author: DAVENPORT,- J.

text:
    WADE BEANS v. STATE.
    No. A-6305.
    Opinion Filed June 16, 1928.
    (268 Pac. 322.)

      Rummons & Hughes, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT,- J.

The plaintiff in error, hereinafter called the defendant, was convicted in the county court of Kiowa county, on the 3d day of March, 1926, on a charge of transporting liquor, and was sentenced to imprisonment in the county jail for a term of 90 days and to pay a fine of $250. Motion for new trial was duly filed and overruled and exceptions saved. From the judgment and sentence, the defendant has appealed to this court.

The testimony on behalf of the state, in substance, is as follows: Sam Standerfer, a deputy sheriff, testified that on the evening of the alleged offense he saw the defendant and a number of other parties in Mountain Park and talked to them; that about 9 or 10 o’clock that night he went out on the road a short distance from Mountain Park and there was a car stopped in the road; he drove by the car 50 or 75 yards, got out, and came back; in coming back he saw the defendant in a little garden patch that had been plowed; he looked like he had something under his coat; when he got near to the defendant-, he put something down by a post and started to run; that witness followed the defendant and caught him and called to his son, who accompanied the witness out on the road, to get the whisky that defendant had placed near the post; that he got a half-gallon jar partly filled with whisky.

Other witnesses who accompanied the witness Stan-derfer testified to seeing the defendant out there and saw the witness catch defendant and bring him back to the road, and that the defendant’s son found a half-gallon fruit jar containing whisky where the witness testified he saw the defendant place it.

The defendant as a witness in his own behalf denied having any whisky, and denied knowing that the whisky witness testified was found was there; he says he had gone over to the house to try to get a light bulb for the car and was returning. A number of young men who were at the car in the road, and with whom the defendant had ridden out to the place, testified that so far as they knew the defendant had nothing to do with the whisky.

Bryan Burns testified for the defendant and stated that he was out on the road with Kyle Hardy, a deputy sheriff, the night of the offense, and that he had driven the deputy out there to get some whisky which was out near where the whisky was found. Burns said they were out there when Deputy Sheriff Standerfer came out, and they had a talk with him. Witness Standerfer in rebuttal did not contradict the statement of Burns.

The testimony in this record is conflicting but was sufficient to justify the court in submitting the case to the jury. The jury was the sole judge of the evidence and its weight and the credibility of the witnesses. This court has repeatedly held that, where there was any evidence sufficient to submit the case to the jury, though conflicting, the court would not disturb the verdict. The record fails to disclose any error committed 'by the court in its instructions or in admission of testimony. It is disclosed by the record that the defendant in this case had not been charged with a conviction of the prohibitory laws or any other law.

After a careful consideration of the record, it seems to the court that the punishment imposed by the jury is excessive and we believe the ends of justice would be best subserved by a modification of the sentence from 90 days in jail and a fine of $250 to 30 days in jail and $100 fine, and as so modified the judgment and sentence of the trial court is affirmed.

DOYLE, P. J., and EDWARDS, J., concur.


source: Caselaw Access Project

author: EDWARDS, J.

license: Public Domain

text:
    Ex parte MARVIN MIDDAUGH.

      No. A-7059.
    Opinion Filed June 16, 1928.
    (268 Pac. 321.)
    Wm. Blake and Ed Crossland, for petitioner.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

This is an original proceeding in habeas corpus. The petitioner by verified petition alleges that he is restrained of his liberty and unlawfully imprisoned in the county jail of Tulsa county by the sheriff and by an agent for the state of Oregon on a requisition warrant of the Governor of this state, honoring a requisition of the Governor of the state of Oregon to surrender said petitioner to the agent of the state of Oregon as a fugitive from justice; further alleging that the Governor of this state is without authority to issue said requisition warrant or to authorize a conveyance of petitioner from the state of Oklahoma, for the reason that on November 15, 1927, petitioner, under the name of Jerry Callahan, was sentenced to serve a term of two and one-half years in the state reformatory at Granite, Okla., for a felony; that he was, by an order of the court sentencing him, paroled, and by said parole required to make monthly reports and to remain within the jurisdiction of the court. Section 2803, C. O. S. 1921. To this petition a demurrer was interposed by the state. The offense charged in the state of Oregon for which a requisition is sought was committed prior to the offense for which petitioner was sentenced in this state.

It is the contention of petitioner that, since he has been sentenced to imprisonment in the state reformatory, and such sentence suspended by judicial parole, he is within the custody of the court, and the Governor is without authority to waive the jurisdiction and custody of the state except by pardon; that the attempted removal of petitioner from the state is without authority of law. It is the contention of the state that the act of the Governor in issuing the requisition warrant waives the jurisdiction and custody of the state, and authorizes his removal from the state.

There are few cases directly in point on the question here presented, but analogous questions have been before the courts in numerous instances. There is a division in the authorities. The weight of authority is decidedly to this effect, that, where a fugitive from one state takes asylum in another, and the law of the state in which asylum has been sought is violated by the fugitive, and he is convicted there, and is undergoing sentence, the demands of the law thus violated may be first satisfied before obedience to the constitutional provision to surrender him to the state from Which he is a fugitive arises. It is doubtful if the Governor of the asylum state, where a fugitive has been convicted, and is actually serving a sentence by confinement, can deliver him to the demanding state, unless the fugitive be paroled or pardoned. Where, however, the custody is constructive, and a proper demand is made by the Governor of the state from which he is a fugitive upon the Governor of the asylum state for the surrender of the fugitive, the duty to surrender him is not absolute and unqualified, and the Governor of the asylum state may refuse to deliver him until the laws of the asylum state have been satisfied and the sentence served or executed. But, where the custody is constructive, the Governor of the asylum state, upon proper demand by the Governor of the demanding state, may waive the right to require a fugitive to complete his sentence, and may honor the requisition to deliver him to the authorities of the demanding state. In such case concurrence of the judicial branch of the government is not necessary. State v. Saunders, 288 Mo. 640. 232 S. W. 973, and authorities cited; People v. Klinger, 319 Ill. 275, 149 N. E. 799, 42 A. L. R. 581, and authorities cited.

The Supreme Court of the state of Oregon, in the case of Carpenter v. Lord, etc., 88 Or. 128, 171 P. 577, L. R. A. 1918D, 674, appears to arrive at a different conclusion. It is there held that the Governor may not deliver one in custody on a criminal charge to another state until legally discharged. This holding, however, is based upon a statute, section 1874, L. O. L., which, in substance provides that, when the person demanded by requisition is in custody upon a criminal charge on a judgment of conviction, he cannot be (delivered up until legally discharged from such custody. Also it is held in the state of Massachusetts, Opinion of the Judges, 201 Mass. 609, 89 N. E. 174, 24 L. R. A. (N. S.) 799, that the Governor of that state had no power to grant extradition of a person who is convicted and serving his sentence in the penitentiary of that state. The question of waiver of jurisdiction, however, was not involved.

The state of Texas in several cases has held that the Governor of that state had no power to grant extradition of a person against whom criminal proceedings were pending until the proceedings were disposed of. Ex parte Hobbs, 32 Tex. Cr. 312, 22 S. W. 1035, 40 Am. St. Dep. 782; Ex parte McDaniel, 76 Tex. Cr. R. 184, 173 S. W. 1018, Ann. Cas. 1917B, 335. See, also, State ex rel. Short, Attorney General, v. White, U. S. Marshal, 39 Okla. Cr. 242, 264 P. 647.

We are of the opinion that the rule as announced in the cases of State v. Saunders, supra, and People v. Klinger, supra, is sound; that the Governor of this state under the circumstances shown had the right to honor a proper demand from the Governor of the state of Oregon for the extradition of petitioner; and that no right of petitioner is invaded by honoring the requisition.

The writ is denied, and the action dismissed.

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


author: DOYLE, P. J.

text:
    J. D. WALKER v. STATE.
    No. A-6304.
    Opinion Filed June 16, 1928.
    (268 Pac. 311.)
    Nestor Rummons and E. C. Patton, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

The information in this ease charged that in Kiowa county, on the 12th day of July, 1925, J. D. Walker, G. H. Walker, Walter Owens, and Mark Brown did unlawfully transport intoxicating liquor, to wit, six pints of beer, from a point unknown in Kiowa county to the baseball park in the town of Snyder. Upon the trial, .at the close of the evidence, • the defendants moved for a directed verdict of acquittal, which motion was by the court sustained- except as to the defendant J. D. Walker, and the jury were unable to agree as to the defendant J. D. Walker. Upon his second trial the defendant was found guilty, and in accordance with the verdict of the jury he was sentenced to pay a fine of $300 and to be confined in the county jail for 90 days. To reverse the judgment he appeals.

Of the various assignments of error upon which the defendant relies for a reversal of the judgment, we deem it only necessary to consider the one; that is, the evidence is not legally sufficient to support the verdict in that there is no competent evidence in the case tending to show the so-called beer seized and admitted in evidence was intoxicating liquor, or that it contained more than one-half of 1 per cent, of alcohol, measured by volume.

The evidence shows that Rex Downs, city marshal of Snyder, and deputy sheriff, followed the defendants from the ball park gate to where they stopped their car, arrested them and searched the car, finding six bottles of near beer in the car.

There was a failure of proof as to the identification of the six bottles offered in evidence as to being the same bottles taken from the defendant’s automobile at the time of his arrest.

Several witnesses testified that the bottles were not the same, and there was no proper proof that the liquid therein contained more than one-half of 1 per cent, of alcohol, measured by volume.

As a general rule, in criminal cases the burden of proof never shifts, but rests on the prosecution throughout, and before a conviction can be had the jury must be satisfied from the evidence, beyond a reasonable doubt, of the affirmative of the issue presented in the accusation; so in this case, where it was not such liquor as the courts judicially know to be. malt and intoxicating liquor, if the state, upon the whole evidence, failed to prove that the so-called beer or liquor was intoxicating or that- it contained as much as one-half of 1 per cent, of alcohol, measured by volume, it fails to make out a case. Gill v. State, 20 Okla. Cr. 39, 200 P. 882.

After fully considering all the evidence, we are clearly of the opinion that the verdict is contrary to the evidence, and for this reason the trial court should have sustained the motion of the defendant for a directed verdict of acquittal. Because the evidence is insufficient to sustain the conviction, the judgment is reversed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    AB BERKLEY v. STATE.
    No. A-6303.
    Opinion Filed June 18, 1928.
    (269 Pac. 383.)
    Rummons & Hughes, for appellant.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Appellant, Ab Berkley, was tried and convicted on ,an information charging that in Kiowa county on the 19th day of January, 1926, he did unlawfully have in his possession a distillery, used for the manufacture of whisky, and in accordance with the verdict of the jury was sentenced to pay a fine of $500 and to be confined in the county jail for 90 days. To reverse the judgment he appeals.

Neither in the petition in error nor the brief filed is any complaint made of the information, the instructions, or any ruling of the trial court in the admission or rejection of evidence.

The sole ground urged for reversal is that the verdict is not sustained by sufficient evidence.

The state relied for this conviction upon the testimony of two deputy sheriffs, Jack Ball and Sam Standerfer. Their testimony, in substance, was to the effect that on the 19th day of January, they went down about 24 miles southwest of Hobart and found a still in operation and ten gallons of whisky; that the mash was boiling, although the oil burner had been shut off. The still was in a willow thicket, about 50 yards from the Kiowa county side of the river.

The witness Ball testified:

“I saw Ab Berkley walking across the river just a little way from the still, another man was with him: they were about 150 yards from us the time; we started after them; Berkley stopped. Standerfer took charge of him; I went on and chased the other fellow for a little ways, then came back and traced the tracks fresh in the sand back to the still. The defendant Berkley walks with a cane, throws his foot out as he walks; we noticed the cane tracks, and the defendant’s peculiar shoe track. I compared the tracks where he walked with the tracks we found and they were the same.”

The witness Standerfer testified:

“When we got to Mrs. Hoover’s place I got out of the car; we heard four shots fired to the north and east of us; Mr. Ball started northwest; I got in the car and drove about a quarter west and a quarter north, stopped and walked a short distance, and came upon the still in a willow thicket; I saw the defendant with another man with him cross the river and we waded over there and brought him back arid saw the imprints of his walking cane in the sand where he and the other man came out of the water going that way, and we found these tracks, which were fresh, back to this still. The ■ defendant’s clothes were wet when we arrested him; he said he did not know anything about the still, and he said that he did not know the fellow that was with him.”

The still was introduced in evidence.

At the close of the evidence for the state there was a motion by the defendant for a directed verdict of not guilty on the ground that the evidence was insufficient to sustain a conviction, which was overruled.

The testimony of the defendant as a witness in his own behalf was, in substance, to the effect that he lived a mile and a quarter east of where the still was found; that he rode over there that forenoon behind a fellow, on a horse, that was looking for a cow; that he rode across the river with U. M. Reed and was waiting for the fellow that was looking for his cow when the officers appeared; that the place they crossed was down the river about a mile from where the still was; that his clothes were not wet until he waded the river coming back with the officers, and they did not fit his feet to any tracks there in the sand; that he did not own or have possession of the still or any knowledge of it whatever until the officers took him to where it was. On cross examination he stated that he did not know the fellow that was with hi,m when the officers started to follow them and did not know where he came from.

We deem it sufficient to say that on .a. careful examination of the record we find there was substantial evidence in support of the allegations of the information, and that under elementary rules the evidence is such that we cannot disturb the verdict.

The judgment of the lower court is therefore affirmed.

EDWARDS and DAVJENPORT, JJ., concur.


author: DAVENPORT, 'J.

text:
    CHOICE PICKETT v. STATE.
    No. A-6172.
    Opinion Filed June 23, 1928.
    (268 Pac. 732.)
    Wilkinson & Saye and C. C. Wilkinson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Mat-son, Asst. Atty. Gen., for the State.
   DAVENPORT, 'J.

The plaintiff in error, Choice Pickett, hereinafter called defendant, was informed against for the murder of Maxie Sewell, convicted, and sentenced to imprisonment in the penitentiary at hard labor for a period of 11 years. To reverse the judgment rendered, he prosecutes this appeal.

Many witnesses were called on behalf of the state, but we do not deem it necessary to set out all of their testimony. The testimony, in substance, shows that the deceased, Maxie Sewell, ran ,a. service car, and on Ithe 29th day of August, 1925, had his car parked at the corner of Eighth and Main streets in Duncan, Okla., and deceased was near his car when defendant came along; the first thing the witnesses knew' of any trouble was when they heard a shot fired. When they discovered who was doing the shooting, the defendant fired two other shots in rapid succession. So far as the witnesses know, nothing was said by the parties before the shooting began. After the defendant ceased shooting he was arrested and taken to jail; and the state offers testimony tending to show a statement made by the defendant, S. G. Moore testifying he was present when the statement was made to Mr. Long at the jail, and stated that he advised the defendant when he was arrested that any statement he made might be used against him. Witness was then asked by Mr. Wilkinson:

“Q. Did the county attorney or any of you people tell him the same thing* up in the jail? A. I don’t remember it.
“Q. As a matter of fact he was not warned by the county attorney or any one? A. I don’t think he was.”

He said he left home to kill Sewell; that when he found him he shot him. He said it was about half an hour or an hour before he found him. Defendant said he did not say anything to Sewell nor Sewell say anything to him.

On cross-examination, the witness testified: That defendant was asked if he had talked it over with any one, and he said he had not. That he left home to kill Maxie Sewell, and “when I found him I shot him.” He said nothing to Sewell nor Sewell to him. Jess asked what was the cause of the trouble — “About your sister?” and he said, “Yes.”

The testimony on behalf of the defendant, in substance, is: The defendant as a witness in his own behalf stated at the time of the difficulty he lived about 6 miles south and three-quarters of a mile west of Duncan; that he had one brother and two sisters; that his oldest sister was named Opal, who was about 16 years of age; that he knew the deceased, Maxie Sewell, in his lifetime; that he shot Maxie Sewell on August 29, 1925, and killed him; that he came $0 town that day about 1 o’clock; that when he came down town the car of Maxie Sewell was at the corner of Eighth and Main streets; that, when he got near Sewejl, Maxie was looking straight at him and reached over in his car with his left hand and threw his right hand “kindly up, and I shot him. I shot him because he intended to kill me. I shot him three times with a revolver, .32-20. I know the position he was in when I fired the first shot, but I do not know the position he was in when I fired the second and third. I continued to shoot until I saw him fall. When the deceased reached into his car and was looking straight ■a$ me, I thought he was going to take tny life; I thought he was reaching in the car for a gun. I knew he was a jitney driver.”

Defendant also testified as to having been informed that Sewell was responsible for the seduction of his sister Opal, and that he had been informed that Sewell had threatened his life if he said anything ■about Sewell ruining his sister. Other witnesses testified in defendant’s behalf as to Sewell having made the statement to them regarding the Picketts, and what he would do to them if they made any trouble for him on account of his having sexual intercourse with his sister Opal, and she becoming pregnant. Several witnesses testified as to the defendant’s previous good ■character and to the bad character of the deceased. This is, in substance, the testimony of the witnesses for the state and for the defendant. There is little conflict in the testimony of the eyewitnesses as to what took place at the time of the shooting. The defendant contends that the deceased, while keeping his eyes upon the defendant, reached over into the car with his left arm, and at that time he believed the deceased was getting a gun to do him bodily harm or take his life; having been informed of the threat made by the deceased against him, he fired the shot that took the life of the deceased.

The defendant assigns several errors alleged to have been committed by the trial court. We will consider those errors as they have been argued by the defendant in his brief. The defendant argues at length that the court erred in permitting the county attorney to propound to the prospective jurors in this case improper and prejudicial questions, the effect of which was to pledge said jurors in advance to adopt the theory of the state in the case, which action of the court is and was excepted to. The question raised by the sixth assignment of error is that the county attorney, in examining the jurors on their voir dire, propounded the following question:

“Mr. McFarland: Q. If in the trial of this case the evidence convinces you beyond a reasonable doubt that the defendant, Choice Pickett, fired the fatal shot, at the time he fired the fatal shot fired the same without authority of law or without excuse of law, then would you let any other fact or circumstance influence you in arriving at your verdict?”

This question was excepted to by the defendant, and exceptions duly saved. The record does not contain the examination of the jurors in full upon their voir dire, nor does the record disclose that by reason of the questions propounded to the jurors, of which the defendant claims he was deprived of having a fair and impartial jury to try his case, nor does it show that he was forced to exhaust all of his challenges and then compelled to accept jurors who did not try the issues in his ease fairly and impartially and give to him every doubt to which he was entitled under the laws of the state of Oklahoma. From the facts stated in the record, it does not appear that the question propounded to the jurors by the county attorney was prejudicial to the rights of the defendant, and the objection was properly overruled.

It is the duty of the appellant to present enough of the proceedings in the trial court to permit this court to pass safely and intelligently upon the questions presented. Star v. State, 9 Okla. Cr. 210, 131 P. 542; Johnson v. State, 21 Okla. Cr. 17, 204 P. 311.

It is next argued by the defendant that the court’s nineteenth instruction misstated the law. The instruction complained of is as follows:

“You are further instructed, gentlemen of the jury, that, the cause of death not being an issue in this case, the question is, Did the defendant, Choice Pickett, act in self-defense as defined in this instruction at the time of the homicide? You are further instructed that the presumption of innocence remains with the defendant and is thrown around him for his protection up to the moment when the killing is proved or admitted. When the killing is proved or admitted it then devolves upon the defendant to show any circumstances of mitigation or excuse, or to justify it by some proof strong enough to create in the minds of the jury a reasonable doubt of the defendant’s guilt of the offense charged. Unless the proof upon the part of the state shows that the defendant was justified or excused.”

Counsel for the defendant admits that the instruction complained of is authorized by our statutes. Section 2719, C. O. S. 1921. The instruction complained of is in substance and language as instructions heretofore approved in homicide cases by this court. Williams v. State, 9 Okla. Cr. 206, 131 P. 179; Boswell v. State, 8 Okla. Cr. 152, 126 P. 826.

It is further contended by the defendant that the trial court erred in giving instruction 25, which is as follows:

“You are further instructed, gentlemen of the jury, that there has been permitted to be introduced certain evidence, tending to show that the deceased, Sewell, had, prior to the killing had illicit relations with the sister of the defendant. In this connection, gentlemen, you are instructed that the defendant would not be justified in killing the deceased merely because the deceased had been too intimate with his sister. It must appear at the time of the killing that the killing was necessary to prevent the immediate death or injury of the defendant, and not as a revenge for past occurrences.
“The rights given by our statutes are defensive and never 'aggressive. They may be exercised for prevention alone, and can never justify that which is done for revenge only, and if the defendant killed the deceased merely as a matter of revenge, for a wrong done his sister, he would under the law be guilty of murder or manslaughter according to the circumstances attending the killing.”

No authorities are cited by the defendant in support of his contention that the court erred in this instruction, but it is argued that the instruction is erroneous, as it directly refers to revenge being the moving spirit that caused the defendant to take the life of the deceased, that the court, in giving this instruction, based it upon the wrong assumption, revenge not being the motive prompting the action of the defendant when he fired the shots, but that defendant acted in his necessary self-defense, believing it was necessary at the time he fired the shot to do so to protect his life or save himself from receiving great bodily harm at the hands of the deceased.

It is further argued by the defendant that the state failed to show any motive for the killing; that the defendant made proof of threats, reputation of bad character, and incidentally some evidence of illicit relation of the deceased with a sister of the defendant. We cannot quite agree with the contention of the defendant’s argument in this case, as it is clearly apparent from the record that the action of the defendant was prompted by the information which defendant had received that the deceased had been co-habitating with his young sister and that she was pregnant, and that the deceased had boasted of the fact that he had jazzed the Pickett girl, and that, when deceased was remonstrated with he made a threat as to what he would do with the Picketts if they raised any trouble with him. When such information was received by the defendant, it inflamed his mind, and he became enraged as any boy would have done who was worthy of the name of brother. The information as to his sister’s condition seems to have so weighed on his mind until he armed himself and started in search of the deceased, and when they met defendant contends deceased made a move as defendant thought to get a gun, and he shot the deceased to death. It is clearly apparent from the record that the motive prompting the defendant was his inflamed condition of mind over his sister’s condition, and the report he received of the statements of the deceased as to his conduct with his sister and the threats as to what he would do if any trouble was raised with him. The conduct of the deceased with his sister was unpardonable, and should be condemned by all good citizens; yet it does not constitute a legal defense to the crime for which the defendant was convicted.

In January v. State, 16 Okla. Cr. 166, 181 P. 514, the court in its sixth paragraph of the syllabus says:

“The so-called unwritten law, ‘the right to avenge wrongs done a female member of a defendant’s family by killing the wrongdoer,’ does not exist in this state.”

We think under the testimony in this case that the instructions of the court were proper, and that they were fair to the defendant.

Finding no errors in the record prejudicial to the rights of the defendant, the judgment is affirmed.

DOYLE, P. J., and EDWARDS, J., concur.


text:
    OTIS SCOTT v. STATE.
    No. A-6197.
    Opinion Filed June 23, 1928.
    (268 Pac. 312.)

      John L. Ward and L. 0. Todd, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereafter called defendant, in the district court in Tulsa county, was convicted of manslaughter in the first degree and was sentenced to serve a term of 12 years in the state penitentiary.

The record discloses that at the time charged defendant, a negro, had a difficulty with Ned Scarborough, another negro, in which Scarborough was cut with a pocket knife from the effects of which he died. The evidence as to the origin and the course of the difficulty is conflicting; that for the state indicating that defendant provoked the difficulty and engaged with deceased in the fight, in which he used the knife with fatal results; that of defendant indicates that deceased provoked the difficulty.

The first contention made is error in overruling the demurrer to the information. It is argued the information is vague, indefinite, uncertain, and fatally defective in failing to allege that the knife with which the homicide was committed, in the manner used, was a deadly weapon; that, where a weapon not per se a deadly or dangerous weapon is used in committing a homicide or felonious assault, the indictment or information must allege the manner in which it was used, and that in the manner used it was a deadly weapon, citing Dean v. State, 2 W. W. Harr. (Del.) 469, 125 A. 478; Edwards v. State, 27 Ark. 497; Haney v. State, 34 Ark. 263; People v. Aro, 6 Cal. 207, 65 Am. Dec. 503; Elliott v. State, 4 Okla. Cr. 224, 111 P. 820, 140 Am. St. Rep. 683; Clemons v. State, 8 Okla. Cr. 452, 128 P. 739; Moody et al. v. State, 11 Okla. Cr. 471, 148 P. 1056; Wilcox v. State, 13 Okla. Cr. 599, 166 P. 74.

These authorities sustain the contention, but the language of the information takes it out of the rule relied on. In the information it is charged that:

“Otis Scott, * * * did unlawfully, willfully, maliciously, and feloniously, without authority of law, and with a premeditated design, * * * to effect the death of one Ned Scarborough, by then and there cutting and stabbing the said Ned Scarborough with a certain pocket knife, which he, the said Otis Scott, then and there had and held in his (hands, then and there and thereby inflicting in and upon the body of the said Ned Scarborough certain mortal wounds, from which said mortal wounds the said Ned Scarborough did * * * die. * * *”

The rhetoric and grammatical construction of this allegation may be criticized, in that it fails to allege in terms that defendant did cut and stab deceased; but it is evident that is what the pleader meant. Defendant is apprised by the language used that he is charged with the murder of deceased by cutting him with a pocket knife. The information sufficiently complies with the provisions of sections 2555, 2556, 2563, 2564, Comp. St. 1921.

Complaint is also made that the court permitted the state to introduce opinion evidence without proper foundation. Dr. Bryant, after having been qualified as a physician and surgeon, a graduate of a medical college and duly licensed in the state, testified as an expert for the state as to the nature and location tof the wounds on the body of deceased, in effect that the lungs were penetrated by one of the wounds. He stated that he did not probe the wound to its full depth; that from his observation the manner in which the wound was bleeding it was his opinion that it penetrated the lungs. Even if we should say there is not a sufficient predicate laid for an expert opinion, yet under all the evidence there can be no question but that the knife wounds caused the death. It is not of material importance whether or not the lung was penetrated. There is nothing prejudicial in the admission of the opinion of the physician.

Before the jury were instructed, counsel for defendant orally requested the court to instruct on the law of self-defense. This the court declined to do for the reason that defendant’s theory was that the wounds which caused the death were due to an accident or mishap. The evidence is sufficient to have raised the issue of self-defense, but defendant testified that in the course of the difficulty deceased fell upon the knife and sustained the fatal injury; that is that the homicide was the result of an accident. After stating the beginning of the fatal difficulty, and that deceased had him down, defendant testified;

“* * * And they got me back down on the ground, and he beat me then in the face, and put his knee in my stomach and jumped on me, and I hollered a^ain ahd asked them to take him off of Ime, ‘Take him off, take him off;’ and some one says, ‘There is a knife’ — threw a knife. He and I grabbed this knife about the same time. I grabbed the handle of the knife, and he grabbed my hand, something like that, and he and I was jerked backwards and forwards, first the blade to me and then to him, like that, and I pushed up, and he had his knee in my stomach, and his knee slipped off my stomach, and he kind of fell oveh on me like that, and, if I cut him when he fell, that knife was turned toward him, and he fell right into the knife. * * *
“Q. Did you have at any time any purpose or intention to kill the deceased, or not? A. No, sir; I didn’t.
“Q. Did you ever at any time, while this trouble was in progress, ever purpose to do him any injury or any harm, or any violence of any kind or character? A. Didn’t have anything in the world against him, in fact, I liked him. * * *”

It is well settled that a defendant is entitled to an ¡affirmative instruction applicable to his testimony upon any material issue based upon the hypothesis that it is true. Courtney v. State, 10 Okla. Cr. 589, 140 P. 163; Buchanan v. State, 25 Okla. Cr. 198, 219 P. 420; Ammons v. State, 28 Okla. Cr. 433, 231 P. 326.

It follows that on a trial for a felonious assault or a homicide, where there is evidence tending to show justification and self-defense, the court should submit that issue to the jury. Blythe v. State, 12 Okla. Cr. 23, 151 P. 488; Nelson v. State, 34 Okla. Cr. 187, 245 P. 1009.

Here, however, the testimony of defendant is not that he acted in self-defense in using the knife which caused the death, but that the wound inflicted was accidental in a scuffle for the possession of the knife. ■Upon this issue the court gave the following instruct tion:

“You are instructed that in addition to the defendant’s plea of not guilty is interposed as a defense that, if the deceased met his death by wounds inflicted by a knife while the defendant and deceased were engaged in a physical encounter, the inflicting of such wounds was accidental and was not occasioned by any intent or act upon the part of the defendant to inflict such wounds upon the deceased, and in this cqnnection you are instructed that, should you find from the evidence in this case, or have a reasonable doubt thereof, that at the time the defendant and the deceased were engaged in a physical encounter, if you find they were so engaged, that some bystander threw to or near the combatants a knife, and that such knife was seized by both the deceased and the defendant, and in the physical encounter that took place between the deceased and the defendant over the knife the deceased accidentally fell upon said knife, and a mortal wound was inflicted without any intent upon the part of the defendant to so inflict said wound, then and in that event you will give the defendant the benefit of such doubt and find him not guilty.”

This instruction is as favorable to defendant as the law warrants.

The exclusion of evidence offered by defendant is also assigned as error. This is directed to several items, only one of which has any merit. Bessie Scarborough, a witness for the state, testified as follows:

“Q. Bessie, while that fight was going on out there that day while you saw the defendant, state whether or not he was intoxicated. A. Well, he smelled like whisky and he was staggering. * * *”

Immediately thereafter defendant was replied and was asked if he was drunk at the time of the difficulty. On objection, he was not permitted to answer. This is clearly error. The state had gone into this matter; certainly the defendant had a right to refute it.

The ends of justice, under the record, however, do not require a reversal, but the judgment will be modified by reducing the punishment assessed from confinement in the penitentiary for a term of 12 years to a term of 7 years, and as modified, the judgment is affirmed.

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


author: PER CURIAM.

text:
    JESS STRINGFELLOW v. STATE.
    No. A-6320.
    Opinion Filed June 23, 1928.
    (268 Pac. 312.)
    George Paschal, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Mayes county on a charge of having possession of mash fit for distillation, and was sentenced to pay a fine of $250 and to serve 30 days in the county jail.

Judgment was rendered on April 10, 1926. The appeal was lodged in this court July 21, 1926. No notice of appeal as required .by section 2809, Comp. Stat. 1921, appears in the record, nor has any been filed in this court. Nor has any summons in error been issued and served, nor has the Attorney General entered any general appearance or waived summons in error. At the time judgment was entered, defendant gave notice in open court of intention to appeal, evidently having in mind section 782, Comp. Stat. 1921. Secton 782 relates solely to appeals in civil cases, and has no application to criminal cases. It does not repeal section 2809, supra. Merritt v. State, 35 Okla. Cr. 194, 249 P. 436.

The attempted appeal is dismissed.


text:
    EARL WILLIAMS v. STATE.
    No. A-6214.
    Opinion Filed June 25, 1928.
    (268 Pac. 329.)

      Sams & Raymond, C. F. Gowdy, and Chas. Bucher, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Nowata- county on a charge of rape in the first degree, and was sentenced to serve a term of 15 years in the state penitentiary.

This is a second trial; the former having resulted in a mistrial. The record discloses that at the time charged defendant was 23 years of age; Ethel Franklin, the prosecutrix, was 13 years of age at the time. She is a sister of defendant’s wife. Several acts of intercourse are testified to. The act relied upon for a conviction is testified to have occurred on July 27, 1924. The prosecutrix gave birth to a child on May 10, 192(5. Various circumstances are testified to by witnesses for the state showing opportunity and corroborating prose-cutrix as to her being at the home of defendant, where the various acts are testified to have taken place. Defendant denied the testimony of prosecutrix and offered evidence of previous good reputation and some further testimony. The testimony differs from the usual rape case in several particulars: There is no showing that the prosecutrix had opportunity for sexual intercourse with any person other than defendant. No ill will between members of the family, nor motive for a false accusation is suggested. So far as is apparent from an examination of the record, there is nothing inherently improbable or unreasonable in the testimony of prosecutrix, but it appears to be that of an unsophisticated young girl. The evidence for the state is ample to sustain the conviction. The evidence for the defense sharply conflicts with it. The weight of this evidence and the credibility of the witnesses was within the exclusive province of the jury. We perceive no reason why this court should disturb the judgment by reason of any insufficiency in the evidence.

The first assignment of error argued is of misconduct of the special prosecutor, who had been county attorney at the time the case was filed. This assignment is directed to the calling of the prosecutrix to. the stand having in her arms the baby referred to in the evidence, which at the time was about 6 months old. Just prior to this, counsel in the judge’s chambers had discussed with the trial judge the admissibility of the baby as an exhibit, and the court indicated that he would exclude such evidence. No record of this informal discussion was made, but later upon request the court made a statement for the record as to what took place, stating the substance of what occurred, and that the discussion was informal and no motion or objection made. Upon an objection to the presence of the child in court, the objection was sustained and the child removed from the courtroom. There is a division in the authorities as to the propriety of permitting the exhibiting of a child claimed to be the result of unlawful intercourse as in a rape case or a proceeding in bastardy. 22 R. C. L. “Rape,” p. 1202, says:

“* * * On a charge of statutory rape, the birth of a child conclusively establishes a prior act of unlawful intercourse, when the date of the birth is such as to show that the child was conceived prior to the time when the mother arrived at the age of consent, and it is permissible for the prosecution to exhibit the child to the jury to prove the commission of the crime, for in such cases the state cannot be confined to proof by oral testimony, and excluded from presenting the child to the jury as evidence tending to establish the fact of birth and prior unlawful intercourse. The propriety of the exhibition of a child for the purpose of comparison on the question of race or color is conceded. And many courts permit the prosecution to exhibit to the jury a child born to the prosecutrix as a result of the rape for the purpose of fixing the paternity on the defendant and thereby establishing the fact that the defendant committed the crime. By other and very respectable authorities, however, exhibition of the child for comparison with its putative father is held to be improper and inadmissible. * * *”

The weight of the authorities state the rule that, for the purpose of corroborating the prosecutrix as to the fact of intercourse, evidence is admissible to prove the birth of a child, and the child may be exhibited to the jury to corroborate such evdence, but not to prove resemblance. 10 Enc. of Ev. 599, note 45. 3 R. C. L. “Bastardy,” 765, 766, notes 13, 14. State v. Neel, 23 Utah, 541, 65 P. 494; State v. Danforth, 6 Ann. Cas. 577, notes; Rex v. Hughes, 19 Ann. Cas. 534, notes; State v. Henderson, 19 Idaho, 524, 114 P. 30. State v. Buckle, 116 Kan. 51, 225 P. 1035; Redman v. State, 67 Tex. Cr. R. 374, 149 S. W. 670. See, also, Watson v. Taylor, 35 Okla. 768, 131 P. 922; Ratzlaff v. State, 102 Okla. 263, 229 P. 278.

The prosecutrix testified as to the intercourse, and that as a result thereof she became pregnant. The testimony of a physician who waited upon her at the time of the delivery of her child was in evidence. That as a result of intercourse with some person the prosecutrix became pregnant and was delivered of a child on May 10', 1925, is not questioned. The mere fact that when called to the stand the prosecutrix had the child in her arms, where the child was not offered as an exhibit, and no reference made to it in the presence of the jury, is not prejudicial.

Complaint is further made that the court erred in permitting the state to elect an act of rape committed on 'July 27, 1924, when on the former trial the state had elected an act which occurred on September 22. The record does not show the date of the act elected at the former trial; in any event, the contention is not tenable. When a case has been tried and has resulted in a mistrial or a new trial has been granted, it stands in the same situation as if no trial had taken place, and the state upon a second trial may elect upon which act it will rely as in the first instance. The state is not required to elect upon which act it will rely until the evidence for the state is concluded. An election of a particular act in the first trial did not preclude the state upon a second trial from electing a different act. Johnson v. State, 1 Okla. Cr. 321, 97 P. 1059, 18 Ann. Cas. 300; Petty v. State, 11 Okla. Cr. 646, 150 P. 91; Watson v. State, 26 Okla. Cr. 377, 224 P. 368; Moorehead v. State, 38 Okla. Cr. 328, 261 P. 231.

It is contended that the trial court erred and sacrificed the interests of the defendant in unduly pushing the trial in order to comply with a special assignment in another county. The trial consumed three days, and on the third day convened at 8:30 a. m., 30 minutes earlier than usual. The argument was concluded shortly before midnight, and the jury then retired to consider its verdict. Between 4 and 5 o’clock a. m., the jury asked to have certain evidence read, and, while the reporter was collating his notes, the jury were returned to the jury room, later recalled, and the desired testimony read to them. iSoon thereafter they returned with a verdict. Ordinarily this would be error as pushing the work of the court, counsel, and jury to undue limits. Trials should be orderly iand the proceedings reasonably deliberate. The sessions of the court should not be prolonged to unreasonable hours. When this is done to the extent that it may have amounted to a coercion of the verdict, and where a proper record is preserved by objections, the appellate court should set aside a verdict so obtained and grant a hew trial. In the record before us, however, counsel for defendant made no objection to the continuance of the session beyond the usual time, but, so far as the record shows, or any contention is made here, they were entirely willing that the jury continue in session until a verdict had been reached. Where no objection is made, it is too late after verdict to insist that the court unduly prolonged the session and coerced the verdict of the jury. Johnson v. State, 1 Okla. Cr. 321, 97 P. 1059, 18 Ann. Cas. 300; Baker v. State, 9 Okla. Cr. 47, 130 P. 524.

Various other errors are suggested in the briefs. None have been overlooked, but all have had the attention of the court. None are of sufficient importance to require a special discussion. Upon the whole case we are convinced that defendant had a fair trial. The issues were fairly submitted, and no prejudicial error is made to appear.

The case is affirmed.

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


text:
    Ex parte WILLIE O’NEIL.
    No. A-7085.
    Opinion Filed June 28, 1928.
    (268 Pac. 734.)
    E. A. Bryce and John J. Carney, for petitioner.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

Willie O’Neil filed his petition in this court on 'June 28, 1928, alleging his unlawful imprisonment and restraint of his liberty by John Q. Newell, warden of the state penitentiary, at McAlester, Okla. Attached to and made a part of the petition is a copy of the death warrant issued by Hon. Lucius Babcock, district judge of Oklahoma county, and properly attested by the clerk of the court.

Petitioner further alleges that, unless a writ of habeas corpus is granted to him, the said John Q. Ne-well will execute the death warrant on the 29th day of June, 1928. The fifth paragraph in the petition of the petitioner is as follows:

“(5) The petitioner further states that the said judgment and order of the said district court and Hon. Lucius Babcock, judge thereof, are illegal and void, for the reason that there is no law authorizing the said judgment of the said court. That the warden of the state penitentiary of the state of Oklahoma is not empowered, directed, nor commanded to carry into execution the said judgment of the district court by any law of the state of Oklahoma; therefore the judgment and order of the said district court attempting to confer power and authority upon the said warden to kill your petitioner by electrocution is null iand void and of no effect.”

The petition is duly sworn to, and the only question for this court to determine is the question of the authority of the warden of the penitentiary to carry into execution the judgment and sentence of the trial court, as provided in the above warrant issued by said court and properly certified. In order that we may arrive at a proper construction of the statute, we deem it necessary to trace the history of the legislation. Section 5967 of the Revised Laws of Oklahoma 1910 is as follows:

“When judgment of death is rendered, the judge must sign and deliver to the sheriff of the county, a warrant duly attested by the clerk, under the seal of the court, stating the conviction and judgment, and appointing a day on which the judgment is to be executed, which must not be less than thirty nor more than sixty days from the time of the judgment.”

Section 5984 of the Revised Laws Okla. 1910 provides for the sheriff making his return showing the manner and place of the execution. The Legislature amended section 5984 of the Revised Laws Okla. 1910 by making the punishment of death by electrocution, chapter 113, Session Laws 1913, p. 206.

The amendment made by the Legislature in the 1.913 session was brought forward, and is now section 2784 of the 'Comp. Stat. 1921, said section being as follows:

“When judgment of death is rendered, the judge must sign and deliver to the sheriff of the county a warrant duly attested by the clerk, under the seal of the court, stating the conviction and judgment and appointing a day on which the judgment is to be executed, which must be not less than sixty nor more than ninety days from the time of the judgment and must direct the sheriff to deliver the defendant within ten days from the time of judgment to the Warden of the state prison at McAlester, in this state, for execution.”

The petitioner contends that there is no law authorizing the warden of the penitentiary to execute the death warrant in his case. This is the first time the question has been before this court. In the case of Alberty v. State, 10 Okla. Cr. 616, 140 P. 1025, 52 L. R. A. (N. S.) 248, the question was raised as to whether or not the death penalty should be imposed on Alberty by hanging or by electrocution; the law having been amended between the date of the trial and conviction, changing the same from hanging to electrocution. This court, after discussing the question at length, held that the .change effected by the law related solely to the penal administration, and that it was within the power of the Legislature to make the law applicable to an offense committed prior to its enactment.

After a careful consideration of the statute, we hold that section 2784, supra, confers upon the warden of the state penitentiary, or his legal assistant or deputy designated by him, legal authority to execute a death warrant.

The writ is denied.


author: DAVENPORT, J.

text:
    LUTHER YORK v. STATE.
    No. A-6302.
    Opinion Filed July 7, 1928.
    (269 Pac. 323.)
    Geo. L. Zink, for plaintiff in error.

      Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was tried in the county court of Kiowa county, on a charge of selling intoxicating liquor, was convicted, and sentenced to pay a fine of $400 and cost, and to be imprisoned in the county jail of Kiowa county for a period of 120 days. Motion for new trial was filed and overruled, exceptions saved, and the defendant has appealed to this court. The date of the alleged sale was given as July 12, 1925.

The testimony on behalf of the state, in substance, is as follows: Edward Hummingbird testified that he was acquainted with Luther York, on the 12th day of July, 1925. that he is 21 years of age; that on the 12th day of July, 1925, which was Sunday, he went to Saddle Mountain store and post office about 8 or 9 o’clock in the morning; that David Tonemah was with him; that he wanted to cash a check, but did not get the check cashed, but did buy a half quart of whisky from defendant; that he and David Tonemah were traveling on horseback. David Tonemah does not appear in the record as a witness to the alleged sale. Witness claims that he, together with some other Indians, went back to the store in a Ford car about noon and got some whisky; that they drove around back of defendant’s store.

The record discloses that witnesses attended a ball game at Craterville, about 30 to 32 miles from Saddle Mountain store the day of the alleged sale, .and that they returned that night, and at a well near the store the witness Hummingbird was arrested on a charge of being intoxicated. The record shows that Hummingbird, after he was arrested, filed a complaint against Follie Smith, charging him with selling the whisky to the witness Edward Hummingbird that was found in his possession at the time of his arrest; later Hummingbird told several parties that he did not get the whisky he had from Mr. York.

Isobel Spottedbird called as a witness on behalf of the state stated she knew Edward Hummingbird, David Tonemah, James Auchchiah, and Susie Yeague, and the defendant, Luther York; that she was at the York place of business on Sunday last July; they were traveling in a car; defendant put some whisky in the back seat of the car; “I could not see it when he brought it out but he put it in the back seat.”

L. R. Moulder testified for the state that he knew the defendant, Luther York; that he knew Edward Hummingbird and David Tonemah; that he saw Susie Teague and James Auchchiah on Sunday, the 12th of July, with some other Indians in a Ford car, that he saw them in front of Mr. York’s store on that day.

This is, in substance, the testimony introduced by the state. The defendant called Edward Hummingbird for further cross-examination and shows that Edward claimed he got the whisky outside of the fence running along the section line; that the fence was right back of the store.

Clyde Posten, testifying for the defendant, identified a warrant that had been issued for Follie Smith upon an affidavit of Edward Hummingbird, stating, that Smith was the one who sold him the whisky.

G. E. Woodberry testified on behalf of the defendant that he resided at Lawton on the 11th and 12th day of July, 1925; that he was in the hotel business running the Ramsey Hotel and knew the defendant; a sheet of the hotel register was identified by the witness; witness stated he was not present when the name was written there; the sheet showed that Luther York was registered in room 110 on the 11th day of July, 1925; witness stated that he saw the defendant, York, at the hotel Saturday evening July 11, 1925, and on Sunday until in the afternoon; “the first time I noticed the register sheet as to Mr. York being registered, they asked me about it, and I looked it up and found that he was.”

M. L. Jones testified for the defendant that he iwas in Lawton on the 12th of July, 1/9,25; that ¡'he knew the defendant, Luther York; that he saw the defendant in Lawton on the 11th and 12th of July, 1925; that he came to the hotel about dark on the 11th, and stayed in the same room with him that night, and they were together until about 12 or 1 o’clock on the 12th of July, the day being Sunday. Witness further stated that he was selling snuff on the road and defendant was a customer of his; that the last time he saw the defendant on the 12th day of July was about one or 1:30 in the afternoon, in the city of Lawton.

D. E. Brutton testified that he lived at Lawton; that he sold groceries wholesale to retailers; that he was acquainted with the defendant, Luther York; that he saw the defendant on both the 11th and 12th of July, 1925; that defendant was at his house in Law-ton; he and Mr. Jones came together; afterwards he saw him down at the hotel, the last time about 12 or 1 o’clock; witness gave as his reason for saying it was the 12th of July by other engagements he had.

The defendant testified in his own behalf that he knew Edward Hummingbird; had seen him a few times; that he was not at home on July 12th, 1925, until late in the afternoon; that he was in Lawton, Okla., on the 11th and 12th of July; that he went to Lawton the forenoon of July 11th; that he spent the night in Lawton at the Ramsey Hotel, and remained in Lawton until about 2 o’clock in the afternoon of the 12th of July; that he arrived home about dark; that he saw Mr. M. L. Jones in Lawton some time about 5 or 6 o’clock on July 11, 1925; that he and M. L. Jones occupied the same room that night at the hotel; had breakfast together the next morning; that they drove from the hotel to Mr. D. E. Brutton’s home and returned to the hotel, that he had never at any time sold Edward Hummingbird whisky.

On cross-examination defendant stated that he left his home on the 11th of July, in! the forenoon on Saturday; when I am at home I see a number of Indians most every day; I did not drain the crank case of Susie Yeague on the 12th of July, 1925.

The affidavit then was read to the jury by the defendant, wherein the witness Edward Hummingbird charged Follie Smith with having sold him intoxicating liquor on the 12th of July, 1925; also the criminal warrant for the arrest of Follie Smith.

M. G. Jones and a number of other witnesses testified as to the previous good character of the defendant.

Irvin DeMarcus testified that he was at Saddle Mountain store on the day of July 12, 1925, about sundown, and that the defendant waited upon him- at the store; witness admitted he had been applicant for the post office to which defendant had been appointed; that he did not know the date he bought the lunch at defendant’s store where defendant had served him.

Ralph Dodd, a rebuttal witness, stated that he was in the store that evening late; about 30 minutes before sundown; that he saw the defendant there at the time; that he heard of the Indian being arrested in the month of July, but he could not tell what date it was and he did not know whether this was the only time Edward Hummingbird was arrested or not.

David Tonemah testified he was acquainted with the defendant; that he heard Edward Hummingbird had been arrested; he was at the Saddle Mountain store on the same day he heard Hummingbird was arrested that night; that he saw Luther York there, but he did not know whether this was the only time Edward Hummingbird had been arrested; that he did not know of his own personal knowledge whether he had ever been arrested there.

This is in substance the testimony on behalf of the state and defendant. A number of errors alleged to have been committed by the court is urged by the defendant in the trial of this case. The defendant in his own behalf testified positively that he did not on the 12th day of July, 1925, sell to Edward Hummingbird any whisky, and also testified that he was not at his place of business, or at home until some time in the afternoon of July 12th, 1925. This defense of the defendant is in the nature of an alibi; that is to say, that he could not be guilty of the alleged offense for the reason that he was not at the place on the day the prosecuting witness claims to have bought the whisky at the Saddle Mountain store, and therefore could not be guilty.

The defendant insists that the verdict in this case is contrary to the law and the evidence, for the reasons herein stated, and further urges that, when the prosecuting Witness, Edward Hummingbird, was arrested for being intoxicated, he stated he bought the whisky from Follie Smith, and made affidavit to a complaint stating that he had procured the whisky from Follie Smith and caused the arrest of Smith. Some time after Hummingbird caused the arrest of Smith he changed his story and charged the defendant in this case with the sale of the whisky to him which he swore he had purchased from Smith. It is disclosed by the record that Hummingbird and others with him were seen near Lawton on the 12th of July, 1925, a distance of 30 or more miles from Saddle Mountain store, and later in the day at Craterville, 30 miles or more away, attending a ball game. The testimony tends to show that Hummingbird, and those with him, were driving from one place to another during the day of the alleged sale of the whisky and were not sure as. to just what points they visited during the day. David Tonemah, who was alleged to have been with Hummingbird at the time of the alleged purchase of the whisky from the defendant in this case, was not called as a witness, and no reason given why he was not called. If true the whisky was purchased by Hummingbird from the defendant, it would seem that Tonemah, who was with the defendant, would have been called as a witness.

The evidence of the witness Hummingbird, though positive as to the purchase of whisky, is of an uncertain and indefinite character as to many facts and circumstances surrounding his actions on the 12th day of July, 1925. The only evidence that tends to corroborate the prosecuting witness is the testimony of Susie Spottedbird, who claims to have been with Hummingbird when he got some whisky at Saddle Mountain store. It is admitted by Susie Spottedbird and other parties in company with him that they had been driving to different places during the day and had attended the ball game at Craterville^ Her testimony as to what took place during the day was indefinite and of a doubtful character. The testimony of the defendant was positive, definite and certain that he did not make the sale of whisky to the prosecuting witness on the 12th of July, 1925, for the reason that he was not at the place where it is alleged that the purchase was made on the date stated by the witness; that, on •the contrary, he was in the city of Lawton 30 o'r 40 miles away, and did not reach his home until late in the afternoon on that day. Corroborating the testimony of the defendant is the hotel register of the Ramsey Hotel at Lawton, showing that the defendant registered, at the hotel, and wias there the night lof the 11th, and did not leave there until the ea,rly ¡afternoon of the 12th. The testimony also of Mr. M. L. Jones, who was aquainted with the defendant, and who claims to have occupied the same room with the defendant, corroborated the defendant as to his whereabouts during the evening of the 11th of July, 1925, and the day of the 12th up until in the Afternoon. The corroboration of defendant’s testimony shows to have been made by parties who have no interest in the result of this charge.

The defendant reserved exceptions to the instruction of the court and argues in his ¡brief that under the evidence in this case it was the duty of the trial court, even though no request was made for such an instruction, to have instructed the jury upon the question of an alibi, an alibi being the chief defense of the defendant in this case, citing Hobbs v. State, 8 Ga. App. 53, 68 S. E. 515, wherein it is stated:

“When an' alibi is the only defense set up by a defendant in a criminal case, and his defense is sust tained by testimony, the jury should be properly instructed in the rules governing the consideration of the subject of alibi, even in the absence of a request, and although the defense of alibi is included in the general plea of ‘not guilty.’ It is the duty of the court to instruct the jury, without request, in the law applicable to the substantial issues presented by the evidence.”

Our statutes require the trial court to instruct the jury as to all matters of law which is necessary for its information to arrive at a proper verdict. Should the court have instructed upon the defense of alibi without a request of the defendant? This question has been before this court in many cases. In England v. State, 29' Okla. Cr. 38, 231 P. 1087, in the second paragraph of the syllabus, the court says:

“Where a defendant is on trial and the evidence raises the defense of an alibi, and the defendant does not request an instruction upon such defense and does not except to the action of the court in not instructing on such point, a conviction will not be reversed unless it clearly appears from the record that the defendant was injured thereby.”

Following the same language as used by the court in Inklebarger et al. v. State, 8 Okla. Cr. 316, 127 P. 707, it will be seen that the holding of the court is universal that, where a defendant is on trial, and the defense is an alibi, and defendant does not request an instruction on such defense, and does not except to the action of the court in not instructing on said point, a conviction will not be reversed, unless it clearly appears from the record that the defendant was injured thereby. The question to be detrmined in this case on the defense made by the defendant is, Was the defendant prejudiced by the failure of the court to instruct the jury upon the question of an alibi as a defense on the charge against him? The commission of the offense of which the defendant was charged in this ease required the presence of the defendant at the necessary time and place. His defense was proper and one often relied on for an acquittal. It is a good defense and the defendant in this case relied upon it. All his testimony tended to show that he could not be guilty for the reason he was not at the place at the time the alleged purchase was made. For the defendant to be guilty it was necessary for him to have been at Saddle Mountain store at the time testified to by the witness Hummingbird. If the defendant’s evidence was sufficient to raise a reasonable doubt of his presence at the time where the alleged crime was committed, where his presence is required, or if the state’s evidence is so defective as to raise a reasonable doubt as to the defendant being present, the defendant was entitled to an acquittal. The record discloses that no request for an instruction on the defense of alibi was; made by the defendant, and no exceptions taken to the failure of the court to instruct on his defense, and it does not clearly appear that such failure to instruct on the defense of alibi prejudiced his rights before the jury.

It is urged by the defendant in his sixth assignment of error that the court misdirected the jury as to the law; the instruction complained of being as follows:

“(5) You are the exclusive judges of the weight and credibility to be attached to the testimony of the witnesses who have testified in this cause. If you find that any witness has testified falsely to any material fact during the trial of this cause, you are at liberty to disregard the testimony of such witness, but you are not compelled to do so. You may give' to the testimony of such witness such weight and credibility as you think it deserves.”

This instruction was not correct. It was the duty of the court to instruct the jury if they believed from the evidence that any witness has willfully and knowingly sworn falsely to any material matter, then they may, if they deem proper, disregard the entire testimony of such witness, unless they find it corroborated by other and credible evidence, or they may without such coroboration give the testimony of such witness on other points such weight and value as they think it entitled to have, the jury being the sole judges of the credibility of the witness and weight and value to be given to their testimony; but the mere fact that a portion of the witness’ testimony respecting a material matter may be found to be untrue without considering whether the witness acted in good faith in giving it or without determining that he willfully and knowingly testified falsely does not justify applying to such witness and to his testimony the maxim, “Ealsus in uno, falsu in omnibus.” The question is not alone whether the witness is wrong as to a particular matter about which he has testified, but also whether he has willfully and knowingly falsified and thereby shown that he has no regard for the truth. Billingsley v. State, 4 Okla. Cr. 599, 113 P. 241.

In this case the defendant testified in his own behalf and his testimony tended to show that he was not at the place where the prosecuting witness alleges defendant was when he purchased whisky. The defendant also introduced testimony tending to corroborate his testimony as to where he was at the time and date ■alleged, and could not have been at Stone Mountain store at the time the purchase was alleged to have taken place.

The instruction of the court complained of failed to tell the jury that, before they would be justified in disbelieving any witness who had testified in the case, they must believe from the testimony that the witness had willfully and knowingly testified falsely to facts material to the trial of the case.

In view of the fact that the testimony of the defendant tended to show that defendant was not present at the time the alleged purchase of whisky took place, and in view of the further fact that all of the testimony tended to establish an alibi, it is apparent that the instruction complained of by the defendant did not properly advise the jury as to the law applicable to the question as to whether or not witnesses had willfully and knowingly testified falsely. We think the instruction complained of by the defendant was erroneous and prejudicial to the rights of the defendant.

There are other errors asigned, but the view we take of the record we do not deem it necessary to consider them.

For the error complained of, the case is reversed and remanded.

DOYLE, P. J., and EDWARDS, J., concur.


author: EDWARDS, !J.

text:
    JAMES RILEY v. STATE.
    No. A-6391.
    Opinion Filed July 7, 1928.
    (268 Pac. 996.)

      Phillips & Phillips and A. L. Herr, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, !J.

The plaintiff in error, who for brevity will be referred to as defendant, was convicted in the district court of Grady county of manslaughter in the first degree, and his punishment fixed at imprisonment in the state penitentiary for a term of 25 years.

The testimony for the state discloses that at the time charged defendant Riley, Powell, the deceased, and two men, Deaton and Beam, were playing poker in a rooming house in the city of Chickasha. Defendant and Powell got into a row over the game, and defendant drew a pistol on Powell, abused him, and threatened to kill him. The landlady, Mrs. Ezell, who was watching the game, interposed and persuaded defendant to put up his gun. Powell said he wanted no trouble and proposed they shake hands,, which defendant refused. Powell then produced a bottle of whisky and invited all to drink, which the parties, including defendant, did. Powell then told defendant he was a “dirty cur,” and defendant leveled the pistol at him, but on interposition of Deaton did not shoot, and Powell left the room. Defendant then registered and was.assigned to a room. Mrs. Ezell was at the room of Deaton and BeamJ where the card game had been, a few minutes later, when! Powell came in and sought to renew the difficulty, but onl finding that Riley was not there went down the hall withl Mrs. Ezell, stating he was going home. As they went downl the hall, defendant, with a gun in his hand, came out of a room with Deaton. Mrs. Ezell, fearing difficulty, had Powell step into her room. After Powell and Mrs. Ezell had gone into her room, Deaton and Riley stepped in front of the door talking. Powell asked her to open the door and let them in, and she declined. They demanded admittance, and the landlady unlocked the door and went out. Defendant still had a gun in his hand, and she asked them to leave. Deaton went to his room, got a suitcase, came back, and proposed to defendant that they go in and get Powell. She insisted that they leave, but they pushed her aside and made threats. Powell pulled the door open from the inside, and two shots were fired in quick succession by defendant, who fired three or four altogether. After two shots had been fifed by defendant, shots were fired from the inside of the room. The gun used by deceased belonged to the husband of Mrs. Ezell. Defendant testified that he participated in the game, and that a controversy arose in which Powell raised up from his seat and made a rush, and being a large man defendant drew his gun and made him sit down; that this occurred three or four times; that finally Powell produced whisky and all of them took a drink, and Mrs. Ezell took Powell from the room; that defendant later returned to the room and learned that Powell had been there looking for him, and he proposed to leave, and started to do so; that Deaton returned to get the suitcase, and as he came back Powell pushed open the door, stuck out his gun, and began shooting; that he did not fire until after Powell had fired.

This is a brief summary of the evidence. Two theories are presented. That of the state at the least discloses manslaughter in the first degree; that of defendant, a case of self-defense. Defendant’s counsel at some length contended that, due to interest, the testimony of the witnesses for the state is not to be believed, but the theory and testimony of defendant and his witnesses are the more reasonable and disclose the true state of facts. When there is a sharp conflict in the testimony of witnesses, it is always possible that the jury as the trier of facts may err and may reject testimony that is true and believe testimony that is false. No better system for arriving at the truth, however, than ours can be devised. A defendant assists in selecting the jury to determine the facts. The witnesses confront the accused; they submit to cross-examination by counsel of defendant’s choosing; the jury observe them, their demeanor on the stand, their manner of testifying, their apparent candor and frankness, or the lack thereof. They must answer as to their interest, if any, in the case, their relationship or connection with the parties, and they may be impeached even as to general reputation for truth and veracity. With this liberal practice for arriving at the truth, it is a wholesome rule that an appellate court in criminal cases will not reverse a case as contrary to the evidence where there is testimony, although it may be conflicting, from which the jury may reasonably and logically find a defendant guilty. It was for the jury to say whom they would believe and what weight and credit they should give the witnesses. Although the testimony is conflicting, the verdict here is aply supported by the evidence.

Complaint is made that the court permitted a witness, a Mrs. Warren, to testify that while in her room next adjoining that of Mrs. Ezell, immediately before the shooting she heard some one say:

“Get your gun. Let’s go in after him. Burn him | out. He has been around there and threatened my boy. | * * * Let’s go in there after him.”

The witness was unable to identify the party mak-1 ing this statement, but as the two Deatons were father! and son, and the son was in the room with Mrs. Ezell ( when Powell returned there to renew the quarrel, and| as the father was with defendant at the time the shots were fired, there can be no reasonable question but that these statements were made by the elder Deaton. The jury could not have supposed it to have been made by any one else. It was admissible as a part of the res gestae and as throwing light on the homicide.

Next it is argued that the court’s instruction No. 15 is prejudicially erroneous. This is an instruction often given in defining the law of self-defense. It is set out substantially in the cases of McDaniel v. State, 8 Okla. Cr. 209, 127 P. 358; Wilkie v. State, 33 Okla. Cr. 225, 242 P. 1057, and it is not necessary to quote it here. It is a correct abstract statement of the law. As a concrete instruction applied to a given state of facts, it might be incorrect depending on the stated facts.

Lastly, it is urged that defendant’s supplemental motion for a new trial on the ground of newly discovered evidence should have been granted. This supplemental motion set out that since the trial it was learned that the gun Powell had at thé time he was¡ killed had been borrowed by him that afternoon from one Hall. To this supplemental motion was attached an affidavit of Hall that he had loaned it to Powell the evening before the shooting. Mrs. Ezell had testified that the pistol belonged to her husband. It is not of any great importance who owned the pistol Powell had at the time. Even if, as stated by Hall, deceased had borrowed the pistol from him, the question whether or not the shooting of deceased by defendant occurred as testified to by the state’s witnesses, or as testified to by defendant and his witnesses, would remain the same. No reason for reversal is made to appear.

The case is affirmed.

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


text:
    WESS DAVIS et al. v. STATE.
    No. A-3358.
    Opinion Filed July 14, 1928.
    (269 Pac. 328.)
    R. Brett, R. C. Roland, and Thos. Norman, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiffs in error Wess Davis and A. A. Davis were convicted in the county court of Carter county on a charge of having the unlawful possession of intoxicating liquor, and were each sentenced to pay a fine of $50 and to serve 30 days in the county jail.

Judgment was rendered May 10, 1926, and the appeal was lodged in this' court September 1, 1926. No briefs in support of the appeal have been filed, and no appearance for oral argument was made at the time the case was submitted. Where an appeal is prosecuted to this court and no brief in support of the petition in error is filed nor oral argument made, this court will examine the record for jurisdiccional or fundamental errors. This has been done. No material error is apparent and the evidence sufficiently supports the judgment.

The case is affirmed.


text:
    JOHN WITTEN et al. v. STATE.
    No. A-6325.
    Opinion Filed July 14, 1928.
    (268 Pac. 994.)
    J. H. Foster, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Stephens county on a charge of having in their possession intoxicating liquor with intent to sell, barter, give away, or otherwise furnish the same, and sentences imposed by the court as follows: John Witten to pay a fine o'f $100 and costs of the prosecution, and be confined in the county jail of Stephens county, or worked upon the roads of Stephens county, as the case may be, for a period of 60 days; and Mrs. John Witten p.a,y a fine of $50 and cost of prosecution, and be confined in the county jail of Stephens county, or worked upon the roads, as the case may be, for a period of 30 days. Motion for new trial was filed and overruled, exceptions saved, and defendants have appealed to this court.

The testimony is brief. C. N. Coker testified that he was on the police force at Duncan, and that he went with L. E. Toney and I. P. Gossett to the home of Jlohn Witten; that Mr. Gossett had a search warrant; they found a quart of whisky in a cabinet drawer, a pint in the north room in a dresser drawer, and a pint in a coat pocket in the front room. L. E. Toney and I. B. Gossett testified, in substance, to the same facts as witness Coker.

On direct examination C. N. Coker, witness for the state, over the objection of the defendants, was permitted to testify as follows:

“Q. Do you know the reputation of the residence of the defendants as being a place where intoxicating liquor is kept for sale?
“By Mr. Foster: Objected to as incompetent, irrelevant, and immaterial.
“By the Court: Overruled.
“By Mr. Foster: Exceptions.
“Q. Tell the jury whether or not you know the place as having a reputation of where defendants keep whisky for sale. A. Yes, sir; it does.”

Further, on direct examination of the witness I. B. Gossett, the state, over the objection of the defendants, was permitted to ask the following questions and receive the following answers:

“Q. Do you know the reputation of the defendants’ premises up there for being a place where intoxicating liquors are kept for sale by the defendants ?
“By Mr. Foster: Objected to as incompetent, irrel-vant, and immaterial.
“By the Court: Overruled.
“By Mr. Foster: Exceptions. A. Not only what I have heard.
“Q. Do you know the reputation; that is, what folks say about it? A. I have had people tell me that John was selling it.”

The defendant John Witten testified, denying any knowledge of the whisky being in the house, and denied that he had any interest in it whatever. He further testified that he was not at home at the time officers came to the house.

Mrs. A. E. Moore, mother-in-law of 'John Witten, and mother of Mrs. John Witten, was called on behalf of the defendants, and testified that the whisky found by the officers w.as hers; that she obtained it about 12 o’clock the day the officers came to the house. This is in substance all of the testimony that was introduced.

The defendants have assigned ten errors alleged to have been committed by the trial court. The fourth assignment of errors is .as follows:

“(4) Said court erred in admitting testimony in the case on behalf of defendants in error, which was incompetent, irrelevant, and immaterial, and prejudicial to the rights of the plaintiffs in error, which action of the court was duly excepted to by the plaintiffs in error.”

It is urged by the defendants that the court, over their objection, committed error in permitting the state to offer testimony as to the general reputation of their home, as being a place where intoxicating liquor could be bought, and that the ruling of the court in permitting the testimony to be introduced constituted prejudicial error. The defendants urge that they were being tried on a charge of having possession of intoxicating liquor with the intent to sell, barter, and give away the same, and that the evidence permitted to go to the jury over their objection was incompetent for the reason that the proper predicate had not been laid by showing that their place was a place of public resort. Westfall v. State, 30 Okla. Cr. 115, 235 P. 270; Davis v. State, 16 Okla. Cr. 372, 182 P. 908.

It is further urged by the defendants that, if the court had excluded from the consideration of the jury the testimony as to the general reputation of their home, the jury would not have rendered a verdict of guilty. The state offered no testimony to show that the home of the defendants was a place of public resort, or that people congregated there at all hours of the day or night.

In Miller v. State, 36 Okla. Cr. 277, 253 P. 1039, the court uses this language:

“This court has repeatedly held that, before evidence of the general reputation of a place may be received as evidence in a case of unlawful possession, it must be shown that the place itself was a place of public resort, not merely that it bore such reputation.” Moore v. State, 34 Okla. Cr. 411, 246 P. 1112; Welch et al. v. State, 35 Okla. Cr. 2, 246 P. 1113; Conley v. State, 40 Okla. Cr. 128, 267 P. 491.

The evidence in this case charges possession with intent to sell, and it was error for the court to permit the state, over the objection of the defendants, to show the general reputation of defendants’ home as a place where intoxicating liquors were sold. The testimony in this case is conflicting as to the possession of the whisky. The state offered no evidence whatever as to the home of the defendants being a place where people congregated, or to show it was a place of public resort, or that intoxicating liquor was being kept for the purpose of bartering, selling, or giving away the same. No testimony was offered to show any intent to sell. We think the objection of the defendants to the testimony of the state on the question of the reputation of their home was well taken and the court erred in not sustaining the same.

There are other assignments of error urged by the defendants, but the view we take of this record it is not necessary to consider them.

For the reasons herein stated, the case is reversed and remanded.

DOYLE, P. J., and EDWARDS, J., concur.


text:
    C. L. BYRD v. STATE.
    No. A-6360.
    Opinion Filed July 14, 1928.
    (268 Pac. 997.)
    Melton & Melton, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

This plaintiff in error, hereinafter called defendant, was convicted in the district court of Caddo county of manslaughter in the first degree, and his punishment fixed at confinement in the state penitentiary for a term of five years.

The judgment was rendered in March, 1926, and the appeal lodged in this court in September, 1926. No briefs in support of the appeal have been filed, and no appearance was made for oral argument at the time the case was submitted. We have examined the record with care and find that the homicide occurred at a country dance. Defendant attempted to shoot a young man named Martin, but the bullet missed Martin and struck and killed a small boy. The case appears to have been fairly tried and the issues fairly submitted; the evidence would have warranted a more severe punishment than that assessed.

The case is affirmed.

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


text:
    J. S. DOBBINS v. STATE.
    No. A-6331.
    Opinion Filed July 14, 1928.
    (268 Pac. 1116.)
    J. F. Thomas, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted in the district court of Cotton county, Okla., on- a charge of removing mortgaged property from the limits of Cotton county, and was sentenced to pay a fine of $500. Motion for new trial was filed and overruled, and defendant reserved an exception.

The information charged the defendant with willfully, unlawfully, wrongfully, and feloniously removing an automobile from Cotton county, Okla., upon which there was a mortgage, without the consent of the mortgagee. Objection was raised to the information as to who was the holder of the notes and mortgage at the time the automobile was moved from Cotton county, and the court permitted the state to amend the information by striking from the information, “C. S. Stimpson, doing business as Stimpson Motor Company,” leaving the information to read, “that the automobile was removed from Cotton county without the consent of the holder of the mortgage.” The amendment was permitted by the court, and the state in open court advised the defendant that the state would offer proof that on the date the defendant was charged with having removed the mortgaged property mentioned in the information, the Meyer-Kiser Corporation, of Indianapolis, Ind., was the holder of the mortgage. The defendant objected, and the objection was overruled, and the case proceeded to trial.

An information may be amended after plea by order of court, where same can be done without material prejudice to the rights of the defendant. Section 2512, C. O. S. 1921; Cox v. State, 9 Okla. Cr. 378, 131 P. 1109; Webb v. State, 27 Okla. Cr. 104, 224 P. 991.

The testimony on behalf of the state tended/ to show that the defendant purchased the car from C. S„ Stimpson, doing business as Stimpson Motor Company, at Walters, Okla., and executed notes for the balance of purchase price, and in order to secure the notes executed a mortgage on the car purchased; that the defendant, without the consent of the holder of the notes and mortgage, removed the car from Cotton county 'beyond the limits of the state; that the notes had not been paid by the defendant when he was arrested, but that the Stimp-son Motor Company had paid the same to Meyer-Kiser Corporation, the holder of the said notes and mortgage. The testimony on behalf of the state shows that the car had been removed from Cotton county, and the state of Oklahoma, without the consent of the holder of the notes and mortgage.

The- defendant’s testimony in substance is that he was an oil field worker and went from place to place, and that when he bought the car he had an understanding with the agent that he might have to follow oil work and go from one place to another in the oil fields, and that the agent told him that would be all right as long as he kept up his payments. The defendant admits that he did not make the payments, but that he had written to his father to take care of the payments for him, and that later on he received a release for the mortgage from his father and he thought the notes had been paid; that he put the release of record and received the mortgage from the county clerk.

The father of the defendant also testified as to having some conversation with one of the agents aboujt getting his son to pay the notes, and the testimony of the defendant shows that no payments were made, and that the car was taken from the state without the consent of the owner and holder of the notes and mortgage. The defendant’si explanation as to what became of the ■ car is not clear, -but indicates that in his examination he sought to evade the proper answers to the questions as to what became of the car. He says the car was destroyed by fire somewhere on a road between Mineral Wells and Weatherford, Tex., but that he was not on the highway.

All of the testimony in this case clearly shows that the defendant drove the car from Cotton county, and state of Oklahoma, without the consent of the owner and holder of the notes and mortgage, and that he knew the notes had not been paid. His attempted showing as to what became of the car is not satisfactory.

In this case there is very little conflict in the testimony. The court properly instructed the jury as to the law. This court will not interfere with the verdict of the jury where there is competent-evidence to support the same. Finding no errors prejudicial to the rights of the defendant, the judgment and sentence is affirmed.

DOYLE, P. J., and EDWARDS, J., concur.


author: EDWARDS, CF.

text:
    W. M. ELMORE v. STATE.
    No. A-6362.
    Opinion Filed July 14, 1928.
    (268 Pac. 1115.)
    D. E. Ashmore and A. W. Anderson, for plaintiff in error.

      Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, CF.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Okmulgee county on a charge of having the possession of mash, and his punishment fixed at a fine of $50 and confinement in the county jail for a term of 30 days.

The information charges:

“* * * w. Elmore * * * did unlawfully and willfully have the possession of two barrels of mash with the intention of manufacturing corn whisky therefrom, in violation of the provisions of section 3605, Rev. Laws 1910.”

The state proved that at the time charged there was found concealed on the farm of defendant two barrels of corn mash suitable for distillation. At the conclusion of the state’s testimony defendant demurred to the evidence, and also to the information, and moved the court to discharge defendant, which was overruled, and defendant then testified, denying possession of the mash. Defendant here stands upon his motion and demurrer. Where an information is not challenged before entering upon a trial, every intendment and inference to sustain the information will be indulged. This is settled by many decisions of this court. If it were possible for this court to sustain this information without doing violence to all rules of construction and settled law, we should do so and affirm the judgment. The information refers to section 3605, Rev. Laws 1910, which is section 7002, Comp. Stat. 1921. A prosecution for the possession of mash cannot be sustained under that section, unless it is alleged that the mash is an intoxicating liquor or substitute therefor containing as much as one-half of 1 per cent, of alcohol, measured by volume. This the information does not do. A prosecution might have been had under section 1, c. 42, Session Laws 1923-24, which is:

“It shall be unlawful for any person, or persons, within this state, to manufacture, ferment or possess, any compound, mixture, mash, wort or wash fit for distillation, or for the manufacture of beer, wine, distilled spirits, or other alcoholic liquors, the sale, barter, giving away or otherwise disposing of which is prohibited by the laws of the state of Oklahoma.”

If the information were sufficient under this section, defendant not having challenged it 'before entering upon the trial, we should hold that the reference to section 3605 in the information would not be fatal, but, indulging all intendments and inferences, the information would be upheld. But the information is also fatally defective under section 1, c. 42, as it wholly fails to allege that the mash was “fit for distillation.” This is a necessary allegation and no intendment nor inference we can indulge in will supply it. By omitting this essential allegation without which the possession of mash is not an offense, the information does not state facts sufficient to constitute a public offense. This is not waived by failure to demur. Clark v. State, 11 Okla. Cr. 494, 148 P. 676; Cotton v. State, 22 Okla. Cr. 252, 210 P. 739.

The cause is reversed and remanded.

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


text:
    WATSON SHIELDS v. STATE.
    No. A-6064.
    Opinion Filed July 14, 1928.
    (268 Pac. 1114.)

      King & Crawford, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, for brevity hereinafter called defendant, was convicted in the district court of Pontotoc county of manslaughter in the first degree, and his punishment fixed at imprisonment in the state penitentiary for a term of four years.

On the date charged a pachofa or stomp dance was given at the home of defendant, who is a full-blood Choctaw Indian. The dance commenced about 6 o’clock in the evening, and there was considerable drinking among some of the participants. The deceased, Oscar Harjo, half Chickasaw and half Seminole, a brother-in-law of defendant, was in attendance drinking whisky, alcohol rub, or canned heat. The evidence is conflicting as to the particular stimulant. During the dance a fight occurred between Harjo and defendant, in which Ben Alexander, a companion of Harjo, also took some part. There is evidence that Harjo had a club and made threats against defendant. Defendant went away and went to a neighbor’s house and attempted to borrow a gun and, not procuring one there, went to another neighbor’s and borrowed a shotgun, stating that Harjo and Alexander were attempting to run them away from home. There is testimony that as defendant returned near his home he gave a “whoop,” presumably an Indian battle challenge. He, however, denied that, but said he heard some boys “whoop.” When near his home with a shotgun, he was met by Harjo, who had a club, accompanied by several other Indian men and women, evidently expecting a conflict. He fired one time with a shotgun, wounding Harjo in the leg; the shot penetrating the femoral artery, from which he died in a few hours. The testimony varies as to the distance between defendant and deceased at the time the shot was fire'd, some witnesses making it ten feet and others much farther. The defense is self-defense.

It is argued that the evidence is insufficient to sustain the conviction, but clearly discloses that defendant acted, in his necessary self-defense. We have examined the evidence with care. It is conflicting in many of its details and indicates that the dance became a drunken row, so it is extremely difficult to arrive at what occurred. The case is rather close on the facts. But viewed from the standpoint of the state there is sufficient to make out a case of manslaughter, and since the jurors are the judges of the weight of the evidence and the credibility of the witnesses, we are not at liberty to disturb the judgment for insufficiency of evidence.

Complaint is made that the court’s instructions Nos. 4, 5, and 6 are prejudicially erroneous. We think it unnecessary to quote these instructions. No. 4 in substance states the law of self-defense, that defendant had the right to use all necessary force even to the taking of human life to resist an assault or threatened assault by deceased which created a reasonable apprehension in the mind of the defendant that he was about to suffer death or great bodily harm, but that the danger or apparent danger must be present, urgent, and impending, and if at the time the fatal shot was fired deceased was not near enough to endanger the life of defendant or to create an apprehension that his life was in danger, then defendant could not invoke the right of self-defense. The grammatical construction of this instruction might be subject to some criticism, but the right of self-defense is stated fully as favorable to defendant as the law warrants.

Instruction No. 5 relates to the defense of habitation and of family; No. 6 informs the jury in substance that the fact of a fist fight between deceased and defendant prior to the homicide, and that deceased was intoxicated and disturbing the peace and had procured a stick and made threats against defendant, would not alone justify defendant in procuring a gun and shooting him. There is no such substantial error in any of these instructions as would warrant a reversal. A careful consideration of the record convinces us that defendant was fairly tried and the issues fairly submitted. The punishment assessed is not excessive, and no reason is made to appear why this court should interfere with the verdict and judgment.

The case is affirmed.

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