author: DOYLE, J.

text:
    WILLIE WOODS v. STATE.
    No. A-4044.
    Opinion Filed Jan 13, 1923.
    (211 Pac. 519.)
    (Syllabus.)
    1. Larceny — Evidence Sustaining ¡Conviction for Cattle Theft. — In a prosecution for cattle theft, evidence considered, and held sufficient to sustain conviction.

      2. Indictment and Information — “Variance”—Materiality.—A variance in a criminal case is an essential difference between the accusation and the proof, and a variance is not material unless it is such as might mislead the defense, or expose the defendant to the injury of being put twice in jeopardy for the same offense.
    3. Larceny — Immaterial Variance Between Charge and Proof as to Description of Cattle Stolen. — An information for cattle theft described the alleged stolen property as “five certain cows, a better description of said cows being to informant unknown, the same being the personal property of Morris Johnson.” The proof showed that said cows were marked and branded. Held, there was no variance.
    Appeal from District Court, McCurtain County; G-. M. Barrett, Judge.
    Willie Woods was convicted of cattle tbeft, and be appeals.
    Affirmed.
    Jeff D. McLendon, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error was tried and by a jury found guilty of larceny of five cows, and bis punishment was fixed at eight years’ imprisonment in the penitentiary. From the judgment rendered on the verdict on the 24th day of February, 1921, he appealed by filing in this court on August 8,1921, a petition in error with case-made.

The sole question presented for our determination is whether there was a fatal variance between the allegations and the proof.

The information charges that in said county and state on the date alleged Willie Woods, "then and there being, did then and there unlawfully, willfully, and feloniously take, ■steal and carry away without the consent and against the will ■of the owner thereof five certain cows, a better description of said cows being to this informant unknown, the same being the personal property of Morris Johnson, with the unlawful and felonious intent upon the part of him, the said Willie Woods,” etc.

The proof on the part of the state supports the allegations of the information, and there was no testimony offered on the part of the defendant.

Morris Johnson, the alleged owner of the cattle stolen, testified:

“Q. Now give the court and the jury a description of the cows you missed. A. I missed five head, four red ones, two of them dark red, and two of them light red, and one was red-spotted white-backed, and bald-faced.
“Q. Were they branded? A. Yes, sir.
“Q. What brands did they have on them? A. One of them was branded W B, another S J, the other three branded B E, two splits in the left and one in the right.”

When the state called the next witness, the defendant made the following objection:

“The defendant objects to any further testimony on the part of the state because by the testimony of Morris Johnson there is a fatal variance between the allegations and the proof.”

At this time C. D. Wilkerson, county attorney, asked to be sworn and testified:

“At the time of the filing of the information I did not have a detailed description of the cows that Morris Johnson had lost; he did not give me a description of the cattle. (Objection overruled, and exception reserved.) ”

At the close of the evidence for the state, counsel for the defendant, the jury having been excused, interposed a demurrer to the evidence, "for the reason .that the same shows a fatal variance between the allegations and the proof, and it is not shown that the cattle in controversy are the opes seen in the possession of the defendant,” which demurrer was overruled, and exception allowed.

A variance in a criminal case is an essential difference ■ between the information and the proof, and a variance is not material unless it is such as might mislead the defense, or expose the defendant to the injury of being put twice in jeopardy for' the same offense.

In the case of People v. Terrill, 132 Cal. 497, 64 Pac. 894, it was held:

"A material variance between the proof and the information arises when an acquittal of the defendant under the information would be no bar to a further prosecution for the same offense.”

In a prosecution for theft, the property alleged to have been stolen should be described with substantial accuracy so that the defendant would be protected from another prosecution for the same offense. In this case the variance, if such it was, had reference only to a matter of description. The record clearly shows that the so-called variance could not have misled the defense, and there is nothing which indicates any danger .of the defendant being subjected to another prosecution by reason of the fact that the color, marks, or brands of the stolen cows were not set forth in the information.

We think the testimony, without any doubt, is ample to sustain the conviction. Finding no material error, in the record, the judgment of the lower court is affirmed.

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


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    BARNEY BATES v. STATE.
    No. A-4093.
    Opinion Filed Jan. 6, 1923.
    (211 Pac. 438.)
    (Syllabus.)
    Robbery — Evidence Sustaining Conviction'of Assault with Intent to Rob. —In a prosecution for assault with intent to rob, evidence held sufficient to sustain the conviction, and that no material error was committed on the trial.
    Appeal from District Court, Carter County; Thomas W. Champion, Judge.
    Barney Bates was convicted of assault with intent to rob, and he appeals.
    Affirmed.
    Brown & Williams, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Barney Bates, and Walter Yaughn were by information jointly charged with the crime of assault with intent to rob. Upon his separate trial Barney Bates was convicted, and his punishment fixed at imprisonment in the penitentiary for the term of five years. From the judgment rendered in accordance with the_ verdict on the 29th day of March, 1921, an appeal was perfected by filing in this court on September 28, 1921, a petition in error with case-made.

The defendant is not represented by counsel in this court, but we have read and examined the entire record in the case. It appears that at the date alleged in the information M. J. Garigan was running a store, selling gasoline and Ford parts and cold drinks, in the town of Woodworth. He testified;

“I was in the store all day, and that evening late Paul’s candy man came from Ardmore with a big bill of candy I bought from him. After the customers quit coming I put on the night latch, and started to place this candy in the show case. The store1 was lit up with seven lights on the inside and a light on the porch. The door latch rattled, and I went to the door. I looked out, and a man was -standing there, bare headed. I asked him, ‘Was there something?’ He pulled a big gun out'of his pants and said, ‘Stick them up, God damn you.’ I grabbed his gun and stepped back in and was tusseling with him. Then,11 looked and saw a man standing in the door with a handkerchief over his face. He was a tall, slender fellow. He had a gun pointed at me. I ducked down, and both men shot me. One shot struck me in the left elbow, the other in the breast and come out in my back. I ran out the door and hollered, ‘Murder! help! high jackers!’ I fell. My left side was paralyzed. The defendant there is the man who shot me through the breast. He did not have a mask on. I am sure that is the man.”

The testimony of the defendant and of several other witnesses tends to prove an alibi.

Upon the record in this case the sole question presented by the assignments of error is the sufficiency of the evidence to sustain the conviction.

The testimony on the part of the state supports the allegations of the information. Upon the testimony of the defendant and his witnesses the jury could have acquitted, but it was their province to decide the credibility and the weight to be given their testimony.

Finding' no prejudicial error in the record, the judgment of the district court of Carter county is affirmed, and the cause remanded thereto, with direction to enforce its judgment and sentence' therein.

MATSON and BESSEY, JJ., concur.


author: MATSON, J.

text:
    WILLIAM J. CARR v. STATE.
    No. A-4083.
    Opinion Filed Jan. 6, 1923.
    (211 Pac. 423.)
    (Syllabus.)
    1. Evidence — Corroboration of Accomplice — Rule Inapplicable to Woman Under Age of Consent Consenting to Incest. — While a woman who consents to the crime of incest knowingly, voluntarily, and with the same intent which actuates the man is his accomplice, so that her testimony is governed by the law of accomplice testimony and requires corroboration in order to sustain a conviction, such rule is not applicable where ‘the pros-ecutrix was at the time of thje commission of the offense under the age of consent.
    2. ' Incest — Evidence Sustaining Conviction. — Evidence examined, and held sufficient to sustain the conviction.
    3. Witnesses — Incompetency of Wife — Waiver by Failure to Object. — Where the wife of the defendant is permitted to testify against him in a prosecution for incest without objection on his part, he waives any objection to her. competency as a witness against him known to him at the time.
    4. Same — Harmless Error in Incest Case. — While the weight of modern authority is to the effect that in a prosecution for incest the wife is an incompetent witness against her husband, and there is some authority to the effect that on appeal her testimony should be disregarded, whether objected to or not, nevertheless in a prosecution for incest, where the prosecutrix is under the age of consent, and the wife’s testimony only tends to corroborate the prosecutrix, the conviction will not be reversed, although the wife may have been an incompetent witness against her husband. Especially will this rule be invoked where the wife testified without objection, and where the evidence, independent of the wife’s testimony, is sufficient to sustain the conviction.
    5. New Trial — Refusal—Newly Discovered Evidence — Lack of Diligence. — Where evidence alleged to have been newly discovered could have with reasonable diligence been discovered prior to the trial, there is no abuse of discretion by the trial judge in overruling the motion for a new trial on this ground.
    Appeal from District Court, Muskogee County; Benjamin B. Wheeler, Judge.

      William J. Carr was convicted of incest, and be appeals.
    Affirmed.
    Crump, White & Seawel (John E. Williams, of counsel), for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, J.

On the 14th day of April, 1921, an information was filed by the county attorney of Muskogee county charging the defendant, William J. Carr, with the crime of incest, alleged to have been committed on his 11 year old daughter, Bertha Carr, on the 5th day of April, 1921.

On a trial in the district court of said county in the month of May, 1921, the .defendant was convicted and sentenced to serve a term of 10 years in the state penitentiary. The conviction is based on the testimony of Bertha Carr, the prose-cutrix, Cora Carr, her mother, Dr. R. L. Allen and Dr. John E. Lee.

The prosecutrix testified to an act of sexual intercourse committed by the defendant on her on the 5th day of April, 1921, in the morning of said day, in a barn located in the rear of the premises where the Carrs resided in the town of Has-kell, Muskogee county. The wife of the defendant testified that she went to the barn that morning and saw the prose-cutrix standing up at one end of the barn in a trough, with her clothes up, and that the defendant was standing up against and in front of her; that as soon as the defendant discovered that she was there he turned from her and commenced buttoning up his pants; that she immediately took the prosecu-trix away and had the defendant prosecuted for this offense.

Drs. Allen and Lee both testified that the hymen of the prosecutrix had been perforated, and it did not appear to have been recently done, and that tbe examination was made by them in the early part of April, 1921.

It is first contended that the verdict is contrary to the law and evidence and is not sustained by sufficient evidence. In this connection it is argued that the testimony of the prose-cutrix is uncertain and unreliable as to the act of intercourse, and that she is not sufficiently corroborated.

While the testimony of the prosecutrix was elicited at times by the use of leading questions, it must be understood in this connection that she was of the tender age of 11 years, and an examination of the transcript of her testimony convinces the court that she was a person of at least average intelligence for such age, and that her testimony, if believed, was sufficiently definite and certain to establish the material elements of the offense. While a woman who consents to the crime of incest knowingly, voluntarily, and with the same intent which actuates the man is his accomplice, so that her testimony is governed by the law of accomplice testimony and requires corroboration in order to sustain a conviction, such rule is not applicable where the prosecutrix was at the time of the commission of the offense under the age of consent. 14 R. C. L. p. 37, § 7.

The evidence in this case is sufficient to sustain the conviction.

It is next contended that Cora Carr, wife of the defendant, was not a competent witness against him, under section 2699, Compiled Statutes 1921. The wife of defendant was permitted to testify for the state without objection by the defendant.

It is unnecessary in this ease to decide whether in a prosecution for incest the erimé is one committed against the wife so as to make her a competent witness against ber husband under section 2699, supra.

"It is clear that persons entitled to object to the competency of a witness may waive their objection and permit him to testify; and there is such a waiver where a witness is allowed to testify without objection though at the time the party knows of his incompetency.” 28 R. C. L. p. 450, § 37.

See, also, Perez v. State, 8 Tex. App. 610; Rodriguez v. U. S., 198 U. S. 156, 25 Sup. Ct. 617, 49 L. Ed. 994; Standley v. Moss, 114 Ill. App. 612; Spence v. Repass, 94 Va. 716, 27 S. E. 583; Curtis v. Tyler, 90 Mo. App. 345; Com. v. Fitzpatrick, 18 Pa. Super. Ct. 529.

While the weight of modern authority is to the effect that in a prosecution for incest the wife is an incompetent witness against her husband, and also there is some authority to the effect that on appeal her testimony should be disregarded, whether objected to or not, nevertheless in this case the wife’s: testimony may be wholly disregarded and the conviction still stand because corroboration of the prosecutrix was not absolutely necessary.

Lastly, it is contended that a new trial should have been granted because of newly discovered evidence. We have carefully examined the record with respect to this assignment, and find that the evidence alleged to have been newly discovered could have, with reasonable diligence, been discovered prior to the trial. For such reason there was no abuse of discretion by the trial judge in overruling the motion for a new trial on this ground.

For reasons stated, the judgment of conviction is affirmed.

DOYLE, P. J., and BESSEY, J., concur.


author: PER CURIAM.

text:
    JOHN C. LEFTWICH v. STATE.
    No. A-4029.
    Opinion Filed Jan. 6, 1923.
    (211 Pac. 436.)
    Appeal from County- Court, Seminole County; A. M. Fowler, Special Judge.
    John C. Leftwich was convicted of the offense of willfully omitting to provide for his minor child, and he appeals.
    Affirmed.
    The Attorney General, for the State.-
   PER CURIAM.

John C. Leftwich was convicted in the county court of Seminole county of the offense of willfully omitting to furnish the necessary food, clothing, shelter, and medical attendance for his minor child, Oseólas Leftwich, and his punishment fixed at a fine of $200.

This appeal has been pending in this court since the 19th day of July, 1921. The cause was submitted on October 4, 1922, at which time no appearance was made by counsel representing plaintiff in error to orally argue the cause. No brief has been filed in behalf of plaintiff in error.

Rule 9 of this court (12 Okla. Cr. viii, 165 Pac. x) provides :

"When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court, and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears will affirm the judgment.”

An examination of the pleadings, instructions, and judgment, and sentence discloses no prejudicial error, and the judgment is accordingly affirmed.


author: BESSEY, J.

text:
      G. W. HUCKABY v. STATE.
    No. A-3807.
    Opinion Filed Jan. 13, 1923.
    (211 Pac. 525.)
    (Syllabus.)
    1. Indictment and Information — Requisites—Precedent Crime and Particular Crime to Be Alleged in Ordinary and Concise Lan- . guage. — Ordinarily, where it is necessary to prove a precedent crime upon which hinges the particular crime charged, both should be pleaded in such detail, in ordinary and concise language, as will enable persons of common understanding to know the nature and import o,f the accusation.
    2. Samei — Escape—Information not Showing Principal Guilty of Particular Felony. — If the allegations, in the information are insufficient to show that the principal was guilty of a particular felony, the allegations would be insufficient to put the accused on trial for aiding a felon.
    3. Indictment and Information — Information Challenged by Objection to Evidence. — An objection to the introduction of evidence on the ground that the information does not state facts sufficient to constitute a crime is sufficient to challenge the sufficiency of the averments of the information.
    4. False Pretenses — Securing Property on Strength of Purchaser’s Promise to Take Care of Checks Delivered in Payment in the Future not “False) Pretense" — Larceny by Fraud. — Where checks are given in payment of the purchase price of cattle and the vendors are expressly informed that there is then no money in the bank to honor such checks, but part with the cattle on the •strength of the purchaser’s promise to take care of such checks in the future, a failure to keep these promises does not constitute false pretense within the meaning of section 2146, Comp. Stat. 1921. :
    (a) Obtaining money by such' deception may constitute larceny by fraud. •
    5. Escape — Commission by Principals in Original Offense. — Usually the offense of aiding a felon to escape is committed by an accessory after the fact, but the offense may be committed by one of the principals in the original offense, under the terms of 1621,, Comp. Stat. 1921.
    Appeal from District Court, Kiowa County; Frank Mathews, Assigned Judge.

      G, W. Huckaby was convicted of the crime of aiding and assisting another to escape, and be appeals.
    Reversed.
    Tbos. "W. Conner and Rummons & Hughes, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

G. W. Huckaby, plaintiff in error, was on the 7th day of January, 1920, by a verdict of the jury, convicted in the district court of Kiowa county of the offense of assisting one N. J. Riley to escape arrest for a felony, as charged in the information, and his punishment was assessed at confinement in the penitentiary for a term of two years.

The record shows that the defendant Huckaby and N. J. Riley entered into an agreement or conspiracy in which N. J. Riley was to purchase cattle from various farmers and obtain possession of such cattle by giving to the vendors checks drawn upon a bank in which Riley had no funds; that Riley was to tell the vendors that the checks would not be honored until a later day, when he would place money in the bank to take care of them. There was no intention on the part of either Riley or Huckaby to take care of these checks. In the meantime the cattle so procured were to be sold and the proceeds divided between the eoeonspirators. Pursuant to this fraudulent plan cattle were so obtained and sold, and the proceeds, amounting to more than $1,000, were equally divided between the two.

Defendant’» part of the transactions was to help procure this money and to prevent the arrest of Riley for false pretenses. It appears that defendant was a real estate and insurance agent, and also a quasi lawyer, with an office at Hobart, and that he conceived the plan as stated above, and induced Riley to join with him in its execution. Defendant advised Riley that a false promise expressly made to be carried out in the future, would not support a prosecution for false pretense, though funds were procured upon the promise so made. After Riley procured cattle from various farmers in this manner and immediately .sold them and divided the proceeds, and when his arrest seemed imminent, pursuant to this agreement defendant conveyed Riley to the mountains some distance away and secreted him there. For some time each kept the other advised of conditions. After some days, upon the suggestion of the defendant, Riley left the locality, and was finally apprehended and arrested at Paris, Tex., where he was living under an assumed name. After being brought back to Oklahoma he entered a plea of guilty to the charge of obtaining property by means of a bogus check. Defendant was then prosecuted in this case for aiding and assisting a felon to escape, as herein charged. Defendant ■ denied the conspiracy, and denied aiding, in the escape of Riley. The story told by Riley, who was a witness for the state herein, was amply corroborated by circumstances and by the testimony of several other witnesses, to the effect that defendant was a coconspirator, and that he aided Riley to escape and evade arrest.

Defendant claims: First, that the information does not state facts sufficient to charge a crime under the statute upon Which it is predicated; second, that the evidence shows that if Riley was guilty of a felony it was not that of obtaining money under false pretense, and that therefore the proof fails to establish the crime charged; third, that it is no crime for a principal to aid a confederate to escape, where such escape would inure to the principal’s benefit.

The charging part of the information filed herein is as follows:

“That G. W. Huekaby did * * * knowingly, wrongfully and feloniously * * * aid and assist one N. J. Riley, wbo was seeking to escape arrest for a felony committed in tbe state of Oklahoma, viz., obtaining personal property from L'. A. Hopkins by bogus check by transporting him,( the said N. J. Riley, in an automobile from Hobart, Okla., to the mountains in the southwest portion of said Edowa county, and advising and directing the said N. J. Riley to seek escape from arrest in flight from said mountains to parts unknown, he, the said G. W. Huekaby, then and there well knowing that the said N. J. Riley was seeking to escape arrest for said felony.”

The statutes upon which this prosecution is predicated are sections 1621 and 2146, Comp. Stat. 1921, as follows:

“Any person who shall knowingly feed, lodge, clothe, arm, equip in whole or in part, harbor, aid, assist or conceal in any manner any person guilty of any felony, or outlaw, or fugitive from justice, or any person seeking to escape arrest for any felony committed within this state or any other state or territory, shall be punished by imprisonment * * # in the penitentiary for a period not exceeding ten years.”
“Any person who, with intent to cheat and defraud, shall obtain, or attempt to obtain, from any other person or persons, any money, property, or valuable thing, by means or by use of any trick or deception, or false or fraudulent representation, or statement or pretense, or by any other means or instrument or device, commonly called the ‘ confidence game, ’ or by means or by use of any false or bogus check or by any other written or printed or engraved instrument or spurious coin or metal, shall be deemed guilty of a felony, and, upon conviction, be punished by imprisonment in the penitentiary for a term not exceeding seven years.”

No demurrer to the information herein was filed, but after the defendant announced ready for trial he interposed an objection as follows:

“Mr. Hughes: Comes now the defendant and asks leave of the court to withdraw his plea of not guilty herein for the purpose of objecting to the introduction of any evidence on the part of the state, for the reason that the information as amended herein fails to state facts sufficient to constitute a commission of a public offense against the laws of the state of Oklahoma.
“By the Judge: Overruled.
“Mr. Hughes: - Exceptions.
“Mr. Hughes: Comes now the defendant and objects to the introduction of any testimony on the part of the state for the reason that the information herein, as amended, fails to state facts sufficient to constitute a public offense having been committed on the part of the defendant against the laws of the state of Oklahoma.
“By the Judge: Overruled.
“Mr. Hughes: Exceptions.”

Ordinarily, where it is necessary to prove a precedent crime upon which hinges the particular crime, charged, both should be pleaded in such detail, in ordinary and concise language, as will enable persons of common understanding to know the nature and import of the accusation; as, for instance, where one is charged as an accessory after the fact the original felony should be pleaded with the same degree: of certainty as would be required to sustain a prosecution against the principal. Bishop’s New Crim. Procedure, vol III, “Accessory,” §§ 5’ 8, 10, 11; 22 Cyc. 363; Tully v. Commonwealth, 11 Bush (Ky.) 154.

In State v. King, 88 Minn. 175, 92 N. W. 965, the court said:

“It is not sufficient to charge that the principal committed a felony, naming it, but the facts constituting the same must be particularly averred.”

Inferentially our own court held to the same effect in Douglas v. State, 15 Okla. Cr. 648, 179 Pac. 947. In the Douglas Case it was charged that the principal procured the sum of $10 by means of a false and bogus check of a certain tenor, purport, and effect, reciting the cheek in detail, and concluding by saying that the check was false and bogus, all of which the accused well knew, and setting out the details of the fraud practiced by the principal to procure the money by means of said bogus check. It was held that such an information, charging that the accused aided the principal to escape, was sufficiently definite and certain. The check was particularly' described and! the manner of its negotiation averred — -essential elements entirely wanting in the case here. Bennett v. State, 21 Okla. Cr. 27, 204 Pac. 462.

The term “bogus cheek” is unlike many other terms having well-defined or self-explanatory meanings in criminal law. It is a more or less idiomatic expression, the meaning of which as a whole cannot be ascertained from the expression alone. It therefore follows that the averments should set forth how and in what particular the check is false or bogus, in all cases where the evidence will sustain a, prosecution under this statute. In such cases we think there should be an averment as to whu drew the cheek, the manner of its negotiation, and from whom and in what manner the money or property was obtained.

If the allegations in the information are insufficient to show that the principal was guilty of a particular felony the allegations would be insufficient to put the accused on trial for aiding a felon to escape.

An objection to the introduction of evidence on the ground that the information does not state facts sufficient to constitute a crime is’ sufficient to challenge the sufficiency of the averments of the information. Stone v. State, 12 Okla. Cr. 313, 155 Pac. 701; Simpson v. State, 16 Okla. Cr. 533, 185 Pac. 116; Section 2616, Comp. Stat. 1921, and cases cited.

It is claimed further that, assuming that the information in this case is good, the evidence is insufficient to support the charge. The bogus cheek statute (section 2146, Comp. Stat. 1921) is a part of our penal statutes relating to obtaining money-under false pretenses. To constitute a crime a false pretense there must be a false representation of an existing fact. If every breach of a false promise of a pecuniary nature to do something in the future constituted a crime, it would tend to involve the courts and the people in endless prosecutions. The inherent difficulty of determining the culpability of the maker of false promises to be fulfilled in the future makes it expedient to except this class of frauds from the rule. This rule is universal, so far as we know. At any rate, this court will not disturb it until the Legislature specifically so directs.

In this case the vendors of the cattle were all informed at the time the checks were given that there were then no funds in the bank to honor the checks, but the purchaser falsely promised that on a certain day following money would be deposited to take care of them. In our judgment these facts did not constitute the act a crime within the meaning of section' 2146, supra. This- iniquitous fraudulent scheme probably amounted to larceny by fraud. 17 R. C. L. 14, 15; eases cited in Shive’s Digest, 695, 696.

The next inquiry is: Where two are jointly implicated in the commission of a crime, does the aiding by one in the escape of the other constitute a separate crime under the provisions of section 1621, supra? Two crimes may be committed by one and the same act, as larceny and arson, robbery and murder. We know of no reason why this should not also be true where the original offense is committed by both and each aids the, other to escape, or one aids the other to escape, contrary to a penal statute making it a crime to aid any felon to escape. An accessory after the fact is punishable for a separate offense. Usually the offense of aiding a felon to escape is committed by an accessory after the fact, but may it not be done by an accessory before the fact or by a coprincipal? The fact that both were implicated in the original crime would not, in our opinion, change the rule where the statute- makes no exception to that effect. The object of the statute is to punish all who in this way obstruct justice. Neither would the fact that the aid given the other felon was given for the aider’s own protection alter the rule or operate as a justifiable excuse. Sections 244, 245, Brill’s Cyc. of Crim. Law.

The case is reluctantly reversed, and remanded, with instructions to proceed with the prosecution in accordance with the law as herein stated.

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


author: MATSON, P. J.

text:
    GRANT SMITH et al. v. STATE.
    No. A-3559.
    Opinion Filed Jan. 13, 1923.
    Rehearing Denied March 12, 1923.
    (212 Pac. 1012.)
    (Syllabus.)
    1. Trial — 'Instruction not Required upon Chimerical Theory not Supported by Evidence. — The trial court is not required to delve in the realms of conjecture or' speculation in order to instruct upon some chimerical theory of the law of the case not reasonably supported by the' evidence.

      2. Evidence — Accused Deemed to Elect Defense not Eliminated by His Admissions as Witness. — When a defendant, who has the right of election as to several defenses, takes the stand as a witness and makes such admissions as to render every theory of defense unavailable save one, he will be deemed to have elected that one.
    3. Homicide — Proof of Assault with Intent to Kill — Burden of. Mitigation or Justification on Accused. — Upon a trial for murder the commission of the homicide by the defendant being proven, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that' th'e defendant was justified or excusable. This rule is applicable with equal force to the crime of assault with intent to kill.
    4, Same — Refusal of Charge on Self-Defense — Lack of Evidence to Support. — Where the evidence of the state’s witnesses was to the effect that defendants, while riding along a public highway at night, shot the prosecuting witness immediately upon being informed that he was an officer, and after being told to stop, and before any shot was fired by such officer or those with him, and each defendant positively denied firing any shot on such occasion, although admitting they were in the automobile, thei issue! of self-defense is nlot presented, and the refusal of the trial judge to give an instruction on that theory is not error.
    Appeal from District Court, Craig County; Preston S. Davis, Judge.
    Grant Smith and another were convicted of assault with intent to kill, and they appeal.
    Affirmed.
    S. M. Eutherford, for plaintiff in error.
    The Attorney General and E. L. Fulton, Asst. Atty. Gen., for the State.
   MATSON, P. J.

This is an appeal from a conviction of the defendants in the district court of Craig county, wherein they were jointly tried for the crime of assault with intent to kill by shooting one Lee Webb, the sheriff of Craig county, in the month of April, 1918. The jury returned a verdict of guilty as to each defendant and left the punishment to the court, and on the 4th day of December, 1918, the trial court sentenced each defendant to serve a term of seven years in the penitentiary at McAlester.

The shooting of Webb occurred on a public highway not far from the town of Welch, in Craig county, Okla., while the defendants were traveling along the public highway in a highpowered automobile. At the time of the shooting of Webb, he was a member of a posse organized by a deputy United States marshal of that district who had received information that evening that two negroes had left the city of Joplin, Mo., with an automobile loaded with whisky bound for the city of Muskogee, Okla. The defendants were both, negroes, and at that time, according to their testimony, were residents of Muskogee, Okla. The public highway on which the shooting occurred was the one usually traveled between the cities of Joplin and Muskogee.

According to the state’s witnesses, as soon as they saw the headlights of defendants’ automobile approaching, they got out into the road and hollered to the defendants that they were officers and told them to stop; that as soon as they told defendants they were officers two shots were immediately fired from the automobile, the first of which struck Webb in the thigh, knocking him to the ground; thereupon one of the officers fired a shot into the radiator of the car, and the defendants fired two or more additional shots from the car, and the officers fired some more shots at the ear; that the occupants of the car speeded up and escaped.

The state’s evidence further discloses that about one hour after the shooting these defendants drove their automobile into a garage at Vinita, Okla., several miles distant from where the shooting occurred; that at that time the radiator of the automobile had a bullet hole in it and was leaking so badly that the defendants abandoned the car there and left it with the garage owner for repairs, at the same time Grant Smith, one of the defendants, also left with the garage owner, or the man in charge of the garage at the time, a 38-caliber Colt’s pistol. The evidence discloses that Webb was wounded by a 38-caliber bullet, also that the bullet extracted from the radiator of the car was of 38-caliber.

Defendants admitted that they were the parties in the ear at the time, but denied that they had any whisky, and each defendant also denied that they fired any shots at the officers, claiming that Smith’s pistol was a 32-ealiber pistol; that it was in the pocket of the door of the automobile and was not taken therefrom until they reached the garage at Vinita; that Sutgray had no pistol at all, and that all the shots that were fired on that occasion were fired by the officers themselves; that if Webb was wounded at that time he must have been wounded by a shotj fired by one of the officers.

The chief error alleged to have been committed by the trial court and relied upon for a reversal of these convictions is the refusal of the trial court to give an instruction covering the law of self-defense. Such an instruction was requested by counsel for defendants, and, upon refusal of the trial court to give it, proper exception was taken.

“Whether! it is the duty of the court in a prosecution for homicide to instruct the jury on the question of self-defense when the defendant denied the killing, seems to depend entirely upon the nature of thei evidence introduced at the trial. If the defendant denies the killing and there is no evidence adduced by either party which tends to show that the killing might have been in self-defense, although other evidence shows quite conclusively that the defendant committed the crime, it is not the duty of the court to instruct as to self-defense.” 13 R. C. L. p. 813.

In the case of Newby v. State, 17 Okla. Cr. 291, 188 Pac. 124, this court held:

“The trial court is not required * * * to delve into the realms of conjecture or speculation in order to instruct some chimerical theory of the law of the case not reasonably supported by the evidence.”

In the ease of Sayers et al. v. State, 10 Okla. Cr. 233, 135 Pac. 1073, it is held:

“When a defendant, who has the right of election as to-several defenses, takes the stand as a witness and makes such admissions as to render every theory of defense unavailable-save one, he will be deemed to have elected that one.”

Section 2719, Compiled Statutes 1921, is as follows:

“Upon a trial for murder, the commission of the homicide by the defendant being proven, the burden of proving, circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.”

Under the foregoing statutory provision it is clear that in homicide cases, where the commission of the homicide is proved, the burden of proving circumstances that defendant w'as justified or excusable devolves upon the defendant, unless, of course, the state’s evidence discloses that defendant was justifiable and excusable. This rule is applicable with equal force to the crime of assault with intent to kill.

In this case the evidence on the part of the state discloses that as soon as the defendants were notified that the parties in the road were officers and were told to stop, the defendants immediately fired two shots, the first of which struck and wounded Lee Webb. There is no conflict in the state’s evidence on this point. No element of justification or excuse on the part of either defendant can be said to arise from the state’s evidence. Therefore there was no element of self-defense arising from the state’s evidence, and the trial court was not required to give an instruction on that theory because of any evidence adduced by the state.

The defendants each specifically denied that they fired a single shot ón that occasion. It is clear, therefore, that the evidence introduced by the defendants in no way tended to prove any circumstance that would justify or excuse either of them in shooting at Webb. The defendants elected to depend upon the theory that no shot was fired from the automobile, leaving the jury to infer that Webb must of necessity have been wounded by a shot fired by one of the possemen. The defense interposed by these defendants was entirely inconsistent with self-defense, and after the state’s case disclosed no justification or excuse on the part of either defendant the defense upon which they relied did not assume the burden of proving justifiable or excusable circumstances as required by section 2719, supra.

There is1 no evidence in this case sufficient to present the issue of self-defense; therefore the refusal of the trial court to give the requested instruction on that theory was proper. Newby v. State, supra; Williams v. State, 17 Okla. Cr. 375, 188 Pac. 890; Williamson v. State, 19 Okla. Cr. 427, 200 Pac. 461; Moutry v. State, 9 Okla. Cr. 623, 132 Pac. 915; Holmes v. State, 6 Okla. Cr. 541, 119 Pac. 430, 120 Pac. 300; Rollon v. State, 7 Okla. Cr. 673, 125 Pac. 1087; Murray v. State, 10 Okla. Cr. 530, 139 Pac. 707; Young v. State, 11 Okla. Cr. 22, 141 Pac. 285; Stevens v. State, 8 Ga. App. 217, 68 S. E. 874; Burton v. State, 67 Tex. Cr. R. 149, 148 S. W. 805; State v. Jenkins (Mo. Sup.) 178 S. W. 91.

The trial judge gave instructions fully and fairly covering the law applicable to the facts as testified to by the defendants. While certain instructions given by the trial judge are complained of, the instructions given, considered as a whole, are as fair ,to the defendants as the evidence warrants and in our opinion cover the law of the case.

For the reasons stated, the judgment of conviction as to each defendant is affirmed.

BESSEY' and DOYLE, JJ., concur.


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    G. S. SISNEY v. STATE.
    No. A-4142.
    Opinion Filed Jan. 16, 1923.
    (211 Pac. 525.)
    (Syllabus.)
    Appeal and Error — Prosecution Abated on Death o.f Accused. — In a criminal action, the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death.
    Appeal from District Court, Muskogee County; Benjamin B. Wheeler, Judge.
    G. S. Sisney was convicted of destroying a building with explosives, and he appeals.
    Remanded, with directions to abate.
    P. A. Gavin, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, G. S. Sisney, was tried and convicted on an information charging the destruction of a building with explosives, and his punishment fixed at three years in the penitentiary. From the judgment rendered on the verdict, an appeal by case-made was perfected by filing in this court on December 5,1921, a petition in error with case-made.

Since the appeal was taken and before the final submission of the cause suggestion of the death of the plaintiff in error has been made, and his counsel of record for-this reason filed a motion to abate, stating that plaintiff in error died in Muskogee on the 6th day of January, 1923.

In a criminal action, the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his| death. It is therefore considered and adjudged that the proceedings in the above-entitled cause, and especially under the judgment therein rendered, do abate. It is so ordered, and the cause, remanded to the district court of Muskogee county, with direction! to enter its appropriate order to that effect.

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


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    J. H. WEBB v. STATE.
    No. A-4022.
    Opinion Filed Jan. 16, 1923.
    (211 Pac. 524.)
    (Syllabus.)
    Intoxicating Liquors — Evidence Insufficient to Sustain a Conviction for Maintaining Nuisance. — The evidence held insufficient to support a verdict of guilty for maintaining a nuisance by keeping a place where intoxicating liquors were sold.
    Appeal from County Court, Oklahoma County; W. R. Taylor, Judge.
    J. H. Webb was convicted of maintaining a liquor nuisance, and he appeals.
    Reversed.
    Ross N. Lillard, for plaintiff in error.
    Geo. F. Short, Atty Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

J. H. Webb, plaintiff in error, was jointly informed against with Joe Henderson and Hazel Webb, charged with keeping and maintaining a nuisance ■ where whisky, beer, and wine were manufactured, sold, bartered, and given away to numerous and divers persons unknown. Joe Henderson was not arrested. J. H. Webb and Hazel Webb were put upon trial on March 3, 1921, and by a verdict of the jury Hazel Webb was found not guilty, and J. H. Webb was found guilty as charged, and his punishment was fixed at a fine of $100 and confinement in the county jail for a period of 30 days. From the judgment rendered on the verdict he appeals.

The record shows that J. H. Webb and Hazel Webb, his wife, had leased certain property at 2949 West Tenth street in Oklahoma City; that after taking this lease they lived there for some weeks, and then subleased the premises to Joe Henderson, a portion of the furniture and other belongings owned by Webb and his (wife being left , on the premises with Henderson ; that on several occasions they returned, to the place to look after some hogs and chickens which they had left there, and to collect the rent. At the time of the arrest Webb and his wife had .gone to the place for that purpose, and found that the place had been searched by officers and was under guard. On that morning, between the hours of 2 and 4 o’clock, the county attorney and two peace officers had gone to the house and forced an entrance, and had searched the house and basement, finding nothing out of the ordinary. They then went to the servants’ house at the rear of the main dwelling, where they found nine barrels of mash, some sweet and some sour, and an apparatus known as a still. The still was in a knock-down condition, and not in operation. No one was in the house or the servants’ quarters at the time of the search. The county attorney had returned to his office before Webb and his wife arrived at the premises, at about 11 o’clock on that morning. John Heep, one of the officers, testified, in párt, as follows:

“Q. Did you have any conversation with these defendants? A. Yes, sir.
“Q. Can you tell- the jury what the conversation was about? A. It was about the stuff we,found there.
“Q. What did they say about it? A. They claimed it wasn’t theirs.
“Q. Whose did they say it was? A. Henderson’s.”

There was no direct evidence on the part of any witness tending to show that any intoxicating liquor was found on the premises, or that whisky or other intoxicating liquor had been or was being sold at the place.

Hazel Webb testified that she and her husband had sub-rented these premises to Joe Henderson and his wife; that the premises were rented furnished with their belongings, and that she and her husband moved out, and Henderson and his wife moved in; that from timé to time they returned to the premises to see about their belongings and to collect rent; that on the 18th day of November they went to the premises for that purpose; that when they arrived at the place they found the door had been broken in, and that Luther Bishop, drew a gun on her husband; that she became frightened and started to leave; that she had no personal belongings in the washhouse, where the mash was found, and did not know the still and mash were there. The testimony of J. H. Webb was of like import.

There are 11 assignments of error set out in the petition in error; the first being that the verdict is not sustained by the evidence. The Attorney General has confessed error upon this ground. An examination of the record convinces us that the confession of error is well founded, making it unnecessary to. analyze the other assignments of error.

The judgment of the trial court is therefore reversed.

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


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    EDDIE BROWN v. STATE.
    No. A-3775.
    Opinion Filed Jan. 16, 1923.
    (211 Pac. 520.)
    (Syllabus.)
    Indictment and Information — Filing of Substituted Information for Misdemeanor Without Objection. — When a misdemeanor is charged, the filing of a substituted information in the presence of the accused, without any objection on hi's part, is sufficient to put the accused on trial on such new accusation, and operates as an abandonment of the former accusation.
    Appeal from County Court, Oklahoma County; W. R. Taylor, Judge.
    Eddie Brown was convicted of selling whisky, and he appeals.
    Affirmed.
    S. A. Horton, for plaintiff in error.
    S. P. Preeling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

On September 5, 1919, defendant, Eddie Brown, was by information charged with selling intoxicating liquor to L. B. White, in the Kingkade Hotel in Oklahoma City on September 4, 1919. On September 9, 1919, he was arrested and executed a bond for his appearance. On October 7, 1919, by leave of court, an amended information was filed, charging a sale of liquor to L. B. White at the Kingkade Hotel on October 4, 1919. On October 10, 1919, the defendant entered his plea of not guilty to the amended information. On the 5th day of February, 1920,' the defendant, without any objection to the substituted accusation, announced ready for trial, and at the trial was found guilty as charged in the amended information. His punishment was assessed at a fine of $500 and six months’ imprisonment in the county jail.

Defendant says this case should.be reversed because after the original information was filed and after his arrest and making bond for bis appearance an amended! or substituted information was filed, charging an offense committed subsequent to the filing of the first information, though prior to the filing of the second.

This being a misdemeanor, where no preliminary .trial is required, the court at the time of the filing of the amended information had jurisdiction of the person of the defendant and of the offense originally set out. The filing of an amended or substituted information charging a different, subsequent offense, though of the same character and import as that charged in the original, was equivalent to an abandonment of the original charge and the substitution of a new action, the same as a new charge, separately filed and numbered. Strictly speaking, this designation “amended information” was a misnomer. It was in reality a new or substituted information. An information is quashed and abandoned by the filing of a new information. Brown v. State, 5 Okla. Cr. 567, 115 Pac. 615, cited with approval in State v. Ling, 91 Kan. 650, 138 Pac. 582, Ann. Cas. 1915D, 374; 22 Cyc. 275.

The defendant was in court and interposed no objection to the information being so changed, on the grounds of surprise or otherwise, and entered his plea of not guilty and months later announced ready for trial. Under such circumstances it would be useless and unnecessary to rearrest a defendant already in custody. A warrant for the arrest and apprehension of the accused must be predicated upon1 an affidavit of some person who deposes to the facts. Such an affidavit is not a condition precedent to the filing of an information. Hence, when a misdemeanor is charged, the filing of a substituted information in the presence of the accused, without any objection ,on his part, is sufficient to put the accused on trial on such new accusation, and. operates as an abandonment of tbe former, accusation.

Tbe judgment of the trial court is affirmed.

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


text:
    HENRY FRY et al. v. STATE.
    No. A-4017.
    Opinion Filed Jan. 17, 1923.
    (211 Pac. 520.)
    (Syllabus.)
    Appeal .and Error — Dismissal— Acceptance of Parole by Accused.— When an appeal from a judgment of conviction is pending in this court, and the plaintiff in error applies for a parole, and the same is granted, and the fact that a parole has been granted . and accepted is brought to the attention of this court, the appeal will be dismissed as having been abandoned.
    Appeal from District Court, Pittsburg County; Harve L. Melton, Judge..
    Henry Fry and another were convicted of robbery, and they appeal.
    Appeal dismissed, and cause remanded.
    Philos S. Jones and Andrews & Anderson, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiffs in error, Henry Fry and S. J. Buckner, were conjointly charged, tried, and convicted in the district .court of Pittsburg county of the crime of robbery, and in accordance with the verdict of the jury were each sentenced {to imprisonment in the penitentiary for the term of 15 years, upon an information charging that in Pittsburg county, on or about the 1st day of December, 1920, they did unlawfully, feloniously, and conjointly, by means of force and by putting in fear, and by pointing a gun, take from one Mary Bosletta thd sum of $1,200. From the judgments rendered on the verdicts on January 26, 1921, an appeal was perfected by filing in this court on July 8,1921, a petition in error with case-made.

The Attorney General has filed a motion to dismiss the appeal on the ground and for the reason that said plaintiffs in error have applied for and have been granted and have accepted executive clemency, in1 that on the 6th day of January, 1923, said plaintiffs in error were granted paroles by Hon. J. B. A. Robertson, Governor of the state of Oklahoma, and that said paroles'were accepted) by said plaintiffs in error-in writing. The original - paroles, duly signed by Hon. J. B. A. Robertson, Governor, and attested by Hon. Joe S. Morris, Secretary of State, together .with the written acceptance of each of said plaintiffs in error indorsed thereon, said signatures' being witnessed by Lewis Paullin and C. G. Landon, are exhibited to the^ court in support of the. motion to dismiss said appeal.

The uniform holding of this court is that,' when the pardoning power extends clemency, and the same is accepted pending the determination of an appeal, the appeal will be dismissed, and, when an appeal from a judgment of conviction is pending in this court, and plaintiff in error applies for a parole, and the same is granted and accepted, and the fact that a parole has been granted and accepted is brought to the attention of this court, the appeal will be dismissed as having been abandoned.

It is therefore considered, adjudged, and ordered that the appeal herein be dismissed as to each of said plaintiffs in error, and the canse remanded to the district court of Pittsburg county.

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


text:
      G. W. USSAERY v. STATE.
    No. A-3857.
    Opinion Filed Jan. 20, 1923.
    Rehearing Denied April 21, 1923.
    (212 Pac. 137.)
    (Syllabus.)
    1. Trial — Instruction not Required on Theory not Supported by Evidence. — The trial judge is not compelled to delve into the realms of conjecture or speculation to instruct on some theory of the case not reasonably supported by the evidence.
    2. Homicide — Lack of Evidence to Support Requested Instruction that Homicide Justifiable Because Accused was Attempting to Preserve Peace. — It is not error to refuse a requested instruction in a homicide case, based on the theory that) the defendant was justifiable because the homicide was committed in attempting by lawful ways and means to keep and preserve the peace, where there is no evidence adduced either by the state or by the defendant reasonably supporting sucb| theory of defense.
    3. Trial — Refusal of Requested Instruction when Covered by Given Instruction. — Where the instructions given sufficiently cover the law as contained in a requested instruction, it is not error to refuse such requested instruction, although the same may correctly state the law.
    4. Homicide — Proper Instruction on Insanity as Defense. — Instructions on the defense of insanity considered, and held sufficient.
    5. Appeal and Error — Burden on Appellant to Affirmatively Show Error. — When the entire argument on both sides is not before the court, and the county attorney contends that his argument is in reply to argument advanced by defendant’s counsel, and the trial judge overrules the objection to such argument, this court will not pass on the alleged error, unless the argument complained of constitutes a violation of some constitutional or statutory right of the defendant. Under such circumstances the presumption will be indulged on appeal that the trial judge ruled, that such argument' was permissible as reply argument, as the burden is upon the appellant to affirmatively show error in the ruling of the trial court.

      .6. Appeal and Error — Requisites of Brief; — Error in Rulings on Evidence. — When the error alleged relates to the omission or( to the rejection of evidence, the brief should quote the full substance of the evidence admitted or rejected, stating specifically the objection thereto as required by rule 7 (12 Okla. Cr. viii, 165 Pac. x).
    "7. Homicide — Evidence Sustaining Conviction of Manslaughter in First Degree. — Evidence examined, and held sufficient to support the verdict and judgment.
    Appeal from District Court, Pontotoc County; J. W. Bol-een, Judge.
    G. W. Ussaery was convicted of manslaughter in the .first degree, and he appeals.
    Affirmed.
    R. C. Roland, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. -Gen., for the State.
   MATSON, P. J.

This is an appeal from the district court •of Pontotoc county wherein the defendant was convicted of •the crime of manslaughter in the first degree, and sentenced •.to serve a term of ten years in the state penitentiary. From •this judgment and! sentence he brings this appeal.

The facts as they are disclosed from the record set forth: 'That the defendant is a man about 66 years of age. That prior to the commission of the alleged offen.se herein, he had borne ,a' good reputation as a law-abiding citizen. The defendant, the deceased, and Mrs. MeBroom, together with other citizens, .'lived in the' same block on West Sixth street in the city of Ada, Pontotoc county, Okla. Mrs. MeBroom lived directly .across the street from the defendant, and each of them lived upon the east corner of the block. The deceased lived on the • west corner of the same block, and seems to have been troubled with some affliction similar to epilepsy, which at times ■¿rendered him apparently irresponsible for his acts.

On the day of the alleged killing, it is disclosed from the evidence that deceased left his home and went down to the home of Mrs. McBroom, and apparently attacked her, knocking her down with a brick, and severely mistreating her by stomping her and striking her, and the entire neighborhood became considerably excited over this happening. A woman living in the house next to the one occupied by Mrs. McBroom ran across the street to the home of defendant, and reported to him and his wife that there was a man over there killing Mrs. McBroom. Defendant immediately got up, and, going out his front door through the gate, approached deceased, who at that time had ceased his attack upon Mrs. McBroom, and she had escaped, meeting defendant about midway in the street as he was going to her relief. Defendant approached deceased, and engaged in a short conversation with him, which all of the witnesses failed to understand and know the nature of. After talking with deceased but a moment, defendant returned to his home, procured a shotgun, and walked toward the place across the street in front of the McBroom’s where deceased was standing under) a tree. There is testimony by some of the witnesses to the effect that at this time deceased had his knife open, and was scraping mud off his shoes, or was sharpening his knife on the sole of his shoe. When defendant had reached a point within from 10 to 25 feet of deceased (the testimony varies as to this distance), he fired loads from both barrels of the shotgun into the body of deceased, from the effects of which deceased died about six hours later. Defendant immediately returned to his home, and went from there to the sheriff’s office, and said to the undersheriff:

“You will have to lock me up, as I shot Whit Hyden a while ago. He had Mrs. McBroom down, with a knife in his hand, and I went out to see what it was about, and Whit threatened to cut my throat. I went back in the house and came out and Hyden jumped at me and cut me on the sleeve, and I shot him.”

The record in the case is very voluminous. A large number of witnesses were examined, and the entire history of "this deplorable circumstance from the time of the appearance •of deceased at the home of Mrs. McBroom until the killing took place was gone into and testified to by the witnesses •offered ,by both the state¡ and defendant.

One of the defenses was that of insanity. A goodly number of witnesses were ,examined upon that question, including the late Dr. John W. Duke, of Guthrie, as an expert. At the ■close of the testimony, defendant offered, through his attorneys, an elaborate set of instructions, comprising 17 different paragraphs, some of which were refused by the court and •exceptions allowed, and the court then instructed the jury upon the law covering the case. After deliberation, the jury returned a verdict finding defendant guilty of manslaughter in the first degree, and fixing his punishment at 10 years in the penitentiary, as above stated.

The first alleged error presented in the brief deals with the court’s refusal to cover requested instruction No. 9, which is as follows:

“You are( instructed that under the statutes of this state homicide is justifiable when committed by any person in attempting by, lawful ways and means to apprehend any person for any felony committed, or in lawfully suppressing any riot, or in lawfully keeping and preserving the peace, and in this connection you are instructed that, if immediately prior to the homicide it was reported to the defendant that the deceased was stamping a woman to death across the street, he had a .right to arm himself and go to where the deceased was for the purpose of preventing such assault, or for the purpose of keeping and preserving the peace, and in this connection you .are instructed that the state of mind of the defendant is the principal question for you to determine, and if you believe from the evidence, or have a reasonable doubt thereof, that the defendant believed that he was lawfully engaged in such purpose, even though said belief was a delusion, if such belief was entertained by him by reason of a diseased or unsound mind, then he would not be responsible for the act committed. ’ ’

Said instruction is based on subdivision 3 of section 1754, Compiled Statutes 1921, which reads as follows:

“Homicide is justifiable * * * when necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed; or in lawfully suppressing any riot; or in lawfully keeping or preserving the peace.”

In this connection it is contended that it was the duty of the trial court to submit the law of the case from the viewpoint of defendant — “to view the entire situation from the defendant’s standpoint.” It has been repeatedly held by this court that the trial judge is not compelled to delve into the realms of conjecture or speculation to instruct on some- theory of the case not reasonably supported by the evidence. Newby v. State, 17 Okla. Cr. 291, 188 Pac. 124. In this case the defendant failed to take the witness stand in his own behalf. What his viewpoint was cannot be gleaned from the record' before us. The uncontradicted evidence is to the effect that any assault upon the person of Mrs. McBroom by the deceased had been discontinued, and that Mrs. McBroom was either in the house of the defendant, or else met the defendant in the middle of the street when the defendant first went to the place where the deceased then was. In this connection it must also be remembered that after this the deceased and defendant had a conversation, the nature of which is not known to any of the witnesses, and that immediately thereafter the defendant returned to his house across the street,' procured his loaded shotgun, and again returned to the place where deceased was then standing, and there shot and killed the deceased at a time when, the deceased was making no attack on Mrs. Mc-Broom or on anybody else. There is no testimony from the lips of any of the state’s witnesses that required the submission of the case to the jury on the theory presented by requested instruction No. 9. The evidence on the part of the state disclosed a willful and deliberate killing, and would have justified the jury in returning a verdict of guilty of murder.

Such being the case, under our statute, the burden then shifted to the defendant to produce evidence that he was justifiable within the meaning of the statute above quoted. Culpepper v. State, 4 Okla. Cr. 103, 111 Pac. 679, 31 L. R. A. (N. S.) 1166, 140 Am. St. Rep. 668; Smith and Sutgray v. State, 22 Okla. Cr. 383, 212 Pac. 1012, and cases cited in the latter opinion. The defendant failed to assume the burden that the law placed upon him, under such circumstances, of adducing evidence to justify this .killing. It was not error, therefore, for the. trial court ’to refuse to give requested instruction No. 9, above quoted, and what has been said with reference to the refusal of the court to give this requested instruction is equally applicable to the complaint lodged against instruction No. 4-a, contained in the general charge, on the subject of the defendant having forfeited his right of self-defense. The issue of self-defense is not reasonably presented by any evidence in this, case. Any alleged error, therefore, in trial court’s charge on that subject would not be good ground for reversal.

It is also¡ contended that the ¡trial judge erred in refusing to give requested instruction No. 2, which is as follows:

“You are instructed that the defendant has interposed as one 'of his defenses’ in this case the plea of insanity. When that defense is interposed, the burden of proof is upon the defendant to introduce sufficient evidence to raise in your minds a reasonable doubt of his sanity. It is not required1 that the defendant shall prove his insanity to the satisfaction of the minds of the jury by competent evidence beyond a reasonable doubt, or by a preponderance of the evidence. It is sufficient if only he introduces sufficient evidence to raise in your minds a reasonable doubt of his sanity, and when this is done you are instructed that the burden of proof is upon the state to prove the sanity of the defendant by competent evidence, beyond a reasonable doubt, before you would be justified in convicting the defendant as charged in the information, and then the burden of proving the sanity of the defendant rests upon the state,, like that of proving any other material allegation of the information; and if you believe that the state has failed to prove by competent evidence, beyond a reasonable doubt, the sanity of the defendant, and if from all the the evidence in the case there is reasonable doubt in your minds as to the sanity of the defendant, you will return a verdict of not guilty and acquit him.”

The foregoing instruction correctly states the law, and was copied verbatim from an instruction requested in the case of Adair v. State, 6 Okla. Cr. 284, 118 Pac. 416, 44 L. R. A. (N. S.) 119.

The evidence on the part of the defendant’s witnesses was directed solely to the question of defendant’s sanity at ihe time of the commission of the crime There was evidence on the issue of insanity, requiring the trial judge to submit that issue under an instruction or instructions properly stating the burden of proof on that issue. Therefore, unless the general charge sufficiently covered the matters presented, by requested instruction No. 2, it was error to refuse such instruction. Instruction No. 4 given on this subject is as follows :

“The next defense offered by the defendant is that of insanity; and in this connection you are instructed that under the law all parties are presumed to be sane until the contrary is shown, and the burden is on the defendánt to offer sufficient evidence to raise in your mind a reasonable doubt as to the sanity of the defendant at the time of the fatal shooting; and, when such evidence is so offered by the defendant, then the burden shifts to the state to prove to your mind beyond a reasonable doubt that the defendant at the time he fired the fatal shot was sane.
“And in this connection you are instructed that the defendant is not required to prove his insanity to the satisfaction of the minds of the jury beyond a reasonable doubt or by a preponderance of the evidence, but ir, is sufficient to shift the burden to the state if he only introduces enough evidence to raise a reasonable doubt of his sanity at the time of the fatal shooting. ’ ’

The instruction given sufficiently covered the law contained in the requested charge; the alleged error in refusing to give requested instruction No. 2 was cured by giving instruction No. 4, above quoted.

It is further contended that the instructions given on the subject of insanity were erroneous because the court did not tell the jury that the “test of criminal responsibility — for an act which is declared to be a crime is fixed at the point where the accused has the mental capacity to distinguish between right and wrong as applied to the particular act, and to understand the nature and consequences of such act.” On this subject the court gave the following instructions:

“ (5) A sane person is a person who has sufficient knowledge and understanding to know right from wrong, and to comprehend and understand the consequences of his act; and an insane person in law is a person who has not the mental capacity; by mental disease or otherwise, to know and understand right from wrong, and to comprehend and understand the consequences of his own acts.
“(6) And in this connection you are instructed that, if the defendant at the time of the shooting had sufficient mind and understanding to know right from wrong regarding the particular act, and was able to comprehend and understand the consequences of such act, the law recognizes him as sane, and holds him responsible for such act.
“(7) And in this connection if you should find beyond a reasonable doubt that the defendant took the life of Whit Hyden as charged in the information, and that at the time of such commission he knew and understood that it was wrong to take his life, and was able to comprehend and understand the consequences of such act, then in that event it will be your duty to find the defendant guilty of murder as charged in the information, unless you find him guilty of manslaughter, or acquit him, under other instructions herein given.
"But, on the other hand, if the defendant was not able to know that the act of taking his life was wrongful, and was not able to comprehend and understand the consequences of such act, then you should find the defendant not guilty.”' '

It is argued that by instruction No. 5, supra, "the court meant, and the jury could understand nothing else, but that must at all times be incapable of distinguishing between right and wrong, and at all times be unable to comprehend and understand the consequences of his acts.” That instructions No. 6 and 7, while attempting to cure the vice of No. 5, do not have that effect. Instruction No. 5 is incomplete. Instructions No. 6 and 7 supplement No. 5, and when taken together, we think they correctly state the law of insanity applicable to the issue of this case under our statutes.

While in the case of Price v. State, 1 Okla. Cr. 358, 98 Pac. 447, this court said in effect that an erroneous instruction upon a material issue was not cured by a correct instruction upon the same question in another portion of the instructions, where sueh instructions are contradictory and inharmonious, it has never been held that an instruction, incomplete on a material issue, may not be supplemented byi other instructions on the same issue, not contradictory with it.

This court has repeatedly held that the instructions must be considered as a whole, and that if, when so considered, they are not misleading, and sufficiently cover the law of the ease, a conviction will not be set aside, even for misdirection in a particular paragraph of the charge'. Winston v. State, 16 Okla. Cr. 648, 185 Pac. 832. We find the charge in this case sufficiently comprehensive on the subject of insanity, and as favorable to the defendant as the evidence warrants.

Complaint is also made of certain remarks of the county attorney in closing the argument for the state. All the argument is not before us. Some of the remarks complained of appear to have been made in reply to argument advanced by defendant’s counsel, while others, we think, were in the nature of inferences clearly authorized by the evidence. When the entire argument on both sides is not before- the court, and the county attorney contends that his argument is in reply to, argument advanced by defendant’s counsel, and the trial judge overrules the objection to such argument, this court will not pass on the alleged error, unless the argument complained of constitutes a violation of some constitutional or statutory right of the defendant, as the presumption will be.indulged that the trial judge ruled that such argument was reply argument. The burden in this jurisdiction is upon the appellant to affirmatively show error in the rulings of the trial court. Error is not presumed. Killough v. State, 6 Okla. Cr. 311, 118 Pac. 620.

Further, it is the duty of appellant to bring before the court enough of the proceedings in the lower court to permit this court to pass safely and intelligently upon the questions presented. Butler v. State, 22 Okla. Cr. 241, 223 Pac. 193.

Finally, it is contended that the court erred in the admission of incompetent evidence in rebuttal. No authority is eited in support of this assignment, and the evidence complained of is not incorporated in the brief of counsel for defendant, as required by rule 7 (12 Okla. Cr. viii, 165 Pac. x).

In Klein v. State, 15 Okla. Cr. at page 360, 176 Pac. at page 414, this court said:

“Other alleged errors are complained of. Matters are. asserted to be prejudicial to this defendant in the brief without the citation of a single authority to support the same. Defendant was ably and energetically defended, in the trial court by the same counsel who represent him in this court, and we are inclined to believe that, if authorities had existed to support the numerous contentions relied upon for a reversal, the same would have been cited in the brief. The crowded condition of the docket of this court makes it practically impossible for this court to search the books for authorities to support assertions of error made in behalf of the appellant. The burden is upon the appellant, not only to assert that error occurred in the trial, but to support such assertions by both argument and authority.”1

The evidence is amply sufficient to sustain the verdict and judgment. The defendant was ably defended in the court below, and that a verdict of manslaughter, instead of murder, resulted is no doubt attributed to the untiring efforts made by counsel in behalf of their client.

Defendant has reached an advanced age. Prior to this homicide he had borne a good reputation as a law-abiding citizen, and it is extremely unfortunate that at such period in life he should be called upon to respond to the law’s mandate. On the other hand, a human life has been taken without apparent justification or excuse, and a conviction for murder would have been sustained by the record, before us.

Finding no reversible error in the record, the law must take its course.

Judgment affirmed.

BESSEY and DOYLE, JJ., concur:


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    ALBERT CLARK v. STATE.
    No. A-3918.
    Opinion Filed Jan. 20, 1923.
    (211 Pac. 1056.)
    Appeal from District Court, Coal. County; J. H. Line-baugh, Judge.
    Albert Clark was convicted of rape, and he appeals.
    Affirmed.
    The Attorney General, for the State.
   PER CURIAM.

Albert Clark was convicted in the district court of Coal county of the crime of rape alleged to have been committed on one Violet McCloud, a female of the age of 14 years, and not the wife of the said Albert Clark, on or about the 17th dayi of May, 1919. On a trial to a' jury in September, 1920, a verdict of guilty was returned, with punishment fixed at 10 years’ imprisonment in the state penitentiary. Judgment was rendered in conformity with the verdict on September 16, 1920.

Case-made and petition in error were filed in this court on February 14, 1921. The cause was submitted on the 14th day of March, 1922, at which time no appearance was made-by counsel representing the plaintiff in error to orally argue the cause. No brief has been filed in behalf of plaintiff in error.

Rule 9.of this court (12 Okla. Cr. viii, 165 Pac. x) provides :

"When no counsel appears, and no briefs are filed, the court will examine the pleadings; the instructions of the court and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment. ’ ’

An examination of the pleadings, instructions, and judgment and sentence discloses no prejudicial error, and the judgment is accordingly affirmed.


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    HARRY TOOTLE v. STATE.
    No. A-4115.
    Opinion Filed Jan. 20, 1923.
    (211 Pac. 516.)
    Appeal from County Court, Adair County; W. H. Martin, Judge.
    Harry Tootle was convicted of the offense of selling intoxicating liquor, and he appeals.
    Appeal dismissed, and cause remanded, with instructions.
    J. M. Lynch, for plaintiff in error.
    Geo. P. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an attempted appeal from a judgment of conviction rendered against the plaintiff in error, Harry Tootle, in the county court of Adair county on the 9th day of July, 1921.

Petition in error and case-made were filed in this court on the 3d day of November, 1921.

The Attorney General has filed a motion to dismiss the appeal because the same was not filed within the time allowed by law; the trial court not having extended the time for filing the appeal in this court beyond the 60 days allowed for taking appeals in misdemeanor cases as provided in section 2808, Compiled Statutes 1921.

The appeal in this ease should have been lodged in this court on or before September 8, 1921. An examination of the record discloses that the motion of the Attorney General to dismiss the appeal is well taken and must be sustained. Storey v. State, 17 Okla Cr. 237, 187 Pac. 508.

The attempted appeal is dismissed, and the cause remanded to the county court of Adair county, with instructions to enforce the judgment and sentence.


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    JOHN NORTHCUTT v. STATE.
    No. A-3877.
    Opinion Filed Jan. 20, 1923.
    (211 Pac. 521.)
    (Syllabus.)
    Appeal and Error — Failure, .to File! Brief or Argue — Scope of Review— In a homicide case, where the defendant appeals from a judgment of conviction, and no brief is filed or oral argument made, this court will examine the record and the evidence and, if no error prejudicial to the substantial rights' of the defendant is apparent, will affirm the judgment.
    Appeal from Superior Court, Okmulgee County; H. R. Christopher, Judge.
    John Northcutt was convicted of the crime of murder and sentenced to imprisonment for life in the state penitentiary, and appeals.
    Judgment affirmed.
    Eaton & Dick, for plaintiff in error.
    The Attorney General, for the State.
   MATSON, P. J.

This is an appeal from a judgment of conviction against the defendant, John Northcutt, for the murder of one Jim Lawrence. Upon a trial to a jury in the superior court of Okmulgee county, defendant was convicted of murder with punishment fixed at life imprisonment. On the 17th day of May, 1920, judgment was pronounced in conformity with the verdict rendered, and an appeal from such judgment was taken to this court by filing herein a duly authenticated ease-made, with petition in error attached, on the 11th day of November, 1920. The court has granted extensions of time in which to file brief, to counsel for the defendant,, before and after the cause was submitted on March 8, 1922. No brief, however, has1 been filed in behalf of this defendant, nor was any appearance made at the, time the cause was submitted to present to this court an oral argument.

The court has held:

“In a homicide case, where the defendant appeals from a judgment of conviction and no brief is filed or oral argument made, this court will examine the record and the evidence and, if no error prejudicial to the substantial rights of the defendant is apparent, will affirm the judgment.” Lewis v. State, 12 Okla. Cr. 357, 157 Pac. 271.

The evidence discloses that the homicide was committed on a public highway about a mile west of the town of Kusa, in Okmulgee county, Okla., on the 23d day of November, 1919, which was Sunday. The question for the jury on the evidence was whether the act was justifiable in self-defense, as claimed by the defendant, or murder as testified by the state’s witnesses.

We do not deem it necessary to give a synopsis of the evidence; suffice it to say, that the testimony of the state’s witnesses is amply sufficient to support the verdict and judgment, while the unsupported testimony of the defendant would tend to justify him. The weight of the evidence and the question of the credibility of the witnesses was solely for the jury’s determination. This court will not reverse a judgment of conviction merely because of conflict in the evidence.

The instructions cover the law of the case as applicable to the evidence; the trial judge giving several instructions on the law of self-defense which would have authorized a jury to acquit the defendant had they believed the defendant’s testimony, or if the same. created a reasonable doubt of his guilt.

After, a careful examination of the information, the plea, the minutes of the trial, the verdict, the judgment and sentence, and the evidence, the conclusion is reached that no error prejudicial to the rights of the defendant is apparent, and that the defendant was fairly trie'd and properly convicted.

The judgment is therefore affirmed.

BESSEY and DOYLE, JJ., concur.


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    J. W. JENNINGS v. STATE.
    No. A-3631.
    Opinion Filed Jan. 20, 1920.
    (211 Pac. 89.)
    Appeal from District Court, Alfalfa County; J. C. Rob-berts, Judge.
    J. W. Jennings was convicted of bigamy, and he appeals.
    Reversed and remanded, with directions to dismiss.
    Titus & Talbot, for plaintiff in error.
    The Attorney General and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, J. W. Jennings, was convicted of the crime of bigamy and sentenced to serve a term of two years imprisonment in the state penitentiary. The information charges:

‘ ‘ That the said J. "W. Jennings on the 26th day of March, A. D. 1918, instituted in the district court of the county of Garfield, state of Oklahoma, which court then and there had jurisdiction in the premises, an action against Quintilla Jennings,, who was then, and there the lawful wife of the said J. W. Jennings, by which action the said J. W. Jennings then and there sought to procure a decree of divorce, dissolving and setting aside the bonds of matrimony then existing .between the said J. "W. Jennings and Quintilla Jennings, and did on the said 26th day of March, 1918, procure a decree of divorcement duly rendered in said action by said district court of Garfield county, Okla., so instituted as aforesaid by said J. W. Jennings against Quintilla Jennings, which, said decree was dated on the 26th day of March, 1918, by which said decree of divorcement the bonds of matrimony theretofore existing between said J. W. Jennings and Quintilla Jennings, was set aside and annulled, but it is expressly provided that said decree of divorce shall not become operative and take effect until six months from the date thereof; and that there-afterwards, to wit, on or about the 30th day of March, A. D. 1918, in the county of Jackson, and the state of Missouri, and within six months from the date of the decree of divorcement thereof, the said J. W. Jennings did 'then and there unlawfully, willfully, and feloniously marry and take to wife one Carrie Hinds, a person other than the said wife of J. W. Jennings, and to her, the said Carrie Hinds, a person other than the wife of J. W. Jennings, was married, within six monthsi from the date of-divorcement, as aforesaid, and that thereafterwards, to wit, on or about the 17th day of May, A. D. 1918, in the said county of Alfalfa and state of Oklahoma, the said J. W. Jennings and Carrie Hinds, a person other than his wife, and within six months from the date of divorcement, did cohabit and live together as man and wife; contrary to,” etc.

•• Upon arraignment a demurrer to the information was interposed on the ground:

. “That the facts stated do not constitute a public offense; that the information contains facts, which if true, would constitute a legal justification and excuse of the offense charged.”

The overruling of the demurrer is assigned as error.

The prosecution in this case was based on section 4971, Rev. Laws 1910, which provides in part,, as follows:

“It shall be unlawful in any event for either party to such divorce suit to marry any other person within six months from the date of the decree of divorcement. * * * Any person marrying contrary to the provisions of this section shall be deemed guilty of bigamy, and such marriage shall be absolutely void.”

The precise question here - presented was passed on in the case of Wilson v. State, 16 Okla. Cr. 471, 184 Pac. 603, wherein it is held:

"The jurisdiction of a prosecution under such statutes is in the county where the second marriage takes place; and held, further, where one of the parties to such decree, within the prohibited period of six months, marries another person without the state, and subsequently returns and cohabits with such person in this state, the subsequent cohabitation not being of the gist of the offense defined by said statute, there is no jurisdiction to prosecute thereunder in this state.”

For the reason stated in the opinion in the Wilson Case, the judgment is reversed, and the cause remanded, with direction that the prosecution be dismissed.


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    HENRY WEVER v. STATE.
    No. A-4043.
    Opinion Filed Jan. 24, 1923.
    (211 Pac. 1062.)
    (Syllabus.)
    1. Robbery — Evidence Insufficient to Sustain Conviction. — In a prosecution for robbery, held, that the evidence is not sufficient to support the verdict and judgment of conviction.
    2. Evidence — No .Conviction on Uncorroborated Testimony of Accomplice. — To allow a conviction to stand upon the testimony of an accomplice, uncorroborated by other evidence tending to connect) the defendant with the commission- of the offense charged, would be in direct violation both of the letter and spirit of section 2701, Comp. St. 1921. There cannot be a conviction unless there is proof of substantial facts tending to connect the defendant with the "commission of the offense, aside from and without, the aid of the accomplice testimony.
    Appeal from District Court, McCurtain County; G. M. Barrett, Judge.
    Henry Wever was convicted of robbery, and he appeals.
    Reversed.

      Jeff D. McLendon, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Henry Wever, appeals from a conviction in the district court of McGurtain county on a charge of robbery and a resulting sentence in accordance with the verdict to imprisonment in the penitentiary for a term of five years. The information jointly charged the said Henry Wever and Len Woods and John Smith with the crime of robbery, committed in said county on the 30th day of July, 1919, by making an assault upon one B. Powell with certain guns, and by force and fear taking from his presence the sum of $2,335, the property of the Bank of Millerton, of which said bank B. Powell was cashier.

The defendants Len Woods and John Smith upon their arraignment entered pleas of guilty, and were duly sentenced. Before the trial of this defendant, John Smith escaped from the penitentiary, and a few days later was killed in an attempt to again rob the Bank of Millerton.

The evidence shows that the Bank of Millerton was robbed on the morning of the date alleged by Len Woods and John Smith. About 10 days after the robbery, defendant. Wever went to Bismark and told L. A. Neese that two men came ,to his house the morning before the robbery and had breakfast, and by their description he thought they were the men that robbed the Millerton bank; that he thought they came from Daugherty. Mr. Neese informed the county attorney and the sheriff. The next day defendant Wever, Neese, the county attorney, and sheriff of McCurtain county went to Sulphur. On defendant Wever’s statements the sheriff of Murray county had arrested Len Woods and John Smith, and they were in the Sulphur jail. Defendant Wever said he did not want the prisoners- to see him.- The prisoners were brought out while defendant looked at them from a window in the second story of the courthouse. He then stated that they were the men that had breakfast at his place. The defendant Wever had a small piece of paper, on which was written, “Mary Woods, Daugherty,” and' told Mr. Neese that John Smith left this with him, and told him if Earl Holman ever came there to give him this note. Earl Holman had been convicted of bank robbery.

The defendant Len Woods was brought from the penitentiary, and testified in substance as follows:

My partner, Johnnie Smith, and me came from Daugherty on the 28th day of July. We got off the train at Millerton; then we went back to Valliant, got something to eat in a store, and went on north to Yalliant and .stayed all night1. The next day we tried to get some horses off of the range and failed. My partner heard that Mr. Wever lived near there. The next morning we walked to his house. My partner told the lady we wanted to see Mr. Wever. Mr. Wever came out, and told us to come in. We sat down on the porch. I was sitting with my back to his wife. I guess she saw my gun. She went in and motioned for him to come in. He went in and eame back to the door with his gun in his hand, and told us if we were going to eat there we would have to give up our guns. We gave him our guns; then went off and talked to him; he asked us why we came to him. We told him Mr. Flowers, his brother-in-law, sent us to him, and we left with him a note with my sister’s address, “Mary Woods, Daugherty.”1 My partner said “We are on the scout, and we are going to pull off a little job down here, and we want two good horses,” and asked him if he would get the horses for us, and that we would pay him for his trouble. Wever said he would. We had breakfast and dinner there, and about 2:80 we went down in the brush. He told us where to wait for him. That evening he met us and said he would get the horses at the Cypress schoolhouse, where a church meeting was going on. We went on, and stopped about a couple of hundred yards from the church. He went on and returned with the horses. He said, “If you boys-want me to go with you, I can put something over my face and go along.” My partner told him that we did not need him; we told him we would pay him $300 for the horses. He told us to turn the horses loose when we got through. After robbing the bant we went a piece from Millerton and turned the-horses loose. We hid out in the brush until night, and we' got on a train at the water tank near Yalliant. It was about five miles from Wever’s house to where we got the horses.. We never did see Wever after we took the horses from him. We were at his place on, the 29th day of July.

The evidence further shows that two horses were stolen, at the Cypress schoolhouse from persons attending the meeting-there that night, and that these horses were found by their owners on the range the day after the bank was robbed.

The testimony of the defendant and that of his witnesses-tended to show that he did not leave his home the evening-before the bank was robbed.

When the state rested the defendant demurred to the evidence on the ground that the testimony of the accomplice-was uncorroborated. At the close of the evidence the defendant renewed his demurrer on the same ground, and asked the court to direct the jury to return a verdict of acquittal.

One of the grounds of the motion for new trial and assigned as error is that the verdict is contrary to the law and te the evidence. No brief has been filed, but when the cause was called for final submission, counsel for the defendant in an able oral argument insisted that the evidences was insufficient to sustain the conviction, in this, that there was no evidence tending to corroborate the testimony of the accomplice. Our Code of Criminal Procedure provides:

“A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offénse, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.” Section 2701, Comp. Stats. 1921.

There is in this record! absolutely no evidence, corroborating the accomplice Len Woods, in the sense of the law.

In the case of Nichols v. State, 10 Okla. Cr. 12, 133 Pac. 256, it is said:

“To allow a conviction to stand upon the testimony of an accomplice not corroborated by any other evidence tending to connect the defendant with the commission of the offense would be in direct violation of both the letter and spirit of” the statute. Section 2701, Comp. Stats. 1921.

The requirement of the law in this respect cannot be satisfied by any amount of corroborative evidence which does not connect the defendant with the commission of the offense.

In Kirk v. State, 10 Okla. Cr. 281, 135 Pac. 1156, it is held:

“There cannot be a conviction unless there is proof of substantial facts tending to connect .the defendant with the commission of the offense aside from and without the aid of the accomplice testimony. ’ ’

Where a verdict in a criminal case is not sustained by the evidence, it is contrary to law, and if the evidence introduced by the state fails to incriminate the defendant, or is insufficient to show that he is guilty of the offense charged, It is not only the right, but the duty, of the trial court to advise the jury to return a verdict of acquittal.

The record shows that the conviction in this case is based solely on the testimony of Len Woods, an accomplice, and for this reason the demurrer to the evidence should have been sustained by the court.

We therefore conclude that the evidence is insufficient to warrant a conviction or sustain the verdict, because there is no sufficient corroboration of the accomplice. Wherefore the judgment of the trial court is reversed. ,

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