author: MATSON, P. J.

text:
    CARRIE ALEXANDER v. STATE.
    No. A-4067.
    Opinion Filed Sept. 29, 1923.
    (218 Pac. 543.)
    (Syllabus.)
    1. Indictment and Information — Negativing Statutory Exceptions Unnecessary — Sale of Narcotic Drugs. In a prosecution for sale of narcotic drugs, it is unnecessary for the indictment or information to negative the exceptions conditioned in the statute, or prove that accused was not within such exceptions.
    2. Evidence — Evidence of Other Offenses — Information Charging Single Unlawful Sale of Narcotics. Where the information charged a single sale to a named person on a certain date, proof of other alleged sales to another person at different times and on different occasions was improperly admitted over objection of accused; no question of knowledge, design, intent, or mistake, or other such element entering into the issues formed by the evidence, to make such evidence admissible.
    3. Appeal and Error — Reversal for Prejudicial Error — Admission of Incompetent Evidence. Where incompetent evidence is admitted over repeated objections of accused, and it is apparent from the record that the admission of such evidence deprived accused of a fair trial, the conviction will be reversed, and cause remanded.
    Appeal from District Court, Garfield County; James B. Cullison, Judge.
    Carrie Alexander was convicted of the unlawful sale of a narcotic drug, and she appeals.
    Reversed and remanded.
    Warren K. Snyder and L. C. McLean, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

Carrie Alexander was convicted in the district court of Garfield county of the crime of selling a narcotic drug, and sentenced to serve a term of one year in the state penitentiary. Judgment was rendered on the 4th day of March, 1921, and petition in error and case-made filed in this court on the 3d day of September, 1921.

The information charged the plaintiff in error with the sale, on or about the 4th day of January, 1921, of a quantity of narcotic drugs, to wit, morphine and cocaine, to one Ethel Stephens. The prosecution is based on section 8887, Compiled Statutes 1921, which, makes it unlawful for any person, firm or corporation, or any employe of any person, firm, or corporation, to sell, give away, dispense, manufacture, produce deal in, administer, or distribute, or to receive, conceal, buy, or in any manner facilitate the transportation, concealment, sale of, ór distribution of any narcotic drugs, with .certain exceptions named therein.

It is contended that, inasmuch as the information pleaded that the accused did not come within any of the exceptions named in the act, it was necessary for the state to prove upon the trial such allegation, and that the failure on the part of the state to make such proof constituted reversible error in this case. As to this assignment of error section 8887, Compiled Statutes, in part provides:

“Provided, further, that it shall not be necessary to negative any of the aforesaid exceptions in any complaint, information, or indictment, or any writ of proceeding laid or brought under this act; and the burden of proof of any such exemption or exception shall be upon the defendant.”

It was within the power of the Legislature to make such provision. Such allegations were surplusage, and proof unnecessary. Ex parte Bryson, 20 Okla. Cr. 152, 205 Pac. 190.

During the progress of the trial, and as part of the case in chief, the state was permitted to prove by the witness Frank Coon that, during a period of 90 days immediately preceding the date on which it is alleged plaintiff in error 'sold narcotic drugs to Ethel Stephens, plaintiff in err oír had made divers sales of narcotic drugs to the witness Coon, all of which evidence was admitted over repeated objections by counsel for plaintiff in error and exceptions duly taken, and motion to strike said evidence from the consideration of the jury was overruled and excepted to.

The sales testified to by Coon had no relation to the alleged sale to Ethel Stephens, and constituted evidence of other alleged violations of the same law by plaintiff in error by sales to another person at different times and on different occasions than at the time and on the occasion as charged in the information. This evidence does not come within the exceptions to the rule which prohibits the admission in evidence of proof of the commission of other crimes to prove the crime charged. Smith v. State, 5 Okla. Cr. 67, 113 Pac. 204, and authorities there cited. The only direct evidence that plaintiff in error sold the narcotic drug to Ethel Stephens was the testimony of Ethel Stephens herself. Ethel Stephens was impeached as to general reputation for truth and veracity.

Under the circumstances, we are of the opinion that the admission of the evidence of the witness Coon relative to other sales made by the accused to him at other and different times was clearly improper and prejudicial to the accused, and deprived her of a fair trial. There was no question of knowledge, design, intent, or mistake, or any other element entering into the trial, under which such evidence might have been admissible. The single issue in this case was whether or not, at the time alleged, the plaintiff in error made the sale of a narcotic drug to Ethel Stephens. To permit evidence which would put her whole life in issue on a charge of a single wrongful act was irrelevant to such issue. 1 Bishop, Criminal Procedure, par. 1124.

Further complaint is made of the admission of certain evidence in rebuttal. After the accused had testified that she did not make the sale, certain officers were permitted to testify that, about three or four hours after the time that Ethel Stephens testified the accused had sold her a capsule of cocaine at the accused’s place of residence in the city of Enid, they (the officers) made a search of the residence of the accused, and in a room occupied by a roomer in the house they found some capsules containing morphine, and in the possession of certain parties in said room they found hypodermic syringes and needles. The undisputed evidence was that the accused had no' control over this room, and that the narcotic drugs and instruments for their administration were found in the possession of others than the accused, and that the accused was not in the,room at the time. We cannot see that this evidence had any bearing upon the single issue of the sale to Ethel Stephens, or was properly admitted in rebuttal to any evidence offered by the accused.

For reasons stated, the conviction is reversed, and the cause remanded to the trial court for further proceedings not inconsistent with this opinion.

BESSEY and DOYLE, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    JOE BASTIN v. STATE.
    No. A-4192.
    Opinion Filed Sept. 29, 1923.
    (218 Pac. 543.)
    Appeal from County Court, Carter County; M. F. Winfrey, Judge.
    Joe Bastin was convicted of the unlawful possession of intoxicating liquor, and he appeals.
    Affirmed.
    R. A. Howard, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Carter county on the 6th day of December, 1921, of the crime of unlawful possession of intoxicating liquor, and sentenced to pay a fine of $200 and to serve a term of 90 days’ imprisonment in the county jail.

The information charged the possession of 5 gallons and 20 bottles of intoxicating liquor, to wit, Choctaw beer. The proof on the part of the state supports the allegations of the information that defendant was possessed of* such quantity of Choctaw beer at a resort conducted by him on the banks of the Washita river, east of the town of Berwyn, in Carter county, Okla., and that such beer contained 3.3 per cent, of alcohol measured by volume. Plaintiff in error as a witness admitted possession of part of the beer, but denied that the largest quantity found belonged to him. While there is a clear conflict in the evidence as to whether or not the defendant was possessed of all of this beer or not, it was the sole province of the jury to determine whom to believe and whom to disbelieve. This court will not disturb a conviction based upon conflicting evidence, where the evidence on the part of the state, if believed, is sufficient to sustain the conviction.

It is also contended that the court failed to fully instruct on the law of the case, and in refusing to give a certain requested instruction. The defendant consented to the giving of oral instructions, and took no exceptions to the instructions as given. The instruction requested was properly refused, as it constituted a comment on the weight of the evidence. '

Upon consideration of the entire record we find no sufficient reason urged for reversing the judgment. The conviction is therefore affirmed.


author: DOYLE, J.

text:
    F. C. THOMAS v. STATE.
    No. A-4318.
    Opinion Filed Oct. 6, 1923.
    (218 Pac. 552.)
    (Syllabus.)
    Sufficiency of Evidence. In a prosecution for manufacturing intoxicating liquor, evidence considered, and held entirely insufficient to sustain the conviction.
    Appeal from Comity Court, Cotton County; J. C. Norman, Judge.
    F. C. Thomas was convicted of violating the prohibitory liquor law, and he appeals.
    Reversed.
    Madden & Hubbell, for plaintiff in error.
    George F. Short, Atty. Gen., and Leon S. Hirsh, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges that appellant, F. C. Thomas, did in Cotton county, on the 14th day of December, 1921, willfully and unlawfully manufacture certain spirituous liquor, to wit, corn whisky. The trial resulted in a conviction, and punishment fixed at 40 days’ confinement in the county jail, and a fine of $100. To reverse the judgment rendered on the verdict he appealed by filing in this court on April 22, 1922, a petition! in error with case-made.

The Attorney General has filed a confession of error as follows:

“Nowhere in the record does it appear that there was ever introduced a scintilla of evidence of any kind or character showing that any corn or other liquor, capable of being used as a beverage, containing more than one-half of 1 per cent, of alcohol measured by volume, was manufactured, or attempted to- be manufactured, by the plaintiff in error. We submit the record of the court as being one that doesn’t have a line of testimony contained therein to support the allegation of the information filed, and respectfully suggest that this cause be reversed. ’ ’

A careful examination of the record discloses that the evidence in the case is entirely insufficient to support the verdict and judgment of conviction.

The judgment is accordingly reversed.

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


text:
    FRANK McCLINTOC v. STATE.
    No. A-4295.
    Opinion Filed Oct. 6, 1923.
    (218 Pac. 715.)
    Appeal and Error — Appeal Dismissed Where Parole Granted and Accepted. When an appeal from a judgment of conviction is pending in this court, and the plaintiff in error is granted a parole, and accepts the same, and the fact that a parole has been granted and accepted is brought to the attention of this court, the appeal will be dismissed, as having been abandoned.
    Appeal from District Court, Pontotoc County; J. W. Bolen, Judge.
    Frank McClintoc was convicted of manslaughter in the first degree, and he appeals.
    Appeal dismissed.
    Arden L. Bullock, Chas L. Orr, H. West, and King& Crawford, for plaintiff in error.
    George F. Short, Atty Gen., and Leon S. Hirsh, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Frank McClintoc, was convicted in the district court of Pontotoc county of manslaughter in'the first degree and his punishment fixed at imprisonment in the penitentiary for the term of 25 years, upon an information charging him with the murder of one John Martin, in said eounty on or about the 2d day of May, 1921. From this judgment rendered on the verdict an appeal was perfected by filing in this court on April 12, 1922, a petition in error: with case-made.

The Attorney General has filed a motion to dismiss the appeal on the ground that the plaintiff in error on the 27th day of August, 1923, was granted a parole by the. Governor of the state, and that said plaintiff in error: did sign and accept the same.

By numerous decisions of this court it is held that when an appeal from a judgment of conviction is pending in this court and the plaintiff in error applies for a parole, and the same is granted and accepted by the plaintiff in error, and the fact that a parole has been granted and accepted is brought to the attention of this court, the appeal will, be dismissed as having been abandoned. Ernst v. State, 17 Okla. Cr. 282, 187 Pac. 930; Brown v. State, 16 Okla. Cr. 505, 184 Pac. 912; Alexander v. State, 12 Okla. Cr. 200, 153 Pac. 619.

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

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


author: MATSO-N, P. J.

text:
    CHURCH POWERS v. STATE.
    No. A-4241.
    Opinion Filed Oct. 6, 1923.
    (218 Pac. 716.)
    Appeal and Error — Appe.al Dismissed Where Pardon Accepted. When the pardoning power extends clemency, and the same is accepted pending the determination of an appeal, the appeal will he dismissed.
    Appeal from District Court, Roger Mills County; T. P. Clay, Judge.

      Church. Powers was convicted of larceny of an automobile, and he appeals.
    Appeal dismissed.
    Sylvester Grim and H. L. Adkins, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSO-N, P. J.

On the 17th day of September, 1921, plaintiff in error, Church Powers, was in the district court of Roger Mills county, Okla., convicted of the crime of larceny of an automobile, and sentenced to serve a term of seven years imprisonment in the state penitentiary. An appeal was taken from said judgment by filing petition in error and case-made in this court on March 13,- 1922.

The Attorney General has filed a motion to dismiss this appeal, for the reason that on the 29th day of August, 1923, the plaintiff in error was given and accepted from the Governor of this state a parole for said crime, and is now relying upon said parole so received and accepted, and has therefore abandoned this appeal.

It appearing from the motion to dismiss the appeal, and from the records in the office of the secretary of state that the plaintiff in error has been granted and has accepted clemency at the hands of the Governor of this state, and for such reason has abandoned this appeal, the appeal, for that reason, is hereby dismissed in accordance with the uniform holding of this court that where, pending appeal, plaintiff in error applies for, is granted, and accepts executive clemency, the appeal will be dismissed.

Mandate forthwith.

BESSEY and DOYLE, JJ., concur.


text:
    PAT WHITFIELD v. STATE.
    No. A-4675.
    Opinion Filed Oct. 6, 1923.
    (218 Pac. 716.)
    (Syllabus.).
    Appeal and Error — Appeal Dismissed Where Palrdon Accepted. When the pardoning power extends clemency, and the same is accepted pending the determination of an appeal, the appeal will be dismissed.
    Appeal from District Court, Carter County; W. F. Freeman, Judge.
    Pat Whitfield was convicted of manslaughter in the' first degree, and he appeals.
    Appeal dismissed.
    James H. Mathers, J. B. Champion, and H. H. Brown, for plaintiff in error.
    George F. Short, Atty. Gen., and Leon S. Hirsh, Asst. Atty. Gen., for the State.
   MATSON, P. J.

On the 27th day of January, 1923, plaintiff in error, Pat Whitfield, was in the district court of Carter county, Okla., convicted of the crime of manslaughter in the first degree, and sentenced to serve a term of four years imprisonment in the state penitentiary. An appeal was taken from said judgment by filing petition in error and case-made in this court on May 11, 1923.

The Attorney General has filed a motion to dismiss this appeal for the reason that on the 30th day of August, 1923, the plaintiff in error was granted a full and complete pardon for this offense by the Governor of this state, and is now relying upon said pardon so received, and has therefore abandoned this appeal.

It appearing from the motion to dismiss the appeal, and from the records in the office of the secretary of state that the plaintiff in error has been granted and has accepted clemency at the hands of the Governor of this state, and for such reason has abandoned this appeal, the appeal, for that reason, is hereby dismissed in accordance with the uniform holding of this court that where, pending appeal, plaintiff in error applies for, is granted, and accepts executive clemency, the appeal will be dismissed.

Mandate forthwith.

BESSEY and DOYLE, JJ., concur.


text:
    JACK HILL v. STATE.
    No. A-4573.
    Opinion Filed Oct. 6, 1923.
    (218 Pac. 717.)
    (Syllabus.)
    Appeal and Error — Appeal Dismissed Where Parole Accepted. When an appeal from a judgment of conviction is pending in this court, and the plaintiff in error is granted a parole and accepts the same, and the fact that a parole has been granted and accepted is brought to the attention of this court, the appeal will be dismissed, as having been abandoned.
    Appeal from District Court, Lincoln County; Hal Johnson, Judge.
    Jack Hill was convicted of robbery, and he appeals.
    Appeal dismissed.
    Jas. A. Embry, for plaintiff in error.
    George F. Short, Atty. Gen., and Leon S. Hirsh, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Jack Hill, and R. P. Walker and Buell Walker were by information jointly charged with having by force and fear robbed one Clarence Hall, cashier of the Farmers’ & Merchants’ Bank of Tryon, Lincoln county, Okla., of the sum of $535. Upon his separate trial, plaintiff in error, Jack Hill, was found guilty, and his punishment assessed at imprisonment in the penitentiary for the term of five years. From the judgment rendered on the verdict on the 8th day of August, 1922, an appeal was taken to this court.

The Attorney General has filed a motion to dismiss the appeal, on the ground that plaintiff in error, Jack Hill, on the 3d day of July, 1923, was granted and accepted a parole for the specific offense the commission of which the said Jack Hill was convicted in the district court of Lincoln county, and from which he prosecuted this appeal.

By numerous decisions of this court it is held that, when an appeal from a judgment of conviction is pending in this court,' and the plaintiff in error applies for a parole, and the same is granted and accepted by the plaintiff in error, and the fact that a parole has been granted and accepted is brought to the attention of this court, the appeal will be dismissed, as having been abandoned. Ernst v. State, 17 Okla. Cr. 282, 187 Pac. 930; Brown v. State, 16 Okla. Cr. 505, 184 Pac. 912; Alexander v. State, 12 Okla. Cr. 200, 153 Pac. 619.

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

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


author: BESSEY, J.

text:
    C. G. WERTZBERGER v. STATE.
    No. A-4010.
    Opinion Filed Oct. 6, 1923.
    (218 Pac. 721.)
    (Syllabus.)
    1. Indictment and Information — Allegations Against Common-Law Accessory Before Fact. Under the terms of section 2574, Comp. Stat. 1921, no additional facts need be alleged against one who at common law was deemed an accessory before the fact than would be necessary as against the principal.
    2. Same — Conviction Sustained on Charge Against Individual by Proof that He Committed Crime With Aid of Others. Ordinarily a conviction will- be sustained when based upon an information charging an individual with the commission of an offense where the proof shows that the crime was accomplished by the person charged with the aid of others confederating with him, if such charge be not misleading and fairly informs the accused of the nature of the offense charged and the circumstances necessary to constitute the offense.
    3. Larceny — Evidence When Circumstantial Evidence Sufficient to Sustain Conviction. Where the evidence is entirely circumstantial, or circumstantial so far as it implicates the accused with the actual commission of the crime, the circumstances proved must be consistent with and point to the guilt of the accused, and must be inconsistent with his innocence.
    (a) By this test, we think the findings of the jury in this case were supported by sufficient evidence.
    4. Evidence — Testimony of Accomplice in Grand Larceny Sufficiently Corroborated. The testimony of the chief witness for the state, if he was an accomplice, must be corroborated by independent testimony. Whether or not he was an accomplice is not positively shown in this case. In any event, the record indicates that there was sufficient supporting testimony corroborating this witness.

      Appeal from District Court, Payne County; Chas. C. Smith, Judge.
    C. G. Wertzberger was convicted of grand larceny, and he appeals.
    Affirmed.
    R. B. Thompson, John P. Hicham, Thos. H. Owen, and Alvin F. Molony, for plaintiff in error.
    Geo. F. Short, Atty. Gen., R. El Wood, Asst. Atty. Gen., and C. C. Suman, Co. Atty., of Stillwater, for the State.
   BESSEY, J.

C. G. Wertzberger, plaintiff in error, in this opinion referred to as the defendant, was by a verdict of the jury, rendered December 9, 1920, found guilty of grand larceny, as charged in the information, and by the judgment of the court rendered upon the verdict his punishment was fixed at confinement in the state penitentiary at McAlester for a term of three years. From the judgment so rendered he appeals.

The evidence in this record shows that the defendant had been a resident of Sapulpa, Creek county, for a number of years; that for two years next preceding the trial his business had been that of oil well driller; prior to that time he had been commissioner of finance of the city of Sapulpa, and had been engaged in various other occupations; and that he bore the reputation in that community of being a truthful, law-abiding citizen; that two or three weeks before the Bank of Glencoe, in Payne county, about 50 miles distant from Sapulpa, was burglarized and robbed of about $19,000 worth of government bonds, which were taken from the bank vaults, the defendant made certain inquiries of others, seeking to arrange a market for Liberty bonds which he said he was expecting soon to acquire. The bank was robbed on the night of June 30, 1919, and there is testimony tending to show that the defendant was in possession of a large portion of the bonds taken therefrom on the next two succeeding days, and that the defendant assisted in the asporation of the stolen bonds by carrying $2,500 worth of these bonds to Tulsa, where they were converted into money for the purpose of appropriating it to the defendant’s use and benefit. There is evidence supporting the state’s theory that the defendant knew that these were stolen or “wet” bonds. Later, on the 10th day of July, 1919, bonds to the amount of $7,500 were taken by the defendant and Frank Gilbert to Tulsa and converted into cash. All of these bonds were subsequently traced by number and shown to be some of the bonds that had been taken from the Glencoe bank on June 30th. The evidence raised a suspicion that Gilbert was, or may have been, an accomplice or an accessory after the fact.

It was the theory of the state that the robbery of the bank had been planned and executed by the defendant and other unknown parties. The amended information charged that the defendant “in the county of Payne did then and there, willfully, unlawfully, and feloniously, by stealth and fraud, take, steal, and carry away certain United States bonds, ’ ’ describing them in detail. There was no averment in the information implicating others in the theft or asportation of the stolen bonds. There was no direct testimony connecting the defendant with the burglarizing of the bank, excepting the circumstantial evidence indicating that the defendant was in possession of a large portion of the bonds the day following the robbery,- and on subsequent days, and that he converted these bonds into cash for his own use and benefit under circumstances indicating that he was, or may have been, implicated in the original taking. The condition of the bank when the robbery was discovered the next morning indicated that probably more than one person broke into the bank and carried away the bonds. It was the theory of the state that the defendant was one of the coeonspirators who acted conjointly in the original taking.

Defendant took the stand in his own behalf and denied that prior to the robbery he had made inquiry from Gilbert or any other person about the sale of bonds he was expecting to acquire. He stated that in January, 1919, he sold Gilbert some bonds, amounting to $1,000, more or less. He admitted that about 10 days after the robbery he went from Sapulpa to Tulsa with Gilbert in an automobile, and that Gilbert had a package of United States bonds, but that they did not belong to him (the defendant) and that he never claimed any interest in them; that defendant was asked by Gilbert on the way to Tulsa if he had any bonds for sale, and that the defendant replied that he had none at the time, but was figuring on getting some, a small amount in payment for a shack he was about to sell, and that he afterwards had a conversation with Gilbert in his office concerning these bonds, and had one or more conversations over the telephone. -

Private detectives and a post office inspector planted a dictograph in the office of Gilbert and also installed an extension telephone connecting with an adjoining room, where the detective concealed himself and listened to conversations had between Gilbert and the defendant. These conversations to some degree corroborated the theory of the state that the defendant had been dealing in stolen bonds, and also to a certain extent corroborate the testimony of Gilbert as to defendant’s transaction with the bonds here in question.

The chief reasons urged by the defendant why the judgment of the trial court should be reversed are three in number, as follows:

(1) A variance between the proof and the allegations in the information, in that the information charged the defendant alone with committing the crime, while the proof disclosed that the crime must have been committed by conspirators, acting together.

(2) That Gilbert, the principal witness for the state, was an accomplice, and that the state’s evidence tending to implicate the defendant was not sufficiently corroborated by evidence independent of the testimony of the accomplice.

(3) That the conviction of the defendant was based upon circumstantial evidence, amounting at most to a suspicion only, and that it did not preclude every other reasonable hypothesis than the guilt of the defendant.

Section 1521, Comp. Stat. 1921, provides:

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

Section 2574, Id., reads thus:

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

This court has heretofore held that no additional facts need be alleged in an information against one who at common law was deemed an accessory before the fact than would be necessary as against the principal. Pearce v. Ter., 11 Okla. 438, 68 Pac. 504; Id. on appeal, 118 Fed. 425, 55 C. C. A. 550; Moore v. State, 14 Okla. Cr. 292, 170 Pac. 519; Rhea v. State, 9 Okla. Cr. 220, 131 Pac. 729.

In Sanditen v. State, 22 Okla. Cr. 14, 208 Pac. 1040, it was held that the provision of our statute that no additional facts need be alleged in an information against an accessory than .would be required against the principal is not inconsistent with section 20 of the Bill of Rights, providing that an accused shall be informed of the nature and cause of the accusation against him. We see no reason to recede from this rule, and we hold the information here sufficient, although it contained no mention of any confederate who may have assisted in the commission of the offense.

Gilbert may have been an accomplice in the commission of the crime, or he may have been an accessory after the fact. Certain it is that he helped to dispose of the stolen bonds, knowing that they were stolen. This prosecution .rests almost entirely on the testimony and confessions of Gilbert, • with almost no corroboration except that of the detective Bays, who listened in on certain telephone and dic-tograph conversations between Gilbert and the defendant.

Quoting from the record:

“Q. Describe the (extension) telephone conversation. A. Mr. Gilbert called up Mr. Wertzberger — well, asked him about the bonds that he was to bring him there — and Mr. Wertzberger told him he had sent them back; the man was out of town and he wouldn’t get to see him for a day or two, didn’t know just when; but as soon as the man returned he would get the bonds and bring them up to him.
“Q. How do you know that Wertzberger said that? A. Mr. Gilbert called his number and asked if it was Mr. Wertz-berger, and he said it was.
“Q. Iiow do you know that it was Mr. Wertzberger, how did you hear Wertzberger’s part of the conversation? A. It was an extension telephone.
“Q. Explain to the jury about that. A. It is a telephone in an adjoining room on the same line of the telephone .used from Burnett’s office. They had two phones, one in one room and one in the other, both on the same line. * * *
“Q. Go ahead and tell what the (dictograph) conversation was. A. The first question Gilbert asked Wertzberger when they entered the room was, ‘What did you do with the bonds?’ Wertzberger answers, ‘I sent them back.’ Gilbert, ‘What about the registered bonds?’ Wertzberger, ‘They destroyed them.’ Gilbert, ‘Well, do you think you can get them again?’ Wertzberger, ‘Yes; I see the fellow every day or two.’ Gilbert, ‘What about the war savings stamps?’ Wertzberger, ‘I don’t remember anything about any war savings stamps.’ Gilbert, ‘Have you seen Bays?’ Wertzberger, ‘No; I don’t know him.’ Gilbert, ‘I saw him, and he looked as if everything was ofi. When can you get them up here again?’ Wertzberger, ‘I will try and get them this evening,’ Gilbert, ‘I took $15,000 worth over to Houston and Eible, with Jim Berry, and they never said a word, and I think I can handle these all right now.’ Wertzberger, ‘Well, there is lots of people buying bonds, and there is no danger of these, for they never came from Oklahoma. This fellow told me they didn’t. I don’t want to get mixed up in the G- d- thing, so I sent them back. Prank, you know good and well they couldn’t have got those bonds without some inside help, and another thing, they didn’t get no money.’ Gilbert, ‘How many are left?’ Wertzberger, ‘$5,000 worth.’ Gilbert, ‘Well, there ought tó be more than that, be- • eause you only brought up $10,000 and there was $18,000 stole. I thought they were going to arrest Crawford and I and sue us.’ Wertzberger, ‘Oh, h-, they can’t do a d-thing, for those bonds never came from Oklahoma at all, and you never saw the fellow before in your life. You know how to give the other fellow’s description, and you never saw him before.’ Gilbert, ‘How are you getting along with your well?’ Wertzberger, ‘O, I am having a lot of bad luck. I hope to get a good well, as I have a fourth interest in that 40.’ * * *
“Q. Tell the court and jury what that (telephone) con- • versation. was. A. Gilbert called Wertzberger and asked him what he had done, and Wertzberger said, ‘That fellow hasn’t come in yet.’ Frank says, ‘Isn’t there any way you can get hold of him?’. Wertzberger says, ‘No; I just have to wait, but as soon as he comes in I will call you.’ That was the second ■ (telephone) conversation. ’ ’

Without further recitations from the evidence, we hold that the testimony of the accomplice Gilbert (if he was an accomplice) was sufficiently corroborated. The dictograph and ■extension telephone conversations to some degree corroborated the story told by Gilbert on the stand. True, no single fact or circumstance corroborated Gilbert conclusively, but there were a number of corroboratory circumstances, here a little and there a little, so that in the aggregate they justified the jury in concluding that Gilbert’s story was in the main correct and tended to connect the defendant with the commission of the larceny under the rule prescribed in sec-ition 2701, Comp. Stat. 1921, and as defined by this court in cases cited in the annotations thereto.

It is settled in this state that when the evidence relied upon to sustain a conviction in a criminal • case is entirely circumstantial, the circumstances tending to show guilt must be consistent the one with the other, and must point so strongly to the guilt of the accused as to exclude every other reasonable hypothesis than that of guilt.

The evidence implicating the defendant in the taking was wholly circumstantial, but the evidence indicative of the disposal of the bonds by the defendant was not altogether circumstantial, in the ordinary acceptation of the term. Critically speaking, almost every incident or act may be termed a circumstance, and all evidence relating thereto might be termed circumstantial. But this and other courts have adopted a more liberal definition. Circumstantial evidence is the proof of certain facts and circumstances from which a jury may infer other connected facts which usually and reasonably follow, according to the common experience and observation of mankind; proof of collateral facts having some connection, direct or remote, with the main fact in controversy. 2 Words and Phrases, First Series, p. 1161, and citations. The facts and circumstances proved must be consistent with and point to the guilt of the accused, and they must be inconsistent with his innocence. Ex parte Jefferies, 7 Okla. Cr. 544, 124 Pac. 924, 41 L. R. A. (N. S.) 749.

By direct evidence in this ease it was shown that numerous bonds, specifically described and numbered, were stolen from the Bank of Glencoe and there was evidence, direct and circumstantial, tending to show that the defendant disposed of some of these identical bonds soon afterwards— :some of them the day after the robbery — indicating that he was directly implicated in the original taking and was not merely a receiver of stolen property. The conversations heard over the extension telephone and the dictograph indicate that the defendant 'disposed of stolen bonds, knowing them to have been stolen. It is not necessary that the corroborating circumstances alone should point conclusively to the guilt of the accused; it is sufficient if the circumstances proved, in connection with the direct and positive facts in evidence, point to the guilt of the accused and exclude every reasonable inference of innocence; and, where the positive facts shown are by the statements of an accomplice such facts must be substantially corroborated by other evidence, direct or circumstantial.

Measured by the above tests we think the verdict of the jury was supported by sufficient evidence, and, so holding, the judgment of the trial court should be affirmed; and it is so ordered.

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


text:
    EARL WATKINS v. STATE.
    No. A-4110.
    Opinion Filed Oct. 6, 1923.
    (218 Pac. 895.)
    (Syllabus.)
    1. Homicide — '“Assault with Dangerous Weapon" not Necessarily “Assault with Intent to Kill” — Intent for Jury. An assault and battery with a dangerous weapon is not necessarily an “assault with intent to kill.” The intent to kill is a question of fact for the jury, and not' a question of law for the court.
    2. Trial — Instruction that Assault with Deadly Weapon is Assault with Intent to Kill Held Error. An instruction that an assault and battery upon another by means of any deadly weapon, or by other means or force likely to produce death, is an assault with intent to kill, is a misstatement of law. Intent to kill is a question of fact for the jury, not a question of law for the court.
    3. Trial — Homicide—Submission to Jury of Issues as to An Included Degrees of Crime — Issues as to Assault with Dangerous Weapon, with and without Intent to Kill. Where the evidence raises an issue of fact1 as to different degrees of a crime, or of an included offense, all of the issues so raised should be submitted to the jury.
    (a) As defined by statutes, an assault with a dangerous weapon, without intent to kill, is included in a charge of assault with intent to kill by means of a deadly weapon, and both issues should be defined by apt instructions, where the facts reasonably support either. Comp. St. 1921, §§ 1756 and 1764.
    Appeal from District Court, Murray County; John L. Coffman, Assigned Judge.
    Earl Watkins was convicted of assault with intent to kill, and he appeals.
    Reversed and remanded.

      John M. Stanley and Wayne H. Lasater, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Baxter Taylor, Asst. Atty. Gen., for the State.
   BESSEY, J.

Earl Watkins, plaintiff in error, here referred to as the defendant, was on the 23d day of July, 1920, charged with an assault with intent to kill by means of a deadly weapon, to wit, a pocket knife. By verdict of a jury he was found guilty, and his punishment assessed at confinement in the penitentiary for a term of two years.

The court instructed the jury, in instruction No. 1, in part as follows:

“The law governing such cases, gentlemen of the jury, says that any person who intentionally and wrongfully commits an assault and battery upon another, by means of any deadly weapon or by such other means or force as is likely to produce death, is guilty of an assault with intent to kill.”

This instruction was excepted to by defendant. The statute under which the information was drawn (section 1756, Comp. Stat. 1921) is as follows:

“Any person who intentionally and wrongfully shoots, shoots at, or attempts to shoot at another, with any kind of firearm, airgun or other means whatever, with intent to kill any person, or who commits any assault and battery upon another by means of any deadly weapon, or by such other means or force as is likely to produce death or in resisting the execution of any legal process, is punishable by imprisonment in the penitentiary not exceeding ten years.”

The terms of this statute clearly indicate that the question of intent to kill is for the jury and is not a question of law for the court; that an assault and battery upon another with a deadly weapon is not necessarily an assault with intent to kill. Such an assault may come within the provisions of section 1764, Comp. Stat. 1921, defining an assault with a dangerous weapon without intent to kill.

This seems to have been a mutual combat between the defendant and his companion with the manager of a bathing pool, growing out of the manager’s refusal to give the defendant and his companion bathing suits, because the two were in a drunken condition and. were using profane and indecent language. The testimony indicates that there was no intent to kill, but merely an attempt to administer physical punishment to the person in charge of this public bathing pool because of his refusal to allow them to enter. As the fight progressed, the father of the person first assaulted and others took part in the affray. Under the circumstances, as shown, the court should have given an instruction on an assault with a dangerous weapon, as defined in section 1764, a lesser degree of assault included in that defined in section 1756. Clemons v. State, 8 Okla. Cr. 452, 128 Pac. 739; Blythe v. State, 12 Okla. Cr. 23, 151 Pac. 488; Jones v. State, 12 Okla. Cr. 255, 154 Pac. 689. Section 2740, Comp. Stat. 1921, reads:

“The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.”

Where the evidence raises an issue as to different degrees of a crime or of an included offense, all of the issues so raised should be submitted to the jury. In this case the issues of simple assault and of assault and battery were submitted, but the jury refused to find the defendant guilty of these lesser degrees of the crime. The evidence discloses that 'the accused was at least guilty of an assault with a dangerous weapon, a pocket knife, with which he inflicted serious wounds upon the body of the person assaulted. On the other hand, the person assaulted seems to have entered into the combat willingly, amounting almost to. an invitation to fight — a mutual combat, which could easily have been avoided by either of the parties. When this defendant seemed to be getting the worst of the affray, he used his pocket knife. As we analyze the evidence, originally there may have been no premeditated attempt to kill, or intent to kill; the defendant later using his knife merely in an attempt to subdue his adversaries, with or without any intent to kill.

The law on an assault with intent to kill should have been correctly stated; the instruction given amounted to an instruction to find the defendant guilty. The court, under the evidence here, should also have instructed on the law of an assault with a dangerous weapon, without intent to kill.

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

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


text:
    Ex parte H. P. BROWNING.
    No. A-4876.
    Opinion Filed Oct. 8, 1923.
    (218 Pac. 893.)
    (Syllabus.)
    Habeas Corpus — Writ to Discharge One Convicted of Violating Unconstitutional Law. A person who has been convicted of violating an unconstitutional law will be discharged on habeas corpus.
    Petition by H. P. Browning for writ of habeas corpus.
    Writ allowed, and petitioner discharged.
    Meaeham & Meacham, for petitioner.
    The Attorney General and Baxter Taylor, Asst. Atty. Gen., for respondent.
   DOYLE, J.

This is a petition for writ of habeas corpus for the discharge of H. P. Browning from the penitentiary at MeAlester, wherein it is alleged that he is unlawfully restrained of his liberty by J. H. Townsend, warden; that the cause of said restraint is a commitment issued upon a judgment of conviction pronounced by the superior court of Custer county, Thomas A. Edwards, judge, on a charge of having in his possession a distillery, and rendered on the 4th day of June, 1923, wherein he was sentenced to be confined in the penitentiary at MeAlester for the term of two years and to pay a fine of $1,000; and that said restraint is illegal and unauthorized because the act approved February 5, 1923 (chapter 1, Session Laws, 1923), making it a felony to possess mash, wort, or wash fit for distillation, is unconstitutional and void, as determined in Ex parte Smith, 24 Okla. Cr. 415, 218 Pac. 708. The Attorney General concedes that the writ should issue and the petitioner be discharged.

In the case of Ex parte Smith, supra, the statute upon which this prosecution is based was held unconstitutional and void. It follows that petitioner is unlawfully restrained of his liberty by the respondent, and that he is entitled to a discharge from the imprisonment from which he complains, and he is therefore by the judgment of this court discharged therefrom.

The clerk of this court will forthwith forward to the warden of the penitentiary at MeAlester a duly certified copy of this opinion, and upon receipt of the same said warden is directed to discharge said petitioner, H. P. Browning.

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


text:
    E. H. SLOAN v. STATE.
    No. A-4081.
    Opinion Filed Oct. 10, 1923.
    (218 Pac. 717.)
    (Syllabus.)
    1. Homicide — Question of Guilt for Jury. In a prosecution for murder, evidence reviewed, and held, that the issue of the defendant’s guilt or innocence was for the determination of the jury, and that the defendant’s conviction should not be interfered with by the appellate court.
    2. Criminal Law — Test of Criminal Responsibility. Under subdivision 4 of section 1511, Comp. Stats. 1921, the test of criminal responsibility for committing an act which is declared to be a crime is fixed at the point where the accused has the mental capacity to distinguish between right and wrong as applied to the particular act, and to understand the nature and consequence of such act.
    3. Same — irresistible Impulse no Excuse. An irresistible impulse is not an excuse for the commission of a crime, where the person committing it is capable of knowing right from wrong.
    4. Homicide — Acts and Declarations of Defendant Admissible on Issue of Insanity. Upon a question of the insanity of a defendant charged with murder, evidence of his acts, conduct, and declarations, so far as they relate to, are connected with, or ■ illustrate, or afford material evidence of, his mental condition at the time of the homicide, is competent and admissible.
    Appeal from Superior Court, Creek County; Gaylord R-Wilcox, Judge.
    E. H. Sloan was convicted of murder, and lie appeals.
    Affirmed.
    Thompson & Smith, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

In the information in this case, filed in the superior court of Creek county, the defendant, E. H. Sloan, was charged with the crime of murder; he having shot and killed his son, Kenneth Edwin Sloan. Upon his trial the jury found him guilty of murder, and assessed1 the punishment at imprisonment in the penitentiary for the term of his natural life. From the judgment rendered upon the verdict he has appealed to this court.

The victim of the homicide, of which the defendant was accused, was the four year old son of the defendant. The mother of the child and wife of the defendant was killed by him at the same time. The tragedy' occurred January 25, 1921, about 5 o’clock p. m., and the scene was the home of the defendant, about three miles north of the town of Sliek. The defense was insanity.

Appellant asserts that the evidence was insufficient to support a conviction, and we deem it necessary to set it out at some length.

Will Dunham testified:

“I know the defendant. He lived with his wife and child in a tent within 100 yards of my house. He was an oil field worker, in the hire of McClung. On the day of the tragedy I went in my car to the store. 'I returned about 5 p. m. I saw defendant in his yard. He was waving his arms, and said, ‘Will, come here.’ I went to him. He said he had shot both his wife and child. I went into the tent and picked up the gun from a shelf inside the door. I saw his wife and son lying side by side on the floor. The little boy had a bullet wound over the left eye, and was dead. The mother was not dead. She died within an hour. She was unable to talk while I was there. The defendant said he would like to save his wife, and wanted to know about a doctor. I told him I had sent for a doctor.”

J. J. Elliott, deputy sheriff, testified:

“About 8 o’clock p. m. on the day of the tragedy, Lee McClung came into the sheriff’s office with the defendant, Ed. Sloan. A. H. Lyons, undersheriff, was there. The defendant said he desired to give himself up and wanted to make a statement to me. Then we all went upstairs into the county attorney’s office. Mr. McClung said to the county attorney, ‘We have had an awful tragedy, and Mr. Sloan wants to make a statement to you.’ The defendant sat down on a chair and said that he had killed his wife and baby; that he had been to the store with his wife and child; that when they came back he put on some dish water, and said to his wife, ‘I will go over to the well while the dish water is heating, and will be back in a few minutes; ’ that he went, and stayed longer than he intended or expected to stay; that when he came back his wife was angry, and said, ‘You never come back when you tell me you will,’ and slapped him with the dish towel, and then with her open hand on the face; that he said, ‘What 'did you want to do that fori’ and she grabbed a pistol and said, ‘I will end this now;’ and he said, ‘I will help you,’ and he grabbed her; that in the scuffle the pistol was discharged, and she fell at his feet on the floor. Then he said, ‘I thought I would kill myself, and I thought the child would be better off dead than left in this world motherless, so I turned and shot the child, and then went out and called for the neighbors. Then I tried to kill myself, and the gun jammed.’ He was crying, and said, ‘I am blaming no one but myself, and I am willing to take all of the blame and to pay the penalty.’ ”

A. H. Lyons, undersheriff, testified:

“I was in the sheriff’s office when Mr. McClung and this defendant came in. The defendant started out by saying that he and his wife and baby had gone to Slick that afternoon, and they.returned about 3 o’clock; that she asked him to build a fire and put on some, water, so that she could wash the dishes, and he did so, then said that he would go down to the well, as the boys were having some trouble with the casings; that he stayed longer than he expected, and when he looked at his watch it was something like 5 o ’clock; that he immediately went back to the house, and his wife remarked that she thought he was coming right back, then slapped him in the face with the dish towel, and she walked up closer to him and struck him on the cheek with her hand; that he said to her she ought not do that, and she said, ‘I just as well end.it now as later on;’ and he said, ‘Well, I will help you;’ that she reached for the- gun, and in the scuffle over the gun it was.discharged, and she fell; that he turned and saw the child, and the thought struck him that he could not bear the thought of his child going through the world without a mother, and he, decided to kill the child; that he did kill the child, and then turned the gun on' himself, and it jammed; that he tried three different times, and the gun would not work. Then he went out and called for the neighbors.”

It also,appears that upon defendant’s arraignment for preliminary examination on the 2d day of February, before the county judge of Creek county, the defendant, having been fully advised of his rights, waived a preliminary examination and asked to be taken before a court which had jurisdiction to receive his plea of guilty.

The evidence offered on behalf of defendant was wholly in support of the insanity defense. As a witness in his own behalf the defendant testified:

“I will be 29 the 24th day of April, 1921. My mother died of a self-inflicted wound at Bartlesville, June 11, 1917. I was married May 25, 1915, at Raton, N. M. One child, a boy was born of the marriage. He died January 25, 1921. My wife died the same day of a wound inflicted in a scuffle while I was trying to take a revolver from her. I went to the well, and promised' to be back a certain time, and I stayed a little longer than I figured. Some of the boys called my attention to what time it was. I looked at my watch, and it was a quarter to 5. I went at once to the tent, and found my wife washing the dishes. I told her I would help her. I had been in the habit of helping her. I wanted to help her, and she told me to go to bed; then she came over and slapped me on the cheek. I don’t know why. She went back to her dishes, and in a few minutes she said, ‘I will end it all.’ I had a revolver there, for her protection and the baby's protection. It was hanging on the side of the tent. I believe, above the bed. She jumped over and grabbed it. and I grabbed her, and the gun was accidentally discharged, and my wife was no more. The first thing I. knew that happened after that, I went to the bunkhouse and called Carl Metz. I told him to get a doctor and to call McClung. I have no recollection of shooting my baby boy. I don’t know where the dear child was. I loved my wife more than any man on the face of the earth could love his wife,- and my baby, too. There was no reason or cause or motive why I should want them out of the way.”

On cross-examination he stated:

“I went to the well, and got back about a quarter after 5. The boy came out to meet me. My wife -was in the tent, washing the dishes. I carried my child into the tent with me. I do not know which, my wife or I, spoke first. She did not appear to be angry. I do not recall how long we talked before she took the gun from the wall; but it was only a few minutes, if it was that long. When she took the gun, she said, ‘I will end it all.’ She grabbed' the gun. I do not remember that I said I would help her end it, dr that in substance. I remember having a conversation with County Attorney Wagoner on the evening of this tragedy. Mr. McClung was present, too. I went to the county attorney’s office with McClung, Lyons, and Elliott about 8:30 the evening of the day of the tragedy, and I made a statement in their presence to the county attorney. I do not remember that I said then that my wife went to the wall and took this gun off the wall, and said at that time that she would end it all, and that I said I would help her do it. We did not scuffle very long in the tent. I do not remember how long. I could not say whether it was five minutes or ten seconds. She had the gun in her right hand. She never changed it. I grabbed her, and forced her right hand behind her back over her left shoulder. It was in that position some way at the time the gun went off. I had one hand behind her, and the other one over her shoulder. I do not remember having the gun in my hand. I do not know where the boy was when we were scuffling. After the gun went off, my wife was lying on tbe floor at my feet. I left the tent before I saw her in this position. I went after help. When I came back, she was lying on the floor, dead. Carl Metz came back with me. Carl went into the tent first. Bill Dunham was there at that time. I have stated all that I remember of the occurrence. I do not remember if I said, when I got back and my wife was shot, that 'I decided to kill myself.’ I d'o not remember that in my statement to you I said, ‘I turned and looked at the little four year old child on the floor, and said to myself, “Won't he be better out of the world than in the world a motherless child?” ’ I do not remember that I told you then I decided to kill the child. Not to my knowledge did I tell you that I shot the child. I did not tell you I then tried to kill myself, but the gun jammed. I did try to kill myself. I do not know whether it was before or after the child was killed. I do not remember having killed the child. The bullet entered my wife’s head just above the left ear. I do not remember where the child was hit. I do not remember if upon more than one occasion since this tragedy I told yon that I killed this child and wanted to pay the penalty. I remember my presence at the preliminary. I told you then to do as you pleased with it. I remember that I waived my preliminary, but not that I told you I wished to pay the penalty for killing the child, or that I had killed him.”

His father testified:

“I am the father of defendant. Edwin is 29 in April. His mother is dead. She killed herself with a razor in the bathroom at our home. She was suffering from a mental malady at the time, and was under treatment for it. She was 50 years old at time of death. No insanity in my family, nor my wife’s, that I know of.”

Four doctors qualified and testified as medical experts, and answered the following hypothetical question:

“Q. Doctor, a young man 29 years of age, happily married, the father of a four year old boy, in a scuffle with his wife for the possession of a revolver, the gun was accidentally discharged, shooting the wife in the head and killing her, immediately or a moment or so thereafter it appears that the defendant with the same revolver shot and killed his child, the defendant’s mother, 50 years old, being afflicted with a mental trouble, committed suicide in a bathtub by cutting her throat with a razor, in your opinion would you say that the defendant was sane or insane at the time of shooting the child?”

Dr. Matenlee answered:

“He certainly would be insane; it was emotional insanity, brought on by the quarrel or scuffle with his wife, and the fact that he had accidentally killed her. Such a thing as this insanity, destroying the defendant’s sense of right and wrong, is quite possible; he.certainly did not know the difference between right and wrong, else he would not have acted as he did.”

Dr. Schwab answered:

“He was temporarily insane.”

Dr. McAlester answered:

“I would say that he was insane; I would not say that he did not know right from wrong.”

Dr. McCallum answered:

“I would say he was insane; the impulse of the defendant was emotional insanity and irresistible; it might be temporary; I do not believe the defendant knew right from wrong when he killed his child.”

In rebuttal, the state recalled the witnesses in chief who testified to acts, conduct, and declarations of the defendant, and giving as their opinion that the defendant was sane. At the close of the evidence the defendant demurred to the evidence and moved the court to instruct the jury to return a •verdict of acquittal, which the court refused to do, and allowed exceptions.

It is contended in behalf of the defendant that the evidence shows that at the time of the commission of the crime the defendant did not have sufficient intelligence and self-control to understand the nature and quality of the acts committed by him, and to refrain from the commission of said acts, and that at said time he was mentally incapable and in a state of insanity; that the admitted circumstances, supplemented by the expert testimony, made out a positive case of insanity coincident with the crime charged, and being undenied by the state, the verdict' is therefore contrary to the law and the evidence.

It has been repeatedly held by this court that it has no power to reverse a judgment of conviction upon the ground that the verdict is not supported by the evidence, unless there is no substantial evidence tending to show the guilt of the defendant, or that the evidence fails so far to support the verdict that the necessary inference is that the jury must have acted from passion or prejudice, or have been controlled in reaching their verdict by undue influence. This court adheres to the rule that a conviction cannot be had on the extrajudicial confessions of the defendant, without independent evidence of the corpus delicti. In this case, the corpus delicti was proved by independent evidence, and the issue of the defendant’s guilt or innocence was clearly a question for the jury.

Our Penal Code provides:

“All persons are capable of committing crimes, except these belonging to the following classes: * * * Fourth, Lunatics, insane persons, and all persons of unsound mind, including persons temporarily or partially deprived of reason, upon proof that at the time of committing the act charged against them they were incapable of knowing its wrongfulness.” Comp. Stats. 1921, § 1511.

Our Code of Criminal Procedure provides:

"An act done by a person in a state of insanity cannot be punished as a public offense.” Comp. Stats. 1921, § 2866.

Under subdivision 4 of section 1511, the test of criminal responsibility for committing an act which is declared to be a crime is fixed at the point where the accused has the mental capacity to distinguish between right and wrong, as applied to the particular act, and to understand the nature and consequences of such act. In the case of Adair v. State, 6 Okla. Cr. 284, 118 Pac. 416, 44 L. R. A. (N. S.) 119, this court said:

"It is immaterial what standard scientists or medical experts may fix to determine, or by what rules they determine, that a person is in a state of insanity; the accused under this provision of the law is a lunatic, or insane, or of unsound mind or temporarily or partially deprived of reason, to such an extent as will excuse him from criminal responsibility, only when he is incapable of knowing the wrongfulness of the act committed and charged, and incapable to understand the nature and consequences of such act, and this is a question of fact for the jury to determine under all the evidence in the case.”

It has been pertinently said that in criminal cases the correct issue is not that of sanity, but of responsibility. 1 Whart. & S. Med. Jur. § 112. An uncontrollable impulse of the mind, coexisting with the full possession of the reasoning powers, will not warrant an acquittal on the ground of insanity. The question is always whether the accused, at the time he committed the act, knew its nature and character, and that it was wrong. Whart & S. Med. Jur. § 152, note 1.

The doctrine that an irresistible impulse resulting from a disordered mind relieves the criminal responsibility, though the accused was capable of distinguishing between right and wrong with respect to the act in question, is not recognized in this jurisdiction. The capacity to know right from wrong, and to know that the particular act being committed is wrong, is recognized as the correct rule in Oklahoma to test the question of criminal .responsibility. Roe v. State, 17 Okla. Cr. 587, 191 Pac. 1048; Snodgrass v. State, 15 Okla. Cr. 117, 175 Pac. 129; Owen v. State, 13 Okla. Cr. 195, 163 Pac. 548; Smith v. State, 12 Okla. Cr. 307, 155 Pac. 699; Alberty v. State, 10 Okla. Cr. 616, 140 Pac. 1025, 52 L. R. A. (N. S.) 248. In Roe v. State, supra, it is said:

“The statute of this state does not recognize the doctrine that one may be so possessed with an uncontrollable impulse as to compel him to do what he knows to be wrong and a crime, and yet be relieved from all criminal responsibility. A condition might be conceived of an uncontrollable insane impulse sufficient to relieve one of criminal responsibility under our statute; but this would only arise when the diseased condition of the accused’s mind was such as to destroy the power of the accused to comprehend the nature and consequences of the particular act, and to know that it was wrong at the time of its commission.”

The law presumes every person to be sane until insanity is made to appear, and upon the question of insanity of a defendant charged with crime, evidence of his acts, conduct, and declarations, so far as they relate to, are connected with, or illustrate or afford material evidence of, his mental condition at the time of the commission of the act charged, is competent and admissible. Reed v. State, 14 Okla. 651, 174 Pac. 800; McNeill v. State, 18 Okla. Cr. 1, 192 Pac. 256. In this case the conduct of the defendant clearly shows that he knew he was doing an unlawful act when he committed the homicide charged. His statements, as testified to by witnesses, that he thought the child would be better off dead than left in the world motherless, and that he killed the child and was willing to pay the penalty, were not directly denied by him; he only says, “I do not remember making such statements.”

Upon a careful consideration of all the evidence no doubt of the defendant’s guilt can be entertained, and we think the jury gave the defendant the benefit of all that he was entitled to, on account of his condition of mind, by assessing his punishment at imprisonment for life. Our conclusion is that the defendant had a fair trial, with every right accorded to him that the law justifies or requires.

The judgment of the superior court of Creek county herein is accordingly affirmed.

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


text:
    Ex parte JOE RIDDLE.
    No. A-4857.
    Opinion Filed Oct. 12, 1923.
    (218 Pac. 894.)
    Petition by Joe Riddle for a writ of habeas corpus.
    Writ allowed.
    Warren & Warren, for petitioner.
    George F. Short, Atty. Gen., and N. W. Gore, Ass’t. Atty. Gen., opposed.
   PER CURIAM.

On the 24th day of September, 1923, petitioner Joe Riddle filed a verified petition in this court for a writ of habeas corpus, alleging that he was unlawfully restrained of his liberty and Imprisoned in the county jail of Choctaw county by D. M. McClanahan, sheriff of said county; that the cause of said restraint is that the said Joe Riddle is being held to testify as a witness in a misdemeanor case pending in the county court of said county against one Bill Johnson, charged with the unlawful sale of intoxicating liquor, and there has never been any order of the county judge to hold this petitioner as a witness in the said ease; and that the said petitioner has been restrained in said county jail at Hugo, Okla., since the 22d day of January, 1923; that on the 22d day of September, 1923, petitioner applied to Hon. G-. M. Barrett, judge of the district court of Hugo, for a writ of habeas corpus, and on a hearing on said day said writ was denied, although the return of the sheriff showed that the said Joe Riddle was held solely as a witness in the said misdemeanor case by order of the county attorney of Choctaw county. And petitioner further alleges for such reasons said restraint is illegal and unauthorized, in that there is no authority of law to hold petitioner for such length of time as a witness in a misdemeanor case; that said petitioner is a resident of Choctaw county, living at the town of Boswell, and has lived there for the past five years.

On the 24th day of September, 1923, this court issued a rule to show cause, addressed to D. E. McClanahan, sheriff of Choctaw county, the said McClanahan to appear before this court on October 3, 1923, at 10 o’clock a. m., and show cause, if any he had, for restraining petitioner as complained of in said petition. In response to said rule on the 29th day of September, 1923, the said respondent answered: First, that he was holding petitioner in his custody by virtue of an order of the district court of Choctaw county made and entered on the 22d day of September, 1923, wherein said court committed the petitioner to his custody upon the failure to give a recognizance bond in the sum of $50, conditioned for the appearance of the petitioner as a witness for the state in the county court of Choctaw county in an action pending in said court wherein the state of Oklahoma is plaintiff and one Bill Johnson defendant charged with the unlawful sale of intoxicating liquor. Second, by virtue of an order of the county court of Choctaw county made and entered on the 27th day of September, 1923, also committing the said defendant for said purpose on his failure to give an appearance bond in the sum of $50 as a witness in said case.

It appears from the allegations of the petition and from the return thereto that the said Joe Riddle is being held in the custody of respondent upon failure to give an appearance bond in the sum of $50 as a witness in a misdemeanor case pending in the county court of Choctaw county, and that he has been so held without bond from January, 1923, until September 22, 1923, and since said date because of his inability to give said bond. The Attorney General has filed the following brief confessing that the writ should be granted as prayed for:

"The petitioner herein alleges that he is unlawfully restrained of his liberty by the sheriff of Choctaw county, Okla., and the return or response of said sheriff to the writ issued, discloses that the sheriff is holding the said Riddle upon an order made by Hon. G. M. Barrett, district judge of the Twenty-Seventh judicial district, directing that the petitioner, Joe Riddle, be held as a witness in a case pending in the county court wherein the plaintiff is charged with the unlawful sale of intoxicating liquors. It must be conceded that such an order is void and without effect, there being no statute authorizing the holding of a witness under bond or in jail for the purpose of obtaining his testimony in a misdemeanor case. Such is the holding of this court in the case of Little v. Territory, reported in 28 Okla. 467, 114 Pac. 699, Ann. Cas. 1912D, 337, in which case this court said: ‘The power to bind a witness by recognizance to appear and give evidence in criminal cases is an extraordinary one, and cannot be exercised in the absence of statutory authority.’
"The Attorney General therefore desires to confess error and to suggest to this court that the writ prayed for be granted. George F. Short, Attorney General, by N. W. Gore, Assistant Attorney General.”

There is no statutory , authority for the proceedings invoked either by the district court or the county court • of Choctaw county to hold the petitioner under bail to appear as a witness in a misdemeanor case in this state. The holding of the Supreme Court in Little v. Territory, supra, is conclusive of the question here involved. It is the opinion of this court that upon the allegations of the petition and return the petitioner is entitled to his discharge, and it is ordered that the writ of habeas corpus be granted and that the said respondent D. E. McClanahan, sheriff of Choctaw county, Okla., upon receipt of this order shall. immediately discharge and release petitioner Joe Riddle from his custody, and the clerk of this court is directed to forward immediately a copy of this order to the said D. E. McClanahan, sheriff of Choctaw county, as his authority for discharging said petitioner.


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    Ex parte JOHN W. SCOTT.
    No. A-4878.
    Opinion Filed Oct. 13, 1923.
    (219 Pac. 158.)
    Habeas corpus by John "W. Scott for discharge from the penitentiary.
    Writ allowed, and petitioner discharged.
    Lewis Paullin, for petitioner.
    The Attorney General and N. W. Gore, Ass’t. Atty. Gen., for the State.
   MATSON, P. J.

This is a petition for writ of habeas corpus for the discharge of John W. Scott from the penitentiary at McAlester, Okla., wherein it is alleged that he is unlawfully restrained of his liberty by J. H. Townsend, warden; that the cause of said restraint is a commitment issued upon a judgment rendered by the district court of Cimarron county, state of Oklahoma, on a charge of having and keeping in bis possession a certain still worm. Said conviction and sentence having been passed and rendered on or about the 4th day of June, 1923, in said court, wherein he is sentenced to be confined in the penitentiary at McAlester, Okla., for the term of three years, and to pay a fine of $100, and alleging that said restraint is illegal and unauthorized, for the reason that the law under which he was convicted and is now serving a sentence, to wit, chapter 1, Session of Laws of Oklahoma 1923, making it a felony to have in one’s possession a still, still worm, or mash, wort, or wash; etc., was held unconstitutional and void, as determined by this court in Ex parte Smith, 24 Okla. Cr. 415, 218 Pac. 708. The Assistant Attorney General appeared in open court and conceded that the writ should! issue and the petitioner be discharged. In the ease of Ex parte Smith, supra, the statute upon which this prosecution was based was held unconstitutional and void.

It follows that the petitioner is illegally restrained of his liberty by the respondent, and that he is entitled to be discharged from the prison, of which he complains, and that he is therefore by the judgment of this court discharged therefrom. The clerk of this court will forward forthwith to the warden of the penitentiary at McAlester a duly certified copy of this opinion and upon receipt of the same said warden is authorized to discharge said petitioner, John W. Scott.

BESSEY and DOYLE, JJ., concur.


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    Ex parte JACK WADE.
    No. A-4879.
    Opinion Filed Oct. 13, 1923.
    (219 Pac. 159.)
    Habeas corpus by Jack Wade for discharge from the penitentiary.
    Writ allowed, and petitioner discharged.
    Lewis Paullin and E. C. Patton, for petitioner.

      The Attorney General and N. W. Gore, Asst. Atty. Gen., for respondent.
   MATSON, P. J.

This is a petition for writ of habeas corpus for the discharge of Jack Wade from the penitentiary at McAlester, wherein it is alleged that he is unlawfully restrained of his liberty by J. H. Townsend, warden. That the cause of said restraint is a commitment issued upon a judgment of conviction rendered in the district court of Canadian county, Okla., on the 30th day of August, 1923, on a charge of having in his possession one copper still, and wherein petitioner was committed to serve a term of one year, and! to pay a fine of $100, alleging that said restraint is illegal and unauthorized, for the reason that the law, under which he was convicted and is now serving a sentence, to wit, chapter 1, Session Laws of Oklahoma 1923, making' it a felony to have in one’s possession a still, still worm or mash, wort, or wash, etc., was held unconstitutional and void, as determined by this court in Ex parte Smith, 24 Okla. Cr. 415, 218 Pac. 708. The Assistant Attorney General appeared in open court, and conceded! that the writ should issue and the petitioner be discharged. In the case of Ex parte Smith, supra, the statute upon which this prosecution was based was held unconstitutional and void. It follows that the petitioner is illegally restrained of his liberty by the respondent, and that he is entitled! to be discharged from the prison of which he complains, and that he is, therefore, by the judgment of this court discharged therefrom.

The clerk of this court will forward forthwith to the warden of the penitentiary at McAlester a duly certified copy of this opinion, and upon receipt of the same said warden is authorized to discharge said petitioner, Jack Wade.

BESSEY and DOYLE, JJ., concur.


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    A. H. ALLEN et al. v. STATE.
    No. A-4151.
    Opinion Filed Oct. 13, 1923.
    (218 Pac. 896.)
    (Syllabus.)
    1. Intoxicating Liquors — Estimate of Quantity in Possession Insufficient as Prima Facie Evidence of Intent to Sell. An estimate of the quantity of intoxicating liquor in the possession of the accused held insufficient to constitute prima facie evidence of the intent of the possessor to illegally dispose of the same.
    2. Evidence' — Evidence Procured by Officer of Court by Illegal Search. Evidence procured by an officer of the court by means of an illegal or unauthorized search is inadmissible.
    Appeal from County Court, Hughes County; Owen H. Rives, Judge.
    A. H. Allen and another were jointly convicted of the unlawful possession of intoxicating liquor, and they appeal.
    Reversed.
    Anglin & Stevenson, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

The plaintiffs in error, here designated the defendants, were jointly charged with having unlawful possession of intoxicating liquor, and on October 17, 1921, were found guilty as charged. The court, in rendering judgment upon the verdict of guilty, fixed the punishment of each defendant at a fine of $100 and costs, and a term of 30 days in the county jail. From this judgment defendants appeal to this court.

The evidence shows that the sheriff and his deputy, in their official capacity, went to the premises of Bob Steelman, father of C. S. Steelman, one of the defendants, armed with blank search warrants, to be filled out and used as the exigencies of the occasion might demand, for the purpose of searching the premises of Bob Steelman; also the house of his son, C. S. Steelman. Defendant Allen, a neighbor, was there when these officers arrived; Bob Steelman had previously left the premises and gone to town. As the officers approached the house, Allen was drinking corn whisky out of a quart fruit jar, and at the suggestion of his codefendant, C. S. Steelman, he threw the jar against a stone churn, breaking both and spilling the whisky on the floor. The defendants walked rapidly away and were overtaken by the officers and arrested. The officers, after inspecting the broken vessels, stated that it looked as though a large quantity •of this liquor, probably more than a gallon, had been spilled on the floor. There was no direct evidence of any sale or of an intent to sell except as before stated.

. The defendants claim: First, that the evidence was insufficient to sustain the verdict; and, second, that the evidence upon which this conviction rests was obtained by the officers in their official capacity, by means of an unauthorized search, and that the evidence so obtained was introduced over the timely objection of the defendants.

The record bears out both these contentions. The officers could not, with any exactness, estimate the quantity of liquor spilled on the floor, so as to make it prima facie evidence of an intent to violate the prohibitory law, implicating these defendants. The evidence obtained by an unauthorized search, under the circumstances here, comes within the rule announced in Gore v. State, 24 Okla. Cr. 394, 218 Pac. 545.

The judgment of the trial court is reversed.

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


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    J. B. LANGHAM v. STATE.
    No. A-4191.
    Opinion Filed Oct. 13, 1923.
    (218 Pac. 897.)
    (Syllabus.)
    1. Intoxicating Liquors — Illegal Possession — Insufficiency of Evidence. Evidence and conflicting' presumptions relating to a' charge of the illegal possession of intoxicating liquor examined, and found insufficient to support the verdict.
    2. Trial — Instructions as to Controverting Presumptions of Fact. Where a conviction rests wholly upon a presumption of fact, and where controverting presumptions of fact aiso appear, the court should have called the jury’s attention to such conflict and that all such presumptions should be considered together.
    Appeal from County Court, Stephens County; G. T. Bur- ' rows, Judge.
    J. B. Langbam was convicted of illegal possession of intoxicating liquors, and he appeals.
    Reversed.
    Bond & Morris, for plaintiff in error.
    The Attorney General and N. ~W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

J. B. Langham, plaintiff in error, here referred to as the defendant, was on the 5th day of December, 1921, by verdict of a jury found guilty of having illegal possession of intoxicating liquor on or about the 11th day of June, 1921. The court, in rendering judgment on the verdict, assessed defendant’s punishment at a fine of $200 and 60 days’ imprisonment in the county jail.

The testimony in this case is brief, all contained in 10 typewritten pages in the record. The testimony of two officers shows that they found three quarts of Holland gin and a small quantity of other liquor hidden in defendant’s barn; The defendant, a man 65 years old, acknowledged that the liquor belonged to him and that he had.it for his own use; that he used the gin for kidney trouble, and that he had drunk one quart of it; that he had no intention of selling it, or disposing of it to others. There was no evidence whatever, except possession, pointing to the contrary.

The defendant went into the trial with the presumption of innocence. The evidence of the finding of this gin, and some other liquor, raised a conflicting presumption, pointing towards his guilt. To rebut the latter the defendant testified that he had it for his private use; that he was not always at home in the daytime, and that his secret “buffet” in the barn was more secure; that he was afflicted with kidney trouble, and used this Holland gin as a remedy and as a beverage.

The court instructed the jury, in part, as follows:

“The burden of proof in this case is upon the state to prove to your satisfaction beyond a reasonable doubt all the material allegations alleged in the information before you would be justified in returning a verdict of guilty, and if the state fails to prove to your satisfaction beyond a reasonable doubt all the material allegations, alleged in the information you should resolve such doubt in favor of the defendant and acquit him.”
“The law of this state provides that it Shall be unlawful for any person, firm, or corporation to have in their possession intoxicating liquor for the purpose and with the intent to sell, barter, give away, or otherwise furnish the same to other persons. The law further provides that the possession of more than one gallon of spirituous or vinous liquor, or any imitation thereof, or substitute therefor, shall be prima facie evidence of an intention to convey, sell, or otherwise dispose of such liquors.”
“You are further instructed, gentlemen of the jury, that the mere possession of intoxicating liquor, is not unlawful, and if, after hearing all- the evidence, facts, and circumstances, you then entertain a reasonable doubt as to the intention of this defendant, you should acquit him.”

We think the court, in some apt' language, should have called the jury’s attention to these conflicting presumptions, and that possession amounting to prima facie evidence of an intent to violate the law might be overcome by direct evidence controverting that presumption. For a more complete treatment of this point, reference is made to the following cases: Sellers v. State, 11 Okla. Cr. 588, 149 Pac. 1071; Huff v. State, 12 Okla. Cr. 138, 152 Pac. 464; Wilson v. State, 11 Okla. Cr. 510, 148 Pac. 823.

The defendant made a reasonable explanation of the purpose of his possession of this liquor. There was no direct or circumstantial evidence, other than possession, to show that defendant had ever sold, or intended to sell, liquor, or that he otherwise disposed of liquor to any person. The probabilities are that a man of good character, 65 years of age, who kept his Holland gin concealed, as in this case, was not a bootlegger. Bootleggers ordinarily do not deal in Holland gin.

We think the instructions were faulty, and that the verdict is not supported by sufficient evidence. We therefore hold that the judgment of the trial court should be reversed; and it is so ordered.

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


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    C. L. FOSTER v. STATE.
    No. A-4232.
    Opinion Filed Oct. 13, 1923.
    (218 Pac. 898.)
    (Syllabus.)
    1. Trial — Improper Comment on Inadvertently Admitted Incompetent Evidence. Where incompetent evidence has been inadvertently admitted, and the court subsequently admonishes the jury not to consider it, the county attorney should not comment' upon such testimony in his argument to the jury.
    2. Evidence — Evidence Procured by Unauthorized Search. Evidence procured by an officer of the court by means of an unauthorized search and seizure should not be received, where timely objection is made to its introduction.
    Appeal from County Court, Comancbe County; P. G. Fullerton, Judge.
    C. L. Foster was convicted of unlawfully transporting intoxicating liquors, and he appeals.
    Reversed.
    J. S. Rhinefort, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

C. L. Foster, plaintiff in error, here designated the defendant, was convicted of illegally transporting intoxicating liquor and his punishment was fixed at a fine of $100 and confinement in the county jail for a period of 30 days. From the judgment rendered on this verdict he appeals.

There was but one witness for the state, W. X. Smith, a deputy sheriff, who, while driving along the streets of Law-ton, saw the defendant coming out of an alley carrying a suit case. The deputy sheriff stopped his car and told the defendant he wanted to see what was in the suit case. The defendant placed the suit case in the back seat of the car, where, with some difficulty, the deputy forced the suit case open and found therein two one-gallon glass jars of whisky. The suit ease and the whisky were retained by the officer and the defendant taken to jail.

The defendant claimed that he found this suit case in or near this alley 10 or 15 feet from a building where he had gone to visit a sick relative, that the suit case was locked, and that at that time he knew nothing about its contents. The story, in its details, seems somewhat improbable, although it was corroborated by an apparently disinterested witness, who testified that, while hanging clothes on a line to dry, near where the suit case was found, he saw and talked with the defendant about it, and saw him take it away. None of the witnesses were impeached, nor their characters successfully assailed.

The county attorney, in his address to the jury, among other things said:

“I recall, gentlemen of the jury, that this defendant was asked as to his vocation to test his credibility as a witness; that he testified that he had been running the Sherman rooms. And I recall that there was no further testimony introduced relative to himself or the Sherman rooms; that the character and good reputation wass not placed at issue, by the defendant, and was not gone into by the state.”

The record elsewhere disclosed that upon an investigation made by the court, out of the hearing of the jury, the testimony concerning the Sherman rooming house was excluded from the jury. Under the circumstances it was hardly fair for the county attorney to comment upon this evidence which had been excluded. Often it is 'difficult for jurors to divest their minds of damaging testimony excluded by the court, and for counsel to make comments upon such excluded testimony may cause the jury to give it consideration Respite the warning of the court. Such comment amounts to more than an argument to the jury concerning things not in the record, being a comment upon matters specifically excluded by the court. This we think was unfair to the defendant.

The primary purpose of the officer when he first detained the defendant was to ascertain what was in the suit case, and for that purpose he forcibly made a search, and did so without a search warrant. The defendant here was ,not really arrested until after the suit case was searched. The search was made upon suspicion merely, and without a search warrant. We base this conclusion on the deputy sheriff’s own testimony, quoting from the record:

“A. Well, I was in the car, and I saw him while coming up D, and I just turned around the corner of Second, and pulled up the car just ahead of him, and as he came along, before I could get out of the car, I told him I wanted to see what he had in that grip, and he set it over in the back seat. * * * A. I just spoke to him, and said, ‘Foster, I will have to see what you’ve got in the grip.’ I believe that is the way I said it to him.”

The introduction of the evidence of the whisky and containers, over the timely objections of the accused, they being evidence procured by an illegal and unauthorized search and seizure, was error, as recently decided by this court in the case of Gore v. State, 24 Okla. Cr. 394, 218 Pac. 545, to which reference is made for the reasons and authorities supporting this conclusion.

The judgment of the trial court is reversed.

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


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    J. F. LAKE v. STATE.
    No. A-4134.
    Opinion Filed Oct. 13, 1923.
    (218 Pac. 899.)
    (Syllabus.)
    1. Disorderly House — Direct and Circumstantial Evidence — Character and Reputation. Direct and circumstantial evidence may be introduced to establish the fact that a place is a disorderly house, and such evidence may be supplemented by proof of its' character and reputation.
    2. Same — Sufficiency of Information and Evidence. The information states but one offense, and the proof held sufficient to sustain the charge.
    Appeal from District Court, Pottawatomie County; Clarence Robison, Judge.
    J. F. Lake was convicted of maintaining a disorderly bouse, and be appeals.
    Affirmed..
    Joe M. Adams and W. L. Chapman, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

J. F. Lake, plaintiff in error, for convenience referred to herein as the defendant, was by verdict of ■a jury rendered July 20, 1921, found guilty of maintaining a disorderly house, as charged in the information, and his punishment assessed at a fine of $500. From the judgment on the verdict, he appeals.

The testimony indicates that the defendant was the owner and manager of a rooming house in Shawnee, Okla., where persons habitually lodged and visitors congregated for lewd and1 immoral purposes. The information was based on section 1890, Comp. Stat. 1921, which provides that it shall be an offense for any person to keep a bawdy house, house of ill fame, of assignation, or of prostitution, or any other house or place, for persons to visit for unlawful sexual purposes, or for any lewd, obscene, or indecent purpose. The information charged that the defendant was the proprietor of the Waller Rooming House, and that in its operation he knowingly permitted lewd men and women to gather and congregate together in this house for lewd purposes, and that he aided and abetted the frequenters in carrying out such purposes, and that he kept in this house regular roomers who pursued this unlawful business.

The defendant says that the complaint charged more than one offense. Based upon what has been said, we hold that the offenses charged come within the purview of the statute, and that the information charges but a single offense. The statute is leveled at all the things, named therein, and the acts charged sufficiently apprised the defendant of the nature of the accusation within the meaning of the statute.

The complaint was sworn to before Clarence Robison, without designating his official title; the record shows that the trial was held before Clarence Robison, county judge. Public, officers are presumed to perform their official duties as provided by law, and the presumption therefore follows that the complaint was sworn to before an officer authorized to administer an oath to such complaint, and that the Clarence Robison before whom oath and complaint were made was the same Clarence Robison who, as county judge, tried the case.

Defendant urges, that the court erred in admitting incompetent testimony. The gist of this offense is the keeping and use of the place for immoral purposes, amounting to a nuisance, and not its reputation. The state, to support the charge, may show as a fact, by direct or circumstantial evidence, that the place kept was a disorderly house. Supplementing facts and circumstances indicating that fact, the state may show the character of the place by its general reputation. Applying these tests to the proof here, as shown by the record, by the testimony of eyewitnesses to the conduct of its inmates carried on with the knowledge and apparent approval of the defendant, indicating that the place was a disorderly house within the meaning of the statute, and the proof tending to show that numerous females had been apprehended at this place and taken to the clinic for the cure of venereal diseases, together with the general reputation of the place — all considered together, there is ample proof to sustain the verdict. 9. R. C. L. “Disorderly Houses,” §§ 4, 10, 11.

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