author: EDWARDS, J. CHAPPELL, J.

text:
    C. W. JOHNSON v. STATE.
    No. A-8254.
    Dec. 4, 1931.
    (5 Pac. [2d] 772.)
    O. H. Whitt, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Pittsburg county of rape in the first degree, and was sentenced to- serve a. term of 15 years in the state penitentiary.

The only contention made for a reversal is that the evidence is insufficient to sustain the judgment.

The offense charged is rape by force, under the fourth subdivision of section 1834, Comp. St. 1921. The record discloses that at the time charged prosecutrix was between 18 and 19 years old; defendant, a married man, was 23 years of age, lived about 50 feet from the home of prose-cutrix. She testified that at the time charged and just previous to the act of intercourse she was at home alone. That she twice went to the home of defendant to borrow ingredients for some cooking she was doing, the trips being about 10 minutes apart, and on the latter occasion she informed defendant and his wife that her parents were not at home. That soon thereafter defendant came to her house, ostensibly to borrow a brace and bit. While she was looking for it defendant came in the house and they went in the kitchen and he there made advances and began an attempt to' have intercourse with her, during which they scuffled into the summer porch, where he did accomplish an act of sexual intercourse. That defendant did not threaten her in any way. That she did not make any outcry or any noise, but did scratch defendant’s face. That in accomplishing the intercourse he tore her dress, but she wore it until she went to church that evening. That she did not tell her mother until the next morning. Defendant testified the statement of prosecutrix that she was at home alone was by previous arrangement with her under which she had agreed that he was to visit her, and she was to inform him when her parents were not at home. That he went to her house at the time he states .and did have intercourse with her, but that it was with her voluntary consent. We deem it unnecessary to make further recital of the facts.

It is settled by many decisions of this court that a defendant may be convicted of rape upon the uncorroborated testimony of the woman. In a prosecution for rape by force overcoming resistance upon a woman above the age of consent, where the corroboration of the use of force is extremely slight and the testimony of the prosecutrix somewhat inconsistent and unsubstantial, this court will scrutinize the record with care. The age, surroundings, circumstances, situation, and conduct of the parties will be considered. Where no threats nor use of force are made to intimidate the female, where she is in easy call of others, if an outcry is made, and none is made, and no complaint is made for several hours, it appears improbable that any rape occurred, but rather that the intercourse was voluntary. MacLaurin v. State, 34 Okla. Cr. 324, 246 Pac. 669; State v. Hogg, 64 Or. 57, 129 Pac. 115; State v. Goodale, 210 Mo. 275, 109 S. W. 9.

The conduct of defendant is despicable. No doubt the jury, justly indignant, felt he deserved punishment, and we sympathize with their desire to assess a penalty against him. In the light of the record, however, we are convinced the evidence of rape by force is insufficient to sustain the judgment, and the case must be, and is, reversed.

DAVENPORT, P. J., concurs. CHAPPELL, J., dissents.

CHAPPELL, J.

(dissenting). I cannot agree with the majority opinion in this case, for several reasons.

The opinion contains what purports to be a statement of the facts, and if these facts were the only competent evidence in the record, the reversal might be justified; but the additional facts in the record make out an entirely different case.

It appears from the record that the prosecutrix, who was between 18 and 19 years of age, was deficient mentally. She testified that she was alone in her father’s home; that she went to the defendant’s home to borrow some sugar to make a caite; that when asked about her folks, she said she was alone at the home; that at about 1 o’clock defendant came to the house to borrow a brace and bit; that when she went to look for them defendant came in the house, pushed her out of the kitchen into a little hall, and made indecent proposals to her, which she rejected; that defendant seized her and threw her down on the floor and that the fall dazed her; that she resisted defendant, scratching his face and doing all she could to prevent him from accomplishing his purpose; that her clothes were badly torn; that defendant overcame her resistance and raped her; that her sister-in-law came in about 6 o’clock in the evening; that she started to tell her about the attack, but that her little brothers came in and she did not want to- finish the story before them, and so did not tell her anything more until the next morning; that her mother came in about 9:30 or 10 o’clock, but she did not tell her until the next morning because her mother had high blood pressure and a weak heart, and she was afraid of the effect it might have on her; that on the next morning she told her mother and sister-in-law; that on the next day her father and mother took her to- the county attorney’s office and there she told, in the presence- of the defendant, the same story that she was telling on the witness stand. She is corroborated by her sister-in-law and her mother as to when and where she told of the assault and the reason why she did not tell it before; she is corroborated by the torn dress exhibited at the trial and by the scratches on the defendant’s face made at that time; she is also corroborated by the defendant, in that he admitted having the scratches on his face, bnt claimed he received them in attempting to separate two' men who were fighting, but produced no witnesses to testify to any such occurrence.

.Shortly after defendant was arrested, he was taken to the county attorney’s office and confronted by the prosecutrix, at which time he made a sworn statement denying that he was at the home of the prosecutrix or had made any assault upon her; but in the trial he admitted on cross-examination that the prosecutrix had told the county attorney, in his presence, the same story she had told in the trial of the case'.

Testifying for himself, defendant admitted that he lied in his sworn statement to the county attorney; that he was at the prosecutrix’s home; that he did have intercourse with her, but claimed that it was on her invitation and with her consent.

On cross-examination defendant’s counsel, by adroit questioning, did succeed in causing the prosecutrix to weaken her story, but it is apparent from the record that her mental condition, her misunderstanding of certain questions and her natural diffidence in telling about those things in public would account for that, and there was nothing in any of this evidence to indicate that she was testifying falsely, or that rendered her' story improbable.

The case resolves itself into this: If the prosecutrix told the truth, the defendant is guilty. If the prosecu-trix was lying, the defendant is innocent. The prosecu-trix told not only the same story that she told the county attorney, in the presence of defendant, and in the preliminary trial, but is corroborated by the physical facts in the case; while, on the other hand, the defendant brazenly admitted that he lied under oath to the county attorney. The jury was justified in believing that if he lied in his sworn statement to the county attorney, he was likewise lying in the trial of the case. They saw both the prosecutrix and the defendant on the witness stand and heard them testify; that saw the torn dress and heard about the scratches on defendant’s face, and had before them all the facts and circumstances in the case. They found the defendant guilty upon all the evidence, and that evidence amply justified the verdict.

In the majority opinion the rule is stated:

“In a prosecution for rape by force overcoming resistance upon a Avoman above the age of consent, Avhere the corroboration of the use of force is extremely slight and the testimony of the prosecutrix somewhat inconsistent and unsubstantial, this court will scrutinize the record with care. The age, surroundings, circumstances, situation and conduct of the parties will be considered. Where no threats nor use of force are made to intimidate the female, where she is in easy call of others, if an outcry is made, and none is made; and no complaint is made for several hours, it appears improbable that any rape occurred but rather that the intercourse was voluntary.” Citing MacLaurin v. State, 34 Okla. Cr. 324, 246 Pac. 669; State v. Hogg, 64 Cr. 57, 129 Pac. 115; State v. Goodale, 210 Mo. 275, 109 S. W. 9.

This rule is good law in a proper case, but is in conflict with the facts in this record.

There is another rule of law that should be applied to this case, and that is:

“Under the law in Oklahoma controverted questions of fact, involving the guilt or innocence of a person on trial in a court of competent jurisdiction, before a jury, are to be settled exclusively by such jury.”

In Calvert v. State, 10 Okla. Cr. 185, 135 Pac. 737, this court said:

“When an accused is on trial and there is a square conflict in the testimony between witnesses for the state and witnesses for such accused on the material issues, this court, in the absence of errors of law, will not on appeal reverse a conviction.”

The jury are the exclusive judges of the weight of the evidence; if there is a clear conflict in the evidence, or it is such that different inferences can properly be drawn from it, its determination will not be interfered with, unless it is clearly against the weight of the evidence, or appears to have been influenced by passion or prejudice. Curry v. State, 9 Okla. Cr. 38, 130 Pac. 513; Tempy v. State, 9 Okla. Cr. 446, 132 Pac. 383; Piazzi v. State, 13 Okla. Cr. 60, 161 Pac. 1176; Cole v. State, 18 Okla. Cr. 430, 195 Pac. 901; Adeaholt v. State, 19 Okla. Cr. 122, 198 Pac. 351; Leslie v. State, 22 Okla. Cr. 111, 210 Pac. 297; Campbell v. State, 23 Okla. Cr. 250, 214 Pac. 738; Choate v. State, 37 Okla. Cr. 314, 258 Pac. 360; Mayse v. State, 38 Okla. Cr. 144, 259 Pac. 277.

In Pickett v. State, 35 Okla. Cr. 60, 248 Pac. 352, this court said:

“Where the evidence and the reasonable and logical inferences and deductions to be drawn from it are sufficient to convince the jury beyond a reasonable doubt of the guilt of a defendant, this court will not disturb the verdict for insufficiency.”

In Underwood v. State, 36 Okla. Cr. 21, 251 Pac. 507, 508, this court said:

“Conviction can be reversed as not supported by evidence only if no substantial evidence tends to show guilt, or evidence is so insufficient that jury must have acted from partiality, passion, or prejudice.”

In Parks v. State, 18 Okla. Cr. 277, 194 Pac. 281, this court said:

“It is only when there is no substantial evidence to support the verdict that the appellate court will reverse on the ground of insufficient evidence.”

In Johnson v. State, 22 Okla. Cr. 832, 211 Pac. 425, this court said:

“Verdict of conviction will not be reviewed on appeal on arguments directed to the credibility of witnesses or the weight to be given their testimony.”

In Birdwell v. State, 22 Okla. Cr. 184, 210 Pac. 558, this court held that the appellate court will not weigh the evidence where there is substantial evidence to sustain the verdict. See, also, Johnson v. State, supra.

“A motion for new trial, based on an allegation that the evidence does not support the verdict of the jury, is addressed, first, to the sound discretion of the trial court, who has seen and heard the witnesses testify, and who must necessarily know a great deal more about many facts and circumstances produced at the trial, which cannot be written into a record, than an appellate court can by reading the record after it is written. And when a trial court has considered and passed upon such an issue, it comes to' this court only on the proposition that as a matter of law the verdict is contrary to the evidence.” Harrison v. State, 10 Okla. Cr. 210, 135 Pac. 948.
“It is not enough that the court may be of the opinion that the weight of the evidence is against the verdict, but the court must go further and find that there is no evidence in the record from which the jury could rationally conclude that the appellant was guilty before we would be authorized to grant a new trial upon the ground of the insufficiency of the testimony, unless it should appear from the record that the jury were influenced by improper motives in arriving at their verdict.” Bigfeather v. State, 7 Okla. Cr. 364, 123 Pac. 1026; Baker v. State, 9 Okla. Cr. 47, 130 Pac. 524; Morgan v. State, 9 Okla. Cr. 22, 130 Pac. 522; Stanfield v. State, 7 Okla. Cr. 397, 123 Pac. 1033.

One of my objections to the majority opinion is that the court invades the province of the jury, weighs the evidence and passes upon the credibility of the witnesses, and thus determines the issue. By no other process could the court arrive at the majority opinion.

It cannot truthfully be said that there is no competent evidence in this record to support the verdict of the jury. It is not contended that there is any misconduct or prejudice on the part of the jury. So then the opinion turns squarely on the question of the sufficiency of the evidence.

The majority opinion is not only contrary to the evidence and contrary to the law, but it outrages public justice.

I agree with the majority opinion when it says “The conduct of defendant is despicable. No doubt, the jury, justly indignant, felt he deserved punishment,” but I cannot agree with the court when it says “We sympathize with their desire to assess a penalty against him,” because the opinion sets aside the penalty and lets a guilty criminal go free.

If the evidence in this case is not sufficient to support the verdict of the jury, then there has never been a rape case since I have been a member of this court that could be affirmed on that question. If this case is to be reversed upon this ground, then a grave injustice has been done to every defendant charged with rape, whose case has been before this court in the past three years.

Criminals of this character cannot be restrained by giving them a slap on the wrist. The crime charged against defendant is particularly atrocious because he committed this act against a girl of doubtful intellect, unable to protect herself.

Because the majority opinion is contrary to the facts, contrary to the true rule of law in such cases, and outrages public justice, I dissent.


source: Caselaw Access Project

author: EDWARDS, J.

license: Public Domain

text:
    WILLIAM HOLMES et al. v. STATE.
    No. A-8176.
    Dec. 4, 1931.
    (5 Pac. [2d] 770.)
    W. N. Maben, for plaintiffs in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the district court of Cherokee county of grand larceny, and were each sentenced to serve a term of three years in the state penitentiary.

Defendants were jointly charged with Eugene Hoskins and Drew Parris with the larceny of three spools of copper wire from the warehouse of the Bell Telephone Company at Tahlequah. Hoskins pleaded guilty and was the principal witness for the state. Parris was a fugitive. The only contention made that has any merit is that there is no sufficient corroboration of the testimony of the oc-complice, Hoskins. No brief has been filed by the state. The Assistant Attorney General in charge of the case for the state, after a consideration of the record, stated to the court he was unable to insist there was any substantial corroboration of the testimony of the accomplice tending to connect the defendants with the commission of the offense. We have examined the testimony of the witnesses with care, and agree fully with the conclusion of the Attorney General that the state has been unable to corroborate the testimony of Hoskins to conform to the requirements of section 2701, Comp. St. 1921. In substance, Hoskins testified he went from Tulsa to Muskogee with Parris, in Parris’ car. No effort was made to show there was any previous plan between Hoskins, Parris, and defendants. Hoskins further testified he saw defendants at Tahlequah, and' that Holmes suggested they rob the telephone company of copper wire. There is no testimony that there was any plan in reference to disposing of the property when stolen, or to divide the proceeds derived therefrom. He further testified that Holmes and Pace went to Muskogee the same day he and Parris did, but in a different car; that they stayed Friday, Saturday, and Sunday night at the home of Mrs. Harris in Muskogee; that they went to Tahlequah Sunday afternoon, when the robbery took place; that on Saturday morning defendants went with him to the home of a Mrs. Wade at Muskogee. These were the only persons named by Hoskins as being present at any time when defendants were with him at Muskogee. The state did not produce Mrs. Wade nor Mrs. Harris, but Mrs. Harris was produced by defendants. She testified defendants were at her house on Friday night and left on Saturday, and she did not see them again until their arrest; that Hoskins and Parris also1 stayed at her house on Friday night and on Saturday night, and that they came back about 3 :30 or 4:00 o’clock Sunday with the junk (referring to the copper wire) in the back of the car; that they wanted to put it in her barn, and she would not permit it. She is corroborated by her daughter. The state used a Mrs. Kirksey in an effort to corroborate Hoskins. She testified she conducted a grocery store near the edge of Muskogee; that at some time in the spring some men drove up to her store and used the telephone to call some one, and asked if it was safe to come in. She did not know who was talking on either end of the line. Did not give the day nor month when the conversation occurred, and could not recognize either of defendants as being any of the men. The father of Holmes was also used in on effort to corroborate, but with no sustantial result. His testimony is that he went to Muskogee in Holmes’ car to ascertain why his son was in jail, that they stopped at a grocery store near Muskogee, and Holmes telephoned to some one and asked if it was safe to come in. He thought the conversation was with a Mrs. Harris, and, further, that defendant Holmes, subsequent to the larceny, painted green the wheels of his car which had previously been yellow, stating at the time he did not want the yellow wheeled Ford to show np in Muskogee. As the larceny took place at Tahlequah, and there is no showing defendants were ever seen in the car at either Muskogee or Tahlequah, this evidence would not seem to have much probative effect. The defense was alibi.

In addition to the settled rule based upon the statute, that there cannot be a conviction unless there is proof of substantial facts tending to connect the defendant with the commission of the offense aside from and without the aid of the accomplice’s testimony, it also frequently has been said that it is not sufficient corroboration merely to connect a defendant with the claimed accomplice in the crime. The evidence, independent of the testimony of the accomplice, must tend to connect the defendant with the crime itself, and not simply with the perpetrator. Flynn v. State, 10 Okla. Cr. 41, 133 Pac. 1133; Kirk v. State, 10 Okla. Cr. 281, 135 Pac. 1156; McKinney v. State, 20 Okla. Cr. 134, 201 Pac. 673; Powell v. State, 21 Okla. Cr. 332, 207 Pac. 570; Wever v. State, 22 Okla. Cr. 414, 211 Pac. 1062; Livingston v. State, 29 Okla. Cr. 247, 233 Pac. 235; Key v. State, 38 Okla. 169, 259 Pac. 659.

Upon a consideration of the entire case, we are not able to say there is any substantial evidence independent of the testimony of the accomplice which tends to connect defendants with the crime charged. There is no sufficient corroboration of the testimony of the accomplice.

The case is reversed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


author: DAVENPORT, P. J.

text:
    J. P. TIDMORE v. STATE.
    No. A-8228.
    Dec. 4, 1931.
    (5 Pac. [2d] 770.)
    Hughes & Hughes, for plaintiff: in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of possession of intoxicating liquor, and sentenced to pay a fine of $150, and to be confined in the county jail for 90 days, and has appealed.

The testimony on behalf of the state tends to show that the officers went to the filling station of the defendant and searched the same, and on the inside of the filling station found a pint bottle about half full, and a half-pint bottle about half full of what the witnesses state was whisky, some empty bottles and a number of fruit jars filled with water, which the witness designated as water from the artesian plunge. This was all the whisky that was found on defendant’s premises. The officers claimed they searched on what was known as an old highway and found some whisky. It was not on the defendant’s lots and was as near to buildings owned by other parties as it was to the defendant’s building.

The defendant testified in his own behalf and stated he lived in Mountain View, Okla.; he had lived in that community for 25 years; on the 14th day of March, 1931, he was running a filling station in the west part of Mountain View. Defendant further stated he did not know anything about the small quantity of whisky the officers claim they found in his filling station; he saw the officer when he found the pint bottle, which was about half full, near the ice bos. Defendant testified he had been hauling water from the artesian plunge; that he drank some of the water and used the water to1 wash at the filling station, as he got lots of grease on him; he had nothing to do with the whisky and knew nothing about the whisky the officers claim they found on the old road- ■ way, near the property of other parties. Several witnesses testify to his previous good character.

The information charges defendant did unlawfully, willfully, wrongfully, and intentionally have in his possession intoxicating liquor, to wit, whisky, with the unlawful intent to barter, sell, give away, and otherwise furnish the same to other persons unlawfully, without stating any quantity of whisky the defendant possessed.

There is no testimony tending to show that the defendant had any whisky in his possession with intent to barter, sell, give away or otherwise furnish to others. The quantity of whisky claimed to have been found in the filling station is not sufficient to make the possession of the same prima facie evidence of intent to barter, sell, give away or otherwise furnish to others.

There being no testimony to show that the defendant was in possession of any whisky with intent to barter, sell, give away, or otherwise furnish to others, we hold the evidence is insufficient to sustain the judgment. The cause is reversed.

EDWARDS, J., concurs. CHAPPELL, J., dissenting.


text:
    FRED INGRAHAM v. STATE.
    No. A-8227.
    Dec. 4, 1931.
    (5 Pac. [2d] 769.)
    Hughes & Hughes, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

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

The testimony on behalf of the state tends to show that the officers went to the home of the defendant with a search warrant and searched his premises. Ed Conner, one of the deputies, went to the door of defendant’s home and knocked, and the wife of the defendant came to' the door. The officer claims he told Mrs. Ingraham that he had a search warrant, and she asked him to read it, and he threw it down on the floor. She objected to him coming into the house, as he was a stranger to her, and she thought he was drinking.

Mrs. Ingraham stated:

“Deputy Conner pushed the door open and shoved me down across a table and I caught him by the arm. I did not know Conner was an officer when he came to the door.”

In searching the house a small quantity of whisky— about three pints — was found by the officers. Mrs. In-graham says she bought it for a quart, and had only bought it a short while before the officers came. The officers with Deputy Conner did not know what took place in the house until the difficulty was nearly over.

There is no dispute in the record that there was a small quantity of whisky in a glass fruit jar. Mrs. In-graham testified the whisky was not in the house when her husband left home; that she had bought it a short while before the officers came for the purpose of using it as medicine for two children she was raising, who were sick with the flu, one of the children being four years of age, and the other one eighteen months. There is no testimony to show that the statement of Mrs. Ingraham, as to having secured the whisky after her husband left home, is untrue. Nor is there any testimony tending to show any reason for the officers going to the home of the defendant with a search warrant.

The information in this case does not charge any quantity of whisky. There is ho testimony in the record which tends in any way whatever to show that the quantity of whisky found in the defendant’s home was for the purpose of being bartered, given away, or otherwise furnished to others in violation of law. Nor is there any testimony whatever to show that the defendant was ever in actual or constructive possession of tbe whisky alleged to have been found in his home. The testimony, on the contrary, shows that he had never seen it and had nothing to do with it.

There is no competent testimony to sustain the judgment. The cause is reversed.

EDWARDS, J., concurs. CHAPPELL, J., dissenting.


text:
    BOB PRICE v. STATE.
    No. A-8126.
    Dec. 4, 1931.
    (5 Pac. [2d] 768.)
    Scott A. Ferris and King & Crawford, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant,was by information jointly charged with Helen Price with the crime of robbery; was tried separately, convicted and sentenced to imprisonment in the state penitentiary for five years, and appeals.

H. L. Jones, called as a witness, testified that on the 8th day of July, 1929, he and C. G. Chandler were in Ada; they were driving into Ada irom where they had been fishing, on North Broadway near Fourth street, when some one whistled and stopped their car; a man and woman came up to the car, the man on one side of the car and the woman on the other; the man stuck a knife in my back and told me to get out of the car; the man that held the knife on me is the defendant here in the courtroom. Chandler was crippled and had to use crutches; he got out on the other side of the car; when I got out the defendant continued to hold the knife on me and took my money. He got $52.60, and my billfold; when the man got my money the woman walked around in front of the car and the man handed her my billfold containing the money; I grabbed her and slung her down trying to get my billfold and money from her and the defendant hit me three times, knocking me down each time; when I got up the last time the defendant was gone; the woman went in the direction of the glass factory, being the same direction the man went after he left me; I then went to the doctor’s office and had my wounds dressed.

Several other witnesses testify for the state on matters pertaining to the injuries of the prosecuting witness, and the trip made by the defendant to Holdenville, where he was arrested by the officers.

The testimony on behalf of the defendant tended to show that the witnesses were at their home near where the prosecuting witness claims he was robbed; they heard a scream down on Fourth street, and shortly thereafter a woman came along with a man following her; they met a man in the street on North Broadway and the men engaged in a fight and the woman ran off. The defendant did not take the stand.

Several errors have been assigned and argued by tbe defendant as reasons for reversal of bis case. Tbe record bas been carefully studied. There is a conflict in tbe testimony as to whether or not the prosecuting witness was robbed by tbe defendant. Tbe witness H. L. Jones positively identifies tbe defendant as the man who robbed him. The witnesses for the defendant do not testify the witness Jones was not robbed, but their testimony tends to show that the prosecuting witness was in what was known as the colored part of the city of Ada, associating with a colored woman, and that while associating with her she robbed him. All the witnesses admit that trouble of some kind occurred on Broadway a short distance from the intersection of Fourth street. They further admit that about the time the prosecuting witness claims he was robbed a car stopped on Broadway, near Fourth street, and that a fight took place near where the prosecuting witness states he was robbed.

Tbe jury by its verdict found against the contention of the defendant. This court has repeatedly held that before it would reverse a conviction on the ground that the verdict of the jury is contrary to the evidence, it must appear that there is no testimony in the record from which the jury could rationally conclude that the defendant was guilty. Bishop v. State, 9 Okla. Cr. 175, 130 Pac. 1173.

Where the evidence, and the reasonable and logical inferences and deductions to be drawn from it, are sufficient to convince the jury beyond a reasonable doubt of the guilt of the defendant, this court will not disturb the verdict for the insufficiency of the evidence. Pickett v. State, 35 Okla. Cr. 60, 248 Pac. 352; Adeaholt v. State, 19 Okla. Cr. 122, 198 Pac. 351; Cole v. State, 18 Okla. Cr. 430, 195 Pac. 901, and cases therein cited.

It is further argued by the defendant that there is a variance in the proof and the allegations. We think the proof of the ownership of the money taken is sufficient to sustain the allegations in the information. The evidence is sufficient to sustain the verdict. The defendant was accorded a fair and impartial trial. The court properly instructed the jury as to the law applicable to the facts in the case.

The judgment is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    EUGENE GLENN v STATE.
    No. A-8171.
    Dec. 4, 1931.
    (5 Pac. [2d] 767.)
    H. A. Johnson, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (George H. Copeland, of counsel), for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Noble county of gyand larceny, and was sentenced to serve a year and a day in the state penitentiary.

Defendant is charged with the larceny of 974 pounds of seed cotton, value $29.37. At the time charged, one A. A. Friend had stolen from his field 974 pounds of picked cotton, 4 cotton sacks, and a pair of scales. Early the next morning defendant and two other negroes appeared at Guthrie with a Ford car, attached to which was a four-wheel trailer, on which was 1,940 pounds of seed cotton, some cotton sacks among which were the sacks stolen from Friend, and also the scales. It was also proven that at the same time there was stolen from a farm near that of Friend 979 pounds of cotton; the two amounts aggregating that on the trailer in defendant’s possession. There was evidence of the peculiar marks of the tracks made by this car and trailer at both places where the cotton was lost and also the tracks of three men at each place, with peculiar markings of the shoes of defendant and his two companions. The evidence of the larceny by defendant and his companions is conclusive.

The only contention of any moment is that the court erred in admitting testimony of the larceny of the cotton from the neighboring farm at the same time as the larceny from the premises of Friend. Defendant argues this was a trial of defendant for two separate and distinct offenses. Since the prosecuting witness lost only 979 pounds of cotton, it was evident that all the cotton on the trailer did not come from his field. The state had a right to show where the remainder came from as throwing light on the guilt of defendant of the offense charged. Starr v. State, 7 Okla. Cr. 574, 124 Pac. 1109; Miller v. State, 9 Okla. Cr. 255, 131 Pac. 717, L. R. A. 1915A, 1088; Cheeves v. State, 18 Okla. Cr. 480, 196 Pac. 726; McLaughlin v. State, 18 Okla. Or. 627, 197 Pac. 717. See, also, Young v. U.S., 7 Ind. Terr. 78, 103 S. W. 771. The gist of these opinions is that any evidence tending to show defendant’s guilt is admissible, although it may also tend to prove him guilty of a separate and distinct crime, and, where it is attempted to account for defendant’s possession of stolen property, the contemporaneous possession of other stolen property may be shown. The evidence was competent.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    LOREN HEMPHILL v. STATE.
    No. A-7871.
    Dec. 17, 1931.
    (6 Pac. [2d] 450.)

      Roberts & Clark, E. B. Hunt, and William T. Rye, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith 0. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was by information jointly charged with George Durbin with the larceny of domestic fowls, was tried separately, convicted, and sentenced to’ serve a term of two' years in the state penitentiary. Motion for new trial and arrest of judgment was filed, considered, and overruled; defendant excepted and appeals.

The charging part of the information is as follows:

“That Loren Hemphill and George Durbin, did, in Craig county, in the state of Oklahoma, on or about the 15th day of October, in the year of our Lord, nineteen hundred and twenty-nine, and anterior to the presentment hereof, commit the crime of larceny of domestic fowls.”

Before the defendant was arraigned, omitting the caption and signature, the following demurrer was filed:

“Comes now the defendant and demurs to the information filed herein, for the reason that the same does not state facts sufficient to constitute a felony; the crime attempted to' be charged, or any crime under the laws of the state of Oklahoma, of which this court has jurisdiction under the record in this case.”

The demurrer of the defendant was by the court overruled, and exceptions saved.

Section 20, art. 2, of the Bill of Rights, in part is as follows:

The defendant “shall be informed of the nature and cause of the accusation against him and have a copy thereof, and be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his behalf.”

Section 2555, C. O. S. 1921, is as follows:

“The indictment or information must contain: First. The title of the action, specifying the name of the court to which the indictment or information is presented, and the names of the parties. Second. A statement of the acts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.”

It is argued by the defendant that the information is insufficient for the. reason that it does not state sufficient facts to advise the defendant of the charge against him. The statute under which the defendant is charged makes it a felony for any person found guilty of stealing domestic fowls. The term as used in the statute, “domestic fowls,” includes many kind of fowls, and the word “domestic” is used to distinguish them from wild or untamed fowls. Chickens, turkeys, geese, ducks, and guineas, and many others, come within the definition of domestic fowls.

The defendant could not tell from the allegations in the information, until the state introduced its proof, as to what class of domestic fowls the state was seeking to convict him of stealing. It might have started to introduce its proof that the defendant was guilty of stealing ducks and changed its theory before the testimony was closed and attempted to charge the defendant with having stolen turkeys, geese, or chickens.

Section 2556, C. O. S. 1921, provides:

“The indictment or information must be direct and certain as it regards: First. The party charged. Second. The offense charged. Third. The particular circumstances of the offense charged, when they are necessary to constitute a complete offense.”

In Isaah v. State, 24 Okla. Or. 174, 216 Pac. 950, the court said:

“The information must contain a statement of the acts constituting the offense, and it is not sufficient to charge the offense in the words of the statute, when the particular circumstances of the offense charged are necessary to constitute a complete offense.”

In Merchant v. State, 12 Okla. Cr. 360, 157 Pac. 272, the court said:

“One charged with crime is entitled to be advised by the indictment or information of the nature of the offense against which he is to defend.”

In 25 Cyc. 75, the author makes the following statement :

“The description must be sufficiently certain to enable the jury to identify the property described in the indictment with that referred to' by the evidence, and to show the court that the property is a subject of larceny.”

It is further stated that, when the indictment or information referred to domestic animals used for food, it should give the ngme of the animal. 36 C. J. 854; and 17 R. C. L. 58, is to the same effect.

In Abrams v. State, 13 Okla. Cr. 11, 161 Pac. 331, 332, the court, in the third, fourth, and fifth paragraphs of the syllabus, used the following language:

“3. Since every person is presumed to’ be innocent until proved guilty, it logically follows that he must be presumed also to be ignorant of what is intended to be proved against him, except as he is informed by the indictment or information.
“4. Where words or terms used in the statute have no technical or precise meaning which of themselves imply or define the offense, then the indictment or information must set forth the particular things or acts charged to have been done with reasonable certainty and distinctness.
“5. It is not a technical, but a sound and fundamental, rule of criminal procedure that the accused must be apprised at the outset by the indictment or information with reasonable certainty of the nature and cause of the accusation against him.”

See Wilcox v. State, 13 Okla. Cr. 599, 166 Pac. 74; Cole v. State, 15 Okla. Cr. 361, 177 Pac. 129.

It is clear from an examination of the information and statutes relating to larceny of domestic fowls that the demurrer of the defendant in this case was well taken, and the court. should have sustained the same and required the information to be amended. Prom the allegations in the information in this case, no' one could tell what kind of domestic fowls was alleged to have been stolen by the defendant.

The case is reversed, with directions to the trial court to set aside the judgment, sustain the demurrer, and, if deemed advisable by the court, to order an amended information filed, and proceed further as provided by law.

EDWARDS and CHAPPELL, JJ., concur.


author: CHAPPELL, J.

text:
    DAVID L. HADLEY v. STATE.
    No. A-8035.
    Dec. 17, 1931.
    (6 Pac. [2d] 451.)

      H. Tom Kight and W. T. Drake, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Wagoner county of the crime of manslaughter in the first degree in the killing of Jack Batt, and his punishment fixed by the court at imprisonment in the state penitentiary for a period of 50 years.

The evidence of the state was that the defendant and Bud Conley had been drinking; that on the public highway they met Jack Batt, who was an Indian preacher; that defendant assaulted Batt with his fists, and in the fight which followed defendant killed Batt by striking him over the head with a car axle.

Defendant admitted the fight with Batt, but claimed that Conley struck him over the head with the car axle.

Defendant’s first contention is: “That the offense was committed by Conley and not Hadley, because of the fact that Conley was accused by Hadley to Mrs. Manse Brown, and because of his conversation to Mrs. Manse Brown, and further, because of his conduct and sayings on the date that the crime was committed.”

In Johnson v. State, 22 Okla. Cr. 332, 211 Pac. 425, this court said:

“Where there is substantial evidence to show the guilt of the defendant, this court will not weigh the sufficiency of the evidence to sustain a conviction, but will consider the whole evidence to ascertain whether a conviction is founded on substantial evidence.
“The jury are the exclusive judges of the credibility of witnesses and the weight to be given their testimony, and a verdict of conviction will not be reviewed on appeal on arguments directed to the credibility of witnesses or the weight to be given their testimony.”.

The contention that the evidence is insufficient is not supported by the record. On the contrary, there is an abundance of evidence to establish the guilt of the defendant beyond a reasonable doubt.

Defendant next contends that he was prevented from having a fair and impartial trial because of misconduct of the county attorney in his opening statement and argument to the jury.

An examination of the record discloses first that objection to much of the argument complained of was overruled by the court for the reason that the county attorney was answering argument already made by defendant’s counsel. In the few instances where this was not true, the court promptly sustained objections of defendant and admonished the jury not to consider the same.

When all of the record is considered, it is apparent that the defendant was not prejudiced by this argument, since the jury did not fix the punishment but merely found defendant guilty, and the evidence would have justified a verdict of murder instead of manslaughter.

Defendant next contends that the court erred in its refusal to give certain requested instructions upon the necessity of Conley, the accomplice, being corroborated. The particular complaint of defendant under this assignment is that the court should have told the jury, “Some other evidence which is believed and accepted by yon beyond a reasonable donbt tending to connect the defendant with the commission of the crime charged against him.”

The instruction given by the court on its own motion is in substance that approved by this court in Hendrix v. State, 22 Okla. Cr. 230, 210 Pac. 734, and Cloud v. State, 41 Okla. Cr. 395, 273 Pac. 1012.

The instruction given by the court covered the law of corroboration. It was not error therefore for the trial court to refuse defendant’s requested instruction on the same subject.

Defendant complains of other errors, but none of them are sufficient to require a separate discussion in this opinion nor a reversal of the case.

The crime committed is a most brutal one. Deceased, who was an Indian preacher, was returning to his home from services he had been conducting that day, when he was assaulted, kicked, and beaten to death by defendant and Conley. Conley confessed his part of the crime and testified for the state. He was later tried and convicted, the jury fixing his punishment at imprisonment in the state penitentiary for four years.

Defendant argues that imprisonment in the state penitentiary for 50 years is excessive in his case. Considering the nature of the crime and the part defendant played in it, he was fortunate to escape a conviction for murder.

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

DAVENPOBT, P. J., and EDWABDS, J., concur.


text:
    JERRY HENDERSON v. STATE.
    No. A-8098.
    Dec. 17, 1931.
    (6 Pac. [2d] 15.)
    Ira A. Hill and Guy D. Talbot, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Alfalfa county of using obscene and threatening language in the presence of another, and was sentenced to serve a term of 10 days in the county jail and to pay a fine of $80.

The information, under section 2005, Comp. Stat. 1921, charges:

“* * * Did then and there unlawfully, willfully and wrongfully utter loud, obscene and threatening language and insulting words in the presence and hearing of one S. E. Howard, which language and words were calculated to arouse to anger the said S. E. Howard.* * *”

No demurrer was interposed to the information, hut at the beginning of the trial defendant objected to the introduction of any evidence for the reason the information did not state facts sufficient to1 constitute a public offense. The testimony is that at the time charged defendant was accosted by S. E. Howard, who was city marshal of Aline, in front of a cafe, where defendant was or had been creating a. disturbance. Defendant then became abusive and belligerent, and applied to Howard the opprobrious epithet of “son of a bitch,” and threatened to assault him, and as Howard went away to call the sheriff, defendant followed him and continued the use of abusive language. Defendant did not take the stand, and offered no testimony.

It is argued the information is defective in failing to set out the language used and that the allegation is a mere conclusion, citing sections 2555 and 2556, Comp. Stat. 1921, and authorities. The cases cited are to' the general effect that, in charging an offense, the description of the acts alleged to constitute the crime must be set out with such particularity as to acquaint the accused with the particular offense against which he is to defend. These cases state the sound rule of law, but it is equally well settled that, where a defendant charged with an offense does not interpose a demurrer, but for the first time objects to the information when the state attempts to introduce testimony, the objection should be overruled, if by any intendment or presumption the information can be sustained. True, the information does not set out the language alleged to be obscene and threatening, but, in the absence of a demurrer before the state offers testimony, defendant must be held to have waived any more specific allegation, and, indulging the intendments and presumptions, the information is sufficient to withstand an introduction of evidence. McDermott v. State, 35 Okla. Cr. 416, 250 Pac. 810.

It is also argued that the state was permitted to offer proof of two different offenses, one in front of the cafe and another at a filling station. As stated, the conversation which began in front of the cafe, and was continued with some interruption at a filling station, was all in one transaction, and only one prosecution would lie, and the state is not required to elect upon what part of the conversation it would rely for a conviction. There is no question of guilt of defendant. The trial was fairly conducted, and no reason is made to appear why this court should interfere with the judgment.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    O. L. HAMMOCK v. STATE.
    No. A-8128.
    Dec. 17, 1931.
    (6 Pac. [2d] 16.)

      W. M. Williams and J. E. Sasseen, for plaintiff in error.
    J. Berry King, Atty. Gen., for tbe State.
   DAVENPORT, P. J.

Tbe plaintiff in error, hereinafter referred to as the defendant, was convicted of having possession of intoxicating liquor, and was sentenced to pay a fine of flOO and to be confined in tbe county jail for 60 days. To reverse tbe judgment the defendant appeals.

A number of errors are assigned and argued by tbe defendant, but tbe only ones it is deemed necessary to notice are the following :

“The court erred in permitting a deputy sheriff, who was called and testified as a witness in chief for the state, to summon extra talesmen to complete tbe jury after tbe regular panel bad been exhausted.
“The court erred in permitting tbe juror, Sam D. Rude, to sit on tbe jury over the objections of the defendant, after be bad been challenged for bias and prejudice.”

Tbe juror Sam D. Rude, on bis voir dire examination, stated be bad been summoned by E. N. Claubaugb, deputy sheriff, in tbe courtroom, after tbe special venire was ordered by tbe court, When this juror was examined on bis voir dire, counsel for tbe defendant filed tbe following motion:

“Comes now tbe defendant and renews bis challenge to tbe juror for tbe reason that he has exhausted all his peremptory challenges before the juror, Sam D. Rude, was called in the box; for the further reason that as tbe defendant has exhausted all his challenges and tbe jury panel has been exhausted, the court ordered the deputy sheriff, E. N. Claubaugh, whose name appears on the information in the case, to summons four talesmen so summoned by the deputy sheriff.
“By the Court: Overruled. There is more technicalities, subterfuges and evasions under the constitutional prohibitory laws than under all other laws known to the statute, to which the defendant invariably seeks to take advantage of. The Constitution prohibition, that is the Constitution of this state, has but one meaning and that is prohibit.
“By Mr. Sasseen: To which remarks of the court the defendant excepts, and also to the ruling of the court.”

The record shows that E. N. Claubaugh was one of the main witnesses in the case against the defendant, and that the defendant had exhausted all his peremptory challenges before the open venire was ordered by the court, and that Sam D. Bude was summoned by Mr. Claubaugh from the bystanders in the courtroom.

Section 2665, C. O. S. 1921, is as follows:

“When the panel is formed from persons whose names are not drawn as jurors, a challenge may be taken to the panel on account of any bias of the officer who summoned them, which would be good ground of challenge to a juror. Such challenge must be made in the same form, and determined in the same manner as if made to a juror.”

In this case the challenge was made to the individual juror summoned by the sheriff, on the open venire ordered by the court; the sheriff being one of the main witnesses in the case. There is a very strong reason for the rule announced by the statute. The officer having, an open or special venire, in serving the same, would have power to exercise his judgment partially, and to summons jurors whom he might think would favor the prosecution, and thus return a jury wholly favorable to the prosecution, and it is because sucb power might be exercised partially that the statute makes the fact that an officer is a witness for the prosecution a cause for challenge on the panel thus selected by him, on the ground of implied bias. For this reason we think the court erred in denying the challenge of the defendant to the juror Sam D. Rude.

This question has been before this court many times. In Lyde v. State, 21 Okla. Cr. 426, 209 Pac. 226, 227, in the body of the opinion this court said:

“This statute is well calculated to guard against handpicked juries by officers who might be inclined to select individuals whose inclinations and prejudices would cause them to favor a conviction.”

In Liddell v. State, 18 Okla. Cr. 87, 193 Pac. 52, 16 A. L. R. 405, the court said:

“It is essential to the fair and impartial administration of justice that an open or special venire of jurors should be summoned by an officer who is not disqualified by reason of interest, bias, or prejudice.
“Sections 5848, Revised Laws 1910 [now section 2665, O. O. S. 1921], authorizes a challenge to the panel of an open or special venire of jurors on account of the bias of the officer who summoned such jury, upon any ground which would be good ground of challenge to a juror. Held, that where the sheriff who serves an open or special venire of jurors is a material witness for the state, and a challenge to the panel of such open or special venire is interposed by defendant on such ground, it is reversible and prejudicial error for the trial court to overrule such challenge in a cause where a substantial defense is made to the charge.”

See Koontz v. State, 10 Okla. Cr. 553, 139 Pac. 842, Ann. Cas. 1916A, 689; Shepherd v. State, 17 Okla. Cr. 630, 192 Pac. 238; Welch v. State, 36 Okla. Cr. 298, 254 Pac. 503, and authorities therein cited.

The question of the selection of an improper juror to try the case being thus presented at the threshold of this inquiry, it becomes unnecessary to notice the several other assignments of error urged in the brief.

The judgment of the trial court is reversed, and the cause remanded.

EDWARDS and. CHAPPELL, JJ., concur.


text:
    HYE HARRIS v. STATE.
    No. A-7895.
    Dec. 17, 1931.
    (6 Pac. [2d] 448.)
    Roy White, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, for convenience referred to as the defendant, was convicted of robbery with firearms and sentenced to serve a term of five years in the state penitentiary, and appeals.

The testimony on behalf of the state in substance is as follows: C. L. Chastain was a farmer living about a mile from the home of the defendant, who lived with his father, Frank Harris. On October 28, 1929, Chastain sent a man by the name of Putnam to town to purchase some groceries. Putnam drove Chastain’s team to a wagon belonging to a man by the name of Freer, who was the father-in-law of Putnam. The defendant in this case accompanied Putnam to Henryetta. A Miss Freer, who was the sweetheart of the defendant, also accompanied them. Some time in the night following the day the defendant went to town with Putnam, Chastain claims the defendant came to his house and he called to him and asked him if that was Rye, and he said it was. The defendant came into' the house with a pistol in his hands, and told Chastain to put up his hands, and asked where the money was, and was advised by Chastain that the money was in his pants. Chastain further states that the defendant took what money he had out of his pants, and, as he started to leave, said, “Don’t call me Rye, I am not Rye.” Chastain positively identified the defendant, and is corroborated by Mrs. Bessie Williams and her daughter, Tressie Williams. They all stated they recognized the voice of the defendant, and Mr. Chastain states there was sufficient light through the window that he could see, and he was positive that it was the defendant. The testimony further tends to show that a short while before the robbery, and the night of the robbery, defendant stopped at the house of a man by the name of Brown and wanted to trade for a pistol.

The defendant in his testimony admitted he stopped at Brown’s house to' trade for a pistol, and admits that Miss Freer was with him at the time. He then states he went on up to the home of the Freer girl. Then he went to his father’s home, where he went to bed, and claims he picked cotton all day. He admits, however, that early the next morning he went to the Freer home and gave Miss Freer $10; that she wanted the $10 to make a trip to McAlester.

When the defendant was arrested, he had in his possession about $13. He claims he had earned this money by working, and could not explain why, if he was going to let Miss Freer have the money, he did not let her have it the day they went to Henryetta. The defendant’s father and mother testified that the defendant came home at a reasonable hour the night of the robbery, and that he came in and went to bed; that he remained at home the remainder of the night.

Several errors have been assigned by the defendant, but the only one urged in his argument is the question of the sufficiency of the testimony to convict the defendant. There is not only the positive testimony of three witnesses who claim to have identified and recognized the voice of the defendant, but the witness Chastain testified he could see sufficiently to identify the defendant; in addition to the positive identification of the defendant, other circumstances, from the morning of the day previous to the night of the robbery, up to and including the giving of the $10 to Miss Freer by the defendant, tend to connect the defendant with the commission of the crime.

There is no complaint that the court did not correctly instruct the jury as to the law. The record has been carefully examined. The testimony contained therein is sufficient to sustain the judgment. The jury was very liberal with the defendant, and gave him the minimum punishment. The defendant had a fair and impartial trial. There are no errors in the record sufficient to warrant a reversal.

The judgment is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    OLA RICHARDS v. STATE.
    No. A-8036.
    Dec. 17, 1931.
    (6 Pac. [2d] 450.)
    Brown Moore, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Payne county of burglary in the second degree, and was sentenced to serve a term of two years in the state penitentiary.

The only contention stressed is that the evidence is insufficient to sustain the judgment. The evidence is wholly circumtantial, and, in substance, is that at the time charged the Santa Pe Depot at Glencoe was broken into and some property stolen. A book stand was found by some section hands on the railroad right of way about a block north of the depot, and on it a finger print was discovered. The evidence is not positive that this book stand was ever in the depot. The inference arises from the testimony of the principal witness, Argubright, that it was in the depot, but, as he resided in Arkansas City, Kan., and did not have charge of the depot, it is apparent he was testifying from hearsay. The agent at Glencoe was not used as a witness. After this stand was found, it was taken to the depot, some powder pnt on it, and the finger print developed and a picture made. The expert of the Bureau of Criminal Identification at Oklahoma City, from a comparison with a finger print of defendant, testified they were the same. This is the only evidence tending to connect defendant with the crime. This evidence would he meager even if it were positively shown that the book stand was in the Glencoe depot at the time it was robbed. After verdict, defendant attempted to get a new trial on the ground of newly discovered evidence, supported by the affidavit of two reputed finger print experts, who make affidavit that the finger print on the instrument was so blurred and illegible that it could not be identified with any degree of certainty. The Attorney General does not confess error, bnt admits the evidence to sustain the verdict is very weak indeed.

Upon a consideration of the entire record, we are convinced that the evidence is not sufficient, to prove the guilt of defendant with that degree of certainty required by law.

The case is reversed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    SAM ALLEN v. STATE.
    No. A-8165.
    Dec. 17, 1931.
    (6 Pac. [2d] 14.)

      R. P. Montgomery, E. V. Rakestraw, and James H. Mathers, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called the defendant, was by information jointly charged with Jeanette Allen, of the murder of W. H. Humble, was tried separately, convicted, and sentenced by the comrt to serve a term of 20 years in the state penitentiary. Motion for new trial was filed, considered, overruled, exceptions saved, and defendant appeals.

The testimony on behalf of the state, in substance, shows that the defendant in this case was engaged in operating a filling station, and living with his family in the rear of the building, in the town of Roosevelt, Okla.; that W. H. Humble was deputy sheriff of Kiowa county, and lived in the town of Roosevelt, Okla.; prior to the 10th day of June, 1930, the deceased, W. H. Humble, had searched the defendant’s place of business for intoxicating liquors.

The testimony further tends to show that the deceased and defendant were not on friendly terms. On the afternoon of June 10, 1930, the deceased and his wife had driven down by the place of business of the defendant and on down to the ball park where some parties had engaged in ball practice. As the deceased and his wife returned from the ball park, the testimony of Mrs. Humble tends to show that the wife of the defendant, Mrs. Allen, was out in front of the filling station; that Mrs. Allen called to the deceased and had him stop his car and told him that Sam wanted to see him, meaning Sam Allen, the defendant in this case; the deceased got out of his car and went into the place of business of defendant, and within a few seconds the wife of the deceased heard three shots; she got out of the car and started to gO' into the building, and Mrs. Allen engaged her in a fight; she tried to get away, and Mrs. Allen pursued her; after the shooting was over, the defendant came out and called to his wife to quit fighting Mrs. Humble.

When the defendant came out of his place of business, parties came up and went in and found the deceased had been fatally wounded, and afterwards died from the effects of the wounds inflicted by the defendant.

The defendant called several witnesses, who testified as to the length of time Mrs. Allen had been at home before the trouble, for the purpose of contradicting Mrs. Humble’s statement that Mrs. Allen was at home as they passed going to the ball park, and also to show the deceased was a quarrelsome, troublesome, and dangerous man. The testimony of the defendant tends to show that he had been at his place of business during, the entire day; that his wife and children had been to his mother’s, about a mile away, and had only returned a few minutes before the trouble; that, at the time the deceased drove up to the place of business of the defendant, the defendant was in the rear room lying on a cot with the children playing around and over him; that the wife of the defendant was in the front room with her baby in her arms.

The testimony of the defendant further shows that the deceased came into the room and pushed Mrs. Allen down with her baby in her arm, and when he saw this he asked the deceased what he meant by what he was doing, and that when he did so the deceased made a movement as if to get his gun, and he shot the deceased in his right arm so he could not get his gun; the deceased then tried to get his gun with his left hand, and he shot him again; that he did not intend to kill the deceased and only shot to save his life; the defendant knew the deceased was an officer and was always armed.

There was considerable testimony introduced upon the question of the length of time the deceased and defendant had lived in Roosevelt, and to the fact that the defendant’s place of business had been searched by the officers for intoxicating liquor, which was immaterial for the purpose of presenting the facts in this case, and only tended to make the record more voluminous. It was also denied by the defendant that his wife was out in front of the place of business when the deceased and his wife drove up to the place of business of the defendant.

The defendant has assigned several errors alleged to have been committed in the trial of his case, which he insists are sufficient to warrant a reversal.

It is urged by the defendant that over his objection the state committed prejudicial error in the direct examination and cross-examination of the witnesses, and especially does the defendant complain of the admission, over his objections, of the acts of Mrs. Allen and the statements she is alleged to have made out of the presence and hearing of the defendant. The defendant insists that the court erred in admitting the testimony of the fight between Mrs. Humble, the wife of the deceased, and Mrs. Allen, the wife of the defendant, which was a separate and independent fight, away from the presence, hearing, and sight of both the deceased and defendant. Mrs. Allen was jointly informed against with the defendant, and the testimony with reference to what took place between Mrs. Humble and Mrs. Allen seems to have been admitted by the court on the theory that it was all one transaction, and that Mrs. Allen was trying to prevent the wife of the deceased from going to his assistance.

We do not think the admission of this testimony sufficient to warrant a,reversal of this case. While the state did not introduce any positive testimony tending to show a conspiracy between the defendant’s wife and the defendant, there is testimony tending to show that Mrs. Allen stopped the deceased and told him her husband wished to see him, and that the deceased got out of his car and Avent into the building where he was killed. On this question there is a conflict between the testimony of Mrs. Humble and the defendant’s testimony. From the time the deceased drove up to the place of business of the defendant there is a sharp conflict in the testimony as to what took place up to the time of the shooting of the deceased by the defendant. The defendant, being the only eyewitness to the shooting, insists that he only shot for the purpose of protecting his life or receiving great bodily harm. The conflict in the testimony was settled by the jury; the jury being the exclusive judges of the weight of the evidence and the credit it would give to the statement of the witnesses.

It is further urged by the defendant that the defendant was tried in an unfriendly atmosphere, that the deceased was an officer of the court, and that all the officers of the court Avere prejudiced against him. If this were true, the defendant should have exercised his statutory rights and filed a motion for a change of venue. There is nothing in the record to show that the trial court, or any of the officers of the court, in, any way whatever tried to influence the verdict of the jury.

The instructions of the court have been carefully examined, and we hold that, taken in their entirety, they correctly state the law applicable to the facts in the case. We hold further that the defendant was accorded a fair and impartial trial; that the evidence is sufficient to sustain the verdict; that there are no errors in the record posses-ing sufficient merit to warrant a reversal.

The judgment is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


author: PER CURIAM.

text:
    BILL CAMPLAIN et al. v. STATE.
    No. A-8193.
    Dec. 17, 1931.
    (6 Pac. [2d] 1117.)
    Champion, Champion & Pischl, for plaintiffs in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiffs in error, hereinafter referred to as the defendants, were convicted of the crime of burglary in the second degree, and sentenced to serve a term of two years in the state penitentiary at McAlester, and appeal.

The record in this case was filed in this court June 20, 1931; no brief has been filed in support of the defendant’s assignment of errors.

A careful examination of the record discloses no fundamental error, and the evidence is sufficient to support the verdict of the jury.

The case is therefore affirmed.


text:
    H. W. McNULTY v. STATE.
    No. A-8214.
    Dec. 17, 1931.
    (6 Pac. [2d] 1117.)
    Justin Hinshaw and Jack Page, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Cleveland county of grand larceny, and his punishment fixed at six months in the penitentiary.

Defendant and three others were jointly charged with stealing of the value of $226, the property of the Prairie Oil & Gas Company, from an oil lease. A severance was taken, and defendant was tried separately. Judgment was entered January 24, 1931. No briefs in support of the appeal have been filed. We have read the record with care, and perceive no jurisdictional nor fundamental error. The evidence sustains the judgment.

The case is affirmed.


text:
    Ex parte GEORGE THOUVENALL.
    No. A-8235.
    Dec. 17, 1931.
    (6 Pac. [2d] 1118.)
    J. Van Long, for petitioner.

      W. C. Henneberry, Asst. Co. Atty., for the State.
   CHAPPELL, J.

Petition for writ of habeas corpus was filed in this case on the 14th day of August, 1931. No briefs have been filed and no further proceedings taken on behalf of the petitioner.

The application is dismissed for failure to' prosecute.

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


text:
    PAUL WHITED et al. v. STATE.
    No. A-8253.
    Dec. 17, 1931.
    (6 Pac. [2d] 1117.)
    Jack W. Page and T. J. Henshaw, for plaintiffs in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiffs in error, hereinafter referred to as the defendants, were convicted of transporting intoxicating .liquor, and their punishment fixed at a fine of $250 each and by imprisonment in the county jail for 90 days, and appeal.

The record in this case was filed in this court on September 5, 1931; no brief has been filed in support of the defendants’ assignment of errors.

A careful examination of the record discloses no fundamental error, and the evidence is sufficient to support the verdict of the jury.

The case is therefore affirmed.


text:
    BILL WOMACK v. STATE.
    No. A-8146.
    Dec 17, 1931.
    (6 Pac. [2d] 1119.)
    Champion, Champion & Fischl, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of the offense of obtaining money under false pretense, and his punishment fixed at confinement in the state penitentiary for a period of one year, and appeals.

The record in this case was filed in this court on the 7th day of May, 1931; no brief has been filed in support of the defendant’s assignment of errors.

A careful examination of the record discloses no fundamental error, and the evidence is sufficient to support the verdict of the jury.

The case is therefore affirmed.


text:
    DONALD WELLS v. STATE.
    No. A-7905.
    Jan. 2, 1932.
    (6 Pac. [2d] 841.)

      Drennan & Drennan, for plaintiff: in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Grant county of unlawful transportation of intoxicating liquor, and his punishment fixed by the jury at a fine of $100 and imprisonment in the county jail for a period of 30 days.

The evidence of the state was that undercover men went to the home of defendant to purchase some Avhisky; that he told them he did not have any whisky and sent them to another place; that, failing to' get any whisky, they returned to the home of defendant; that he told them if they would wait he would go with them and get the whisky; that he served them with some bottle beer while they Avere waiting; that he got in his car and directed the witnesses to follow him to a certain point on the pavement and to wait there for him; that they did as directed, and stopped some distance from the house where they had previously been to get the whisky; that defendant went to the house and got a half gallon of whisky and brought it back and delivered it to- them; that they paid him for it, and in the trial identified the container and the whisky as being that Avhich they had purchased from defendant. The defense was an alibi.

Defendant contends first that the court erred in giving instruction No. 3 upon entrapment.

While the instruction is not in good form, the giving of the same was not reversible error.

Defendant next complains of the giving of that part of instruction No. 5 which reads as follows:

“And if you believe that any witness has willfully testified falsely to any material fact, you are at liberty to disregard the whole of his testimony, except in such matters as where he is corroborated by other credible evidence.”

Defendant relies on Rea v. State, 3 Okla. Or. 269, 105 Pac. 381; Rogers v. State, 8 Okla. Cr. 228, 127 Pac. 365; and Courtney v. State, 12 Okla. Cr. 169, 162 Pac. 1134, where the cases were reversed for the giving of such instruction.

In Cole v. State, 18 Okla. Cr. 430, 195 Pac. 901, and in Davis v. State, 18 Okla. Cr. 453, 196 Pac. 146, the rule laid down in the cases relied on by defendant was expressly overruled; the court there holding that the giving of such instruction was not reversible error.

Defendant next complains that the court erred in refusing to give certain requested instructions.

The trial court on its own motion, in substance, instructed the jury upon all the matters requested by defendant, and the motion to give requested instructions was properly overruled.

Finally, defendant contends that the evidence is insufficient to support the verdict of the jury.

In his brief, defendant’s argument is directed to the credibility of the witnesses, rather than the weight and sufficiency of the evidence. He argues that, since the evidence of the state was furnished by paid undercover men and the defense an alibi, this court should receive the evidence of the informers with suspicion, and, weighing the evidence, should find the issues in favor of the defendant.

The trial court gave defendant’s counsel wide latitude in his cross-examination of these witnesses, and the fact that they were undercover men paid by the state was brought out, and no doubt argued by counsel to the jury. With all of these facts before them, they found defendant guilty. We cannot now say that the evidence of those witnesses was unworthy of belief and should have been rejected by the jury — that was their exclusive province; they had a right to believe these paid informers as against the alibi, and evidently did so. There is no merit in the contention that the evidence is insufficient to support the verdict of the jury.

For the reasons stated, the cause is affirmed.

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


text:
    ANDERSON NOBLE v. STATE.
    No. A-8265.
    Jan. 2, 1932.
    (6 Pac. [2d] 840.)
    Walter Benson, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Lewis R. Morris, Co. Atty., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of murder and sentenced to death. Motion for a new trial was filed, considered, overruled and exceptions saved.

The testimony discloses that on the 19th day of December, 1930, in Oklahoma county, the defendant went to the home of his divorced wife, Carrie Noble, knocked on the door, and no one answered, and by breaking the lock or pushing it open entered the house; when he went into the house, his divorced wife was in the living room; the wife states that the defendant forced her into a room where Ellis Grayson was sleeping-, and knocked her down. They had some argument about opening a trunk, the defendant contending he had some things in the trunk he wanted to get. Defendant pushed her across the room and into a room where Pearl Edwards was, and again struck her and knocked her down. They went back into the room where Ellis Grayson was sleeping, and were still quarreling over the trunk, and defendant wanted to know where the man was she had been keeping company with, using vile language without naming any one. About this time Edward Jackson, the deceased, came into the house and walked into the room where the defendant and his divorced wife, Carrie Noble, were, and walked up toward the defendant and Carrie Noble. The defendant told the deceased to stop. The testimony further discloses on the part of the state that the deceased kept coming toward the defendant; that deceased had on an overcoat, and his hands were out of his pockets, and he did not have a pistol in his hands. The defendant shot the deceased, and deceased ran out the door and went away. The defendant then took Carrie Noble to his car, got in the car, and drove to the country, where in the early morning of the night of the killing he was arrested and returned to the city.

The defendant admits going to the home of his divorced wife; says he did not break open the door, but that it could be opened by pulling up on the door, and admits he slapped his former wife; that at the time they were quarreling over the trunk Edward Jackson came in with a pistol in his hand and wanted to know what the defendant was doing there. The defendant says he told Jackson to stop, and he kept coming toward him, and he fell back against the wall and fired the shot believing that, when he shot Jackson, it was necessary to save himself from great bodily harm, or losing his life. When the shot was fired by him, Jackson was coming toward him with a pistol.

There are some minor conflicts in the testimony as to what took place in the room; the former wife of the defendant and Ellis Grayson were the only ones in the room when the shot was fired or knew anything what took place. After the deceased had been taken to the hospital, he was undressed, and the testimony shows he did not have a gun on his person. This was some time after the shooting and after the deceased had left the house and gone down the street where he was picked up by some of his friends.

All of the testimony tends to show that the defendant in this case, although divorced from Carrie Noble, objected to the deceased, Edward Jackson, being with her. The circumstances and all the evidence tend to show that Jackson was somewhere around the place when the defendant went into the room with Carrie Noble, and, when the deceased advanced toward the defendant to resist the defendant in his efforts to abuse Carrie Noble, the defendant in his anger and excitement shot the deceased.

There is sufficient testimony in the record to warrant the jury in finding a verdict of guilty. The defendant urges that the punishment inflicted is too severe and is not warranted by the evidence in this case. After a careful analysis of the testimony, we hold that the punishment inflicted is excessive, and should be modified from death to life imprisonment, and, as modified, the judgment is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    PIRL DOWER v. STATE.
    No. A-8005.
    Jan. 2, 1932.
    (6 Pac. [2d] 839.)
    Rizley & Sweet, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

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

The prosecuting witness, Nina May ¡Stroud, was a girl 17 years of age, living in the country with her parents.

The evidence of the state was that the prosecuting witness was attending the county fair at Guymon, and was introduced to the defendant; that in company with another girl and another man they went to lunch in the evening and then to a dance, going to the fair grounds afterward; that they soon left there and attended a picture show; that defendant agreed to take her back to the fair grounds, but that the other couple drove to the country; that the other couple got out of the car, and defendant, over the objection and resistance of prosecuting witness, drove the car farther up the road and off on to a side road; that prosecutrix held on to the steering wheel of the car, but defendant caught her by the hands and pulled them loose, and pulled her out of the car, and, while she screamed and objected, accomplished an act of sexual intercourse; that another car came up the road and threw the headlights on them as they lay. on the ground; that defendant jumped up and ran, and that prosecuting witness fled across the field to a farmhouse, where she told of the assault; that she was taken back to Guymon and was examined by a physician, who testified that she had been raped; that soon thereafter she pointed the defendant out on the street; that, when he was arrested and taken to the county attorney’s office, he admitted, in the presence of the prosecuting witness, that he had attempted to have intercourse with her. Defendant did not take the witness stand, and made no personal denial of the charges of the prosecutrix.

Counsel for defendant contend that defendant at most is guilty only of an assault with intent to commit rape, because he failed to accomplish any penetration. The prosecuting witness testified positively that defendant did have intercourse with her, and she is sustained by Dr. Lee, who examined her shortly after the assault.

Defendant contends that the trial court erred in overruling his second application for a continuance, which would permit the taking of depositions, after the state had announced that they would abandon the charge of first degree rape, and try the defendant upon the charge of second degree rape, only.

When the state called the prosecuting witness to testify, defendant objected because her name was not indorsed on the information, although she had signed and verified the same. The court sustained this objection, and thereupon the state elected to go to trial upon a charge of second degree rape, whereupon the court permitted the State to indorse the name of the prosecuting witness on the information.

This application was asked for in order that defendant might obtain evidence to show that the prosecuting witness was over eighteen years of age at the time of the alleged offense. The application did not set out the names of any witnesses that the applicant knew who would swear to a state of facts showing the prosecuting witness to be over eighteen years of age at the time of the commission of the offense.

The information included a charge of second degree rape. This was sufficient notice to the defendant that he might be convicted of either first or second degree rape. Sections 2694, 2739 and 2740, C. O. S. 1921; Hallmark v. State, 22 Okla. Cr. 422, 212 Pac. 322.

It was defendant’s duty, therefore, to prepare to defend against a conviction for either of such degrees. The mere fact that defendant had failed to prepare his defense for second degree rape, merely because the information charged first, degree rape, was no ground to grant him a continuance to prepare to defend that degree. The state had a right at any time to abandon the prosecution for first degree rape and seek a conviction for second degree rape.

In his motion for a new trial, defendant alleges as one of the grounds that the court erred in overruling his application for a continuance, but at that time made no showing of the name of any person by whom he could prove, if a new trial was granted, that the prosecutrix was over eighteen years of age. If, as a matter of fact, such evidence existed, it was the duty of defendant to have subpoenas issued for witnesses or take depositions and prepare to show that fact. Ample time was given defendant before the trial to subpoena his witnesses and procure this evidence, if such existed. Having failed to do so, he is in no position to claim that the court erred in denying his application for a continuance.

The other contention of defendant is that the evidence is insufficient to support the verdict of the jury.

The information charged rape in the first degree, and the evidence was sufficient to support this charge, but, because of the failure of the county attorney to indorse the name of the prosecuting witness on the the information two days before the trial, the state was compelled to reduce the charge to second degree rape. This failure on the part of the county attorney was a lucky break for defendant, and he is fortunate to escape with a two-year sentence.

For the reasons stated, the cause is affirmed.

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


text:
    MARTIN A. KEENEY v. STATE.
    No. A-8245.
    Jan. 2, 1932.
    (6 Pac. [2d] 833.)

      Clarence W. Myers and Gordon Johnston, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Lewis R. Morris, Co. Atty., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted of murder in the district court of Oklahoma county, and his punishment fixed at death.

The record discloses that on September 14, 1930, Homer Folwell, a farmer 70 years of age, living about 12 miles northwest of Oklahoma City, was beaten to death with a blunt instrument, and his pockets rifled. Defendant, about 40 years old, had known Folwell a number of years and formerly had lived in the Folwell farm. He had been convicted of grand larceny and Folwell was a witness against him, and the inference of ill will because of this circumstance arises. After his discharge from the penitentiary, defendant returned to Oklahoma City, where he worked at various jobs. On the afternoon before the day of the homicide several witnesses saw a man dressed in light khaki unionalls, wearing a black cap, carrying a bundle two or three feet long under his arm, going, in the general direction of the Folwell farm. Some of the witnesses recognized this person as the defendant. About 6:30 p. m. of the day of the homicide Folwell went to the farm to do the evening chores. Soon his wife came outside and, looking toward the barn, saw a man dressed in light khaki clothing standing over and beating her husband with some kind of club. She was not able to identify this person as the defendant, though the general description coincided. After having been beaten, the body of Folwell was dragged behind the barn, the pockets emptied and belongings taken. At the scene a piece of a 410 shotgun was picked up. About a mile away Folwell’s bat was found, and near it the stock of a 410 shotgun. Some 30 days later the bent barrel of a 410 gun was found in another field. These pieces were assembled and each fitted exactly, demonstrating that deceased had been beaten to death with this gun. A chemical analysis showed the barrel to have human blood on it. About two hours after the crime defendant was seen about four miles from the Folwell farm dressed as heretofore described, walking from the direction of the farm toward the El Keno interurban line. Later he was seen to have boarded an interurban car toward Oklahoma City. An alarm having gone out, four farmers in an automobile followed this car to the Seventeenth Street Station, where defendant left it, and, at the request of these farmers, was arrested by a policeman. Upon searching defendant, the officer found a number of 410 shotgun shells in his pocket and two knives, one of which was identified as belonging to Folwell and carried by him at the time of his death. A spectacle case was also found on defendant, but it was replaced in his pocket by the officer, and as the officer was putting in a call for the police department defendant was seen to back up to a trash box and drop the spectacle case into it. When he did this, Coach Green, of Oklahoma City University, got off the bus which he had just taken, reached in and picked up the spectacle case. In this case were some clippings and a memorandum in the handwriting of Mrs. Folwell, all positively identified and shown to have been in the possession of Folwell at the time he was killed. Tracks near the body and leading away were found. In one track there was a raised place made by a hole in the shoe and one showed a nick or break in the heel of the shoe. Defendant’s shoes were compared with the tracks and found to be the same size. In one shoe there was a hole in the solé which corresponded with the raised place in the track, and in one heel there was a nick or break which corresponded with the heel track. When arrested, defendant was dressed in light khaki unionalls and was wearing a black cap. His shoes appeared to have been freshly washed, and a bandanna handkerchief in his pocket was thoroughly wet. His clothes disclosed spots which a chemist testified were blood spots, but was unable to get a sufficient quantity to determine if human blood.

Defendant claimed he had been hunting doves with one Myers who furnished him with the 410 shotgun. That he killed three doves and gave them to Myers, but when they separated Myers took the gun. He denied the pocket knife belonged to Folwell, and that he knew anything of the spectacle case and contents. Denied he was near the Folwell farm on the Saturday before the killing, or that he was north of the El Reno interurban line on either date. The evidence of guilt is conclusive. No contention is made that it is insufficient to support the judgment and sentence.

The first contention made is that certain witnesses, Tucker, Gillespie, Charbeneau, Smith, and Jones, called by defendant, and also the defendant, were not sworn. This contention is first made in the motion for a new trial. Attached to the motion is the affidavit of Tucker, Gillespie, and the defendant setting out, in substance, that they were not sworn nor affirmed at the time they testified, and that no oath or affirmation was administered to them. Charbeneau, Gillespie, Smith, and Jones testified orally in support of the motion that they were not sworn. The court reporter made a statement, in substance, that where a witness takes tbe stand and is not sworn in Ms presence, in transcribing tbe testimony be follows tbe form of showing tbe witness first duly sworn. Where the witness is sworn in bis presence, be usually, but not always, shows tbe witness sworn by tbe clerk or court, as tbe case may be. He appends a list of witnesses. After tbe name of some appears tbe words “Was sworn” and after others tbe word “Silent.” In those where tbe words “Was sworn” appears, it means tbe witness was then sworn or stated be bad been sworn. Where tbe word “Silent” follows tbe name it simply means that no record or notation as to tbe swearing of tbe witness was made. The word “Silent” appeared after tbe names of the witnesses Smith, Jones, Charbeneau, Tucker, and tbe defendant. To meet this showing, tbe state proved that some fifty or more witnesses were sworn at one time at tbe beginning of tbe trial. Tbe state then called Lewis R. Morris, tbe county attorney, who testified tbe witnesses Tucker and Charbeneau were sworn, and that defendant stood up with tbe state’s witnesses at tbe time tbe oath was administered. Yokley, a juror, testified the witnesses Tucker and Char-beneau were sworn by tbe court, but is doubtful as to the witness Smith. Harper, a newspaper reporter, testified that, of bis own independent recollection, be remembers tbe swearing of tbe witnesses Smith and Gillespie by tbe trial judge.

There is no direct contradiction of tbe testimony of tbe witness Jones that be was not sworn. However, tbe record at tbe time be was called and at tbe beginning of bis testimony is:

“Hugh Jones, called as a. witness by tbe defendant and having been first duly sworn, testified as follows. * * *”

Tbe witness Harper testified:

“Q. Did you attend practically all of that trial? A. Yes, sir. Q. I will ask you to state just what the procedure of the court was when the witnesses took the stand? A. Judge Hooker asked every one of them that got on the stand whether they had been sworn or not and if they said they hadn’t, several when I was in there, if the court clerk was there the clerk administered the oath, and the rest of the time he did. * * *”

At the time defendant was called, the record shows the following:

“Martin A. Keeney, defendant, having been first duly sworn, testified as a witness in his own behalf, as follows. * * *”

At the conclusion of the testimony in support of and in opposition to the motion for a new trial, the trial judge said :

“I remember distinctly of administering the oath to some of the parties who have testified here this morning that they were not sworn.”

Section 605, Comp. St. 1921, is in the chapter of Procedure Civil, but as there is no special provision for procedure in criminal cases the section is general in its application; it provides:

“Before testifying, the witness shall be sworn to testify to the truth, the whole truth, and nothing but the truth. The mode of administering an oath shall be such as is most binding on the conscience of the witness. An interpreter may be sworn to interpret truly, whenever necessary.”

This section should be construed in connection with section 2822, Comp. St. 1921 (the harmless error statute), and also section 2943, Comp. St. 1921, which is:

“Neither a departure from the form or mode prescribed in this chapter in respect to any pleadings or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant or tended to his prejudice, in respect to a substantial right.”

Our attention has been directed to various decisions wherein it has been held, in substance, that, where a witness for the state has testified without having been sworn, and where the accused and his counsel had no knowledge of such an irregularity until after the verdict, a new trial should be granted, although the error was inadvertent or accidental. Gibbons v. Territory, 5 Okla. Cr. 212, 115 Pac. 129; Langford v. U. S., 4 Ind. T. 567, 76 S. W. 111, 4 Ann. Cas. 1021; State v. Taylor, 57 W. Va. 228, 50 S. E. 247; Rhodes v. State, 122 Ga. 568, 50 S. E. 361; Barnes v. State, 61 Tex. Cr. R. 37, 133 S. W. 887; Smith v. State, 81 Ga. 479, 8 S. E. 187; State v. Hope, 100 Mo. 347, 13 S. W. 490, 8 L. R. A. 608; Moore v. State, 96 Tenn. 209, 33 S. W. 1046. Decisions in civil cases we do not deem applicable, but see Mayberry v. Sivey, 18 Kan. 291.

The settled rule of this court is that error is never presumed, but every presumption favors the regularity of the proceeding had upon the trial and, to be available, error must be affirmatively shown. We are convinced defendant has not sustained this burden and has wholly failed to establish the fact that any of the witnesses were not sworn. The record recites that the witnesses were duly sworn. This record is made and brought here by defendant. The solemn recitals therein and the finding of the trial judge must prevail in this court over the affidavits or testimony of the witnesses. Nor would the contention avail under the facts in this case if it had been shown. The cases in which a judgment has been reversed because witnesses were not sworn are all cases in which the witnesses testified for the state. No case has been called to our attention, and we have been unable to find one, where a reversal bas been ordered for failure to swear a defendant’s witnesses. The reason would seem to be obvious. A defendant is entitled to have the state’s witnesses sworn, but this is a right which is held in several of the cases cited that he may waive. Rhodes v. State, supra; Barnes v. State, supra; Smith v. State, supra; State v. Hope, supra; Moore v. State, supra. It applies with special force in the case of defendant’s testimony. If defendant testified without being sworn, as he now claims, he cannot wait until the verdict is returned and use this failure as a ground for a new trial. If he was not sworn, he knew it at the time he testified. The state also has a right to have defendant’s witnesses sworn. If the state by accident or inadvertence overlooks and thereby waives this right, surely the defendant would have no cause to complain.

Next it is urged that, after the jury retired to- deliberate, certain documents and other evidence were delivered to the jury in the jury room out of the presence of the court, and without the knowledge or consent of defendant or his attorneys. It is made to appear that while the jury were deliberating they asked for certain documents and pictures used in the trial. At their request, the bailiff went to the county attorney’s office, procured some documents and pictures, and took them to the trial judge and returned to the jury room. That the court clerk also took to the trial judge certain documents and pictures. After an inspection, the trial judge sent by the court clerk to the bailiff to be delivered to the jury certain documents and papers. Defendant contends that these exhibits contained some affidavit which had not been admitted in evidence. On the hearing of the motion for a new trial considerable evidence was taken in support or in opposition to this assignment of error, upon the conclusion of which the following transpired:

“The Court: It becomes necessary for the court to mate findings of fact in reference to the exhibits that were sent to the jury room. The jury sent down and requested such exhibits — the photographs introduced in evidence and the statement at the police station which had been identified by the defendant in this case. An effort was madé to locate the counsel for the defendant and, after we waited about thirty minutes and couldn’t find or locate either one of them, I sent to the-county attorney’s office and caused to be broug'ht to the court the photographs and the statement, and sent them to the jury room. Those were the only exhibits sent to the jury room. Mr. Morris: We would like to have the court find whether those were introduced. The Court: They had already been introduced in evidence and exhibited before the jury, and repeatedly referred to in the arguments to the jury by counsel for the state and for the defendant.”

It is not shown that the jury received any extraneous evidence or any exhibit which had not been properly identified and admitted in evidence. The sending of proper exhibits to the jury room instead of having the jury return into court and there delivering the exhibits to them in person is not error. Brown v. State, 52 Okla. Cr. 307, 4 Pac. (2d) 129; Powell v. State, 61 Miss. 319. See, also, White v. State, 20 Okla. Cr. 183, 201 Pac. 522.

Upon a consideration of the entire case, we are fully convinced defendant had a fair and impartial trial. His guilt is proven beyond any reasonable doubt, and the verdict and judgment are fully warranted by the facts and the law.

The case is affirmed.

The original time for the execution having passed, it is ordered that Friday, March 11, 1932, be fixed as the day for carrying such judgment into execution, and the warden of the penitentiary at MeAlester shall on said date carry out the judgment and sentence of death by electrocution of said defendant.

DAVENPORT, P. J., and CHAPPELL, J., concur.