text:
    M. SANDITEN v. STATE.
    No. A-3580.
    Opinion Filed Oct. 13, 1921.
    Rehearing Denied Sept. 23, 1922.
    (208 Pac. 1040.)
    (Syllabus.)
    1. Larceny — Asportation Procured by Accused. An asportation of property^ feloniously taken is a necessary/ element of the crime of larceny, but such asportation need not be the physical act of the accused. It is sufficient if the accused procured or directed the asportation.
    2. Indictment and Information — Information against Accessory— Sufficiency. I No additional facts need be' alleged in an information against an accessory than are required against his principal. AH who aid or abet in the commission of the offense are principals, under the provisions of sections 2104 and 5757, Rev. Laws 1910; and the information need not state whether the accused committed, the act alone or in conjunction with others confederating with him.

      3. Same — Statute Abolishing Distinction Between Accessory and Principal Constitutional. The abolition by statute of distinctions between accessories and principals, and the statutory provision that no additional facts need be alleged against an accessory than are required against the principal, is not in violation of section 20 of the Bill of Rights, affording every defendant in a criminal case the right to be informed of the nature and cauáe' of the accusation against him.
    4. Appeal and Error — Harmless Error — Question as to Witness’ Unfriendly Feeling. Questions propounded by the couunty attorney held not prejudicial.
    5. Same — Invited Error — Remarks of County Attorney Provoked by Defendant’s Argument. Where the argument of defendant’s counsel is not brought up in the record, alleged improper remarks made by the county attorney in his closing argument, appearing to have been suggested or provoked by the argument of defendant’s counsel will not be considered prejudicial, under the conditions shown by this record. The defendant cannot provoke or invite improper argument upon which to predicate error.
    Appeal from Superior Court, Okmulgee County; R. E. Simpson, Judge.
    M. Sanditen was convicted of larceny and sentenced to serve a term of five years in the state penitentiary, and he appeals.
    Affirmed.
    M. Dennis, John Caruthers, E. M. Carter, C. B. McCrory, and Thos H. Owen, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall and E. L. Fulton, Asst. Attys., Gen., for the State.
   BESSEY, J.

On January 6, 1919, M. Sanditen, plaintiff in error, hereinafter designated the defendant, was informed against in the superior court of Okmulgee county for the larceny'of eight joints of 6% pipe or casing, of the value of $243, accomplished by fraud and stealth, and the property of • and by the verdict of the jury his punishment was fixed at the White Rock Oil & Gas Company. He was found guilty, five years in the state penitentiary.

The defendant in his testimony claims that he innocently •sold the pipe or oil easing in question for Sam Foster, believing that it belonged to Foster, or that Foster had. authority ■to dispose of it. The evidence on, the ,part of' the state tends to show that both Foster and this defendant were acting together and that the defendant, by himself or in conjunction with Foster, knowingly and by fraud and stealth sold this ■casing to P. C. Smith, for the Sequoyahi Oil & Refining Company, and caused it to be delivered to this company without the knowledge^ or consent of the’ rightful owners of the pipe.

First. The defendant in his briefs insists that the court ■erred in overruling defendant’s motion for a new trial and in overruling the demurrer to the state’s evidence, for the reason (that the testimony as a whole did not show that the defendant took physical possession of the pipe in question; that .an asportation is a necessary element of larceny and there was no asportation by' the defendant. On this feature of the case the testimony on the part of the state and of the defendant is that P. C. Smith wanted to buy some 6%-inch,. casing and went to defendant’s place of business in Okmulgee and there purchased from defendant a small quantity of casing that was in defendant’s yards, but not sufficient to supply his needs. At the same time the defendant sold Mr. Smith the casing here 'involved, which was then located on a vacant lot' near a livery barn in another part of town. Smith and the defendant went to this lot, measured this pipe, arranged for the payment of the purchase price, and the defendant authorized the purchaser to remove the pipe, which was accordingly done on the day following. We quote from the record:

Testimony of P. C. Smith.

“Q. Go on and tell how you came1, to buy the easing, the details and circumstances. A. Why, I telephoned amongst :some other fellowsa, about I wanted some 6%-inch casing. I asked Sanditen if he had any. He asked me how much I wanted. I believe I told him about 600 feet. He said he didn’t have that much, but would let me have all he had. I got my ear and drove down, to his office, and we went out in the yardi together and measured up some he had in his yard. I don’t remember how much — three or four joints, not very much. I asked if that was all he had. ‘No, I have some more,’ he said. ‘I have bought it, made the!.deal for it, and everything, but me and the party I bought it from couldn’t agree on the price.’ ‘Well,’ I said, ‘maybe you can’t get it then.’ ‘Yes, I think we can agree on that all right.’ ‘Will you see about it right away?’ I asked.him. ‘Yes, I will go and see about it at once. ’ I asked him where it was. I think' he told me the name of the street. I don’t know the names of the streets down here. I got in my car and drove where he told me. I couldn’t find anything; went back and told him I couldn’t find it. He said, ‘I will go down! with you in a few minutes. ’ He got in his car, I got in my own car, and drove down there; that was the second street, I believe, east of the Council House building, in a vacant lot. We drove down there and stopped and got out, and he said he wanted to see somebody. I don’t remember just what it was. I stood around there and waited until he came back. ‘Did you make your deal all right?’ I asked him. ‘Yes,’- he said, ‘ all right.’ We walked back into the vacant lot back from the street 150 feet. There was some pipe piled up there. He called some other fellows to help measure. They measured, called off the amount of feet in each joint, and¡ I wrote it down, the tally. When we got done it was too late to send it to Youngston, so I sent the truck down the next day and took the pipe to Young-ston. I gave him a requisition order on the company, at $1.25 a foot, and we paid for it. That’s all. * * *
“Q. Did Bill George help you measure that pipe, help you out in the measuring of the pipe? A. He helped lift some; yes, sir. ’ ’

W. A. George, owner of the livery barn and a witness for the defendant, testified in part as follows:

“Q. Was there anything said at that time by Sanditen or yourself about hauling the pipe awayJthat morning? A. Yes, Mr. Smith said he was in a hurry for the pipe. I had a truck there that was idle, and 1 told him I would shoot it right out for him. He said, ‘No,’ he would rather use the company’s truck. ‘The company has a truck of its own.’ He did-n’t give me the job.
“Q. On account of the fact he had a truck of Ms own? A. Yes.”
“Q. Did Sanditen say anything with reference to hauling it away, make any statement about it? A. He said something about it; it seemed as though Mr. Smith was going to send a truck down right then, and Sanditen spoke up, the best I remember, ‘Wait a little while, I got to see another fellow,’ didn’t say who it was.”

From the quoted portions of the record it will be seen that there was some asportation; that some of this pipe was moved when it was measured. Whether there was a suffieent asportation, at tMs time or not, the testimony shows that the defendant authorized the innocent purchaser to take absolute control of the pipe, authorized him to remove it, and that it actually was removed,- pursuant to such arrangement. To us it seems that the accused himself need not have moved the article stolen. It is a sufficient asportation if he procured or directed its removal. State v. Rozeboom, 145 Iowa, 620, 124 N. W. 783, 29 L. R. A. (N. S.) 39.

In an early English case it was held that where a person went to an inn, intending to steal a horse, and directed the hostler to bring out his horse, pointing to that of the prosecutor, and the hostler led out the horse for the defendant to mount, this was a sufficient taking to support an indictment. Rex v. Pitman, 2 Carrington & Payne, 423.

Cummings told Sweet he wanted to sell him a sow and pigs. After agreeing upon the price, they went to where the sow and pigs were lying on the commons, and Cummings pointed them out as his. Sweet paid him the money and drove them away. The animals, in fact, belonged to a neighbor. Held, that Cummings was guilty of a felonious taking, through Sweet as his instrument; that the asportation was the physical act of Sweet, but the felonious taking was that of Cummings accomplished through Sweet. Cummings v. Commonwealth, 5 Ky. Law Rep. 200.

While the attention of the baggage master was diverted by an accomplice, the accused changed the checks from' his valise to a/ trunk belonging to another. The trunk was carried to the destination of the accused by the railway company, where the' accused rifled it of itá contents. The accused was held to have been responsible for its wrongful asportation and guilty of larceny. Commonwealth v. Barry, 125 Mass. 390.

Where one, without right or authority, sells to an innocent purchaser an animal belonging to á third person, and authorizes the purchaser to take it, this makes the taking an act of the seller,, who is guilty of larceny. State v. Hunt, 45 Iowa, 673.

We are not unmindful of the fact that, there are authorities that hold that the asportation must be by, the thief himself or by some one confederating with him, but to us it seems that the best reason and the weight of authority support the doctrine that the asportation may be accomplished by an innocent agent of the accused.

Second. It is next contended in defendant’s original brief and in a supplementary brief, recently filed, that the giving of instruction No. 6 was erroneous and prejudicial, for the reason that it changed the theory of the prosecution and amounted to a fatal variance between the allegations charging the defendant himself with the felonious taking of the property by fraud and stealth and portions of the proof, in connection with this instruction, indicating that the property was taken by an accomplice. The instruction of which complaint is made is as follows:

“You are instructed that if you find from the evidence beyond a reasonable doubt that the 'witness Sam Foster is guilty of the larceny of thei pipe in question, and if you further find from the evidence beyond a reasonable doubt that the defendant in this case aided and abetted or assisted the said Sam Foster in the larceny of the said rope, then and in that event you shall find the defendant guilty of the crime as charged in the information. ’ ’

Section 2104, R. L. 1910, reads as follows:

“All persons concerned in the commission of crime whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals. ’ ’

Section 5757, R. L., 1910,. provides:

“The distinction between an accessory before the fact and a principal, and between principals in the first and second degree, in cases of felony, is abrogated, and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, must be prosecuted, tried and punished as principals, and no additional facts need be alleged in any indictment or information against such an' accessory than are required in an indictment or information against his principal.”

Thd defendant, in support of his claim that there was a variance between the allegations and the proof, changing the state’s theory of the case, has cited and quoted a large number of authorities from various states. This court, however, in’ a number of cases has announced a' rule to the contrary, based on the provisions; of the statutes above quoted. The accused is entitled to be informed of the nature of the charge against him and of but one charge at a time, but under our statutes and established practice he cannot insist that he be informed whether he is accused of committing the act alone or in conjunction with others confederating him.

It would be a strained construction to say that instruction No. 6, quoted above, authorized a conviction of either the crime of receiving stolen property or of the crime) of larceny, dependent upon the proof adduced, as the case might be. This instruction specifically stated that the jury must find that the defendant aided and abetted the other in the theft. Neither the allegations nor the proof shows that defendant bought this pipe from Foster knowing it to be stolen pipe, but there is proof tending to show that they aided and abetted one another in, the original felonious taking of the property.

In the case of Brown v. State, 7 Okla. Cr. 678, 126 Pac. 263, Jay Gould Brown was indicted for the larceny of certain cattle. There was evidence tending to show that two brothers of the accused took the cattle from the owner and that the defendant, with these two brothers, the day following drove the cattle to Lehigh and sold them to a butcher. Held, under the circumstances in this case, that the defendant was not guilty of receiving stolen, property, but was guilty of larceny as a principal, in aiding and abetting his brothers in its) commission.

The first judicial construction of the statute quoted to which our attention has been called is the ease of Pearce v. Territory, 11 Okla. 438, 68 Pac. 504. This case was appealed to the United, States Circuit Court of Appeals for the Eighth Circuit, and there affirmed. 118 Fed. 425, 55 C. C. A. 550. The indictment in this case charged the defendant alone with the larceny of a certain top buggy of the value of $90, the property of one Thomas Broyls, and that the property was by with intent, to deprive the owner thereof. ( The testimony of-hinr feloniously taken by fraud and stealth and carried away fered to sustain the indictment showed that the buggy in question was actually stolen by W. 0. Stanley and Alfred French, in Payne county, Okla.; but there was evidence tending to show that prior to the theft of the buggy these men had had a conversation with the defendant, wherein he requested them to steal a buggy and two sets of harness, telling them that if such articles were stolen and brought to him and they would make the price light enough so that it would be a cut between themi he would buy the articles stolen, change the buggy so that it would not be recognized, and conceal the buggy if he was Warned at any time that any one had obtained a trace of it. When' the buggy in question was actually stolen, it was taken immediately to the defendant and delivered toi him in the Osage country, about 75 miles from the place where is was stolen; that at the time of receiving it he promised to' pay the thieves $40 and he also promised to change the name on the buggy and to change the dashboard so that it would not be recognized.

In this case it was said:

“The statutes provide that all persons concerned in the commission of a crime, whether they directly commit the act constituting the offense or aid and abet in its commission, though not present, are principals. In view of these statutory provisions, modifying the common law, it is manifest, we think, that the evidence was sufficient to warrant the jury in finding that the defendant was guilty of the offense charged. The testimony tended to establish more than the offense of receiving stolen property; it showed that the defendant requested and counseled others to commit the larceny, and that he shared in the spoils of the crime. Indeed, he was the real instigator of the crime, without whose advice it might not have been committed. In morals, as well as in law, he was as guilty as those who actually laid hands on the stolen property, although he was 75 miles distant from the place where it was taken. He was an accessory before the fact and under our statutes a principal, and was rightfully indicted, tried and convicted as a principal.”

In the case of Moore v. State, 14 Okla. Cr. 292, 170 Pac. 519, the information charged that Wm. S. Moore committed the crime of unlawfully, willfully, and feloniously selling spirituous liquors to certain minors. The proofs showed that the accused took the money from the boys and that his companion, Echols, delivered the whisky. There was nothing in the information to indicate to the defendant that he was accused of acting in conjunction with others. The court instructed the jury that if they found that these minors purchased this whis-ky from the defendant, Wm. S. Moore, or from Wm. S. Moore and Joe 0. Echols acting together, and that any part of said whisky was delivered to -any one of the boys mentioned, then such transaction constituted a salej' justifying a conviction under the information.

In the case of Helms v. State, 14 Okla. Cr. 384, 171 Pac. 340, the information charged George Helms, individually, with selling intoxicating liquors, in violation of the prohibitory law. The testimony was to the effect that certain witnesses bought beer in the defendant’s joint At Cardin, Ottawa county, Okla., and that the beer was drawn and passed to them by a man known as “Cedar Red,” in the presence of the defendant who owned and operated the joint. The court found the information sufficient. As to the sufficiency of'the evidence to sustain the verdict, all persons who take part or engage in 'an offense are guilty as principals. The evidence' showed that the party selling the intoxicating liquor was an employee of the defendant.

In the case of Rhea v. State, 9 Okla. Cr. 220, 131 Pac. 729, the information charged Walter Rhea with stealing three steers from the owner, J. S. Hazelwood. The evidence disclosed that the defendant hired Bob Mitchell and Robey Lovell to steal cattle; they were to be butchered on defendant’s place and! the beef! sold through the county, and the proceeds were to be divided equally, one-third each. The defendant, in company with Bob Mitchell, went to Weleetka to attend a circus, and on the way back the defendant pointed out to Mitchell some cattle, which he told Mitchell to get that night. On the same day the defendant told Robey Lovell about these cattle. About midnight these two and a brother of the defendant, Rex Rhea, met and drove four head of these cattle out of the pasture. After going about a half mile three head got away. Rex Rhea then went into 'another pasture and drove out three other steers and the three men together drove them to the 'defendant’s place, where they were slaughtered and sold from time to time. In the Rhea Case, as in the case here at issue, it''was contended that the larceny was complete before the defendant had anything to do with the stolen property and that the testimony only tended1’to show the defendant to be guilty of receiving stolen property, a crime that could not be / established under the information. The court found that under the testimony the defendant was guilty of larceny as an accessory, and that no other!facts need be alleged in any indictment or information against an accessory than are required in fan indictment or information against a principal.

The distinction between principals and accessories has been abolished by statute in “most of the states, and by section 332 of the Criminal Code of the United States. The provision of the federal statute is as follows:

“Whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands,, induces, or procures its commission, is a principal.” Act of March 4, 1909 (U. S. Comp. St. § 10506).

It will be observed that the federal statute does not contain a provision that “no additional facts need be 'alleged in any indictment or information against such an accessory than are required in an indictment or information against his principal.” Notwithstanding this difference, the federal courts have held that all persons aiding or abetting in the commission of '’crime are principals, whether the offense was brought about through the medium of others, innocent or guilty, or whether they do.'it themselves, and that where the act is done by the procurement of a principal it is, in effect, the act of the principal. That an indictment charging an offense is not defective for indefiniteness because it did not specify the names of the persons aiding and abetting in the commission of the crime. Richardson v. U. S., 181 Fed. 1, 104 C. C. A. 69, and other federal cases cited in the opinion.

Section 20 of our Bill of Rights provides that every defendant in a criminal case shall be informed of the nature and cause of the accusation against him. The Legislature has seen fit to abolish the distinction between principals and accessories and has provided that the allegations in either ease may be the same. The abolition of the distinction between principal and accessory has never, so far as we know, been held unconstitutional. In our opinion the provision of the statute, “No additional facts need be alleged * * * against such an accessory than are required in an indictment or information against his principal,” is not inconsistent with section 20 of the Bill of Rights. It is the duty of courts, whenever possible, to harmonize acts of the Legislature with the Constitution, so that both may be sustained. Ex parte Hunnicutt, 7 Okla. Cr. 222, 123 Pac. 179, and the eases there cited.

Third. It is further contended that there was reversible error growing out of the conduct of the county attorney in his examination of witnesses and in his argument to the jury. Defendant objected particularly to questions propounded to witness Mosby, as follows:

“You haven’t any-very friendly feeling towards this man that stole your pipe?”
“You haven’t any very friendly feeling towards a man that after an investigation, and after a preliminary hearing, you' believe stole your pipe, have you?”

While we do not feel justified in placing our stamp of approval upon this character of questions, it must have been apparent to the jury that the county attorney, unlike the court, is to some extent a partisan, representing the state. The jury had no right to assume, and probably did not assume, that] the defendant was guilty because of the questions propounded by the county attorney, or because the county attorney believed him guilty.

With reference to the comment made by the county attorney, calling the jury’s attention to the fact that the defendant was a Jew, it is fair to assume from the record that these remarks were in reply to references to his nationality made by his own couunsel. For some reason unknown to this court the argument of the county attorney only appears in the record. From the introductory remarks of the county attorney it appears that he was answering the argument made by defendant’s counsel. It has been frequently held by this court that counsel for defendant cannot provoke an argument and by his own misconduct bring error into the record, and then take advantage)' of it. By this w*e do not mean to hold that the remarks made by counsel for the state in this case, if unprovoked, were prejudicial. The statement complained of was, in effect, that it made no difference whether the person charged was a Jew or a Gentile, Catholic or Protestant, or what his religious preferences might be. However, such discussions might well be eliminated from all arguments to juries.

The court repeatedly admonished the jury that they were to consider the evidence only and that they should pay no attention to the oratorical flourishes or remarks oí counsel not supported by the evidence.

For the reasons stated in this opinion the judgment oí the trial court is affirmed.

DOYLE, P. J., and MATSON, J., concur.


source: Caselaw Access Project

author: BESSEY, J.

license: Public Domain

text:
    FRANK SOPER v. STATE.
    No. A-3472.
    Opinion Filed Oct. 8, 1921.
    Rehearing Denied Sept. 23, 1922.
    (208 Pac. 1044.)
    (Syllabus.)
    1. New Trial — Witnesses—Defendant’s Privilege not to Testify and Immunity from Comment by Counsel1 — Waiver. The Constitution provides that no defendant in a criminal case without his consent may be compelled to testify against himself, and by statute a failure of a defendant to testify creates no presumption against him, and a failure to testify, if commented upon by counsel, shall be grounds for a new trial. These are constitutional and statutory privileges for the benefit ,of the accused which may b!e waived by him.
    2. Same — Waiver by Defendant’s Counsel Inviting ¡ Discussion. Where the. defendant’s attorney in his argument to the jury first mentions the subject and attempts i to explain why the defendant did not take the stand in his own behalf, to that extent the defendant '.waives his constitutional and statutory right protecting him from comment upon his failure to testify. Where such discussion is invited by defendant or his counsel, the defendant has no cause! of complaint.
    3. Trial — Perjury—Instructions on. Reasonable'Doubt Approved— Defendant’s Testimony in Former Trial Must Have Been Material and Question is for Jury — Instruction that Facts Shown by Appearance,iDocket Might be Considered as Proved Held Harmless. Instructions to the jury upon reasonable doubt, the materiality of testimony given at a former trial, upon which the charge • of perjury is predicated, and concerning the knowledge of the defendant of the falsity of the testimony given examined, and, under the circumstances here, held sufficient.

      Appeal from District Court, Oklahoma County; Edward Dewes Oldfield, Judge.,
    Prank Soper was convicted- of perjury and his punishment fixed at five years in .the state penitentiary, and he appeals.
    Affirmed.
    Giddings & Giddings, for plaintiff in error.
    S. P. iFreeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   BESSEY, J.

Frank Soper, plaintiff in error, for convenience hereinafter called -.the defendant, was on the 12th day of April, 1918, convicted of the crime of perjury, committed on the 13th day of December, 1917; said perjury charge being based upon the testimony given by him in the county court of Oklahoma county in an action in which the defendant was charged with the illegal transportation of intoxicating liquor.

The information in the perjury ¡case charged that the defendant Soper was a witness in his own behalf in the action triedl in the county court, and that he falsely stated under oath that he did not have a certain yellow suit case which was then on exhibition in .said courtroom, or any other suit case in which was contained intoxicating liquor, and that be did not carry this suit case, . or any suit case, to the place where is was alleged to have been found.

On the trial of the perjury charge, a number of witnesses testified that the defendant drove in an automobile to the place where the suit case was found, being No. 214 W. Washington street, Oklahoma City, and that he carried the suit case' into the residence at that number and was there apprehended and arrested with the suit case in his hand.

The first assignment of error.urged by the defendant is that the county attorney made improper and prejudicial remarks.-in his opening argument to the jury, calling the jury’s attention to the fact that the defendant did not testify in his own behalf, in the action wherein he was charged with perjury and that the county attorney again commented upon such fact in his closing argument to the jury. This complaint, in the manner statéd, is not borne out by the record:

“Statement by Mr. Morgan: As I was saying, gentlemen of the jury, this defendant in the court below was charged with bootlegging, which is comparatively a small crime as compared with perjury. In that case, gentlemen, there is evidence that I have read| to you which shows that he went to some trouble, by calling up the place where Allison Shadrick had stayed or said that he knew of him, to com© down there and testify to it in that ease, to wit, in that case in the county court. He found that he was out of town. Now, then, he did not have him in that case to testify, apparently, as shown by his record, the testimony on the stand. Now, why then didn’t he bring him here in this case ?
“By Mr. Snyder: We object to this argument as incompetent and prejudicial, and move the court to instruct the jury not to consider it.
“By the Court: Overruled.
“By Mr. Snyder: Exceptions.
“By Mr. Morgan (continuing): I say, why didn’t he bring him in here in this case? He is a friend of his. He got into that automobile, according to Frank Soper’s testimony, just to ride around awhile with him that night. If there is any witness who knows all about it besides Frank Soper, if there is any witness who' knows whether or not that suit case was in that car that night, if there is any witness who knows that besides the witnesses who have been here, besides the witnesses in that house, it surely is Allison Shadrick. He was not called to testify in this case. Why? I don’t know. To my mind he would be one of the best witnesses for the defendant in tMs case that one could ask for. And the best witness for Frank Soper in this ease, because Allison Shadrick was with him before he got there. He knows who took the suit case out of the car, EQe knows who carried it in. He walked in right behind Frank Soper or right ahead of him or right beside him, going into 214 West Washington. That is what Frank Soper says here. I want them to explain why they did not bring Allison Shadrick in to testify in his behalf. Here is what he said: ‘When you and Shadrick walked in the house, who was there? A. We walked in there together.’ ”

Then the record shows that the county attorney proceeded to read portions of the testimony of the defendant given in his own behalf in the case in the county court. *It seems to be the contention of the defendant here that the expression of the county attorney, “If there is any witness who knows that besides the witnesses who have been here, besides the witnesses in' that house,1, it surely is Allison Shadrick. To my mind he would be one of the best witnesses for the defendant in this case that one could ask for. And the best witness for Frank Soper in this case, because Allison Shadrick was with him before he got there. He knows who took the suit case out of the ear, he knows who carried it in” — related to the case then on trial. As we read this record, there was no reference or attempted reference to the failure of the defendant to testify in the perjury cause then on trial. Under the circumstances, the county attorney had a right to comment upon the absence of Allison Shadrick, under the doctrine laid down in the case of Crump v. State, 7 Okla. Cr. 538, 124 Pac. 632.

“Where the record shows that a defendant upon trial has access to or control of testimony, which if true, would be beneficial to him, and he fails to produce such testimony or to) account for its nonproduetion, such failure is a proper subject for argument on the part of the prosecution, and if inferences unfavorable to the defendant arise from such nonproduction, the defendant has no one but himself to blame. ’ ’

The first reference made to the fact that the defendant did not testify in the) perjury case was made by the defendant’s own attorney, at the beginning of his argument to the jury, as follows:

"Now, gentlemen, we did not put the defendant on the stand for the reason that he would have testified to the same things as introduced. What was the use of taking up your time and the time of the court?”

Touching upon the subject of the defendant’s failure to take the stand, the court admonished, the county attorney during the course* of his closing argument as follows:

"You will be careful not to make your argument any broader than a reply to counsel’s statement, counsel for the defendant having touched upon' the subject of the defendant’s failure to take the stand.”

After this admonition follows the comment of the county attorney complained of, as follows:

"By Mr. Callihan: I will go over again what I said awhile ago, when they made the objection, so that they may haver it in the record. As counsel for the defendant has undertaken to explain to you why they did not put Soper on the stand, I take it that in reply to that argument I should be allowed, and I believe the court will permit me to draw my conclusions as to why he did not take the stand, and that is, as I have stated before, that had he taken the stand he would have been subjected to a cross-examination, he would have been subject to the rules laid down by the law with reference to the attack upon his reputation for truth and veracity, the same as any other witness here.”

From this analysis of the record it clearly appears that the error complained of was invited by defendant’s counsel.

Section 5881, E. L. 1910, is as follows:

"In the trial of all indictments, informations, complaints and other proceedings against persons charged with the commission of a crime, offense or misdemeanor before any court or committing magistrate of this state, the person charged shall at his own request, but not otherwise, be a competent witness and his failure to make such request shall not create any presumption against him nor be mentioned on the trial; if commented upon by counsel, it shall be ground for a new trial.”

By the provisions of this section of the; statutes a defendant may not be compelled to testify in his own behalf, and the fact that he does not so testify is not to be mentioned nor commented upon by counsel. This, however, is a privilege that may be waived by the defendant. He may waive it by taking the stand, and when he does submit himself as a witness he may be subjected to cross-examination, as any other witness. If the defendant himself can waive this privilege, he may do so through his counsel. A party may waive any provision of either the Constitution or the statutes, intended for his benefit. Ex parte Hudson, 3 Okla. Cr. 393, 106 Pac. 540, 107 Pac. 735; State v. Frisbee, 8 Okla. Cr. 406, 127 Pac. 1091; Hill v. State, 9 Okla. Or. 629, 132 Pac. 950; Spradling v. Spradling, 74 Okla. 276, 181 Pac. 152.

It would be unreasonable to contend that counsel for the defendant might comment upon the fact that his client did not take the stand in his own behalf and give seemingly plausible and sufficient reasons therefor, and then assert that the opposing counsel would have no right to question or comment upon the reasons given. If that were the rule, it would enable every defendant, at his pleasure, to inject reversible error into his case, or to assert good and sufficient excuses for not testifying and close the mouth of the prosecuting attorney from controverting in any way the reasons given by defendant’s counsel or making any comment upon the reasons given.

It has been held in a number of eases that a defendant has no cause to complain on account of remarks made by the county attorney when such remarks were provoked or invited by the defendant or his counsel. In the ease of Wood v. State, 4 Okla. Cr. 436, 112 Pac. 11, 45 L. R. A. (N. S.) 673, the county attorney in his argument to the jury used the following' language:

"The reason I asked Pete Mullens if Ed Thompson hadn’t had to hold him to keep him from shooting Wash Barnes on one occasion in Savannah, was because I had been informed that he had said that by what I regard as reliable parties. ’ ’

The defendant objected to the remarks of the county attorney and moved the court to exclude them from the jury, which motion was overruled by the court and an exception allowed. In this case it seems that this remark was made in reply to a statement made by defendant’s counsel, challenging the county attorney to state why he did not put Thompson on the stand. The county attorney’s remarks were in reply to defendant’s insinuation or accusation of unfairness. It was held that, since the defendant’s counsel provoked the controversy and challenged the county attorney to make the explanation to the jury, the defendant was in no condition to complain.

In the case of Eakins v. State, 7 Okla. Cr. 353, 123 Pac. 1035, the court said:

"Counsel for the defendant cannot provoke the argument, and byi his own misconduct bring error into the record, and then take advantage of it.” Star v. State, 9 Okla. Cr. 210, 131 Pac. 542; Carter v. State, 6 Okla. Cr. 232, 118 Pac. 264.

Thfe defendant contends that instruction No. 10, given by the court as follows, is erroneous:

"You are instructed that the appearance docket of the county court of Oklahoma county has been introduced in evidence in this cause, and that it has been shown by said appearance docket that the county court of Oklahoma county, state of Oklahoma, was in lawful session on the 13th day of December, 1917; that the' information upon which the defendant Frank Soper was being tried in said county court on said 13th day of December,' 1917, was duly filed in said court; that the defendant Frank Soper was. duly arraigned in said county court, and that he entered his plea of not guilty to the charge in said information contained; and that these facts may be taken by the jury as having been proved beyond a reasonable doubt.”

We do. not, under the circumstances,,'give1 this, instruction our unqualified approval, but think the instruction as given by the court was harmless. It was not claimed that the county court was not in session and that the information had not been filed, or that the defendant was not on trial for the offense charged. We think, under such circumstances, that these questions, when established by the record, were really questions of law for the court. 23 R. C., L. 158, “Judicial Records.”

Whether these questions were mixed questions of law and fact, or questions of law only, the defendant could not have been prejudiced by their submission to the jury in the language used in this instruction. A defendant will not be heard to complain of an alleged error that is immaterial and could not have operated to his disadvantage.

The defendant next complains of instruction No. 11. The court told the jury in this instruction' that the testimony given by the defendant ini the trial in the county court, as established in the trial for perjury, was material. In order to lay a foundation for perjury, it was necessary for the state to prove that the defendant swore falsely to a material fact. This was a question of law foil the court, and the court very properly instructed ‘the jury that this testimony! was material. Coleman v. State, 6 Okla. Or. 252, 118 Pac. 594; 2 Bishop, New Criminal Law, § 1039.

It is next contended that the court erred in instructing' the jury upon the question of reasonable doubt. The term “reasonable doubt” is to large extent self-explanatory and easily, understood by the average' juror. The best definitions; of “reasonable doubt” are often more confusing^and.more difficult of comprehension by the average! juror than the simple-term itself. The giving of instructions on reasonable doubt is therefore not encouraged. By the instruction given in this case the court told the jury that a reasonable doubt meant a real, substantial doubt existing in the minds of the jury after a fair consideration of all the testimony, and was such a doubt as-would cause a reasonable and prudent man to hesitate before acting in matters of grave importance to himself; that the law did not require the prosecution to prove the guilt of the defendant to an absolute certainty, but did require it to be proved to a moral certainty; and that, after considering all the testimony, if the' jury were morally sure of the guilt of the defendant, there would be no reasonable doubt, and it would be their duty to convict him — otherwise, to acquit him. This instruction seems to have been copied verbatim from the case of Chandler v. State, 3 Okla. Cr. 254, 105 Pac. 377, 107 Pac. 735, in which case this instruction was approved by this court.

It is contended further that the court erred in refusing to give an instruction, instruction No. 3 offered by the defendant, to the effect that the falsity of the statement must be known to the witness when hei testified and that he must testify to the same willfully and corruptly. This requested instruction was fully covered by instructions No. 5 and No. 12, given by the court.

The defendant contends that the appearance docket of the county court was improperly introduced as evidence in this ease, for the .reason that it was not shown that the entries made were made by the clerk or some of ■ his deputies, and that the correctness thereof was not established. The county court is a court of record, and the records of that court may be identified by the legal custodian of the records and so introduced as proof in another court, and it is not necessary to show who made the record or entries. Unless controverted, the presumption is conclusive that such entries were properly made by a person authorized to make them and were correctly made.

It is next contended that the evidence was insufficient to show that the defendant was sworn as a witness in the case in the county court. An examination of the testimony of Judge Zwick, the judge of the county court at that time, convinces us that there is no merit in this contention.

The judgment of the trial court is affirmed.

DOYLE, P. J., and MATSON, J., concur.


author: MATSON, J.

text:
    McGUIRE v. WILKERSON, Chief of Police.
    No. A-4387.
    Opinion Filed Oct. 2, 1922.
    (209 Pac. 445.)
    (Syllabus.)
    1. Habeas Corpus — Discharge of Prisoner Convicted upon Void Ordinance. Habeas corpus will lie to discharge a prisoner restrained by his liberty by virtue of a conviction based upon a void ordinance.
    2. Municipal Corporations — Use of Streets as Place of Business Not Natural Right. The use of the streets as a place of business, or as the instrumentality of business, is accorded as a mere privilege, and not as a matter of natural right.
    3. Municipal Corporations — Construction of Ordinance for Court —Ordinance Presumed Valid. A valid ordinance stands on the same footing as a statute, and its construction is for the court. Whether or not an ordinance is reasonably necessary is com-mittedi in the first instance to the municipal legislative body, and the ordinance when passed is presumptively valid.

      4. Same — Ordinance Regulating Automobile^ on Streets — Reasonableness. A city having authority to pass reasonable regulations governing automobiles operated upon its streets for hire, tile appellate court would not be authorized to declare the provisions of an ordinance regulating the use of the streets for such purpose unreasonable, unless they clearly app'ear to be so.
    5. Same — Constitutionality of Ordinance Regulating Parking of Automobiles on Streets. For provisions of a city ordinance regulating the parking of automobiles andj other vehicles, and limiting and providing a zone wherein automobiles, jitneys, and other vehicles conveying or transporting passengers for hire, and trucks and drays engaged in the business of hauling freight dr merchandise for hire, shall not park, held not to deprive owners and operators of such vehicles of their liberty'or. property without due process of law, and not to be unreasonable and discriminatory, see body of opinion.
    Application, for habeas corpus of A. McGuire against W. R. Wilkerson, Chief of Police of the City of Pawhuska, Okla.
    Writ denied.
    Petitioner, A. McGuire, applies for a writ of habeas corpus, alleging that he is unlawfully restrained by the above-named respondent, chief of police of the city of Pawhuska, Okla.; that the cause of said restraint is as follows: That petitioner was, on the 19th day of June, 1922, convicted in the police court of said city of a violation of sections 1 and 3 of Ordinance No. 36-M of the city of Pawhuska, and sentenced to pay a fine of $16 and $4 costs, and remanded to the custody of said respondent chief of police until said fine and costs were paid.
    Petitioner alleges that said ordinance is void and without effect, in that it deprives him of liberty and of the use of his property without' due process of1 law; that said petitioner was engaged in the business of transporting passenger's by automobile for hire within and without the city of Pawhuska, Okla., and that said ordinance permits all persons owning and using automobiles, jitneys, trucks, and drays to park the same and carry on their business and occupation in the district prohibited to those using such vehicles for hire; that said prohibited district, as defined by the ordinance, includes the entire business district of the city of Pawhuska, except two or three minor businesses carried on away from the business district on side streets; that if said ordinance is enforced against petitioner it will drive him from the business district of Pawhuska and compel him to park his cars and carry on his business in the residence district; that affiant carries on his business in an orderly, quiet, and peaceable manner, commits no nuisance, and molests no one b'y reason of his business; that the attempt to enforce Ordinance No. 36-M is for the sole purpose of depriving petitioner of his business and destroying the only means of transportation open to thei public in the city of Pawhuska; that petitioner is one of several engaged in that line of business, and against whom the city is now attempting to enforce the ordinance; that on the 19th day of June, 1922, petitioner applied to the district judge of the Twenty-Fourth judicial district for a writ of habeas corpus, praying for his release from said restraint, but that upon a hearing said district judge discharged the writ and remanded petitioner to the custody of this respondent. Petitioner attaches to his petition a copy of the order of the district judge in said proceedings, also a copy of Ordinance 36-M.
    As a return and answer to the writ, the respondent admits that he't is chief of police of the city of Pawhuska, and that he has custody of the person of petitioner, and holds such custody by virtue of the authority of a commitment issued by the judge of the police court of said city on a conviction for a violation of Ordinance 36-M, and that the copy of the ordinance attached to the petition as an exhibit is á true and correct copy thereof; that said ordinance has been in full force and effect in said city since the 9th day of June, 1922; that-on the 17th day of June, 1922, petitioner herein was duly and regularly informed against for a violation of the terms and provisions of said ordinance, as evidenced by a copy ofl complaint attached to answer; that on the 19th day of June, 1922, petitioner was duly and regularly adjudged guilty of violating sections 1 and 3 of said ordinance, and fined $16 and costs, taxed at $4, and committed to jail until said fine and costs were paid, as appears by a transcript of the docket of the police court of said city, copy of which is attached to respondent’s answer.
    Further answering, respondent states that the area in said city in which automobiles and other motor vehicles engaged in the occupation of conveying passengers for hire is, prohibited is limited to the congested district of said city, the location of said restricted area being shown upon a map, or plat of said city, which is attached to the answer; that as shown on said plat, Main street is 80 feet in width from property line to property line, Osage avenue is 70 feet in width from said lines, Ki-he-kah avenue is 70 in width from said lines, Sixth street is 80 feet in width from said lines; that upon each of said streets and avenues sidewalks on each side thereof extend 12 feet from the property line, leaving traffic ways on 80-foot streets 56 feet wide, and on 70-foot streets 46 feet wide, and at places such traffic ways are less than that; that the means of transportation in said city is almost exclusively by automobile or other motor vehicles, and that by reason thereof that the traffic on such streets and avenues, and the parking of such vehicles at the curb, results in practically a congestion of traffic on said streets and avenues, to the extent that the peace, comfort, health, and safety of the inhabitants of said city and those lawfully using its streets and avenues and traffic ways is endangered; that as a part of the plan to relieve such congestion, and to otherwise ¿facilitate traffic on such streets and avenues, the board of city commissioners enacted Ordinance No. 36-M, and the enactment of said ordinance was solely for the purpose of relieving traffic congestion in said restricted area, and not otherwise, and this, respondent is informed and believes, was without prejudice to petitioner or others engaged in operating automobiles, trucks, or other conveyances engaged in, the business or occupation of conveying passengers for hire; that there are approximately 50 automobiles and other conveyances subject to the provisions of said ordinance, and that permanent parking and the operating of places of business within the congested district, being the restricted area as set out in the ordinance, has tended seriously to interfere with traffic on said streets and avenues, and is against the peace, health, comfort, and safety of the inhabitants of said city and others rightfully entitled to use the traffic ways of said streets and avenues; that the population of said city is approximately 9,000 inhabitants, and is steadily increasing; that it covers an area of approximately two square miles;' that, as shown on the map or plat, the area restricted by the ordinance extends to a very small portion of the business section of said city; that a large number of desirable stands for those engaged in operating automobiles for hire, and being in the business district of said city, are not within the restricted area, for which reasons.' respondent is informed and believes that the provisions of Ordinance No. 36-M are reasonable, and not intended to, and do not, discriminate against petitioner or those engaged in ai similar business, but said ordinance was enacted in good faith, for the sole purpose of promoting the peace, health, comfort, safety, and general welfare of the inhabitants of said, city, and not otherwise.
    The cause was submitted on the 23d day of June, 1922, at which time petitioner was enlarged on his own recognizance, pending final determination of the application.

      L. P. Mosier, for petitioner.
    E. E. Grinstead, City Atty., of Pawhuska, for respondent.
   MATSON, J.

(after stating the facts as above). This proceeding presents the question of the validity of Ordinance No. 36-M of the city of Pawhuska, Okla., effective June 9, 1922, especially sections 1 and 3 of said ordinance.

Said ordinance is entitled as follows:

“An ordinance regulating the parking of automobiles and other vehicles within the city of Pawhuska, Okla.; regulating, limiting and providing a zone therein in which automobiles, jitneys and other vehicles conveying or transporting passengers for hire within¡ said city, or trucks or drays engaged in the business of hauling freight or merchandise for hire therein shall not be permitted to park; and providing a district therein in which the owner or driver of such automobile, truck, jitney or other vehicle engaged in the business or occupation of transporting or conveying or hauling passengers, freight or merchandise for hire, shall not park, solicit business or maintain a stand therein, and providing for necessary signs, markings, traffic regulations, and prescribing a penalty for a violation thereof,” etc.

Sections 1, 2 and 3 of said ordinance read as follows :

“Section 1. That all automobiles, trucks and other vehicles, except as hereinafter provided, shall be parked at an angle of forty-five degrees, with the right front wheel touching the curb, on the following designated streets and avenues, and within the following described limits, in the city of Paw-huska, Oklahoma, to wit: Main street, between its intersection with the east line of Matthews avenue and its intersection with the west line of Leahy avenue; Osage avenue, north of its intersection with the north line of Fifth street; Ki-he-kah avenue, south of its intersection with the south line of Seventh street; and Sixth street, between its intersection with the west line of Leahy avenue and its intersection with the 'east line of Ki-he-kah avenue.
"Sec. 2. On all other streets and avenues not mentioned in section 1 of this ordinance, said automobiles, trucks and other vehicles shall park parallel with the curb.
"Sec. 3. No owner or driver of an automobile, truck or dray, jitney or other conveyance engaged in the business or occupation of conveying passengers or merchandise for hire to or from any place within or without the city of Pawhuska, Oklahoma, shall park, solicit business or maintain a stand either on the streets or avenues or on the sidewalks contiguous thereto within the limits prescribed in section I of this ordinance.”

Then follow ten other sections prescribing methods of parking automobiles on various streets, prohibiting parking on certain sides of certain streets, providing for the direction traffic shall take on certain streets, repealing a eertain other ordinance of said city, declaring an emergency, all of which, provisions are not pertinent to the issues here,presented.

No question is raised as to the power of the board of city commissioners of the city of Pawhuska to pass ¡local legislation on the general subject embraced within the ordinance. On the presentation of .the application for the writ, counsel for petitioner contended that the ordinance was void on two> grounds: (1) That it deprived petitioner of his property without due process of law; and (2) that it was an unreasonable discrimination against the petitioner and those engaged in a similar occupation, and that therefore it is void as an unreasonable exercise of the police power.

Habeas corpus will lie to discharge a prisoner restrained of his liberty by virtue of a conviction based upon a void ordinance.

In re Unger, 1 Okla. Cr. 222, 98 Pac. 999.

"The streets and highways of the state belong to the-public. They are built and maintained at public expense for the use of the general public in the ordinary and customary manner. The state, and the city as an arm of the state, has absolute control of the streets in the interests of the public. * * * The use of the streets as a place of business or as a main instrumentality of business is accorded as a mere privilege and not as a matter of natural right.” Hadfield v. Lundin, 98 Wash. 657, 168 Pac. 516, L. R. A. 1918B, 909, Ann. Cas. 1918C, 942.

The petitioner would have no vested right to use the streets for carrying on a private businéss as a common carrier, and the city has the power to regulate the operation of jitney busses over the streets. State v. Pitney, 79 Wash. 608, 140 Pac. 918, Ann. Cas. 1916A, 209; Nolen v. Riechman (D. C.) 225 Fed. 812; Ex parte Sullivan, 77 Tex. Cr. R. 72, 178 S. W. 537; Rast v. Van Deman & Lewis Co., 240 U. S. 342, 36 Sup. Ct. 370, 60 L. Ed. 679, L. R. A. 1917A, 421, Ann. Cas. 1917B, 455; Desser v. Wichita, 96 Kan. 820, 153 Pac. 1194, L. R. A. 1916D, 246.

A valid ordinance stands on the same footing as a statute, and its construction is fo:q the court. Berry on Automobiles (2d Ed.) § 68, p. 80.

Whether or not an ordinance is reasonably necessary is committed in the first instance to the municipal legislative body, and thei ordinance when passed is presumptively valid. Berry on Automobiles (2d Ed.) § 69, p. 82.

In Swann et al. v. Baltimore City, 132 Md. 256, 103 Atl. 441, the Court of Appeals of the state of Maryland held a statute of that state “authorizing the board of police commissioners in the city of Baltimore to set aside and designate certain plaees therein to be occupied and used as public or private stands for hackney carriages, to stipulate the number which may occupy and use such stands, and make regulations for their occupation and use, and also providing a fine for vio-. lating its provisions and regulations made by the board,” to not deprive the owners and operators of such vehicles of their business or property without due process of law.

In Yellow Taxicab Co. v. Gaynor, 143 N. Y. Supp. 279 (82 Misc. Rep. 94), it is held:

“Parties maintaining hack stands in the streets under contracts with the owners or licensees of abutting property had no property rights in the streets within Const. N. Y. art. 1, § 6, and Const. U. S. Amends. 5 and 14, providing that no person shall be deprived of his property without due process of law, and hence an ordinance abolishing such hack stands was not invalid, since abutting owners could not, by their private contracts, confer any right upon the hackmen inconsistent with] the right of thé local authorities to regulate the business of hackmen and prescribe reasonable regulations as to the use of the streets.”

In Sanders et al. v. City of Atlanta et al., 147 Ga. 819, 95 S. E. 695, it is held:

• “A city ordinance, providing that ‘no taxicab, motor bus, hack, or other vehicle for hire shall park pn any street within the fire limits of the city of Atlanta longer than to discharge or take on passengers, unless in actual service, except in front of railroad stations, and except that three taxieabs or hacks, for the exclusive use of the patrons of hotels, shall be allowed to park either in front or on the side of hotels, where permission is obtained in writing from the proprietor of such hotel,’ and that ‘no, hotel proprietor can give permission to park in front of any place of business occupying the store on the ground floor facing the' street, ’ etc., and providing a fine not exceeding $50, or imprisonment on the public works not exceeding 30 days, either or both penalties to b'e inflicted at the discretion of the recorder, for a violation of the ordinance, is valid as against the objection that it is unreasonable and confiscatory. See Berry on Law of Automobiles, § 64; Pugh v. Des Moines, 176 Iowa, 593, 156 N. W. 892, L. R. A. 1917F, 345; Com. v. Fenton, 139 Mass. 195, 29 N. E. 653; Cohen v. New York, 113 N. Y. 532, 21 N. E. 700, 4 L. R. A. 406, 10 Am. St. Rep. 506.”

In the ease of Pugh v. City of Des Moines et al., 176 Iowa, 593, 156 N. W. 892, L. R. A. 1917F, 345, the Supreme Court of Iowa held an ordinance prohibiting the parking of automobiles between fixed times in the streets of a restricted area, but allowing them to stand not over 20 minutes while such vehicle is being loaded or unloaded, to be not invalid.

In City Cab Co. v. Hayden, 73 Wash. 24, 131 Pac. 472, L. R. A. 1915F, 726, Ann. Cas. 1914D, 731, it is said:

‘ ‘ The general power of municipalities to regulate and control the conduct of hackmen and others soliciting the privilege of carrying travelers from, railroad depots to their place of destination cannot, we think, be successfully questioned. This the city must do in the interest of good order, public peace and safety.”

In the case at bar, the petition discloses no property, rights which the petitioner would be unlawfully deprived of by the continued enforcement of the ordinance. Petitioner and others operating automobiles for hire in the city of Pawhuska have no' property rights in the streets of that city that would be superior to the regulation adopted by the board of commissioners under its police power as delegated by the laws of this' state. The city of Pawhuska having authority to pass reasonable regulations governing automobiles operated on its streets for hire, this court would not be authorized to declare the provisions of the ordinance here attacked unreasonable, unless it clearly appeared that they were so.

Numerous other cases from various'1 states, construing ordinances and statutes regulating the operation of jitney busses and other automobiles used for hire over the public highways and streets, might be cited. But from what has heretofore been stated, and from the authorities above cited, we think it sufficiently appears that the ordinance in question is not unreasonable, discriminatory, nor arbitrary, nor does it'deprive petitioner of his liberty or property without due process of .law. 1

The writ is denied, and petitioner remanded to the custody uf respondent, chief of police of the city of Pawhuska.

DOYLE, P. J., and BESSEY, J., concur.


text:
    LON McCULLOM v. STATE.
    No. A-3774.
    Opinion Filed Oct. 14, 1922.
    (209 Pac. 781.)
    (Syllabus.)
    '1. Trial — Objectionable Instructions — Lack of Exceptions and Requests, Where no exceptions to any of the instructions given by the court are tafeen, and no( further instructions are requested by the accused, the accused as a matter of right has no cause for complaint against the instructions given, unless they appear to be fundamentally wrong and prejudicial to the rights of the accused.
    "2. Homicide — Instruction Defining Manslaughter in Second Degree Held Proper; Under the circumstances here it was proper for the court to define manslaughter in the second degree.
    ;"3.- Trial — Instructions not Shifting Burden of Proof to Defendant. The instructions, fairly construed, did not shift the burden of proof to the defendant.
    ■ 4. Appeal and Error — Lack of Objections' Below — Instructions— Failure to Define “Culpable Negligence.” The failure of the court to define the term “culpable negligence” as used in the instructions — if, indeed, it was not sufficiently defined — when the defendant made no request for a definition of the term and saved no exception to the failure of the court to define it, is not ground for reversal.
    !'S. Trial — Instruction on Character Evidence — Requisites. Ordinarily, an instruction on character evidence should be to the effect that such evidence should be weighed with all the other facts and circumstances in the case tending to raise a reasonable doubt as to the guilt oif the accused, without designating or pointing out to the jury any particular issue involved.
    6. Homicide — Instruction as to Evidence of Good Character of Accuse#! not Prejudicial. An instruction that the good character of th'e accused should be considered only to determine who was the probable aggressor was not prejudicial, where the verdict was for manslaughter in the second degree, predicated upon criminal negligence.
    Appeal from District Court, Johnston County; J. H. Line-baugh, Judge.
    Lon MeCullom was convicted of manslaughter in the second degree, and he appeals.
    Affirmed.
    Cornelius Hardy, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

Plaintiff in error, defendant below, was by verdict of a jury found guilty of manslaughter in the second degree, December 3, 1919, and his punishment fixed at six months’ imprisonment in the county jail and a fine of $250, and on December 4th judgment was , rendered accordingly.

The charging part of the information states that the defendant on ,the 3d day of April, 1919, without authority of law, and without design to effect the death of] Burney Underwood, and in the heat of passion and in a cruel and unusual manner, by means of a dangerous weapon, to wit, a loaded pistol, did unlawfully and feloniously kill and murder Burney Underwood, by striking him upon the head and face with said pistol and by shooting and discharging a leaden bullet from said pistol into the body of Burney Underwood, inflicting upon him mortal wounds, from which he died on the 4th day of April, 1919, and that the killing was neither justifiable nor excusable.

At the time of this homicide the defendant was a constable living in the town of Ravia, Okla. The evidence discloses that Burney Underwood was an Indian, and on that day was in an intoxicated condition and a passenger on the southbound Frisco train coming into Ravia. When the train) stopped at Ravia the conductor called for an officer, and the conductor and b'rakeman put the deceased off the train, and told the defendant to take charge of him. The defendant thereupon took charge of the deceased and attempted to put him in a service ear and take him to the county jail at Tishomingo; the deceased resisted by striking, pushing,' and scuffling, and refused to enter the car. While this resistance was going on the defendant drew his pistol to strike the deceased and sub.-due him, and the pistol in some manner flew out of defendant’s hand, and both men made an effort to get possession of the ,.gun, the defendant finally recovering it; defendant then struck deceased over the head with the pistol. The defendant then ;started towards a garage with the deceased for the purpose of getting a ear to take him to Tishomingo. After they had proceeded a little distance the scuffling was renewed. The ■defendant claims) that the deceased tried to take defendant’s gun from his pocket, and that both of them grasped the gun .at the same time, and that the gun was accidentally discharged, inflicting the mortal wound upon the deceased. The testimony of other witnesses tends to show that the defendant seized the gun alone, and discharged the fatal shot, either purposely ■ or accidentally. The testimony of a number of witnesses in- ■ dicates that the defendant used his gun unnecessarily and in a reckless manner; that the deceased was in such a maudlin, ■ drunken condition that he could have been easily handled without the use of a gun. There was also some evidence corroborating the defendant in his claim that the shooting was ; accidental.

The defendant in his brief insists that? the verdict is not supported by sufficient evidence, and that the court erred in instructing the jury upon manslaughter in the second degree, and did not correctly state, the law in instructions No. 7, 12, and 13, given by the court.

The defendant at the trial took no exceptions to any of the instructions given by the court, and made no further request for instructional covering the matters complained of, or otherwise. Under this state of the record, as a matter of right the defendant has no cause for complaint touching the instructions of the court, unless it should appear that some of these instructions were fundamentally wrong and prejudicial to the rights of the defendant. To us it appears that the conflicting evidence, some of which, indicated that the defendant unnecessarily and negligently discharged (the gun, resulting in the fatal tragedy, called for an instruction on manslaughter in the second degree. It was an issue raised by the evidence, and under such circumstances it was proper for the court— indeed, it is his duty — to instruct the jury upon such issue, as upon every material issue raised by the evidence.

Defendant claims that instruction No. 7 places the burden of proving justification upon the defendant, that part of the instruction complained of being as follows:

"In this connection, the court instructs you that if you find from the evidence in this case that at the time of the killing the defendant was performing his official duties as an officer, and had made an arrest of the deceased, and that the deceased was resisting such arrest, then the officer had a right to use whatever force was necessary, with usual and ordinary caution, to compel the deceased to submit' to said arrest, and if while so doing the gun of the defendant was accidentally discharged, and there was no intent upon the part of the defendant to kill the deceased, and that the defendant was not culpably negligent in the manner in which he was handling sáid gun when it was discharged, or if you have a reasonable doubt thereof, then the court instructs you that it would be excusable homicide, and it would be your duty to find the defendant not guilty.”

Considering this instruction along with the other instructions given, as applied to the evidence, we cannot say that that part of it relating to reasonable doubt is fundamentally wrong. We think the court intended to say, and the jury doubtless so understood, that if they entertained a reasonable doubt that the defendant exercised ordinary caution and did not negligently discharge his gun, they should acquit him. Dobbs v. State, 5. Okla. Cr. 480, 114 Pac. 358, 115 Pac. 370; Moore v. State, 4 Okla. Cr. 212, 111 Pac. 822. At any rate, if the defendant desired to have this instruction clarified, that question should have been called to the attention of the court at the time.

The failure of the court to define the term “culpable negligence” if, indeed, it was not sufficiently defined — when the defendant made no request for a definition of the term, and saved no exception to the failure' of the court to define it, is not ground for reversal. Fooshee v. State, 3 Okla. Cr. 668, 108 Pac. 554; Holmes v. State, 6 Okla. Cr. 541, 119 Pac. 430, 120 Pac. 300; Lumpkin v. State, 5 Okla. Cr. 488, 115 Pac. 478.

Defendant complains further of instruction No. 13, as follows :

“Evidence has been offered tending to prove the good character of the defendant prior to the killing. The court instructs you that you may consider this evidence along with all other evidence, facts, and circumstances in the case, but only for the purpose of ascertaining who was the probable aggressor in the difficulty at the time, and in ease you convict the defendant,, then you may consider the evidence in arriving at the proper punishment. The mere fact, however, that a man may possess a good character will not exonerate him from punishment for his crime, and should the guilt of the defendant be established to your satisfaction beyond a reasonable doubt, in the light of these instructions, then you should convict him, although you might believe him to have been a man of good character before the crime was committed.”

Portions of the evidence in this case raised the issue of self-defense. The jury by their verdict, finding the defendant guilty of manslaughter in the second degree, necessarily found that the homicide was not committed in self-defense, but was due to the carelessness or culpable negligence of the defendant in the use of his gun. We therefore think that this instruction, to the effect that character evidence should be considered by the jury “only for1 the purpose of ascertaining who was the probable aggressor in the difficulty,” under' the circumstances here,, was not prejudicial. Ordinarily an instruction on character evidence should be to the effect that such evidence should b'e weighed with all the other facts and circumstances in the ease tending to raise a reasonable doubt as to the guilt of the accused, without designating or pointing out to the jury any particular issue involved. Wilson v. State, 3 Okla. Cr. 714, 109 Pac. 289; Holmes v. State, 6 Okla. Cr. 541, 119 Pac. 430, 120 Pac. 300; Wells v. Ty., 14 Okla. 436, 78 Pac. 124; Cannon v. Ty., 1 Okla. Cir. 600, 99 Pac. 622. If the homicide was accidental, yet brought about by the culpable negligence of the defendant, then neither party could be considered the aggressor. The jury by its verdict so found; therefore the instruction' as to which of the parties might be the aggressor, whether correct or incorrect, did not operate to the defendant’s prejudice.

There is ample evidence in the record tending to show that the defendant was too free and careless with the use of his gun, which carelessness contributed to or was the cause of the death of the party under arrest and in the custody of the defendant. The defendant, as an officer, had the right to use all the force that was necessary, with usual and ordinary caution, to' compel the person lawfully arrested to submit to his custody. This is a necessary power lodged with all officers to enable them to effectually enforce the law and for their own safety. At the same time officers, as well as others, should have á due regard for human life, and should exercise at least usual and ordinary judgment in the use of firearms, so as not to unnecessarily take the life' of' others. There is evidence to show that no such care was' exercised by the, defendant.

The punishment, as fixed by the jury, was imprisonment for six months in the county jail and a fine of $250. This, under the circumstances here, was a very light sentence for so grave an offense. The judgment of the trial court is affirmed.

DOYLE, P. J., and MATSON, J., concur.


text:
    A. B. CHRISMAN v. STATE.
    No. A-3779.
    Opinion Filed Oct. 14, 1922.
    (209 Pac. 656.)
    (Syllabus.)
    Larceny — Evidence Sustaining Conviction. For evidence held sufficient to sustain the judgment of conviction, see body of opinion.
    Appeal from District Court, Logan County; Arthur R. Swank, Judge.
    A. B. Chrisman was convicted of larceny of an automobile, and he appeals.
    Affirmed.
    Springer & Wilson, for plaintiff in error.
    The Attorney General and N. W. Gore,' Asst. Atty. Gen., for the State.
   MATSON, J.

The record in this case discloses that a certain Ford 5-passenger automobile was stolen from the streets of Guthrie, Logan county, Okla., on the afternoon of the 20th day of October, 1919, at about 5 o’clock, and that the alleged stealing was reported to the sheriff’s office. Immediately thereafter, about 5:30, Mr. Beem, deputy sheriff, and the county attorney started out to look fori the car reported to have been stolen, and that some time close to 7 o ’clock in the even-' ing, and about 4 or 5 miles east of Guthrie, after chasing the car something like 3 miles, they overtook the driver thereof, who is defendant herein, and who, upon being stopped by the deputy sheriff and county attorney and asked why he was driving- a car with no tag, replied that he had made application for a tag but had not received it yet. Then asked where his receipt was, he replied that he left it at home. The deputy sheriff then lifted the hood of the engine and identified it by the number given him as the number of the stolen car, and then informed the defendant that it was a stolen car and asked his name, whereupon the defendant refused to give his name, was arrested, and returned to the city of Guthrie and placed in jail, at which place he declined to give his name or address to the county attorney or the sheriff.

At the trial, the defendant offered, in explanation of his possession of1 this car, that he had been requested by two men, whom he did not know, to drive the car from Guthrie to Cush-ing, Okla., and that, when he was arrested, was on his way frota Guthrie to Bipley; that he did not know the names of the men for whom he was! driving the car nor their place of residence, neitherl did he know ■what he was to receive for making the drive.

The sole and only question presented in the, brief of counsel for plaintiff in error'1 is that the evidence is not sufficient to support the verdict and judgment of the court, contending that the evidence of possession of the stolen property stands alone and is t unsupported by other facts and circumstances, and therefore is insufficient to convict.

In Cox v. Territory, 2 Okla. Cr., at page 677, 104 Pac. at page 382, this court said:

“Possession of property recently stolen, unexplained, is a circumstance to be considered and given such weight as the jury may see fit. The jury is the sole judge as to .what weight should be given this circumstance; and, even though the defendant makes no attempt at explanation of the possession, the jury1! would not be authorized to convict unless, from all the facts and circumstances in the case, after giving such weight as they see fit to such possession, they believed the defendant guilty.”

In the case of People v. Gibson, 16 Cal. App. 347, 116 Pac. 987, the Court of Appeals.of California held:

“Where one accused of larceny is shown to have had possession of the stolen property, when,it had been recently stolen, slight corroborative evidence of inculpatory circumstances will justify submission of the case tqthe jury, in the absence of evidence on accused’s part.”

In Blair v. Territory, 15 Okla. 549, 82 Pac. 653, the Supreme Court of the territory] said:

“The possession of recently stolen property unexplained, does.not constitute a presumption of guilt, but creates an inference of guilt, which may be sufficient, with other criminat-ing circumstances tending to connect the prisoner with the larceny, to,warrant a conviction.”

Counsel offer no criticism to the trial court’s instructions in this case. We think the evidence on the part of the state was sufficient to authorize the submission of the question of defendant’s.,.guilt to the jury. The uncontradicted evidence on the part of the state was to the effect that defendant was found in possession of the stolen property, within two hours after it was stolen. Upon being questioned by the deputy sheriff as to why hé was driving a ear without a license, defendant said that he had applied for an automobile license but had not received his tag, and that he had a tag receipt for the car at his home, indicating that» he was the owner of the car, and defendant! further refused at that time to give his name and his home address.

But the conviction is not based alone upon the state’s evidence. The defendant elected to become a witness for himself, and his explanation of the possession of the stolen ear as a witness is contradictory of that given to the deputy sheriff and prosecuting attorney at the time of his arrest.

In Conkright v. State, 21 Okla. Cr. 74, 204 Pac. 1113, at page 1116, in passing upon the question of the sufficiency of the evidence in a larceny ease, where the ¡facts were very similar to those in this case, this court said:

“In /'considering the circumstantial evidence and the weight to be given it and the conclusiveness of it, the jury has a right also to consider the defense interposed. Had the defendant interposed no defense, but had left the state’s case as the only evidence ¡ against him, he would be in a much better position to contend that the evidence was insufficient to convict. But where the defendant does interpose ) a defense, and that defense is apparently based upon falsehood, the jury then necessarily and properly 'so resolve all inferences from the circumstances disclosed most strongly against the defendant. This is a natural consequence of a fabricated 'defense.”

As a witness, defendant claimed that hé came into possession of this car from two strangers on the evening it was stolen; that these strangers 'met him when he was at the depot platform in the city of Guthrie, for the purpose of taking the train to the' town of Ripley, Okla.; that he had already purchased his ticket to Ripley, and intended to go from Ripley to the town of Yale, where he had been engaged in the livery business; that these strangers told him that they had bought a new1 car in'Guthrie and wanted somebody to drive it for them to Cushing, and.promised.to pay him for so doing, but didn’t tell him what they would- pay him, and he didn’t make any inquiry as to what he would receive for such service; that without further inquiry he ' agreed to drive the car for them to Cushing, and abandoned his railroad trip, and was then taken to ' a street in the north part of the city of Guthrie, where he was'placed in possession of the ear; that there was nobody there, and that he was told to drive slowly on the road to Cushing and that they would overtake him in the other ear; that they didn’t tell Mm where to meet them in Cushing in the event they failed to overtake Mm. This story is entirely incredible .and unworthy of belief. Instead of being consistent with innocence, it tended to strengthen the state’s case.

We fdeem it unnecessary to discuss the inferences and deductions of guilt necessarily arising from the testimony as a whole. For a discussion of similar circumstances see1 West v. State, 19 Okla. Cr. 355, 198 Pac. 99. In our opinion, the evidence as a whole is such as to exclude every reasonable hypothesis except that of the guilt of defendant, and for that reason we decline to disturb the verdict and judgment on the ground of the insufficiency of the evidence.

The judgment is affirmed.

DOYLE, P. J.,' and BESSEY, J., concur.


author: PEE CUEIAM.

text:
    FRED MOBBS v. STATE.
    No. A-3822.
    Opinion Filed Oct. 14, 1922.
    (209 Pac. 655.)
    Appeal from County Court, Atoka County; J. M. Hum-phreys, Judge.
    Fred Mobbs was convicted, of a violation of the Prohibitory Law, and he appeals.
    Appeal dismissed.
    C. MeCasland, for plaintiff in error.
    The Attorney General and N. W. Gore,, Asst. Atty. Gen., for the State.
   PEE CUEIAM.

This is an attempted appeal from a judgment of conviction against Fred Mobbs, rendered in the county court of Atoka county at the April, 1920, term; said Mobbs having been found guilty of selling intoxicating liquors, and sentenced to serve a term of 60 days’ imprisonment in the county jail and to pay a fine of ,$250.

The Attorney General has filed a motion to dismiss the appeal because judgment .was rendered on the 15th day of April, 1920, and the appeal was not filed in this court until the 21st day of July, 1920, .more than 60 days after the rendition of judgment, the record failing to disclose that the county court of Atoka county, or the judge thereof, for good cause shown, made any order extending the time beyond 60 days in which this appeal might be filed. No response has been made to the motion to dismiss.

It appears from the record that the judgment in this ease was rendered on the 15th day of April, 1920. The petition in error and case-made iWere filed in this court on the 21st day of July, 1920, 97 days after the rendition of judgment, and 37 days after the/statutory time for filing the appeal' had expired. The case-made contains no order extending the statutory time of 60 days for filing the /appeal.

“In misdemeanor eases the appeal must be taken within sixty days after the judgment is rendered: Provided, however, that the trial court or judge may, for good cause shown, extend the time in which,'such appeal may be taken not exceeding sixty days.” Section 5991, Revised Laws 1910.

Where an appeal in a misdemeanor,case is not taken within 60 days as prescribed by1 statute, the record or case-made must affirmatively show that the trial court, or judge thereof, extended the time; otherwise this court is without jurisdiction to review the judgment, and the appeal must be dismissed. Gunter v. State, 13 Okla. Cr. 83, 162 Pac. 231; Richards v. State, 16 Okla. Cr. 162, 181 Pac. 520.

The record sustains the contention of the Attorney General that the appeal was not lodged in this court within ,the period of time fixed by the statute for taking, appeals in misdemeanor cases. It follows, therefore, that the motion of the Attorney General, to dismiss the appeal should be sustained.

The purported appeal herein is dismissed, and the cause remanded to the trial court.


text:
    H. G. HILDEBRANDT v. STATE.
    No. A-3423.
    Opinion Filed Oct. 14, 1922.
    (209 Pac. 785.)
    (Syllabus.)
    1. • Witnesses — Conversations Between Husband and Wife Overheard — Admissibility. Oral declarations or conversations between husband and wife, overheard by third persons, are admissible, whether such communications were overheard accidentally or by design.
    2. Same — Admission of Evidence of Telephonic Conversation Erroneous and Prejudicial. Witness, an officer, was permitted to testify to statements made by tbe wife of defendant while communicating to some person by telephone. Witness had first answered the call, and testified he believed the voice of the person calling was that of defendant, but, after defendant’s wife went to the telephone, witness could not understand what was said by the other party to the conversation, nor could he identify at that time the voice of such person as that of defendant. Held, the statements of the wife in such conversation imputing guilt to defendant werer improperly admitted. For reasons for so holding/ see body of opinion. Held further, the admission! of such evidence in this 1 case was prejudicial to defendant.
    Appeal from District Court, Garfield County; James B. Cullison^ Judge.
    H. G. Hildebrandt was convicted of unlawfully having PQSsession of intoxicating liquor, and he appeals.
    Reversed and remanded.
    E. C. Patton, for plaintiff in error.
    The Attorney General and E. D Fulton, Asst. Atty. Gen., for the State.
   MATSON, J.

Plaintiff in error (hereinafter referred to as defendant) attacks the constitutionality of the law (section 2, c. 26, Session Laws 1913). The questions involved under such assignment of error were decided adversely to defendant in the case of Hildebrandt v. State, 19 Okla. Cr. 30, 197 Pac. 852.

Defendant in this court for the first time attacks the sufficiency of the information. While the information is not a model of criminal pleading, it is sufficient in the opinion of the court to withstand the objections urged against it.

Defendant was convicted of the unlawful possession of intoxicating liquors, a second violation under the provisions of section 2, c.‘ 26, Session Laws 1913. The evidence against him was altogether circumstantial. Defendant resided in the northeast suburbs of the city of Enid. Certain officers, armed with a search warrant, ort the day in question made a search of the premises of defendant, including the ¡residence and grounds surrounding the same.

A small quantity of bottled beer (about eight quarts), about one-half gallon of wine, and four bottles of whisky (either pints or half pints) were found in the house. This quantity was not sufficient to create prima facie a presumption of intent to violate the provisions of the prohibitory liquor laws.

While one officer searched the house, three others were engaged in searching a patch of potatoes located about 250 feet southeast of defendant’s house, and nearer to his residence than any other in that neighborhood, and on land which the records in the office of the register of deeds showed belonged to defendant’s wife. Over 600 quarts of bottled whisky were found buried in a trench along the rows' of growing potatoes. This quantity had the cardboard carton surrounding each bottle. Defendant was not present when the Search was made. The wife of defendant was at home at the time.

Defendant claimed the whisky found in the potato patch was not his; that he did not place it there and had no knowledge of its being there at the time; that the land on which it was found did not belong, at that time, to him and his wife; that they had previously sold the land to a man by the name of Robertson, who was a traveling man and lived in Kansas City; that he and his wife had executed and delivered a1 deed to this1 land to said Robertson; that the deed was not acknowledged, but merely witnessed; that Frank Davis had planted the potatoes on the land; that he did not' know where Frank Davis was at that time; that defendant was out of town on the day the search was made, and had no telephone conversation with his wife that day.

It is contended that the trial court erred in permitting the state to introduce certain irrelevant and incompetent evidence over the objection and exception of defendant. The officer who searched the house testified that while he and defendant’s wife were in the house the telephone rang, and that he answered the call; that some one called' for that number, and that, without further communicating with such person, he called defendant’s wife to the telephone; that he was acquainted with defendant and had talked with him on numerous occasions, and believed he knew his voice; that to the best of his knowledge and belief it was the voice of defendant he had heard over the telephone when he answered the call; that, after defendant’s wife went to the telephone, he heard her say, “There is’ a bunch of men here; they are digging up that stuff,” and again, “I don’t recognize any of them except A1 Thrasher;” that when defendant’s wife was talking the witness could not hear what was said by the party who was talking to. her; that he could hear a voice over the telephone, but could not identify it or understand what was said.

Counsel for defendant objected to this testimony on the ground that it was incompetent, irrelevant, and immaterial hearsay, and upon the further ground that it was an ex parte declaration of a third person, and not binding on defendant, and further that it was a privileged communication between husband and wife, to which either was an incompetent witness under section 5882, Revised Laws 1910. Said’ section provides:

“Except as otherwise provided in this and the following chapter, the rules of evidence in civil cases are applicable also in criminal cases: Provided, however, that neither husband nor wife shall in any case be a witness against the other except in a criminal prosecution for a crime committed one against the other, but they may in all criminal cases be witnesses for each other and shall be subject to cross-examination as other witnesses, and shall in no event on a criminal trial be permitted to disclose communications made by' one to the other except on a trial of an offense committed by one against the other. ’ ’

We think the objection that this evidence was incompetent because privileged under the general weight of authority is not well taken, as it is generally held that oral declarations or conversations between husband and wife overheard by third persons are admissible, whether such communications were overheard accidentally or by design. The cases so holding, however, are cases where the witness was in a position to testify to both ends of the conversation,' and it appears to us that, even if it be admitted in this case Mrs. Hildebrandt was in communication by telephone with her husband, the defendant, it would be a dangerous precedent to permit a third person to testify to a portion of that conversation when the party attempted to be bound by it is compelled to waive the privilege, although he; has no knowledge of the fact that an eavesdropper is in a position to hear that which occurs at the other end of the line of communication and nothing he says. To say the least, evidence of this kind would be, if permitted under the rule of waiver, very unsatisfactory in its results and a far-fetched exception to the hearsay rule.

Under the proof of the identity of the defendant as the person who was talking to his wife, we believe the court should have excluded this testimony. While the witness does testify that when he first went to the telephone he believed that it was the voice of defendant calling, he is not positive of that fact, and further the evidence is uncontradicted that after defendant’s wife began to talk the witness could not identify the person talking at the other end of the line, heard nothing he said, and testifies positively that he is unable to state whether or not Mrs. Hildebrandt was talking to her husband at the time. Under such circumstances, the evidence should have been excluded.

But, assuming that Mrs. Hildebrandt was in communication with her husband, was this evidence admissible? We can conceive of three grounds upon which evidence of this character could properly have been admitted: (1) As a declaration of a coconspirator in furtherance of the conspiracy; (2) as part of the res gestae; (3) as a1 declaration of a third person made in the presence and hearing of the defendant. But was this evidence admissible on either of these grounds? We think not.

It was certainly not admissible as an act or declaration of a coeonspirator. The wife was not jointly charged with the commission of the offense, nor is there any evidence in the record of a conspiracy existing between husband and wife, and if such had been the case it would have been incumbent upon the state, in a prosecution of this character, to have introduced evidence rebutting the presumption of duress before the wife could have been convicted as a coeonspirator with her husband. See section, 2099, Revised Laws 1910.

Neither was this evidence admissible as part of the res gestae. It was not that species of spontaneous exclamation or declaration descriptive or explanatory of the act forming the offense which permits such evidence as an exception to the hearsay rule. That it was admissible as an act or declaration of a third person made in defendant’s presence and hearing is more difficult of correct solution, but the court is firmly of opinion that such evidence was not admissible even on this ground. In order to render such evidence admissible, certain preliminaries must be shown to exist before defendant can be presumed to have assented to the declaration and to have been Round by it if he remained silent, and it is well established that mere silence is no ground of inference against him unless he was called upon by the circumstances to enter his dissent. Here the defendant had no knowledge that anybody except his wife was present; he had no knowledge that anybody was hearing what his wife was saying to him; he was in no position to interpose any explanation or dissent to any person except his wife. Certainly he would not be held called upon to dissent to another under such circumstances. And further it is not even shown that he remained silent. So far as the witness was able to testify, the defendant may have dissented, or he may' have made one of a hundred different explanations which would place an entirely different aspect upon the conversation. Under such circumstances, therefore, to admit such statement'on the part of the wife, without an affirmative showing that the defendant heard it, acquiesced or assented to it, would be to announce a rule of evidence fraught with great danger to innocent men.

The implication of assent to a statement affecting the guilt or innocence of a person from an omission to controvert, quality, or, explain it arises from the fact that a person knowing the truth or falsity of a statement affecting his rights made by another in his presence and naturally under circumstances calling for a reply, will deny it, if he be at liberty to do so, if he does not intend to admit it. Donnelly v. State, 26 N. J. Law, 601.

While the statement of the wife in this instance was probably made in the hearing of defendant, can it be said' to have been made in his presence within the meaning or the exception to the hearsay rule which permits evidence of statements of third persons affecting guilt? We think not. The word “presence” under such circumstances means such a-physical presence as affords the person intended to be charged by assent from silence an opportunity to deny the charge at the time. Here no such opportunity existed. According to the testimony of the witness, he could not understand what was said by tbe person talking over tbe telephone to defendant’s wife. So far as the witness knows, defendant, if he' was the person talking, may have made an explanation perfectly consistent with his innocence. In our opinion, therefore, it cannot be-said that defendant was at liberty to deny the statement made* against him to the witness who testified to it. Can it be said that the evidence here admitted comes within any well-known exception to the hearsay rule? We believe that it cannot. After a diligent search of all reports at our command, we have been unable to discover a decision directly in point, and none-has been called to our attention in the briefs of either counsel for appellant or for the state.

Since this conversation was not in the presence of defendant, it was clearly inadmissible, and; unless it appears that it-does not operate to the prejudice of defendant, we think its admission is good ground for a new trial. Upon this point it seems to us there can be no question. The evidence of defendant’s guilt was wholly circumstantial. There was no direct evidence that defendant was the owner and had possession of the whisky found buried in the potato patch. No witness testified to any act of ownership or control over this whisky at any lime by defendant. There was no evidence that the whis-ky found in the potato patch was the same brand as the small bottles found in the house. There was no evidence that defendant had sold any whisky of any kind to anybody, either of the brand found buried in the potato patch; or of any other brand. While the law at that time created a presumption against the possessor of more than one gallon of whisky or wine at a time at his place of residence and more than one cask of beer of an intention to sell same, or to otherwise dispose of it in violation of law it is nevertheless incumbent upon the state, before a conviction should be permitted to stand, to prove possession without question beyond a reasonable doubt. If the quantity of intoxicating liquors found, in the residence were a sufficient quantity to create prima facie an intention to violate the provisions of the prohibitory liquor statutes, the admission of this evidence could be held nonprejudicial. The whisky dug up in the potato patch was not found on the immediate premises of the residence occupied by defendant at that time. While it was found on a lot which either then belonged to him and his wife or had some six or eight months prior thereto belonged to them, it was located more than 250 feet from the residence, the lot being vacant, and there is no proof that defendant was at that time occupying or 'controling it. Certainly the state had access to some neighbors of the defendant to prove the exercise of supervision or control over these premises by defendant; yet not a neighbor was called to prove any acts on his part which would indicate that he had been occupying and controlling the premises on which this large amount of whisky was discovered immediately prior to, or at the time of the search. The statement of defendant’s wife, “They are digging up that stuff”, certainly created a very strong inference of defendant’s knowledge that the whis-ky was buried in the potato patch, and that the defendant was the owner thereof. Under the state of this record such statement, it appears to'us, was clearly prejudicial. Evidently the wife’s statement must have had a most powerful persuasive effect upon the jury, and led it to conclude that defendant was possessed of the whisky found in the potato patch.

A careful review of the record convinces us that defendant was not accorded that fair and impartial trial to which he is entitled under the Constitution and laws of this state.

For reasons stated, the judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinon.

DOYLE, P. J., and BESSEY, J., concur.