text:
    ADDIE BARNETT v. STATE.
    No. A-6124.
    Opinion Filed Aug. 18, 1928.
    (269 Pac. 1118.)
    L. C. McLean, for plaintiff in error.
    A. E. Underwood, City Atty., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the police court of the city of Enid on a charge of being intoxicated in a public place. An appeal was taken to the county court, and- defendant tried de novo before a jury, and was there convicted, and a fine of $10 assessed, and from-this judgment has appealed to this court. The assignments of error all go to the same question, that the evidence is insufficient to sustain the judgment. An examination of the record discloses that there is evidence from which the jury might reasonably and logically arrive at the guilt of the defendant. The weight and credibility of this evidence was within the province of the jury, and no reason for disturbing the judgment is apparent. The case is affirmed.


source: Caselaw Access Project

author: EDWARDS, J.

license: Public Domain

text:
    FRED COURTNEY v. STATE.
    No. A-6081.
    Opinion Filed Sept. 8, 1928.
    (269 Pac. 1059.)
    Thomas W. Conner,' W. H. Hussey, and Mounts & Chamberlin, for plaintiff in error.

      Edwin Dabney, 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 Tillman county on a charge of having the unlawful possession of intoxicating liquor with intent to convey, and was sentenced to serve a term of six months in the county jail and to pay a fine of $500.

Prior to his trial in this case, defendant had been charged in case No. 1588 in said county court with having the possession of whisky with intent to sell. He was tried upon this charge and acquitted. When arraigned in the instant case (No. 1610), he demurred to the information on the ground of former jeopardy by reason of the trial in case No. 1588. This demurrer was overruled. Defendant then filed what is designated a “Motion to Quash,” setting out that he had prior thereto been charged with having the identical possession of the identical whisky in the same transaction charged in the instant casé; that he had been duly tried and acquitted upon such charge. Attached to this plea is a copy of thé information in the former case.

The Attorney General has filed a confession of error in part as follows:

“* * * In the course of the trial the plaintiff in error introduced in evidence the record and testimony in case No. 1588, in the said county court of Tillman county, the same being the case referred to in plaintiff in error’s motion to quash this information, and in which case the plaintiff in error was acquitted of having in his possession on the day charged in this information the same one-half gallon of whisky of which he was convicted in this case. The record discloses that the trial judge overruled both the demurrer and the motion to quash the information in this case, to which actions the plaintiff in error excepted. Technically speaking, perhaps the trial judge did not err in overruling either the demurrer or the motion to quash the information. However, in the course of the trial the plaintiff in error offered in evidence the transcript of the testimony introduced in the trial in case No. 1588, on the theory that his motion to quash raised the issue of former jeopardy. The trial judge excluded the proffered testimony, but the same is included in the record in this case as an exhibit, and shows that in case No. 1588 the plaintiff in error was acquitted of having possession of this half gallon of whisky with intent to sell the same, while in this case he was convicted of having the possession of the same whisky with intent to convey the same.
“In the case of Anderson et al. v. State, 7 Okla. Cr. 491, 124 P. 86, this court held in the first paragraph of the syllabus as follows: ‘An information charging the defendant with the unlawful" possession of intoxicating liquors with intent to sell the same, and also the unlawful intent to convey the same from one place in the state to another place in the state, is not bad for duplicity.’
“In the body of the opinion it is said: ‘The information in this case charging that appellants had in their possession certain prohibited liquors with intent to sell the same, and also charged that said liquor was held for the purpose of unlawfully conveying the same from one place in the state, unknown to informant, to another place therein. It is claimed that the information is bad for duplicity, in that it charges two. separate and distinct offenses. We do not agree with this contention. If appellants had the liquor in their possession with the intent of violating all of the provisions of the prohibitory liquor law, such possession would constitute but one offense. An information which charges a defendant with unlawfully having in his possession prohibited liquor for the purpose of violating the prohibitory liquor law is sufficient; and, under such an information, the state can provide that the defendant intended to violate any one or all of such provisions, and such possession will constitute but one offense. See Childs v. State, 4 Okla. Cr. 474, 113 P. 545, 33 L. R. A. (N. S.) 563. The trial court, therefore, did not err in overruling the motion to quash the information upon this ground. * * .
“It is apparent, from the foregoing decision of this court, that the state had no right to divide the offenses, of possession of intoxicating liquor at one time into different offenses, because of the different intents with which the plaintiff in error may have possessed the said liquor. For such reason, the Attorney General believes this judgment should be reversed, and the case remanded, with directions to dismiss the same, although the action of the trial court may have been technically correct, for the reason that under the Constitution no person can rightfully be twice put in jeopardy in this state for the same offense.”

See, also, Jackson v. State, 11 Okla. Cr. 523, 148 P. 1058.

An examination of the record clearly discloses that the charge in this case No. 1610 in the county court of Tillman county is a charge of the same act and transaction charged in case No. 1588, upon which charge defendant had been tried and acquitted. Art 2, § 21, of the state Constitution, provides that no person shall be twice put in jeopardy of life or liberty for the same offense. Section 2619 provides how the plea shall be made.

The constitutional immunity against being put twice in jeopardy may be waived, and is waived, if not presented to the court by plea. Sims v. State, 9 Okla. Cr. 561, 132 P. 508. The language of this opinion, however, might be construed as holding section 2619 mandatory, and that the plea could be made only in the form there set out. This statute is not mandatory, but directory. It is not within the power of the Legislature to so limit the constitutional provision, or to hedge it about by artificial restrictions, as to deprive an accused person of this constitutional guaranty. Where the facts of former conviction or acquittal are duly brought to the attention of the court before the jury is impaneled, the plea is sufficient. This court, in Jiackson v. State, supra, discusses the manner and time in which plea should be interposed, citing numerous authorities from this and other courts in support of the rule announced, that the special plea of former jeopardy is unnecessary, and not required when the record of the court, within the judicial knowledge of the court, presents all the facts concerning the prior trial and its results; that in such case the court will take cognizance of the records and determine their proper legal effect; and that the constitutional right of immunity is not waived where a defendant before the taking of testimony interposes a plea of former acquittal. In the instant case the written plea was duly filed, and was called to the attention of the court here, and by the trial judge overruled.

In Ex parte Nielsen, 131 U. S. 176, 9 S. Ct. 672, 33 L. Ed. 118, the Supreme Court of the United States, on habeas corpus, discharged the petitioner, where the plea of former jeopardy was entered orally, and it was there said in substance that, where it appeared anywhere in the record that the conviction of an accused is in violation of the constitutional immunity against being twice put in jeopardy, the court is without jurisdiction of the cause, and the accused in such case entitled to his discharge by writ of habeas corpus.

The facts of former jeopardy in the record before us did not appear as a matter of law, and could not properly be raised by demurrer. Defendant’s demurrer, therefore, was properly overruled. The facts of former jeopardy properly should be raised, not by a motion to quash, but by plea, as provided by section 2619, Comp. St. 1921. A pleading, however, is determined from the instrument itself, not from the designation given it.

The so-called motion to quash was in fact a plea of former jeopardy. This plea, the evidence, and the offer of evidence under it, which, was rejected by the court, but which is incorporated in the case-made, and the judicial knowledge taken by court of its own records, clearly brought to the attention of the court the fact that defendant had been tried and acquitted in another case of the identical transaction charged in this case. The constitutional right of defendant against being twice put in jeopardy must not be overridden. The confession of error of the Attorney General rightfully interprets the law, and it is adopted.

The case is reversed and remanded, with instructions to dismiss.

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


text:
    A. C. BICKELL v. STATE.
    No. A-6329.
    Opinion Fied Sept. 15, 1928.
    (270 Pac. 88.)

      Blanton, Osborn & Curtis and Garrison & Taylor, for plaintiff in error.
    Edwin Dabney, Atty. Gen., M. B. Cope, Erman S. Price, Mac. Q. Williamson, and J. T. McIntosh, for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Garvin county on a charge of making a false report to the bank commissioner with intent to deceive, and was sentenced to serve a term of 18 months in the state penitentiary and to pay a fine of $500.

In April, 1924, the directors of the Farmers’ Exchange Bank of Lindsay at a meeting decided that the institution was insolvent, and closed its doors, and placed it in the hands of the state bank commissioner. Defendant at the time was a director and the cashier. He was informed against some time later; the trial was had in January, 1926, resulting in a verdict of guilty. The record was properly preserved, and in due time the appeal was lodged in this court.

It is argued at length with much earnestness that the failure of the bank was through no fault of its officers; that by their zealous effort the bank weathered the period of deflation from 1920 to the close of 1923, and had emerged from the critical condition of that period, and was fairly on the road to stability, when an examiner of the banking department talked over the long-distance telephone from Lindsay to the bank commissioner at Oklahoma City; a part of his conversation was overheard and misunderstood by telephone girls, who spread the misunderstood statements, resulting in a run on the bank. The directors of the bank, to prevent frightened depositors from securing an undue advantage, and to allow all to share alike in the assets, closed the institution. That no money was abstracted from the bank, no assets molested, no loans to relatives or favorites made, and without the officers having received their salaries for two or three months the institution ceased business. From an examination of the questions of law raised, decisive here, we deem it uncessary to determine or discuss the facts.

The principal assignment argued is that the court erred in overruling the challenge for cause to certain jurors; that defendant was thereby compelled to exhaust all his peremptory challenges, and that certain jurors who sat upon the panel were not impartial. F. E. Smith, called as a juror, testified:

“By Mr. Blanton: Q. Mr. Smith, I believe you stated a while ago that you had some money in the bank when it failed? A. Yes, sir.
“Q. Did you ever form or express to anybody, and I mean by that to state anything about your ideas as to the guilt or innocence of this defendant, or those who were in.charge of the bank, as to the guilt or innocence of the defendant as to any particular charge of crime? You need not state what you said, or anything of the kind, but did you ever form an opinion or state an opinion? A. I have formed an opinion.
“Q. Well, did you ever have or express an opinion? A. No, sir.
“Q: Now, you formed an opinion generally as to the guilt or innocence of the defendant in the conduct of the bank? A. Yes, sir.
“Q. That is what you mean by that? A. Yes, sir.
“Q. And it would require evidence to remove that opinion, whichever way it was, in this case? A. Yes, sir.
“Q. And you would go into the jury box with that opinion with you? A. Yes, sir.
“Q. And you would not surrender it until the evidence convinced you that you were wrong about it? A. No, sir.
“Q. And you don’t think, then, that you could try this case fairly, both alike to the state and the defendant, do you? A. How was the question?
“Q. You do not think that you could try the case, then, fairly both alike to the state and the defendant, do you? A. Yes, sir.
“Q. You think you could disregard that opinion? A. Yes, sir.
“Q. But it would require evidence? A. Yes, sir.
“Mr. Blanton: We want to challenge this juror for cause. * * *”

When further examined by the state, he testified in substance that he had formed an opinion as to the manner in which the bank was conducted, but had no opinion on the particular charge. The court then overruled a challenge for cause, to which ruling exceptions were saved. Counsel challenged the juror peremptorily, and at the time excepted to being required to, exercise a peremptory challenge upon this juror. This juror was a depositor, and had lost money by the failure of the bank; he quite frankly disclosed that he was not fair and impartial. It is true that he said that he had no information about the particular false report to the bank commissioner, but had formed an opinion as to the guilt or innocence of defendant in his management of the bank, which would require evidence to remove. His opinion was necessarily adverse to defendant. In the light of the examination of other jurors retained on the panel, to require defendant to exercise his last peremptory challenge to rid himself of this juror deprived him of a substantial right.

Following the peremptory challenge of the juror Smith, J. B. Baker was called and examined as a juror. He testified he was a depositor in the failed bank; had about $200 in it at the time, and sustained a loss by reason of the failure. He further testified that such fact would not influence him in the slightest degree in returning a verdict. He was challenged by defendant for cause, and the challenge was overruled. The peremptory challenges of defendant being exhausted, he was compelled to accept this juror, who served on the panel in the trial. The disqualification of the juror Baker does not turn altogether upon his having formed or expressed an opinion as to the guilt or innocence of defendant of the particular charge for which defendant was being tried. Section 6, art. 2, of the state Constitution, among other things, provides that justice shall be administered without prejudice. Section 20, art. 2, guarantees a trial by an impartial jury. A person on trial charged with a crime, whether guilty or innocent, is entitled to a trial before an unprejudiced and impartial jury. This is a basic principle underlying our jury system. A juror may be disqualified by reason of having formed a fixed opinion, or for other statutory reasons, and for reasons not stated in the statute; for the fact that certain grounds of disqualification are specified by statute does not prevent a juror from being incompetent on other grounds. “'Juries,” 35 C. J. § 427, note 77; Turner v. State, 4 Okla. Cr. 164, 111 P. 988. Prejudice is a subtle thing. It may, and often does, exist in the mind of an individual without his being conscious of it. It cannot be discovered, except by the conduct or some expression of the person entertaining it. It has often been said Nthat, though a juror states on his voir dire that he has formed no opinion and is without bias, this is not alone the test of competency; but the circumstances surrounding the juror should be considered in determining his competency. Johnson v. State. 1 Okla. Cr. 321, 97 P. 1059, 18 Ann. Cas. 300; Scribner v. State, 3 Okla. Cr. 601, 108 P. 422, 35 L. R. A. (N. S.) 985; Temple v. State, 15 Okla. Cr. 176, 175 P. 733; Schrimpsher v. State, 32 Okla. Cr. 371, 241 P. 201.

Our attention has. been called to no case where a person sustaining loss in a failed bank has been permitted to act as a juror in a trial of one charged with the management of a bank and under whose management the loss occurred. Probably no such cases exist. If one person who sustained financial loss by failure of the bank may be permitted to serve on the jury, the entire panel might be composed of persons who sustained, loss by the failure of the bank. To state the proposition discloses its absurdity.

Excerpts from cases following are not directly in point, but are enlightening. In Miller v. U. S., 38 App. D. C. 361, 40 L. R. A. (N. S.) 973, it was held:

“The son of a holder of stock in an unincorporated joint-stock company is not competent to sit as a juror for the trial of one charged with crime against the company.”

In Crawford v. U. S., 212 U. S. 183, 29 S. Ct. 260, 53 L. Ed. 465, 15 Ann. Cas. 392, it was said:

“* * * A jury composed .of government employees, where the government was a party to the case on trial, would not in the least conduce to respect for, or belief in, the fairness of the-system of trial by jury. To maintain that system in the respect and affection of the citizens of this country, it is requisite that the jurors chosen should not only in fact be fair and impartial, but that they should not occupy such relation to either side as to lead on that account to any doubt on that subject. * * * Modern methods of doing business and modern complications resulting therefrom have not wrought any change in human nature itself, and therefore have not lessened or altered the general tendency among men, recognized by the common law, to look somewhat more favorably, though perhaps frequently unconsciously, upon the side of the person or corporation' that employs them, rather than upon the other side. Bias or prejudice is such an elusive'condition of the mind that it is most difficult, if not impossible,- to always recognize its existence, and it might exist in the mind of one- (on account of his relations with one of the parties) who was quite positive that he had no bias, and said that he was perfectly able to decide the question, wholly uninfluenced by anything but the evidence. The law, therefore, most wisely says that, with regard to some of the relations which may exist between the juror and one of the parties, bias is implied, and evidence of its actual existence need not be given.”

In Lockhart v. State, 145 Md. 602, 125 A. 829, it was said:

“After further examinations had been conducted, and 11 talesmen had been accepted, the next one called was found from his testimony to be office manager for an employer who was a creditor of the defendants’ firm, and who incurred a loss through its failure. For that reason, and because he had heard his employer discuss the case, the defendants chállenged him for cause. The challenge was overruled by the court, on the ground that, according to the talesman’s testimony, he had not formed any opinion as to the guilt or innocence of the defendants. The talesman thereupon took his seat in the jury box, and, if he had been finally accepted, the panel would have been complete. * * * The refusal of the court to allow the last challenge for cause to' which we have referred was erroneous. The relations sustained by the talesman to one of the class of persons whom the defendants were accused of having defrauded should in itself have been a sufficient inducement to favorable action on the defendants’ objection. As office manager for an employer, who suffered loss from the very conduct which the jury would investigate, the talesman had an interest which naturally raised a doubt as to whether he would be able to exercise an impartial judgment upon the important issue to be decided. If the employer had been a technical party to the case, there could be no question but that the talesman would be disqualified. 2 Poe’s Pl. & Prac. 254; 16 R. C. L. 273; 24 Cyc. 276; Crawford v. United States, 212 U. S. 183, 29 S. Ct. 260, 53 L. Ed. 465, 15 Ann. Cas. 392. It was because of a wrong alleged to have been committed against the tales-man’s employer and others with whom the defendants had dealt that they were being prosecuted. There is ample reason for applying to a talesman having such an interest the same rule of disqualification to which he would be subject if his employer had been a party to the proceedings.”

The juror Smith should have been excused for cause, and the defendant not required to exercise a peremptory challenge to exclude him from the panel, and the juror Baker was likewise incompetent as a juror. They belonged to a class disqualified by interest.

Objection was made to two other jurors, and affidavits purporting to disclose that they had formed or expressed an opinion were presented on the motion for a new trial, and incorporated in the record, and the argument is made here that they also were incompetent. These affidavits are not sufficiently definite, and, in view of the fact that the case must be reversed for the reasons just assigned, it is unnecessary to discuss these further objections to the jury.

The case is reversed and remanded.

DOYLE, P. J., and DAV|ENPORT, J., concur.


text:
    ELMER STOUT v. STATE.
    No. A-6324.
    Opinion Filed Sept. 15, 1928.
    (270 Pac. 90.)

      P. H. Moroney and Ben Smith, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Blaine county on a charge of robbery with firearms, and was sentenced to serve a term of 25 years in the state penitentiary.

Briefly stated, the record discloses that on June 30, 1925, a bank at Greenfield, Blaine county, was robbed. Three men in an automobile appeared there, and by a display of firearms took $2,200.50 from the bank. Four person's were in the bank at the time — M. C. Kelly, the cashier; J. W. Baker, the teller; C. P. Busch and Ben Dixon, customers. When the robbery was completed, Kelly was put in the car with the robbers and was taken some 10 miles in the country and there released. The identity of two of the robbers was not questioned. One of them was Dad Stewart who was killed in a robbery of a bank at Navina, Okla., some six weeks later. Another of the robbers was Edgar Stout, a brother of defendant, who confessed his connection with the robbery. The identity of the third participant is-contested. The theory of the state is that defendant here was the third member of the party. Defendant has interposed the defense of alibi, and contends that a man by the name of Ralph Jones was the other member of the party committing the robbery.

The first objection urged is that the evidence is insufficient to sustain the judgment; that the identification of defendant as a participant in the crime is not shown by that degree of proof required in criminal cases. His counsel admit that the circumstances shown place defendant at a serious disadvantage, particularly the evidence of the kinship between defendant and Edgar Stout, an admitted participant, with the further fact that the other participants, Stewart and Edgar Stout, rendezvoused at defendant’s residence in Tulsa county, both before and after the robbery. The defense offered a number of witnesses in support of his claim of alibi; also by an extremely close examination his counsel sought to weaken the testimony of the state’s witnesses as to the identification of defendant. The testimony identifying defendant as a party to the robbery is as follows:

Ben Dixon, a negro patron in the bank at the time, said defendant looked like the third man; that he could not find any one who would favor him more, but could not absolutely say it was him.

The witness Busch, a farmer, in the lobby of the bank when the robbers entered, said:

“* * * Q. Have you seen that fellow that had the gun on you since? A. Yes.
“Q. Where? A. The first place I saw him was in Oklahoma City.
“Q. How Jong since? A. I think possibly it was . along in September.
“Q. Where did you see him afterwards? A. Here in Watonga.
“Q. Is he here in this courtroom to-day? A. To the best of my knowledge, that is the man there, Elmer Stout. * * *”

On cross-examination he stated that his identification was to the best of his knowledge; that the defendant there looked like him.

The witness Baker testified:

“* * * Q. Can you give a description of the man that stood there at the window, that you say you saw, and that you say had a gun; can you give a description of him? A. Well, I didn’t see so much of him, only his face, just from the waist up.
“Q. Tell the jury about his face. A. Well, I don’t know whether I can describe him that way or not, he had a, oh, I don’t know — maybe two or three days beard on his face, or something like that.
“Q. Do you know the color of his hair or his— A. Oh, I couldn’t tell; he had a cap on.
“Q. Would you be able to recognize the man if you saw him? A. Yes.
“Q. Is he in the courtroom? A. Yes.
“Q. Where? A. Sitting on the other side of the table. (Witness points out the defendant, Elmer Stout) * * *”

On cross-examination he was asked if it was possible for him to be mistaken; he answered: “I might be, but I don’t feel that way.”

The witness Kelly testified:

“* * * Q. What did the defendant do there, if anything ? A. He was standing there by that window with a gun right through the window, where it would cover every one of those men at any time. * * *
“Q. You could see this defendant all the time? A. Oh, yes; whenever I would look around that way.
“Q. How long were you kept in that position? A. I wouldn’t say over three minutes, probably not over two minutes; they worked pretty fast. * * *
“Q. What was this defendant doing while Stewart and this other Stout was putting these people in the vault? A. Standing right there at the window.
“Q. Did he ever leave that window? A. No, sir. * * ❖
“Q. Did you observe the defendant’s clothing at that time? A. Yes.
“Q. Tell the jury what he had on. A. He had on a blue work shirt that looked like it had been washed, and he had on a pair of khaki pants and a belt.
“Q. And I believe you say that he had a cap? A. Yes.
“Q. Any disguise on his face in any way A. No, sir.
“Q. Have you recognized him here in the court at this time? A. Yes.
“Q. Point him out to the jury. A. The boy sitting right behind Mr. Smith there (indicating the defendant). * * *
“Q. Is there any question in your mind as to this defendant being the man? A. No. * * *”

In the case of Simpson v. State, 40 Okla. Cr. 58, 266 P. 783, in discussing the identity of a defendant as the person who committed a robbery, this court held:

“The testimony of a witness as to the identity of a person is in effect a matter of opinion. It is competent for a witness to testify that he saw defendant after his arrest, and recognized him as the one whom he saw commit the offense, although the witness may not be able to state any peculiarity or characteristic on which his identification is based.”

In the case of Brannon v. State, 39 Okla. Cr. 207, 264 P. 835, in which the identity of a defendant as a participant in a robbery was in question, it was held:

“The evidence of a witness in a criminal case as to the identification of defendant at or near the scene of the crime need not be absolutely certain, in order to render it competent. That such testimony Is not positive goes to its weight rather than to its competency.”

As just stated, there is evidence here that defendant was one of the three persons participating in the robbery charged. This is contradicted by the evidence of alibi offered by defendant. The weight and credibility of this evidence was for the jury. Applying the well-settled rule, where there is evidence, although conflicting, from which the jury may reasonably and logically find the guilt of a defendant, this court will not invade the province of the jury and weigh the evidence. We see no reason to disturb the judgment for insufficiency of the evidence.

It is next argued that the court erred in his instructions, and in refusing certain instructions requested by defendant. Defendant requested an instruction upon the law of alibi. The requested instruction is argumentative, and contains other elements than alibi and is not correct in form. The court upon this subject gave the following:

“You are instructed that the defendant has interposed in this case, as one of his defenses, what is known in law as an alibi, that is, that the defendant was at another and different place at the time of the commission of the crime The law is that such a defense is proper and legitimate, and that the jury should consider all of the evidence bearing on this point, whether introduced by the state or the defendant, and that if after a careful consideration of all the evidence in the case the jury' entertain any reasonable doubt as to whether the defendant was in such other place when the crime was committed, then and in that event the jury should give the defendant the benefit of such doubt and acquit him.”

In the case of Thompson v. State, 6 Okla. Cr. 50, 117 P. 216, it is stated that an instruction in this form is correct. The law is, and the instruction should be, that, if the jury has a reasonable doubt whether defendant was at the place of the commission of the crime, they should give him the benefit of the doubt and acquit. The instruction is more favorable than the law warrants, in that the jury are told that if they have a reasonable doubt whether defendant was at the other place — that is, the place mentioned in the evidence of alibi — he should be given the benefit of the doubt and acquitted.

Complaint is also made that counsel for the state was guilty of misconduct in the argument to the jury. This objection first appears in the record in the motion for new trial. No objection was interposed to the argument at the time made, nor was any request made that same be taken by the court reporter, nor was any motion made to exclude it. This court, in a long line of decisions, has held that in the trial of a criminal case, where improper argument is made, objection should be interposed and a request made to have the same taken in shorthand, and to exclude the same from the jury. When the matter is not brought to the attention of the trial court in this manner, and an opportunity thereby given the court to rule on the objection, it is not properly raised for action by this court. Quitman v. State, 35 Okla. Cr. 245, 250 P. 441; Howard v. State, 39 Okla. Cr. 336, 265 P. 149.

Some brief argument is made on some other assignments of error. All of these have had attention. None of them are of sufficient importance to require special discussion. Upon the entire record we are convinced that defendant had a fair trial, the issues were fairly submitted, and no error substantially prejudicial to the rights of defendant is made to appear.

The case is affirmed.

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


author: DAVENPORT, 'J.

text:
    GEORGE GLIDEWELL v. STATE.
    No. A-6327.
    Opinion Filed Sept. 22, 1928.
    (270 Pac. 344.)

      H. D. Henry and S. A. Horton, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, 'J.

The plaintiff in error, hereinafter referred to as the defendant, was charged in the district court of Greer county with the murder of Edgar A. Jones, was tried and convicted, and his punishment fixed at imprisonment for life in the state penitentiary. Motion for new trial was filed and overruled, and exceptions saved, and judgment was rendered in pursuance of the verdict. To reverse the judgment, defendant has appealed to this court by petition in error, with case-made.

The evidence on behalf of the state tends to show the following facts: Neel Burtcher, called on behalf of the state, stated:

That he lived at Bradley, Okla., in Grady county; that on or about the lBth day of December, 1925, he was at the Perry Hotel, in Mangum; that was on Sunday night; he had known Edgar Jones something like a month; he had only seen the defendant once prior to that time; that on the 13th of December, about 10 o’clock at night, he was down at room 6, Perry Hotel, in Mangum; there were three or four others with him, one boy was called Claud, and defendant’s brother, “Claud’s last name I learned was Mullins; defendant’s brother was S. B. Glide-well, Jr. I was in the room when defendant came in; when defendant went out of the room, he started down the steps and got to the top of the steps, when Daisy Henderson run out and grabbed him, and asked him to pay a dollar and a half, and he said he did not owe her a dollar and a half, and they stood there and argued a good bit; her husband, I think, first come up and said, Tf you owe the one dollar and a half,’ to give it to her, and he said that he did not owe her a dollar and a half. Edgar Jones was there at that time. I did not see Edgar when the woman caught the defendant by the arm; he was there; he was back in his room, but I did not see him. Ed came out and said, if he owed her the dollar and a half, to pay it to her, and defendant said, ‘What in hell is this to you?’ When defendant said this to Edgar Jones, Edgar said, ‘I said, if you owe it to her, pay her,’ and the defendant asked for some change; defendant said he did not have any change; he said he could give him two half dollars, and he paid her and went down the steps. I think Claud Mullins was with him; I would not be positive he was. Defendant’s brother went down with him; defendant had on a blue suit, white shirt, striped necktie, and a kind of a black hat. I saw the defendant again that night, I don’t know just what time it was; it was only about 30 minutes, maybe an hour, after I first saw him. I saw the defendant the second time standing at the head of the steps in the Perry Hotel, leaning up against the wall. It was steps that go up from the east at the Perry Hotel. I don’t know the boys’ names that were there; there was a curly headed boy, and kid with the blue suit; they were standing there, arguing about some dice. Edgar Jones came out of his room and told them, all that did not live there, to get out; that us boys lived up there, and we did not figure any damned outsiders can come up and run things over us. I did not hear any one else speak to them about stopping the noise. I know 'Mr. Patterson wgs rooming in the hotel, but I do not know his room number. I could not tell how many boys were there at the time; there were eight or ten of them, a bunch I know. I don’t remember whether Edgar Jones was out of his room, and was talking to the boys, when George Glidewell came up or not. I remember that, when Ed said that, I looked around and seen the defendant standing there, leaning up against the wall, the defendant had his hand in his right coat pocket. When Edgar Jones said those who did not have rooms get out, they all started, and when they started for their rooips George stepped up and pulled his pistol, and started to shooting at Ed 'Jones. I saw Jones after he was shot, but I did not see him' when he fell; there was a whole lot of smoke; the hotel was full; you could not see anything. I could see Jones plainly when he came out of his room. I don’t remember who was the first fellow to Jones after he was shot.' I believe his name was Claud Martin. I went back to my room and ran out again. Jones was lying on his face near the door of his room, No. 2, which was in the south end of the hall on the south side, southeast; his feet was very nearly even with the door of his room; after Mr. Claud Martin got there, there were several came; I don’t know who all. I just saw the bulk of defendant’s pistol as he pulled it out of his pocket; I could not tell what kind of a pistol it was. ‘
“I do not know whether the defendant saw Edgar Jones the last time he came up in the hall. I did not hear Edgar Jones say anything to him; there was no statement between either of them in the hall, when the defendant came up the last time; myself, tiie defendant’s •brother, and one little short guy, who worked on the pavement down there, was in a game; I don’t know his name, and there was another guy down there I don’t know, and there was Tommie Watson. We was playing on a bed, the bed sets north and south in the room. Edgar Jones was not in the room at any time that I know of during the crap game; the boys left after the first game, and we went back again and begin shooting dice after they left. We did not play very long the last time, when we broke it up and commenced arguing about the dice. We started the argument and went out in the hall at the head of the stair steps. The defendant, when he came back just prior to the shooting, was at the top of the steps when I saw him; when he shot he was standing at the top of the steps right close to the wall, right where the wall crooks down the steps there. Edgar Jones was leaning up against an old mirror or washstand against the wall, about 2 or 2 1-2 feet from the head of the hall toward the south end, south of the head of the steps. I was north of the defendant and Edgar Jones, something like a couple of feet, I guess, from the defendant, about 4 to 6 feet from Jones; I don’t know exactly how far I was. I saw the defendant that night after the shooting. Mr. Tittle seemed to have him under arrest. I recognized him as the one who did the shooting. When I saw him in the sheriff’s office, he was dressed something like he was at the time of the shooting, except he had on a cap; instead of a hat. Defendant made a statement and I asked him if he was the one next to me shooting dice, and he said, ‘Yes, sir’ he was, and I identified him as the man who did the shooting. He said he was not up there when the shooting was done.
“I am 19 years of age; when the deceased came out of his room that night, he had his pants on, and his underwear, and was bareheaded and barefooted; I did not see any gun on him; his hands were hanging down as he came out of the room; he looked just like he always did. I saw him plainly; he was shot in the heart. I don’t know how long he lived after he was shot, but I judge he lived something like three minutes. I did not hear him say anything after he was shot; Claud Martin said something to him, and rolled him over, was all; that was before he died.”

On cross-examination, the witness stated:

That his home was at Bradley; that he lived in Oklahoma City and had a cleaning and pressing business; come from Newport, Ark., to Oklahoma City, he was raised partly in Arkansas and partly in Oklahoma; admitted to having paid a little fine in Oklahoma City for loitering around a bootlegging establishment; also was charged with running into a boulevard with a car; he had been in Mangum something over a month prior to this difficulty; did not know whether Edgar Jones was a gun toter or not. “I would not swear the gun presented to me was Edgar Jones’ gun, but it looks something like it; I saw a gun like the one presented lying on the foot of the bed after the shooting, which looked like this gun; the foot of the bed where I saw this gun was near the door on the side of the room where Jones fell; only about three or four feet from the foot of the bed, the room was a small room; I know Aber was his roommate; I know what Aber said about it; but I do not know where Aber is at this time. I saw him after the killing; also the time of the examining trial, he was heye in Mangum.”

Claud Mullins, Claud Martin, and Jasper Patterson testified in substance as to what took place in the hall just prior to the shooting and identified the defendant as the one who fired the shots. S. H. Tittle and E. W. Reeves testified as to the statement made by defendant to them the next morning after the shooting, about 5 o’clock in the morning, after they had taken him into custody, and had him in jail, where the county attorney was present with a court reporter.

The testimony of all the witnesses called on behalf of the state, who were in the hotel and who saw the killing, tends to show that the defendant and others had been engaged in shooting dice and that the game broke up, and as the defendant left the hotel he was stopped by Daisy Henderson, who demanded he pay her one dollar and a half; the defendant denied he owed her, and Jones, the deceased, came up and told him if he owed her one dollar and a. half to pay it; after this controversy the testimony tends to show the defendant paid Daisy Henderson the one dollar and a half and left the hotel, and was gone something like 30 minutes to an hour, and returned to the hotel, where a number of boys who had been engaged in the crap game were having another game; that as the defendant went up the stairs, and came to the head of the stairway, a controversy was on between the boys about the game they had been in, and Jones came out of his room and demanded those who did not have rooms there to leave. The exact language the deceased used differs according to the 'testimony of the witnesses who heard it. After the shooting the defendant returned to his father’s home, and was there when the sheriff and his deputy went out and got him. He made no resistance, and was brought in to the county jail, where the county attorney, the sheriff and deputy, and court reporter had him up early in the morning, about 5 o’clock, and secured a statement, testified to by Tittle and Reeves. -

The defendant took the stand in his own behalf and in substance testified as follows:

That his name was George Glidewell; he was 30 years of age; he resided about three miles east of Man-gum; had been living there about four years; came from Texas about six years ago; had worked on the farm with his father; did not farm in 1925; was in California in the spring and part of the summer, working at a paving plant; that he did not know the deceased, the first time he ever saw him was that night in the game. “Bob Phillips was telling me they had a crap game at his room, and I went to the hotel. I do not make a living by gambling; never have been a regular gambler. I have gambled some in a social way; I playe’d in the game that night. The deceased played some that night. Jones would shoot a time or two and then get up and go out. This woman that was standing over there, this tall woman I learned since was Daisy Henderson, she came to the window and stuck a pistol through and said, ‘Stick your hands up,’ or something like that; that was the woman they called Daisy Henderson. Just in a little bit Jones came in, and I got the shape of a gun down like that (illustrating). T ain’t tough; I come from where they get tough;’ and this woman looked up at me and says, ‘You just as well give me that dollar and a half,’ or ‘Come out and give me that dollar and a half; I am laying for you anyway,’ and he looked over at me and said, ‘He is going to pay you that dollar and a half.’ He had his hand inside of his shirt; the woman was talking through this little window; I knew at that time he had a gun in his bosom; he was standing with his left side to me. I disputed with the woman about owing her. We played on a while, and the game broke up, and we all started out. I had gone about a step out of the door of the room when this woman grabbed my left arm and told me to give her the one dollar and a half, which she said was for watching for this game, and I said, ‘Am I going to have to pay the whole bill for watching to-night;’ and she said it was not that; ‘It is for staking you aind Black in the poker game;’ I said, ‘You must be mistaken; I don’t owe you a dollar and a half’; a man who claimed to be her husband said, ‘You give her that dollar and a half.’ Jones come up from down below, and just as he got to the head of the stairs, and got even with me, he done his hand down from his gun and got a long breath, and looked up at me, and walked across to the west side of the hall, and turned around, with his right side against the wall and his left shoulder down the stairway; the woman kept telling me to give her the dollar and a half; I said, T don’t owe you a dollar and a half;’ and he said, ‘Give the woman a dollar and a half.’ He had his hand on the inside of his shirt where the gun was. I said, ‘Fellow, I don’t owe her a dollar and a half;’ he said, ‘Give her a dollar and a half,’ and pulled out the gun, so I could see about that much; I said, ‘Anybody got change for a dollar ?’
“The gun here looks like the gun Jones had; my brother, S. B. Glidewell, Jr., was there near me, he told me to give her the dollar and a half and ‘let’s go on down;’ I call him John, but his correct name is S. B. Jr. My brother was nervous like; after I gave up the dollar and a half, and went down stairs, I went up the street and turned at the Richard drug store and went over to Pete Salina’s cafe. Me and John, I believe, was the only ones that went around; when we left Pete’s cafe we rode around; I don’t remember just where we went. I saw my car go down the street, and I told them to let me get out; we went out home. I got a gun out there; the statement of the officers that I told them I got a gun out there is something like correct; when I went out to the house I went for the purpose of getting some more money to go back and play in the game. I was loser. I did not think of killing the fellow at that time. I had not told Claud Mullins I was going to kill Jones before morning. I never did ask Claud Mullins to swear any thing that was not true for me. I did afterwards ask him to swear that Jones had a gun; after I come home I called him out in front of the car and said, ‘Claud, will you swear this man had a gun?’ I meant to ask him if he could swear he saw a gun. Claud struck out his hand and wanted to shake hands with me. I said, ‘There is no use of that; if you saw the man with a gun, you go swear it;’ he said, T am your friend; I will swear it.’ this conversation took place after the shooting; I don’t know what I took the gun back to town for; at that time I did not know where the fellow was, where he stayed or anything about him. I didn’t know whether he was just up there like I was or not. I don’t know where he stayed; the first time I saw him was at the game that night. The pistol I had was a 39 Colt’s police positive; it was double action, single, either one; after the shooting I threw it down just after I came out of the hotel, near the Willys-Knight garage; it was the garage next to the hotel. When I went home I wore a hat; when I came back to the hotel, I went up the stairs, and stopped at the head of the stairs. I did not know these people were up there and that they were arguing in this way. I did not know who all was up there. I just stopped and looked at this other fellow, who was talking to some one; this fellow Jones. I did not know what to do, whether to go back down stairs or to stay. I stayed there about three, four or five minutes. I never said a word; I just listened to the argument, and it seemed like, as soon as he noticed me, it looked like it went all over him; the way I understood him, he said, ‘You God damned son of a bitch, you better get, and get now,’ or ‘move now’ — something like that. I could not see all of his body at this time, there was another fellow between us. I think it was Ludie Wyatt; he was standing down toward the southeast room, halfway toward where the staircase is. I did not know whether he had a gun or not. I wanted to get to this game to play some more; they seemed to be quarreling, and Jones was trying to get them to go down, or something of that kind.
“■Just before I shot, he was talking to this fellow, and it looked like, just as soon as he looked at me, it went all over him. I understood he was talking to me. He said, ‘You God damned son of a bitch, get, and get now.’ He just moved back his right hand; I could not see his right shoulder; I could not see his right hand. When I saw him move his right shoulder, I thought he meant to do just what he had been doing all night. I thought, if he pulled his gun, he would shoot, and I figured, if he got the gun out, he would shoot. I had not gone up there for the purpose of killing Jones, or having any trouble with him. I would not have shot him, if I had not thought he was going to use the gun I saw him have. I could have shot him when he was talking to this other fellow, if I wanted to; if he had not said nothing, I would not have shot. I made a statement in the jail when Mr. Tittle, Mr. Reeves, and Mr. Thacker, the court reporter, was present; it was about 5 o’clock in the morning following this occurrence; it was before daylight. I was down in the jail office; none of them advised me I had the right to have counsel or friends present to advise with me before they took me down into the jail to get the statement; when the woman was wanting me to give her the dollar and a half, she said something about the fellow in the front room here, in room No. 2, will see that you pay, and I said, ‘Don’t call any one; I don’t want any trouble.’
“I talked to Claud Martin at the cafe the night before the shooting. I told him something like he said; I did not want any trouble with any one and would not have it, if I could keep from it.”

Upon cross-examination by staté representative, the witness stated:

He knew the use of a gun; that he was considered a good shot with a rifle; that he had had experience during the war. “I went out home and got the gün; I just figured this way, he was a fellow that had a gun, and he had. I did not expect to use it unless this fellow went to use his; that is the way I figured it. I did not room at the Perry Hotel, and had no business there, except to join the others in shooting of dice; after I came back I knew there was a game on at the hotel. I had only been in one game that night at the hotel; when I went back they were not playing, but had been playing; when I come up the second time there was a bunch out in the hall; when I quit the first time I had $3 or $4 in my hand and gave one dollar and a half to the woman; the limit that night was 50 cents,. I had not been drinking liquor that night; I drank some about 2 o’clock that day and had eaten supper; when I went up the hotel steps the second time, there was several of them down this way (indicating on the north side of the stair). Ed Jones was just on the west side, one fellow to my left. Ludie Wyatt was standing with him; the first shot I fired was in a southwestern direction; somebody ran against me and hit me, and it kindly knocked me further out in the hallway; I was then shooting kindly south; Jones begun to fall at the second shot; I could not say how many times I did shoot; the deceased turned right to me; he did not call my name when he was talking; I could not tell where Paul Wyatt was at the time; I don’t remember where Claud Martin was; after I come up to the edge of the stair, this fellow was walking down the hallway; I did not get my pistol when I came up the stairway. I had the pistol in my right coat pocket; I did not walk out home that night; I had on a hat when I shot the deceased; when I went up stairs, and before the shooting began, I was standing on the hall floor; I was not on the steps; I was on the hall floor; I do not remember how many boys were there at Pete Salina’s talking. I told Claud something about what the woman had demanded of me down at the hotel; he was the only one I remember telling about it; I don’t remember telling Ludie Wyatt anything about it; I intended to be peaceful and quiet, and not have any trouble; I figured the way he was doing he would use his gun if he run onto me; I don’t remember telling the sheriff down there, in the statement that was written there in the jail, that the deceased did not do anything to me, after I went up the last time, and he laid eyes on me, he cussed and said just what I said a while ago.”

The state further examined the defendant with reference to other fights and fines that were imposed on him for driving a car and being intoxicated, evidently for the purpose of discrediting the defendant’s testimony before the jury.

A number of other witnesses were called, who testified they were present in the hall, and who testified as to the demand of the woman of the defendant to pay her the dollar and a half, and to what the deceased said when he took part in the controversy when the defendant was upstairs in the hotel the first time. Before the close of the testimony the statement of the defendant, that was taken at 5 o’clock in the morning, in the presence of the county attorney, sheriff, deputy, and court reporter, was introduced to show the correct statement made by the defendant, at the office of the jailer.

The rebuttal testimony of the state discloses the fact that the county attorney went to the jail and aroused the defendant at an early hour in the morning, and insisted upon the defendant making a statement as to what had .taken place prior to and leading up to the shooting. At the time the county attorney, together with the other officers, demanded this statement of the defendant, the defendant had not had an opportunity to consult with his father, brother, or any of his friends. No reason is assigned for such haste, nor is there any reason why the county attorney and the sheriff should arouse the defendant from his bed of slumber and insist, if not force him, to make his statement as to what had taken place.

It is an unusual act upon the part of the officers, who are charged with the duty of correctly enforcing the law, who also are presumed to know that the defendant has constitutional rights, and that he is entitled to have the advice of .counsel, or to consult with his friends before being called upon to make a statement. It is further disclosed by the record that the following morning, after the county attorney, the sheriff, and court reporter had gone to the jail and secured a statement of the defendant, counsel, who had been employed to defend the defendant, applied at the jail to see the defendant, and the sheriff kept counsel waiting until in the afternoon of the morning, giving as an excuse that his jailer was asleep, and that the sheriff was too busy to permit counsel to see defendant. The fact that the sheriff did not permit counsel to see defendant at once, after he had applied, and kept him waiting, did not prejudice the defendant’s rights before the jury; yet we feel that the sheriff should have acted more promptly, and given counsel for the defendant an opportunity to at least have seen his client, that he may have been properly advised of his rights under the law.

One of the grounds of the defendant’s motion for a new trial, and assigned as error, is that the court erred in refusing to grant a continuance. When due diligence is shown, a continuance ought always to be granted, when from the showing justice requires it to be done, in order to enable the defendant to procure all competent evidence to prepare a proper defense. La Coss v. State, 25 Okla. Cr. 130, 219 P. 416; Grall v. State, 26 Okla. Cr. 132, 22 P. 701. A continuance should only be granted in order that justice may be done, and not in order to enable a violator of the law to escape. Ross v. State, 34 Okla. Cr. 363, 246 P. 645.

The question to be decided by this court is: Did the trial court abuse its discretion in denying this application for continuance. The record discloses that the witness Aber, whose absence is one of the grounds for continuance, was rooming at the Perry Hotel at the time of the commission of the homicide, and was claimed to be the roommate of the deceased; the killing occurred on December 13, and defendant was arrested that night, and was formally charged with the commission of the crime by preliminary complaint on December 15, 1925. His preliminary examination was set for December 18, 1925. The testimony introduced on the hearing of the motion for continuance shows that the witness Aber was present in Mangum at the time of the preliminary examination, and that the defendant knew that to be a fact; that the state did not call Aber as a witness against defendant, and that the defendant did not call Áber as a witness, at the preliminary trial, notwithstanding the record shows that he was there in Mangum at the time; that the information was filed in the district court, and the list of witnesses the state intended to use against the defendant was served on the defendant on January 7, 1926; that Aber’s name was not indorsed thereon; that on January 8, 1926, the case was set for trial for 9 o’clock a. m., January 25, 1926; and the defendant did not get in touch with Aber between the time of the preliminary and the date of the trial. The defendant did not cause a subpoena to be issued for Aber until the 21st day of January, which was returned on the same day, showing that he could not be found in Greer county. The defendant’s case was on the 8th day of January, 1926, assigned for trial on January 25, 1926.

Notwithstanding the fact that the defendant knew for more than two weeks his case had been set for trial, he waited until four days before the day of the trial to have a subpoena issued for Aber. Defendant failed to show, in his motion for continuance or his testimony in support of the same, that he had any knowledge where Aber was, or that he could secure his attendance by the next term of court. No showing whatever is made that his attendance could be procured at a subsequent term of court. The motion for continuance and testimony in support of the same fails to show sufficient diligence on the part of the defendant to secure the attendance of Aber, and therefore the court did not abuse its discretion in denying to the defendant a continuance. Rose v. State, 8 Okla. Cr. 294, 127 P. 873; Moseley v. State, 12 Okla. Cr. 402, 157 P. 708; Collins v. State, 15 Okla. Cr. 96, 175 P. 124.

It is next argued by the defendant that the trial court erred in excluding certain competent and material evidence offered by the defendant. This question presented by the defendant is discussed at length in his brief, and relates to the refusal of the trial court to permit a copy of the statement made by defendant in the jail early on the morning after the killing, to the county attorney, in the presence of the sheriff and other officers, and the defendant urges that this is such an error as would justify this court in reversing the case. The record discloses that the court did prohibit the statement being introduced in the early stage of the trial, but that later on in the trial, when the sheriff had been questioned with reference to certain statements, the representative of the state raised no objection, and the entire statement was introduced; therefore this objection of the defendant is without merit.

The third assignment argued by the defendant is that the punishment fixed by the jury is excessive and should be reduced. The defendant in this case was informed against, charged with murder, and the jury by its verdict found the defendant guilty of murder, and fixed the punishment at life imprisonment, this being the minimum punishment under our statute for murder.

The record in this case discloses that the defendant had a fair and impartial trial; that there were no errors committed by the trial court prejudicial to the rights of the defendant; that the testimony is sufficient to sustain the verdict of the jury. There are other errors assigned by the defendant, which have been given careful consideration, and found to be without merit.

The judgment is affirmed.

DOYLE, P. J., and EDWARDS, J. concur.


text:
    M. E. BILLINGSLEA v. STATE.
    No. A-6322.
    Opinion Filed Sept. 29, 1928.
    Rehearing Denied Nov. 17, 1928.
    (271 Pac. 430.)

      Hargis & Yarbrough and Lee Williams, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Osage county on a charge of shooting with intent to kill, and was sentenced to serve a term of one year in the state penitentiary. A brief summary of the evidence discloses a state of facts about as follows:

On the day charged, defendant and Henry Wells and several other men were engaged in a crap game in the town of Okesa. All were drinking, and many of the party more or less under the influence of liquor. A difficulty arose between two of the parties, Buck Davis and Jake Ray. They agreed to have a fight, and a bet was made between Davis and Wells as to which could whip. The fight was to be staged at another place. When defendant and Wells reached the place, the fighters had declared a truce, and had started back toward the crap game. Defendant thereupon interposed, and told Buck Davis that he had bet on him, and the fight was to take place, and had Davis give him his gun, which he stuck in his belt, and then applied opprobrious names to Wells. Upon the use of this opprobrious language, Wells struck defendant and clinched him. Thereupon Buck Davis separated them, and defendant drew his pistol, and Wells got behind one Garrett, and defendant, in attempting to shoot Wells, fired three shots; the first struck Garrett, and one .of the other shots struck Wells. At the time of the shooting, Wells was unarmed, and both he and Garrett were begging defendant not to shoot. Practically all the testimony, except that of defendant, shows that he made a wholly unjustified attempt to kill Wells.

After the shooting, at different times the same afternoon, in the presence of the witnesses Tayrien, Undarsheriff Graves, and Deputy Sheriff Glewein, he said in substance that he did not intend to shoot Garrett, but intended to kill Wells. When on the stand he testified:

“* * * Q. You were doing your best to kill him, weren’t you, at the time you were shooting? A. I sure was; yes, sir. * * *”

Defendant seeks to justify the shooting on the ground of self-defense, and some of his testimony contradicted in some measure the testimony for the state; but in the light of the entire record there can be no serious question but that defendant is guilty as charged, and that the punishment assessed is less than he deserved.

The contentions made are that the court admitted incompetent evidence for the state and excluded competent evidence offered by defendant. We have examined these contentions, and the argument and authorities in support of them. They are wholly without merit. No particular purpose would be served by setting out and discussing them.

Complaint is also made that the court erred in instructions Nos. 5, 6, 7, 8, 11, 12, and 13, and in refusing to give defendant’s requested instructions Nos. 2 and 6. Instruction No. 5 defines the crime charged in the language of the statute. Instruction No. 6 simply tells the jury that, in case they found beyond a reasonable doubt defendant did the act as charged, they should find him guilty and fix the punishment. No. 7 relates to self-defense, and, while not happily worded, under the record is not prejudicially erroneous.

Instruction No. 8 also relates to self-defense, and deals with the question of apparent danger, in effect stating that the offensive act upon which the claim of self-defense is made should be such as to make it reasonably appear that the accused was in danger of losing his life or suffering great bodily harm.

Instructions Nos. 11 and 13 relate to threats purporting to have been made by the prosecuting witness. No. 11 is. subtsantially correct. No. 13 is not correct. No. 12 refers to apparent danger, and instructs the jury they must view the circumstances from defendant’s standpoint. Defendant’s requests Nos. 2 and 8 refer to apparent danger and are substantially covered by the court’s charge.

■Some other matters are briefly argued, but they are not of sufficient importance to' require special mention. The instructions, taken as a whole, considered together, fairly state the law of the case, and such errors as appear in the record are not so prejudicial as to require a reversal.

An examination of the entire record convinces us that defendant was very fortunate on receiving a sentence of no more than a year in the state penitentiary. Under the record, a much more severe sentence would be upheld.

The case is affirmed.

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


author: DAVENPORT, J.

text:
    S. J. OWEN v. STATE.
    No. A-6292.
    Opinion Filed. Sept. 29, 1928.
    (270 Pac. 337.)
    Percy Powers, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the county court of Greer county, charged with the manufacturing of intoxicating liquor, to wit, about seven gallons beer, was sentenced to imprisonment in the county jail for 30 days and to pay a fine of $50 and cost, and has appealed to this court for review by a petition in error and case-made, which petition in error and case-made was filed in this court on June 3, 1926. In due time the case was duly assigned for hearing, no brief was filed by the defendant, and on April 21, 1928, after an examination of the record, it appearing there were no fundamental errors, an opinion was rendered affirming the case. May 14, 1928, the defendant, by his attorney, filed a, petition for rehearing, and assigned as a reason why the petition should be granted the same errors that were assigned in his original petition in error, which are as follows:

First, that the verdict and judgment of the trial court is not supported by the evidence and is contrary to law.

Second, that the trial court erred in refusing to give to the jury instruction No. 1, and instead gave instruction No. 3y2.

After a careful examination of the petition for rehearing and authorities cited in support of the same, it is ordered by the court that the original opinion (40 Okla. Cr. 17, 266 P. 514) in this case be withdrawn, ;and the same is hereby withdrawn and petition for rehearing granted.

The defendant has argued at length his second assignment, that the trial court erred in refusing to give to the jury instruction No. 1 and instead gave instruction No. 3y2. The Attorney General has examined the petition for rehearing and the errors assigned by the defendant, and has filed the following confession of. error:

“The evidence in this case discloses that the defendant herein is a farmer, 62 years of age, residing on his own farm with a wife and eleven children, and that said defendant had never before been arrested for anything, and so far as the record is concerned there is nothing to show that any suspicion of bootlegging had ever attached to the defendant herein.
“The evidence further discloses that the wife of the defendant had been sick for a number of years, and that some time in August preceding the alleged making of the beer alleged to have been made by the defendant a physician had recommended to the defendant that he should get some beer for his wife, as the physician advised that her system seemed to be clogged up, and that this, no doubt, would assist in unclogging the system and give her an appetite. This defendant herein went to Mangum, the county seat, and purchased a can of Puritan malt from which he prepared beer. When the physician thereafter came to visit the wife of the defendant some of this beer was given to the physician to test to discover whether or not it would be good for his wife, and the said physician advised the defendant that it would be all right. Thereafter, and for several months, the defendant herein purchased from the grocery-man at Mangum cans of Puritan malt from which he continued to make beer for his wife.
“There is nothing in the record that shows that any of this malt contained more than one-half of 1 per cent, alcohol, measured by volume, and the only evidence as to the intoxicating contents of said malt was that of one of the officers who arrested the defendant, and who testified that, in his opinion, the said beer was intoxicating and contained more than oije-half of 1 per cent, of alcohol, measured by volume. This officer testified that he was not an expert in testing intoxicating liquors, and that said beer had not been tested to determine the contents theréof, and there is nothing in the record to show that this preparation contained as much as 1 per cent, of alcohol, measured by volume.
“There is nothing to show that the beverage herein was anything else than the beverage made from what is known as Puritan malt, and which is sold in the grocery stores throughout the country, and the Attorney General says that, if all those who use Puritan malt were tried, and sent to the county jail therefor each county, no doubt, would have to build many other jails than they now have. The writer of this brief is a prohibitionist, both in theory and practice, and has never seen or tasted what is known as home brew, but says that under the facts in this case he feels that it would be a travesty upon justice under the circumstances in this case to permit the judgment herein to stand and this man to serve a sentence in jail, and the Attorney General says that in his opinion the evidence is not sufficient to support the verdict herein, and this case should be reversed upon the insufficiency of the evidence. See Rambo v. State, 31 Okla. Cr. 214, 238 P. 869; Skelton v. State, 31 Okla. Cr. 343, 239 P. 189.
“The defendant, in the trial of this case, requested the court to instruct the jury as follows: ‘Under the law it is a misdemeanor to manufacture any vinous or malt liquors, or any imitation thereof, or substitute therefor, whether medicated or not, that contains as much as oné-half of 1 per cent, of alcohol, measured by volume, which is capable of being used as a beverage, and, unless you find and believe beyond a reasonable doubt that so-called ‘beer’ manufactured by the defendant contained as much as one-half of 1 per cent, of alcohol, measured by volume, you must acquit the defendant.’
“The Attorney General says that under the facts in this case this instruction should have been given if the case at bar should have been allowed to go to the jury, and that a failure of the court to instruct the jury on the law as to the contents of home brew would be such error as to justify a reversal of the case at bar.
“For the reasons herein set forth, the Attorney General confesses error in the case at bar, and says that said case should be reversed and remanded.”

We think the confession of error of the Attorney General is well taken.

The judgment of the trial court is therefore reversed and the case ordered dismissed.

DOYLE, P. J., and EDWARDS, J., concur.


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    JACK RUSSELL v. STATE.
    No. A-6319.
    Opinion Filed Sept. 29, 1928.
    (270 Pac. 339.)

      S. H. Singleton and J. W. Osmond, for plaintiff in error.
    Edwin Dabney, 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 Stephens county on a charge of murder, and was sentenced to life imprisonment in the state penitentiary.

The first contention is that there is no sufficient corroboration of the accomplice who testified as a witness for the state. This assignment requires a brief-summary of the testimony, both of the accomplice ana that in corroboration. In February, 1926, in the nighttime, W. T. Myers and James Buckner were traveling the highway in a- truck about 15 miles east of Duncan. A car containing three men passed them, and some one attempted to board the truck from the car, but did not succeed. The car preceded the truck a short distance and stopped. As the truck neared the car, three men were standing in the road, and a number of shots were exchanged between the party at the car and those in the truck. Jim Hendrix, one of the men with the car, was shot and killed, and Buckner, with the truck, was mortally wounded, and died a few days later. After the shooting, the parties with the car placed Hendrix therein, and he was taken to a doctor’s office at Velma. Bob Stephens, an accomplice, was used as a witness by the state, and testified in substance that he and defendant Russell, Frank Ammons, and Jim Hendrix, about 8 or 9 o’clock in the evening of the homicide, left a house about 3y2 miles south of Alma in a Ford touring car; that they intended to hold up and rob some one on the highway between that point and the city of Duncan; that they were the parties who held up Myers and Buckner, for the purpose of robbing them, and that in so doing they shot and killed Buckner, and Hendrix of their party was killed by some one firing from the truck.

His testimony fully mákes out the crime of murder, charged in the information. By his own testimony he is an accomplice of the defendant, and must be corroborated by other evidence tending to connect the defendant with the commission of the offense. Section 2(701, Comp. St. 1921. W. T. Myers corroborates his testimony, and in some particulars tends to connect defendant with the commission of the offense. He says there were three parties at the car as he and Buckner approached in the truck; that they fired upon him and Buckner, and he returned the fire. Steve Webb testified that, on the night of the homicide, Stephens in a car came to his house at Alma late at night, and that he saw two men leave the car, go in the direction Stephens testified* and, while not able to identify them, heard them say, “Bob, get him a doctor as soon as you can.” Harvey Brooks testified that on the night of the homicide he was at a house 3% miles south of Velma; that Stephens, Russell, Ammons, and Hendrix were there when he got there; they left together after dark, but he stayed there all night; defendant Russell and Ammons returned there just before daylight; that defendant Russell and Ammons, after their return the next morning after the homicide, soon left the house. Stephens was arrested at Velma that night after bringing Hendrix to Dr. Rice.

C. M. Tillerson, undersheriff of Stephens county, testified he heard defendant Russell, after his arrest, state to the county attorney that he had a .45 automatic pistol. The bullet taken from the body of Buckner was introduced in evidence in connection with this testimony, and, while not so stated, we assume it was a .45-caliber bullet.

Burel Henson testified that the next day after the homicide defendant Russell came to his house in Carter county and had two six-shooters on him. There are some other items of evidence incidentally and circumstantially corroborating in some slight particulars the testimony of Stephens.

The evidence then clearly may be said to disclose that, about 8 or 9 o’clock on the night of the homicide, four persons, including defendant, left a house together. About two hours later a shooting affray took place, in which one of the four and another person was killed. Three persons took the body of the fourth to the residence of one Webb, and two of them then left, leaving the third, who proved to be Bob Stephens, with the mortally injured fourth member of the party, telling him to take him to a doctor. Twb of the members of the party then returned to the house from which the four had started, arriving there before daylight, and left early the next morning. At the trial, when this evidence was adduced, the defendant did not take the stand and offered no evidence. Surely these various circumstances sufficiently corroborate the testimony of the accomplice Stephens to satisfy the requirements of the law. It is well settled that evidence corroborating an accomplice need not directly connect the defendant with the commission of the crime, but is sufficient if it tends to connect him with it, and it need not be direct and positive, but may be circumstantial.

Next it is argued that the court erred in arraigning defendant without his having the benefit of counsel. When defendant was arraigned under the information, he pleaded not guilty. At that time he had not employed counsel, and counsel was not assigned until 2 days later, which was 13 days before the trial. Section 2590, Comp. St. 1921, reads:

“If the defendant appear for arraignment, without counsel, he must be informed by the court that it is his right to have counsel before being arraigned, and must be asked if he desire the aid of counsel. If he desires, and is unable to employ counsel, the court must assign counsel to defend him.”

Under this and other sections of the statute, a defendant charged with a felony is entitled to the' aid of counsel before he is arraigned, and, if necessary, counsel must be assigned by the court. This statute was not strictly complied with, but upon arraignment he entered a plea, of not guilty. What more could counsel have done for him? He had the benefit of this plea throughout the trial. The counsel assigned him caused subpoenas to be issued in due time and represented him with ability. We are unable to perceive how the failure of the court to assign counsel before arraignment was prejudicial. Under the record before us, it was error without injury.

Complaint is next made that the court erred in refusing the application of defendant for a commission to take the deposition of Ora .Russell, wife of defendant, at Victoria, Tex. Section 2853, Comp. St. 1921, and following sections, provided for the taking of depositions by a defendant in a criminal case. The application, omitting the formal part, is as follows:

“Comes now Jack Russell, being first duly sworn, on oath says: That he is the defendant in the above-entitled cause, and that he is therein charged by information with the crime of murder, and that he has entered his plea of not guilty thereto on this day, and that the issues in said cause have been joined, and that the testimony of Mrs. Jack Russell is material to the defense of this action, and that she resides out of the state of Oklahoma, to wit, Victoria, Texas; and that process cannot be legally served upon her. Wherefore affiant prays that he be permitted to take depositions of said witness.”

The recital in this application erroneously states that it is made on the day the plea of not guilty was entered. The plea was on April 5. The application was filed the day the case was called for trial, April 20. To have granted it at that time required a continuance. The defendant had a right to take and use the deposition of a nonresident witness, but the right is subject to limitations. The application for a commission must be seasonably made, and, where there is delay in making it, it cannot serve as a means of procuring a continuance. The application also must state facts from which the court or judge to whom made may be satisfied of the truth of the fact stated, and determine whether the examination of the witness is necessary for the attainment of justice. 'Section 2855, Comp. St. 1921. The mere legal conclusion that the testimony of the witness is material to the defense states no fact from which the court may satisfy himself that the examination is necessary.

When the application was presented, the state objected. The court stated that, if proper application was made, the case would be continued until the deposition was taken. Counsel for the state objected to the sufficiency of the application, contending that there was no showing of the materiality of the testimony of the absent witness, and requested the court to require defendant to state the facts he claimed the absent witness would testify to, in order that the state might admit it as the testimony of the absent witness. Counsel for defendant then stated that the witness Ora Russell would testify that defendant was with her on the night of the homicide. The state then consented that such statement might be used as a deposition of the absent witness. Defendant excepted to this offer by counsel for the state. It also appears from the record that one Jack Dunn, Johnnie Dunn, a boy named Kinkade, and others were at the house from which the parties in the car started on the night of the homicide, and that Jack Dunn was present in court, and was not called as a witness to testify. Under the entire record, the ruling of the court was without material error.

In the case of Ennis v. State, 13 Okla. Cr. 675, 167 P. 229, L. R. A. 1918A, 312, it was held:

“When an application for continuance for sufficient time to take the depositions of nonresident witnesses is made in accordance with these provisions, it is error to deny the.same if the showing made discloses the materiality of the testimony and the necessity of the same to fairly present the defense of the accused, unless on appeal it appears from the record that the facts sought to be established were available from other witnesses within the jurisdiction of the court, or that the application was intended merely to delay the proceedings and not in order that justice might be done.
“When an application for continuance to take depositions complies in all particulars with the statute, and when the showing made clearly entitles the accused to take the depositions, and no issue is made by the state that the testimony is not essentiallv material to the defense of the accused, a postponement or a continuance should be allowed, and proper orders made by the court for the taking of the depositions as provided. unless counsel for the state offer to admit that the absent witnesses would testify to the facts set out in the application, and that such application could be read in evidence in lieu of the depositions sought.”

Some contention is also made that the court erred in overruling defendant’s application for a continuance, and in not giving him a reasonable time to prepare for trial. The application wholly fails to conform to the requirements of the statute, and the assignment is without merit.

It is next urged that the court admitted hearsay testimony prejudicial to defendant. This is directed to the testimony of witnesses Bailey and Toney, in substance that on the afternoon before the homicide they were informed that defendant and others were going that night into a shooting and highjacking deal on the road near Velma. This testimony violated the simplest rule of hearsay evidence and its admission was error. McRae v. State, 8 Okla. Cr. 483, 129 P. 71; Robbins v. State, 39 Okla. Cr. 289, 264 P. 841. We are at a loss to understand why counsel for the state would offer this testimony, and can account for it only on the view that, as the officers came upon the scene of the shooting soon after it occurred, his purpose was to explain their presence there at that time. It might properly have been shown that the officers had received information that caused them to be near the scene of the shooting, but to state particulars and connect defendant in this hearsay manner was highly improper.

Upon a consideration of the entire record before us, and in view of the fact that defendant did not take the stand, and offered no testimony in explanation of the circumstances shown, this error does not require a reversal. The hearsay statement by some third person to the officers could not reasonably have contributed to the verdict, and, while error, it does not require a reversal. 17 C. J. 332.

The case is affirmed.

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


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    ROLAND McCOLLUM v. STATE.
    No. A-6494.
    Opinion Filed Sept. 29, 1928.
    (270 Pac. 341.)
    Roy White for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the county court of McIntosh county, charged with transporting intoxicating liquor, and sentenced to pay a fine of $50 and confinement in the county jail for 30 days. From the judgment and sentence, defendant has appealed to this court.

C. A. Haley testified, in substance, that he lived at Lenna, Okla.; that he knew Roland McCollum, generally known as “Bo”; that on the 21st day of February, 1926, he saw the defendant on top of Lawson Hill. He saw defendant before that time coming up the road, but he did not know who he was. He had seen the parties at John Manning’s place; claimed to have seen them come out of Manning’s place and get on their horses. Homer Cox was with him. He states that, when the defendant and Homer Cox rode on up the road to where he was, they got off their horses, and he made a run on his horse toward them, and he thought the défendant threw a bottle of whisky away. Upon a direct question he said the defendant threw the whisky into the pasture. Witness stated that he found a bottle afterwards, and it contained whisky. It was a half pint bottle partly filled. This occurred in McIntosh county, on the Eufaula-Hanna highway. He was about three-quarters of a mile from John Manning’s house. The first move he saw the defendant make, his hand came from his bosom, and he threw the whisky in the air, and when the whisky left his hands it went over the fence into the brush.

Oh cross-examination, witness admitted that there was some timber along the line from the Manning place to where he was; that the road crooked at the foot of the hill, and he could not see the parties all the time, from the time he claims they left the Manning place until they came up to the hill where he was. He hid in the woods, and defendant came up near where he was, and got down off his horse. ‘T could see it was a bottle, but I did not see it light. When I rode up to the defendant and Cox, I asked them what they had, and they said nothing, and defendant reared up and talked rough. I touched Bo, meaning the defendant, after he had reared around, and then got his arm and twisted it, and tore his shirt. After I went out in the woods and searched for the whisky I came back and arrested the boys, and brought the whisky to town and turned it over to the jailer. I did not see the defendant carry the whisky anywhere. I could not swear he carried it a step. I watched the defendant from the time he got off his horse until he threw the whisky away. He did not have an opportunity to pick the whisky up off the ground there without me seeing him. I know he did not get it from Cutty Cox; or pick it up off the ground.” This was all the • testimony on behalf of the state.

Jim Parker, a witness for defendant, stated he remembered the occasion of Charley Haley arresting Bo McCullom and Cutty Cox; that he was out on the road, and saw the parties before' they were arrested; they were right on Lawson Hill; they were traveling on horseback; “I saw Haley when he came up to where we passed the boys, down at the gate 200 yards from the top of Lawson Hill; saw him when he arrested the boys; they had stopped before they were arrested. Haley, when he rode out into the section line from the woods, was over 100 to 150 yards from the boys; when he rode out, he rode fast to where the boys were. The boys’ horses were between us and the boys, and between Mr. Haley and the boys. From where the boys were over to John Manning’s place was between one-half and three-quarters of a mile. There is timber on each side of the road from Manning’s place to the hill. The road makes a crook right at the bottom of Lawson Hill. I was traveling in a car, I judge it was Í00 to 150 yards from where he came out back to the boys. I could not swear positively as to that.”

Homer Cox, called as a witness for defendant, stated that he was with the defendant, and that when Mr. Haley rode out in the woods near the road he was from 100 to 150 yards from them. “Our horses were on the south side of us, and he was coming from the south. I did not see Bo McCollum have any whisky. I had been with him practically all the morning.”

On cross-examination Cox stated he did not see him have any whisky at all; that the bottle of whisky mentioned by Haley did not belong to witness or to defendant, nor ■ did they have a bottle apiece; thal Bo did not throw a bottle away, and witness did not break a bottle. Witness was then asked some questions about having been convicted for violating the prohibitory laws, and again stated that he did not break any whisky at the place where Haley arrested them, nor did Roland throw any away.

The defendant, called as a witness in his own behalf, testified that he and Homer Cox rode out the road that morning, and came out near the John Manning place, and stopped and talked to George Chisholm about some cattle. George said he had already got the cattle out of the field, and Cutty said, “Let’s turn around and go back.” They had gotten off their horses and Charley Haley rode up from the south. “When he rode up he said, ‘What did you do with that whisky?’ and I said, T haven’t any whisky.’ Be then searched me and felt over my clothes. Be said, T know you have;’ he said, ‘You must have thrown it away.’ I said, T did not have any;’ and he said, T believe you did;’ he grabbed me by the arm and gave me a twist, and then started to kick me, and I told him not to kick me. Be said, T believe I can find it myself; I believe you threw it away.’ He climbed over the fence and looked around for about 20 minutes I judge, and then came back and said, ‘Let’s go to town;’ when he came back to us he did not show us any whisky, and did not say anything about finding any whisky; the first time he said anything about finding any was. when he got back to town; he put us in jail, and kept us there a short while, and turned us out.”

On cross-examination, defendant stated the witness Haley did not hit him hard, but started to kick him. “I did not get rough. I told him not to kick me. We did not get off our horses at Manning’s place when we talked to George Chisholm; we were talking about first one thing and then another. I do not remember talking about cattle. Chisholm was traveling in a wagon. We did not pass George Chisholm after he was going south.”

George Chisholm, called in rebuttal by the state, stated he met the defendant and Homer Cox near the home of Manning that*morning; he did not have much of a conversation with them; he had been after a load of wood; that he c^ove on north; he stopped for about five minutes; he was just a little south of the Manning gate when -he was talking with the defendant; he did not remember whether they said anything to him about cattle.

Witness Haley was recalled, and stated the first time he saw the horses they were near the Manning gate; there was no one on them at the time; that they came out and got on the horses and loped down toward the section line; and Hale.y admitted there were cottonwoods near the house, and up on the hill there were black jack and post oak. On cross-examination Haley did not remember having seen George Chisholm with his wagon load of wood driving along where he claims to have seen the defendant; he did not see them talking to any one near the Manning place; he saw a couple of fellows come out and get on their horses at Manning’s place, but did not know how long the horses had been there.

The foregoing is in substance .all the testimony that was offered. The defendant has assigned two errors alleged to have been committed, which he urges are sufficient to warrant a reversal of this case; First, that the verdict returned in this case is and was not supported by the evidence; second, because the verdict returned by the jury in this cause is contrary to the law and the evidence.

The defendant in his argument urges there is no evidence upon which the jury could convict the defendant of unlawfully transporting liquor. The record discloses that the main witness, C. A. Haley, on cross-examination, testified positively that he could not swear that the plaintiff in error carried this whisky a step, and urges that the testimony wholly fails to show that the defendant transported any whisky from one place to another. The statement of the witness Haley tends to show that he was secreted by the roadside in the brush, when the defendant, in company with Cox, came along and stopped and got off their horses, and Haley claims that he rushed out of the brush where he was hidden, and rode down to where the defendant was, and when he started out of the brush he claims he saw the defendant throw a bottle over the pasture fence into the woods; he rode up to the defendants, and searched them, .and did not find any whisky, but smelled whisky on their breath; he then went into the pasture and searched there, and claims to have found a one-half pint bottle with some whisky in it.

The defendant states that he did not have any whisky; that he did not throw any bottle over the fence into the pasture; and when the witness Haley rode up and demanded of them to know what they had, they told him they did not have any whisky, and witness stated, “I believe you have thrown it away;” that he seized the defendant by the arm and twisted the same, and struck him and started to kick him, and the defendant asked him not to do so; that witness then said to defendant, “I believe I can find the whisky.” He got over the fence into the pasture and searched around for an indefinite time— the defendant says 10 minutes — and came back out of the pasture, and took the defendant into custody, and took them into town and put them in jail. This statement of the defendant is not contradicted by the state, and the defendant stated that Haley said nothing to them about finding any whisky until after he got them to town. The bottle was not introduced in evidence before the jury. The only statement with reference to there having been any whisky is the statement of the witness Haley that he took it to town and turned it over to some party. That party to whom he claims to have turned it over was not called as a witness, and witness Jim Parker testified that he came along there and saw defendant and Cox, and that witness Haley was about 100 to 150 yards from them when he came out of the timber.

Haley claims that he saw the defendant and Cox come out of the Manning place, and get on their horses, and ride on toward him when they were at least one-half to three-quarters of a mile away, yet he cannot remember having seen George Chisholm, who was driving on the road at that time, with a wagon load of wood. No one around the Manning place was called to show that the defendant stopped or got off his horse at Manning’s home. Why the state failed to call Manning, or any one around his place, to show that defendant had stopped at his place the morning witness Haley claims he saw them get on their horses, is not disclosed in the record. The testimony of the prosecuting witness is completely contradicted in many instances by disinterested parties, who testify to being on the road at the time the prosecuting witness claims he rode up to the defendant and Cox. Both the defendant and Cox contradicted the prosecuting witness as to their having any whisky, or any bóttle being thrown over into the pasture by the defendant. The prosecuting witness stands alone as to his statement, and is wholly uncorroborated in the statement made by him.

The prosecuting witness did not claim to have a warrant for the arrest of the defendant. Without authority and in violation of law he held the defendant up on the roadside, and not only searched him, but tore his clothes, twisted his wrist, struck defendant, and started to kick him. Such conduct on the part of the prosecuting witness cannot be approved by law-abiding citizens. The distance the other witnesses place the prosecuting witness from the defendant at the time he claims to have seen defendant throw something over the fence into the pasture, and in view of the fact that the horses of the defendant and Cox were between the prosecuting witness and defendant at the time, and in view of the further fact that the record discloses that, when the prosecuting witness rode up to them, and wanted to know what they had, and searched the defendant, and then claimed to the defendant that he believed he had thrown the whisky away, and in view of the further fact that the record discloses that the state witness claimed he found a half pint bottle of whisky over in the pasture, and said nothing about it to defendant or Mr. Cox until he got them to town, and then claims he turned it over to the jailer, where, so far as this record discloses, it has never been heard of, indicates his statement is not true. If he found the bottle of whisky, it should have been produced and properly identified, and it¡s' whereabouts accounted for from the date found until the trial.

This court to the fullest extent is committed to the doctrine that the credibility of the witnesses, and the weight and value to be. given to their testimony, is a question solely for the determination of the jury; yet it does not hesitate to reverse a judgment of conviction where the evidence is insufficient to support the verdict, or where the evidence in the case preponderates in favor of the defendant, or upon a careful examination thereof there remains a grave doubt of defendant’s guilt. To warrant or sustain a conviction there must be competent evidence, sufficient to prove an offense was committed as charged in the information. The testimony in this case is indefinite and uncertain as to the transporting of whisky by the defendant, or the man that was with him. The prosecuting witness makes a positive statement that he could not testify that the defendant had transported the whisky ;a step. The 'distance the state witness was away when .he claims the defendant threw something, and the fact that the horses were between the witness and defendant, would make it difficult for the witness to say whether or not anything' was thrown, and if anything was thrown which one of the parties threw it. Isbell et al. v. State, 7 Okla. Cr. 736, 123 P. 1130.

It is the opinion of this court that there is not sufficient evidence in this case to sustain the verdict. The judgment of the lower court is therefore reversed.

DOTLE, P. J., and EDWARDS, J., concur.