author: BESSEY, J.

text:
    STATE v. R. O. BUNCH.
    No. A-4322.
    Opinion Filed Sept. 16, 1922.
    Rehearing Denied May 24, 1923.
    (214 Pac. 1093.)
    (Syllabus.)
    1. Embezzlement — Specific Penal Statutes Govern as Against General Provisions. Sections 3213, 7437, Rev. Laws 1910, are specific statutes within the meaning oí section 2092, providing that specific penal statutes shall govern as against general provisions of the Penal Code comprehending the same offense.
    2. Criminal Law — Where Specific Statutes Prescribe Different Penalties Prosecution May Elect. As between specific statutes prescribing different penalties for any offense, the state may elect to try an offender under either statute.
    3. Embezzlement — Information Against Court Cleqk — Sufficiency. The averments of the information recited in the opinion held sufficient, under section 7437, Rev. Laws 1910.
    4. Indictment and Informatioin — Offe,nse of Doing Any of Several Things Disjunctively May Be Charged Conjunctively — Proof of Either or All. Usually where a statute makes it an offense to do this, that, or the other of several things, disjunctively, the whole or any part thereof may be charged, conjunctively, and proof of either or all will support a coiivietion.
    5. Indictment andi Information — Order Nunc pro Tunc, Remanding Accused to Answer Ne.w Information, Where Demurrer Sustained. Where a judgment in a criminal case remains wholly unsatisfied,, the court may, during the term, on proper notice and in fuithjerance of justice, modify his orders or judgment previously made or rendered, as in this case, to the extent of making an order requiring the defendant held to answer a new 'or amended information covering the same offense; judgment having been previously rendered sustaining a demurrer to the original information.
    Appeal from District Court, Grant County; Will Linn, Assigned Judge.
    R. 0. Bunch! was charged with embezzlement of public funds. From an order sustaining his demurrer to the information, the State appeals.
    Reversed and remanded.
    J. B. Drennan and 3. E. Falkenberg,, for defendant in error.
    Geo. F. Short, Atty. Gen., and' E. L. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

The charging part of the information ia as follows:

"That the said Roy Otis Bunch, in the county and state aforesaid, on or about the 17th day of June, 1920, was the duly elected, qualified, and acting court clerk of Grant county, state of Oklahoma, and as such court clerk was charged and intrusted with the collection, receipt, safe-keeping, transfer, and disbursement of all public money belonging to the said county of Grant, state of Oklahoma, and to divers persons, firms, and corporations to your informant unknown, and of all other funds, property, bonds, securities, assets, or effects of any kind received, controlled, or held''by him by virtue of his said office of court clerk for safe-keeping, transfer, and disbursement, and that, the said Roy Otis Bunch, as such court clerk, and acting, charged, and intrusted as aforesaid, was intrusted and charged with, and did in said county and state, on or about the said 17th day of June, A. D. 1920, receive, have, and hold in his possession and under his control, by virtue of his said office, and for the purposes aforesaid, certain public money and other funds, property, bonds, securities, assets, and effects by him received and collected as such court clerk for costs in cases pending in the district court and in the county court of said county, and for marriage license fees, judgments, and for other purposes, and from various sources provided by law and to' your informant unknown, and which said public money' and other funds, property, bonds, securities, assets, and effects were received and held by him for the said county of Grant and state of Oklahoma, and divers persons, firms, and corporations to your informant unknown, in large sums, but the exact amount thereof being to your informant unknown; that the said Roy Otis Bunch, on or about the said 17th day of June A. D. 1920, in said county of Grant, and state of Oklahoma, then and there being, and then and there acting as such court clerk, and being then and there so charged and intrusted with the control, disbursement, receipt, safe-keeping, and transfer of said public money, funds, property, securities, assets, bonds, and effects aforesaid then being in his possession by virtue of his said office for safe-keeping, transfer and disbursement, did then and there unlawfully, willfully, wrongfully, and feloniously convert and appropriate to his own use and benefit, and to the use and benefit of other persons, bodies corporate, and associates to your informant unknown, a part of said public money and funds, property, bonds, securities, assets, and effects received, controlled, and held by and intrusted to him as such court clerk by virtue of his said office, to wit, the sum of, and to the amount of, and of the value of five thousand eight hundred forty-five dollars and sixty-one cents ($5,845.61), a more particular description of which is to your informant unknown, contrary to the form of the statutes in such eases made and provided, and againstt the peace and dignity of the state of Oklahoma.”

The demurrer to the information was as follows':

“Comes now the defendant, Boy Otis Bunch, and demurs to the information hereinbefore filed against him in said action, and for his demurrer alleges and says:
“(1) That the eourt has no jurisdiction of the defendant.
“ (2) That the court has no jurisdiction of the subject-matter.
“(3) That said information does not substantially conform to the requirements of the chapter of procedure of the state of Oklahoma.
“(4) That more than one offense is charged in said information, if any charge is made.
“(5) That the facts stated in the information do not constitute a public offense.
“(6) That the said information attempts to charge the crime of embezzlement under section 7437 of the General Laws of 1910, and that no offense can be charged against the court clerk under that section.
“(7) That the information contains any matter which, if true, would constitute a legal justification or excuse of the offense charged, or other legal bar to the prosecution.
“Wherefore the defendant prays judgment of the court.”

The court sustained the demurrer, but without intimating upon which of the seven grounds this order was made. From the brief of defendant in error we assume that the court based his order upon the first, second, and sixth paragraphs of the demurrer.

This court, in the case of Sam H. Hays v. State, 22 Okla. Cr. 99, 210 Pac. 728, held that section’ 7437, R. L. 1910, together with sections 3213 and 3214, R. L. 1910, are specific statutes dealing with the receipt, safe-keeping, and disbursement of public funds by state, county, or other officers, as distinguished from the general statute on that subject found in the Penal Code, section 2671, R. L. 1910. Several statutes referred to in this -opinion are set out at length in the Hays opinion, supra, which will be published in the same volume of the reporter as this case. In the interest of brevity, reference is made to the statutes quoted in that case.

Section 7437, R. L. 1910, under which this information is drawn, is not and never was a part of our Criminal Code proper. It is a special penal statutory provision, designed to reach public officers who held or diverted public funds and securities, or funds held by such officers officially, belonging to private individuals, or to firms and corporations, in violation of a public trust, though usually under some claim of justification.

Assuming that the allegations in this information are true, if the accused failed to report and pay monthly, as provided by law, he might have been prosecuted under the provisions of either section 7437 or section 3213, supra. To sustain a prosecution under the former, there must be an actual or implied conversion of the funds; under the latter, a willful or wanton failure to report and pay constitutes the offense. The former is also broader than the. latter, in that it includes the misapplication of private as well as public funds, and may include securities, bonds, and other evidences of debt. Under the provisions of these two specific statutes a county attorney has a right to elect to try a court clerk for the misappropriation, of funds under either section. Both being specific in their scope and nature, a prosecution against an offending state or county officer should be maintained under one or the other, and not under section 2671 or section 2243, R. L. 1910, of the Penal Code. Section 2092, R. L. 1910, provides as follows:

“If there be in any other chapter of the laws of this state a provision making any specific act criminal and providing the punishment therefor, and there be in this Penal Code any provision or section making the same act a criminal offense or prescribing the punishment therefor, that offense and the punishment thereof shall be governed by the special provisions made in relation thereto, and not by the provisions of this Penal Code.”

Section 2794, R. L. 1910, is in part as follows:

“An act or omission which is made punishable in different ways by different provisions of this article, or other penal statute, may be punished under either of such provisions. ’ ’

The information, in our opinion, does not state more than one offense. This court clerk may have converted to his own use funds of which a part belonged to the state, a part to the county or other municipality, a part to private individuals or firms, as rebates and costs, and a part being money belonging to judgment creditors. In this regard section 7437 is broader and more comprehensive than section 3213. The thing prohibited by the provisions of section 7437 is not the misappropriation of any particular item or fund, but the misappropriation of any and all funds, in violation of his trust as a public officer. In this case the embezzlement charged, in the amount of $5,845.61, was probably made up of a multitude of items from various sources. But one offense is stated, and it is not necessary in such a case to plead specifically a description of the individual items composing the aggregate. The manifest purpose of this statute was to make a blanket provision covering any or all such delinquencies, constituting but one offense. Otherwise there is no excuse for this statute. If each item constituted a separate offense, to be separately pleaded and proved, then the provisions of section 2671, R. L. 1910, a section of the' general Penal Code, would have been sufficient. The difficulty and sometimes utter impossibility of making specific allegations and proof in such cases was doubtless recognized by the Legislature, which enacted section 7437 to meet this apparent defect inherent in the general embezzlementstatutes, of the Criminal Code.

Where a statute makes it an offense to do this, that, or the other of several things, disjunctively, the whole may be charged as one offense, conjunctively, and the defendant may be found guilty of any-one. Fulkerson v. State, 17 Okla. Cr. 103, 189 Pac. 1092. Middleton v. State, 16 Okla. Cr. 320, 183 Pac. 626. Adams v. State, 5 Okla. Cr. 352, 114 Pac. 349. State v. Brown, 10 Okla. Cr. 52, 133 Pac. 1143. Cole v. State, 15 Okla. Cr. 361, 177 Pac. 129. 14 R. C. L. 188.

It is contended by counsel for defendant in error that it is necessary to allege and prove that the money was taken fraudulently, citing Buckles v. State, 5 Okla. Cr. 109, 113 Pac. 244, and Blake v. State, 12 Okla. Cr. 549, 160 Pac. 30, L. R. A. 1917B, 1261. Neither case supports the claim made. This statute, section 7437, R. L. 1910, was amended in 1909 to meet the objection pointed out by Justice Furman in the Buckles Case, that the statute as it then stood was void for uncertainty. In the Blake Case, as in this case, there was an averment in the information that there was an unlawful appropriation, not in the lawful execution of his trust as clerk. This is a sufficient allegation of the felonious taking, but the proof in that ease showed that the clerk had not misapplied the fund in controversy and was at all times ready to pay the same to the judgment creditor to whom it belonged, a situation entirely different, from the one here at issue.

Our conclusions in this ease are not in conflict with the former decisions of this court in McDaniel v. Brown, 16 Okla. Cr. 149, 180 Pac. 156, and Warner v. Mathews, 11 Okla. Cr. 122, 143 Pac. 516. In both those cases the prosecution was for specific sums of money less than $20; In each case it was claimed that the information charged embezzlement under the general Penal Code, section 2243, R. L. 1910, as follows:

“Any sheriff, coroner, clerk of a court, constable or other ministerial officer, and any deputy or subordinate of any ministerial officer who either:
“First. Mutilates, destroys, conceals, erases, obliterates or falsifies any record or paper appertaining to his office, or,
“Second. Fraudulently appropriates to his own use or to the use of another person, or secretes with intent to appropriate to such use, any money, evidence of debt or other property entrusted to him in virtue of his office—
“Is guilty of felony.”

The court very properly pointed out that, where there is a general statute defining an offense and prescribing a punishment and also a specific statute covering the same offense, the specific statute should be invoked, pursuant to section 2092, R. L. 1910, supra. In this connection it was pointed out in these two cases that the offense came properly within the purview of the specific offense, as defined in section 3213, supra. In neither of these opinions was any mention made of section 7437, also a specific statute, which might have been invoked at the election of the county attorney, under the statutory rule that, where an act or omission is punishable in different ways under different penal statutes, the offense may be prosecuted under either statute, subject, of course, to the statutory provisions relating to general provisions of the Penal Code and special provisions relating to the same subject.

Finally, defendant in error complains that because the court when he sustained the demurrer to the information, failed to order the county attorney to file another information against him for the same offense, this prosecution as to him was, at an end, and that the appeal here is a mere moot question upon the points of law involved. The record discloses that it was the opinion of the trial judge that a new or amended information should be filed, but that he failed at that time to make such an order. Eight days later, upon notice to the defendant in error and his counsel, and at the same term of court, the court amended or modified his order previously made, and directed the county attorney to file another information against the defendant. Ordinarily the order should be made at the time the court sustains the demurrer to the original information, but it is a well-established rule, in criminal as well as in civil cases, that where the judgment of the court remains wholly unsatisfied the court has inherent power to modify its judgments and orders during the term. This was the rule at common law, and by our statute, section 5543, R. L. 1910, it is provided that:

“The procedure, practice and pleading in the courts of record of this state, in criminal actions or in matters of criminal nature, not specifically provided for in this Code, shall be in accordance with the procedure, practice and pleadings of the common law. ’ ’

See Ex parte Howland, 3 Okla. Cr. 142, 104 Pac. 927, Ann. Cas. 1912A, 840; 8 R. C. L. “Criminal Law,” § 246.

The judgment of the trial court, sustaining the demurrer, is reversed with, instructions to the county attorney to file another information, similar in form and substance to the information first filed, under the provisions of section 7437, E. L. 1910, or, if he so elects, he may proceed under section 3213, E. L. .1910, as may to him seem expedient. If proof of an implied or actual personal conversion cannot be established, but it can be shown that the accused failed to report and pay over funds, as provided by law, the prosecution should be under section 3213; otherwise, he should proceed under section 7437.

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


source: Caselaw Access Project

author: MATSON, P. J.

license: Public Domain

text:
    A. P. COUCH v. STATE.
    No. A-4311.
    Opinion Filed May 25, 1923.
    (214 Pac. 1089.)
    (Syllabus.)
    Appeal and Error — Dismissal—Grant of Pardon to Appellant. When a full and complete pardon is granted appellant pending the determination of his appeal, the appeal will be dismissed.
    Appeal from District Court, Carter County; Thomas W. Champion, Judge.
    A. P. Couch was convicted of manslaughter, and he appeals.
    Appeal dismissed.
    Bass & Hardy and S. J. Castleman, for plaintiff in error.
    George P. Short, Atty. Gen., and Leon S. Hirsh, Sp. Asst. Atty. Gen., for the State.
   MATSON, P. J.

This is an appeal from the district court of Carter county, wherein on the 24th day of October, 1921, plaintiff in error was convicted of the crime of manslaughter in the first degree and sentenced to a term of 20 years’ imprisonment in the state penitentiary. Prom such judgment he has taken an appeal to this court, by filing herein on the 22d day; of April, 1922, his petition in error and case-made.

The Attorney General has filed a motion to dismiss the appeal, for the reason that on the 2d day of May, 1923, the Governor of this state granted this plaintiff in error a full and complete pardon for such crime. A copy of such pardon is attached to the motion to dismiss the appeal, and counsel for plaintiff in error have also informed the court that plaintiff in error has been pardoned for this offense. Where a full and complete pardon is granted, and this fact is brought to the attention of this court pending an appeal, the appeal will be dismissed. Lightfoot West v. State, 23 Okla. Cr. 210, 214 Pac. 196.

Appeal dismissed:

DOYLE and BESSEY, JJ., concur.


author: DOYLE, J.

text:
    ARCH FLOOD et al. v. STATE.
    No. A-4117.
    Opinion Filed May 26, 1923.
    (215 Pac. 215.)
    (Syllabus.)
    1. Indictment and Information — Duplicity—Charging Two Separate Offenses in One Count. An information is bad for duplicity that charges two separate and distinct offenses in one count, and a demurrer thereto should be sustained.
    2. Indictment and Information — Information Containing .Contradictory Allegations bad on Demurrer.. An information containing contradictory and repugnant, allegations is bad on demurrer.
    Appeal from District Court, Payne County; C. C. Smith, Judge.
    Arch Flood and another were convicted of an assault with intent to commit a felony, and they appeal.
    Reversed.
    Walter Mathews, for plaintiff in error.

      George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiffs in error were by the verdict of a jury found “guilty of the crime of assault with intent to commit a felony, as charged in the information.” The jury were unable to agree upon the punishment. The court rendered judgment upon the verdict and sentenced the defendant Arch Flood to imprisonment in the state penitentiary for a period of three years, and the defendant Mike Le Forge to imprisonment in the state reformatory at Granite for a period of five years. To reverse the judgment the defendants appeal.

The information was in two counts. .The first count charged the defendants with an attempt to rob W. A. Matthews by force and fear induced by pointing a loaded pistol at him, and attempting to take from his person and immediate presence about $40. The second count of the information upon which the defendants were tried and convicted charges:

“That on or about the 28th day of June, 1921, Arch Flood and Mike Le Forge, acting together, then and there being, did then and there unlawfully, wrongfully, willfully, and felon-iously make an assault in and upon one "W. A. Matthews with a pistol then and there loaded with gunpowder and leaden bullets, with the unlawful, wrongful, and felonious intent then and there of the said Arch Flood and Mike Le Forge to take, steal, and carry away from the person and immediate presence of the said W. A. Matthews by force and fear certain personal property, to wit, about $40 in money and other valuable things, the property of the said "W. A. Matthews, then and there in his immediate possession and presence, without the knowledge and consent of the said ~W. A. Matthews, and against the will of the said W. A. Matthews, by means of force and fear employed by the said Arch Flood and Mike Le Forge then and there overpowering and overcoming the resistance of the said W. A. Matthews, and did then and there point said pistol at the said W. A. Matthews and ordered and commanded the said W. A. Matthews to turn his money over to the defendants, Arch Flood and Mike Le Forge, and did then and there threaten to shoot and kill the said "W. A. Matthews if he did not comply with the said request of the said defendants to give his money to them, and did then and there go into the.room in the immediate presence of the said W. A. Matthews, and in which room the personal property of said W. A. Matthews was had, held, and kept, and did then and there try to take, steal, and carry away the money, watch, and other valuable things, the personal property of the said W. A. Matthews, without the knowledge and consent of the said W. A. Matthews, and against his will, with the unlawful, wrongful, and felonious intent then and there to deprive the said "W. A. Matthews thereof and to convert the same to the use and benefit of the said Arch Flood and Mike Le Forge contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the state of Oklahoma.”

The defendants demurred to the information on the following grounds:

“(1) That more than one offense is charged therein.
“(2) That the facts stated do not constitute a public offense.
“(3) That the information does not conform to the requirements of the Code, in this, that the act or omission charged as the offense is not stated with such a degree of certainty as to enable the court to pronounce judgment upon a conviction according to the right of the case.”

The demurrer was overruled, and exception allowed.

The second count of the information seems to embrace the essential elements of at least two offenses as defined by the Penal Code.

We have no specific offense of assault with intent to rob, and the information must have been based on section 1758, Comp. Stats. 1921, providing that:

“Any person who is guilty of an assault with intent to commit any felony, except an assault with intent to kill,” and prescribing the punishment.

The first allegation is sufficient to charge an assault with intent to rob. Bobbery is larceny by force or intimidation, and it is sufficient to charge it in either form. “It is not necessary to specify what accused intended to take” (McLain, Cr. Law, pars. 269, 281, and authorities cited), nor to aver that the accused intended to deprive the owner of its value.

It is further stated that the defendants intended to take the property without the knowledge and consent of the said W. A. Matthews and against the will of the said W. A. Matthews. These allegations are contradictory and repugnant.

Our Penal Code provides:

“The taking of property from the person of another is not robbery, when it clearly appears that the taking was fully completed without his knowledge.” Comp. Stats. 1921, § 1789.

It is further alleged that said defendants went into a room “and did then and there try to take, steal, and carry away the money, watch, and other valuable things, the personal property of the said W. A. Matthews, without the knowledge and consent of said W. A. Matthews and against his will, with the unlawful and felonious intent then and there to deprive the said W. A. Matthews thereof.”

The facts alleged in the second count of the information constitute two separate and distinct offenses, namely, assault with intent to rob and assault with intent to steal. Our Code provides:

“The indictment or information mnst charge bnt one offense; bnt where the same acts may constitute different offenses, or the proof may be uncertain as to which of two or more offenses the accused may be guilty of, the different offenses may be set forth in separate counts in the same indictment or information.” Comp. Stats. 1921, § 2558.

An information should be direct and certain as to the offense charged, so that the defendant may know what he is called upon to answer, and that the, court may know how to render a proper judgment thereon. Kime v. State, 14 Okla. Cr. 111, 167 Pac. 1159; Wells v. Territory, 1 Okla. Cr. 469, 98 Pac. 483. It also appears that the court in the instructions given submitted the offense of assault with intent to rob, also the offense of attempt to commit grand larceny.

In Williams v. State, 16 Okla. Cr. 54, 180 Pac. 559, it is held:

“Where it is clear from the information, the evidence, the verdict, and judgment that the defendant was called upon to defend against two separate and distinct offenses charged against him, over his repeated objections and exceptions, this court will not permit a conviction under such circumstances to stand unreversed, for the reason that such a conviction does not afford the defendant that fair and impartial trial according to the forms of law guaranteed to him by the Constitution and statutes of this state.”

It cannot be determined from the form of the verdict in this ease whether the jury convicted the defendants of assault with intent to rob as charged in' the information, or of an attempt to commit grand larceny as charged in the information. It follows that it is not sufficient to support the judgment pronounced upon it.

For the reasons stated, the judgment of conviction is reversed, and the cause remanded for proceedings consistent with this opinion.

MATSON, P. J., and BESSEY, J., concur.


text:
    JEFF STANFIELD v. STATE.
    No. A-4362.
    Opinion Filed May 26, 1923.
    (215 Pac. 216.)
    (Syllabus.)
    Appeal and Error — Dismissal—Acceptance of Parole. When the pardoning power extends clemency, and the same is accepted pending the determination of an appeal, the appeal will be dismissed.
    Appeal from Superior Court, Okmulgee County; H. R. Christopher, Judge.
    Jeff Stanfield was convicted of manslaughter in the first degree, and he appeals.
    Appeal dismissed.
    Robertson & Braden, for plaintiff in error.
    George F. Short, Atty. Gen., and Leon S. Hirsh, Sp. Asst. Atty. Gen., for the State.
   MATSON, P. J.

This is an appeal from the superior court of Okmulgee county, wherein, on the 12th day of December, 1921, plaintiff in error was convicted of the crime of manslaughter in the first degree for the killing of one Eugene Denton, alleged to have occurred in the said county on the 16th day of August, 1921, and punishment fixed at imprisonment in the state penitentiary for a period of 20 years.

Counsel for plaintiff in error and the Attorney General have each filed motions to dismiss this appeal for the reason that the Governor of this state, pending the appeal, granted the plaintiff in error a parole, which said parole the plaintiff in error accepted. It appears from the records in the office of the Secretary of State that on the 5th day of January, 1923, Gov. Robertson granted this plaintiff in error a parole for this .crime, which said parole was accepted by the plaintiff in error on the 6th day of January, 1923, and subscribed to by him in the presence of two witnesses. The repeated holdings of this court are to the effect that, when the pardoning power extends clemency, and the same is accepted pending the appeal, the appeal will be dismissed. Butler v. State, 4 Okla. Cr. 637, 112 Pac. 758; Ernst v. State, 17 Okla. Cr. 282, 187 Pac. 930.

The plaintiff in error having been granted a parole for this crime, and having accepted the same pending the determination of this appeal, the appeal is for that reason dismissed.

DOYLE and BESSEY, JJ., concur.


text:
    FRANK DOWNS v. STATE.
    No. A-4015.
    Opinion Filed May 26, 1923.
    (215 Pac. 217.)
    (Syllabus.)
    Appeal and Error — Trial—Duty to Direct Performed Verdict Where Jury Fails to Assess Punishment as Directed — Modification on Appeal. Where upon request of the defendant the jury are directed to declare the punishment in their verdict, and the jury, contrary to such instruction, render a general verdict without assessing the punishment, it becomes the duty of the court to direct the jury to reform their verdict, assessing the punishment. Where the .court fails to do this, but it clearly appears that the defendant is guilty as charged, a judgment on such a general verdict will not for that reason alone be reversed, but may be modified as the circumstances may require.
    Appeal from County Court, Harmon County; E. C. Abernathy, Judge.
    Frank Downs was convicted of the unlawful manufacture of whisky, and he appeals.
    Modified and affirmed.
    Stewart & Edwards, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

Plaintiff in error, Frank Downs, defendant below, was on March 4, 1921, convicted of the illegal manufacturing of whisky. The court assessed his punishment at a fine of $300 and 60 days in jail. From this judgment he appeals. It appears in this ease that defendant had recently moved into premises where he found parts of an old still in a stone cave or cellar; that later a number of his relatives were invited to go with him on a fishing and duekshooting trip. The accused assembled the parts of the still and was in the act of manufacturing whisky to be used on this trip when the officers searched his residence and seized the outfit, together with three or four quarts of whisky. At this time some of the hunting and fishing party had arrived; others were expected to come later.

There is but one assignment of error seriously urged in the brief of defendant. At the close of the testimony and after the instructions of the court had been read to the jury, defendant requested the court to instruct the jury that they were required to fix the punishment in the event they found a verdict of guilty. The court thereupon instructed the jury as requested; the jury retired and after a brief deliberation returned into court with the following verdict:

“We, the jury, drawn, impaneled, and sworn in the above entitled cause, do upon our oaths find the defendant guilty, as charged in the information herein.”

The defendant excepted to this verdict as "not being in conformity with the law.” This exception is rather vague and indefinite, but we assume that the exception was taken, because the verdict was general and because the jury failed to fix the punishment. No finding or inquiry was made by the trial court as to why the jury failed to fix the punishment and no inquiry was made as to whether they were unable to agree upon the punishment. The statutes applicable to a condition like this are sections 2743, 2750, and 2751, Comp. Stat. 1921, as follows:

"In all cases of a verdict of conviction for any offense against any of the laws of the state of Oklahoma, the jury may, and shall, upon the request of the defendant, assess and declare the punishment in their verdict within the limitations fixed by law, and the court shall render a judgment according to such verdict, except as hereinafter provided.”
"Where the jury find a verdict of guilty, and fail to agree on the punishment to be inflicted, or do not declare such punishment by their verdict, the court shall assess and declare the punishment and render the judgment accordingly.”
"If the jury render a verdict not in form, the court may, with proper instructions as to the law, direct them to reconsider it, and it cannot be recorded until it be rendered in some form from which it can clearly be understood what is the intent of the jury.”

Without asking the jury to reform the verdict to conform to the request of the defendant, the court pronounced judgment on the general verdict, assessing the punishment at a fine of $300 and 60 days in jail. This amounted to a denial of a statutory right, but since the defendant admits the making of the whisky it would be useless to grant a new trial. The judgment of the trial court is ordered modified, the punishment to be fixed at a fine of $50 and 30 days in jail, the minimum provided by statute. With such modification the judgment below is affirmed.

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


text:
    JOHN RADFORD v. STATE.
    No. A-4139.
    Opinion Filed May 26, 1923.
    (215 Pac. 218.)
    (Syllabus.)
    1. County Attorneys — Duties and Responsibilities — Delegation of Duties to Assistants. A county attorney is vested with a personal discretion and responsibility as a minister of justice, and not as a mere lietensed attorney, and he must act impartially, as well in refraining from prosecuting as in prosecuting. He must guard the real interests of public justice in behalf of all concerned, and he is disqualified from becoming in any way entangled with private interests or grievances connected with the private practice of law, and, while he may employ assistants in various ways not involving his official discretion or responsibility, he cannot delegate this discretion except t'o an assistant, duly appointed and qualified as provided by law.
    2. Indictment and Information — Invalidity of Conviction of Misdemeanor on Information not Signed by Person Designated by Law. The conviction of a person under an information charging a misdemeanor, not signed by the person designated by law, is void for want of jurisdiction in the trial court.
    Appeal from County Court, Pottawatomie County; Clarence Robinson, Judge.
    John Radford was convicted of violating the prohibitory liquor law, and he appeals.
    Reversed and remanded.
    T. G. Cutlip, for plaintiff in error.
    George F. Short, Atty Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is prosecuted from a conviction had. in the county court of Pottawatomie county, in which plaintiff in error was found guilty upon an information charging that the defendant, John Radford, did have in his possession intoxicating liquors with the intent to barter, sell, and otherwise furnish the same. On the 8th day of August, 1921, he was sentenced in accordance with the verdict of the jury to be confined in the county jail for 30 days and to pay a fine of $50.

It is assigned as error that the trial court erred in denying the defendant’s motion to set aside the information and in overruling the defendant’s objection to the introduction of any evidence upon the ground of the insufficiency of the information, and particularly because the same was not signed and preferred by the county attorney.

On this assignment we adopt the confession of error as the opinion of the court:

“Confession of Error by Attorney General.
“On the 3d day of January, 1921, McClain Taylor was appointed assistant county attorney of Pottawatomie county by Claude Hendon, the duly qualified and acting county attorney of said county. This appointment was in writing, and was filed with the county clerk of said county. On March 17,1921, the Legislature passed a special act providing for one assistant county attorney in Pottawatomie county, at a salary of $150 per month, and one stenographer at a salary of $100 per month.
“The closing paragraph of section 1 of the act referred to, which is chapter 91, Session Laws 1921, p. 115, is a follows:
“ 'The foregoing shall be in lieu of all deputies, assistants and stenographers, provided for heretofore in counties of the class mentioned herein.’
“On April 1, 1921, the county attorney designated Mr. Taylor as stenographer, and appointed one W. S. Pendleton as assistant county attorney, and thereafter Mr. Taylor was carried upon the pay roll of the county as a stenographer in the county attorney’s office, and his claim for salary was allowed as stenographer, and such claims were O. K.’d and approved by the county attorney, and accepted by the board of county commissioners and salary warrant issued to Taylor as a stenographer in the county attorney’s office.
"On June 4, 1921, McClain Taylor filed an information in the county court against the plaintiff in error herein, charging him with the unlawful possession of spirituous, vinous, fermented and malt liquors, with the unlawful and willful intent to barter, sell and give away same, contrary to the statute, and signed said information ‘Claude Hendon, County Attorney, by McClain Taylor, Assistant.’ When the ease was called for trial, a motion to quash the information was filed by the plaintiff in error, alleging that McClain Taylor was not an assistant county attorney, and had no authority of law to file the information, and that the court had acquired no jurisdiction by reason of the filing of the information, which was overruled, and when the plaintiff in error was put on trial and evidence offered, a motion was filed and objection made to the introduction of any testimony on the information filed, for the same reason above set forth, which was overruled. Testimony was introduced, and upon the completion of the same the jury returned a verdict finding the plaintiff in error guilty, and fixing the punishment at 30 days in jail and a fine of $50. Motion for new trial was filed, in which the errors alleged to have been committed by the court in the overruling of the motion to quash, and the objection to the introduction of testimony, were assigned, which motion for new trial was overruled by the court, and plaintiff in error sentenced in accordance with the terms of the verdict, and upon this state of facts this appeal is brought.
"The question raised in this case has been very forcibly passed upon in the case of Me Gar rah v. State, reported in 10 Okla. Cr. 21, 133 Pac. 260, and appealed from the county court of Oklahoma county, in which case the facts were that the law provided for four assistants county attorney in Oklahoma, presumably because of the excessive amount of work incumbent upon the county attorneys of Oklahoma. Mr. Hooker, then county attorney of Oklahoma county, employed one H. H. Peck as a fifth assistant in the office, paying his salary out of his (Hooker’s) private fund, and commissioning and author- ■ izing the said Peck to discharge all of the duties of an assistant county attorney. An information was filed against Mc-Garrah, signed ‘Sam Hooker, County Attorney, Oklahoma County, ’ and verified by H. M. Peck. On the back of the information is the statement: ‘I have examined the facts in this case, and recommend that a warrant do issue. Sam Hooker, County Attorney, by H. M. Peck, Deputy County Attorney.’
“The facts above stated relative to the appointment and remuneration of Peck were verified by Mr. Hooker, upon a motion filed similar to the one filed in the case at bar, which motion was overruled by the trial court, and upon appeal this court said:
“ ‘We know of no rule of law whereby a public officer may delegate power or authority involving official discretion or responsibility except as prescribed by the statute. The law has very carefully guarded the administration of public justice from any interested or unauthorized intermeddling. The county attorney is a very responsible officer, selected by the people and vested with a wide personal discretion, intrusted to him as a minister of justice. There are many reasons why a power of this kind should be confined to the prosecuting officer. He is expected to be impartial in abstaining from prosecuting, as well as in prosecuting, and to guard the real interests of public justice in favor of all concerned.
“ ‘It is therefore of the highest importance to the public that this power should be carefully exercised, and that the responsibility should rest upon the officer to whom it is confided.
“ ‘By section 1557, supra, a county attorney is disqualified from becoming in any way entangled with private interests, or grievance connected with the private practice of law. The office of county attorney is quasi judicial, and the county attorney and his legally appointed assistant must be exclusively the representative of public justice, and stand indifferent as between the defendant and any private interest. No doubt a county attorney may employ assistants in various ways, not involving his official discretion or responsibility; but our laws have only allowed his official discretion to be delegated where assistant county attorneys have been provided for by the statute. The public have a right to insist upon the performance of public duties that are strictly official in the prosecution of crime by county attorneys and assistants duly appointed and qualified as provided by law, and we think it would be directly contrary to public policy to allow or permit any general delegation of'the county attorney’s power or responsibility in this respect.
“ ‘It is our opinion that, the county attorney’s name not having been subscribed to the information by himself or by a legally constituted assistant, the court acquired no jurisdiction to try the case, and the conviction and sentence of the defendant are void.’
“Under the rule thus announced by this court, we think the county court of Pottawatomie county committed error by overruling plaintiff in error’s motion to quash, and we therefore suggest that this cause should be reversed.”

It follows that the county attorney’s name not having been subscribed to the information by himself or by a legally constituted assistant, the court acquired' no jurisdiction to try the cause, and the conviction and sentence of the defendant are void.

The judgment of the lower court is therefore reversed, and the cause remanded thereto to be disposed of as required by law.

MATSON, P. J., and BESSEY, J., concur.


text:
    PETE CUMPTON v. CITY OF MUSKOGEE.
    No. A-4529.
    Opinion Filed April 28, 1923.
    Rehearing Denied June 1, 1923.
    (225 Pac. 562.)
    (Syllabus.)
    1. Municipal Corporations — Powers Under Special Charter — Ordinances for Local Self-Government. By section 3, art. 18, of the Constitution, this state has delegated to municipal corporations under special charters enlarged powers of local self-government. A city so organized has delegated to it power to enact, ordain, and enforce ordinances for the purpose of protecting the public peace, order, health, morals, and safety of its inhabitants, even though general statutes exist relating to the same subjects.
    2. Same — Penal Ordinances not in Conflict with State Laws. Municipalities have no power to enact ordinances that tend to defeat or run counter to the penal laws of the state, but it is within the power of such municipalities to enact and enforce ordinances penal in their nature in aid of, or not in conflict with the penal laws of the state.
    3. Former Jeopardy — Prosecution Under City Ordinance not Bar to Prosecution under State Law. A prosecution in a city court for a violation of a municipal ordinance which prohibits an act which is also an offense under the general criminal law of the state is not a bar to a prosecution under such state law;' such a second prosecution would not be in conflict with section 21 of our Bill of Rights, providing that no person shall be twice put in jeopardy for the same offense.
    4. Same — Same Facts .Constituting Different Offenses. The violation of a municipal ordinance is an offense against the municipality, and the same facts and circumstances may constitute another and different offense against the state, the same facts constituting different offenses against different governing bodies.
    5. Municipal Corporations — City Court’s Jurisdiction to Try for Crime Defined by Ordinance Where Provision for Jury Trial. Where a municipal ordinance defines an offense as a crime, as distinguished from a mere petty offense, and provides for a trial by a jury of the county, as in this case, and such a jury is afforded, the court has power and jurisdiction to try the offender, and to assess and enforce the punishment accordingly.
    6. Searches and Seizures — Seizure of Liquor Held not “Unreasonable.” The facts as here shown did not constitute an unreasonable search and seizure within the meaning of the federal .Constitution or of our Bill of Rights.
    7. Criminal Law — Accused not Bound to Explain Telephone Conversation of Third Person with Officer in His Presence. A defendant in a criminal prosecution will not be bound by statements made by the arresting officer declaring the import of a telephone conversation had by the officer, in the presence of the defendant, with some unknown person, tending to implicate the defendant criminally.
    (a) Under the circumstances here, the defendant was not required to explain or deny the purported facts related by- the officer, and the admission in evidence of what the officer said this unknown person told him over the telephone was error.
    Appeal from County Court, Muskogee County; Enloe V. Yernor, Judge.
    Pete Cumpton was convicted of the illegal possession of intoxicating liquors, and he appeals.
    Reversed.
    R. P. De Graffenried and A. M. De Graffenried, for plaintiff in error.
    Cliff V. Peery, for defendant in error.
   BESSEY, J.

This was a prosecution originally instituted by the city of Muskogee in the city court of that city by the filing of a complaint against the plaintiff in error, hereafter designated the defendant, charging him with the possession of intoxicating liquors with the intent to sell or otherwise dispose of the same. A trial was had in the city court and the defendant was found guilty and his punishment assessed at a fine of $25. An appeal was taken from this conviction to the county court of Muskogee county, where the defendant was again convicted and a fine of $75 assessed against him. The defendant then, appealed to this court.

The defendant urges first that the ordinance under which he was convicted was void. The ordinance attacked is, in part, as follows:

“Sec. 2. That it shall be unlawful for any person to manufacture, sell, give away, dispose of, exchange, barter or otherwise furnish any intoxicating liquor as defined in this ordinance, except when the same is manufactured, sold or otherwise furnished in accordance with the laws of the United States, and of the state of Oklahoma, and the rules and regulations duly prescribed thereunder.
“Sec. 3. It shall be unlawful for any person to keep or possess any intoxicating liquor as the same is defined in this ordinance with the intent to sell or otherwise dispose of the same in violation of section 2 of this ordinance.”
“Sec. 7. Any person who shall violate any provision of this ordinance shall on conviction for the first offense b% fined in any sum not exceeding $100; and shall on conviction for the second or any subsequent offense under this ordinance, be fined in any sum not exceeding $100 or be imprisoned not exceeding 60 days, or both.”

Defendant says this ordinance is void because it provides for a maximum penalty of a fine of $100 and imprisonment for a-period of 60 days; that the lawmaking body of the municipality had no authority to enact an ordinance, penal in its nature, providing for such a penalty, and that the city court was without power to enforce such an ordinance. Defendant assumes that the lawmaking body of this municipality has constitutional and statutory authority to enact ordinances, penal in their nature, pertaining to minor municipal offenses in cases only where the penalty provided is without imprisonment, and where the fine and costs do not exceed $20.

Section 1, art. 7,' of the Constitution of this state, provides :

“The judicial power of this state shall be vested in the Senate, sitting as a court of impeachment, a Supreme Court, district courts, county courts, courts of justices of the peace, municipal courts, and such other courts, commissions or boards, inferior to the Supreme Court, as may be established by law.”

This clearly contemplates that the Legislature may create such courts other than those named in the Constitution as may in its judgment seem appropriate. Burke v. Walker, 25 Okla. 353, 109 Pac. 544; Chickasha Cotton Oil Mill Co. v. Lamb, 28 Okla. 275, 114 Pac. 333.

This court has held in a number of cases that an ordinary police magistrate, in the absence of express legislative authority, has no power to try persons accused of any grave offense, commonly classed as a “crime,” without a jury, and that where no legal means was provided for obtaining a jury such magistrate had authority only to take cognizance of petty offenses, where he might try the offender in a summary way without a jury and assess a fine and costs not to exceed $20. Ex parte Daugherty, 21 Okla. Cr. 56, 204 Pac. 937; Ex parte Bochmann, 20 Okla. Cr. 78, 201 Pac. 537; Ex parte Johnson, 20 Okla. Cr. 66, 201 Pac. 533; Ex parte Tom Johnson, 13 Okla. Cr. 30, 161 Pac. 1097.

In each of the cases cited it was held that the several courts involved were limited to the trial of petty offenses, but this court did not hold, nor intend to hold, that it was beyond the power of the Legislature to enlarge the powers and jurisdiction of police magistrates. This court held, in effect, that in each of those eases the Legislature had not done so. In the Daugherty Case the court intimated that legislative provisions could be made for trying graver offenses in police courts. Without doubt, then, the Legislature may enlarge the powers and jurisdiction of city courts, and the question here presented is, Has it done so as affecting the city of Muskogee?

. This court will take judicial notice that Muskogee comes within the classification by population set out in chapter 113, Session Laws of 1917, as amended by chapter 157, Session Laws of 1919, providing for the establishment and organization of a “city court.” Provision is made for a judge, a clerk, a deputy clerk, and two marshals. The jurisdiction of the court is defined in both civil and criminal cases, and provisions are made for trying persons accused of the violation of city ordinances of a penal nature. Provision is made for the selecting and impaneling of juries from the body of the county, so that in any case where the accused is charged with an offense under the laws of the state or under a city ordinance he may, except in the case of mere petty municipal offenses, have his constitutional right to a trial by jury. Provision is also made for a division of the expense of maintaining this court, a portion of it being allotted to the county and the other portion to the municipality.

By section 3, art. 18, of the Constitution, this state- has delegated to municipal corporations under special charters enlarged powers of local self-government. A city so organized has delegated to it power to enact, ordain, and enforce ordinances for the purpose of protecting the public peace, order, health, morals, and safety of its inhabitants, even though general statutes exist relating to the same subjects. They have no power to enact ordinances that tend to defeat or that run counter to the penal laws of the state, but it is within the power of such municipalities to enact and enforce ordinances penal in their nature in aid of, or not in conflict with, the penal laws of the state. Ex parte Johnson, 20 Okla. Cr. 66, 201 Pac. 533.

A prosecution in a city court for a violation of a municipal ordinance which prohibits an act which is also an offense under the general criminal law of the state is not a bar to a prosecution under such state law; such second prosecution would not be in conflict with section 21 of the Bill of Rights, providing that no person shall be twice put in jeopardy for the same offense. The violation of a municipal ordinance is an offense against the municipality, and the same facts and circumstances may constitute another and different offense against the state, the same facts constituting different offenses against different governing bodies. We hold, therefore, that the ordinance here in question is not unconstitutional or void as being beyond the power delegated by the state to the lawmaking body of this municipality. In re Simmons, 4 Okla. Cr. 662, 112 Pac. 951.

A city judge is selected by the electors of the municipality, like some justices of the peace, but there is no constitutional prohibition against giving such city judge or justice of the peace jurisdiction beyond the corporate limits of the city, within the county, and the power of a city court to call a jury from the body of fhe county is within the provisions of our Constitution and the federal Constitution. The reasons for the constitutional right of an accused to an impartial jury in the county where the offense is charged to have been committed are well stated in Re Monroe, 13 Okla. Cr. 62, 162 Pac. 233, as follows:

“It was never contemplated by our judicial system that police courts should have such jurisdiction; hence no provision was made by which they can impanel a jury. But we think the very section of the Bill of Rights (sec. 20) that guarantees to the accused in all criminal prosecutions a jury precludes the idea of a jury trial in a police court by specifying that, the jury provided for by that section shall be ‘an impartial jury,’ not of Abe city or jurisdiction in which the case is tried, but ‘of the county in which the crime shall have been committed.’ And this provision, we think, was * * * intended by the framers of the Constitution to insure to the accused, as far as possible, the kind of jury designated, namely, ‘an impartial jury,'’ and as far as possible to hedge against the professional juror, who would naturally become .a ‘hanger on’ round a police court,- to draw his pay, and do the behests of the presiding judge of that tribunal, and thus defeat the very purpose for which the, jury system was' called into existence.”

Now, this: municipal court is more than an ordinary police court. It is, in a sense, a state court, a court of special and enlarged jurisdiction, a court with powers extending beyond the borders of the municipality and exercising powers in some respect analogous to a justice of the peace, also a municipal officer, whose power to summon juries and witnesses from beyond the limits of the district in which he is empowered to hold court has never been questioned. Ordinary police magistrates have no authority to summon jurors from the county, but here the Legislature has provided for a city court with enlarged jurisdiction and has provided a way for doing this. We hold, therefore, that where a municipal ordinance defines an offense as a crime, as distinguished from a mere petty offense, and provides for a trial by a jury of the county, as in this case, and such a jury is afforded, the court has power and jurisdiction to try the offender and to assess and enforce the punishment accordingly. City courts having special composite jurisdiction have been established and upheld in many of our sister states. State v. Dreger, 97 Minn 221, 106 N. W. 904; Ex parte Wilbarger, 41 Tex. Cr. R. 514, 55 S. W. 968; In re Greer, 58 Kan. 268, 48 Pac. 950; Chesney v. McClintock, 61 Kan. 94, 58 Pac. 993.

The officer who made the arrest in this case had no writ or warrant for the arrest of the accused; he had no search warrant empowering him to search this room. Without such warrants the arrest was made and the room searched. The eircum- > stances under which this was done, as shown by the record, were as followsi: The officers went to the hotel where the defendant was registered; they looked'on the register and ascertained which room defendant was registered in; they went to this room and knocked on the door, and defendant told them to come in; the officers then entered and told him that they were informed he had some whisky, and defendant told them to “help themselves”; the little handbag was seen sitting on the floor by the side of the bed; they picked it up, opened it, and the whisky, empty bottles, corks, and funnel were in it, but nothing else. The defendant did not demand a search warrant, and at no. time made any objection to the entrance of the officers or the search of his room. They entered the room upon his invitation; they searched the room without objection, with his express or implied assent, he having told them to “help themselves.” The right to be unmolested without a search warrant was a right that could be waived and we think that in this case the defendant did waive it by his words and conduct.

The defendant claimed that .the handbag and its contents belonged to his brother. The handbag, the quart of whisky, the empty bottles, and corks were carried away by the officers without objection. Was this an “unreasonable seizure” within the meaning of the Fourth Amendment to the Constitution, providing:

“The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures,- shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Was it contrary to section 30 of our Bill of Rights, providing:

“The right, of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing toi be seized.”

Where, as the evidence tends to show in this ease, the accused was a single man, a migratory vendor of corn whisky, having his home (?) and business office in various rooming houses and hotels, it would seem' that the room so occupied by him would not be invested with such sacred privacy as would be accorded to a private residence, a real home, or a legitimate place of business, where the occupants may rightfully claim a right to privacy and freedom from official intrusion. Further, it s'eems that here the conduct of accused was practically equivalent to an invitation to proceed without a warrant. No objections were interposed either to his arrest or to the taking of the evidence of law violation. His room was his place of business, where he was equipped with a small funnel and small containers, to supply; thirsty customers at retail. He was,- charged with illegal possession and the officers, we think, were justified, in this instance, in making this arrest without a warrant. Section 2471, Comp. Stat. 1921, provides that an officer may without a' warrant arrest a person for a public offense committed or attempted in his presence. The illegal possession of this liquor in the presence of the officers was indicated by the equipment there found, showing that the whisky was there to be sold, contrary to law. The offense charged was “illegal possession.” This possession was in the presence of the officers; that its possession was for illegal purposes was apparent. The arrest was not made until after the accused denied! the ownership of the whisky, bottles, corks, and funnel, there inspected by the officers without any objection. Arrests made without a warrant, on suspicion, for a crime not committed in the presence of an officer are illegal; and this is true where the crime is not apparent until after the arrest or illegal search, hut if the right to demand a search warrant was waived and the search disclosed an illegal possession, the offense was then committed in the presence of the officer, which justified the subsequent arrest of the accused without a warrant. Hughes v. State, 145 Tenn. 544, 238 S. W. 588, 20 A. L. R. 639, and annotations. If this room or “home” was open for the free entrance of customers, the officers had a right to enter when the accused bade them “come in.” When the officers said to the accused, “We have heard you have some whisky here,” and the defendant replied, “Help yourself, ’ ’ the taking of the whisky and containers, in our judgments, did not constitute an unreasonable search and seizure within the meaning of the federal Constitution or our Bill of Rights. Dillon v. United States (C. C. A.) 279 Fed. 639.

If the search had been unreasonable and made with force, over the protest of the accused, the rule might be different. It would require too much space to review the divergent authorities upon the question of the admissibility of evidence obtained by an illegal or unauthorized search and seizure. We hold that the facts here do not raise that issue, and an interpretation of that point is not necessary to a decision in this case. The constitutional rights of persons accused of crime will be guarded by this court with the utmost vigilance, but, on the other hand, this court will not erect stumbling blocks calculated to embarrass officers in all reasonable lawful efforts to enforce the criminal laws of this state.

Finally, it is urged that the court erred in admitting in evidence a telephone conversation had in the presence of the defendant, which came about in this wise: A few minutes after the arrest of the defendant the landlady announced to the officers that the defendant was wanted at the telephone. The officer said to her that he. would answer the' telephone for him. Thereupon he went to the phone and announced to the party who was calling that he was Pete Cumpton and asked what was wanted. The reply was, “Bring it down right way, I am dry as h — The officer then turned to the defendant and said to him. “One of your customers wants you to bring him down a couple of pints.”

We have come to the conclusion that this telephone conversation was both incompetent and prejudicial. It was not a spontaneous declaration of a participant or bystander, or an integral part of the crime charged, s'o as to be a part of the res gestae. It was not even explanatory of the constituent conditions and circumstances of the crime, except by an uncertain inference from an unknown source. Neither was it an accusation or declaration that the accused, under the circumstances, was bound to answer or explain. The accused cannot be compelled to testify against himself, directly or indirectly. Even if the source of the telephone conversation was known, the defendant could have remained silent, and his silence, under the circumstances, should not be disclosed to the jury to his prejudice. The jury may have believed, and probably did believe, that the statement of the officer that “one of your customers wants a couple of pints” was competent proof that the person telephoning was ai customer of the accused. This fact, if it was a fact, cannot be established in this manner, by the declaration of a third person.

For the erroneous reception of this evidence, this cause is reversed.

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


text:
    STEPHEN DENISON v. STATE.
    No. A-4041.
    Opinion Filed June 2, 1923.
    (215 Pac. 433.)
    (Syllabus.)
    1. AssauK and Battery — Evidence Sustaining Conviction of Assault with Dangerous Weapon — Lack of Prejudicial Error. Record examined and held: Evidence sufficient to support verdict and judgment, that the instructions were as favorable to defendant as the evidence warranted, and that no prejudicial error occurred during the progress of the trial.
    2. New Trial — Misconduct .of Jury — Affidavit Based on Hearsay Insufficient. A motion for new trial on account of misconduct of the jury after the cause had been submitted, supported alone by the affidavit of the defendant, was properly overruled, where the affidavit did not indicate that affiant had personal knowledge of such misconduct or that he obtained such information from credible sources, with the names of witnesses by whom he believed such ground may be proved.
    Appeal from District Court, McCurtain County; E. F. Lester, Judge.
    Stephen Denison was convicted of an assault with a dangerous weapon, and he appeals.
    Affirmed.
    L. E. Mifflin and H. C. Ray, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

This is an appeal from a judgment of conviction of assault with a dangerous weapon, rendered in the district court of McCurtain county on the 21st day of February, 1921, wherein plaintiff in error was sentenced to serve a term of five years’ imprisonment in the state penitentiary.

The alleged assault occurred on the 23d day of April, 1920. The evidence on the part of the state discloses that the defendant, Stephen Denison, stabbed and wounded one Bryant Morris several times with a knife. A full statement of the facts is unnecessary.

Four propositions are advanced as grounds for reversal of this judgment.

First, it is contended that the evidence is insufficient to sustain the verdict and judgment. There is a sharp conflict in the evidence, but the evidence on the part of the state’s witnesses if believed was amply sufficient to authorize the jury to find defendant guilty.

The defense interposed was self-defense and defense of his brother, Henry Denison. This defendant and his brother were clearly not without fault in bringing on the difficulty that resulted in the stabbing and wounding of the prosecuting witness. Besides the knife that was used by defendant in assaulting Bryant Morris, the Denison boys were armed with a pistol and the inference is impelling, from the evidence, that they sought the Morris boys with the intent to provoke a difficulty with them and to use the weapons at hand, should the occasion arise.

The instructions given by the trial court covering the law of self-defense were more favorable to defendant than the evidence demanded, and the failure to give the requested instruction on this issue, which constitutes the basis of defendant’s second contention, is held to be without error.

Further it is contended that the trial court erred in admitting in evidence a certain knife which it wasi alleged the defendant had used in committing the assault; this for the reason that such knife was not sufficiently identified as the knife used by defendant, before it' was allowed to be introduced as evidence. Before the knife was admitted' to be introduced, Mike Morris testified in substance that he thought he would know the knife Stephen Denison cut Bryant Morris with, and, after examination of the knife afterwards introduced, testified that it was the “same kind” of a knife, “same size,” and “it is either that one or one just exactly like it.” The foregoing identification was sufficient.

The final ground relied upon is that:

“The trial court erred in not granting the defendant a new trial on account of the improper separation of the jury after the case had been submitted to them and they had retired to make up a verdict.”

The record supporting this assigned error is substantially as follows: The motion for a new trial contains the following ground, which is numbered paragraph 8:

‘ ‘ The verdict of the jury convicting defendant should be set aside because of improper conduct on the part of the jury in this, to wit: That this case went to the jury about 6 o ’clock, p. m., on the 10th day of February 1921; the jury retired to consider their verdict and remained in the jury room about an hour; that they then went to the Rouleau Hotel in charge of the bailiff; that said bailiff had been placed under oath to keep the jury together and not to talk or permit any one else to talk to or communicate with them, and that one of the jurors, to wit, R. C. Newton, separated himself from said jury and went into the Kniseley Bros, drug store and thereafter went to' the said Rouleau Hotel; that there were several persons in Kniseley Bros, drug store at the time said R. C. Newton went into said drug store ; that there were several persons along the street between Kniseley Bros, drug store and the Rouleau Hotel; that immediately after said R. C. Newton came out of Kniseley Bros, drug store the Denison case was being discussed by the parties in said drug store; that by virtue of said separation of said jury the defendant’s rights have been and were jeopardized.”

The foregoing paragraph of the motion for new trial is verified by the oath of the defendant “that the statements contained in paragraph No. 8 are true and correct.” This ground for a new trial is unsupported by any other affidavit.

In support of this assignment of error counsel cited the case of Goins v. State, 9 Okla. Cr. 35, 130 Pac. 513, wherein it was held:

“Where a bailiff in charge of a jury, after the case has been finally submitted, permits a juror to leave the jury room to go out upon the streets, and such juror’s conduct during his absence is unexplained, the trial court should sustain the motion for a new trial. ’ ’

The rule stated in the Goins Case finds support in the other decisions of this court, but an examination of these decisions discloses that in each instance the motion fori a new trial was not based alone upon the unsupported affidavit of the defendant. We believe that before a new trial should be. granted on account of the misconduct of the jury after the cause is submitted, supported alone by the affidavit of the defendant, such affidavit should be full and explicit and indicate whether or not defendant was an eyewitness to such misconduct, and if not an eyewitness should state the names of persons from whom he obtained such information and further indicate the reason or reasons why he is unable to secure the affidavit of any other witness but himself to support his motion for a new trial. In the case of State v. Page, 212 Mo. 224, 110 S. W. 1057, the Supreme Court of Missouri, in dealing with the question here presented, had the following to say:

“The allegation in the motion for new trial on the ground of the misconduct of the jury, and that the sheriff was not properly sworn, is supported alone by the affidavit of the defendant. This motion for new trial absolutely finds no support from any disinterested witness or as to that from any, witness other than the defendant himself. We are cited to. numerous cases where new trials have been granted on the ground of the misconduct of the jury, and our attention is specially directed to the case of State v. Howland, 119 Mo. 419, 24 S. W. 1016, and it is urged by counsel that particular stress was attached to tha fact that the affidavit in that case in support of the motion was uncontradicted; but it will be observed in that case,, as in all other adjudicated cases which disclose the parties making the affidavit that it was not resting upon the mere affidavit of the defendant, but was an affidavit made by other witnesses. The affidavit in the Howland Case was made by witnesses Barr and Bailey, and we are unwilling to hold that the mere affidavit of a defendant who has been convicted of a serious offense, charging misconduct upon the part of the jury, that it is absolutely essential that there should be some showing made by the state contradicting his affidavit. If that is to be the rule, then it would be hailed with great favor by persons who had been convicted’of serious crimes who desired to avail themselves of it in order to procure a new trial, and would result in many cases which reach this court of having the record burdened with affidavits of officials and jurymen, for the purpose of contradicting statements made in an affidavit by the defendant alone. Whether there was any misconduct upon the part of >the jury was a question of fact resting upon the circuit judge to determine, and while we do not mean to hold that there may not be instances where the granting of a new trial would be justified upon the unsupported affidavit of the defendant, yet we have no hesitancy in saying that, in order to warrant' such course, the affidavit should be full and explicit, indicating fully as to whether or not he was an eyewitness — that is, witnessed personally the misconduct — or, if not, as to. the persons from whom he obtained the information, and further indicating at least some sort of a reason why he is unable to secure the affidavit of any other witnesses aside from himself to support his motion for a new trial. The trial judge is entitled to have the presumption indulged that he dealt fairly and impartially with the defendant in the trial and disposition of his case. We are decidedly of the opinion that to allow the question as to whether a new trial should be granted upon the ground of misconduct of the jury, predicated upon the unsupported affidavit of the' defendant, to rest with the trial judge, would in no way endanger the rights of a defendant or a fair and impartial administration of justice, and hisi position as the presiding judge at the trial is peculiarly one which gives him an opportunity of determining the weight which should be attached to an unsupported affidavit made by the defendant who is seeking a new trial on the ground of misconduct of officials and jurors connected with the case, and, as before stated, the trial judge is entitled to have the presumption indulged that he will fairly and impartially determine the questions presented by such affidavit. ’ ’

In the case of Reagan v. State, 57 Tex. Cr. R. 642, 124 S. W. 685, it is held:

“Where affidavits in support of an application for new trial for alleged misconduct of the jury were not specific, and it was uncertain from the record whether the misconduct in fact occurred, the motion, in so far as it was based on such grounds, was properly denied.”

In this case it is not clear from' the record whether the defendant was remanded to the custody of the sheriff before the cause was finally submitted to the jury. It is apparent, however, that this ground of the motion was never seriously urged in the trial court.

We think the rule as stated by the Supreme Court of Missouri in State v. Page, supra, is fair to the defendant; that before the state should be compelled to controvert such ground of the motion the defendant should indicate either that he had personal knowledge of such misconduct on the part of the jury or that he obtained such information from credible sources, and give the names of the witnesses by whom he believes such ground may be proved, otherwise the presumption will be indulged that he was fairly and impartially dealt with by the trial judge who must of necessity have had some information as to defendant’s opportunity of knowing personally the matters and things set up in the motion. If in fact there was a separation of the jury in the manner as set out in paragraph 8 of the motion, it is evident from the statements therein contained that the opportunity was’open to the defendant, if such statements were true, to obtain the affidavits of witnesses who had personal knowledge of the fact, of such separation in support of his motion. In previous decisions of this court, where new trials were granted upon this ground, such supporting affidavits were in each instance forthcoming. For reasons stated, we think there was no abuse of judicial discretion in overruling the motion for a new trial on this particular ground.

We have indicated our views upon the propositions discussed and relied upon for reversal of this judgment, and conclude that in our opinion the defendant was afforded a fair trial, and that the judgment of the trial court should be affirmed, and it is so ordered.

DOYLE and BESSEY, JJ., .concur.


author: BESSEY, J. D.

text:
    D. E. PARTON v. STATE.
    No. A-3832.
    Opinion Filed June 2, 1923.
    (215 Pac. 435.)
    (Syllabus.)
    Homicide — Defense of Temporary Insanity — Exclusion of Evidence of Abuse of Daughter of Accused, the Wife of Deceased, by Him Prior to Admitted Reconciliation Held not Erroneous. In a homicide case, where justification is claimed on a plea of self-defense and insanity, where the defendant and the deceased had entertained hostile feelings towards each other, and later, by defendant’s own admissions, became reconciled and friendly, it is not error for the court to exclude evidence of extreme physical abuse by the deceased upon the daughter of defendant before such reconciliation; the claim .being made that such cruel conduct caused the defendant at times to be irrational.
    Appeal from District Court, McCurtain County; Geo. S. Marsh, Judge.

      D. E. Parton was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.
    H. P. Hosey and Jeff D. McLendon, for plaintiff in error.
    The Attorney General and.E. L. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J. D.

E. Parton, plaintiff in error, here designated the defendant, was by information filed in the district court of MeCurtain county on November 29,1919, charged with the murder of Melton New. At the trial, February 14, 1920, he was by a verdict of the jury found guilty of manslaughter in the first degree, and his punishment fixed at imprisonment in the penitentiary for a term of 10 years.

Some years prior to this tragedy the deceased, Melton New, married a daughter of the defendant. Their domestic life was turbulent. The deceased frequently whipped, beat, and shamefully abused his wife, defendant’s daughter, and this abuse and ill treatment continued up to the time of her death, about six years prior to the homicide. The defendant had known of this abuse at the time, but after his daughter’s death he and the deceased became friendly and entered into a partnership in a sawmill and cotton gin enterprise. In time ill feeling again developed between the parties growing out of partnership transactions.

The homicide occurred in the public highway, in the presence of several witnesses. The deceased was digging and cleaning out a ditch which ran along the side of the road adjacent to the premises in his possession. The outlet of the ditch was being constructed so that the water flowed out and over the mill premises adjacent, belonging to the defendant. On the morning of the homicide the defendant was riding in a wagon along this highway in company with two others. When they approached the deceased, who was working with a shovel in this ditch, a dispute was had about how the outlet to the ditch should be constructed. The defendant either jumped out of the wagon or was thrown out by a sudden movement of the wagon, and he drew hisi pistol and shot the deceased four or five times, from which gunshot wounds he soon died.

The defendant claimed justification in his necessary self-defense and also sought to show that he was temporarily insane on account of the physical abuse which his daughter had suffered at the hands of the deceased. There is evidence to show that the deceased was of a turbulent and quarrelsome disposition and habitually carried a pistol, and that he had often threatened to punish or even kill the defendant. The defendant and one witness say that after the defendant got out or fell out of the wagon the deceased made a gesture as if to get a pistol out of his shirt bosom, and that then the defendant drew hisi gun and fired four or five shots into the body of the deceased in rapid succession. Other witnesses present say in effect that the deceased made no demonstration, and that the defendant was the aggressor.

Complaint is made that the trial court refused to permit the defendant to show the different acts of physical violence perpetrated upon his daughter years before the tragedy. In the absence of the jury the proffer was made in this wise:

“By Mr. Hosey: Defendant offers to show by himself that this trouble was brought up by deceased beating his wife, who was the defendant’s daughter, and at that time he threatened defendant with dire punishment if he resented it; a few months after the same thing occurred again, deceased threatening what he would do to the defendant; a few months after that the same thing was done, and it was done on and one for several times frequently until the death of the deceased’s wife, defendant’s daughter; that all of this time the deceased was threatening defendant, telling him and sending him word as to what he was going to do with him if he resented it; that he threatened to kill both his wife and the defendant; that the last beating deceased gave his wife, the daughter of this defendant, so this defendant was informed and verily believed, was the cause of her death; that at the time of the death of the wife of deceased, defendant’s daughter, her eyes were blacked, both of them, brought about by the licks of the deceased; that the defendant was informed and verily believed that she had stripes up and down her back, brought about by lashes from a whipping administered to her by her husband, the deceased; that he knows that her eyes were blacked on various occasions by the hands of her husband, and were blacked by the hands of her husband when she was dead and laid out; that this almost crazed the. defendant y that the acts of the deceased and the threats that he made towards this defendant, and his actions towards his daughter, brought about a condition in his mind that when he met the. deceased or saw him he was nervous and fearful of his life almost to distraction; that he was extremely fearful that he would be killed or at least suffer great bodily harm from this deceased; that at all times during this period he tried to avoid the deceased and did avoid him at all times possible. That is about all we could prove up until the time of the death of defendant’s daughter; that the neighbors living in that neighborhood were continually coming during all of this period to the defendant and informing him of the acts of deceased in beating his wife, and of her begging her husband to desist, and that all of these acts brought about an affection of the mind of this defendant, until at times- he was not rational, and that he knows that to be a' ¡fact. (To this proffer the state objected.)
“By the Court: The court is of the opinion that, if the statements as outlined by counsel for defendant are true, it is too remote to be admissible in evidence as tending to show that the defendant at the time of the commission of the act charged herein was temporarily insane, and for the further reason that it appeal's from the testimony so far adduced at this trial that they were neighbors and friends from the time of the death of his wife until the time of the homicide herein, for a period not exactly known to the court, but presumably two years.”

Later the court stated:

“The objection, with this modification, will be sustained: The question of threats which might have been communicated to the defendant, if any, within the last year, may be proved, if such existed. With that modification the objection (of the state) will be sustained.”

The defendant’s own testimony shows that subsequent to the matters Set out in the proffer the deceased courted a younger daughter of the defendant; that the defendant and the deceased sustained friendly relations for a long period of time, and during this intervening period they were intimately associated together as partners in business. Under these cir-. cumstances it was not error for the court to exclude this proffered testimony.

Judging this situation from the standpoint of an' ordinary father, it would seem that no period of time, however long, would be sufficient to efface from his mind the feelings of resentment caused by such physical abuse of his daughter. But here the proof is conclusive that defendant for a long period of time had condoned or forgotten the shameful abuse of which complaint is made.

Evidence of threats made by the deceased towards the defendant, communicated and uncommunicated, were submitted to the jury, covering a period of 12 months or more next preceding the homicide. Threats made antedating their complete and extended reconciliation were immaterial as affecting either the issue of self-defense or that of insanity.

There being no other errors urged in the brief, the judgment of the trial court is affirmed.

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


author: BESSEY, J.-

text:
    K. FEIGE v. STATE.
    No. A-3861.
    Opinion Filed June 2, 1923.
    (215 Pac. 437.)
    (Syllabus.)
    1. Indictment and Information — Information Charging Unlawful Practice of Medicine Without a License and not Recording a License Held not Duplicitous. The information examined, and held not duplicitous.
    2. Physicians and Surge.ons — Drugless Healers — Necessity for License. Where a person maintains an office and holds himself out as competent to treat and heal those afflicted with' physical infirmities by drugless healing methods, it is incumbent upon him to procure a license to pursue such practice as provided by penal statutes sections 8815 and 8818. Coma Kt 1921.
    3. Same — Evidence that Accused in Practice Without License Directed Use of Certain Drugs Raised Issue of Fact. Evidence that the accused in his practice advised and directed the- use of certain drugs raised an issue of fact for the jury.
    Appeal from: County Court, Oklahoma County; Edward E. Reardon, Special Judge.
    K. Feige was convicted of practicing medicine without a license, and he appeals.
    Affirmed.
    John J. Carney, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Baxter Taylor, Asst. Atty. Gen., for the State.
   BESSEY, J.-

K. Feige, plaintiff in error, here designated the defendant, was on June 17, 1920, by a verdict of a jury in the county court of Oklahoma county, convicted of the offense of practicing medicine without a license, contrary to the provisions of section 8815, Comp. Stat. 1921, and his punishment was fixed at a fine of $100 and confinement in the county jail for a period of 60 days. From the judgment on this verdict he appeals.

The charging part of the amended information in this ease is as follows:

“Said defendant did then and there unlawfully, wrongfully, and willfully practice medicine within the State of Oklahoma, without first having obtained from the state board of medical examiners a certificate, as provided by law, entitling him to practice medicine within the state of Oklahoma, and that he has not recorded any certificate with the county clerk of Oklahoma county, state of Oklahoma, in this to wit, that he did then and there unlawfully and willfully prescribe for and furnish medicine, to wit, Epsom salts, to one Nina Paaseh; that said medicine, Epsom salts, is a drug or medicine now included in materia medica; that said treatment was given by said defendant to said Nina Paaseh for a fee or compensation, to wit, $7; that said Epsom salts was prescribed for said Nina Paaseh as a remedy for a disease of the eyes from which she was then suffering, the technical name of which is unknown to your informant; that said treatment and said practice by said defendant was contrary to the form of the statutes in such eases made and provided and against the peace and dignity of the state of Oklahoma. ’ ’

To this information a demurrer was interposed alleging that the information was duplicitous. The demurrer was overruled. Thereupon the defendant, without further objection, entered his plea of not guilty; counsel for defendant specifically waiving further time to plead to the amended information. The cause then proceeded to trial.

It is an offense under the statute laws of this state to engage in the practice of medicine without a license. It is another and different offense for one having a certificate to practice medicine to engage in such practice without having first recorded the certificate with the county clerk of the county wherein the office of such physician or surgeon is located.

Defendant claims that the clause in the amended information, “and that he has not recorded any certificate with the county clerk of Oklahoma county,” makes the information duplicitous. This claim, it appears to us, is without merit. The amended information as a whole clearly, attempted to state and did state the offense of practicing medicine without a license and set out in detail the character of such practice. This is indicated by the declaration in the amended information that defendant “did unlawfully and willfully practice medicine without first obtaining from the state board of medical examiners a certificate as provided by law.” The statement' that the accused had not recorded his certificate with the county .clerk was not of itself a distinct or separate averment; it was simply an explanatory clause that could have been omitted; it was mere surplusage. Hughes v. State, 7 Okla. Cr. 117, 122 Pac. 555; State v. Zanger, 9 Okla. Cr. 122, 130 Pac. 1107.

It is apparent that, if the accused was practicing medicine without having obtained a license, no license was recorded with the county clerk. In this ease the one offense included the other, and the averment that no license was recorded with the clerk was immaterial so long as it appears, as it manifestly does in this case, that the accused was being prosecuted for practicing without a license.

The proof shows and the defendant himself admitted that he maintained an office in Oklahoma City where he held himself out as a person competent to treat those afflicted with various physical infirmities and for which services a fee was charged. Certain witnesses for the state testified that the defendant in the .course of his practice advised and directed them to use an Epsom salts solution as an eye wash. This the defendant denied, thus raising an issue of fact for the jury. Epsom salts is a drug the medicinal properties of which are listed and described in materia medica.

The accused claims that he was' not practicing medicine within the meaning of our statute, but was a drugless healer; that his system was to use nature’s remedies to purify the blood and to stimulate the different organs of the body by physical culture and proper food selection and by fasting. It seems that he also practiced psychic suggestion.

Section 8818, Comp. Stat. 1921, provides that any person claiming to practice any drugless system of healing must have attended a reputable college for a period of not less than 27 months and passed examinations in anatomy, chemistry, bacteriology, pathology, surgery, physical diagnosis, etc. It appears that the accused could not legally qualify as a drugless healer any better than as a regular practicing physician.

The accused admits that he made no attempt to comply with either of these statutes, From the whole record we conclude that the information was sufficient and that there was sufficient evidence to support the verdict.

The judgment of the trial court is affirmed.

MATSON, P. J., and DOiYLE, J., concur.


author: BBSSEY, J.

text:
    BUD WILLIAMS v. STATE.
    No. A-3880.
    Opinion Filed June 2, 1923.
    (215 Pac. 438.)
    (Syllabus.)
    1. Larceny — Statutes—Title of Act Making Stealing of Automobile Felony Held Sufficient — Act not in Conflict with General Penal Statutes on Larceny. The title to the act making it a, felony to| steal an. automobile (chapter 102, Laws 1919) is sufficient. a. The classification of general and petit larceny is not recognized by the terms of this special statute, and it is not in conflict with the general penal statutes on the subject of larceny.
    2. Larceny — Evidence Sustaining Conviction for Larceny of Automobile. The evidence held sufficient to support'the verdict.
    Appeal from District Court, Canadian County; James I. Phelps, Judge.

      Bud Williams was convicted of larceny of an automobile, and he appeals.
    Affirmed.
    John M. Stanley and Wayne H. Lasater, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   BBSSEY, J.

Bud Williams, plaintiff in error, herein referred to as the defendant, was by information filed in the district court of Canadian county August 27, 1919, charged with the theft of a Ford automobile. At the trial, May 18,1920, he wasi by a verdict of the jury found guilty and his punishment assessed at confinement in the penitentiary for a term of five years. From the judgment on this verdict, h© appeals.

The testimony discloses that the automobile in question belonged to W. C. Morgan, a farmer, who then and for 20 years previous had resided near Mustang; that Morgan first met the defendant at an employment agency in Oklahoma City in 1918, where he employed the defendant to do some work on his farm; again in 1919 he went to this same employment agency and again hired the defendant to work for him on his. farm; that this car was stolen from Morgan’s garage on his farm on the morning of the 20th of July, 1919; that on that day Morgan rose early to go to Blanchard, and discovered that his ear had been stolen, and the telephone wire connecting his home with Mustang and Oklahoma City had been cut. Some dis-stance from the garage Morgan found' a shoe, which he recognized as belonging? to the defendant.

The defendant admitted the taking of the ear, but claimed that on the 4th of July preceding the taking he sat in this car at a picnic with Morgan, and that Morgan there related to him that some time previous he had lost a car and had collected the insurance, and suggested to the defendant that, if he would take this car and drive it to the oil fields and sell it, Morgan could collect the insurance, and that the defendant and Morgan would divide the proceeds of the sale of the ear; that it was agreed that the car should be taken on some Saturday night, for the reason that it could be driven away more safely on Sunday than on any other day of the week; that it was agreed between them that the defendant should leave his shoe near the garage, in order that Morgan might know that he was carrying out their agreement, and to assure him that the ear had not been taken by some other person.

The ear was subsequently found and afterwards recovered. Morgan collected the insurance on this particular car, as well as on the one previously stolen. Morgan denied that there was any such agreement or plan, and insisted that the car was taken without his knowledge or consent.

There are but two assignments of error urged in defendant’s brief. The defendant says that this conviction should be set aside and a new trial granted for the reason, first, that the statute upon which this prosecution was based is unconstitutional and void; and second, that the evidence is insufficient to support the verdict.

Under the first assignment of error defendant insists that the statute under which this prosecution was brought is void because the title to the act is insufficient, in that it does not embrace an abstract of the contents of the text of the act. The title and the act so attacked are as follows:

"An act making it a felony to steal an automobile or other automotive driven vehicle.
"Be it enacted by the people of the state of Oklahoma:
‘ ‘ Section 1. Any person in this state who shall steal an automobile or other automotive driven vehicle shall be guilty of a felony, and upon conviction shall be punished by confinement in the state penitentiary for a term of not less than five (5) years nor more than twenty (20) years.”

Chapter 102, Session Laws 1919.

This question has been decided adversely to the claim of the defendant in the case of Jackson v. State, 22 Okla. Cr. 338, 211 Pac. 1066, wherein the question was discussed and analyzed in detail by Judge Matson. The reasons and conclusions there given, which need not be reiterated here, are well stated and are decisive upon the question of the sufficiency of the title of the act.

Defendant further urges that the prosecution should have been under the general statute defining grand larceny. Section 1507, Comp. Stat. 1921, is as follows:

“Except in cases where a different punishment is prescribed by this chapter, or by some existing provision of law, every offense declared to be felony is punishable by a fine not exceeding one thousand dollars, or by imprisonment in the state penitentiary not exceeding two years, or by both such fine and imprisonment. ’ ’

By the provisions of the automobile larceny statute (Chapter 102, Sess. Laws 1919) the theft of automobiles and automotive driven vehicles is withdrawn from the operation of the general larceny statute, and neither can the punishment for felonies prescribed by section 1507, supra, apply, for the reason that the Legislature by, the 1919 act provided differently. Jackson v. State, supra.

The second assignment of error urged by counsel for defendant is that the verdict of the jury is not supported by the evidence. In the trial of the ease the witness took the witness stand and admitted that he went to the home of Mr. Morgan in the nighttime and drove the automobile away and took it to a place near Healdton, Okla., where he disposed of it. Mr. Morgan testified that he did not give him permission to do this. Defendant contended that he and Morgan entered into a' conspiracy whereby the defendant was to steal the automobile, take it away, and sell it; that Morgan would then collect the insurance; and that defendant and Morgan would divide the proceeds derived from the sale of the car by the defendant. This Morgan denied.

The jury were present and had an opportunity to observe the demeanor of the witnesses upon the witness stand, and to take into consideration the apparent truthfulness or want of truthfulness of both stories, and to hear and determine from the evidence the reasonableness of any statement made by any witness-. After having done so, they reached the conclusion that the story of the defendant as to his having conspired with Mr. Morgan to steal the ear was untrue, and that Mr. Morgan’s story of the stealing was true. After having reached this conclusion, they brought into court a verdict finding defendant guilty as charged. Under these circumstances this court will not undertake to go behind the finding of the jury and say which witness the jury should have believed.

The judgment of the trial court is therefore affirmed.

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