text:
    BUD ARMSTRONG v. STATE.
    No. A-3439.
    Opinion Filed Aug. 28, 1920.
    (Syllabus.)
    APPEAL AND ERROR — Review—Sufficiency of Evidence. This court will not reverse a conviction upon the ground that the evidence is insufficient to sustain the same, unless there is no testimony in the record from which the jury could reasonably conclude that the defendant was guilty, there being no contention that the jury was influenced by improper motives in arriving at the verdict.

      Appeal from District Court, Beckham County; Thomas, A. Edioards, Assigned Judge.

    Bud Armstrong was convicted of grand larceny, and' appeals.
    Affirmed.

      A. M. Beets, for plaintiff in error.

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

This is an appeal from the district court of Beckham county, wherein the defendant, Bud Armstrong, was convicted of the crime of grand larceny, and his punishment assessed at imprisonment in the state reformatory at Granite for a period of two years.

But one question is presented for review in this appeal. Counsel for plaintiff in error has filed a lengthy brief, contending that the evidence is wholly insufficient to sustain conviction, and for such reason the trial court erred in refusing to direct the jury to return a verdict of not guilty at the conclusion of the state’s evidence, 'and also erred in overruling the motion for a new trial because of insufficient evidence.

The evidence is largely circumstantial. The defendant was convicted of stealing approximately 1,000 pounds of seed cotton, the property of R. M. and W.-L. Harris, which was located on certain farms belonging to said Harris brothers, situated a few miles west of the town of Elk City in Beckham county. The cotton had been picked and was left in wagons in these fields preparatory to being hauled to the gins, and the evidence discloses, and it is admitted by counsel representing defendant, that the larceny of this seed cotton was sufficiently proved, but the contention made is that the evidence is not sufficient to connect this defendant with the commission of the crime.

The cotton was stolen on the night of the 16th of ©ctober, 1917, and the evidence on the part of the state’s witnesses is to the effect that somebody, driving a wagon with wide tires with a groove in the center, came up to these respective fields and stole from 140 .to 295 pounds of cotton out of four different wagons, carried the same to the public highway, loaded it upon a wagon with wheels having tires as above described, and the said wagon was tracked by different witnesses directly to the house of Bud Armstrong, and there was found, early the next morning after the larceny, a wagon with wheels identical with that which was tracked, loaded with approximately the same amount of seed cotton stolen the night before.' The state’s witnesses, on cross-examination, said that they could not be mistaken in tracking this wagon to the home of this defendant.

The defendant was found at his home, and made certain contradictory statements concerning how he came into possession of said cotton, claiming to some of the officers that morning that he had got some of it from a fellow by the name of Red Hawkins, and had picked some of it out of a field that belonged to defendant. Defendant also stated that he had been to Red Hawkins’ house the evening before playing cards.

Upon the trial, the defense interposed was an alibi, and the defendant and members of his family, and another witness who claimed to have been at the defendant’s home the night of the larceny, testified that defendant was at home the entire evening of the larceny, and the defendant testified that he had gathered the cotton found in the wagon off a patch that belonged to him, and that he had not stolen the same from anybody.

The principal argument advanced in support of the contention that the evidence is insufficient to sustain the conviction is that the witnesses for the state were mistaken in tracking the wagon from the scene of the larceny to the defendant’s home, and were confused by other similar tracks made by other wagons passing along the same highway having broad tires of a similar make, and there was some evidence to the effect that on the morning after the larceny wagons of this description had passed along said highway over the route alleged to have been traversed by the defendant after the commission of the crime.

The attack made upon the sufficiency of the evidence is directed against its weight. It was the sole province of the jury to judge of the weight of- the evidence and of the credibility of the witnesses. The evidence on the part of the state and that adduced by the defendant and his witnesses are in direct conflict. The jury accepted as true the testimony of the state’s witnesses, and having done so, it is not within the province of this court to substitute its judgment for that of the jury on the credibility of the witnesses. A careful examination of the testimony of the state’s witnesses convinces the court that the circumstantial evidence against the defendant was sufficient to authorize the jury to reasonably conclude that the defendant was guilty of the crime charged.

Taking such view of the evidence in this case, the court is impelled to conclude that the judgment should be affirmed, and it is so ordered.

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


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
      Ex parte KEARBY LYDE.
    No. A-3766
    Opinion Filed Aug. 23, 1920.
    (191 Pac. 606.)
    (Syllabus.)
    1. HABEAS CORPUS — Scope of Inquiry — Void Proceedings. Tbe writ of habeas corpus does not deal with errors or irregularities which render proceedings voidable merely, but such only as 'render -them 'absolutely void.
    3. SAME — Conviction—Jurisdiction. The review of a judgment of conviction and imprisonment by writ of habeas corpus is limited to the questions: -Had the court which rendered the judgment jurisdiction of the offense and of the person convicted? Or did the court in the course of the proceedings which resulted in the judgment lose judisdiction to render a valid judgment and sentence V
    3. SAME — Prima Facie Showing — Record. Where it is shown by the return that petitioner is detained by virtue of a commitment issued upon a judgment of a court of competent jurisdiction, such showing is prima facie only of the fact, and may he impeached by the record of the case for the purpose of showing that the court or judge was without jurisdiction to render the judgment.
    4. JUDGMENT AND SENTENCE — Presence of Accused — Necessity in Felony Cases. In felony cases the defendant’s presence in open court when judgment, is rendered is an essential prerequisite, and indispensable to the jurisdiction of the court to render a valid judgment. He cannot waive this right and his counsel cannot do so for him.
    5. SAME — Validity of Judgment Pronounced in Jail. Where, 'after rendering judgment in open court, in the absence of the defendant, the judge left the courtroom and proceeded to the county jail, where the defendant was confined, and there, in the absence of the court clerk and the defendant’s counsel, again pronounced judgment and sentence, held, that the court was not in session at the county jail, and the judgment and sentence there pronounced is a nullity. Held, further, that all the proceedings of rendering judgment and passing sentence were corara non judice and void.
    8. SAME — Void Judgment — Validity of Verdict — Procedure. The holding in this case that 1ho proceedings in rendering judgment and passing sentence were void only affects the judgment and sentence, and leaves the verdict and all precedent proceedings in full force and effect. The petitioner is therefore remanded to the custody of respondent pending- the rendition of judgment in conformity with law and in accordance with the verdict of conviction.
    Petition for writ of habeas corpus by Kearby Lyde.
    Petitioner remanded.
    See, also,. Lyde v. State, 17 Okla. Cr. 365, 187 Pac. 252.

      G'i'aham & Logsdon and Geo. H. Culp, for petitioner.
    The Attorney General, W. C. Hall, Asst. Atty. Gen., and T. B. Wilkins, Co. Atty., for respondent.
   DOYLE, P. J.

On behalf of Kearby Lyde, a duly verified petition for writ of habeas corpus was filed in this court, in substance, alleging that he is unlawfully imprisoned and restrained of his liberty by Frank N. Smith, sheriff of Love county; that he is so imprisoned under a commitment issued by the court clerk of said county upon a judgment of the district court of said county; that by said judgment he was adjudged guilty of the crime of rape and sentenced to be imprisoned in the penitentiary for the term of 15 years; that said judgment was rendered and entered in the absence of petitioner; that petitioner was sentenced by the judge of said district court in the county jail of Love county and outside of open court; that for the reasons stated the said judgment of conviction and the commitment which issued thereon, and the detention of the petitioner under said commitment and judgment of conviction, are illegal and void. A rule to show cause why the writ should not issue was entered and issued, and answer thereto duly made by the said sheriff on the 17th day of May, 1920, at which time the cause was submitted on an agreed statement of facts.

The record discloses, in substance, these facts: Kearby Lyde was convicted in the district court of Love county of the crime of rape, and an appeal from the judgment rendered upon such conviction was attempted to be taken to this court. On motion of the Attorney General, the appeal was dismissed because the purported case-made wras settled and signed by a judge who did not try the case, without a showing of the inability of the trial judge to settle and sign the same; said case-made not containing a duly authenticated transcript of the record proper. Lyde v. State, 17 Okla. Cr.—, 187 Pac. 252. The district court of Love county, pursuant to adjournment, convened at Marietta on the 6th day of January, 1919, and after overruling the motion of Kearby Lyde for a new trial, and in the absence of the defendant, Kearby Lyde, entered its judgment in accordance with the verdict. Then the judge accompanied by the sheriff proceeded to the county jail and there pronounced judgment and sentence. The court clerk was not present at the time.

The pertinent part of the journal entry of judgment reads as follows:

“Now, on this 6th day of January, 1919, the above-entitled cause comes on for judgment and sentence in conformity with the verdict of the jury, and defendant’s attorneys, Graham & Logsdon, having waived the presence of the defendant upon the argument of the motion for new trial, comes the sheriff of Love county and informs the court that the above-named defendant, Kearby Lyde, claims that he is unable to appear in open court for judgment and sentence by reason of sickness; that said defendant is confined in the county jail of Love county, said jail being situated upon the courthouse square in Marietta; and thereupon the judge of this court in company with the sheriff of Love county goes to said county jail for the purpose of pronouncing sentence upon the prisoner; that present at the time of pronouncing such sentence in said j ail are Hon. W. F. Freeman, district judge, F. N. Smith, sheriff, J. D. Smith, deputy sheriff, the defendant, Kearby Lyde, and the father and mother of the defendant, and no other persons; and no legal cause being shown why judgment and sentence should not be pronounced against him, and none appearing to the court, it is therefore considered, ordered, adjudged, and decreed by the court that the said Kearby Lyde be confined in the state penitentiary at McAlester, in .the state of Oklahoma, for a term of 15 years, for said crime by him committed.”

The question presented is whether the judgment is illegal and void or merely erroneous and voidable by reason of irregularities shown by the record.

The writ of habeas corpus does not deal with errors or irregularities which render proceedings voidable merely, but such only as render them absolutely void. Such has been the established rule in this court from its inception. An irregularity is defined to be the want of adherence to some prescribed rule or mode of proceeding, and it consists either in omitting to do something that is necessary for the due and orderly conducting of a suit, or doing it in an unseasonable time or improper manner. However, if the petitioner be imprisoned under a judgment of a court which had no jurisdiction to render judgment complained of, such want of jurisdiction may be inquired into on ha-beas icorpus. Under all the authorities relief can be had by habeas corpus from a void judgment of conviction.

In the case of In re Wilkins, 7 Okla. Cr. 422, 115 Pac. 1118, it is held:

‘The review of a judgment of conviction and imprisonment by writ of habeas corpus is limited to the questions : Had the court which rendered the judgment jurisdiction of the .subject-matter and of the person convicted? And did the court in the course of the proceedings -which resulted in the judgment lose jurisdiction to render a valid judgment and sentence?”

In the case of Ex parte Hightower, 13 Okla. Cr. 472, 165 Pac. 624, it is said:

“By numerous decisions of this court it is held that the jurisdiction of a court or judge to render a particular judgment or sentence by which a person is imprisoned is a proper subject of inquiry on habeas corpus, and where it is shown by the return that the petitioner is detained by virtue of a commitment issued upon a judgment of a court of competent jurisdiction, such showing is prima facie only of the fact, and may be impeached by the record of the case, for the purpose of showing that the court or judge was without jurisdiction or power to render the judgment.”

.Section 20, Bill of Rights, secures to an accused the right to a “public trial,” and the right to “be confronted with the witnesses against him,” and “the right to be heard by himself and counsel.” It is therefore the constitutional. right of an accused in felony cases to be present during the whole trial, and if he be absent there is a want of jurisdiction over the person.

Under the provisions of the Code of Criminal Procedure, “if the indictment or information is for a felony, the defendant must be personally present at the trial.” Section 5824, Rev. Laws 1910. Other sections read as follows :

“5944. For the purpose of judgment, if the conviction is for a misdemeanor, judgment may be pronounced in the defendant’s absence.
“5945. When the defendant is in custody, the court may direct the officer in whose custody he is to bring him before it for judgment, and the officer must do so accordingly.”
“5951. 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.”

These provisions of our Code require in felony cases that the judgment should be pronounced in open court, and that the defendant must be personally present when the judgment is rendered.

It was the defendant’s constitutional right, that he may not waive, to be present during the whole trial and to be present in open court when judgment was rendered. This is not only the indispensable right of the defendant, but the record must show that he enjoyed that right.

In the case of State w. McClain, 156 Mo. 99, 56 S. W. 731, the court says:

“Under the provisions of section 4237, Rev. St. 1889, the prisoner was required to be personally present at the rendition of judgment. But, aside from the statutory provisions, upon the principles of the common law, the defendant being absent, the trial court had no jurisdiction over his person, and consequently the'proceedings of rendering judgment and passing sentence were coram. non judice. The physical presence of the prisoner is the indubitable prerequisite of jurisdiction, and, without such presence, jurisdiction to render judgment and'pass sentence does not exist. Un this point a writer of acknowledged authority observes : Tn cases of felony, where the prisoner’s life or liberty is in peril, he has the right to be present, and must be present, during the whole of the trial, and until the final judgment. If he be absent, either in prison or by escape, there is a want of jurisdiction over the person, and the court cannot proceed with the trial, or receive the verdict, or pronounce the final judgment.’ Cooley, Const. Lim. (6th Ed.) 388.”

In the case of Hopt v. Utah, 110 U. S. 574, 4 Sup. Ct. 202, 28 L. Ed. 262, the Supreme Court of the United States said:

“We are of the opinion that it was not within the power of the accused or his’counsel to dispense with the statutory requirement as to his personal presence at the trial. The argument to the contrary necessarily proceeds upon the ground that he alone is concerned as to the mode by which he may be deprived of his life or liberty, and that the chief object of the prosecution is to punish him for the crime charged. But this is a mistaken view, as well of the relations which the accused holds to the public as of the end of human punishment. The natural life, says Blackstone, ‘cannot legally be disposed of or destroyed by any individual, neither by the person himself nor by any other of his fellow creatures, merely upon their own authority.’ 1 Bl. Com. 133. The public has an interest in his life and liberty. Neither can be lawfully taken except in the mode prescribed by law. That which the law makes essential in proceedings involving the deprivation of life or liberty cannot be dispensed with or affected by the consent of the accused; much less by his mere failure, when on trial and in custody, to object to unauthorized methods. The great end of punishment is not the expiation or atonement of the offense committed, but the prevention of future offenses of the same kind. 4 Bl. Com. 11. . Such being the relation which the citizen holds to the public, and the object of punishment for public wrongs, the Legislature has deemed it essential to the protection of one whose life or liberty is involved in a prosecution for felony, that he shall be personally present at the trial, that is, at every stage of the trial when his substantial rights may be affected by the proceedings against him. If he be deprived of his life or liberty without being so present, such deprivation would be without that due process of law required by the Constitution.”

It is true that the record shows that counsel for the defendant waived his right to be present when the judgment was rendered. However,- in a felony' case the defendant’s presence when judgment is rendered is an essential prerequisite and indispensable to the jurisdiction of the court to render a valid judgment. The defendant cannot himself waive this right, and his counsel cannot do so for him, nor can they, in his absence, waive any other substantial right that he may have guaranteed him.

Applying these principles on the record in this case, we are of the opinion that, the defendant not being present in open court when the judgment was pronounced, the judgment and sentence of the court is illegal and wholly void. When the judge left the bench and the courtroom the court was necessarily in recess during his absence, and the court was not in session at the county jail. The court clerk was not there present, and the defendant was not there represented by counsel, and we hold that the proceeding there in pronouncing judgment and sentence was not the judgment of any court, but the personal pronouncement of a judge made at a time when he had no power or authority to render a valid judgment. The proceeding at the jail is therefore a nullity. It follows that petitioner is unlawfully imprisoned under said judgment.

It is therefore adjudged and ordered that petitioner be discharged from imprisonment under said judgment and the commitment issued thereon. This determination, however, only affects the judgment and sentence, and leaves the verdict and all precedent proceedings in full force and effect. It is therefore ordered that petitioner be remanded to the custody of the sheriff of Love county pending the rendition of judgment in accordance with the verdict of conviction, and the district court of Love county is directed to render judgment accordingly.

ARMSTRONG and MÁTSON, JJ., concur.


author: PER CURIAM.

text:
    STATE v. DAVE CHILDERS.
    No. A-3527.
    Opinion Filed Sept. 3, 1920.
    (191 Pac. 1043.)
    (Syllabus.)
    APPEAL AND ERROR — Requisites for Appeal — Notice or Summons in Error. Before this court can acquire jurisdiction of an .appeal, either the notices required by section 5992, Rev. Laws 1910, must be served in the manner and upon the persons therein designated, or else a summons in error must be issued and served, or its issuance and service waived, as provided in the Code of Civil Procedure. Where (neither of those method® is complied with, this court does not acquire jurisdiction of the appeal, and the same will be dimissed.

      Appeal from District Court, Love County; Thomas W. Champion, Judge.

    Dave Childers was charged by information with the crime of perjury. From a judgment setting aside the information, the State takes a pretended appeal.
    Pretended appeal dismissed.

      T. B. Wilkins, Co. Atty., for the .State.

      Graham & Logsdon, for defendant in error. •
   PER CURIAM.

This is a pretended appeal by the state from a judgment for the defendant quashing and setting aside a certain information filed in the district court of Love county, Okla., in which the said defendant, Dave Chil-ders, was charged with the crime of perjury, alleged to have been committed before a certain court of inquiry held in said county.

Section 5990, Revised Laws 1910, permits appeals to be taken by the state from judgments for the defendant, quashing or setting aside an indictment or information. Section 5992, Id., is as follows:

“An appeal is taken by the service of a notice upon the clerk of the court where the judgment was entered, stating that the appellant appeals from the judgment. If taken by the defendant, a similar notice must be served upon the prosecuting attorney. If taken by the state, a similar-notice must be served upon the defendant, if he can be found in the -county; if not there, by posting up a notice three weeks in the office of the clerk of the district court.”

‘Section 5997, Id., provides:

“Instead of the appeal hereinbefore provided for any party desiring to appeal to the Criminal Court of Appeals in any criminal case may proceed by case-made and petition in error in all respects and with all the rights, as provided in ‘Procedure, Civil,’ and the summons in error shall be served upon the Attorney General, unless the same is waived as in other cases. Instead of the case-made plaintiff in error may attach to his petition in error á transcript of the proceedings of record in the trial court.”

Section 5238, Id., Procedure Civil, provides:

“The proceedings to obtain such reversal, vacation or modification shall be by petition in error, filed in the Supreme Court, setting forth the errors complained of; and thereupon a summons shall issue and be served, or publication made, as in the commencement of an action. A service on the attorney of record,' in the original case, shall be sufficient. The summons shall notify the adverse party that a petition in error has been filed in a certain case, naming it, and shall be made returnable on or before the first day of the term of the court, if issued in vacation, ten days before the commencement of the term. If issued in term time, or within ten days of the first day of the term, it shall be returnable on a day therein named. If the last publication or service of the summons shall be made ten days before the end of term, the case shall Stand for hearing at that time.”

'Section 5239, Id., further provides:

“The summons mentioned in the last section shall, upon the written praecipe of the plaintiff in error or his attorney, be issued by the cleric of the court in which the petition is filed, to the sheriff of any county (in which, the defendant in error or his attorney of record may be; and if the writ issued to a county) other than that in which the petition is filed, the sheriff thereof may return the same by mail to the cleric, and shall be entitled to the same fees as if same had been returnable to the district court of the county in which such officer resides. The defendant in error, or his attorney, may waive, in writing, -the issuing or service of the summons.”

■Counsel for the state attempted to take this appeal by service of a notice of appeal upon the court clerk of Love county, and also by service of a similar notice upon counsel for the defendant. No notice was served upon the defendant himself, nor is there any proof that the defendant could not be found within the county, and that in his absence a notice was posted for three weeks in the office of the court clerk, as required by section 5992, supra.

Further, no attempt was made to perfect this appeal by the service of a summons in error, as provided in Procedure Civil, sections 5238 and 5239, supra, nor is there any waiver of the issuance and service of such summons in error by counsel representing defendant.

Where the appeal is taken by the service of notices, as provided in section 5992, the statute must be strictly complied with by the service of a written notice, where the appeal is taken by the state, both upon the clerk of the court where the judgment was entered and a similar notice upon the defendant, 4f he can be found within the county, and if the defendant cannot be found within the county, then it is incumbent upon the prosecuting attorney to post a written notice of appeal for three weeks in the office of the court clerk. In this case, the state attempted to take the appeal. solely by serving the notices as required by section 5992, supra, and failed to either serve notice on the defendant or to show that he could not be found in the county, and thereafter failed to post a notice in the manner above set out. Before this court can acquire jurisdiction of an appeal, either the notices required by section 5992, supra, must be served in the manner and upon the persons therein designated, or else a summons in error must be issued and served, or its issuance and service waived, as provided in the Code of Civil Procedure. Neither of these methods was complied with by counsel representing the state. It is apparent, therefore, that this court has never acquired jurisdiction of this appeal, and that the same must be dismissed.

For reasons stated, the pretended appeal is dismissed.


text:
    J. J. SHEPHERD v. STATE.
    No. A-3488.
    Opinion Filed Sept. 8, 1920.
    (192 Pac. 238.)
    (Syllabus.)
    1. JUDGMENT AND SENTENCE — Conformity to Charge in Information — Gambling. 'The offense of opening or conducting or carrying on either poker, roulette, craps or any banking or percentage or gambling game for money, checks, credits or any representatives of value, as defined by section 1, e. 26, Laws 1916, is a felony. By section 6 of said act the keeping of any house, room, or place where any of the games prohibited by said section 1, are opened, conducted, or carried on, is a felony. The information charged a violation of .section 1; the verdict was guilty as charged in the information; the judgment of conviction was for “keeping and maintaining a gambling house.” Held, the judgment is void, as it was for a crime other than the one charged.
    2. EVIDENCE — Corroboration of Accomplice — Gaming. Under section 13, c. 26, Raws 1916, entitled “An act relating to gambling," the uncorroborated testimony of an accomplice is sufficient to sustain a conviction.
    3. TRIAL — Comments of Judge-Reversible Error. An improper remark of the trial judge, while overruling an objection to evidence offered, which was, in effect, a comment upon a material fact, prejudicial to the defendant, held, to be reversible error.

      Appeal from District Court, Ottawa County; Geo. C. Crump, Assigned Judge.

    J. J. Shepherd was convicted of maintaining a gambling house, and he appeals.
    Keversed with directions.

      T. J. Sargent, R. J. Skive, Hainer & Ballinger, A. C. Towne, and J. W. Bartkolomeio, for plaintiff in error.
    The Attorney General and W. C. Hall and E. L. Fulton, Asst. Attys. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, J. J. Shepherd, prosecutes this appeal from a judgment of the district court of Ottawa county, sentencing him to serve a term of seven years’ imprisonment in the penitentiary and to pay a fine of $1,000, for “the crime of keeping and maintaining' a gambling house,” rendered upon a verdict finding him “guilty as charged in the information,” and requesting- the court to assess the punishment.

The information in substance charges that one Frank Stanley and J. J. Shepherd did, in Ottawa county, on or about the 20th day of -Febuary, 1918, willfully, unlawfully, and feloniously set up and operate for hire, profit, and gain, in a certain two-story building located on the north side of Main street in the town of Tar River, certain games of chance, to wit, poker, then and there played with packs of ordinary playing cards, at which and on the result of the varying chances of said games money and other credits and representatives of value were then and there wagered and bet by divers persons unknown.

The information was filed in the district court on the 26th day of September, 1918. The defendant was arraigned October 14th, and the case was called for trial Occober 16th, at which time on motion of the county attorney the case as to the defendant Frank Stanley was dismissed. Thereupon the defendant moved to set aside the information because he had had no preliminary examination. The motion was overruled and exception reserved. Thereupon the defendant interposed a plea of former jeopardy, and objected to going to trial because the case was set for trial before his plea was entered, which objection was overruled and the case was called for trial.

Frank Warner, the first witness for the state, testified:

“I am deputy sheriff, and acted in that capacity during the month of February, this year. On or about the 20th day of February, this year, I arrested J. J. Shepherd, Frank Stanley, and R. J. Bland, in a room in the rear of a barber shop in Tar River, for playing poker. My brother was with me. I went to the front door of the barber shop, and my brother went to the back door. I walked in, and'Shepherd and another fellow came out of the little room in the rear. Shepherd had money in both hands. I asked them to go back in the rear room with me. I found a round table with a blanket on it, and I saw playing cards and some money on the table. We arrested Shepherd and Stanley and took them before Hartley, a justice of the peace, and they paid fines for playing poker.”

On cross-examination he stated that this transaction did not occur in the upper story -of a certain two-story frame building located on the north'¡side of Main street; that he did not know who owned the building where he arrested these parties or who had it leased, or who owned the tables and the cards, and he did not know who was running the gambling house; that Frank Stanley is the same Stanley whose name appears as codefendant.

Charley Warner testified:

“I am a deputy sheriff, and the complaining witness in this case. I was with my brother Frank when Shepherd and the others were arrested for gambling. They were playing poker. When we took them to the justice of the peace, Shepherd said, ‘There is no use of all us fellows paying fines; let me and Stanley pay fines, and we will pay the costs in all the cases;’ and Stanley and Shepherd paid fines.”

A. D. Hartley testified:

“I am justice of the peace in district 15, Ottawa county. I know J. J. Shepherd and Frank Stanley. February 20, 1918, J. J. Shepherd paid the fines entered on pleas of guilty of playing poker by him and Frank Stanley, of $25 each, and the costs, amounting in all to $69.30.”

Frank Stanley testified:

“I live at Scammon, Kansas. I was codefendant in this case. I was living at Tar River on February, 1918; I was running a rooming house there. It was a two-story building and I had a one-story barber shop. There was a narrow space between the rooming house and the barber shop. I had control of both places. I subleased the barber shop to Earl Conklin, and there was a small room in the back of the barber shop I was not using, which I leased, three or four days before it was raided, to J. J. Shepherd; he said for a poker game. I played stud poker there and Shepherd played in the game. I was a little winner in the games I played. Shepherd took the take-off, and conducted the game, as I understood it.”

On cross-examination he stated that he leased the building from Guy Lawyer; that Shepherd did not lease It for any specified time; that Shepherd did not pay him any rent, but his wife told him that Shepherd paid her $5.

Mrs. Frank 'Stanley testified:

“I am the wife of Frank Stanley. I was running the looming house, and J. J. Shepherd roomed at my house. He paid me the rent for his room, and one day he handed me $5, and told me to give it to Frank; ‘Frank will know,’ or something to that effect. I leased the rooming house from Mr. Man, and Guy Lawyer owned the barber shop building. I had nothing to do with it.”

As a witness in his own behalf J. J. Shepherd testified:

“I know where the building is located where this offense is charged. I rented a room in Stanley’s lodging house for $3 a week. The barber shop building belongs to Guy Lawyer’s wife, who owned the garage next door. She told me Frank Stanley had' it rented. I did not lease or sublease any part of that building for any purpose. I had nothing to do with it, and I did not open a gambling house or conduct a gambling game there, or anywhere else in the county. I played poker with Stanley about three times In the back room, and was arrested there with the others by Frank and Charley Warner. When I was moving to Joplin I paid Mrs. .Stanley $5 I owed her for my room rent. Frank Stanley sold whisky in the rear room of the barber shop and run a poker game there.”

Cross-examination:

“Q. Along about that time you was a publisher of a publication known as the ‘Rounder?’ A. Yes, sir.
“Q. Examine this, and see if it is volume 1, No. 1, of your publication known as the ‘Rounder.’ A. Yes, sir (The paper is marked ‘Exhibit A’, and a particular article therein is offered. Defendant objects as incompetent and not proper cross-examination.)
“The Court: Overruled. Read it to the jury; that part is admitted with reference to the defendant setting up and running a gambling house at Tar River. (The county attorney reads the article.)
“Q. This is the truth is it? A. I wrote that piece.
“The Court: What was your business, Mr. Shepherd, prior to the 20th of February? A. I had been working for the government up there at Funston for several months.
“The Court: What was your business at Tar River? A. I just came to Tar River; I was not in any business.
“The Court: How did you make a living? A. I had money; I had been working for seven or eig'ht months for *the government.
“The Court: Where? A. At Camp Funston.
“Q. And what did you mean when you said ‘My partner and myself declared that we would not pay $75 a month’ ? A. What I meant by me and my partner—
“The 'Court: I- think we can expedite matters if you will read that article to the jury. (Here the county attorney reads the article headed: ‘Gamblers, Cocaine Sellers and Bootleggers at War,’ which covers a dozen pages of the record and purports to be an exposure of an alleged exclusive bootlegging and gambling trust or ring that paid for official protection in the mining towns of the county).”

Redirect:

“Q. You wrote this article for the purpose of exposing the gambling law violations up in that district, didn’t you? A. Yes. (The state objects and asks that it be stricken.)
“The Court: Stricken.”

The first contention on the part of the defendant is that the evidence is insufficient to sustain the verdict of conviction. The only evidence showing or tending to show that the defendant opened and conducted a game of poker was the testimony of Frank Stanley, an accomplice. Section 13 of chapter 26., Session Laws 1916, entitled “An Act relating to gambling,” reads :■

“Any person charged with a violation of any of the provisions of this act may be convicted on the uncorroborated testimony of an accomplice, and the judgment thereon shall not be set aside or reversed by reason of the fact that such conviction was based on the testimony of an accomplice.”

By this provision this court is forbidden to reverse a judgment of conviction on the ground that the uncorroborated testimony of an accomplice is insufficient to sustain a' conviction.

There were exceptions, to remarks made by the court during the course of the trial in the presence of the jury. It appears that, in overruling the defendant’s objection to the paper offered in evidence, the court remarked: “Read it to the jury; that part is admitted with reference to the, defendant setting up and running a gambling house at Tar River.” This remark'of the court was clearly a comment on the weight of the evidence, and was therefore improper and prejudicial. It was for the court to pass upon the admissibility of the evidence offered, but it was the prov-inee of the jury to pass upon its weight, uninfluenced by the court.

It is also contended that the court erred in its instructions, and particularly in misstating the issue. The fifth instruction given by the court is in part as follows:

"If you find from the evidence that Frank Stanley was a partner or participated in running a gambling house for money or other representatives of value, which the defendant Shepherd was interested in, then in that event you will find the witness Stanley was an accomplice; and, while the defendant can be convicted upon the uncorroborated testimony of an accomplice,” etc.

Instruction No. 6 is as follows:

“You are further instructed that if you find from the evidence or entertain any reasonable doubt thereof that the defendant, J. J. Shepherd, did not open up or conduct a gambling house, as charged in the information, then it will be immaterial, so far as this case is concerned, that the defendant was arrested and paid a fine for gambling, and in this connection you are instructed that if the defendant J. J. Shepherd merely played at a game of poker for money whether he won or lost would not be material, and the fact that he paid a fine for playing poker -’hould not in any manner be considered by you, unless you find from the evidence beyond a reasonable doubt, that the defendant is guilty, as charged in the information of opening and conducting a gambling house.”

The information does not charge the crime of “running, or of opening and conducting a gambling house, as stated in these instructions.” It charges the crime of opening and conducting a gambling game as defined by section 1 of chapter 26, Session Laws 1916.

It follows that these instructions are clearly in violation of the universally accepted doctrine and the fundamental principle of law that a person may not be convicted of any offense other than the one charged, or an offense necessarily included as a matter of law. Koontz v. State, 10 Okla. Cr. 553, 139 Pac. 842, Ann. Cas. 1916A, 689.

It is also contended that the punishment imposed is excessive. It is both the spirit and intention of our laws that sentences shall be imposed in criminal cases for the protection of society and the reformation of the criminal, and sentences should be imposed in keeping with the spirit of the law. It is manifest that the trial judge imposed a sentence of excessive severity.

The record further shows that the court rendered judgment, finding the defendant guilty of a crime different from that charged in the information. The' statement of the offense in the judgment and sentence is as follows:

“J. J. Shepherd, defendant, being personally present m open court and having been legally convicted by verdict of jury and arraigned, and having pleaded not guilty to the crime of keeping and maintaining a gambling house charged in said information, and having been then and there In said court duly and legally tried and convicted of said crime.”

While no exception was taken to the judgment, obviously upon the record in this case the judgment of conviction was and is erroneous and void.

Other questions are raised, but we forbear from further discussion of'this case. Enough has been said. It is evident from this record that the defendant did not have a fair and impartial trial.

In view of the fact that the defendant has served more than a year of the sentence imposed, the district court of Ottawa county is directed to dismiss the case. The judgment is reversed, and the case remanded, with direction to proceed in accordance with the views herein expressed.

The warden of the penitentiary at McAlester will deliver the defendant to the sheriff of Ottawa county, who will hold him in custody until otherwise ordered according to law.

ARMSTRONG and MATSON, JJ., concur.


author: MATSON, J.

text:
    HARVEY WILLIAMS v. STATE.
    No. A-3327.
    Opinion Filed June 9, 1920.
    Rehearing Denied Sept. 11. 1920.
    (191 Pac. 744.)
    (Syllabus.)
    1. APPEAL AND ERROR — Review—Conviction—Sufficiency of Evidence. The. trial jury is the exclusive judge of the weight of llie evidence and of the credibility of the witnesses, and this court will not review a judgment of conviction where there is any competent evidence tending to support the same.
    2. HOMICIDE — Appeal—Right to Complain — Conviction for Lessor Degree Than Proved. Where» the defendant is placed on trial for murder and convicted of manslaughter in the second degree, he cannot legally complain because convicted of a less crime than the evidence shows him to have been guilty of.
    d. APPEAL AND ERROR — Harmless Error — Admission of Evidence. A judgment of conviction will not he reversed because of the improper admission of evidence, unless, after an examination of the entire record, it clearly appears that such error has probably resulted in a miscarriage of justice, or constitutes a violation of some constitutional or statutory right of the defendant.

      4. APPEAL AND ERROR — Necessity for Reserving Error — Instructions. Instructions not objected to in the trial court, nor called to 'the attention of the trial court in the motion for a new trial, will not be considered on appeal unless fundamentally erroneous.

      Appeal from District Court, Payne County, John P. Hicham, Judge.

    Harry Williams was convicted of the crime of manslaughter in the second degree, and he appeals.
    Affirmed.
    /. M. Springer and E. G. Wilson, for plaintiff in error.

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

Harry Williams was convicted in the district court of Payne county, at the October term, 1917, of the crime of manslaughter in the second degree, and sentenced to serve a term of two years’ imprisonment in the state penitentiary. The information charged the defendant with having murdered William Williams on the 12th day of June, 1917.

William Williams and the defendant were brothers. The killing occurred in a public highway in front of the home of the deceased about the hour of 8 o’clock p. m. The only eyewitness to the tragedy, besides the defendant, was Annie Williams, the widow of the deceased. The testimony of Annie Williams, if believed by the jury, was sufficient to support a conviction of murder. The testimony of the defendant, if believed by the jury, would entitle him to be acquitted on the ground of self-defense.

It is first contended that the evidence is not sufficient to support the conviction. It is not necessary to enter jnto a lengthy discussion of this evidence. Counsel for defendant admit that on appeal a conviction will not be reversed where tnere is any evidence reasonably tending to support the guilt of the accused, but it is strenuously contended that Annie Williams, the only eyewitness to the tragedy who testified for the state, is not a credible witness, because she was impeached in the trial court.

It is only necessary to reiterate that the trial jury is the exclusive judge of the weight of the evidence and of the credibility of the witnesses, and that this court will not reverse a judgment of conviction where there is any competent evidence tending to support the same. We find such evidence in this record.

In this connection, it is also contended that there is no evidence which would tend in any way whatever to support a conviction for manslaughter in the second degree: that the defendant is either guilty of murder or nothing,- and the jury should have found him either guilty of murder, or should have acquitted him on the ground of self-defense. —«

In the case of Robinson v. State, 15 Okla. Cr. 456, 177 Pac. 925, this court held:

“Where a defendant is placed on trial for murder and convicted of manslaughter in the second degree, he cannot legally complain because convicted of a less crime than the' evidence shows him to have been guilty of.”

It is also contended that the court erred in admitting certain competent and irrelevant testimony in rebuttal to the effect that the defendant was intoxicated some two or three hours after the killing took place.

In view of the fact that the defendant admitted his intoxicated condition at that time, and was permitted to explain his intoxication, and that he drank a considerable quantity of intoxicating liquor immediately after the killing, and in view of the further fact that there was no controversy upon the question of whether or not he was intoxicated at the time of the killing, it cannot be said that the action of the trial court in the light of the entire record was prejudicial to the defendant in permitting certain witnesses to testify that the defendant was intoxicated some two or three hours after the homicide took place.

The -Legislature has specifically provided, by section 6005, Revised Laws 1910, that no judgment of conviction shall be reversed because of the improper admission of evidence, unless, after an examination of the entire record, it clearly appears that such error has probably resulted in a miscarriage of justice, or constitutes a violation of some constitutional or statutory right of the defendant.

It is also contended that the court erred in giving instruction No. 141/4 of the general charge to the jury, which said instruction related to the law applicable to self-defense.

This instruction was not excepted to in the court below. In fact, the record indicates that the instruction was probably given at the request of the defendant.

The specific objection urged against the instruction is that it is not applicable to the issues in the case. The instruction is not fundamentally erroneous, and in the absence of a specific objection taken to the same in the trial court, and in view of the further fact that this alleged error was not called to the attention of the trial court in the motion'for a new trial, no question is presented properly to be considered on appeal.

Other instructions are complained of, but they are such as have heretofore been approved by this court in homicide cases, and are based upon statutory provisions relative to homicide. We find no reversible error in the action of the trial court in giving such instructions.

While the evidence in this case on the part of the state and that of the defendant is in direct conflict as to what occurred at the time of this killing, the jury having decided such conflict against the defendant, and the record before us disclosing no prejudicial error, it is the opinion of this court that the judgment of the district court of Payne county sentencing the defendant to serve a term of two years’ imprisonment in the state' penitentiary should be affirmed.

It is so ordered.

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


text:
    JOHN WILEY v. STATE.
    No. A-3454.
    Opinion Filed Sept. 11, 1920.
    (191 Pac. 1057.)
    (Syllabus.')
    1. TRIAL — Refusal of Requested Instructions Not Sustained by Evidence. Instructions requested must be based upon the evidence: and, where the evidence does not sustain the request, rhere is no error in refusing to give the instruction.
    2. TRIAL — Province of Jury — Question Whether Witness Was Accomplice — Instruction. Where the evidence is conflicting as to whether a certain 'witness is an accomplice, it is proper for the court to instruct the jury on the law of accomplices, and leave the question of whether or not the witness is an accomplice for the decision of the jury as a matter of fact.

      3. EVIDENCE: — Accomplices—Refusal of Requested Instruction. A requested instruction, in substance to the effect that if the jury believes any witness lias been promised immunity, or entertains the hope of immunity, from any prosecution poudiDg against him for some other offense than that upon which the defendant is being tried, he stands in the relation of an accomplice to the defendant, and that the testimony of such a witness should he corroborated in the manner required of accomplices, is properly refused.
    4. EVIDENCE — Relevancy—Evidence Affecting Credibility of Witness. As the jury is the exclusive judge of the weight of the evidence and of the credibility of each and every witness, anything that properly tends to cast light upon the credit to be given to a witness is a matter that should be permitted to go before the jury for its consideration.
    5. APPEAL AND ERROR — Harmless Error — Exclusion of Evidence. By express statutory enactment, this court is precluded from reversing a judgment of conviction because of the exclusion of evidence properly tendered, unless after an examination of the entire record it is apparent to this court that the exclusion of such evidence probably resulted in a miscarriage of justice', or deprived the defendant of some constitutional or statutory right to liis prejudice.
    6. APPEAL AND ERROR — Modification of Judgment — Conducting Liquor Nuisance. The Legislature has seen fit to vest in this court power and authority to modify a judgment of conviction where the ends of justice seem to require it. Eor reasons why the judgment of conviction should be modified in this case, see body of opinion.

      Appeal from County Court, Oklahoma County; W. R. Taylor, Judge.

    John Wiley was convicted, of maintaining a public nuisance, and he appeals.
    Modified and affirmed.

      Gidding-s & Giddings, for plaintiff in error,

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

John Wiley was convicted at the May term, 1918, in the county court of Oklahoma county, of the crime of maintaining a public nuisance in a room and building at 501 North Hudson street, Oklahoma City, Okla., in which said room certain spirituous, vinous, fermented, and malt liquors, to wit, whisky, alcohol, and Jamaica ginger, were possessed and kept by the said John Wiley for the purpose of sale, etc., and at which said place numerous persons resorted and congregated for the purpose of drinking said intoxicating liquors, and did drink the same on said premises during a period of time continuously from the 1st day of July, 1917, up to and including the 22d day of October, 1917. A trial by jury resulted in a verdict of guilty, and the punishment assessed at a fine of $500 and imprisonment in the county jail for a period of six months. The court, after overruling the motion for a new trial, pronounced judgment of conviction against defendant in accordance with the verdict rendered.

Roy Cogswell, a witness for the state, testified in substance as follows: That he was a plain clothes man on the Oklahoma City police force; was acquainted with the defendant, and also acquainted with the premises known as 501 North Hudson street, Oklahoma City. That he had visited said premises about three times between the 1st day of July, 1917, and the 22d of October, said year. That the defendant was keeping a drug store on said premises. That the first trip witness made to the premises, Capt. Slayton and John Heep of the police force accompanied witness. That there were two or three persons in the drug store at the time, one of whom was Doc. Holman. That the defendant was also there. That when the officers went in the building, Doc. Holman ran out of the door and up the street. Witness does not remember if they found anything inside the building at that time. On the second visit, witness found a half pint bottle of whisky in the back part of the prescription case, and a pint bottle was also found behind some bottles on a shelf in the back part of the room. John Heep was with witness on this visit. That Heep found the bottle along the north wall in the back of the drug store behind some large bottles on the shelf. These bottles of whisky were identified and introduced in evidence. The third visit witness made to the premises he found Mr. Wiley back of the prescription case and three other men back there drinking, and a whisky glass and a quart bottle were sitting on the back of the prescription pa-se. That the men were drinking. Witness also testified that he lived about 100 feet west of the premises of the defendant, across the street from the same, and was acquainted with the general reputation of the place in that neighborhood between the 1st of July, 1917, and the 22d of October, said year, as to its being a place where alcohol, whisky, and Jamaica ginger were kept for sale, and where people congregated and resorted for the purpose of drinking intoxicating liquors, and that said place had a bad reputation in that respect.

John Heep, on behalf of the state, testified in substance as follows: That he was a police officer of the Oklahoma City Police Department, was acquainted with the place at 501 North Hudson street. That said place was owned and kept by the defendant, John Wiley, between the 1st of July and the 22d of October, 1917, that witness was at said place twice during said time. That on the first visit there a man by the name of Holman ran out of the place and threw two bottles of whisky out on the sidewalk and broke them. That on another occasion witness went there with Mr. Cogswell, and two bottles of whisky were found in the place; one was found in a little drawer by the prescription case, and the other was sitting on a shelf back of some bottles. Witness testified that he was not acquainted with the general reputation of the place.

H. V. Owens, on behalf of the state, testified, in substance, that he was an automobile salesman for the Chal-mers cars; that he had been in said business about two months; that prior to that time he had run a transfer business, and had also railroaded some; that he was acquainted with the defendant, John Wiley, and had visited his place at 501 North Hudson between the 1st of July and October 22, 1917, probably as many as a dozen times; had bought intoxicating liquor from defendant during that time two or three times; that he bought whisky, generally bought a couple of drinks at a time; that he had also bought Intoxicating liquor from a fellow whose nickname was “Skeet,” who worked at said place; that he bought whisky, alcohol, and Jamaica ginger from Skeet; that he bought the Jamaica ginger at the soda fountain, and the whisky behind the prescription case at the west end of the building. Witness also testified that he was acquainted with the general reputation of the place as to being a place where intoxicating liquors were kept for sale, and that said reputation was bad. Witness also testified he had been convicted of a violation of the prohibitory liquor laws. On cross-examination, witness testified that he had been convicted of bootlegging three times, that is, for unlawful possession of whisky; that no cases were pending against him at this time; that he was arrested with one Paul Atkins (sometimes called “Skeet”) when Skeet hauled a grip full of whisky in witness’ automobile, but that no criminal charge v-ns filed against him; that he knew Atkins was selling whisky in defendant’s place of business, and knew that before he and Atkins were arrested for hauling whisky in the car.

Paul Atkins, a witness on behalf of the state, testified, in substance, as follows: That he lived in Oklahoma City, and was working for the Fisk Rubber Company, and had been working for said company about six months prior to ifiat time. Lie had worked .for oefendant, John Wiley, in his drug store at 501 North Hudson as a clerk, began working there a week or so before September, 1917; that he quit working there in the latter part of October; that Wiley was the owner of the drug store, and hired the witness; that witness had seen intoxicating liquor around the drug store, and had sold the same during the time he clerked there; that he could not call the names of all to whom he had sold whisky. When he received money from the salé of whisky, he registered it in the cash register; that Mr. Wiley furnished the whisky; that he had seen Wiley sell whisky in there on numerous occasions; that witness had also sold alcohol and Jamaica ginger; that witness was not there when Heep and Cogswell raided the place. On cross-examination, witness testified that he had been convicted and paid a fine for drunkenness. Witness denied that Mrs. Wiley had fired him for selling whisky in the drug store, or had told him to get out of the store. Witness testified that he and Vick Owens had been arrested for transporting whisky in a suit case; that John Heep and Roy Cogswell were two of the officers that arrested them; that they filed a charge against witness for that offense; and in this connection the following proceedings were had:

“Q. What was that for — did you. ever put up a bond in that case?
“By Mr. Callihan: Objected to; not proper Impeaching question. The only question he could be asked is if he has ever been convicted; the fact that he was arrested is no evidence of guilt.
“By the Court: The court understands that.
“Mr. Callihan: I move to strike the question and answer with reference to ever being arrested in the county court.
“By the Court: Sustained.
“Q. What has become of that transporting charge in the county court?
“By Mr. Callihan: Objected to as not a proper impeaching question.
“Q. You were arrested for transporting in October; has that case ever been tried yet?
“By Mr. Callihan: Objected to as incompetent, irrelevant, and immaterial.
“By the Court: Sustained.
“By Mr. Giddings: Exception.
“By Mr. Giddings: We offer to prove that the witness Atkins has a case pending against him in this court, for unlawful transportations of liquor, and that it has been pending since October 17th and has never been tried as indicating either a promise of immunity on the part of the prosecution or a hope of immunity on the part of the witness. The evidence being admissible, the weight of it is entitled to the consideration of the jury.
“By the Court: Overruled.
“By Mr. Giddings: Exception.”

On behalf of the defendant, Alonzo Barton testified substantially as follows: That he was manager of the NIles-Mosier Cigar Company, and had been in that business a little over two years, and knew defendant, John Wiley, and visited his place at 501 North Hudson about once a week for the purpose of selling cigars; that witness never saw any liquor in there, or never saw anything to indicate while he was there that liquor was sold in said place.

William R. Humphrey, on behalf of the defendant, testified substantially as follows: That he was in the wholesale cigar business; had lived in Oklahoma City 21 months, knew defendant Wiley and his place of business, and would visit said place on an average of one or two times a week, and stayed there probably ten minutes at each visit. That he never saw any whisky sold there; never saw any crowds carousing around in there, or anything indicating that liquor was sold on said premises during his visits there.

E. H. Dudley, on behalf of the defendant, testified, in substance, as follows: That he was in the wholesale drug sundry business in Oklahoma City, knew defendant, had known him about eight years, and had occasion to visit his place of business on North Hudson for the purpose of selling defendant goods; that he never saw any evidence of defendant selling intoxicating liquor in said place; never saw any crowds assembled there, or any disorder or conditions indicating that intoxicating liquor was sold there, and never saw any people drunk in there. That the general reputation of the drug store between July 1, 1917, and October 1, 1917, as a peaceable, law-abiding place was good. That the general reputation of the defendant in the community in which he lived as a peaceable, law-abiding citizen was good.

Ben Waldrep, on behalf of the defendant, testified, in substance, as follows: That he was a foreman for Towler’s Laundry; knew the defendant for about two years; lived in the neighborhood of his drug store for nearly a year, and was in the drug store on the occasion that some officers made a search of the same; had gone there to buy a package of cigarettes. That one of the officers came in about the same time witness did. Witness went in and told Mr. Wiley he wanted some cigarettes, and Wiley threw the cigarettes over to witness, and just then one of the officers said, “What have you got in here?” and about that time the other two officers stepped in, and witness stood and watched them, and two of them went back to the back end of the store, and, the captain, who had on a blue suit and cap, went behind the counter and show case, and reached around and drew a bottle with some whisky in it out of his hip pocket, and reached up on the shelf, and then ordered Mr. Wiley to. open the safe, and then the officer said, “What are you doing with this here whisky?” and Wiley said, “It isn’t mine.” Witness saw the officer take the whisky out of his pocket and reach it up on the shelf. The witness was in the place frequently before that, nearly every evening. That he had never seen any liquor sold there, and had never seen any carousing around or drinking in there. That the general reputation of the defendant in the community as a law-abiding citizen was good.

Mrs. J. D. Wiley testified on behalf of the defendant, in substance, as follows: She was the wife of the defendant. That defendant operated a drug store at 501 North Hudson street, and had several different clerks, one being Paul Atkins, and another Ed Paschel. That witness would go there' to the drug store nearly every day about noon, and stay until 10 o’clock at night. That Paul Atkins commenced to' work there in September, 1917. That Atkins was always drinking and bringing liquor in there, and witness told him to get out and stay out. That defendant never kept intoxicating liquors in the drug store, nor «old the same in there. That witness never saw any in there nor saw any men loitering around or carousing in there. Witness also testified that she had a conversation with Paul Atkins, in which she told him that she had heard that he was selling intoxicating liquor in there, and that he had to get out if he was bringing it in.there, and Atkins said it was up to John, and if he wanted him out he could put him out. Witness also testified that she remembered the occasion of Atkins and Owens getting arrested for transporting liquor about two weeks before the officers came to the store and found liquor there. That the witness had heard her husband tell Atkins not to come in there drunk, and not to sell any liquor in there.

Counsel for defendant also offered to introduce in evidence the appearance docket of the county court of Oklahoma county, in case No. 4694, entitled State of Oklahoma v.'Paul Atkins, to which counsel for the state objected on the ground that the evidence was incompetent, irrelevant, and immaterial, which objection was sustained by the court, and exception taken by counsel for the defendant, at which time the following proceedings were had:

“By Mr. Giddings: We offer in evidence page 136, Appearance Docket, in the County Court of Oklahoma County, Oklahoma, Criminal No. 12, the same being the case of the State of Oklahoma v. Paul Atkins, No. 4694, Information filed October 6, 1917. -October 12 bond fixed $500. Defendant ordered released October 12th. October 25th, entry order set for November 6th. November 6th, entry stricken for term on application state. November 27th, case set for December 13th. December 13th, entry brder stricken from assignment motion state. No further action taken in said cause since December 13, 1917.
“By Mr. Callihan: Objected to as incompetent, irrelevant, and immaterial for any purpose.
“By the Court: Sustained.
“By Mr. Giddings: Exception.
“By Mr. Giddings: I want to offer in evidence the information in case State v. Paul Atkins, and particularly the names of the witnesses on the information, the same being the same case as shown by the appearance docket.
“By Mr. Callihan: Objected to as incompetent, irrelevant, and immaterial.
“By the Court: Sustained.
“By Mr. Giddings: Exception.”

John Wiley, defendant, testified that he was 42 years of age, married; that he ran the drug business at 501 North Hudson between July 1 and October 22, 1917; that he had been in the drug business some 20-odd years; that he was a registered prescription clerk, and had been in business at 501 North Hudson since March, 1917; that he had heard the testimony of Vick Owens, and that he had never sold any whisky to Vick Owens, and if the Atkins boy sold any whis-ky to said Owens it was without witness’ knowledge; that witness had employed Atkins to run the soda fountain; that witness had never sold any liquor in that place. Witness remembers when the officers came there and made a search, and claimed that they found whisky in there; that that was about two weeks after the Atkins and Owens boys were arrested for transporting liquor; that witness does not remember of any raid having been made on his premises before these boys were arrested for transporting; that witness never permitted people to congregate in his place, or drink intoxicating liquor in there; that his wife assisted him in conducting the store; that he had never been convicted of any crime, had never sold or bootlegged intoxicating liquor; that he fired the Atkins boy when he found out that he was not doing the right thing. On cross-examination, the defendant testified, in substance, that he had come to Oklahoma City from McAlester, and had moved from Lawton to McAlester; that he had run drug stores both in Lawton and McAlester; that Paul Atkins had worked for him in Lawton for’about a year; that he had furnished money to Paul Atkins, when in Lawton, and that Paul Atkins had sold whisky from his own home in Lawton; that witness had got interest on the money that he had loaned Atkins to buy whisky with.

In rebuttal, for the state, W. W. Slayton, testified, in substance, as follows: That he was captain of the Oklahoma City Police Force; knew defendant, Wiley, when he saw him; was at defendant’s place of business on October 21, 1917, with Cogswell and Heep. That he visited there between 1:30 and 3 o’clock in the afternoon. That witness •did not take any bottle of whisky to the drug store with him in his pocket, and put it on a shelf and then ask defendant where he got that whisky. That he had no recollection of seeing any whisky in the drug store, except that he might have seen a small quantity in some bottles, and that he did not find any whisky himself when he was there.

The defendant requested the court to give the following instructions, which were refused and excepted to by counsel for defendant, and exception allowed by the court:

“(1) You are instructed that under the law the witnesses Paul Atkins and Vick Owens are accomplices, and you cannot convict the defendant upon their testimony unless the same is corroborated by other evidence tending to connect the defendant with the offense charged, and the corroboration is not sufficient if it only shows the commission of the offense.
“(2) Defendant is on trial for maintaining a public nuisance, and not for any other offense. If you find that at some other time he committed some other offense, the same can only be considered by you as affecting his credi-' bility.
“(3) ’If you believe that one witness, or witnesses, in this case has been promised immunity, or entertains the hope of immunity, you may take that fact into consideration in weighing the testimony of any such witness, or witnesses. • In such event the testimony of such witness should be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense, or the circumstances thereof.
“By immunity is meant some promise, express or implied, by which such a witness gains some advantage to himself, either in lighter punishment for his crime, by dismissal of a criminal charge against him, and by obtaining further consideration by so testifying, than, he would obtain from the prosecution otherwise, or even if he hopes to Obtain such immunity, and so hopes when testifying, that fact also may be considered by you in weighing his evidence and fixing his position in this case as an accomplice, or as one who has been promised or hopes for immunity.”

It is first contended that the trial court' erred in refusing to give defendant's requested instruction No. 2, supra, to which refusal proper exception was taken at the time. Counsel for defendant strenuously contend that the refusal of the court to give this instruction was prejudicial to the substantial rights of the defendant, in that there was evidence introduced upon the cross-examination ' of the defendant which tended to show that, while the dé-fendant was engaged in the drug business in the city of Lawton, Okla., defendant furnished certain money to Paul Atkins, who was afterwards employed by him in his place of business at 5Ó1 North Hudson, Oklahoma City, for the purpose of providing funds to said Atkins with which to obtain whisky for illegal sales; that while such evidence tended to establish the guilt of the defendant of an independent crime, it was only admissible for the purpose of affecting the credibility of the defendant, and not for the purpose of establishing his guilt of the crime charged, because the same was not connected in any manner with the keeping of the alleged public nuisance at 501 North Hudson street, in Oklahoma City, which crime, if any, occurred long subsequent to the time defendant furnished money to the said Atkins for-this illegal purpose. There is evidence in the. record to the effect that the defendant, during the period between July 1, 1917, and October 22, 1917, as alleged in the information, made divers sales of whisky to persons in his said place of business at 501 North Hudson street. This evidence of particular sales by the defendant in said place of business during said period of time was competent and material to the issues in the case, and was relevant, in that it tended to show the intent of the defendant to sell intoxicating liquor in said place; the searching officers having found quantities of whisky in said place of business during that period of time. It is apparent, therefore, that the evidence on the part of the state tended to prove other offenses connected with one for which he was being tried, which was competent as tending to establish his guilt of the offense charged.

■ The requested instruction was too general. Counsel should have limited the request to the evidence of the alleged offense of aiding and abetting Paul Atkins in the sale of whisky at Lawton, Okla. This was not done, and the trial court could have with propriety refused to give the requested instruction because it was not restricted, in its terms, to what the defendant considered was proof of an offense not connected with the one for which defendant was being tried. As heretofore stated, the state’s evidence tended clearly to connect the defendant with sales of whisky made in his drug store between July 1, 1917, and October 22, 1917, by his clerk, Paul Atkins; and, while the defendant admits that he furnished money to Paul Atkins with which the said Paul Atkins probably purchased intoxicating liquor for the purpose of illegally selling same from Atkins’ home in Lawton, the testimony of the defendant on cross-examination was not sufficient to brand him as an accomplice of Atkins in the sale of whisky at Lawton. The defendant denied any interest in the whisky that Atkins sold at Lawton, and denied that he received any profit from any sale made by Atkins at Lawton. He testified merely that he loaned Atkins money, upon which Atkins paid him interest. Had the defendant objected to this line of cross-examination, the trial court should have excluded the same, but no objection was interposed by counsel representing defendant, and the answers of the defendant were insufficient to brand him as a criminal, in that he aided and abetted Paul Atkins in the illegal traffic in whisky while they both lived at Lawton. Had the instruction, therefore, been in proper form, it is apparent that the refusal of the trial court to give the same would not have been prejudicial to the defendant in this • case, because his own testimony does not indicate his guilt of-any criminal offense connected with the sale of intoxicating liquors by Atkins at Lawton, as contended for in the brief of counsel for defendant.

Instructions requested must be based upon the evidence, and where the evidence does not sustain the request, there is no error in refusing to give such requested instruction. Hunter v. State, 3 Okla. Cr. 533, 107 Pac. 444.

It is also contended that the trial court erred in refusing to give defendant’s requested instruction No. 1, supra. In this connection, counsel contend that, where the undisputed evidence shows as a matter of. law that a witness is an accomplice, it becomes the duty of the court, when specially requested by the defendant so to do, to instruct the jury that such witness is an accomplice, and must be corroborated. Counsel admit, however, that when the evidence is in dispute as to whether a certain witness is an accomplice, it is then the general and accepted rule that the court should instruct the jury on the law of accomplices, and leave the question of whether or not the witness is an accomplice for the decision of the jury as a matter of fact. In this case, counsel for defendant say that there is no dispute in the evidence as. to the witness Paul Atkins, being an accomplice in the commission of this crime. With this contention we cannot agree. While some evidence on the part of the state, standing alone, would indicate that Atkins was an accomplice of defendant, there is other evidence in the record by defendant and some of his witnesses which directly conflicts with the state’s evidence on this question, and which tends to prove, if believed by the jury, that Atkins was not an accomplice of the defendant in maintaining the alleged nuisance at 501 North Hudson street during the period of time alleged in the information. The trial court gave an instruction defining an accomplice, and on the necessity of corroborating such a witness by other evidence tending to connect the defendant with the commission of the 'offense. Tlhe instruction given was a correct statement of the law applicable to accomplices’ testimony, and was sufficient, where the evidence is in dispute as to whether or not a certain witness is an accomplice. We think, therefore, that the trial court did not err in refusing to give instruction No. 1, because the law applicable to the evidence in the case was fairly covered by the instruction given on the court’s own motion.

It is also contended that the trial court erred in refusing to give requested instruction No. 3. This instruction w^s properly refused. It does not correctly state the law. In the requested instruction, the court is asked to advise the jury that, if they believe any witness has been promised immunity, or entertains the hope of immunity, from any prosecution pending against him, the testimony of such witness, or witnesses, should be corroborated by such other evidence as tends to connect the defendant with the commission of the offense and the corroboration is not sufficient if it merely shows the commission of the offense and the circumstances thereof. In other words, the request asked the court to instruct the jury that any person who had been promised immunity from prosecution for any other offense for giving testimony in this case was to be treated as an accomplice of the defendant, so far as the necessity of corroboration of such a witness was concerned. There is no statute of this state that requires that extent of corroboration of a witness who has merely been promised immunity from prosecution for some other offense not connected in any way with the offense for which the defendant is being tried.

Further, it is contended that the trial court erred in refusing to permit the defendant to introduce in evidence the appearance docket of the county court of Oklahoma county, in a case against Paul. Atkins then pending in said court, for the purpose of proving his interest and hope of immunity by testifying for the state as a witness in this case. We think that evidence that there was a criminal action pending against the witness Paul Atkins in the same'court undetermined, controlled by the same prosecuting officers-, was proper to be shown, for the purpose of affecting the credibility of the witness. Counsel for defendant offered to show, on the cross-examination of the witness Paul Atkins, that such a case was then pending against him, and upon objection by the state the trial coupt excluded this evidnece. Thereafter counsel for defendant offered to introduce the appearance docket of said court for the purpose of showing these facts, and this evidence was excluded, also over the exception of counsel for defendant. While this court has held that it is not a proper method of impeachment of a witness to show merely that he has been arrested and charged with crime, it is nevertheless proper for the jury to know that at the time the witness is testifying he is in a position to receive some benefit from the same prosecuting officers should his testimony be favorable to the prosecution, even though an express promise of immunity had not been given the witness. As the jury is the exclusive judge of the weight of the evidence and of the credibility of each and every witness, anything that properly tends to cast light upon the credit to be given to a witness is a matter that should be permitted to go before the jury for its consideration. We think, therefore, in this instance, that the trial court should have permitted counsel for defendant to cross-examine the witness Atkins along the lines indicated by the questions asked, and by the offer of proof made by counsel for defendant.

However, this court, by express Statutory enactment, is precluded from reversing a judgment of conviction because of the exclusion of evidence, unless after an examination of the entire record it is apparent to this court that the exclusion of such evidence probably resulted in a miscarriage of justice, or deprived the defendant of some constitutional or .statutory right to his prejudice. An examination of the record in this case discloses ample evidence, in addition to that given by the witness Atkins, sufficient to have authorized the conviction of the defendant. We cannot, say, therefore, that the exclusion of this evidence resulted in a miscarriage of justice.

The punishment imposed by the jury is the maximum fixed by the statute. It is the punishment generally imposed upon those who are confirmed violators of the law, or else in aggravated cases. This is the first time defendant has ever been convicted.

The Legislature has seen fit to vest this court with power and authority to modify a judgment of conviction, where the ends of justice seem to require it. In this instance, after a careful consideration of the evidence in connection with the alleged grounds for reversal, the conclusion is reached that the judgment should be modified to provide a fine of $250 and imprisonment in the county jail for a period of 80 days; and, for the reasons stated, this judgment is modified to provide a fine of $250, instead of a fine of $500, and to provide imprisonment in the county jail for a period of 30 days, instead of six months, and, as so modified, the judgment is affirmed.

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


author: DOYLE, P. J. DOYLE, P. J.

text:
    ED REED et al. v. STATE.
    No. A-3417.
    Opinion Filed March 31, 1920.
    On Rehearing, Sept. 15, 1920.
    (191 Pac. 1041.)
    (Syllabus.)
    1. INDICTMENT AND INFORMATION — 'Information—Conciseness and Certainty. An information is sufficient if it charges nn offense in ordinary and concise language, and in such a manner as to enable a person of common understanding to Know what is intended, and with such a degree of certainty as to enable the court to pronounce judgment upon a conviction according to the right of the ease.

      2. TRIAL — Severance—Gaming. A severance in a prosecution for unlawfully conducting gambling games is not a matter of right on the part of a defendant, and may only be granted for good cause shown. Section 12, c. 26, Session Laws 1916.
    3. APPEAL AND ERROR — Conviction—Sufficiency of Evidence. Where the uncontradicted testimony sustains a conviction, the judgment will not be reversed on appeal.

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

    Ed Reed, J. M. Barron, and Tom Ford were convicted of conducting prohibited gambling games, and they appeal.
    Modified and affirmed.
    But see, also, 17 Okla. Cr. 672, 192 Pac. 426.

      W. F. Bowman, for plaintiffs in error.

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

Plaintiffs in error, Ed Reed, J. M. Barron, and Tom Ford, were tried and convicted, and the punishment of each assessed at imprisonment in the penitentiary for two years and a fine of $500, on an information which, after alleging venue and time, charges:

“They, the said Ed Reed, J. M. Barron, and Tom Ford, did then and there unlawfully, willfully, feloniously, open, conduct, and cause to be opened and conducted in a certain upper story of a certain brick building, situated on lot 5, in block 326, in the city of Ardmore, Carter county, Okla., and by them occupied and of which they had control, and did then and there permit and caused to be set up and used for the purpose of gambling certain tables, to wit, poker and crap tables, and divers other gambling devices at which banking and percentage games were played with cards, for chips, money, credits, and other representatives of value, and were conducted by the said Ed Reed, J. M. Barron, Tom Ford, and divers other persons to your informant unknown, contrary to,” etc.

From the judgment rendered on the verdict an appeal was taken by filing in this court on June 8, 1918, a petition in error with case-made. There was a demurrer to the information that was overruled, and this ruling is the first error assigned.

The information charges a violation of section 1, c. 26, Session Laws 1916, which provides that—

“Every person who opens, or causes to be opened, or who conducts, whether for hire or not, or carries on either poker, roulette, craps or any banking or percentage, or any gambling game played with dice, cards or any device, for money, checks, credits, or any representatives of value, or who either as owner or employe, whether for hire or not, deals for those engaged in any such game, shall be guilty of a felony, and upon conviction thereof, shall be punished by a fine of not less than five hundred dollars, nor more than two thousand dollars, and by imprisonment in the state penitentiary for a term of not less than one year nor more than ten years.”

An information is sufficient if it charges an offense in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended, and with such a degree of certainty as to enable the court to pronounce judgment upon a conviction, according to the right of the case. Code Crim. Proc. § 5746, Rev. Laws 1910.

Nb indictment or information is insufficient, nor can the trial, judgment, or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form, which does not tend to the prejudice of the substantial rights of the defendant upon the merits. Code Crim. Proc. § 5747, Rev. Laws 1910.

Tested by the above rules the information in this case is sufficient, and the court did not err in overruling the demurrer thereto.

There was a demand for a severance that was denied, and this ruling is the second error assigned.

Section 12, c. 26, Session Laws 1916, provides:

“Persons jointly charged with the violation of any of the provisions of this act shall be tried together, provided the court for good cause shown may grant a severance.”

It thus appears that a severance in a prosecution for a violation of any of the provisions of chapter 26, Session Laws 1916, is not a matter of right on the part of the defendants, but will only be granted for good cause shown. In this case the record shows that the defendants merely requested the court that a severance be granted, and no showing was made why the same should be granted.

The overruling of the defendants’ motion for an instructed verdict is the next error assigned. The undisputed facts show that the defendant Reed had a lease and paid the rent to the owner of the place described in the information, and on the date alleged Deputy Sheriff Brooks, accompanied by Fred Pyeatt, raided the place. When the officers went up the stairs to raid the place the defendant Barron opened the door to allow a man to pass out, and as the officer stepped in he tried to push him back and said, “Don’t go in there.” The officer passed in and found the defendant Ford standing in the second door. They passed in and found seven or eight men sitting- at the tables gambling. The defendant Reed was sitting behind one of the tables, on which were cards, dice, money, and chips. The offieers picked up from the tables about $62. The defendants all asked the officer to let them down as light as he could. The defendants did not offer any evidence.

The principal question .in the case is whether the evidence is sufficient to support the verdict, and we are of the opinion that it is, and for this reason the court did not err in refusing to advise the jury to acquit the defendants. On the whole case we find nothing in the record indicating that the defendants did not have a fair and impartial trial.

The judgments of the lower court are therefore of-firmed.

ARMSTRONG and MATSON, JJ., concur.

On Rehearing.

DOYLE, P. J.

We have carefully reviewed the record in the light of the petition for rehearing. It appears that over the defendants’ objections the court admitted evidence of the general reputation of the house where the games were alleged to have been opened and conducted to be that of a gambling place. If the prosecution had been for keeping and maintaining a gambling house, this evidence might have been competent. However, where the offense charged is the opening and conducting of prohibited gambling games, the particular facts constituting the offense must be proved, and that was done in this case. In view of the fact that the testimony for the state was un-contradicted, no defense having been made, the only possible prejudice to the defendants that could be raised was in the assessment of the punishment by the jury, and for this reason the judgment and sentence herein that each of the defendants be imprisoned in the penitentiary for the term of two years and pay a fine of $500 will be modified, to the extent that each of the defendants shall be imprisoned for the term of one year and pay a fine of $500. This is the minimum punishment fixed by the statute.

As thus modified, the judgment will be affirmed.

ARMSTRONG and MATSON, JJ„ concur.


text:
    GEO. THOMASON v. STATE.
    No. A-3415.
    Opinion Filed Sept. 18, 1920.
    (191 Pac. 1096.)
    (Syllabus.)
    ASSAULT AND BATTERY — Assault With Weapon to Do Bodily Harm — Insufficiency of Evidence. In a prosecution for assault with a dangerous weapon with intent to do bodily harm, the evidence considered, and held as a matter of law insufficient to support the verdict and judgment of conviction.

      Appeal from District Court, Pontotoc County; J. W. Bolen, Judge.

      George Thomason was convicted of assault with a dangerous weapon, and he appeals.
    Reversed.

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

This appeal is from a judgment of conviction rendered on the 26th day of January, 1918, and sentence in pursuance of the -verdict of the jury finding the defendant, George Thomason, guilty of assault with a dangerous weapon, and assessing his punishment at imprisonment in the penitentiary for one year and one day.

Several specifications of error go to the insufficiency of the evidence to support the verdict and judgment of conviction. Claude Hooper testified:

“The defendant is my neighbor; lives about a quarter of a mile from me. He had some gee^e in the back part of his field. They got out, and were eating my corn; so I went over to his place Sunday morning to see if he v/ould not do something with them. His wife or girl said he was at the well. I met him half way -between the house and the well, coming back with a bucket of water. He was barefooted, and we laughed and talked a little, and I asked him, ‘What are you going to do with those geese?’ He said, T don’t know.’ I said, ‘You will have to do something with them; they are eating my corn up.’ He said, T didn’t know that they were bothering your field at all.’ I said, ‘If you do not, it is because you did not look.’ He said, ‘You are a God damned lying son of a bitch.’ I said, T don’t take that off of anybody.’ He hit me with his fist' and knocked me down, and as I got up I hit at him. He dodged my lick, and walked back 5 or 6 steps, and got a home-made singletree 2 y> feet long and 2 inches in diameter, and, when he started back to me with the singletree, his wife caught him, and said, ‘George, you are not going to -hit Claud with that singletree’; and she said to me, ‘Claud, you have no business coming up here and raising a racket; you get out and go home.’ I went to the gate, and went outside, and Mrs. Thomason tried to get him in the house, and he said, ‘Turn me loose; I am going to knock the son of a bitch in the head.’ He came out and started to strike me across the fence. I saw I was too close to the fence, and I backed back; then he went to the gate and came out. T found a stick 3 feet long, and came up a step or two. I made a motion with my stick, and he struck me across the hand and broke my stick. I made another lick then, and threw this hand up to guard the lick off, and he struck me across the side of the head with the singletree, and that is the last I know of it until I was going towards home. My wife and Mr. Berch had me by the arms. Blood was running out of my ear.”

On cross-examination, he was asked if he did not take his knife out of his pocket and call the’ defendant a liar, when he said he did not know the geese were in his field. His answer was, “Not any more than that;” and “I had my knife after he got the singletree.”

G. W. Berch testified:

“It is 100 yards from my house out to the section line. I was shaving, standing outside the door. I saw Claud make a lick with a stick, and then saw Thomason knock him down. .Thomason had a singletree in his hand, and hit him somewhere about the head. I went over, and Claud had a knot raised up behind his ear as big as a quail egg. Mr. Thomason handed me Claud’s knife, but it was shut.”

For the defense, Mrs. George Thomason testified:

That Cla>;d Hooper came to the front door and said, “Where is Mr. Thomason?” Her daughter said, “He has gone to the well;” then he turned and went around the house. “I was in the house, dressing the baby, and I heard Mr. Hooper say, ‘I will kill them God damn geese if they get in again.’ Mr. Thomason said-, ‘No; don’t kill the geese; take them up and sell them.’ They had got out of the pen, and our little 'boy was out hunting for the geese at that time. I walked out and said, ‘Don’t have any trouble about these geese; we will sell them.’ They were both mad. He struck at Mr. Thomason there in our yard. My husband dodged the lick, and Mr. Hooper took his knife out of his pocket, and opened it, and said, T will cut your God damn guts out.’ My husband stepped back and picked up this singletree. I said, ‘Don’t do that George;’ and he said, ‘What do you take me to be, to let a man come in my own yard and run me under my floor.’ I said, ‘Claude, give me your knife, and go back home; I will see that he don’t hurt you.' He said, T will give you nothing; I will attend to my part of this fight.’ Then he said, ‘You got it on me, Mr. Thomason; let’s go to the section line.’ My husband said, '‘Put your weapon down and let’s fight it fair.’ Mr. Hooper walked out of the gate and went out. I saw Mr. Berch in his door, and I called, ‘Come over here and help keep these two fellows from fighting.’ I heard Mr. Hooper call my husband a God damn son of a bitch, and dare him to come out, and he would cut his guts out, and I turned and started to the house. I didn’t see the lick. Mr. Thomason called for me to bring some water, and he was holding Claud on his arm.”

The testimony of Nona Buth Thomason was in substance the same.

The defendant testified in his own behalf:-

“I live 11 miles north and two miles west of Ada. I am a justice of the peace in Maxwell township. I was coming from the well, and I said, ‘Good morning, Claud.’ He said, ‘Good morning,’ and followed it up by asking me what I was going to do with those damn geese of mine. I had 40 head in my alfalfa hog pasture. I asked him, ‘Was my geese bothering him?’ and he said they were,, and I told him that I would take the geese off and sell them the next day. He said I knew the geese were out. I told him he was a liar when he said-1 knew they were out. He struck at me with his fist, and I dodged his lick, and he ran his hand in his pocket, and pulled out his knife, and held it open in his hand. I jumped back and picked up this singletree. I told him, if he had to have a fight, we could fight fair, and not lay one another out. My wife tried to get him to go, and promised him that she would take care of the geese. He said, ‘By God, he would handle his part of the fightthen he told me that I had the edge on him there in my own yard, and invited me out in the section line. When 1 got to the gate, I stopped on the inside; of course, curse words were used on both sides, but I never called him a son of a bitch. He stopped outside the gate, and dared me out, and called me a God damn coward, and said he would cut on me, and picked up the club. He met me in the gate, and struck at me with the club, and hit my arm here. The club broke. He drew back with his knife, and I hit him with this singletree. I picked him up, and hallowed to the folks to bring some cold water. I put his head on my arm and washed him, and done as much for him as his father. I saw his wife coming, and he was conscious by the time she got there. He walked home with his wife and Mr. Berch. The last words he said to me, as he walked away, was, T will kill you -before this is over with.’. The knife looked to be about a 4-inch handle and a 3-inch blade, and he had the large blade open.”

The foregoing is the substance of the material testimony upon which the verdict and judgment were based.

Under the provisions of the act of Criminal Procedure, if at any time, after the evidence on either side is closed, if the court deem it insufficient to warrant a conviction, it may advise the jury to acquit the defendant. Section 5896, Rev. Laws 1910. Carefully considering the whole testimony in this case, we are convinced that the court should have advised the jury to acquit the defendant when the state rested, because as a matter of law, the evidence was insufficient to sustain a conviction. If the complaining witness used profane and abusive language at the defendant’s home, in the presence of his family, the defendant had the legal right to expel him from the premises- as a trespasser, if necessary by the use of reasonable force short of indangering life or bodily harm. The testimony of the complaining witness shows that he was advancing on the defendant with a club when the defendant struck him with a singletree. The testimony of the only other witness for the state shows that the complaining witness struck at the defendant with a stick just before the defendant struck him with the singletree.

In our opinion, the evidence fails so far to support the verdict that the necessary inference is that the jury, in reaching their verdict, must have acted from passion, prejudice, or undue influence. Reaching this conclusion, it is unnecessary to notice ether errors assigned. However, it is apparent that the instructions on self-defense, which were duly excepted to, are erroneous.

Because the evidence is insufficient to warrant a conviction, or sustain the verdict, the judgment is reversed.

ARMSTRONG and MATSON, JJ., concur.