text:
      Ex parte JOHN HERNDON.
    No. A-3704
    Opinion Filed Oct. 18, 1920.
    (192 Pac. 820.)
    (Syllabus.)
    1. BAIL — Constitutional Provision — Right to Bail After Conviction for Capital Offense. The Constitution of this state (article 2: § 8», providing, “All persons shall be bailable by sufficient sureties, except for capital offenses when the proof of guilt is evident, or the presumption thereof is great,” has reference only to those cases in which the accused has not yet had a trial, and applies to all persons prior to conviction, but does not refer to cases wherein a conviction has been had in a court of competent jurisdiction.
    2- SAME — “Capital Offense.” A “capital offense” is one where the punishment may be death.
    3. SAME — Validity of Statute Excepting One Under Sentence of Life Imprisonment from Bail. The provision of our Code of Criminal Procedure (section .61105, Rev. Laws 1910) excepting from the right to bail pending appeal one under sentence of life imprisonment is not unconstitutional.
    John Herndon was convicted of murder, and he appeals. On application to ibe allowed bail pending decision on appeal.
    Denied.

      Giddings & Giddings, for petitioner.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen.,' for respondent.
   DOYLE, P. J.

T]he petitioner, John Herndon, having been convicted in the district court of Greer county of murder and sentenced to imprisonment for life at hard labor, appealed from the judgment and sentence, and said appeal is now pending in this court. In this proceeding he makes application to this court to be allowed bail pending its decision on his said appeal.

The petitioner bases his application for bail upon section 8 of the Bill of Rights (Const, art. 2, §8), which provides :

“All persons shall be bailable by sufficient sureties, except for capital offenses, when the proof of guilt is evident, or the presumption thereof is great.”

That the jury having by their verdict assessed his punishment at imprisonment for life, the offense is no longer capital, and by the terms of the constitutional provision he cannot be deprived of the privilege of the right to bail, and that the provision of the statute (section 6106, Rev. Laws 1910) excepting from the right to bail pending appeal, one under sentence of death or life imprisonment is to that extent in violation of the Constitution.

In our Penal Code it is provided that any person convicted of murder shall suffer death or imprisonment at hard labor in the penitentiary for life at the discretion of the jury. Section 2319, Rev. Laws 1910. The offense may therefore be punished with death, but it is not necessarily so punishable. A “capital offense” is one where the punishment may be death. The offense, then, is a capital one within the meaning of the Constitution.

Our Code of Criminal Procedure provides:

“After conviction of a crime or public offense, not punishable by the death or incarceration for life in the state prison, a defendant who sues out a writ of error for revision of the judgment or takes an appeal from the judgment rendered against him, shall, on furnishing' bond, be admitted to bail as provided by sections 5994 and 5995.” Section 6105, Rev. Laws 1910.

“In all cases where the sentence is for a crime not bailable the defendant shall be confined in the penitentiary pending the appeal.” Section 5995, Rev. Laws 1910.

The constitutional provision in the Bill of Rights has reference only to the cases in which the accused has not had a trial, and applies to all persons prior to conviction, hut does not refer to cases wherein a conviction has been had in a court of competent jurisdiction.

In Ex parte Mingle, 2 Okla. Cr. 708, 104 Pac. 68, it is said:

“'The Constitution grants power to the legislative ¡branch of the government to provide by proper legislation, the manner in which appeals in criminal cases may be taken. The. language of the law is plain and unambiguous, and provides that the appeal shall suspend execution until the matter is determined upbn the appeal, and the defendant in the meantime shall be confined in the state prison. The defendant is entitled to the advantage of every right which the law secures to him before his conviction is made final. He has the right of appeal, and in this class of crimes, while his appeal is pending, although confined in the penitentiary, it is his privilege not to be held at hard labor. T'o this extent only the pendency of his appeal stays the execution of the judgment and sentence. We do not see that this provision of the law deprives the petitioner of any constitutional right. The offense is not bailable, and he stands committed by a court of competent jurisdiction.”

With slight variations the common form of constitutional guaranty of bail is that all persons shall be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption of guilt is great.

In Ex parte Voll, 41 Cal. 29, 14 Pac. St. Rep. 29, the petitioner convicted of manslaughter claimed admission to bail as a right under the Constitution of California (article 1, § 7) providing that:

“All persons shall be bailaible by sufficient sureties, unless for capital offenses, when the proof is evident, or the presumption great.”

The statute of that state provided that a person eharg-ed with such an offense as manslaughter may be admitted to bail before conviction “as a matter of right,” but after conviction “as a matter of discretion” merely. It was insisted that the language of the Constitution was sufficiently broad to embrace not only a case where no trial had been had, but equally a case in which a conviction of an offense less than capital in degree had occurred; that the Constitution did not regard the particular stage of the proceedings which the prosecution may have reached, but only the grade of the offense involved as being less than the capital grade. Upon these contentions the Supreme Court said:

“We are of the opinion that the Constitution, in declaring bail to be a matter of right, contemplated only those ‘ cases in which the guilt of the party had not been already judicially ascertained; cases in which the prisoner as yet stood upon his plea of not guilty, supported with all the presumptions of innocence with which the law delights to 'surround him. But when his trial has been had, and his plea proven false, the law will not stultify itself by presuming him other than that it has itself adjudged him to be. If the Constitution, indeed, intended to introduce the rule of absolute right to bail, as well after as before conviction of such felonies, it would result that no convict could be punished for his ascertained crime if he had either wealth, or friends; for no mere pecuniary considerations could weigh against the alternative of a degrading imprisonment, at hard1 labor, for a crime involving moral turpitude. It would operate in practice as a mere money commutation for the infamous corporeal punishment which the law has denounced against the perpetration of crime.

“The literal interpretation insisted upon — following, as it does, the mere words of the Constitution — would not only entitle the prisoner to bail, pending his appeal taken, but would have done so had he not taken an appeal at all. In this view it was unnecessary for hirp to have stated, as he has done in his petition, that he had appealed from the judgment of conviction, because, upon the literal reading of the Constitution, upon which he insists, that is not a condition imposed upon his right to 'bail; it is one which is only to be found in the statute, which he seems, however, to have so far observed, even while coming here to assail its constitutionality. Indeed, upon the interpretation here insisted upon, the right to object would still belong to the prisoner, even if it had appeared in the petition that his appeal was no longer pending here, but that the-judgment of the district court had been affirmed in this court, because it will be seen that the mere words of the Constitution have not, for this purpose, announced any distinction between cases in which judgments have been already affirmed and cases yet pending on appeal. In either case, or indeed in any other conceivable case in which an offense less in degree than capital should be involved, the absolute right to bail must, upon this theory, be accorded to every prisoner; at least, so long as the phrase ‘all persons’ is sufficiently comprehensive to include him, he must continue to be ‘bailable by sufficient sureties.’ A construction leading to such consequences cannot be supposed to have been intended by the framers of the Constitution, and, in our opinion, ought not to be attributed iby us to that instrument.”

This case has been uniformly followed and approved by the Supreme Court of California, as may be seen by an examination of the following cases: Ex parte Hoge, 48 Cal. 5; Ex parte Smallman, 54 Cal. 36; Ex parte Brown, 68 Cal. 177, 8 Pac. 829.

The Constitution of Texas provided:

“All prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident.” Const, art. 1, § 11.

In Ex parte Schwartz, 2 Tex. App. 74, it was said :

“The constitutional provision guaranteeing bail, except in capital cases, relates to persons who are accused 'before trial and conviction.”

In Ex parte Heath, 227 Mo. 393, 126 S. W. 1031, the petitioner had been convicted of murder and sentenced to life imprisonment. After he had perfected his appeal, he applied for an order of supersedeas staying the execution of said sentence pending his appeal. The Constitution of Missouri provided:

- . “That all persons shall be bailable by sufficient sureties, except for capital offenses, when the proof is evident and the presumption is great.” Const, art 2, § 24.

The Supreme Court of that state in the opinion said:

“We think the construction put upon the Bill of Rights in California and Texas, in which the words ‘before conviction’ are omitted, as they are in our Constitution, is the correct one. We think the language of section 24, art. 2, of our Constitution clearly refers to the right of bail while yet there is room for presumption, and while the ‘proof evident’ is open to consideration by the court or judge to whom an application for bail is made, and not. to a time when presumptions and proofs are merged in a verdict of guilty. In 3 Amer. & Eng. Ency. Law (2d Ed.) p. 675, it is said: ‘ In the United States, after conviction, no constitutional right to bail exists, and the granting of bail rests in the sound discretion of the court.’ This would be the rule in this state Under our constitutional provision in the absence of a stat-tute, but as the Legislature, by section 2702, Rev. St. 1899, denies bail where the defendant appeals or prosecutes a writ of error from a sentence of death or imprisonment in the penitentiary for life, the courts no longer have the power to admit to bail after a conviction and sentence either of death or imprisonment in the penitentiary for life.”

For the reasons stated, we are of opinion that section 6105, Rev. Laws 1910, excepting from the right to bail, pending appeal, one under sentence of life imprisonment, does not infringe or impair any constitutional right or guaranty, and must govern the petitioner’s application, and it must be, and is accordingly, denied.

ARMSTRONG and MATSON, J.J., concur.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    PAUL WHITE v. STATE.
    No. A-3516
    Opinion Filed Oct. 23, 1920.

      (192 Pac. 822.)
    (Syllabus,)
    APPEAL AND ERROR — Time for Appeal in Misdemeanor Case— Necessity for Record Showing Extension of Time. Procedure Criminal (section 5991, Rev. Laws 1910) provides that: “In misdemeanor cases the appeal must .he taken within sixty days after the judgment is rendered: Provided, however, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days.” Held that, when an appeal in a misdemeanor case is not taken within the 60 days prescribed by the statute, the record or case-made must affirmatively show that the trial court, or judge thereof, for good cause shown, extended the time; otherwise this court is without jurisdiction to review the judgment, and such appeal will be dismissed.

      Appeal from County Court, Tulsa County; W. B. Williams, Judge.

    Paul White was convicted of pointing a pistol at another, and he appeals.
    Appeal dismissed, and cause remanded.

      Biddison & Campbell, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. .Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Paul White, was tried and convicted on an information charging that on the 29th day of August, 1918, he did unlawfully and wrongfully point a Colt revolver at another, to wit, William Schuttler, and in accordance with the verdict of the jury he was sentenced to be confined in the county jail for a period of three months and pay a fine of $50. From the judgment rendered on December 18, 1918, an appeal was attempted to be taken by filing in this court on March 13, 1919, a petition in error with case-made.

The Attorney General on July 28, 1920, filed a motion to dismiss the appeal in this^ case “for the reason that the same was not filed in this court within the time provided by law, and therefore the purported appeal in this case is a nullity, and this court is without authority to review the judgment.” To this motion no response has been filed.

The record shows that, when the judgment in this case was rendered, the following order was made:

“The C'ourt: The defendant will be given 60 days in which to make and serve case-made, ten days thereafter in which to suggest amendments thereto, cause to be settled upon five days’ notice in writing toy either party.”

—and that the only other order made is as follows:

“Comes now defendant by his attorneys, Biddison & Campbell, and requests 15 days’ additional to the time heretofore fixed by the court within which to prepare, serve and settle case-made in the above-entitled cause, and, it appearing to the court that good cause exists therefor, it is ordered that 15 days in addition to the time heretofore. granted and fixed by this court within which to perfect an appeal to the Criminal Court of Appeals of the state of Oklahoma is hereby granted, and that five days’ notice in addition thereto be given the county attorney for the settling and suggesting amendments to case-made. Dated this 5th day of July, A. D. 1919.”

Our Code of Criminal Procedure provides:

“In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered: Provided, however, that the trial court or judge may, for good cause shown, extend the time in which such' appeal may be taken not exceeding sixty days.” Section 5991, Rev. Laws 1910.

It is the uniform holding of this court that, when an appeal in a misdemeanor case is not taken within 60 days prescribed by the statute, the record or ease-made must affirmatively show that the trial court or judge thereof extended the time; otherwise this court is without jurisdiction to review the judgment, and such appeal will be dismissed. Richard v. State, 16 Okla. Cr. 162, 181 Pac. 520.

. It therefore follows that upon the record in this case the motion of the Attorney ‘General is well taken and should be sustained. It is so ordered, and the purported appeal herein dismissed, and the cause remanded.

ARMSTRONG and MATSON, JJ., concur.


author: PER CURIAM.

text:
    FRED MOBBS v. STATE.
    No. A-3524
    Opinion Filed Oct. 23, 1920.
    (192 Pac. 823.)
    1. TRIAL — Province of Jury — Weight and Credibility of Evidence. It is the exclusive province of the jury to reconcile the testimony, if possible, and to determine, where the evidence is conflicting, whom to believe and whom to disbelieve.
    2. APPEAL AND ERROR — 'Review—Sufficiency of Evidence. Where there is evidence in the record from which the jury could reasonably conclude that defendant is guilty of the crime charged, the judgment of conviction will not be disturbed by this court because of alleged insufficiency of the evidence even though the same be conflicting.
    3. APPEAL AND ERROR' — Harmless Error — Instructions. Before this court is authorized to reverse a judgment of conviction on the ground of the misdirection of the jury, it must appear from an examination of the entire record that the error complained of has probably resulted in a miscarriage of justice. . or constitutes a substantial violation of a constitutional or statutory right of defendant.

      Appeal from County Court, Atoka County; J. M. Humphreys, Judge.

    Fred Mobbs was convicted of the crime of pointing a weapon at another person, and sentenced to serve 90 days’ imprisonment in the county jail and to pay a fine of $250 and he appeals.
    Affirmed.
    C. McCasland, for plaintiff in error.
    /S. P. Freeling, Atty. Gen., and E. L. Fultpn, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an apepal from the county court of Atoka county, wherein on the 19th day of February 1919, defendant, Fred Mobbs, was convicted of the crime of unlawfully pointing a weapon at another person, and sentenced to serve a term of 90 days’ imprisonment in the county jail and to pay a fine of $250.

From such judgment of conviction defendant has appealed to this court, and assigns two grounds of reversal, the first of 'Which is that the evidence is not sufficient to warrant the verdict of the jury.

Counsel for plaintiff in error admit that the evidence is conflicting. The complaining witness and his wife both testify positively that defendant, who lived on an adjoining farm, to the complaining witness, came upon the premises of the complaining witness at about daybreak on the morning of the 17th of October, 1917, at a time when the complaining- witness and his brother were driving a hog belonging to defendant off the premises of complaining witness; that at such time defendant was carrying a loaded Winchester rifle, with which he shot the dog belonging to complaining witness, and then immediately leveled the Winchester rifle and pointed same at the complaining witness, with the remark that if he, complaining witness, said or did anything, he would be treated the same way.

Defendant admitted being upon the premises of complaining witness at that time and place, and admitted also shooting complaining witness’ dog, but denied pointing the Winchester rifle at the complaining witness. Defendant testified he shot the dog because the complaining witness was running his hog with the dog, and the dog was on top of the hog, biting and chewing the hog, at the time he shot the dog.

Counsel for defendant contend that because the brother of complaining witness did not see or hear the things that complaining witness and his wife heard and saw, it is unreasonable to believe that defendant is guilty of committing the crime of which he was convicted.

While there is some conflict between the testimony of complaining witness and his wife and that of defendant; and while the brother of complaining witness, who was engaged in the act of opening a gate for the purpose of driving the hog through claims that he did not see defendant point the weapon at his brother or hear him make any threats against his brother, it was the exclusive province of the jury to reconcile the testimony, if possible, and to determine, where the evidence is conflicting, whom to believe and whom to disbelieve.

As has heretofore been repeatedly held by this court, even though the evidence be conflicting, if there is evidence in the record from which the jury could reasonably conclude that defendant is guilty of the crime charged, the judgment of conviction will not be disturbed by this court because of apparent conflicts in the evidence.

It is also contended that the court erred in giving instruction No. 4. in substance to the effect that defendant would not be justified in assaulting complaining witness because of the fact that the complaining witness’ dog was tearing and biting the hog of defendant.

The instruction was not applicable to the defense interposed ; the defendant absolutely denying that he pointed the weapon at the complaining witness. There was no element of the defense of property interposed in this case by the evidence.

Section 6005, "Revised Laws 1910, among other things, provides that this court shall not reverse a judgment of conviction on the ground of the misdirection of the jury unless it appears from an examination of the entire record that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial'violation of a constitutional or statutory right.

In this case defendant armed himself with a deadly weapon, and proceeded to the premises of complaining witness, and, according to the state’s testimony, which the jury believed, proceeded to shoot and kill the dog of complaining witness, and thereupon pointed the Winchester rifle at the complaining witness and told him that if he opened his mouth he would do him the same way. There was no justification or excuse for the use of such force on that occasion, and defendant did not attempt to justify or excuse his act. He merely denied it.

We do not believe, therefore, that the instruction complained of in any way prejudiced the substantial rights of defendant in this case, or resulted in a miscarriage of justice.

It is the opinion of the court therefore that the judgment of conviction should be affirmed; and it is so ordered.


text:
    C. C. BLASDEL v. STATE.
    No. A-3791
    Opinion Filed Nov. 6, 1920.
    (192 Pac. 1106.)
    (Syllabus.)
    APPEAL AND ERROR — Dismissal—Appellant Becoming Fugitive From Justice. Where a defendant has been convicted and sentenced, and perfects an appeal, this court will not consider his appeal, unless the defendant is where he can be made to respond to any judgment or order which may be rendered or entered in the case, and where a defendant becomes a fugitive from justice pending the determination of his appeal, this court will on proper motion dismiss the appeal.

      Appeal from District Court, Garfield County; J. C. Robberts, Judge.

    C. C. Blasdel was convicted of grand larceny, and lie appeals.
    Appeal dismissed.

      H. G. SUirgis, for plaintiff in error.

      S, P. Freeling, Atty Gen., and Ernest F. Smith, Co. Atty., for the State.
   DOYLE, P. J.

Plaintiff in error, C. C. Blasdel, was charged jointly with Quincy Kygar, Y. W. Garrett, and J. V. Hollingshead with the theft of one Cadillac automobile, owned by one Eugene McConkey. A severance was granted and upon his trial plaintiff in error was convicted and sentenced to 12 years’ imprisonment in the penitentiary. From the judgment rendered December 3, 1919, an appeal was perfected by filing in this court on March 25, 1920, a petition in error with case-made.

On October 26, 1920, counsel for the state filed a motion to dismiss the appeal, for the reason that plaintiff in error is a fugitive from justice, that he has left and is now absent from the state without leave of court, and has thus violated the conditions of his, appeal bond. In support of said motion is the affidavit of C. E. Dewing, sheriff of Garfield county, in part as follows:

“That on or about the 10th day of September, 1920, a warrant was issued out of the court of J. V. Ratliffe, justice of the peace, upon an information or complaint charging the said plaintiff in error with the crime of -larceny of an automobile; that from the 10th day of September, 1920, down to the present time, he has made diligent search to find the said C. C. Blasdel, and accomplish his arrest on said warrant; that for the pas,t several months said C. C. Bias-del has been living in Osage, Osage county, and that the "'said C. E. Dewing, since receiving the above warrant, has communicated with the sheriff -of Osage county, and was informed by the sheriff of Osage county that the said C. C. Blasdel was not in the vicinity; that on or about the ,’2>8th day of September, 1920, affiant was informed that the said C. C. Blasdel was on his way to Wichita Falls, and the Burkburnett oil fields, and that the said C. C. Blasdel left going in that direction; that upon receiving the aforesaid information he sent a special deputy sheriff into Wichita Falls and Burkburnett oil fields to make a special endeavor to locate Blasdel in that vicinity, but was unable to find said C. C. Blasdel there.

“Affiant further states that according to his best information and belief the said C. C. Blasdel is now in old Mexico, and bases said belief upon the statement that came to him from friends of the said -C. C. Blasdel that the said C. C. Blasdel was in old Mexico; that the said Blasdel has pending several criminal cases against him on informations duly filed by the county attorney of Garfield county, charging him with larceny of automobiles; that on the 20th day of October, 1920, the district court of Garfield county, Oklahoma, sitting in regular session, called five separate and distinct cases, in which; the state of Oklahoma was prosecuting the said Blasdel for larceny of automobiles, and that in each and every case the said defendant Blasdel failed to appear, and after due proceedings were had with reference to the forfeiture of the bonds in said cases the district court of Garfield county forfeited the bonds of the said C. C. Blasdel in each and every of the five aforesaid cases, and that the county attorney of Garfield county, is at this time suing to recover upon the bonds so forfeited in said cases.

“Said C. E. Dewing further states that he has used various and other efforts to get into communication with the said Blasdel, but has been unable to do so.”

The uniform holding of this court! is that, where a defendant has been convicted and sentenced, and perfects an appeal, this court will not consider his appeal, unless the defendant is where he can b~. made to respond to any judgment or order which may be rendered or entered in the case and where the defendant becomes a fugitive from justice, pending the determination of his appeal, the appeal will be summarily dismissed. Boswell v. State, 14 Okla. Cr. 336, 170 Pac. 1175; Glover v. State, 12 Okla. Cr. 287, 155 Pac. 199. We are of the opinion that plaintiff in error has waived the right to have his appeal in this case considered and determined.

The appeal is therefore dismissed.

ABMSTRONG and MATSON, JJ., concur.


author: ARMSTRONG, J.

text:
    W. H. LAZENBY v. STATE.
    No. A-3357
    Opinion Filed Nov. 10, 1920.
    (192 Pac. 1103.)
    (Syllabus.)
    HOMICIDE — Bight to Complain of Error — Murder—Conviction for Manslaughter’. In a prosecution for murder when the court submits the issue, and the jury finds the defendant guilty of manslaughter in the first degree, in a case where the law and the facts make the crime murder, it is an' error in the defendant’s favor, of which he has no cause to complain.

      Appeal from District Court, Johnston County; J. H. Linebaugh, Judge.

    W. H. Lazenby was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.

      Cornelius Hardy, Ratliff & Looney, and P. B. H. Shearer, for plaintiff in error.

      S. P. Freeling, Atty. Gén., and Sam Hooker, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, W. H. Laz-enby, hereinafter called the defendant, was informed .against for the murder of Will Davis, convicted of manslaughter in the first degree, and sentenced to imprisonment in the Oklahoma State Penitentiary at McAlester for a term of four years. To reverse the judgment rendered, he .prosecutes this appeal.

The facts which the evidence tends to establish are as follows: The defendant and the deceased married sisters and with their families lived on their wives’ allotments about eight miles east of Tishomingo. On April 28, 1917, in the absence of the defendant, Will Davis and J. M. Sur-gener went to the home of the defendant and forcibly had sexual intercourse with his wife. Upon the day the outrage is alleged to have been perpetrated and immediately ppon the return of the defendant to his home, she informed him. On the 7th day of May, 1917, the defendant went to the home of the deceased, called him to the door, and said to him, “I am going to kill you,’’ and immediately shot him once while they were on the porch. Then the defendant followed him into the house and shot him three times more, inflicting wounds from which the deceased died the next day. The defendant then left the home of the deceased and went to the field where Surgener was plowing and shot him three times.

The only defense interposed toy the defendant or shown by any evidence in the case was that of insanity.

The trial court, against the objections of defendant, submitted the issue of manslaughter in the first degree in the instructions given to the] jury, and the defendant saved exceptions to said instructions.

It is contended that under the evidence the defendant should either have been convicted of murder or acquitted on the ground of insanity, and that no instructions for manslaughter in the first degree should have been given.

In Steeley v. State, 17 Okla. Cr. 252, 187 Pac. 821, it is said:

“We understand the law to be well settled that the unT lawful taking of human life, when done purposely, is murder, unless there is sufficient provocation, and the provocation must be a sufficient one to arouse anger and passion to a degree that prevents all premeditation and deliberation.

Bishop says:

“ ‘To determine whether or not the conduct of the person killed was a provocation reducing the homicide to manslaughter, the test is, not whether what he did is indictable but whether the law deems it calculated to excite passions beyond control. * * * Adultery is not an indictable offense; yet of all the provocations which can excite man to madness the law recognies it as the highest and strongest.

“ ‘If, in a particular case, there has been passion, but it was ended when the homicide occurred, it cannot reduce the killing to a lower degree.’ 2 Bishop’s New Crim. Law §§ 710, 711.

“Where there is time for deliberation, and where there is a purpose to kill, deliberately conceived and executed, the law refuses to mitigate the offense, and holds it to be murder, and where the defendant claimed that he shot deceased because the latter had debauched defendant’s wife and had taken her from the defendant, and was at the time of the homicide living in open adultery with her, even though the jury might believe this evidence, it would not justify the' defendant in lying in wait to shoot deceased.

“On this question the evidence in the case is conflicting. The law is merciful where a sudden passion arising from an adequate provocation impels a man to take human life, and then the offense is manslaughter in the first degree, only, and not murder, but in order to reduce the offense to this degree the reason of the defendant must at the time of the act be disturbed or obscured by passion to an extent that prevents premeditation and deliberation, and in cases of that kind, where the defendant is smarting under a provocation so recent and strong that he cannot be considered as being at the time capable of deliberation, the offense may be reduced to manslaughter in the first degree and the question is for the jury to determine.”

In the case of Irby v. State, 18 Okla. Cr. __, 197 Pac. 429, this court held that—

“In a prosecution for murder, when the court submits the issue, and the jury finds the defendant guilty of manslaughter in the first degree, in a case where the law and the facts make the crime murder, it is an error in the defendant’s favor, of which he has no cause to complain.”

Under the provisions of the Code of Criminal Procedure:

“The jury, may find the defendant guilty of any offense, the commission of which is necessarily included in ¡that with which he is charged, or of an attempt to commit the offense.” Section 5923, Rev. Laws 1910.

Some exceptions were taken during the course of the trial to the admission of evidence, hut we aré of the opinion that none of them were well taken. We have given careful examination and consideration to the record in this case and we find no error justifying a reversal.

The judgment is therefore affirmed.

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


author: MATSON, J.

text:
    HANEY LIDDELL v. STATE.
    No. A-3334
    Opinion Filed Nov. 12, 1920.
    (193 Pac. 52.)
    (Syllabus.)
    1. JURY — Officer Summoning Venire to be Qualified. It is essential to the fair and impartial administration of justice that an open or special venire of jurors should be summoned by an officer who is not disqualified by reason of interest, bias, or prejudice.
    2. SAME — Disqualification of Sheriff Who is State Witness. Section 5848, Revised Laws 1910, authorizes a challenge to the panel of an open or special venire of jurors on account of the bias of the officer who summoned such jury, upon any ground which would be good ground of challenge to a juror. Held, that where the sheriff who serves an open or special venire of jurors is a material witness for the state, and a challenge to the panel of such open or special venire is interposed by defendant on such ground, it is reversible and prejudicial error for the trial court to overrule such challenge in a cause where a substantial defense is made to the charge.
    3. HOMICIDE — Dying Declaration — Admissibility. Statements of material facts concerning the cause and circumstances of the homicide, made by the victim under the solemn conviction of impending death, are properly admitted as a dying declaration.
    4. SAME — Evidence to Discredit Declaration. A dying declaration may be discredited by showing that the declarant had been convicted of a felony or other crime involving moral turpitude.
    5. EVIDENCE — Transcript of Testimony on Examining Trial. Upon proper proof of a sufficient predicate therefor, the transcript of the testimony of a witness given in the examining trial may be read in evidence at the trial
    6. HOMICIDE — Evidence of Threats by Deceased — Instruction. An instruction, in substance that “proof of communicated and uncommunicated threats could not be considered as justifying the killing on the part of defendant, unless the threats themselves were accompanied by some overt act or demonstration on the part of deceased,” is disapproved. The court should have instructed that neither' communicated nor uncommunieated threats would tend to mitigate or justify a homicide, unless at the time of the killing deceased made some demonstration or overt act towards defendant which evidenced an intention to carry such threats into immediate execution, because in a self-defense case the jury is not limited in the consideration of proof of threats only to such threats as were themselves accompanied by some overt act or demonstration of hostility, but the jury may consider both communicated and uncommunicated threats, which are made by deceased against defendant to other parties for the purpose of showing the condition of deceased’s mind with reference to his feeling towards defendant, and also for the purpose of determining who was the probable aggressor in the difficulty.

      Appeal from District Court, Love County; W. F. Freeman, Judge.

    Haney Liddell was convicted of the crime of manslaughter in the first degree, and sentenced to serve a term of four years’ imprisonment in the state! penitentiary, and he appeals.
    Reversed and remanded.

      Graham & Logsdon, A. E. Waldon, and G. H. Culp, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   MATSON, J.

This is an appeal from the district court of Love county, wherein Haney Liddell was convicted of the crime of manslaughter in the first degree, and sentenced to serve a term of four years in the state penitentiary, for the killing of one T. M. Boyd, which occurred in the town of Thackerville, in said county, on or about the 25th day of April, 1917. In view of the disposition made of this appeal, we deem it unnecessary to narrate the facts and circumstances surrounding the commission of this alleged homicide.

The first error assigned as ground for reversal is the alleged erroneous action of the trial court in overruling the motion of defendant to quash the special venire of jurors summoned and returned for jury service by F. N. Smith, the sheriff of Love county, Okla., who was then and there a material witness for the state in the trial of this cause, and whose name as such witness was indorsed on the information. The record bearing upon this assignment is substantially as follows:

On the 5th day of November, 1917, the trial court made an order directing the sheriff of Love county to summon in this cause a special venire of 40 men to be and appear before the court on November 13, 1917,, at the hour of 9 o’clock a. m., for the reason that the regular venire of jurors drawn for that term was insufficient for the purpose of obtaining a jury in this cause. Thereafter, on the 13th of November, 1917, this cause came on regularly for trial, with all the necessary parties present, and after both sides had announced ready for trial, the selection of the jury to try the cause was begun, and after the regular panel of jurors had been exhausted, and before the special venire of 40 men summoned by the sheriff had been sworn, counsel for defendant interposed a motion in writing to quash said special venire upon two grounds: (1) Because said special venire was summoned by F. N. Smith, sheriff of Love county; the said F. N. Smith being a material witness for the state in said cause, and biased and prejudiced against defendant. (2) Because the said venire was not drawn from the body of the country; the said motion being duly verified by the oath of defendant. Counsel for the state filed an answer to said motion, which was in substance as follows: (1) The state of Oklahoma admits, that F. N. Smith is the sheriff of said county, and is a witness for the state, and did serve said process, as is alleged in said motion. (2) The state denies each and every other allegation contained in said motion; the said answer being duly verified by the county attorney of Love county. Whereupon, the trial court, after considering the motion and answer thereto, overruled'the said motion, to which action of the trial court counsel for defendant then and there excepted. Thereupon the special venire of 40 men summoned by the sheriff were duly sworn, and counsel for defendant further objected to the calling of any member of the special venire for jury service in the cause for the same reasons and objections urged as grounds in the motion to quash the panel, which general objection to each of said jurors was overruled by the court, to which action counsel for defendant excepted. Thereupon the selection of a jury to try said cause was proceeded with, and 9 members of the said special venire served by the sheriff became jurors and sat in the trial of the cause.

The question here presented is not one of first impression in this court. In the case of Koontz v. State, 10 Okla. Cr. 553, 139 Pac. 842, Ann. Cas. 1916A 689, it is held:

“It is essential to the fair and impartial administration of justice that an open or special venire should be summoned by an officer who is not disqualified by reason of interest, bias, or prejudice.”

Section 5848, Revised Laws 1910, provides:

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

In the Koontz Case construing section 5848, it is said:

“The language of the statute is so plain that no room is left for interpretation. It authorizes, a challenge to the panel, on account of the bias of the officer who summoned a jury on an open or special venire, upon what would be good ground of challenge to a juror for bias. If, then, a challenge for cause would have been sustained against a person called as a juror because he was a material witness for the state, a challenge would also lie upon the same ground to a panel summoned by him.”

We think it not necessary to support with the citation of authority the proposition that, if a juror was called to serve in the trial of a criminal case, who was challenged by defendant upon the ground that he was a material witness for the state in the prosecution, whose name was indorsed upon the indictment or information, and that fact should be admitted by the county attorney, and the challenge to such a juror should be overruled, over the exception of defendant's counsel, and said person should serve 'as a juror in the trial of the cause, the action of the trial court in overruling the challenge and permitting the said juror to serve under such circumstances would be clearly prejudicial to the substantial rights of defendant, and such action of the trial court would be reversible error, and not harmless in any cause where a substantial defense was interposed to the charge. It is absolutely inconsistent with the administration of justice that a jury composed of witnesses against a¡ defendant can render a fair and impartial verdict. The impartiality of the jury goes to the very foundation of the accused’s liberty. Without an impartial jury, the accused cannot be accorded that fair trial guaranteed to him by the Constitution and laws of this state. It requires the unanimous consent of the jury to return a verdict in a felony cause, and if the trial court should permit a witness for the state to sit in the trial of one charged with a felony there could, under such circumstances, be no fair and impartial trial, because an impartial jury is not had by 11 impartial men and 1 shown to be prejudiced against the defendant’s cause by reason of knowledge of material facts against,him. It follows, therefore, that if a witness for the state may not serve as a juror, when challenged by defendant, such a witness, by reason of the statute above set out, cannot serve a special oh open venire of jurors to serve in the trial of a criminal cause in which he is a witness, and that, when such fact is made to appear to the trial court upon a challenge to the panel of an open or special venire, it would be a denial of a statutory right and safeguard for the trial court to overrule such challenge.

It is apparent that in the service of an open' or special venire the officer would have the power to exercise his judgment and discretion in the service and summoning of such jurors, and the fact that the officer might exercise such power to the detriment of defendant is a sufficient reason for the enactment of section 5848, supra. Under such statute, witness for the state may not serve an open or special venire of jurors even though he he the sheriff of the county, and a special or open venire served by such a disqualified officer should be quashed upon proper motion. Likewise should a special or open venire served by a witness for defendant be quashed upon proper motion by the state. 'This has become the established practice in this jurisdiction since the rule was first announced in the case of Koontz v. State, supra,; the opinion in that case having been published long prior to the time of the trial of this cause. The doctrine established in the Koontz Case has been adhered to in the recent case of Shepherd v. State, 17 Okla. Cr. 630, 192 Pac. 235, and in the opinion of this court, it is essential, to the fair and impartial administration of justice that .an open or special venire of jurors must be summoned by one who is not a witness against the party interposing, the challenge to such a panel, and where a substantial defense is made to the charge, as was done in this case, it is reversible and prejudicial error to overrule a challenge by defendant to the panel of an open or special venire served by an officer or person who is a witness for the state.

In this case it was admitted in the answer to the motion to quash the panel that the sheriff who served the same was a witness for the state, and the record shows that the. said officer’s name was indorsed upon the information filed in this cause, and that he testified as a witness for the state both in chief and in rebuttal. For the reasons stated, the trial court erred, to the substantial prejudice of defendant in this cause, in overruling defendant’s motion to quash the panel of the special venire of jurors served by the sheriff.

The deceased signed a written dying declaration, por-tiohs of which were admitted in evidence over the objection and exception of defendant, and it is contended in this court that the trial court erred in admitting certain portions of deceased’s dying declaration. The question of the admissibility of this evidence is a matter which will necessarily arise upon a retrial of this cause.

“Dying declarations are statements of material facts concerning the cause and circumstances of the homicide, made by the victim under the solemn conviction of impending death.” Addington v. State, 8 Okla. Cr. 703, 130 Pac. 315.

We have carefully examined the portions of the dying declaration admitted, and, under the definition of dying declaration above given, the conclusion is reached that the trial court committed no error prejudicial to defendant in the instant case in admitting the portions of the dying declaration of which defendant here complains.

During the progress of the trial, defendant offered to prove, in order to affect the credibility of the dying declaration of deceased, that deceased, about one year previous to his death, had been convicted in the county court of Cook county, Tex., of the crime of keeping a house of ill fame, and for the purpose of establishing such conviction the record thereof was offered in evidence, and upon objection by the state was excluded, to which action of the trial court counsel for defendant then and there excepted. We think that defendant had the right to impeach or discredit the dying declaration by showing that deceased had been convicted of a felony or of a misdemeanor involving moral turpitude, and that the record of the court .showing such conviction was a proper method of proof thereof. Professor Wigmore, in his treatise on Evidence, in section 1446. states in respect to the dying declarations that “the declar-ant is open to impeachment and discrediting in the same way as other witnesses so far as such a process is feasible,” and further that a showing of conviction of crime is one of the feasible methods by which the declarant may be impeached. The reason for such rule seems to be that the proof of the conviction of declarant of such a crime by producing the record thereof raises no collateral of fact, and presents nothing for further inquiry; the record of conviction being conclusive evidence of guilt of the offense. In the case of State v. Baldwin et al., 15 Wash. 45 Pac. 650, the Supreme Court of Washington say:

“There was some testimony to show that the deceased had been convicted of a felony, and appellants contend that for this reason the dying declaration should not have been received, as it would have been inadmissible under the common-law rule. But this is because such person could not have been a competent witness if alive. In this state the statute has changed the rule (section 1647, 2 Hill’s Code), and the deceased would have been a competent witness, had he been living; the conviction having been for stealing cattle. The conviction could be shown for the purpose of affecting his credibility. As the statute has changed the rule admitting such testimony by a living witness, the same results should follow as to a dying declaration, for the same proof of conviction can be made to affect the credibility of the declaration, and it was done in this instance.”

A conviction of keeping a house of ill fame is for an offense involving moral turpitude, and, had the declarant been living, there would have been no question about the right of counsel for defendant to cross-examine him relative to such a conviction for the purpose of discrediting his testimony, and, should such conviction be denied, evidence thereof was proper by way of impeachment. We are of opinion, therefore, that the trial court erred in refusing to permit defendant in the instant case, for the purpose of affecting the credibility of the dying declaration, to show that deceased had been convicted of the crime of keeping a house of ill fame in the state of Texas about one year previous. to his death.

It is also contended that the trial court erred in permitting the state to read the transcript of the testimony of G. L. James given at the examining trial, for the reason that no sufficient predicate of absence from the jurisdiction of the court was laid for the introduction of such evidence. We think there is no merit in this contention, as the evidence clearly showed that the witness was beyond the jurisdiction of the trial court, and had been absent from the state for a considerable length of time, and that his attendance upon the court could not be obtained by compulsory process.

Other alleged errors are relied upon as grounds for the reversal of this judgment, particularly certain paragraphs of the court’s instruction to the jury relative to certain alleged threats made upon the life of defendant by deceased.

Paragraph 7 is open to the criticism lodged against it by counsel for defendant, and apparently said paragraph of the change conflicting with other portions ther.eof on the subject of communicated) land uncommunicated threats, and the charge as a whole, therefore, tended in our opinion to be somewhat confusing and misleading. Paragraph 7 should not have been given in the form it was read to the jury. In said paragraph the trial court told the jury that—

“Proof of communicated and uncommunicated threats could not be considered as justifying the killing , on the part of defendant, unless the threats themselves were accompanied 'by some overt act or demonstration on the part of deceased.”

Apparently it was the intention of the trial court to tell the jury that neither communicated nor uncommun-icated threats would mitigate or justify a homicide, unless at the time of the killing deceased made some demonstration or overt act towards defendant which evidenced an intention to carry such threats into execution. The instruction as given, however, would tend to limit the consideration of proof of threats only to threats made directly to defendant himself, and then only as to such of those threats which were accompanied ,by some overt act or demonstration of hostility. Apparently such is not the law, but the jury may consider both communicated and uncommunicated threats, which of course are made against defendant to other parties, for the purpose of showing the condition of deceased’s mind with reference to his feelings toward defendant, and also for the purpose of determining who was ,'the probable aggressor in the difficulty, where the plea of ’ self-defense is interposed, and there is evidence reasonably tending to support the same.

Other matters called to the attention of the court in the brief of counsel representing defendant, and relied upon as grounds for reversal, are considered to be without prejudice to the substantial rights of defendant. We have in this opinion covered those errors committed by the trial court which we deem to have been prejudicial to the substantial rights of defendant, sufficient to require the reversal of this judgment of conviction; also we have treated of other alleged errors respecting matters of procedure which are likely to arise upon a retrial of this case.

Upon a careful consideration of the entire record, it is the opinion of the court that the judgment of conviction of manslaughter rendered against the defendant, Haney Liddell, in the district court of Love county, in which the defendant was sentenced to serve a term of four years’ imprisonment in the state penitentiary for the killing of one T. M. Boyd, be reversed, and the cause remanded for a new trial; and it is so ordered.

DOYLE, P. J., and ARMSTRONG, J., concur.


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    B. A. HELSEY v. STATE.
    No. A-3343
    Opinion Filed Nov. 16, 1920.
    (193 Pac. 50.)
    (Syllabus.)
    FALSE PRETENSES — Elements of Offense. In order to sustain the ' conviction for obtaining money under false pretenses, it must be shown that there was a false representation as to an existing fact or past event, relied upon by the party defrauded as true, and such false representation must be the motive cause which induced the owner to part with his property.

      Appeal from District Court, Ottawa County; Preston S. Davis, Judge.

    B. A. Helsey was convicted of the offense of obtaining money by false pretenses, and he appeals.
    Reversed and remanded.

      Clyde Morsey, for plaintiff in error.

      S. P. Freeling-, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, B. A. Hel-sey, hereinafter called defendant, was by information charged with the offense of obtaining money from Lloyd Henry by false pretenses, convicted, and sentenced to imprisonment in the State Penitentiary at McAlester for a term of three years. To reverse the judgment rendered, he prosecutes this appeal.

The material uncontradicted evidence is as follows: That the defendant went to the home of Lloyd Henry, which is situated four miles from Miami, Ottawa county, stated to him, that he (defendant) was representing the Menke Grocery Company of Kansas City, exhibited to him samples of groceries, stated the prices of same, and induced the said Henry to give him, the defendant, a check for groceries to be shipped to the said Henry by the said company, and which he promised would reach the said Henry in five or six days, for which said groceries said Henry gave the defendant a check on the bank of Miami for $4.95, which defendant cashed, and applied the money so received to his own use, and did not send the order for the said groceries to said company to be filled as he stated he would. That the said Henry bought the said groceries “because the prices were reasonable, and he believed the company responsible.” There was also undenied evidence that the ' defendant, about the same time had transactions with sev'eral other persons identical with the transaction had with said Henry, and that in each instance he appropriated to his own use the cash or checks so received from said several transactions. That defendant, prior to having said transactions with said Henry, went to the place of business of said Menke Grocery Company, and there saw officials of said company, stated to them that he had heretofore been a salesman and desired to sell groceries for said company, and in consequence was furnished by said company 'blank orders on said company for goods, samples of the goods he was to sell, the prices he was to sell them for, and furnished a book entitled “Menke’s Salesmen’s Companion,” which in great detail instructed how a salesman was, to conduct business in taking orders, described the goods to be sold, and stated therein that the articles in . “Menke’s Salesmen’s Companion are for the salesman who : sells from our house, and should any party or parties, firm or corporation be found infringing such or copying any of these articles, they will be prosecuted,” and promised defendant to fill all regular orders that he might send to them, Menke Grocery Company. It was also testified by the secretary of the company that the company would have .filled any orders sent in by the defendant that were regular, ’ibut that defendant was not the agent of and the company not responsible for his acts. It was also shown by the evidence that, after the defendant had the transaction herein stated with the said Henry, he was arrested in Texas, and while in the police station at Ft. Worth stated that he was guilty of “jipping” the farmers out of their money, and he was going to plead guilty.

The defendant demurred to the evidence upon the ground that it was insufficient to sustain conviction for obtaining money by false pretenses. The court overruled the demurrer, and the defendant excepted. Timely motion for a new trial was made by the defendant, which was overruled, and exceptions saved. The defendant in his brief urges only one error:

“That the evidenlce is insufficient to sustain the conviction of the defendant, and that the court committed re-versi'ble error in refusing to instruct the jury to acquit the defendant."

It is earnestly insisted on the part of the state that the evidence shows that the defendant was not authorized to represent the Menke Grocery Company in making said transaction with Henry, was not its agent, and that, when defendant stated to Henry that he was representing the said company, he falsely represented as to an existing fact upon which Henry relied. With this contention we cannot agree. The evidence shows, that the defendant had authority to represent said company as a special agent, to make said deal with Henry in the manner in which he did. The evidence shows that the company had authorized the said defendant to take orders, and had furnished him with blank order forms, samples of goods he was to sell, the prices thereof, and directed him to follow the instructions contained in Menke’s Salesmen’s Companion, a copy of which was delivered to the defendant at the time.

, It is true that the secretary of the company testified that the defendant was not an agent of said company, and the company was not responsible for his acts, but this testimony does not in any way tend to show that the defendant was not authorized to represent said company in making the transaction he did with Henry.

That the defendant in making the transaction with Henry hereinbefore set out was guilty of practicing a confidence game upon Henry in obtaining said check for $4 95 is certainly true; but, after a most careful' consideration of all the evidence germane to the issue involved, we are unable to see that in perpetrating said fraud upon Henry he did so by falsely representing as to any existing fact or past event.

It has been repeatedly held by this court that there must be a false representation as to an existing fact or past event proven in order to sustain a conviction for obtaining money under false pretenses. Taylor v. Territory, 2 Okla. Cr. 1, 99 Pac. 628; Jones v. State, 9 Okla. Cr. 621, 132 Pac. 914; Wharton’s Criminal Law, vol. 2 (11th Ed.) § § 1397-1437.

The doctrine that the misrepresentation must be of a past event or fact having present existence, and not a misrepresentation of something to take place in the future, finds support in the following authorities: State v. De Lay, 93 Mo. 98, 5 S. W. 607; 2 Bishop’s Criminal Law, section —, and authorities there cited; Hurst v. State, 39 Tex. Cr. R. 196, 45 S. W. 573; State v. Tanner, 22 N. M. 493, 164 Pac. 821, L. R. A. 1917E, 849; People v. Cerrato, 99 Misc. Rep. 256, 165 N. Y. S. 694; In re Snyder, Petitioner, 17 Kan. 542.

We are of the opinion that the evidence germane to the issue involved in this appeal is entirely insufficient to show beyond a reasonable doubt that the defendant was guilty of the offense of which he was convicted, and hence the court committed reversible error in refusing to advise the jury to acquit the defendant, because if the evidence proves the defendant guilty of an offense it is materially different from that charged and of which he was convicted.

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

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


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    J. E. W. WILLIAMS v. STATE.
    No. A-3570
    Opinion Filed Nov. 22, 1920.
    (193 Pac. 432.)
    (Syllabus.)
    1. APPEAL AND ERROR — Power to Reduce Sentence. Under Code of Criminal Procedure (section 6003, Rev. Laws 1910), this court, in the furtherance of justice,. has the power to modify any judgment appealed from by reducing the sentence.
    2. INTOXICATING LIQUORS — Unlawful Conveyance — Reduction of Penalty. In a prosecution for unlawfully conveying intoxicating liquor, the evidence considered, and held sufficient to warrant a verdict of guilty as charged, but insufficient under the facts and circumstances of the ease to support a verdict assessing the maximum penalty, and the judgment and sentence is modified to 30 days’ confinement and a fine of $100.

      Appeal from County Court, McIntosh County; Horace B. Reubelt, Judge.

    J. E. W. Williams, was convicted of a violation of the prohibitory liquor law and he appeals.
    Affirmed, as modified.

      C. H. Tully, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall and E. L. Fulton, Asst. Attys. Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment of conviction for unlawfully conveying intoxicating liquor, the punishment having been assessed at imprisonment for 6 months in the county jail and a fine of $500. The information in substance charged that in McIntosh county, on or about the 14th day of November, 1918, J. E. W. Williams, did unlawfully convey 12 quarts of whisky from the Mis-isouri, Kansas & Texas Railway depot in Eufaula to the 'room in the rear of the Colored Methodist Church in Eufaula. For the state, T. J. Duncan, deputy sheriff, testified:

“I was at the depot, and saw the defendant' get off the train. He went towards the Colored Church, and was carrying a leather grip. Deputy Sheriff Waddle was there, and we followed and caught up with him. I told him we had been informed that he was bringing in whisky, and asked him if he had any. He said he would not allow whisky about him at all, much less bring it in with him to his home. We went on together to the church. There we had quite a little conversation. He said he was a minister of the gospel, and was telling us the reason he would not dabble with whisky, and that everybody knew that he would not do anything like that. I said that nothing would do me but to see the inside of the grip. He said: ‘All right; wait a minute; what is the least penalty for a case of this kind?’ I told him I didn’t know exactly, but thirty-fifty may be. He opened the grip, and it contained 12 quarts- of whisky in bottles. Mr. Waddle carried the grip, and with the defendant we proceeded to the county jail.”

The testimony of Deputy Sheriff Waddle was in substance the same. Both witnesses identified a quart bottle of whisky and it was introduced as evidence, and both testified that they did not know what disposition was made of the other eleven bottles. The state rested, and the defendant moved the court to direct a verdfct of acquittal, which was overruled.

The defendant as .a witness in his own behalf testified:

“I am a minister, and have been for 45 years. I have lived in Oklahoma 26 years. As I was leaving Eufaula on the 12th, Sheriff Waddle came to me and said he had a re- . plevin for our piano. He asked me when I would be back, ‘and I said, ‘Wednesday or Thursday morning.’ I went up to Vinita, and saw Congressman Davenport on some business. He said he would turn the business over to Congressman Chandler. I came back to Muskogee, and stayed at the undertaking establishment that night. The next morning I was at the depot to take the train, and was conversing with Mr. Austin and Mr. Wiggins. A man came up and asked Ts this Rev. Williams, of Eufaula?’ I said, ‘Yes; but theer are two Rev. Williams there.’ He asked if I was the one that' was pastor of the Methodist Church. I said, ‘Yes.’ He said, T want you to do me a favor.’ I said, “That depends upon what it is.’ He said, T want you to carry this suit case down there.’ I said, ‘All right;’ and he said there would be some one there to take the suit case from me. Arriving here, I looked out and saw the officer. I was sure he came down to replevin the piano. On the way from the train the officers asked me about the grip. I told them I did not know what was in iit. When they opened it and found it was whisky I was hurt so bad I did ask them what was the penalty. I told them I did not know ift was whisky; that there is not a man in the 26 years I have . been here who knows any wrong against me about whisky or any other thing. Í have been trying to get Mr. Ledbetter to locate the man who gave it to me; I understand that on account of my labor on the Council of Defense it was done to get even with me.”

The first question in the case is whether or not the evidence is legally sufficient to sustain conviction.

The credibility of the witnesses and the weight to be' accorded their testimony were questions for the jury to determine, and we are of opinion that the verdict, in so far as it responds to the issue of guilty or not guilty, is sustained by the evidence.

One of the grounds of the motion for new trial and assigned as error is: “That the maximum punishment assessed by the jury in their verdict is excessive, and appears to have been the result of passion and prejudice.”

Our Code of 'Criminal Procedure provides:

“The appellate court may reverse, affirm, or modify the judgment appealed from.” Sec. 6003, Rev.. Laws.)

It seems to have been the intention of the Legislature to vest this court with power to modify any judgment appealed from by reducing the sentence when such a course would be in furtherance of justice /and conduce to; the humane administration of the law. However, this power should not be exercised unless it is apparent that injustice has been done. Hall v. State, 7 Okla. Cr. 126, 122 Pac. 729; Fritz v. State, 8 Okla. Cr. 342, 128 Pac. 170; Johnson v. State, 12 Okla. Cr. 260, 154 Pac. 1004; Anthony v. State, 13 Okla. Cr. 125, 163 Pac. 548; Westbrook v. State, 14 Okla. Cr. 423, 172 Pac. 464; Chambers v. State, 16 Okla. Cr. 238, 182 Pac. 714.

The record in this case cannot be read with fairness and justice to all and .avoid the conclusion that, although the evidence is sufficient to sustain the conviction, yet the punishment assessed is out of proportion to the offense proven, and is unduly extreme and excessive.

For this reason the judgment of the lower court will be modified to the extent that the sentence of six months’ imprisonment and a fine of $500 will be changed to confinement in the county jail for 30 days and a fine of $100. This fine, if not paid, to be satisfied as by law provided, and, as thus modified, the judgment is affirmed.

ARMSTRONG and MAjTSON, JJ., concur.


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    E. S. SARTEN v. STATE.
    No. A-3374
    Opinion Filed Dec. 11, 1920.
    (193 Pac. 743.)
    (Syllabus.)
    1. APPEAL AND ERROR — Time for Appeal. ' In felony cases, the appeal must be taken within six months after the judgment was rendered.
    2. SAME — Notice of Appeal and Summons in Error. Within the time allowed for taking the appeal, notices of appeal must be served upon the clerk of the trial court and the county attorney (as provided in section 5992, Rev. Daws 1910), or else summons in error must be served upon the Attorney General, or its issuance and service waived by said officer (as provided in section 5997, Rev. Laws 1910), before this court can acquire jurisdiction of an appeal in a criminal cause.

      Appeal from District Court, Oklahoma County; Frank Mathetos, Assigned Judge.

    E. S. Sartén was convicted of the crime of maintaining a gambling nuisance and sentenced to pay a fine of $500, and he appeals.
    Appeal dismissed, and cause remanded with direction to enforce- the judgment.

      A. F. Decker, for plaintiff in error.
    'The Attorney General, for the State.
   PER CURIAM.

This is an attempted appeal from the district court of 'Oklahoma county, from a judgment rendered in said court on the 17th day of November, 1917, against defendant, E. S. Sartén, on a verdict finding defendant guilty of maintaining a gambling nuisance; the court assessing the punishment at a fine of $500.

Petition in error with transcript of the record attached, and a purported case-made (which had never been attested by the clerk and filed with the papers in the case in the office of, the clerk of the trial court, as required by section 5242, Revised Laws 1910), were filed in this court on the 27th day of May, 1918. The conviction in this case was for a felony.

Section 5991, Revised Laws 1910, among other things, provides:

“In felony cases the appeal must be taken within six months after the judgment is rendered.”

The judgment having been rendered on the 17th day of November, 1917, and the attempted appeal not having been lodged in this court until the 27th day of May, 1918, more than six months thereafter, this court never acquired jurisdiction thereof. Bethel v. State, 7 Okla. Cr. 36, 121 Pac. 792; Musick v. State, 5 Okla. Cr. 608, 115 Pac. 377; Self v. State, 8 Okla. Cr. 70, 126 Pac. 582.

The record filed in this court also fails to disclose that plaintiff in error, within the time allowed for. taking the appeal, served any notices of appeal either upon the clerk of the trial court or the county attorney of Oklahoma county, as provided in section 5992, Revised Laws 1910; nor does it appear that any summons in error was ever issued in behalf of plaintiff in error and' served upon the Attorney General, or that there was any waiver of the issuance and service of a summons in error by such officer, as provided by section 5997, Revised Laws 1910.

Either the method provided in section 5992, supra, must be followed, or else summons in error must be served upon the Attorney General, or its issuance and service waived by said officer, as provided in section 5997, supra, before this'court can acquire jurisdiction of an appeal in a criminal cause. Mann v. State, 17 Okla. Cr. 703, 186 Pac. 1098; Robinson v. State, 17 Okla. Cr. 717, 189 Pac. 763.

For the reasons stated, the appeal .is dismissed, and the cause remanded to the trial court, with directions to enforce the judgment. Mandate forthwith.


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    JOHN R. EMERSON v. STATE.
    No. A-3615
    Opinion Filed Dec. 11, 1920.
    (193 Pac. 743.)
    (Syllabus.)
    EVIDENCE — Evidence of Other Offenses. Evidence of an offense other than the one charged is admissible only when it tends to prove the offense charged. To be competent and admissible, it must have some logical connection with the offense charged.

      Appeal from District Court, Logan County; Arthur R. Swank, Judge.

    John R. Emerson was convictéd of assault with intent to kill, and he appeals.
    Reversed, and a new trial awarded.

      Ben F. Garrett, H. C. Olds, and Geo. W. Carry, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall and E. L. Fulton, Asst. Attys. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, John R. Emerson, was convicted of assault with intent to kill and his punishment fixed at eight years’ imprisonment in the penitentiary. He has appealed from the judgment rendered upon such conviction.

The information in substance charges that in Logan county, on the 19th day of January, 1919, the defendant, John R. Emerson, did assault and shoot at one H. M. Har-demon with the felonious intent to kill said Hardemon.

The evidence shows that the defendant Emerson, a colored man, conducted a store at the town of Iconium; the complaining witness Hardemon lived nearby? that the difficulty arose in front of the defendant’s store, and in the struggle the defendant was shot in the hand. There is a direct conflict in the testimony as to who was the aggressor. The complaining witness testified that the defendant without provocation drew his revolver and shot at him; that during the struggle other shots were fired.

As a witness in his own behalf, the defendant' testified that Hardemon, the complaining witness, was the aggressor at all times, and in the struggle shot the defendant through the hand.

In rebuttal the state called Ed. Robertson, sheriff of Logan county, as a witness, who testified that he remembered the occasion when the defendant was charged with haying received stolen property, and that witness found said stolen property at the defendant’s store in Iconium. This evidence was all admitted against the defendant’s objection and exception.

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

“We cannot help tout feel that the admission of this testimony was prejudicial error. The sole and only purpose of the testimony could have been to affect the credibility of plaintiff in error.

“It was not proper rebuttal testimony. It did not tend to prove or disprove any issue in the case, and it was incompetent upon any theory.

“Considering’ the closeness of the testimony, we feel that an injustice was done plaintiff in error by the admission of this testimony, and that the judgment of the trial court should be reversed.”

Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish a common scheme or plan, embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, or to connect the defendant with the commission of the crime charged. Koontz v. State, 10 Okla. Cr. 553, 139 Pac. 842, Ann. Cas. 1916A, 689.

As a general rule, subject to exceptions,, when a defendant is on trial for a crime, his participation in the commission of another crime wholly unconnected with that for which he is on trial cannot be admitted in evidence against him, and the evidence here admitted against defendant’s objection and exception does not fall within any exception to the general rule.

For the error noted, the judgment is reversed, and a new trial awarded.

ARMSTRONG and MATSON, JJ., concur.


text:
    CHARLES DAVIS v. STATE.
    No. A-3473
    Opinion Filed Dec. 11, 1920.
    (193 Pac. 745.)
    (Syllabus.)
    1. RECEIVING STOLEN GOODS — Guilty Knowledge — Proof. In order to establish the prime of receiving stolen property, it is essential that the state, either by direct or circumstantial evidence, prove guilty knowledge on the part of defendant at the time he received such property that the same was stolen.

      2. EVIDENCE — Circumstantial Evidence — Guilty Knowledge. Where the state relies wholly on circumstantial evidence to prove guilty knowledge, the circumstances relied upon, when considered together, must point clearly and conclusively to the guilt of defendant and exclude every reasonable hypothesis other than that of guilt.
    3. EVIDENCE — Sufficiency for Conviction. The appellate court cannot safely permit a judgment of conviction to stand unre-versed, where one material element of the offense rests alone upon evidence which amounts merely to suppositions or suspicions of guilt.

      Appeal from, Superior Court, Creek County; Gaylord R. Wilcox, Judge.

    Charles Davis was convicted of the crime of receiving stolen property, and he appeals.
    Reversed and cause remanded for a new trial.

      L. J. Marks and Cress & St. Clair, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   MATSON, J.

Charles Davis was convicted of the crime of receiving stolen property in the superior court of Creek county, and sentenced to serve a term of one year’s imprisonment in the state penitentiary. From a judgment of conviction rendered against him on the 16th day of May, 1918, defendant has appealed to this court, and in his petition in error assigns several grounds of alleged error for reversal of said judgment, mainly relying upon the insufficiency of the evidence to sustain the conviction.

The defendant was convicted of buying and receiving a certain Ford automobile, of the value of $300, which had previously been stolen in Lincoln county, Okla., from one Bryan Robinson; defendant knowing at the time he purchased and received said automobile that the same had been stolen.

The Attorney General has filed a confession in error,' the substance of which is as follows:

“It is established that the car in question was stolen, and that the plaintiff in error purchased the same; but we are unable to find in the record any testimony tending to show that plaintiff in error at the time he purchased the car in question had any knowledge or information that the car was, stolen. It is our judgment that the evidence is not sufficient to justify or uphold the verdict or judgment of the court.”

The court has carefully examined the transcript of the evidence in this case, and the conclusion is reached that the confession of error by the Attorney General is well founded.

In order to establish the crime of receiving stolen property, it is essential that the state, by either direct or circumstantial evidence, prove guilty knowledge on the ¡part of defendant, at the time he received such property, that the same was stolen. 17 R. C. L. 85.

The state’s case in chief wholly fails to establish any such guilty knowledge on the part of defendant. All that was proved on the part of the state was that the car was stolen, as alleged in the information, and that the same was found in the possession of defendant some 10 days thereafter. The evidence on the part of the s,tate discloses that, on the day after the car was stolen, a person other than defendant or the true owner was in possession thereof, and made some repairs or alterations on the car; 'but the state’s evidence fails in any way to connect defendant with such person who was presumably the thief. The state’s evidence further disclos.es that defendant was found in the possession of the car at Topeka, Kan., where he was arrested, waived a requisition, and drove the car back with certain officers of Washington county, Okla., to the city of Bartlesville, Okla., where the car was afterwards identified by Bryan Robinson and returned to him.

The defendant took the witness stand in his own behalf, and the evidence is undisputed that defendant purchased the car in the town of Oilton, Okla., at least 10 days after the same was proven to have been stolen; that the purchase was made in a public street in the town of Oilton from a person who gave his name as George Miller, and who said that he was expecting to have to join the army and would have no further use for the car and wanted to return before joining the army to visit his relatives in the sfate of Pennsylvania; that, after having agreed upon $350 as the purchase price for said car, defendant and the said Miller drove the car to defendant’s residence in the south part of Drumrighit, Okla., where defendant procured additional money with which to pay for same and then proceeded to the office of a justice of the peace in the city of Drumright, where the said justice, at the request of defendant, indited a bill of sale for said car, which was duly signed and witnessed in the presence of said justice, and certain money was paid by defendant to the said Miller in the presence of the justice; that, after purchasing the car, defendant drove it to his home, and there kept it for a period of 2 or 3 days in full view of the public highway, and during that time defendant drove said car upon the public streets of Drumright, and made no effort whatever to conceal same; that, on the Monday following Friday on which defendant purchased said alleged stolen car, defendant and his wife started on a trip to Emmett, Kan., to visit some relatives of his wife, and in going to said place defendant drove over the public highways of the states of Oklahoma and Kansas, until he reached the city of Topeka where he stopped to spend a short time with his wife’s brother, and where he was arrested and the car taken from him. Defendant testified that he did not know the car had been stolen; that he paid $350 therefor, which was .all the car was worth; and that there was no conduct on the part of the said Miller which led defendant to believe that at the time he purchased said car the same had been previously stolen.

The cross-examination of defendant elicited certain suspicious circumstances showing that, had defendant made a more thorough examination into the ownership of the car, he could have in time discovered, perhaps, that the person who gave his name as Miller was not the true owner of the car.

However, the court does not deem the inferences alone arising from lack of precaution to determine ownership sufficient by themselves to establish guilty knowledge on defendant’s part at the time the car was received by him, In purchasing and taking possession of the car in question, defendant acted openly and publicly, without any attempt at concealment, so far as this, record discloses, and there is no fact or circumstance, other than inferences arising from such lack of precaution, shown which in any way directly tends to establish that defendant knew at the time that he was purchasing a stolen car. It is incumbent upon the state to prove every essential element of the crime by evidence.beyond a reasonable doubt, and a conviction based upon circumstances which raise merely suspicions of guilt should not be allowed to stand.

In this case, the state relied wholly on circumstantial evidence to prove guilty knowledge on the part of defendant, and it is a well-established rule of law that, where circumstantial evidence alone is relied upon, the circumstances when considered together must point clearly and conclusively to the guilt of defendant and exclude every reasonable hypothesis other than that of guilt. Sies v. State, 6 Okla. Cr. 142, 117 Pac. 504; Nash v. State, 8 Okla. Cr. 1, 126 Pac. 260.

In this case, the inferences properly arising from defendant’s lack of precaution in investigating whether or not the seller was the true owner of the car, considered together with defendant’s conduct immediately after he purchased the car, cannot be said to point unerringly and conclusively to the guilt of defendant and to exclude every other reasonable hypothesis than that of guilt; and for such reasons it is the opinion of this court that the state has failed to establish guilty knowledge on the part of defendant by evidence sufficient to sustain the verdict and judgment.

This case was not tried as closely as it should have 'been on the part of the state. Apparently, other witnesses were available to the prosecution had their attendance been sought, who, perhaps, were in possession of evidence which, if defendant is guilty of the crime charged, could more clearly establish that fact. For such reason, it is the opinion of this court that this cause should not be dismissed, but that the judgment should be reversed and the cause remanded to the trial court, with directions to grant defendant a new trial, upon which trial the state may be in position to produce other evidence than that adduced at this trial, such as will fully meet the requirements of law regarding circumstantial evidence and establish the element of guilty knowledge on the part of defendant to that extent required by the law. This court cannot safely permit a judgment of conviction to stand unreversed, where one material element of the offense rests alone upon evidence which amounts merely to suppositions or suspicions of guilt.

Judgment reversed, and the cause remanded for a new trial.

DOYLE, P. J., and ARMSTRONG, J., concur.


text:
    JOE WISDOM v. STATE.
    No. A-3520
    Opinion Filed Dec. 18, 1920.
    (193 Pac. 1003.)
    (Syllabus.)
    APPEAL AND ERROR — Reversal—Improper Cross-Examination. Where the evidence is in irreconcilable conflict, and the case is a very close one on the facts, the record will be closely scrutinized. In such case improper cross-examination of the defendant, properly objected and excepted to, is held sufficient ground for reversal of conviction.

      Appeal from District Court, Jefferson County; Cham Jones,- Judge.

    Joe Wisdom was convicted of the crime of grand larceny, and he appeals.
    Reversed and remanded.

      Champion & George, for plaintiff in error.

      S. P. Freeling, Atty Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   MATSON, J.

Joe Wisdom was convicted in the district court of Jefferson county of the crime of grand larceny, and sentenced to serve a term of two years’ imprisonment in the state reformatory at Granite. Several alleged grounds of error are assigned for reversal of the judgment. In view of the disposition made of this appeal, it will not he necessary to consider all of the assignments of error.

The evidence on the part of the state showed that one J. B. Biggerstaff, who resided near the town of Hastings, Jefferson county, Okla., had’ a 1916 model Ford automobile stolen from his barn on the night of August 13, 1917, and that the same was found by him about two weeks later in a yard back of the Tulsa Rooms, in the town of Heald-ton, Okla. The proof is conclusive that Bigggerstaff had his automobile stolen, and there is no controversy but that the same was found in the possession of Mr. L. Tucker and Mrs. A. E. Bailey, who were the proprietors of the Tulsa Rooms, about two weeks after the theft.

Tucker and Mrs. Bailey both testified that defendant appeared at their rooming house about noon, to the best of their recollection, on the 14th day of August, 1917, and asked permission to leave his car in their back yard, which permission was granted defendant; whereupon defendant drove the car into the back yard and left it. A witness by the name of Overstreet ials,o corroborates the other two witnesses for the state.

It appears from the evidence that defendant never returned to claim the car he had left at the Tulsa Rooms, nor did he send anybody for the car. However, during the two weeks that the car remained at the Tulsa Rooms the top was removed from the same, two casings were also removed and others put in their ¡place, and the numbers on the engine of the car were -removed and different numbers stamped thereon. There is no evidence in the record to the effect that defendant either took the top off the car, removed the casings, or changed the numbers. The state witnesses only testified to- the fact that defendant brought the car to that place and left it.

Defendant took the witness stand in his own behalf, and testified that he took a five-passenger 1916 model Ford automobile to the Tulsa Rooms about the time testified to; that he was in possession of the car only for about 15 minutes, and drove the car to that place at the request of one Fred Brown, whom he knew, and who was working in the oil fields at Healdton at that time, and who, defendant testified, he believed roomed at the Tulsa Rooms; that he told Tucker he was leaving the car there for Brown. Defendant said Brown drove up to him on the streets of Healdton, and asked him to take the car to the Tulsa Rooms and leave it for him, that he (Brown) was in a hurry, and wanted to take a service car which was then leaving for the city of Ardmore, and defendant said that this was the only connection that he ever had with the automobile.

Defendant is corroborated by two other witnesses, who testified that they saw a man drive up to defendant in a Ford automobile on that occasion, talk to defendant, and saw defendant drive off in the direction of the Tulsa Rooms, and that defendant returned to where they were within 10 or 15 minutes after he drove off in the car.

The wife of defendant testified in his behalf that on the night of the 13th of August, 1917, defendant stayed at his home in Pooleville, Okla., and had not been away from home at night for several nights prior thereto. Defendant also produced a witness who testified that on August 14, 1917, he and defendant left defendant’s- home in Pooleville early in the morning and drove in defendant’s car to Healdton, where defendant had some 'business. Defendant also produced a witness who testified that he met defendant in Healdton on August 14th, about 11 o’clock, that defendant came to see him to collect some money that he owed defendant for a wagon which defendant had sold him, and that on that occasion he paid defendant $15 that he owed for the wagon.

The only evidence on the part of the state which tends to incriminate defendant is that he was shown in possession of the car alleged to have been stolen on the next day after the theft for a period of about 15 minutes, and it is undisputed that defendant did nothing but drive the car to the back yard of the Tulsa Rooms in the town of Healdton, and there left it. While the story told by defendant as to how he obtained possession of the car is almost incredible, yet it is hardly consistent with guilt that defendant would go a distance of over 100 miles from his home, steal an automobile, drive it back towards home over two-thirds of the distance, and there abandon it without selling it; this, too, in the face of the undisputed evidence that the town of Healdton is in a thickly settled oil community where defendant was well known, and only 20 miles from where defendant lived in thinly settled community at a place where it would be much easier for him to conceal the stolen automobile were he in fact the thief.

However, the weight of this evidence and the inferences properly to be drawn therefrom, together with the credibility of the witnesses, were all matters within the exclusive province of the jury, and attention is called to the evidence solely for the purpose of showing that the conviction is based Upon evidence which is in irreconcilable conflict, and that the case is an extremely close one upon the facts.

During the progress of the trial, in connection with the cross-examination of defendant, the county attorney asked defendant if during the year 1916 he was not engaged in the liquor hauling business, to which defendant answered, “No, sir.” Thereupon, the county attorney asked defendant the following question:

“During the month of July, 1916, did you in company with Barney Alderson make a trip for Mike Miller from the town off ¡Wirt to Walter Johnson’s wholesale house in Jefferson county, and haul back two loads of whiskey?”

To which question counsel for defendant objected for the reason that the same was incompetent, irrelevant, and immaterial, and on the further ground that the answer might tend to incriminate the witness of a separate offense for which he could, not be required to answer, which objection was by the court overruled, to which defendant excepted, and to which question the defendant answered, “Yes, sir.”

It is here contended that the court’s ruling was prej-udicially erroneous to defendant in this case. The Attorney General contends in his brief that this evidence was competent, because it tended to show the previous occupation, companions, and association of defendant. With this contention the court cannot agree. We do not understand that the previous occupation, companions, and associates of a witness are to be shown or proved by one particular act of misconduct. Such matters should be shown by a general line of conduct or association. The effect of the introduction of this evidence, of compelling defendant to answer the question, was to prove defendant’s, guilt of a distinct offense, in no way connected with the offense for which he was upon trial, and in no way tending to prove defendant’s guilt of the offense charged.

It is well established that—

“A witness cannot be impeached by evidence of particular wrongful acts, nor is it proper to question the witness with reference to such matters.” Litchfield v. State, 8 Okla. Cr. 164, 126 Pac. 707, 45 L. R. A. (N. S.) 153; Welch v. State, 16 Okla. Cr. 513, 185 Pac. 119.

Also it has been held:

“For the purpose of affecting the credibility of a defendant as a witness,, it is prejudicial error for the court to require the defendant to answer on cross-examination as to his having been charged with other offenses.” Byars v. State, 15 Okla. Cr. 308, 176 Pac. 253.

Also it has been held:

“It is permissible on cross-examination to inquire into the antecedents of a witness by showing his occupation, vocation, or manner of living as a general rule. This character of examination, however, is permissible only when the facts sought to ,be elicited are pertinent to the issue, or have some material relation thereto.”

No rule of criminal law is better settled than that you cannot convict a defendant ‘of one crime by proving him guilty of another and independent offense. Smith v. State, 5 Okla. Cr. 67, 113 Pac. 204; Snow v. State, 3 Okla. Cr. 294, 105 Pac. 576; Rea v. State, 3 Okla. Cr. 270, 105 Pac. 381.

The evidence elicited and required from defendant in his cross-examination did not tend to show his general occupation or that he was in the habit of associating with criminals, but its only effect was to compel defendant to testify to his guilt of an independent crime (that of transporting intoxicating liquor) in no way shedding any light upon the question of his guilt or innocence of the offense charged.

The ruling of the trial court in overruling the objection of counsel for defendant to this line of cross-examination was erroneous, and it was prejudicial to the substantial rights of defendant in view of the marked conflicting evidence to permit such a line of cross-examination, and for this reason the judgment of conviction must be reversed and the cause remanded for a new trial.

Attention is also called to. the charging part of the information in this case, which reads as follows:

“That the said Joe Wisdom, then and there being, did then and there willfully and unlawfully and feloniously take, steal, and carry away'by stealth and fraud one 1916 model Ford automobile, of the value of $200, without the consent of the owner thereof, with the unlawful and felonious intent of him, the said Joe Wisdom, then and theré to convert the same to his own use and benefit and to deprive the owner thereof, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”

It is to be noted that the information contains no allegation of ownership of the automobile in question to have 'been in another person than defendant. Such an allegation would be essential to the validity of the information were the same attacked by demurrer in the lower courf and if this cause is retried, the information should be amended to allege the ownership of the automobile to be in J. B. Biggerstaff.

Judgment reversed, and cause remanded for further proceedings not inconsistent with this opinion.

DOYLE, P. J., and ARMSTRONG, J., concur.