text:
    HENRY LOVETT v. STATE.
    No. A-8135.
    Opinion Filed July 22, 1931.
    (1 Pac. [2d] 800.)
    James H. Matbers and J. A. Bass, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for tbe State.
   DAVENPORT, P. J.

Tbe plaintiff in error, hereinafter called tbe defendant, was convicted of murder and bis punishment fixed at death. Motion for new trial was filed, considered, overruled, exceptions saved, and the defendant appeals.

The testimony on 'behalf of the state is, in substance, as follows: F. H. Morris stated:

“I was president of the First National Bank of El Reno on the 26th day of November, 1930; on that date there was an attempted robbery of the bank and a man was killed; I saw the defendant when he came in the front door of the bank; he leaned over the railing at my left with a gun in his right hand;” witness then described the plat that was shown him as to the arrangement of the furniture of the bank; “Mr. Jess M. Burge had left his desk and was about midway of his cage and stopped; he walked to the front of his desk and shot Lovett through his cage; I had heard one shot before that; the shot I heard came from the lobby where the defendant Lovett was; I did not see who was shot at the time; Lovett shot at me or in my direction, I was just behind the post in the last cage; when the defendant fired the second shot toward me he was in front of the window; after the defendant shot at me he fired one more shot and left the bank, going out by the front door; after the shooting was over I heard this young man at the front groaning or breathing hard; I did not know Dee Foliart personally. The next thing I knew I saw the officers loading Lovett in a car; when the defendant left the bank he went out at the front door and on around to the left and back to the alley. When the defendant first came in the bank, he said, ‘Get back, I mean business;’ he had a gun in his right hand, and there was a glove on his left hand. I saw the defendant in the hospital room after the trouble. I spoke to him, and he says, ‘I am sorry.’ ”

The witness then described the bullet found in the bank and stated that a bullet fired from the defendant’s gun went through his trousers.

Ed Lyman testified on behalf of the state:

“I lived in El Reno on the 26th day of November, 1930; I was in the First National Bank of El Reno between 12 and 1 o’clock; the defendant now in court looks like the man that was in the bank, but I am not certain about it; the first thing that attracted my attention was a command to get back; I did not know who' made the command until I looked up and saw the man with the gun; he was almost straight east of the line of cages; when he made the command I obeyed the order; when I got to the vault I turned and looked back and saw a man standing near one of the doors leading into the bank; he was inside of the building before I saw him; the defendant turned toward that door with some kind of a command and fired at the man who had just come in the door; after the shot was fired I could not tell exactly what did happen but there were two shots fired; after Lovett shot Dee Foliart he turned toward the door; the man standing at the door slumped down; I could not tell what the defendant said before he shot the man by the door; from the time he spoke until the shot was fired was not more than a couple of seconds; after these shots were fifed I went into the vault; the defendant then turned his hand toward the cage and the other shot was fired; I don’t know whether he fired across there or not, there was considerable smoke in the room.”

On cross-examination witness stated:

“The man that came into the bank was a stranger to me, so far as I know I had never seen him before; there ' is no obstruction between the vault and the lobby of the bank except the cages and railings.”

Witness then testified to what took place in the vault the same as on direct examination.

Miss Georgia Cox, testifying for the state, stated:

“I was seated with my back to the front of the bank; some man passed me and went into the vault; I got up from my desk and went to answer the telephone; when I picked up the receiver I saw a man on the west side of tbe north door with a gun in his right hand; when I answered the phone it was Geary calling Mr. Morris; I told Mr. Morris some one wanted him over the phone; there was another man standing on the east of the north entrance to the bank; as I looked at this man he raised the end of his pistol and fired; I saw the flash and saw the deceased, Dee Foliart, the young man on the other side of the door, hump and started to fall; he just crumpled up; that is all I saw; the defendant started to whirl and I turned and went into the vault; I did not hear the defendant say anything to Mr. Foliart or Mr. Foliart say anything to Mr. Lovett; I knew the deceased only as a customer of the bank; he was the assistant coach at the high school; the man I saw fire the shot at Dee Foliart is now in the courtroom; he did not have glasses on then; if I could see him without his glasses I could tell whether or not he was the same man.” Witness then identified the defendant as the man who shot the deceased, Foliart.

The record is voluminous in minor matters pertaining to what took place in the bank. The testimony shows that the defendant came into the bank and commanded the officers and those in the bank to get back, and started to march them into the vault; about the time he gave the command the deceased appeared through the north door of the bank, and had just gotten inside, when, without a word as far as the witness heard, the defendant fired the shot that killed the deceased; several other shots were fired thereafter; the defendant left the bank and started down the alley and was fired on and captured and taken to jail, where he received treatment for his wounds. The defendant was positively identified as the man who fired the shot that took the life of the deceased, and as the man who had attempted to hold up the bank and rob it at the time.

The defense of the defendant is that he knew nothing that took place at the bank; he testified in his own behalf that he came from Liberal, Kan., to El Reno, in the afternoon prior to the date of the trouble at the bank; he had but a few cents in money and fell into company with some parties who had some canned heat; he took two drinks of the canned heat the evening before the killing took place in the bank and from then until the time he came to himself some time after the trouble, in the county jail, he did not know anything; he did not know he had been in the bank or that he had attempted to rob the bank; did not know he had shot the deceased, and claims he did not know where the First National Bank in El Reno was located; in other words, he had no recollection of anything that took place from the time he drank the canned heat until he was lodged in jail.

The defendant also testified that several years prior to the trouble he had fallen and injured his head, and that he had been thrown from a horse that injured his head; that he suffered from severe headaches. He also' called a number of witnesses who testified to the actions of the defendant at times as being morose and noncommu-nicative; and to such conduct of the defendant that led them to believe the defendant was insane.

Testimony in rebuttal was introduced showing an X-ray of the defendant’s head, and the doctor stated in his opinion there was no injury in the head or neck that would in any way whatever contribute to insanity.

The defendant admitted that the gun introduced in evidence was his, and claims he traded for it in Oklahoma City some time prior to the trouble; that his purpose for having the gun was for his protection, as he was riding over the country in box cars, or any other way to get conveyance, and sleeping out nights. The substance of the defendant’s testimony is that he does not know anything about the transaction at the bank; that if he was present and fired the shot that killed the deceased, and attempted to rob the bank, he knows nothing about it whatever.

Fourteen errors have been assigned by the defendant as grounds for reversal of the case. The first assignment being: “The trial court erred in overruling the motion of the defendant below for a new trial; to which exceptions were then and there saved.”

The defendant has divided his assignments of errors and discussed them under three propositions; the first proposition discussed by him and included in his motion for a new trial is: One is not competent to* serve as a juror when there exist any business relations between him and one of the parties which may tend to influence the verdict of the juror.

The record in this case discloses that, when the jury had been selected and was about to be sworn, the defendant renewed’ his request for additional challenges, alleging that the court committed error in overruling the challenge of the defendant to certain jurors now in the box, which said jurors testified they were under obligations and indebted to the First National Bank of El Reno, Okla., of which the prosecuting witness Mr. Morris was the president, and therefore we have exhausted all of our challenges and now ask the court for additional challenges.

An examination of the record shows that the testimony of only two jurors on their voir dire was reported by the court reporter; one of the jurors, Mr. Lo-renzen, whose testimony was reported, was excused by the defendant, and the other juror, Mr. Eicholz, was excused by the court. We fail to find anything in the record showing that the defendant had exhausted all his peremptory challenges, nor have we been able to find where either of the jurors who sat in the trial of the case admitted, as stated by the defendant, that he was under obligation to the bank and owed it money. Defendant cites several cases in support of his contention which state correctly the law, if the facts in the record supported the contention of the defendant. However, there is nothing in the record to sustain the defendant’s contention. The record is silent as to any challenge for cause by the defendant on the ground that the juror was indebted to the bank as urged by the defendant. The first proposition of the defendant is without merit, and his contention is not borne out by the record.

The second proposition argued by the defendant is: “That the defendant was voluntarily intoxicated at the time of the attempted robbery and in consequence was unable to form an intent. The question of whether by reason of his condition he was engaged in a felony or misdemeanor is one of fact and should be submitted to the jury under appropriate charge. Any charge that assumes that there was a felony committed under the circumstances shown is error.”

In support of this proposition the defendant earnestly insists that he was intoxicated, the result of drinking canned heat; but he had lost his mind and knew nothing that was going on from the time he drank the canned heat the night previous to the robbery and killing, and did not remember he had ever been in the bank. The defendant made a strong effort to bring himself within the rule laid down by the court with reference to voluntary intoxication, but in the opinion of the court the effort of the defendant wholly failed, and the jury by its verdict said that it did not believe the defendant’s statement that be was so drunk at the time of the commission of the crime charged against him that he did not know where he was or what he was doing. The evidence wholly fails to show that the defendant Lovett was drinking or in the least intoxicated at the time of the trouble at the bank. An attempt was made to show this but in the opinion of the court it failed. The defendant said he drank the canned heat the night before and it made him sick, and then denied any knowledge of what took place the next day.

In Ray v. State, 10 Okla. Cr. 403, 136 Pac. 980, a similar question was considered by the court. The evidence in that case conclusively showed that the defendant had been drinking whisky and was drunk, as it is attempted to be shown in this case. The defendant requested an instruction on manslaughter, but it was refused. The second syllabus of the case reads as follows:

“When the facts plainly disclose that a homicide occurred in an attempt to perpetrate a robbery or other felony, the issue of manslaughter should not be submitted to the jury. Premeditated design to effect death is not an element of murder committed in the perpetration of a felony.”

The defendant relies on Pusley v. State, 22 Okla. Cr. 192, 210 Pac. 306, to sustain his position that the court erred in not instructing the jury upon the question of manslaughter. An examination of the Pusley Case clearly shows that the facts and circumstances are not the same as the facts in this case. In the Pusley Case the defendant did not deny the assault, but for his defense relied upon the fact that he had been drinking the day of the assault and did not recollect what had occurred.

In this case the defendant denies being in the bank or knowing anything about what took place there, and we think the ruling of the court in Ray v. State, supra, sustains the ruling of the trial court, and that the court did not err in refusing to instruct the jury upon the question of manslaughter on the ground of the intoxication of the defendant, as the proof wholly fails to show the defendant was intoxicated at the time of the attempted robbery and killing of Dee Foliart. Defendant cites a number of cases in support of his contention, but we do not think they are applicable to the facts in this case.

The third proposition urged by the defendant as grounds for reversal of this case is that:

“When the evidence shows that a defendant was intoxicated to such an extent, when he slew another, so he could not form an intent, he was entitled to a charge that he could be convicted of the least degree of such offense if the jury believed that by reason of his condition, he was incapable of forming an intent, and to refuse such instruction is error.”

In support of this proposition the defendant insists that it was a question of fact as to whether a felony or misdemeanor was committed by the defendant, and that, in view of the fact that the defendant in all stages of the acts shown by the record to have been done by him on November 26, 1930, such acts being one continuous act, he was entitled to his special instruction No. 1, which was refused by the court.

This instruction raises the same question that was discussed by the defendant in his second proposition. The court in its instruction properly declared the law as applied to the facts in this case, and it was not error to refuse to give defendant’s special instruction No. 1. The defendant cites in support of. his contention that his special instruction No. 1 should have been given: Tubby v. State, 15 Okla. Cr. 496, 178 Pac. 491. In the Tubby Case there is no evidence that the defendant was engaged in the commission of a felony at the time of the homicide. Tubby was not engaged in the robbery of a bank when he killed Matt Hooper.

In Miller v. State, 9 Okla. Cr. 55, 130 Pac. 813, cited and relied upon by the defendant, there was no evidence that the defendant was committing a felony other than murder. It is unfortunate that individuals committing crime in attempting to rob banks take the life of an individual, but in this case the record is clear that the defendant went to the First National Bank in El Reno, and in an attempt to rob it, without any justification, shot and killed Dee Foliart. In the trial of his case he had a fair and impartial trial. The court properly instructed the jury as to the law applicable to the facts in the case. A careful and serious reading and consideration of the record shows that there were no fundamental or prejudicial errors committed by the trial court. The testimony is sufficient to sustain the judgment. The judgment appealed from is therefore affirmed.

It is further ordered by the court that the warden of the state penitentiary proceed to carry into execution the judgment of the district court of Canadian county in this case, and the 25th day of September, 1931, is fixed as the day for the sentence as pronounced.

EDWARDS and CHAPPELL, JJ., concur.


source: Caselaw Access Project

author: EDWARDS, J.

license: Public Domain

text:
    BILL WHITTINGTON v. STATE.
    No. A-7956.
    Opinion Filed July 22, 1931.
    (1 Pac. [2d] 840.)

      Emmett N. Sasseen, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Washita county on a charge of having the unlawful possession of intoxicating liquor and was sentenced to pay a fine of $100 and to serve 60 days in the county jail.

Officers with a search warrant searched the residence of defendant at the town of Sentinel and found one gallon of wine and a considerable quantity of home-brew and one quart of corn whisky; and a half gallon of whisky was found in the bathroom, but as this room was not covered by the search warrant the court struck the consideration of that from the jury. Complaint is made that the evidence is insufficient. This contention is not tenable. There is sufficient evidence to- sustain the judgment.

It is also argued that a remark of the trial judge was prejudicial. In the course of the argument, counsel for the state argued that there were five quarts of intoxicating liquor. Defendant’s counsel challenged the correctness of this statement, and the court overruled the objection stating the ground of his objection and using the words, “It is just up to the jury to believe it.” An exception was taken to the ruling of the court, but no- exception was taken to the remarks of the court and no error predicated on the remark of the court is assigned in the motion for a new trial. The error is waived.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


author: CHAPPELL, J.

text:
    SIDNEY THOMPSON v. STATE.
    No. A-7798.
    Opinion Filed July 22, 1931.
    (1 Pac. [2d] 811.)
    Amos T. Hall, Wm. B. Thompson, and H. A. Guess (Right, Johnson & Right, on the brief), for plaintiff in error.
    J. Berry Ring, Atty. Gen., and Ed. Crossland, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county of the crime of manslaughter in the first degree, and his punishment fixed by the jury at imprisonment in the state penitentiary for four years.

The evidence of the state was that on the 4th day of June, 1929, the defendant and deceased engaged in a quarrel over the larceny of an automobile tire; the deceased accused the defendant of stealing the tire and brought him .to the place of the homicide for identification; that when defendant was not identified, thereupon deceased said: “If you don’t like what I said about the tire, there is nothing between us.” That deceased had a jacket on one arm and the other hand raised, and that after he was shot he went over to a bench near by and fell. One witness testified that at the time the shot was fired deceased had his arms folded.

The evidence of defendant was that the deceased had made threats against his life, which were communicated to him, and that at the time the fatal shot was fired the deceased moved his hand down by his side and defendant thought deceased was going for his pistol; that defendant drew his pistol and, it being an automatic, it began to shoot.

Defendant contends first that this evidence is insufficient to support the verdict of the jury.

The homicide being established by the state and admitted by the defendant, it then devolved upon the defendant to show facts of mitigation or excuse sufficient to raise a reasonable doubt of his guilt, unless such mitigation or excuse is established by the evidence of the state.

The jury are the sole triers of the facts and the exclusive judges of the credibility of the witnesses and the weight to be given to their evidence. It is for them to determine who testified to the truth and who did not.

The evidence being sufficient to support the verdict of the jury, the trial court did not err in overruling defendant’s demurrer to the same.

Defendant next contends that he was prevented from having a fair and impartial trial because of the prejudicial remarks and conduct of counsel for the state.

Defendant and deceased were both Negroes. Friends of the deceased apparently employed special counsel to assist the county attorney in the prosecution of the case, and particular complaint is made of the closing argument of special counsel.

Defendant’s counsel contended that counsel had said that one of the judges of this court had asked him to assist in the case. Thereupon counsel said he wished to correct that by saying a member of the county attorney’s office had asked him to assist in the case. This statement was objected to by defendant’s counsel, and the court sustained the same and told the jury to disregard that portion of the argument.

Thereafter, defendant’s counsel objected tO' the statement of Mr. Houser, assistant county attorney, that the record showed the case was set for trial on the 25th, and that praecipe for the witness Willie Pressley was not filed until the 23d day of September. Counsel for defendant objected to this statement and moved to withdraw it from the consideration of the jury, which motion was denied by the court.

In view of the fact that the trial court promptly admonished the jury to disregard the statement of counsel that the county attorney had asked him to assist in the case, the defendant was not prejudiced by such statement.

Defendant next complains that the court erred in excluding competent evidence offered by the defendant.

The particular exclusion of evidence of which the defendant complains is that of Mrs. Lucy Thompson. She was asked if she knew the reputation of the deceased in regard to carrying firearms. She was not asked what his general reputation was in the community in which he lived in this regard. When objection was sustained by the court, the defendant did not offer to show what the answer of the witness would be if she were allowed to testify.

In Roper v. State, 49 Okla. Cr. 21, 292 Pac. 875, this court said:

“In order to reserve an available objection to the exclusion of evidence, a proper question must be asked, and, on objection thereto, an offer must be made at the time, showing what evidence will be given if the witness is permitted to answer, the purpose and object of the testimony sought to be introduced, and all the facts necessary to establish its admissibility.”

Defendant complains of other errors, but they are without substantial merit.

No substantial errors having been committed upon the trial of the case and the evidence being sufficient to sustain the verdict, the cause is affirmed.


text:
    J. E. OSWALT v. STATE.
    No. A-7873.
    Opinion Filed June 6, 1931.
    Rehearing Denied July 28, 1931.
    (1 Pac. [2d] 793.)

      Ben F. Williams and Homer Cowan, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of McClain county on a charge of selling intoxicating liquor, and he was sentenced to pay a fine of $150 and to serve 90 days in the county jail.

The first contention is that the court erred in overruling the motion to quash the information. This motion was based on the claimed invalidity of the warrant of arrest. It was not filed until after a demurrer to the information had been overruled and does not set up any of the grounds for quashing an information, as required by section 2597, Comp. St. 1921. The purpose of a warrant is to give the court issuing it jurisdiction of the person of the accused named therein. If it is invalid, it should be challenged by a motion to quash or set aside, and this question must be raised at the first opportunity, otherwise it is waived. State v. Fitzgerald, 51 Minn. 534, 53 N. W. 799; Keeler v. State, 24 Okla. Cr. 206, 217 Pac. 228; Morrison v. State, 31 Okla. Cr. 11, 236 Pac. 901.

It is further argued that the court erred in overruling defendant’s motion and supplemental motion for a continuance. The motion sets out, in substance, that the leading counsel for defendant is engaged in the federal court and has not had time to give the matter his attention. The case, however, was well tried by other counsel, and the question is covered by the holding of this court in the cases of Taylor v. State, 21 Okla. Cr. 351, 207 Pac. 746; Coffey v. State, 38 Okla. Cr. 91, 258 Pac. 923. The supplemental motion sets out the absence of a witness Owens, who lives eight miles from Purcell. A subpoena was issued for this witness and he did not appear. The court offered to issue an attachment for the witness, but defendant declined to have same done. Where a witness has been subpoenaed and his absence is not explained, defendant should apply for an attachment to issue for the witness, and, unless he does so, he is not entitled to a continuance on account of his absence. McCarter v. State, 14 Okla. Cr. 305, 170 Pac. 712.

There are some other matters argued in the briefs, which have not been overlooked, but none of them are of sufficient importance to require special discussion. We are satisfied that defendant was fairly tried, and that the record is free from prejudicial error.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    STEVE BOHAY v. STATE.
    No. A-7810.
    Opinion Filed July 11, 1931.
    Rehearing Denied July 28, 1931.
    (1 Pac. [2d] 804.)
    Martin & Martin and O. M. Pergerson, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Comanche county of the crime of rape in the second degree, and his punishment fixed by the court at imprisonment in the state penitentiary for five years.

The evidence of the state was that the prosecutrix, Nina Botone, was a female under the age of 16 years and not the wife of Steve Bohay, the defendant; that they were both Indians; that they attended a ball game near Gotebo on June 19, 1929, between an Indian club and a white club; that after the game was over the defendant, the prosecutrix, Hattie Wolf, and Henry Toin-tigh left the place where the ball game was played and went into the town of Gotebo and from there to the Wolf home; that they left the Wolf home and went to Lawton, where three of them had lunch and all of them attended a picture show; that after the show they left Lawton for their homes, going by way of Medicine Part; that they drove out into the preserve about two miles, where the defendant had the car stopped; that all four of them were riding in a Chevrolet coupe; that the Wolf girl and Henry Tointigh got out of the front seat and sat on the back end of the car, and defendant and the prosecutrix sat in the car for some half hour; that defendant bit the prosecutrix on the neck during the time they were in the car; that defendant asked the Wolf girl and Tointigh to get out and sit in the front, and the defendant and prosecutrix got out of the car and were away from the car from 25 to 30 minutes. Up to this point there is no controversy as to what occurred, defendant admitting that he and the prosecutrix got out of the ear and that they remained out for some time. The prosecutrix testified that when they got out of the car defendant pushed her away from the car and down the road for some distance and threw her on the ground and by force accomplished the act of sexual intercourse with her.

The prosecutrix complained to her mother the next day, and upon being taken to the county attorney’s office, a physician was called and made an examination and testified that the physical condition of the girl indicated that something had happened to her recently. The prose-cutrix is corroborated by the testimony of Hattie Wolf, Henry Tointigh, and the defendant as to all except the actual act of intercourse.

While defendant was testifying for himself, his counsel asked him:

“Q. I will ask you — you are charged here with the crime of rape, with an act of sexual intercourse with Nina Botone. I will ask you if you had any intercourse with her on that occasion? A. I don’t believe I did.”

The evidence being clear and practically undisputed, the case must be affirmed unless the errors complained of by the defendant are sufficient to require a reversal.

Defendant contends first that the information is insufficient to charge an offense, and that it was error for the court to overrule his demurrer to the same.

Section 1834, C. O. S. 1921, provides:

“Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances:
“First. Where the female is under the age of sixteen years.”

The information in the case at bar is substantially the same as that in the second count of Wines v. State, 7 Okla. Cr. 455, 124 Pac. 466, 468, which was by this, court held to be sufficient.

Defendant complains of the instructions given by the court.

An examination of the record discloses that the instructions are the usual ones given in cases of this character and are as favorable to. the defendant as the facts in the case would warrant.

The evidence being sufficient to support the verdict of the jury and no substantial error appearing upon the record, the cause is affirmed.

DAVENPORT, P. J., and EDWARDS, J., concur.


text:
    FLOYD MULLINAX v. STATE.
    No. A-7815.
    Opinion Filed April 25, 1931.
    Rehearing Denied July 28, 1931.
    (1 Pac. [2d] 798.)

      T. H. Davidson, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Okmulgee county of assault with intent to kill and was sentenced to serve a term of two years in the state penitentiary.

The record discloses that at the time charged defendant and one Ira Martin engaged in a difficulty in which defendant fired six shots with a pistol, one shot of which barely grazed Martin and another struck him in the arm as he was attempting to> escape from defendant. Just previous to the shooting, the parties had had an altercation due to the fact that on the previous day Martin, who was superintendent for their employer, had discharged defendant; from this circumstance a quarrel arose in which Martin struck defendant, which led to the shooting. ;

It is first contended that the evidence is not sufficient to sustain the judgment. This is based on the fact that in the altercation between defendant and Martin, Martin first struck defendant. This did not justify defendant in using a deadly weapon. The jury evidently took the attitude off Martin into consideration in assessing the minimum punishment.

It is also argued that the court erred in excluding the testimony of the wife of defendant, but the record does not sustain the contention made. The wife of defendant was not called as a witness and no offer of her testimony made. In the opening statement of defendant’s counsel, he stated what would be the testimony of the witness, to which objection was interposed and sustained. This was not followed up by calling the witness nor the making of any offer of proof. This court has repeatedly held that where competent evidence is excluded the record must affirmatively show an objection to the evidence was sustained, which must be followed by an offer of proof. Queen v. State, 23 Okla. Cr. 146, 212 Pac. 1021; Maloon v. State, 38 Okla. Cr. 34, 259 Pac. 173.

Some further complaint is made that the court erred in its instructions to the jury and erred in refusing a requested instruction. The instructions as a whole fully and fairly cover the law of the case and are as favorable to defendant as the law warrants. The requested instruction is substantially covered by the charge of the court.

The case is affirmed.

DAYENPOET, P. J., and CHAPPELL, J., concur.


text:
    JOHN PRYOR v. STATE.

      No. A-7913.
    Opinion Filed July 11, 1931.
    Rehearing Denied July 28, 1931.
    (1 Pac. [2d] 797.)

      Johnson & Stith, for plaintiff in error.
    J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Osage county of assault with intent to kill and was sentenced to serve a term of two years in the state penitentiary.

The record discloses that at the time charged, Mitchell and Gaffney, two1 members of the police force of the city of Pawhuska, attempted to arrest defendant on a charge of disturbing the peace. When they arrived at the place, defendant was in an automobile, in an intoxicated condition. He resisted arrest, and a struggle ensued in which defendant pointed a pistol at Gaffney, attempting to discharge it, with the declaration that he was going to shoot him. Mitchell interfered and succeeded in knocking the pistol out of defendant’s hand. Defendant admitted being in the car at the time as testified by the officers, but denied he had the pistol in his hand or that he attempted or threatened to shoot Gaffney. On cross-examination he admitted he had been twice convicted of an assault with guns.

It is argued that proof of other offenses was inadmissible, defendant’s counsel contending this put in evidence his reputation. For the purpose of affecting the credibility of a witness, he may be asked if he has ever been convicted of a felony or of any offense which involves moral turpitude. When defendant becomes a witness, he has the same status and the same rules of evidence apply to him as to other witnesses, and for the purpose of affecting his credibility, it is proper to show on cross-examination prior convictions.

Complaint is next made that the court erred in failing to instruct the jury as to the lesser offenses embraced in the charge of assault with intent to' kill. In a case where the offense charged includes other offenses, and the evidence might apply to an included offense, the court should submit the case to the jury for consideration upon such included offenses. The defendant ¡did not object to the instructions given and did not request any additional instructions. We must presume that defendant was satisfied with the instructions. A reasonable view of the evidence is that the assault was with intent to kill. There was no error in the failure of the court to instruct on the lesser degrees of assault.

Lastly, it urged that the court erred in instruction 5, which in substance is to the effect that if the jury find defendant guilty and are unable to agree upon the punishment, they may so state in the verdict and the court will assess the punishment. No exception to this instruction was reserved. No question as to its correctness is presented to this court. Sections 2750, 2751, C. O. S. 1921.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    W. J. (WHITEY) WALKER v. STATE.
    No. A-7908.
    Opinion Filed May 9, 1931.
    Rehearing Denied July 28, 1931.
    (1 Pac. [2d] 835.)
    J. W. Bolen and John P. Crawford, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Pontotoc county of robbery with firearms, and was sentenced to life imprisonment in the state penitentiary.

The case was tried in December, 1929, and the appeal was lodged in this court in June, 1929. No briefs in support of the appeal have been filed, nor was there any appearance for oral argument at the time the case was submitted.

The record discloses that the defendant with firearms held up and robbed the First National Bank of Allen, Pontotoc county, obtaining more than $2,000. The evidence amply sustains the verdict and judgment. Examination of the record discloses no jurisdictional nor fundamental error. The defendant did not take the stand and offered no evidence to rebut identification by state witnesses.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


author: PER CURIAM.

text:
    IRA MOOSE v. STATE.
    No. A-7863.
    Opinion Filed June 19, 1931.
    Rehearing Denied July 28, 1931.
    (1 Pac. [2d] 1118.)
    Sam H. Davis, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Okfuskee county for the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $500 and to serve 90 days in the county jail.

An examination of the record discloses no error requiring a reversal. An examination of the entire record convinces ns that justice requires that the judgment be modified by reducing the punishment to a fine of $250 and a term of 45 days in the county jail.

As modified, the case is affirmed.


text:
    CLYDE MEEK v. STATE.
    No. A-7937.
    Opinion Filed May 16, 1931.
    Rehearing Denied July 28, 1931.
    (1 Pac. [2d] 838.)
    Morris & Wilhite, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Caddo county on a charge of having the possession of a still worm, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

The principal argument is that the evidence of the state was incompetent, as there was no sufficient showing authorizing the issuance of a search warrant for the residence of defendant. The contention cannot be sustained. The warrant was issued on an affidavit setting out that the place of residence was a place of storage and a place of resort where people congregate for the purpose of obtaining and drinking intoxicating- liquor. The affidavit makes a sufficient showing of probable cause to authorize the magistrate to issue the search warrant. There is also1 some showing by defendant that he did not know of the worm in Ms house and attributed its being there to the spite of some neighbors. This was a question of fact which was submitted to the jury, who saw and observed the witnesses. No reason to disturb the judgment is apparent.

The case is affirmed.


text:
    ALONZO CLARK v. STATE.
    No. 7902.
    Opinion Filed July 31, 1931.
    (2 Pac. [2d] 95.)
    O. H. Tully, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of McIntosh county of the crime of murder, and his punishment fixed by the jury at imprisonment for life in the state penitentiary.

The evidence of the state was that the defendant, a negro; lived on a farm northwest of the town of Cathey; that on the 28th day of September, 1929, he went to Eu-fanla to deliver some cotton; that, after selling, his cotton, he got with some white men and they had several drinks of whisky and wine; that defendant invited these men to his home, where he had some home brew; that defendant left Eufaula in his wagon, but when overtaken by the white men got into their car and went on to defendant’s home, where they arrived early in the evening; that defendant had some ice with him and immediately began to cool the beer and sell it to' these customers at 20 cents a bottle; that the white men stayed at defendant’s place and continued to' drink until about 9 or 10 o’clock, when the shooting took place; that defendant had several fusses different parties at his house at that time, but that just prior to the shooting they appeared to be all settled; that, as these parties were leaving defendant’s premises, defendant came out of the house with a knife in one hand and a pistol in the other; that he wanted to know where Joe Sampson, the man killed, was; that immediately defendant fired, and said, “There is one son-of-a-bitch down”; that he then warned the men not to crowd him, and fired another shot which hit the tank of the car of one of the men there; that defendant left the country and some time later was arrested in Detroit; that defendant made statements at the time of his arrest contrary to his testimony on the trial.

Defendant testified he fired the shots in self-defense, that these parties had attacked him, striking him with beer bottles, and that they had knocked him down to his knees, and he only fired the shots to save himself from death or great bodily harm.

Defendant contends, first, that the court erred in overruling his challenge to the panel.

When the case was called for trial, the defendant filed a timely challenge to' the panel, hut offered proof only upon the proposition that the jurors had not been selected from different townships of the county as provided by law.

An examination of the record discloses that the evidence offered by the defendant did not support his challenge. It was not error, therefore, for the court to overrule the same.

Defendant next complains that the court erred in refusing to give the special instructions requested by the defendant.

The trial court on its own motion gave the usual instructions in a murder case, and the same were as favorable to the defendant as the facts in the case would warrant.

There was no evidence in the record to require the giving of some of the instructions requested by defendant, others did not correctly state the law, and those which did in principle state the law had already been given by the trial court on its own motion.

Defendant next contends that the court erred in permitting the jury to be called in and evidence to be offered after the case had been finally submitted to the jury and they had retired for deliberation.

It appears from the record that the jury came into court, the state being represented by the county attorney and the defendant being personally present and represented by his counsel, and that thereupon the foreman of the jury made known to the court the jury’s desire to' see the car and to see the gas tank that had been fired into.

The record further discloses that, after some discussion between the court, the county attorney, and defendant’s counsel with respect to being able to produce the car itself, and upon agreement of counsel for defendant and the state that the car itself could not be produced, but that the man who repaired the hole in the gas tank could be produced, the court said:

“Let the record show that it is agreeable for counsel on both sides for the case to be reopened to introduce a witness, at the request of the jury, who has seen the car after the shot had been fired which has been testified to, that struck the gasoline tank, and that this witness is being produced at this time at the request of the jurors, so that they might obtain certain information which they desire.”

And thereupon the state produced Ferndell Kay, who testified in chief, without objection on the part of the defendant or his counsel, concerning the car, and was cross-examined by defendant’s counsel.

It is within the discretion of the trial court, where the state and the defendant both consented, to' reopen the case for the purpose of hearing additional evidence, and, the defendant having consented to this procedure, he waived any right he might have had to object thereto, and cannot now be heard to complain.

Defendant complains of other errors, some of which are not supported by the record and others without sufficient merit to require a separate discussion in this opinion.

Cases of this character make the strongest possible argument for prohibition. Here we have a group of men, neighbors and friends, associating together in peace. During’ the day they engage in drinking intoxicating liquor, all of them became more or less intoxicated, and as a result one man is murdered and another must spend his life in the penitentiary.

The errors of law complained of being without substantial merit, and the evidence being sufficient to support the verdict of the jury, the cause is affirmed.

DAVENPORT, P. J., and EDWARDS, J., concur.


author: DAVENPORT, P. J.

text:
    G. G. FULLER v. STATE.
    No. A-8017.
    Opinion Filed July 31, 1931.
    (1 Pac. [2d] 821.)
    J. W. Osmond and Gordon Fuller, Jr., for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called the defendant, was convicted of transporting intoxicating liquor and sentenced to pay a fine of $250, and to serve 30 days in the county jail. From Avhich judgment the defendant has appealed.

The record has been carefully read, and we fail to find any testimony in the record sustaining the allegation that the defendant transported intoxicating liquors.

There are several errors assigned by the defendant, but after reading this record it is not deemed necessary to consider any of the assignments, except that the verdict is contrary to the evidence. The proof fails to sustain the allegations.

The judgment is reversed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    BYRD FREDRIGILL v. STATE.
    No. A-7976.
    Opinion Filed July 31, 1931.
    (1 Pac. [2d] 821.)
    J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called the defendant, was convicted of rape in the second degree and sentenced to serve one year in the state penitentiary. From which judgment, an appeal has been taken.

The testimony on behalf of the state tends to show that Hazel Harrison, on the 24th day of August, 1929, was a girl under the age of 16 years; she was acquainted with the defendant on that date; the defendant and another party met her and her sister a short distance from their home; the sister and the other party got in the car they were driving, and the defendant and prosecuting witness got in the car the defendant was driving; they drove to Seminole and from Seminole to Shawnee to the home of the defendant’s sister; after they got to the home of defendant’s sister, the prosecuting witness testified the defendant asked her to go upstairs with him; after they got upstairs they sat on a bed for a while and defendant asked the prosecuting witness to lie down on the bed; she declined to do so, but was finally placed on the bed by the defendant and her bloomers taken off; the prosecuting witness states the defendant had intercourse with her; that she remained all night at the home of the sister of the defendant; the defendant was in bed with her during the night; that she got up the next morning, came down stairs and ate her breakfast; after that the defendant brought the prosecuting witness back to near the home of her sister in Seminole county. The prosecuting witness claims she told her sister what had taken place. The mother and father of the prosecuting witness testified as to her age, and the proof shows conclusively that she was under the age of 16 years. The prosecuting witness further testified that she had consulted Dr. Black, but she did not remember the date, it was along about the first of 'September; it was after this act of sexual intercourse.

The testimony of the state further tends to show that as a result of the sexual intercourse with the defendant the prosecutrix contracted syphilis. The testimony of the doctor shows that an examination of the prosecuting witness showed, evidence of syphilis when he examined her, which was some time in the fall of 1929.

The defendant admits meeting the prosecutrix and taking her in the car and says they drove to Seminole, where the prosecutrix got out of the car; the defendant denies he took her with him to Shawnee; or that he at any time had her in a room at his sister’s house, and denies that he ever had sexual intercourse with her.

An effort was made on behalf of the defendant to try to show that the prosecutrix had made statements at other times different to her testimony in the trial of the case. The evidence conclusively shows that the prosecuting witness was under the age of 16. The testimony is conflicting as to whether or not the defendant had sexual intercourse with her in the city of Shawnee.

Several errors have been assigned by the defendant. The defendant has grouped his assignments of error under four propositions; the first proposition argued is the evidence fails to establish the corpus delicti, that is, that the proof fails to show that the defendant had sexual intercourse with the prosecuting witness, that the proof fails to show penetration.

Section 1836, C. O. S. 1921, in part is as follows:

“Any sexual penetration, however slight, is sufficient to complete the crime.”

The defendant insists that the prosecutrix failed to show that the defendant had sexual intercourse with her, and in his brief quotes her direct testimony wherein the witnesses is quoted as saying, “He held me and taken intercourse with me.” The testimony of the prosecuting witness as quoted by the defendant is correct as far as it goes, but the prosecutrix, in testifying, with reference to the time she consulted Dr. Black, states:

“I cannot remember the date, bnt it was along about the first of September, and after the act of sexual intercourse with the defendant.”

The authorities cited by the defendant are the correct law, but in this case the record is against the contention of the defendant. While the evidence is not clear as it should be, we hold that it is sufficiently clear to show that the prosecuting witness stated the defendant had sexual intercourse with her.

The next proposition discussed by the defendant is:

“The trial court wrongfully restricted the cross-examination and excluded competent testimony.”

This court has often held that, when the defendant complains of the action of the court in the admission or rejection of evidence, the error should quote the full substance of the evidence admitted or rejected stating specifically the objection thereto-. The defendant in this case does not conform with the ruling of the court by setting-out the testimony sought to be introduced. The prosecu-trix testified she did not have the conversation inquired about by defendant’s counsel with Tom Boring. From a careful examination of the record, we hold that the court did not err in its ruling as to the cross-examination of the prosecutrix by the dtfendant.

There are other errors assigned and argued by the defendant, but they do not possess sufficient merit to warrant a reversal of this case or a discussion in detail. The defendant was accorded a fair and impartial trial; the jury was correctly advised as to the law by the court; the evidence is sufficient to- sustain the judgment. There are no errors in the record sufficient to warrant a reversal.

The judgment of the lower court is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    O. P. WORTH v. STATE.
    No. A-7968.
    Opinion Filed July 31, 1931.
    (1 Pac. [2d] 822.)
    Lillard & Wheeling, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The paintiff in error, hereinafter referred to' as the defendant, was convicted of bigamy, and sentenced to serve a term of two years in the penitentiary, and appeals.

The proof in this case shows O. P. Worth is one and the same person as Arnold R. Hawks; that on the 26th day of October, 1929, under the name of O. P. Worth, the defendant was married to Leola Youtsey, by E. B. Ambler, justice of the peace, in the city of Chandler, Lincoln county, Okla.; at the time of his marriage to Leola Yout-sey, the defendant had a former wife, Alice Hawks, living, from whom he had not been divorced.

The defendant offered no testimony.

Five errors have been assigned as grounds for reversal. No brief has been filed in support of the errors assigned, nor has any oral argument been presented. The record has been examined. The evidence is sufficient to sustain the judgment. There are no errors in the record to justify this court in reversing the case.

The judgment is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    PINK SANDERS v. STATE.
    No. A-8022.
    Opinion Filed July 31, 1931.
    (1 Pac. [2d] 823.)
    Herman S. Davis, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was jointly informed against with Aubrey Burton, was tried separately and sentenced to pay a fine of $50, and to be imprisoned in the county jail for a period of 30 days, and has appealed.

There is no controversy between the state and the defendant as to the testimony. The Attorney General, in his brief, says that Aubrey Burton testified that the whisky found in his car belonged to him; that he purchased it about the time they left Mangum, Okla.; that the defendant was not the owner of the whisky or the automobile, and knew nothing about its presence in the car until after they had left Mangum, when he gave the defendant a drink of the whisky.

The defendant testified that he knew nothing about the presence of the whisky in the car, and that is was not his whisky. The defendant also proved a good reputation as to being a law-abiding citizen; had lived on a farm near Mangum; that he had never been convicted of anything. The Attorney General, in his brief, quoted in substance the statements contained herein, and says:

“Under the testimony in the opinion of this writer there is not sufficient evidence to support the verdict of the jury, and said cause should be reversed.”

After a careful study of the testimony, we agree with the statement of the Attorney General, that there is not sufficient evidence to support the verdict.

The judgment is reversed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    J. C. SIMPSON v. STATE.
    No. A-7957.
    Opinion Filed July 31, 1931.
    (1 Pac. [2d] 823.)
    Tom Payne, for plaintiff in error.

      J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the superior court of Okmulgee county of manslaughter in the first degree, and his punishment fixed at 99 years in the penitentiary.

At the time charged, defendant lived in the country near Henryetta. He was employed by an oil company to look after some of its machinery and on Christmas Day he made a round, carrying with him a 22 rifle. As he returned to his home, he saw two persons near a peanut patch belonging to defendant; he ran in the direction of them and fired the rifle three times, one shot striking Charles Williamson, a boy of 14 years of age, inflicting a wound from which he died in a few minutes.

The evidence for the state is that at the time deceased was shot he was running from defendant. Defendant contends the shooting was accidental. One witness testified he was at the home of defendant as he started toward the two boys near the peanut patch, and that defendant said:

“Those damn boys have stole all the peanuts I aim for them to steal.”

The first contention is that the court erred in refusing defendant’s request to instruct the jury they must assess the punishment. Upon this point, the court instructed the jury, in substance, that in case they found defendant guilty of murder they must assess the punishment and in case they found him guilty of manslaughter in either degree, that they might assess the punishment. The verdict finds defendant guilty of manslaughter in the first degree, and that the jury is unable to agree upon the punishment. Sections 2750, 2751, Comp. Stat. 1921, are the applicable statutes. Under the first section, the jury had the right to declare the punishment in their verdict whether requested or not, and, upon request of defendant the jury must assess and declare the punishment, unless they fail to agree on the punishment. If they find defendant guilty and fail to agree on the punishment, or do not declare the punishment, the court shall assess and fix the punishment and render judgment accordingly. Craig v. State, 31 Okla. Cr. 19, 236 Pac. 909.

It is earnestly argued that, under all the circumstances, the sentence imposed is excessive and unreasonable. This is fortified somewhat by the claim that counsel for the state made some improper argument, and that in the course of the trial there was some demonstration in the courtroom. The court admonished the jury not to consider the improper argument alluded to; the record does not sustain the contention that there was any demonstration. This Avas indeed an unfortunate and unnecessary tragedy. Defendant and the family of deceased were on friendly terms, and in the light of the entire record we are constrained to believe the punishment assessed is excessive, and that justice requires a modification. The judgment is, therefore, modified to a term of 25 years. As modified, the case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    PAUL SMILEY v. STATE.
    No. A-7941.
    Opinion Filed July 31, 1931.
    (1 Pac. [2d] 829.)

      Pice & Mitchell, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of McClain county of a second and subsequent violation of the prohibitory liquor laws, and his punishment fixed by the jury at a fine of $50 and imprisonment in the state penitentiary for a period of one year and one day.

The only contention made by the attorneys for defendant in their brief is that the evidence of the prior conviction is insufficient to' support the verdict of the jury.

To support the charge of a prior conviction, the state introduced the information filed against the defendant in the county court of McClain county, charging him with unlawful transportation of intoxicating liquor on the 2d day of July, 1927; the minutes of the county court showing that a verdict was returned by the jury; the verdict of the jury finding defendant guilty as charged in the information; the criminal appearance docket to show that no appeal had been taken from that judgment, and to further show that the defendant had paid the fine of $50; the record kept by the sheriff showing that the defendant was received by the sheriff into his custody under such judgment and served 30 days in the county jail to which he was sentenced.

The county judge being called as a witness testified that he pronounced judgment against defendant and gave the minute of same to' the court clerk, but that the clerk failed to- enter it of record, and that the judge inadvertently failed to sign the journal entry of judgment at the time the judgment and sentence was pronounced. He testified that defendant’s counsel was the county attorney at the time the case was tried, that he relied upon the county attorney always to furnish him with a formal journal entry of judgment, and that he had not done so in this case.

Prior to the trial of the case, the county attorney’s attention having been called to the fact that no formal journal entry of judgment had been filed, he filed motion for an order nunc pro tunc as of the date of the original judgment requesting the court to correct its record to show what actually occurred on that day. Thereupon the county judge held a hearing and entered an order nunc pro tunc correcting the record of the court to show that judgment and sentence was duly pronounced as shown by the minutes and the verdict of guilty by the jury.

Defendant objected to the introduction of this order nunc pro tunc, for the reason that the court was without any authority to make or enter the same.

In Ex parte Payton, 45 Okla. Cr. 1, 281 Pac. 597, this court said:

“The trial court may at any time upon proper application, from the memory of the presiding judge or upon proper showing, by appropriate order nnnc pro tunc, cause its record to recite the truth, and may supply any omission from its record. Such records, when so supplied, relate to the time when the proceedings were in fact had, and make valid that which was apparently defective.”

In Courtney et al. v. Barnett et al., 65 Okla. 189, 166 Pac. 207, that court said:

“Jurisdiction is inherent in every court of record to cause its records to speak the truth and by nunc pro tunc order, on proper application and notice, to cause to be entered orders and judgments made by the court which, by inadvertence or mistake, the clerk or the court has omitted to record.”

In the body of the opinion the court said:

“The rule in Oklahoma as to the evidence necessary to justify the making of a nunc pro tunc order is more liberal than the rule adopted in many of the states. Here an order for the entry of a nunc pro tunc judgment may be made upon parol evidence.” Manuel v. Kidd, 126 Okla. 71, 258 Pac. 733.

In Bowling et al. v. Merry, 91 Okla. 176, 217 Pac. 404, 408, that court said:

“It has been repeatedly held in Oklahoma, as well as in other states and in the United States courts, that courts have the inherent right to correct their records and cause them to speak the truth where by inadvertence or mistake the clerk has failed or neglected to make the proper order, and mere lapse of time does not divest the court of this right. Wight v. Nicholson, 134 U. S. 136, 10 S. Ct. 487, 33 L. Ed. 865; Gonzales v. Cunningham, 164 U. S. 612, 17 S. Ct. 182, 41 L. Ed. 572; Hyde v. Curling, 10 Mo. 359; State v. Clark, 18 Mo. 432; State v. Bilansky, 3 Minn. 246 (Gil. 169) ; Bishop’s New Crim. Proc. 1345; Runyan et al. v. Herrod et al., 62 Okla. 87, 162 Pac. 196.”

See, also, Bassett v. State, 43 Okla. Cr. 22, 276 Pac. 794; Woodmansee v. Woodmansee, 137 Okla. 112, 278 Pac. 279; Ex parte Payton, 45 Okla. Cr. 1, 281 Pac. 597.

In other cases this court has said that where a prior conviction is alleged to enlarge the grade or degree of the crime or the punishment under section 6991, C. O. S. 1921, it is not necessary that the entire record be introduced in order to prove the conviction; that such conviction may be proven by the journal entry of judgment, sentence, commitment properly identified, and the return of the sheriff to the commitment showing imprisonment, by the verdict of the jury, by a certified copy of the record of the prior conviction, or by any other competent evidence. Rogers v. State, 34 Okla. Cr. 15, 244 Pac. 461; Bassett v. State, 42 Okla. Cr. 126, 274 Pac. 893; Leasure v. State, 46 Okla. Cr. 70, 283 Pac. 1023.

The county court had authority by order nunc pro tunc to correct its record to speak the truth, and when such record was corrected the journal entry of' judgment was admissible in evidence.

The evidence of the state being sufficient to establish the fact of the prior conviction, the cause is affirmed.

DAVENPORT, P. J., and EDWARDS, J., concur.


text:
    GRESTLE GARNER v. STATE.
    No. A-7982.
    Opinion Filed July 31, 1931.
    (1 Pac. [2d] 787.)

      Wilkerson & Brown, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of burglary in the second degree, and his punishment fixed at imprisonment in the state penitentiary for two years, from which judgment and sentence the defendant appeals.

The evidence on behalf of the state, in substance, shows that Charles Whiteday saw the defendant in the cotton house of Reid-Graham & Morton Gin Company, on the evening of October 14, 1929, about 7:30 o’clock. There were some sacks filled with cotton, one sack on the north side of the cotton gin on the ground. The defendant came out of the cotton house and took the sack lying on the ground and carried it and put it by the wall next to the inside driveway. The witness Whiteday notified the town marshal of .Salina, and early the next morning, they went down to the gin, and the defendant appeared, and as soon as the man in charge of the gin appeared the defendant proposed to sell him the cotton which was in three sacks. Total weight of the cotton amounted to 220 pounds. The defendant was placed under arrest. The manager of the gin testified to going to work early the morning of the 15th of October, 1929, and when he opened the scale house the defendant wanted to sell him some cotton. The witness Whiteday and others came np and placed defendant under arrest. The evidence of the state shows that the cotton house was locked the night before by Mr. Delaney when he closed for the day, and it was locked the next morning, but the evidence further tends to show that, when the defendant came out of the cotton house, he closed the door and pressed the lock together.

The defendant denies the cotton in the three sacks he offered to sell to the gin company, through its agent, belonged to the gin company, and states that the cotton had been picked on land belonging to his mother. His sister, testifying for the defendant, corroborated this statement, that the cotton had been picked on her mother’s place, near where she and her brother were living.

In rebuttal, the state undertook to show by a witness that he had hauled all the cotton that had been raised on the place belonging to the mother of the defendant. At the close of the testimony 1he defendant demurred to the evidence on the ground that the same is not sufficient to warrant the rendering of the verdict against him, and the defendant asked the court to direct the jury to return a verdict of not guilty, which demurrer was overruled and the defendant excepted.

Four errors have been assigned by the defendant as grounds for reversal. The first assignment of error is as follows: “Said court erred in overruling motion of plaintiff in error for a new trial.”

The motion for a new trial embraces the other assignments sufficiently to consider them under the one assignment. The defendant insists that his case should be reversed because the state did not prove the ownership of the building nor the ownership of the cotton involved; that there is a variance between the pleading and the proof. An examination of the record shows that the information charged the defendant with breaking into and entering the cotton house by picking the lock and unlocking the door of the cotton house belonging to, and the property of, Reid-Graham & Morton Gin Company, a corporation composed of J. W. Reid, T. O. Graham, and E. C. Morton; said property being located in the town of Salina, and being a place where cotton was stored and kept, and being personally the property of the said Reid-Graham & Morton Gin Company. The evidence relating to the ownership of the cotton that was stored in the said cotton house was given by Mr. B. P. Delaney as follows:

“Q. Did you have any cotton in the cottonhouse on the 15th day of October, 1929? A. Yes.
“Q. What was the condition of the cotton as to being baled or unbaled? A. Unbaled, in the seed.
“Q. Who did the cotton belong to? A. Reid-Graham & Morton Gin Company.
“Q. What was your occupation in October? A. Superintendent of the cotton gin at .Salina.
“Q. Do you know who the gin belonged to? A. Reid-Graham & Morton, of Muskogee.”

The contention of the defendant is that the variance in the proof and information is that the information alleges that the cotton alleged to have been taken belonged to Reid-Graham & Morton Gin Company, a corporation, and that the proof shows it belonged to Reid-Graham & Morton Gin Company, and the state did not introduce any evidence to show the gin company was a corporation. The defendant cites Simpson v. State, 5 Okla. Cr. 57, 113 Pac. 549, wherein this court held that the weight of authority is that the ownership of the building burglariously entered must be alleged in the indictment or information.

Section 2560, C. O. S. 1921, provides:

“When an offense involves the commission of, or an attempt to commit a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material.”

In Gunter et al. v. State, 16 Okla. Cr. 476, 184 Pac. 797, in the body of the opinion this court said:

“When an offense involves the commission of, or an attempt to commit, a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material.”

In Wells v. Territory, 1 Okla. Cr. 469, 98 Pac. 483, which was a conviction for the crime of forgery of a check by uttering the same to Katz Bros., a firm composed of Jacob Katz and Isaac Katz, a partnership doing business under the firm name of Katz Bros., it was held not to be a fatal variance where the proof shows that Katz Bros, was a corporation. In this case the proof shows the property burglarized belonged to Reid-Graham & Morton Gin Company, and the cotton house burglarized was a part of the gin company property. We think the proof of the ownership of the property is sufficient to sustain the allegations in the information.

The testimony in this case is conflicting, and this court has repeatedly held that, where there was' any competent testimony, though conflicting, upon which the jury could reasonably base its verdict, this court would not disturb the same.

The other errors assigned, after carefully examining the same, we hold do not possess sufficient merit to warrant a reversal. The record shows the defendant was accorded a fair and impartial trial. The court properly instructed the jury as to the law applicable to the facts in the case.

No errors appearing in the record sufficient to justify a reversal, the judgment is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    EARL WARD v. STATE.
    No. A-7832.
    Opinion Filed July 31, 1931.
    (1 Pac. [2d] 834.)
    . A. M. Reinwand, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was charged by information with forgery and sentenced to the state penitentiary at McAlester for a term of 60 days, and to pay the cost of the prosecution. Motion for new trial was filed, overruled, exceptions saved, and the case appealed. The information charged the defendant with forging a check, which is in words and figures as follows:

“United Brotherhood of Carpenters and Joiners of America, Local Union No. 1585, Lawton, Okla. May 6, 1929.
“The City National Bank
“Pay to the order of Earl Ward $85.00 Eighty-five and No/100 Dollars
“Prank Allred, President
“Earl Ward, Sec. Treas.”

The testimony on behalf of the state tended to show that the check alleged to have been forged by the defendant was presented to the City National Bank of Laiv-ton, Okla., and paid by that bank; the defendant had been at one time secretary of the Carpenters’ Local Union No. 1585, which union carried its deposit with the City National Bank. The testimony further tended to show that on the first of June the bank mailed a statement of the account to the defendant, which was received by the defendant and delivered to the secretary, Mr. Kepler; when Mr. Kepler examined the statement he discovered there had been some erasures; later on, the statement was taken to the bank, and the bank books showed there was missing from the account as made up and mailed out the canceled check for $85 and one for $88.

The testimony further tends to show that the defendant cashed a check at the City National Bank, and the bank’s account with the local union showed that the check was for $85; that the check was misplaced or destroyed and could not be found. It was not denied that a check for $5 was drawn on May 6, 1929, in payment of the April salary of the defendant. The officers of the bank stated they had not seen the two checks, one for $85 and one for $88, since the statement of the local union had been mailed to Mr. Ward, the defendant.

The defendant in his own behalf stated that he first placed his membership in the Carpenters’ Union in Law-ton in 1917—

“When the envelope came to me containing the bank statement and checks, which I received Monday evening at 7:30, on June 3, 1929, I took it out of the box and carried it to the Carpenters’ Union Hall and placed it on the desk of the secretary; Mr. Kepler took the letter from the desk and audited the books, and that is all I know about it; I never saw the envelope after that time, nor do I know what the envelope contained; I left Lawton June 3rd, and returned the first day of July; the first information I received there was anything wrong was about July 23d; I received a check for $5 for my pay for the month of May and cashed it at Hub Crawford’s. I did not raise the $5 check to $85, nor did I ever make any $88 check to myself. I never received from the local union the sum of $85, or the sum of $88. My check as business agent did not run that high. I knew nothing about the $85 or $88 checks that were drawn on the Carpenters’ Union.”

The defendant was then cross-examined as to transactions during the time he was secretary of the lodge and business agent, and as to the canceled checks that had been introduced in evidence, and as to his cashing Ms checks at Hub Crawford’s; and reaffirmed his statements made on direct examination that he knew nothing about the $85 or $88 checks; that he had not raised the $5 check to' $85 and cashed it.

The defendant then called Hub Crawford, who testified that he had on several occasions cashed checks for the defendant at his place of business, and then called several witnesses who were members of the local union, and other parties, who testified to his previous good character.

Seven errors are assigned by the defendant as grounds for reversal. The seventh error is that the court erred in overruling the motion for a new trial filed by the defendant. This is the only error necessary to be considered, as the other errors assigned are included in the defendant’s motion for a new trial.

After a careful examination of the evidence, we hold that the evidence is sufficient to sustain a verdict of guilty. This court has repeatedly held that where there is substantial evidence to show the guilt of the defendant, this court will not weigh the sufficiency of the evidence to sustain a conviction, but will consider the whole evidence to ascertain whether a conviction is founded on substantial evidence.

It is further disclosed by the record that the jury returned into open court and asked for a rereading of Mr. Kepler’s testimony, and on one or more occasions advised the court it had not agreed. There are many things that took place in the trial of this case that tended to influence the jury in arriving at its verdidt, among others, the jury was admonished by the court and told that he felt like the jury was able to agree within a reasonably short time after they went out, but it was only guesswork, of course, that he did not know where the court would be able to get a jury that would be better qualified to settle the issue than the jury he had impaneled. This is not sufficient to warrant a reversal of the case, as the remarks of the court did not tend to show what kind of a verdict the jury should render, but only tends to show that the court desired to keep the jury together until they reached some kind of a verdict.

In the verdict, the jury requested the court to give the defendant the lowest punishment under the law. This request of course is not binding on the court, but it does tend to show that after the jury had deliberated the length of time it had, as shown by the record, the jury felt the testimony was such that a light punishment would be sufficient. Considering all the evidence in the case, we believe the judgment should be modified to 30 days in the penitentiary and costs, and, as so modified, the judgment is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    CECIL JONES v. STATE.
    No. A-7878.
    Opinion Filed July 31, 1931.
    (1 Pac. [2d] 833.)
    Ira J. Banta and C. L. Hill, for plaintiff in error.
    J. Berry King, Atty. Gen., and Ed Crossland, Asst. • Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Seminole county of the crime of assault with intent to commit rape, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of three years.

The evidence of the state was that the defendant took the prosecutrix riding in his automobile, carried her to a secluded place in the woods near Wewoka, and there made an assault upon her; that, when they reached the place where the assault was committed, the defendant began to try to be familiar with her, opened his clothes, and exposed his privates, and told her he had brought her out there to have intercourse with her; that she resisted and slapped him in the face; that defendant shoved her out of the car and knocked her down three or four times; that she secured a limb and tried to hit him with it and that defendant took it away from her and hit her on the arm with it; that defendant kicked her back into the car and got in and hit her on the head with some pliers; that defendant then took her back to Wewoka and put her out at her father’s house; that on the way back he told her that, if she told on him, he would kill her; that defendant had a pistol in the car at that time; that after leaving her at home he came back again and called her out and told her if she told he would kill her; that she agreed to say they had been in a car wreck, and when she first returned home did say that, but that the next day she told her father and mother and went to the county attorney’s office and made complaint.

The defendant testified that he had had intercourse with the prosecutrix several times prior to the time of this assault; that she had been after him to buy her some clothes; that on the afternoon of the assault he was at prosecutrix’ home, and they were quarreling, and she asked him to take her some place so that her father and mother would not hear the fuss; that he drove to the place where prosecutrix said they went; that prosecutrix wanted him to go to Holdenville and buy her some clothes and that he would not go; that she got out of the car and got a limb and broke the headlights of the car and smashed the windshield; that he attempted to prevent her, and that she got his finger in her mouth and bit it and he knocked her loose; that in the car she scratched his face and he hit her, and her head hit against something in the car that made a gash in her head; that he took her back to town; that he did not make any threat to kill her, and made no attempt to have carnal intercourse with her.

Defendant contends, first, that this evidence is insufficient tO' support the verdict of the jury.

The evidence of the state shows that the defendant took the prosecutrix to the woods and there committed an assault on her. What his intentions were had to be determined by the jury from all the facts and circumstances in the case. Since the jury found him guilty, they evidently believed the prosecutrix’ story that the assault was in an attempt to commit rape.

The defendant next complains of the instructions of the court, contending that the court erred in refusing to give a requested instruction.

Under this assignment defendant contends particularly that the court should have instructed on the intent of the defendant.

In instruction No. 6, given upon the court’s own motion, it used the following language:

“* * * Did willfully, unlawfully and feloniously, violently and forcibly make an assault upon one Eunice Williams, a female, not then and there the wife of the said Cecil Jones, with the intent then and there feloniously, and by force and violence to carnally know and ravish said Eunice Williams, and accomplish with her an act of sexual intercourse, against her will and without her consent. * *

This instruction sufficiently advises the jury that before the defendant could be convicted he must have made this assault with the intent by force to have intercourse with the prosecutrix.

The court having already given a sufficient instruction on intent, it was not error to refuse the requested instruction of the defendant.

It appears from the record that the prosecutrix had previously been married and was 29 years of age; that she had been keeping company with defendant for some time; that she voluntarily went with defendant to this secluded place. Considering the age of the prosecutrix and her previous experience with men as a married Avom-an and all the facts and circumstances in the case, we are of the opinion that the punishment assessed by the jury is excessive.

For the reasons stated, the judgment is modified, and the punishment reduced from three years to one and a half years in the state penitentiary, and, as modified, the cause is affirmed.

DAVENPORT, P. J., and EDWARDS, J., concur.


author: CHAPPELL, P.

text:
    RICHARD FERGUSON v. STATE.
    No. A-7855.
    Opinion Filed July 31, 1931.
    (1 Pac. [2d] 830.)
    Clark & Jack Nichols, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, P.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of McIntosh county of the crime of manslaughter in the first degree, and his punishment fixed by the jury at imprisonment in the state penitentiary for fifteen years.

In the trial of the case, defendant admitted the killing, but sought to justify it on the ground of self-defense. A reading of the record discloses that the evidence was sufficient to support the verdict of the jury.

Defendant complains first of error of the court in leaving his district during the progress of the trial, and of permitting an attorney to perform the functions of the court in his absence.

It appears from the record that the jury had been impaneled and evidence introduced, and the court recessed, as shown by the following minutes of the court:

“Whereupon the further trial of the cause was recessed until 9 otolock tomorrow morning, to wit, December 3, 1929, the jury being, permitted to' separate under the usual admonition of the court.
“December 3, 1929, court did not convene on account of illness of wife of district judge.
7 “Thereafter, to wit, at 9 o’clock a. m., December 4, 1929, the further trial of the cause was resumed, the jury being all present, and the defendant being present in person and by his counsel, and thereupon the following proceedings were had, to wit:
“Fred Thomas, being called as a witness on behalf of the state of Oklahoma, being first duly sworn, testifies as follows, to wit.”

There is nothing in the record proper to disclose that the trial judge left the district, this fact being made to appear in the motion for a new trial and admitted to be true at that time.

Defendant, in support of this contention, cites Tunnell v. State, 24 Okla. Cr. 176, 216 Pac. 951, where this court says:

“The presence of the judge is essential to the organization of the court; and where, in the progress of a criminal trial, the judge temporarily relinquishes control over the proceedings or abandons the trial, a judgment of conviction will be reversed.”

This rule is supported, by Allen v. State, 13 Okla. Cr. 533, 165 Pac. 745, L. R. A. 1917E, 1085; Stites t. State, 9 Okla. Cr. 596, 132 Pac. 822; Wright v. State, 7 Okla. Cr. 280, 123 Pac. 434, and Cochran v. State, 4 Okla. Cr. 380, 111 Pac. 974.

In the aboye cases, it is disclosed that during the progress of the trial, and while the evidence was being taken, or argument made to the jury, or while the jury was deliberating, the trial judge was out of the presence and hearing of the jury, absent from the courtroom or the county.

In the case at bar, the record discloses no such condition. When the trial court recessed on the evening of December 2d, court was no longer in session, and the trial was not in progress until the trial judge returned and reopened the proceeding.

If the contention of defendant was correct, the judge would be obliged to be in the ■ courtroom exactly at the time fixed in the recess. If a storm should arise which made it impossible f|r the judge to return to the courtroom at the time fixed, or if, on account of sickness of himself or a member of his family, he was unable to be present at that time, the case would abate, or the court would lose jurisdiction, and further proceedings would be a nullity.

If one day’s delay on the part of the judge in returning after the recess would cause the case to lapse and void the proceedings, then one minute’s absence would produce the same effect.

Whether the delay in appearing and proceeding with the trial was necessary or not would depend upon the facts in each particular case. Where, as in the case at bar, the delay was unavoidable and reasonable, such delay would not void the proceedings nor deprive the court of jurisdiction.

Defendant contends that when a member of the bar appeared at the time to which the recess was taken and, in the absence of the judge, admonished the jury and directed them to return the next day, that that voided the proceedings and deprived the court of jurisdiction.

This contention is equally falacious. If this were true, then, if the jury should return to the courtroom and be in the box and the court should be temporarily delayed, any person might attempt to speak for the court and might excuse the jury, and thus undo all the work of the court. To state such a proposition is to refute it. '

There is likewise no merit in defendant’s contention that the fact that the trial judge left' the county during the recess deprived the court of jurisdiction to proceed with the trial.

In Ex parte Mingle, 2 Okla. Cr. 709, 104 Pac. 68, this court said:

“During the progress of the trial the trial judge at divers times during adjournments before the final submission of the case to the jury left Oklahoma county and went to Canadian county, but was present the entire time the jury were deliberating of their verdict, held, that the absence of the trial judge during the adjournments could in no way affect the legality of the proceedings, and did not deprive the court of the power or jurisdiction to render judgment and issue process for the imprisonment of the defendant. In re Patswald, 5 Okla. 789, 50 Pac. 139, distinguished.”

In Ex parte Mingle, the trial judge was not out of the district, but whether he was or not would be immaterial. During the adjournment the judge might leave the county, the district, or even the state without in any wise affecting his power to proceed with the trial of the case, as disclosed by this record.

Defendant next contends that it was reversible error for the trial court to' permit the jury to separate before the case had been finally submitted.

The affidavit of Mr. Clark Nichols in support of his motion for a new trial sets out in substance that, as he went to the courtroom to argue the case, he walked up stairs with one of the jurors, and that when they reached the courtroom the other jurors were already in the courtroom ; that he did not know how long the jurors had been separated, or where this juror had been.

Section 2716, C. O. S. 1921, provides:

“The jurors sworn to try an indictment or information, may, at any time before the submission of the cause to the jury, in the discretion of the court, be permitted to separate, or to be kept in charge of proper officers. The officers must be sworn to keep the jurors together until the next meeting of the court, to suffer no person to speak to or communicate with them, nor to do so themselves, on any subject connected with the trial, and to return them into court at the next meeting thereof.”

In Armstrong v. State, 2 Okla. Cr. 567, 103 Pac. 658, 24 L. R. A. (N. S.) 776, this court said:

“ 'The jurors sworn to try an indictment, may, at any time before the submission of the cause to the jury, in the discretion of the court, be permitted to separate, or to be kept in charge of proper officers’ — leaves the question of keeping the jury together during the trial of a capital case in the discretion of the trial court.” Weatherholt v. State, 9 Okla. Cr. 161, 131 Pac. 185; Yarbrough v. State, 13 Okla. Cr. 140, 162 Pac. 678.

It affirmatively appearing from the record that the separation of the jury occurred prior to the final submission of the cause, such separation was within the discretion of the trial court, and the defendant cannot be heard to complain thereat.

The other errors complained of by the defendant being equally without substantial merit, the cause is affirmed.

DAVENPORT, P. J., and EDWARDS, J., concur.