text:
    WILLIAM MORGAN v. STATE.
    No. A-9495.
    May 12, 1939.
    (90 P. 2d 683.)

      H. M. Shirley, of Coalgate, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The defendant was tried in the county court of Coal county, upon information filed against him charging him with being drunk in a public place, on Main street of the city of Coalgate, was convicted, and sentenced to pay a fine of $10 and costs.

Walter Clark, testifying for the state, stated:

“I am sheriff of Coal county, Okla. On the 12th of April, 1937, I saw Billy Morgan out in the middle of the street, and I arrested him for being drunk. About 15 minutes before I arrested him I received a call, but I do not know who it was that called me. When I got down to the street, the defendant was about the middle of the street, staggering drunk. He was by himself, and was not bothering anybody at the time. At the Tavern they said he had been over there drunk, and had put a pistol on the counter. I thought that if he had a gun and was brandishing it around and was drunk, he had better have the gun taken off of him.”

Sam Shore stated that he was a constable in Coal county, and that he saw the defendant on the 12th of April, 1937, in the middle of the street.

“I was sitting talking with some fellow on a bench in front of the Tavern. I saw Walter Clark arrest him. It is my best judgment that he was drunk at the time Clark arrested him. I have seen some that was staggering, and I would let them go. They are not good friends of mine that I let go. They all look alike to me. I was around the Tavern that night, but I did not see Billy Morgan in the Tavern. He was in the street when I saw him.”

P. J. Barnett was called as a witness on behalf of the defendant; stated:

“My name is P. J. Barnett. On the 12th of April I was in the county jail of Coal county. I was cooking at that time. I was serving a sentence. They caught a still on my place. I saw Billy Morgan when he was put in jail that night. In my estimation Billy Morgan was not drunk enough to be arrested that night. I saw no signs of drunkenness after he was put in jail.”

On cross-examination the witness stated that Billy Morgan was put in jail about dusk, maybe a little bit later.

“He looked sober to me. He did not look like a drunk man. I would say he was sober. I would not say that he had not had a drink, as I do not know. I would say that he was not drunk.”

Jim Barnett stated that he was serving time for making liquor.

“I saw Billy Morgan on the night at the jail when he was put in. I saw him and heard him talking after he was put in the j'ail. He was not drunk. I would not say he was sober. He had been drinking.”

On cross-examination the witness stated he could tell he had been drinking by his actions.

Slim McGehee, a witness for the defendant, stated:

“My name is McGehee. They call me Slim. I know Billy Morgan. I have known him 15, maybe, 20 years. I saw Billy Morgan in the pool hall on two or three different occasions. I do not remember seeing Billy Morgan on the night he was arrested. I do not know whether it was that night I saw him at the pool hall or not. He was sober when I saw him. I have been convicted of the crime of running a disorderly house in Oklahoma.”

Billy Morgan, testifying in his own behalf, stated:

“My name is William Morgan. I am 63 years of age. I am a barber.”

E. Pritchard, testifying for the defendant, stated:

“My name is E. Pritchard. I am justice of the peace in Coal county. A charge of drunkenness was filed against Billy Morgan in my court; he was not convicted, as he was not tried on the charge. There was a change of venue filed in that case.”

Marvin Balch was called and testified as follows:

“I dismissed the charge against the defendant in the justice court and refiled it in the county court.”

William Morgan, the defendant, was recalled and testified as follows:

“I was not in the Tavern the night I was arrested. I walked down and sat in front of the Tavern. Butch Jackson and Gassaway came out of Dr. Hipe’s place and made some threatening remarks. He threw his coat back and I could see he had a gun, and he said, T will get that son of a bitch yet,’ talking about me. When they went on, I went to the shop and got my gun and put it on, and came on back down and angled across the street to the pool hall, and went in. I stayed there probably an hour. It was after that night that I shot at Gassaway. I was not drunk that night. I had been working all day that day, and walked down to the Tavern that night. When I came out of the pool hall I started back to the shop. When the sheriff arrested me, he walked up to me and asked me if I had a gun, and I told him I had, and he said, T want it.’ He took the gun and put it inside of his vest, and said, T am going to put you in jail,’ and I said, 'What’s back of it?’, and he said, T am going to put you in jail,’ and carried me over and put me in. He did not say I was drunk. The reason I had the gun, I wanted to take care of myself.”

On cross-examination in reply to the question of the county attorney as to whether or not he had ever been drunk, he answered:

“Yes, sir, and I paid my fine, too. I notified the officers a half dozen times as to threats that had been made against me. I did not have my gun at the time Gassaway threw his coat back and exposed his gun. I went to the shop and got it after that. I did not go back seeking to find Gassaway. I did not go towards where he was. Before Gassaway’s death, he and I made friends. Mr. Gassaway was my attorney, representing me in this case at the time of his death.”

The foregoing is all the testimony that it is deemed necessary to set out in this opinion.

The defendant alleges four errors committed by the trial court.

The first error assigned is that the court erred in overruling the defendant’s objections to the court’s qualifications.

The second, the court erred in overruling the defendant’s motion to quash the entire jury panel for the reason that they were not selected as the law provides.

The third, the court erred in overruling the defendant’s demurrer to the evidence.

The fourth, the court erred in not sustaining the defendant’s motion to set aside the verdict of the jury, to all of which the defendant took exceptions which exceptions were by the court allowed.

All these assignments will be considered together as they relate to the same question.

Defendant in his brief only discusses the qualifications of the court who presided at the trial and argues that the law required the county judge before entering upon the duties of his office to file and have approved a bond of not less than $3,000 and not more than $10,000, and the trial judge in this case had only filed a bond of $2,000.

The defendant relies on the provisions of section 3960, O.S. 1931, 20 Okla. St. Ann. § 279, to sustain his position that Judge W. B. Thornsbrough was not qualified to preside at the trial for his failure to file a bond of not less than $3,000 and not more than $10,000 to be approved by the county commissioners.

He admits that the judge trying this case was acting as county judge at the time this case was tried, and was transacting the general business as county judge of the county, and was in possession, holding, and exercising jurisdiction in all matters properly coming before the county court of Coal county, Okla.

Beginning with the early opinions of this court, it has been repeatedly held and defined that an officer de facto is one whose acts, though not those of a lawful officer, the law upon principles of policy and justice will hold valid so far as they involve the interests of the people and third persons, where the functions of the office are exercised by one who is in the actual possession of it under color of title.

In Ex parte Crump, 10 Okla. Cr. 133, 135 P. 428, 47 L.R.A., N.S., 1036, the court reaffirmed the doctrine set forth herein, that the acts of the officer rightly in possession of the office and under color of title are valid as against third persons and cannot be questioned in a collateral attack.

In 15 Corpus Juris 875, sec. 215, is stated the following :

“The legality of the existence of a de facto court and its right to exercise its functions cannot be inquired into collaterally, but only in a direct proceeding at the instance of the state. Neither can the question of legal existence of a trial court be raised by appeal.”

In this case the jury imposed the minimum fine upon the defendant which clearly shows that they were not biased or prejudiced against him.

There is very little conflict in the testimony. The jury is the sole and exclusive judge of the testimony, the weight and credibility of the witnesses, and after having heard all the facts, the instructions of the court, by its verdict, found the defendant guilty.

This court has repeatedly held that conflicting issues of fact are for the sole determination of the jury, and held further that a conviction will not be disturbed on appeal because of conflict in the evidence, if the evidence reasonably tends to support the verdict and judgment. The defendant was accorded a fair and impartial trial.

Finding no prejudicial or fundamental errors in the record, and the evidence being sufficient to sustain the judgment, the case is affirmed.

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


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    FRANK GRAY v. STATE.
    No. A-9494.
    May 12, 1939.
    (90 P. 2d 686.)

      Robt. W. Hoyland and Hugh J. Adams, both of Guthrie, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and C. E. Barnes, Co. Atty., of Guthrie, for the State.
   BAREFOOT, J.

Defendant was charged jointly with J. C. Bennett and Claud Beardon, in Logan county, with the larceny of domestic fowls; was tried, convicted and sentenced to pay a fine of $100, and serve 60 days in jail, and has appealed.

The only assignment of error urged by defendant is that the court erred in failing to sustain the demurrer to the evidence, and refusing to direct the jury to return a verdict of not guilty as to defendant, for the reason that the evidence was insufficient to sustain a conviction.

After a careful examination of the record in this case, we are of the opinion that this contention should have been sustained. The defendants, J. C. Bennett, Claud Beardon, and Frank Gray, were jointly charged with the larceny of one turkey, of the value of $1.50, the property of Paul A. Olson, a resident of Logan county, on the 3rd day of October, 1937. From an examination of this record, there is nothing to show defendant’s connection with this crime except the slightest circumstances. He was in no way identified as being one of the parties who was upon the prosecuting witness’ premises at the time the turkey was killed. He was not found in possession of the same. He did not even have a gun in his car at the time he was found. He gives a plausible explanation of his presence, and his movements, which, if true, made it absolutely impossible for him to have been upon the premises of the prosecuting witness, and participated in the killing or larceny of the turkey of the prosecuting witness. He is corroborated in his testimony by many witnesses. To convict the defendant upon this testimony would be upon conjecture, speculation and guess. We well realize that it is often necessary, under the law, to establish a crime by circumstantial evidence. But it is necessary that all the facts and circumstances proven must not only be consistent with the guilt of the accused, but must be consistent with each other, and inconsistent with any other reasonable hypothesis or conclusion than that of defendant’s guilt. It must go beyond mere suspicion and conjecture. As we stated in the case of Rambo v. State, 63 Okla. Cr. 189, 73 P. 2d 873, 874:

“* * * But there was nothing shown by the state to connect the defendant with the property that was stolen; nothing to show he took it to where it was after-wards found, or that he had possession of it in any way. There might be many reasonable hypotheses as to why he was seen in the car with defendant. We are of the opinion that the evidence was wholly insufficient to connect the defendant with the crime of larceny. Matthews v. State, 8 Okla. Cr. 676, 130 P. 125; Kirk v. State, 10 Okla. Cr. 281, 135 P. 1156; Bryan v. State, 11 Okla. Cr. 180, 144 P. 392, 393; Adams v. State, 38 Okla. Cr. 173, 259 P. 665; Lynn v. State, 63 Okla. Cr. 55, 72 P. 2d 846; Williams v. State, 38 Okla. Cr. 370, 261 P. 977; McLaughlin v. State, 18 Okla. Cr. 137, 193 P. 1010.
“In the McLaughlin Case, supra, the court says: 'It is well-settled law in this state that if there is evidence to support the conviction this court will not weigh the sufficiency of the same to support the verdict. It is, however, equally well-settled law in this state that this court will consider all the evidence to ascertain whether a verdict is in fact founded upon sufficient evidence to warrant a conviction.
Tf the evidence introduced by the state fails to incriminate the defendant, or as a matter of law is insufficient to show that he is guilty of the offense charged, it is not only the right but the duty of the trial court to advise the jury to return a verdict of acquittal.’ ”

The facts in these cases are very similar to the facts in the case at bar, and to our mind are much stronger than the facts in this case. Defendant’s evidence, which is corroborated by several witnesses, explains his presence near the premises of the prosecuting witness. It fully explains his being with the defendant Bennett during the morning of October 3rd, and of Bennett being left at his home about noon, and his not seeing him at any other time that day. Other witnesses testified to seeing the defendant Bennett with gun and dog near the premises of the prosecuting witness.

To uphold this conviction on this record would be dealing in pure speculation and conjecture. The three defendants were tried together. There is not much doubt had a severance been taken that the jury would not have convicted defendant on the evidence offered against him.

For the reasons above stated, we are of the opinion that the judgment and sentence of the district court of Logan county should be reversed, and unless the county attorney has other evidence the defendant should be discharged.

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


text:
    MELVIN HEISE v. STATE.
    No. A-9456.
    May 19, 1939.
    (90 P. 2d 947.)
    H, W. Wright, of Cherokee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and O. M. Ginder, Co. Atty., of Cherokee, for the State.
   BAREFOOT, J.

Defendant was charged in the county court of Alfalfa county, with the unlawful possession of a still; was tried, convicted, and sentenced to pay a fine of $150, and serve 30 days in the county jail, and has appealed.

The defendant in this case was sentenced on the 8th day of November, 1937, and was, by the court, given an extension of 30 days to prepare and serve a case-made for appeal to this court. On December 6, 1937, he was, by the court, granted an extension of 60 days’ additional time to prepare and serve the same. His time would have expired for the serving of same on the 5th day of February, 1938.

A transcript of the record was filed in this court on March 5, 1938, and contained therein is ■ an order dated February 10, 1938, providing for a 15 days’ additional extension of time, beginning February 6, 1938, for the preparation and serving of the case-made.

With the record in this condition, the Attorney General and the county attorney of Alfalfa county, on April 18,1988, filed a motion in this court to dismiss the appeal, for the reason that the transcript or case-made was not served prior to February 6, 1938, and that no order for an extension was made until February 10, 1938, and after the time had expired for the serving of the same.

The defendant, on April 18, 1938, filed a reply or response to this motion, which was duly verified, in which he alleged he appeared before the county judge of Alfalfa county, in person, on or before the 5th day of February, 1938, and asked for an extension of time, and was informed by the county judge that said extension would be granted if the case-made was not completed by the court reporter without further ceremony, and that the county judge, “in the county courtroom of Alfalfa county, upon oral application of H. W. Wright, attorney for Melvin Heise, gave to this plaintiff an extension of time.” That afterwards, and on the 7th day of February, 1938, his attorney, in his presence, telephoned the county judge, and asked him if the extension had been granted, and if written instruments reflecting the action of the defendant and of the county court could be filed, and that the county judge advised the defendant that the written instruments reflecting the action of Melvin Heise and the court could be filed at any time. That said written orders were prepared by defendant’s attorney reflecting the order made by the court on February 5, 1938, and were left upon the desk of the court bearing date of February 5, 1938, being the exact date that said order was made. That thereafter, and on the 10th day of February, 1938, the county judge, at the request of the county attorney, “changed the dates upon said instruments to show the application and order to be made on the 10th day of February, 1938,” and further alleged, “That said record has been willfully and deliberately changed for the purpose of supporting such a motion as was filed in this case.”

It was further alleged in said reply that defendant had paid $25 to the court reporter for the purpose of having prepared the transcript and case-made in this case. That the same could have been prepared in five days, but that he has asked the county court reporter for said case-made many times, but the same had not been delivered, but he was assured by the court reporter that he would not let the time run.

He further alleged that he had filed a motion asking this court to require the county judge of Alfalfa county “to make a case-made and file it in this court.” He further stated: “That Melvin Heise has been hampered and hindered by the court in his appeal. Every effort has been made to prevent his appealing to this court by the officers of the county court of Alfalfa county.” He also alleges that the appeal was being prosecuted “on account of misconduct and error of the county court of Alfalfa county, including the county judge, county attorney, and county court reporter.”

A hearing was had by this court on the 25th day of May, 1938, at which time the county judge and county attorney were present and also defendant and his counsel. Oral testimony was heard, and after said hearing was completed, it was agreed by all parties that the order made on the 5th day of February, 1988, extending the time to prepare and serve the case-made should stand as of that date, and it was further ordered that a transcript of the evidence should be prepared by the court reporter for the purpose of attaching the same to the transcript which had already been filed in this court on the 5th day of March, 1938.

On February 7, 1939, the attorney for defendant filed an application and affidavit and brief in this case, in which he states:

“Melvin Heise, being first duly sworn deposes and says: That he is the plaintiff in error herein, and was known as the defendant in the trial court.
“Affiant states that no proper case-made was prepared by the county court or county court reporter; that the alleged case-made filed herein contains no transcript of the testimony; that the testimony at the trial showed conclusively that the alleged still was found upon the Great Salt Plains Reservation, which is a federal reservation, reserved at statehood, but the alleged still was near the land and home of another party who was not a party to this or any other proceeding. That the defendant Melvin Heise was not at or near the alleged still but was hunting near the edge of the Great Salt Plains reserve. There was absolutely no evidence that the defendant owned, operated, had any control over or had ever seen or heard of the alleged still, or of the land upon which it was alleged to be located.
“The evidence and record if properly transcribed would show conclusively that the court erred in failing to sustain the defendant’s demurrer to the evidence, error in admitting improper testimony of the state, error in refusing to admit certain of the defendant’s testimony and erred in permitting prejudicial remarks.
“That the defendant gave the county court reporter $25 to make a transcript of the testimony and case-made herein, but no transcript of the testimony has been furnished. That the Honorable Criminal Court of Appeals, ordered a transcript, furnished on the 25th day of May, 1938, in open court, but none has been furnished and it is impossible for the defendant to make a case-made showing the testimony, the objections, the rulings and remarks.
“Wherefore affiant this plaintiff in error respectfully asks that this Honorable Court remand this case, with instructions to grant the defendant a new trial.”

No reply or answer or brief has been filed by the state to this date. Afterwards, and on the 2nd day of May, 1939, an affidavit was filed by the defendant that he had “personally called for said case-made at the office of the county court reporter at least 25 times, and has always been told that it would be delivered to me, or turned to H. W. Wright, when completed; that said case-made, including testimony, has never been delivered.” An affidavit of H. W. Wright, attorney for defendant, on the same date, states that he had made requests of the court reporter many times, “both before and since the oral argument in the Criminal Court of Appeals,” and that the same had not been furnished. And that on the 20th day of April, 1939, he made a written request to the county judge for a transcript of the testimony, and the same had not been furnished. Both of the above affidavits were served by mail upon the 24th day of April, 1939, upon the county attorney of Alfalfa county, and the Attorney General. No response has been filed at this time by either the county attorney or the Attorney General.

Under the facts as above stated, we have come to the conclusion that this case should be reversed and remanded for a new trial. At the hearing in this court it was agreed that the transcript of the evidence would be prepared and furnished the defendant immediately. This was on the 25th day of May, 1938. The same has not yet been furnished. No reason has been offered for this delay. It seems that defendant has exhausted every remedy for the procurement of a transcript of the evidence in this case, but has been unable to secure the same, although he has paid for the preparation of same.

It is, therefore, ordered that the judgment of the county court of Alfalfa county be reversed and remanded.

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


text:
    STEVE ALEXANDER v. STATE.
    No. A-9485.
    May 19, 1939.
    (90 P. 2d 949.)

      Counts & Tippit, of McAlester, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and W. J. Counts, Co. Atty., of McAlester, for the State.
   BAREFOOT, J.

Defendant was charged with murder in Pittsburg county; was tried, convicted of manslaughter in the first degree, and sentenced to serve four years in the penitentiary, and has appealed.

The first contention of defendant is, that the court erred in overruling his motion for a continuance. This contention is based upon the fact that defendant filed a praecipe for a witness on the 2d day of October, 1937, and that the subpoena did not reach the deputy sheriff for service until the afternoon of October 4, 1937, and that the witness had left the county and could not be served. And he alleges “that if said cause is continued that he can procure the evidence of the said Wister Standerfer by the next term of court.” It was set out in this motion that this witness would swear that a few days prior to the killing of deceased by defendant, he had ridden in a truck with deceased and his son, and that deceased said he was going to have some trouble with defendant over a woman, “but that it did not make any difference to him, that he was prepared for him, and at that time deceased exhibited to him a six-shooter that he was carrying.” At the time the motion was presented counsel for defendant offered evidence to substantiate the facts with reference to the filing of the praecipe and the issuance of the subpoena. The court stated he would take for granted that all the facts alleged in the affidavit for continuance were true, that the witness was not an eye-witness, and he would overrule the motion. We have examined the record and do not find that the court erred in overruling this motion under the decisions of this court. Ford v. State, 23 Okla. Cr. 46, 212 P. 444; Musgraves v. State, 3 Okla. Cr. 421, 106 P. 544; Luce v. State, 36 Okla. Cr. 49, 252 P. 452; Williams v. State, 17 Okla. Cr. 452, 190 P. 892; Vineyard v. State, 22 Okla. Cr. 76, 209 P. 783; Litchfield v. State, 8 Okla. Cr. 164, 126 P. 707, 45 L.R.A., (N.S.), 153. The affidavit does not show that the statement made by deceased was ever communicated to defendant. There is an entire lack of diligence on the part of the defendant in procuring this witness, and very little to show the possibility of having the testimony if the case was continued. This does not occur to us as an extraordinary delay, and we are unable to say there was an abuse of discretion by the trial court in overruling the motion. In the case of Morehead v. State, 12 Okla. Cr. 62, 151 P. 1183, Ann. Cas. 1918 C, 416, cited by defendant, the facts were very much different from the facts surrounding this application, In that case the death penalty was assessed, all of the witnesses were eye-witnesses, the defendant had been confined in the jail and the penitentiary from the time of his arrest until his trial, and the praecipe for the subpoena had been filed and subpoenaes issued on April 27th, and the trial was set for May 8th. The affidavit also showed due diligence on the part of the defendant. The same applies to the cases of Teter v. State, 7 Okla. Cr. 165, 122 P. 1115, and Payne v. State, 10 Okla. Cr. 314, 136 P. 201.

It is next contended by defendant that the evidence was sufficient to sustain the verdict. The defense offered in this case was: (a) self-defense, and (b) insanity. It is revealed by the record that defendant was 40 years of age, and had resided in Hartshorne, Pittsburg county, all of his life, and had worked in the coal mines 22 years, and until they closed, and was now driving a truck on W.P.A. That he had married Ida Westfall when she was 15 years of age and he was 19. That they had 8 children, 7 of whom were then living, and their ages ranged from 2 to 18 years. That he owned his own home until the mines closed. That he had never had any trouble with his wife or family until about July 10, 1937, when on that night he returned to his home and she was not there. That he prepared his supper, and finally went to bed, but could not go to sleep. That she did not return until about 2:30 or 3 o’clock a. m. That at this time she came in with her sister, Mary Irvin, and they were both drunk. That they told him they had been to Krebs drinking beer. That he told his wife “to get out and stay out,” and that she left home. That he could not sleep and finally got up and dressed, and went to Mary Irvin’s home. He was there told by Mary Irvin that she and his wife had gone with “Estol Barnes,” the deceased, to Krebs and drank beer, and that his wife got very drunk, and she had kept her out for the purpose of sobering her up, but also assured him she had done nothing wrong, and he took his wife home. That he continued to live with his wife as usual, and worked on W.P.A., and started to hauling hay for Albert Long and Bill Barnhill. That he became sick, and was examined by two physicians who said he had “gonorrhea.” The evidence revealed that his wife admitted to him she had intercourse with the deceased, Estol Barnes, and that she had taken this disease from deceased and had transmitted it to him. This evidence was given by a daughter of defendant who heard the conversation between her father and mother. Different doctors also testified that the deceased, the defendant, and defendant’s wife were all afflicted with this disease. A great deal of evidence was introduced in reference to this matter, and a great deal was offered which the court did not permit to go to the jury, and to which reference will be made later.

The facts pertaining to the actual killing were that deceased, on the 5th day of August, 1937, entered “Gooby’s Lunch Room,” in the city of Hartshorne, and ordered a dish of chili. He was sitting on a stool facing the south and with his back to the entrance door at the north. That as he raised his spoon to his mouth, the defendant entered the door at the north. He immediately raised his gun and fired two shots at deceased, both of which struck deceased in the back and passed through his body. That deceased started toward the back of the building and one more shot was fired by defendant. That deceased, when he reached the outside door, collapsed. He was examined by a doctor and others and was taken to a hospital and died as a result of the gunshot wounds inflicted by defendant.

The above evidence was given by four eye-witnesses who were in the lunch room and witnessed the shooting. Two of them were young ladies who were working there, and the other two were customers who were being served. There was no material difference in the testimony of these four witnesses. There was no testimony on the part of any witness with the exception of defendant that the deceased made any movement or demonstration of any kind toward defendant. All of the witnesses testified he had no firearm, or weapon of any kind. After the shooting defendant walked up the street with his gun in his hand and was arrested by an officer to whom he surrendered.

From a statement of the evidence as above outlined, it will be seen that the evidence was not only sufficient to convict the defendant of manslaughter in the first degree, but that it would have sustained a verdict of murder.

We shall now refer to some of the specific errors assigned. It was, and is, contended by defendant that he was insane at the time he fired the fatal shots which took the life of deceased, and that the court erred in refusing the admission of certain evidence by nonexpert witnesses as to their opinion as to his sanity. We have carefully read the record. The trial court, following the rules announced by this court in the cases of Turner v. Territory, 11 Okla. 660, 69 P. 804; Lee v. State, 30 Okla. Cr. 14, 234 P. 654; Queenan v. Territory, 11 Okla. 261, 71 P. 218, 61 L.R.A. 324, excused the jury and heard the evidence of the non-expert witnesses, permitting them to give the facts upon which they based their opinions, and if he deemed it insufficient, he refused to permit the same to go to the jury; if he deemed it sufficient he permitted the jury to hear the same. The court adhered to the rule that evidence of illicit relations between the deceased and the wife of defendant was admissible only when communicated to the defendant, and this for the purpose of the effect upon the mind of defendant as affecting his sanity. This, of course, was proper, because if defendant had not known of this relationship it could not have affected his mind. The court permitted a number of witnesses to testify to the fact that they communicated to defendant the fact that the deceased had intercourse with his wife. That he had given her a loathsome disease, and that the same had been transmitted by her to defendant. He permitted evidence to be offered showing that the defendant, the deceased, and the wife of defendant were all afflicted with this disease. The jury had all of these matters fully before them, and under a full and complete set of instructions given by'the court, fully setting forth in an excellent and exhaustive manner every issue involved in this case, they passed upon the issues of fact. The verdict which they rendered finding defendant guilty of manslaughter in the first degree and assessing his punishment at four years in the penitentiary clearly demonstrates that the jury gave every consideration to the defense offered in behalf of defendant. The testimony of the eye-witnesses shows that defendant shot the deceased in the back, and at a time when he was in no way making any hostile demonstration toward the defendant. It is doubtful if he knew of defendant’s presence until the fatal shots were fired. He had no weapon of any kind. There can be no sympathy expressed for the deceased in his treatment of defendant and his family. A broken home, the transmitting of a loathsome disease to his wife, and she transmitting it to the defendant was such to cause him, as a red-blooded man, to desire to avenge the despoiler of his home and fireside. But the laws of this state and of this country do not permit one to take the law in his own hands under circumstances such as this. This act was committed on July 10th, and soon thereafter was known to defendant. No action was taken until the 5th day of August. There was no sudden heat of passion. There was ample time for cooling and reflection. If defendant’s mind was alert and active on July 10th, it was a very short time for him to become insane between that and the 5th day of August, at the time of the shooting in this case. The true test of criminal responsibility, where the defense of insanity is interposed, is whether the defendant had sufficient reason to know the nature and quality of his act and whether he had sufficient reason to know right from wrong. Owen v. State, 13 Okla. Cr. 195, 163 P. 548; Smith v. State, 12 Okla. Cr. 307, 155 P. 699. The jury found him guilty of manslaughter in the first degree and gave him the benefit of the lowest punishment. We do not find that any error was committed which deprived the defendant of any substantial right. An examination of the record reveals that the testimony of several nonexpert witnesses was permitted to go to the jury and they were permitted to say from the facts which they had observed that, in their opinion, the defendant was insane at the time he committed the act in controversy. The law of this state does not recognize what is known as the “unwritten law.” Posey v. State, 50 Okla. Cr. 129, 296 P. 527; January v. State, 16 Okla. Cr. 166, 181 P. 514; Pickett v. State, 40 Okla. Cr. 289, 268 P. 732.

In the case of Lee v. State, supra, the facts were very similar to those in the case at bar. This case gives the testimony offered by certain nonexpert witnesses, and it is very much like the evidence here offered and part of which was excluded. However, in the instant case the court permitted much of the evidence to go to the jury and the jury was permitted to judge the weight thereof. Marshall v. Territory, 2 Okla. Cr. 136, 101 P. 139. In the Lee Case, this court said [30 Okla. Cr. 14, 234 P. 655] :

“Before submitting the case to the jury, the court instructed the jury not to consider any of the evidence relating to the question of insanity. It has been held that temperamental eccentricities of mind and conduct, alone, are not evidences of insanity. A man may do the most extraordinary things; he may recklessly squander his money; his conduct may be the subject of ridicule; he may be addicted to sudden bursts of passion and of harsh treatment towards those he should treat with tenderness; his deportment upon a particular occasion may be an outrage upon decency and propriety. All this, if it be the result of eccentricity of character, or of depraved taste, or an unfortunate temper, and does not proceed from a permanent disorganization of the mental faculties, will not support a plea of insanity. 16 C. J. 99, 100; 32 C. J. 597; Hopkins v. State, 4 Okla. Cr. 194, 197, 108 P. 420, 111 P. 947.
“The opinion of a nonexpert witness that a person is irrational, based on observations of this character, is a conclusion merely, not warranted by the facts. Most persons have some temperamental peculiarities of thought and action that to others seem queer. The term ‘irrational’ is an elastic term, one that may convey one idea to one person and an entirely different idea to another. ‘Irrational’ may mean unreasonable, foolish, absurd, and a person in such sense may be irrational, and still not be, in any legal sense, insane. If it could be shown as a defense in every homicide case that the perpetrator at some period of his life acted queer, unreasonable, or absurd, that defense could be interposed and relied upon in all homicide cases. To establish a legal defense on the ground of insanity, there must be a showing that at the time of the commission of the deed the person accused was laboring under such a defect of reasoning, from some disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know, that he did not know that what he was doing was wrong. Notes and cases cited, 32 C. J., supra.
“Idiosyncrasies, peculiarities, or unreasonable conduct may be a symptom of insanity, where these are due to some disease of the mind, and where it is shown that at some prior period of the man’s life he was not so afflicted.”

In the case of Tapedo v. State, 34 Okla. Cr. 165, 245 P. 897, 899, the court says:

“In cases where insanity is interposed as a defense, opinion evidence of insanity must be based upon facts submitted as a foundation for such opinion. Mere conclusions, without a showing of facts upon which such conclusions may logically be drawn, are regarded as insufficient.”

Finding no error, we are of the opinion that the judgment and sentence of the district court of Pittsburg county should be affirmed, and it is so ordered.

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


author: DOYLE, P. J.

text:
    CLAUDE CRAIN v. STATE.
    No. A-9632.
    May 19, 1939.
    (90 P. 2d 954.)
    C. Wayne Stevens, of Newkirk, for applicants.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for respondent.
   DOYLE, P. J.

The application filed in this court on May 15, 1939, sets forth the following facts: That on December 19, 1938, plaintiff in error, Claude Crain, was convicted in the district court of Ottawa county of the crime of larceny of domestic animals, and was sentenced to serve a term of 10 years in the state penitentiary; that his appeal bond fixed in the sum of $2,000 was made and executed by said principal, sureties, J. H. Mefford and Emma Mef-ford, applicants herein, and was duly approved by the court clerk of Ottawa county March 25, 1939; that from the judgment the appeal was duly perfected, the petition in error with case-made filed April 26, 1939; that the said Claude Crain is in the custody of the sheriff in the county jail of Ottawa county.

That a certified copy of said supersedeas bond, with endorsements thereon as provided by law, was delivered to the sheriff of Ottawa county. On May 9th, applicants filed their motion in the district court of said county, requesting the court to recommit said defendant, and to enter an order releasing and discharging J. H. Mefford and Emma Mefford, as sureties on the appeal bond of said Claude Crain.

That upon the hearing of said motion, the court found that said district court was without jurisdiction to entertain said motion, because an order releasing sureties on the appeal bond, after the appeal is perfected, can only be entered by the appellate court.

“Applicants further state that they are desirous at this time of being released as sureties of the defendant Claude Crain on the supersedeas bond heretofore made in said cause. That said defendant is now in the custody of the sheriff of Ottawa county, Okla., but may be released at any time to the sheriff of Delaware county, Okla., to answer a charge pending in the district court of Delaware county. That extradition proceedings were attempted by the state of Missouri since the conviction of said defendant on charges of felony that were unknown to these applicants at the time of execution of said super-sedeas bond.
“Wherefore, said applicants pray the court that they be released and exonerated as sureties on the supersedeas bond, of Claude Crain in the appeal now pending before this court, and that said court make such order recommitting said defendant Claude Crain and to grant such other and further relief as may be necessary to exonerate and release the sureties J. H. Mefford and Emma Mefford.”

Attached to said petition is a certified copy of said supersedeas bond, with endorsements thereon, as provided by law; also the findings and order of said Wm. M. Thomas, district judge, concluding as follows:

“The court further finds that a certified copy of the supersedeas bond, with proper indorsement of sureties thereon, as provided by law, has been delivered to the sheriff of Ottawa county, and that the defendant is in the custody of the sheriff of Ottawa county and in jail at this time. That proper notice, as provided by law, was given the county attorney of Ottawa county of said motion, and that the sureties appeared by their attorney, C. Wayne Stevens, of Newkirk, Okla.”

When an appeal is perfected, and the crime is a bailable one, pending the appeal, this court will, on proper showing, make all necessary orders relating to bail. Killough v. State, 6 Okla. Cr. 311, 118 P. 620.

Our Code of Criminal Procedure provides that sureties on an appeal bond have the right to terminate at any time the responsibility assumed by them by surrendering their principal into custody of the proper court or officer.

Section 2819, 22 Okla. Sts. Ann. sec. 1107, reads as follows:

“Any party charged with a criminal offense and admitted to bail may be arrested by his bail at any time before they are finally discharged, and at any place within the state; or by a written authority indorsed on a certified copy of the recognizance, bond or undertaking, may empower any officer or person of suitable age and discretion, to do so, and he may be surrendered and delivered to the proper sheriff or other officer, before any court, judge or magistrate having the proper jurisdiction in the case; and at the request of such bail the court, judge or magistrate shall recommit the party so arrested to the custody of the sheriff or other officer, and indorse on the cognizance, bond or undertaking, or certified copy thereof, after notice to the county attorney, and if no cause to the contrary appear, the discharge and exoneration of such bail; and the party so committed shall therefrom be held in custody until discharged by due course of law.”

And further provides, section 3196, as amended Session Laws, 1935, ch. 17, art, 5, p. 20, 22 Okla. St. Ann. sec. 1058:

“If an appeal is taken and the appeal bond given as provided in the preceding Section * * *. After the determination of the appeal in the Criminal Court of Appeals, or if the appeal is not perfected as provided by law, the defendant may be surrendered by the sureties to the proper authorities for the execution of the sentence. If the defendant be adjudged to be incarcerated in any penal institution and/or to pay a fine, said sureties shall be relieved of liability for such fine and costs upon surrender of the defendant to the proper authorities for incarceration pursuant to the judgment and prior to forfeiture of the bond.”

In American Jurisprudence, vol. 6, p. 112, sec. 165, it is said:

“The surety, in assuming the obligation of bail, becomes in law the jailer of his principal and has custody of him. This custody is merely a continuance of the original imprisonment. The sureties are subrogated to all the rights and means which the state possess to make this control effective. Whenever they choose to do so, the sureties may seize their principal and deliver him up in their discharge; and if that cannot be done at once, they may imprison him until it can be done. They may exercise their rights in person or by agent.”

And in section 167 we find this statement:

“At common law no process is necessary to authorize the arrest of the principal by his bail. The statutory requirements vary in this connection according to the jurisdiction, in some of which it is provided by statute that the bail may arrest the principal on a bailpiece or certified copy of the recognizance.” Annotation: 3 A.L.R. 188; 73 A.L.R. 1370.

In 8 C. J. S., Bail, § 87, page 170, we find this language :

“This right may properly be conferred by statute, and, indeed, it has been held that statutes authorizing the surety to surrender his principal are merely declaratory of the common law. Bail on appeal from a conviction may also surrender their principal and be relieved from liability on the undertaking, except that, where the undertaking of bail is to pay the fine, or such part thereof as the appellate court may direct, a surrender to serve sentence, or imprisonment until the fine is paid, cannot discharge such express undertaking to pay the fine.”

In the case of McIntosh v. State, 97 Okla. 134, 224 P. 702, the Supreme Court held:

“A certified copy of the bond in a criminal case delivered to the sheriff constitutes due process and authorizes the officer to apprehend and arrest the defendant, and, when arrested and detained by the sheriff, the sheriff becomes the custodian of the defendant, and the bondsmen are exonerated from liability on the bond.”

The question presented is whether the acts performed in the attempted surrender amount in law to a surrender within the purport of the statute. This application differs from the ordinary applications only in the fact that the principal was in custody, and not at large when the surrender was made.

In our opinion this difference in no way affects the right of surrender. Certainly, if the bail may surrender the custody of the principal to the sheriff at any time while he is at large, they may do so after his arrest on another charge, provided, of course, that the officer to whom they make the surrender may take him into custody. This might not be the fact if the officer to whom the surrender could be made is not the officer having him in custody on the other charge. In the present instance the officer then having the principal in custody was the officer entitled to his custody on the surrender of the bail, and after the surrender he but held him in custody on charges additional to the one on which he was then held.

Under a Washington statute providing for exoneration of bail by their surrender of the principal, it is held that a surrender may be made, although the defendant is in jail on another charge at the time. State v. Williams, 127 Wash. 658, 221 P. 289.

Under a statute providing that “those who become bail for an accused may at any time relieve themselves of their undertaking by surrendering the accused into the custody of the sheriff, in the county where he is prosecuted, ‘it was held it would be a sufficient surrender of a defendant then in jail 'upon a second charge that the surety went to the deputy sheriff, as claimed, and “told the deputy that he then surrendered his principal,” and that’ it would not be necessary for him to do the unreasonable thing of going into jail with the sheriff and there going through an unnecessary formality.” Rachel v. State, 102 Tex. Cr. 97, 277 S. W. 649. Annotation, 73 A.L.R. 1374.

Upon the record before us, this court is of the opinion that the surrender was properly made.

It is therefore considered, adjudged and ordered that the sureties on the appeal bond, given in this case, be exonerated and discharged, and the clerk of the district court of Ottawa 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 on the verdict of the jury.

BAREFOOT and DAVENPORT, JJ., concur.


author: DAVENPORT, J.

text:
    STATE v. BILL BYBEE.
    No. A-9455.
    May 26, 1939.
    (90 P. 2d 1077.)
    Lewis R. Morris, Co. Atty., and Phil E. Daugherty, Asst. Co. Atty., both of Oklahoma City, for the State.
    Joe Adwon and James L. Gowdy, both of Oklahoma City, for defendant in error.
   DAVENPORT, J.

This is an appeal by the state from the ruling of the trial court, sustaining a motion to suppress the evidence on the ground of an insufficient description in the affidavit and search warrant.

The state insists that the court erred in sustaining the motion to dismiss for the reasons:

First, that said trial court erred as a matter of law in sustaining the motion of the defendant in said cause to suppress the evidence in behalf of the plaintiff.

Second, that said trial court erred in holding that the search warrant, and the affidavit upon which said search warrant was based, and which were offered in evidence by the plaintiff in said cause, were insufficient, by reason of defective description of the premises to be searched.

Third, that said trial court erred as a matter of law in dismissing the action of plaintiff in error in said court based upon the erroneous findings of fact and conclusions of law, as shown by the case-made hereto attached and made a part hereof.

There is very little controversy between the state and the defendant in this case. The state in the affidavit for the search warrant and search warrant called for the searching of a brick building located at 323 West Reno street, Oklahoma City, Okla., and the proof shows that the officers searched a building at 325 West Reno street, Oklahoma City, Okla. The court held that under the proof in support of the motion to suppress, the search was improper, illegal, and was an unlawful seizure, and that any seizure under the search warrant was an unlawful seizure for the reason the warrant did not describe the building the officers searched.

The state and the defendant have briefed the case, and the state has at length discussed the question of the proximity of the number given in the warrant to search, and the number that was actually searched by the officers.

It is not difficult to understand the error in this ease for the reason that in Bybee v. State, 66 Okla. Cr. 105, 90 P. 2d 38, this court held the search in that case was sufficient for the reason that it not only attempted to give the number of the building, but stated specifically that it was the building occupied by the Belmont Cafe.

The state, to sustain its position that the affidavit and warrant in this case is sufficient, relies upon Stewart v. State, 52 Okla. Cr. 298, 5 P. 2d 173, 174, wherein this court stated:

“The presumption of law is that the affidavit was sufficient and the search and seizure lawful. The burden is on the defendant to show to the contrary.”

The state insists that the same rule was again followed in Holland v. State, 58 Okla. Cr. 404, 54 P. 2d 216.

The defendant, to sustain his contention, relies upon Scogin v. State, 61 Okla. Cr. 348, 68 P. 2d 111; Preston v. State, 42 Okla. Cr. 372, 276 P. 784; Bybee v. State, 66 Okla. Cr. 105, 90 P. 2d 38.

It is needless to extend this opinion further except to say that the trial court had the facts in support of the motion to suppress before it. The search warrant and the evidence introduced in support of the same clearly show that the officers did not search the building described in the search warrant, that the search was unlawful, and any evidence secured by the officers in making the unlawful search was an unlawful seizure.

Upon the record before it, the trial court was amply justified in sustaining the motion to suppress. There being no error in the record, the judgment of the trial court is affirmed.

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


text:
    MOLLIE PARIS v. STATE.
    No. A-9496.
    May 26, 1939.
    (90 P. 2d 1078.)

      H. M. Shirley, of Coalgate, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, P. J.

The information charged that in Coal county, on or about the 19th day of August, 1937, Mollie Paris did have in her possession about 12 pints of tax-paid whisky, with the unlawful intent to sell the same.

On the trial the jury returned a verdict of guilty and fixed her punishment at a fine of $50 and confinement in the county jail for 30 days.

Various errors are assigned, but the only question we deem necessary to discuss is whether the evidence adduced on the trial is legally sufficient to support the verdict and judgment of conviction.

Walter Clark, sheriff, testified that he went to the home of the defendant, accompanied by a deputy, and found 12 pints of bottled in bond whisky; he produced and identified the same.

C. C. West, deputy sheriff, testified that they found this whisky in John Paris’ residence, where the defendant lived with her husband and children, in the town of Cottonwood, Coal county.

On the part of the defendant, John Paris, testified that his age is 63 years, lived at Cottonwood with his wife and eleven children, had lived in Oklahoma for 35 years; that about eight years ago he was afflicted with tuberculosis and was committed to the tubercular sanitarium at Tali-hina, and was there about four years; that the liquor the officers seized belonged to him and was for his own use; that on the advice of his physician, Dr. Sadler, he used the whisky by taking a few toddies every day; that he was married to Mollie Paris, the defendant, 28 years ago, and they had eleven children living with them.

As a witness in her own behalf, Mollie Paris testified that her age was 45 years; that she has now living eleven children, all present in the courtroom at this time; that she knew that her husband had the whisky there, and used it for medicine; that she never did sell whisky to any person at any time.

One of the grounds of the motion for a new trial, and here assigned as error, is that the court erred in refusing to give instructions on the presumption of law that she was under coverture, as provided by statute. Penal Code, sec. 1802, 21 Okla. St. Ann. § 157. And requiring the jury to find that she was acting independently of her husband’s control in order to find her guilty.

The instructions requested were refused by the court and the instructions given by the court did not submit the question of whether she was a free agent or acting under the direction of her husband.

It is contended that the inference of duress arises under the provisions of sections 1800 and 1802, Penal Code, 21 Okla. St. Ann. §§ 155, 157, and that there is no evidence to rebut the inferences.

In the case of Sentell v. State, 61 Okla. Cr. 229, 230, 67 P. 2d 466, 468, it is said:

“The general rule that, as to criminal acts committed in the presence of her husband, a married woman is presumed to have acted under coercion, is, of course, where recognized, applied to cases of liquor-law violation. But in proving the unlawful manufacture, or the possession of liquor, or the maintenance of a liquor nuisance, distinctive questions are presented in reference to inferences arising from the wife’s presence, her failure to object or to take other action, or her assistance rendered in avoiding detection of the crime. In such cases, the rule generally recognized, even where the presumption of coercion does not obtain, is that the husband as the head of the household is presumptively responsible for conditions there, and that the wife cannot be held accountable therefor in the absence of some evidence of guilt in addition to the fact of her mere presence in the place of the offense. See 71 A.L.R., annotation, p. 1127. * * *
“It may be said that marriage does not take from the wife her general capacity to commit crime, but it casts upon her the duty of obedience to her husband, and, in the absence of proof to the contrary, the law indulges a presumption that, where a crime, with some exceptions, was committed by a married woman, conjointly with or in the presence of her husband, prima facie she was not criminally liable, as it is presumed that she acted in obedience to his commands and under his coercion.
“In some jurisdictions the presumption of coercion has been abolished by statute, and married women are made fully liable for their criminal acts, see State v. Renslow, 211 Iowa, 642, 230 N.W. 316, 71 A.L.R. 1111, while in other jurisdictions they have been expressly declared incapable of committing crimes, except felonies, when acting under the threats, command, or coercion of their husbands.
“In 13 R.C.L. p. 1238, § 275, it is said: ‘According to the better view, where a married woman commits a criminal act in the presence of or jointly with her husband, the presumption of coercion is prima facie only, and she may be held criminally liable if it is shown that she acted of her free will and volition. This presumption is very slight and may be rebutted by slight circumstances. Still practical weight must be given to this presumption, and in the absence of any evidence to rebut it, her conviction cannot be sustained.’ ” Neff v. State, 29 Okla. Cr. 2, 231 P. 898; Sanders v. State, 48 Okla. Cr. 65, 289 P. 798; Zammer v. State, 51 Okla. Cr. 125, 300 P. 325; Davis v. State, 53 Okla. Cr. 85, 7 P. 2d 911.

In the case at bar a prima facie case of coercion was established when it was shown that the defendant was a married woman, occupying the premises with her husband as their home, and that the criminal act, if any, was in the presence of her husband. There was no evidence offered to show that she acted upon her own initiative, or that she acted freely and of her own volition, and there was no evidence offered to rebut the presumption that she acted under coercion of her husband.

The Code of Criminal Procedure, sec. 3090, 22 Okla. St. Ann. § 850, provides that if the evidence introduced by the state fails to incriminate the defendant, or as a matter of law is insufficient to show that the defendant is guilty of the offense charged, it is not only the right but the duty of the trial court to advise the jury to return a verdict of acquittal.

From the record before us, we are clearly of the opinion that for the reasons stated the evidence wholly fails to show that this defendant was guilty of the offense charged, and for this reason the trial court should have advised the jury to return a verdict of acquittal, because the evidence is insufficient to warrant a conviction.

Because the verdict is contrary to law and the evidence entirely insufficient to sustain a conviction, the judgment appealed from is reversed and the cause remanded, with direction to dismiss.

BAREFOOT and DAVENPORT, JJ., concur.


text:
    ALBERT MICHELIN v. STATE.
    No. A-9500.
    May 26, 1939.
    (90 P. 2d 1081.)

      Geo. T. Arnett, of Idabel, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty., and Howard Phillips, Co. Atty., and Tom Finney, Sp. Pros., both of Idabel, for the State.
   BAREFOOT, J.

Defendant was charged with the larceny of domestic animals in McCurtain county; was tried, convicted, and sentenced to serve two years in the penitentiary, and has appealed.

The defendant was charged with the larceny of one hog (Hampshire) on April 30, 1937, the personal property of Bobo Smith, in McCurtain county.

It is contended, first, that the court erred in refusing to sustain the demurrer of defendant to the evidence, and failing to give an instruction directing a verdict of not guilty; and, second, that the court erred in admitting incompetent and improper evidence over the objection of defendant. Both of these errors may be considered together.

It is revealed by the record that defendant was charged in two cases in the district court of McCurtain county. The cases being Nos. 2779 and 2780. In case No. 2779 defendant was charged with the larceny of one hog on April 30, 1937, the personal property of Bobo Smith, and in case No. 2780 with the larceny of two hogs, on April 30, 1937, the personal property of Bobo Smith. The same proceedings were had in both of the above cases in reference to the filing of motions and demurrers, and on the 20th day of October, 1937, the defendant was placed on trial in case No. 2779. The evidence in this case revolves around a hog which defendant had sold to Milton. Whitten, and by him to Clarence Lane, and which the state contended was the property of Bobo Smith. In the trial of this case, the court permitted the state to introduce evidence concerning the larceny of the two hogs which involves the charge in case No. 2780. It is the contention of defendant that this constitutes proof of two separate and distinct charges or crimes, and that under the general rule, evidence of another offense, though of the same nature, is not admissible for the purpose of showing that the defendant is guilty of the particular offense charged. There is no doubt of the correctness of the general rule as above announced. It is based upon the sound reason that no person shall be convicted of an offense by proving that he is guilty of another. This rule has been adhered to by this court from its earliest decisions to the present time, and is the general rule announced by all authorities. State v. Rule, 11 Okla. Cr. 237, 144 P. 807; Miller v. State, 13 Okla. Cr. 176, 163 P. 131, L. R. A. 1917D, 383; Middleton v. State, 16 Okla. Cr. 320, 183 P. 626; Herndon v. State, 16 Okla. Cr. 586, 185 P. 701; Graham v. State, 28 Okla. Cr. 266, 230 P. 763; People v. Molineux, 36 Misc. 435, 73 N. Y. S. 806; Id., 168 N. Y. 264, 291, 61 N. E. 286, 293, 62 L. R. A. 193; Underhill on Criminal Evidence, Sec. 88; People v. Sharp, 107 N. Y. 427, 471, 14 N. E. 319, 1 Am. St. Rep. 851; 2 Bishops New Crim. Proc., Sec. 1120; 16 C. J., Sec. 1132, p. 586. But at the same time this court has recognized that there are well established exceptions to this general rule, which exceptions are as well embedded in the law as the rule itself. An exhaustive discussion of this principle, with the exceptions to the general rule, were not only discussed by Judge Doyle in the case of State v. Rule, supra, but the general authorities were there cited, which give the reason for the exception. It is there shown that the general rule does not apply where the evidence of the other crime tends directly to prove defendant’s guilt of the crime charged. Evidence which is relevant to defendant’s guilt is not inadmissible because it proves or tends to prove him guilty of another and distinct crime. It is often the case that they are so inseparable that the proof of one necessarily involves proving the other. Another recognized exception is that where the proof of another crime is a part of the res gestae. Often the commission of other crimes are permitted to prove the criminal intent. Further exception to the general rule is where it is shown that the crime is a part of a plan or system of criminal action. This more often applies in cases of embezzlement or swindling, or crimes of this character. The court in the body of the opinion, says [11 Okla. Cr. 237, 144 P. 811]:

“We are of opinion that evidence of other similar transactions under the same contract, whether before or afterwards, was relevant to the issue, and was not made inadmissible by reason of the fact that it would tend to prove the defendant guilty of another offense than that charged in the information. It was clearly admissible for the purpose of proving guilty knowledge, or the intent with which the act charged was committed. They were acts of the defendant in a continuous series of transactions with, the same party under the same contract, and were precisely of the same character as the act for which he was being tried, and they were so connected that they formed a part of the res gestae, and were a part of the entire transaction under the defendant’s contract to do the legislative printing for the House of Representatives. It may be regarded as settled that, where the offense charged is so connected with the other offenses sought to be proved as to form a part of an entire transaction, evidence of the latter may be given to show the character of the former. We think the evidence offered was clearly admissible under the first three of the exceptions stated above. It seems to us that the evidence offered was also admissible under the fourth exception stated above, for the purpose of proving a pre-existing design, or systematic scheme or plan, on the part of the defendant to cheat and defraud the state, which included the doing of the particular act charged.

“In the case of Koontz v. State, 10 Okla. Cr. 553, 139 P. 842 [Ann. Cas. 1916A, 689], this court said:

“ ‘Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish a common scheme or plan, embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, or to connect the defendant with the commission of the crime charged.’ ”

These exceptions to the general rule have been upheld in many cases involving not only embezzlement, swindling, and cases of a kindred nature, but also larceny, robbery, burglary, and other similar crimes. Sledge v. State, 40 Okla. Cr. 421, 269 P. 385; Jackson v. State, 42 Okla. Cr. 86, 274 P. 696; Oldham v. State, 42 Okla. Cr. 209, 275 P. 383; Oldham v. State, 43 Okla. Cr. 314, 278 P. 663; Cole v. State, 50 Okla. Cr. 399, 298 P. 892; Reniff v. State, 53 Okla. Cr. 448, 13 P. 2d 592; Quinn v. State, 54 Okla. Cr. 179, 16 P. 2d 591; Thacker v. State, 55 Okla. Cr. 161, 26 P. 2d 770; Brockman v. State, 60 Okla. Cr. 75, 61 P. 2d 273; Mason v. State, 60 Okla. Cr. 427, 65 P. 2d 203; 16 C. J., sec. 1133 et seq.

We realize that this question is of serious import in the trial of criminal cases in this state. Every person charged with the commission of a crime is presumed to be innocent until his guilt has been established beyond a reasonable doubt; that he shall be charged with but one offense, and that he shall not be convicted for the commission of an offense other than the one charged. The court should, therefore, be very careful in drawing the line as to the introduction of this testimony, and in seeing that it comes clearly within the exception to the general rule before it is permitted to be introduced. We realize that in the proof of the charge, in order to ascertain the intent, the motive, or the identity of the person charged, it often develops in the trial of the case that other crimes have been committed by defendant, and often a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other. For the above reason, the courts have universally recognized the above well-defined exceptions to the general rule that the state cannot prove against a defendant any crime not alleged, either as a foundation for a seperate punishment or as aiding the proofs that he is guilty of the one charged. The cases from this court, including those cited in defendant’s brief, Satterfield v. State, 32 Okla. Cr. 98, 240 P. 151; Miller v. State, 13 Okla. Cr. 176, 163 P. 131, L. R. A. 1917D, 383; Wyrick v. State, 37 Okla. Cr. 115, 255 P. 163; Ruffin v. State, 38 Okla. Cr. 343, 261 P. 378; Pearson v. State, 44 Okla. Cr. 19, 279 P. 700; Brockman v. State, 60 Okla. Cr. 75, 61 P. 2d 273, are based upon facts where the state was permitted to introduce evidence of other definite specific crimes which were not directly connected with the charge alleged in the information or indictment, and not a part of the res gestae. These cases recognize the exception to the general rule as above stated.

Applying the rules of law above announced to the facts in the instant case, we find that defendant and the prosecuting witness, Bobo Smith, were engaged in the business of farming and stock raising in McCurtain county. Their hogs used the same open range. In the early spring of 1937, the latter part of March or the first of April, a witness, Charlie Lalley, who worked and rode the range for Dr. Tracey, recognized certain hogs in the pens of defendant as being the hogs of the prosecuting ’’witness. He noticed that the marks had been recently changed. He reported this fact to Smith, who in a short while made an investigation, together with other parties who lived near the home of defendant. By this investigation certain hogs belonging to the prosecuting witness, Bobo Smith and Pierce Woods, some three of each of said parties, were found on defendant’s premises. The markings of these hogs showed to have been changed in the right ear of each. The defendant was not at home when the investigation was made, and it was decided by the parties that the hogs should be placed in a truck and hauled up by defendant’s place by Clarence Lane, and that Lane should tell defendant he had bought the hogs from a man by the name of Tate, who lived near the premises, and see if defendant would claim the hogs. This was done, but defendant was not at home at the time, but the two men who were working for him, Frank Clayburn and Felix Futrell, examined the hogs and stated they were the hogs of defendant. The hog with which defendant is charged with stealing in this case was not on the truck, but was at the home of Clarence Lane, as this particular hog had been theretofore sold by defendant to a man by the name of Wilson Whitten, and by him traded to Clarence Lane. The possession of this hog was admitted by defendant, and he testified he owned it as will be hereafter shown, and that he had it penned for the reason that it was “breechy”, and had gotten into his field several times and for this reason he disposed of it.

The defendant, when he returned home, went to the home of Pierce Woods and Clarence Lane, where the hogs had been taken. He identified the hogs as his own, and claimed they were a part of the hogs he had purchased from Ira Alexander, his brother-in-law. This conversation was had in the presence of Clarence Lane and Rushman Roden, who both testified at the trial to this conversation.

Many witnesses were offered by the state to show the mark of the prosecuting witness, which was “split and under bit the right, and crop and half under crop the left.” That they examined the hogs found at defendant’s home, and that the mark had been changed on the right ear and that there had been no change on the left ear. Several witnesses further identified a part of the hogs by flesh marks and other peculiarities of mark. They were positive in their identification. Several other hogs afterwards found at defendant’s home and upon which the marks had been changed were identified as the hogs of the prosecuting witness, Bobo Smith. The hog which is involved in the case on trial was especially identified by several witnesses . as the property of the prosecuting witness. Its right ear had been practically all cut away close to its head. Many of the witnesses for the state had known the mark of the prosecuting witness, Bobo Smith, for over a period of ten years, and testified to the peculiarity of his marking, and •their being able to identify his mark.

Four of the hogs had been brought to Idabel, including the “Whitten hog,” and were examined by the jury at the time of the trial. It was also shown that several witnesses for the state had contributed to a fund to employ a special prosecutor in this case. The prosecuting witness testified that he had not seen his hogs since October or November, 1936, and that they were on the “range.” He testified they were “listed” hogs, and by this is meant “one that is black with a white stripe across the shoulder and back.”

Defendant, in his own behalf, testified that he was 49 years of age, and had lived for seven years eight miles north of Broken Bow, and that he was employed as superintendent of Beaver Bend Park, by the Department of the Interior. That he was also engaged in the farming and ranching business, and engaged in buying and selling hogs to a limited extent. That sometime during October or November, 1936, late in the evening, a man by the name of “Walker,” and whose given name he did not know, came to his home in a Ford truck. The turtle-back had been taken out and a large crate was on it, which contained nine hogs. That he finally purchased all of the hogs from the stranger “Walker” for $20. That he attempted to pay him by check, but that “Walker” asked him to pay him in cash, and said, “No, I am going north, if you have the money I will appreciate it.” That he did not have the money, but secured the same from his wife and paid him in cash. That he had not seen or heard tell of “Walker” since that date, although he had made efforts to locate him in order to have him as a witness, but he had been informed that he had gone to Arizona. At his request his employees, Frank Clayburn and Felix Futrell, took possession and unloaded the hogs, and he instructed them to mark them as near as they could- in his mark which was “crop the right and under half crop the left.” The defendant further testified that the hogs which he identified, and the ones claimed by the prosecuting witness, Bobo Smith, were the hogs which he purchased from the stranger “Walker.” The defendant was corroborated in the above statement by his wife, Frank Clayburn and Felix Futrell, his employees, and by Buster Lynn, his nephew, who testified to being present when the hogs were sold to defendant.

With reference to the “Whitten hog,” he admitted selling it to “Whitten” and as a reason stated that it had been getting in his field and that the boys had “dogged” it and one of its ears was nearly torn off. That he told the boys not to do that, but to pen it, which they did, and for this reason he sold it. He claimed it was one of the identical hogs he had purchased from “Walker.” He further testified that when he bought the hogs from “Walker” he inquired of “Walker” where he got the hogs, and he replied:

“A. Yes, I did. A. He told me he bought them in the bottom. A. He told me he bought them from a man by the name of Simpson.”

The witness Cal Simpson testified for defendant. He said he lived south of Idabel. That he had sold six hogs to a man by the name of “Walker.” That he had traded him the six hogs for a case of whisky. “That they were mixed up pigs. Some spotted and some darker.”

“Q. Were any of those hogs Hampshire, had Hampshire marks? A. Yes, sir, some were. They were little— looked Hampshire and Poland China mixed, a mixed breed of pigs.”

He testified he bought the pigs from a negro woman who lived in the Red river bottom, whose name he did not know. He kept them about a week before he sold them. That the man “Walker” had three other pigs in his truck at the time he bought the hogs from him. The witness was asked, on cross-examination:

“Q. If you did not tell Mat Brantley that the hogs involved in this case, that you bought from Mike Plant’s wife, and traded the hogs to Felix Futrell for whisky? A. No, sir, I didn’t. Q. Did you tell him anything like it? A. We were talking about hogs me and another boy bought before. I didn’t tell him what I done with them nor what I paid. Q. I will ask you if Mr. Mat Brantley didn’t tell you, Now that won’t do for I bought Mike Plant’s hogs myself? A. No, sir. I bought Mitchell Plant’s hogs, didn’t have any to do with Mike. Q. Well, Mitchell Plant’s? A. Yes, sir.”

Mat Brantley, on cross-examination, testified:

“Q. What relation if any are you to Cal Simpson? A. We are brothers-in-law. Q. Back about the time of the preliminary hearing in this case, did you have a conversation with Cal Simpson in which Cal Simpson told you that he bought the hogs involved in this case from Mitchell Plant’s wife? A. Yes, sir. Q. And swapped the hogs to one of the Futrell boys for whisky? A. Yes, sir. Q. In reply to that did you tell Cal Simpson that that sort of testimony wouldn’t do because you had bought Mitchell Plant’s hogs? A. Yes, sir, I told him, I says, Cal, that is too far back for evidence. We bought those hogs, you bought those hogs and I bought all she had, I come along later and bought all she had about two years ago, and I said, Cal, them hogs won’t work in that case. Then I says, It ain’t going to help no how. I wouldn’t come out with that evidence.”

Quite a bit of evidence was offered by the state and the defendant which it is unnecessary to review. The case of Davis v. State, 7 Okla. Cr. 322, 123 P. 560, 563, is one very similar to the case at bar. In that case the court said:

“The possession of property, recently stolen, is evidence against the accused, which, like all other evidence, is to be taken and considered by the jury in connection with the other evidence in the case. Mr. Bishop says:
“ ‘When the fact of a theft has been shown, and the question is whether or not the defendant committed it, his possession of the stolen goods, either sole or joint with others, at a time not too long after the stealing, is a circumstance for the jury to consider and weigh in connection with the other evidence. Its significance will vary with its special facts, and with the other facts of the case, among which are the nearness or remoteness of the proven possession to the larceny, the nature of the thing as passing readily from hand to hand or not, what explanations he made on it being discovered that he had the goods, together with such other facts as ought reasonably to influence a juror’s opinion.’ 2 Bish. New Cr. Pro. par. 740.
“A question merely of fact is presented by the evidence, dependent wholly upon the credibility of the witnesses and the weight of their evidence. There could be no case suggested presenting a matter more proper for the decision of a jury. The jurors are the sole judges of the credibility of the witnesses who testify before them; and they are not bound to, nor can they be compelled to, credit the testimony of any witness, whether contradicted or not. When a jury returns a verdict of guilty in this character of a case, it indicates that the explanation of the defendant’s possession, no matter how plausible, was not believed by the jury; and, unless upon a fair consideration of all the facts and circumstances in evidence, it appears that the jury were not governed by the evidence in their finding, the verdict will not be disturbed on the ground of insufficiency of the evidence.”

And in the ease of Starr v. State, 7 Okla. Cr. 574, 124 P. 1109, 1110, a companion case to the Davis Case, the court said :

“It was shown that these cattle all ran together on the same range, and were all taken at the same time. The evidence objected to was a part of the res gestae, and was admissible to negative the idea of a mistake and to prove the intent with which the cattle were taken.”

From what has been stated, it will be seen that the facts in the instant case come squarely within the exceptions to the general rule as above indicated. The facts were that all of the hogs covered by both cases Nos. 2779 and 2780 were the property of the prosecuting witness, Bobo Smith, and this must be taken as true, from the findings of the jury. They were taken from the same range, at the same time, from the same owner, and all of the facts were so connected that it was really one larceny, regardless of the fact that defendant may have disposed of one of the hogs, known as the “Whitten hog,” to a different party. As a matter of fact, the defendant, under the facts of the case, should only have been charged with one offense instead of two. Under these facts there is no doubt but that a prosecution of case No. 2779 is a bar to the successful prosecution of case No. 2780, and that defendant would have the right to plead former jeopardy in that case. If these hogs were stolen at the same time, and it was a single transaction, involving the same parties, the state would not have the right under the law to divide the cases, and prosecute the defendant on separate cases for each hog stolen. The record does not reveal what disposition has been made of case No. 2780, but from what we have above stated we presume the same will be dismissed if it has not already been disposed of, and the defendant will not be tried upon that offense.

In the trial of this case the court, by instruction No. 6, limited the purpose for which the evidence above referred to was to be considered by the jury, and they were instructed that the evidence in question was admitted for the purpose of showing intent on the part of the defendant, and for the purpose, of identifying the hog with which the defendant was- charged with stealing, and could not be considered by the jury for the purpose of showing or proving the defendant stole the hog in question, and the court further instructed the jury “you should be careful to exclude from your consideration any testimony other than that which tends to show that the defendant stole the hog with which he is charged in the information.” Under the facts in the case the defendant could not have expected any fairer charge. The facts proved were clearly a part of the res gestae, and under the rules of law above announced were clearly admissible.

For the reasons above stated, the judgment of the district court of McCurtain county is affirmed.

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


author: PER CURIAM.

text:
    Ex parte CICERO LONG.
    No. A-9672.
    June 5, 1939.
    (91 P. 2d 100.)
    Wallace Wilkinson, of McAlester, for petitioner.
    Paul Gotcher, Co. Atty., of McAlester, for respondent.
   PER CURIAM.

The petitioner, Cicero Long, filed in this court June 5, 1939, a petition wherein he alleges that he is unlawfully restrained of his liberty and imprisoned in the county jail of Pittsburg county by Walter Haggard, sheriff of said county, and that his unlawful confinement and detention consists of this, to wit: That, by information filed in the district court of said county, he is charged with the murder of one Gilbert Stewart, alleged to have been committed in said county, on or about the 30th day of April, 1939, by striking the said Gilbert Stewart with a certain club, about twenty-six inches in length, thereby inflicting certain mortal wounds, of which said wounds so inflicted said Gilbert Stewart languished and did die on the 13th day of May, 1939, and on his preliminary examination he was held without bail to the district court of Pittsburg county. That later an application for bail was made to the district judge of said county, which application was denied.

He further alleges that he is not guilty of the crime of murder as charged in the information; that upon the evidence introduced at said preliminary examination, together with the testimony of the petitioner, as a witness in his own behalf before the district court, and the testimony of other witnesses which are presented herewith, it is shown that the proof of his guilt of the crime of murder is not evident nor the presumption thereof great.

On this day petitioner being represented by his counsel, Wallace Wilkinson, and the state by Paul Gotcher, county attorney of Pittsburg county, and after hearing the argument of counsel the cause was submitted.

Since the weight and effect of all the evidence will be submitted to a jury, and should be so submitted without an intimation from this court, or the trial court, as to its probative force, we refrain from expressing our views, so far as it relates to the weight and credibility of the evidence.

After considering the application and the evidence in support thereof, we think the issue of manslaughter in the first degree is presented by the testimony. It follows that petitioner, as a matter of right, is entitled to be admitted to bail pending further proceedings in the trial court, and it is the conclusion of the court that bail should be allowed in the sum of $7,000, conditioned as by law provided for his appearance to answer said charge in the district court of Pittsburg county. Said bond to be approved by the court clerk of said county. And upon the approval of said bond, he shall notify the respondent, sheriff, who shall thereupon discharge the petitioner from custody.


text:
    G. W. CLARK v. STATE.
    No. A-9458.
    June 9, 1939.
    (91 P. 2d 686.)

      H. W. Wright, of Cherokee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   DAVENPORT, J.

The defendant was by information charged in the county court of Alfalfa county with the crime of unlawfully, willfully, and wrongfully, and with intent to cheat and defraud Oscar Montgomery by means of a false instrument, to wit: a check for $4.25, made payable to the Oscar Montgomery Motor Company, and drawn on the Central National Bank of Alva, Okla.; was tried on said charge, found guilty, and sentenced to pay a fine of $10. From the judgment and sentence, the defendant appeals.

There is very little conflict in the testimony. The defendant admits that he had some work done at the Montgomery Motor Company, and that he drew a check on the bank named in the information for the sum of $4.25.

Oscar Montgomery claims that he traded the cheek in payment to another party, and that the party afterwards returned the check to him, saying the bank would not pay the same.

There is no testimony from any of the bank officers or anyone else that the check was ever presented to the bank for payment and refused.

The defendant testified in his own behalf and admitted that he wrote a check for $4.25, and says he delivered the same to C. A. Womack, the mechanic in the place of business of the Montgomery Motor Company, and at the time told him that the money was not in the bank to cover the check at that time, but he would have it there within the next few days.

Womack was not called as a witness in the trial of the case, but the defendant testified that he had deposited the money in the bank a few days after the check was given, and that the money was there to pay the check.

The facts established by the evidence substantially show on behalf of the state that a check for $4.25 was given to the Montgomery Motor Company for work done on the defendant’s car. The defendant admits that he wrote the check; and Oscar Montgomery of the Montgomery Motor Company claimed the check was not paid when presented to the bank.

The defendant insists that the mechanic, an agent of the prosecuting witness, understood when he gave the check that the money was not in the bank to cover it at that time.

In the trial of the case, over the objections of the defendant, the county attorney was permitted to ask the defendant question after question as to whether or not he had given other checks on the bank that had not been paid when presented, going back as far as 12 months before this transaction. A number of the checks he asked about, the defendant denied that he had any knowledge that they were not paid when presented, and denied in several instances that he had given checks as questioned by the county attorney.

The county attorney closed the state’s evidence without introducing any testimony whatever to show that the defendant had given, sometime previous to this check in question, checks on the bank that had not been paid when presented.

Defendant has assigned nine errors alleged to have been committed by the court in the trial of his case.

First assignment being that said court erred in overruling the motion of plaintiff in error for new trial.

Second, said court erred in overruling the motion of plaintiff in error for an arrest of judgment.

Sixth, said court erred in admitting incompetent, irrelevant, and immaterial evidence offered by the state of Oklahoma.

Seventh, said court erred in refusing to admit admissible, competent, and legal evidence of the plaintiff in error during the trial of said cause.

Eighth, that the verdict of the jury is contrary to the evidence and law submitted.

Ninth, that said court erred in giving instructions 4. 6. 8. and 10.

The assignments herein set out are the only ones it is deemed necessary to consider.

The assignments considered will be discussed together as they relate to the question of the admission of incompetent testimony, the refusal of the court to permit testimony offered by the defendant, and to the giving of instruction 6.

The record discloses that the defendant, after testifying himself, offered a duplicate deposit slip for the purpose of showing that shortly after he gave the check in question, he had deposited sufficient funds in the Central National Bank of Alva to cover this $4.25 check. The defendant insists that the court erred in not permitting him to show the deposit in the bank to cover the amount of the check in question as there was no positive testimony other than by Oscar Montgomery through the party that Mr. Montgomery had turned the check over to the bank, and the bank had refused payment of the check. This testimony was hearsay.

It is not disputed by the state that the defendant had been carrying an account with the bank upon which the $4.25 check was drawn. The defendant testified that within a certain number of days after the check was drawn, he deposited sufficient funds to cover the check in question and that he had a certificate of deposit from the bank showing that fact which the court refused to permit him to introduce.

In view of the testimony of the defendant that he delivered this check to Mr. Womack, the mechanic of the Montgomery Motor Company business, and told him at the time the funds were not in the bank to cover it, but there would be sufficient funds within five days to take care of the check; notwithstanding, Mr. Montgomery testified that the defendant delivered the check to him.

The defendant’s offer of a duplicate certificate in the absence of the state calling any of the bank officials was a circumstance which he had a right to show. A deposit slip has been recognized by this court and by the Supreme Court as admissible evidence in many cases. White v. State, 36 Okla. Cr. 57, 252 P. 455; Hastings v. Hugo National Bank, 81 Okla. 189, 197 P. 457; Turner v. American National Bank, 83 Okla. 259, 201 P. 514. The court erred in not permitting the introduction of the duplicate certificate of deposit.

The defendant in his motion for a new trial put the court on its notice that what he had testified to in the trial of the case as to the delivery of the check to Mr. Womack was true. He attached an affidavit to his motion for a new trial from the mechanic, Clarence Womack, in which affidavit the witness says that G. W. Clark wrote the check for $4.25 in the back of the Montgomery Motor Company place of business, and gave said check to him; and that Mr. Oscar Montgomery was not present, and did not see the check written. Mr. Womack in his affidavit further states that since delivery of the check, Mr. Montgomery received a card from G. W. Clark asking him to send the check referred to back through in event the bank failed to honor it; that the money was in the bank to pay it.

The mechanic, Womack, was not called as a witness in the trial for the reason that he was not in the community at the time of the trial; and stated in his affidavit in support of the motion for a new trial that he was in Dalhart, Tex.

It is next urged by the defendant that the court erred in permitting the state to go into the question of his having issued checks prior to the time of this check on the bank, and that the check had not been paid when presented, going as far back as 12 months.

No testimony was introduced by any officer of the bank or any one interested in the bank to show that the defendant was in the habit of issuing checks on the bank when he had no funds to pay them, nor was any testimony introduced by any of the officers of the bank or any one representing the bank to show that the defendant was not carrying an account with the bank; notwithstanding, sometimes his deposit might be exhausted.

In Emerson v. State, 18 Okla. Cr. 109, 193 P. 743, in the syllabus the court said:

“Evidence of an offense other than the one charged is admissible only when it tends to prove the offense charged. To be competent and admissible, it must have some logical connection with the offense charged.”

The questions propounded to the defendant by the county attorney, over his objections, as to the former checks issued, had no logical connection with the offense charged in this case. In fact, there was no testimony whatever introduced by the state showing that the defendant had been guilty of issuing the checks inquired about by the state.

In Hughes v. State, 51 Okla. Cr. 11, 299 P. 240, the court in the syllabus stated:

“Where the state charges and relies upon a particular sale to constitute a violation of the prohibition law, it is error for the court to permit proof of other sales.”

In this case there was no denial by the defendant that he issued the check in question; and he was being tried upon the specific charge of issuing the check for $4.25.

It was error for the court to permit the county attorney to propound the questions to the defendant as to whether or not he had issued checks prior to the one in question that had been presented to the bank and not paid.

Notwithstanding that the defendant objected to the questions, and his objections were overruled, he answered that he did not remember, or that he had not issued such checks, and the state closed its testimony without offering any testimony that the defendant had been guilty of issuing checks on the bank prior to the check in question, having some logical connection with the offense charged. Call v. State, 89 Okla. Cr. 264, 264 P. 643; Pearson v. State, 44 Okla. Cr. 19, 279 P. 700; Welch v. State, 41 Okla. Cr. 207, 271 P. 172; Ellis v. State, 54 Okla. Cr. 295, 19 P. 2d 972; Brockman v. State, 60 Okla. Cr. 75, 61 P. 2d 273.

In State v. Rule, 11 Okla. Cr. 237, 144 P. 807, in the syllabus the court said:

“Where evidence is offered tending to prove that the defendant has committed an offense other than that for which he is on trial, good practice requires that the prosecuting attorney should state the purpose for which the evidence is offered, and, if it is admissible for that purpose, the trial court should instruct the jury as to the purpose for which they may consider it.”

No statement was made by the county attorney or anyone else as to why he desired to show in the trial of this case that, prior to the issuing of the check in question, the defendant had issued other checks that had not been paid.

The closing of the state’s testimony without attempting to contradict the defendant’s testimony on the question clearly shows that the effort made by the county attorney was for the purpose of prejudicing the minds of the jurors against the defendant.

Questions like the questions propounded to the defendant by the county attorney should never be permitted unless the state is in a position, if the defendant denies them, to prove the truth of the statements contained in the questions.

The defendant insists that the court erred in his instruction 6, which is as follows:

“You are instructed that the defendant in this case is on trial for one offense only, and that is the offense charged and set out in the information. The court has permitted you to hear certain testimony which tends to show the commission of other offenses, and in this connection you are instructed that you will consider the evidence of other and similar offenses for the sole and only purposes of determining whether or not the defendant is guilty of the specific crime charged in the information and for no other purpose.”

The underlying vice in the foregoing instruction is that the court assumes in the instruction that there had been testimony introduced which tends to show the commission of other offenses by the defendant, when in truth and in fact no such evidence appears in the record, but only insinuations by the county attorney in the questions propounded to the defendant that at sometime this defendant might have issued a check on the bank which was not paid when presented.

This instruction is not clear and does not correctly advise the jury as to the law applicable to the facts.

The defendant urges that the evidence is not sufficient to make out a case under the provisions of -section 2086, O. S. 1931, 21 Okla. St. Ann. § 1541; that part of the section applicable to this case, in part, reads as follows:

“Every person who, with intent to cheat and defraud, shall obtain or attempt to obtain from any person * * * any money, property, or valuable thing * * * by means or by use of any * * * false or bogus checks * * * shall be deemed guilty of a felony and shall be punished by imprisonment in the state penitentiary, for a term not exceeding seven (7) years. * * *”

The phrase “by means or use of any false or bogus checks” is descriptive of the offense and is an essential element of the crime for the state to allege and prove. The state must allege and prove the false and bogus character of the check, and that it was well known to the defendant at the time he issued it for a fraudulent purpose.

The testimony shows that there was no effort on the part of the defendant to deceive or defraud the Montgomery Motor Company. The testimony of the defendant is that he advised Mr. Womack, to whom he delivered the check after it was written, that the money was not in the bank, but would be within a few days; and the testimony of the defendant shows that he had made a deposit in the bank, and that he offered to corroborate his testimony by the duplicate deposit slip issued by the bank on which the check of $4.25 was drawn.

The court in the trial of this case erred in permitting the county attorney to ask the defendant the questions herein complained of as to the prior issuing of checks having no connection whatever with the check in question, and erred in failing to advise the jury correctly as to the law applicable to the facts.

After a careful reading and study of the record, we have reached the conclusion that the testimony is insufficient to sustain the allegations of the information.

We further hold that the defendant did not receive a fair and impartial trial as guaranteed by the Constitution of the United States and the Constitution and laws of the state of Oklahoma.

For the errors herein stated, the case is reversed and remanded, with directions if the state does not have further evidence to sustain its allegations in the information, the case be dismissed.

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