text:
    FINLEY PORTER v. STATE.
    No. A-10113.
    Jan. 27, 1943.
    (133 P. 2d 903.)

      W. N. Redwine and W. J. Hulsey, both of McAlester, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Finley Porter, was charged by information filed in the distinct court of Pitts-burg county with the crime of murder, was tried, convicted and sentenced to death.

Counsel for defendant who appealed this case appeared as counsel when defendant was first arraigned. Later they sought to withdraw as attorneys for the de: fendant because of his inability to pay them a fee. When this matter was called to- the attention of the trial court a proper order was made appointing these attorneys as counsel for defendant and directing them to continue their services. The record discloses that they performed their services diligently and well. An earnest effort was made to acquit the defendant before the jury and an able brief has been filed in this court in support of the various assignments of error.

The evidence of the state, briefly stated, is as follows:

Finley Porter, the defendant, a negro, age 38’, was committed to the penitentiary in 1934 to serve a life sentence for murder.

L. Z. Beecham, the deceased, also a negro, age 21, was committed to the penitentiary to- serve two years for burglary.

The two negroes had been cellmates for three or four weeks prior to Beecham’s death on April 28, 1941. The evidence upon which the conviction is based was furnished mainly by inmates of the penitentiary and guards who were on duty at the time of the homicide. Some of the inmates testified to hearing the- defendant express a desire to commit the act of sodomy with the deceased and threaten the deceased in case of his refusal to- submit.

Lloyd Allen testified that he and the deceased were talking in the prison yard on Sunday morning before the deceased was killed that night. That the defendant came to where they were talking and said to the deceased: “Well, are you going to do as I asked you?” and the deceased said, “I’ll give you an answer after while.” That the witness suggested to the deceased that he move out of the cell which he was occupying with defendant and deceased stated that defendant had threatened to kill him if he moved. That the defendant told the witness at that time that if the witness, Lloyd Allen, didn’t stay out of defendant’s business he would kill him. That he understood from what was said between Porter and Beecham that Porter was wanting to- commit sodomy with Beecham.

Bishop Kilgore testified that he was bell-hop captain. That in April he placed Zeke Beecham to work as a bell-hop on one Friday afternoon. That on Saturday the defendant approached the witness in the prison yard and said he did not- want Beecham to be working as a bell-hop, as that was his boy.

Porter Carmichael testified that he saw defendant and deceased on the date that deceased was killed. That the first time he saw them was on No. 2 run. That while he was in a lavatory he heard the defendant threatening the deceased, and in the conversation he heard defendant tell the deceased that he was going, to “f— him that night or kill him.” That Beecham said “Well, I will see you when I come back,” and went on to church. That, he and Porter went on to the prison church and Porter’s whole conversation during church was about using the man as his woman. That when the first conversation between defendant and deceased occurred the witness stepped into a lavatory and listened to the proposals being made to the deceased by defendant.

The cell guards and attendants testified that about midnight they heard the defendant yelling: “Cell man, cell man, come and get me, this man is killing me.” That they ran to the cell which defendant and deceased were occupying and defendant had the deceased down on the floor and was cutting on him with a knife. That when they first arrived on the scene the deceased appeared lifeless, but the defendant was on him and still cutting him with a knife and yelling for the cell guards. The defendant Avas fully dressed, but the deceased had nothing on but an undershirt.

The men who first arrived at the cell testified that the defendant continued to cut on the deceased after they arrived, even though the deceased appeared at that time to be in a lifeless condition. That the defendant did not quit cutting on deceased until one of the attendants! threw a flashlight through the bars and struck defendant, which caused him to desist.

The deceased’s body was terribly cut. The throat had been cut several times and the head almost severed from the body. His back Avas cut deeply in many places, one of them penetrating the heart.

When the guards arrived at the cell the defendant directed their attention to a place just under his shoulder blade where he complained that the deceased had struck him. The guards removed half of a scissors which was still sticking in defendant’s clothes and which had just penetrated the skin. The doctors who examined the deceased and defendant testified that the cut on the defendant did not penetrate to the muscle hut was only superficial.

The only evidence introduced on behalf of defendant was the testimony of defendant himself. He testified that he had gone to sleep in the lower bunk. That the first he knew anything was wrong was when deceased woke him by stabbing him. That he grabbed a knife from under his pillow and commenced to stab deceased and continued to stab him until he was stopped by the guards. On cross-examination he admitted paying an inmate a dollar to get deceased transferred to his cell. He denied having any of the conversations related by the state’s witnesses and denied ever wanting to commit sodomy with deceased. That he had never had a cross word with deceased.

It is first contended that the court erred in overruling the motion for continuance. No written motion was ever presented, but on the Saturday before the trial of the defendant was set for Monday counsel for defendant asked the court to continue the case for the reason that he had not had time to prepare for trial. At that time counsel for defendant stated:

“* * * j pave .made an endeavor, under the short notice I have had, but have been unable, and as stated to you, I do not see how I can represent this man and give him proper representation under the short notice I have had, and for that reason I would like to have this case continued until the next term of court or such time as the court would like to hear it.
“I do not believe that I can do him justice if I should have to go to trial now. I realize it is difficult to appoint another attorney now, but it is difficult to get ready for trial in a murder case, and especially, when one is in the penitentiary. If an attorney could consult with him and he could come to the office and consult with me, it would not be so difficult, but where he is in the penitentiary and you cannot confer with him, it takes more time, and I will ask now and make this motion now that the case be continued until the next term of court.”

In response to the application for continuance the county attorney dictated a long statement into the record which is unnecessary to. repeat.

Defendant was arraigned on May 27, 1941. At that time a copy of the information with the names of all the witnesses with their post-office addresses shown thereon was served on defendant and his counsel. At that time the trial was fixed for June 9th. All of these witnesses were inmates of the penitentiary at McAlester or employees of that institution and easily accessible to counsel, who lived in McAlester. A preliminary examination had been held three weeks prior to the arraignment in district court and the evidence of the state was introduced at that hearing. It is evident from a review of the entire record that counsel were as ready at the time of trial as they would have ever been. There simply were no witnesses, nor any other evidence available to support the fantastic story related by the defendant. There was no abuse of discretion in refusing the application for a continuance. Jewell v. State, 41 Okla. Cr. 389, 273 P. 366.

It is next contended that the court erred in overruling defendant’s motion to quash the jury panel. The motion to quash the jury panel and the proceedings at the hearing on said motion show that the defendant based his motion entirely upon his claim that for many years there had been a systematic exclusion of negroes from jury service. At the time the motion was presented considerable colloquy between counsel and the court appears in the record, and it is evident that counsel for defendant do not contend that discrimination was practiced in the selection of the present jury, but sought to introduce proof showing that over a long period of years no negroes had been selected for jury service. The motion alleges that Pittsburg county has now and has had for a long number of years a large negro population, among whom are about 2,000 negroes who are competent and qualified to serve on petit juries, but that no negroes have been permitted to sit on petit juries, since statehood by reason of a systematic effort to prevent them from so doing.

It affirmatively appears from the record that there were two negroes among the list of 24 jurors which composed the present jury panel. There were no allegations in the motion to quash the panel nor offer of proof to show a discrimination in the selection of the jurors whose names had been selected at large from the citizenship' of the county to' serve for that year. Since it is admitted that two negroes were among the 24 who had been drawn for jury service for that term of court and there is no allegation as to the number of negroes nor offer to prove the number of negroes whose names were in the list of qualified jurors selected by the jury commissioners to serve for that current year, the court did not err in overruling the motion to quash and refusing to hear proof on the offer to show that there had been a systematic exclusion of negroes from jury lists in the past.

Counsel for defendant cite the cases of Smith v. State of Texas, 311 U. S. 128, 61 S. Ct. 164, 85 L. Ed. 84; and Norris v. State of Alabama, 294 U. S. 587, 55 S. Ct. 579, 79 L.Ed. 1074. While these two cases are authority for the proposition that evidence of a systematic exclusion of negroes from jury lists in previous years is pertinent and admissible in evidence, yet they are not authority for the proposition contended for by the defendant because the admission of such evidence to show a systematic exclusion in the past only becomes pertinent when it is shown that negroes were omitted from the present jury panel and it is contended that such omission was intentional because of their race. It is immaterial whether there has been discrimination in the past unless it is alleged that such discrimination had been practiced with reference to the current jury list.

If the contention of counsel should be sustained, then no negro could ever be tried in Pittsburg county, because years ago-, prior to certain decisions of the United States Supreme Court criticizing such practice, there possibly had been in that county, as well as in many other counties of the south, a systematic exclusion of negroes from jury panels. But it is manifest that in Pittsburg county that situation had been remedied and the jury commissioners were selecting jurors fairly and impartially without regard to their race. At least, there were two negroes on the present panel and no- contention is presented that there had been unfair discrimination in the selection of said panel. The evidence sought to be introduced by defendant could only have been admissible as tending to show a scheme to- prevent negroes from performing jury service where it is shown that they were omitted from the present jury panel. If counsel for defendant are correct in their contention, then the situation could never be remedied. If every one of the jurors selected for service for the term for which the defendant was tried had belonged to the negro race, his motion to- quash the jury panel should have been sustained under his theory merely because there had been exclusion of negroes from performing jury service in the years: that had passed.

It is next contended that the court erred in admitting incompetent, irrelevant, and immaterial evidence in the trial which prejudicially affected the rights of the defendant. This assignment is first directed at the testimony of the witness Bill Clark. This witness testified on behalf of the state that he was a graduate nurse from Bellevue Hospital in New York City, but had been an inmate of the State Penitentiary working at the penitentiary hospital for about a year. In his testimony he described the wounds of the deceased and gave his. opinion that any of several wounds described by him would have been sufficient to have produced his death. The evidence complained of was the statement by the witness that the defendant had a slight wound in his back, “I would say exactly like a self-inflicted wound.” The record with relation to this matter discloses the following:

“Q. (By Mr. Gotcher, County Attorney) Do you know the defendant, Finley Porter? A. I know him by sight. Q. He is an inmate of the penitentiary? A. He is, yes, sir. Q. Was he brought into your hospital that night? A. He was. Q. Mr. Clark, tell the jury if Finley Porter was injured? A. A slight injury about the size of the end of your finger, like, I would say exactly like a self-inflicted wound, just about the size of the end of your finger. Mr. Redwine: I object to that as an opinion and move it be stricken. The Court: I expect his opinion should be stricken. Q. Mr. Clark, did you probe that wound? A. I did. Q. Explain to the jury just about where it occurred, where the injury occurred. A. I would say about right here. (Indicating.) Q. Now, right underneath there is there a muscle? A. Yes, sir. Q. Structure muscle? A. There is. Q. And when you probed that, Mr. Clark, did your probe go into the muscle? A. It touched the muscle only.”

It is apparent from a reading of the above excerpt from the testimony of this witness that counsel for defendant evidently regarded the answer as stricken, as they reserved no exception to. the ruling of the court. The jury probably likewise so regarded the statement of the court as striking said evidence. Since counsel reserved no exception to the ruling of the court, he may not now complain. The question of the county attorney did not call for an expression of an opinion from the witness, and if counsel for defendant had not regarded the statement of the court, “I expect his opinion should be stricken”, as being sufficient to strike said evidence from consideration of the jury, they could have called the same to the court’s attention at that time and the court could have more specifically struck said evidence from the consideration of the jury.

Counsel for defendant placed a lot of emphasis upon this incident, but a reading of the entire record shows that said evidence was very minor in character and could have had little effect in bringing about the infliction of the death penalty. While the defendant, testifying in his own behalf, claimed that he killed the deceased while acting in self-defense, it is clear when considering the testimony of all the witnesses that deceased had undressed, gone to bed in the upper bunk, and was sound asleep' when attacked. The defendant had never removed his clothes. There was no evidence of any struggle, the piece of scissors from which the small flesh wound under the defendant’s shoulder blade was made was still sticking in the coveralls worn by the defendant. The witnesses all testified that when they arrived at the cell in response to the calling of the defendant, the deceased was stretched out on the floor in a lifeless position while the defendant was kneeling upon him still whittling him to pieces with the crude but sharp and effective knife which the defendant admitted that he had made from a file. The jury could not have reasonably concluded other than that the flesh wound appearing on the body of defendant had been' self-inflicted as a part of the scheme of the defendant to present a plea of self-defense and justification for his murder of the young negro lad because he refused to submit to the lustful desires of defendant.

This assignment is also directed to the testimony of the witness Henry Mitchell, a former cell mate of the defendant, who testified that a scar on his neck was made by the defendant. This statement was made without any objection on the part of defendant’s counsel, but later, after the witness was excused, the court specifically instructed the jury not to consider the testimony of the witness or the remark of the county attorney that “This is a similar type, only he just didn’t kill this man.” The testimony of the witness was not a voluntary statement, but was in response to the question of the county attorney, “How did you get that, Henry?” and the witness, without any objection on the part of counsel, stated, “He did it.” While this evidence was improper, objection should have been made to the question of the county attorney at the time it was asked.

Ordinarily error cannot be predicated upon the admission of evidence without objection. We do not approve of the attempt of the county attorney in endeavoring to get this improper evidence before the jury, but in view of the fact that no objections were interposed to the question, combined with the further fact that the court specifically instructed the jury not to consider said evidence or the remark of the county attorney, coupled with the further fact that the proof of the defendant’s guilt of murder is overwhelming, such conduct is harmless.

Counsel next contends that the admission of evidence of photographs of the body of the deceased showing the location of the wounds on the body of the deceased was error. These pictures were taken by a highway patrolman who had had special training in the taking and development of photographs. Counsel for defendant contend that said pictures were inadmissible and were introduced solely for the purpose of inflaming the minds of the jurors. The witness testified that at the request of the county attorney he took the picture at the morgue and that said photograph was taken in such a way as “to make it as natural as possible inside the building so as not to cast any shadows, to make it appear as true as possible to- the same as the sight.” The proof further showed that the pictures as taken clearly showed the deceased’s body as it appeared immediately after he was killed by defendant with the exception that one cut on his forehead had been sewed and that said picture was a true reproduction of the wounds on the defendant’s body as they existed immediately after he was killed with this one exception.

In Morris v. State, 6 Okla. Cr. 29, 30, 115 P. 1030, 1032, this court had up for consideration the admissibility of photographs taken of the body of the deceased about three weeks after the homicide. In that case this court sustained the admissibility of such evidence and followed the general rule that “where the photograph is shown to be a faithful representation of whatever it purports to reproduce, it is admissible, as an appropriate aid to the jury in applying the evidence, and this is equally true whether it relates to person, things or places,” citing Wharton’s Crim. Ev. (9th Ed.) sec. 544. Reference is made to Morris v. State, supra, for a lengthy discussion of this subject. We think these photographs were admissible to show clearly to' the jury the nature of the wounds suffered by the deceased and which, more than any other evidence, conclusively refutes the contention of the defendant that he had a struggle with the deceased and acted in his own necessary self-defense.

It is next contended that the court erred in failing to give certain instructions to the jury, particularly an instruction on manslaughter. Counsel for defendant presented no requested instructions, no' exceptions were saved to the instructions which were given, and such issue was not raised in the motion for new trial. While in an ordinary case we would consider that such failure upon the part of counsel was a waiver of defendant’s right to raise such issues on appeal, still, this being a capital case, ,we perceive it as our duty to carefully read all the instructions which were given to see whether there was error committed. The instructions numbered 18 and fairly and fully cover all theories presented by the evidence. In fact, the court gave several lengthy instructions supporting the theory of the defense. Among these instructions are the following:

“You are instructed that the defendant in this case in support of his plea of not guilty, pleads as a justification of such homicide that while he killed the deceased, he acted in self-defense, and in this connection you are instructed that every person has a right to repel an attack or threatened attack upon his person by the use of force, even to the extent of slaying his assailant, provided he does not use more force than is necessary to repel the attack or threatened attack; and if you believe from the evidence in this case, or entertain a reasonable doubt thereof, that the deceased in such manner as was calculated to excite the mind of the defendant, made an attack upon the defendant, and that such attack was in such a way that the defendant had reasonable grounds to apprehend a design on the part of the deceased to take his life or to do> him great bodily injury, and that it reasonably appeared to the defendant at the time that there was imminent danger of such design being carried out, then the defendant was not bound to retreat, but could stand his ground and could repel the attack with such force as was necessary to protect himself from death or Ms person from serious bodily harm, even to the extent of hilling Ms assailant, and if the killing occurred under such circumstances the defendant is not held criminally responsible if he acted in self-defense from real and honest convictions as to the character of the danger in which he was placed, although he may have been mistaken as to the extent of the actual danger.
“The court instructs you that under the law it is not necessary that the defendant should have been in actual danger of losing his life, or of receiving serious bodily injury at the hands of the deceased at the time of the alleged assault, but it is sufficient to justify the homicide if the act of the deceased, if any, viewed from the defendant’s standpoint and situated as he then was, were such as to reasonably cause the defendant to apprehend that he was in apparent danger of losing his life or having serious bodily injury inflicted upon him by the deceased, and it is immaterial whether the danger was real or not, if it only be apparent, and if you believe from the evidence, or entertain a reasonable doubt thereof, that the killing occurred under such circumstances, then you should find the defendant not guilty.
“The law of self-defense, being a law growing out of necessity, for a person to avail himself of the law of self-defense in order to justify a homicide, it must reasonably appear to him at the time, that the acts and demonstrations upon the part of the deceased were such as to make it reasonably appear to him at the time and situated as he was that he was in imminent danger of either losing his life or of great personal injury being done him, to use at the time all reasonable means appearing to a reasonable person under the circumstances viewed from his standpoint to avoid such danger or apparent danger before taking human life, except that he is not bound to retreat to avoid such necessity of killing, and he must act under the fear of suffering death or receiving serious bodily harm at the hands of the deceased before he would be justified in resorting to taking human life.
“In determining whether or not the defendant was in danger or apparent danger under these instructions, you are instructed that the law requires you to view the circumstances at the time from the defendant’s standpoint and as they then reasonably appeared to him, that is, that the circumstances under which the killing occurred as they reasonably appeared to him were sufficient to excite the fear in a reasonable person that his life was in danger, or that he was in danger of great personal injury being done him, or apparently so; and that he reasonably acted under the influence of such fear at the time; and if, after carefully weighing and considering the evidence in this case you believe from the evidence that the defendant acted in his self-defense from real or apparent necessity as embraced in these instructions, or if you entertain a reasonable doubt thereof, then you should return a verdict of not guilty.”

The above instructions, together with others, are somewhat repetitious and for this reason might tend to unduly stress the defense which was interposed, and for that reason, if anything, the instructions were more favorable to the defendant than the law requires. We have concluded from an examination of all the instructions that there is no merit to this contention of defendant.

Lastly it is contended that the county attorney was guilty of misconduct in his argument to the jury. The complete arguments of the assistant county attorney and the county attorney are not set forth in the record. The argument of the county attorney complained of, as shown by the record, appears as follows:

“That boy had gone to sleep, taken his clothes off and gone to. bed and gone to sleep, and what does he do? He goes up and sticks a knife in this boy’s heart; he struck it in his body while he slept. And that rumbling in there they heard was that boy, as a natural reaction, he rolled off and fell to the floor. * * *
“And the State of Oklahoma is exercising it’s right to ask you gentlemen to take that man out of society, operate on Mm just like a physician in a hospital would remove a cancerous growth, remove him from society, so that in Texas that little wife of Zeke Beecham cannot go to that cemetery there and sit by that grave and say to that little boy, that little three-months-old boy, that 'We will never go to Oklahoma; you might get into trouble there; you might go to the penitentiary for two years and be killed out there, and the jury should have just given you the electric chair instead of two years, for that man there was executioner, jury, judge and everything else; he took his life.’
“So that it cannot be said that Choctaw county should not have just given him two years, but should have given him the electric chair, as far as life is concerned when a man goes into that penitentiary. I ask you gentlemen, in all regard for justice, to see that there are not men like that in that penitentiary.”

The argument of the assistant county attorney that the defendant could not find one witness to come and testify for him and that every witness who testified related facts contrary to the story related by defendant are not improper- in view of the record. These statements are apparently the truth, as no Avitness appeared on behalf of the defendant and the story which he related was in direct contradiction to the physical facts and the other facts related by the various witnesses for the state.

The argument of the county attorney complained of was his deductions from the evidence and they do not appear to- us unjustifiable conclusions- from the evidence. In Morgan v. State, 9 Okla. Cr. 22, 130 P. 522, it is stated:

“The prosecuting attorney has the right, in his argument before the jury, to discuss all the facts bearing upon the issue within the scope of the evidence. * * *
“Remarks of the prosecuting attorney in his argument before the jury, objected to- as improper, will be considered and construed in reference to the evidence; and, in order to constitute reversible error, the impropriety indulged in must have been such as may have influenced the verdict.” See also Allen v. State, 13 Okla. Cr. 395, 164 P. 1002, L.R.A. 1917F, 210.

It is established law that to warrant a reversal of a judgment of conviction on account of the argument of the county attorney, such argument must be grossly improper and unwarranted upon some material point which injuriously affected the defendant’s rights.' Payne v. State, 21 Okla. Cr. 416, 209 P. 334; Murray v. State, 24 Okla. Cr. 113, 217 P. 891.

Since there has been no question raised as to the sufficiency of the evidence to sustain the conviction, we did not attempt in this opinion to set forth all of the revolting details of the crime. It is sufficient to state that the evidence establishes one of the most cold-blooded and bestial homicides shown by the records of this court. The defendant conceived and carried out an atrocious, unconscionable scheme to force the deceased to submit to demands that he satisfy defendant’s lust or be killed. The yelling of the defendant for the cell house guards at a time when Beecham was already lifeless from the knife thrusts of the defendant and the prick in defendant’s shoulder with the scissors to support a pretended claim of self-defense were so- flimsy and so contrary to the physical facts that his story was wholly unbelievable. The defendant was serving a life sentence when this crime was committed. Death by electrocution is the one punishment to fit such offenders. His previous record and whole conduct show that he has an utter disregard for human life.

Though counsel for defendant appointed by the court have sought hard to sustain the story of self-defense related by the defendant, it is clearly evident that the proof against defendant was so conclusive that only one verdict was possible; in fact, any other sentence than that of death would have been a travesty upon justice.

The time originally appointed for the execution of the defendant Finley Porter having passed pending this appeal, it is ordered, adjudged, and decreed by this court that the judgment and sentence of the district court of Pittsburg county be carried out by the electrocution of the defendant Finley Porter by the warden of the State Penitentiary at McAlester, Oklahoma, on Friday, April 16, 1913.

BAREFOOT, J., concurs. DOYLE, J., absent.


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    A. J. ZEIGLER v. STATE.
    No. A-10105.
    Jan. 27, 1943.
    (133 P. 2d 912.)

      Stephenson & Stephenson, of Okemah, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Roy P. Parham, Co. Atty., and Dane A. Serán, Asst. Co. Aty., both of Okemah, for defendant in error.
   BAREFOOT, J.

Defendant, A. J. Zeigler, was charged jointly with his brother, Alvin Zeigler, with the crime of assault Avith intent to' kill, in Okfuskee county; was tried, convicted, and sentenced to serve a term of three years in the penitentiary, and has appealed.

Defendant cites three assignments of error.

First, that the court admitted incompetent, irrelevant, and immaterial evidence Avhich was prejudicial to the rights of the defendant.

This contention is based upon the proposition that “the court allowed the prosecuting attorney to try defendant’s brother, Alvin Zeigler, again in the trial of this defendant’s case.”

The record reveals that defendant and his brother, Alvin Zeigler, were jointly charged with assault with intent to kill one Butler Anderson. Alvin Zeigler was tried the day before the defendant was tried, was convicted and assessed a penalty of five years in the penitentiary. The assault was made at the same time by both of the defendants.. The evidence of necessity involved the acts of both parties. We have carefully read the record, and it does not appear that any serious error was made by the trial court in the admission of evidence. It is contended that the court erred by making the following remarks- in the presence of the jury:

“I think — I didn’t intend to say it before the jury, but here is what I think: These two parties are charged jointly together; they are more or less responsible for1 each other’s acts, and I will take care of that when I instruct the jury. For that reason I am going to let him go into the acts of this defendant. I don’t know how far it will affect the acts, of the other one, but that is the only way to submit the matter fairly to. the jury.”

It occurs to. us that this statement was not prejudicial to the defendant. In developing the facts it was necessary, as above stated, for the acts of both defendants to be given to the jury. The court properly instructed the jury that a severance had been taken by the defendant, and that he alone was on trial. Other instructions properly protected the rights of the defendant.

The second assignment of error is that the verdict of the jury is not based upon sufficient evidence to support the same.

All of the parties concerned are members of the Negro race. On the night of October 19, 1910, the two defendants, who are brothers, and the prosecuting witness, Butler Anderson, attended a pie supper in the neighborhood where all the parties lived. Alvin Zeigler, the brother of defendant, and Butler Anderson had some kind of a difficulty at this meeting, and defendant and his brother claimed that Anderson had attempted to. cut Alvin Zeigler with a knife. Defendant was. not present at the time of this difficulty, but upon being told by others, he followed his brother to his home about a mile away, and both he and his brother armed themselves with shotguns and proceeded to. the home of Alice Hart, about one mile to the north, in pursuance of Butler Anderson. Butler Anderson was a relative of Alice Hart, and had gone from the pie supper to her home.

The evidence of Alice Hart and of several other witnesses for the state who were present in the house was that both defendant and his brother came to her home armed with shotguns. That defendant’s brother, Alvin Zeigler, entered the room where Butler Anderson was sitting on a stool with his back to the door, and that defendant stopped at the door. That upon entering the room Alvin Zeigler struck Butler Anderson over the head with his shotgun, and the gun was discharged and broken. That he and Alice Hart struggled over the gun, and during this struggle Butler Anderson left through the door and ran from the house. He was fired at three or four times, and was struck twice and severely injured. He testified that it was the defendant who' fired the shots that hit him. While other witnesses who were at the scene of the difficulty could not testify positively that the defendant fired the shots, there were many circumstances which the jury evidently took into consideration, indicating that it was defendant who fired the shots from the Winchester shotgun at the prosecuting witness as he fled from the house.

Officers investigating the case found some six or seven shotgun shells near where the defendant was standing, and also found evidence of two shots having been fired in the house. Parts of the boards showing where these shots had penetrated were cut from the house and introduced in evidence as exhibits.

Defendant testified that when he left the pie supper and went in search of his brother it was for the purpose of keeping him from attacking the prosecuting witness, and assisting him if he were attacked. He testified that he first went to his home and secured the Winchester shotgun, and that it was fully loaded. That he and his brother then went to the home of Alice Hart and that he carried the Winchester, and his brother the double-barrel shotgun. That he did not enter the house and that when the prosecuting witness ran from the house his brother, Alvin Zedgler, grabbed the gun out of his hand and that it was he, and not the defendant, who fired the shots that hit the said Anderson.

While there was a conflict in the evidence, there was sufficient evidence for the jury to find that defendant fired some of the shots at the prosecuting witness. According to his own testimony, he went to his own home and armed himself with a loaded shotgun, and in the nighttime proceeded to the premises where the prosecuting witness was, and was present at the door with a gun in his hand during the difficulty between his brother and the prosecuting witness.

Under many decisions of this court it has often been held that where there is a conflict in the evidence, and the jury has passed upon the question, we will not set aside the verdict of the jury. It is only where there is insufficient evidence to sustain the judgment and sentence that an appellate court will give relief. Petree v. State, 72 Okla. Cr. 323, 115 P. 2d 921; Todd v. State, 73 Okla. Cr. 18, 117 P. 2d 170; Kimbrough v. State, 66 Okla. Cr. 66, 89 P. 2d 982.

The third assignment of error is that the judgment and sentence rendered in this case is such as to constitute cruel and unusual punishment, and is excessive.

Defendant was charged with assault and attempt to kill. Under the statute this charge carries a maximum punishment of ten years in the penitentiary. The court instructed tlie jury as to the included offense of assault to do bodily harm with a dangerous weapon, and under this statute, a maximum punishment of five.years in the penitentiary may be assessed. The jury returned a verdict of guilty of assault with intent to kill, and left the punishment to the court, who assessed the punishment at three years in the penitentiary. It is revealed by the record that the brother of the defendant received a sentence of five years in the penitentiary. Certainly the sentence received by this defendant is not such as to constitute cruel and unusual punishment as contemplated by the statute, and we find that it is not excessive under all the facts and circumstances in this case.

Cor the reasons above stated, the judgment and sentence of the district court of Okfuskee county is affirmed.

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


author: PER CURIAM.

text:
    GEORGE WOOD JOHNSTON v. STATE.
    No. A-10211.
    Jan. 27, 1943.
    (133 P. 2d 916.)
    J. Hugh Nolen, of Okema-h, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   PER CURIAM.

The information in this case charged the defendant, George Wood Johnston, with the -crime of operating a motor vehicle on the public highway while under the influence of intoxicating liquor. The crime is alleged to have been committed on the 25th day of August, 1941. Upon his trial the jury found him guilty as charged in the information, and assessed his punishment at a fine of $50 and the costs. Motion for a new trial was duly filed and overruled and on October 11th, 1941, the court sentenced the defendant in accordance with the verdict of the jury.

On January 10, 1942, an appeal from the judgment was taken by filing in this court a petition in error with case-made and proper proof of notices. No briefs have been filed and no appearance for oral argument made.

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

We have examined the record and find that the information is sufficient to- charge the offense of driving a motor vehicle on the public highway while under the influence of intoxicating liquor. The evidence is amply sufficient to sustain the judgment and sentence. On the record before us, we have discovered no error which would warrant a reversal of the judgment and it appears that the defendant was accorded a fair and impartial trial. The judgment of the county court of Okfuskee county is accordingly in all things affirmed.


text:
    HORACE LYONS v. STATE.
    No. A-10151.
    Feb. 3, 1943.
    (133 P. 2d 898.)

      Newman & Phillips, of Durant, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Bill Steger, Co. Atty., and Alan McPheron, Asst. Co. Atty., both of Durant, for defendant in error.
   BAREFOOT, J.

Defendant Horace Lyons was charged in the district court of Bryan county with the crime of murder, was tried, convicted of manslaughter in the first degree, and sentenced to serve a term of 20 years in the .State Penitentiary. From this judgment and sentence, he has appealed.

Defendant in his brief says:

“The alleged errors can be combined and treated under practically one heading, as follows: That the evidence is not sufficient to sustain the conviction.”

It will be so considered.

Defendant first contends that the court erred in overruling a, motion for continuance by reason of the absence of two witnesses.

The record reveals that this motion for continuance was filed in the office of the court clerk on the 31st day of March, 1941. There is nothing in the record to show that the motion was ever presented to the trial court, or that any action was taken thereon by the court. It was filed on the very day the case was set for trial. When the case was called, counsel for defendant made no announcement to the court that he was not ready for trial. After the jury was impaneled, court was adjourned until 1:30 in the afternoon. We have examined the motion for continuance. The absent witnesses were not in the state, and no showing was made that they could be present at any future trial of the case. They were not eye-witnesses to the killing, and the evidence as set out in the record was cumulative, and part of it inadmissible, had they been present. No subpoenas were attached to the motion to show that either of the witnesses had been served or that a subpoena had been issued for them. In fact, no showing of any kind was made on the motion. Under these facts we find that the defendant was not deprived of any substantial right by reason of the absence of these witnesses.

It is next contended that the court erred in permitting to be introduced in evidence the testimony of M. C. Murray, who was sick and could not be present at the trial. This witness was the justice of the peace at Colbert, in Bryan county, where the killing occurred. The contention of the defendant seems to be based upon the fact that the record does not disclose that this evidence was taken at any previous trial, or in fact does not show that it was taken by any court, and that it only shows to be an isolated statement by the witness.

The record as a whole does not bear out this contention. The case-made is not as full and complete as it might be, but a careful examination of it reveals that there had been a first trial of this case on October 21, 1940. The result of that trial does not appear in the record, but there are sufficient facts to show that á trial was had, and that there was for some reason a mistrial. The evidence shows that the attorneys who represented the defendant in the present case were present and that they cross-examined this witness thoroughly. It also reveals that a doctor’s certificate was presented, showing that the witness was sick and unable to attend court. This court has repeatedly held that where a witness is sick, his testimony taken at a former trial may be read to the jury. Alexander v. State, 51 Okla. Cr. 1, 299 P. 237; Sweet v. State, 70 Okla. Cr. 443, 107 P. 817, and other cases cited. We are clearly of the opinion that upon the proof offered, no error was committed by permitting the testimony of the witness Murray, taken at the former trial, to be read to the jury.

It is also contended that there was error by reason of certain questions propounded by the county attorney to witnesses produced by the defendant to prove his; good character.

After these witnesses had testified to the good character of the defendant, they were asked on cross-examination by the county attorney if they knew the defendant had been previously charged with attempt to rape a young negro girl. The record reveals that defendant was so charged, and that the case was dismissed by the county attorney by reason of the youth of the defendant.

When a defendant places his character in issue, the state has the right to thoroughly cross-examine him and the witnesses offered in his behalf. This right has often been upheld by this court. Long v. State, 61 Okla. Cr. 274, 67 P. 2d 980; Allen v. State, 72 Okla. Cr. 102, 113 P. 2d 835; Stouse v. State, 6 Okla. Cr. 415, 119 P. 2d 271.

We cannot agree with defendant’s contention that the evidence in this case is insufficient to sustain the judgment and sentence. We have carefully read the record, and while there was no eye-witness to the shooting, the evidence reveals that defendant was; married and lived with his wife in the small town of Colbert, in Bryan county. The killing of her by defendant on March 20, 1940, was the outgrowth of jealousy on his part. He attempted to show that another party had broken np his home, and had been intimate with his wife, and this had caused temporary insanity. This was his defense.

The evidence of misconduct on the part of the wife is very meager, as shown by the testimony of all the witnesses, both for the defense and for the state; and defendant’s contention with reference to being temporarily insane at the time of the killing Avas not such as would appeal to a jury, and it evidently did not do so.

Defendant armed himself on the day of the killing ■and started in search of the party who he thought had broken up his home. He went to the schoolhouse where the party worked, and made inquiry for him. He then went to his own home, and shot his Avife to death. Hi^ statement that she attempted to stab him with an ice pick, and that he started shooting evidently was not believed by the jury. After he had killed his Avife by shooting her four times with a pistol, he inquired of the justice of the peace what would happen to him if he killed the other party. He then admitted that he had just killed his wife.

We have carefully examined the instructions. No exceptions were taken by the defendant to any of the instructions given. The court instructed the jury upon the crime of murder, and the included offense of manslaughter in the first degree. He also presented the issue of self-defense and temporary insanity, although the proof of temporary insanity was very meager.

From a careful examination of the evidence, we find no error, and the judgment of the district court of Bryan county is therefore affirmed.

JONES, P. J., concurs. DOYLE, J., absent.


author: JONES, P. J.

text:
    BOB PETERSON v. STATE.
    No. A-10103.
    Feb. 3, 1943.
    (133 P. 2d 914.)
    Robt. R. Rittenhouse, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Bob Peterson, was charged in the court of common pleas of Oklahoma county with illegal possession of intoxicating liquor, was tried, convicted and sentenced to serve 30 days in the county jail, pay a fine of $50 and costs, and has appealed.

It is insisted that the search and seizure of the whisky was in violation of the constitutional rights of the defendant, and that, therefore, the court erred in overruling the motion to suppress the evidence.

The motion to suppress was not directed at the form of the affidavit to secure the search warrant, but is directed solely at the description set forth in the affidavit and in the search warrant.

The description of the premises searched is as follows :

“A one and one-half story frame house and out buildings located at 2830 N. Bryan .Street adjacent to Oklahoma City, in Oklahoma County, Oklahoma.”

It is undisputed that the house of defendant had the number 2218 on it. It was the contention of the officers that the description set forth in the search warrant was correct, but that the number 2218 had been placed on the house by the defendant to confuse the officers and prevent them from procuring a search warrant which would correctly describe the premises.

L. II. Kolb, the officer who procured the search warrant, testified that he formerly lived just a block west of defendant’s house and was well acquainted with it. That he had passed the house many times and knew that the correct description was 2330 North Bryan street. That there was only one house on that side of the street in the 2300 block North Bryan and that an officer armed with a search warrant with that description would have no difficulty in serving, it on the correct premises, as there wei*e no other houses on that side of the block to confuse the officer. Proof is also shown that the house in question was listed as 2330 North Bryan in the City Directory.

In addition, several plats and maps were introduced which substantiated the testimony of the officer.

The defendant testified on the motion to suppress that he lived at 2218 Bryan street, which was the house searched by the officers.

With this conflict in the evidence a question of fact as to the correct legal description was presented to' the court for its determination. There is abundant substantiating evidence in the record to support the finding that the description set forth in the search warrant was the correct legal description of defendant’s premises and so definitely described the premises to be searched that the officer executing the warrant could determine from the face of the warrant the premises to be searched without the aid of any outside information.

Such finding of the trial court, when supported by substantial evidence, will be sustained on appeal.

■ The judgment of the court of common pleas of Oklahoma county is affirmed.

BAREFOOT and DOYLE, JJ., concur.


text:
    BOB PETERSON v. STATE.

      No. A-10104.
    Feb. 3, 1943.
    (133 P. 2d 915.)
    Robt. R. Rittenhouse, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Bob Peterson, was charged in the court of common pleas of Oklahoma county with illegal possession of intoxicating liquor, was tried, convicted and sentenced to serve 30 days in the county jail, pay a fine of $50 and costs, and has appealed.

This as a companion case to No. A-10103, 76 Okla. Cr. 46, 133 P. 2d 914, this date decided. Jury was Avaived and these cases Avere consolidated for the purpose of the hearing in the court below with the understanding that the proof introduced on the motion to suppress the evidence would apply to the record in each case.

In case No. A-10103, supra, the description in the search Avarr-ant read 2330 North Bryan street and the search was made on December 21, 1940. In the instant case the search was made on January 7, 1941, and the description in the search warrant is an follows:

“A one story frame house located on the W% of Blk. 16, Dykins Hgts. Addition Avith Number 2218 on this house adjacent to Oklahoma City, in Oklahoma County, Oklahoma.”

It appeared that after the officers had had a controversy with defendant in case No. A-10103 as to the correct description of defendant’s premises, wherein they attempted to give the description as 2330 North Bryan, they went to the county clerk’s office and checked the records to ascertain the correct legal description of said premises to insert in the Avarrant instead of the street address.

The officers testified that the W1/^ of block 16, Dykins Heights addition, is the same as 2330 North Bryan street and that either description accurately described defendant’s house. The county assessor testified that the W% of block 16, Dykins Heights addition, is the correct legal description of defendant’s premises; that there Avere no improvements on the W% of block 16, Dykins Heights addition, other than defendant’s, and there is no evidence in the record herein to dispute it.

The statement made in case No. A-10103, supra, with reference to' the findings of the court on the disputed question of fact as to the correct description of the premises sought to be searched, will apply, likewise, in the disposition of this case.

The judgment of the court of common pleas of Oklahoma county is affirmed.

BAREFOOT and. DOYLE, JJ., concur.


text:
    CLAYBE YEARGAIN v. STATE.
    No. A-10219.
    Feb. 10, 1943.
    (134 P. 2d 142.)
    O. F. Mason, of Miami, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   PER CURIAM.

This appeal is from a judgment of the county court of Ottawa county, rendered in accordance with the verdict of a jury finding Claybe Yeargain guilty of unlawful transportation of intoxicating liquor and fixing his punishment at a fine of $100 and 30 days in jail.

On October 4, 1941, his motion for a new trial was overruled; thereupon the court rendered judgment and sentence in accordance with the verdict.

The case-made and petition in error were filed in this court January 31, 1942.

The errors assigned are in substance that the verdict of the jury is contrary to' the law and to the evidence; that the court erred in admitting incompetent evidence, duly excepted to ; that the court erred in overruling the defendant’s demurrer to the evidence, and erred in giving certain instructions to the jury.

No' testimony was given by the defendant or by any witness in his behalf.

One of the grounds of the motion for a new trial and upon which error is assigned is:

“Misconduct of the county attorney in argument, wherein he commented on the failure of the defendant toi testify in his own behalf.”-

No briefs have been filed and there was no' appearance on the part of the defendant when the case was called for oral argument and final submission.

The uncontroverted evidence as shown by the testimony of the two witnesses for the state supports each and every essential allegation of the information.

This court has repeatedly laid down the rule where no counsel appears and no brief in support of the petition in error is filed, this court will not diligently search the record to discover error, but will look to the jurisdiction of the court and the sufficiency of the evidence to support the conviction, and if it reasonably supports the verdict and no fundamental error is apparent, the judgment of conviction will be affirmed.

The record does not contain the argument of the county attorney. However, it appears that when the county attorney was making his closing argument Mr. Mason (counsel for defendant) stated:

“We object to tbe argument of counsel for the state as to defendant’s failure to present evidence.
“The Court: The jury will not consider remarks about the defendant’s failure to put on any evidence.”

In the case of Chesser v. State, 63 Okla. Cr. 84, 73 P. 2d 191, 197, we reviewed the precise question here presented by the record, and that case is decisive of the question under consideration. In the course of the opinion we said:

“Our Code, § 3068, 22 Okla. St. Ann. § 701, is the section which permits one who is accused of crime to waive his privilege of standing mute and allows him to testify as a witness in his own behalf. The section concludes with this language:
“ ‘The person charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him nor be mentioned on the trial; if commented upon by counsel it shall be ground for a new trial.’
“It is contended that the statement of the county attorney was equivalent to saying that the defendant had failed to take the stand to testify in his own behalf.
“We cannot agree with counsel’s contention in this respect. Fairly interpreted, it was an assertion that there had been no evidence controverting that presented by the state. It was in effect a comment on the fact that testimony of witnesses for the state had not been contradicted.”

And see Presnell v. State, 71 Okla. Cr. 162, 109 P. 2d 834; Kennamer v. State, 59 Okla. Cr. 146, 57 P. 2d 646.

It is our opinion the county attorney did not exceed his privilege.

Finding no error in the record, prejudicial to the rights of the defendant, the judgment appealed from is accordingly affirmed.


author: BAREFOOT, J. DOYLE, T.

text:
    CLARENCE GLOVER v. STATE.
    No. A-10156.
    Feb. 10, 1943.
    (134 P. 2d 144.)
    George W. Olipbant, of Holdenville, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and EL M. Sbirley, Co. Atty., of Coalgate, for defendant in error.
   BAREFOOT, J.

Defendant, Clarence Glover, was charged in the district court of Coal county with the crime of robbery with a dangerous weapon, was tried, convicted, and his punishment set at ten ' years in the State Penitentiary; and has appealed.

The defendant was arrested on May 26, 1940. Information was filed in the district court of Coal county on June 12, 1940, and the defendant, being unable to make bail, was confined in the county jail until an order was made by the district judge on June 5, 1940, transferring him to- the State Penitentiary for safekeeping, and he remained there until his trial on June 2, 1941.

On May 13, 1941, defendant filed a motion for discharge for the reason that he had not been given a speedy trial, as provided by the Constitution and statutes of the State of Oklahoma. This motion was overruled on May 22, 1941, and defendant’s case assigned for trial on June 2, 1941.

The record discloses that evidence was taken at the hearing on the motion for discharge. When the original transcript was prepared, this evidence did not appear therein. The original case-made was filed in this court on January 33, 1942, and an amended case-made was filed on March 26, 1942. It is revealed by the amended case-made that the reporter who took the evidence at the time the motion for discharge was presented lost her notes, and this evidence was omitted from the original case-made. The attorney for defendant filed an affidavit setting forth from memory what this evidence was, and the county attorney OK’d the same, and also signed a stipulation that the amended case-made was true and correct in all particulars; and the trial judge also certified to the same.

From the foregoing statement, it will he seen that the defendant was in the county jail, or the penitentiary, from May 26, 1940, until the date of his trial on June 2, 1941. For this reason, this case has been advanced.

The first assignment of error is that the court erred in overruling the motion of the defendant for discharge, on the ground that he had not been given a speedy trial, as provided by article 2, § 20 of the Constitution, and by sections 2670 and 2872, O. S. 1931, Okla. Stat. Ann. (1941) Title 22, §§ 13 and 812.

Article 2, § 20 of the Constitution reads:

“In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed: Provided, that the venue may be changed to some other county of the state, on the application of the accused, in such manner as may be prescribed by law. He shall be informed of the nature and cause of the accusation against him and have a copy thereof, and be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his behalf. He shall have the right to be heard by himself and counsel; and in capital cases, at least two days before the case is called for trial, he shall be furnished with a list of the witnesses that will be called in chief, to prove the allegations of the indictment or information, together with their postoffice addresses.”

Section 2670, O. S. 1931, Okla. Stat. Ann. (1941) Title 22, section 13, provides:

“In a criminal action the defendant is entitled:
“1. To a speedy and public trial. * * *”

And section 2872, O. S. 1931, Okla. Stat. Ann. (1941) Title 22, section 812, is as follows:

“If a defendant, prosecuted for a public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of court in which the indictment or information is triable after it is filed, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown.”

Okla. Stat. Ann. (1941) Title 20, § 95 (S. L. 1935, p. 29) provides:

“Two regular terms of the district court shall be held each year in each county of this state.” These terms shall commence “on the first Monday in January and the first Monday in July in each year, * * * and shall continue and be open at all times until and including the day preceding the next regular term, on which day it shall expire and adjourn sine die by operation of law.”

This court will take judicial knowledge of the terms of court to be held in the judicial districts of this state. Ex parte John Menner, 35 Okla. Cr. 252, 250 P. 541; Woods v. State, 68 Okla. Cr. 406, 99 P. 2d 189.

Under this statute, the defendant having been arrested in May, 1940, and information having been filed against him on June 2, 1940, the next term of the district court in Coal county would have begun on the 1st day of July, 1940, and ended on December 31, 1940. The next term would have begun on the 1st day of January, 1941, and ended on June: 30, 1941.

The statement, in the form of an affidavit, made by the attorney for the defendant, setting forth the evidence presented on motion and appearing in the amended case-made, is as follows:

(Omitting the heading.) “George W. Oliphant of lawful age, being first duly sworn upon oath, says: That he was and is attorney for Clarence Glover in the above styled case. That he is a regular practicing attorney in good standing in the State Bar of the State of Oklahoma, with his office at 201% North Broadway,. Holdenville, Oklahoma, and that he was such at all times herein set out. That on the 22nd day of May, 1941, at Coalgate, Oklahoma, while representing the defendant, Clarence Glover, this affiant presented motion to dismiss, which had been filed in said cause of action; that upon a hearing of said motion this affiant caused to be introduced as evidence on behalf of the defendant, Clarence Glover, statement showing that the court fund of the County of Coal, State of Oklahoma, had on hand the following sums of money, for the following months:
“On hand at end of August, 1940.............................$ 778.19
“On hand at end of September, 1940 .................... 778.19
“On hand at end of October, 1940............................. 778.19
“On hand at end of November, 1940. — ,.................. 858.64
“On hand at end of December, 1940........................ 823.94
“On hand at end of January, 1941, ................ 823.94
“On hand at end of February, 1941, ............ 823.94
“On hand at- end of March, 1941, ........,....,.............. 1225.94
“On hand at end of April, 1941, ............................. 1225.94
“That a term of criminal and civil court is ordinarily held in said County of Coal for approximately $1400.00. That said evidence further showed that the defendant, Clarence Glover, was arrested in June, 1940, and was confined in the State Penitentiary at McAlester for safekeeping in solitary confinement from the time of his arrest in June, 1940, to the time of his trial in June, 1941. That every time he appeared before court, or officers of the law he demanded his right to a speedy trial, which was denied him; that in the fall of 1940 a term of civil court was held in the district court of Coal county, and no attempt was made to hold a docket on criminal cases, although this defendant was in jail in solitary confinement in McAlester demanding trial. That defendant’s father, H. P. Glover, made several calls on the county attorney of Coal county, in the fall of 1940, requesting that said Clarence Glover be granted a speedy trial, and requesting that said case be placed upon the same docket on which civil cases were heard in 1940. That the county attorney failed, neglected and refused to place said case on said docket or any docket or to have said trial. That the county attorney was requested time and again to set said case for trial. That a term of court elapsed while said defendant was in jail and a greater part of a second term of court elapsed without him being granted a speedy trial, as provided by the statutes of the State of Oklahoma. That this affidavit is being made and filed in this cause for the reason that the stenographer who' took the evidence on said motion to dismiss has lost or misplaced said notes and that the evidence taken by her in shorthand can not therefore be transcribed and incorporated in the casemade herewith, and that this is a statement of the evidence made up from memory by the counsel of defendant, and is hereby filed as a true statement of said evidence offered and introduced at said time.
(Signed) “George W„ Oliphant
“Subscribed and sworn to before me this 23rd day of February, 1942.
(Signed) June Burton,
(Seal) Notary Public.
“My comm, expires : Jan. 3, 1945.
“OK H. M. Shirley, County Attorney and was Special Prosecutor in this case.”

There is also, included in this amended case-made a copy of the July, 1940, docket of the district court of Coal county, beginning on November 25, 1940. The case of this defendant was not assigned at that time, notwithstanding the fact that information had been filed against him on June 2d, and that he was confined in the State Penitentiary awaiting trial. It is revealed by the record that 31 civil cases were assigned for trial at this term of court, but no criminal cases were set on that docket.

A stipulation was signed by the county attorney and filed as a part of the amended record. It is as follows :

(Omitting the caption) “Concerning amended case-made:

“This is to certify that I, the undersigned county attorney for the plaintiff, the State of Oklahoma, have examined the foregoing amended case-made and find the same true and correct in all particulars, and have no amendments to suggest, and waive the time allowed by the court in which to suggest amendments to same, and consent that the amended case-made as heretofore set out may be signed, settled, certified and allowed by the court as in all respects full, true and correct.
“I hereby waive notice to me of the time and place of the presentation of the above and foregoing case-made to the judge of said district court before whom said cause was tried, for settlement and signing, and hereby agree that said amended case-made may be presented to said judge for settlement and signing and be settled, signed and allowed by said judge at any time it may suit his convenience to do so.
“Dated this 12 day of March, 1942.
(Signed) “M. M. Shirley County Attorney of
Coal County, State of Oklahoma.”

The certificate of the trial judge is as follows:

(Omitting the caption) “I, the undersigned judge of the district court within and for Coal county, State of Oklahoma, before whom said cause was tried, hereby certify that the foregoing amended ease-made was presented to me, as the amended case-made herein, as required by law, by the parties to said cause, and it appearing to me, that the amended case-made has been duly made and served upon the plaintiff, the State of Oklahoma, within the time fixed by the order of this court, and in the manner and form provided by law;
“And the said amended case-made having been examined by me, is true and correct and contains a true and correct statement and complete transcript of all pleadings, motions, orders, evidence, findings, judgments and proceedings in said cause and the plaintiff, The State of Oklahoma, in said cause, by its county attorney, having certified in writing that the foregoing amended case-made is a true and correct amended case-made in all particulars, and that it has no amendments to suggest, and waives the time allowed by the court within which to suggest amendments and waives notice of the time and place of presentation of said amended case-made to the judge of said court who tried the case, for settlement and signing, and consents that the said amended case-made as hereinbefore set out may be signed, settled, certified and allowed by the court as in all respects full, true and correct. I hereby certify, sign and settle the amended case-made as a true and correct amended case-made in said cause, and direct that it be attested and filed by the court clerk.
“It is further ordered that the defendant may withdraw the amended case-made from the files for the purpose of attaching it to the petition in error to be filed in the Criminal Court of Appeals of the State of Oklahoma.
“Witness my hand this the 26th day of March, 1942.
(Signed) “Roy Paul
“District Judge, Coal County, Oklahoma.
“Attest:
“Joe R. Summers, Court Clerk
“Coal County, Oklahoma
“By W. B. Anderson, Deputy.”

The construction of the Constitution and the statutes hereinbefore quoted have been under consideration in the following cases: Ex parte Meadows, 71 Okla. Cr. 353, 112 P. 2d 419; Ex parte Leathers, 66 Okla. Cr. 172, 90 P. 2d 450; Ex parte Warrenburg, 63 Okla. Cr. 125, 73 P. 2d 476; Ex parte Wilkerson, 73 Okla. Cr. 32, 117 P. 2d 172.

In fact, this section of the Constitution and these sections of the statute have been construed by this court in numerous cases. A reading of these cases reveals that there are apparent conflicts in some of the decisions. The courts have called attention to these apparent conflicts, and we at this time shall refer to- some of them.

Presiding Judge Furman wrote a most applicable and forceful opinion in the early case of McLeod v. Graham, 6 Okla. Cr. 197, 118 P. 160, 163. We quote from the opinion:

“This statute relieves trial courts of construing the term ‘speedy trial’ in each and every case wherein it is presented. When it is found that a defendant in any particular case has not been brought to trial at the next regular term of the court in which his case is triable, after the case has been presented therein, it is the duty of the trial court to order the prosecution to be dismissed, unless it appears that the case had been postponed or continued upon the application of the defendant, or unless the state shows good cause (that is, some legal reason) why said case has not been tried, and why said prosecution should not be so dismissed. The evident purpose of these provisions of the Constitution and the statute is to require of the officers of the law that they exercise reasonable diligence in preparing for the trial of criminal cases, and to secure to each person charged with crime a trial as soon after the indictment or information' has been filed against them as the prosecution can with reasonable diligence prepare for trial; regard being had to the terms of court.
“Any delay caused by operation of the rules of law would constitute good cause for continuing a case beyond a second term of the court. Where it appears from the record that a defendant has not been brought to trial at the second term of the court after the prosecution against him has been instituted, and the record does not show that this postponement was caused by the application of the defendant, or with his consent, then the defendant’s right, if he demands it, to have the prosecution against him dismissed becomes absolute, unless good cause is shown by the state why the case should be continued to a subsequent term of the court; and this showing of ‘good cause’ will not be presumed, but must appear in the record of the trial court, or in the answer to< the petition for mandamus. Whether or not the cause shown for the further continuance of a prosecution is sufficient is addressed to the discretion of the trial court, and, if the trial court abuses this discretion, it is subject to review upon appeal or in mandamus proceedings. This rule secures to a defendant his right to a speedy trial, upon the one hand, by protecting him from vexatious, capricious, arbitrary, and oppressive delays, and, upon the other hand, it does not preclude the rights of public justice; for, if good cause for a postponement of a trial exists, the requirements of the statute do not apply. Were it not for this rule, an arbitrary and capricious judge could punish a defendant indefinitely by confining him in prison, pending* a final trial, or, if the defendant was on bail, such a judge could harass and distress him without limit by keeping a groundless accusation hanging over his head and clouding his good name; while, on the other hand, if good cause exists why a case should be continued from term to' term of the court, this cause can be made to appear in the record, and the ends of public justice will be protected.”

In the case of Harris v. Ogden, 44 Okla. Cr. 418, 281 P. 316, 317, this court referred to the seeming, conflict in the cases decided by the court, and announced the rule that has been followed since that time. We quote:

“There appears to be a conflict in some of the opinions rendered by this court under section 2913, supra [22 O. S. 1941 § 812], In some of the opinions where two terms have elapsed without consent of defendant it is said the burden is on the state to show that the continuance was for a lawful cause. Smith v. State, 27 Okla. Cr. 294, 27 P. 901; Clinkenbeard v. State [40 Okla. Cr. 113], 267 P. 485; Bayne v. State [43 Okla. Cr. 440], 279 P. 695.
“Other cases hold that, when a defendant is on bail, he must demand a trial or resist the continuance of the case. State ex rel. v. Bayless [38 Okla. Cr. 129], 259 P. 606, and authorities cited; Davis v. State [44 Okla. Cr. 141], 279 P. 976.
“This seeming conflict appears to have arisen in cases where no counter showing Avas made to' a defendant’s motion to dismiss under this statute and in cases where a counter shoAving was made.
“In the first line of authorities where an accused has made a sufficient showing and no counter showing is made, and the allegations of the defendant thereby tacitly admitted, the holding is in substance that the state must make some explanation showing good cause for its delay in bringing the accused to trial. These cases correctly state the law, if the shoAving made affirmatively discloses that the neglect is on the part of the state and that defendant has demanded trial and resisted a continuance. The other line, as in the Davis cases, supra, hold in substance that the burden is on defendant in the first instance to show that the laches were on the part of the state, and Avhen on bail that he had demanded a trial and resisted a continuance. The conflict is more apparent than real, but, conceding a conflict, the Davis cases undoubtedly state the correct rule. Section 2913, Comp. St. 1921, supra [22 O. S. 1941 § 812], is intended to amplify and make effective the provisions of article 2, § 20, of the state Constitution, which guarantees an accused a speedy trial. This constitutional and statutory right, however, may be Avaived, and is waived, when a defendant is on bail and agrees or acquiesces in the continuance of the prosecution against him. If he desires to avail himself of this constitutional and statutory right, he must demand a trial and resist a continuance of the case.”

It will be noted that in this case the defendant was on bail, Avhile in the instant case the defendant had at all times been confined in jail, or the State Penitentiary.

As heretofore stated, the defendant in this case was arrested on May 26, 1940, was placed in the county jail of Coal county, was transferred to- the state penitentiary on June 5, 1940, where he remained until the date of his trial, June 2, 1941.

The record reveals that the father of the defendant made several calls on the county attorney of Coal county in the fall of 1940, requesting that the defendant be given a speedy trial, and that a request or demand was made that his case be placed on the docket at which the civil cases were heard in the fall of 1940. This request was denied. Defendant was not tried until near the close of the January, 1941, term, to-wit, on June 2, 1941. There is no denial of this testimony in the record. No response was filed by the county attorney to- the motion for discharge. The county attorney signed a stipulation in which he states “I have examined the foregoing amended case-made and find the same true and correct in all particulars, and have no amendments to suggest.” The trial judge certified that the amended case-made “is true and correct, and contains a true and correct statement of all pleadings, motions, orders, evidence, findings', judgments and proceedings in said cause.”

From the above it will at once be observed that this defendant was not granted a trial, “at the next term of court-,” after the information was filed against him. He has been in jail and the .State Penitentiary since May 26, 1940. Defendant has brought himself clearly within the rule announced by this court in the case of Harris v. Ogden, supra, and other cases. The state at no time assumed the burden cast upon it to give the defendant a speedy trial. In fact, there was unnecessary delay, which entitled the defendant to have his motion for discharge granted on May 22, 1941. How true are the words of Judge Furman, above quoted, when he says:

“This rule secures to a defendant his right to' a speedy trial, upon the one hand, by protecting him from vexatious, capricious, arbitrary, and oppressive delays, and, upon the other hand, it does not preclude the rights of public justice; for, if good cause for a postponement of a trial exists, the requirements of the statute do not apply. Were it not for this rule, an arbitrary and capricious judge could punish a defendant indefinitely by confining him in prison, pending a final trial, or, if the defendant was on bail, such a judge could harass and distress him without limit by keeping a groundless accusation hanging over his head and clouding his good name; while, on the other hand, if good cause exists why a case should be continued from term to term of the court, this cause can be made to appear in the record, and the ends of public justice will be protected.”

For the reasons above stated, it becomes unnecessary to> consider other assignments of error.

The judgment and sentence of the Goal county district court is reversed and the warden of the state penitentiary is directed to deliver the defendant to the sheriff of Goal county, and the court is directed to sustain the motion of the defendant for his discharge, by reason of not having been given a speedy trial in accordance with the provisions of the Constitution and the statutes of this state.

It is so ordered.

TONES, P. T., concurs.

DOYLE, T.

(concurring). In the case of Culver v. State, 11 Okla. Cr. 4, 141 P. 26, 28, we said:

“The Constitution guarantees a speedy and public trial to the accused, in all criminal prosecutions. Section 20, Bill of Bights. The Legislature has provided what shall constitute a reasonable time within which a defendant shall be brought to trial, unless good cause is shown for further delay.
“Section 6096 of Procedure Criminal [Rev. Laws 1910, sec. 2872, Sts. 1931, 22 Okla. Stat. 1941 § 812) provides:
“ ‘If a defendant, prosecuted for a public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of court in which the indictment or information is triable after it is filed, the court must order the prosecution to be dismissed, unless g*ood cause to the contrary be shown.’
“We are inclined to- think that the action of the court in continuing the case over the May term without requiring the state to- show cause operated as a discontinuance. Where any valid reason exists, or legal ground is shown by the state for the continuance, the granting of the same is a matter within the sound discretion of the court, but under section 6096,'supra [sec. 2872, Sts. 1931, 22 Okla. Stat. 1941 § 812], a defendant indicted for, or charged by information with, a public offense, whose trial has not been postponed upon his application, is entitled to- his discharge for failure to- try his case within the statutory time, in the absence of any good reason for further delay. The statute is for the purpose of carrying into effect the constitutional guaranty of a speedy trial. The authorities uniformly hold that such statutes are enacted for the purpose of enforcing the constitutional right, and that they constitute a legislative construction or definition of the constitutional provisions. State ex rel. Eubanks v. Cole, 4 Okla. Cr. 25, 109 P. 736. See, also, McLeod v. Graham, 6 Okla. Cr. 197, 118 P. 160.
“Upon the failure of the state to make a proper showing for a continuance at the May term, and the defendant not consenting thereto, the case should have been dismissed. It was therefore error to deny the defendant’s motion to- dismiss. It follows that the judgment should be reversed, with direction to discharge the defendant.”


text:
    A. V. BRIGHT v. STATE.
    No. A-10102.
    Feb. 10, 1943.
    On Rehearing May 5, 1943.
    (134 P. 2d 150.)
    Riley Q. Hunt, of Jay, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., John H. Poe, Asst. Atty. Gen., and W. Hendrix Wolf, Sp. Co. Atty., of Jay, for defendant in error.
   BAREFOOT, J.

Defendant, A. V. Bright, was charged in the district court of Delaware county with the crime of obtaining property by means of a bogus check; was tried, convicted and sentenced to serve a term of three years in the State Penitentiary, and has appealed.

The statute under which defendant was charged is Oklahoma Statutes 1931, section 2086, O. S. A. (:Stat. 1941), Title 21, § 1541, which is as follows:

“Every person who, with intent to cheat and defraud, shall obtain or attempt to obtain from any person, firm or corporation, any money, property, or valuable thing’, of the value of Twenty ($20.00) Dollars, or less, by means or by use of any trick or deception, or false or fraudulent representation, or statement or pretense, or by any other means or instrument or device commonly called the ‘confidence game,’ or by means or use of any false or bogus checks, or by any other written or printed or engraved instrument or spurious coin, shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not to exceed One Hundred ($100.00) Dollars, or by imprisonment in the county jail for not more than thirty (30) days, or by both such fine and imprisonment.
“If the value of the money, property or valuable thing referred to in the preceding paragraph, be more than Twenty ($20.00) Dollars, any person convicted hereunder shall be deemed guilty of a felony and shall be punished by imprisonment in the State Penitentiary, for a term not exceeding seven (7) years, or by a fine not to exceed Five Hundred ($500.00) Dollars, or by both such fine and imprisonment. The term ‘false or bogus check’ shall include checks or orders given for money or property which are not honored on account of insufficient funds of the maker to pay same, as against the maker or drawer thereof, the making, drawing, uttering or delivering of a check, draft or order, payment of which is refused by the drawee, shall be prima facie evidence of intent to defraud and the knowledge of insufficient funds in, or credit with, such bank, or other depository; provided, such maker or drawer shall not have paid the drawee thereof the amount due thereon, together with the protest fees, within five days from the date the same is presented for payment; and, provided, further, that said check or order is presented for payment within thirty days after same is delivered and accepted.
“The word ‘credit’ as used herein, shall be construed to mean an arrangement or understanding with the bank or depository, for the payment of such check, draft or order.”

The facts as revealed by the record are that defendant was engaged in the sale of used and new automobiles in the city of Jay, Delaware county, and for a number of years prior to the 2nd day of August, 1939, had been a regular customer of the Delaware County Bank of that city; that during this time he had sold many notes and chattel mortgages to the said bank; that on the above date he was indebted to the bank by reason of a certain promissory note in the sum of $529.83 and which was secured by a chattel mortgage upon a certain Ford Pick-TJp, Motor No. 4748026. On this date, in response to a request from the bank, defendant appeared, and gave to the bank, on the 2nd day of August, 1939, a check upon the “Corner Stone Bank”, of Southwest City, Missouri, in the sum of $529.83, and received therefor, from the bank, his note for this amount, and the chattel mortgage on the Ford Pick-Up, which note and mortgage were marked “Paid”; that the check was immediately presented for payment to the “Comer Stone Bank”, and the same was returned “unpaid by reason of insufficient funds”; that the same had not been paid at the time of the filing of this charge, on the 16th day of November, 1940.

The state offered the evidence of Mrs. Lueretia Wallace, who was employed by the Jay Bank and who handled the transaction as above outlined, and also of her husband, George Wallace, who was interested in the bank but was not actively employed until a short time after the transaction had occurred.

The defendant offered in evidence his own testimony and the evidence of Lillie Teague, who was employed by him as a clerk. The evidence of these witnesses, together with the exhibits, constitute the whole of the evidence offered.

Defendant admitted as true all of the evidence of the witnesses for the state, as heretofore related, with the exception that he claimed that the check for $529.83 had been paid on the 12th day of August, 1939. After testifying to his manner of doing business with the bank, and to selling them notes and mortgages on used and new cars over a long period of time, and to his indebtedness to them by an overdraft of $4,784.05 in August, 1939, he testified that he went to the bank on August 12, 1939, for the purpose of selling the bank several notes and mortgages, as he had done in the past; that he did sell some of them to the bank and received in return therefor a deposit slip in the sum of $1,397.05, signed by Mrs. Wallace. He testified that this deposit Avas for the purpose of paying, first, the specific check of $529.83 heretofore mentioned, and that he instructed Mrs. Wallace to take care of the check he had given on the “Comer Stone Bank,” and to use the balance where it Avas needed, and assumed that his instructions had been carried out. He further testified that he did not hear of the nonpayment of the- $529.83 check until about the 5th of September, 1939, and that it was not in the bank on August 12th, 1939, Avhen he made the deposit.

Mrs. Wallace took the witness stand in rebuttal and denied that she had received any instructions from the defendant on August 12, 1939, as to how the money received on that date should be applied. Her husband, who was present at the time, also testified that he did not hear any such conversation at the time the deposit was made, but that prior to that time defendant had told him he wanted that check taken up with the very first cash he could get. This deposit, of $1,397.05, made on August 12, 1939, was applied by the bank on his overdraft, which, at that time, was $4,784.05.

Under these facts it is contended by defendant:

1. Payment of a past-due obligation with a worthless check, and the surrender of the evidence of that obligation in the form of a promissory note signed by the payer, does not constitute the crime of obtaining property by false pretense.

2. Plaintiff in error paid the worthless check within the time prescribed by the statute and there is no evidence in the record to sustain the verdict of the jury that the same had not been paid.

Splendid briefs have been filed by the defendant and by the state in this case; two reply briefs have been filed.

Defendant in his original brief contends that the court erred in failing to sustain a motion for a directed verdict, for the reason that the evidence of the state was insufficient to prove the defendant guilty beyond a reasonable doubt. It being contended that by reason of the fact that the evidence revealed that the state’s witness, Mrs. Lucretia Wallace, had entered a plea of guilty in the federal court for the misappropriation of funds of the bank and was, at the time she testified, out on a suspended sentence; that this constituted, as a matter of law, her impeachment, and that the jury was not justified in believing any of her testimony. It will be readily observed, and has been so held by this court, that the credibility of witnesses is a question of fact for the jury. The fact that one has been convicted, or is out on parole or probation, does not forbid his or her being a witness. This fact may be disclosed to the jury and it is for them to decide, upon proper instructions from the court, the consideration to be given to that testimony. Oklahoma Statutes 1931, sec. 268, Oklahoma Statutes Annotated (Stat, 1941), Title 12, § 381, and Title 22, § 702. Martin v. Territory, 14 Okla. 598, 78 P. 88; Bryan v. State, 11 Okla. Cr. 180, 144 P. 392; James v. State, 64 Okla. Cr. 174, 78 P. 2d 708.

The instructions of the court in the instant case fully presented this issue. The court also passed upon the issue when the motion for a new trial was heard. Smith v. State, 51 Okla. Cr. 31, 299 P. 229; Strong v. State, 42 Okla. Cr. 248, 275 P. 385.

In defendant’s reply brief the two propositions above set out are fully presented. It is contended that the receipt of the note for $529.83, and the chattel mortgage, marked paid, did not constitute the crime of obtaining property by false pretense, as contemplated by the statute under which defendant was charged; that this payment of a past-due obligation with a worthless check did not constitute a crime under the statute.

In support of this contention the following authorities are cited: Midgley v. State, 29 Okla. Cr. 108, 232 P. 967; Foster v. State, 15 Okla. Cr. 216, 175 P. 944; State v. Davis, 26 N. M. 523, 194 P. 882; 25 C. J. 608, sec. 38; 22 Amer. Juris., 481, sec. 71; 35 A. L. R. 387, citing Commonwealth v. Hammock, 198 Ky. 785, 250 S. W. 85; State v. Pishner, 72 W. Va. 603, 78 S. E, 752; Allen v. State, 58 Tex. Cr. R. 494, 126 S. W. 571.

We have carefully read and considered these cases and have come to the conclusion, that they do not sustain the contention of defendant as applied to the facts in the instant case. We shall not lengthen this opinion hy reviewing, them.

Oklahoma Statutes 1931, sec. 1788, Oklahoma Statutes Annotated (Stat. 1941), Title 21, § 104, defines property as follows: “The term ‘property’ includes both real and personal property”.

And Oklahoma Statutes 1931, sec. 1789, Oklahoma Statutes Annotated (Stat. 1941), Title 21, § 103, defines personal property as follows:

“The term ‘personal property’ includes every description of money, goods, chattels, effects, evidences of right in action, and written instruments by which any pecuniary obligation, right or title to property, real or personal, is created or acknowledged, transferred, increased, defeated, discharged or diminished”.

• The statute under which defendant was charged, and quoted above, uses these words: “any money, property, or valuable thing”. Under the statute defining personal property it is clear that a promissory note, and chattel mortgage, would be considered as personal property and as a “thing of value”. It is an evidence of a right of action and a written instrument by which a pecuniary obligation is acknowledged.

The argument that the bank did not give up anything when the note and mortgage were surrendered, upon receipt of the bogus check, cannot be sustained. The evidence reveals that the chattel mortgage was marked paid. This released it from the files. If any other mortgage had been on file, it would have then become a prior lien upon the property and a valuable right would have been lost by the surrender of the mortgage and note.

In 22 American Jurisprudence 464, sec. 36, the text, after discussing the question of false pretense in reference to the question here involved, says:

“From considerations such as these, the courts have concluded that the true intention of the legislature is best given effect by holding that notes are within the meaning of the words ‘or other property’. It is immaterial whether a note is negotiable or nonnegotiable, the latter of which is a thing of value as well as the former”.

In the case, of Loughridge v. State, 63 Okla. Cr. 33, 72 P. 2d 513, 515, this court had under consideration a construction of the statute here involved. It was said:

“This statute has been construed by this court both before and since it was amended by chapter 33, Session Laws of 1923, 21 O. S. 1941 § 1541. It is useless to quote from these cases, and we merely cite them as follows: Gunther v. State, 42 Okla. Cr. 129, 276 P. 237; Mason v. State, 23 Okla. Cr. 111, 212 P. 1028; Kilgore v. State, 25 Okla. Cr. 69, 219 P. 160; State v. Baxley, 40 Okla. Cr. 361, 269 P. 326; Bennett v. State, 21 Okla. Cr. 27, 204 P. 462; Beach v. State, 28 Okla. Cr. 348, 230 P. 758. A reading of these cases will immediately convince one that the construction placed upon this statute by this court has been a liberal one, giving it force and effect.”

In the case of State v. McCray, 15 Okla. Cr. 374, 177 P. 127, we have held that a. warranty deed is personal property. In the case of Kehlier v. Smith, 112 Okla. 183, 240 P. 708, the Supreme Court of this state held that a real estate mortgage is personal property, and in Knepper v. People, 63 Colo. 396, 167 P. 779, it is held that a note is a thing of value; and in People v. Reed, 70 Cal. 529, 11 P. 676, it is held that a promissory note may be the. subject of tbe crime of obtaining property under false pretense. In the case of Judkins v. State, 123 Ark. 28, 184 S. W. 107, the court upheld the conviction of a defendant for obtaining property under false pretense by securing the surrender of his promissory note and the mortgage securing it.

Tinder these authorities we can come to but one conclusion and that is, that, under the evidence as revealed by the record, the defendant was properly convicted of obtaining property by the giving of a bogus check, as above outlined.

With reference to defendant’s second assignment of error, that the check given to the bank on August 2-, 1939, was paid by the deposit made by the defendant on the 12th day of August, 1939, it may be stated as a general rule that, where one owes debts, when making a payment he has the primary right to direct its application to such debt as he may choose, Avhether secured or unsecured. Carson v. Cook County Liquor Co., 37 Okla. 12, 130 P. 303, Ann. Cas. 1915B, 695.

As to whether he did, is clearly a question of fact for the determination of the jury. The evidence is conflicting as to whether he made this direction in the instant case. The court fairly submitted this issue to the jury in the following instruction:

“It is also a theory of the defense that the check in question was paid by the defendant to the Delaware County Bank on the 12th day of August, 1939, and you! are advised that if, after consideration of all the evidence, you entertain a reasonable doubt as to whether or not said check was paid on that date, it would be your duty to acquit the defendant. In this regard you are instructed that if sufficient funds were paid to the bank to' pay the check, and the defendant instructed the bank, or its agent, to apply said payment on the liquidation of the check in question, that would amount to- payment. However, you are instructed that if the defendant agreed with the bank that all of the payment or deposit on August 12, 1930, was to be applied on some other indebtedness, then any former instructions to the bank as to the manner of payment would be of no avail.”

The jury by finding the defendant guilty found this issue in favor of the state and against the defendant. It is not often that this court will modify a judgment and sentence, and it is only when the ends of justice demand that it will be done. The punishment in this case was not assessed by the jury, who stated in their verdict that they could not agree on the punishment and requested the court to- assess the same. The court assessed a term of three- years in the State Penitentiary.

There are- extraordinary circumstances in this case, and a conflict in the evidence. After a careful consideration of the facts, we are of the opinion that justice demands a modification of this judgment from three years in the penitentiary to a term of one year in the penitentiary; and,, as so modified, the judgment and sentence of the district court of Delaware county is affirmed.

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

On Rehearing.

The original opinion was filed in this case on the 10th day of February, 19-13. The judgment and sentence was modified to one year in the State Penitentiary. A motion for rehearing was filed February 15, 1913. We have carefully considered this motion, and the facts surrounding this case as appears from the record. The case has been heard on oral argument since, the original opinion was filed. We have come to the conclusion that the judgment and sentence should be further modified to a fine of $500 and costs. As so modified, the judgment of the district court of Delaware county is affirmed.