text:
    Ex parte JOE CEPHUS GRAY.
    No. A-10024.
    April 1, 1942.
    (124 P. 2d 430.)
    Joe Cephus Gray, in pro. per.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   BAREFOOT, P. J.

Petitioner, Joe Cephas Gray, has filed in this court his petition for writ of habeas corpus alleging that he is illegally and unlawfully restrained of his liberty and freedom in the Oklahoma •State Penitentiary at McAlester by the warden, J. F. Dunn. His confinement is by reason of a judgment and sentence of the district court of Tillman county entered on the 23rd day of October, 1940, wherein he was convicted by a jury on a charge of first degree robbery and given a sentence of ten years in the penitentiary.

In his petition it is alleged that he was denied his legal and constitutional rights by reason of the fact that he was “denied his rights to be represented by an attorney at the said trial in open district court and was forced to trial by Judge John B. Wilson without any counsel to< advise him or defend him.” He further alleges that the “said Joe Cephus Gray did in person request the court at the trial and prior thereto to appoint an attorney to represent him and the said request and demand was denied by the court,”. and. that he was “forced to trial without an attorney to defend him.”

It appears from the records of this court that this same petitioner filed his petition for writ of habeas corpus on January 9, 1941, and that this court in an opinion delivered on January 15, 1941, denied his petition. See Ex parte Gray, 71 Okla. Cr. 123, 109 P. 2d 513. In that case the same allegations were made as are here stated. There, only, the verified petition was filed, and in the instant case petitioner has filed a transcript of the evidence taken in the trial of his case in Tillman county. There was no attempt on the part of the petitioner to appeal from the judgment and sentence rendered by the district court of Tillman county. It has recently been decided by this court in the case of Ex parte Davis, 74 Okla. Cr. 75, 123 P. 2d 300, that:

“Where the Criminal Court of Appeals on final hearing has denied an application for a writ of habeas corpus, it will not ordinarily entertain a subsequent application for a writ based on the same grounds and the same facts, as presented in a former application, or on any other ground or facts existing when the first application was made, whether presented then or not.”

We will state, however, that we have carefully examined the record which has been filed in this case and the same reveals the following at the time defendant was tried:

“Statement of the Commencement of Trial:
“And be it remembered, that thereafter, on the 23rd day of October, 1940, this cause came on for trial in its duly and regularly assigned order; and there appeared the State of Oklahoma by its county attorney, Haskell A. Holloman, and assistant county attorney, John B. Wilson, Jr., and there appeared the defendant in person and as counsel in his own behalf, the court having heretofore offered to appoint him counsel if he so desired, and the defendant having repeatedly stated he preferred to represent himself; and thereupon, a jury was called into the box, and counsel for the State of Oklahoma and the defendant, personally, examined said jurors individually and collectively, and each side exercised their peremptory challenges.”

The record further reveals that the defendant in person conducted his trial, cross-examining the witnesses offered by the state and introducing a number of witnesses in his own behalf. He did not testify in person. His conduct at the trial and in the examination and cross-examination of witnesses revealed that he was quite familiar with courtroom procedure, notwithstanding the fact that he was not a lawyer. He had been recently discharged from the state reformatory at Granite.

There is nothing in the record to show that the judgment and sentence rendered in this case were void, and under the many decisions of this court we could not exercise jurisdiction on habeas corpus. Ex parte Williams, 70 Okla. Cr. 377, 106 P. 2d 524; Ex parte Green, 69 Okla. Cr. 218, 101 P. 2d 641; Ex parte Powell, 60 Okla. Cr. 257, 63 P. 2d 771; Ex parte Tollison, 73 Okla. Cr. 38, 117 P. 2d 549; Ex parte Tiner, 72 Okla. Cr. 250, 115 P. 2d 282; Ex parte Vanderburg, 73 Okla. Cr. 21, 117 P. 2d 550.

It is unnecessary to review the record. For the reasons above stated we are of the opinion that petition for writ of habeas corpus should be denied, and it is so ordered.

JONES and DOYLE, JJ., concur.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    O. E. ALLEN et al. v. STATE.
    No. A-9932.
    April 8, 1942.
    (124 P. 2d 737.)

      R. N. Linville, of Elk City, for plaintiffs in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen and Sam H. Lattimore, Asst. Attys. Gen., for defendant in error.
   JONES, J.

The defendants, O. E. Allen and Dalton Sharum, were charged in the district court of Roger Mills county with the crime of larceny of domestic animals, were tried to a jury, convicted, defendant Dalton Sha-rum was sentenced to three years in the State Penitentiary; the jury was unable to agree upon the punishment to be assessed O. E. Allen and he was sentenced to serve a term of five years in the State Penitentiary. Both defendants have perfected their appeal to- this court.

Counsel for defendants have presented many assignments of error, which will be disposed of in the order of their presentation in defendants’ brief.

It is first contended that the evidence is insufficient to sustain the conviction.

The evidence on behalf of the state is substantially as follows:

The two defendants brought the three cattle in question to the Dempsey Wright Livestock Commission Company a.t Oklahoma City early in the morning of July 18, 1939. The defendant Sharum represented himself asi the owner of the cattle and gave his name as C. D. Bell of Foss in Washita county. The cattle were hauled in a trailer behind defendant Allen’s automobile and had each been freshly branded over the old brand used by W. F. Wickham, the owner of Wickham’s ranch in Roger Mills county.

The employees of the Livestock Commission Company became suspicious because of the defendants’ actions and the fact that the cattle were freshly branded in the middle of the summer, conveyed their suspicions to the sheriff’s office and the two defendants were arrested at the stockyards. Deputy 'Sheriff Pierce testified to a conversation had with defendant Allen as follows:

“Q. (By Carl A. Beavin, County Attorney) Mr. Pierce, did you have any conversation with Mr. O. E. Allen regarding the three steers. A. Yes sir, I asked him if they were his and he said they were,- — I asked him if he had title to them, if he could prove title and he said that was for us to do, — I asked him where he bought them, he didn’t know, — I then asked him why he would brand this time of year, — why he would brand steersl that time of year, with so many flies and he replied that he had some cattle lost in the stockyards one time and he wasn’t taking any more chances, — I asked him where he had branded them and he said, ‘Along the road’, and then I asked him, I told him, ‘If you will give us an idea,, if you will tell us where you got these steers, we don’t want to put an innocent man in jail and if you will give us some place where we can check up and find your story is true we’ll apologize to you and turn you loose.’ And he says, ‘No, you have got me, now find out where the steers belong, if yon can.’ Q. Now, do you remember whether or not you had any further conversation with Mr. O. E. Allen? A. I think that’s all, — I set in then' to find the owner of the steers.”

The defendant Sharum first stated his name was C. D. Bell, but later admitted his correct name.

W. F. Wickham testified that he happened to be in Oklahoma City the 18th, 19th, and 20th of July, 1939, purchasing some cattle for his packing plant at Sapulpa. He saw the cattle in the stockyards and identified them. He had purchased the steers in the fall of 1938 and sent them to- his ranch in Roger Mills county. He had seen the cattle frequently since that time and was positive in his identification. His brand was “11.” When he saw these cattle at Oklahoma City they had been freshly branded over his old brand. The cattle were taken from his ranch without his knowledge or consent and against his will.

The proof further showed that the defendant O. E. Allen lived on a ranch adjoining the Wickham ranch. The defendant Sharum worked for Allen.

Harold Brinkley, a witness for the state, testified that Allen came to his place at Elk City in the middle of July, 1939, and asked him if he knew where he could get a trailer. That, at the' request of Allen, he called1 Porter Jacobs to see whether he would rent a trailer to Allen. That Jacobs brought a trailer to his place of business that evening and the next morning it was gone.

Porter Jacobs testified that he sent a trailer about 5 or 5:30 p. m., in the middle of July, 1939, to Brinkley’s garage. The next time he saw the trailer- was in the court yard a week or ten days later.

The proof on behalf of the defendants was to the effect that they had been hired by Ralph Small, the foreman for Wickham’s ranch, to haul the cattle to Oklahoma City and were to be paid 65 cents per hundred for their hauling. Allen said the name O. D. Bell was used under the instructions of Ralph Small and that the cattle were branded when he saw them in his. yard. That he had hauled cattle for Red Small to the city before. He further stated that he had been convicted and served terms in the State Penitentiary twice for larceny of domestic animals.

Defendant Sharum testified that he had been living at Allen’s place for two or three years. That he was working for Allen and went to' Oklahoma City with him to haul the cattle. They left the Allen farm about dark and arrived in Oklahoma City the nest morning. That he gave the name of O. D. Bell because he had been told to do that. That he had been to the commission house before and had sold cattle in the name of Bell. That he did this at the direction of Mr. Small. This witness was 22 years old and admitted serving a term in the penitentiary for larceny of an automobile.

Other witnesses for the defendant testified that Ralph Small had brought some cattle and left them at Allen’s place. One witness said it was in June and another in July of 1939. There were many witnesses who testified as to the good and bad reputation of the defendant Allen.

In rebuttal, Ralph Small, the foreman of Wickham’si ranch, denied all of the things which were attributed to him by the defendants and their witnesses in connection with the stolen cattle.

It has been repeatedly held by this court that the possession of property recently stolen is evidence against the defendant and when the fact of a theft has been shown and the question is whether or not the defendant committed it, his possession of the stolen goods, either sole or joint with others, at a time not too long after the stealing, is: a circumstance to be submitted to the jury for their consideration. Chesser v. State, 63 Okla. Cr. 84, 73 P. 2d 191; Davis v. State, 7 Okla. Cr. 322, 123 P. 560; Shields v. State, 32 Okla. Cr. 344, 240 P. 661, 665.

In Shields v. State, supra, it is stated:

“The presumption arising from the possession of recently stolen property is one of fact and not of law. It is a circumstance for the jury to consider and weigh along with all the other evidence in the case. If the possession is unexplained, or if it is unsatisfactorily explained, or the explanation, even though plausible, is not believed, the jury will accord it such weight as they deem right and proper. They are the sole judge as to its weight, and when such fact with the other facts and circumstances in evidence, when given due weight, satisfy the jury beyond a, reasonable doubt of defendant’s guilt, it is sufficient to sustain the verdict. Slater v. United States, 1 Okla. Cr. 275, 98 P. 110; Davis v. State, 7 Okla. Cr. 322, 123 P. 560; Gunter v. State, 16 Okla. Cr. 476, 184 P. 797; Cheeves v. State, 18 Okla. Cr. 480, 196 P. 726; West v. State, 19 Okla. Cr. 355, 198 P. 99.”

In Chesser v. State, supra, [63 Okla. Cr. 84, 73 P. 2d 195], the court stated:

“Originally from the very nature of the case the fact of possession of property recently stolen is generally accompanied by other corroborative or explanatory circumstances of presumption. If the defendant secreted the property, if he cannot show how he became possessed of it, if he gave false, incredible or inconsistent accounts of the manner in which he acquired it, or that it had been sold to' him by a stranger, if he has attempted to obliterate from the stolen property marks of identity, or ownership, these and all like circumstances are properly considered as throwing light upon and explaining the fact of possession, and render it morally certain that such possession can be referable only to a criminal origin, and cannot otherwise be rationally accounted for.”

The proof of the state, when weighed in the light of these authorities, abundantly supports the conviction.

It is next contended that the court committed error in excluding certain evidence offered by the defendants. This objection is based partly upon the refusal of the court to permit the introduction of a statement alleged to have been made by the defendant Allen to the officers while he was in their custody at the jail in Oklahoma City. This statement was rejected by the court because it was a self-serving declaration, and we think this ruling of the court was proper.

It is further urged in this connection that the court erred in not permitting the defendant Sharum to relate a conversation had with Wickham in which Wickham told him that if he would turn state’s evidence he would use his influence to get him as light a sentence as possible and would employ him on his ranch at $2 per day for his services, and that in that conversation Sharum told Wickham that he did not steal the cattle and if they were stolen he knew nothing about it. We think the court ruled properly in excluding this evidence, as it is unquestionably incompetent.

There were complaints made of the rejection or admission of other evidence, but the defendants’ chief complaint is directed to the two instances above related. However, we have examined the other evidence complained of and have found no commission of substantial error in any of the rulings of the court on the admission or rejection of evidence.

The next assignment of error is that the court committed error in the giving of instruction No. 12, which reads as follows:

“You are instructed that if you find and believe from the evidence beyond a reasonable doubt that the defendants did, in this county and state, on or about the date charged in the information, take, steal and carry away, from and out of the possession of the owner thereof, the three steers described in the information, or if you so find that they aided and abetted another person in so doing, with the unlawful, wilful and felonious intent to deprive the owner' thereof and to convert the said steers to their own use and benefit or to the use and benefit of such other person as charged in the information, then you will return a verdict of guilty as charged in the information, and unless you so find and believe from the evidence beyond a reasonable doubt, you will find the defendants not guilty.”

The defendants contend that the information does not charge that they aided and abetted another person in stealing the cattle, but the state proceeded upon the theory that the defendants had stolen the cattle without the aid or assistance of any other person; that, on the other hand, the defendants claim that they were entirely innocent of the commission of any crime and that any larceny must necessarily have been committed by Ralph Small, who they contend drove the cattle to' the place of the defendant Allen and left them there to be hauled to Oklahoma City and sold by Allen.

Defendants argue that this instruction was an invitation by the court to say to the jury that Ralph Small brought the cattle to> Allen’s ranch, as the proof of the defendants showed, that defendants knew the cattle had been stolen from Wickham’s ranch and agreed to take them to Oklahoma City and are therefore guilty.

In another instruction (No. 7) the court clearly explained to the jury the theory of the defendants’ case. There can be no' complaint about instruction No. 7, as it fairly details defendants’ theory and instructs the jury that if the circumstances related by the defendants were true, they would be guilty of no crime, and that after considering this evidence, together with all the other evidence in the case, if they had a reasonable doubt of the defendants’ guilt, it was their duty to acquit them.

It is not necessary for an information to charge a person with aiding or assisting another in the commission of a crime where two* or more persons are involved. Section 1808', O. S. 1931, O. S. 1941, Tit. 21, § 172, provides :

“All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals.”

In construing this section it has been held that a defendant may be convicted whether the evidence establishes that he actually perpetrated the crime or merely aided or abetted its commission. Bundy v. State, 16 Okla. Cr. 481, 184 P. 795; Radke v. State, 17 Okla. Cr. 230, 187 P. 500; Longshore v. State, 27 Okla. Cr. 128, 225 P. 573.

We do not think instruction No. 12 is confusing, but is a correct statement of the law. If the jury believed that Ralph Small had stolen the cattle from Wick-ham under a plan with the defendants to bring them to Allen’s place and be hauled to the city, the defendants would still be guilty of the crime charged in the information. Instruction No. 7 tells the jury that the defendants would be guilty of no crime if they received the cattle from Small and hauled them to the city in good faith and without knowing that they were stolen.

We have examined all of the instructions, and when considered as a whole they fairly and clearly advise the jury as to the law applicable to the evidence which was introduced. If the jury had believed the testimony of the defendants they would have been acquitted. There were too many damaging facts for the defendants to explain, and it is not hard for this court to see why the jury refused to accept the defendants’ explanation and returned a verdict of guilty.

Some complaint is made of the closing argument of the special prosecutor. The record does not contain the argument of the special prosecutor, but at the close of all the arguments, counsel for defendants dictated an objection into the record as to certain statements which he alleged the prosecutor made in his argument. If an improper statement was made by counsel in his argument, the same should have been properly preserved at the time it was made.

Later, an affidavit of the defendants was attached to the motion for new trial in which they state that they heard certain remarks made by the special prosecutor in his closing argument. However, the evidence upon this controverted point which was introduced in the hearing on the motion for new trial is also not included in the record. There is in the record the statement of the trial court specifically finding that the prosecutor did not make the statements about which complaint was made. In the absence of a record of the remarks made by counsel and the further absence of a record on the evidence introduced upon this question, we feel bound by the judgment of the trial court on this point.

After considering the record as a whole, it is our conclusion that the defendant has had a fair and impartial trial and that there has been no substantial error committed.

The judgment of the district court of Roger Mills county is affirmed.

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


author: BAREFOOT, P. J.

text:
    JOE CHAPPELL v. STATE.
    No. A-9945.
    April 8, 1942.
    (124 P. 2d 742.)

      Mac Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., and W. H. Parker, Co. Atty., of Atoka, for the State.
    I. L. Cook, of Atoka, for defendant.
   BAREFOOT, P. J.

The defendant, Joe Chappell, was charged jointly with W. T. Pemberton in the district court of Atoka county by indictment of a grand jury with the crime of obtaining money under false pretenses, demanded a severance which was granted, was tried, convicted and sentenced to serve a term of three years in the penitentiary and pay a fine of f476.25, and has appealed.

For a reversal of this case it is contended:

(1) The insufficiency of the indictment.

(2) The inadmissibility of the evidence of other crimes.

(3) The verdict and judgment are contrary to the law and the evidence.

The first assignment of error is based upon the fact that the indictment did not set out in full in the body thereof the false and fictitious written claim which wa$ presented by defendant to the county clerk of Atoka county, and a full and complete copy of the warrant issued by the county in payment of the false and fictitious claim. The indictment stated:

“That the said W. T. Pemberton and Joe Chappell, in the county and State aforesaid, and on the day and year aforesaid, acting jointly, together and in concert one with the other, did then and there knowingly, wilfully, wrongfully, fraudulently, designingly and feloniously, with the intent to cheat and defraud Atoka County, State of Oklahoma, out of the sum of |158.75, in good and lawful money of the United States of America, obtained from Atoka County, .State of Oklahoma, the sum of 1158.75 by then and there unlawfully, designingly, fraudulently and feloniously representing to Atoka County, State of Oklahoma, that claim No. 64 against Atoka County, Oklahoma, dated September 1, 1939, which was paid by Avarrant No. 64 out of the Highway Construction and Maintenance Fund of Atoka County, Oklahoma, dated September 6, 1939, (a copy of said claim and warrant are attached hereto and made a part of this indictment), was a true and correct instrument and that the claim for services rendered and material sold as shown by said claim were true and correct and that the respective amounts claimed were true and correct when in truth and fact said instrument in writing was false, and that said representations contained in said claim were false and fraudulent and that the said W. T. Pemberton and Joe Chappell then and there well knew that said claim and warrant were false and fraudulent but that Atoka County, State of Oklahoma, relying upon said representations as contained in said claim No. 64 was a good and lawful claim and demand upon Atoka County, State of Oklahoma, and Avas induced to and did deliver to the said W. T. Pemberton and Joe Chappell the sum of 1158.75, as evidenced by said warrant No. 64, which sum of money was then and there the property of Atoka County, State of Oklahoma, and was paid over to the said W. T. Pemberton and Joe Chappell by the said Atoka County, State of Oklahoma, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State of Oklahoma.”

After a careful consideration of this indictment, we are of the opinion that the court did not err in refusing to quash the same and sustain the demurrer thereto, and in not sustaining the objection of defendant to the admission of any evidence under said indictment. While we are of the opinion that it is the best practice in criminal cases for written instruments upon which a prosecution in a criminal case is based to be copied in full in the indictment or information, and that a copy of the same should not he attached thereto, as is often done in pleadings in civil cases, yet we cannot see how the defendant could have in any way been prejudiced by such action in this case. The indictment did set out the number of the claim and the date thereof; the number of the warrant and the date thereof, and that it was paid out of the “Highway Construction and Maintenance Fund of Atoka County”. It was also alleged in the indictment that “a copy of the said claim and warrant are attached hereto’ and made a part of this indictment.” Counsel in his brief states that no copy was attached to the indictment at the time of the trial. Attorneys for the state in their brief attach thereto a photostatic copy of the indictment which they claim shows that the copy had been attached, but at some time was detached therefrom. This we consider as immaterial for the reason that we are of the opinion that the matter is set forth in such a manner in the indictment as to be good against a demurrer or motion to quash. This is especially true in view of Oklahoma Statutes 1931, sections 2891 and 2892, O. S. A., and Oklahoma Statutes 1941, Title 22, §§ 409 and 410, which provide:

(1) “The indictment or information is sufficient if it can be understood therefrom: * * *

“6. That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended. * *

(2) “No' indictment or information is insufficient, nor can the trial, judgment, or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”

We also call attention to the case of Horn v. State, 31 Okla. Cr. 347, 238 P. 966, 967, in which the court says:

“There is no good reason why the county attorney should not have attached, or pleaded in full, a copy of the forged release, as the information sets out the fact that it is recorded, giving book and page. A failure to do so is poor pleading. See Arnold v. State, 15 Okla. Cr. 519, 178 P. 897. However, the failure to set out the instrument could in no sense have been prejudicial to the defendant. For, if the description as alleged in the information failed to fully apprise the defendant of the instrument in question, the allegation of the book and page where the same was recorded afforded him an opportunity to fully ascertain the contents, and under this state of facts the error was harmless.”

The above statement applies with equal force to the case at bar. The defendant could have easily examined the records which were public documents in the office of the county clerk of Atoka county. He was in no way prejudiced by the failure of the indictment to set them out in full. The Arnold Case, supra [15 Okla. Cr. 519, 178 P. 899], was a forgery case. A copy of the indictment is set out and it states therein, “a true and correct certified copy of said false and forged release and instrument in writing aforesaid is attached hereto, incorporated herein and made a part hereof, marked ‘Exhibit A’ for identification.” The court refused to sustain a demurrer to the information, and this court held that it did not err in doing so. See, also, State v. Williams, 32 Minn. 537, 21 N.W. 746, 747, where it is said:

“This practice of attaching a copy of an instrument as an exhibit, instead of incorporating, it into the body of the indictment, is certainly novel in criminal pleading. It is a very loose and dangerous practice, and certainly not to be encouraged. It is, of course, quite common in civil pleadings, but when we consider the liability of an exhibit to' become detached, and the difficulty of properly and conclusively identifying it, such a practice ought not to obtain in criminal pleadings. If an indictment in this form is presented to the court, we think it would be eminently proper for him on his own motion to refuse to receive it, and to return it to the grand jury with instructions to have it drawn in better form; and we are not now prepared to say that, if the objection were raised by a defendant, upon arraignment, by motion to set aside the indictment, the court ivould not be justified in granting the motion and resubmitting the case to the grand jury. But, as against a demurrer, we can see no principle of law upon which we can hold that an exhibit attached to an indictment, and referred to in it as attached thereto1, and marked and expressly made a part thereof, should not be considered a part of the indictment, the same as if incorporated in the body of the pleading.”

For the reasons above stated, we do not think that the court erred in refusing to sustain the motion to quash or the demurrer to the information.

The state was permitted to introduce in evidence other fictitious claims prepared and filed by defendant with the county clerk of Atoka county and the warrants issued in payment thereof. These claims were filed and paid prior to the 1st day of September, 1989, the date when the claim herein involved was filed. It is contended by defendant that the court erred in permitting' this evidence to- be introduced for the reason that it showed the commission of other crimes than the one of which he stood charged. It is true that the general rule is, as has many times been announced by this court, that in a prosecution for one crime it is not proper to admit testimony against the defendant tending to connect him with the commission of other offenses for the purpose of establishing the guilt of the offense charged. The case of Williams v. State, 68 Okla. Cr. 348, 98 P. 2d 937, illustrates this general rule. In this case the former opinions of this court are cited and it is unnecessary to again cite them.

But there is an exception to this general rule which is as well established as the rule itself, and that exception is that such evidence is competent when it tends to prove motive or scheme or the committing of a series of crimes which are so connected that they become a part of a well laid plan - or scheme. Such instances often arise in cases of embezzlement, forgery, and obtaining property or money under false pretenses, as here charged. The evidence revealed a well laid plan or scheme whereby defendant, acting in conjunction with his codefend-ant, filed these false and fictitious claims against Atoka county and his codefendant as county commissioner approved them, and they were paid by the county. Under these circumstances this evidence was clearly admissible and the court did not err in permitting it to be introduced. In the recent case of Boyer v. State, 68 Okla. Cr. 220, 97 P. 2d 779, this court has entered into a full discussion of this proposition and has reviewed and cited the former decisions of this court. It is therefore unnecessary to again cite them.

It is next contended that the verdict and judgment are contrary to the evidence. It is revealed by the record that defendant and A. B. Bagwell were engaged in the automobile sales and service business in the city of Atoka under the firm name of Chappel & Bagwell. That the son of defendant, Loyal Chappell, was employed as a bookkeeper in this business. He testified as a witness against his father. His evidence was that he began working for the firm on November 11, 1937. That he made out the claim upon which this prosecution is based. That it was made out at the request of his father, the defendant. That he did not know of the automobile parts or the gasoline mentioned in the claim being furnished to Atoka county. That his father just gave him the amount for which the claim should be made out of $158.75, and that he placed the itemized statements therein on his own account and not from any books or records which the company had to show that such parts, labor, or gasoline was furnished Atoka county by the company. In fact, he testified that the claims were false and fictitious and that he knew it at the time he made them out. That the claims were indorsed both by him and by his father and that he carried the warrants to the bank which were issued by the county in payment of the claims, and that when the money was collected he returned to the garage and turned the money over in person to his father. He also testified that the firm of Chappell & Bagwell were not engaged in the selling of gasoline during the year 1939, having discontinued the sale thereof in the fall of 1938. This witness was somewhat an unwilling witness and the court permitted the introduction of a written statement made by him prior to the trial and in the presence of the grand jury. In this statement it was stated:

“That I made out all the claims filed by Chappell & Bagwell against Atoka county since I have been keeping books, so far as I know. That I made out these claims at the request of Joe Chappell, usually, and he would not tell me usually what sums to make them out for, but just said, to1 make them out. I knew they were false claims filed in almost every instance, and would just make them up and put on them, Tor gas, oil, parts or welding or labor.’ Sometimes there would have been some labor performed I did not refer to our books in making out said claims, except in two' or three instances.”

It is contended by defendant that this evidence revealed that this witness was an accomplice and that his evidence was not corroborated in the manner required by law. In this connection it appears that the court instructed the jury, as a matter of law, that the witness Loyal Chappell was an accomplice and the jury was properly instructed upon the law with reference to the necessity of corroborating his evidence. We have examined the record carefully and find that there is sufficient evidence therein to corroborate his testimony. His wife testified that she was present in the office at the time defendant told his son, Loyal Chappell, to make out the claim in question and that he stated:

“A. Well, he came in the office. We were in the office and he said, ‘Son, make up this claim for $158,’ and then he said you had better put the amount of cents on there so it won’t look so bad. He didn’t say exactly whether 65 or 75 cents or what. I believe it was 75 cents. Q. Did you see Loyal make the claim out? A. Yes, sir. Q. Did he use any books identified as State’s Exhibit 4 and refer to it? A. No, sir. Q. This book here, (hands witness book) did he refer to' it? A. No, sir. Q. What did he refer to, if anything? A. He did not refer to anything. Q. This is the claim that he made out? A. That is it. Q. Joe said, ‘Son make it for $158 and some odd cents so it won’t look so bad’? A. Yes sir.”

Mr. A. E. Bagwell, the partner of defendant, testified that this firm did not sell oil or gas during the year 1939, having discontinued in the fall of 1938. That he never received any part of the proceeds of the claims presented and paid through and by the county of Atoka. That he worked in the back part of the garage and did not know of any work being performed by the company for which the charges were made . The claim upon which this charge was made was Exhibit No'. 1, which is as follows:

There was also introduced in evidence Exhibit No. 4, which was a claim for $725, Exhibit No. 6, which was a claim for $73.10, Exhibit No. 8, which was for $275, and Exhibit No. 10, which was for $148.75. The last three of these claims were paid by Atoka county, and the witness Loyal Chappell testified that he had made all of them out and that they were false and fictitious and that Atoka county had never received the goods which they represented. That he had made out the claims at the direction of his father and had collected the money thereon and delivered the same to the defendant. There were also presented for the consideration of the jury Exhibit No. 12 for $725 and Exhibit No'. 13 for $338.50. These two claims fully made out and sworn to by both the defendant and his son, Loyal Chappell, were found one in the office of the county clerk of Atoka county which for some reason had not been filed, and the other in the book of defendant which he had taken from his office to his residence and there found, where it had been concealed. In addition to this Virgil Chappell testified that he was a brother of the defendant, Joe Chappell. That he conducted a grocery business and gas station near ¡Stringtown in Atoka county. That the defendant came to see him while the grand jury was in session and in a conversation stated: “He said he had some claims— some gasoline on some claims and didn’t have a way to cover it up and wanted me to make out a statement that he got the gasoline from me.” That he had agreed to do so and made out a claim for the purpose of going before the grand jury, but he did not do so. He told his brother it would not work. He testified: “He said that it would have to work and I said can’t be done and I said besides that it will drag my family into it and I did not want them drug into it.”

There was other evidence which corroborated the evidence of Loyal Chappell, but which it is unnecessary to further quote. There is nothing in the record to cause one to find that the defendant did not have a fair and impartial trial. He has been ably defended, but the time has come for the payment of the penalty prescribed by the verdict of the jury in this case.

It is therefore ordered that the judgment and sentence of the district court of Atoka county be affirmed.

JONES and DOYLE, JJ., concur.


author: DOYLE, J.

text:
    BRYANT BLACKWOOD v. STATE.
    No. A-10045.
    April 8, 1942.
    (124 P. 2d 747.)

      Hunt & Garland, of Ada, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, J.

The information in this case in substance charges that in Pontotoc county, on or about the 1st day of October, 1939, Bryant Blackwood did commit the crime of removing mortgaged property from the county; to wit: One Chevrolet coupe automobile, one brown Jersey cow and one brown steer, without the written consent of Guy Stinnett, doing business under the name of Stinnett Motor Co., the holder of certain chattel mortgage, made and executed on the 8th day of September, 1939, by the said defendant, by removing said property aforesaid from the county of Pontotoc, State of Oklahoma, to’ Doming, N. M., without the written consent of the holder of such mortgage. 21 O. S. 1941 § 1834 (Penal Code).

On the trial the jury returned a verdict finding the defendant guilty as charged and fixed his punishment at a fine of $300.

Motion for new trial duly filed was overruled and judgment was rendered in accordance with the verdict on the 28'th day of September, 1940.

From the judgment an appeal was taken by filing in this court March 27, 1941, a petition in error with case-made.

No brief has been filed, and there was no appearance on the part of the defendant at the time the cause was called for oral argument and final submission.

This court has repeatedly laid down the rule that where no counsel appears and no brief in support of the petition in error is filed, this court will not diligently search the record to discover errors, but will look to the jurisdiction of the court and the sufficiency of the evidence to support the conviction, and if it reasonably supports the verdict, and no fundamental error is apparent, the judgment of conviction will be affirmed.

Upon an examination of the entire record, it is apparent that the defendant was accorded a fair trial, and that the errors assigned were not such as to authorize a reversal of the judgment.

No material error appearing and the evidence being amply sufficient to support the verdict, the judgment of the district court of Pontotoc county is affirmed.

BAREFOOT, P. J., and JONES, J., concur.


text:
    In re DAN WORKMAN.
    No. A-10237.
    April 8, 1942.
    (124 P. 2d 748.)

      E. B. Arnold, of Stilwell, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Jess Pullen, Asst. Atty. Gen., for respondent.
   JONES, J.

This is an original proceeding in habeas corpus brought by the petitioner, Dan Workman, to secure his release from imprisonment in the penitentiary at McAlester.

The verified petition filed herein alleges:

“That the cause of said restraint, according to the best knowledge and belief of your Petitioner is as follows: by virtue of a commitment issued by the Honorable Enloe V. Vernon, District Judge within and for Adair County, Ok] ahorna, on the 10 day of November, 1941. A certified copy of said commitment being hereto attached, marked Exhibit ‘A’, and made a part hereof.
“Your Petitioner alleges that said restraint is illegal and unauthorized, in this
“That on the S day of August, 1938, he entered a plea of guilty in the District Court within and for Adair County, Oklahoma, to the offense of Grand Larceny, and was by the judge of said court, sentenced to serve two years in the Penitentiary at McAlester, Oklahoma; and that under and by virtue of the provisions of House Bill No. 136 of the Acts of the 1937 Legislature, Article 2, Chapter 17 [22 O. ¡S. 1941 §§ 991, 992], said sentence was suspended by said Judge.
“That thereafter on the 10 day of November, 1941, after the elapse of more than two years, your Petitioner was committed to the Penitentiary at McAlester, under and by virtue of said judgment and sentence aforesaid.
“Your Petitioner further represents that said Court, after the expiration of two years, had lost jurisdiction of said cause, and was without authority to commit your Petitioner to said Penitentiary.
“Your Petitioner further shows the Court that there were no other charges filed or pending against him in the District Court of said County of Adair, except the charges hereinbefore referred to, Case No. 1310, a certified copy of the minutes of the Court Clerk of Adair County, Oklahoma, in said cause is hereto attached, marked Exhibit ‘B’ and made a part hereof.”

A rule to show cause was issued and the Attorney General, on behalf of the respondent, has appeared before this court and confessed that the district judge of Adair county committed error in revoking the suspended sentence and committing petitioner to the penitentiary after the term for which the petitioner was sentenced had expired.

In the case of Ex parte King, 40 Okla. Cr. 21, 266 P. 511, the syllabus reads :

“Where a youth has been sentenced for an offense imposing confinement in the state reformatory for a term of two years, and such sentence is suspended during good behavior under the provisions of sections 2803 and 2804, Compiled ¡Statutes 1921, O. S. 1941, tit. 22, secs. 991, 992, the language, ‘to- report to the judge of the court wherein convicted, at each succeeding term during the pendency of said judgment, or when required by the court or judge/ imports that the sentence can be revoked only within the period imposed in the sentence, and that a revocation of a parole after that period is ineffective, and after that period the court is without power to- enforce the original judgment.”

In that case the petitioner had entered his plea of guilty to- the crime of larceny on February 2, 1926, and was, by the district judge, sentenced to .serve a term of two years in the state reformatory and the sentence was suspended; thereafter, on February 23, 1928, just 21 days after the two years had expired, the court revoked the suspended sentence and placed the petitioner in the county jail of Osage county. In disposing of that case Judge Doyle quoted from the case of Ex parte Eaton, 29 Okla. Cr. 275, 233 P. 781, as follows:

“We believe that the sections of the statute above set out are constitutional and do not invade the province of the Governor, or chief executive, of the state in extending executive clemency. In this particular, executive clemency is to be distinguished from judicial authority, and the question for determination is: Does the district court have power under the statute above quoted to revoke the suspended sentence after the time covered by the sentence had run? It will be observed that section 2804, supra, requires the person so released ‘to report to the judge of the court wherein convicted, at each succeeding term during the pendency of said judgment, or when required by the court or judge? We think the statute is clear, but if there is any ambiguity it should ■be resolved in favor of the person sentenced. It was evidently the legislative intent that in case of sentence imposed upon a minor other than for certain specific offenses who1 had previously borne a good reputation and had not been convicted of any crime, such person should not be incarcerated if, during the term of the sentence, he conformed to certain conditions by reporting to the court, abstaining from associating with objectionable persons, and other conditions, and if before the expiration of the term of the sentence such person did violate the terms of his parole or suspended sentence, the court had the power to revoke the same and enforce the original sentence. After the expiration of the term of the sentence, he was no longer required to report, and the sentence was discharged. It was certainly not the intention of the lawmakers to hold the sentence over the head of the person paroled so long as he should live, but only during the pendency of tbe judgment. To bold otherwise would be contrary to the spirit and policy of the law.”

See, also, Ex parte T. J. Bell, 57 Okla. Cr. 257, 47 P. 2d 886.

On the authority of these cases, the confession of error filed by the Attorney General is sustained, the writ is awarded, and petitioner discharged from custody.

BAREFOOT, P. J., concurs. DOYLE, J., absent.


text:
    TOM HARM DICKERSON v. STATE.
    No. A-9965.
    April 8, 1942.
    (124 P. 2d 750.)

      Mac Q. Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Lewis R. Morris, Co. Atty., of Oklahoma City, for the State.
    Sid White, of Oklahoma City, for defendant.
   BAREFOOT, P. J.

Defendant, Tom Harm Dickerson, was charged in the district court of Oklahoma county with the crime of forgery in the second degree, and .it was further alleged in the information that he had been previously convicted of the crime of burglary and sentenced to the penitentiary, was tried, convicted and sentenced to serve a term of ten years in the penitentiary, and has appealed.

The statute under which the prosecution of defendant was based is Oklahoma Statutes 1931, section 2125, Oklahoma Statutes Annotated and Oklahoma Statutes 1941, Title 21, § 1577, which provides:

“Every person who sells, exchanges or delivers for any consideration any forged or counterfeited promissory note, check, bill, draft, or other evidence of debt, or engagement for the payment of money absolutely, or upon any contingency, knowing the same to be forged, or counterfeited, with intent to have the same uttered or passed, or who offers any such note or other instrument for sale, exchange or delivery for any consideration, with the like knowledge and intent, or wlm receives any such note or other instrument upon a sale, exchange or delivery for any consideration with the like knowledge and intent, is guilty of forgery in the second degree.”

Defendant in his brief urges but one contention for reversal of this case. He says the defendant “was convicted of offering to> sell, exchange or deliver a forged instrument to the John A. Brown Company.” And he says this was an attempt “to enlarge section 2125, O. S. 1931, Oklahoma Statutes Annotated and Oklahoma Statutes 1941, Title 21, § 1577, to include and make punishable an act not denounced as criminal in said statute, which is as follows, to wit.” In support of this contention defendant in his brief sets out an instruction given by the court which simply outlines the charge made against the defendant and then states:

“It is therefore obvious that the plaintiff in error was convicted of offering to sell, exchange or deliver a forged instrument to the John A. Brown Company.
“In my opinion the effect of all this was to enlarge section 2125, O. S. 1931 (Oklahoma Statutes Annotated and Oklahoma ¡Statutes 1941, Title 21, section 1577), to include and make punishable an act not denounced as criminal in said statute, which is as follows, to wit.”

He then quotes the statute above quoted.

In the brief it was not attempted to' point out in what way this attempt was made or wherein the crime charged under the information does not come within the plain and positive terms of the latter provision of said section which provides that anyone “who offers any such note or other instrument for sale, exchange or delivery for any consideration, with the like knowledge and intent, * * * is guilty of forgery in the second degree.” The only statement made to support this contention is:

“This Honorable Court has apparently held repeatedly that an offense such as the one under consideration is not complete until the perpetrator shall have received thereby some advantage and his victim suffered some injury. Guess v. State, 53 Okla. Cr. 301, 11 P. 2d 199; Ausmus v. State, 43 Okla. Cr. 66, 277 P. 259; Wilborn v. State, 26 Okla. Cr. 437, 224 P. 214. These cases seem to decide the question beyond all doubt.”

An examination of these cases reveals that they in no way support the contention of defendant. It is unnecessary to unduly lengthen this opinion by referring to the facts therein stated. In all of these cases the judgment of conviction was affirmed by this court, and a careful reading of them reveals that they sustain the contention of the state rather than that of the defendant. In a case similar to the case at bar, and in construing a statute practically the same as the Oklahoma statute above quoted the Supreme Court of Colorado' in the case of People v. McDonald, 53 Colo. 285, 125 P. 114, 115, says:

“Assuming that the check was not true and genuine, if the defendant made it with the above intent, he was) guilty of forgery when he made it. If he attempted to' pass it, he was guilty of forgery when he tried to do' that. It was not necessary to constitute a. completed crime that the check should be indorsed, cashed, or passed, or that any one should be actually prejudiced by it. The crime did not consist in realizing on the fraud, but in making the false check or attempting to' pass it. 2 Bish. Crim. Law, § 538.”

To the same effect is the case of People v. Kuhn, 33 Cal. App. 319, 165 P. 26, in which the District Court of Appeal of California under a similar statute has held:

“1. In a prosecution for forging a check, the fraudulent intent of defendant was a question for the jury. * *X* #
“3. It is not necessary to sustain a conviction for forgery that the party whose name has been forged has suffered actual damage; it being only essential that it appear that if manifest intent of defendant culminated in success, such damage would follow.”

See, also; Beach v. State, 28 Okla. Cr. 348, 230 P. 758; Snider v. State, 71 Okla. Cr. 98, 108 P. 2d 552; Boyer v. State, 68 Okla. Cr. 220, 97 P. 2d 779; Taylor v. State, 65 Okla. Cr. 432, 88 P. 2d 665; Jones v. State, 69 Okla. Cr. 244, 101 P. 2d 860.

This case was tried before the court without the intervention of a jury. Defendant was charged with forgery in the second degree. The punishment prescribed by the statute, O. S. 1931, § 2146, O. S. A. and O. S. 1941, tit. 21, § 1621, for this offense is not to exceed seven years in the penitentiary. He was also charged with having been previously convicted of the crime of burglary, and sentenced and served a term in the penitentiary. In Oklahoma Statutes 1931, section 1817, Oklahoma Statutes Annotated and Oklahoma Statutes 1941, Title 21, section 51, it is provided:

“Every person who, having been convicted of any offense punishable by imprisonment in the penitentiary, commits any crime after such conviction, is punishable therefor as follows:
“1. If the offense of which such person is subsequently convicted is such that upon a first conviction an offender Avould be punishable by imprisonment in the penitentiary for any term exceeding five years, such person is punishable by imprisonment in the penitentiary for a term not less than ten years.
"2. * *
"3. * * *".

Under this statute the minimum punishment that could be assessed was ten years in the penitentiary, which was given the defendant. We do not hesitate to state if this court had the right under the law to reduce the punishment prescribed in this case we would not hesitate to substantially reduce the same, taking into consideration all the facts and circumstances. However, this is a matter for the Legislature of the state.

It is unnecessary to discuss the evidence presented in this case. It was amply sufficient to sustain the alie-gations of the information under the statute. There was no question of the intent t» defraud, as alleged in the information. The defendant offered no testimony.

The judgment and sentence of the district court of Oklahoma county is therefore affirmed.

JONES and DOYLE, JJ., concur.


text:
    BILL PERRY v. STATE.
    No. A-9972.
    April 16, 1942.
    (125 P. 2d 219.)

      Smith & Walker, of Miami, for defendant.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and N. C. Barry, Co. Atty., of Miami, for the State.
   BAREFOOT, P. J.

Defendant, Bill Perry, was charged in Ottawa county with the crime of burglary in the second degree, was tried, convicted, and sentenced by the court to serve a term of three years in the penitentiary, and has appealed.

Counsel for defendant in his brief says:

“While there are several assignments of error presented to- this court by the petition in error herein filed * * * we ask this court to review the case upon one point alone * * viz., “It is our position that this cause should be reversed at the hands of this court for lack of evidence and if no further evidence can be offered, by the state, at a later date, it should be, by the court then having jurisdiction, ordered dismissed.”

The information jointly charged the defendant and Ernest Jackson with the crime of burglary in the second degree. A co defendant, Claude Murphy, who was charged jointly in the preliminary complaint, entered his plea, of guilty and'was sentenced to- serve a term of two years in the state reformatory at Granite.

This charge grew out of the burglarizing of the residence of M. A. Miller and his wife, Gertrude Miller, in Ottawa county on Sunday, December 11, 1938, at which time numerous articles of clothing, household goods, bedding, and .groceries were stolen. The evidence revealed that Mr. and Mrs. Miller left their country home between 12 and 12:30 p. m. on December 11, 1938, for the purpose of visiting relatives and friends in the city of Picher, which was located near their home. That all the doors were securely locked and fastened when they left. That when they returned between 4 and 5 p. m. on the same date, their home had been broken into and much property had been taken, including men’s, women’s, and children’^ clothing, and bedding, and a certain box of groceries which they had purchased the preceding. Saturday. The door had been unlocked but had been partly closed by Mrs. Miller’s mother, Mrs. Grandon, who had preceded her daughter to her home. On the following Tuesday a search warrant was procured, and the residence of the defendant, Bill Perry, together with the residence of Claude Murphy, who* both lived in the town of Picher, was searched by officers, and both Mr. and Mrs. Miller were present and identified much of their clothing, bed clothing, and other articles which were found at these residences and most of which was found at the residence of the defendant, Bill Perry. There were certain groceries there which they could not positively identify, but resembled the ones which they had purchased. The defendant, Bill Perry, was not present at the time the search was made and was not arrested until some nine months after the commission of this crime, having left the country a few days after the search and having- lived in New Mexico and other places during the interval.

In contending that the evidence is insufficient, it is claimed that the evidence shows that Ernest Jackson is an accomplice and that his evidence is not corroborated in the manner required by the law of this state and that the same is therefore insufficient.

It is the contention of the state that this witness was not an accomplice under the evidence and, further, that if he was an accomplice, the evidence is amply sufficient to properly corroborate his testimony.

The court in charging the jury submitted this issue as a question of fact as to whether the witness Ernest Jackson was an accomplice and properly instructed the jury that if they believed he was an accomplice his testimony should be corroborated.

The evidence of the witness Ernest Jackson was that he had been keeping company with defendant’s daughter, and that on Sunday morning; December 11, 1938, the defendant, in company with Claude Murphy, came to his home in Picher about 9 o’clock and wanted him to go driving with them in his new car, and that they drove out to Claude Williams’ sawmill, which was about ten miles and across the Missouri and Oklahoma state line. Defendant desired to see Dolty McDonald, who> was working there. They arrived about 12 o’clock and left a little after 1 o’clock p. m. That while driving along the road defendant passed a house and said “it was no good.” That in a few moments they passed the Miller home and he said that was a “good one.” That he stopped the car and both the defendant and Claude Murphy got out and went into* the Miller home and in a few minutes returned with a bundle of clothing wrapped in a sheet, groceries, etc., and put them in the car. That they tried to get him to participate in the burglary, but that he refused to do so and refused to open the door of the car so> they could place them therein when they returned. That the defendant drove back to Picher, arriving there about 2:30 p. m. That he got out of the car on the street and went to the show. That he went to the Perry home that night and that both defendant and Claude Murphy were there. He testified:

“Q. Was anything said between Perry and you and Murphy in regards to this stuff? A. Yes, sir, he wanted to get me toi sell some of the shirts to my stepfather and I told him that I couldn’t take anything like that up to my stepfather and sell it to him. Q. Did he say anything about where he got the shirts? A. No, sir, he knew I knowed. Q. Did you see any of the things? A. I seen a suit of clothes— Q. What kind and color? A. Blue serge. Q. Was any conversation had between you and Bill Perry with reference to that suit? A. Yes, he told me to try it on. Q. Did you do that? A. No, sir, I told him I didn’t want to have anything to do> with any of that stuff. Q. What did you do then? A. I stayed up there with Mrs. Perry and her boy was sick and I would help her and get medicine. I liked them on account of going with their daughter. Q. You say you went with a daughter ? A. Yes, sir.”

Mr. and Mrs. Art Grandon testified for the state that they were the mother and father of Mrs. M. A. Miller, and that on the Sunday in question they left their home for a drive, having with them their nine year old grandson, the child of Mr. and Mrs. Miller. They lived in close proximity to the Miller home. As they returned home about 4 o’clock p. m., they noticed the door of the Miller home being opened. Mrs. Grandon went in and found the house had been burglarized and the property above described missing. .She closed the door and notified her daughter upon her return.

Mr. and Mrs. Claude Williams testified to the defendant, Ernest Jackson, and Claude Murphy coming to the sawmill and their home on Sunday morning, as testified by Ernest Jackson, and to- their leaving between 12 and 1 o’clock p. m. They said it was about three-quarters of a mile from the sawmill to the home of Mr. and Mrs. Miller.

Albert Slaughter and Veri Cartwright were working and lived near the home of Mr. Williams wlm owned the sawmill. They both saw the defendant, Ernest Jackson, and Claude Murphy came to the sawmill and Williams’ home on Sunday, December 11, 1938, and saw them there from 12 to 1 p. m., when they left.

The defendant, Bill Perry, corroborated the evidence of the witness Ernest Jackson as to the visit to the sawmill on Sunday morning. However, he testified that they did not enter the home of Mr. and Mrs. Miller and did not burglarize the same or take any property therefrom. That they returned to his home in Picher about 2 p. m. That he got out of the car1 and loaned the same to Claude Murphy, who' drove away in company with the witness Ernest Jackson. That he stated he was going to Webb City toi see someone about getting a job. That he accompanied his son-in-law, Wayne Cole, and daughter downtown to Picher about 2:30 p. m. Each of these witnesses corroborated his statement. He testified to seeing several parties down there, and these parties testified in his behalf as to seeing him on the streets of Picher on a Sunday afternoon. However, these witnesses were not clear as to the date, and one of them testified that it was after he heard of the burglary. This, of course, would have been impossible. The defendant further testified that he returned home about 5 p. m. and that his car was there and also a bundle of clothing and bed clothing, which his wife said had been left there by Claude Murphy.

His wife testified that Mr. Murphy brought the car home about 4 p. m. and brought into the house the clothing and bed clothing, being the same clothing that was afterwards found there by the officers and identified as the property of Mr. and Mrs. Miller. That he told her he was going to leave in a few days and she could use any of the property she desired. She also testified that members of ber family had removed the bundle and put the clothes up in the house, as she was sick and was attending to a sick baby.

Claude Murphy, who had just returned from the Granite Reformatory at the time of this trial where he had served a sentence of two years for his participation in this crime, testified corroborating the defendant’s testimony, and stated that he had stolen the property from the Miller home and that the defendant did not participate therein. That he had brought the clothing there and had told Mrs. Perry to use the same, as he Avas moving away, that he did not need the property. As to the witness Ernest Jackson, he stated that he Avent with him in the car, but that he did not assist in the burglary and that he was asleep in the car at the time he committed the act. His testimony with reference to this was:

“Q. And Avhile he Avas asleep you went in there and got this stuff yourself? A. I’m not sure he was asleep. Q. Well, he didn’t know anything about it? A. Not to my knoAvledge. Q. And he never did know anything about it according to your knowledge? A. Yes, he Avoke up on the way back. Q. How did he find out what happened? A. I told him.”

Prom the above statement it is very clear that there was a direct conflict in the evidence, and under the well established rule of this court we will not weigh conflicting and contradictory evidence which has been passed upon by the jury and the trial court, but will interfere only where there is an entire absence of testimony upon some material issue or that the evidence so clearly preponderates in favor of the defendant as to suggest the probability that the verdict was the result of misapprehension or partiality. See Vasco Goings v. State, 74 Okla. Cr. 161, 124 P. 2d 280.

It will also be noted from the above statement that the jury were given the right to pass upon the question as to whether the witness Ernest Jackson was an accomplice. There was ample evidence for the jury to find that this witness was not an accomplice. Not only did the evidence of Ernest Jackson show that he was not an accomplice, but the testimony of the witness Claude Murphy, who testified for the defendant, absolved Jackson from any guilty connection with the crime. He testified that Jackson was asleep in the car and did not know of his intentions, had no knowledge of the burglary until afterwards, and had no connection with the disposal of the stolen property.

Defendant’s defense of an alibi was submitted to the jury. The time element is such that even the time stated by the defendant’s own witness was such that he could have been guilty as testified to by the witness Jackson. Gregg v. State, 69 Okla. Cr. 103, 101 P. 2d 289.

It is unnecessary to unduly lengthen this opinion by giving the evidence of each witness with reference to the alibi defense. It is clear that the evidence of the state is amply sufficient to sustain the verdict. The instructions of the court fully covered every phase of the law. There is nothing to indicate that the defendnat did not have a fair and impartial trial.

The judgment and sentence of the district court of Ottawa county is therefore affirmed.

JONES and DOYLE, JJ., concur.


text:
    L. P. TURNER v. STATE.
    No. A-9959.
    April 15, 1942.
    (125 P. 2d 222.)

      Emmons Arrington, of Shawnee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and ;Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, L. P. Turner, was charged in the district court of Pottawatomie county with the crime of murder, was tried, found guilty of manslaughter in the first degree, and sentenced to serve four years in the State Penitentiary, and has appealed.

There is very little dispute in the evidence offered by the state and the defense as to the facts surrounding the homicide. The deceased, Bill Erwin, was killed by two shots fired from a pistol by the defendant in Murphy’s Place, which was a beer tavern and pool hall in the town of St. Louis, Okla.

The deceased was a driller employed by the Magnolia Petroleum Company in the oil fields near St. Louis. The defendant was employed as bartender at Murphy’s Place, where the killing occurred.

The proof showed that about 5 p. m., November 11, 1939, the deceased, Bill Erwin, came into the beer tavern and approached Pop Naylor, who was sitting in a booth on the east side of the building. The said Pop Naylor had been drunk in the building a few hours before and while he was asleep his poeketbook was taken. The testimony showed that Kay Kider, a friend of Naylor’s, had taken his money for safekeeping after Naylor had fallen asleep at a table.

Someone had told the deceased, Bill Erwin, that Nay-lor had been told that he, Bill Erwin, had gotten his money. The deceased asked Naylor who had told him that he had gotten his money and Naylor refused to tell the deceased. The deceased then started asking everybody in the house if they had said that he had gotten Pop Naylor’s money and further stated that “There ain’t a damn son-of-a-bitch that will come up and tell me that.” Later the deceased approached the defendant, who was sitting behind the counter, grabbed the defendant by the arm and said: “Doc, you old son-of-a-bitch, you started that.” The defendant jerked his arm loose from the deceased, ducked down behind the counter and, came up with a pistol and fired twice. Both shots hit the deceased and caused his death a few hours later.

There were many parties in the pool hall at the time the shooting occurred and they all testified to substantially the above facts. It is undisputed that the deceased did not have anything in his hands when he approached the defendant and grabbed him by the arm.

It is contended that the court erred in refusing to give certain instructions requested by the defendant. The instructions requested by the defendant were substantially correct and are such as are applicable generally to homicide cases where the issue of self-defense is raised. We have examined the instructions given by the court. Thirty-seven different instructions were given. The two instructions requested by the defendant are fully covered by the instructions of the court. Twelve of the instructions given by the court are on the law of self-defense and they were very full and comprehensive. In fact, some of these instructions were far more favorable to the defendant than he was entitled to'. The testimony of the defendant himself was very weak so far as supporting a plea of self-defense. The defendant testified:

“A. Pop got up and started towards the back, and Bill turned around and rushed over to the bar and says, ‘Pop says you are the old son-of-a-bitch that said it/ and grabbed hold of me and I jerked loose and dropped down and got the first thing I could get my hands on. Q. (By Mr. Arrington, Attorney for Defendant) Had you said anything to Bill? A. No, sir ; not one word to him after he came in the house. In the early part of the evening he came in and started back, about an hour before that, and asked if anybody was back there, and I said no, and that is the only time I spoke to him that day. Q. Did you observe Bill’s condition as to being drunk or sober? A. He was either drunk or awful mad, one; I judge he was drunk or mad. Q. You say he made a pass at you? A. He raised his hand to hit me and I just dropped behind the bar; just dropped down. * * * Q. Just tell the Court and jury in your own words from the time that Bill addressed you and started towards you, or started towards you and addressed you, what did happen, the way it happened, how it happened and why you came to use that gun? A. Well, he run up and grabbed hold of me and I jerked loose. I just got excited and grabbed this gun and come up and- was afraid he was going to harm me and I come up shooting; that is all there was to it. * * * Q. What was your purpose in using that gun? A. I just lost my head and grabbed it; that is all there was to it. Q. Were you afraid of Mm? A. Well, I can’t say I was particularly afraid of Mm; I was just excited. * * * Q. (By Mr. Wyatt, County Attorney) Did hie ever make any attempt to come over the counter? A. No; sir; he just grabbed bold and jerked me and I jerked loose from him. Q. Then you got the gun? A. Yes, sir. Q. When you come up with the gun did you say anything to him? A. I didn’t say a word. Q. Did you warn him to stand back? A. No, sir; I didn’t say nothing. He was right at the counter and I was excited and didn’t take any chances. Q. Did he strike at you? A. He raised his hand to strike at me. Q. When you came up with the gun? A. Oh, no. Q. After you came up with the gun he never made any attempt to strike at you? A. I couldn’t say that, because I was so excited I didn’t pay any attention to it; I just seen him standing there.”

It appears from this testimony that at the time the defendant secured the gun, raised up and shot the deceased, the deceased was making no advance nor attempting' in any way to injure the defendant. From the testimony of the defendant himself it would seem that .he was fortunate in receiving no more than four years imprisonment in the State Penitentiary for this unlawful act.

The defendant presents the further contention that the assistant county attorney, in his argument to the jury, made prejudicial and improper statements. Counsel for défendant cite in their brief one excerpt from the argument of the assistant county attorney in which it is shown that the prosecutor stated: “And there was a poker game in the back room.” This is all of the argument of the prosecutor which is incorporated in the case-made. There is nothing in the record as to what had previously been said by the prosecutor in connection with that remark, but only the single excerpt is presented to this court.

We find from an examination of the record that there was no direct testimony that a poker game was in progress in the pool hall, although one witness did state that people were sitting back there “talking and gambling or doing, whatever they were.”

We cannot conclude that this argument of the assistant county attorney prejudiced the jury in view of the evidence of the defendant himself and the fact that the jury assessed the minimum punishment for manslaughter in the first degree.

We have examined the entire record. It is our opinion that the defendant had a fair and impartial trial. He was well represented, but the facts were so overwhelmingly against him that the jury, under' their oaths of offíce, could have done nothing else than have rendered a verdict of guilty.

The judgment of the district court of Pottawatomie county is accordingly affirmed.

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


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    JOE L. BROWN v. STATE.
    No. A-9968.
    April 15, 1942.
    (125 P. 2d 234.)

      Jim Barnett, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Joe L. Brown, was charged in the court of common pleas of Oklahoma county with the crime of unlawful transportation of intoxicating liquor, jury was waived, defendant was tried, convicted and sentenced to serve 45 days in the county jail and to pay a fine of $75, and has appealed.

It is contended by defendant that the court erred in overruling his motion to suppress the evidence for the reason that the search of defendant’s automobile was unlawful.

In support of the motion to suppress the evidence the defendant placed the officer on the witness stand who arrested the defendant and seized the liquor involved in this case. This officer swore that he and his partner were patrolling what is known as the Council road, about two miles south of West Tenth street in Oklahoma county; that they saw an automobile approaching with only one headlight. That they stopped the car and the officer approached the driver for the purpose of writing him a warning. That he stopped at the front of the car near the driver, started to write on his warning book, when he saw a pint bottle of whisky in a passenger’s lap in the right-hand side of the front seat and also several packages of whisky wrapped in brown paper. There were several of these packages stacked in the back of the car and there were markings on the paper which were generally used in the marking of brands of whisky. That he made a search of the automobile and found 1,160 pints of whisky. That he did not know who1 was in the automobile and would not have stopped it if they had not been driving the automobile on the road with just one headlight, contrary to the law.

. The defendant testified that he was stopped by the patrolman. He admitted possession of approximately 1,100 pints of whisky and stated that it belonged to him. He said the whisky was covered with a blanket in the back seat and denied that the patrolman could see it. He admitted that part of a pint of whisky was lying in front which might have been seen by the officer. He further admitted that at the time he was stopped only one headlight was burning and stated that when they were on dim only one light burned, but when they were turned on bright both lights would shine.

The other highway patrolman testified substantially the same as the first officer except that he sat in the automobile while the other patrolman got out with his flashlight and waved the car down and walked over to warn him about his lights. That after Patrolman Roberts had talked to> the driver a minute or two he called him over to the car and he saw several packages of whisky in the automobile.

The motion to< suppress was overruled and it was stipulated that the evidence introduced on the motion to suppress should be treated as the evidence in the trial of the case.

The patrolmen were justified in stopping the defendant, as he was violating the law of this state. Section 10331, O. S. 1931, O. S. 1941, tit. 47, § 131.

After the defendant was stopped, according to the testimony of the officers, the whisky was in plain view. This constituted a violation of the criminail law in their presence. In the recent case of Hutchinson v. State, 74 Okla. Cr. 30, 122 P. 2d 395, 397, it is stated:

“The constitutional provision against unreasonable searches and seizures does not preclude the making of a seizure, without a warrant previously procured, of intoxicating liquor, where there is no need of a search for the liquor because the liquor is fully disclosed to the eye.”

See, also, Matthews v. State, 67 Okla. Cr. 203, 93 P. 2d 549; Barfield v. State, 68 Okla. Cr. 455, 99 P. 2d 544; Brumley v. State, 69 Okla. Cr. 122, 100 P. 2d 465; Nott v. State, 70 Okla. Cr. 432, 107 P. 2d 366.

The defendant should consider himself highly fortunate in not having a more severe punishment assessed when it is considered that he had possession of an exceedingly large amount of intoxicating liquor. From his own testimony it is apparent that he had 12 or 15 cars engaged in the illicit liquor traffic and interchanged automobile tags, as he admits the tag' on the automobile which he was driving at the time of his arrest herein belonged to another automobile which was one of 12 or 15 cars which he owned.

The judgment of the court of common pleas of Oklahoma county is affirmed.

BAREFOOT, P. J., and BOYLE, J., concur.


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    JOE L. BROWN v. STATE.
    No. A-9969.
    April 15, 1942.
    (125 P. 2d 235.)

      Jim Barnett, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Joe L. Brown, was charged in the court of common pleas of Oklahoma county with the crime of operating a motor vehicle on a state highway, in the nighttime, with only one headlight burning, was tried, convicted and sentenced to pay a fine of $10 and costs, and has appealed.

For a statement of the evidence in connection with this offense see the companion case of Joe L. Brown v. State, 74 Okla. Cr. 246, 125 P. 2d 234, decided on this date. Under this evidence it is undisputed that the defendant was driving and operating an automobile upon the state highway, in the nighttime, with only one headlight burning.

Section 10331, O. S. 1931, O. S. 1941, tit. 47, § 131, provides:

“Every motor vehicle, except motorcycles, operating over the Federal or State highway in this state between dusk and dawn shall be required to display two (2) front lights and one (1) rear red light not less than three (3) inches in diameter. Every motorcycle shall display one headlight and one rear light.”

The punishment for violation of this statute is by a fine of not less than $5 nor more than $100. Section 10333, O. S. 1931, O. S. 1941, tit. 47, § 133.

Counsel for defendant in his brief does not attempt to say that the defendant was not violating the provisions of the above statute. His argument is merely that the patrol officer did not intend to arrest or prosecute the defendant for this violation if he had not found the intoxicating liquor in defendant’s automobile. That, according to the testimony of the patrolmen, they generally issue a warning to first offenders when caught driving with only one light and for that reason this court should reverse this conviction and discharge the defendant as it was his first offense.

As to the policy of the Department of Public Safety in issuing warnings to- first offenders, we are not concerned. They are one of the law enforcement agencies created by statute and chargeable, among other duties, with the enforcement of the rules of the road and to assist in the proper handling of traffic. The statute was passed to promote safety upon the public highways and to provide for a uniform system of lighting motor vehicles. When violation of this statute occurs and the undisputed evidence shows the guilt of the defendant, this court has no alternative than to support the judgement of conviction.

For the reasons herein stated, the judgment of the court of common pleas of Oklahoma county is affirmed.

BANEFOOT, P. J., and DOYLE, J., concur.


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    A. D. RODDY v. STATE.
    No. A-9976.
    April 15, 1942.
    (125 P. 2d 236.)

      Harry G. Davis and Phil K. Oldham, both of Muskogee, for defendant.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Douglas Garrett, Co. Atty., of Muskogee, for the State.
   BAREFOOT, P. J.

Defendant, A. D. Roddy, was charged with the crime of murder in Muskogee county, was tried, convicted of the crime of manslaughter in the first degree and sentenced to1 serve a term of four years in the penitentiary, and has appealed.

The only contention made by defendant for reversal of this case is that the evidence was insufficient to' sustain the verdict.

This charge grew out of the shooting and killing, of Scott Noel in the city of Muskogee, Muskogee county, on the 17th day of December, 1939, by defendant. The shooting occurred in the Oozy Cafe, 217% South Main street. The defendant and deceased had never met or known each other prior to the killing. By the testimony of Otis Mar-low, who was working as a cook in the cafe and who was an eyewitness to the offense, the deceased, Scott Noel, was in the cafe sitting at one of the stools a little after 12 o’clock at night when the defendant, A. D. Roddy, entered the cafe. They were drinking beer and eating chili. He saw the defendant get up and leave and was gone approximately an hour when he returned about 2:30 o’clock. When he returned he and the deceased sat in the cafe for about 30 minutes. He was in the kitchen and did not hear any conversation between them. Defendant got np and went out the front door and came back in about 10 or 15 minutes. He made a noise in opening* the door and had a pistol in both hands. The defendant said, “Get, you son-of-a-bitch, I’m going to< get you.” He was pointing a' pistol at the deceased, Scott Noel. That deceased ran toward an opening from the cafe into the kitchen. That just as he entered the kitchen from the opening he was shot by defendant in the back. That he saw the defendant leave the cafe immediately after the shooting by the front door. That his car was parked near the cafe.

Grover Whittenburg, a witness for the state, testified that he and Lawrence Dilbeck came to> the Cozy Cafe about 2 o’clock. That he saw the deceased, Scott Noel, sitting there and he and defendant were talking. They were at the end of the counter near the door that opens on to the main street. He and Dilbeck were near the center of the counter. He heard the defendant and deceased arguing over who would pay for the beer they were drinking. He further testified that defendant twice started to leave and deceased told him to sit down each time and tried to get him tm drink the beer. That defendant left, taking with him his bottle of beer. The deceased walked down to the lower end of the counter, and defendant returned in about ten minutes. He testified:

“A. I heard him when he sort of jarred the door and came in, and after he came in he said, ‘You better get, you son-of-a-bitch, or I’ll get you’ ”.

He had in both hands a 38 automatic pistol, which he was pointing toward the deceased, who ran toward the opening between the cafe and the kitchen and was shot by defendant in the back as he entered the passageway.

Lawrence Dilbeck corroborated in a substantial way the testimony of the witness Whittenburg. He saw the parties in the cafe and heard them quarreling over who should pay for the beer and saw the deceased push the defendant down on a stool when he started to leave, and heard the defendant say something about being run over. His evidence with reference to the defendant returning to the cafe and shooting the deceased as he ran out of the door into the kitchen was practically the same as the evidence of the witnesses Marlow and Whittenburg. He said he did not hear the statement made by defendant just before the shot was fired as stated by these witnesses, and that he did not see deceased at the time the shot was fired, as he was looking, toward defendant. He also testified that when he went out on to the sidewalk defendant was there and tried to get him to leave with him in the car, but he refused, and defendant got in his car and drove away.

W. E. Franklin was the cashier and waiter at the cafe. He waited on the defendant and deceased and saw the conduct of the parties from the time of their entrance into' the cafe until the time of the shooting. His testimony was in accord with that of the witnesses heretofore stated. He testified that there were no blows struck by either defendant or deceased prior to the shooting. He saw the defendant enter the cafe with a pistol in both hands' and saw him shoot deceased in the back as he ran into the kitchen.

Several officers testified for the state. Their evidence is immaterial so far as the issues are here concerned.

Dr. John Rafter testified to¡ the death of the deceased, Scott Noel, by reason of the gunshot wound.

Defendant offered numerous witnesses who- were prominent citizens of Muskogee who testified to' the good character and reputation of defendant and that he had worked for the K., 0. & G. and Midland Valley Railroads for many years, and also witnesses who- testified that the deceased was a quarrelsome, troublesome person and that his reputation for such was bad.

Defendant testified that he was a locomotive fireman and had been for many years. That he went to the Cozy Cafe on the night of the 17th of December, 1939, as testified to. That it was the first time he had ever been there. That he went in there to get something to eat. That he sat down on one of the stools at the counter and ordered a glass of beer and a bowl of chili. That deceased was sitting near him. He had never met deceased before and did not know anyone else in the cafe. He testified the deceased engaged him in conversation and asked him if he wanted to make some money during Christmas. That you could do so by dealing poker, as he was a good one and knew how to deal from the bottom. That he had done this in Joplin, Mo. He said that he told him he did not want to do anything like that, as he was a railroad man and did not do those things. He said he started to leave and deceased asked him to pay for the bottle of beer and that he agreed to do so, but when he started to pay he did not have money enough and that he told the chasier, Franklin, he would go home and get the money, and Franklin said to him, “You aren’t going to try that on me, are you?” and they had some words, but that he went out and on home to get the money. That up to this time there had been no harsh words between him and the deceased, no disagreement or dispute of any kind. He went to his home and secured a roll of coins like they wrap it in a bank, put them in his pocket and went back to the cafe. He had walked home, but when he came back he came in his car. He walked up to the counter and saw the deceased. Defendant took Ms roll of money from Ms pocket and paid for the beer. He had $10 in 50 cent pieces that were rolled in a package, which he laid on the counter. After Franklin had given him the change, he said the deceased swung Mm around and said, “You are going to buy me another bottle of beer, aren’t you?” He told Franklin to1 give the deceased another bottle, and deceased said, “Buy yourself one,” which he did, and that two bottles of beer were placed on the counter and he paid for them. He then testified that deceased claimed he had not paid for the beer and that Franklin said that he had not, and he stated, “What are you fellows trying to do, bull-doze me?”

He further testified that deceased took a firm grip on his arm and said, “Look here, old man, I’ll box the piss out of you.” That deceased had hold of him during all of the time and was trying to take his money from him. That deceased was trying to get him to drink the beer which the witness Franklin had brought in a glass, and he figured it was doped, and that deceased said to him, “You drink it or I’ll break your God-damn neck.” That in the scuffle the beer was spilt on the counter and on his clothes. He said, “Well, I got hold of my money, a part of it, and put it in my jacket pocket; I don’t know how much, but I couldn’t watch my money and watch Franklin and Noel all at the same time.”

He further testified that deceased jerked him down on the stool several times; and that finally he went out the front door of the cafe with the bottle of beer1 in his hand. That he looked up and down the street for an officer and when he could not see one he decided to arrest the deceased himself. The witness here became confused in his testimony, but testified that he went to his car and sat there for a minute or two, and after counting his money came to the conclusion he had been robbed, and lie decided to- return to the cafe and arrest the defendant. That he took his gun from the glove compartment of the car and entered the cafe with it in his hand. His testimony of the actual shooting was as follows:

“Q. Just tell the jury what took place then? A. I walked in the door and Noel was walking down towards the west end of the counter probably within about three stools of the end of the counter and I started down that way and said, ‘I’m going to arrest you, I’m going to arrest you,’ and he kept on walking and I said, ‘Come on, let’s get going.’ Q. What did he do- then? A. He whirled; he made a quick whirl. Q. Say that this is the east end of the restaurant and this is the west end and this is the row of stools, along here, just show the jury how that took place? A. Well, he was down like this and then he whirled. Mr. Garrett: I want the record to- show that he put his left hand behind him first and then put his right hand behind him next. Q. Where was his right hand when he whirled? A. Well, his body was between me and him but I thought he was reaching for a gun. Mr. Garrett: I object to what he thought; he can testify as to what he saw or what the man did. The Court: Overruled. Q. You say you thought he had a gun? A. Yes sir, I thought he had a gun and was going to shoot me. Q. What did you do? A. I raised up the gun and fired. Q. What did he do- when you fired? A. He went around the counter and went on out. Q. Hid you believe at that time that he would kill you? A. Yes, sir. Q. You say he went where? A. He disappeared out through the kitchen; I never was back there and I don’t know exactly where he went. Q. What did you do then? A. I went on out in front.”

He then testified that he got in his car and went home and placed his gun in the dresser drawer, and after-wards went to the sheriff’s office and surrendered.

We have stated at length the testimony of the defendant. It is so at variance with every eyewitness to this homicide who- testified for the state that it will be readily observed that a question of fact was presented for the consideration of the jury. It was for them to say where the truth lay. They had an opportunity to observe the witnesses and to see their demeanor upon the witness stand, and under the well-recognized rule of this court, that we will not interfere with the verdict of the jury where there is a conflict in the evidep.ee, and where the evidence of the state is sufficient to uphold the verdict and judgment, under the evidence of the state a judgment and sentence of murder would be upheld. No doubt the jury took into consideration the previous good character and reputation of the defendant when they only found him guilty of manslaughter in the first degree and assessed his punishment at the minimum of four years in the penitentiary.

Finding no error in the record, the judgment and sentence of the district court of Muskogee county is affirmed.

JONES and DOYLE, JJ., concur.