text:
    LAWRENCE HOWERTON v. STATE.
    No. A-9414.
    March 24, 1939.
    (88 P. 2d 904.)

      Falkenstine & Fisher, of Watonga, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Nelson Crow, Co. Atty., of Watonga, for the State.
   BAREFOOT, J.

Defendant was charged by information in the district court of Blaine county with the larceny of domestic fowls; was tried, convicted, and sentenced to serve a term of 60 days in jail, and pay a fine of $50.

It is contended that the evidence of the accomplices, who testified against defendant, is not sufficiently corroborated, and this constitutes the only error alleged in the case.

The evidence on behalf of the state revealed that defendant, Lawrence Howerton, and Pearl McDonald, Arthur Hoskins, and Ellsworth Wilson, were boys living in, or near, the town of Longdale, in Blaine county. They were from 15 to 18 years of age. That on the night of the 6th of May, 1936, Mrs. Irma Barnes, who lived northeast of Longdale, lost about two dozen chickens. The defendant and the other three boys were arrested and placed in jail charged with the theft of the same. Defendant was bound over to the district court, and the other three boys were used as witnesses for the state, upon a promise by the county attorney, they would not be prosecuted if they would make a statement and testify against the defendant, which they did.

The testimony of each of these three boys was that they were up in the barn at Ellsworth Wilson’s home on the night of May 6, 1936. That they left the barn and that one boy, Harvey McDonald, who was also there, said he was sick and did not go with them. That they went to the home of Irma Barnes, and there stole about two dozen chickens. That immediately after stealing the chickens they pulled off the heads of some of them and threw them away. One of the witnesses, Pearl McDonald, stated that they first took the chickens to Wilson’s home, and then went to the home of John Jester, and there cleaned some of the chickens and cooked them, and that they all stayed there until sunup the next morning.

The only testimony in the record which in any way corroborates the three accomplices of defendant was the testimony of Otto Carpenter, a deputy sheriff, who testified that on the morning of the 7th of May, 1936, he made an investigation at the Barnes’ home, and found the heads of some chickens, probably a dozen, somewhere near the Barnes home. And the testimony of Harvey McDonald, who testified for the state. On direct examination he stated he was at the barn at the Wilson home when the boys left. They did not tell him where they were going. He saw them climb down out of the barn. On cross-examination he stated the defendant said: “It was a pretty good night to get some chickens.”

This is all the testimony offered by the state to in any way corroborate the testimony of the three accomplices, except proof that the chickens were stolen. O.S. 1931, § 3071, 22 Okla. St. Ann. § 742, 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 offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof.”

In construing the above statute, this court has, upon many occasions, discussed the sufficiency of the evidence to corroborate an accomplice. In the following cases the evidence was held insufficient under the statute: Flynn v. State, 10 Okla. Cr. 41, 133 P. 1133; Thompson v. State, 9 Okla. Cr. 525, 132 P. 695; Head v. State, 9 Okla. Cr. 356, 131 P. 937, 44 L.R.A., N.S., 871; Key v. State, 38 Okla. Cr. 169, 259 P. 659; Finchum v. State, 40 Okla. Cr. 192, 267 P. 688; Henson v. State, 53 Okla. Cr. 139, 8 P. 2d 692; Wever v. State, 22 Okla. Cr. 414, 211 P. 1062; Rogers v. State, 57 Okla. Cr. 294, 48 P. 2d 344; Kirk v. State, 10 Okla. Cr. 281, 135 P. 1156.

In the following cases the evidence was held sufficient: Rice v. State, 60 Okla. Cr. 398, 64 P. 2d 1240; McLaughlin v. State, 18 Okla. Cr. 627, 197 P. 717; Hendrix v. State, 8 Okla. Cr. 530, 129 P. 78, 43 L.R.A. (N.S.) 546; Bond v. State, 54 Okla. Cr. 39, 14 P. 2d 425; Varner v. State, 42 Okla. Cr. 42, 274 P. 43; Moody v. State, 13 Okla. Cr. 327, 164 P. 676; Underwood v. State, 36 Okla. Cr. 21, 251 P. 507; Hendrix v. State, 22 Okla. Cr. 230, 210 P. 734.

In the case of Rogers v. State, above cited, it was said [57 Okla. Cr. 294, 48 P. 2d 346] :

“ ‘The corroborative evidence must of itself, and without the aid of the testimony of the accomplice, tend in some degree to connect the defendant with the commission of the offense; and independent evidence merely consistent with the main story is not sufficient corroboration if it requires any part of the accomplice’s testimony to make it tend to connect the defendant with the crime.’
“ ‘There must be some evidence, which of itself, and without aid from the accomplice’s testimony, tends to connect the defendant with the offense committed.’
“ ‘It is not sufficient corroboration to prove that the crime was committed in the manner described by the accomplice, but his testimony must be corroborated as to the particular defendant.’
“ ‘It is not sufficient for this purpose merely to connect the defendant with the accomplice, or other person participating in the crime, but evidence, independent of the testimony of the accomplice, must tend to connect him with the crime itself, and not simply with its perpetrators.’
“ ‘The corroborating evidence may be sufficient although by itself slight, but it is not sufficient if it merely tends to raise a suspicion of guilt.’ 1 Enc. of Ev., pp. 104, 105, 106, and 108, and cases cited.”

From these different cases it may be determined that in accordance with certain general well-defined propositions of law stated in the different opinions, each case stands or falls on the particular testimony of that case. In the case at bar the corroboration, if it could be called that, is of the very slightest. The state made hardly any effort to secure the testimony of any witness to corroborate the evidence of the accomplices, but relied almost wholly upon their testimony. The record reveals several instances where by a little effort testimony might have been secured that would have either corroborated the accomplices, or would have exonerated defendant. Certainly an effort should have been made to secure this evidence to the end that justice might prevail.

In the first place each of the accomplices was taken before the county attorney and promised complete immunity if he would testify for the state and against the defendant. Statements were taken in writing from him and he signed the same. The county attorney, of course, had a right to do this if he saw proper so to do. One of the accomplices, Pearl McDonald, testified that after the chickens were stolen they were taken to the home of John Jester, where they were dressed, and a part of them cooked the next morning. He testified that all four of the boys stayed all night there. He is corroborated in this statement by Arthur Hoskins. However, Ellsworth Wilson testifies he went home, and the other boys left to go to Jester’s place, but that he did not go with them but remained at his own home. He also testified that he remained at the car at the time the chickens were stolen and that it was a quarter of a mile distant. Pearl McDonald, on being recalled, testified that he did not stay at the car, but went with them at the time the chickens were stolen.

Some of the witnesses testified that both Mr. and Mrs. Jester were at their home when the chickens were cooked on the morning of the 7th of May. The defendant placed Mr. Jester on the stand and he testified that the boys did not come to his home on the night of the 6th of May, or any other time. That he was well acquainted with several of them. That no chickens were brought there by anyone, nor were any dressed or cooked there. He testified that the sheriff came to see him soon after the boys were arrested, and he told him the same as he now testifies.

Leon Hunt, his stepson, whom some of the accomplices testified to seeing, and who lived in close proximity to the Jester home, testified that he never saw any of the boys there at the time or at any other time. While this witness was on the stand, the county attorney, on cross-examination, asked him this question: “Q. The next morning, didn’t you take some of these chickens and give them to a woman by the name of Lucile Shaw, and state that is where you got them? A. No, sir.” This question would have been proper, had the county attorney afterwards produced the witness Lucile Shaw and she had substantiated what he said, but no effort was made to place her on the witness stand. While it was true that the court afterwards told the jury that this evidence was withdrawn from their consideration, and by reason thereof this would not alone be reversible error, yet it will at once be seen that it was damaging to defendant, especially in a close case like this.

We have carefully reviewed the record and it does not appear that there was sufficient corroboration of the three accomplices in this case, and especially in view of the testimony of Mr. Jester and Leon Hunt that these boys did not come to his home as they testified they did. It is not necessary that the corroborative evidence cover every material point in the accomplice’s testimony, but it must be of some substantial fact or facts tending to connect defendant with the crime. It may even be proved by circumstantial evidence.

It may be that defendant was guilty of the crime charged, but under the law it was the duty of the state to corroborate the accomplices in the manner provided by law. This it failed to do.

For the reasons above stated, the judgment of the district court of Blaine county is reversed.

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


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    J. T. GREEN, JR., v. STATE.
    No. A-9402.
    March 24, 1939.
    (88 P. 2d 907.)

      Robert N. Allen and Newman & Phillips, all of Durant, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and B. W. Carter, Co. Atty., of Durant, for the State.
   BAREFOOT, J.

Defendant was charged with the crime of murder in Bryan county, was convicted of manslaughter in the first degree, and his punishment was assessed by the court at fifteen years in the penitentiary, and he has appealed.

The charge in this case arose out of a collision of an automobile driven by defendant and a motorcycle being ridden by Robert Carter on the streets of the city of Durant, Bryan county, on the 5th day of March, 1936, as a result of which the said Robert Carter had his leg broken and the same was amputated on the 10th day of September, 1936, and he died soon thereafter from infection, as a result of said injury.

Defendant assigns as error the giving of two instructions, the first being instruction No. 18, which was as follows:

“You are instructed, if you find from the evidence or entertain a reasonable doubt thereof, that at the time of the alleged act, the defendant was not under the influence of intoxicating liquor, but was seized with an epileptic fit at the time of the act alleged, that caused the death of Robert Carter, then in that event it would be your duty to find defendant not guilty.”

And second, a part of instruction No. 16, which was as follows:

“If you entertain a reasonable doubt as to whether or not the defendant is guilty of the crime of murder, then you will next inquire as to whether defendant is guilty of manslaughter in the first degree.”

Under the many decisions of this court all of the instructions will be considered, and if they fairly present the issues in the case to the jury, the judgment of the court will not be reversed. Updike v. State, 9 Okla. Cr. 124, 130 P. 1107; Sherman v. State, 19 Okla. Cr. 269, 200 P. 262; Alvarado v. State, 38 Okla. Cr. 360, 261 P. 983; Evans v. State, 55 Okla. Cr. 157, 26 P. 2d 767.

The defendant, in the trial of the instant case, was making the defense that defendant, at the time of the collision, was subject to epileptic fits, and that he had one at that time. When the evidence in the case had been finished, counsel for defendant immediately asked the court orally to instruct the jury:

“That if they find and believe from the evidence that at the time of the collision the defendant was irresponsible by reason of a epileptic seizure and was not conscious and knew nothing about the situation, that he could not be guilty of any offense under the charge.”

No written instructions were presented by counsel to the court. The court evidently, in compliance with the request of defendant, gave instruction No. 18, above quoted. It is now insisted that this instruction forced the jury to find that defendant was not drunk before they could consider his defense of epileptic seizure. We do not think the jury would so construe this instruction, especially in view of the evidence offered in the case. This instruction, as well as others to which no exceptions were taken, was not as skillfully drawn as they might have- been, but when carefully read we do not think they were prejudicial to the rights of the defendant. They were as favorable to him as the facts warranted. We do not think this instruction took away from defendant the question of reasonable doubt as applied to his defense, nor did it place upon him the burden to prove “he was drunk beyond a reasonable doubt”. Under the holdings of this court, it was the duty of defendant to have presented a written instruction to the court setting forth his defense in concise language if he did not think the instructions given by the court fully presented his defense. Lumpkin v. State, 5 Okla. Cr. 488, 115 P. 478; Merriott v. State, 18 Okla. Cr. 247, 194 P. 263.

The contention that the court erred in giving that part of instruction No. 16, above quoted, cannot be sustained. This or similar instructions in various terms have been approved by this court in many cases. The contention that the court, by this charge “simply told the jury that if the defendant was not guilty of murder, then he would be guilty of manslaughter in the first degree”, is not borne out by a careful reading of the instruction. It simply says: “If you entertain a reasonable doubt as to whether or not the defendant is guilty of the crime of murder, then you will next- inquire as to whether defendant is guilty of manslaughter in the first degree.” This same instruction could have no doubt been given in different language, and the word “consider” could have been used instead of “inquire”. But in our opinion there was no error in the charge as above given that would justify a reversal of this case for that reason.

It is next contended that the court erred in what defendant termed the giving of oral instructions. This error is based upon the fact that after the case had been submitted to the jury they returned into open court, and the following proceedings were had:

“By Mr. Newman: We want to except to the receiving and filing of the verdict for the reason the jury returned into open court and advised the court they were unable to agree on the punishment — By the Court: Let the record show that the jury came into open court and advised the court that they could agree on a verdict, but were unable to agree on the punishment and then the court submitted to them a form of verdict to be used if they so desired. By Mr. Newman: And the defendant objected to same and the court overrules the objection and allows defendant an exception, and thereupon the jury returned a verdict of guilty of manslaughter in the first degree without assessing the punishment and left the punishment to the court and the court permitted the verdict to be filed to which the defendant excepts and exceptions are allowed. By the Court: Your objection is overruled. By Mr. Newman: Exception.”

And at the time of the hearing of the motion for new trial, the following proceedings were had:

“By the Court: I wrote out a blank verdict and handed it to them. They came in and said they could not agree on the punishment. I didn’t instruct them at all. By Mr. Newman: The jury came into open court and advised the court they could not agree on the punishment and in reply to that the court wrote out a verdict finding the defendant guilty of manslaughter in the blank degree — By the Court: Being unable to agree on the punishment — By Mr. Newman: And the jury returned to the jury room after being handed said verdict by the court and then brought in a verdict finding the defendant guilty of manslaughter in the first degree — did the jury (addressing the court) indicate to the court at the time they came in with reference to the punishment whether they found the defendant guilty or not guilty of murder? By the Court: They did not. These instructions given have been approved by you and have been used for the past fifteen or twenty years and you used them and I have used them. By Mr. Carter: I thought one of the attorneys was here. I remember Mr. Allen being here. By Mr. Allen: I wasn’t in here. By the Court: It does not make any difference whether they were in the court room or not. The court can’t hold the jury and go out and look up the attorneys in the case. They are supposed to stay in here. The defendant was in the court room. The motion for new trial will be overruled.”

From the above record it appears that the jury returned into court and informed the court that they could agree on a verdict but were unable to agree on the punishment, and the court submitted to them a form of verdict to be used if they so desired. The record does not fully show just what this verdict was. The court having submitted, under his instructions, the question of murder, manslaughter in the first degree, and manslaughter in the second degree, it is reasonable to presume that the jury, when it first retired, was furnished with blank forms of verdict covering each of these three degrees. It is also reasonable to presume that when the jury returned into court and announced that they could agree upon a verdict, but were unable to agree upon the punishment, the court then wrote into the manslaughter verdict the words: “Being unable to agree upon the punishment recommend to the court to assess the same”. It is reasonable to presume that this was the case, for these very words appear in the verdict returned by the jury. Under the Oklahoma law they had a right to do this as provided by Oklahoma Statutes 1931, sec. 3108, Okla. St. Ann. Tit. 22, sec. 927, which is as follows:

“Where the jury find a verdict of guilty, and fail to agree on the punishment to be inflicted, or do not declare such punishment by their verdict, the court shall assess and declare the punishment and render the judgment accordingly.” There is nothing in the record to show that when the jury returned into court it had agreed upon a verdict of guilty of murder, or of guilty of manslaughter, except that the court states nothing was said as to this. The verdict being left blank as to the degree of manslaughter, and the jury having written in the blank the word “first” is a strong conclusion that it was the intention of the jury to find defendant guilty of manslaughter in the first degree. But the record further shows that the attorneys representing defendant were not present at the time the jury were returned into court and the instruction was changed, but the defendant was present. With reference to the absence of the attorneys for defendant, the court said:
“It does not make any difference whether they were in the courtroom or not, the court can’t hold the jury and go out and look up the attorneys in the case. They are supposed to stay in here. The defendant was in the courtroom.”

Under the circumstances and the record in this case this may not have been reversible error, but the court should not have made this statement. The proper procedure for the court to have pursued, when the jury returned into court, was for the court to see that not only the defendant was present, but also that his lawyers were present, so that all his rights might be properly protected. While the court did not give any instructions to the jury, yet the defendant cannot be expected to protect his interests, and no one can do so but his lawyers. It is the best practice for the court to permit a little delay than to take steps which might deprive the defendant of his legal rights. It is true that lawyers should keep in close touch with the court while the jury is deliberating. No doubt the lawyers were close at hand and could have been very easily reached, but from the remarks of the court, he seemed to think that they should be present in the courtroom and that no effort should be made to secure their presence. The courts owe to the attorneys representing a defendant that same high respect which he expects and is entitled to from the attorneys.

A full and complete discussion of the principles here involved are discussed by this court in the case of Raab v. State, 62 Okla. Cr. 361, 71 P. 2d 773. It is, therefore, unnecessary to further discuss the same, as many of the leading cases are cited and quoted from, in that opinion.

The facts in the case at bar were that defendant was 27 years of age, and lived with his father at, or near, Caddo, in Bryan county. That on the 5th day of March, 1936, he came to Durant in an automobile, his cousin coming part of the way, but getting out of the car before he came to town. His purpose in coming was to bring a sack of corn to exchange at the mill for chops. It was late in the evening when he arrived. He had started to his home, through the streets of the city of Durant about 6 p.m., and was going in a northerly direction. The deceased, Robert Carter, and a companion were riding a motorcycle, going in a southerly direction on said streets. The evidence on behalf of the state, and by many witnesses, was that the deceased was on the right or west side of the street, and that defendant’s car was seen wobbling from side to side of the pavement, and struck the motorcycle on which deceased was riding, and deceased was injured. The evidence was that the collision occurred on the side of the street on which deceased was riding, his leg being broken so that the bone protruded. He was taken to the hospital, where he remained until the 16th day of July, 1936. He returned to the hospital on September 10, 1936, when his leg was amputated, and he died a few days later as a result thereof.

When defendant’s car struck the motorcycle, he went on for some distance and ran into a gasoline pump. When arrested a few minutes later he was standing in front of his car with the crank in his hands, attempting to crank his car. Many witnesses testified he was drunk, and among them four officers. When he was placed in jail he was in a drunken stupor for several hours.

Defendant testified that he had not drunk any intoxicating liquors of any kind. Several witnesses testified to having seen him some time prior to the collision, and that he did not appear to be drunk. He also testified that he had a flat tire and this was the reason of his car swerving, and that he was turning into a filling station at the time of the collision. The evidence also revealed that the left front tire on the car was flat the day following the collision. As to whether this occurred prior to or at the time of the collision, the record does not show. There was also testimony that defendant was subject to epileptic fits, and that certain other members of his family had been subject to them. Others testified that he showed no signs of that nature at the time of the collision. Defendant also testified that he had been convicted in a liquor case, but had not yet served his sentence.

The evidence on the part of the state was sufficient to justify the jury in returning a verdict of guilty against the defendant.

From a review of this record, we are of the' opinion that justice would be subserved by reducing the punishment assessed in this case by the court at 15 years in the penitentiary, to seven years, and as so modified, the judgment of the district court of Bryan county is affirmed. .

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


author: DOYLE, P. J.

text:
    PAUL C. GOODART v. STATE.
    No. A-9383.
    March 24, 1939.
    (88 P. 2d 911.)

      D. D. Archer and Paul R. Dillard, both of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam S. Lattimore, Asst. Atty. Gen., and Lewis R. Morris, County Attorney, and John F. Eberle, Asst. Co. Atty., both of Oklahoma City, for the State.
   DOYLE, P. J.

This appeal is from a judgment of the district court of Oklahoma county, rendered upon a verdict convicting the defendant of the crime of wife and child abandonment, but the jury failed to agree upon the punishment. On March 6, 1937, motion for new trial was denied. Thereupon the court sentenced the defendant to be confined in the state penitentiary at McAlester for the term of seven years.

The information, filed in the district court of Oklahoma county February 6, 1937, charges that in said county on the 19th day of January, 1937, Paul C. Goodart “did then and there willfully, unlawfully and feloniously commit the crime of wife and child abandonment in the manner and form as follows to wit: That is to say, the said defendant, in the county and state aforesaid, and on the day and year aforesaid, then and there being, did then and there willfully, unlawfully, wrongfully and felon-iously desert and abandon his lawfully wedded wife, to wit: Mrs. Paul C. Goodart, and did desert and abandon his two minor children under the age of 15 years, to wit; Roy Goodart of the age of seven years and Kenneth Goodart of the age of five years; said desertion and abandonment on the part of the said defendant left said wife and children in destitute and necessitous circumstances, and did willfully neglect and refuse to maintain and provide for said wife and children, contrary to,” etc.

In order to present the questions raised as to the sufficiency of the evidence, and exceptions relating to rulings of the court on the admission of evidence, and by exceptions to instructions, we will briefly state the testimony.

The state called four witnesses. Marie G. Goodart, wife of the defendant, testified that they were married September 2, 1928, at Winfield, Kan.; that they have two children, Roy, now seven years old, and Kenneth, now five years old; that in 1933, when they were living in Kansas City, her husband left her, leaving them dependent upon the county until her brother came to Kansas City five months later and they returned to Oklahoma City with him; that about Christmas that year her husband came to Oklahoma City, and was placed in jail for nonsupport; he promised to support his family, and he was discharged, and then he lived with her for three months, when he left them again; that was in 1934; that she did not know where he was until November, 1936, when he sent her $10; that when he left her in Kansas City he did not leave any money with her; that they were living in a two-room kitchenet and the county paid the rent for two months before she returned to Oklahoma City; that on her return to Oklahoma City she lived with her brother, her mother and her grandmother, and for six months her brother provided food and clothing for her and her children, then the provident association assisted them one month; that her husband filed a divorce action against her in April or May, 1935, and the court ordered him to pay $50 a month for the support of the children; that the first month the defendant paid $20 or $25 into court, then he disappeared and she did not hear any more about him for more than a year. That for 18 months the provident association gave her $3 a month for the support of the children, then the county welfare board gave her groceries; that her brother Frank helped her and she worked for the Y.W.C.A. two or three days a week as elevator operator and received $2 a day.

Frank Huff testified that he lives in Oklahoma City and supports his mother and grandmother who live with him; that following the marriage of his sister they were housekeeping in Oklahoma City for about two months, then they moved to Kansas City, Mo., about three years later he found her and the children in destitute circumstances and paid for their transportation from Kansas City to his home in Oklahoma City, and supported them for about five months; that when the defendant returned to Oklahoma City he was placed in jail, that all this time the defendant’s wife and children were in destitute and necessitous circumstances.

Mildred Mench, of the United Provident Association, Oklahoma City, testified that she was acquainted with the defendant and his wife and produced the record of groceries, milk and clothing given to defendant’s wife and children, also rent paid and dates when given.

Pauline Krieger testified that she was a case-worker on the county welfare board of Oklahoma City; that Mrs. Goodart and her children were transferred from the provident association to her in August, 1936, since which time, until February this year, they received $5 a month from the county fund for the support of the children.

As a witness in his own behalf the defendant testified that his age was 29 years; that he came with his folks to Oklahoma City in 1920, that he married his wife in 1929; that they went to Winfield, Kan., to be married and immediately came back and lived in Oklahoma City for two months, then they moved to Kansas City; that his first child was born there January 2, 1930, and his other child was born in October, 1932; that he remained in Kansas City until 1934, and supported his wife and family and paid the rent until his wife left Kansas City with the children; that he did not know why she left, or where she went until his father wrote that she was here; that when he lost his job he came here to see the babies, and when he went to see his wife she had him arrested and he was put in jail 30 days, then he signed an agreement, the case was dropped, and he went to live' with her; that she quarreled with him all the time and threatened to put a knife in his back, and kept an ice pick under her pillow, so he brought divorce suit, as the only way he could get away; that she got a court order for $60 a month and on a hearing the court cut it to $50; that he paid $25 and went to Kansas City, Mo., Memphis, Tenn., Dallas, then to Ft. Worth, Tex., and finally went to California; went to work there and sent his wife $10 of his first week’s wages. He contracted to go and work in the Sierra Mountains for $6.50 a day, with room and board, then wrote to his wife and asked her if she would come to him, and the reply was a warrant. He was arrested in Los Angeles and held five days before John Adams, deputy sheriff, came for him.

The foregoing statement is a sufficient answer to the contention made that the evidence is insufficient to support the verdict.

The facts admitted by the defendant himself show abandonment of his wife and children, and failure and neglect to support said children.

It is also urged that the court erred in admitting, over the defendant’s objections, incompetent testimony.

Counsel in their brief say:

“This point was that Mr. Goodart committed a specific crime in a detailed manner upon a certain date and within a defined jurisdiction.
“Can it be said that the voluminous testimony concerning the actions of the defendant years previously was confined to a point in issue as of January 19, 1937, upon which date an alleged offense was charged to the defendant ?”

There is no merit in this contention. The statute defines but one offense, that may be committed in different ways; the husband and father may by the same act abandon his wife without just cause, and minor child or children under the age of 15 years in destitute and necessitous circumstances, and fail to provide for either or both. If he does either or both, he has committed but one offense, and that offense continues until proper provision, to the best of his ability, is made for their adequate support.

In Allred v. State, 28 Okla. Cr. 13, 228 P. 788, it is said:

“The manifest purposes of this statute are twofold — • first, to make provision for the maintenance of abandoned wives and children, so that they may not become public charges on the state, and for humanitarian reasons; and, second, to punish those upon whom the moral and legal obligation for support rests when such person refuses or neglects to furnish appropriate support. This is a statute providing relief and punishment for the omission of a duty, as' distinguished from punishment for the commission of an illegal act.”

In Dyer v. State, 58 Okla. Cr. 317, 52 P. 2d 1080, 1084, we said:

“Although the language of the statute (§ 1830, 21 Okla. St. Ann. § 853) is ‘willfully neglect or refuse to maintain or provide for such child/ still it is not necessary for the state to provide that the father has wholly failed and neglected to fulfill his duty to support his child. The statute is violated, not only where there is a complete failure to support, but also where there is a partial failure. This neglect or refusal must be willful or negligent, and not a mere failure on account of inability.”

In the case of Dean v. State, 55 Okla. Cr. 356, 30 P. 2d 195, this court held:

“Abandonment and neglect or refusal to provide for a wife and minor children in violation of section 1830, O.S. 1931, 21 Okla. St. Ann. § 853, is in its nature a continuing wrong and begins and continues so long as there is a failure of the husband and father to perform his duty. A continuing dependency and neglect and refusal to maintain and provide vitalizes the offense, and the fact that the abandonment and neglect began more than three years before a prosecution is commenced affords no ground for the interposition of the statute of limitations.”

It is also urged that the court erred giving instruction No. 9, and in their brief say:

“To call to the jury’s attention that the defendant might, upon posting bond, and by recommendation of the trial judge obtain a parole from the Governor of the state, is reversible error.”

In the case of Cowley v. State, 65 Okla. Cr. 479, 88 P. 2d 914, opinion this day handed down, the precise question was discussed and passed upon, the conclusion arrived at and announced being adverse to the view contended for by defendant’s counsel in this case. The court held that said instruction did not work to the prejudice of the defendant, or deprive him of any substantial right, and the giving of said instruction did not constitute prejudicial error.

This court is not permitted to reverse a rightful judgment of conviction on the ground of misdirection of the jury, unless after an examination of the entire record it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right. Proc. Crim. O.S. 1931, § 3206, 22 Okla. St. Ann. § 1068.

Generally speaking, a wife is entitled to support at the hands of the husband, and both law and common humanity charge him with the duty of maintaining his own infant children.

It was to prevent and punish such outrages against humanity and the marriage obligation that the statute was enacted, and its force and effect should not be nullified by any nicety of construction.

We have carefully reviewed the remaining assignments of error, and we are convinced that none of them are well taken. We .see no reason to doubt that this conviction was justified by the evidence, and in our opinion the law has been vindicated in the judgment.

It is accordingly affirmed.

BAREFOOT and DAVENPORT, JJ., concur.


text:
    W. C. COWLEY v. STATE.
    No. A-9260.
    March 24, 1939.
    (88 P. 2d 914.)

      Paul Pugh, of Oklahoma City, and M. W. Pugh, of Marlow, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Lewis R. Morris, Co. Atty., and John Eberle, Asst. Co. Atty., both of Oklahoma City, for the State.
   DOYLE, P. J.

Plaintiff in error, W. C. Cowley, was convicted in the district court of Oklahoma county, on a charge of child abandonment, and was sentenced to confinement in the state penitentiary at McAlester for a term of ten years.

From the judgment he appealed by filing in this court on February 5, 1937, a petition in error with a duly certified transcript of the record attached, labeled, “Case-made.”

It appears from the record that the preliminary information was filed before Leo B. White, justice of peace, Oklahoma City justice district, April 17, 1936, charging: “that on the 17th day of April, 1936, and for two years prior thereto in Oklahoma county, Oklahoma, W. C. Cowley, did then and there willfully, unlawfully, wrongfully and feloniously, without justifiable or excusable cause, abandon and desert his legitimate children, under the age of 15 years, to wit: Trula Cowley of the age of 14 years and Elnora Cowley of the age of 11 years, and did wholly fail, refuse and neglect to contribute anything to their support, said desertion and abandonment on the part of the said defendant left the said children in destitute and necessitous circumstances, contrary to”, etc. The complaining witness, Mittye Cowley, being the former wife of the defendant.

On August 10th a preliminary hearing was held before said justice at which time it was ordered that the defendant be held to answer to the district court of Oklahoma county on the charge of child abandonment.

On August 20th the information was filed in district court.

On October 21, 1936, the case regularly came on for trial, leave was granted to withdraw the plea of not guilty and to file a demurrer on the grounds that the court did not have jurisdiction of the cause or of the defendant; and that the facts stated in said information do not constitute a public offense. Which demurrer was overruled. Exception allowed.

On October 21st the jury returned their verdict finding “the defendant, W. C. Cowley, guilty as charged in the information herein and fix his punishment at imprisonment in the state penitentiary for a period of 10 years.”

Motion for new trial was duly filed, and on October 30th overruled. Thereupon the court rendered judgment and sentence in pursuance of the verdict.

Notice of appeal was duly given and the court fixed the appeal bond in the sum of $2,500. The bond was given and approved November 2, 1936. On November 24th the court granted an extension of an additional 30 days to make and serve a case-made. On December 23rd the defendant filed his verified application for an order of the court directing that a case-made be prepared at the costs of the county, and the court after examining said application and hearing argument of counsel finds that said application should be denied. The same day the court made an order extending the time to prepare and serve a case-made for a further period of 30 days in addition to the time heretofore granted. On January 27, 1937, the court clerk certified “That the foregoing is a full, true and correct transcript of the record in the cause.”

The information alleges all the essential ingredients of the offense as defined by the Penal Code, O.S. 1931, § 1830, 21 Okla. St. Ann. § 853, and the demurrer thereto was properly overruled.

It is conténded that the trial court erred in denying the defendant’s application for a transcript of the reporter’s notes to be furnished at the expense of the county.

It is said in the brief of the plaintiff in error:

“We, respectfully submit that as the record before this court affirmatively shows that the defendant is a poor person, and unable to pay for a case-made; that he has no relatives or friends who will do so; that as the record in this regard stands uncontradicted, the trial court committed prejudicial error in refusing to order a transcript of the court reporter’s notes at the cost of the county.
“A review of the cases show several in which the court has used language to the effect that the granting or refusal of a case-made at the costs of the county rested in the sound discretion of the court.” Citing Harris v. State, 10 Okla. Cr. 417, 137 P. 365, 139 P. 846; Hutchins v. State, 13 Okla. Cr. 717, 167 P. 338; Hardin v. State, 28 Okla. Cr. 123, 229 P. 654; Young v. State, 33 Okla. Cr. 255, 243 P. 763, 765; Brogdon v. State, 38 Okla. Cr. 269, 260 P. 784; Lenora v. State, 51 Okla. Cr. 291, 1 P. 2d 832; Hembree v. State, 53 Okla. Cr. 79, 7 P. 2d 491; Reed v. State, 53 Okla. Cr. 391, 12 P. 2d 551.

In the instant case this court is of the opinion that the contention made is without merit.

The main question upon the trial of the case was the ability of the defendant to earn money for the support of his children, and the amount he earned. The fact that he was able-bodied, and working, was not disputed.

It appears that he was the owner of an automobile that he used in his business. The trial court who heard the evidence in the trial did not believe in the truthfulness of the affidavit, and so stated by his decision in the matter. Upon the hearing it appears that the defendant was not present, and was not put upon the stand to testify to his inability to pay for a transcript, he therefore could not be cross-examined.

Counsel for the state in their brief say:

“This was only another attempt by defendant, who by his own brief, admits his failure to meet the requirements of the order of the district court of this state requiring him to pay $15 a month support for his children in a divorce decree decided in Stephen county in 1930, to force some one else to assume his rightful financial burdens. It is an attempt on the part of the defendant to put the state of Oklahoma to all the expenses possible while he flaunts the orders of the district court with reference to support of his children, and says in his brief that the wife’s proper remedy is by contempt, (in a distant county of course and while she is busy working every day and cannot afford either a private lawyer to bring this action or bus fare to attend it) while he is out on appearance bond before the trial and an appeal bond after the trial, and hires his own lawyer and rides in his own automobile while his family is destitute.”

Under the next assignment of error counsel urge that the judgment should be reversed, because the court erred in giving instruction No. 9, as follows:

“You are instructed that, while it is a provision of law that any person convicted of the offense charged in the Information may by the Governor of the state be paroled on the recommendation of the trial judge in whose court he was convicted, upon said person entering into an undertaking in the form provided by the judge of said court, with two or more good and sufficient sureties, conditioned that the said defendant shall within ten days from the first of each month pay to the clerk of the court where he was convicted such amount as has been fixed by the court for the support of his minor children, in this connection you are instructed that in your verdict you shall only determine the guilt or the innocence of the defendant, and the period of time he shall serve as a penalty; and the question of the giving of bond for the payment of money to the said minor children and his parole by the Governor are questions of procedure that are not submitted to you herein. Notwithstanding this provision of the law, the defendant should not be convicted here unless the jury are satisfied, by competent evidence beyond a reasonable doubt, that he is guilty in manner and form as charged in the information.
“Given and excepted to by Def.
“Lucius Babcock, District Judge.”

To support the defendant’s contention that the giving of instruction No. 9 was prejudicial error, counsel cites, among others, the case of Bean v. State, 58 Okla. Cr. 432, 54 P. 2d 675, 676.

In the Bean Case it is said :

“The first error the court will consider is the eighth, in which the defendant insists that the court erred in giving instruction No. 12, for the reason that the instruction set forth is beyond the right of the court or the jury considering the guilt or innocence of the party on trial, and is based on a statute intended by the Legislature as a reward for good behavior while in prison, and should not be considered by the jury in fixing the punishment, and does not aid or assist at arriving at the guilt or innocence of the party on trial. * * *
“It is clear the enacting of the statute for commutation for good behavior was never intended by the Legislature to be considered by the jury in the trial of the defendant, on the question of his guilt or innocence, or the punishment imposed by the jury. The instruction complained of as error only goes to the question of the commutation of the defendant after he has been convicted and incarcerated.
“This court has many times held that it is not every erroneous instruction that entitles a defendant to reversal, and especially so as in this case, where the testimony clearly shows the defendant guilty of manslaughter in the first degree, the instruction opened the way for the jury, and perhaps did cause it to impose a greater sentence on the prisoner than it would have imposed had the instruction not have been given.
“Considering all the facts and circumstances in the case, and the fact of the testimony showing the guilt of the defendant of manslaughter in the first degree, we do not think that the erroneous instruction given entitles the defendant to have his case reversed. However, we believe the giving of the instruction caused the jury to impose a greater punishment on the defendant than it would otherwise have given, and that the judgment of fifteen years should be modified to seven years.”

Instruction No. 9 is a clear and concise statement of the law on the alternative punishment provided for in a child abandonment case, and the court therein states that:

“In this connection you are instructed that in your verdict you shall only determine the guilt or the innocence of the defendant, and the period of time he shall serve as a penalty; and the question of the giving of bond for the payment of money to the said minor children and his parole by the Governor are questions of procedure that are not submitted to you herein. Notwithstanding this provision of the law, the defendant should not be convicted here unless the jury are satisfied, by competent evidence beyond a reasonable doubt, that he is guilty in manner and form as charged in the information.”

However, in a prosecution for child abandonment we think the proper practice is for the court not to submit the question of the punishment to the jury unless request is made on the part of the defendant, and even then the question of the alternative punishment should not be given.

The court is firmly committed to the rule that an instruction improper and erroneous will not be held reversible error where it is manifest, on consideration of all the instructions given, the testimony in the case, and the verdict of the jury, that such an instruction did not work to the prejudice of the defendant, or deprive him of any substantial right.

Upon the record before us we are of the opinion that the giving of said instruction did not constitute prejudicial error.

The defendant maintains that the district court of Oklahoma county in this case was without jurisdiction. His counsel in his brief says, “We contend that the district court of Oklahoma county had no jurisdiction of this criminal proceeding. We find no case in Oklahoma in point. All of the cases in this state are where no provision is made as to support money in a divorce decree.” Citing and quoting from State v. Coolidge, 72 Wash. 42, 129 P. 1088. “That under the authority of this case there is no question but that the district court of Oklahoma county had no jurisdiction.”

This question has already been determined by this court against the defendant, in the case of Dyer v. State, 58 Okla. Cr. 317, 52 P. 2d 1080, holding that:

“A divorce decree, awarding custody of a minor child to the mother, does not destroy the relation between the father and his child. As to the child, his legal obligation remains the same. The divorce did not release him from any pre-existing natural, moral, or legal duty to support and educate and to provide for the future support of such child.”

In the opinion we said:

“It is said by some courts and textwriters that the primary object is to redress a public grievance by relieving the public from the burden of caring for a helpless child, or an indigent wife; while others take the view that these statutes, though criminal rather than civil, in kind, are in the final analysis really designed as a remedy for the benefit of the wife or the child, in addition to the remedies afforded by civil proceedings. State v. Langford, 90 Ore. 251, 176 P. 197, 201; People v. Malsch, 119 Mich. 112, 77 N.W. 638, 75 Am. St. Rep. 381; State v. Waller, 90 Kan. 829, 136 P. 215, 49 L.R.A., N.S., 588; 13 R.C.L. 1191. * * *
“The obligation of parents to support their offspring rests upon an entirely different foundation from that upon which the law bases the duty of the husband to support his wife. That obligation is at once legal and natural. It springs as necessarily from the law as from the primal instincts of human nature. Its consistent enforcement is equally essential to the well-being of the state, the morals of the community, and the development of the individual. Prolonged childhood is a condition of civilization as well as a product of conscience. The child, helpless in extreme infancy and required in the maturer years of its minority to obey the reciprocal duty of serving its parents, is not to be deprived of its natural and legal right of protection and support by its father, because of any family quarrel or of any agreement between husband and wife. It is not a party to divorce proceedings. It is not barred as to its rights by any decree therein. * * *
“Although the language of the statute (§ 1830) is ‘willfully neglect or refuse to maintain or provide for such child,’ still it is not necessary for the state to prove that the father has wholly failed and neglected to fulfill his duty to support his child. The statute is violated, not only where there is a complete failure to support, but also where there is a partial failure. This neglect or refusal must be willful or negligent, and not a mere failure on account of inability. * * *
“According to the great weight of authority and according to what we believe is the plain intent of our statutes, the fact that the mother alone or together with other persons furnished all the support needed for the child does not constitute good or sufficient cause for any failure or neglect by the father. Hunter v. State, supra; State v. Waller, 90 Kan. 829, 136 P. 215, 49 L.R.A., N.S., 588; 20 R.C.L. 623. * * *
“Generally speaking, a wife is entitled to support at the hands of the husband, and both law and common humanity charge him with the duty of maintaining his own infant child.
“It was to prevent and punish such outrages against humanity and the marriage obligation that the statute was enacted, and its force and effect should not be nullified by any nicety of construction.”

It is apparent from the record before us, and it follows from what has been said, and the authorities cited, that the assignments of error relied upon for a reversal of the judgment, are without merit.

Upon our review of the record and the briefs we are persuaded that the punishment imposed is excessive, and that the judgment should be modified by reducing the sentence.

It is therefore considered and adjudged that the judgment and sentence of the trial court be modified and the sentence reduced from ten years to confinement in the state penitentiary at McAlester for a term of seven years.

For the reasons stated, the judgment and sentence as modified must be, and it is, affirmed.

BAREFOOT and DAVENPORT, JJ., concur.


text:
    ROY TITUS v. STATE.
    No. A-9369.
    March 31, 1939.
    (89 P. 2d 375.)

      C. B. Leedy, for plaintiff in error. '
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Appellant Roy Titus and Charley Beam were jointly charged with the crime of larceny of a domestic animal, committed in Dewey county, on or about November 21, 1935. The information charged the facts as follows :

“That the said Charlie Beam and Roy Titus, persons at and within the said county and state and on the day and year aforesaid did unlawfully, willfully, wrongfully, stealthily and feloniously take, steal and carry away, without the consent and against the will of the owner thereof, certain domestic animal, to wit: One red white-faced cow, two years old, the same being the property of Arthur Hallmark, with the unlawful, wrongful and felonious intent then and there upon the part of them the said Charlie Beam and Roy Titus, and each of them, to convert the same to their own use and benefit, and to deprive the true owner thereof, contrary to” etc.

Upon his separate trial the jury returned their verdict as follows:

“We, the jury, drawn, impaneled and sworn in the above entitled cause, do upon our oaths, find the defendant, Roy Titus, guilty of the included offense of attempted larceny of a domestic animal as charged in the information, and assess his punishment at imprisonment in the state penitentiary for a term of nine months.”

Motion for new trial was duly filed and on January 29, 1937, overruled.

From the judgment and sentence an appeal was taken by filing in this court on July 22, 1937, a petition in error with case-made.

The questions presented by this appeal are the same questions determined in the companion case of Charley Beam v. State, 66 Okla. Cr. 14, 89 P. 2d 372, opinion this day handed down. It appears from the record that all the witnesses for the state in the Beam case were called and examined for the state.

The state also called Alva C. Shelton, who testified that he was fingerprint expert for the State Bureau of Criminal Investigation; that he had been engaged as a fingerprint expert for 11 years. Handed State’s Exhibit No. 7, being the axe found in the body of the dead cow, he stated he had made photographs of the fingerprints on the handle of the axe and developed the same by enlargement; that State’s Exhibit No. 6, fingerprints of the defendant, were enlarged by him. That the fingerprints on the handle of the axe and the fingerprints of the defendant, Roy Titus', were identically the same.

No testimony was given by the defendant, or any witness in his behalf, and both parties rested at the close of the case for the state.

The record shows that when the state rested a demurrer to the evidence was interposed, and the same was overruled. Exception reserved.

The Code of Criminal Procedure (St. 1931, §§ 3091-3097, 22 Okla. St. Ann. §§ 837, 911-916) in substance provide that a defendant may be convicted of the offense charged, or of any offense necessarily included within the charge, or of an attempt to commit the offense.

The evidence for the state established by direct testimony that the cow in question was shot and butchered in an attempt to take and steal the animal. The evidence bearing upon the question of the identity of this defendant as a participant in that attempt, while purely- circumstantial, was in our opinion sufficient to warrant a conviction.

It follows that the demurrer to the evidence was properly overruled.

Another ground urged for a reversal of the judgment is a variance between the verdict and the judgment.

The judgment of the court recites: “That the defendant, Roy Titus, is guilty of the crime of larceny as charged in the information.”

In the companion case we held:

“Where there is a variance between the verdict of the jury and the judgment of conviction it must appear from the record that such variance cannot be corrected without depriving the defendant of a substantial right, before a conviction will be set aside.
“Where a verdict of a jury assessing the punishment is in conformity with the law, the court must enter judgment and sentence in conformity to the verdict. Where there is a variance between the verdict of the jury and the judgment of the court, on appeal this court will remand the cause with direction to the trial court to render judgment and sentence in conformity to the verdict.” Citing numerous cases.

Upon the record before us it appears that all of the proceedings had in the trial court, up to and including the verdict of the jury, were without material error, and the same are approved.

It is therefore considered and adjudged that for the variance between the verdict of the jury and the judgment of the court, the case is remanded to the district court of Dewey county with directions to the trial court to correct its judgment and sentence to conform to the verdict of the jury, and the clerk of said court is directed to issue forthwith to the sheriff of said county a commitment in accordance with the judgment of the court as entered in conformity to the verdict of the jury.

BAREFOOT and DAVENPORT, JJ., concur.


text:
    HOBART ALEXANDER v. STATE.
    No. A-9426.
    March 31, 1939.
    (89 P. 2d 332.)

      George H. Jennings, of Sapulpa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Everett S. Collins, Co. Atty., of Sapulpa, for the State.
   BAREFOOT, J.

An information was filed in the district court of Creek county charging defendant with the crime of grand larceny. He was tried, convicted, and sentenced to serve a term of one year in the penitentiary, and has appealed.

The first assignment of error is: “The trial court erred in the admission of incompetent and prejudicial testimony.” Under this assignment of error, many parts of the evidence are discussed. We have carefully read the record, and also the authorities cited, and do not find that any error occurred which would be prejudicial to the rights of this defendant. As a matter of fact, the rulings of the court on the admission of evidence against the defendant were very fair, and the court was very careful not to permit the state to introduce any evidence against the defendant that was not admissible under the well-defined rules of evidence. It is, therefore, unnecessary to discuss in detail the various objections urged.

It is next urged that the court erred: “In overruling defendant’s demurrer to the evidence, and in overruling defendant’s motion for a directed verdict.” This assignment of error requires a review of the evidence. Defendant was charged with the larceny of many articles of machinery and tools constituting an oil well drilling outfit. The state proved that this was the property of Houston Brothers, a partnership, composed of L. W. Houston and W. A. Houston. That some time during the year 1930 or 1931, this property had been stored on premises belonging to W. H. Juedeman, in Creek county. That it remained there until in March, 1936, at which time, according to the evidence of Mr. Juedeman, the defendant came to his place, and made inquiry as to who was the owner of this property. That he informed defendant it was the property of Houston Brothers, and defendant inquired as to where they could be found, and he told him in Tulsa. Someone was with defendant at the time whom he did not know. In a day or two the defendant again came to the home of Mr. Juedeman, and presented a written order, which was as follows:

“Tulsa, Okla.
“Mr. W. H. Juedeman.
“Kind sir please let Mr. H. E. Walker have what he wants of that meteral of ours that you have there.
“Yours truly,
“Huston Bros.
“17802 east second place Tulsa, Okla.”

At the time this order was presented by defendant, a Mr. Dukes, to whom defendant afterwards sold the property, was with him. They told defendant that if Houston Brothers had not paid him the rent for keeping the tools that he could sue or dispose of them as he pleased. A day or two after this defendant again came to the home of the witness with two trucks and several men, and the machinery was loaded and carried away under the direction of the defendant.

Kenneth Eisner corroborated the testimony of the witness Juedeman as to being present when defendant brought the order, and positively identified defendant as being the person who brought and delivered the same.

Both L. W. and W. A. Houston testified to the ownership of the property. That the order above quoted had not been given by them and was a forgery. That they had not disposed of the property to anyone. That the property stored was of the value of near $1,200.

From the above statement it will be observed that the evidence on behalf of the state presented a prima facie case against defendant, and the court did not err in overruling the demurrer of defendant to the state’s testimony.

Defendant, testifying in his own behalf, testified that he was a licensed and bonded purchaser of second-hand equipment. That Henry Walker, on March 23 or 24, informed him he was getting an order for some tools at Slick, and he agreed to buy them. He stated that on the 24th or 25th of March, he went with Walker to look at the tools, and they went to Mr. Juedeman’s blacksmith shop, and Mr. Walker delivered the order at that time to Mr. Juedeman. That he returned to Sapulpa, and before he paid Walker for the tools he took Jason Dukes to see the tools and he agreed to buy them from him, and on the following morning he secured a check for $50 from Mr. Dukes, cashed the same, and paid Walker $40, for the purchase price of the tools, and took his receipt, which was introduced in evidence, and was as follows:

“Receipt of Hobart Alexander for tool $40.00 at Slick, Oklahoma of H. B. Houston.
“paid in full.
“H. E. Walker.”

Mr. Dukes paid $75 for the tools which included the purchase price, and the trucking bill to Sapulpa. That he honestly believed Walker had a right to sell the property. That the price paid was a fair price. That the tools were taken in the day time, and placed in Jason Dukes’ supply yard with no effort to conceal them in any way.

Several witnesses were offered by defendant who corroborated different statements made by defendant. His wife testified to hearing the conversation between defendant and Henry Walker when the tools were purchased.

The state, on rebuttal, presented Henry Walker as a witness, and he testified that he sold defendant “four bits,” which were located at Slick, for $40. They were not located on the Juedeman farm, and this was the only property he had sold defendant. The examination of this witness revealed that he had been an inmate of the insane asylum several different times. Nothing was shown that he had been adjudged incompetent to testify. On cross-examination he was asked if the had made a written statement in the office of counsel for defendant that counsel’s wife had taken in shorthand, and transcribed, and that he and his wife had read it and he signed it. His reply to this question was very unsatisfactory. He finally denied that he made any statement, but the court permitted the defendant to introduce the signed statement, which was as follows:

“I sold the property involved in the case of State v. Alexander for the sum of $40. I just went down there to Juedemans and bargained for this stuff with Mr. Juedeman, and Mr. Juedeman told me it belonged to Houston Brothers, and he went to the pump house, about a mile and a half north, and made an appointment with Mr. Houston to meet me. I did not hear the conversation over long distance, but when Mr. Juedeman came out he told me that I could meet Mr. Houston on North Main street in Tulsa the next night, and the next evening Mr. Juedeman went to Tulsa with me, and we met a man who was supposed to be Mr. Houston. We met him at the Hotel just right at the overpass on North Main, and I paid him $40.00 for the tools and equipment on the Juedeman farm.
“A few days later I negotiated to sell this property to Hobart Alexander and drove with him in his car down to Juedemans, and I presented the order to Mr. Juedeman. I later sold this property to Hobart Alexander for $40.
“At the time the order was delivered to Mr. Juedeman he was at the blacksmith shop, and I delivered the order to him.
“When Hobart paid me I gave him a receipt for the money and also told him that I had purchased the property from Houston Brothers.
“(Signed) H. E. Walker.”

Evidence was offered on rebuttal with reference to the value of the property, or some parts thereof. The court was very careful in permitting the introduction of this evidence. After he had permitted the introduction of the written statements signed by the witness Henry Walker, he permitted the state to recall the witness H. W. Juedeman and he testified that he never, at any time, accompanied the witness Henry Walker to Tulsa, nor did he interview someone purporting to be either of the Houston Brothers, nor did he meet anyone at the hotel near the overpass on North Main. That he never went any where with him.

From the above statement it will be observed there was a direct conflict in the testimony offered by the state and by the defendant. The jury saw and heard the witnesses, and was in a better position to judge the truth or falsity of their evidence than is this court. Under the numerous holdings of this court, a verdict of the jury will not be set aside where there is a conflict in the evidence such as exists in this case. The court, therefore, did not err in refusing to sustain the motion for a directed verdict.

It is next contended that the court erred in refusing to give requested instruction No. 1, which was as follows:

“You are instructed, gentlemen of the jury, that where the property of another is openly taken under an honest, although groundless claim of right, such taking does not constitute the crime of larceny, and in this connection you are instructed that if you find that the defendant purchased the property described in the information from Henry Walker, prior to the time the same was taken by the defendant, and that the defendant believed that said Henry Walker had the right to sell the same, you will acquit the defendant, even though you find that the property described in the information was the property of Houston Brothers at the time, and that the said Henry Walker had right or authority to sell it.
“And in this connection, you are further instructed that if you have a reasonable doubt as to whether or not the defendant purchased such property from Henry Walker prior to the taking thereof, and as to whether or not the defendant believed that said Henry Walker had the right to sell the same, you.will resolve this doubt in favor of the defendant, and acquit him.
“Refused. Defendant excepts.
“Exceptions allowed.
“Arthur Cochran, District Judge.”

Defendant contends that this instruction should have been given in compliance with the rule that has been announced by this court in many decisions; that defendant is entitled to an affirmative instruction based upon the hypothesis that his testimony is true, and cites many cases in which the rule is announced. There is no question about the soundness of the rule, that a defendant is entitled to an affirmative instruction outlining his defense. The court, however, gave to the jury instruction No. 8, which was as follows:

“Gentlemen of the jury, the defendant claims that he honestly bought the oil field equipment described in the information from Henry Walker, and offers testimony in support of said claim.
“You are instructed to consider this testimony together with all the other testimony offered in this case, and after properly considering the same, in connection with all the other evidence in the case, you entertain a reasonable doubt of the defendant’s guilt, you should find him not guilty. However, if you are satisfied beyond a reasonable doubt of the defendant’s guilt, you should convict him.
“Arthur Cochran, District Judge.
“Given and Excepted to by the defendant.
“Exceptions allowed.
“Arthur Cochran.”

It will be noted that the requested instruction was more liberal to the defendant than he was entitled to under the law. We are of the opinion that instruction No. 8, above quoted, presented to the jury the issues as to whether the defendant had honestly bought the property from Henry Walker and the jury, by their verdict, no doubt, did not believe defendant’s testimony. The instruction might have been made more fully but the requested instruction offered by defendant was more favorable to him than he was entitled to under the law. Under the circumstances we do not believe that the court erred in refusing to give the requested instruction above quoted.

It is next contended by defendant that the court erred in giving instruction No. 5, which was as follows:

“Under the law of this state, all persons concerned in the commission of a crime, whether it be a felony or misdemeanor, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals.
“To aid and abet may consist of words spoken or acts done for the purpose of assisting in the commission of the crime or of encouraging its commission.
“Arthur Cochran, District Judge.
“Given and excepted to by the defendant.
“Exceptions allowed.
“Arthur Cochran, District Judge.”

It is stated in defendant’s brief that the giving of the above instruction is error: “* * * jn that it authorizes the jury to convict the defendant not only of the offense charged in the information upon which the state relied for a conviction, but also of another separate and distinct similar offense not relied upon by the state in the information, or proof shown by the record herein.”

A complete answer to this argument is the statute of this state, which has abolished the rule of the common law, and provides that there shall be no distinction in accessories before the fact and principals, and that any person who aids or abets in the commission of a crime in this state is guilty as a principal. Oklahoma Statutes 1931, sec. 2902, Okla. Stats. Anno. Title 22, sec. 432, provides:

“The distinction between an accessory before the fact and a principal, and between principals in the first and second degree, in cases of felony, is abrogated, and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, must be prosecuted, tried and punished as principals, and no additional facts need be alleged in any indictment or information against such an accessory than are required in an indictment or information against his principal.”

This statute has been construed by this court many times, and it has been universally held that it is not necessary to allege additional facts in an information against an accessory than are required against his principal, and also that if allegations of an information are such that defendant is a principal, that proof that he aided or abetted in the commission of the crime is sufficient to justify a conviction as a principal.

The case of Sanditen v. State, 22 Okla. Cr. 14, 208 P. 1040, is one very similar to the facts in the instant case, and not only substantiates the above statement, but cites and quotes from many decisions rendered prior thereto.

The case of Longshore v. State, 27 Okla. Cr. 128, 225 P. 573, also construes the above statute and distinguishes the facts of that case from that of Gracy v. State, 13 Okla. Cr. 643, 166 P. 442, which is cited and relied upon by defendant. In the Gracy Case it is clearly shown that two separate and distinct crimes had been committed, one in which the accused was principal, and the other in which he aided and abetted another. There were no such facts in the case at bar. The defendant here was charged with the commission of a single offense, and he was guilty under the above statute whether he committed the crime as principal, or whether he aided or abetted therein. The court did not, therefore, err in giving the instruction above quoted, under the facts in this case. Dickson v. State, 26 Okla. Cr. 403, 224 P. 723; Davis v. State, 44 Okla. Cr. 141, 279 P. 976; McGarrah v. State, 17 Okla. Cr. 240, 187 P. 505; State v. Fraser, 105 Ore. 589, 209 P. 467.

Finding no error in the record, the judgment of the district court of Creek county is therefore affirmed.

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


text:
    CHARLEY BEAM v. STATE.
    No. A-9368.
    March 31, 1939.
    (89 P. 2d 372.)

      C. B. Leedy, of Arnett, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment of conviction, rendered on the verdict of a jury finding Charley Beam guilty of the offense of “attempted larceny of a domestic animal, as charged in the information, and assess his punishment at imprisonment in the state penitentiary for a term of one year.”

The information under which the defendant was prosecuted in substance charged, that the said Charley Beam and Roy Titus, in Dewey county, on or about the 21st day of November, 1935, did feloniously take, steal and carry away, one red cow, two years old, the property of Arthur Hallmark.

A severance was granted. Upon his separate trial the jury returned the verdict, January 27, 1937.

The principal question in the case appears to be whether or not the evidence is legally sufficient to support the conviction.

The undisputed testimony offered by the state shows that Arthur Hallmark, owner of said cow, lived four miles west of Lenora, and had some cattle two or three miles south of his place in a pasture adjoining the road; that on the date alleged he drove to this pasture about ten o’clock at night, with a tank of water for his stock; arriving there he saw a car parked on the highway, about 100 yards from the open gate of the pasture. He took the tag number of the car, and went back and with his father returned to the pasture; the car was still there; he took the switch keys and leather holder, having name of “C. H. Beam,” from the car and took the keys with him. The next morning he returned to the pasture, counted his cattle and found one short, then found a cow that had been butchered and partly skinned. He called the sheriff and the sheriff and a deputy arrived; they searched the parked car and found a .22 rifle, some old blankets and hog-hook in the car. He found three different footprint tracks near the car, and the same tracks where the cow was killed. That this was in Dewey county.

George A. Brown, deputy sheriff, testified that with the sheriff he went to Hallmark’s pasture, about four miles southwest of Lenora; there found a Hudson automobile parked near the gate of the pasture, on the Lenora and Camargo road. He knew it was Charley Beam’s car. They found a .22 rifle, a meat hook and some old blankets and an overcoat in the car. In the pasture they found a cow that had been butchered and partly skinned, but the hide was not taken off, found some tracks around the automobile, leading to the gate and down towards the dead cow; noticed three different men’s tracks near the car and the same tracks near the dead cow, an axe was lying inside the cow, and they found a butcher knife in the road, the rifle had one empty shell in the chamber and nine in the magazine. That some of the foot tracks were made apparently by a new pair of shoes. He produced a pair of shoes that the defendant was wearing when they arrested him the next day in Arnett. That they took these shoes and compared them with the tracks near the parked car, and at the place the cow was killed, and they were similar, and the heel prints were identical. He produced the keys and holder received from Mr. Hallmark at the car that morning. He further testified that the defendant Beam claimed the automobile, and they returned it to him.

C. P. Lovett, sheriff of Dewey county, testified that with Deputy Sheriff Brown he answered Mr. Hallmark’s call that morning and found a cow in the pasture that had been killed and skinned; that he investigated the tracks between the car parked by the side of the road and where the cow was found; there were three sets of tracks, one made by a new pair of shoes, or nearly new, two others made by well worn shoes, that did not make clear tracks; that the shoe prints showed plainly at the car and near the carcass. That they found a butcher knife in the road, and found the rifle introduced in evidence, in the car, also a hog or meat’ hook, and found an axe in the dead cow.

Clyde Gore testified that he saw the defendants, Charley Beam and Roy Titus, and another man with them in the store and restaurant in Lenora, between 8 and 9 o’clock on the evening of November 21, 1935; that they came in together and left together; and he talked with the defendant, Beam.

Mrs. Clyde Gore testified that she conducted a store and cafe in Lenora; was acquainted with Roy Titus, but did not know Charley Beam; that she saw Roy Titus in her store that night, but would not be positive that one of the men with him was Charley Beam. The three men came in there that night and had lunch and left together.

John Hartsell testified that he lives at Camargo, and remembers the occasion of some one killing Mr. Hallmark’s cow; that he drove to Clinton that day and saw the defendant Beam driving a two-seated car, with two other men in the car, with him on the highway, three miles west of Lenora. He was going east and they were coming west. It was then about four o’clock; that he returned to Camargo that night, and saw a car parked by the side of the road, and it looked like the same car he saw the defendant driving that day.

When the state rested its case, defendant demurred to the evidence on the ground that it was wholly insufficient to warrant a conviction for the crime charged against him, and moved for a directed verdict of acquittal. The demurrer and motion were overruled. Exceptions allowed.

The defendant did not offer himself as a witness in his own behalf, but called three or four character witnesses; each qualified and testified that his general reputation as a law-abiding citizen in the community in which he had lived the past 20 years was “Good.”

The foregoing statement of the testimony in the case is a sufficient answer to the contention made that the evidence is not sufficient to sustain the verdict.

It rarely happens that the perpetrators of an offense, committed in the manner here proven, can be shown by witnesses who saw and recognized the defendants in the act, and resort must therefore ordinarily be had to circumstantial evidence.

Where the state relies upon circumstantial evidence to prove guilt, and the circumstances are consistent with guilt, and inconsistent with any reasonable hypothesis other than the defendant’s guilt, they are sufficient to support conviction.

It is also contended that the judgment and sentence of the court does not conform to the verdict. That the jury found the defendant guilty of an attempt to commit the crime of larceny of a domestic animal and assessed his punishment at imprisonment in the state penitentiary for a term of one year, but the judgment of the court recites: “That the defendant, Charley Beam, is guilty of the crime of larceny as charged in the information.”

The record shows that the judgment entered did not conform to the verdict of the jury.

Counsel for the defendant insists that a new trial should be granted on account of this variance between the verdict and the judgment and sentence of the court.

It is elementary that where a verdict of the jury assessing the punishment is in conformity with the law, the court must enter judgment and sentence in conformity to the verdict, and where there is a variance between the verdict of the jury and the sentence of the court, on appeal this court will remand the case with direction to the trial court to correct its judgment and sentence to make it conform to the verdict. Wood v. State, 4 Okla. Cr. 436, 437, 112 P. 11, 45 L.R.A., N. S., 673; Caudill v. State, 9 Okla. Cr. 66, 130 P. 812; Webber v. State, 18 Okla. Cr. 323, 193 P. 48; Barrett v. State, 39 Okla. Cr. 50, 263 P. 166.

Upon the record before us it appears that all of the proceedings had in the trial court up to and including the verdict of the jury were without material error, and the same are approved.

We find that up to and including the rendition of the judgment the defendant was not deprived of any substantial right. The variance between the verdict and judgment is apparently a clerical error.

It is considered and adjudged that for the variance between the verdict of the jury and the sentence of the court, this court remands the case, to the district court of Dewey county with direction to the trial court to correct the judgment and sentence to conform to the verdict of the jury.

It is further ordered that when the trial court corrects its judgment and sentence, the clerk of the district court of Dewey county is directed to issue forthwith to the sheriff of said county a commitment in accordance with the judgment of the court as pronounced and entered in conformity to the verdict of the jury.

BAREFOOT and DAVENPORT, JJ., concur.


text:
    O. L. CAMP v. STATE.
    No. A-9424.
    April 7, 1939.
    (89 P. 2d 378.)
    Mathers & Mathers and H. F. Tripp, all of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Lewis R. Morris, Co. Atty., of Oklahoma City, for the State.
   BAREFOOT, J.

The defendant was charged in Oklahoma county with the crime of receiving stolen property; was tried, convicted, and sentenced to pay a fine of $75, and serve six months in the county jail.

The statute under which defendant was charged, Okla. St. 1931, § 2265, 21 Okla. St. Ann. § 1713, is as follows:

“Every person who buys or receives, in any manner, upon any consideration, any personal property of any value whatsoever, that has been stolen from any other, knowing the same to have been stolen, is punishable by imprisonment in the penitentiary not exceeding five years, or in the county jail not exceeding six months, or by a fine not exceeding $250, or by both such fine and imprisonment.”

The evidence in this case reveals that Lee G. Yaple was a traveling salesman with Weyeth Hardware Company, and living in Oklahoma City. That he carried with him numerous samples of articles sold by him, and often kept them in his garage at his home. That on the night of April 23, 1937, numerous articles of samples were stolen from his garage, which was locked but broken into. Two young boys, Marion Nasche and Jimmie Dickerson, ages 16 and 17, respectively, who had come to Oklahoma City from Texas a few days prior to this time, and were rooming at the Gladstone Hotel, admitted stealing this property, and selling the same to defendant. They both testified to this effect.

The proof showed that the property was of the reasonable wholesale value of $90.65, and was sold to the defendant for $13. The property as described in the information was as follows:

“One Safe Flex fan of the value of $5.25; one Safe Flex fan of the value of $1.75; one Polar Fan valued at $1.07; three auto tubes valued at $1.06; one light socket value $1; one light socket value 88c; all gloves value $15; Sam Brown belt value $7.50; one pair hair clippers value 66c; one hair clipper value $1; one sewing tray value $2.50; leather of the value of $8; one electric comb value $1; knives of the value of $7; silverware of the value of $6; brushes of the value of $20; the sample cases of the value of $1, all of a total value of $90.65 * *

Practically all of this property was new and much of it had never been removed from the original package. This property, which had been placed in suitcases, was taken by the boys from their room in the Gladstone Hotel, to the second-hand store of defendant which was located at 117 South Harvey street, Oklahoma City. They entered the store and saw defendant personally, and asked him if he wanted to buy some brushes, fans, etc., and he informed them he would have to see the property. They returned to their room and got a portion of the property and brought it to the store of defendant, where he inspected it, and they asked $10 for it, and defendant told them he would give only $8. They finally agreed, but told him they had other property, which at his suggestion they went and got and returned to the store of defendant and asked him $20 for all of the property. It was finally purchased for $13. The defendant had one of the boys, Marion Nasche, sign his books when there the first time. He signed the name “George Doss,” and when he returned and signed the books the second time he signed the name “C. Hammond.”

Defendant, testifying in his own behalf, stated that he was in the second-hand business, and had resided in Oklahoma City since 1919, and had never been arrested or convicted of any crime. He corroborated the state’s witnesses with reference to the purchasing of the property and the price paid. He stated that the price paid was a fair price, and that the goods were bought in the open and placed upon the shelves of his business house in plain view of customers, with the exception of a silver platter and certain knives and forks which he had taken to his residence. That when the officers came to his place of business he turned over to them- all the property which he had purchased, including the property that had been taken to his home. He testified that the boys from whom he purchased the property told him, in answer to his question, that they were salesmen, and were going out of business and were disposing of their samples, which they had a right to do. That he did not examine his books after they were signed, and did not know that two different names were signed thereto.

A clerk, Sam Massey, corroborated defendant’s testimony as to the purchase and sale of the goods to defendant, and stated that they told him they were over 22 years of age.

Other witnesses, testifying for defendant, said that the price paid by defendant for the goods was a fair and reasonable price. Other witnesses testified to his good character and reputation.

On rebuttal, the state offered C. W. Kemp, who was head of the stolen goods department of the city police department. He identified a statement received by his department from defendant on the dates covering the above transaction. This statement was presented by defendant in compliance with' a city ordinance requiring these daily reports. The report and a book offered by defendant when witness signed his name were introduced in evidence, but a copy of neither appears in the case-made.

Under the well-defined principles of law, as outlined by the many decisions of this court, it is necessary in a case of this character, not only for the state to show that the goods have been stolen, but it is necessary to show that the party receiving the property had knowledge at the time the property was received that it had been stolen. By this expression it is not meant that it is necessary for the person receiving the same to have actually seen the theft of the property. It is sufficient if the facts are such as to cause an actual belief that the property was stolen. Price v. State, 9 Okla. Cr. 359, 131 P. 1102; 2 Bishop’s New Criminal Law, sec. 1138. Some cases have held that a conviction should be sustained if the facts were such “that in all probability” would make the accused believe that the property had been stolen. This doctrine is not upheld in this state. Wingfield v. State, 55 Okla. Cr. 374, 30 P. 2d 930; Weaver v. State, 30 Okla. Cr. 309, 235 P. 635; Wilson v. State, 55 Okla. Cr. 22, 24 P. 2d 296.

Other cases have held that where the proof would “put a man of ordinary intelligence and caution on inquiry,” that this was sufficient. This doctrine is not upheld by the decisions of this court. Pickering v. United States, 2 Okla. Cr. 197, 101 P. 123; State v. Denny, 17 N. D. 519, 117 N. W. 869.

The knowledge necessary may be proved by direct or circumstantial evidence, or by both. Within well-defined principles of law each case must rest upon the facts of that individual case. By reason of the nature of the crime it is generally necessary for the state to rely upon circumstantial evidence in cases of this character.

The party who purchases property from utter strangers and receives it under unusual circumstances, and especially where all the facts of the case are passed upon by a jury, and the jury has come to the conclusion, after hearing the facts and circumstances, that the defendant had knowledge that it was stolen property, and by so rendering their verdict, it cannot be successfully maintained in an appellate court that defendant did not believe the property was stolen. He was just as guilty if he believed it was stolen property as if he had positive knowledge of that fact. Applying the above principle of law to the facts in the instant case, we would not be justified in reversing this case.

Counsel for defendant, in their brief, say:

“We most respectfully submit it would be a travesty upon justice, a rape upon the fundamental principles of law and in violation of every decision that has been rendered by this Honorable Court, and an injustice that all the spices of Arabia could not cure, and would disgrace and bankrupt an honest citizen, an honest merchant and a blameless family and would not tend to enforce the law, but would cause hatred and disrespect to the law of our state and nation and there would be a great injustice inflicted or could be inflicted upon a citizen of our state, and without extending this argument, which could be for many hours, but with an abiding confidence in the wisdom of this court, we consign the future hopes, the tears of the loved ones and the laws of our nation to the bosom of this court.”

This argument was eloquent and persuasive. It should have, and no doubt did have, influence on the jury, because by their verdict they found the defendant guilty but left his punishment to the court. They could have, under the law, given him a penitentiary sentence, but the court only gave him a fine and a jail sentence. The court and jury, no doubt, pondered the facts in this case, and saw defendant engaged in the second-hand business in a large city. Saw two young boys, who were strangers to him, enter his place of business, and there display before him 32 different articles taken from suit cases, and of the value of nearly $100, at wholesale prices, and purchase the same for $13. That this property was not all brought in at the same time, but at two different times, and. this at the request of defendant. That one of the boys signed his name upon the books of defendant at his request, and that each time he signed was a different name, and that defendant showed him a little card and told him to sign the name “C. Hammond.” That defendant did not ask the boys who they were, or where they came from,, and made no effort to consult officers of the law when the boys went to get the second part of the goods. The jury evidently considered the testimony of defendant when he said: “It didn’t make any difference to me if it was worth a thousand dollars, if I could buy it for ten cents, that is all I wanted.” No doubt the jury considered the report made by defendant to the office of the stolen goods department of the police department, and found by that report a great part of the property which was purchased by defendant was not listed in that report, and that they further considered the fact that the “silver platter” and the “knives and forks” were taken to the home of defendant and were not left at his place of business. And the jury, after having considered the above facts, came to the conclusion that it would be well to issue a word of warning to those who deal in the purchase of second-hand goods in Oklahoma City, and the other cities of this state, that a little extra precaution on their part might not only save them from the humiliation and punishment of which defendant speaks, but be of some benefit in the enforcement of the larceny and burglary laws of this state, which are too often violated in this city and other cities of this state.

It is finally contended that the bailiff of the court was permitted to give to the jury certain books and records after they had retired to deliberate, and that the same had not been introduced in evidence. The record does not bear out this statement. With reference to the introduction in evidence of the report of defendant to the stolen goods department of the police department, and the book which defendant offered where the witness Marion Nasche had signed, the record shows:

“The Court: You can introduce this as an exhibit. Mr. Eberle: We wish to introduce that. Has the book been introduced? Mr. Mathers: Yes.”

It will thus be seen that both the book and the statement were introduced in evidence. The record does not have a copy of the statement offered by the state, nor the book offered by the defendant. Yet the record shows that both were introduced in evidence.

On the supplemental motion for new trial, when this question was raised for the first time, the journal entry states: “Comes on for hearing on supplemental motion for new trial. One witness sworn. Evidence introduced. Argument by counsel. Motion for new trial overruled. Exception by defendant.” What evidence was taken at the hearing on the motion on the supplemental petition for rehearing is not shown by the record, and the only showing that the jury considered any exhibit was the statement in the motion. The Okla. St. 1931, § 3084, 22 Okla. St. Ann. § 893, is as follows:

“On retiring for deliberation the jury may take with them the written instructions given by the court; the forms of verdict approved by the court, and all papers which have been received as evidence in the cause, except that they shall take copies of such parts of public records or private documents as ought not, in the opinion of the court, to be taken from the person having them in possession.”

In construing this statute, this court has held that the permitting of the jury to examine the exhibits is a matter within the sound judicial discretion of the trial court. If there was an abuse of discretion, the burden was upon the defendant to so show. We have no hesitancy in saying that trial courts should be very careful in seeing that the exhibits which are introduced in evidence have been properly admitted in evidence. The record so shows in this case. Keeney v. State, 53 Okla. Cr. 1, 6 P. 2d 833; Brown v. State, 52 Okla. Cr. 307, 4 P. 2d 129.

Under the above statement we do not find any prejudicial error committed in this case, and the judgment of the district court of Oklahoma county is, therefore, affirmed.

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