text:
    LILLIE AUSTIN v. STATE.
    No. A-4365.
    Opinion Filed Sept. 29, 1924.
    (228 Pac. 1113.)
    (Syllabus.)
    1. Evidence — Competency as Res Gestae Though Showing Another Offense. Evidence which is a part of the res gestae is competent, although it may incidentally show that the defendant committed some other offense than that for which he is being tried.
    2. Homicide — Demeanor of Defendant Immediately Preceding Killing Competent to Show He Was Armed and in Vicious Humor. It is competent to show the actions, conduct, and general demeanor of the defendant immediately preceding the killing for the purpose of proving that he was armed and in a vicious humor; provided that such conduct is so near to the time of the homicide as to t'end to show the state of mind of the defendant at the time of the killing.
    3. Homicide — Statement of Accused Immediately After Crime Tending to Show Lack of Remorse and Rebutting Testimony Supporting Self-Defense. Where the issue is self-defense, a statement made by the defendant, a short time after the commission of the homicide, which indicates the frame of mind of the defendant at that time and tends to show that he had no remorse for having taken the life of the deceased and tends to rebut the testimony of the defendant that he acted in self-defense, is competent.
    4. Homicide — Abandonment of Difficulty After Provoking Same— Question for Jury — Instruction. Where the evidence is conflicting as to whether or not the defendant provoked the difficulty and thereafter abandoned the same in good faith, these issues are for the jury under proper instructions by the trial court. An instruction on this phase of the law examined and approved as applicable to the evidence in the case.
    5. Appeal and Error — Witnesses—Limit of Examination of Witness Discretionary. The limit of the examination of witnesses is a matter resting in the discretion of the trial court. There must be a manifest abuse of such discretion, prejudicial to the defendant, before a conviction will be disturbed because the trial court limited the redirect examination of the defendant.
    Appeal from District Court, Pittsburg County; Hal Johnson, Special Judge.
    Lillie Austin was convicted of manslaughter in the first degree and sentenced to five years’ imprisonment in the state penitentiary, and appeals.
    Affirmed.
    Wilkinson & Hudson, for plaintiff in error.
    George F. Short, Atty. Gen., and John Barry, Asst. Atty. Gen., for the State.
   MATSON, P. J.

This is an appeal from the district court of Pittsburg county wherein plaintiff in error, hereinafter referred to as defendant, was convicted of the crime of manslaughter in the first degree and punishment assessed as above stated. Defendant, a negro woman, had been living fox several years with a negro man by the name of Albert Haley as husband and wife. On the 15th day of October, 1921, there was a supper given at the home of another negro woman in the town of Canadian, Pittsburg county, at which place these parties lived. This supper was attended by a number of negroes of that community, among whom were the defendant and Haley. The supper was served in the yard. It was a moonlight night, and the record also discloses that there were several artificial lights in the yard. In addition to the table on which the supper was served, there was also a phonograph, used for musical purposes. After the defendant and the deceased had been at the supper for some little time, the deceased requested the defendant to go to their home and bring his coat and gun; this the defendant did. When the defendant returned, she discovered the deceased with his hands on the shoulder of Frankie Gibson, a colored girl, in the midst of a crowd standing around the phonograph. The attitude of the deceased toward the Gibson girl, according to the defendant’s own testimony, made her mad, and according to the state’s witnesses the defendant immediately proceeded to cut the deceased and this colored girl with a knife, at the same time cursing them. The deceased shortly thereafter went to a wood pile which was near by and picked up a piece of wood and, facing the defendant, demanded that she drop the revolver which she was then holding in one hand and this knife which she was holding in the other. This the defendant refused to do, and the deceased advanced toward her and struck her over the head with the piece of wood. This piece of wood turned out to be rotten and fell to pieces. The defendant, at the time she was struck with the wood, stabbed the deceased in the heart with a knife, and he walked away a few steps and fell and soon thereafter died.

The defendant admits stabbing the deceased at the time she was struck with a piece of wood, but denies that she cut the deceased and the Gibson girl prior to that time. Her defense was that she acted in her necessary self-defense.

After Haley had died and his body had been carried to the home of a relative, it appears that the defendant went to that place and made this statement:

“Well, I killed the damned man and woman too. I will bury the damned man myself. I don’t want his folks to bury him. I will bury him myself.”

The first and third assignments of error may be treated together. The first is that the prosecuting attorney was permitted, over the objection of the defendant, to state in the opening statement to the jury that the defendant had cut Frankie Gibson. The third assignment is to the effect that the court erred in permitting the state to prove the cutting of the Gibson girl, and also in admitting evidence of the statement of the defendant made at the home of the deceased’s relatives, after the killing, to the effect that she had killed him and would bury him.

The cutting of the Gibson girl by the defendant occurred very shortly before deceased received his fatal stab. It was a part of the same transaction and explanatory of the motive of the defendant in cutting and killing the deceased. It is competent to show the actions, conduct, and general demean- or of the defendant immediately preceding the killing for the purpose of proving that she was armed and in a vicious humor; provided that such conduct is so near to the time of the homicide as to tend to show the state of mind of the defendant at the time of the killing. In this instance, we think this evidence is clearly a part of the res gestae, and the mere fact that it incidentally tended to show the commission of another offense in the stabbing of the Gibson girl did not render it inadmissible if for other reasons it was competent. Williams v. State, 4 Okla. Cr. 524, 114 Pac. 1114; Hampton v. State, 7 Okla. Cr. 291, 123 Pac. 571, 40 L. R. A. (N. S.) 43; McLaughlin v. State, 18 Okla. Cr. 627, 197 Pac. 717; 2 R. C. L. § 21, p. 517.

The statement, made by the defendant a short time after the commission of the homicide, to the effect that she had killed the deceased and would bury him, also indicates the frame of mind of the defendant and tends to rebut the statement made by her that she acted in self-defense, and shows that she had no remorse whatever for having taken the life of the deceased. This evidence was competent.

The second assignment of error is to the effect that the verdict and judgment are contrary to the law and evidence.

In this connection it is contended that because a slight intermission occurred between the time the defendant first cut the deceased and the time that the deceased was fatally stabbed by her, the evidence shows that she abandoned the altercation, and even if in fault at the time of the first trouble her right of self-defense revived, and that what af-terwards occurred was clearly justifiable.

There is a conflict in the evidence as to whether or not the defendant at any time in good faith abandoned the altercation. On this phase of the law the court gave the following instructions:

"You are further instructed that the right to defend one’s self against danger or attack, not of his own seeking, is an inherent right which the law not only concedes, but guarantees to all men. But the law does not permit one to voluntarily seek or invite a combat. The right of self-defense does not imply the right of attack, and will not avail in any case where the difficulty is sought for or induced by the defendant by any willful act -of his own, and which the accused voluntarily and of his own free will entered into it, no matter how imminent his peril may become during the progress of the difficulty, unless you should believe that after entering into the difficulty the defendant abandoned the difficulty and attempted to withdraw therefrom, in which event the defendant would be entitled to the right of self-defense after abandoning or attempting to withdraw from the difficulty, although he may have provoked the original difficulty.”

The question of whether or not the defendant had abandoned the difficulty in good faith before the happening of the event that resulted in the death of the deceased was, under the evidence in this case, for the jury to decide. The law relative to the abandonment of a difficulty was sufficiently covered by the foregoing instruction.

The fourth assignment of error relates to the action of the trial court in sustaining certain objections made by counsel for the state to the redirect examination of the defendant.

The objections made to the redirect examination of the defendant were for the reason that the questions asked related solely to matters that had been covered by the direct and cross-examination, and were, for that reason, repetitions of evidence already gone into, and that the questions were also leading and suggestive. After an examination of the record covering this assignment of error, we find no error in the action of the trial court in this respect sufficiently prejudicial to authorize a reversal of this judgment.

For reasons stated, the judgment is affirmed.

BESSEY and DOYLE, JJ., concur.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    BENNY FACTOR v. STATE.
    No. A-4427.
    Opinion Filed Sept. 30, 1924.
    (229 Pac. 154.)
    (Syllabus.)
    1. Evidence — Accused not Entitled to Introduce Proof of Another’s Confession. A defendant on trial on a criminal charge -is not entitled to introduce evidence to show the jury that some other person has confessed that he committed the crime, and that the defendant had nothing to do therewith and was not concerned therein.
    2. Same — Extrajudicial Confession of Codefendant Inadmissible. The extrajudicial confession of a codefendant, not on trial, that he had committed the murder charged, is not admissible in evidence in behalf of the defendant on trial.
    3. Appeal and Error — Trial—Credibility of Witnesses and Weight of Evidence for Jury — Verdict on Conflicting Evidence not Disturbed. The jury are the exclusive judges of the credibility of the witnesses and the weight of the evidence, and a verdict on conflicting evidence, warranted by the testimony of the state, will not be disturbed on appeal.
    4. Homicide — Evidence Sustaining Conviction for Murder. In a prosecution for murder, evidence held to justify a conviction of murder with imprisonment for life as the punishment.
    Appeal from District Court, Seminole County; John L. Coffman, Judge.
    Benny Factor was convicted of murder, and he appeals.
    Affirmed.
    W. W. Pryor and W. N. Stokes, for plaintiff in error.
    George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges that Benny Factor, Barney Factor, Wilsey Harjo, Wilson Jones, and Clarence Payne did kill and murder one Lon Phelps. Upon his separate trial the jury returned their verdict finding the defendant Benny Factor guilty of murder, and assessing his punishment at imprisonment for life. He has appealed from the judgment rendered upon such conviction.

It appears that when the ease was called for trial, on motion of the county attorney, the case against the defendants Wilson Jones and Clarence Payne was dismissed.

The undisputed facts are that on the night of the 15th day of December, 1921, there was a dance at the home of Cheparney Harjo, near Sasakwa, Seminole county. Lon Phelps, deceased, the defendants named in the information, and many others were there. Shortly after the dance ended, appellant Benny Factor, Wilsey Harjo, Wilson Jones, and Clarence Payne left Cheparney’s place together, going south on the section line. Lon Phelps, deceased, left Cheparney’s place a short time before these defendants left. The dead body of Lon Phelps was found the next morning about half, a mile south of Cheparney’s, near where the section lines intersect. A charge of shot had entered his right breast, and a part of his head had been knocked off and his brains knocked out; there was a part of the stock of a shotgun lying partly under his body and two or three other pieces of the gun stock lying near by. An empty 16-gauge shell was picked up on the road close to the body. The deceased lived with his wife and two children not far from where his body was found.

Cheparney Harjo testified that after the dance had broken up, right around 11 o’clock, he heard a gun fire; that the next morning near the intersection of the section lines, south of his home, he saw the dead body of Lon Phelps.

Lula Harjo, wife of Cheparney Harjo, testified that she saw Lon Phelps leave about 10:30; that about 11 o’clock she heard a gun fire.

Abraham Davis testified that he saw the defendant Benny Factor, Wilsey Harjo, Wilson Jones, and Clarence Payne leave Cheparney’s about 10:30, and they went south together.

Jim Taylor testified that he did not go to the dance, but his wife, Jennie Davis, did; that she got home about 10 o’clock; that his house is not very far from where Lon Phelps’ body was found; that after his wife came home he heard persons talking down there in the road, and the only voice he recognized was that of the defendant Benny Factor; that shortly after he heard a gun fire.

His wife testified that Cheparney Harjo’s wife, Lula, was her daughter, and she went to the dance with her mother; that after they got home she heard talking down there in the road and recognized the defendant Benny Factor’s voice; that she knew his voice, that not very long after she heard a shot fired. On cross-examination she stated she heard Benny Factor say, “Don’t do that, turn him loose and let him go,” and that was all she heard him say.

Clarence Payne testified that he went to the dance with Benny Factor, Barney Factor, and another fellow; they were in a wagon, and he was on horseback; that he rode part of the way in the wagon, leading his horse; that he left the dance with Wilson Jones and Benny Factor; that he rode on the same horse with Wilson Jones, and Benny Factor was riding witness’ horse; that he did not see Wilsey Harjo get on his horse with Benny Factor; that he and Wilson Jones were riding in front, and he did not look back; that they met Lon Phelps, just spoke, and passed on, then heard Lon Phelps and Benny Factor having some words back there; that he stopped them from fighting and told Benny Factor to come on, and Benny Factor rode on; that it was not very far to the corner; there Benny Factor went south, and he and Wilson Jones went west and on to Benny Factor’s house; that when they arrived at Benny Factor’s house he was there.

Cora Harjo testified that she was at the dance and returned home about 10 o’clock; that Benny Factor came to her house and asked for a gun, and he took the gun and ran back with it, and she and her mother followed him out to the section line; that she saw Benny Factor strike a man that was down; that he struck him seven or eight times; that he was striking him with the breach of the gun; that just before that she heard a gun fire. On cross-examination she stated that she was the wife of eodefendant Wilsey Harjo; that she returned from the dance with her mother; that she found her husband that night near the Indian graveyard, and he was drunk; that she and her mother carried him home.

Sallie Hallway testified that sbe went to tbe dance with her daughter, Cora Harjo, and returned home with her; that Benny Factor come to the house after the gun; that she tried to take the gun away from him, and he took it from her and ran off with it; that she followed him and heard a shot fired, and after the gun fired she saw him hit some one; that when she was going back he overtook her riding a horse and asked her to be his witness, and she did not give him any answer; that she went on and returned with her daughter, and they found her son-in-law, Wilsey Harjo, pver near the graveyard, and he was drunk; that Barney Factor came to her house that night and she got up and let him in.

On the part of the defense, Marchie Factor, the defendant’s father, testified that four or five days after Lon Phelps was killed he met Cora Harjo and Sallie Hullway in Hold-enville and had a conversation with them, in which each told him they were going to tell that Benny Factor killed Lon Phelps and the other boys would get out of it, and that in the same conversation they stated that they knew nothing whatever about the killing.

Bessie Factor, the defendant’s mother, testified that at Sasakwa on the day of the preliminary examination she had a conversation with Cora Harjo and Sallie Hullway, and Sallie Hullway told her that she did not know who it was that killed Lon Phelps.

Dorsey Fixico testified that he was at the dance at Chep-arney Harjo’s, and saw Clarence Payne, Wilsey Harjo, Wilson Jones, and Benny Factor leave the dance; that he saw all four of them get on the horses; that he left there with Chappy Harjo and Sallie, and they took Barney Factor, who was drunk, to the wagon, and Abraham Davis and Wilsey Har-jo put Barney into the wagon; that after going, about a mile Barney Factor got out of the wagon without saying a word, and he did not see Barney any more that night.

Barney Factor testified that he was at the dance at Cheparney’s, but was so drunk that he did not know how he left there; that when he came to he was in a field close by the road; that he got up, looked around, and saw a house on the hill, and walked up there and found that it was Sallie Hullway’s, where Cora and Wilsey Harjo lived; that he knocked, and Sallie Hullway came to the door; that it was probably 3 or 4 o’clock, he could not tell what time it was; that the next morning Wilsey Harjo asked him to help cut some wood, and he started with him up to Cheparney Har-jo’s to get a file to file the saw; that they were walking side by side when they came to the dead body, and witness said: “We had better give the news, some one dead here, because the hogs will destroy the body.” And they went to Pete Bynum and told him about it; that Bynum phoned to Sasak-wa and they stayed by the body until Bynum came back; that Wilsey Harjo picked up a pair of shoes and put them in his hip pocket, and after they had gone about 25 steps he took the shoes out of his pocket and threw them inside the fence, near the graveyard; when he picked them up he said: “These my shoes, ain’t it.”

The testimony of the defendant in his own behalf is as follows:

“I was at the dance at Cheparney Harjo’s and left there about 10 o’clock with Clarence Payne, Wilsey Harjo, and Wilson Jones. I was riding behind Wilson Jones. Wilsey Harjo was riding behind Clarence Payne. We had two horses. About half a mile south we met Lon Phelps on the road. He was riding a mule. There was a conversation between Lon Phelps and Wilsey Harjo, and Lon Phelps jerked Wilsey Harjo off of his horse and kicked him around.”

His further examination is as follows:

“At the time Lon Phelps and Wilsey Harjo were in this scuffle, there in the road, what, if anything, did you say to Lon Phelps, or Wilsey Harjo?
“By Mr. Adams: We object as incompetent, irrelevant, and immaterial.
“By the Court: Sustained.
“By Mr. Stokes: Give us an exception'.
“Q. I believe you stated you heard the testimony of Jennie Davis in this ease relative to what she heard you say in the section line down there? She heard your voice? A. Yes, sir.
“Q. Did you say the words there in the section line there at 'that time?
“By the Court: Wait a minute.
“Q. Did you state there at that time to Lon Phelps to turn him loose, he hasn’t done anything?
“By Mr. Adams: We object; incompetent, irrelevant, and immaterial.
“By the Court: Overruled.
“By Mr. Adams: Exception.
“A. No, sir; I did not say it.
“Q. What was it that you did say?
“By Mr. Adams: We object as incompetent, irrelevant, and immaterial.
“By the Court: Sustained.
“Q. How long were you there in the road before you left? A. About five minutes.
“Q. Did you try to separate the boys, to keep them from having any fuss?
“By Mr. Adams: We object; incompetent, irrelevant, and immaterial.
“By tbe Court: Overruled.
“By Mr. Adams: Exception.
“A. No, I did not.
“By tbe Court: I will permit you to ask him if be testified to tbe things the other witnesses said he said.
“By Mr. Pryor: Now, you let the other witnesses testify to what he said.
“By the Court: Yes, of course.
“By Mr. Pryor: Now you are presuming that the very words used—
“By the Court: I can’t permit him to say I said so and so. You can prove it by the witnesses if you want to.
“By Mr. Pryor: No, we can’t prove it by other witnesses, because they would object to the statement; but put him on the stand and show him what he said at the time himself. The court I think has the rule confused.
“By the Court: No, you have the rule confused; the court is all right.
“By Mr. Pryor: I ask leave of the court at this time to make the record out of the hearing of the jury to show what this witness would testify to if permitted to answer.
“By the Court: The permission to make the record is denied, for the reason that the record is already made. Go ahead, gentlemen.
“By Mr. Pryor: We except.
“Q. Did you say anything to Lon Phelps and Wilsey Harjo at the time about stopping the racket?
“By Mr. Adams: We object.
“By the Court: Sustained.
"Q. Did Wilsey Harjo get back on the horse after the fuss? A. Yes, sir; I told him to get back on the horse, and he got back on.
"Q. You persuaded Wilsey and Phelps to stop the fuss there at the time?
"By Mr. Adams: We object; incompetent, irrelevant, and immaterial, and a conclusion.
"By the Court: Overruled.
"A. Yes, sir; I told them to stop the racket and get back on the horse.
"Q. And they did that? A. He got on behind Clarence Payne.
"Q. Did Wilsey Harjo afterwards get down off the horse again? A. Yes, sir; he fell off the horse after that, and I left him and went home.
"Q. Now, how far was that from the place where they had the fuss? A. Oh, it wasn’t as far as from here to that west wall there.
"Q. Did you boys go on and leave him there? A. Yes, sir; we left him there and went on. We went south to the section line and turned west.
"Q. How far west did you go with Clarence Payne and Wilson Jones? A. Half a mile.
"Q. And then where did you go? A. I went south. I told them to wait there for me, and they did not wait; they went on west. Clarence Payne told me to ride over there and see if I could get any whisky to drink, and I went to get whisky and did not get any. Then I went home. Just a short while after I got there Wilson Jones and Clarence Payne came there.
"Q. Did you have a conversation with Wilsey Harjo, while he was in jail charged with this crime, about the killing of Lon Phelps, and, if so, when? A. Wilsey Harjo spoke to me about this murder the next day after Wilson Jones was released from jail.
“Q. Did he tell you Wilsey Harjo killed Lon Phelps?
“By Mr. Adams: We object; incompetent, irrelevant, and immaterial.
“By the Court: I will sustain the objection.
“Q. Have you been told by either one of the boys who were placed in jail charged with this crime as to who killed Lon Phelps? (Same objection. Overruled.) A. Yes, sir; I have.
“Q. Who? (Same objection. Overruled.) A. Wilsey Harjo.
“Q. Did he tell you who it was that killed Lon Phelps? (Same objection. Sustained. Exception taken.)
“By Mr. Pryor (out of the hearing of the jury): Comes now the defendant and offers to show by this witness, the defendant, that Wilsey Harjo, who is jointly charged with this crime, told this defendant, witness, that he himself killed the deceased, Lon Phelps, and that he knew that this defendant had nothing whatever to do with the killing of him; that this conversation took place in the county jail of Seminole county, Okla., two or three days after the preliminary hearing held in this case, and the next day'after one of the defendants in this case, Wilson Jones, was released upon a bond and discharged.
“By the Court: Objection sustained. (Exception taken.)

On cross-examination he stated:

“I was riding Wilson Jones’ black horse, and when they told me to see if I could get whisky, Clarence Payne loaned me his horse and we swapped horses. Then Clarence Payne got behind Wilson Jones on his horse. Wilsey Harjo was trying to get off the horse and fell off near the Indian graveyard. I went to Jess Steelman’s to get the whisky. His house is a little ways, probably half a mile, west from Cora Harjo’s. I did not go up where Lon Phelps’ body was the next morning. I was arrested at my father’s the next day, about 3 o’clock in the afternoon. I was going to Ada with my wife the next day, so I had on different clothes. I did not have any money, and I asked Wilson Jones the next morning if he had any money, and he told me he did not.”

Three propositions are presented by the appellant’s brief and assignment of errors:

“(1) That the court erred in refusing to permit counsel for the defendant to make the record in the case; thereby keeping out of the record certain facts and statements made by the court and testimony offered on behalf of the defendant, and admitting testimony over the objections of the defendant. (2) That the court erred in its instructions given to the jury, in that said instructions as a whole are misleading and conflict with each other. And (3) that the verdict of the jury is not supported by the evidence and is against the law.”

Complaint is made of the rulings of the court in sustaining objections by the county attorney to questions propounded to the defendant as a witness in his own behalf whereby he was denied the right to tell his story as to what occurred and was denied the right to make the record.

There can be no question that the ruling of the court in sustaining the objections in question was erroneous, but it could not be prejudicial to the defendant, because the record shows he was afterwards permitted to testify fully as to what he said to Wilsey Harjo and Lon Phelps, the deceased, when they met in the road shortly before the killing occurred.

“The exclusion of evidence to prove particular facts is harmless; if the facts sought to be proved are subsequently proved by other evidence, and it is apparent that the evidence excluded .could not have changed the result.” Addington v. State, 8 Okla. Cr. 703, 130 Pac. 311; Rogers v. State, 9 Okla. Cr. 277, 131 Pac. 941.

Complaint is also made of the refusal of the court to permit the defendant to testify as to what his codefendant, Wilsey Iiarjo, told him in the county jail.

This testimony was properly rejected. It is the well-settled rule in this state that a defendant who is being tried on a criminal charge is not entitled to introduce proof which has for its purpose the establishing before the jury the fact that some other person has confessed that he committed the crime, and that the defendant had nothing to do therewith, and was not concerned therewith. Dykes v. State, 11 Okla. Cr. 602, 150 Pac. 84; Williams v. State, 13 Okla. Cr. 189, 163 Pac. 279; Klein v. State, 15 Okla. Cr. 350, 176 Pac. 414; McNeal v. State, 15 Okla. Cr. 555, 179 Pac. 479.

Counsel further complains as follows:'

“We endeavored to save our objections and exceptions to the closing argument of the county attorney, and we set out only a small portion of what was said by the county attorney in his closing argument. We were up against the proposition of being denied the right to except, or make a record.”

The record merely shows that during the argument of the county attorney, counsel for the defendant objected as follows:

“We object to what he says ‘he was trying to do’ not within the record.
“By the Court: Yes, sir; stay within the record.
“By Counsel: May it please the court he says this.
“By the Court: Now, gentlemen, I am not going to have any more interruptions. Go on with the argument.”

We are forbidden to notice the alleged improper remarks of the county attorney because they were not incorporated in the record and made the ground of exceptions. In so far as the record shows, counsel for the defendant was not denied the right of having the court reporter take the entire argument, if they so desired. This counsel did not request, and for this reason the alleged improper argument cannot be reviewed by this court.

Some of the instructions are complained of. We have examined them all with care and find that they were as favorable to the defendant as the law would permit.

It is urged with apparent confidence that the evidence is not sufficient to warrant a conviction of this defendant.

This contention is predicated upon the fact that the main evidence against this defendant was given by two witnesses, the wife and mother-in-law of his codefendant, Wilsey Harjo.

While the evidence does not show who fired the fatal shot, it does show that this defendant was at the place where this brutal murder was committed a few minutes before the fatal shot was fired. The facts and circumstances leading to and during the altercation on the highway near the Indian graveyard where deceased, Lon Phelps, was murdered, cannot be known, because of the different versions of it by those present. There is no dispute but that the altercation was brought on in some way. The witness Clarence Payne testifies that it was between this defendant, Benny Factor, and the deceased, and that he stopped them from fighting. This defendant testifies that there was a quarrel and a fight between deceased, Lon Phelps, and his code-fendant, Wilsey Harjo, and that he only acted as peacemaker.

This court has uniformly held that, where the inference of guilt can be reasonably drawn from the evidence, it will not interfere with the verdict on the ground of want of evi-deuce to support it. The jury are the exclusive judges of the credibility of the witnesses and the weight to be given their testimony. We think the testimony, without ahy doubt, is ample to sustain the conviction.

After a careful examination of the record we conclude that there was no error which could have been prejudicial to appellant; accordingly, the judgment is affirmed.

MATSON, P. J., and BESSEY, J., concur.


author: BESSEY, J.

text:
    W. R. RAY v. STATE.
    No. A-4261.
    Opinion Filed Oct. 4, 1924.
    (228 Pac. 1005.)
    (Syllabus.)
    Trial — Weight of .Conflicting Demonstrative Evidence and Credibility of Witnesses for Jury. Where the evidence is conflicting and apparently, so far as the record shows, about equally divided, and where portions of the evidence are of a demonstrative character, the weight of the evidence and the credibility of the witnesses are for the jury.
    Appeal from District Court, McCurtain County; G. M. Barrett, Judge.
    W. R. Ray was convicted of arson, and he appeals.
    Affirmed.
    McPherren & Cochran, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, J.

W. R. Ray, plaintiff in error, defendant in the trial court, was on September 21, 1921, in the district court of McCurtain county, convicted of the crime of arson, growing out of the burning of a neighbor’s barn in the nighttime. By the verdict of the jury his punishment was fixed at confinement in the penitentiary for a term of 10 years.

The records and correspondence before this court show that consideration of this case has been postponed from time to time oh application of the attorney representing the defendant; that the defendant is a poor person and financially unable to further prosecute this appeal and unable to pay further attorney’s fees and the expense of preparing a brief in support of his appeal. Ordinarily, when no briefs are filed, this court will assume that the appeal has been abandoned; but under the circumstances in this case, without any intention of establishing a precedent in that regard, this court will undertake to brief, argue, and 'decide the cause on its merits, from what appears in the record.

The prosecuting witness and the defendant were neighbors, and had had a misunderstanding of minor importance concerning the gathering and sale of some cotton and division of the rents. At the market, some 40 miles distant, they failed to agree, and both drove homeward; Ray leaving on Saturday night and the prosecuting witness the following morning. On Sunday night, at about 9:30 o ’clock, the barn of the prosecuting witness was discovered on fire and it burned to the ground. Earlier that evening and again at and just before 9:30 there was a severe rainstorm, accompanied by vivid flashes of lightning and loud thunder.

It was the theory of the defense that the barn was set on fire by lightning. The state contended that certain human tracks and horse tracks indicated that the barn was set on fire by the defendant, or by an accomplice of the defendant at the latter’s instigation. In the examination and cross-examination of witnesses, a plat or map was used to illustrate directions, distances, and the location of these tracks. It is difficult for this court to judge of the force of some of this testimony, because this drawing was not incorporated in the record; and practically the only question involved in this appeal is whether the evidence is sufficient to support the verdict.

The first misunderstanding between the defendant and the prosecuting witness was over the settlement for the picking of some cotton by the sons of the prosecuting witness. Defendant claimed that he was to pay for the cotton picking with corn; the boys demanded money. This difficulty, however, appears to have been adjusted to the satisfaction of all concerned before the fire.

It will be necessary to set out the testimony at some length in order to make clear the issue of whether this barn was set on fire by lightning, or whether the fire was the work of this defendant.

Mr. Helton, the owner of the barn and the prosecuting witness, testified that he lived near Bethel; that Ray, the defendant, was a crop tenant on an adjoining farm belonging to the witness; that he and defendant met at Yalliant, 40 miles distant, on Saturday, the 5th day of February, 1921, for the purpose of settling for the cotton grown by defendant on witness’ farm. Late Saturday evening the defendant asked Helton to wait there until Monday, as the market was off on Saturday and he wanted to wait until Monday or the early part of the week for a rise in price. Late Saturday night Helton found that the defendant had started back home. Assuming therefore that defendant would not be at Valliant on Monday, according to his agreement, early Sunday morning Helton started homeward, arriving home between 11 and 12 o’clock that night, after the barn had been practically consumed by fire. Witness was shown some human tracks in the soft earth near the barn, leading into the hallway of the barn and coming away. These tracks had been covered with boards to preserve them and prevent their being obliterated by the feet of the neighbors who had gathered there. The tracks looked like they had been made by rubber boots. The next morning, with two neigh'bors, Mr. Hood and Mr. Winship, witness and his sons followed these tracks in a southwesterly course around the garden. The tracks were not very distinct on account of the rain that had fallen after they were made. The tracks led to a road beyond which they found a place where it appeared that two horses had been standing, one of which made a large track and the other a small track. These horse tracks appeared at intervals leading towards and near to where the defendant had his camp on the other farm belonging to this witness. One of the larger horse tracks had a long calk on one side — was irregular in shape. On cross-examination the witness admitted that he did not know when the human tracks were made or by whom, or at what stage of the fire they had been covered by boards; that defendant habitually drove a team consisting of a horse and a mule.

D. H. Chapman testified that he lived not far from this barn and noticed the fire at about 9:30 o ’clock Sunday night; that'he went to the fire and found Mr. Helton’s women folks and his sons there; that the fire appeared to have started in the hallway; that he saw the tracks leading into the hallway and away from it, both ways; that he got a plank and put it over some of the tracks to preserve them; that Leonard Helton and Herbert Rye saw him cover the tracks; that these tracks led around to near where there were some horse tracks made by horses that appeared to have been standing; that there was a little patch of timber between, where no tracks could be found. Witness did not try to follow the horses’ tracks. The human track looked like it was made by a rubber boot. The tracks leading into the barn looked to be those of a man walking, while those coming out were farther apart, indicating that the man was running. One of the horse tracks was of a peculiar shape, with one calk longer than the other. The next morning following the fire the witness, with others, followed the horse tracks to very near the gate at Mr. Helton’s place where Ray was staying. Witness had heard a dispute between defendant and Helton’s sons about picking cotton. On cross-examination witness said that there had been rain, thunder, and lightning before and after the barn burned. When witness arrived at the scene of the fire, Ona Helton said that Ray had set the barn on fire and witness told her to hush and not accuse anybody; that it might have been set by lightning. This was before the tracks were discovered and covered with the plank.

Ellis Helton, son of the owner of the barn, says he first noticed the fire at about 9 o’clock; that the fire appeared to have started in the hallway. Chapman called the witness’ attention to the tracks. That it rained about dark that night, before the fire. Witness verified the testimony as to the horses’ tracks leading over towards the defendant’s camp, about a mile distant. He also stated that the human tracks appeared to have been made with a rubber boot.

Jess Hood, a deputy sheriff, examined the human tracks covered by a plank, also followed the horses’ tracks, one of which was peculiar. Witness followed the horse tracks, as best he could, to near a field where defendant was. Near there in a barn witness and others found the horse belonging to Ray which made the peculiar track. That afternoon witness arrested Ray, who was wearing rubber boots corresponding in size and shape with the tracks covered by the plank. There were five other horses in the field. Ray was riding a pony when witness arrested him.

For the defense, W. F. Redding testified that he lived about 1 y% miles from Helton’s barn when it burned; that there was a terrible electrical storm that night, with heavy thunder and lightning, commencing a little before 9 o’clock; that he and his family went into the storm cave on their place for protection before 9 o’clock. When they came out of the storm cave witness noticed the light from the burning barn. There had been a hard storm earlier, and another followed at about 10 o’clock.

J. F. Cheek lived one mile from the Helton barn; saw the light from the burning barn and started to go to the fire, but could not cross the swollen streams. Just before the barn burned "there was a rainstorm, with heavy thunder and vivid lightning. While the bam was burning the thunder and lightning continued, then ceased, and later there was another electrical storm. Witness went to the Helton place the next morning, where he was shown tracks covered by a board, some 12 or 15 steps from the barn; the tracks looked as if they had been made by a shoe, a course work shoe; didn’t look like rubber boot tracks at all.

Bernie Cheek saw the light of the burning barn; it had been thundering, with flashes of lightning. Witness could not go to the place because of swollen creeks. While the barn burned, the thunder and lightning continued. The next afternoon the tracks were shown to witness. These tracks were about 15 steps from the barn hallway. Witness thought they looked like shoe tracks.

Isaac Winship was at the place where the barn burned the day following the fire. He stated that he and others attempted to do some tracking; saw the track covered with a board, and it appeared to be a shoe track, about a number eight shoe. Some dim horse tracks were pointed out to witness, but he could not follow them through brush and swags; he could discern no peculiarities about these tracks. Nothing was said about any peculiar tracks at or before that time. Officer Hood found the horse he said was supposed to have made the tracks and led Mm onto plowed ground, where he made distinct tracks, and witness saw no peculiarities about those tracks. Witness was with Officer Hood when he arrested Ray. Hood first measured the foot of the young man who was with Ray, later Ray’s foot. He put a stick back of his heel and pushed it up in front; Ray was on his pony at the time, and Ray stuck his foot out for Hood to measure it. Witness did not see just exactly how he did it.

Sherman Ethridge was at the scene of the fire on the morning following the fire. Witness was shown the tracks that had been covered with a plank; could not tell whether they were made by a boot or a shoe. They also pointed out horse tracks. One of the front feet of one horse made a kind of oblong track. These tracks did not lead to the field where Ray was camped, but near there. Officer Hood told us to stay there.

W. R. Ray, the defendant, testified that a short time before the barn burned he was living on Helton’s farm, about one mile distant from Helton’s home place, but that at the time of the fire he was camped at another place about two miles away. Concerning the friction with the Helton boys, the defendant testified as follows:

"His sons got a little angry with me because I wouldn’t pay them money for cotton picking when I had a fair agreement with their father to pay in corn, and these boys wanted me to pay them money. I told them I had agreed to pay their father a bushel of corn for a hundred pounds of cotton. I had three bales of cotton then, and one of the boys jumped up and said, ‘We are going to attach your cotton then.’ I says: ‘Boys, you will go in the hole if you do that; me and your papa had a fair and square agreement.’ Then the other one jumped up and lie says, ‘I will just get a hand full of him.’ Then Uncle Pete says, ‘Don’t have any trouble,’ and I just says, ‘I aint going to have any trouble,’ and I just drove on outside and got down and shut the gate and drove on off. That was on Monday, and I went on to town and back, and Thursday he says, ‘Let’s weigh the corn.’ I says, ‘All right, and what corn I lack I have made arrangements with Mr. Croy just across the creek to get the rest of the corn.’ So we went over there and weighed the corn up.”

Concerning the sale of the cotton in town and the division of the proceeds, the defendant testified:

“That day (Saturday), when I got to Valliant, they was waiting for me to come in with my cotton. I carried five bales, and when I got there Helton says, ‘Are you going to sell now?’ I says, ‘I’ve got four more bales, and when I sell I want to get the top price.’ He says, ‘I want to sell mine.’ I says, ‘Go ahead and sell the fourth if you want to.’ We talked awhile, and I went on up the street, and there was a cotton buyer come along, and he says, ‘Mr. Hel-ton says you won’t sell your cotton.’ And I says, ‘His fourth is there for him to sell; when I get ready to sell mine I will sell mine and he can sell his.’ I says, ‘We will try and sell some next week if the market goes up.’ I had sixteen bales there and four at home. I had altogether twenty-eight bales, but I had sold some.”

Defendant says he told Helton he would go home and finish moving and sell the cotton the week following, or as soon as the market got better; that he arrived home at about sundown; that it was raining when he reached home, that he went to bed at about' 9 o’clock,; in the meantime it was thundering and lightning; that his nephew and his son were with him at home all that night. Defendant first learned of the burning of the barn from a neighbor, Harris, the next day about noon. Concerning his arrest the defendant testified:

“When I met Hood, we just stopped and set there and talked a little bit. I says: ‘Well, it’s getting late. You fellows better go back and stay all night with me. He says, ‘No. I’ve got a flim-flam to talk with you.’ I says, ‘All right, go to it.’ He says, ‘Stick your foot out here,’ and I stuck my right foot out just like that (demonstrating), and he measured it and looked over at Isaac and winked, and he measured it again, and I ¡did, and it lacked just that much (indicating) of going across my boot. It lacked just about the width of my thumb. My boot was right smart longer than the stick he had. He said he was trying to find the man that burned Mr. Helton’s barn. I says, ‘You will have to go somewheres else.’ Then he asked me about where my nephew was. He says, ‘Do you know whether your nephew left the house?’ and I says, ‘If he left at all, it was after I was asleep.’ ”

Later Hood searched the defendant’s house. Defendant asked him what he was trying to find, and Hood said: “I was looking for a pair of shoes. I didn’t know but what maybe you bought a pair at Yalliant and had them hid.” On cross-examination: If any of defendant’s horses made a peculiar track, defendant did not know it. Defendant was wearing a rubber boot when arrested. Defendant admitted he had served a term in the penitentiary in Arkansas for manslaughter.

The question now confronting this court is: Does this evidence beyond a reasonable doubt exclude every reasonable hypothesis except the guilt of the defendant? The evidence of seemingly disinterested witnesses concerning the human tracks was indefinite as to whether they appeared to have been made by a shoe or a rubber boot; the horse tracks were not continuous, and the peculiarity of the track made by the front foot of one;- animal was such as might have been made by another animal. The fact that there was a severe electrical storm, with much sharp lightning and heavy thunder, just preceding the fire, might reasonably raise an inference that the barn might have been struck by lightning and thus fired. All these, however, were questions of fact for tbe jury. There was evidence of motive which, coupled with circumstantial and demonstrative evidence submitted, pointed to the guilt of the defendant. The weight of the testimony and the credibility of the witnesses was for the jury.

The judgment of the trial court is affirmed.

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


text:
    EARL BYXBEE v. STATE.
    No. A-4380.
    Opinion Filed Oct. 4, 1924.
    (228 Pac. 1004.)
    (Syllabus.)
    Appeal and Error — Presumption Where Record Contains Inconsistent Statements as to Averments in Information. Where different parts of the record are inconsistent as to the averments contained in the information, and if the averments are sufficient according to some portions of the record and the trial pro-, ceeds on that basis, this court will assume under circumstances such as shown here that the discrepancies were due to inadvertent omissions or inaccuracies in the record.
    Appeal from County Court, Woods County; L. T. Wilson, Judge.
    Earl Byxbee was convicted of the unlawful manufacture of intoxicating liquor, and he appeals.
    Affirmed.
    J. W. Barry, for plaintiff in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

Earl Byxbee, plaintiff in error, defendant in the trial court, was on the 16th day of March, 1922, found guilty of the illegal manufacturing of intoxicating liquor. By the verdict of the jury his punishment was fixed at confinement in the county jail for a period of 90 days and a fine of $500. From the judgment rendered in accordance with the verdict, he appeals.

The defendant maintains that the information does not state facts sufficient to constitute an offense. At one place in the record, purporting to be a copy of the information, a portion of the charging part states that Earl Byxbee “did willfully, intentionally, and unlawfully make and manufacture intoxicating liquors, in violation of the prohibitory laws of the state.” At another place in the record, purporting to be a copy of the information,- it is stated that Earl Byxbee “did willfully, intentionally, and unlawfully make and manufacture intoxicating liquor, to wit, corn whisky, in violation of the prohibitory laws of the state.” The complaint and warrant of arrest indicate that the defendant was charged with making corn whisky; the remarks of the court and of counsel during the progress of the trial indicate that the defendant knew the kind and character of intoxicating liquor involved in the prosecution. We assume, therefore, that there may have been an amended information, showing that fact, or that the words, “to wit, com whisky,” were inadvertently omitted from the copy of the information as it first appears in the record. That being the case, the demurrer to the information was properly overruled.

The defendant next complains of improper and prejudicial remarks made by the couñty attorney during the progress of the trial. During the course of the opening statement to the jury, the county attorney said:

“Now, in this trial the defendant demanded a trial by jury, for the reason that he was afraid of the verdict that would be given by the judge and believed that he would have an easier * * *
“By Mr. Barry (interrupting): We object to that statement, your honor.
“By the Court: What was the statement?”

The statement was then repeated, and the court very properly sustained the objection and admonished the jury that the remarks made by the county attorney should be disregarded. Practically the same statement was made by the county attorney in his closing argument to the jury, when the court again admonished the jury that the remarks were improper and should not be considered by them for any purpose. Under the circumstances, this irregularity will not be sufficient to work a reversal of this cause.

The defendant urges that there was error in the court’s instructions to the jury and error in the refusal of the court to give a requested instruction. The instructions have been examined and both these contentions found to be without merit.

The evidence shows that the officers went to the defendant’s premises, where they found the defendant in possession of a still which had been very recently in operation, together with a great quantity of mash and other things indicative of the manufacture of whisky; that some of the product was still warm; and that the defendant, when apprehended, made remarks and statements indicating that he was guilty.

The judgment of the trial court is affirmed.

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


author: MATSON, P. J.

text:
    HOMER WILSON v. STATE.
    No. A-4364.
    Opinion Filed Oct. 6, 1924.
    (228 Pac. 1108.)
    (Syllabus.)
    1. Robbery — Information for Conjoint Robbery Held Sufficient. Information charging the crime of robbery, conjointly committed, examined and held sufficient.

      2. Trial — Refusal of Incorrect and Inapplicable Instructions not Erroneous Where Given Instructions Cover Law of Case. Where the instructions as a whole cover the law of the case, and are such as have heretofore been approved by this court in cases of like character, they are sufficient, and the refusal of the trial court to give certain requested instructions, some of which contain incorrect statements of law, and others of which are not applicable to the evidence, constitutes no ground for reversal.
    3. Robbery — Evidence Sustaining Conviction for Conjoint Robbery. Evidence considered and held sufficient to support the verdict and judgment.
    4. Appeal and Error — Harmless Error — Admission of Incompetent Evidence. The admission of incompetent evidence will not be held to be prejudicial where after an examination of the entire record it appears that the error complained of did not result in a miscarriage of justice.
    Appeal from District Court, Craig County; A. C. Brewster, Judge.
    Homer Wilson was convicted of robbery, and be appeals.
    Affirmed.
    Homer Wilson was convicted of tbe crime of robbery, alleged to have been committed conjointly witb one W. K. Decker upon one Claude Desbazo, in tbe town of Centralia, in Craig county, on or about tbe 5th day of February, 1921.
    Tbe information was filed in tbe district court in Craig county on tbe 31st day of May, 1921, a trial had in tbe month of November, 1921, judgment having been pronounced on tbe verdict on December 5, 1921. Tbe petition in error and case-made were filed in this court on June 3, 1922.
    A narrative statement of tbe state’s case is about as follows:
    "The defendant Homer Wilson was born and reared near tbe town of Centralia, and at the time of tbe commission of this offense was 21 years of age. He was a married man, but apparently was not living witb bis wife at tbe time. His father, a widower, was living about two miles and a half east of the town of Centralia, but the defendant had not been living with him for some time prior to the commission of the offense. Claude Deshazo, the person robbed, was a barber and owned and operated a barber shop in the town of Centralia in the second story of a brick building on the east side of the Main street of said town, in which second story was also located the Masonic lodge room, which room was about 35 feet east and back of Deshazo’s barber shop.
    “The robbery occurred at between 11 and 12 o’clock at night on Saturday, February 5, 1921. At the time of the robbery, the defendant Homer Wilson was in the barber chair, and Deshazo was cutting his hair. There was no one else in the barber shop except a small boy, and in an adjoining room used for cleaning and pressing clothes was another barber, by the name of Newlin. Newlin was asleep at the time, and knew nothing of the robbery. It was upon this scene that the codefendant, W. K. Decker, entered, armed with a .45 Colts pistol, and wearing a long raincoat, a dark beaver hat, and a handkerchief tied up over his face. Decker commanded those in the barber shop to ‘stick ’em up,’ and after the parties had put their hands above their heads Decker proceeded to take a diamond ring and about $40 in money from Deshazo. Deshazo was also wearing a diamond stud in his necktie, and Decker reached around his neck and attempted to pick this out, but could not do it. Decker then ordered the defendant Wilson to remove the stud. Wilson experienced some difficulty in doing so, and Deshazo told him to take a pair of shears and cut it out, which he did, and handed the stud to Decker. Decker immediately backed out of the barber shop, and told the parties to keep their hands up for 15 minutes.
    “After Decker had escaped an alarm was given to certain members of the Masonic lodge, which was in session, and also to other people in the town, and an automobile was procured at a garage, and Deshazo and the defendant and two other men got into an automobile and drove east of Centralia about seven or eight miles in search of the robber, but upon learning that nobody had gone in that direction they returned to Centralia to the garage, where the defendant separated from the parties, stating that he was going to his father’s home. At this time the defendant returned to Deshazo a pistol which Deshazo had given him just before they started out on the search for the robber. Decker was arrested the next day in a field not far from the home of the defendant’s father. He admitted his guilt, and showed the parties who arrested him where he had cached the stolen goods and the pistol used. This was about 9 o’clock on Sunday morning, February 6, 1921.
    “Shortly after his arrest Decker was taken to the town of Centralia to a restaurant to get something to eat. While Decker was in the restaurant the defendant Wilson came in and was also arrested, and a conversation occurred between Decker and Wilson, substantially to the following effect, according to the state’s witnesses: Wilson told Decker he had seen him down near his home, and Decker replied, ‘I did not know that was your home,’ and asked Wilson if they had him arrested also, and Wilson told him they had, and Decker also told Wilson, ‘I don’t know you,’ and Wilson said that he had never seen Decker before, and Decker said, ‘Oh yes; you are the man that I took the $3 from,’ and Wilson says, ‘No; I didn’t have but 35 cents, and you gave it back to me.’
    “It is also disclosed by the evidence that Wilson and Decker had known each other for several months; that Decker was a painter by trade, and had been working in the town of Bigheart, Okla., at a time that Wilson was also working there; that they had roomed at the same rooming house at that town, had played pool together, -and were frequently seen together in the town. That they ¡disappeared in said town about a month previous to this robbery, and that on the night of their disappearance a robbery was also pulled off in Bigheart; in which robbery a man by the name of Hines was robbed, and a pistol taken from him by this defendant Wilson, and the pistol that was taken from Hines in the robbery at Bigheart by Wilson was the same pistol used by Decker in robbing Deshazo. ■

      “Also it is disclosed by the state’s evidence that shortly after the robbery of Hines in Bigheart, along about the first of January, 1921, Wilson and Decker were seen in the town of Jennings, Okla., together, and took their meals at the same restaurant in the town of Jennings. It is also disclosed by the state’s evidence that on Saturday, February 5, 1921, the day of this robbery, Wilson and Decker were seen on several occasions near the home of the father of Wilson, and also together in the town of Centralia. That they had been in the barber shop of Deshazo together the morning of that day. That Decker had been there and got a shave; that Wilson also got a shave about 30 minutes before he got his hair cut; fhat after Wilson got his shave he went down stairs, stayed a few minutes, and then returned and concluded he would take a hair cut, and Deshazo testified that Wilson did not need a hair cut at that time.
    “Wilson as a witness in his own behalf admitted his presence in the barber shop at the time of the robbery, and admitted his acquaintance with Decker, but 'denied any participation in the robbery of Hines at Bigheart, and testified that he left Bigheart on the afternoon of the day that Hines was robbed that night. He admits being with Decker in the town of Jennings, but denies knowing anything about Decker’s presence in the town of Centralia, and denies having been with him in the town of Centralia on the occasion testified to by the state’s witnesses.
    “To summarize the effect of the state’s evidence it is that-Decker actually committed .the robbery as the result of a conspiracy between him and Wilson, and that Wilson was present for the purpose of aiding Decker in its commission. That they had for some time been partners in the commission of crimes of this character, and that Decker intended to divide the spoils with Wilson as a part of the plan. The evidence of the state, both direct and circumstantial, in the opinion of this court points unerringly to this conclusion. The admissions made by the defendant as a witness in his own behalf against his interest Tend also to fortify the state’s position, as well as do his contradictory statements.”

      Theo. D. B. Frear, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   MATSON, P. J.

(after stating the facts as« above). It is first contended that the trial court erred in overruling the demurrer to the information. The charging part of the information is as follows:

“That the said W. K. Decker and the said Homer Wilson acting conjointly and together, in the county and state aforesaid, on the 5th day of February, 1921, did knowingly, willfully, unlawfully, wrongfully, feloniously, conjointly, and together, make an assault in and upon one Claude Deshazo with a certain weapon, to wit, a revolver, then and thereby putting the said Claude Deshazo in fear 'of an immediate injury to his life and person, by threatening to shoot the said Claude Deshazo, and did then and there fyy use of said force and putting in fear, unlawfully, willfully, wrongfully, and felon-iously, and against the will of him, the said Claude Deshazo, take, steal, and carry away from the person and possession of him, the said Claude Deshazo, certain personal property, to wit, one diamond set ring, one diamond set shirt stud, and $40 lawful money of the United States of America, with the unlawful, wrongful and felonious intent then and there on the part of them, the said W. K. Decker and Homer Wilson, to rob and deprive the said Claude Deshazo of the aforesaid property, and to convert the same to the use and benefit of them, the said W. K. Decker and Homer Wilson, contrary to the form of the statutes, in such cases made and provided, and against the peace and dignity of the state of Oklahoma.”

In this connection it is first contended that the information fails to state the facts showing a conspiracy between Wilson and his eodefendant Decker. This is unnecessary under the statutory provisions of this state. Section 2574, Compiled Statutes 1921.

Further it is contended that the information is fatally defective in that it nowhere lays the ownership of the property stolen. The information charges:

“Did take, steal, and carry away from the person and possession of him, the said Claude Deshazo, certain personal property, to wit, one diamond set ring, one diamond set shirt stud, and $40 lawful money of the United States of America, with the unlawful, willful, wrongful and felonious intent then and there on the part of them, the said W. K. Decker and Homer Wilson, to rob and deprive the said Claude Deshazo of the aforesaid property, and to convert the same to- the use and benefit of them the said W. K. Decker and Homer Wilson.”

It is not necessary in a robbery case to allege and prove that the property belonged to the party from whose possession it was forcibly taken. All that is requisite is an allegation that it belongs to some other person than the defendant or defendants. The allegations above set forth are sufficient in themselves to negative the idea that the property in the possession of Deshazo alleged to have been forcibly taken from his person was not the property of Decker and Wilson.

An examination of this information convinces the court that the acts constituting the crime are set forth therein with sufficient certainty to apprise the defendant of the offense charged against him and that it includes all the elements of robbery as defined by our statute, and that the trial court did not err in overruling the demurrer to the information.

Complaint is also made of certain of the court’s instructions which were excepted to by the defendant. The instructions complained of have been examined and considered in connection with the evidence in the case. We find instructions to cover tbe law as applicable to the evidence, and are such as have heretofore been approved in eases of this character. The instructions requested and refused by the court were either incorrect statements of the law or not applicable to the evidence, and were properly refused.

It is also contended that the evidence is insufficient in that it does not show that the person robbed was at any time in fear of this defendant. The theory of the state was that this robbery was the result of a conspiracy previously entered into between this defendant and his codefendant W. K. Decker; that the purpose of the presence of this defendant in the barber shop at the time of the commission of the robbery was to aid and assist his eodefendant Decker therein should the occasion require active participation therein by this defendant. The circumstantial evidence all points to the faet that this robbery was planned by the defendant and his codefendant Decker; that this defendant participated therein by acting as a lookout for Decker, and by locating himself at the scene of the robbery at the time of its commission. That this defendant first went to the barber shop that night and got a shave and then went down stairs, and in a short time returned to get a hair cut, is significant. His excuse for leaving after the shave, that he had taken medicine and had a pressing call of nature is evidently an afterthought on his part, because he admits that when he went down from the barber shop after getting a shave he stood at the foot of the stairs and talked for five or ten minutes with some one who was then leaving the barber shop. Evidently the Jury did not believe he left there for the purpose of answering the call of nature, but rather to inform his codefendant that the coast was clear, and that everybody had left the barber shop but one small boy.

The inferences properly to be deduced from the circumstantial evidence against this defendant were for the jury, and this court has no hesitancy in stating that the jury reached the right conclusion under the evidence in this case.

The only semblance of error which we consider in any degree prejudicial to this defendant was the admission of the evidence of the details of the robbery previously committed by him and his codefendant Decker on one Hines at Bigheart, Okla. The fact of the commission of this robbery was admissible in order to identify this defendant, and to show his acquaintance with the defendant Decker, and to connect this defendant with the revolver used by Decker in this particular robbery, and as much of the details of the Bigheart robbery as was necessary for those purposes was properly admitted, but other matters of detail connected with the Big-heart robbery, having no tendency to establish the matters above indicated, were unnecessary and irrelevant to the issues in this case, but in view of the provisions of section 2822, Compiled Statutes 1921, which prohibits this court from reversing any judgment, among other grounds, because of the Improper admission of evidence, unless the error complained of has probably resulted in a miscarriage of justice, and constitutes a substantial violation of a constitutional or statutory right, this alleged error is considered of not sufficient prejudice to require the reversal of this judgment.

The judgment is therefore affirmed.

BBSSEY and DOYLE, JJ., concur.


text:
    EARL STANLEY et al. v. STATE.
    No. A-4345.
    Opinion Filed Oct. 6, 1924.
    (228 Pac. 1113.)
    (Syllabus.)
    Appeal and Error — Permission to File Brief out of Time Refused, Where Opinion Written Affirming Cause as to Coappellant. Where the appeal has been pending over two years, and no brief is filed in behalf of these appellants before final submission of the cause, permission to file a brief six months thereafter will be refused, where the record has been examined and an opinion written affirming the cause as to a coappel-lant in whose behalf a brief was timely filed and who was jointly tried with these appellants.
    Appeal from District Court, Tulsa County; Redmond S. Cole, Judge.
    Earl Stanley and another were convicted of burglary in the second degree and sentenced to serve a term of seven years each in the penitentiary, and they appeal.
    Affirmed.
    Thompson & Smith and C. B. Roekwood, for plaintiffs in error.
    George F. Short, Atty. Gen., and N. W.. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

Earl Stanley and W. A. Warren were jointly charged together with one Dan Mara, by information filed in the district court of Tulsa, county, with the crime of burglary in the second degree alleged to have been committed on the 19th day of January, 1922, by breaking and entering the store building of one W. R. Jeffries, located in the town of Glenpool, Okla., and stealing therefrom certain goods, wares, and merchandise belonging to the said Jeffries. Upon a joint trial the defendants .were found guilty as charged and their punishment fixed as above stated.

The appeal was filed in this court on May 20, 1922, and the cause was finally submitted on the 6th day of November. 1928. The eodefendant Dan Mara joined with these plaintiffs in error in prosecuting this appeal, and a brief was filed in support of his appeal and an opinion rendered by this court, filed February 6, 1924, affirming the judgment as to the said Dan Mara. No brief has been filed in' behalf of either of these plaintiffs in error. More than six months after this cause was finally submitted counsel for the plaintiff in error Stanley requested permission of this court to file a brief in his behalf. This request was denied because the court was familiar with the case, having rendered an opinion therein as to the plaintiff in error Dan Mara.

The case against Stanley is stronger than that against either Mara or Warren, and the summary of the evidence set out in the opinion in Mara v. State, 26 Okla. Cr. 156, 223 Pac. 204, is sufficient to answer the purposes of this opinion, and is here referred to and made a part hereof. After an examination of the entire record, it is the opinion of this court that the evidence against each of these plaintiffs in error is amply sufficient to sustain the verdict and judgment, and that no reversible error occurred during the progress of the trial.

The judgments therefore as to Earl Stanley and W. A. Warren are accordingly affirmed. Mandates forthwith.

BESSEY and DOYLE, JJ., concur.


text:
    ROSCOE DUNN v. STATE.
    No. A-4587.
    Opinion Filed Oct. 9, 1924.
    (228 Pac. 1112.)
    (Syllabus.)
    Intoxicating Liquors — Evidence Supporting Conviction for Unlawful Sale. In a prosecution for selling whisky, evidence reviewed and held sufficient to support the verdict and judgment of conviction.
    Appeal from County Court, Stephens County; Eugene Rice, Judge.
    Roscoe Dunn was convicted of the unlawful sale of whis-ky, and he appeals.
    Affirmed.
    B. B. Hickman and Wilkinson & Saye, for plaintiff in error.

      The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Roscoe Dunn, was convicted on a charge that he did sell one-half gallon of whisky to one John Doe, whose true and correct name is unknown, for the sum of $5, and in accordance with the verdict of the jury he was, on the 7th day of December, 1922, sentenced to be confined in the county jail for 30' days, and to pay a fine of $50. No brief has been filed.

E. C. Boyd, deputy sheriff, testified that on the evening of the date alleged, in the town of Comanche, near the light plant, he saw defendant and another fellow walking up the track, and heard defendant Dunn say, “It is right along here somewhere.” They walked back on the track, and defendant said, “"Will it be all right for mé to take a drink?” the other man said, “Yes”; then the other man handed defendant a bill and took the half gallon of whisky from the defendant; that as they started down the track he stopped them; the defendant had the $5 bill; as he placed'the handcuffs on him the other man ran away.

As a witness in his own behalf the defendant testified that he wanted to buy a half gallon of whisky, and a fellow standing near Floyd’s hamburger stand told him he had some to sell, and they walked down the track to the light plant, and he gave the fellow $5 for a half gallon of whisky; that he tasted the whisky, and it was no good, and the fellow gave him his money back. Just then Officer Boyd came up, and the other man ran away.

The foregoing statement shows that the testimony is sufficient to support the verdict and judgment of conviction. Finding no prejudicial error in the record, the judgment is affirmed.

MATSON, P. J., and BESSEY, J., concur.


author: PER CURIAM.

text:
    CHARLES ROBERTSON v. STATE.
    No. A-4599.
    Opinion Filed Oct. 9, 1924.
    (228 Pac. 1118.)
    Appeal from County Court, Hughes County; Owen H. Rives, Judge.
    Charles Robertson was convicted of indecent exposure, and appeals.
    Affirmed.
    Anglin & Stevenson, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Charles Robertson, was convicted on a charge that he did exhibit to various persons an indecent picture of a nude woman, and was sentenced to pay a fine of $10 and the costs. From the judgment an appeal was perfected by filing in this court on March 16, 1923, a petition in error, with case-made. No brief has been filed. When the case was called for final submission, no appearance was made in behalf of plaintiff in error. The' Attorney General has moved to affirm the judgment for failure to prosecute the appeal. This appeal has evidently been abandoned. An examination of the record proper discloses no prejudicial error. The judgment herein is therefore affirmed. Mandate forthwith.


text:
    CHARLES LIKEN v. STATE.
    No. A-4604.
    Opinion Filed Oct. 9, 1924.
    (228 Pac. 1118.)
    Appeal from County Court, Woods County; L. T. Wilson, Judge.
    Charles Liken was convicted of manufacturing whisky, and he appeals.
    Affirmed.

      J. W. Barry, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Charles Liken, was convicted on a charge that he did manufacture corn whisky. In accordance with the verdict of the jury he was sentenced to pay a fine of $100 and be confined in the county jail for 30 days. From the judgment an appeal was taken by filing in this court on March 20, 1923, a petition in error, with case-made. No briefs have been filed. When the case was called for final submission, no appearance was made in behalf of plaintiff in error. The Attorney General has moved to affirm the judgment for failure to prosecute the appeal. An examination of the record discloses that the errors assigned are without merit, and that plaintiff in error had a fair trial. The judgment is therefore affirmed.


text:
    ROY CRUMP v. STATE.
    No. A-4606.
    Opinion Filed Oct. 9, 1924.
    (228 Pac. 1118.)
    Appeal from County Court, Comanche County; P. G. Fullerton, Judge.
    Roy Crump was convicted of a violation of the prohibitory liquor law, and appeals.
    Affirmed.
    J. F. Thomas, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

, Plaintiff in error, Roy Crump, was convicted on a charge that he did have in his possession whisky with the unlawful intent to sell the same. In accordance with, the verdict of the jury he was sentenced to pay a fine of $250 and be confined in the county jail for 30 days. From the judgment an appeal was taken by filing in this court on March 21, 1923, a petition in error, with ease-made. No briefs have been filed. When the case was called for final submission, no appearance was made on behalf of plaintiff in error. The Attorney General has moved to affirm the judgment for failure to prosecute the appeal. An examination of the record discloses that the errors assigned are without merit. The plaintiff in error had a fair trial. The judgment is therefore affirmed.


text:
    J. M. DOZIER v. STATE.
    No. A-4576.
    Opinion Filed Oct. 9, 1924.
    (229 Pac. 651.)
    (Syllabus.)
    Incest — Evidence Sustaining Conviction. In a prosecution for incest, evidence examined, and held sufficient to support the verdict and judgment of conviction.
    Appeal from District Court, MeCurtain County; G. M. Barrett, Judge. .
    J. M. Dozier was convicted of incest, and he appeals.
    Affirmed.
    Claude P. Spriggs, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error, J. M. Dozier, appeals from a conviction in the district court of MeCurtain county, on the charge of incest, and a resulting sentence in accordance with the verdict of the jury of imprisonment in the penitentiary for a term of three years.

The errors.assigned relate to rulings of the court in the admission and rejection of evidence, the instructions given, and question the sufficiency of the evidence to sustain the verdict. No brief has been filed, and no appearance made in behalf of the defendant in this court.

The information charges that in said county on or about the 1st day of May, 1920, the defendant, J. M. Dozier, did have sexual intercourse with his daughter, Emma. One witness testified positively to witnessing the act. The evidence further shows that the defendant’s daughter, Emma, a single girl, gave birth to an illegitimate child and died about three hours after the birth of the child. The testimony of the defendant in his own behalf was a denial of the act charged, or any similar act.

We have examined the whole record with care, and find no material error in the rulings of the court in the admission or rejection of evidence. The instructions given fairly presented the law of the case and were as favorable to the defendant as he had any right to demand.

Finding no' prejudicial error, the judgment of the trial court is affirmed.

MATSON, P. J., and BESSEY, J., concur.


text:
    ED SHERMAN v. STATE.
    No. A-4497.
    Opinion Filed Oct. 2, 1924.
    (228 Pac. 1110.)
    (Syllabus.)
    Intoxicating Liquors — Unlawful Conveyance — Evidence, Insufficient. In a prosecution for unlawfully conveying intoxicating liquor, evidence held insufficient to sustain a verdict and judgment of conviction.
    Appeal from County Court, Canadian County; W. N. Wallace, Judge.

      Ed Sherman was convicted of unlawfully conveying intoxicating liquors, and he appeals.
    Reversed.
    E. J. Giddings, for plaintiff in error.
    George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Ed Sherman, was convicted on an information charging that he did unlawfully transport intoxicating liquors from a place unknown “to a point located on lot 8, in block 11, Clark’s addition to the city of El Reno,” and his punishment fixed at confinement in the county jail for six months and a fine of $250. He has appealed from the judgment rendered upon such conviction.

Of the various errors assigned, it is only necessary to notice the one, that the verdict is contrary to the law and the evidence.

F. V. Pierce testified that with Officer Loomis he got out of their car in front of lot 8, block 11, and the defendant came to the door, then turned back in the house and grabbed a bottle and ran out around the house, then started to run back and broke the bottle on a cement sack; that corn whis-ky was in the bottle; that he did not know where the defendant got it or from what point it was taken; that defendant said it was vinegar that he was using to clean the furniture in the house; that they arrested the defendant and took him to the police station; that defendant owned the house and had others painting, papering, and repairing it at the time.

F. A. Loomis testified:

“All I saw was the defendant with a bottle in his hands, and he broke it; saying that ‘it was a bottle of vinegar that he had to clean the furniture there with.’ ”

On the part of the defense, Joe Vaughn testified that he was at the ¡defendant’s house, painting and papering, when the officers came there; that he had a quart of vinegar and used it to take the lime off the woodwork, and to keep the paint from crawling; that about an hour before the officers appeared he threw the bottle out in the back yard; that he did not see any intoxicating liquors on the premises.

Eobert Powell testified that he had been engaged as a painter and paper hanger for 30 years, and that painters use vinegar for cleaning the calcium off the woodwork and in making stencil in imitation of oak.

Mr. Simmons testified that he was plastering the defendant’s house; that vinegar in a quart bottle was used to take the lime off of the casings; that he did not see any intoxicating liquors around there at any time.

This prosecution was under that subdivision of the Prohibition Enforcement Act, sec. 7002 (Comp. Stat. 1921), which provides that it shall be unlawful for any person "to ship or in any way convey such liquor from one place within this state to another place therein except the conveyance of a lawful purchase as herein authorized.”

Under the statute it is an essential ingredient of the offense charged that there must be a conveyance of intoxicating liquors from a place beyond to the premises of the defendant. Proctor v. State, 8 Okla. Cr; 537, 129 Pac. 77.

The evidence for the state wholly fails to prove any such conveyance. It follows that the evidence is not sufficient to warrant the conviction of the defendant, and that the verdict was contrary to law and the evidence.

The judgment of the lower court- is' accordingly reversed.

MATSON, P. J., and BESSEY, J., concur.


text:
    NEWT LUNCEFORD v. STATE.
    No. A-4592.
    Opinion Filed Oct. 13, 1924.
    (229 Pac. 304.)
    (Syllabus.)
    Intoxicating Liquors — General Reputation as Being Vendor of Liquor Inadmissible. Proof, in support of a charge of a specific act of illegal possession of intoxicating liquor, tending to show that the accused has the general reputation of being an illicit vendor of liquor is inadmissible.
    Appeal from County Court, Carter County; M. F. Winfrey, Judge.
    Newt Lunceford was convicted of the illegal possession of intoxicating liquor, and he appeals.
    Reversed and remanded.
    J. H. Mathers, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, J.

In the county court of Carter county, Newt Lunceford was convicted of having in his possession, with intent to sell, certain intoxicating liquor. At a trial to a jury he was convicted, and his punishment fixed at confinement-in the county jail for a period of 30 days and a fine of $50.

The evidence discloses that three officers went to the residence of the defendant, armed with a search warrant, and that they there found two quarts of whisky and two quarts of beer, in four different containers, at different places in the house. The defendant says that he had it for his own use and that he did not have it for sale or for any unlawful purpose.

A part of the testimony of one of the officers who assisted in making the search and seizure is as follows:

“Q. Do you know Newt or Cork Lunceford, whichever he is called? A, I do.
“Q. How long have you known him? A. Since January or February of last year.
“Q. Do you know the reputation of Mr. Lunceford in that community as being a man who sells whisky? His general reputation?
“Mr. Mathers: Incompetent, irrelevant, and immaterial.
“The Court: Overruled.
“Mr. Mathers: We except.
“A. I know his reputation.
“Q. You say you know that reputation? A. Yes.
“Q. What is it, good or bad? A. Bad.”

The reception of this testimony Over the objection of the defendant was prejudicial error. It has been, held by this court that proof in support of a penal charge, consisting of a specific act not continuous in its nature, showing that the accused has the general reputation of being a person who had habitually committed like offenses is inadmissible, as distinguished from proof of the reputation of a place constituting a public nuisance, and one or two other exceptions. Smart v. State, 27 Okla. Cr. 433, 228 Pac. 611, and cases therein cited; Hurst v. State, 25 Okla. Cr. 102, 219 Pac. 151; Glover v. State, 25 Okla. Cr. 227, 219 Pac. 725; Thompson v. State, 9 Okla. Cr. 525, 132 Pac. 695.

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

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


text:
    OSCAR BUNDY v. STATE.
    No. A-4572.
    Opinion Filed Oct. 13, 1924.
    (229 Pac. 1117.)
    Appeal from County Court, Seminole County; B. F, Davis, Judge.
    Oscar Bundy was convicted of wife abandonment and he appeals.
    Appeal dismissed.
    C. L. Hill and W. A. Billingsley, for plaintiff in error.
    The Attorney General and J. Roy Orr, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Oscar Bundy, was convicted on a charge of wife abandonment, and his punishment was fixed at a fine of $500 and confinement in the county jail for 12 months. On the 19th day of October, 1923, the court rendered judgment in accordance with the verdict. From this judgment the defendant attempted to perfect an appeal by filing in this court on February 19, 1923, a petition in error with case-made. The Attorney General on January 9, 1924, filed a motion to dismiss the appeal herein for the reasons: First, that no notice of appeal was or has been served on the clerk of the district court of Seminole county; second, that the case-made was not properly filed in the county court of Seminole county; third, that the petition in error and case-made were not filed in the Criminal Court of Appeals within the time required by law. No answer or response to the motion to dismiss has been made. An examination of the record discloses that the grounds of the motion to dismiss are supported and sustained by the record. For the reasons therein stated, the motion to dismiss the appeal is sustained, and the cause remanded to the county court of Seminole county, with direction to enforce the judgment and sentence. Mandate forthwith.