text:
    ROSS MASON v. STATE.
    No. A-9087.
    Feb. 12, 1937.
    (65 Pac. [2d] 203.)

      James H. Gernert and James J. Matbers, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Holly L. Anderson, Co. Atty., for tbe State.
   BAREFOOT, J.

The defendant was- charged, by information in the district court of Tulsa county, with the crime of receiving stolen property. He was convicted and has appealed to this court. The first assignment of error is that the court erred in certain instructions given to the jury, being. No. 5 and No. 7, which are as follows:

“No. 5. The defendant, for his defense to the charge contained in the information in this case says that he is not guilty; in other words, that he did not know the property to be stolen at the time he purchased it; and that the purchase of the property was not made in Tulsa County, Oklahoma, and therefore this court has no jurisdiction of the case.
“No. 7. You are further instructed that in a prosecution for receiving stolen property, it is not necessary that the defendant have actual knowledge that the property was stolen, but it is sufficient if the receiver at the time believed it to be stolen property; belief in such case being the equivalent of inferential knowledge.”

We find no error in these instructions. Instruction No. 5 states the contention or defense which the defendant presented to' the jury. There is nothing in it that could in any way prejudice the defendant. In instruction No. 7 the court informed the jury that if they found that the defendant, at the time he received the property, believed it to be stolen, this would be sufficient knowledge that it was stolen. This is in accordance with the holdings of this court. In the case of Lordi v. State, 47 Okla. Cr. 102, 287 Pac. 1083, the court says, in the first paragraph of the syllabus, as follows:

“In a prosecution for receiving stolen property, knowing the same to be stolen, it is not necessary that defendant have actual knowledge that the property was stolen, but it is sufficient, if the circumstances accompanying the transaction were such as to make him believe that it was stolen.”

The defendant relies upon the case of Mullins v. State, 15 Okla. Cr. 347, 176 Pac. 765, 766. In that case the court says:

“Evidence of the unexplained possession of property recently stolen is not of itself sufficient to sustain a conviction. Defendant could not legally be convicted of receiving the boots knowing them to be stolen, unless he knew at the time he received them, or had reason to believe, that the boots were stolen. State v. Rountree, 80 S. C. 387, 61 S. E. 1072, 22 L. R. A. (N. S.) 833; 34 Cyc. 515, and authorities there cited.”

It will be noted that the court says:

“ * * * Or bad reason, to believe, that the boots were stolen.” This is what the court told the jury in the above instruction.

The information in this case charged the defendant with receiving certain stolen property, to wit, one Cameo gold pin of the value of #75 ; one solid gold chain of the value of #45, which said property had been previously stolen from one H. A. Welch. This identical property, and other property stolen on the same night, and property stolen ten days subsequent to the date alleged in the information was found in the possession of defendant and a part of the property had been sold by his wife to two different pawnbrokers in the city of Tulsa.

The court permitted the different owners of the property to identify the same and testify as to it having been stolen from them. This is assigned as error by the defendant. The great weight of authority in this country is that where property is traced to the possession of the defendant and found intermingled with other goods, recently stolen, that it is admissible for the state to show the possession and the theft of these goods, especially is this admissible for the purpose of showing guilty knowledge and intent upon the part of the defendant. In this case the proof showed that part of the property stolen was talien from the same building as the property alleged in the information, and at the same time. The burglary and the loss of the property was discovered when both families returned to their homes. They lived just across the hall from each other. The other property identified was the same class of property and was lost in a burglary that occurred about ten days subsequent to the time alleged in the information. The defendant’s wife sold all this property, except that which was found by a search of the home of defendant. She admitted in the presence of officers and tbe defendant that be brought tbe same borne, asked ber for a clotb to wrap the same and it was found by tbe officers in this condition. Tbe defendant sat in an automobile a,t tbe curb while she sold it and be directed ber where it could be sold and the money which she received from tbe sale of tbe property was given to defendant upon ber return to the automobile. Tbe reason for tbe admission of this evidence is well expressed in tbe case of Jeffries v. U. S., 7 Ind. T. 47, 103 S. W. 761, where tbe court says:

“We think this question too well settled to need anything more than the citation of authorities. Here goods which bad been stolen the night before they were found, were traced to the possession of the defendant, and were found intermingled with the goods received from the same thief which had been stolen only 12 days before, and for the receiving of which the defendant was on trial. .Surely the possession of these goods, so recently after they had been stolen, shed light, in fact a most brilliant lustre, upon the question of the defendant’s knowledge, and was as clearly competent as the'proof of the fact that goods stolen 12 days prior would have been had he been upon trial for receiving the goods stolen the night before they were found. When the object is to show system, subsequent as well as prior offenses, when tending to establish identity or intent, can be put in evidence. The question is one of induction, and the larger the number of consistent facts the more complete the induction is. The time of the collateral inculpatory facts is immaterial, provided they be close enough together to indicate that they are a part of a system. Whart. Cr. Ev. § 38. ‘It is immaterial whether the other possessions occurred before or after the possession charged. It is the multiplication of instances that affects our belief, and not the time of their occurrence, provided the time is not so distant as to- be accountable for on the theory of “chance acquisition.” 3 Wigmore, Ev. § 325. ‘It is next argued that the trial court erred in admitting evidence on the receipt by the defendant from the witness White of other stolen horses subsequent to the time of the alleged receipt of the property described in the information for the receipt of which the defendants were on trial. * * * We can conceive of no' logical reason for distinguishing these transactions subsequent to the main one from the one occurring before that time. They all bear the same relation to' the principal transaction. If one offense has a logical connection with the principal one, for the purpose of establishing guilty knowledge of the offense charged in the information, then all others, have, whether occurring before or subsequent to that time.’ Goldsberry v. State, 66 Neb. 312, 92 N. W. [906] 911. See, also, Underhill Cr. Ev. § 88; 3 Greenleaf, Ev. § 15; Wood v. U. S., 16 Pet. [342] 358, 10 L. Ed. 987; People v. Shulman, 80 N. Y. 373 note, and the elaborate footnote by Mr. Freeman, ‘Subsequent Offenses as Evidencing Intent’ ; Sykes v. State, 112 Tenn. 572, 82 S. W. 185, 105 Am. St. Rep. 1001.”

This court has often held that evidence of another offense is competent to' prove the specific offense charged when it tends to establish a systematic scheme or plan embracing two or more offenses so related to- each other that proof of one tends to establish the other, or to connect the defendant with the commission of the offense charged. See Paramore v. State, 47 Okla. Cr. 140, 286 Pac. 811; Oldham v. State, 42 Okla. Cr. 209, 275 Pac. 383; and, also, Mose Jackson v. State, 42 Okla. Cr. 86, 274 Pac. 696; State v. Rule, 11 Okla. Cr. 237, 144 Pac. 807. In the last case cited Judge Doyle, in an elaborate opinion, says:

“Evidence of other offenses similar to that charged is relevant and admissible, when it tends to' prove some element of the one charged, as when it shows or tends to show guilty knowledge or intent in the commission of the offense charged.”

In the trial of the case the court permitted certain testimony to be introduced which is as follows:

“By Mr. Gilmer: Q. And did you talk to bim about state’s exhibit number one and two? A. Yes. Q. And will you relate the conversation that you had with Louise Mason, in the presence of the defendant, Ross Mason, or rather with the woman who went by the name of Louise Mason in the presence of Ross Mason? Mr. Mathers: We object to that as incompetent, irrelevant and immaterial and not admissible. The Criminal Court of Appeals has passed on that. The Court: Overruled. Mr. Mathers: We accept. A. We asked this woman, claiming to be Louise Mason, where she got this stuff and she admitted having presented it to* Chandler and this at Goldstein’s'— Q. She admitted this in the presence of this defendant? A. Yes, and he said he got the stuff and that there was no use connecting the woman in it. She said that she sold the stuff. That he would sit out in the car and she would, come out and give the money to him. And that she did that in both of these cases. Mr. Gilmer: Take the witness.”

The defendant assigns as error the permitting of this evidence to be introduced and contends that his wife, being, an incompetent witness against him under the statute of this state, was 'by the above statement permitted to be used as a witness against him. The brief submitted by the state does not answer this proposition, but we have examined many cases and find that while the authorities are somewhat divided, the great weight of authority, and the ones based upon the better reason, support the proposition that this evidence is admissible. The statute of this state upon this proposition is as follows, section 3069, Okla. Stats. 1931:

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

In the case of State of North Carolina v. Simon Portee, 200 N. C. 142, 156 S. E. 783, and also reported in 80 A. L. R. 1229, with annotation at page 1246, the rule is announced, which is followed in most of the states. The court, in the third syllabus, said:

“Proving that the wife of one accused of crime made statements in the presence of the husband and others naturally calling for some action or reply, and that he remained silent, does not contravene a statutory provision that a wife is not a competent witness against her husband in a trial of a. criminal action.”

The case of State v. Record, 151 N. C. 695, 65 S. E. 1010, 25 L. R. A. (N. S.) 561, 19 Ann. Cas. 527, is almost an identical case. The court, in the first syllabus, said:

“Upon trial of one for larceny, declarations of his wife, made in his presence, to the effect that stolen property found in the house belonged to him, are admissible ■against him.”

See, also, Richards v. State, 82 Wis. 172, 51 N. W. 652; State v. Laudise, 86 N. J. Law, 230, 90 A. 1098; Joiner v. State, 119 Ga. 315, 46 S. E. 412; State v. Middleham, 62 Iowa, 150, 151, 17 N. W. 446; Commonwealth v. Funai, 146 Mass. 570, 16 N. E. 458; State v. Peters (Mo. Sup.) 242 S. W. 894.

It will be noted that the statement made by the officer was not only in the presence of the defendant, but that the defendant stated:

“* * * And he said he got the stuff and there was no use connecting the woman with it.”

See Hildebrandt v. State, 22 Okla. Cr. 58, 209 Pac. 785. We have examined the case of Vaughan v. State, 7 Okla. Cr. 685, 127 Pac. 264, 42 L. R. A. (N. S.) 889, cited by defendant, and in our opinion the facts in that case are clearly distinguishable from the facts here.

It is next contended by the defendant that his demurrer to the evidence should have been sustained for the reason that it did not show that the property was received in Tulsa county, and was not sufficient in law to convict the defendant.

The evidence showed that the property was taken in a burglary on the night of the 31st day of July, 1935, from residences located in Tulsa county. That a part of the property was taken in burglaries committed about ten days thereafter. That defendant and his wife were residents of Tulsa county during all of that time. That his wife sold a part of the property to pawnbrokers in Tulsa county on the 1st day of August, 1935, and that the defendant was with her at the time the property was sold. That he sat in an automobile at the curb and after selling the property she delivered him the money which she had received therefor. That he directed her where to' sell it. That the officers found the property in Tulsa county and a. part of it in the home of the defendant soon after the property was stolen. The defendant stated to the officers that he had bought the property from some one but he could not give the name of the party from whom he claimed he bought it. That he was instructed by the officers that any statement be made could be used against him. When the case was tried, he did not see fit to take the witness stand and testify in his own behalf. He, of course, had a right not to take the witness stand under the law, but we think the evidence shows from all circumstances that the crime was committed in Tulsa county and from what has been said clearly, shows that the defendant received a fair and impartial trial and the evidence was sufficient to sustain the conviction and the judgment of the district court of Tulsa county should therefore be affirmed.

DAVENPORT, P. J., and DOYLE, J., concur.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    HENRY McGEE v. STATE.
    No. A-9112.
    Feb. 12, 1937.
    (65 Pac. [2d] 207.)

      E. Blumhagen, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

Upon information charging that in Blaine county, on or about the 20th day of October, 1934, Henry McGee, the defendant, did unlawfully, knowingly, and feloniously receive from Westbrook Sanders and K. C. Hughes certain automobile tires and service tubes, then and there knowing the same to have been stolen, he was upon trial found guilty as charged, the jury fixing his punishment at three years’ imprisonment in the state penitentiary.

To reverse the judgment rendered in conformity with the verdict, he appeals.

One of the grounds of the motion for a new trial and assigned as error is that the verdict is contrary to the law and the evidence, and that the trial court erred in overruling the defendant’s motion for a directed verdict of acquittal, made at the close of all the evidence.'

The facts as shown by undisputed evidence are: That on the night of October 19, 1934, a service station in the city of Watonga, handling gasoline, tires, and tubes, was burglarized and 17 tires and four tubes were taken and carried a short distance to a cotton gin, and from there were carried to a wood pasture between four and five miles southwest of Watonga. The next or second morning following, said Sanders and Hughes called at the home of the defendant, Henry McGee, in Watonga, and arranged to have him drive them to Oklahoma City in McGee’s car; there Westbrook Sanders made a deal to sell some tires. They then drove back to the place where the tires had been placed and the tires were pnt in' McGee’s car. They then returned to- Oklahoma City, arriving there between 10 and 11 o’clock that night. After the tires were taken from his car that night, McGee returned to Watonga.

John Gose, sheriff, testified that the defendant, McGee, told him that Westbrook Sanders and K. C. Hughes hired him to haul the tires they had left out there;.that with them he drove to the place southwest of Watonga, and while he stayed with his car, Sanders and Hughes went into a field and returned with the tires and loaded them into his car, and with Sanders and Hughes in the car he hauled them to Oklahoma City; that the defendant consented to go to Oklahoma City with him and show him the place where the tires were delivered; that driving along they passed Westbrook Sanders and K. C. Hughes, the defendant said, “There they are now,” and he turned back and with a deputy arrested them.

Westbrook Sanders testified that he entered the filling station and took 16 tires and four inner tubes and a box of candy, that K. C. Hughes was with him, and they carried this stuff and put it behind a cotton gin a block or two away. Hughes then got scared and left and witness carried the tires four or five miles southwest of the city and hid them in the woods; the next day he told Henry McGee that he had some tires he wanted taken to Oklahoma City; the next morning with K. C. Hughes he went to McGee’s house and from there they went in McGee’s car to1 Oklahoma City, where he made a deal to dispose of the tires; that they then returned to the place where he had put the tires. They loaded them in the ear and returned to Oklahoma City; that he promised to pay McGee $9 for the trips, that McGee returned to Watonga in his car that night and he and Hughes remained in Oklahoma City. That they told McGee that this was stolen stuff. That he had formerly been convicted of another burglary.

K. C. Hughes testified that he helped carry the tires from the filling station to the cotton gin, he next saw them two or three days later in a pasture where he went with Westbrook Sanders and Henry McGee, that he was present when the arrangement was made to have the defendant haul the tires, and the three went to Oklahoma City and a deal was made; they then returned and put the tires in McGee’s car and then returned to' Oklahoma City, arriving there about 10:30 at night, and McGee returned to Wa-tonga that night. Then he had been convicted of a felony and served the term.

The defendant in his own behalf testified that he had lived in Watonga about 26 years; that Westbrook Sanders and K. 0. Hughes called at his house and Sanders said that he and Hughes were going to Oklahoma City, and that they had some stuff “he wanted me to carry,” and after they got in the car and started they said it was casings, then they stopped at the Sherman filling station and got gasoline; they said they would pay for it, but Sherman charged it to him; and they returned that afternoon; Sanders directed him to the place; when they stopped Sanders said, “Hughes, get out”; “to me he said, ‘Turn your car around.’ When I did they came there each with an arm full of casings;” that he did not get out of the car. He then drove back on highway 27 to Oklahoma City. When they stopped, the fellow came out and Hughes said, “Well, we are here.” “The fellow said the place is closed. Hughes and. this fellow got in a car and we followed them to 7 North Ellison;” there Hughes and Sanders took the tires out of the car. That he left these hoys and this other man, and drove home. They told him they would see him in Watonga the next evening; that they were to pay him $4.50 for each trip, that they never have paid him. That two days later he went with the sheriff and a deputy to Oklahoma City and showed him the place where the tires were unloaded. That they were.driving along the highway on the north edge of the city and he saw Sanders and Hughes standing on the street and said to the sheriff, “There they are.” The sheriff turned back and arrested them; that he was arrested about five months later. That he is an ex-service man, a World War Veteran.

At the close of the evidence, the defendant interposed a demurrer thereto, and there was a motion for a directed verdict of acquittal, which was overruled.

This prosecution was based on Penal Code (section 2265, St. 1931) which declares:

“Every person who buys or receives, in any manner, upon any consideration, any personal property of any value whatsoever, that has been stolen from any other, knowing the same to have been stolen, is punishable” etc.

Before there can be a conviction for receiving stolen property, it must be shown (1) that the property has in fact been stolen by a person other than the one charged with receiving it; (2) that the one charged with receiving it actually received the property stolen; (3) that the receiver knew the property was stolen when he received it. Yeargain v. State, 57 Okla. Cr. 136, 45 Pac. (2d) 1113; Sipes v. State, 36 Okla. Cr. 1, 251 Pac. 511; Underwood v. State, 36 Okla. Cr. 21, 251 Pac. 507; Pringle v. State, 32 Okla. Cr. 166, 239 Pac. 948.

It is urged that there was no evidence tending to show that the defendant ever received or had possession of the stolen property.

Webster’s Dictionary defines the word “receive” thus: “To take, 'as something that is offered, given, sent, paid, or the like; to accept.”

The Century Dictionary gives the word this definition: “To take from a source or agency of transmission; to take by transfer in a criminal manner.”

While it is undisputed that the defendant hauled in his car the property in question from a place in Blaine county to' Oklahoma City, the self-confessed thieves were with him on the trip and directed his action. We find no evidence showing a transfer or relinquishment of their possession of the stolen property to the defendant.

The law declares that:

“All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals.” Section 1808, St. 1931.

There is some testimony in the record tending to show that the defendant, with knowledge that it was stolen property, assisted in the asportation of the same.

In the case of Brown v. State, 7 Okla. Cr. 678, 126 Pac. 263, 265, we said:

“Larceny has been held to be a continuing offense, and statutes providing that the thief may he prosecuted in any county into which he takes the stolen goods have been held to be constitutional, where the provisions of the Constitution are that the prosecution must be in the county where the crime is committed. Bivens v. State [6 Okla. Cr. 521, 120 Pac. 1033]. * * *
“Upon this theory, one who joins in with the thieves and assists in the asportation and disposal of stolen property, knowing at the time he does so that the others acting with him are in the very act of carrying away the property of another, must be held guilty as a principal.”

In Reed v. State, 22 Okla. Cr. 141, 210 Pac. 311, this court held:

“One who joins in with thieves and assists in the asportation and disposal of stolen property, knowing at the time he does so that the others acting with him are in the very act of carrying away the property of another, must be held guilty as a principal.”

In Shacklett v. State, 23 Okla. Cr. 4, 211 Pac. 1063, the second syllabus is as follows:

“Where the evidence shows that the accused, charged with larceny, was not present at the original talcing of the property, but that the goods were taken by a confederate implicated with the defendant, the asportation 'bv the confederate to one place and a continuation.of the asportation to another place by the accused does not make of the latter a receiver of stolen property.”

The only testimony in the case that tends to connect the defendant with the receiving of the stolen property is that of the witnesses Sanders and Hughes, ex-convicts and the self-confessed thieves.

If this testimony tends to show that the defendant was guilty of any offense, it was the offense of grand larceny.

There being no evidence in the record showing that the defendant is guilty of the crime for which he has been convicted, the conviction cannot stand.

The judgment appealed from is. therefore reversed.

DAVENPORT, P. J., and BAREFOOT, J., concur.


author: DAVENPORT, P. J.

text:
    WINSTON ROBINSON et al. v. STATE.
    No. A-9136.
    Feb. 12, 1937.
    (65 Pac. [2d] 212.)
    Harley Ivy, for plaintiffs in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiffs in error were charged by information that on the 14th day of September, 1934, they committed the crime of destroying insured property belonging to Mrs. C. L. Wright, located in Ringling, Jefferson county, Okla., the said building destroyed by the defendants being insured in the Saint Paul Fire Insurance Company; and the information further charges that the building was destroyed by the defendants with the unlawful, willful, wrongful, and felonious intent them and there on the part of them, the said Winston and Herbert Robinson, to destroy the said property and defraud, and prejudice the insurance company above named.

As usual in cases of this character, the evidence connecting the defendants with the burning of the house is circumstantial. The substance of the testimony being as follows:

Mrs. C. L. Wright, the mother-in-law of Winston Eobinson, owned a house in the town of Eingling, Jefferson county, Okla; which building was insured in the Saint Paul Fire Insurance Company for $1,250, household furniture for $500. Some time prior to the time the house was burned, Mrs. Wright reduced the insurance from $2,000 to‘ $1,250. The $1,250 policy was on the house at the time of the fire. A few days before the fire a small amount of furniture that belonged to the daughter of Mrs. Wright was moved out of the house to1 Sulphur, Okla., where the daughter and her husband, Winston Eobinson, were living; none of the furniture belonging to Mrs. Wright was moved out; the furniture was hauled in a two-wheeled trailer at a single load. The proof further shows that Mrs. Wright was carrying a mortgage on the said house in the Peoples Building & Loan Association, of Ardmore, at the time of fire; that she had successfully completed a loan with the Home Owners Loan Corporation for a sufficient amount to take up the mortgage and to pay the taxes on the property.

J. B. Oldham, a witness for the state, testified the defendants “are my nephews;” Winston Eobinson, one of the defendants, married Mrs. Wright’s daughter. Witness further stated that, “prior to the time the house burned, I had a conversation with Winston Eobinson, which took place in my store in Sulphur; I don’t know that I can relate it like it was, but when Winston spoke to me I thought he was joshing; he had started to Kilgore, Texas, to work in the oil fields and said there was a guy in Eing-ling told him he could make some quick money, that Mrs. Wright had a house there and wanted it burned for the insurance money and that he could bum it. Mrs. Wright was living with Winston a year ago; that year she is living with her son. My feeling toward my nephew is friendly.”

The defendants’ attorney asked the witness if he did! not testify in the preliminary trial, and if in his testimony “were you not asked if Winston Robinson stated what property he was talking about the party wanted burned, and you answered, 'I could not remember.’ ” Witness was asked the following questions and gave the following answers:

“Q. Do you remember now Robinson said it was Mrs. Wright’s property? You did not remember then, and now you remember it was Mrs. Wright’s property? A. I looked over the statement I gave the Fire Marshal.
“Q. Didn’t I ask you this question, Mr. Oldham, this boy was drinking a little and came to you and said he knew where he could make some easy money, or make some money burning something and mentioned the property was Mrs. Wright’s and you said no? A. I wasn’t acquainted with Mrs. Wright at that time.”

Witness further stated:

“The Fire Marshal came out and talked with me; he told me he knew something about this case and that I knew something about it.
“Q. They told you if you didn’t make a statement against your own nephew they were going to get you into .it too ? A. Yes, they told me that.
“Q. Did anybody threaten you? A. Mr. Cook did.”
“Mr. Law did not threaten me, he treated me nice. Mr. Cook is a detective.”

Laura Stadum testified for the state:

“I live in Ringiing, Oklahoma; I know Mrs. C. L. Wright, know where her residence was located in Ringiing, I live just across the street south; her house was burned the night of September 13, 1934; there was some furniture moved out of the house the night before the fire; Mr. Garrison from Sulphur drove the truck; the defendants here assisted him; the night the fire occurred I was over to Mrs. Cox’s one block from there in a storm cellar; we came out of the cellar about 30 minutes before the fire and had just gone to bed, the storm had passed over east ; when I first saw the fire it was in the top of the house in the southeast comer of the building; my house was close. The things that were moved out of the house were moved across the street east of this place; I was not close enough to examine the things that night. Several days after the fire I was asked to help remove a rug, it had fumes of some kind, either gasoline or coal oil, that was several days after the fire. The things gotten out of the house were stored in Mr. Gerigan’s garage. The things taken out of the house before the fire were loaded in a two wheeled trailer. The fire when I discovered it was in the southeast corner in an upstairs room; I don’t know how long it had been burning, it was between ten and eleven o’clock at night.”

C. A. Jenkins, testifying for the state, stated that:

“On the 13th day of September, 1934, I was living in Sulphur, Oklahoma; I was acquainted with the defendants ; they came to the garage about five-thirty and stated they wanted to call Castleberry to get him to drive them to Ringling; that they would give him $6; I told them I would drive them for $6 and five gallon of gas. They paid me $5.25. When we got in the neighborhood of Healdton it was suggested we go by and pick up some girls; we went to the home of Beatrice Thompson and she joined us; we then went to the home of Mattie Gordon, win* also joined us; we then drove to another place and got some whisky; at one of the filling stations before we got to Ringling the defendants bought some gasoline and had it put in a can, telling the filling station man they wanted it to take down the road to where there was a boy out of gas; Miss Gordon guaranteed the return of the can.
“It was raining, thundering, and lightning, and we drove into Healdton, and from there after going different places we drove to Ringling. The defendants stopped the car and took the can containing the gasoline-and went away with it, being gone 25 or 30 minutes, and when they came back to- the car the can was empty. We later returned the girls to their homes and drove back to Sulphur.”

Beatrice Thompson and Miss Gordon corroborate in substance the statements of the witness Jenkins as to being at the different homes, and then going from Healdton to Ringling, and the time they stopped in Ringling, and the defendants taking the can with the gasoline in it away from the car and when they came back to the car the can was empty.

The defendants admit that Jenkins drove them from Sulphur to Healdton; admit going to the girls’ homes and getting them to join them; admit they were all drinking; they testify they went to one house to get whisky, and while there put the gasoline that was in the can in the tank of the car in which they were riding, and each deny they made a trip to Ringling.

They admit being in Healdton. The defendants say that Jenkins and both the-girls were drunk and that one of them had to drive the car.

The testimony on behalf of the state shows they stopped the car in Ringling within one block of the home of Mrs. Wright, which was destroyed by fire that night. The rain clouds had passed to the east before the fire was discovered, and when discovered the testimony shows it was in the upper story in the southeast room of the building.

The defendants have assigned six errors, the first being the court erred in overruling the motion of the plaintiff in error for a new trial. This motion for a new trial embraces all tbe grounds alleged in their petition except that the court erred in overruling their motion for a new trial. The errors will all be considered together.

The defendants in their brief urge that the court committed reversible error in overruling their demurrer to1 the state’s evidence, and motion for a directed verdict. A care-' ful study of the evidence in the case-made shows that it is conflicting and that the jury, if it believed the evidence of the state, was fully justified in returning a verdict of guilty. If it believed the statements of the defendants, then it would have been justified in acquitting the defendants.

The only question discussed by the defendants and urged as a ground for reversal is that the evidence is not sufficient to sustain a conviction of the plaintiffs in error, or either of them. Section 3062, O. S. 1931, is as follows:

“On the trial of an indictment or information, questions of law are to be decided by the court, and the questions of fact are to be decided by the jury; and, although the jury have the power to' find a general verdict, which includes questions of law as well as of fact, they are bound, nevertheless, to receive the law which is laid down as such by the court.”

In Clingan v. State, 15 Okla. Cr. 483, 178 Pac. 486, the court in the seventh paragraph of the syllabus in part said:

“The jury being the sole judges of facts, where there is sufficient evidence to reasonably support verdict, the Criminal Court of Appeals will not reverse a conviction.”

Conflicting issues of facts are for the sole determination of the jury. Adams v. State, 54 Okla. Cr. 363, 21 Pac. (2d) 1075; Tillery v. State, 23 Okla. Cr. 226, 214 Pac. 198; Taylor v. State, 21 Okla. Cr. 351, 207 Pac. 746; Pickett v. State, 35 Okla. Cr. 60, 248 Pac. 352; Humberd v. State, 56 Okla. Cr. 23, 32 Pac. (2d) 954; Coats v. State, 56 Okla. Cr. 26, 32 Pac. (2d.) 955; Kisselburg v. State, 56 Okla. Cr. 46, 33 Pac. (2d) 236; Clemmer v. State, 56 Okla. Cr. 354, 40 Pac. (2d) 37.

The jury having exercised its rights under the facts in this case and the law as given it by the court, and reached the conclusion, though the evidence is conflicting, that there was sufficient evidence to sustain the conviction, this court is not inclined to disturb the verdict.

After a careful examination of the facts and the law as given to the jury by the court, we hold there is no error in the record warranting a reversal. The defendants’ rights were properly protected by the court, and the record shows the defendants were given a fair and impartial trial.

The judgment of the trial court is in all things affirmed.

DOYLE and BAREFOOT, JJ., concur.


author: EDWARDS, P. J.

text:
    J. A. HERRING v. STATE.
    No. A-8995.
    Nov. 25, 1936.
    Rehearing Denied Feb. 12, 1937.
    (64 Pac. [2d] 921.)

      F. E. Riddle and Geo. B. Torristo, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen. (C. D. Cund and A. L. Herr, Attys., of Oklahoma Tax Commission, of counsel), for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the court of common pleas of Oklahoma county of operating a motor vehicle on the public highways, without having obtained a permit from the Corporation Commission, and was fined |750.

Defendant is charged with a violation, of section 3711, Oída. St. 1931, as amended by section 6, c. 156, Session Laws 1933. The charging part of the information is:

“That * * * said defendants * * * while acting conjointly and together, wilfully, unlawfully and wrongfully operated a certain motor vehicle * * * as a ‘Class B’ motor carrier, by carrying for hire and compensation three passengers, to wit: Mr. and Mrs. B. W. Felix to Davis, Oklahoma, at the rate of $2.50, Miss L. M. Wells to Dallas, at the rate of $2.75, over a public highway, to wit: Highway ‘77/ said defendants being engaged in the inter-city business, their destination with said passengers on said highway being Davis, Oklahoma, and Dallas, Texas, and various other points, without having obtained a license from the State Corporation Commission. * * *”

Motor carriers are defined and classified as A, B, and C carriers. Section 3700, Okla. St. 1931, as amended, by Laws 1933, c. 156, § 1 defines class A and B carriers as follows:

“(1) Class ‘A’ motor carriers shall include all motor carriers operating as common carriers, of persons or property between fixed termini or over a regular route, even though there be periodic or irregular departures from said termini or route; and
“(2) Class ‘B’ motor carriers shall include all other motor carriers not operating as Class ‘A’ or ‘C’ motor carriers, 'whether as private carriers for hire or common carriers for hire, of persons or property.”

Class C motor carriers not being involved, it is unnecessary to quote definition. Section 3704 of said act, as' amended by Laws 1933, c. 156, § 2, provides for the procuring a permit to operate as a carrier on the public highways from the Corporation Commission. Section 3706 forbids the operation of a class B motor carrier without having obtained permit. Section 3707, as amended by Laws 1933, c. 156, § 3, provides for the payment of a highway tax by class B motor carriers. Section 3711, as amended by section 6, c. 156, Laws 1933, provides in substance that every person who1 aids or abets in the violation of said motor vehicle act is guilty of a misdemeanor and is punishable by a fine not exceeding $1,000.

The state introduced evidence that defendant Herring operated a travel bureau in Broadway Central Hotel and there made arrangements for the transportation of passengers to various points; carried advertising to enable him to make contacts and charged a fee of prospective passengers; arranged with drivers of motor vehicles to transport the passengers so contacted to various places. At the time charged, for the purpose of procuring evidence, officers arranged with a Miss Wells to procure, through defendant Herring, transportation to Dallas, Tex. She paid defendant 75 cents and he informed her the driver would call for her at her hotel and that she would pay the driver $2 for her transportation to Dallas. About the same time, R. W. Felix and wife arranged with defendant for transportation to Davis, Okla., for a charge of $2.50. Soon after such arrangements, codefendant Rippey took his passengers, Felix and wife, and Miss Wells, in the car he was driving, and as he was leaving Oklahoma City, was arrested. This transaction is the basis for the charge in this case. The automobile driven by Rippey belonging to some person at El Paso-, Tex. It bore a California license tag. None of these parties had a permit from the State Corporation Commission. The charge against Rippey was dismissed, and this defendant Herring alone was put on trial. The testimony for the state is rather full along the line indicated. There is evidence tending to show that defendant Eippey was a regular driver in transporting passengers for other travel bureaus and had carried passengers previously under arrangements with defendant. Defendant did not take the stand and offered no testimony.

Defendant has assigned numerous errors, but in his rather full and carefully prepared brief makes only two contentions. First: That the testimony is insufficient to support the judgment. Second: That the statute, as applicable to defendant, is unconstitutional and is in conflict with the Fourteenth Amendment to the Federal Constitution, and section 7, art. 2 of the state Constitution.

Disposing of the first contention, the evidence in substance, as we have stated in part, is that Eippey was engaged in transporting passengers for hire over the highways of this state in an automobile owned by another in Texas and bearing a California license tag; that defendant Herring was conducting a travel bureau; that he contacted passengers as stated and contracted with them for transportation to intrastate and interstate points. That defendant Herring fixed the rates to be charged, the place where passengers would take the conveyance, and for the payment of fare; that Eippey was in fact a private carrier of passengers for hire. The evidence and the inferences arising therefrom bring Eippey within the definition of class B motor carriers and in the instance alleged he was assisted and aided by defendant Herring.

Under the second assignment counsel contends that defendant Herring did not own nor operate any car nor represent, abet, aid, arrange for, or procure passengersi for any person, firm, or corporation, engaged in the business of transportation of passengers for hire, bnt that all be did was to maintain a desk in a hotel and to advertise he Avonld furnish information to' private owners of privately driven automobiles on personal and private business or for pleasure and was instrumental in bringing-; together such owners and prospective passengers in order that they might make arrangements as cotravelers; that in the instant case defendant did give information to' the witness Wells and to Felix and wife, charging a commission for his services; that such acts are not a crime; that Rippey was lawfully in possession of the car with a California tag thereon; that he was not a carrier of passengers for hire within the meaning of the motor vehicle law nor a public or private carrier, but was merely conveying share expense guests; that he was not within the prohibition of any valid provision of the motor vehicle law.

Defendant cites Smith v. Cahoon, 283 U. S. 553, 51 S. Ct. 582, 75 L. Ed. 1264, and Frost & Frost Trucking Co. v. Railroad Comm., 271 U. S. 583, 46 S. Ct. 605, 70 L. Ed. 1101, 47 A. L. R. 457, in support of his contention. The Cahoon Case holds the Florida statute unconstitutional as to a private carrier for the reason the putting the same burden on a private carrier as on a common carrier was beyond the power of the state, and that as the regulations applicable to a. common carrier and to a private carrier were not distinguished and as to private carriers they were void for uncertainty.

The Frost Case arose in California under the automobile law of that state. It is predicated on the proposition, first, that the state statute construed was not for the regulation of the state highways, but was a regulation of the business of those engaged in using the highways with the primary purpose of protecting the common carrier from competition; second, that the statute in effect converted a private carrier, against his will, into a common carrier and required him to assume the burdens of a common carrier.

In Stephenson et al. v. Binford et al., 287 U. S. 251, 53 S. Ct. 181, 185, 77 L. Ed. 288, 87 A. L. R. 721, which case arose under the Texas Motor Carriers Act (Vernon’s Ann. Civ. St. Tex. art. 911b, § 1 et seq.) the court discussed and distinguished the Cahoon Case, supra, and the Frost Case, supra. The court said:

“The question decided in Frost & F. Trucking Co. v. Railroad Commission, 271 U. S. 583, 46 S. Ct. 605, 70 L. Ed. 1101, 47 A. L. R. 457, differs entirely from that here presented. There (page 592 of 271 U. S., 46 S. Ct. 605) the California Supreme Court (Frost v. Railroad Comm., 197 Cal. 230, 240 Pac. 26) had construed a provision of the state statute which required the private contract carrier to obtain, not a permit, as here, but a certificate of public convenience and necessity before doing business over the state highways, as a condition obliging him to dedicate his property to the business of public transportation and to subject himself to all the duties and burdens imposed by the act upon common carriers. This court, in accordance with the settled rule, accepted that construction as binding and, in that view, said (page 592 of 271 U. S., 46 S. Ct. 605, 606) :
“ * * The case presented is not that of a private carrier, who, in order to have the privilege of using the highways, is required merely to secure a certificate of public convenience and become subject to regulations appropriate to that kind of a carrier, but it is that of a private carrier, who, in order to enjoy the use of tbe highways, must submit to the condition of becoming a common carrier and of being regulated as such by the Railroad Commission. The certificate of public convenience, required! by section 5, is exacted of a common carrier, and is purely incidental to that status. The requirement does not apply to a private carrier qua private carrier, but to him only in liis imposed statutory character of common carrier. Apart from that signification, so far as he is concerned, it does not exist.’
“On the contrary, the Texas statute in respect of permits deals exclusively with the private contract carrier, and requires the issue of the permit not to him in the imposed character of a common carrier, but in his actual character as a private contract carrier. If the California statute requiring a certificate had been thus interpreted by the highest court of the state, the foregoing quotation clearly suggests that our decision might have been otherwise.
“Smith v. Cahoon, 283 U. S. 553, 51 S. Ct. 582, 75 L. Ed. 1264, dealt with a Florida statute indiscriminately applying to all who operated motor vehicles for compensation or as common carriers over public highways, and prohibiting such operation without a certificate of public convenience and necessity, application for which was to be accompanied by a schedule of tariffs. No certificate was valid unless a bond were given by the applicant for protection against injuries resulting from negligence, and for the protection of persons and property carried. The Railroad Commission was vested with authority to fix or approve rates, regulate service, prescribe methods of keeping accounts, etc. Schedules of rates were to' be open to the public, and all alterations in tariffs were under the commission’s control. The violation of any provision of the act was made a misdemeanor punishable by fine or imprisonment or by both. This court held that, since the statute affixed the same conditions to all who' applied for certificates, and embraced in those conditions a scheme of supervision and control which constitutionally could be applied only to common carriers, a private carrier for hire could not constitutionally be arrested under it for failure to procure a certificate or pay the tax required by the act. It further held that, if the statute were regarded as intended to afford one constitutional scheme for common carriers and another for private carriers, it failed to define the obligations of private carriers with the certainty required of criminal statutes, and was therefore void; and that this defect was not removed by a decision of the state court declaring the provisions separable, and that only those legally applicable to private carriers were intended to apply to* them, without also* deciding, which provisions were so applicable. No separate scheme of regulation/ we said (page 563 of 283 U. S., 51 S. Ct. 582, 585), ‘can be discerned in the terms of the act with respect to those considerations of safety and proper operation affecting the use of highways which may appropriately relate to private carriers as well as to* common carriers.’ ”

At page 271 of 287 U. S., page 187 of 53 S. Ct., 77 L. Ed. 288, 87 A. L. R. 721, the court further said:

“The requirement of the Texas statute under attack that contract carriers must have a permit with the prerequisites in the statute for such a permit, is reasonable, particularly in that this method enables the state to- know who will use its highways and to more efficiently regulate such use. The permit system has immediate relation to the condition of the roads and bridges, congestion of the highways and the character of equipment to be used, which relates not only to the effect of the operations on business but also to the problem of safety and convenience in use of the highway.”

Since our statute, section 3700, ,Stat. 1931, as amended by Laws 1933, c. 156, § 1, supra, by its terms defines and is made applicable to private carriers as such, then under the holding of the court in Stephenson Case, o-ur statute is a valid exercise of the power of the state in regulating the use of the state highways.

We are satisfied the state is without power to- forbid or to- make criminal the act of carrying of one or more persons as a special undertaking or single transaction, on a share expense basis or for hire by an owner or driver of a motor vehicle. That is to- say, if an owner or driver of a motor vehicle shall desire to drive to- another point within or beyond the boundaries of the state and for such trip shall make arrangements take other persons with him on a share expense basis or for a fixed charge, his act would not be unlawful for such purpose. But where the undertaking is a business or part of a business or where he proposes to' carry all persons indifferently who choose to employ him, he becomes a carrier within the terms of the statute. In such case he is engaged in a business which the state may regulate and control.

In these modern days, the congestion of traffic of the highways, the enormous number of accidents with the great toll of death and injuries make restrictive regulation of the use of the highways imperative and has tended to malee more liberal the decisions of the courts in upholding state legislation on the subject.

For the reasons assigned, the case is affirmed.

DAVENPORT and DOYLE, JJ., concur.


author: EDWAEDS, P. J.

text:
    Ex parte R. C. WINN.
    No. A-9206.
    Dec. 31, 1936.
    Rehearing Denied Feb. 12, 1937.
    (64 Pac. [2d] 927.)
    Frank Leslie, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Holly L. Anderson, Co. Atty., and M. S. Simms, Asst. Co. Atty., for respondent.
   EDWAEDS, P. J.

This is an original proceeding in babeas corpus. Petitioner alleges he is unlawfully restrained by the sheriff of Tulsa county. That he was jointly charged with others in the court of common pleas of that county of three offenses, one charging him with selling cigarettes without a license, another advertising cigarettes without stamps affixed, and another with displaying cigarettes for sale without stamps affixed, and was convicted on all of said charges; that he Avas fined $100 and costs on one charge, on another he was fined $25 and costs, and on the other the sum of $1 and costs, and in default of payment was committed to the county jail. That said restraint is unlawful, in that the court did not have jurisdiction; that the transaction charged and proven was interstate commerce and beyond the jurisdiction of the court.

The testimony is that C. J. Brooks, a codefendant, had a place of business at Tulsa, which he operated under the name of J. F. Anderson. Brooks, with petitioner and other codefendants, would go about soliciting orders for cigarettes. These orders would generally be written down by the solicitor and would then be taken' to Brooks’ place of business; gum stickers were there prepared on which was the name and address of the person placing the order or occasionally the address without any name. Also orders were received at this place of business by telephone. Some persons had standing orders by which they received cartons of cigarettes Aveekly or every feAV days as they required. The orders were then sent from the place of business to the Pittsburg Tobacco Company, at Pittsburg, Kan., with the gpm stickers, and the Pittsburg Tobacco Company would then mail the cigarettes, in cases, C. O. D. to Brooks, with the notation on the invoice, “Sold to J. F. Anderson.” Brooks or some one for him would then receive the cigarettes at the post office, pay for them, together with the O. O. D. charges, and would then take them to his place of business and would there break the cases, and his employees would then take the cartons of cigarettes to those avIio had made orders, deliver them, and. receive payment; or his customers would come in person, receive the cigarettes, and pay for them. When Brooks delivered these cigarettes to one of his employees, the employee was charged with them. Brooks testified he disposed, in this way, of an average of 40 to 50 cartons of cigarettes a day; that each solicitor received 10 cents per carton for his compensation in procuring the order and delivering the cigarettes; and that he as manager or agency head received 3 cents per carton above the purchase price, except when he personally took the order by phone or otherwise, when he received in addition 10 cents per carton. At the time of the arrest there was on display at Brooks’ place of business 213 cartons and 6 packages of cigarettes, all without any stamp evidencing the payment of sales tax as provided by article 8, chapter 66, Session Laws 193’5, the cigarette Stamp Tax Act. Said act, among other things, provides for an excise tax upon all cigarettes within the state to be paid and collected by the person making the first sale thereof within the state and the payment of said tax to be evidenced by stamps purchased from the State Tax Commission, such stamps to be securely affixed to the package, and such tax to be in lieu of any and all other forms of tax. By said act it is made unlawful to sell cigarettes on which the tax provided has not been paid and to have cigarettes in packages to which stamps are not affixed evidencing payment. It is also forbidden to’ display or expose for sale unstamped cigarettes.

Petitioner contends he was acting as agent for the tobacco company and that his handling cigarettes was a transaction in interstate commerce and as such beyond the jurisdiction of the court. Many cases are cited which petitioner asserts support his contention. Particularly he relies on Stewart v. People of State of Michigan, 232 U. S. 665, 34 S. Ct. 476, 58 L. Ed. 786; Crenshaw v. Arkansas, 227 U. S. 389, 33 S. Ct. 294, 57 L. Ed. 565; Robbins v. Taxing District, 120 U. S. 489, 7 S. Ct. 592, 30 L. Ed. 694; Real Silk Hosiery Mills, Inc., v. Portland, 268 U. S. 325, 45 S. Ct. 525, 69 L. Ed. 982. Some of these cases, on first blush, seem to sustain his theory. It is evident Brooks had legal advice as to how he might circumvent the payment of the excise tax on cigarettes and adopted his methods as best he could to bring his handling, of them within the rule of the cases cited.

On the other hand, respondent insists the facts shown clearly bring petitioner under the rule announced;in the cases of Banker Bros. Co. v. Pennsylvania, 222 U. S. 210, 32 S. Ct. 38, 56 L. Ed. 168; Croy v. Obion County, 104 Tenn. 525, 58 S. W. 235, 51 L. R. A. 254, 78 Am. St. Rep. 931; People v. Home Oil & Supply Company, 95 Colo. 143, 34 Pac. (2d) 67; Sheppard et al. v. Musser (Tex. Sup.) 92 S. W. (2d) 219.

We are not disposed to go into a lengthy analysis of the authorities nor attempt to restate the applicable rules of law. If the transactions in which the procuring of the orders for cigarettes by petitioner and his codefendants, and the delivery of the orders to Brooks at his place of business and the filling the orders by mail, parcel post, C. O. D., the receiving of the cigarettes, the breaking of the cases, and the turning over of the cartons to petitioner and his codefendants or other employees, and the delivery to those placing the orders, is a transaction in interstate commerce, the court did not have jurisdiction to render judgment. If, on the other hand, upon the receipt of the shipment by Brooks and his payment of the' C. O. D. charges, and the removing the same to his place of business, the cigarettes had come to rest within the state and the subsequent delivery and the receiving of payment for them from purchasers was a first sale within the state, that is to say, was intrastate commerce, then the judgment is valid.

It is true the motive which prompted Brooks in his method of dealing in cigarettes is not material if his business was in fact wholly interstate commerce, but as was stated in People v. Home Oil & Supply Co., 95 Colo, 143, 34 Pac. (2d) 67, 68,

“The intent of the person making the shipment has an important, if not controlling, bearing upon the question of where the, interstate journey ends. Texas & N. O. R. R. Co. v. Sabine Tram Co., 227 U. S. 111, 33 S. Ct. 229, 57 L. Ed. 442.”

Surely when the tobacco company in Kansas sent cigarettes by C. O. D. mail to Brooks in Oklahoma and he paid the C. O. D. charges and took them to his place of business, the delivery was complete. The tobacco company had no further interest in them and the interstate transaction was at end. The cigarettes had come to rest in Oklahoma. They were the property of Brooks and they were subject to the excise laws of this state. Any sale oil them after that time was intrastate business and was subject to the laws of this state.

The writ is denied,

DAVENPORT and DOYLE, JJ., concur.


text:
    OTTO ADAMS v. STATE.
    No. A-9214.
    Feb. 19, 1937.
    (65 Pac. [2d] 420.)

      John Steele Batson and J. W. Monroe, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charged defendant, Otto Adams, jointly with Jim Hart, John Hart, Leonard Adams, and William McGill, with having on the 26th day of April, 1934, broken into and entered a storehouse, the property of W. M. Balthrop, located in the city of Marietta, with intent to steal certain com, the personal property of Paul Miller.

Upon his separate trial the jury returned their verdict finding the defendant, Otto Adams, guilty of burglary as charged in the information and assessed his punishment at confinement in the state penitentiary for a term of two years.

Prom the judgment rendered in accordance with the verdict on April 18, 193'6, he appeals, and assigns as error that the verdict is contrary to the law and the evidence, that the court erred in admitting incompetent evidence and in excluding competent evidence offered on the part of the defendant, and erred in its instructions to the jury.

No brief has been filed, and no appearance made in behalf of plaintiff in error in this court.

This is a companion case to that of Jim Hart v. State, 57 Okla. Cr. 372, 48 Pac. (2d) 337, whose conviction was on appeal affirmed.

The undisputed facts are that on the date alleged Paul Miller had a carload of shelled corn sacked, 100 pounds to the sack, stored in a warehouse near the depot in Marietta. On the night of April 26, 1934, the two locks on the door of the warehouse were broken off, and it was entered and 200 sacks of this corn stolen.

The evidence shows that the corn was hauled away in a truck or trucks, some corn had spilled along the road. By following the spilled com the owner and the officers trailed the same to the home of John Hart, where 60 sacks of the stolen corn were found. From John Hart’s place, spilled corn was followed to the home of Jim Hart, about half a mile south, where another 60 sacks were found. The next day they went half a mile west of John Hart’s house to the home of this defendant, where they found 80 sacks of com in the brush, about 200 yards from his home.

It also appears that from the highway to the defendant’s house and to where the com was found the road! had been disked or a harrow drawn over it. As they were passing the house the sheriff spoke to the defendant, but after finding the com and returning to the house the defendant was not there.

There was testimony tending to show that all the defendants named in the information were together in a car near the home of John Hart the evening of the date alleged.

Tbe defendant, in support of bis alibi defense, testified that be was in Gainesville, Tex., at tbe home of Albert Jackson, bis brotber-in-law, on the date alleged.

Albert Jackson testified that be lived in Gainesville, and tbe defendant came to bis home on April 25, 1934, and stayed there about two months.

In cases of this kind, where no briefs are filed, nor oral argument made, we do not consider it the duty of this court to go into a careful examination of tbe evidence to determine whether or not tbe trial court erred in tbe admission or rejection of evidence.

In this case we have examined the record and find it free from substantial error.

As to tbe sufficiency of tbe evidence to sustain tbe verdict, we think there can be no reasonable doubt. The instructions given by the court to which no objection was made or exception taken, correctly and fully present the law of the case, including the law of circumstantial evidence.

It appearing that the defendant had a fair and impartial trial, and was properly convicted, the judgment appealed from is affirmed.

DAVENPORT, P. J., and BAREFOOT, J., concur.


author: BAREFOOT, J.

text:
    RALPH GAINES v. STATE.
    No. A-9141.
    Feb. 19, 1937.
    (65 Pac. [2d] 422.)

      Glen O. Morris, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis R. Morris, Co. Atty., for the State.
   BAREFOOT, J.

The first question presented in this case is the refusal of the trial court to sustain the motion filed by the defendant to furnish a record at the expense of the county. Evidence was heard upon this motion and showed that the defendant had been released on a $3,000 bond, signed by his mother; that his people owned property; and that he had hired a lawyer to defend him in this case. The court, after hearing the testimony, refused to order the record at the expense of the county. The statute of this state, section 3823, St. 1931, provides:

“The judge may, upon the application of either party in a criminal case, direct the reporter to' make out and. file with the clerk of the court a transcript of his shorthand notes when the same is needed in such case, and he shall receive as compensation therefor ten cents per folio: Provided, however, that if, before) a transcript of the note is ordered on application of the defendant or his attorney, the defendant shall present to the judge his affidavit that he intends in good faith to take an appeal in the case and that such transcript is necessary to enable him to prosecute the appeal, and that the defendant has not the means to pay for the same, the court may, at its discretion, order the transcript made at the expense of the county.”

It will thus be seen that under the statute the granting of the request to furnish the record at the expense of the county is a matter left to the discretion of the trial judge. This is as it should be. The courts should, and vve are sure will, be careful in protecting the rights of defendants who are without means and whose cases should be reviewed on appeal. But, on the other hand, the rights of the county should be guarded, and when the evidence shows that the1 defendant, or those who should assist him, are able to do so, then the county should not be required to furnish the expense of preparing the record.

Trial courts should, and will, exercise their sound discretion in protecting the rights of defendants who have been convicted and who desire to appeal their cases to' the higher courts. No fixed rule ought to be established. Where extreme penalties have been inflicted, or where the court deems it proper that the questions involved are such that should be passed upon by the higher courts, or whether or not the appeal is frivolous, will all be taken into consideration by the court in the exercise of its sound discretion, to the end that the rights of the defendant may be properly safeguarded, and also the rights of the county protected from the expense of unnecessary appeals. The mere filing of an affidavit by the defendant, or his statement that he is unable to pay the expense of the appeal, should not alone determine the right of the county to furnish the transcript of the record.

This court has heretofore expressed this rule in the case of Moore v. State, 33 Okla. Cr. 304, 243 Pac. 995, 996, where it said:

“Under this section the granting or refusing of an application for a transcript of evidence at the expense of the county rests in the sound judgment and discretion of the trial court, and its ruling will not be reversed unless it appears that there has been an abuse of such discretion.” See Harris v. State, 10 Okla. Cr. 417, 137 Pac. 365, 139 Pac. 846.

The defendant has had prepared a transcript of the record in this case, and the same has been certified by the court clerk of Oklahoma county. Under the law a transcript should contain the following (section 3146, St. 1931) :

“When judgment upon a conviction is rendered, the clerk must enter the same upon the minutes, stating briefly the offense for which the conviction has been had, and must immediately annex together and file the following papers, which constitute a record of the action:
“First. The indictment and a copy of the minutes of the plea or demurrer.
“Second. A copy of the minutes of the trial.
“Third. The charges given or refused, and the in-dorsements, if any, thereon; and,
“Fourth. A copy of the judgment.”

This statute has been complied with in this case. When an appeal is made on transcript, the court will examine the indictment or information and any demurrer or plea thereto, the minutes of the trial, the instructions given by the court, or refused, and the judgment of the court. If after an examination of these, it is determined that the information properly charges a crime and that the court, in the giving or refusing of instructions, has properly; advised the jury as to the law applicable to the case, and that the judgment and sentence is in conformity with the facts, the judgment will be affirmed; otherwise, it will be reversed. Day v. State, 7 Okla. Cr. 276, 123 Pac. 436; Reed v. U. S., 2 Okla. Cr. 652, 103 Pac. 371.

In the present case counsel for defendant has filed no brief. The evidence taken at the trial is not before us. We have carefully examined the transcript, and finding no substantial error, the judgment of the trial court is affirmed.

DAVENPORT, P. J., and DOYLE, J., concur.


text:
    RUBY HULL v. STATE.
    No. A-9213.
    Feb. 19, 1937.
    (65 Pac. [2d] 423.)

      C. B. Leedy, for plaintiff in error.
    Mac Q1. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen, for tbe State.
   DOYLE, J.

The information in this case charges that in tbe county of Ellis, on tbe 25th day of July, 1936, Ruby Hull did have in her possession about seven quarts of “moonshine” whisky, with the unlawful intent to sell the same. Upon her trial she was by the verdict of a jury found guilty and her punishment fixed at confinement in the county jail for 30 days and a fine of $50.

August 17, 1936, motion for new trial was overruled and judgment entered in accordance with the verdict. She appeals to this court for reversal of the judgment, and assigns as error the overruling the motion to suppress the evidence, the admission of incompetent and prejudicial testimony over her objections, and insufficiency of the evidence to support the verdict.

It appears from the record that R. L. Boyd, sheriff, accompanied by W. M. Bowen, a deputy, and Chas. B. Leedy, county attorney, went tO' the home of plaintiff in error, in Turner’s addition in the town of Gage, Ellis county, in executing a search warrant, issued upon an affidavit made by Chas. B. Leedy, county attorney.

The state introduced two witnesses, the sheriff and deputy sheriff, Bowen, who testified that on the 25th day of July, 1936, they searched the defendant’s residence and found a jug containing whisky, and three pints of whisky; that the defendant was not at home at the time; that the defendant’s mother, Mrs. Smith, was in the house, and the sheriff read the search warrant to her, and she Said: “If we would wait a few minutes she would show us where the Avhisky was, and shei showed us.”

The sheriff testified that he never saw the defendant, never served any search Avarrant on her, and that he never arrested anybody there; that on the 27th day of July, the defendant came to Arnett and was arrested.

W. H. Bowen, deputy sheriff, testified that he lives at Gage and went with the sheriff that night) to the Ruby Hull home; that the sheriff went to the front door and he went to the back door; and they entered and searched the house.

He further testified as follows:

“Q. Had you, prior to this search, received complaint of the citizens around there relative to a disturbance of the peace at the Hull home. Mr. Leedy: We object to that as incompetent, irrelevant and immaterial. This defendant is not charged with disturbing the peace. The County Attorney: I understand that, but what I am trying to> show is that fellows Avho drink hang around this place and fellows who come to and from it are drunk. The Court: Objection will be overruled. The defendant excepts. A. Two or three different parties have talked to me and told me about the disturbances that Avere going on down there all hours in the night. I didn’t go down there and I don’t know anything about it myself. Mr. Leedy: Now Ave move to strike the answer of the Avitness as hearsay, and as being incompetent and not binding on this defendant. The Court: Your motion will be overruled. The defendant excepts. County Attorney: Now, what was that answer again? Witness: I say two or three parties came to me and made complaint about this disturbance and noise that was going on at her house at nights, and I passed it off and said that would be taken care of. Q. Did you ever observe fellows down at the Hull home that have a reputation of drinking whisky? Objected to as incompetent, irrelevant and immaterial: You can’t prove the reputation of somebody not on trial. The Court: You may answer the question. Witness: Saturday afternoon, before this work was done that night, I had three parties, I didn’t know them, informed me that they had made about three trips to that house that afternoon and that they found men there that were drinking, while they were not drunk, but I wasn’t there.”

As a witness in her own behalf, Euby Hull testified that she had lived in 'the town of Gage about nine and one-half years, a divorced woman, the mother of two children ; that she rents the house in which she and her mother live, paying $4 a month rent; that she worked for a living, takes in washing and ironing and goes out and does housework and takes care of women during confinement; that she and her mother get groceries from the welfare; and that her mother keeps whisky there for medicinal purposes on the advice of her Drs. Newman and Irvin; that she never did sell whisky to anybody or keep whisky for the purpose of sale. That the jug containing whisky was kept by her mother in the closet of her bedroom.

Dr. G. Irvin testified that he lives in Gage, a licensed1 and practicing physician for 36 years, and is personally acquainted with Bessie May Smith, the mother of the defendant, having known her about 15 years, and for several years she has been a patient of his, and he has prescribed for her for stomach trouble, heart trouble, and nervousness; that he prescribed stimulants and told her if she would keep whisky and take a little at intervals it would help her heart; that he was called to the house on the night of the raid, and found Mrs. Smith was in a very nervous condition and he had to prescribe for her.

To justify or sustain a conviction of having possession of intoxicating liquors with the intent to- violate any of the provisions of the prohibitory liquor law, there must be evidence sufficient, not only to prove possession, but also to prove criminal intent.

The possession without an intent to sell or convey does not constitute an offense any more than an intent to sell or convey without possession would constitute an offense. Haltom v. State, 58 Okla. Cr. 117, 50 Pac. (2d) 744.

In the case of Thompson v. State, 9 Okla. Cr. 525, 132 Pac. 695, 698, we said:

“A man cannot be condemned on what a few of his unfriendly neighbors say of him or of his home in cases like this. Such evidence is merely hearsay, and its admission was prejudicial to the defendant.”

In Brokhaus v. State, 11 Okla. Cr. 625, 150 Pac. 510, this court held:

“Upon a trial on an information charging that the defendant did have the possession of intoxicating liquors with the intent to sell the same, evidence of the general reputation of his home was incompetent to' prove the charge.” Held further: “Where hearsay testimony has been received which contributed to a verdict of guilty, the reception of such evidence does not constitute harmless error, but will be grounds for reversal.”

The rule as stated above has since been followed in other decisions in this court. Hurst v. State, 25 Okla. Cr. 102, 219 Pac. 151; Williams v. State, 25 Okla. Cr. 284, 220 Pac. 667.

A private residence, occupied as such, is immune from search unless it, or some part of it, is used as a store, shop, hotel, boarding house, or place for storage, or unless such residence is a place of public resort. Section 2689, St. 1981.

It is undisputed that tbe bouse of this defendant was exclusively used as tbe private residence of tbe defendant and ber mother, and tbe testimony on tbe part of tbe state is not sufficiently certain to show possession of more than one gallon of whisky in their home.

There is no testimony tending to show an intent to sell tbe same, and tbe testimony that tbe mother of tbe defendant bad this liquor for medicinal purposes and was so being used by ber upon tbe advice of ber physician is undisputed.

In our opinion, tbe evidence is insufficient to show tbe defendant’s possession of tbe liquor in question; however, assuming possession to have been shown, it was not shown that the amount seized was in excess of one gallon of spirituous or vinous liquors. Under tbe provisions of section 2625, there would be no presumption of intent to violate tbe liquor enforcement act.

It appears from the record that when tbe state rested tbe defendant interposed tbe following motion:

“Tbe defendant at this time moves tbe court to strike from tbe evidence the testimony of tbe officers, the conversation and hearsay testimony which did not occur in tbe presence or hearing of the defendant.
“Tbe Court: Motion will be overruled. Exception.”

It follows from what has been said that tbe court erred in overruling the defendant’s motion to strike.

When tbe state rested, and again at tbe close of all tbe testimony, ber counsel moved tbe court to advise the jury to return a verdict of acquittal, for tbe reason that tbe evidence is insufficient to support a verdict of guilty, which the court, refused to do, and exceptions were reserved.

We think that under the evidence the trial court should have sustained the defendant’s motion for a directed verdict of acquittal.

Because the conviction is contrary to law and to the evidence, and the erroneous admission of incompetent evidence on the part of the state, the judgment appealed from is reversed, and the cause remanded with direction to dismiss.

DAVENPORT, P. J., and BAREFOOT, J., concur.


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    JESSE PULLIAM v. STATE.
    No. A-9124.
    Feb. 19, 1937.
    (65 Pac. [2d] 426.)

      Abe Wildman, H. M. Curnutt, John W. Tillman, and! Fred A. Tillman, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H, Latti-more, Asst. Atty. Gen., for the State.
   DOYLE, J.

This is an appeal by the defendant Jesse Pulliam from a conviction of murder and judgment and! sentence of imprisonment in the state penitentiary for and during the term of his life.

The information charges that:

“On or about the 24th day 'of August, 1934, in said County and State, the defendant, Jesse Pulliam, then and there being, did then and there wrongfully, wilfully, unlawfully, intentionally and feloniously, and while acting together with one John Stacy, without authority of law, and with the premeditated design to effect the death of one E. W. Williams, make an assault in and upon the said E.W. Williams, with a certain dangerous and deadly weapon, to-wit: a claw hammer, and did then and there with said weapon as afore-stated, strike, beat, batter and wound the said E. W. Williams about his head, thereby crushing the skull of E. W. Williams, of which said wounds the said E. W. Williams did, on the 25th day of August, 1934, die, as was intended by the said' defendant, Jesse Pulliam, and one John Stacy, that he should so do, contrary to,” etc.

The overruling of the defendant’s demurrer to the information is assigned as error.

Where an information charges that the injuries to the deceased were inflicted by the defendant with a premeditated design to effect death, and alleges the means with which the homicide was committed, it is sufficient. The demurrer was properly overruled.

Several assignments of error are based on exceptions to rulings on evidence.

The second assignment argued is that the trial court erred in failing to declare a mistrial when Sheriff Conner testified in the presence of the jury in answer to the following question of the county attorney:

“Q. When did you first begin your search for these two individuals? Objected to as incompetent, irrelevant and immaterial. Overruled and exception. A. Sunday night was the first we positively knew it was John and Jesse. Mr. Tillman: Your Honor please we move to strike that. By tbe Court: Sustained. Mr. Tillman: At this time we move for a mis-trial on account of the voluntary statement of the sheriff. The Court: Overruled. Mr. Tillman: And we ask the court to instruct the jury to disregard the same. The Court: Gentlemen of the jury, you are instructed to disregard the last answer.”

It is sufficient to say that this assignment is without merit. The answer of the witness was stricken by the court and an instruction given to the jury not to consider it.

The next assignment of error is based upon rulings of the court permitting Charles Cass to testify in rebuttal relative to statements made by the defendant after he had been apprehended, as follows:

“Q. Were you in the county attorney’s office a few days after Jesse Pulliam was brought to the Osage county jail when he made some statements with reference to this transaction out here? A. Yes, sir. Q. I will ask you to state whether or not if the following questions were not asked him and if he did not answer as follows: Jesse, was there a winch on this truck that you were driving, answer: there was; question: was there a handle on that winch, answer: it was on the bed of the truck or I suppose it was, that is where it was generally kept. Would you know the winch handle if you were to see it. I believe I would. Is that it? That looks like it all right, it sure does. Did he made that statement? Mr. Tillman: Objected to as improper rebuttal, the witness wasn’t asked about mailing those statements. The Court: He said he didn’t make the most of them. Let him answer. Mr. Tillman: Give us an exception. By Mr. Carman: Q. Were those questions asked and those answers given. A. Yes, sir. Q. Question: Was there a hammer on your truck or in your possession that evening? Answer: I believe there was a hammer in the back of the truck or on the floor boards in the cab of the truck. Was that a claw hammer? Yes, sir, a claw hammer. Would you know it if you were to see it? I don’t know whether I would or not. Was it a straight claw hammer or were the claws curved or crooked? Curved I believe. Look at that and see if yon can identify that. Answer: I don’t know if it is or not, I believe it is. You believe it is. Answer: yes sir. Mr. Tillman: Just a moment, the same objection, he answered1 that he might have testified to that. The Court: Overruled. Mr. Tillman: Exception. A. He did. By Mr. Carman: Q. At the time that he made this statement with reference to the hammer was this hammer shown to him? (indicates the hammer in evidence) Mr. Tillman: Objected to as improper rebuttal. The Court: Overruled. Mr. Tillman: Exception. A. Yes, sir.”

It is contended that this evidence should have been introduced as a part of the state’s case in chief, and it is urged that it was prejudicial error on the part of the court to permit the county attorney to rehash the state’s testimony after the defense had closed. Citing Corliss v. State, 12 Okla. Cr. 526, 159 Pac. 1015.

An examination of the record discloses that this testimony was in no sense a rehash of the evidence adduced as a part of the state’s case in chief, and was admitted in rebuttal and for impeachment purposes.

An examination of the cross-examination of the defendant as a witness in his own behalf discloses that the defendant was questioned relative to the making of these statements. Some of them he positively denied. In other instances he answered vaguely with, “I might have, I don’t know,” or, “I might have answered that way, I don’t know for sure.” The less important part of his statements he some time admitted having made. It appears when the county attorney began his questions as to the statements made in the county attorney’s office, counsel for the defendant stated:

“Now if your Honor please, if there are going to be parts of statements made in the county attorney’s office, the defendant asks that all be read.”

It appears the defendant admitted that the winch handle which was picked up near the stand looked like the one which belonged on the truck. As a part of his defense the defendant and his witnesses denied that the winch handle was lost off the truck. They also denied that the hammer which was found, and with which the murder evidently was committed, was in the truck or in the possession of the defendant.

When asked on cross-examination about the making) of this statement he answered evasively.

Our Procedure Criminal (St. 1931), section 3057, in part provides:

“The jury having been impaneled and sworn, the trial must proceed in the following order:
“First. If the indictment or information is for a felony, the clerk or county attorney must read it, and state the plea of the defendant to the jury. In other cases this formality may be dispensed with.
“Second. The county attorney, or other counsel for the state, must open the case and offer the evidence in support of the indictment or information.
“Third. The defendant or his counsel may then open his defense, and offer his evidence in support thereof.
“Fourth. The parties may then, respectively, offer rebutting testimony only, unless the court for good reason, in furtherance of justice, or to correct an evident oversight, permit them to offer evidence upon their original case.”

In the case of Claycomb v. State, 22 Okla. Cr. 315, 211 Pac. 429, 431, this court said:

“Portions of this testimony and that of other witnesses called on rebuttal related to matters controverting the testimony given by defendant, dovetailing in with facts that could have been introduced in chief. Rebuttal evidence is proof of facts tending to explain, repeal, counteract, or disprove matters given in evidence on the other side. 3 Bouvier’s Law Dictionary, p. 2820.
“Evidence tending to clarify a disputed point may be properly rebuttal testimony, notwithstanding the fact that the same testimony might have been introduced in chief. Wigmore on Evidence, § 1873.”

In Seigler v. State, 11 Okla. Cr. 131, 145 Pac. 308, 309, this court said in the seventh paragraph of the syllabus :

“(a) When the state makes out a clear case in chief, the fact that certain testimony was reserved for rebuttal which would have been admissible in establishing the case in chief, but which is clearly in rebuttal of the material defense, or testimony introduced in defense, does not render the same inadmissible in rebuttal.
“(b) Rebuttal testimony is properly that testimony which is, given to explain, repeal, counteract, disprove, or destroy facts given in evidence by an adverse party. Any evidence may be given in rebuttal which is a direct reply to that produced by the other side or a contradiction thereof, or which tends to destroy the effect of the same.”

Construing the fourth subdivision of section 3057, this court held in Hampton v. State, 7 Okla. Cr. 291, 123 Pac. 571, 40 L. R. A. (N.S.) 43:

“The fact that evidence may have been introduced in chief by the state does not necessarily prevent its introduction as evidence in rebuttal. The introduction of such evidence is a matter of discretion of the trial court, and will not be ground for reversal, unless an abuse of this discretion is shown.”

It follows from wbat bas been said that tbe objections thereto as improper rebuttal were properly overruled.

In another assignment tbe defendant complains that tbe court erred in giving instruction No. 7.

Upon tbe record before us counsel for tbe defendant have not properly raised tbe question. Only prejudicial errors raised by exceptions reserved, require a new trial, and it is only when we are satisfied that tbe verdict was contrary to law or to tbe evidence, or that injustice bas •been done, that we are permitted to reverse a conviction, whether or not an exception has been taken in tbe trial court.

It appears from tbe record that counsel for tbe defendant presented no request for instructions and no> exceptions were taken to tbe instructions given by tbe court.

In charging tbe jury tbe court submitted tbe issue of “murder” as defined by tbe first subdivision of section 2216, wherein homicide is defined to be “murder”:

“First. When perpetrated without authority of law, and with a premeditated design to effect tbe death of tbe person killed, or of any other human being.”

Tbe instructions given correctly stated the law of circumstantial evidence. As before stated, the defendant did not request tbe court to give instructions submitting tbe law of manslaughter in tbe first degree.

Our Procedure Criminal (St. 1931) section 3079, in part provides:

“Either party may present to the court any written charge, and request that it be given. If the court thinks it correct and pertinent, it must be given, if not, it must be refused. Upon each charge presented and given or refused tbe court must indorse or sign its decision.”

Under this provision, if counsel for the defendant desires the court to give any particular instruction, or that one that is given be made more specific or comprehensive, it is the duty of counsel to prepare and present to the court such desired instruction and request that it be given, and in the absence of such request a conviction will not be reversed, unless this court is of the opinion, in the light of the entire record, including the instructions given, that the defendant may have been prejudiced by the erroneous instruction given and to which an exception was duly taken. Fitzsimmons v. State, 14 Okla. Cr. 80, 166 Pac. 453.

In Williams v. State, 12 Okla. Cr. 39, 151 Pac. 900, we said:

“If upon the trial of a criminal case special instructions are desired by the defendant, he is required by the provisions of our Code of Criminal Procedure to present in writing, to the court the instructions desired, and it is not error for the trial court to omit to instruct upon every possible question under the defendant’s theory of the case, when he has not requested such instructions.”

If the defendant’s counsel had requested further instructions and they had been refused, the question would have been properly raised upon exceptions taken. Merriott v. State, 18 Okla. Cr. 247, 194 Pac. 263; Reagan v. State, 35 Okla, Cr. 332, 250 Pac. 435; Carpenter v. State, 56 Okla. Cr. 76, 33 Pac. (2d) 637.

Upon a careful examination of the voluminous record, we find that the evidence upon the part of the state was sufficient to establish every material element of the offense charged. Its weight and convincing effect was for the jury, and having considered the assignment of error argued orally and in the briefs, we are satisfied that no exception taken upon the trial is of any force or merit. Our conclusion is that the defendant had a fair and impartial trial.

The judgment of the district court of Osage county herein is therefore affirmed.

DAVENPORT, P. J., and BAREFOOT, J., concur.


text:
    LLOYD GRABLE v. STATE.
    No. A-9098.
    Feb. 19, 1937.
    (65 Pac. [2d] 418.)
    Mullen & Brett, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, P. J.

Lloyd Grable, the plaintiff in error, who will hereinafter be referred to as the defendant, was by information jointly charged with Oscar Smith, Roy Smith, W. F. Cummings, Millard Pack, and Daniel Smothers with the crime of attempting to rob the First National Bank of Fletcher, Okla., by the use of firearms; was tried separately, convicted, and his. punishment fixed at hard labor in the state penitentiary for life. Motion for new trial was filed, considered, overruled, and exceptions duly saved. From tbe judgment and sentence of the trial court, the defendant, Lloyd Grable, has appealed, alleging that in his trial the trial court committed eleven errors. Among the errors assigned are the following:

“That the court erred in denying the plaintiff in error herein a new trial; the court erred in overruling the plaintiff in error’s motion in arrest of judgment; the verdict, judgment and sentence in this case is contrary to law and contrary to the evidence; and that the verdict of the jury is contrary to- both the law and the evidence.”

There are other errors assigned, but the assignments above set out are the only errors that it is deemed necessary to consider.

The record is voluminous, and it would serve no useful purpose to set out the testimony in full. Suffice it to say that the substance of the testimony shows that on August 16, 1933, the First National Bank of Fletcher, Okla., was organized and doing business; that on said date two men appeared in the lobby of the bank and demanded the cashier to hold up his hands, that they were going to rob the bank, or words to that effect; the cashier dropped behind a safety plate he had under the cashier’s window to protect any one from shots that might be fired, and when he did so the shooting began; several shots were fired in the bank, but none of them took effect or injured any one; the parties left the bank without securing any funds, and went out and got in a car where there were some other parties and drove away.

George Littlefield, cashier of the bank, identified the defendant as being one of the parties that came in the bank. Prior to the time of the attempted robbery of the bank, the parties stopped at a filling station near Fletcher and bought two gallons of gas from a woman who identified the defendant as being one of the parties in the car that drove toward Fletcher leaving the filling station.

In the afternoon or evening after the attempted bank robbery, the parties were followed to the home of a man by the name of John Avery, and in the Avery home the defendant was found in bed ostensibly asleep; in the same room with the defendant was W. F. Cummings, one of the parties with this defendant charged with the attempted bank robbery; others of the party were around the house and in the neighborhood. When the officers entered the room where Cummings and the defendant were, they demanded them to hold up their hands, and Cummings obeyed promptly, but the defendant was slow and got up on the side of the bed and wanted know what it was all about, and did not get up off the bed until one of the deputies told the sheriff, who was between him and the defendant, to step aside and he would cut him in two with his gun. The bed was examined and an automatic pistol found on the bed. At least three other parties charged with the defendant have entered pleas of guilty and are now serving time in the state penitentiary.

The defendant testifying for himself denies he had anything to do with the attempted robbery or that he was present when the attempt was made; he states he had made arrangements with Mr. John Avery to drive out to his house and get a car belonging to him and bring to his garage in Oklahoma City, and overhaul it for him. Mr. Avery denies he had any understanding with the defendant to overhaul his car. The defendant admits he was at the Avery home when arrested, but insists he was there to get the Avery car to’ overhaul it, and that he had been there the greater part of the day. The wife of Avery denies he was at her home at the noon hour, the day of the alleged attempted robbery.

The defendant is an automobile mechanic and had a shop in Oklahoma City. All of the testimony from the morning prior to the robbery up to the time the defendant and other parties were arrested in the afternoon or evening placed the defendant with one or more of the parties charged with the attempted robbery, and the only denial the defendant makes is that he had nothing to do with the attempted robbery; was not present at the bank when the attempt was made; and that he knew nothing about what the other parties intended to do; that he did not know when they left the Avery home, or returned, and did not know a robbery had been attempted. The foregoing is in substance the testimony.

There is a clear conflict in the evidence in this case. Positive testimony that the defendant was one of the parties who attempted to rob the bank, and positive testimony that when some of the boys were arrested at the Avery home that the defendant was one that was taken into custody, and then the defendant’s denial of having any connection with the attempted robbery. This conflict in the evidence was a question solely for the jury.

Beginning with the early opinions and coming on down to the present time, this court has held that where the evidence and reasonable and logical inferences and deductions, to' be drawn from it are sufficient to convince the jury beyond a reasonable doubt of the guilt of the defendant, this court will not disturb the verdict for insufficiency. Pickett v. State, 35 Okla. Cr. 60, 248 Pac. 352; Underwood v. State, 36 Okla. Cr. 21, 251 Pac. 507; Bond v. State, 53 Okla. Cr. 224, 11 Pac. (2d) 200; Coats v. State, 56 Okla. Cr. 26, 32 Pac. (2d) 955.

The jury being the exclusive judge of the weight of the evidence, and where there is a clear conflict in the evidence, or it is such that different inferences can properly be drawn from it, this determination will not be interfered with unless it is clearly against the Aveight of the evidence, or appears to have been influenced by passion or prejudice. Cole v. State, 18 Okla. Cr. 430, 195 Pac. 901; Richards v. State, 22 Okla. Cr. 329, 211 Pac. 515; Clemmer v. State, 56 Okla. Cr. 354, 40 Pac. (2d) 37.

The jury in analyzing the testimony reached the conclusion that the defendant participated in the attempted robbery of the bank, notwithstanding the defendant’s positive testimony that he did not, and returned a verdict of life imprisonment in the statei penitentiary, in the face of the record that three other parties entered their pleas of guilty in taking part in the attempted robbery, and had been sentenced to serve a term of 20 years in the penitentiary.

There is nothing in the record to show that this defendant had prior to this time been charged or convicted of a robbery, or attempted robbery, and there is no evidence in the record showing this defendant to be a worse criminal than the others who had pleaded guilty and been sentenced to 20 years.

This court must conclude from the finding of the jury that the jury imposed a life sentence on the defendant for the reason that he declined to plead guilty, insisting on his innocence, and forcing the state to go to trial and convict him. The facts in the record do not justify a life sentence, and in view of the fact that the other parties participating in the attempted robbery with the defendant were sentenced to serve a term of 20 years in the state penitentiary, this court is inclined to' believe, and does believe, that the sentence is excessive, and should be modified from a life sentence to a sentence in the penitentiary for a term of 20 years, and, as modified, the judgment is affirmed.

DOYLE and BAREFOOT, JJ., concur.