text:
    TOM WALLACE et al. v. STATE.
    No. A-8435.
    Sept. 30, 1932.
    (14 Pac. [2d] 956.)
    E. Moore, for plaintiffs in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the district court of Garvin county of robbery with firearms, and were each sentenced to serve a term of 20 years in the state penitentiary.

The record discloses that defendants resided in Coal county. Defendant Wallace was just 19 years of age, and Collins 20 years of age. They conceived the idea of robbing the bank at Lindsay, and hitch-hiked from their home near Clarita to Lindsay, on the way procuring a pistol from a pawnshop at Ada, and on December 19, 1931, about 10 o’clock a. m., they entered the Lindsay State Bank, and with a pistol held up the officers of the bank and a customer or two who were there and took $447 in money. Coming out of the bank, they forced Frank Bales, a young man in a car, to drive them into the country in an effort to escape. An alarm was given, and a posse immediately pursued. It had been raining, and the car in which defendants attempted to escape became stuck in the mud some eight miles from town, where defendants abandoned the car and went into a canyon. The posse came up and opened fire, and defendants returned the fire with the pistol, firing some fifteen shots, one of which struck one of the posse in the eye and seriously wounded him. Defendants were captured there, and the money recovered. In the trial each took the stand, admitted the robbery and the circumstances as detailed, the defense amounting virtually to a plea of guilty and for leniency.

The only matter urged in the brief is that the punishment is excessive. Defendant’s counsel concedes that under section 3148, St. 1931, which provides that a trial judge under certain circumstances may suspend sentence of offenders under 21 years of age, the trial court is given a discretion which probably cannot be controlled by the court. The statute does vest the trial court with a discretion which will not be interfered with on appeal except in a clear case of abuse of discretion. This discretion depends on so many circumstances that it would be rare indeed, if at all, where the circumstances would be such that the appellate court could say the trial judge abused his dicretion in not suspending the sentence. That the punishment is severe is evident; that the crime committed is a prevalent evil and virtually a war on organized government is also evident. The plea here is based largely on the age of the defendants and on previous good character. We know as a matter of current history that a large part of the present day crime is committed by mere youths and in many instances of previous good character. So far as the record disclosed, these defendants were sons of respectable law-abiding parents, not brought up under criminal environment. They were not urged to* the commission of this crime by any pressing personal need for themselves nor any one dependent upon them. They testified they contemplated the commission of the crime for a month or more. No* doubt, as they testify, they did not intend to kill any one in committing the robbery, but that they would do so if.pressed is shown by the fact that they fired repeatedly at the posse seeking their arrest and only by chance missed killing one of them. We are not willing to say that justice requires that this court reduce the sentence.

The case is affirmed.

DAVENPQBT, P. J., and CHAPPELL, J., concur.


source: Caselaw Access Project

author: DAVENPORT, P. J.

license: Public Domain

text:
    KELSEY BAGGETT v. STATE.
    No. A-8405.
    Sept. 30, 1932.
    (14 Pac. [2d] 952.)
    W. L. Batliff, for plaintiff in error.

      J. Berry King, Atty. Gen., and Smith O. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of abandonment of his wife, and sentenced to serve a year in the state penitentiary, and appeals.

The testimony on behalf of the state, in substance, shows that the defendant was a married man; that he was married in the city of Durant, OMa., prior to the time of the alleged abandonment; his wife at the time of their marriage was 18 years of age; the defendant was 33; that on or about the 1st day of June, 1930, the defendant abandoned his wife and failed to provide for her.

The defendant testified in his own behalf, and admitted this was the second time he had been charged with wife abandonment; that he had been convicted of deserting his first wife while living in the state of Arkansas. It is not deemed necessary to set out the testimony at length, but it is sufficient to say that the testimony sustains the allegation in the information and. is sufficient to warrant the jury in returning a verdict of guilty.

The defendant assigns as error the overruling of Ins motion for a new trial. This motion for a new trial covers all the errors alleged to' have been committed by the trial court. The defendant was prosecuted under the provisions of section 2 of chapter 78 of the Session Laws of 1923, which is an amendment to section 1856, C. O. S. 1921, and reads as follows:

“Every person who shall without good cause abandon his wife in destitute or necessitous circumstances and neglect and refuse to maintain or provide for her, or who shall abandon his or her minor child or children under the age of fifteen years and willfully neglect or refuse to maintain or provide for such child or children, shall be deemed guilty of a felony and upon conviction thereof, shall be punished by imprisonment in the state penitentiary for any period of time not less than one year or more than ten years.”

In the trial of the case, the defendant represented himself. No objection to the introduction of testimony was made or exceptions saved to the ruling of the court.

The only question for this court to decide is, whether or not the court committed a fundamental error sufficient to warrant this court in granting a new trial. The instructions of the court properly declared the law as applied to the facts. The defendants insists that the court should have instructed the jury to return a verdict for the defendant for the reason there is no testimony in the entire record showing that the wife of the defendant was in destitute or necessitous circumstances at any time. This court holds that the words of the statute, “in destitute or necessitous circumstances,” mean the need of the necessaries of life, which cover not only physical needs, those absolutely indispensable to human existence and decency, but those things which are in any way necessary to the person left without support, taking into consideration the circumstances of life in which persons in the condition of this defendant and his wife would ordinarily live.

The record in this case shows this defendant was an educated man, a teacher in the schools of the state, and was able to and did earn a competent salary; that shortly after he married his young wife he sent her back home to her parents and failed to furnish her with such things as would ordinarily be necessary for her support if they were living together as husband and wife.

There are no fundamental or prejudicial errors in the record sufficient to warrant a reversal.

The judgment is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    T. V. HARRISON v. STATE.
    No. A-8361.
    Sept. 30, 1932.
    (14 Pac. [2d] 953.)
    R. B. Garvin and Grim & Grim, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called the defendant, was sentenced to serve a term of four years in the penitentiary for grand larceny, and appeals. The testimony on behalf of the state is as follows:

J. R. Dulaney was engaged in operating a truck line between Oklahoma City, Ardmore, and other points. Ted Taylor was driving for Dulaney. On or about the 28th day of May, 1931, Taylor was making a trip, and a few miles south of the town of Noble, in Cleveland county, one wheel of a trailer broke, and the trailer was left by the side of the road.

The testimony further shows that later on the defendant had the trailer in the town of Norman and sold it to a man by the name of Tull. Both Dulaney and Taylor testify the trailer was taken without their knowledge or consent. Different witnesses testifying to the value of the trailer fix the value all the way from thirty-five to seventy-five dollars.

When the defendant was arrested, he asked the sheriff what he was arrested for, and was advised it was for taking the trailer, and the defendant stated that the old trailer was down on the highway:

“It had one wheel down, I did not think there was much to it, and I got a wheel and put on it and brought it here, and later sold it to Mr. Tull.” The defendant did not testify.

The testimony is amply sufficient to sustain a conviction of grand larceny. Considering the value of the property stolen, it would seem that the punishment imposed upon the defendant is excessive and should be modified.

The sentence is modified from a term of four years in the penitentiary to a term of two years, and, as modified, is affirmed.

EDWARDS and CHAPPELL. JJ.. concur.


author: EDWARDS, J.

text:
    FRANK THOMAS v. STATE.
    No. A-8412.
    Sept. 30, 1932.
    (14 Pac. [2d] 953.)
    Stevens & Cline, for plaintiff in error.
    J. Berry King, 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 Comanche county of forgery in the second degree, and his punishment fixed at imprisonment in the penitentiary for a term of one year.

At the time charged, defendant passed a check purported to- be signed by B. F. .Smith in the sum of $10 to-one R. W. Park, receiving in exchange some small items of merchandise and the sum of $8 in money. It is the theory of the state that B. F. Smith was a fictitious person and the check a forgery. Defendant contends he received the check from one Fred Smith and cashed it in good faith. At the time the check was cashed, defendant informed Park that he received the check from Smith, who was a farmer, for trucking some cattle. Another witness testified defendant told him that he let Fred Smith have the amount of the check to pay for some whisky. Defendant testified, in substance, to this effect at the trial. The state also offered testimony that diligent inquiry to locate any such person as the claimed B. F. Smith had been without success.

It is contended the evidence is insufficient, for the reason the check in question was not admitted in evidence. The check was offered, but, on objection being made, the court stated: “You haven’t gone far enough.” Following this, other testimony identifying the check was introduced. Further on counsel for defendant moved to' strike the check from the record for the reason there was no competent or relevant testimony as a basis for its admission. This was overruled, and the check appears in the case-made. Apparently the court and both the counsel for the state and for the defendant treated the check as in evidence.

It is also argued that the testimony of the deputy sheriff that he attempted to find B. F. Smith and for that purpose made inquiry of certain persons and was not able to learn of such person is hearsay and prejudicial, citing: 2 Jones, Commentaries on Ev. (Blue Book) § 297, p. 629; Lash v. Ten Eyck, 59 Okla. 82, 157 Pac. 924; Ferriman v. Turner, 99 Okla. 277, 227 Pac. 443; Wells v. State, 5 Okla. Or. 22, 113 Pac. 210; Culpepper v. State, 4 Okla. Cr. 103, 111 Pac. 679, 31 L. R. A. (N. S.) 1166, 140 Am. St. Rep. 668; Ramsey v. Smith, 138 Ala. 333, 35 So. 325.

There are certain matters which cannot always be proven by positive testimony. In a sense it is the proving of a negative. Thus in this case the state seeks to prove that the B. F. Smith, from whom defendant claims to have received the check in question, was a myth, a fictitious person. How is the nonexistence of such claimed person to be proven? The state would not be able to produce a witness who could testify of his own knowledge there was no such person. The most it could prove was that the witnesses were in a position to know the people of the community and knew of no such person; that is, that they did not know of such a person, and no one had told them of such a person being in the community. That is really the purport and effect of the testimony here. The substance of the witness’ testimony is that in his opinion no such person exists; his opinion is based on the one fact that he made inquiry in the neighborhood where such a person, if he existed, should be known, and was not able to learn of any such person. Testimony of the nonexistence of a claimed person is a matter of opinion, which may be based on what is usually termed hearsay. Such testimony is not strictly speaking hearsay, but circumstantial evidence tending to prove that the claimed individual had no existence in fact. Wigmore on Evidence, § 1789f; Mathews v. State, 19 Okla. Cr. 153, 198 Pac. 112. See, also, Dunn v. State, 15 Okla. Cr. 245, 176 Pac. 86, where the better method of proving the nonexistence of a claimed individual was followed.

It is earnestly contended the evidence is insufficient to sustain the judgment, in that there is no testimony contradicting defendant that he obtained the check in good faith. The testimony of defendant on this point is refuted only by the facts and circumstances proven. His explanation is improbable and contrary to business experience. We cannot say the jury erred in failing to believe defendant’s explanation. No error requiring a reversal is made to' appear.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    LAVERN BLACK v. STATE.
    No. A-8370.
    Sept. 30, 1932.
    (14 Pac. [2d] 955.)
    J. R. Charlton, for plaintiff in error.
    J. Berry King, 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 Washington county of theft of live stock and was sentenced to serve a term of two years in the state penitentiary.

The record discloses that at the time charged defendant and another committed theft of one large hog. The case rests on circumstantial evidence and also some admissions of defendant. Defendant did not take the stand, but offered testimony tending to prove an alibi. The state’s evidence amply sustains the judgment, and we are convinced that the jury did not err in returning a verdict of guilty. The only argument made is that the testimony of the sheriff is not worthy of belief because of his interest in the case and the testimony of the undersheriff, La Prade, on account of his treatment of defendant in preparing a statement from him. The credibility of the witnesses was for the jury, and this court will not reverse a case on a question of the credibility of the witnesses. We find no objection or exception to any question propounded to- nor answer of the sheriff and observe nothing to discredit his testimony. J. T. La Prade, undersheriff, a witness for the state, was called, and when asked about- a statement in the nature of an admission of guilt purporting to have been made by defendant to him, objection was made in substance that any statement was obtained by duress. In the absence of the jury the court heard testimony on this point and sustained the objection and excluded the testimony of the witness. In this he was eminently correct. The Statement was obtained by duress, it was not competent, and did not go to the jury. The questions propounded were not incompetent or prejudicial, and hence there is no error on this point.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    In re OPINION OF THE JUDGES. In re LUKE NICHOLS.
    No. A-8477.
    Sept. 30, 1932.
    (14 Pac. [2d] 955.)
   DAVENPORT, P. J.

The record submitted to which is attached your request for opinion discloses defendant was charged with murder in the district court of Alfalfa county, and on August 4, 1932, was sentenced to death. Under the Constitution and laws of this state, any person convicted of felony may appeal within six months from the time judgment is rendered. Section 3192, Stat. 1931. This time does not expire until February 4, 1933, and defendant has until and including. that date to file an appeal in this court from the judgment and sentence aforesaid. It has been the uniform holding of this court that the provisions of section 3172, Stat. 1931, contemplates an advisory opinion where an appeal has not been taken from the judgment and sentence of death and where the time to appeal has expired. To render an opinion where an appeal has not been taken or where the time for appeal has not expired would be to express an opinion in ex parte proceedings as to the rights of a defendant, which may afterwards be brought before the court by appeal where all parties interested would be represented. An opinion in advance would deprive a defendant of his constitutional right to be heard in his own behalf. However, should such an appeal not be taken by February 4, 1933, this court will examine the record presented and render an advisory opinion as requested.

EDWARDS and CHAPPELL, JJ., concur.


text:
    In re OPINION OF THE JUDGES. In re JOE L. MARTIN.
    No. A-8478.
    Sept. 30, 1932.
    (14 Pac. [2d] 956.)
   DAVENPORT, P. J.

The record submitted to which is attached your request for opinion discloses that defendant was charged with murder in the district court of Noble county, and on August 24, 1932, was sentenced to death. Under the Constitution and laws of this state, any person convicted of felony may appeal within six months from the time judgment is rendered. Section 3192, Stat. 1931. This time does not expire until February 24, 1933, and defendant has until and including that date to file an appeal in this court from the judgment and sentence aforesaid. It has been the uniform holding of this court that the provisions of section 3172, Stat. 1931, contemplates an advisory opinion where an appeal has not been taken from the judgment and sentence of death and’ where the time for appeal has expired. To render an opinion where an appeal has been taken or where the time for appeal has not expired would be to express an opinion in an ex parte proceeding as to the rights of a defendant, which may afterwards be brought before the court by appeal where all parties would be represented. An opinion in advance would deprive a defendant of his constitutional right to be heard in his own behalf. However, should such an appeal not be taken by February 24, 1933, this court will examine the record presented and render an advisory opinion as requested.

EDWARDS and CHAPPELL, JJ., concur.


author: EDWABDS, J. DAVENPORT, P. J.

text:
    Z. D. CARSON v. STATE.
    No. A-8393.
    Sept. 30, 1932.
    (16 Pac. [2d] 265.)
    W. E. Utterback and Phillips & Boner, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWABDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Bryan county of robbery with firearms, and was sentenced to serve a term of. five years in the state penitentiary.

Defendant was charged with two others with holding up one N. Pendegraph on the highway with a pistol and taking from his person the sum of 50 cents, all that he had. The testimony for the state, while very brief, sustains the charge. The defense was alibi. Counsel who appear here did not represent defendant in the lower court.

The first contention made is- that the court denied defendant’s counsel a fair examination of prospective jurors and peremptory challenges. The record discloses that when the trial began the court directed the clerk to call a jury. There were not sufficient jurors not engaged in attendance, and the court then ordered the sheriff to summon eight talesmen to act as jurors. They were summoned, and their names placed in the box, and the trial proceeded. The court might have procured additional jurors by drawing from the box, by an open venire to be issued by the clerk, or by ordering the sheriff to summon talesmen. He followed the last method. See Allen v. State, 16 Okla. Cr. 136, 180 Pac. 564. Counsel who appeared for defendant at the time seemed to be of the opinion that the court was without authority to do this, and at considerable length interposed objections and challenges to the eight jurors in a body and to them individually. The court permitted a considerable record to be made, and after some time a colloquy between the court and the counsel for defendant ensued; finally the court directed counsel to take his seat and that he did not want to hear anything further from him. The court then directed the jury to be sworn. The trial judge was proceeding correctly in having the sheriff summon talesmen to complete the panel. Section 3518, Comp. St. 1921. See, also, sections 2657, 2658, 2659, 2665, Comp. St. 1921. Counsel, of course, had a right to make a record to preserve the question of the qualifications of the jurors. We cannot perceive from the record that counsel made any objection to any juror to try the case if qualified to serve on the jury nor seek by voir dire to show that any one of the talesmen called was not qualified, but by assuming disqualifications because of the manner in which he was summoned. This objection was repeated several times. The court was patient for some time, but finally spoiled a good record for patience by becoming testy at the close of counsel’s objections. There is nothing in this point that prevented defendant from having a fair jury and a fair trial.

The only other point urged is that the transcript of the testimony of Pendegraph, the person alleged to have been robbed, was admitted in evidence without a sufficient predicate or showing the presence of the witness could not be obtained. The testimony of this witness at the preliminary was that he was a miner .out of employment; that his home was near Miami, and he was on his way to Arizona to find work. He was tramping through the country with 50 cents in his pocket, carrying as his personal effects a pair of extra trousers wrapped in a package. The county attorney testified that before the trial he sent a. telegram and a telephone call to the witness at Miami endeavoring to locate this witness, and also called the sheriff, the police station, and the retail merchants’ association at Miami by long-distance telephone, and made inquiry and was advised he was in Joplin, Mo., and that he made a like effort to locate the witness there and was advised that nothing was known of the witness; that the inquiry at Miami was made by his direction by a long-distance telephone operator. In view of the fact that this witness was unemployed and had no fixed abode, the same effort or attempt to locate would not be required as in the case of a witness who had a fixed place of residence and might reasonably be expected to be found. We conclude there was no' error in admitting the transcript of this witness’ testimony.

The case is affirmed.

CHAPPELL, J., concurs.

DAVENPORT, P. J.

(dissenting). In dissenting from the opinion of the majority of the court, it is my opinion that there is not sufficient predicate laid to warrant the admission of the testimony of N. Pendegraph taken in the preliminary hearing; in other words, due diligence had not been shown by the state in order to secure the attendance of N. Pendegraph as a witness. Pendegraph stated in his direct examination in the preliminary trial that he had lived in Miami, Okla., off and on for at least fourteen years; that he was a miner; that he came to Bryan county about the date of the alleged robbery.

It is not contended by the state that it had a subpoena issued and sent to the sheriff of Ottawa county to be served on the witness Pendegraph. Eoy Paul, county attorney, testifying as a predicate for the introduction of the transcript of Pendegraph’s testimony taken at the preliminary hearing, stated he made an effort to locate the witness Pendegraph; he sent a telegram to Miami, and also called Miami over long distance and made inquiry, and stated:

“I was advised that Mr. Pendegraph was not in Miami; the last account I got of him he was in Joplin, Mo., and I sent a telegram to Joplin, and also to the Retail Merchants’ Association and was advised they knew nothing about this Pendegraph.” On cross-examination, the county attorney stated he knew the witness Pendegraph; testified he had a wife and family; he learned the witness was gone; “I had not written the sheriff or county attorney of Ottawa county; I had a long-distance call to the sheriff of Ottawa county; I did not send any process to the Sheriff up there indorsed by the. district judge; I did not talk to the sheriff over long distance; the operator called the sheriff and asked him if he knew anything about him; I have not written the sheriff, county attorney or chief of police up there.”

No' showing is made by the county attorney that he caused a subpoena to be issued for this witness, indorsed by the trial court, and sent to the officers of Ottawa county, or Joplin, Mo.; nor is there any showing made from the telephone or telegraph company that an effort was made to locate the witness, and that he could not be located in Ottawa county, or in the state of Oklahoma.

It is a well-established doctrine of this court that, where the testimony of a witness was taken in the preliminary trial, by the reporter in the presence of the defendant, and where the defendant had an opportunity to cross-examine the witness, and toe court reporter filed with the clerk a transcript of the testimony, it is admissible where the witness is not present and cannot be found in the jurisdiction of the court, but, before this is done, it is necessary that the state show diligence in trying to secure the attendance of the witness by causing process of the court to be issued and properly indorsed by the trial court, and sent to the county where the absent witness gave his residence, and a return made showing that the witness could not be found in the county, or that there should be some evidence by parties living in the county who are in a position to know that the witness had left the place of Ms residence in the county and gone without the state, or had gone to an address unknown to those who knew him.

I contend that the showing made by the state is insufficient to entitle the state to introduce the transcript of the testimony of the witness N. Pendegraph taken at the preliminary trial. It is highly important that due diligence be used and a showing made by the state that it tried to secure the attendance of the absent witness by a proper process of the court; otherwise, if a transcript is to be admitted by the court on oral testimony of the county attorney without showing he had used due diligence by causing process of the court to issue and sent to the county of the residence of the absent witness, it would deprive the defendant of his right to be confronted by the witness against him, and-would cause the public prosecutors of this state to fail to use diligence through the process of the court to secure the absent witness, and thereby deprive the defendant of his right to be confronted by the witness in the presence of the court as provided by section 2349, Comp. St. 1921. The predicate laid by the state was not sufficient to authorize the admission of the evidence of the witness Pendegraph. The objection of the defendant to- its admission should have been sustained. For the reason stated, the case should be reversed.


author: CHAPPELL, J.

text:
    W. R. FISHER v. STATE.
    No. A-8409.
    Sept. 30, 1932.
    (16 Pac. [2d] 267.)

      Eaton & Eaton, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Okmulgee county of the crime of conjoint robbery, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of nine years.

The state charged that defendant with Bill Morris committed the crime of conjoint robbery upon Warren Hatfield, through force and fear, by taking from his person and immediate presence f 10 in money and a black Oxford overcoat.

Defendant contends that this information was insufficient to charge the offense.

The first contention under this assignment is that it does not allege the wrongful and unlawful taking of the property. There is no merit in this contention.

And, next, that it does not allege the property was owned by the prosecuting witness.

It alleges that the property was in the possession of Hatfield at the time it was taken. This is sufficient. Robards v. State, 37 Okla. Cr. 371, 259 Pac. 166.

The information is not a model one, but it contains sufficient to advise the defendant of the offense with which he is charged. That is all that is required.

It is also contended that the trial court erred in limiting the argument of counsel to 45 minutes on a side. Counsel for defendant practically admit that if this court follows the rule laid down in Williams v. State, 14 Okla. Cr. 100, 167 Pac. 763, and Hampton v. State, 50 Okla. Cr. 2, 295 Pac. 398, there is no merit in this contention, since the record merely discloses that the court announced to counsel that he would limit the argument, but the record does not disclose that the time fixed by the court was not sufficient, nor does it appear that counsel used all of the time, nor that they asked for further time, which was refused. To preserve the record, counsel at the conclusion of the time fixed by the court should ask for further time and show that the argument was not concluded and, upon refusal to grant further time, make the proper record. This case and those heretofore reaching this court have not contained sufficient to. raise the question. When a case reaches this court properly raising the question, it will pass upon it.

It is next contended that the court erred in admitting evidence relative to other similar offenses by these parties on the same night this offense was committed. This court has many times held evidence of this kind admissible for the purpose of showing system, plan, or general scheme. The court told the jury in his instructions why the evidence was admitted and the purpose for which they might consider it.

The evidence being sufficient to support the verdict of the jury, and no fundamental errors appearing in the record, the cause is affirmed.

DAVENPORT, P. J., and EDWARDS, J., concur.


text:
    ALLEN HOLMES v. STATE.
    No. A-8403.
    Sept. 30, 1932.
    (16 Pac. [2d] 264.)

      Eaton & Eaton, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith O. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter referred to as defendant, was convicted in the district court of Okmulgee county of the crime of manslaughter in the second degree in the killing of Ed. W. Moll by driving an automobile in, over, and upon him, while defendant was in an intoxicated condition, and, the jury being unable to agree upon his punishment, the same was fixed by the court at imprisonment in the state penitentiary for a period of three years.

It is first contended that it was reversible error for the court to submit an instruction to the jury on manslaughter in the second degree, since the evidence, if it established anything, was sufficient to support a verdict for murder.

In support of this contention defendant cites Leseney v. State, 13 Okla. Cr. 247, 163 Pac. 956, and Lovejoy v. State, 18 Okla. Cr. 335, 194 Pac. 1087, where the court laid down the rule that it was reversible error to- give an instruction upon manslaughter in the second degree where there is no evidence tending to support such issue.

In Taylor v. State, 44 Okla. Cr. 58, 278 Pac. 1117, this court repudiated that rule in the following language:

“In a prosecution for murder when the court submits the issue and the jury finds the defendant guilty of manslaughter in the first degree, although under the law and the facts the crime is murder, yet, if defendant is convicted of a lower degree of homicide than that shown by the evidence, no prejudice could have resulted to him, and this court will not reverse a conviction because of such error. * * *
“Where under any view of the evidence the crime might be reduced to the lower degree, the issue of manslaughter should be submitted.”

Section 2740, C. O. S. 1921, provides:

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

It appears from the record that the instruction complained of was given on the 6th day of November, 1931, and that the exception taken and allowed to such instruction was not filed and allowed until November 10, 1931.

Requested instructions must be in writing and presented to the trial court before the general charge is settled; otherwise they come too late. Williams v. State, 12 Okla. Cr. 39, 151 Pac. 900.

The instructions must be settled before the same are read to the jury. Boutcher v. State, 4 Okla. Cr. 576, 111 Pac. 1006; Russell v. State, 17 Okla. Cr. 164, 194 Pac. 242; Inman v. State, 22 Okla. Cr. 161, 210 Pac. 742.

It is apparent that counsel for defendant made no objection to the instruction complained of nor tendered any special instruction in lieu thereof. The error, if any, being in defendant’s favor, he cannot now be heard to* complain.

It is further contended that the evidence is insufficient to support the verdict of the jury. This contention is based upon the proposition that, since the evidence would sustain no charge except murder, and manslaughter in the second degree not being an included offense, therefore the evidence would not support such verdict.

The authorities cited above dispose of this question adversely to the defendant.

For the reasons stated, the cause is affirmed.

DAVENPORT, P. J., and EDWARDS, J., concur.


text:
    JOHN ARNER v. STATE.
    No. A-8374.
    Aug. 16, 1932.
    Rehearing Denied Sept. 30, 1932.
    (15 Pac. [2d] 1046.)
    Bridges & Ivy, for plaintiff in error.
    J. Berry King, Atty. Gen., and Gus Rinehart, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Jefferson county of manslaughter in the first degree in the killing of J. W. Browning, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of ten years.

The evidence of the state was that J. W. Browning was an officer in the town of Ryan; that on the evening of the killing defendant, with Bill Wray, was in a car; that defendant was driving this car np and down the streets in a reckless manner and making a U turn in the street not far from the home of Browning; that finally defendant turned his car in the wrong way in front of the Epperson cafe; that defendant and Wray had been drinking and were boisterous and using violent, profane language; that a bystander told defendant that, if Browning was there, be would arrest him; that defendant said, if Browning bothered him, be would fix him like be did Bass; that defendant and Wray ordered curb service of coffee spiked with whisky, and told some of tbe fellows to get out of tbe way, they were going to do some shooting; that Wray got out of tbe car and went into tbe cafe; that Browning came and sat down on a stool on tbe sidewalk, near this cafe; that defendant called to Browning, and Browning stepped out to tbe car, resting bis arm on tbe car door and placing one of his feet on the running board; that suddenly an altercation began; that Browning was armed with a small two-shot pistol; that, he suddenly jumped back and ducked down behind tbe car; that immediately thereafter two shots were fired, one by Browning and one by defendant from tbe car; that Browning ducked around tbe side of the car and caught defendant by tbe band and tried to pull him out of tbe car; that Browning snapped bis pistol, but it stuck; that Wray ran out and interfered, and Browning ran from tbe car up over tbe sidewalk into tbe cafe; that defendant got out of bis car with a gun in bis band, and, running up to the cafe door, fired five shots through tbe screen at Browning; that Browning fled towards tbe back of tbe cafe, into a booth, and was bolding a table up in front of him; that defendant came into the cafe, and, when within five or six feet of Browning, fired another shot; that Browning, dropped the table and slumped to the floor and died not long afterward ; that defendant was wounded in the right shoulder apparently from Browning’s first shot; that defendant had been convicted in the district court of Jefferson county of robbery with firearms.

Defendant, testifying for himself, admitted that Wray had been drinking, and said that he was driving Wray around in his c.ar because he was noisy and to keep him out of trouble, but denied that defendant had been drinking ; that shortly after they pulled up in front of the cafe, he called to Browning and said “What do you say, Jud”; that Browning came up to his car and began to curse him for talking to him; that Browning stuck a gun in his face and he knocked his hand to one side; that Browning went behind the car and fired at him through the glass in the back; that Browning then came around the side of the car and grabbed him by the hand and tried to shoot him again; that, when Wray interfered, Browning left and walked into the cafe; that there was a gun rack in there and he thought Browning had gone after another gun; that he had a gun on the floor of his car under his feet that would, fire seven shots; that he grabbed this gun and hurried up onto' the sidewalk and began to shoot at Browning in the cafe; that Browning was headed toward the gun rack when he fired the first shot; that after the first shot Browning left the gun rack and went toward the back of the cafe; that he followed Browning in and found him back in a booth with a table up, prepared to strike him with it; and that he fired the final shot believing that Browning intended to strike him with the table. He denied he fired at Browning from the car.

Defendant is corroborated as to part of this testimony by other witnesses, but none of these witnesses claimed to have heard much of what was said, or to know exactly when or how the difficulty started. The state on rebuttal showed that some of these witnesses were not present, and that others had made statements different to that which they testified to, or that they had said they did not see it and knew nothing about it.

Defendant first contends that this evidence is insufficient to support the verdict of the jury.

This court has many times held that the credibility of the witnesses and the weight to be given their testimony is exclusively for the jury, and that, where there is a conflict in the evidence, the verdict of the jury will not be disturbed if there is any evidence in the record from which the jury can legitimately conclude that defendant is guilty of the offense charged.

There is competent evidence in the record sufficient to support the verdict of the jury.

Complaint is made that the court erred in rejecting competent testimony offered by the defendant.

The particular complaint is that the court refused to permit defendant to show what he had said after the killing and after he had left the cafe and was sitting or leaning against a post outside. The state objected on the ground that it was a self-serving declaration and no part of the res gestae, which objection was sustained by the court.

In Gransden v. State, 12 Okla. Cr. 417, 158 Pac. 157, this court said:

“In a prosecution for murder, self-serving declarations of the defendant made about 10 minutes after the homicide and in reference to it, held properly excluded as no part of the res gestae.”

To the same effect are: Birdwell v. United States, 10 Okla. Cr. 159, 135 Pac. 445; Pope v. State, 15 Okla. Cr. 162, 175 Pac. 727.

Defendant next complains of instruction No. 18.

This instruction states the rule that even if Browning began the difficulty and fired the first shot without justification, that if thereafter he, in good faith, abandoned the difficulty and made known this fact to defendant, and that at the time the fatal shot was fired defendant was in no danger either real or apparent of death or great bodily harm at the hands of Browning, he could not be acquitted on the ground of self-defense.

This instruction fairly states the law as applicable to the facts, in the case, and it was not error to give the same.

No fundamental error appearing in the record, the cause is affirmed.

DAVENPORT, P. J., and EDWARDS, J., concur.


text:
    FRITZ PIERCE v. STATE.
    No. A-8431.
    Oct. 14, 1932.
    (15 Pac. [2d] 603.)

      J. W. Burrow, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith O. Matson, Asst. Atty. Gen., and Edna Clary, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter referred to as defendant, was convicted in the district court of Ellis county of the crime of knowingly receiving stolen property, and the jury being unable to agree upon the punishment, it was fixed by the court at imprisonment in the state penitentiary for a period of three years.

The evidence of the state was that Hr. Irvin was the owner of one Gleaner-Baldwin combine, with a model A Ford motor; that Woodson Pierce and Wesley Zirger stole the radiator, carbureter, generator, fan, and engine head from this combine; that the radiator was taken to the home of defendant and placed by him on his model A Ford car; that he knew the radiator had been stolen; that he cut parts of the radiator to enable him to place it upon his car; that a few days thereafter a deputy sheriff noticed this radiator on defendant’s car, and asked him where he got it; that he said he bought it from a stranger from Texas; that later he told the officer and Dr. Irvin that a man named Boarman pawned it to him for f3; that later he told the officers that Woodson Pierce brought it to his place. Other recently stolen property was found in and about defendant’s premises.

Woodson Pierce, testifying for the state, said that he stole the radiator and delivered it to defendant in part payment of a debt that he owed defendant.

Defendant, testifying for himself, admitted that he received the radiator, but denied that he knew it was stolen.

Defendant contends that the evidence is insufficient to support the verdict of the jury. A statement of the facts in the case is sufficient to answer this contention.

The cause is therefore affirmed.

DAVENPORT, P. J., and EDWARDS, J., concur.


text:
    ROY MADDOX v. STATE.
    No. A-8452.
    Oct. 14, 1932.
    (15 Pac. [2d] 150.)
    Lowell R. Smith, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Edna Clary, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter referred to1 as defendant, was convicted in the county court of Washita county of the crime of pointing a deadly weapon at another, and his punishment fixed by the jury at a fine of $250 and imprisonment in the county jail for a period of 90 days.

The evidence of the state was that Elmer Brown was occupying the house and making a share crop on a farm owned by defendant in Washita county; that on the 16th day of March, 1931, a son of defendant moved his furniture into part of the house occupied by Brown, and placed a padlock on the door; that when Brown’s wife returned and found the door padlocked, she forced an entrance and started to put defendant’s son’s things out; that defendant appeared on the scene with a double-barrel shotgun and forced her to desist; that she called her father; that he, together with his wife and her husband, returned shortly afterward and defendant met them outside of the house and pointed the gun at John A. Miller, the father of Mrs. Brown, threatening to kill him, and continued to point the gun at Miller and the other parties in the crowd for some time; that defendant’s son, Cleo, finally disarmed his father, and the sheriff came and arrested him.

Defendant admitted pointing the gun, but claimed that he thought John A. Miller had a gun and was going to shoot him, and what he did was in self-defense. Defendant also sought to show that he had an agreement with the Browns that Cleo might occupy part of the house, and that he was defending the lawful possession of the property for his son. Upon objection of the state, the trial court refused to permit him to make this showing.

It is first contended that the evidence is contrary to law and insufficient to support the verdict of the jury.

Four eyewitnesses testified to the pointing of the gun, and, unless this can be justified on the ground of self-defense, the cause must be affirmed.

In Jackson v. State, 49 Okla. Cr. 337, 293 Pac 567, 568, this court said:

“A person may resist a trespass on real property in his possession, where such trespass does not amount to a felony, and may eject the trespasser therefrom by the use of any reasonable force short of taking or endangering human life; blit if he is unable to prevent a trespass, where no felony is attempted, by any means short of taking or endangering human life, he must suffer the trespass and seek redress at the hands of the law rather than commit homicide.”

In the case at bar, the Browns were lawfully in possession of the premises. Defendant entered in their absence and attempted to take possession of part of the house, and used the shotgun to retain such possession. If, as defendant claims, he had an agreement with the Browns for possession, he had an adequate remedy at law, and was not justified in taking possession in the manner he did, nor in attempting to retain it by pointing the gun.

Complaint is made that the punishment is excessive.

Defendant was prosecuted under section 1999, C. O. S. 1921. The minimum punishment provided is a fine of $50 and 90 days in jail (C. O. S. 1921, § 2000). Justice will be done the state and the defendant by reducing the punishment to the minimum.

The judgment is therefore modified, and the punishment reduced to a fine of $50 and imprisonment in the county jail for a period of 90 days, and, as modified, is affirmed.

DAVENPORT, P. J., and EDWARDS, J., concur.


text:
    A. B. McDonald v. state.
    No. A-8444.
    Oct. 14, 1932.
    (15 Pac. [2d] 149.)

      A. H. Meyer, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county of leaving the scene of a motor vehicle collision without furnishing his name or address to the occupant of the other vehicle, and was sentenced to pay a fine of $100 and to serve a term of 15 days in the county jail.

The prosecution is under the provisions of section 1, art. 9, chap. 50, of the Session Laws 1931, which provides, in substance, that, whenever a motor vehicle strikes any person or collides with any vehicle containing a person, the driver of such motor vehicle shall give to the person struck or to the occupant of the other vehicle, if requested, the number of the motor vehicle, the name of the owner and of the passengers with the address of each. This statute was plainly intended to reach what has become known as the “hit and run” driver. It requires the driver of the motor vehicle who' strikes a person or collides with another vehicle to stop, and then, if requested, to furnish information which goes to the identity of the car and its driver and occupants. Some argument is made that the statute is unconstitutional as requiring a person to furnish evidence against himself or as violating freedom of speech. We are not impressed with the force of this argument. The purpose of the statute is salutary, and, without at this time going into the question fully, since it is but slightly briefed, it appears to us that this is a reasonable traffic regulation. That the car driven by defendant collided with the car driven by another is not disputed. The evidence as to who is at fault is in irreconcilable conflict. Several of the witnesses for the state testify the car driven by defendant, while traveling at an excessive speed, struck the other car. Defendant and several of his witnesses testified the other car, while going at an excessive speed, struck the car of defendant. The parties in the other car testify that after the collision defendant’s car stopped; that defendant got out of his car, came up near; they saw defendant was a negro, and none of them asked him for any information as to his name, address, or anything about the car he was driving. One witness directed another, who took down the tag number of the car driven by defendant. One witness that was in the other car testified, in substance, defendant’s car stopped and defendant was out of it, and that when the witness started to pull off his overcoat defendant got in his car and left. Defendant testified, in substance, that after the collision he got out of his car for the purpose of assisting persons in the other car; that one of them pulled off his coat, cursed him, and said if he had a gun he would kill him; that defendant believed he was in danger of being assaulted, and for that reason he got in his car and left. The occupants of the other car denied that any threat was made. Some disinterested witnesses who lived near and who saw and heard what took place corroborate the defendant that threatening language was used toward him.

The offense denounced by the statute is not a collision, but is, first, the failure to stop; or, second, the failure to give information on request after stopping. Since the defendant did stop, he is not guilty unless he failed or refused to give requested information, and it is admitted that no such request was made. The fact that defendant left the scene without giving information is not a crime. It is a crime only in the event request for the information was made. Section 1500, Comp. St. 1921. It is a fundamental principle of criminal law that there can be no constructive offenses, and statutes are not to be enlarged by construction or extended by inference to cover acts not clearly within both the letter and the spirit of a penal statute. Measured by this test, the evidence is insufficient to sustain the judgment. State v. Clifford, 3 Okla. Cr. 419, 106 Pac. 557; City of Shawnee v. Landon, 3 Okla. Cr. 440, 106 Pac. 652.

The case is reversed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    Ex parte RICHARD DANIELS.
    No. A-8479.
    Oct. 14, 1932.
    (15 Pac. [2d] 148.)
    Mathers & Mathers, for petitioner.
    J. Berry King, Atty. Gen., for respondent.
   EDWARDS, J.

This is an original proceeding by petitioner to be let to bail. Petitioner alleges that he is charged in the district court of Cleveland county with robbery with firearms, and that he has been denied bail by the district judge of Cleveland county; that he is not guilty; that the proof is not evident nor the presumption great. The case is submitted on the evidence taken at the preliminary. Defendant did not take the stand. The transcript discloses that on September 6, 1932, defendant in the town of Norman engaged one Foster to drive Mm to a designated place. After driving some distance, petitioner with a pistol held up Foster, took his money, required him to blink his lights as a signal to another car which evidently was waiting, then forced Foster to drive him across the South Canadian, tied up Foster, took Ms car, and left with the remark that he ought to kill him. At the time of the preliminary, the car had not been recovered. The identification is positive. Petitioner is an ex-convict, having served a prior term for robbery.

Heretofore bail has been allowed in robbery cases, where no- personal injury was inflicted, although this has not been expressed as a definite policy of this court. The evidence in this case tends to prove that petitioner conspired with others to commit this robbery, and that he is an habitual criminal. The prima facie showing of guilt is strong. The offense has as an extreme punishment the death penalty. Robbery with firearms has become all too common. In most cases one who commits a robbery with firearms is a potential murderer, who does not shoot his victim because he submits and offers no resistance. Society must protect itself from this dangerous criminal element. One shown to be guilty of robbery with firearms is not entitled to bail as a matter of right. Article 2, § 8, Const.; sections 2920, 2921, Comp. St. 1921. See In re Rector, 49 Okla. Cr. 364, 294 Pac. 823. We see nothing mitigating in the offense charged requiring the admitting of petitioner to bail.

The writ is denied.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    Ex parte JOSE ALVARADO.
    No. A-8434.
    July 22, 1932.
    Rehearing Denied Oct. 21, 1932.
    (15 Pac. [2d] 147.)
    J. M. Roberts, for petitioner.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, J.

This is an original proceeding in habeas corpus. Petitioner alleges that he is unlawfully imprisoned by the warden of the state penitentiary. That he was convicted in the district court of Osage county on a charge of burglary and his punishment fixed at seven years in the state penitentiary. That petitioner appealed from said judgment to the Criminal Court of Appeals and the judgment was affirmed. Alvarado v. State, 38 Okla. Cr. 360, 261 Pac. 983. That he began the service of said sentence on September 21, 1928; that he has served all of the time required of a first-class prisoner to complete a sentence of seven years, but the warden refuses to release him and he is being held to serve the costs of prosecution in the sum of 8400.95. That the holding of petitioner in default of the payment of said costs is contrary to the laws and Constitution of the state.

Section 1, chap. 112, Session Laws 1913, section 31 (a), an amendatory statute, in part provides:

“* * * All costs in the prosecution of all criminal actions shall in case of conviction of the defendant be adjudged a part of the penalty of the offense of which the defendant may be convicted, whether the punishment for such offense be either imprisonment, or fine, or both, and fixed either by the verdict of the jury, or judgment of the court, trying the case, and the payment of such fees and costs in addition to the payment of the fine assessed, shall be enforced by imprisonment until the same shall be satisfied, at a rate of one dollar per day of such fees and costs, or fine, or both. * * * ”

This became section 6332, Comp. St. 1921. It has had the consideration of this court in several cases. Ex parte Walker, 31 Okla. Cr. 36, 236 Pac. 919; Ex parte Smith, 33 Okla. Cr. 175, 242 Pac. 284, 285; Ex parte Bell, 34 Okla. Cr. 354, 246 Pac. 893. In Ex parte Dunnavant, 41 Okla. Cr. 113, 271 Pac. 861, this court in substance held that there was no statute requiring a state convict after he had served his term of imprisonment to remain in the state penitentiary until he had satisfied the costs taxed against him. In Ex parte McCoy, 45 Okla. Cr. 52, 281 Pac. 813, the entire question was reconsidered and the Dunnavant Case was expressly overruled; the McCoy case holding that where a judgment in a criminal action imposed confinement in the state penitentiary and in addition a fine and costs, the fine and costs must be liquidated by confinement at the rate of $1 per day.

In the instant case the verdict finds defendant guilty and assesses his punishment at a term of seven years in the state penitentiary. The judgment and sentence is in conformity to the verdict. It also decrees that defendant pay the costs of prosecution taxed at $400.95, and that he be confined in the penitentiary according to the judgment. The costs assessed being made a part of the penalty by statute, it automatically becomes a part of the judgment.

The confinement of petitioner being in accordance with the law, the writ is denied.

CHAPPELL, J., concurs. DAVENPORT, P. J., dissents.


text:
    ELLA WILSON v. STATE.
    No. A-8133.
    Jan. 9, 1932.
    Rehearing Denied Oct. 21, 1932.
    (15 Pac. [2d] 1043.)
    Meacham, Meacham & Meacham, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Raymond Sroaf, Co. Atty., (Darnell & La Rue, of counsel), for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Custer county of manslaughter in the first degree and was sentenced to serve a term of 10 years in the state penitentiary.

On July 31, 1929, defendant resided at Custer City, with her two children, and another woman roomed at the place. She had been separated from her husband for some weeks, and on this date her husband, about 11:00 o’clock at night, came to the home of his brother, some two blocks from where defendant resided, accompanied by a young woman and another man. They were in the home of the brother with a car driven by the husband parked near. Defendant went to the place, took the car, and drove it to her home and parked it. Soon those at the brother’s home discovered the car was missing, and, while in front of the house discussing it, a number of shots were fired from the vicinity of defendant’s home, some of them passing, through the trees near them. Albert Graves, a deputy sheriff, was called, notified of the missing car and of the fact of the shooting. He drove to the front of defendant’s home, stopped his car, turned out the lights, and stepped up to the gate and a shooting followed in which defendant fired three shots from inside the screen porch with a target rifle, one of which mortally wounded Graves and from the effect of which he died in about 30 minutes. Graves fired four shots from an automatic pistol. The testimony for the state tends to show that defendant opened fire as Graves was about to enter the yard, as the shells from the automatic pistol were all found outside the yard and he fell two or three steps outside the gate. No dying statement was made. Defendant testified she was at a picture show on the night of the tragedy and soon after she returned she saw a car pass which she believed was driven by her husband; that she then went to the residence of the brother of her husband, looked inside, saw her husband and the other parties, including a young woman, with whom she believed her husband was keeping company. That she saw the car sitting at the house and she considered she owned it and took it and drove it to her home and parked it near the sleeping porch. That hanging in the door of the car she found a lady’s purse and in the car was some whisky. That when she took the car home she put the purse on the gate and shot it four times with a target rifle. That soon after-wards a car drove up near the gate and stopped. The lights were turned out and some person entered the gate. She commanded him to stop and when he did not do so she fired a rifle with the intent to scare him and did not intend to kill him. That she did not know it was Graves and thought it was some prowler. There are various details and circumstances not stated. There had been two previous trials of the case, each of which had resulted in a disagreement.

The first contention is that the judge at the beginning of the term in his general statement to the jury, in substance, asked the jury to convict defendants in order to avoid criticism of the courts. We have examined the record in this particular and are convinced the statement of the court does not sustain the contention. At the time the jury was impaneled, the court, in reference to granting excuses to jurors, stated, in substance, that excuses should not be offered to avoid jury service unless the reason was substantial. That criticism of courts was general because they did not function, and that this was in a measure due to the fact jurors often failed to do their full duty and requested the jurors, if possible, to serve on the panel and learn whether or not the criticism was just. It is true a juror generally desires to please the trial judge, and an intimation of the attitude of the judge in any particular case will have weight and may influence the verdict. For that reason, this court has frequently reversed cases where the trial judge intimated his opinion as to the merits of a case. However, a mere urging of members of the panel to serve on the jury panel unless they have some weighty reason for not serving does not invade the province of the-jury. This assignment is without merit.

It is urged that the verdict is contrary to the evidence. That as deceased came to' her home near the hour of midnight under such circumstances as to cause defendant to apprehend immediate danger to herself or her children, that she was justified in firing the fatal shot. That defendant is a woman with two children, and the circumstances of the shooting are such as to arouse the sympathy of the jury and all connected with the case. This, no doubt, accounts for the fact that there had been a disagreement in two former trials. The jury must have been fully convinced the killing- of this officer under the circumstances was inexcusable before they would have agreed to the verdict returned. It must have appeared to them that defendant was extremely jealous and stirred to- anger by seeing her husband with another woman, and that the fatal shot was fired under the belief that the deceased was her husband. The case is one of fact, and the evidence fully warranted the jury in returning the verdict they did. This court is not at liberty to disturb their finding.

The only other complaint made is that the court admitted incompetent testimony and permitted the state too wide a latitude in cross-examination. The argument as to incompetent testimony is that photographs of the premises were admitted after there had been a change in the conditions in that at the time the photographs were taken the foliage was less than at the time of the homicide. Whatever change in circumstances was inconsequential and was fully understood by the jury. A rather wide range of cross-examination was permitted, a considerable part without objection, and, where valid objections were made, they were generally sustained. There may have been some slight error in a too liberal allowance of cross-examination, but certainly it could not have affected the verdict. Upon a consideration of the whole case, we are convinced defendant had a fair trial, free from prejudicial error.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    LON CHEEVES v. STATE.
    No. A-8411.
    Sept. 30. 1932.
    Rehearing Denied Oct. 21, 1932.
    (15 Pac. [2d] 1045.)
    Phillips & Boner and J. B. O’Bryan, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of the crime of receiving stolen property, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of five years.

It is first contended that the information is insufficient to charge the offense. No demurrer was filed to this information and no objection made to the introduction of evidence thereunder. The information is in the usual form, and was sufficient to charge the offense.

It is next contended that the court erred in refusing to give defendant’s requested instruction that the witness Carman was an accomplice of defendant, and that his evidence must therefore be corroborated.

It appears from the record that Carman and one Twitt, who were residents of Ardmore, burglarized the store of C. B. Tanner in that city, without being aided or abetted by defendant in the commission of the offense and without any knowledge on the part of defendant that such offense was to be committed; that they took the stolen property to the home of one Brumbelow, in the town of Mansville, all without any knowledge, assistance, or encouragement by defendant, and that the first defendant knew about the burglary of the store or the stolen property was when Carman approached him about buying some of it.

While the receiver of stolen property and the thief may be accomplices, one of the other, it is only where there is a previous arrangement or conspiracy to steal property and buy it, or where the thief aids the receiver in the concealment of the property, that they may be accomplices. Motsenbocker v. State, 29 Okla. Cr. 305, 233 Pac. 487.

None of the evidence in this case discloses any facts which would make Carman an accomplice of defendant, or defendant an accomplice of Carman. Under the evidence in this case, the thief was not an accomplice of defendant in the receiving of the stolen property. Mayes v. State, 11 Okla. Cr. 61, 142 Pac. 1049; Buttry v. State, 18 Okla. Cr. 330, 194 Pac. 286; White v. State, 23 Okla. Cr. 198, 214 Pac. 202; Logan v. State, 23 Okla. Cr. 316, 214 Pac. 944; Key v. State, 38 Okla. Cr. 169, 259 Pac. 659; McDowell v. State, 45 Okla. Cr. 93, 281 Pac. 600.

Complaint is next made that the court erred in giving instruction No. 4.

This instruction is not formulated in the best language and most explicit terms, but there is nothing in it that could have in any wise prejudiced the rights of the defendant.

This court has repeatedly held that it will not reverse a case for misdirection of the jury, unless it appears from the whole record that the defendant has been prejudiced thereby. Carter v. State, 6 Okla. Cr. 232, 118 Pac. 264; Johns v. State, 8 Okla. Cr. 585, 129 Pac. 451; Felas v. State, 16 Okla. Cr. 631, 185 Pac. 839; Quick v. State, 51 Okla. Cr. 121, 299 Pac. 242; Greenwood v. State, 51 Okla. Cr. 74, 299 Pac. 248.

Finally, it is contended that the court erred in refusing to permit defendant to offer proof in support of his motion for a new trial on the ground of misconduct of the jury in arriving at their verdict. The particular ground reads as follows :

“That the jury to which the case was submitted was guilty of misconduct prejudicial to the substantial rights of the defendant, in this: That in their deliberations upon the case, and before their arrival at a verdict, and while a portion of the jury were still unwilling to return a verdict of guilty, and as an inducement to said portion of the jury so adverse to a verdict of guilty, said portion of the jury favorable and urging a verdict of guilty, proposed and held out the inducement that they the said jurors favoring a conviction, that they would use their influence with the court and the county attorney that all persons concerned in the taking of the alleged stolen property should be duly prosecuted in good faith in the court, and upon such inducement and promise said jurors were induced to agree to a verdict of conviction, and not upon the honest convictions and opinion of said jurors so opposing a conviction on the evidence submitted and admitted by the court, of which action of said jury the defendant is ready to submit proof.”

It is apparent from a reading of the foregoing that the only persons who would have any knowledge of the facts alleged in such motion would be the jurors themselves. To hear them testify on any matter that inhered in the verdict itself would be to permit them to impeach their own verdict. This court has many times held that this could not be done.

Defendant was a public officer, and had filled this office for some time; the people had a right to have confidence in him; the fact that thieves from another county would approach him in the nighttime and immediately after the commission of the burglary, with confidence that they would be safe in his hands, and that they could dispose of the property through him, makes a bad case. Defendant did not take the witness stand, and made no attempt to explain his connection with the stolen property. When public officers begin to traffic with thieves, the people are without protection.

' The evidence overwhelmingly supports the verdict of the jury, and, the punishment assessed being in keeping with the gravity of the offense, the cause is affirmed.

DAVENPORT, P.. J., and EDWARDS, J., concur.


author: PEE CTJEIAM.

text:
    FRED SMITH v. STATE.
    No. A-8347.
    June 24, 1932.
    Rehearing Denied Oct. 27, 1932.
    (15 Pac. [2d] 1118.)
    Ted Foose, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PEE CTJEIAM.

The plaintiff in error, hereinafter called defendant, was convicted, in the county court , of Blaine county of ’ having the unlawful possession of whisky, 'and his punishment fixed at a fine of $50 and 30 ■days in the county jail.

Judgment was entered on October 30, 1931, and the appeal was lodged in this court in February, 1932. No briefs in support of the appeal have been filed. An examination of the record discloses no jurisdictional or fundamental error.

The case is affirmed.


text:
    ERNEST E. HILE v. STATE.
    No. A-8407.
    Oct. 27, 1932.
    (15 Pac. [2d] 1049.)

      Meacham, Meacham & Meacham, for plaintiff in error.
    J. Berry King, Atty. Gen., and Gus Rinehart, for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Custer county of rape in the second degree, and his punishment fixed at imprisonment in the state penitentiary for a term of 12 years.

The prosecutrix is a stepdaughter of defendant and at the time charged was 17 years of age. The conviction in the main rests on her testimony, though there is corroboration by her mother, the wife of defendant, called as a witness by defendant and by a physician who examined prosecutrix. Defendant is a war veteran, and since his discharge had been confined in different hospitals for the insane. Prior to this trial, a jury was impaneled, and a trial on the question of defendant’s sanity had, which jury found defendant sane. The defense here is a denial of guilt, coupled with a plea of insanity. Defendant testified in his own behalf, and an inspection of his testimony convinces us the jury did not err in finding him sane.

The first contention made is that the court erred in excluding the opinion of two witnesses as to defendant’s sanity. This was excluded, for the reason there was not a sufficient showing of observation or knowledge of the witness upon which to base an opinion. One witness stated in substance that about the time charged he lived near defendant and observed and talked with him frequently, and from this formed an opinion “to some degree,” and that he observed him “in part.” He was then asked his opinion as to defendant’s sanity, and he stated he believed him unbalanced, which answer was stricken. Counsel then attempted to further qualify the witness, who stated defendant’s face was flushed and his eyes danced in his head. This is hardly a sufficient basis for an opinion. Another witness testified in substance he knew defendant about the time; that defendant told him his wife was trying to send him to the insane asylum; that he heard defendant say the Germans were after him; saw him have an argument with his wife and family, but did not know the substance of it. He was then asked his opinion as to defendant’s sanity, which was excluded. The predicate attempted to be laid as a basis for an opinion is insufficient. The rule is stated in Bell v. State, 14 Okla. Cr. 167, 168 Pac. 827, as follows:

“As a general rule nonexpert witnesses should not be permitted to give their opinions as to the sanity or insanity of a person whose mental capacity is made an issue in a criminal trial. They may, however, after testifying to facts upon which they base conclusions, testify to the impressions made upon them, and state whether the acts and declarations testified to led them to believe that the person in question was rational or irrational; that is, whether he was sane or insane.”

A trial court should be fairly liberal in allowing a nonexpert witness to state his observation and the facts tending to show insanity upon which to base a conclusion, and, when a sufficient basis is shown, the witness should be permitted to state whether in his opinion defendant is sane or insane. But, where there is no sufficient testimony as to acts, conduct, and demeanor of defendant upon which to base an opinion of insanity, the opinion should be excluded.

It is next urged there was misconduct of the jury in the trial of the case; that one of the jurors conversed out of the hearing of the jury with one Stroud, a brother-in-law of defendant’s wife. The jury was not held together during the course of the trial until it was finally submitted' to them. On a motion for a new trial, it was developed before the court that during a recess, after the opening argument had been made, Stroud at a distance of about twenty-five feet from the other jurors did converse with one of them. This was observed by counsel for the state, who informed him that any conversation was improper. Defendant’s counsel did not call the juror nor Stroud, but rested upon the bare showing that some conversation was had. It is within the discretion of the trial court to permit a separation of the jury during the course of the trial. Where misconduct is charged to have occurred before final submission, the burden is on defendant to show prejudice. Where the claimed misconduct is committed after the case is submitted, the burden is on the state to show that- no prejudice resulted. The case is not submitted to' the jury until the arguments of counsel are completed and the jurors are allowed to retire in charge of their bailiff for final deliberation on their verdict. The mere fact that some member or members of the jury talked to some person a short distance from the other members of the jury and in plain view is not a showing of prejudice which will overcome the presumption that the jury acts in accordance with its oath. We apprehend the juror or Stroud would have been called in support of the charge of misconduct if their testimony would have shown any misconduct other than the conversation. The contention is not tenable. Upon a consideration of the entire record, we are satisfied defendant had a fair trial, and that the judgment is fully sustained by the evidence.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    MRS. FRANCES SEIGLER et al. v. STATE.
    No. A-8381.
    Oct. 27, 1932.
    (15 Pac. [2d] 1048.)

      L. M. Gensman and J. F. Thomas, for plaintiffs in error.
    J. Berry King, Atty. Gen., and Gus Rinehart, for the State.
   CHAPPELL, J.

Plaintiffs in error, hereinafter called defendants, were convicted in the district court of Comanche county of the crime of arson by the burning of a certain building with intent to defraud the Springfield Fire & Marine Insurance Company, and, the jury being unable to agree upon their punishment, the court sentenced Frances Seigler to one year in the penitentiary, and Morris Seigler to two years in the penitentiary.

Defendants contend that the cause should be reversed because the court erred in permitting E. G. Cooper, Assistant State Fire Marshal, over their objection, to testify for the state to conversations he had with defendant’s wife relative to the offense with which defendant, her husband, was accused, partly in his presence and partly in his absence.

This witness testified to alleged incriminating admissions made by defendant’s wife to witness covering her husband’s connection with the offense. He was also permitted to testify that he told defendant’s wife:

“I told her she was not going to get him into any trouble if she would tell me the truth about everything.”

He was also permitted to testify that he told defendant, her husband, “Morris, the best thing for you to do is to' tell me the truth.” He was also permitted to testify in narrative form to conversations with other people, in the absence of defendant, and to opinions of his own with respect to the effect of what defendant said and did, all of which was incompetent and highly prejudicial.

The rule is that third persons may testify to communications had between husband and wife, overheard by such third persons. Steeley v. State, 17 Okla. Cr. 252, 187 Pac. 821.

The rule is also well established in this state that a third person may not testify to conversations had with a husband or wife in the presence or absence of the other, concerning an offense alleged to have been committed by the other. This evidence is held to be incompetent upon two grounds: First, that the husband or wife may not be a witness against the other, except for an offense committed against the one testifying; that, since the wife or husband is incompetent to testify against the other, the rule may not be evaded by permitting a third person to' testify to conversations or admissions made by the husband or wife where the other is charged with crime; second, because such evidence is hearsay. Hildebrandt v. State, 22 Okla. Cr. 58, 209 Pac. 785; Jenkins v. State, 28 Okla. Cr. 249, 230 Pac. 293.

The witness Cooper being a state employee and connected with the State Fire Marshal’s office at the time the offense was committed, naturally his opinions and the manner in which he was permitted to testify would have great influence with the jury and tend to prejudice the rights of the defendants.

The cause is therefore reversed as to both defendants.

DAVENPORT, P. J., and EDWARDS, J., concur.


text:
    TED JOHNSON v. STATE.
    No. A-8402.
    Nov. 16, 1932.
    (16 Pac. [2d] 263.)

      J. Hugh Nolen and W. A. Eatterree, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Okfuskee county of the crime of robbery with firearms, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of five years.

This case arises out of the same transaction as the case of J. B. Payne v. State, 53 Okla. Cr. 37, 6 Pac. (2d) 1073, and Johnnie Gee v. State, 53 Okla. Cr. 383, 12 Pac. (2d) 547. The defendants Gee, Payne, and Johnson, were jointly charged with having robbed one A. E. Novotny, who was cashier of the First National Bank of Paden. The information alleges that the robbery occurred on the 20th day of June, 1930, and that the amount taken was $2,180 in silver and currency and $450 in Liberty bonds. The information was upheld by this court in the Payne Case. The issues in .the case at bar are very similar to those presented to this court in the Johnnie Gee appeal. The officers in the hank at the time of the robbery positively identified this defendant and Johnnie Gee as the ones who entered the bank and actively engaged in the robbery. As in the Gee Case, the defense was an alibi. Numerous witnesses for the defendant testified that on the day and about the hour of the robbery, this defendant was in the city of Stroud, Okla., a distance of about twenty-six miles from the place of the robbery. The evidence of the state and of the defendant presented a clear conflict, which was for the jury. On this conflict they found the issues in favor of the state.

Defendant’s first contention is that the case should be reversed because of alleged misconduct of the county attorney during the progress of the trial in asking, on cross-examination of certain character witnesses, certain questions which defendant’s counsel contend tended to prejudice the defendant before the jury, and to inflame them against him.

In Bond v. State, 53 Okla. Cr. 224, 11 Pac. (2d) 200, this court had under consideration this question, and there laid down the rule stated in the syllabus in the cáse at bar.

There is a marked difference between what is proper as to cross-examination of character witnesses and other classes of witnesses. A character witness expresses his opinion of the general reputation or character of a defendant as to a particular trait of character. In cross-examination of such a witness, a wide latitude is allowed to show upon what basis the opinion of the witness is lodged, so that the jury may get the viewpoint of the witness as to the particular character testified about. In order to' do this, it has been repeatedly held that questions may be propounded to a character witness as to his having heard of particular acts of misconduct by defendant prior to the commission of the crime. Stouse v. State, 6 Okla. Cr. 415, 119 Pac. 271; Russell v. State, 17 Okla. Cr. 164, 194 Pac. 242; Carroll v. State, 24 Okla. Cr. 26, 215 Pac. 797.

In People v. Perry, 144 Cal. 748, 78 Pac. 284, it was said:

“Such questions should not be asked by a district attorney in the absence of information warranting a reasonable belief on his part that the fact is as implied by the questions; in other words, the questions should not be asked for the mere purpose of getting before the jury an intimation that the defendant had theretofore been guilty of specific acts of misconduct; and where it is apparent that such is the only object of the questions it is undoubtedly misconduct on the part of the district attorney.”

Certain character witnesses of defendant admitted they had heard rumors of matters contained in the questions propounded by the county attorney. Defendant’s counsel objected to some of the questions asked, which were sustained and the county attorney admonished by the court not to ask the questions in the form they were being propounded. Some of the questions were proper and, if asked in good faith, defendant was not injured thereby; others were improper and it was error to ask them; but it is not every error that requires a reversal of the case. The county attorney in his zeal to secure a conviction overstepped the boundary set by the California case in some instances; but the, court having sustained objections when properly made and having admonished the county attorney to desist from asking such questions, and the jury not to consider them, we are unable to see where the defendant was injured thereby.

This court will not reverse a case for error of this character where the guilt of defendant is as clearly established as in the case at bar.

Defendant complains of other errors, but they are without substantial merit.

The cause is therefore affirmed.

DAVENPORT, P. J., and EDWARDS, J., concur.


text:
    J. C. ROBERTSON v. STATE.
    No. A-8445.
    Nov. 18, 1932.
    (16 Pac. [2d] 260.)
    Walter Mathews, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Payne county of the crime of possession of a still and still worm, and his punishment fixed by the jury at a fine of $50 and imprisonment in the county jail for a period of thirty days.

The appeal is by transcript and presents only such questions as may be raised under that proceeding.

It is contended that the information is duplicitous.

The information in substance charges the defendant with unlawful possession of a still and still worm.

In Davis v. State, 40 Okla. Cr. 231, 267 Pac. 674, Driggers v. State, 45 Okla. Cr. 200, 281 Pac. 982, and Casey v. State, 48 Okla. Cr. 97, 289 Pac. 363, this court had under consideration the question raised on this appeal and there held similar informations sufficient.

It is also contended that it is impossible to tell from the verdict of the jury of which offense defendant was convicted.

It is sufficient answer to this contention to say that, so far as this appeal discloses, no objections were made to' the reception of the verdict and no opportunity given the court to have the jury correct the verdict, even if necessary, and the other answer is that since the acts alleged in the information constitute but one offense, the verdict is sufficient to enable defendant to plead former jeopardy if the state should attempt to proceed against him again, upon the same matters.

For the reasons stated, the cause is affirmed.

DAVENPORT, P. J., and EDWARDS, J., concur.


author: EDWABDS, J.

text:
    L. L. DRUMMOND v. STATE.
    No. A-8413.
    Nov. 18, 1932.
    (16 Pac. [2d] 260.)

      Eaton & Eaton, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWABDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Okmulgee county of receiving stolen property, and was sentenced to pay a fine of $250 and to serve 30 days in the county jail.

At the time charged, defendant was engaged in the salvage business, buying and selling parts of used automobiles at Okmulgee. He bought some secondhand tires and tubes from one Guinn, which is the basis of the charge. It is clearly shown this property was stolen by Guinn, but defendant contends there is no sufficient proof that he had knowledge the property was stolen. He testified he bought the property in good faith. It is essential that the state prove guilty knowledge on the part of defendant at the time he received the property. This may be proven, as any other fact, either by direct or by circumstantial evidence. The thief is not an accomplice of the receiver of stolen property, and corroboration of his testimony is not required. In this case, however, the thief is corroborated by the testimony of his wife and by the circumstances of evasive explanation and untrue statements made to the officers concerning the property. See Webb v. State, 19 Okla. Cr. 450, 200 Pac. 719; White v. State, 23 Okla. Cr. 198, 214 Pac. 202; Weaver v. State, 30 Okla. Cr, 309, 235 Pac. 635.

At the time of the trial, Guinn, the thief who sold the property to defendant, had pleaded guilty and had been sentenced to the penitentiary. As just stated, he and his wife testified to the sale of the property to1 defendant under such circumstances as clearly shows defendant knew it was stolen.

Since the jury are the exclusive judges of the.credibility of the witnesses and the weight of the evidence and there is substantial evidence' to support the verdict, this court will not disturb the judgment.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    GENTRY WEBB et al. v. STATE.
    No. A-8391.
    Oct. 14, 1932.
    Rehearing Denied Nov. 18, 1932.
    (16 Pac. [2d] 261.)
    Darnell & La Rue, for plaintiffs in error,
    J. Berry King, Atty. Gen., Smith- C. Matson,' Asst. Atty, Gen., and' Edna Clary, for the State. '
   EDWARDS, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the district' court of Washita county of the theft of domestic animals, and were each sentenced to serve a term of two years in the state penitentiary.

The conviction rests on circumstantial evidence. The defense was alibi. At the time charged there was stolen from the pasture of one Intermann four head of cattle. The following morning these cattle were sold by these defendants to one McDonald near the town of Moore in Cleveland county, a distance of more than one hundred miles from the place of theft. About 10 o’clock on the night of the theft a Dodge truck with yellow wheels was seen with four or five head of cattle at the side of the road at the Intermann farm. No- one was at the truck at the time. The stolen cattle were brought to McDonald’s place in a Dodge truck with yellow wheels which belonged to defendant Weeks, and which defendants admit they were driving on the night of the theft. They testify and offer some evidence in corroboration that on the night of the theft they left Packingtown, Oklahoma City, soon after dark in this truck to drive to Clinton, not far from where the cattle were stolen; that on the highway between Bridgeport and Weatherford they met another truck which was having some motor trouble, which contained five head of cattle, driven by some one whom they think was named Moore; that they bought the cattle from this party, paying $75 in currency; that they then turned about and drove to Moore, and next morning sold the cattle, as testified to by the witnesses for the state.. This presents a question of fact for the jury. Evidently the jury did not believe defendants’ explanation of how they came into possession of the cattle,- but, on the contrary, believed that Moore was but a myth, and this was .a return engagement of the mysterious stranger who had no existence outside the imagination of defendants. We are satisfied that the jury arrived at the correct conclusion, and that defendants are guilty as charged. No error of any consequence appears in the record.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    In re OPINION OF THE JUDGES. In re NATHAN RIGHTSELL.
    No. A-8459.
    Nov. 18, 1932.
    (16 Pac. [2d] 262.)
    See, also, 54 Okla. Cr. 56, 14 Pac. (2d) 238.
   EDWARDS, J.

From an examination of the records of this court we find that no appeal has been taken in said cause, and that the time for appeal has expired. The proposition then presented is, Has there been an observance of all the formalities of law essential to the taking of human life? That is, has the trial, conviction, and sentence of death been in accordance with the law of the land? Opinion of the Judges, 3 Okla. Cr. 315, 105 Pac. 681; Id., 6 Okla. Cr. 18, 115 Pac. 1028.

Upon a careful examination of the record, we find that a preliminary information was filed before a justice of the peace of Choctaw county charging, defendant with murder in the killing of one J. Y. Buchanan; that defendant was arraigned on said charge and waived a preliminary examination; that an information based on such proceeding was filed in the district court of Choctaw county sufficiently and correctly charging the crime of murder; that defendant was arraigned on said information in the district court, and counsel appointed for him and that he had the benefit of counsel; that defendant on April 21, 1932, entered a plea of guilty to the charge, and the court set April 26, as the time of passing sentence; on which date the court sentenced defendant and entered judgment assessing the death penalty. At the time defendant entered his plea of guilty, he made a statement of the circumstances of the homicide and answered various questions propounded by the court, from which it appears defendant had been convicted of burglary in the state of Indiana and served a term of two years; that subsequently in the state of Louisiana he was convicted of robbery with firearms, and was sentenced to serve a term of nine to fourteen years, and had served seven months of this time, and then escaped from the penitentiary from whence he was a fugitive at the time of the homicide. He stated further that he shot Buchanan, an officer who had arrested him with another person and was in the act of searching them; that he then fled to Muskogee and shot an officer there who was attempting to arrest him.

This court has held that a conviction of crime may he had in three ways, either by the verdict of the jury, by findings of fact by the judge where a jury is waived (section 20, art. 7, Const.), or by a plea of guilty (Opinion of the Judges, 6 Okla. Cr. 18, 115 Pac. 1028) ; and that, where a defendant is informed against for murder and pleads guilty, the court is authorized to pronounce judgment and sentence according to' law and as fixed by section 2222, St. 1931.

The record discloses that Nathan Rightsell is guilty of murder in the killing of J. V. Buchanan, that the slaying of this officer warrants the extreme penalty of the law, and that the formalities of law essential to the taking of human life have been observed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    E. J. BERRY v. STATE.
    No. A-8395.
    Sept. 16, 1932.
    Rehearing Denied Nov. 18, 1932.
    (18 Pac. [2d] 285.)

      Phillips & Boner, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Bryan county of manslaughter in the second degree, and was sentenced to serve a term of two years in the state penitentiary.

At the time charged, defendant upon the public highway at the approach to a bridge on Caddo creek drove an automobile against another automobile driven by one Sanders, and in which was the wife of Sanders and Earl O’Hara and wife. The collision occurred . in the early evening soon after dark. Defendant’s car struck the rear of Sanders’ car, pushing it over a bank some seventeen feet high into the bed of the creek; defendant’s car falling on top of the Sanders car. Immediately after the cars fell to the bed of the creek, defendant took some whisky from the hack of his car, carried it a short distance, and concealed it. It was in bottles in a carton addressed to' defendant. It was the theory of the state that defendant was driving while intoxicated, and the wreck was the result of such. intoxication. Defendant testified in substance that he was employed to drive one Pack from Oklaboma City to Texas and return; that Pack was drinking, and that be took one bottle of wbisky from bim and concealed it in tbe pocket of tbe car where it was found; that be did not know of tbe wbisky in tbe back of tbe car until just at tbe time of the collision, when Pack made some outcry concerning it. Several witnesses testified they smelled wbisky on defendant’s breath, and that be appeared to be intoxicated. Several other witnesses with equal opportunity testified they did not smell liquor on bis breath, and he did not appear to be drinking. Tbe jury by its verdict has settled this issue of fact against defendant.

No demurrer was filed to tbe information nor objection to tbe introduction of testimony made. No exceptions were taken to any testimony, nor to any of tbe court’s instructions, nor to tbe order overruling tbe motion for a new trial.

Tbe contention is made that tbe evidence is insufficient. This is not tenable. From tbe state’s standpoint, there is sufficient testimony to show defendant, while driving at an excessive speed, ran into tbe rear of tbe car driven by Sanders, and precipitated both cars to tbe creek bed, and caused tbe death of tbe O’Haras. Whether drunk or sober, the evidence is sufficient to show culpable negligence in tbe operation of tbe automobile. Tbe resultant deaths constitute manslaughter in the second degree. Brock v. State, 39 Okla. Cr. 162, 263 Pac. 1115; Nail v. State, 33 Okla. Cr. 100, 242 Pac. 270; Mayse v. State, 38 Okla. Cr. 144, 259 Pac. 277; Ansley v. State, 44 Okla. Cr. 382, 281 Pac. 160.

It is also urged that tbe information does not sufficiently allege manslaughter in tbe second degree. Counsel say tbe information is sufficient to charge tbe crime of murder or manslaughter in the first degree, but contend, in order to be sufficient as to manslaughter in the second degree, there must have been an allegation of acts constituting culpable negligence; citing Mayse v. State, supra, and Ansley v. State, supra. In each of those cases, the pleader did not attempt to charge the higher degrees of homicide, but only manslaughter in the second degree. In such case the allegation must be more than a mere conclusion of culpable negligence, but must plead sufficient facts to apprise the defendant of the particular offense he must meet. Here the charge is murder; this charge includes a charge of manslaughter in the first and in the second degree. Section 2740, Comp. St. 1921; Warren v. State, 6 Okla. Cr. 1, 115 Pac. 812, 34 L. R. A. (N. S.) 1121; Jones v. State, 8 Okla. Cr. 576, 129 Pac. 446. See, also, Taylor v. State, 44 Okla. Cr. 55, 278 Pac. 1117.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


author: PER CURIAM.

text:
    C. E. BURKE et al. v. STATE.
    No. A-8430.
    Nov. 18, 1932.
    (16 Pac. [2d] 1118.)
    W. R. Withington, for plaintiffs in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiffs in error, C. E. Burke and R. C. Clark, were by information jointly charged with John W. Luppy, of obtaining money under false pretense; C. E. Burke and R. C. Clark were tried jointly, convicted, and sentenced as follows: The punishment of C. E. Burke was fixed by the jury at six years in the state penitentiary and a fine of $500; the punishment of R. C. Clark, three years in the state penitentiary.

The record in this case was filed in this court on June 16, 1932; no brief has been filed in support of the defendants’ assignment of errors. A careful examination of the record discloses no fundamental errors, and the evidence is sufficient to support the verdict of the jury.

The case is therefore affirmed.


text:
    ORAL DAVIS v. STATE.
    No. A-8414.
    Nov. 18, 1932.
    (16 Pac. [2d] 1118.)
    David Tant, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, Oral Davis, was convicted of the crime of rape in the first degree, and his punishment fixed at imprisonment in the state penitentiary for a period of fifteen years.

The record in this case was filed in this court May 13, 1932; no brief has been filed in support of the defendant’s assignment of errors. A careful examination of the record discloses no fundamental errors, and the evidence is sufficient to support the verdict of the jury.

The case is therefore affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    SAM HARRIS v. STATE.
    No. A-8421.
    Nov. 18, 1932.
    Rehearing Denied Dec. 16, 1932.
    (16 Pac. [2d] 1118.)
    John L. Hodge, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called the defendant, was convicted of driving a motor vehicle on a public highway while under the influence of intoxicating liquor, and his punishment fixed at a fine of $200, and appeals.

The record in this case was filed in this court on June 1, 1932; no brief has been filed in support of the defendant’s assignment of errors.

A careful examination of the record discloses no fundamental errors, and the evidence is sufficient to support the verdict of the jury.

The case is therefore affirmed.