

The defendant Addie Kimbrough testifying in his own behalf states as follows:

“I am 25 or 30 years of age; I became acquainted with the deceased, Alex Rolland, within the last year previous to the killing; I was running the picnic on the night of the killing; I had the place rented for the year 1936 from C. C. Jennings.”

Defendant stated about the Alex Rolland and Fred Taylor affair:

“I don’t know anything except that I was standing west when the gun was fired through the crowd at Fred (or Son) Taylor; then a few minutes after that I was going on that side of the crowd and trying to get over there and get Alex Rolland, just about — I presume, nine steps from the stand and I says, ‘Alex put your gun up and go home.’ He said, ‘You God-damned s— of a b — , I will kill you,’ and then he fired and when he fired the first shot, I shot him. I had to get my gun. I had to pull my gun, and I shot him there and there (indicating).”

The defendant denied he made any statement to Brazor or in the presence of Nonnette that he had killed Rolland and if any of them wanted trouble, or words to that effect, they could get it. The defendant was questioned with reference to killing his wife and his counsel objected to that. The court overruled the objection and he saved his exception.

“Q. Go ahead and answer. A. That was in 1916. Q. And when were you tried? A. My trial was in 1916. Q. When did you go to the penitentiary? Mr. Eaton, counsel for the defendant: We object to that as incompetent, irrelevant, and immaterial. The court overruled the objection. Mr. Eaton: Exception. A. I went in 1916. Q. And how long did you stay in the penitentiary? A. How long did I stay in the penitentiary? I stayed * * * Mr. Eaton: We object to that as incompetent, irrelevant and immaterial. The court: Overruled. Mr. Eaton: Exception. A. I stayed about three years. Q. Who represented you at that time? Mr. Eaton: We object to that as incompetent, irrelevant and immaterial. The court: Sustained. Q. How did you get out of the penitentiary? Mr. Eaton: We object to that as incompetent, irrelevant and immaterial. The court: Sustained. The court: Is that all? Mr. Eaton: I don’t think of anything else. No, I believe I will ask him this: Q. State whether or not you were pardoned?”

Mr. Payne objected to that as incompetent, irrelevant, and immaterial.

“The court: I am going to let him answer. A. Yes, I was given a pardon. Q. And that was after you were committed to the penitentiary and served three years, you were pardoned? A. Yes. Mr. Eaton: That is all.”

Cross-examination by James K. Eaton:

“Q. What year were you pardoned in? A. I believe it was 1923. Q. You were out on parole for a long time? A. Do you want me to explain? Q. No, answer the question. You were out on parole? A. I was out on parole for good behavior and after my parole any Governor coming in the office and looking at my record would have given me a pardon and restored my citizenship.”

Mr. Eaton objected to the question as being incompetent, irrelevant, and immaterial.

“The court: Sustained. The court: What governor pardoned you? A. I was pardoned under Governor J. C. Walton.”

Judge J. E. Gilder, Carlisle Mabry, John Milner, and W. B. Edwards, reputable citizens of Okmulgee county, testified to the good character of the defendant.

The record discloses that the defense made in this case, as shown by defendant’s testimony, is self-defense; and the foregoing is in substance the testimony of the defense which shows a clear conflict in the testimony. The defendant in his petition in error has assigned 21 errors alleged to have been committed by the trial court, which errors he believes to be sufficient to warrant this court in giving him a new trial. The plaintiff in error in his brief discusses the thirteenth and fourteenth assignments, and in his argument he admits that the evidence tends to prove that the deceased was shot and killed by the defendant without provocation; he further admits that there is evidence tending to show that the act of the defendant in shooting and killing the deceased was a cold-blooded and murderous deed. He argues further that on the other hand the record abounds in evidence to hold that defendant was justified in shooting deceased, and shot and killed him in order to protect his own life. He further argues that the court committed error in permitting the county attorney to be unfair and that the cross-examination of the defendant by the county attorney was full of insinuations, and the questions asked defendant by the prosecution were full of insinuations and were indulged in for the sole and only purpose of prejudicing the minds of the jury against the defendant, notwithstanding the fact the prosecution was bound to know that the defendant was in charge of the picnic and had a right to carry a gun from the sheriff.

The defendant complains that the court erred in permitting the county attorney to cross-examine the defendant and propound to him the following questions:

“Q. You married an Indian woman? A. Yes. Q. And she was very wealthy? A. Yes.”

The defendant in his argument discusses at length and with a great deal of force that when the court propounded the defendant the question as to what governor pardoned him, his answer was received by the jury with humor and laughter, and the defendant insists that the propounding of the questions to the defendant as to his going to the penitentiary, remaining there for a number of years, being out on parole, and being pardoned, and what governor pardoned him, prejudiced the rights of the defendant before the jury. Defendant does not dispute the fact on cross-examination by Mr. James K. Eaton in testimony on his own behalf that the state had a right to ask him if he had heretofore been convicted of a crime, and that the defendant under the law would be compelled to answer and state whether or not he had been convicted. But defendant insists when he had answered that he had been convicted of a crime and what it was, the manner of punishment imposed, the privileges granted, and the parole extended, and finally a pardon, was improper, incompetent and greatly prejudicial to the rights of the defendant to the extent to deprive him of having a fair and impartial trial under the law given to the jury by the court and evidence introduced before the jury.

The defendant further complains that the court erred in permitting the county attorney in his cross-examination of J. E. Gilder, Carlisle Mabry, John Milner, and W. B. Edwards to propound the same questions as to his former conviction that were propounded- to the defendant on his cross-examination.

The question for this court to determine is the question, had the county attorney the right in his cross-examination of the defendant and the other witnesses to go into the question of the defendant’s previous conviction after he had shown, and the defendant had admitted, that he had been previously convicted of murder, and would the fact that the court over the objection of the defendant permitted the county attorney to go into the question of the defendant’s conviction, when and where, when he went to the penitentiary, and how long he remained there, and when he got out, and whether or not he was pardoned, and the court’s question as to who pardoned him, be such an error as would bias and prejudice the rights of the defendant in the minds of the jurors, and would it do so and by reason thereof, would the jury return a verdict of guilty or fix a higher punishment than it ordinarily would have done, had the question not been gone into.

The defendant insists that it would deprive him of a fair and impartial trial, that the questions were asked solely and only for the purpose of biasing and prejudicing the jury against him, and that the jury would in all probability have returned a different verdict had not this evidence been permitted to go to it. The defendant cites many cases of this court which he relies upon to sustain his position.

In Hicks v. United States, 2 Okla. Cr. 626, 628, 103 P. 873, 874 in the body of the opinion, the court said:

“Unfairness, whether intentional or not, taints everything it touches, and will vitiate a verdict unless it clearly appears from the record that there was no rational conclusion at which the jury could have arrived favorable to the defendant, and it must be absolutely clear upon this question, to wipe this taint out.”

The testimony in this case is in direct conflict. The witnesses for the state swore to one state of facts, and the witnesses for the defendant to a directly opposite state of facts. The state’s witnesses, if their testimony is true, make out a case of willful murder; the defendant’s witnesses, if •their testimony is true, make a clear case of self-defense, as the eye-witnesses for the defendant testified that the deceased shot at the defendant once before the defendant drew his pistol.

The defendant further cites Rogers v. State, 8 Okla. Cr. 226, 127 P. 865, in which this court said:

“In the examination or cross-examination of witnesses, it is highly improper for attorneys to ask questions which suggest unfair inferences, either on one side or the other, and such conduct should not be permitted by the trial court.
“Every defendant in a criminal case is entitled to fair treatment on his trial, and a prosecuting attorney should not be permitted to ask questions which he knows to be illegal for the purpose of prejudicing the defendant, or to make remarks in the examination of a witness which contain unfair reflections upon the defendant. In the examination of witnesses, he should confine himself exclusively to developing legal evidence against the defendant, and should reserve his comments on the testimony for his argument to the jury; and it is the duty of trial courts to rigidly enforce this rule.” Jelts v. State, 7 Okla. Cr. 733, 734, 123 P. 1130.

In Wisdom v. State, 18 Okla. Cr. 118, 193 P. 1003, in the syllabus the court said:

“Where the evidence is in irreconcilable conflict, and the case is a very close one on the facts, the record will be closely scrutinized. In such case improper cross-examination of the defendant, properly objected and excepted to, is held sufficient ground for reversal of conviction.”

In Brummett v. State, 39 Okla. Cr. 284, 264 P. 224, in the first paragraph of the syllabus the court said:

“A defendant, testifying in his own behalf, stands upon the same footing as any other witness on cross-examination upon matters affecting his credibility.”

In the second paragraph of the syllabus the court said:

“Where the county attorney subjected the defendant to a series of immaterial questions as to other offenses and questions tending to degrade and belittle him, the objection of the defendant to the questions of the county attorney should have been sustained, and the court erred in overruling defendant’s objection.”

In the third paragraph of the syllabus the court said:

“A conviction will be set aside where a county attorney persisted in asking improper and prejudicial questions on his cross-examination of the defendant, and the trial court should have sustained the objection of the defendant to the questions of the county attorney.”

In Pickrell v. State, 5 Okla. Cr. 391, 116 P. 957, the court said, in part, in the body of the opinion, 5 Okla. Cr. at page 394, 116 P. at page 958:

“We believe the action of the prosecuting attorney, as shown by the record constitutes misconduct on his part, prejudicial to the substantial rights of the defendant. Such conduct was clearly calculated to prejudice the minds of the jury, and manifested a disposition to disregard the legal rights of the defendant, and should have been promptly condemned by sustaining the motion for a new trial.”

This defendant insists that the conduct of the county attorney in his cross-examination of the defendant and his witnesses as to the defendant’s former conviction and other questions pertaining to the former conviction prevented him from having a fair and impartial trial and that the testimony admitted over objections of the defendant caused the jury to be biased and prejudiced against him, and he insists that the examination went beyond the bounds of reason and clearly constitutes reversible error.

The state in its brief has made no effort to answer the question raised by the defendant, not even mentioning the fact that the defendant complains of the admission of the testimony herein, supra.

Why the state did not answer the defendant’s argument on the question, this court does not know. It is the duty of the state in filing a brief to answer all questions raised by the defense which tend to show that the defendant did not have a fair and impartial trial.

It is unusual that the state utterly ignores the brief of the plaintiif or questions argued and briefed by the defendant. It may be that the state considered the questions raised did not possess merit sufficient to warrant the state in considering the defendant’s brief. If it be true that the state felt that it should not answer these questions, it is unsatisfactory and wrong. The state should always discuss all questions raised. If it thought they were without merit, it would take but a few lines in their brief to say so, and it would be of great benefit and interest to the court in preparing an opinion.

We have carefully read the record in this case and the brief of the defendant on the question of the cross-examination of the defendant and his character witnesses as ,to a former conviction of the defendant, where he had been charged with murder, the time he served in the penitentiary, and the fact that he was pardoned, and we have reached the conclusion that under the facts stated in this case, the action of the court in permitting the cross-examination by the state of the defendant and his witnesses is not such an error as would warrant this court in reversing the case.

This court feels constrained to say that the cross-examination by the state was not necessary and may have to some extent influenced the jurors in arriving at their verdict, and possibly influenced them to the extent that they imposed a greater punishment on the defendant after they found him guilty than they would have done had not the court permitted the evidence brought out in the cross-examination of the defendant and his witnesses complained of to go to the jury.

The defendant complained that the county attorney in his closing argument to the jury committed reversible error. With this contention we cannot agree.

Nearly all the statements of the county attorney complained of by the defendant, when objections were interposed, were sustained by the court. The record is silent as to whether the defendant asked the court to advise the jury not to consider the argument of the county attorney complained of; but as the court sustained most of the objections of the defendant, we do not think the argument prejudiced the right of the defendant or prevented him from having a fair and impartial trial.

An examination of the record shows the instructions of the court correctly advised the jury as to the law applicable to the facts.

This case as shown by the record was brought on by a picnic for negroes, attended by both the deceased and the defendant, the defendant being in control of the picnic and supposed to look after and keep order during the nights of the picnic.

When the testimony is analyzed, there is a great conflict. The state’s witnesses swearing to one state of facts, that after Son Taylor had left the crowd where the deceased shot at him, two or three times, the defendant in this case came up and reached across the arm of a witness named Reed, who was holding the deceased, and shot the deceased who fell back, and the defendant shot two more shots into his body while deceased was laying on the ground. The gun the defendant used was a larger caliber than the one the deceased had used in shooting at Son Taylor. Although the eyewitnesses differ in their statements, all the witnesses state that the last three shots fired, which were fired by the defendant, the gun made a louder report than the first shots that were fired by the deceased, when he was shooting at Son Taylor. A witness for the defendant, Mr. Claire, testified he lived near the scene of the trouble and sometime in the early morning after he had left the picnic grounds, he was awakened by parties coming to the well to get water, and later he heard six shots. He testifies that the first three shots made a louder report than the last three, contradicting the state’s witnesses upon that question.

Other colored people who were at the scene of the shooting testified for the defendant and claim that when the defendant came up to where the deceased was and cautioned him to behave himself, the deceased called the defendant a vile name and told him he would kill him and fired one shot at the defendant before the defendant drew his pistol.

The jury by its verdict, finding the defendant guilty and assessing his punishment at 60 years, seem to have believed the witnesses of the state and disbelieved the witnesses for the defense.

No human mind can harmonize the conflict in this testimony; and it is seldom that a record discloses as great a conflict as is disclosed by this record.

This court has passed upon the sufficiency of the evidence so often that it seems useless to cite authorities. Beginning with the early opinions and coming on down to the present time, it has repeatedly held that where the evidence and the reasonable and logical inferences and deductions to be drawn from it are sufficient to convince the jury beyond a reasonable doubt of the guilt of the defendant, this court will not disturb the conviction for insuffciency.

Section 3062, O. S. 1931, 22 Okla. St. Ann. § 834, in part reads as follows:

“The questions of fact are to be decided by the jury.”

In Adams v. State, 54 Okla. Cr. 363, 21 P. 2d 1075, in the first paragraph of the syllabus this court said:

“Conflicting issues of fact are for the sole determination of the jury. A conviction will not be disturbed on appeal because of conflicts in the evidence, if the evidence adduced reasonably tends to support the verdict and judgment.” Pickett v. State, 35 Okla. Cr. 60, 248 P. 352; Underwood v. State, 36 Okla. Cr. 21, 251 P. 507, 508; Campbell v. State, 23 Okla. Cr. 250, 251, 214 P. 738; Choate v. State, 37 Okla. Cr. 314, 258 P. 360; Mayse v. State, 38 Okla. Cr. 144, 259 P. 277; Humberd v. State, 56 Okla. Cr. 23, 32 P. 2d 954; Coats v. State, 56 Okla. Cr. 26, 32 P. 2d 955; Bond v. State, 53 Okla. Cr. 224, 11 P. 2d 200; Kisselburg v. State, 56 Okla. Cr. 46, 33 P. 2d 236.

Without citing further decisions of this court, we hold that this court will not disturb the verdict of the jury on the ground that the evidence is insufficient to sustain it.

There are many other errors assigned by the defendant; but upon careful study and consideration, they are without merit.

In view of the conflict in the testimony and the manner in which the witnesses testified, and in view of the further fact of the cross-examination of the defendant and his witnesses and the argument complained of by the defendant of the county attorney we believe the punishment inflicted upon this defendant is excessive and should be modified; that the punishment of 60 years in the penitentiary of the defendant in this case should be modified from 60 years to 20 years in the penitentiary, and as modified the judgment is affirmed.

DOYLE, P. J., and BAREFOOT, J., concur.


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    Ex parte R. D. SUTTON.
    No. A-9616.
    April 21, 1939.
    (89 P. 2d 999.)
    H. J. Mackey, of Oklahoma City, for petitioner.

      Mac Q. Williamson, Atty. Gen., and Jim Gowdy, Asst. Municipal Counselor, and Jack Spivey, Police Atty., both of Oklahoma City, for the State.
   BAREFOOT, J.

Petitioner has filed in this court an application for writ of habeas corpus. A rule to show cause was issued and response to the petition was filed by the chief of police of Oklahoma City, and the application was heard upon its merits, and submitted, and briefs were to be filed. Respondent has filed brief but none has been filed by petitioner.

The record reveals that petitioner was arrested and charged in the police court of Oklahoma City, Okla., with the crime of being drunk in a public place. The complaint filed against petitioner was as follows:

“* * * that on the 26th day of March, 1939, in the city of Oklahoma City, in Oklahoma county and state of Oklahoma, one R. D. Sutton, did then and there unlawfully and contrary to the Ordinances of the city commit the offense of drunkenness in the public place to wit; (Written in ink) 800 block N. Robinson.”

Petitioner appeared by counsel and his case was tried in the municipal court of Oklahoma City, where he was found guilty, and a fine of $10, and $1 cost was assessed against him. In default of payment of such fine and cost, he was committed to the city jail, and then sued out a writ of habeas corpus in the district court of Oklahoma county, and when the same was denied, he made application for a writ of habeas corpus in this court.

Petitioner’s contention is that at the time he was tried in the municipal court, the complaint contained the words, “drunkenness in a public place,” and did not contain the words, “800 block N. Robinson,” which last words, it is contended, were written into the complaint when the writ was sued out in the district court. Petitioner contends that by reason of the above facts that said complaint does not charge him with the commission of any crime known to the law, and was not sufficient to give the court jurisdiction to render judgment and sentence.

Two questions arise with reference to the above contention :

(1) Is the complaint sufficient, and;

(2) If the complaint was not sufficient, and was indefinite and incomplete, is applicant entitled to relief by habeas corpus?

In the first place, it is well recognized that strict rules of pleadings as applied to indictments and informations are not applied to complaints for violations of municipal ordinances. The general rule is that the complaint before, a municipal court for violation of a city ordinance must only aver with reasonable certainty all material facts necessary to be proven to warrant a conviction. To the response a copy of the complaint is attached. It alleges:

“* * * That on the 26th day of March, 1939, in the city of Oklahoma City, in Oklahoma county and state of Oklahoma, one R. D. Sutton, did * * * contrary to the ordinances of the city commit the offense of drunkenness in a public place.”

While it would have been better practice to have further alleged the exact place if it was known, yet it was not necessary to so state for the reason that drunkenness “in the city of Oklahoma City,” provided it be proven that the drunkenness was in a “public place” was sufficient. It made no difference where it was, provided it was “in Oklahoma City,” and was in a “public place.”

In the county courts where an information is for keeping a place for the unlawful sale of liquor, or maintaining a liquor nuisance, or a similar offense, or if such place is to be abated as a nuisance, it should be described with particularity, but where the prosecution is against the person only, and the only question presented is the personal guilt of the defendant, a particular description of such place is unnecessary. State v. Wheeler, 38 N. D. 456, 165 N. W. 574; State v. White, 21 N. D. 444, 131 N. W. 261; State v. Butler, 85 Kan. 802, 118 P. 877; 33 C. J. 717.

In the second place, this application shows that the defendant was present in the municipal court and was represented by counsel. No demurrer or motion was interposed to the complaint on file. A plea of not guilty was entered. No attempt to appeal the case was made, but a writ of habeas corpus was sued out, asking for the outright release of defendant.

In the case of City of Cincinnati v. Schill, 125 Ohio St. 57, 180 N. E. 545, 546, the Supreme Court of Ohio, says:

“This court has always held, and continues to hold, than an accused person is entitled to be fairly informed as to the nature of the complaint made against him. Any other holding would forestall an intelligent defense; but if an accused person feels that the charge filed against him is vague, indefinite, and uncertain, and that he is prejudiced thereby, he must not enter his plea, sit smugly through his trial, and complain for the first time by the interposition of a motion in arrest of judgment — and this is especially true where the accused is charged by affidavit with the violation of a municipal ordinance, which affidavit charges the offense in the exact words of the ordinance.”

This decision was upon an appeal and was not asking for an outright release by habeas corpus. Dennis v. Town of Walnut Grove, 157 Miss. 797, 128 So. 557.

This court has often held that on habeas corpus it will not look beyond the judgment and sentence of any court of competent jurisdiction as to mere irregularities of procedure, or errors of law over which the court had jurisdiction. The writ of habeas corpus can not be used to perform the office of a writ of error on appeal, and should be limited to cases in which the judgment and sentence of the court attacked is clearly void. Ex parte Rupert, 6 Okla. Cr. 90, 116 P. 350; In re Talley, 4 Okla. Cr. 398, 112 P. 36, 31 L.R.A., N. S., 805; Ex parte Lair, 29 Okla. Cr. 282, 233 P. 789; Ex parte Hollingshead, 24 Okla. Cr. 131, 216 P. 486.

We do not think the judgment and sentence entered in this case was void, and for the reasons stated, the writ will be denied and petitioner remanded to the custody of Granville Scanland, chief of police of the city of Oklahoma City, Oklahoma, until the fine and cost in the case against him are fully satisfied.

DOYLE, P. J., and DAVENPORT, J., concur.


author: DAVENPORT, J.

text:
    B. C. CONNER v. STATE.
    No. A-9552.
    April 21, 1939.
    (89 P. 2d 991.)

      Bond & Bond, of Duncan, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   DAVENPORT, J.

The defendant, B. C. Conner, was by information charged with the larceny of one animal of the bovine species, a bull, belonging to J. W. Ardrey, was tried in the district court of Stephens county, convicted, and sentenced to serve a term in the state penitentiary of five years. Motion for a new trial was filed, considered, overruled, exceptions saved, and the defendant has appealed.

J. W. Ardrey states:

“I live 20 miles east and three miles south of Marlow, engaged in farming. About the 13th of October, 1937, I was the owner of a bull, a white faced bull. The bull was not in good shape, weighed about 600 pounds, would be my guess, kinda’ pale red, white faced bull, and didn’t have any horns, had a ‘Y’ brand run on it. I last saw the bull on the 6th of October, 1937. At that time he was there around the place with my cows. When I missed him I began searching for him; on the 18th day of October, 1937, I heard of him. He was supposed to have been seen on the 12th. I never did find the bull. I went to Oklahoma City, but I did not find him alive. I found the hide of the bull in a hide house there in Oklahoma City. It was known as the Gruendler Hide House. Brooks Hervey and my boy was with me, and also Mr. Jones. We found a record where he had been sold to the butcher. We went to the hide house, and the hides was removed by some negroes into stacks. I examined each hide as they pitched them out. I watched for the flesh marks on the hide. The hide, here, is the hide we found in the hide house. I identified it as the hide off my bull. I examined it first for flesh marks. Yes, sir, this is the hide that came off my bull. The negroes handled about 437 hides before they came to this one. This bull of mine was darker in front, and had a little white spot, here, by his shoulder, and a little white spot back there (indicating). He was a bull I had raised. The hide at the time we found it was more pliable than it is now. It was stretched out, the brand kinda’ like this (pointing it out to the jury), Right there is the brand. At that time the hide was soft. I have used that brand for about twelve years. I placed the brand on the left side behind the left shoulder of the animal, and that is where this bull was branded. He was about six or eight months old when he was branded. He was branded at Jess Gann’s. Jess run the brand on him. My son and several others were there at the time. Mr. Gann was also branding some of his cattle. I did not give any one permission to take that bull away from my premises, nor did I give any one permission to take it to Oklahoma City.”

On cross-examination the witness stated in substance the same facts that he had stated on his direct examination.

Bryant Ardrey, his son, stated that he was twelve years of age, lived with his father, that he was in the eighth grade in school, he knew the bull his father had raised, and in substance stated that he went with Mr. Hervey and his father to the hide house where they located the hide which he claims, and the hide which had been taken from the bull of his father’s that was missing. The hide was soft at the time they saw it. He also testified as to the fact of the bull being branded by Mr. Gann, and identified the hide taken from the hide house as belonging to his father’s bull.

Earnest Ruth, testifying on behalf of the state, stated:

“I live 21 miles east of Marlow, about 100 yards off the highway. I know Mr. Ardrey. I live about two miles from Mr. Ardrey northwest, I mean southwest. I know Buster Conner. He lives northwest of me. It is a mile north of where I live, where you turn to go towards Buster Conner’s place. Going from my place to Buster’s, I go a mile north and then back west. On the 12th of October, 1937, I was pulling bollies just west of the section line. I fixed the day, because I was expecting to go to work on the road, and I noticed the calendar, and wanted to see how long I had to pull bollies, and I noticed the calendar, and it was the 12th. I saw a bull about 4:00 o’clock in the afternoon of the 12th of October, 1937. He came to our place with our cows. When our cows went into the pasture he tore through the stalk field. I heard him bawling; I looked over there; I couldn’t tell whose bull it was. I saw Mr. Ardrey in a few days. It looked something like Mr. Ardrey’s bull. I never saw the bull after that afternoon. I told Mr. Ardrey a few days after that where I had seen the bull. I live around two miles from Buster Conner’s; but across the section line straight across, it would be about a mile and one half. When I saw the bull he was coming from the west. I live one mile from the Stephens county line, in Stephens county.”

On cross-examination the witness stated he could not tell whose bull it was, that when he first saw the bull he was on the main highway, “The last time I saw him, he was going east.”

Cleo Ruth, testifying for the state, stated that he was 20 years of age, living in the Burrows High neighborhood.

“I know J. W. Ardrey. I know Buster Conner. The road Buster travels coming down to the section line is just west of our place. I was pulling bollies that afternoon with my brother Earnest. The way I fix the date, my brother was supposed to go to work the 20th. We were looking at the calendar that day, and it was the 12th. We were pulling bollies about a quarter of a mile from the highway. One of our cows had been missing, and I saw her coming down the road, and I saw the bull with her, and I called my brother’s attention to that fact at the time. I took it to be Mr. Ardrey’s bull. I have never seen that bull since that afternoon.”

Brooks Hervey, testifying for the state, stated:

“My name is Brooks Hervey. I am sheriff of Stephens county. Mr. Ardrey came to my house and talked to me about a bull that he had lost or had disappeared. I went with Mr. Ardrey to Oklahoma City; I made three trips. I was at the hide house with Mr. Ardrey and his son when the hides were examined. They moved something like four hundred or more before they came to a hide that Mr. Ardrey identified by the flesh marks and brand mark as being the hide off his bull.”

Several documents, including the truck waybill and the document purporting to be signed by B. C. Conner at the time the bull was delivered to the stockyards and other documents that the defendant had signed at different places on legal documents, were exhibited to B. B. Hickman, who is admitted to be qualified as an examiner of questioned documents, and Mr. Hickman, after carefully examining the different- documents presented to him, and after having taken the most of them through his laboratory where he had the signatures enlarged, testified positively that the signatures on the papers at the stockyards, in his opinion, were the same signature as B. C. Conner’s in the documents presented for identification.

The foregoing is the substance of the testimony for the state.

The defense of the ■ defendant is in the nature of an alibi.

Mrs. B. C. Conner, wife of the defendant, testifying for the defendant, stated that she and B. C. Conner had been married nearly 12 years. Buster did not go to Oklahoma City on the night of the 12th of October, 1937. He was never away from home after his father got sick. His father was taken sick on the 26th day of September and died on the 8th day of October, and was buried on the 9th. Buster did not leave home for several days after his father was buried. He was there every night for at least a week after his father was buried.

On cross-examination the witness stated Buster hauled cattle to the stockyards pretty often in the fall. He did not take cattle often to the stockyards in Oklahoma City to sell.

“We had cows he carried up in the fall. I do not know the date he carried them; I think along in August, he carried some up there. I do not know the exact number. I do not know whether he carried any cattle in July, September or November. Buster was not away from home at night during the month of October. I fix the time about the 12th or 13th of October, Buster was at home by the fact that his father died, and was buried on the 9th, and he did not leave for several days and nights after the 9th.”

Mattie Walker testified for the defendant and stated that she knew the defendant and his wife, that the defendant’s father was buried on October 9.

“I went to the defendant’s home the 13th of October to get Mr. Conner to take me to a doctor. It was about 7 or 8 o’clock in the morning of the 13th. Mr. Conner was at home. We were having some rainy, smoky weather. It had rained the day before all day, on the 12th. He used his pick-up and took me home when I got back.”

On cross-examination the witness stated that:

“Buster is no relation to me. His father married a niece of my father’s. It was about the 13th day of the month, because I wrote a check that day. I remember distinctly that I gave the doctor the check on the 13th.”

J. P. Southern was called as a witness for the defendant and stated that he lived in the northwest corner of Stephens county; had known the defendant about 23 years; knew the defendant’s father.

“I live just north of Buster’s home, about a quarter of a mile. His pick-up sets on the north side of Buster’s home, and I could see it from my place. I did not miss the pick-up. The exact dates I do not know. I did not keep up with the dates. After his father’s death it was there every morning and night, something like a week or two, all the time; every time I looked over there I could see it sitting there. I could not see it after dark. I saw the pick-up there on the 13th. I do not know the exact hour, but all through the day if I looked over there.”

Joe Estes testified for the defendant as follows:

“I live 20 miles east of Marlow. I know B. C. Conner; Buster they called him. I have known him 12 or 15 years. I have been in jail up here for driving a car without a license. I remember the occasion of Mr. B. C. Conner’s father dying. I live about a quarter of a mile from defendant B. C. Conner, and I was over there the next day after his father’s death. I went over there with Mrs. Walker. She wanted Mr. Conner to take her to the doctor. I was over there when she was there. It had rained the day before, on the 12th. I saw Mr. Conner the afternoon of the 12th. We had taken my father down to the school house. This was along late in the afternoon. Mr. Conner brought me back home, and then went on back to his home. I do not know whether he went anywhere else that afternoon. I did not teU the officers when they questioned me that I was pretty full, and did not remember what happened. I told the officers about Buster and I going down to the store.”

A Mr. Myers, testifying for the defendant, stated:

“I live 20 miles east and two miles south of Marlow. I have lived there about 9 years. I know Pete Ardrey. I have known him about 5 years. I was at Gann’s when the animals were branded. They put a ‘Y’ brand on a bull about 6 or 8 months old. I helped do the branding. We branded a ‘Y’ on a whitefaced bull with a little white on the back of his neck. I did not notice any white on his back.”

The witness examined the hide and stated:

“There is a little difference in the marks on the hide, and the bull we branded. Here’s a white spot — wasn’t no white on Ardrey’s bull. Mr. Ardrey’s bull did not have any white on its back. I fed him several times. He run with the Gann’s cattle quite a bit. During the time I fed him, I did not see any white spot on his back.”

On cross-examination the witness stated:

“I am not related to the defendant Conner. I am his brother-in-law now. I married his wife’s sister. This bull was branded sometime in May, and I would judge it was about 6 or 8 months old at the time. We put a ‘Y’ brand —used a branding iron. This branding iron did not have the ‘Y’ on it, They had to take the iron up and stick it ip another place in order to make the ‘Y.’ Jess Gann’s brand is a T.’ I can’t find anything on the hide to compare with the brand we put on it. There wasn’t any white marks on the back of this bull — a little white on the shoulder.”

Homer Robertson, testifying for the defendant, stated:

“My home is 21 miles east and two miles north and two and one-half east of Marlow. I have lived there 16 years. I came in from Western Texas on the 13th of October at noon. I left Texas at 12 o’clock on the 12th and got home on the 13th. Coming back it rained straight down, raining all the way from Texas to my home, slow drizzling rain from Texas to 20 miles east of Marlow. The roads were muddy and slick.”

Joe Conner, testifying for the defendant, stated:

“I am a half brother of the defendant. I live about a quarter of a mile east and a little north from him. I know his pick-up. I looked at the tag on the pick-up this morning. The license number is 669-562. This is the tag number that was on the pick-up in October, 1937. After my father’s death on the 8th of October, 1937, I was back and forth to Buster’s home practically every day for I would say 15 days. I saw Buster at home every day I was there.”

On cross-examination the witness stated:

“My address is Ttoute 1, Foster, Oklahoma. Buster was at home during the 12th, 13th, and 14th. I can identify the tag number, because I had seen it every day, and wrote it down so that I would be sure of having it correct. I hauled some cattle to Oklahoma City. I usually hauled Mr. Southern’s cattle up there, and sold them to Jake Simms. Jake grew up in Garvin county.”

J. W. Ardrey was recalled by the defendant for further cross-examination and stated:

“The brand we put on the bull, from the fork down to the end was probably three or four inches. The prong was probably three inches. I know Jake Simms; have known him since I was a boy. He was down around his brother’s who lives within a half mile of me.”

■ Cleo Ruth was recalled by the defendant for further cross-examination:

“I picked bollies on the afternoon of the 12th of October, 1937. It was pretty weather. It hadn’t rained out where I was, on the 12th.”

The defendant, B. C. Conner, testifying in his own behalf, stated:

“I live about 21 miles east of Marlow. I have lived there 33 years. My father died on the 8th of October, 1937; was buried on the 9th. I was not in Oklahoma City for several days after my father’s death. I was practically around home all the time. The number of the tag given by the witness is the number of the tag that was on my pick-up during the month of October. I did not steal Mr. Ardrey’s bull, nor did I haul the bull to Oklahoma City on the 12th or 13th. I never handled the bull. I just saw him down at Gann’s when they were branding him as a calf. I was not in Oklahoma City, and did not go to the stockyards on the night of the 12th or morning of the 13th. I did not know anything about the taking of Mr. Ardrey’s bull. Mrs. Walker came to my house on the 13th. It had practically been raining all day and the day before. Mrs. Walker wanted me to take her to the doctor. I did not take her, but told a boy living on the place over there, and I got him to take her. His name was Estes. She came to my house about 7:00 or 7:30 in the morning. I never saw the waybill that was introduced here until the day of the preliminary hearing. I did not fill it out, nor did I write what is on the waybill.”

On cross-examination the witness stated that he had served a term in the federal penitentiary or jail for violation of the prohibition laws.

“I have known Jake Simms at least 3 years tolerably well. I did not know him very well up until 3 years ago. I have been buying and selling a few cattle at Oklahoma City for the past 3 or 4 years. I have sold some of the cattle to Jake Simms, but not all of them. I did not go to Jake Simms or the bank to find out whether or not the check had been cashed. I had no idea how to start in order to locate the man. I knew the man, who works around Jake Simm’s commission company. I do not have any of these people around there as witnesses. I knew that Mr. Ardrey had a white faced bull. I have not seen the bull since he was branded. I didn’t do anything on the 13th of October, 1937. I took Mrs. Wallace home for one thing. I could not say whether I slept or not. There might be people out in that neighborhood who could imitate my signature, but I do not know any of them that can. I never had any white faced cows or steers either.”

Exhibits 4, 5, and 6 were introduced for the purpose of the signatures only, and the defendant admitted that his signature was on each of them. “I signed the appearance bond for the court.”

The signature on the state’s exhibit 9 was introduced in evidence. The defendant admitted signing the exhibits that were identified carrying his signature, to everything, excepting the papers at the stockyards which he claims he did not sign.

On redirect examination the defendant stated that he came along the section line road on the 12th, and that he did not see any one pulling bolls on that date, for the reason that it had been raining all day. “A school teacher came over and helped me out of the ditch.”

Mr. Pierce, testifying for the defendant, stated that he helped get Mr. Conner out of the ditch, but he could not remember the date, except that it had been raining, and that one of the school buses got into the ditch.

The foregoing is the substance of the testimony for the defendant.

Brooks Hervey was recalled in rebuttal and stated that about that time or shortly thereafter he made the trip to Oklahoma City with Mr. Ardrey. He went out in the neighborhood and tried to locate the defendant, B. C. Conner. The first time he went out was about the 20th of October, 1937, and did not find him.

“I inquired for him, but did not find him on the 21st when I was out there. When I was in the neighborhood, Mr. Estes told me and Mr. Waldrep that he did not know anything about any cattle. He said he was dead drunk. I often go to the country, looking for parties, and do not find them. On the 20th I was looking for Joe Estes. I did not go to Buster’s on the day I got Joe Estes. I sent Buster word. I told his wife that he could not get away — better come on in. I did not go to Conner’s house the morning I went out for Joe Estes. Mrs. Conner said he was gone. She told me he had gone to El Reno.”

B. C. Conner was recalled for further cross-examination and identified his signature on a note which was handed him.

B. B. Hickman was recalled and identified more of the signatures for the defendant and stated that he had compared them with the witness’ signature on the waybill and in his opinion the same party who wrote the signature on the waybill wrote the signature on the other exhibits.

The defendant has assigned 5 errors which he alleges the court committed in the trial of his case, and which he deems sufficient to warrant this court in reversing the same.

(1) Said court erred in overruling the motion of the plaintiff in error for a new trial.

(2) Said court erred in overruling the demurrer of the plaintiff in error to the state’s evidence when the state rested its case.

(3) The court erred in admitting evidence on the part of the defendant in error over objections of the plaintiff in error.

(4) Said court erred in refusing and ruling out competent and legal evidence offered by the plaintiff in error.

(5) Said court erred in overruling and dénying plaintiff in error’s motion and application for a continuance.

The defendant next urges and insists that the trial court should have sustained his motion for a continuance for the reason set forth in the motion. The record shows that the witness for which a motion for continuance was made was in the city of Duncan the day prior to the trial, and after a subpoena had been served on him and he had a conversation with the sheriff as to whether or not he should go on to Texas or attend the trial. There was no showing of sufficient diligence to warrant the court in continuing the case.

The defendant also complains of the action of the court in forcing him to trial after his attorney that had been representing him for sometime withdrew from the case the day before the case was assigned for trial, and that he did not secure counsel to defend him until the morning of the day the case was set.

Trial courts should be careful to see that the defendant is accorded all rights preparatory to his trial, and where it is shown that his counsel that had been representing him withdrew from the case, requiring the defendant to procure other counsel. In all fairness it would seem that the court in the exercise of its sound discretion, if he does not continue the case for the term, should give the defendant and his counsel a few days’ time to properly prepare for trial. It is passing strange that reputable counsel will withdraw from the case the day before the case is set for trial. If there is any professional or legal reason why counsel should withdraw from the case of the defendant he had been representing for sometime, counsel should notify the defendant a sufficient length of time before the day the case is set for trial that he intends to withdraw, and advise him to make preparations to have counsel ready on the day of the trial to defend him, and not wait until the day before the case is called for trial.

The defendant in his argument discusses two of the assignments in his petition in error.

First, the defendant complains of paragraph 11 of the court’s instructions which is as follows:

“You must consider these instructions in their entirety, you have no right to consider any part or portion of these instructions to the exclusion of any other part or portion thereof.”

The defendant relies on Hobbs v. State, 9 Okla. Cr. 598, 132 P. 822, to sustain his position that the instruction deprives the defendant of a fair and impartial trial, and that the instruction was misleading to the jury.

The instruction given by the court which the defendant complains of is not in the exact language of the instructions given by the court in Hobbs v. State, supra. In the Hobbs case the court told the jury: “You are to consider these instructions as a whole, and not be bound by any particular instruction or part of an instruction.”

In this case the court’s instruction does not limit the jury, and, as we interpret the instruction, it does not eliminate the question of reasonable doubt, and does not deprive the defendant of any of his constitutional rights. The instruction complained of is the usual instruction given by the trial court, directing the jury that in the consideration of its verdict, it must consider all the instructions together and not single out any part or portion of any instruction to the exclusion of any other part or portion of an instruction. The court did not err in giving the instruction complained of.

There is nothing in the record to show that the trial court abused its discretion in refusing to grant time for the new counsel defending, to prepare the case for trial. It is difficult for counsel, who has not gone over the testimony of the witnesses in the case, to immediately go to trial, and properly defend. From examination of the record this court cannot say the trial court abused its discretion, but we feel constrained to say that members of the bar of this state, when they have been employed in a case to defend, if they expect to and are going to withdraw from the case, they should notify the party charged a sufficient length of time to secure other counsel and prepare for trial.

The next and only question to be considered by this court is the question of the sufficiency of the evidence. The state relies on circumstantial and expert evidence. The prosecuting witness J. W. Ardrey was the owner of a male calf of the bovine species. The defendant in this case lived in the same neighborhood, near the prosecuting witness. On or about the night of the 12th of October, 1937, this bull yearling disappeared from the neighborhood where it had been raised. The prosecuting witness missed the bull, and began looking for him, but could not find him in the neighborhood. Later on he came to Oklahoma City, and went to the packing plant, and found where a bull, on the 13th of October, 1937, had been brought to the stockyards by a party who, when he signed the waybill, signed B. C. Conner, the same initials and name as the defendant in this case. This party directed the man in charge at the time he brought the bull in, to consign the bull to Jake Simms who was engaged in the commission business, buying and selling stock, at the stockyards. The prosecuting witness, together with the sheriff of the county and his son, learned to whom the bull had been sold, and went to the party that had bought it, and from him learned that the hide had been sold to a hide house here in the city of Oklahoma City. The manager of the hide house had several hundred hides packed down preparatory to curing, and had his force lift the hides out one by one, and after something like 400 hides had been moved, they came to a hide the prosecuting witness identified as in his judgment being the hide from his bull. The brand was also testified to.

In the trial of the case a witness by the name of B. B. Hickman was called and qualified as an expert on questioned documents. He examined the waybill on which had been signed at the packing plant the name of B. C. Conner. He also examined the signature on a chattel mortgage, a promissory note, and some other documents that the defendant admitted that he had signed. Hickman testified that he had compared the signature on the waybill, and the signatures that the defendant admits he had signed, and in his judgment the same man that signed the promissory note, the chattel mortgage, and the other papers, signed “B. C. Conner” to the waybill.

The testimony on behalf of the defendant admits that the defendant lived in the neighborhood where the prosecuting witness lived, and that he knew the prosecuting witness had a bull. The evidence shows that the bull had a letter “Y” run on his side, and a white face and had a white spot on the back of his neck. The defendant denied that he took the bull of the prosecuting witness, that he knew nothing about it, and did not sell it to the packing plant in Oklahoma City. Defendant denies that he had been to Oklahoma City for several weeks prior and after the date that it is alleged the bull was stolen. He called witnesses, one of whom testified that he lived a short distance from the defendant, and that his pick-up was on the north side of the defendant’s house both morning and evening for several days after the 9th of October, 1937, the day that defendant’s father was buried.

Several other witnesses were called who testified that on the morning of the 13th they were at the defendant’s house, and that he was at home;

In substance all the testimony of the defendant is in the nature of an alibi, and that defendant was at home and could not have been in Oklahoma City on the night of the 12th of October or the morning of the 13th of October, 1937.

The evidence of the state and the defendant is not in harmony. The circumstances and the comparison of the signatures if believed by the jury was sufficient to warrant the jury in returning a verdict of guilty against the defendant. The testimony of the defendant and the witnesses of the defendant if believed shows that the defendant was at another and different place than Oklahoma City on the night of October 12th and morning of the 13th of October, 1937, and could not have possibly been in Oklahoma City the time the evidence shows the bull was delivered to the yards of the packing plant.

The court’s instructions were as fair to the defendant as the facts shown would justify, and as fair to the defendant as they were to the state.

The evidence is conflicting and under our statutes, section 3062, O. S. 1931, 22 Okla. St. Ann. § 834, in part reads as follows: “The questions of fact are to be decided by the jury.”

In Adams v. State, 54 Okla. Cr. 363, 21 P. 2d 1075, in the first paragraph of the syllabus this court said:

“Conflicting issues of fact are for the sole determination of the jury. A conviction will not be disturbed on appeal because of conflicts in the evidence, if the evidence adduced reasonably tends to support the verdict and judgment.” Wilson v. State, 32 Okla. Cr. 139, 240 P. 155; Underwood v. State, 36 Okla. Cr. 21, 251 P. 507; Humberd v. State, 56 Okla. Cr. 23, 32 P. 2d 954; Coats v. State, 56 Okla. Cr. 26, 32 P. 2d 955; Kisselburg v. State, 56 Okla. Cr. 46, 33 P. 2d 236; Kimbrough v. State, 66 Okla. Cr. 66, 89 P. 2d 982.

We hold that this court will not disturb the verdict of the jury under the authorities herein cited for insufficiency of evidence.

Other errors are assigned by the defendant, but not discussed in his brief. After a careful examination, we find they are without merit.

There is nothing in the record to show that the defendant had not led an upright, honest life, and had been a good citizen prior to the alleged crime for which he has been convicted. His neighbors all speak of him as being a reliable, working man.

Considering the facts in evidence, the conflict of the testimony, and the circumstantial evidence introduced against the defendant, and the evidence of his witnesses as to his being at home the night or the early morning of the alleged larceny, and remaining at home for several days thereafter, it would seem that the punishment inflicted is excessive and should be modified, and that the ends of justice would be properly met by the modification of the sentence imposed on the defendant of 5 years to 2 years in the penitentiary, and as modified the judgment of the trial court is affirmed.

DOYLE, P. J., and BAREFOOT, J., concur.


text:
    BILL BYBEE v. STATE.
    No. A-9454.
    April 28, 1939.
    (90 P. 2d 38.)
    Joe Adwon and J. L. Gowdy, both of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, J.

Bill Bybee, the defendant in the trial court was by information charged with the possession of intoxicating liquor, was tried, convicted, and sentenced to pay a fine of $100, and to be imprisoned in the county jail for 60 days, and pay the costs, and has appealed.

Before the case was called for trial, the defendant, Bill Bybee, by his attorney, filed a motion to suppress the evidence secured by the search warrant for the reasons:

(1) That the application and affidavit for the search warrant and seizure was based on information and belief, and not positive facts.

(2) The description of the property is ambiguous, wrong, uncertain and indefinite, and could not be ascertained without violating the statutes and Constitution of the state.

Testimony was taken in support of the motion to suppress the evidence, and discloses the fact that the affidavit for the search warrant is a John Doe affidavit, and charges the defendant with the possession of intoxicating liquor on the lower floor of a brick building, located at 325 West Reno street, Oklahoma City, Oklahoma, known as the Belmont Cafe. On this affidavit a search warrant was issued which charges John Doe, whose full, true, and correct name is unknown, with the possession of intoxicating liquors at 325 West Reno street, Oklahoma City, Oklahoma, known as the Belmont Cafe.

The proof in support of the motion to suppress shows that the building searched was not located at 325 West Reno street, but was located at 323 West Reno street, a separate and different number to the number of the street alleged in the affidavit for the search warrant and the search warrant.

The motion to suppress was overruled, and the defendant reserved an objection.

The affidavit, after giving the number of the street where the building that was to be searched was located, also stated the place to be searched was known as the Belmont Cafe, shown in the search warrant and the affidavit. The testimony clearly shows that the number of the street given in the affidavit for the search warrant and the search warrant was not the correct number; but the testimony further shows that both the officers who went to the building to search it were familiar with the building and knew where the Belmont Cafe was located. And when they went to make the search, they found the defendant in the building known as the Belmont Cafe, notwithstanding an error was made in the number of the street on which the Belmont Cafe was located.

The testimony on the motion to suppress conclusively shows that the defendant was in the Belmont Cafe, and it was the Belmont Cafe building that the officers searched. It is also shown that the officers knew, without being given the street number of the house, where the Belmont Cafe was located, where the affidavit for the search warrant and the search warrant mentioned the number of the street, and also stated that it was the Belmont Cafe. The circumstances and error in giving the correct number of the street where the Belmont Cafe is mentioned, in the search warrant and affidavit would be wholly immaterial. Had not the Belmont Cafe been mentioned in the affidavit and search warrant, the error in the street number would have béen a fatal error, and this court would have held the court erred in overruling the motion to suppress.

The court did not err in overruling the motion of the defendant to suppress the evidence.

All the testimony shows that, in making the search, the officers found eight pints of whisky.

The defendant’s defense is that he had just gone to work in the building known as the Belmont Cafe; that he knew nothing about the whisky being there, and had no interest in it, and was only temporarily working there at the time the search was made.

Up until this time, it seems from the record, this defendant had borne a good reputation, and it is shown by the evidence of the officers making the search that they had never had him charged with any crime prior to this time.

The quantity of whisky found in the Belmont Cafe building was small. It is evident that the defendant is not in the whisky business generally from the quantity of whisky found.

After carefully examining the testimony in this case and the previous good reputation the defendant has borne, it is clear to this court that the punishment was excessive and should be modified from a $100 fine and 60 days in jail, to a fine of $50 and 80 days in jail.

As modified, the judgment is affirmed.

DOYLE, P. J., and BAREFOOT, J., concur.