text:
    MARSHALL LEE v. STATE.
    No. A-9437.
    Sept. 15, 1939.
    (94 P. 2d 5.)

      Carlos Wadlington and Date Crawford, both of Ada, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and W. V. Stanfield, Co. Atty., of Ada, for the State.
   BAREFOOT, J.

Defendant was charged with the crime of burglary in the second degree, in Pontotoc county, and with having been a second offender; was tried, convicted and sentenced to serve a term of 15 years in the penitentiary, and has appealed.

Defendant was charged with having entered the dwelling house of M. L. Mullins, on the morning of June 9, 1937, and stealing a gold wrist watch, the property of Mrs. M. L. Mullins. These parties were living over a grocery store in the city of Ada, and visiting them at the time was the father and mother of Mrs. Mullins. On the morning of June 9, 1937, Mrs. Mullins awoke and unlatched the screen door from the outside entrance for the purpose of permitting a lady to enter, who was to do some ironing for her. She went back to sleep and was awakened about 6 o’clock in the morning, and saw a man standing at the foot of her bed, whom she positively identified as the defendant. He made inquiry as to whether a Mr. Carter lived there. He was informed by Mrs. Mullins that no such party lived there, and he said he thought he rented a back room. He thanked her and left. She went to the window and saw defendant leave in a green sedan that was parked nearby. She awoke her husband and upon search they immediately discovered that her wrist watch which had been left on the table the night before had been stolen. They went in search of the automobile they had seen and immediately informed the police. About a week later, at the police station she identified defendant as the party who had entered her home and with whom she had the conversation, as above related. She also identified and recovered her watch which was stolen from her home on the 9th of June.

Bernice Price, a witness for the state, testified she lived in Holdenville, and was acquainted with defendant. That she saw him about five o’clock on the evening of June 9th, 1937, on a street corner, in the city of Holden-ville, and that he was driving a green sedan automobile. That he asked her to drive with him and that after she consented he gave her a wrist watch. She identified the watch, which was the property of Mrs. Mullins, as being the one given her by the defendant, and which was turned over by her to the officers. She also testified that defendant had given her a ring.

Her testimony was corroborated by Edith Lawrence, who was a young lady with whom she roomed in a hotel at Holdenville. She testified that the three of them went to Shawnee on the night of the 9th of June in a green sedan driven by defendant.

The state introduced in evidence the information, warrant of arrest, and judgment and sentence, which revealed that Marshall Lee was convicted in the district court of Seminole county, of the crime of burglary in the second degree, on the 20th day of August, 1925, and was sentenced to the penitentiary for a period of two years. The certified judgment offered in evidence showed his reception by the warden of the penitentiary at Granite.

The state also offered in evidence a certified copy of an information, judgment and sentence of Marshall Lee, in Los Angeles, Cal., where he was charged and convicted of the crime of “burglary, a felony,” and sentenced to be punished “by imprisonment in the State Prison of the State of California, at San Quentin, for the term prescribed by law.” This was on the 20th day of September, 1927.

The state also offered in evidence Clyde Kaiser, the sheriff of Pontotoc county, who testified to certain statements made by defendant in which he admitted certain prior convictions.

The defendant did not take the witness stand, as he had a right not to do under the law. He offered no witnesses in his own behalf.

It is first contended that error was committed in this case by reason of the opening statement of the county attorney. This statement was that the evidence would show that a few minutes prior to the time defendant entered the home of Mrs. Mullins, he had entered the home of Roy Keller, and Mrs. J. L. Parker, and Mrs. Parker being awakened he made some inquiry about somebody and walked out. No evidence was offered to substantiate this part of the opening statement. This court, in the case of Shacklett v. State, 23 Okla. Cr. 4, 211 P. 1063, 1065, said:

“In his opening statement to the jury the prosecuting attorney said:
“ ‘The proof will show that the defendant Bill Freeman entered his plea of guilty and has served his term in the penitentiary.’
“Here defendant’s attorney objected, on the ground that Bill Freeman was not present. The court then announced: ‘He is going to be present here if an attachment will get him.’ It appears, therefore, that it was the intention of the county attorney to have Bill Freeman present to testify in this case. For some reason unknown to us, this testimony was not forthcoming. The purpose of an opening statement of counsel is to apprise the jury of what the respective parties expect to show; the statements so made are in no sense evidence and are not so understood by the jury. Where a statement is made in good faith, as this appears to have been made, and for some cause the witness cannot be procured, such action on the part of the county attorney will not be held reversible error, unless it is done in bad faith or appears to be manifestly prejudicial. 12 Cyc. 570, and cases there cited.”

The record in this case fails to reveal why the county attorney did not present this evidence. It was so closely related to the time and offense as charged in the information that it would have been admissible. Mason v. State, 60 Okla. Cr. 427, 65 P. 2d 203.

There is nothing to show that the statement was not made in good faith, and the record does not disclose that it was made in bad faith. From an examination of the whole record in this case, we are of the opinion that defendant was not prejudiced by the statement of the county attorney. Guest v. State, 56 Okla. Cr. 129, 34 P. 2d 1082.

It is next contended that the court erred in permitting the sheriff of Pontotoc county to testify to a conversation by defendant in which he told the county attorney of previous convictions, for the reason that defendant had been told he would be given certain punishment. In the first place, the county attorney had no right to say what punishment he should receive. This is a matter for the court and jury to pass upon under proper instructions. But the record does not bear out that any promise was made the defendant, and that this matter was not discussed until after defendant had made the statements. The record further reveals that the county attorney refused to talk to defendant except in the presence of the sheriff, and that defendant was advised that any statement made by him could be used against him. His statement was voluntary. The records of the former convictions were introduced in evidence,- and any testimony as to statements made by defendant as to prior convictions would be cumulative, and were not at all necessary for the jury to consider in finding defendant guilty.

It is next contended that the record of the previous conviction of defendant in Seminole county should not have been permitted to be introduced for the reason that in one part of the order it provided that: “the said Marshall Lee be confined in the State Penitentiary at McAlester in the state of Oklahoma, for the term of two (2) years,” and that it provided further: “It is further ordered, adjudged and decreed by the court that the warden or his deputy, of the State Reformatory at Granite transport said Marshall Lee to the said reformatory at Granite,” and that he be confined in accordance with said judgment.

The certificate attached to said judgment reveals that he was transmitted and received by the warden of the Reformatory at Granite. This error is purely technical, and we see no merit in this contention. The main fact is that defendant was convicted in Seminole county, of the crime of burglary in the second degree, the exact crime with which he was charged in Pontotoc county. It was immaterial whether he served it in McAlester or Granite. ’The court will take notice that both are state prisons for the confinement of those who have committed felonies.

Certain objections were made to the introduction of the record of the previous conviction of defendant of burglary in the second degree in the state of California. We have carefully examined the record, and the exceptions thereto, and do not find that they are well taken. It is contended that this record should not have been permitted because the state did not prove the law of California, as to what constituted second degree burglary in that state. Oklahoma Statutes 1981, § 1820, 21 Okla. Stat. Ann. § 54, provides:

“Every person who has been convicted in any other state, government or country of an offense which, if committed within this state, would be punishable by the laws of this state by imprisonment in the penitentiary, is punishable for any subsequent crime committed within this state, in the manner prescribed in the last three sections, and to the same extent as if such first conviction had taken place in a court of this state.”

The information which was introduced in evidence showed that he was charged with the crime of “burglary, a felony.” A certified copy of the judgment and sentence provided:

“It is therefore, ordered, adjudged and decreed that the said Marshall Lee be punished by imprisonment in the State Prison of the State of California at San Quentin, for the term prescribed by law.”

This is certainly sufficient to conclude that the defendant was convicted of a felony in that state, and sentenced to serve a term in the state prison. But regardless of the conviction and sentence in California, there can be no question under the evidence in this case as to defendant’s conviction and sentence in Seminole county.

It is further contended by defendant that the court failed to properly instruct the jury as to the law in the case. A complete answer to this contention is that defendant failed to offer any requested instructions which were refused by the court. It is the duty of counsel for a defendant, where he is of the opinion that additional instructions should be given, to reduce them to writing, and request that they be given. If he fails to do so a conviction will not be reversed, unless the court is of the opinion, in the light of the entire record and instructions of the court, that there was a failure to instruct the jury upon some material question of law, and that the defendant has been deprived of a substantial right. Ford v. State, 52 Okla. Cr. 321, 5 P. 2d 170; Williams v. State, 12 Okla. Cr. 39, 151 P. 900; Nance v. State, 43 Okla. Cr. 247, 278 P. 357; Lumpkin v. State, 5 Okla. Cr. 488, 115 P. 478.

We have carefully examined the instructions given, and find that they substantially state the law, and by the instructions given the court properly protected the substantial rights of the defendant. .

It is next urged that the information filed against the defendant was not sufficient under the statutes defining burglary. It may be observed that no demurrer to the information was filed by defendant. This question is raised for the first time on appeal. This court has repeatedly held that this could not be done, and where there is no substantial or jurisdictional error, the court will not consider defendant’s demurrer to the information which is raised for the first time on appeal. Hagerty v. State, 22 Okla. Cr. 136, 210 P. 300; McGaugh v. State, 12 Okla. Cr. 96, 152 P. 140; Dew v. State, 11 Okla. Cr. 581, 149 P. 917; Stone v. State, 12 Okla. Cr. 313, 155 P. 701; Simpson v. State, 16 Okla. Cr. 533, 185 P. 116; Hensley v. State, 34 Okla. Cr. 345, 246 P. 886.

We have carefully examined the information and no substantial error is noted. If a demurrer had been filed, and there had been any defect therein, the county attorney would have had an opportunity to amend the same.

Having found no substantial error in the record, and it appearing that defendant received a fair and impartial trial, the judgment of the district court of Pontotoc county is affirmed.

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


source: Caselaw Access Project

author: DAVENPORT, J.

license: Public Domain

text:
    WALTER WHEELER v. STATE.
    No. A-9573.
    Sept. 15, 1939.
    (94 P. 2d 9.)

      Wm. M. Thomas, of Miami, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

Walter Wheeler was by information charged in the district court of Ottawa county with the crime of operating a motor vehicle while under the influence of intoxicating liquor; was tried, convicted, and his punishment fixed at a fine of $75. Motion for a new trial was filed, considered, overruled, exceptions saved; and the defendant has appealed.

The testimony on behalf of the state shows that the defendant Walter Wheeler resided in the town of Commerce, in Ottawa county, Okla.; and on the day in question, together with his stepdaughter, Ellen Maxwell, drove to the city of Miami, for the purpose of attending to some business and doing some shopping.

After the defendant had attended to his business, he went into a place where 3.2 beer was sold, and there drank some beer. From there he went to what is known as the Old King’s Place, and drank some more 3.2 beer.

The stepdaughter, Ellen Maxwell, was trading, and getting things ready for them to return to their home in Commerce. The defendant told his daughter that he was going to the barber shop to get his hair cut, which he did; and he admits being in two or more places where 3.2 beer was sold; and admits that he had two or three drinks of this beer.

The state, when the case was called for trial, asked permission of the court to indorse upon the information the names of two witnesses, Lem Algood and John Abies, which was objected to by the attorney for the defendant, which objection was overruled; and the county attorney was permitted to indorse the names of Algood and Abies on the information. The first notice that the defendant had that the county attorney desired to indorse the names of these two witnesses was about 9 o’clock on the morning before the case was called for trial that day. The defendant then moved the court to continue the case for a reasonable length of time until he could have a reasonable opportunity to secure testimony to rebut the testimony of the two witnesses indorsed on the information by order of the court.

This motion of the defendant was overruled, exceptions saved; and the court ordered the trial to proceed.

The defendant has assigned six errors alleged to have been committed by the trial court, which he believes are sufficient to warrant this court in granting him a new trial: (1) Errors of law occurring in the trial of this case, to which the plaintiff in error duly excepted. (2) Error of the court in permitting the indorsing of material witnesses on the information on the day of trial, to which plaintiff in error duly excepted. (3) Error of the court in refusing to grant motion for continuance until plaintiff in error could have reasonable time to meet testimony of the two witnesses indorsed on the information, to which the plaintiff in error excepted. (4) Error of the court in overruling defendant’s demurrer to the evidence. (5) Error of the court in overruling plaintiff in error’s motion for instructed verdict at the close of all the testimony. (6) Error of law committed by the court in giving instructions 1, 2, 3, 4, 5, 6, 7, and 8, to which the plaintiff in error duly excepted.

The testimony in this case will be referred to in connection with the assignment of errors.

Elmer Hupperfelt stated that when the defendant was in his place of business in the evening about 7 or 7:30, in his opinion, the defendant was drunk.

Several witnesses testified that they saw him about or near the time of the accident, and that he was not drunk.

It is argued by the defendant that there is no evidence that he drank anything but 3.2 beer.

The defendant’s truck was parked on “A” street, just west of the courthouse in the city of Miami, Okla.

One of the witnesses, testifying for the state, stated that a short while before a truck, which he thought to be the truck of the defendant, backed out from the curbing, the defendant asked him if he would drive his truck home, as he was drinking; and that he told him that he could not do it. Another one of the witnesses, who was near, claims to have seen the defendant, and that defendant told him that his little girl was in the truck; that the defendant showed evidence that he had been drinking.

Two or more witnesses, who were along “A” street and across from where the defendant’s truck was parked, claim that the defendant went over to the truck, got in the truck, and backed out a bit; and then got out and pushed the truck back in to the curbing; and later on the defendant got into the truck again; and the truck was backed out into the street, and driven away south from where the truck was parked.

One of the witnesses stated clearly that the defendant said his little girl was in the truck.

The state failed to show by any testimony that the defendant was driving his truck after it left the curbing.

Some one attempts to identify the truck as it went down the street by the peculiar kind of box-bed it had on it.

Not a word of testimony was introduced by the state to show that the defendant drove the truck after it was backed out from the curb. No one attempts to identify the defendant as being the one who was driving the truck that seems to have struck some pedestrians on a street crossing south from where the defendant’s truck was parked.

The state, upon the question of proving intoxication, relies upon the fact that the defendant had been drinking 3.2 beer in two or more places where this beer was sold.

The barber says that the defendant was not drunk when he cut his hair about 7 o’clock in the evening.

Some one of the state’s witnesses testified that the defendant was wobbly; and that he smelled his breath, and his breath had whisky on it. No effort is made by the state to show the difference in the odor of whisky and 3.2 beer.

The defendant was not on trial for injuring any parties, but was on trial for driving a truck while under the influence of intoxicating liquor.

Lem Algood, a witness for the state, said the defendant had been drinking. “I cannot say he was intoxicated.”

Earl Doin stated: “The night of February 5, 1938, between 7 and 8 o’clock, I saw the defendant at my filling station, an hour or so before I closed; and I closed at 9 o’clock. His stepdaughter was driving the truck. The defendant had had a drink or two, but I would not call him drunk.”

Ellen Maxwell, the stepdaughter of the defendant, testifies that she drove the truck from where it was parked in Miami, out the street north, and drove it all the way to their home in Commerce.

The defendant testifies that she drove the truck, and that he did not have anything to do with driving it from the time it was backed out from the curb on “A” street in Miami, until they reached home. The testimony of the defendant further shows that after he and his stepdaughter got home, they filled an order for coal to Mrs. Shoemaker.

Mrs. Shoemaker testifies that Ellen Maxwell, the stepdaughter of the defendant, drove the truck when they brought the coal to her, and delivered the purchase sometime around 8 o’clock or a little bit later.

The wife of the defendant testifies that when the defendant got home, the daughter was driving the truck.

The gist of this case is, Did the defendant drive his truck from where it was parked on “A” street out of the city of Miami towards Commerce; and then was he under the influence of intoxicating liquor at the time? And did he drive the truck from Miami towards Commerce, Okla., while so intoxicated?

The only effort made by the state to show that the defendant drove the truck was where these witnesses, who were parked across the street, some distance from the defendant’s truck, stated that the defendant had talked to them; and that he seemed to have been drinking, but they would not say he was drunk; that he went across the street, and got in the truck, and the truck was backed out a bit; that he then got out of the truck, and rolled it back to the curbing; and later on the truck was backed out, and drove away.

One of the witnesses says the defendant was in the truck at the time the truck drove away. He could not say or testify whether there was any one in the cab of the truck with the defendant, leaving the impression that the defendant was driving the truck. This all occurred at night; and while there were lights on different parts of the street, the defendant was a stranger to this witness and other witnesses, who claim to have seen him on “A” street before the truck drove away. They had never seen him before, and later on identify him, and identify the defendant’s truck as being a truck that had the same kind of body on it that the defendant’s truck had. They did not make any close examination of the truck; and there was no proof offered as to why they happened to remember the kind of bed that it had on it at the time it drove away. The truck was driven away prior to any question that the defendant was under the influence of intoxicating liquor.

The defendant’s proof is undisputed that the daughter drove the truck from “A” street, in Miami, home with the defendant in the truck. As the daughter was driving the truck, then the defendant, even though he was in the cab with the daughter and intoxicated, could not be guilty of driving the truck while under the influence of intoxicating liquor.

The conviction in this case seems to have been arrived at by the jury on the theory that because of the fact that the state proved, and the defendant admitted, that prior to the time he left Miami for Commerce in the evening between 7 and 8 or 8:30, he had been drinking some 3.2 beer. It is understood by the average person that the odor of beer and whisky is very similar.

The state relied upon the testimony offered as being sufficient to sustain a conviction. That testimony is circumstantial, and is insufficient to overcome the general presumption of innocence guaranteed to the defendant throughout the trial, until that presumption has been overcome by competent testimony.

The defendant may be guilty; but under the statutes he is entitled to a fair and impartial trial; and if convicted at all, he must be convicted by competent testimony.

Section 3062, O. S. 1931, 22 Okla. St. Ann. § 834, in part, provides that questions of fact are to be decided by the jury.

This court has repeatedly held that the jury is the exclusive judge of the weight of the evidence; and if there is a clear conflict in the evidence; or it is such that different inferences can properly be drawn from it, this determination will not be interfered with, unless it is clearly against the weight of the evidence or appears to have been influenced by passion or prejudice. Humberd v. State, 56 Okla. Cr. 23, 32 P. 2d 954; Choate v. State, 37 Okla. Cr. 314, 258 P. 360.

In Jefferson v. State, 31 Okla. Cr. 44, 236 P. 914, in the syllabus, this court stated:

“It is well settled that a verdict will not be disturbed for insufficiency of evidence when there is evidence, although it may be conflicting, from which the jury may reasonably or logically draw the conclusion of the defendant’s guilt. The converse rule is also well settled that, where there is no evidence to support a verdict, or where it is of such a weak and inconclusive character that a conclusion of guilt may not reasonably be drawn from it, or there is a failure to prove some essential matter to establish the offense charged, it is the duty of the court to set aside such verdict as contrary to the evidence.”

In Cude v. State, 42 Okla. Cr. 357, 276 P. 240, in the first paragraph of the syllabus, this court stated:

“To sustain a conviction, it should appear not only that the offense was committed, but the evidence inculpating the defendant should do so to a degree of certainty, transcending mere probability or strong suspicion.”

In White et al. v. State, 13 Okla. Cr. 76, 162 P. 232, in the first paragraph of the syllabus, this court stated:

"While it is well settled that this court will not disturb the verdict on account of the insufficiency of evidence when there is evidence to support it, the converse rule is equally well settled that it is not only the province, but the duty, of the court to set aside such a verdict when it is contrary to the evidence, or where there is no evidence to support it. The performance of this duty on the part of the court is the exercise of legal discretion and judgment as to the sufficiency of the evidence to overcome the legal presumption of innocence, to which every one is entitled who is put upon trial for an offense.” Bernard Simpson v. City of Tulsa, 67 Okla. Cr. 224, 93 P. 2d 539; Mutt Saferite v. State, 67 Okla. Cr. 229, 93 P. 2d 762.

There are other errors assigned in this case; but from the view we take of this record, it is not necessary to consider them.

After a careful examination of the record and the testimony, and considering the facts surrounding the prosecution in this case, we hold that the evidence of the state is insufficient to sustain the conviction of the defendant. There is no positive testimony on behalf of the state showing the defendant drove the truck from where it was parked on “A” street, in Miami, to his home in Commerce. On the other hand, the positive statements of the stepdaughter, Ellen Maxwell, Earl Doin, and the defendant, clearly show that the defendant did not drive the truck, but the stepdaughter, Ellen Maxwell, drove it. The statements of Mrs. Shoemaker as to the delivery of the coal to her house at a certain time, also, shows that the daughter was driving the truck at the time of the delivery of the coal.

No effort is made on behalf of the state to contradict the defendant’s positive testimony and the testimony of his witnesses.

The state proved, and the defendant admitted that, he had been drinking some 3.2 beer; but as to the defendant’s intoxication, the state’s testimony is indefinite, uncertain, and fails to establish facts sufficient to show that the defendant was intoxicated.

The demurrer of the defendant to the evidence of the state and his motion for an instructed verdict should have been sustained.

The evidence is insufficient to sustain the judgment against the defendant.

The case is reversed and remanded with directions to dismiss.

DOYLE, P. J., and BAREFOOT, J., concur.


author: DOYLE, P. J.

text:
    Ex parte LAWRENCE L. BARNETT.
    No. A-9698.
    Sept. 15, 1939.
    (94 P. 2d 18.)

      W. N. Redwine and Hulsey & Hulsey, all of Mc-Alester, for petitioner.
    Mac Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., and J. A. Minton, Pardon and Parole Atty., of Sayre, for respondent and the State.
   DOYLE, P. J.

The petitioner, Lawrence L. Barnett, now confined in the state penitentiary, alleges that he is unlawfully imprisoned and detained without authority of law, under a judgment of the district court of Adair county, rendered June 11, 1934, finding him guilty of the offense of attempt to rape, wherein he was sentenced to serve a term of 50 years’ imprisonment.

Petitioner seeks his release upon the ground that it conclusively appears from the record that said district court did not have jurisdiction to render the judgment, in that he was denied constitutional rights guaranteed to him by the Constitution and the laws of the state, wherefore petitioner was deprived of his liberty without due process of law.

The prosecution was based upon section 2515, 21 Okla. St. Ann. § 1111, which provides:

“Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances: 1st. Where the female is under the age of 16 years.”

Section 2518, 21 Okla. St. Ann. § 1114, provides:

“Rape committed by a male over eighteen years upon a female under the age of fourteen years, is rape in the first degree.”

Section 2519, 21 Okla. St. Ann. § 1115, provides:

“Rape in the first degree is punishable by death or imprisonment in the penitentiary, not less than 15 years.”

It appears from the record that on June 11, 1934, a complaint was filed in the county court charging petitioner with rape in the first degree; on the same day an information was filed in the district court of Adair county, charging an offense denominated “Attempt to Rape,” and on the same day the judgment and sentence of the court was rendered on his plea of guilty.

The respondent insists that under the statute, section 693, 12 Okla. St. Ann. § 1342, a writ of habeas corpus will not lie “upon any process issued on any final judgment of a court of competent jurisdiction”; that such judgment, valid on its face, is an unanswerable return to a writ of habeas corpus, issued for the relief of a prisoner imprisoned by virtue of such judgment.

The writ of habeas corpus, which has for centuries been esteemed the best and only sufficient defense of personal freedom, has for its object the speedy release by judicial decree of persons illegally restrained of their liberty.

It is not a mere corrective remedy and is not to be employed as a writ of quo warranto, nor as a writ of certiorari, nor permitted to perform the functions of an appeal.

The jurisdiction of the court to render a particular judgment by which a person is imprisoned, is a proper subject of inquiry on habeas corpus.

In the case Ex parte Grant, 32 Okla. Cr. 217, 240 P. 759. 760, it is said:

“Its scope, when directed to an inquiry into the cause of imprisonment in judicial proceedings, extends to questions affecting the jurisdiction of the court and the sufficiency in point of law of the proceedings. Mere errors or irregularities in a judgment or proceeding of a court under and by virtue of which a person is imprisoned, which are not of such a character as to render the proceedings void, cannot be reviewed on an application for a writ of habeas corpus. Where a prisoner in custody under sentence of conviction seeks to be discharged on habeas corpus, the inquiry is limited to the questions whether the court in which the prisoner was convicted had jurisdiction of the person of the defendant and of the crime charged, and did the court have jurisdiction to render the particular judgment.”

In Ex parte Owens, 37 Okla. Cr. 118, 258 P. 758, 760, this court held:

“When a person is held in custody under a void order of commitment, or is imprisoned without due process of law under the sentence of any court of the state, it is not only within the authority of this court, but it is its duty upon habeas corpus to inquire into the illegality of the commitment when the matter is properly brought before it by petition, and if it be adjudged that the order of commitment was made without authority of law, the person will be entitled to a discharge from custody in order to preserve the constitutional right of all persons not to be deprived of liberty without due process of law.”

It follows that the question to be determined, is, Did the district court of Adair county have jurisdiction to render the judgment upon the petitioner’s plea of guilty.

It is contended that petitioner was deprived in the preliminary hearing before the judge of the county court, acting as an examining magistrate, and before the district court that rendered the judgment, of his constitutional and statutory right of the benefit of counsel, and that the record does not show that the petitioner waived this right.

In the Bill of Rights, Okla. St. Ann. Const., are these provisions:

“§ 7. No person shall be deprived of life, liberty, or property, without due process of law.”
“§ 17. No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination.”
“§ 20. In all criminal prosecutions the accused * * * shall be informed of the nature and cause of the accusation against him and have a copy thereof, and be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his behalf. He shall have the right to be heard by himself and counsel; and in capital cases, at least two days before the case is called for trial, he shall be furnished with a list of the witnesses that will be called in chief, to prove the allegations of the indictment or information, together with their postoffice addresses.”

In the Code of Criminal Procedure are these provisions :

“When the defendant is brought before a magistrate upon an arrest, either with or without a warrant, on a charge of having committed a public offense, the magistrate must immediately inform him of the charge against him, and of his right to the aid of counsel in every stage of the proceedings, and also of his right to waive an examination, before any further proceedings are had.” Sec. 2793, 22 Okla. St. Ann. § 251.
“He must also allow to the defendant a reasonable time to send for counsel, and adjourn the examination for that purpose; and must, upon the request of the defendant, require a peace officer to take a message to such counsel in the county or city as the defendant may name. The officer must, without delay, perform that duty, and shall receive fees therefor as upon a service of a subpoena.” Sec. 2794, 22 Okla. St. Ann. § 252.
“If the defendant appear for arraignment, without counsel, he must be informed by the court that it is his right to have counsel before being arraigned, and must be asked if he desire the aid of counsel. If he desires, and is unable to employ counsel, the court must assign counsel to defend him.” Sec. 2929, 22 Okla. St. Ann. § 464.
“If, on the arraignment, the defendant require it, he must be allowed until the next day, or such further time may be allowed him as the court may deem reasonable, to answer the indictment or information.” Sec. 2935, 22 Okla. St. Ann. § 491.
“After a plea or verdict of guilty, * * * the court must appoint a time for pronouncing judgment.” Sec. 3125, 22 Okla. St. Ann. § 961.
“The time appointed must be at least two days after the verdict, if the court intend to remain in session so long; or, if not, at as remote a time as can reasonably be allowed.” Sec. 3126, 22 Okla. St. Ann. § 962.
“When the defendant appears for judgment, he must be informed by the court, or by the clerk under its direction, of the nature of the indictment or information, and his plea and the verdict, if any thereon, and must be asked whether he has any legal cause to show why judgment should not be pronounced against him.” Sec. 3134, 22 Okla. St. Ann. § 970.

A plain reading of these provisions is conclusive of the questions presented and it is not shown by the record that these requirements of the Constitution and statutes were complied with. It is apparent from the record that petitioner was not sufficiently advised of his rights by the committing magistrate, or by the district judge.

In Goben v. State, 20 Okla. Cr. 220, 201 P. 812, 815, it is said:

“The right of the accused to the assistance of counsel in making his defense has long been regarded in this country as essential to the due administration of justice in criminal cases. Says Mr. Cooley:
“ ‘With .us it is a universal principle of constitutional law that the prisoner shall be allowed a defense by counsel.’ Const. Lim. 334.”

In Polk v. State, 26 Okla. Cr. 283, 224 P. 194, this court held:

“A plea of guilty should be entirely voluntary, by one competent to know the consequences, and should not be induced by fear, persuasion, promises, or ignorance.”

And held:

“A plea of guilty should not be entered until after the defendant has been fully advised by the court of his rights and the consequences of his plea.”

In Powell v. Alabama, 287 U. S. 45, 53 S. Ct. 55, 64, 77 L. Ed. 158, 84 A.L.R. 527, headnotes 10 and 11, are as follows:

“In a capital case, where the defendant is unable to employ counsel and is incapable adequately of making his own defense because of ignorance, feeble-mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law; and that duty is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case.”
“A court has power, even in the absence of a statute, to appoint counsel to defend one charged with crime.”

Mr. Justice Sutherland delivering the opinion of the court said:

“The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense.”

In this connection we desire to quote fully from the opinion delivered by Mr. Justice Black for the Supreme Court of the United States, in the case of Johnson v. Zerbst, 304 U. S. 458, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461:

“The purpose of the constitutional guaranty of a right to counsel is to protect an accused from conviction resulting from his own ignorance of his legal and constitutional rights, and the guaranty would be nullified by a determination that an accused’s ignorant failure to claim his rights removes the protection of the Constitution. True, habeas corpus cannot be used as a means of reviewing errors of law and irregularities — not involving the question of jurisdiction — occurring during the course of trial; and the ‘writ of habeas corpus cannot be used as a writ of error.’ These principles, however, must be construed and applied so as to preserve — not destroy — constitutional safeguards of human life and liberty. The scope of inquiry in habeas corpus proceedings has been broadened — not narrowed — since the adoption of the Sixth Amendment, [U.S.C.A. Const.]. In such a proceeding, ‘it would be clearly erroneous to confine the inquiry to the proceedings and judgment of the trial court’ and the petitioned court has ‘power to inquire with regard to the jurisdiction of the inferior court, either in respect to the subject matter or to the person, even if such inquiry (involves) an examination of facts outside of, but not inconsistent with, the record.’ Congress has expanded the rights of a petitioner for habeas corpus and the ‘* * * effect is to substitute for the bare legal review that seems to have been the limit of judicial authority under the common-law practice, and under the Act of 31 Car. II, chap. 2, a more searching investigation, in which the applicant is put upon his oath to set forth the truth of the matter respecting the causes of his detention, and the court, upon determining the actual facts, is to “dispose of the party as law and justice require.”
“ ‘There being no doubt of the authority of the Congress to thus liberalize the common-law procedure on habeas corpus in order to safeguard the liberty of all persons within the jurisdiction of the United States against infringement through any violation of the Constitution or a law or treaty established thereunder, it results that under the sections cited a prisoner in custody pursuant to the final judgment of a state court of criminal jurisdiction may have a judicial inquiry in a court of the United States into the very truth and substance of the causes of his detention, although it may become necessary to look behind and beyond the record of his conviction to a sufficient extent to test the jurisdiction of the state court to proceed to judgment against him. * * *
'* * * it is open to the courts of the United States, upon an application for a writ of habeas corpus, to look beyond forms and inquire into the very substance of the matter. * * *’
* * *
“Of the contention that the law provides no effective remedy for such a deprivation of rights affecting life and liberty it may well be said—as in Mooney v. Holohan, 294 U. S. 103, 113, 55 S. Ct. 340, 79 L. Ed. 791, 794, 98 A.L.R. 406 — that it ‘falls with the premise.’ To deprive a citizen of his only effective remedy would not only be contrary to the ‘rudimentary demands of justice’ but destructive of a constitutional guaranty specifically designed to prevent injustice.
“Since the Sixth Amendment constitutionally entitles one charged with crime to the assistance of counsel, compliance with this constitutional mandate is an essential jurisdictional prerequisite to a federal court’s authority to deprive an accused of his life or liberty.
“When this right is properly waived, the assistance of counsel is no longer a necessary element of the court’s jurisdiction to proceed to conviction and sentence. If the accused, however, is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty. A court’s jurisdiction at the beginning of trial may be lost ‘in the course of the proceedings’ due to failure to complete the court — as the Sixth Amendment requires — by providing counsel for an accused who is unable to obtain counsel, who has not intelligently waived this constitutional guaranty, and whose life or liberty is at stake. If this requirement of the Sixth Amendment is not complied with, the court no longer has jurisdiction to proceed. The judgment of conviction pronounced by a court without jurisdiction is void, and one imprisoned thereunder may obtain release by habeas corpus. A judge of the United States — to whom a petition for habeas corpus is addressed — should be alert to examine ‘the facts for himself when if true as alleged they make the trial absolutely void.’ ”

In Howington v. State, 30 Okla. Cr. 243, 235 P. 931, this court held:

“A plea of guilty should be entirely voluntary, and should be made by one competent to know the consequences thereof, and should not be accepted until after the defendant has been fully advised by the court of his rights and the consequences of his plea.”

In the opinion it is said:

“In cases of this kind, where the defendant is charged with a capital offense, he should have the advantage of every right which the law secures to him upon his trial. A fair and impartial administration of justice is one of the most sacred rights of the citizen, and it is the duty of the courts to see that the constitutional rights of the accused shall not be violated; however guilty he may be, he is entitled to a fair trial according to the due and orderly course of the law. * * *
“The state attempts to safeguard the life and liberty of citizens, and as one of the steps in that direction secures to them, if prosecuted for crime, the constitutional right to be heard by counsel, which includes the right of accused to consult with counsel at every stage of the proceedings, whether imprisoned or admitted to bail. Mullen v. State, 28 Okla. Cr. 218, 230 P. 285.
“The statute provides that where it appears that the defendant has no means and is unable to employ counsel, the court shall in all such cases appoint counsel, to represent him. Section 2929, C. S. 1921 (sec. 2930, St. 1931, 22 Okla. St. Ann. § 1271). There can be little doubt, under the facts in this case, that the defendant was denied the right to be heard by counsel as guaranteed by the letter and the spirit of our state Constitution. There is nothing to show that the defendant waived this right. At the time he was brought before the court and arraigned, he had been given no opportunity to be advised by counsel as to his rights, or as to the consequences of any plea he might enter. The judge of the court asked him if he desired to have a lawyer, but the court did not tell him that he had a right to have an attorney, and the court did not inquire as to what means the defendant possessed by which he could employ a lawyer, and did not inform him that it was the duty of the court to appoint an attorney to appear for him in case he possessed no means to employ one. And the court did not direct any officer of the court to call a lawyer to consult with him, and made no offer to appoint an attorney for that purpose.
“Under the facts stated, the defendant cannot be held to have waived his constitutional right to be heard by counsel. If the defendant had been permitted to consult with counsel learned in the law before he was arraigned, he would have been informed as to his constitutional and statutory rights, and he would have been informed that he had a right to be tried by a jury of 12 men, whose duty it would be to decide the question of his guilt; that in case he was tried by a jury and found guilty of murder, the jury in its discretion would have the right to decide whether the penalty to be imposed should be death or imprisonment for life. He would have been told that he could not be required to give evidence against himself either as tending to show that he was guilty of the offense charged or as tending to show any aggravating circumstances to be considered in fixing his punishment. He would have been informed, also, that in case he pleaded guilty, such plea would be a judicial confession that he was guilty of murder and a waiver of his right to a trial by jury, and that the court would be authorized on the plea to find him guilty of murder without hearing other evidence. Mullen v. State, supra.
“Under the facts in this case, the court had no right to assume that the defendant was fully advised as to his rights, and as to the consequences of a plea of guilty. The defendant was young, ignorant, and inexperienced. Under such circumstances, the court was required to use caution in proportion to the gravity of the consequences. * * *
“It may be well to say here that it is as much the duty of prosecuting attorneys to see that a person on trial is not deprived of any of his constitutional rights, as it is to prosecute him for the crime with which he is charged. * * *
“ ‘The law travels with a leaden heel, but strikes with an iron hand,’ is a maxim pregnant with obvious meaning. In this instance, it doffed the ‘leaden heel,’ yet struck with the iron hand.”

In Sutton v. State, 35 Okla. Cr. 263, 250 P. 930, 934, it is said:

“It is true that many constitutional guaranties may be waived by an accused person who comes into court represented by counsel and being fully advised of all his rights, and in such cases it might be said that he waives a right for which he does not ask. However, the record in this case shows that appellant did not waive any constitutional or statutory right, except in so far as his plea of guilty waived his right to be tried by a jury. In our opinion the constitutional right to be represented by counsel and the right in capital cases, at least two days before the case is called for trial, to be furnished with a list of the witnesses, together with their post office addresses, are essential to due process of law guaranteed to the citizen by section 7, Bill of Rights. We are inclined to think that a conviction had by a denial of these constitutional rights simply amounts to judicial lynch law.” pened. I had another experience with him, which was about two weeks after Mrs. Hall had had an operation. I went over to the house; and she tried to get me to go into his bedroom; and I didn’t go. I don’t know when it was that Mrs. Hall had an operation. It was after the other experience that I have stated, about three or four months. I went to the carnival one night with Mr. and Mrs. Hall; went in their car. As we left the carnival we went out to some lady’s house to see about getting some cream. We got out and went in. When we got back to Mr. Hall’s place, Mrs. Hall said she would get out and feed the dog, and Mr. Hall and I stayed in the car. Mr. Hall asked me if I would do it then; and I told him, ‘No.’ He pulled down my pants; and I opened the door, and got out, and went home. He did not try to kiss me, or make love to me in any other way when he had me on the bed that day; just put his arms around me.”

And see Ex parte Justus, 3 Okla. Cr. 111, 104 P. 933, 25 L. R. A., N. S., 483; Ex parte Rupert, 6 Okla. Cr. 90, 116 P. 350; Ex parte Hollingshead, 24 Okla. Cr. 131, 216 P. 486; Ex parte Lair, 29 Okla. Cr. 282, 233 P. 789; Ex parte Bonitz, 30 Okla. Cr. 45, 234 P. 780; Ex parte Dunn, 33 Okla. Cr. 190, 242 P. 574; Ex parte Hollins, 54 Okla. Cr. 70, 14 P. 2d 243; Tipton v. State, 30 Okla. Cr. 56, 235 P. 259; Lowrance v. State, 33 Okla. Cr. 71, 242 P. 862; Brown v. State, 39 Okla. Cr. 406, 266 P. 476.

We do not deem it necessary to discuss other questions presented by the record, as they have been fully considered in three cases cited. Goben v. State, Polk v. State, and Mullen v. State.

From all the foregoing considerations it is our opinion that petitioner’s conviction in violation of rights guaranteed by the Bill of Rights, Const., art. 2, sec. 20, is a nullity.

It follows that petitioner is unlawfully restrained of his liberty and is imprisoned without due process of law. He is therefore by the judgment of this court discharged therefrom.

The clerk of this court will forthwith forward to respondent, Jess F. Dunn, warden of the penitentiary at McAlester, a duly certified copy of this opinion, and upon receipt of the same said warden is directed to discharge the petitioner, Lawrence L. Barnett.

BAREFOOT and DAVENPORT, JJ., concur.


text:
    ELLIS HALL v. STATE.
    No. A-9545.
    Sept. 15, 1939.
    (93 P. 2d 1107.)

      Steele & Boatman, and Joe S. Eaton, all of Okmulgee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The defendant, Ellis Hall, was by information in the district court of Okmulgee county, Okla., charged with the offense of attempting to rape and ravish one Billie Ruth Jernigan, a female of about 14 years of age. He was tried, convicted, and his punishment fixed at seven and one-half years in the state penitentiary.

The defendant filed a motion for a new trial, which motion was by the court considered, overruled, and the defendant has appealed.

The testimony introduced by the state, in substance, is as follows: That the defendant resided in the 900 block of North Collins street in the city of Okmulgee in the summer, fall, and winter of 1937. The members of his family consisted of his wife and his mother. He had resided at the same place since August, 1935. The prosecutrix, Billie Ruth Jernigan, lived with her parents just across the street from the defendant, at 916 North Collins. Billie Ruth Jernigan, the prosecutrix, was at the date of the alleged offense under the age of 14 years. The offense is alleged to have been committed on or about the 20th day of August, 1937. Billie Ruth Jernigan had a sister by the name of Joy Lynn Jernigan, who was 12 years of age at the time of the alleged offense. Joy also lived at 916 North Collins with her parents. Bettie Sue Pierce also resided in the same neighborhood with the defendant and the Jernigan girls. Bettie Sue Pierce lived with her parents next door to the defendant and his wife. Bettie Sue Pierce was 11 years old.

The testimony further shows that all of the girls named herein played together in the neighborhood, and all attended the public schools of Okmulgee; that they often went to the home of the defendant and his wife. The two Jernigan girls often assisted the wife of the defendant in doing her household work; that all of these girls used the typewriter of the defendant, and often played the piano at his home. The defendant was employed as a lineotype operator at the Times Building Company at Okmulgee, and worked at nights, sleeping in the forenoon of the daytime in the room directly across the hall from the living room.

The prosecutrix, Billie Ruth Jernigan, in her testimony, in substance, states that on or about the day or date alleged and set forth in the information:

“I was called to the home of the defendant to assist his wife in doing her household work; that about noon on said date the defendant’s wife told me to go into the room of the defendant, and call him. I entered the room of the defendant, who was asleep, and woke him up, and told him Mrs. Hall wanted him to get up. The defendant requested me to sit down on his bed. At that time the defendant was in bed, under the cover, and was dressed in his underclothes. The defendant pulled me down on the bed, putting his right arm around my neck. The defendant then removed his right arm, and succeeded in pulling my slacks and underclothes down to my knees. He then fingered me. He had his private parts out. I raised my knees, striking said defendant; and he rolled away from me. I immediately left his room and went home; that time Mrs. Hall was there in the house, and also Mr. Hall. I don’t know whether Mrs. Hall, mother of the said defendant, was at home or not. I did not tell Mrs. Hall, his wife, or any one else about my experience with the defendant until on or about the 31st day of December, 1937. I first told Bettie Sue Pierce. I did not go back and make any statement to Mrs. Hall. I didn’t tell my mother about what had hap-

On cross-examination the witness was asked if she had testified at the preliminary trial; and she answered she had.

“Q. And what do you say he did? And you said, ‘He put his hand up my dress?’ Is that right? A. Yes, sir. Q. And then following that I want to ask you if you were not asked by me, ‘What did you say?’; and you answered, ‘Nothing.’ Do you recall that? A. No, sir. Q. Then I want to ask you if you didn’t, in giving your testimony to the question, ‘After that how long did you wait in the car?’; and you said, ‘Just a few minutes.’ Don’t you remember that? A. Yes, sir. Q. Did I ask you who got out of the car first, and you said, T did?’ Then you were asked if he tried to prevent you from getting out of the car; and you said, ‘No.’ And I will ask you if this question was not asked, ‘And he took hold of you and just put his hands up your dress?’; and you said, ‘Yes, sir.’ And following that I asked you this question, ‘Neither one said anything?’ Do you remember me asking you that? A. Yes, sir. Q. And you said, ‘No, sir, neither said anything.’ A. Yes, sir. Q. And this is the first time you have told about him asking you if you would do it? Is that right? A. Yes, sir. I was thinking it over the other night, and he did say it. I am mistaken on both these times when I said neither one of us said anything. Q. Mr. Hall works down at the Times Building Company? A. Yes, sir. Q. And he sleeps mornings? A. Yes, sir. Q. I believe there are six rooms in the house, and a back porch. On the south side is three bedrooms in a row, including that on the back porch, with a bathroom between the front and back rooms? A. Yes, sir.”

The witness continued:

“Mr. Hall was in the front bedroom, the one opening off the living room. When I came out of the kitchen, I went through the dining room and living room, and into the front bedroom. There is no door between the dining room and the kitchen; and none between the living room and the dining room. There is a door between the living room and the bedroom, in which the defendant was sleeping. When I went to call him, as requested by Mrs. Hall, the door was closed. I didn’t knock before I went into the room. Mr. Hall was asleep; and I called and told him to get up. When I called, I was over by the bedside. When he roused up, he said, ‘Sit down on the edge of the bed.’ He was under the cover at the time. He was on the opposite side of the bed from where I approached. When he told me to sit down, he rolled over and pulled me down on the bed. I didn’t say anything. He put his arms around my neck. At that time I was already laying down. He then pulled my slacks down; he then pulled my pants down. Mr. Hall was dressed in his underwear. He did not have on pajamas. After he pulled my slacks and pants down, he lay down on me. Q. What did you do? A. Nothing. He next fingered me. He felt of me. I said nothing, and he said nothing. Q. Then what happened? A. I kicked him; just raised my knee up and kicked him with my knee. He just rolled over, back to where he was on the bed. I said nothing; I got up and went home.”

The witness continued:

. “I told my mother on the 31st day of December, 1937. I didn’t say anything to Mrs. Hall about it. My conversation with Mrs. Hall about two weeks after she was operated on took place in the living room. Mr. and Mrs. Hall and I were in the house at the time. I don’t know where Mr. Hall’s mother was. Mrs. Hall, the wife of the defendant, asked me to go in there; and I told her ‘No.’ She kept asking me to go in Hall’s bedroom. Mrs. Hall, the defendant’s wife, said she wanted me to go in there, because she had not been able to do it with him. This is the first time that I have told about that conversation. Mrs. Hall tried about three times to get me to go into the defendant’s bedroom. These occurrences were after this first; I don’t know just exactly how long. Mr. Hall usually got up about 11 o’clock, and these other two occurrences were sometime before he got up. I don’t know where his mother was when his wife asked me to go into his room.
“At the preliminary hearing, I testified that he put his hand up under my dress when we were in front of the house in the car. I went into Mr. Hall’s house to play the piano, and sometimes to use the typewriter; and up until this complaint was made, I was in and out of his house. I worked for Mrs. Hall about once or twice every week. She first talked to me about going into the room where the defendant was about two weeks after her operation. It was just before Christmas when I told the little Pierce girl what had happened. The Pierce girl lived next door to Mr. Hall. I go over to the Pierces’ sometimes and take care of the small children. I had not been to the Hall home for quite awhile before Christmas. I told the Pierce girl about what had happened, one time when I was over at the Pierce home assisting in taking care of the little children, which was just before Christmas. After I told the Pierce girl, the Pierce girl and I told the boys; I just told them what he had done. They got pretty sore about it, and said they were going to get Mr. Hall. We went into the house; and they went around the corner of the house, and that is the last we saw of. them. They came to the back door later on. I later learned they had been over to Mr. Hall’s house, and talked to him. Later I told my mother, on the 31st day of December. Bettie Sue Pierce was with me. I told my mother that Mr. Hall had mistreated us.”

On redirect examination:

“At the time I testified in the preliminary examination, I had never been on the witness stand. I had never been in court. I was a little bit nervous. The boys that Mr. Boatright asked me about were Jack Swafford and Kenneth Biggins. I told the boys about the 29th, two days before I told my mother.”

On re-cross-examination:

“On the Wednesday before, I believe, I told the two boys on Friday, I think it was, I recall that I went over to the Halls’ in the morning and wanted to play the piano, and Mrs. Hall told me Mr. Hall was asleep; and on the same evening I went back, and Mr. Hall came to the door, and said Mrs. Hall was fixing to have a party, and I couldn’t come in then. Q. And you didn’t like that very much, did you? A. No, sir.”

Joy Lynn Jernigan, testifying for the state, stated:

“I am a sister of Billie Ruth. I am 12 years of age; will be 13 on March 29th. I know the Hall family. I have lived out there, neighbors with them, and have been at their house frequently. The last time I visited in their home was about a week before vacation started at the school.”

Over the objections of the defendant, the court permitted the witness to testify that she was at the defendant home at one time when Mrs. Hall went to the store, and that the defendant tried to stick it in her, and she jerked away, and went home. “He had my pants down. It was in the front bedroom.”

The witness was cross-examined by counsel for the defendant; but the cross-examination did not elucidate anything further than what is stated herein.

At the close of the witness’ testimony, the defendant moved to exclude the same from the jury. The court overruled the motion; and defendant reserved an exception.

Bettie Sue Pierce was next called as a witness, and stated: : ] ]

“I live at 915 North Collins, next door to the defendant Ellis Hall; have lived there since the summer of 1937. I am 11 years old.”

Counsel for the state asked the witness:

“Q. Did you have a little experience there with Mr. Hall along in the early part of the fall ? A. Yes, sir.”

Counsel for the defendant objected to the witness’ testimony on the ground that it was incompetent, irrelevant, and immaterial; and inadmissible in this case for any purpose, and not in support of any issue in the information; which motion was denied and exceptions saved.

“I was playing in the yard with my brother and sister and a little child; and he had his dog on the front porch. He was a Japanese dog, and quite cute, and I went to pet the dog. While I was there Mr. Hall said, ‘If you will come in the house, he will play ball with us’; and told me to send my little brothers and sisters home. He asked me if I knew how to work a cross-word puzzle, and I told him I did not. He pushed me down on the couch, and tried to pull my pants down, and I kicked so hard that he could not. I would have screamed, but I had a lump in my throat. He began to unbutton his pants; and there was a knock at the door, and my little brother said, ‘Is Sue here?’; and he said, ‘Yes’; and I left.”

This testimony was admitted over the objection of the defendant; and at the close of this testimony a motion was made to exclude the same from the jury on the grounds that it was incompetent, irrelevant, and immaterial, which motion was overruled, and exceptions saved.

On cross-examination the witness, in substance, stated the same that she had on direct examination.

The witness testified to a conversation that took place between herself, Billie Ruth, Jack Swafford, and Kenneth Biggins, when the girls had told them what had taken place between them.

Jack Swafford was called by the state, and stated:

“I don’t know whether or not I went to the home of the defendant on the 31st of December, last year, as I don’t remember what day it was; but I remember of going over there. Kenneth Biggins went with me. We went there to talk with Mr. Hall. Q. And what did he say or do when you asked him about what happened? A. Well, he blushed and got white, and run in and got his hat, and left immediately. He said he didn’t do anything of the kind.”

On cross-examination the witness stated he was 13 years old, and that he went to school.

“I live across the street from the Hall home. I go_to school with Billie Ruth and Joy Lynn; but with Bettie Sue, I do not. The girls told Kenneth Biggins and myself what they claim the defendant had done to them.”

Considerable record is made examining the witness as to the Jernigan and Pierce families, and what took place between them; but all of it was in the absence of the defendant.

Jack Swafford continued:

“When we went to see Mr. Hall, I had my knife; and Kenneth had his.”

Kenneth Biggins testified for the state, stating:

“I live at 910 North Collins, in Okmulgee. I go to school. I know Billie Ruth Jernigan and Mr. Hall. Jack Swafford and I had a conversation with Mr. Hall about the 31st day of December, last year, on his front porch at his home. We went over and told him we had heard something that he had done; and he said he had done nothing to the girls; and went in the house, and came back with his hat on, got in his car, and drove off. We went back to the Pierce house. Mrs. Hall was there; she heard the conversation we had with Mr. Hall. Mrs. Hall was standing at the front door.”

On cross-examination the witness stated that he was 13 years old.

“Jack Swafford goes to the same school I do. He and I are together quite often; study together sometimes. I first heard of this incident through overhearing the girls talk.”

Several pages of the record are taken up in the examination of the witness, much of which is immaterial, and does not tend to establish the guilt or innocence of the defendant.

At the close of the state’s testimony, the defendant demurred to the testimony of the state on the grounds and for the reason that the same wholly fails to prove an offense as set forth in the information, or any other offense against the laws of the state of Oklahoma, which motion was overruled, and the defendant excepted.

The defendant called the following witnesses, who testified as to his previous good character, and as to his being a law-abiding citizen: Paul Whitaker, Emmet Kyle, C. B. Pair, R. R. Baggot, W. M. Meek, and M. V. Richardson.

Also, the following ladies testified as to the good character of Mrs. Hall, the defendant’s wife: Mrs. Lester Mowery, Mrs. C. B. Pair, and Mrs. M. V. Richardson. Some of these ladies testified as to both the character of the defendant and Mrs. Hall.

Mrs. Wilma Ellis Hall, called as a witness for the defendant, stated:

“My name is Wilma Ellis Hall. I am 71 years of age. In the summer of 1937, beginning in July and up until the 19th day of December, 1937, I was in Okmulgee, living with Ellis Hall. I am not very well acquainted in Okmulgee. In August, 1937,1 was living at my son’s home. I usually took a walk early in the morning, and after the sun had gone down; except one day during the fair in .the fan, I was away until after noon awhile, but the other days I had been there at the noon hour. The day I was away, I was at the 4H Fair, out at the Fair Grounds. From about the 20th to the 25th of August, 1937, I was not absent from the place during the noon hour, or during the heat of the day. I am acquainted with the Jernigan girls. They came often to the house to visit, use the piano, and typewriter. My son’s wife was away for a short while, but I remained at the home with him during her absence. During her absence, I told these girls that Ellis told me they damaged the keys of the typewriter, and I would rather they did not use it, in as nice a way as I knew how. The girls came in one time, and said his wife said they could use the large typewriter, and they wanted to. I did not raise any fuss or objection. As they came and went from the home, I did not observe anything unusual in Ellis’ attitude towards them. They were coming in and out practically every day until I left on December 19, 1937. They would be there sometimes two or three times a day and they might have stayed away as long as two or three days at a time. They continued to be in and out of the house all the time I remained there; but they did not come as often as they were in school. These girls worked for Mrs. Hall sometimes. Mrs. Hall underwent an appendicitis operation sometime in October. I do not remember the date. She was sick a few days before she left for the operation. I visited some in the Jernigan and Pierce homes during the summer. I went to the Missionary Society some in the afternoons when it was in that part of town. Occasionally after the noon hour, I would leave, after the heat of the day was past.”

Mrs. Ellis Hall, wife of the defendant, testifying, stated:

“I live at 913 North Collins street, Okmulgee, Okla. I have lived there since August, 1935. I am the wife of the defendant. I know the Jernigan girls and the Pierce girl, who have testified in this case. They live out near where I live. I have never observed anything out of the way of my husband and these little girls. The reason I asked Billie Ruth to go with us to the Fair Grounds was that Mrs. Jernigan said that she would, like for me to talk to Billie Ruth, as she had a boy friend going to college; and that she could not find out who he was, and that she would like for me to find out from Billie Ruth if possible. Billie Ruth wanted to go to the circus, and as we could not send the other girls, we did not send Billie Ruth. We drove out to Mrs. Stanger’s on the Beggs highway, about two miles north of the Log Cabin. I buy cream from Mrs. Stanger. We came back, and drove up to our home, and stopped. My husband and I got out, and went in the house; and Billie Ruth remained in the car. When we came out, she was standing beside the car. My husband did not stay in the car after I got out, but went in the house; and we came back out together. I did not send Billie Ruth into my husband’s bedroom on or about the 20th of August, 1937, to wake him up; nor did I try to get Billie Ruth to go into my husband’s bedroom, and get in bed with him. I had no such conversation, or anything that would indicate such. I first heard about this trouble on Friday evening about 4:30. My husband was at home. We were in the house; the door bell rang, and I went to the door. Kenneth Biggins and Jack Swafford were at the door. They wanted to see Mr. Hall. I asked, ‘What do you want?’ And they replied that they wanted to speak to him; and I called him to the door, and they talked. I did not hear at that time what was said. They went off, and he came back in; and I said, ‘What did they want?’ That is the first time that I heard about any complaint against my husband. My husband goes to work at about 4:45 in the afternoon; and these boys came back before he left, as he went out to get in the car. I heard that conversation. The Biggins boy said, ‘Well, they still say it is true.’ My husband said, T can’t help it, it isn’t.’ My husband then went on to work. My husband always goes to work around 4:45 in the afternoon, and gets off at 9:30 for lunch, and goes back at 10:00, and works until 1:15. He sleeps in the mornings. He is never asleep as late as 4:15 in the afternoon. At no time did I leave the house, and leave my husband and the little Jernigan girl there. These Jernigan girls came back and forth to my house almost every day, and continued to do so up until the time that the boys I have mentioned in my statement came and asked Mr. Hall about what he had done to the girls. On one occasion the girls came, and the little Pierce girl opened the piano and started to play, and I asked them not to play, because Mr. Hall was asleep. That afternoon they came back. I was having a bridge party, and I asked them to wait. Neither of the girls at any time prior to the day the boys came to our home, and told Mr. Hall they had heard that he had been mistreating the girls, had ever said a word about what they insist had happened; nor did they cease to come back and forth to our home. They worked for me some, and I paid them for helping me. My husband’s mother was with us from the 20th of July until the 20th of November. She was away for a little while, and came back and stayed until the 19th of December, 1937. During the summer, along around the 20th to 25th of August, my husband’s mother was always present at the lunch hour, as she liked to have her meals regular. It is not true, as testified by the oldest Jernigan girl, that I at any time tried to get her to go in my husband’s room and get in bed with him. I have never thought of such.”

On cross-examination Mrs. Hall stated that she would get the girls to help her with her work; that Mr. Hall’s mother was there all the time.

“If she left the house at all, it was possibly early in the morning. She did not leave after the dinner hour that I remember. After we left the carnival we went out on the Beggs road to Mrs. Stanger’s. It was probably good dark. When we got back home, I got out and went in the house; and my husband went with me. We left Billie Ruth in the car. We told her we would be back in a few minutes, to wait. I went in and fed the dog; and my husband asked his mother if she would like to ride around with us. Joy Lynn Jernigan worked for me off and on. They both did. Sometimes it would be after school was out. Bettie Sue Pierce had not been in our house very often. I do not remember the occasion when she came over to play with the dog,_ shortly before school started. I do not remember leaving her in the house when I went to the grocery store. I did not hear any of the first conversation that the boys had with my husband, when they came over to our house, and told him they had heard he had been mistreating the girls. Mr. Hall told me what they wanted. I left the home about five o’clock. I did not make a call to the Pierce home shortly after I left.”

Ellis Hall, the defendant, testified in his own behalf, stating:

“My name is Ellis Hall. I am the defendant in this case. I have never been in trouble before. I came here Thanksgiving Eve three years ago. I have been working at the Times as a lineotype operator. For several years my occupation has been printer. My occupation before I came here was printer and lineotype operator. I worked in the printing trade at Wewoka, Clinton, Mangum, and Elk City. Since coming here I have been continually employed by the Times Publishing Company. I know these girls that have testified. I never did mistreat either of them. When I first heard of what they were telling, was in the afternoon of the last day of the year, December 31st, 1937. The Biggins and Swafford boys told me. They were on my front porch. My wife and I were in the house, and I was at the typewriter fixing some coupons for shipment. She went to the door, and they told her they wanted to see me. They did not talk to her, and I got up and went to the door. One of them said, I don’t remember which one of them it was, ‘Billie Ruth Jernigan and Bettie Sue Pierce tell me you have done them wrong.’ I said, ‘What do you mean?’ They said, ‘That is what they say, that you have done them wrong.’ I said, ‘What are you talking about?’ And they said, ‘You done them wrong/ And I said, ‘You go tell them they are mistaken/ And they left.
“When they left they went to the Pierce home, and later they came back to my place. When they came back that time, they said, ‘They still say it is true.’ I told them, ‘There isn’t anything to it.’ That is all the conversation we had. I went to the Times to go to work. I go to work at 4:45 in the afternoon. I usually get off about 10:30 to 11:00 to 12:00. I get off from my work at 1:15 in the morning. I do not remember ever having been asleep in my room when Joy Lynn Jernigan was in my room or in the house near where I was sleeping; and I never did do anything out of the way to her, or attempt to, or say anything to her that was improper.
“Billie Ruth was with my wife and I, and we went out to where my wife had been buying cream from Mrs. Stanger. We came back to our home. My wife and I got out and went into the house. Billie Ruth remained in the car. We came back out, and she was standing by the side of the car. I was not working that evening. When we started for a drive, Billie Ruth said she had some school work to do, and that she would not go with us. At no time on the 20th or 25th of August, 1937, or at any other time, did I ever take any liberties with Billie Ruth Jernigan. I did not pull her down on my bed in my bedroom, nor did I say anything to her that was improper. As I stated awhile ago, the first I heard of any complaint, was the 31st day of December, 1937, when these boys came to my house.
“When the Pierce girl makes the statement she does, she is mistaken, as I at no time ever mistreated her in any way, attempted to mistreat her, or say anything to her improper. Up until the time these boys came to my house, and mentioned what they had heard, the girls came back and forth often; and I saw no change in their action. We treated them as we had always treated them. I have never seen either of these girls in my bedroom at any time. My wife asked the girls to go with us to the circus. We did not have a phone at our house, and I wanted some aspirin tablets, and I sent my wife a note to bring them down as she was going to town. I wanted to take them, because I had some cold.”

On redirect examination, the defendant stated when he retired to sleep, he slept in pajamas. “I do not sleep in shorts and undershirt. I use aspirins for a cold or headache. I have done it before and since this trouble occurred.”

On re-cross-examination the witness stated that he had his wife bring the aspirins to him as he wanted to see what had happened.

On rebuttal Mrs. Golden Jerniga'n was called as a witness for the state, and stated that Billie Ruth had never had a date that she knew of; nor did she ever have any conversation with Billie'Ruth about some boys that were going to college, and did not have any idea she was engaged to some boy that was going to college; and did not have a conversation with Mr. and Mrs. Hall relative to Billie Ruth keeping company with a boy going to college; nor did she ask them to find out.

Jack Swafford was called in rebuttal:

“I am the same Jack Swafford that testified awhile ago. When I went over to Mr. Hall’s home and talked to him about what he had done and said to the Jernigan girls, Kenneth Biggins was with me. I did not say anything to Mr. Hall about having a knife, or make any reference to my having a knife.”

Kenneth Biggins, called in rebuttal, stated that he was the same Kenneth Biggins that testified that morning.

“On the afternoon that Jack Swafford and I went to the home of Mr. Hall, neither Jack nor myself made a statement, or in substance stated, that we wondered how Mr. Hall would look with a knife stuck in his gizzard.”

The foregoing is all the testimony introduced by the state and the defendant that it is deemed necessary to set out in this record. In fact, there are, perhaps, several pages of the testimony set out that is immaterial, and some of it inadmissible, not being legally in support of the allegations in the information.

The defendant in this case has assigned ten errors alleged to have been committed by the trial court, which he insists are sufficient to warrant this court in granting him a new trial.

The defendant’s first assignment of error is that the court erred in overruling plaintiff in error’s motion for a new trial, to which ruling the plaintiff in error at the time excepted; the second, that the court erred in overruling the plaintiff in error’s amended and supplemental motion for a new trial, to which ruling the plaintiff in error at the time excepted; the third, that the court erred in admitting incompetent, irrelevant, and immaterial testimony over the objections of the defendant.

The first, second, and third assignments of the defendant are all the assignments it is necessary for this court to consider, for the reason that the motion and supplemental motion for a new trial include all the other errors assigned by the defendant; and this court will consider the record as it finds it as to the testimony, the facts, and circumstances surrounding the parties prior to and subsequent to the time the alleged offense against the defendant took place, up to and including the 31st day of December, 1937.

The undisputed facts shown by the record are: That the defendant and his wife lived near the Pierce and Jernigan families; that the Jernigan girls and the Pierce girl were back and forth at the defendant’s home often. The Jernigan girls helped Mrs. Hall with her domestic work; and that they continued to do so at intervals up to and including the 31st day of December, 1937.

If true, the crime alleged against the defendant occurred on or about the 20th of August, 1937. The relationship of the families continued unabated. The girls came back and forth; and no mention was made to any one that the defendant had mistreated or attempted to mistreat Billie Kuth Jernigan on or about August 20, 1937.

It is singular, indeed, if the statements of the prosecuting witness are true, that she continued to associate with the defendant and his wife, and say nothing about it until the day that the Swafford and Biggins boys appeared at the Pierce home. If the defendant conducted himself as the prosecuting witness undertakes to say he did, his conduct was reprehensible, and could not be approved by any law-abiding citizen. But let us stop and think for a moment. The facts show that the wife of the defendant was there in the house; and if the prosecuting witness is to be believed, the wife sent her into her husband’s room to wake him up. Does it stand to reason, is it human nature, and can anyone believe that the husband in a cottage home, where his wife was in an adjoining room, would attempt to have intercourse with a young girl ? The prosecutrix, it is true, undertakes to say that the wife, on one or more occasions, tried to get her to go into the husband’s bedroom, and get in bed with him, and have intercourse with him, for the reason that she was in such condition that she could not discharge her marital duties by having intercourse with her husband. This statement of the prosecutrix, which is denied by the defendant’s wife, does not sound reasonable, and is contrary to the law of nature, and the domestic relations that exist between husband and wife.

It is difficult to believe that a wife, even though in ill health, would try to persuade a young girl who is beginning to develop into womanhood to go into the bedroom of her husband in her home, and permit it to be desecrated by having the husband cohabit with this girl. It does not stand to reason. We will, therefore, carefully examine the record and the law applicable to the facts in this case, and ascertain whether or not the evidence is sufficient to sustain the conviction, and whether or not the defendant was given a fair and impartial trial, which he is entitled to under the law and evidence. Many questions are raised in this case, and several of them possess merit.

The defendant in his brief insists that the court erred and committed reversible error in the admission of the evidence of Joy Lynn Jernigan and Bettie Sue Pierce as to the alleged mistreatment of the defendant towards them at various times and subsequent to the offense charged in the information.

This testimony of Joy Lynn Jernigan and the Pierce girl related to the defendant’s action in no way whatever connected with the charge in this case, and to separate and distinct offenses, if any, not in any way whatever tending to establish the charge against the defendant, the charge against the defendant being a specific charge for a specific offense; and the defendant insists that the court erred in permitting the testimony of Joy Lynn Jernigan and the Pierce girl to go to the jury over his objections.

16 C. J. 586, § 1132, sets out the general rule as follows:

“The general rule is that, on a prosecution for a particular crime, evidence which in any manner shows or tends to show that accused has committed another crime wholly independent of that for which he is on trial, even though it is a crime of the same sort, is irrelevant and inadmissible. The rule extends to proof of an accusation of another crime, as well as to evidence of its actual commission.” Miller v. State, 120 Ark. 492, 179 S. W. 1001; Boyd v. United States, 142 U. S. 450, 12 S. Ct. 292, 35 L. Ed. 1077; Alexander v. State, 24 Okla. Cr. 435, 218 P. 543.

In Miller v. State, 49 Okla. Cr. 133, 295 P. 403, 406, in the body of the opinion, this court made the following statement:

“The second error complained of by defendant is that the trial court erred in permitting the county attorney to exhibit in a spectacular and dramatic manner before the jury, while the defendant was on the witness stand on his own behalf, a young girl other that the prosecutrix, and to ask the defendant, while being a witness on his own behalf, many questions indicating and charging him with having attempted by force to have sexual relations with this other little girl thus then and there exhibited.”

It seemed that this evidence was offered by the state for the purpose of showing the degenerate disposition of the defendant and the probability of the commission of the act with which he was charged. The court admitted this evidence, but when the court convened on the following morning, the judge withdrew it from the jury and made the following statement:

“The court was in error, gentlemen, in permitting that to be done. The state is not permitted to, in any way, attempt to show any other acts on the part of this defendant; neither should the county attorney be permitted to cross-examine the defendant relative to anything of that kind and all that occurred relative to those questions, and the answers, themselves, the answers given, are withdrawn from your consideration. Now, gentlemen, you are asked by the court to entirely erase from your minds, and in determining this case, not to take into consideration, in any way, either the questions that were asked this witness or the answers given or anything that occurred, at that time; remove it entirely from your minds in considering this case.”

In that case the state made no further effort to introduce evidence of this character, and made no further mention of the same to the jury.

In Miller v. State, supra, this court further stated:

“Evidence of other acts with other women in the trial of a case like the one at bar should not be admitted. In arriving at this conclusion we are not overlooking the case of Dunscombe v. State, 19 Okla. Cr. 45, 197 P. 1073. The sex instinct is a natural and universal one, and the rule with respect to the admission of this kind of evidence should not be so broad as that laid down in the case of State v. Rule, 11 Okla. Cr. 237, 144 P. 807, and Jackson v. State, 42 Okla. Cr. 86, 274 P. 696.”

The Supreme Court of Idaho, in State v. Larsen, 42 Idaho, 517, 246 P. 313, among other things said:

“In criminal prosecutions, involving sexual crimes, it is not competent or permissible to show an evil disposition inclining defendant toward that particular crime, by acts totally disassociated with, and far remote in time from, the act of which he is accused, and against an entirely different female. It is utterly repugnant to fairness and justice to accuse a person with the perpetration of a specific and definite crime, and then make that a pretext for trying him, without notice, for another alleged offense against which he is unprepared to defend, thereby producing a prejudice and bias against him in the minds of the jury.”

In State v. Williams, 36 Utah, 273, 103 P. 250, the Supreme Court of Utah, in the third syllabus, stated:

“In a prosecution for rape, it was reversible error for the state on cross-examination of the accused to compel him over objection to answer questions conveying the idea that he had permitted other children to call at his home in order that he might ravish them.”

The commission of an independent offense is not proof in itself of the commission of another crime; yet it cannot be said to be without influence on the mind, for certainly if one be shown to be guilty of another equally heinous, it will produce a more ready belief that he might have committed the one with which he is charged, and is liable to inflame the minds of the jurors, and cause them to believe the prisoner guilty. It is not only unjust to the prisoner to compel him to acquit himself of two offenses instead of one; it is unjust and unfair to the defendant to burden a trial with multiple issues that tend to confuse and mislead jury.

From the nature and prejudicial character of such evidence against the defendant, that at different places and different times he had committed a similar crime to that for which he is being tried, it is obvious it should not be received by the trial court unless the mind plainly perceives that the commission of the one tends by a visible connection to prove the commission of the other by the prisoner.

In Quinn v. State, 54 Okla. Cr. 179, 16 P. 2d 591, 596, Quinn was on trial for murder. Over the objections of the defendant the court permitted Mrs. Patton to testify that about 30 days prior to the homicide, she was crowded off the road, and was forced by the person who crowfied her off the road to leave her automobile and to accompany the party to a side road, where the party raped her. She identified the defendant, Quinn, as being the party who committed the crime.

This court in passing upon that question said:

“The evidence of Mrs. Patton was improper and highly prejudicial. No instruction of the court could take this last impression from the minds of the jury. The admission of this evidence would have required a reversal of the case, even though there were no other errors in the record.”

The admission of the testimony of Joy Lynn Jernigan and Bettie Sue Pierce, over the objections of the defendant, was reversible error, as there was nothing to indicate that their statements as to what the defendant had done to them had anything to do with the charge the defendant was on trial for.

The next question to be considered is the question, Is there sufficient evidence against the defendant to sustain a conviction of the crime of attempted rape?

The circumstances under which the prosecuting witness attempts to charge this defendant with an attempt to commit rape are such that it seems unreasonable that any sane man under such circumstances would have attempted to have sexual intercourse with the prosecutrix. He was there in his home with his wife and this young girl. The prosecutrix says she went to his room to Wake him up, and that he pulled her down on the bed, and (to use her expression) he fingered her, and that she kicked him with her knee; he rolled away, and she got up and went home. This was in August, and from that time until December 31st, 1937, this girl was back and forth to the home of the defendant and his wife, coming there at different times, and going out with them on one or more occasions; and still nothing was said about what the defendant had done to her on or about the 20th of August, 1937.

What prompted this prosecution is not apparent from the record; nor is the reason why the prosecuting witness waited from August until the last day of December to impart to her mother and others the information that the defendant had attempted to have sexual intercourse with her. It does not stand to reason that the statement is true.

The Code of Criminal Procedure provides that;

“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 3097, O. S. 1931, 22 Okla. St. Ann. § 916.

An attempt to commit a crime is defined in the Penal Code, section 1822, O. S. 1931, 21 Okla. St. Ann. § 42.

The intent is the gist of the offense charged against the defendant; and every laying of hands on the female under the age of consent, even though improper, does not necessarily imply intent to have sexual intercourse. Indecent liberties may be taken with a child without any such intent. Our statutes recognize this in providing a penalty for taking indecent liberties with a female child without intent to commit the crime of rape. Penal Code, sec. 1769, O. S. 1931, 21 Okla. St. Ann. § 22; West v. State, 27 Okla. Cr. 125, 25 P. 2d 556.

An assault with attempt to rape or attempt to commit rape includes every element of the crime of rape except the accomplishment. The intent to rape must be coupled with the specific intent to make out an offense. Intent, which is essential to support a conviction of an attempt to commit rape, cannot be assumed, but must be shown by competent evidence, and beyond a reasonable doubt.

In People v. Dowell, 136 Mich. 306, 99 N. W. 23, the court said that the intent is the gist of the offense, and that every laying of hands on a female under the age of consent, even though it is improper, does not necessarily imply an intent to have sexual intercourse. Indecent liberties may be taken with a child without any such intent. In such cases the laying on of hands upon the female and the intent to have sexual intercourse with her must concur at the same time. 33 Cyc. p. 1435.

In the case of Patrick v. People, 132 Ill. 529, 534, 24 N. E. 619, 620, it is said that to constitute an attempt to commit rape upon a female under the age of consent, the intent to know the girl carnally must have existed in the mind of the accused when he did the overt act or acts, for there can be no attempt to commit the crime unless the intent to commit it exists at the time the attempt was made; and see 1 Wharton, Criminal Law (11th Ed.) par. 215.

The only testimony in the record to show that when the prosecutrix went to the defendant’s room to call him, he made an effort to have sexual intercourse with her, is the testimony of the prosecutrix, standing alone. The wife of the defendant was in the house at the time the prosecutrix claims she went to the defendant’s room; and the prosecutrix claims that the wife directed her to go to the defendant’s room and wake him up.

The court committed reversible error in admitting, over the objections of the defendant, the testimony of Joy Lynn Jernigan and Bettie Sue Pierce, as their testimony tended to establish the action of the defendant with these girls at different times and places, and had no connection whatever with the crime for which this defendant was on trial.

The defendant, testifying in his own behalf, denied that he did anything to the prosecutrix in any way whatever to indicate that he was attempting to have sexual intercourse with her.

The wife of the defendant contradicts the prosecuting witness in her statements, as to the wife’s trying to get the prosecutrix to go into the defendant’s room and have sexual intercourse with him.

Considering these facts, and the fact that the prosecutrix waited so long before saying anything to her mother or to any one else as to what she claimed the defendant tried to do to her, and considering the further fact that the prosecutrix continued to be friendly with the defendant and his wife from August to December, we are inclined to think that the defendant was prosecuted without just cause. The court seems to have forgotten that the defendant was presumed to be innocent of the crime charged against him until overcome by competent proof of his guilt, and that the law of the land guaranteed to the defendant a fair and impartial trial. The safeguards erected by the Constitution and laws of our state are intended to protect the rights of all citizens alike. They protect the rights of the guilty as well as those of the innocent; and before a defendant should be convicted of a crime, he should by competent evidence be proven guilty beyond a reasonable doubt.

This court cannot give sanction and approval to the conviction of any person accused of crime, where the proceedings upon which the charge is based show that the accused did not have that fair and impartial trial to which he was entitled under the law.

Many of the defendant’s neighbors, who had known him for a number of years and who had lived in the community where this charge was brought against the defendant, testified in his behalf as to his previous good character. The state did not contradict, or attempt to contradict, the character witnesses, who testified for the defendant, but left their testimony, which was entitled to consideration by the jury in arriving at its verdict, unchallenged.

No man ought to be convicted of crime on mere suspicion or because he might have an opportunity to commit it. In order to sustain a conviction, there must be competent testimony, sufficient to convince the minds of the jurors beyond a reasonable doubt of the guilt of the defendant.

This court has no doubt that if the trial court had excluded the incompetent testimony of Joy Lynn Jernigan and Bettie Sue Pierce, and had declined to give instruction No. 9, which he gave over the objections of the defendant, based on the testimony of the Jernigan and Pierce girls, there was not sufficient testimony to sustain a conviction of attempt to commit rape.

For the errors herein above set forth, this case is reversed, with directions to dismiss.

DOYLE, P. J., and BAREFOOT, J., concur.