author: BAEEPOOT, J.

text:
    DENNIS BAKER v. STATE.
    No. A-10178.
    May 5, 1943.
    (137 P. 2d 245.)
    A. G. Brewster, of Pryor, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   BAEEPOOT, J.

Defendant, Dennis Baker, was charged in the district court of Mayes county with the crime of assault with a dangerous weapon, was tried, convicted and sentenced to1 serve a term of two years in the State Penitentiary, and has appealed.

For a reversal of this case it is contended that the evidence offered by the state was insufficient to sustain the judgment and sentence; that the court erred in admitting incompetent, irrelevant and immaterial evidence; and that the court should have granted a new trial by reason of newly discovered evidence presented at subsequent motion for new trial. In defendant’s brief all of these questions were presented together, and will now be so considered.

The charge in this case arose by reason of the stabbing and cutting of Alex Fields, a full-blood Cherokee Indian, ivith a pocket knife, by the defendant, on the night of December 12, 1940.

From the record it is revealed that Alex Fields, a full-blood Cherokee Indian, went to the home of Charlie TeeHee, and present there were Charlie TeeHee, Gladys Sultiesky, Katie Fisher and Ned Downing, all full-blood Indians, and the defendant, Dennis Baker, and his wife, Pear] Baker . The defendant had gone to the home about 4 o’clock in the afternoon, his wife some hours later, and the prosecuting witness arrived about 8 or 8:30. All of the parties above named were witnesses for the state, with the exception- of the defendant and Ms wife, and Charlie TeeHee, who* did not testify. An interpreter was ■ used, and this of course does not malte the evidence as clear as it might otherwise be.

There was a direct conflict in the evidence between the witnesses for the state and the defendant. In an examination of the testimony of the witnesses for the state, it is necessary that one survey the whole of their testimony, and not the answer to some one specific question. The evidence of the four Indian witnesses for the state was that the defendant came toi the home of Charlie TeeHee in the afternoon, and his- wife came some time later; that Alex Fields came about 8 or 8:30; and that during the evening, about 10 o’clock, defendant and Alex Fields, the prosecuting witness, got into a fight in the house. That the defendant struck Alex Fields, several' of them testifying that they saw the knife in his handsi at the time, and that he was also- struck while lying on the floor. Others testified that they saw him with the knife in the yard after the difficulty, and he at that time threatened to cut them.

The record does not satisfactorily reveal how the fight started. The prosecuting witness testified that the defendant tried to borrow some money from him and tried to get him into a crap game, but that he refused, as he did not know how to' shoot craps. In the difficulty the prosecuting witness, Alex Fields, was cut and stabbed in three different places. He was cut in the side, and twice on the back. After being stabbed and cut, he remained for some time on his face, on the floor. Later a quilt was placed over him, and he remained there until the next morning. No one examined him or gave any attentions to his injuries. He went to his home about half a mile distant the following morning, and was then taken to. a hospital at Olaremore, and remained there for 30 days. All of the state witnesses testified that the prosecuting witness, Alex Fields, was stabbed and cut, and that they did not. see him drinking prior to the time of the difficulty.

Defendant and his wife left for their home immediately after the trouble. Defendant testified that the crap' game had been in progress and that he and all the Indians, with the exception of Alex Fields, were engaged in the game; that there was a fruit- jar of wildcat whisky, and that he and all the Indians were drinking prior to the time of the diffculty. He testified that he left the room, but heard his wife scream, and returned, and when he went back into the room the prosecuting witness was lying across his wife’s legs and pulling her hair; that he picked up a board and hit him, but that he at no time cut or stabbed the defendant with a knife.

His wife corroborated the defendant as to what occurred, and further testified that the prosecuting witness, Alex Fields, was drunk; that he stabbed and cut her with a knife; that he was pulling her hair and lying across her limbs and that she screamed and the defendant struck him with a board.

The witnesses for the state testified that they did not see any fight between the wife of the defendant and the prosecuting witness Alex Fields, nor did they at any time see any cuts or stabs on her. She did not tell the defendant that she had been cut or stabbed until after they had started home, and she washed the blood off her hand at the creek, and .wrapped it up with a part of her clothing. A physician testified to' her coming to his hospital on the night of December 12, 1940, and having her wounds dressed by a nurse, and to his attending her several days later.

From the above statement it will be noted that there was a direct conflict in the evidence of the state and the defendant. While there may be some apparent conflict in the testimony of the full-blood Indian witnesses, yet, taking their evidence as a whole, it presents an attack by defendant upon the prosecuting witness, and an unnecessary stabbing and cutting of him. Defendant contended that the prosecuting witness had a knife with which he cut the wife of defendant. It was the state’s contention that the prosecuting witness did not have a knife as he testified, and that he at no time cut the wife of defendant, and was at no time engaged in a difficulty with her.

It will be clearly evident that the jury in this case was in a much better position to judge the guilt of this defendant than is an appellate court. They saw and observed the witnesses on the stand, which gave them an opportunity to judge where the truth lay, and the verdict of the jury will not be set aside when it is sufficient to sustain the judgment and sentence

We have carefully examined the record with reference to the competency and relevancy and materiality of the evidence introduced, and do not find any substantial error in this respect. The court was very fair in his rulings as to the admission and rejection of evidence.

With reference to the argument of the county attorney, the record reveals the following proceedings:

“Mr. Brewster: We object to this argument, and ask the court to exclude it, and not only that, but to admonish the county attorney that this is improper argument. The Court: Gentlemen, the statement made by the county attorney that the defendant was a hardened criminal is not proper, and you will not regard that. It is for you to determine from the facts and circumstances in this case whether or not the defendant is guilty of the crime charged, and' that is really not proper, Mr. County Attorney. Mr. Mayor: I will refrain from that further, and I am sorry. The Court: The jury will entirely disregard that statement, and let the record show that the argument to which the defendant objected was in the opening argument of the county attorney for the state.”

From the above statement it will be noted that the court promptly instructed the jury not to consider the statement of the county attorney. The testimony had revealed that defendant had been convicted on previous occasions, the nature of the crime was not revealed. This was the reason for the statement made by the county attorney. We do not think the defendant was prejudiced by the statement, and especially in view of the action of the trial court in reference thereto.

Defendant filed a motion for a new trial, and after-wards filed two supplemental motions for new trial upon the ground of newly discovered evidence. Attached to the first motion is the affidavit of a number of witnesses with reference to the condition of the weather and the darkness on the night of the difficulty. This testimony was largely cumulative to the testimony offered on the trial of the case. In the second supplemental motion an affidavit is attached of the ivitness Charlie TeeHee, a full-blood Indian at whose home the difficulty occurred. The record reveals that the name of this witness was endorsed upon the information, but he was not used by the state. He was present at the trial. There is nothing in the record to show that any attempt was made by defendant to interview this witness, and find out what his evidence would be. Counsel knew that he was present at the time of the difficulty. There is nothing to show diligence on the part of the defendant to secure the evidence of this witness. If the testimony could be considered as newly discovered evidence, it would be very easy for a defendant in any case not to place a witness on the stand and then after a trial and conviction set up by affidavit what he would testify, and claim that it was newly discovered evidence. The law demands diligence on the part of the defendant, and the mere fact that defendant and his counsel considered that the witness was hostile to him should not keep them from talking with him, and especially is this true when the state did not use him as a witness.

It has often been held that where the newly discovered evidence is merely cumulative, or that due diligence has not been exercised, that a motion for' a new trial will not be granted on the ground of newly discovered evidence. It has also- often been stated, that the granting of this motion is largely in the discretion of the trial court. Weiland v. State, 58 Okla. Cr. 108, 50 P. 2d 741; Isom v. State, 55 Okla. Cr. 173, 26 P. 2d 952; Beaver v. State, 54 Okla. Cr. 49, 14 P. 2d 423; Devore v. State, 33 Okla. Cr. 403, 243 P. 999; Howard v. State, 23 Okla. Cr. 1, 211 P. 1065; McKissack v. State, 61 Okla. Cr. 65, 65 P. 2d 3239.

From an examination of the record, we cannot say that the court erred in refusing to grant a new trial. There is nothing that leads us to believe that a retrial would change the result. The judgment and sentence of the district court- of Mayes county is therefore affirmed.

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


source: Caselaw Access Project

author: JONES, P. J.

license: Public Domain

text:
    Ex parte C. R. SMITH.
    No. A-10261.
    May 5, 1943.
    (137 P. 2d 259.)

      Sid White, of Oklahoma City, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   JONES, P. J.

This is an original proceeding in habeas corpus filed by C. R. Smith to secure his relea.se from confinement in the State Penitentiary.

In the verified petition filed herein it is alleged that the petitioner was adjudged guilty of the crime of child abandonment in the district court of Oklahoma county on April 19, 1940, and sentenced to three years in the State Penitentiary, but that the execution of said sentence was suspended by the trial court.

That on May 16, 1941, the district court revoked the suspended sentence and had the petitioner committed to the State Penitentiary where he still remains.

That, the sole cause for the revocation of said order suspending sentence was the failure of petitioner ü> pay the sum of $20 per month for child support.

That on December 8, 1941, the petitioner tendered to the trial judge a bond, as provided by 21 O. S. 1941 § 855, and caused said bond to be approved and tendered said bond, together with the judge’s certificate of approval, to the Governor.

That said Governor refused to grant petitioner a parole in accordance with the statute because under the provision of said bond the sureties undertook a guarantee the payment of said sums so ordered for such support of said children for the term of said sentence rather than throughout the minority of said children.

Petitioner prays this court to direct his release from prison.

A rule to show cause was issued and a response to said petition filed in which it is alleged that:

“The petitioner stands; committed to the State Penitentiary pursuant to a sentence after revocation of an order suspending execution of said sentence, which judgment and sentence and order revoking suspension thereof were regular and duly imposed and ordered by said district court.
“That the execution of said sentence was suspended upon the condition that defendant would not violate any law of the state and that he would make proper provisions for his minor children as required by law. That defendant thereafter failed and refused to support and provide for said minor children, which failure and refusal of defendant was a violation of the laws of the State of Oklahoma and constituted, under the terms, of 22 O. S. 1941 § 992, ground for revocation of said order suspending the execution of said sentence.”

Upon the issues thus being joined, a hearing was held before this court and evidence was offered both by petitioner and respondent.

There is very little dispute as to the facts. The allegations of the petition, in so' far as same relate to the presentation and acceptance of a surety bond by the trial judge and the recommendation of the trial judge to the Governor that the petitioner be paroled, and the subsequent refusal of the Governor to issue a parole under the conditions set forth in the bond, were proved by petitioner. Likewise, it is established that the sentence of the petitioner was suspended in the first instance with the understanding that he would violate no law of the State of Oklahoma, with particular emphasis upon that part of the law which required petitioner, as the father of certain minor children, to make provision for their necessary food and 'clothing. That said petitioner violated the terms of his suspended sentence by willfully failing to make proper provision for his said minor children and that by reason thereof the trial court did enter a.n order revoking the suspended sentence.

It is not quite clear from the petition as to whether complaint is directed at the action of the trial court in revoking the suspended sentence. Under the facts, if such contention is being made, it may not be sustained for the reason that the trial court was justified in revoking the suspended sentence by reason of the fact that petitioner had violated the terms of said suspension by violating the law, to wit: failure to provide the necessities for his minor children in accordance with 21 O. S. 1941 § 852.

As to* the contention that it was mandatory upon the Governor to grant a parole under the terms of the statute upon recommendation of the trial judge and the approval of a bond by the trial court, we cannot agree. The statute itself does not purport ton make it mandatory upon the Governor to parole a person convicted under said section, but specifically provides that the Governor may parole said person after lie lias performed certain conditions. Tlie applicable part of said act reads:

“Upon conviction of any person, under the provisions of this Act, the Governor may, before or after sentence, parole said person upon the recommendation of the trial judge in whose court he was convicted, upon said person entering into an undertaking in the form provided by the judge of said court, with two or more good and sufficient sureties. * * *”

See State ex rel. Mitchell v. Swindall, 33 Okla. Cr. 210, 241 P. 456.

Under the provision of section 10, art. 6, Oklahoma Constitution, the power to grant reprieves, commutations, paroles and pardons is vested exclusively in the Governor. Any attempt on the part of the Legislature to infringe upon this right of the Governor or to delegate the same to a court, or other body would he unconstitutional. Such' a statute could have no more effect than to be a declaration of legislative policy which might be followed by the Governor or ignored by him. However, in the instant case there is no attempt in the statute to make it mandatory upon the Governor to issue a parole, and for that reason, under the express terms of the statute, the Governor, in the exercise of his discretion, had a right to refuse the parole if he thought the bond tendered by the petitioner ivas not in proper form or for any other reason. If the petitioner was desirous of availing himself of his opportunity to secure clemency from the Chief Executive, it was incumbent upon him to comply with the Governor’s orders.

For the reasons hereinabove stated, the petition for writ of habeas corpus is denied.

BAREFOOT, J., concurs. BOYLE, J., concurs, in conclusion.


text:
    CADILLAC BOOTH v. STATE.
    No. A-10141.
    May 12, 1943.
    (137 P. 2d 602.)

      Robert Burns, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Cadillac Booth, was charged in the conrt of common pleas of Oklahoma county with operating a motor vehicle upon a public highway for transportation of passengers for compensation without first having obtained from the Corporation Commission a permit; was tried, convicted and sentenced to pay a fine of $1,000, and has appealed.

For reversal of this case it is urged:

1. That the evidence is wholly insufficient to show that the defendant has violated any law.

2. That the court erred in allowing the county attorney to cross-examine defendant as to commission of other offenses.

This is another in the series of travel bureau test cases which this court has had to consider. In all of the cases which we have reviewed, there has been some difference in the manner of operation of the various defendants, but so far, in all of the cases including the instant case, the fundamental method of operation has been identical.

To support, the allegations of the information the state introduced the following proof:

Collier Hendricks, chief clerk in the Motor Carrier Division of the Corporation Commission, testified that neither the defendant, nor H. B. Edwards, the codefend-ant, nor1 the AAA nor AAAA Travel Bureau, had been issued a Class B motor carrier' permit, or any other ldnd of permit, by the Corporation Commission. He explained the showing of convenience and necessity which would have to be made by an applicant in order to secure a permit, and further explained that a metal identification plate is issued for each piece of equipment for each class of motor carrier indicating the class of carrier to whom it is issued. He further testified that if the Commission acts favorably upon the application that the applicant is required to file public liability and property damage protection in an amount based upon the seating capacity of the carrier.

Roy Bennett testified that on October 30, 1940, he went to the travel bureau operated by defendant in the Brown Hotel. The conversation had with the defendant 'on that occasion was as follows :

“Q. (By Mr. Daugherty, Asst. County Attorney) Telll us about that conversation? A. Well, he asked where I wanted to go and I told him to ‘Bakersfield, California’ and he said he didn’t think he had a car to Bakersfield that day but he had one to Los Angeles and I asked him how much it would be and he said $12.50 to Bakersfield or $10 to Los Angeles, and he said I could pay the $12.50 if I wanted to and that would buy me a ticket from. Los Angeles to Bakersfield. Q. Did he tell you what the ticket would be on? A. What ldnd of car? Q. Yes? A. No. I asked him what kind of car. I told him I didn’t want to ride in a jallopy and that I wanted good transportation and he said that he had two Mercury Eights on hand, or setting out in front, but he didn’t know whether one of them was going or not; but that it would be a good late model car. Q. Did you start on the trip? A. Yes; sir. Q. Who did you pay the money to? A. I paid $5.0(> to Mr. Booth. Q. Did you. pay anybody else? A. And I paid the driver $5.00. Q. Who was the driver? A. A fellow named Edwards, I believe. H. B. Edwards.”

He further testified that the defendant took him and two other passengers from the Brown Hotel to Southwest 29th street and May avenue in Oklahoma City and that they there transferred to the Edwards car. That each of them there paid in the defendant Booth’s presence the balance due on their fare. That Booth told the driver that two of them were going to California and the third man to Albuquerque, N. M. They were stopped at Ana-darko, the driver arrested and returned to' Oklahoma City.

S. D. Anderson testified that he was employed as a special agent by the Union Bus Station. That he was familiar with defendant’s business. That it was formerly known as ABC Travel Bureau, but that he had put up a new sign Avhich read “AAAA Travel Bureau.” That he had taken one trip Avith them for the purpose of learning their method of operation. That their fees varied according to' the distance the car Avould have to travel. That defendant has an office with two telephones. That he gets calls from parties who want to go to different places and the defendant tells them, what the fare avíII be, and if they desire to go he sends a private car out after them and then transfers them to the car which Avill transport the passengers to their destination. He admitted on cross-examination that he had had a. difficulty with tire defendant in Avhich he had struck defendant with his fist after the witness had arrested defendant west of El Reno for speeding.

The defendant testified in his OAvn behalf that he was not engaged in the transportation business, but that he was merely engaged in selling information or service to individuals Avho desired to travel across the country and were willing to share expenses with another driver. He specifically denied everything related by the witness Bennett which incriminated him in any way. On cross-examination the defendant admitted many convictions for violations of the law, most of them being convictions for violation of the prohibitory liquor laws. He admitted pleading guilty to. a violation of the statute under which he is charged in the instant case.

We think we have heretofore in several cases made a sufficient statement of the law pertaining to the so-called travel bureau business, so that there should no longer be any confusion in the mind of those who. are desirous of engaging in that business as to when they come within the prohibition of the statute. Herring v. State, 60 Okla. Cr. 449, 64 P. 2d 921; Herring v. State, 68 Okla. Cr. 32, 95 P. 2d 128; Hall v. State, 68 Okla. Cr. 367, 99 P. 2d 163; Hall et al. v. State, 68 Okla. Cr. 451, 99 P. 2d 166; Hudgins v. State, 75 Okla. Cr. 446, 133 P. 2d 231.

In many ways the case herein is stronger than the proof of the state in some of the above cases..

In Herring v. State, supra, 60 Okla. Cr. 449, 64 P. 2d 921, 924, it is stated:

“We are satisfied the state is without power to forbid or to make criminal the act of carrying of one or more persons as a special undertaking or single transaction, on a share, expense basis or for hire by an owner or driver of a motor vehicle. That is. to say, if an owner or driver of a motor vehicle shall desire to drive to another point within or beyond the boundaries: of the state and for such trip shall malte arrangements to take other persons with him on a share expense basis or for a fixed charge, his act would not be unlawful for such purpose. But where the undertaking is a business or part of a business or where he proposes to carry all persons indifferently who choose to employ him, he becomes a carrier within the terms of the statute. In such case he is engaged in a business which the state may regulate and control.
“In these modern days, the congestion of traffic of the highways, the enormous number of accidents with the great toll of death and injuries make restrictive regulation of the use of the highways imperative and has tended to make more liberal the decisions of the courts in upholding state legislation on the subject.”

For a discussion of the applicable part of the Motor Carrier Act here involved see 47 O. S. 1941 § 161 et seq. Hudgins v. State, supra.

The case for the prosecution depends entirely upon whether the defendant is guilty of .aiding or abetting a private carrier for hire. If the private carrier has vio-, lated no law, then, of course-, the defendant could not be guilty as his guilt rests in the fact that he participated by aiding and abetting a private carrier for hire.

An excellent brief has been filed in behalf of defendant and there is considerable merit to the contentions that he makes. Those authorities and the argument presented would be applicable if the proof had shown that defendant was merely furnishing information to cross-country travelers for a fixed fee, irrespective as to whether the party seeking the information was successful, in coming to terms with the driver of the private automobile traveling across the country. But the proof here goes far beyond that. The defendant himself and not the driver of the private automobile fixed the rate to be charged. His fee was o-ne-lialf of the fare paid by the passenger, which fare was determined solely by the distance to be traveled. A prospective passenger could call over the telephone and the defendant would instantly tell him the fare to any place sought by the traveler. It could be fairly deduced from, the evidence that there was a national system of which the defendant’s business was a part, because the witness Bennett testified that the defendant said the fare to Los Angeles would be $10 and that that city was as far as- Edwards’ automobile was going, but further told Bennett that if he would pay $12.50 for a ticket that arrangements would be made after reaching Los Angeles for him to be taken on to Bakersfield, his ultimate destination.

The defendant had an established place of business. He arranged the place at which the passenger would take the conveyance and it is evident that he proposed to furnish transportation to all persons indifferently who might make application to him.

The cases cited to support the contentions of defendant involve an interpretation and application of statutes regulating motor carriers which are not worded the same as ours. The Texas statute involved in Ex parte Martin, 127 Tex. Cr. R. 25, 74 S. W. 2d 1017, 1018, provides that the act shall not apply to- the owner of any vehicle “not engaged in the business of transporting persons for hire.”

In the- State of Washington, in order to- come within the provisions of the motor carrier act, the person must be operating a motor vehicle “used in the business of transporting persons * * * for compensation over any public highAvay.” Strickler v. Schaaf, 199 Wash. 372, 91 P. 2d 1007, 1008, 123 A.L.R. 226.

In Oklahoma a Class. B motor carrier not only includes common carriers engaged in transporting persons or property between fixed termini or over a regular route, but also includes private carriers for hire.

We think the contention of defendant that the county attorney erred in his cross-examination by asking him concerning other offenses which he had committed is without merit. That part of the cross-examination objected to concerned prior convictions which the defendant had sustained. When the defendant chose to testify he became subject to the same rules of cross-examination and impeachment as other witnesses and in this connection it was perfectly proper for the county attorney to question him concerning prior convictions for the purpose of affecting his credibility. James v. State, 64 Okla. Cr. 174, 78 P. 2d 708.

Despite the fact that the defendant has a bad criminal record, we do not think that the facts in the instant case are sufficient to justify the assessment of the maximum punishment. The facts are such that the defendant might have honestly thought that he was not violating the law. Since this is one of the test cases which was instituted before the rendition of our last opinion herein-above noted, we have come to the conclusion that the maximum fine of $1,000 assessed the defendant is excessive under the facts and should be modified to a fine of $100. Especially do. Ave think modification is in furtherance of justice by reason of the fact that the evidence against accused was secured and the prosecution started by hired agents of motor carriers who were competing Avith defendant’s business.

It is therefore ordered that the judgment and sentence of the court of common pleas of Oklahoma, county be and the same is hereby modified by reducing the fine from $1,000 to a fine of $100, and the judgment and sentence, as thus modified, is affirmed.

BAREFOOT and DOYLE, JJ., concur.


author: BAREFOOT, J.

text:
    G. L. BOATNER v. STATE.
    No. A-10153.
    May 12, 1943.
    (137 P. 2d 599.)
    A. IT. Ferguson, of Durant, and W. H. Gilliam, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess. L. Pullen, Asst. Atty. Gen., and W. L. Steger, Go. Atty., of Durant, for defendant in error.
   BAREFOOT, J.

Defendant, G. L. Boatner, was charged in the district court of Bryan county with unlawfully disposing of mortgaged property, was tried, convicted and sentenced to serve a term of three years in the State Penitentiary, and has appealed.

For a reversal of this case, it is contended:

1. That the alleged crime was not within the jurisdiction of the district court of Bryan county, Oklahoma.

2. That there was not sufficient evidence in the record to identify the cattle sold at Ft. Worth, Texas, as the cattle included in the mortgage.

The statute under which defendant was charged is section 1946, O. S. 1931, 21 Okla. Stat. Ann. 1941 § 1834, which is as follows:

“Any mortgagor of personal property, or his legal representative, who, while such mortgage remains in force and unsatisfied, conceals, sells, or in any manner disposes of such property, or1 any part thereof, or removes such property, or any part thereof, beyond the limits of the county, or materially injures or wilfully destroys such property, or any part thereof, without the written consent of the holder of such mortgage, shall be deemed guilty of a felony, and shall, upon conviction, be punished by imprisonment in the penitentiary for a period not. exceeding three years, or in the county jail not exceeding one year, or by a fine of not to exceed five hundred dollars : Provided, that the writing containing the consent of the holder of the mortgage, as before specified, shall be the only competent evidence of such consent, unless it appear that such writing has been lost or destroyed.”

The evidence reveals that the defendant, G. L. Boat-ner, who was a resident of Bryan county on September 6, 1939, on that date gave a chattel mortgage to the Citizens National Bank of Denison, Tex., to secure two notes:, for the total sum of |3,T56; that the property covered thereby consisted of 85 head of cattle, three mules and three horses, a particular description of which it is unnecessary to give. This stock was located at the home of defendant, in Bryan county, and the chattel mortgage was filed in that county, and contained the usual terms with reference to the removal, sale or disposal of property by the mortgagor without the written consent of the mortgagee.

The evidence revealed that when the mortgage became due in the fall of 1940 and was not paid, the bank had its representatives make investigation, and the only part of the property that could be found was. one cow and one calf, and three horses. This property was sold by the bank for the sum of $300, and applied on the indebtedness due.

The evidence further reveals that during the month of August, 1940, the defendant employed two drivers with trucks to convey about 48 head of cattle to the stockyards in Fort Worth, and that such cattle were sold by the Shirley Commission Company. The parties who* owned the trucks and transported the cattle testified to being employed by the defendant, and to going to his home and loading the cattle in the night, and delivering them at Fort Worth. The defendant accompanied the trucks to Fort Worth and conducted the sale of the cattle, but he did not return with them, stating to the drivers: that he was going to stay in Fort Worth for a day or so and rest up, and come home on a bus.

He did not return to his home in Bryan1 county, but was next heard of when he was arrested in the State of Arizona, where he was going under an assumed name. This was after a complaint had been filed against him in Bryan county, and a warrant for his arrest, had been placed in the hands of the sheriff of that county.

The evidence further reveals that the cattle delivered and sold at Fort Worth were in brands similar to> the ones covered by the chattel mortgage. There were other circumstances which the jury had the right to. consider, and which reasonably tended to show that the cattle disposed of by defendant were the identical cattle covered by the mortgage. The property was disposed of without the consent of the owner and holder of the note and mortgage.

The only evidence offered by defendant was five witnesses, who testified to his good character and reputation. The defendant did not testify.

The above statement of the evidence is a sufficient answer to the contention of the defendant as above: set forth. The mere fact that the cattle were taken from Bryan county and sold in the State of Texas would not, in our opinion, oust Bryan county of venue; nor would it prohibit a prosecution under the above-quoted statute.

In the case of Dobbins v. State, 40 Okla. Cr. 334, 268 P. 1116, the question of removing mortgaged property under the statute above quoted was under consideration. The evidence revealed that the- property was removed from Cotton county beyond the limits of the state, without the consent of the holder of the notes and mortgage, and this evidence was held sufficient to sustain the judgment and sentence.

A case directly in point, and which gives the reason for the rule announced, is a case from the Supreme Court of Kansas, State v. Gorman, 113 Kan. 740, 216 P. 290. In this case a chattel mortgage had been given on property located in Kansas, and the property was shipped to and sold in Kansas City, Mn. The court said:

“By objections to various rulings the defendant raises the most important question in the case: Whether a conviction under the statute cited can -rightly be had in any case where the mortgagor with intent to defraud ships mortgaged chattels out of the state and sells them there. It is our conclusion that within the meaning of the statute such conduct amounts to a disposal of the goods in this state, and that the offense is punishable in the county from which the shipment is made. The phrase ‘to dispose of is one of wide application, but in criminal statutes, especially when associated Avith ‘to sell,’ it has been held to involve a transfer of title or possession or destruction of the property to which it is applied. 11 C. J. 639; Scott v. State, 6 Ga. App. 332, 64 S. E. 1005, in effect quoted from in 18 C. J. 1281. In the case last cited a statute forbidding a cropper to ‘sell or otherwise dispose of’ a part of a crop without the consent of the landlord Avas held not to be violated by a removal of the property from one county to another in the same state. In the opinion it was1 said, however:
“ ‘It might be that for a cropper to' move any part of the farm products across the state line would be to dispose of it, as that would be a material interference with the landlord’s constructive possession, in that it Avould destroy his right to resort to those remedies which are proAuded by the laws of this state for the maintenance of his peculiar and superior rights in the property.’ 6 Ga. App. 334, 335, 64 S. E. 1006.
“The note to the text already referred to also- cites a Kentucky case in which a conviction Avas upheld under a statute making it a misdemeanor for the owner of a crop to ‘sell or dispose’ of it Avithout the Avritten consent of an agent selected to handle it under1 a pooling contract, the eAddence showing, that the defendant had shipped his crop to Cincinnati, where it was sold. In the opinion it was said:
“ ‘Indeed, the mere removal of the tobacco from Mason county by him without the consent of the selling agents and with the intent on his part to1 sell it without their consent, in violation of the pooling contract, was a disposal of it Avithin the meaning of the statute. The actual sale of the tobacco in Cincinnati was a mere incident or culminating act of the, transaction, furnishing-conclusive evidence of the fraudulent intent with which he removed the tobacco from Mason county. The Act of removal without the consent of the selling agents put it out of their power to grade or sell the tobacco as pro-Added by tlxe pooling contract, and, as tlxe removal of it by appellant was with the intent to sell it in violation of the pooling contract, he thereby unlaAvfully disposed of it, even before the act of sale, xvithin the meaning of the contract; and in so doing subjected himself to the statutory penalty. If appellant removed the tobacco from Mason county with the fraudulent intent to sell it himself without the consent of the selling agents of the pool and then gave it aAvav, threAV it into the Ohio river, or burned it, it Avould have been axi unlaAvful disposal of it AAdthin the meaning of the statute.’ Collins v. Commonwealth, 141 Ky. 564, 568, 133 S. W. 233, 234.”

The court quotes from State v. Rice, 43 S. C. 200, 203, S. E. 986, and State v. Haynes, 74 S. C. 450, 55 S. E. 118; and further oxx in the opinion states:

“In State v. Perkins, 112 Kan. 455, 210 P. 1091, the defendant was charged Avith fraudulently concealing mortgaged property. A discharge was asked on the ground that the evidence xvas insufficient for a conviction, the point being made that no concealment had been slxoxvn. In affirming the denial of the request this court, said: ‘The evidence tended to show that the defendant, after giving the chattel mortgage, left Douglas county, the county of his residence, took the automobile with him and Avent to Arizona where he was known by a.n assumed name given by him. That evidence was. sufficient to justify the jury in concluding that he took the automobile away from Douglas county to. conceal it Avith the intent to defraud the mortgagee.’ 112 Kan. 456, 210 P. 1092. That case is not absolutely parallel to the present, one, but the analogy is close, the defendant’s course in Arizona having been relied upon to characterize his conduct here, and tlxe inference being obvious that he did not physically conceal the car in Douglas county.
“For the mortgagor to take mortgaged chattels out of the state with a purpose to sell them there and keep! the proceeds, in our judgment, amounts to a violation of the Kansas statute in that it is a disposal of the property in. fraud of the mortgagee’s rights accomplished in this state. The fact of the subsequent sale and retention of the money is important as evidence characterizing the entire transaction, although not essential to a completed offense.

“Inasmuch as we hold the evidence to have shown the commission of an offense in Kansas, we have no doubt of its being punishable in the county from which the shipment was made, although another1 county was necessarily crossed before reaching the state line. The statute provides that:

“ ‘When a public offense has been committed, partly in one county and partly in another, * * * the jurisdiction is in either county.’ Cr. Code § 23 (Gen. Stat. 1915, § 7932).

“In behalf of the defendant it is urged that in order for such a provision to apply one of two conditions must exist:

“ ‘Either the offense must be divisible, and each part must be unlawful in and of itself, and committed at a different time and place, or it must consist of more than one act, each of which acts, or the effect of each, must constitute an unlawful element of the offense, without the presence of which the offense could not be consummated.’ 16 C. J. 196.
“We discover no • difficulty in saying, if necessary, that the defendant’s disposal of the mortgaged property by getting it out of the state for sale was accomplished by the act of causing it to- be loaded in a car in Miami county and carried into Johnson county, and by the act of causing it to be carried through Johnson county to the state line, the two acts being essential to the crime. Of a similar situation it has been said: ‘If it should be conceded that the cotton was removed from the place where produced in Saluda county, with intention to dispose of it in Lexington county, and was sold or disposed of in the latter county, the statute would be violated in either county, for the act of removal is inseparably connected with the disposition, an essential part of it, and within the prohibition of the statute.’ State v. Perry, 87 S. C. 535, 541, 70 S. E. 304, 306.
“The defendant was found guilty of selling and disposing of the property. The statute, however, is in the disjunctive, making it an offense to sell or dispose of it. The evidence justified a conviction for disposing of the property, and it is immaterial whether or not it would have warranted a finding of guilty if he had been charged merely with selling it.”

The contention that the evidence was not sufficient to identify the cattle sold in Fort Worth as being the cattle included in the mortgage cannot be sustained. Some of the evidence was what is known as circumstantial evidence, but in the absence of any explanation by the defendant, was entirely sufficient to sustain the verdict rendered.

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

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


text:
    JOHN ROGERS v. STATE.
    No. A-10170.
    May 19, 1943.
    (137 P. 2d 812.)

      Billingsley & Kennerly, Crump & Carver, and D. E. Ashmore, all of Wewoka, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant,' John Rogers, was charged in the district court of Seminole county with the crime of robbery with firearms after a former conviction of a felony, was tried before a jury who returned a verdict of guilty but left the punishment to the court; the defendant was thereupon sentenced to serve a term of 18 years in the State Penitentiary and has appealed.

The Attorney General has filed a motion to dismiss the appeal and affirm the judgment for the reason that although the' appeal has been pending in this court for several months, no brief has been filed on behalf of the defendant and no appearance for oral argument made, and further alleges that the appeal Avas for delay only and wholly without merit.

This motion to dismiss the appeal and affirm the judgment was served on counsel for the defendant on February 16, 1943. No response has been filed to said motion and no application made to this court for an extension of time in which to1 file a brief.

Rule 9 of ‘this court provides:

“When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court, and the exceptions taken thereto', and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment.”

Rule 14 provides, in part, as folloAvs:

“* * * There may be united, with a motion to dismiss an appeal, a motion to. affirm on the ground that, although the record may show that this court has jurisdiction, it is manifest the appeal was taken for delay only, or that the question on which the jurisdiction depends is SO' frivolous as not to need further argument.”

In the recent case of Johnston v. State, 76 Okla. Cr. 39, 133 P. 2d 916, 917, it is stated:

“Where the defendant appeals from a judgment of conviction and no brief in support of the petition in error is submitted, and no appearance for oral argument made, we do not consider it the duty of this court to go into a careful examination of the evidence to determine whether or not the trial court erred in the admission or rejection of testimony. This court will examine the record for jurisdictional errors. If no fundamental error appears, the judgment will be affirmed.”

We have examined the record and find that defendant was positively identified as being one of two- men who entered the Ross Davis grocery three miles north of Wewoka. and at the point of a pistol robbed the proprietor of approximately |35 in money. It was stipulated at the trial that the defendant had formerly been convicted in the district court of Seminole county of the crime of burglary and sentenced to serve a term of two years in the State Penitentiary.

The information is sufficient to charge the crime with which the defendant was convicted, and Ave find no error in the instructions or in the judgment of the court. There are no fundamental errors apparent on the face of the record. It is our opinion that the defendant has had a. fair and impartial trial and that the judgment of the district court of Seminole county should be affirmed.

It is so ordered.

BAREFOOT and DOYLE., JJ., concur.