text:
    W. L. DYKES v. STATE.
    No. A-1695.
    Opinion Filed July 3, 1915.
    1. EVIDENCE — Malice — Bes Gestae — Other Offenses. Testimony which tends to establish intent or malice upon the part of a defendant, or which tends to identify him as the person who committed the crime for which he is on trial or which is a part of the res gestae, is admissible in evidence when of substantive value, even though such testimony may disclose the commission of other separate and distinct offenses.
    2. SAME — Confession of Other Party. A defendant who is being tried on a criminal charge is not entitled to introduce proof which has for its purpose the establishing before the jury the fact that some other person has confessed that he committed the crime, and that the defendant had nothing to do therewith and was not concerned therein. For a discussion of this principle, see quotation in the opinion from Donnelly v. United States, 228 U. S. 243.
    (Syllabus by the Court.)

      Appeal from District Court, Johnston County; Robt. M. Rainey, Judge.

    W. L. Dykes was convicted of manslaughter, and appeals.
    Affirmed.

      Newman & Lawrence and Ratcliff, Cruce & Potter, for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen., and Jos. L. Hull, Special Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, W. L. Dykes, was placed on trial at the October, 1911, term of the district court of Johnston county on a charge of murder, and was convicted of manslaughter in the first degree. The punishment was fixed at fifteen years in the state penitentiary.

The homicide, which is the basis for the judgment of conviction in this case, occurred on the 35th day of May, 1911, in a remote and out of the way district, and near a place called Devil’s Den, in Johnston county, Oklahoma. The material facts, as given in evidence by the various witnesses called, are practically as follows:

J. M. Williams, sheriff of Johnston county, testified that he found the body of Campbell Henderson on the night of May 35th, in a small area of timber on Pennington creek, near Devil’s Den, in Johnston county, Oklahoma.

Josylin Hart testified that he is a student at the A. & M. College in Tishomingo; fifteen years of age; went home with Campbell Henderson on May 35, 1911; was accompanied by Monroe Wolfe, the son-in-law of Henderson; that the latter’s home was two miles west of Tishomingo; that they then went out near the house, searching for mulberries, and met defendant, Dykes. Dykes called to Henderson to stop — wanted tó show him something; gave Henderson whisky, then went to the house with them, and ate dinner there. Dykes had something to say to deceased about a gold mine, and told him if he wanted to go with him, to get ready. He said he did not want the mine dug. Dykes had three or four bottles of whisky in his buggy. After dinner, Henderson and Dykes left in Henderson’s buggy, and Wolfe rode horseback. Henderson had no pistol, but had a twenty-two target rifle. He (witness) did not see any pistol on Wolfe.

Wiley Melton testified that he is city. marshall of Tisho-mingo; was in Ravia on the morning of May 35th; saw defendant Dykes there about ten o’clock. Dykes said he came there to meet someone and he had not met him, and the next time he would know it. He called the name, but witness did not recall it. Ravia was about three miles from where Henderson lived.

Celia Henderson, wife of deceased, testified that Campbell Henderson and one Hart were out hunting squirrels on May 25, 1911, and came home for dinner, Dykes accompanying them. Deceased and Dykes were drinking from a bottle Dykes took out of his saddle pockets. After dinner Dykes and Henderson went to the pasture, where the land was, in Henderson's buggy. Monroe Wolfe went along on horseback. Deceased had a twenty-two target, but had no pistol. Wolfe had no gun nor pistol.

Ena McClain testified that she was at Henderson’s home on May 25th, and overheard a conversation between him and defendant Dykes relative to leasing a gold mine.

I. Kirkland testified that he lived at Devil’s Den, and was there on May 25th, 1911. About dark he heard two shots fired north of the Den. He was about four hundred yards from where the shots were fired.

Dave Underwood testified that on the 25th of May, 1911, he was in Tishomingo; that he. then went out to Devil’s Den about three o’clock with a Mr. Reed of New York and a Mr. Williams. He saw two men pass in a buggy, and another riding horseback. Campbell Henderson was the only one he knew, but learned that the other two were defendant Dykes and Monroe Wolfe. They drove about 150 yards past the Den when Campbell Henderson called to him. Witness conversed with Dykes there, and the latter wanted to know if he was still interested in the hunting and fishing business up there. Then he asked if witness- had heard about the trouble with the boys having a mining camp up there. Dykes said any of his friends could fish and hunt there whenever they wanted to, but he didn’t want any prospecting up there. Dykes had some whisky in a bottle labeled “Yellowstone.” They were all drinking to excess.

Rufus Brock testified that he lived about a mile and a half from Devil’s Den. Standifer lived on a place about 300 yards from him, owned by Campbell Henderson, but under the control of Dykes. Standifer and Jim Crawford were working for Dykes in May, 1911. Witness saw Standifer at his home about one o’clock on May 25th, 1911, and about three or four o’clock saw Standifer and Jim Crawford at Slippery Falls, a place about a mile and a half or two miles north of Devil’s Den. That night at about seven or eight o’clock, he saw them there again. They were traveling horseback at the time, and were drinking; were going toward Standifer" s home.

Tom Eccles testified that he was camping at Slippery Falls with his wife, a Miss Cox, a boy named Hall, and two brothers. On May 22, 1911, Jim Crawford and Djdces came there; Crawford wanted witness to take a drink, and when he refused, shot at the ground to scare him, and one of the shots hit him after glancing upwards. Dykes came up and made him quit. Dykes said to go ahead and fish, that there would be no more trouble for them, but if they stayed there, they would be liable to see some trouble. He said he was expecting some trouble' with the mining people.

This testimony was corroborated by Maggie Cox and Mrs. Eccles.

Sam McDonald testified that the Campbell Henderson land was about a half mile north of Devil’s Den. He and his associates had a mineral lease on the land. About the last of March they began prospecting on the land. About the first of May, Dykes stopped witness and told him he was going out to the land that morning and tear down their tent. Eater that day, witness met Dykes on the land. The tent had been torn down. Dykes stated that he had done it. After some conversation, Dykes rode off, and when he returned shortly, witness was loading up some tools and other things, and when he was almost through loading, Dykes gave a “war whoop,” and Standifer and Jim Crawford appeared in the scene. He and Jim Crawford then took the things that were not loaded on to their wagon down to the creek and left them there. Dykes then warned witness that he did not want them on the land any more. Standifer and Jim Crawford were standing behind a rock when Dykes called to them.

The cross-examination of this witness indicated that he and associates were financing a special prosecution of Dykes. This witness was corroborated in his testimony by H. B. Bland.

George Van Noy testified that at about eight o’clock on the evening of the homicide he was asleep at his home, when Dykes, the defendant, went there and awakened him. Dykes told him he wanted him to go up the creek with him; that he had killed two fellows up there — Campbell Henderson and another Indian. Witness asked him how it happened, but defendant seemed to be in a hurry, and told witness he could go and see for himself. Witness went there, but on the way stopped at Bob Standifer’s. Jim Crawford, who was there, showed witness the way to the place where the bodies were.

A. H. Nesbitt testified that he had a conversation with defendant in Tishomingo about eight or nine o’clock on the evening of' the homicide, in which he stated that he had to kill them. Jim Howard heard this conversation and corroborated witness Nesbitt. Frank Hall had a similar conversation with defendant.

FI. B. Warfield, postmaster, testified that Dykes told him there were two dead Indians out in his pasture; asked him to go out; was present when Dykes told Williams he would give up to him; went out, and helped bring in the bodies.

Sheriff J. M. Williams, recalled, testified that Dykes surrendered to him; that he asked Dykes if he killed these men, and he replied: “I am not talking.” He went out to the place of the homicide. Both bodies were powder, burned near the wounds. Dykes was out there, and asked the sheriff what he found. He told him he had to hold an inquest over the bodies before he could move them. Dykes told him to go ahead and move them, that he had killed them. The witness then told defendant he found in his gun two empty shells and three loaded ones, and he asked the size of them. Witness told him one was a forty-five Colts, and one a thirty-eight Winchester. That Dykes ran his hand into his pocket, pulled out a half dozen shells and said: “You see I use both kinds in my gun, and loaded that pistol with some of each kind — these are the kind that did the work to the Indians.” Witness searched three times for another gun at the place of the homicide but never found one. The following Sunday witness found a pistol there, about twenty-five steps from where Monroe Wolfe’s body was found.

W. L. Dykes, the defendant, testified that he holds leases on allotments to Campbell Henderson, Celia Henderson, Nora Wolfe, and Francis Wolfe. He was using the land for pasture for cattle. On the morning of the homicide he was in Tisho-mingo; left town about eight o’clock and went to Ravia, where he had an appointment with Mr. Gregg. He got there about ten o’clock, talked a little with Gregg, and left about eleven o’clock. He took three pints of Yellowstone whisky with him. When he passed Campbell Henderson’s, he met them, and asked them to go up to the pasture to. fix a fence that was down. They said they would go with him if he would stop and eat dinner with them. They started after dinner for the pasture, and stopped near Devil’s Den to rest. Monroe Wolfe wanted to know if defendant would not give him more for some land he had sold him, and defendant said he would give sixty-five dollars more, but that he had paid enough already. Wolfe then became mad — he was getting drunk — and began to cry and curse defendant, who replied that he could throw him into the creek if he wanted to. Just about that time Jim Crawford and Bob Standifer rode up. Jim threw his gun on Campbell and told him to give him some whisky. Monroe Wolfe went over towards the buggy, and started back toward Campbell, with his target in his hand; Campbell then said something to him in Choctaw and when he did, Jim Crawford shot him, and then turned his gun right across his horse’s neck, and shot Wolfe. He then told defendant to go to town and say that he did it, in order that he might escape, and defendant was drunk and did it. Never arranged with Jim Crawford or anyone to kill the Indians.

In rebuttal, some impeaching testimony was introduced by the state for the purpose of affecting the credibility of witnesses for the defendant.

On behalf of the plaintiff in error, witness W. R. Standifer, who was jointly charged, testified that he was in Tishomingo the morning of the homicide, and went home after dinner; had dinner at Jim Crawford’s; got home about one o’clock; looked for Dykes in town that day, but could not find him; saw Jim Crawford; left him in his lot; Crawford came to his house that afternoon about three o’clock. He went with Crawford then up Pennington creek, both on horseback. Jim Crawford was drinking. They proceeded a little way, and Crawford went to the creek to get a drink. While he was there, they heard loud talking, and Jim said, “There is Mr. Dykes.” He got on his horse then and started across the creek and appeared to be in a sort of a hurry; witness followed on after him. Witness was behind Jim Crawford as they rode up. Dykes and Campbell Henderson and Monroe Wolfe were there. Monroe Wolfe was crying and Dykes said he guessed he would get a switch and give him a licking. Monroe Wolfe then went over near Jim Crawford’s horse, and Jim reached over and shot them. Then they went off a little ways, and Jim asked what they were going to do to get him out of it, and Dykes said he had no way to suggest, but to take it on himself. Jim. said, “Pet’s go back there, I want to be sure whether Campbell is dead or not.” He walked to where they were, and came back and overtook them. Campbell Henderson fell forward when he was shot. Witness had no idea when he started that Dykes and the Indians were there. Neither Henderson nor Wolfe had a six shooter. Dykes had a pistol.

The state had no eye witnesses to the homicide. Its case must of necessity rest on circumstantial evidence and the various admissions of the plaintiff in error, made to the officers and to his close friends. It appears from the testimony that as soon as the plaintiff in error had returned to his home at Tishomingo he called first upon his local banker and then other friends, to whom he made a statement that he had killed two Indians, and detailed the circumstances to some extent. These statements, voluntarily made at the time and place they were made, together with all the facts and circumstances in evidence, were to be considered by the jury, as likewise are the statements testified to by Standi-fer and the plaintiff in error when they were on the witness stand. Under proper consideration of all these things, the jury was called upon to decide and when decided, say by their verdict whether or not Dykes killed the Indians or was concerned in the killing of them as a principal. The proposition of whether or not Dykes was an accessory after the fact rather than ’a principal in the murder, was not submitted to the jury, and no request was made by counsel for the defense that this be done.

There are only two questions in this case that require consideration. The first is based upon the contention that the court wrongfully permitted the introduction of testimony which tended to establish the commission of other offenses by the accused than the one for which he was being tried. The other question is based upon the refusal of the court to permit the introduction of proof by the accused to the effect that another person, to wit, one Crawford, had confessed to other persons that he fired the shots which ended the existence of Monroe Wolfe and Campbell Henderson, and that no other person was concerned therein.

Under the first proposition counsel for plaintiff in error rely on the doctrine laid down by this court in Williams v. State, 4 Okla. Cr. 523, 114 Pac. 1114, and Vickers v. U. S., 1 Okla. Cr. 452, 98 Pac. 467. These two cases do not support the contention of counsel. The universal rule is, and the doctrine of those cases also is, that testimony which tends to show intent or malice upon the part of the accused, or which tends to identify him, or which is part of the res gestae, may be admitted even though such testimony establishes or tends to establish the commission of separate and distinct offenses. In Son v. Ter., 5 Okla. 526, 49 Pac. 723, the Supreme Court of Oklahoma Territory said:

“Motive to commit crime, if shown, may in many cases be sufficient alone, almost, to induce a belief of guilt. Upon the other hand, where no motive for the commission of a crime can be shown, it is almost impossible to convince the mind of guilt. Men do not ordinarily commit grave crime unless there is in their minds a motive strong enough to overcome the natural repugnance against crime, and the fear of punishment which usually follows detection. This view of this question is so universally recognized as being true, that it has become incorporated into the law, and in almost all cases where the guilt of a defendant depends upon the facts and circumstances in proof in the case, the court instructs the jury to consider the motive or lack of motive which the proof shows may or may not exist in the mind o£ a defendant on trial charged with crime."

See, also, Myers v. State, 6 Okla. Cr. 389, 119 Pac. 136.

Tt was the theory of. the state in this prosecution that the plaintiff in error killed or participated in the-killing of the two Indians because they had permitted certain persous to establish a mining camp upon lands which had been leased by them to the plaintiff in error, prior to the establishment of the camp, and very much against the wishes of plaintiff in error. Also that the homicide grew out of that transaction.

The proof shows that the plaintiff in error and his two employees, Crawford and Standifer, and especially the plaintiff in error and Crawford, had gone out to the mining camp and cut down the tents, destroyed the property, ordered the persons owning the tents, etc., to leave the premises and not to be again found thereon. The plaintiff in error had also complained to 'the Indians about their permitting the mining camp to be established, and had given them whisky upon which he and they became beastly intoxicated; and while in this condition a row was precipitated in which he participated and the two Indians were killed.

We are of opinion therefore that the evidence was admissible. The fact that it tended to prove other and independent crimes, so long as it was admissible to show motive, could not operate to preclude the state from the benefit thereof. As a general rule, any fact is admissible in evidence which tends to shed light on the intention of the person accused of committing the crime for which he is on trial, even though it may establish or tend to establish separate and independent crimes. Of course this rule contemplates that testimony of this character must have substantive value for the purpose it is offered

Upon the second proposition we are unable to conclude that the position of counsel for plaintiff in error should be sustained. Their argument is supported by only a few authorities; in fact the great weight of authority almost uniformly supports the contrary doctrine. This identical principle is fully discussed by the Supreme Court of the United States in an opinion handed down on the 'ith day of April, 1913, subsequent to the filing of the appeal in this case. The opinion was rendered in the case of Donnelly v. United Stales, 228 U. S. 243. We quote with approval from the discussion of this proposition in that opinion the following:

“The only remaining question arises out of the exclusion by the trial judge of testimony offered by the plaintiff in error for the purpose of showing that one Joe Dick, an Indian, since deceased, had confessed that it was he who had shot Chickasaw. Since the circumstances of the crime, as detailed in the evidence for the government, strongly tended to exclude the theory that more than one person participated in the shooting, the Dick confession, if admissible, would have directly tended to exculpate the plaintiff in error. By way of foundation for the offer, plaintiff in error showed at the trial that Dick was dead, thereby accounting for his not being called as a witness, and showed in addition certain circumstances that, it was claimed, pointed to him as the guilty man, viz., that he lived in the vicinity and therefore presumably knew the habits of Chickasaw; that the human tracks upon a sand bar at the scene of the crime led in the direction of an acorn camp where Dick was stopping at the time, rather than in the direction of the home of the plaintiff in error; and that beside the track there was at one point an impression of a person sitting down, indicating, as claimed, a stop caused by shortness of breath, which would be natural to Dick, who was shown to have been a sufferer from consumption.
“Hearsay evidence, with a few well recognized exceptions is excluded by courts that adhere to the principles of the common law. The chief grounds -of its exclusion are, that the reported declaration (if in fact made) is made without the sanction of an oatli, with no responsibility on the part of the declar-ant for error or falsification, without opportunity for the court, jury, or parties to observe the demeanor and temperament of' the witness, and to search his motives and test his accuracy and veracity by cross-examination, these being most important safeguards of the truth, where a witness testifies in person, and as of his own knowledge; and, moreover, he who swears in court to the extra-judicial declaration does so (especially where the alleged declarant is dead) free from the embarrassment of present contradiction and with little or no danger of successful prosecution for perjury. It is commonly recognized that this double relaxation of the ordinary safeguards must, very greatly multiply the probabilities of error, and that hearsay evidence is an unsafe reliance in a court of justice.
“One of the exceptions to the rule excluding it is that which permits the reception, under certain circumstances and for limited purposes, of declarations of third parties made contrary to their own interest; but it is almost universally held that this must be an interest of a pecuniary character; and the fact that the declaration, alleged to have been thus extra-judicially made, would probable subject the declarant to a criminally liability is held not to be sufficient to constitute it an exception to the rule against hearsay evidence. So it was held in two notable cases in the House of Lords — Berkley Peerage Case (1811), 4 Camp. 401; Sussex Peerage Case (1844), 11 Cl. & Fin. 85, 103, 109, 8, Eng. Reprint, 1034, 1042 — recognized as of controlling authority in the courts of England.
“In this country there is a great and practically unanimous weight of authority in the state courts against admitting evidence of confessions of third parties made out of court and tending to exonerate the accused. A few of them (West v. State, 76 Ala. 98; Davis v. Commonwealth, 95 Ky. 19; and Peo-Ple v. Hall, 94 Cal. 595, 599) are precisely'in point with the present case, in that the alleged declarant was shown to be deceased at the time of the trial. In West v. State the defendant offered to prove by a witness that he heard one Jones say on his death bed_that he had killed Wilson, the deceased. The Supreme Court sustained the ruling of the trial judge excluding the evidence. In Davis v. Commonweath, the offer excluded was to prove by a witness that one Pearl confessed to him on his death bed that he had killed the person for whose murder Davis was on trial. The Court of Appeals of Kentucky affirmed the conviction. In People v. Hall, supra, it appeared that defendant and one Kings-berry were arrested together for an alleged burglary, attempted to escape, were fired upon and wounded by one of the captors; that a physician was sent for to treat them, and that Kingsberry died from the effects of his wound before any complaint was filed against either of the parties. In his own behalf the defendant offered to prove that after a careful examination the physician was satisfied that Kingsberry’s wounds were necessarily fatal, and that he so informed him at the time; that Kings-berry admitted to the physician that he fully realized that he was mortally wounded and was on the point of death, and had given up all hope of ever getting well; that he was conscious of death, and that thus having -a sense of impending death, and without hope of reward, he made full; free, and complete confession to said physician in relation to this alleged crime, stating that he himself had planned the entire scheme, and that Hall had nothing to do with it and was not connected with the guilt and was in all respects innocent of any criminal act or intent in the matter, this evidence was excluded, and the Supreme Court of California sustained the ruling, saying: The rule is settled beyond controversy that in a» prosecution for crime the declaration of another person that he committed the crime is not admissible. Proof of such declarations is mere hearsay evidence, and is always excluded, whether the person making it be dead or not (citing cases that-are among those included in the note).
“We do not consider it necessary to further review the authorities, for we deem it settled by repeated decisions of this court, commencing at an early period, that declarations of this character are to be excluded as hearsay.
“Mima Queen and Child v. Hepburn (1813), 7 Cranch, 290, 295, 296, 297, was a suit in which the petitioners claimed freedom, and certain depositions were rejected by the trial court as hearsay. The court, speaking through Chief Justice Marshall, said:
“ ‘These several opinions of the court (meaning the trial court) depend on one general principle. The decision of which determines them all. It is this: that hearsay evidence is incompetent to establish any specific fact, which fact is in its nature susceptible of being proved by witnesses who speak from their own knowledge. * * * It was very, justly observed by a great judge that ‘all questions upon the rules of evidence are of vast importance to all orders and degrees of men; our lives. our liberty, and our property are all concerned in the support of these rules which have been matured by the wisdom of ages, and are -now revered from their antiquity and the good sense in which they are founded.’ One of these rules is that 'hearsay’ evidence is in its own nature inadmissible. That this species of testimony supposes some better testimony which might be adduced in the particular case, is not the sole ground of its exclusion. Its'1 intrinsic weakness, its incompetency to satisfy the mind of the existence of the fact, and the frauds which might be practiced under its cover combine to support the rule that hearsay evidence is totally inadmissible. * * * The danger of admitting hearsay evidence is sufficient to admonish courts of justice against lightly yielding to the introduction of fresh exceptions to an old and well-established rule; the value of which is felt and acknowledged by all. If the circumstance that the eye witnesses of any fact be dead should justify the introduction of testimony to establish that fact from hearsay, no man could feel safe in any property, a claim to which might be supported by proof so easily obtained. * * * This court is not inclined to extend the exceptions further than they have already been carried.”

See also Brown v. State, 37 L. R. A. (N. S.) 345; 55 Sou. 961.

'Hie following are a few of many other authorities supporting this doctrine: Welsh v. State, 96 Ala. 92, 11 So. 450; Owenby v. State, 92 Ala. 63, 2 So. 764; Alston v. State, 63 Ala. 178; Woolfolk v. State, 85 Ga. 69, 11 S. E. 814; State v. Smith, 35 Kans. 618, 11 Pac. 908; State v. West, 45 La. Ann. 928; 13 So. 173; State v. Duncan, 116 Mo. 288, 22 S. W. 699; People v. Scharley, 149 N. Y. 99, 43 N. E. 536; State v. White, 69 N. E. 158; State v. Fletcher, 24 Ore. 295, 33 Pac. 575; Peck v. State, 86 Tenn. 259, 6 S. W. 389; Bacigalupi v. Comm. (Ky.), 101 S. W. 311; Mays v. State, 72 Neb. 723, 101 N. W. 979,

We have read and re-read the record in this case and have carefully and thoroughly considered the briefs and arguments. It is the opinion of the writer that the plaintiff in error should have been convicted of murder or acquitted; but under the doctrine laid down in Ryan v. State, 8 Okla. Cr. 623, which has become the settled rule in this state, a reversal cannot be had upon that ground.

The question of whether or not the plaintiff in error was guilty of this murder or an accessary after the fact, was one for the jury. The testimony being conflicting, and no error of law complained of, this court will not interfere with the conviction.

The judgment of the trial court is affirmed.

DOYLE, P. J., concurs; FURMAN, J., absent.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    ARTHUR POWELL v. STATE.
    No. A-2159.
    Opinion Filed July 17, 1915.
    1. BAPS — Sufficiency of Evidence. In a prosecution for statutory rape where there is testimony from which the jury might legally have inferred' all the essential elements of the crime charged, and it does not appear that the jury were influenced by considerations other than the evidence, the verdict of guilty will not be disturbed.
    2. ' TBIAL — Consideration of Evidence — Province of Jury. The credibility of the defendant and other witnesses testifying in his behalf is the exclusive province of the jury to determine, and although such testimony bo uncontradietcd and not directly impeached, when there are facts and circumstances in evidence tending to lessen the probability that such testimony is true, the jury may give it such weight as they deem proper, even to the extent of wholly disregarding the same.
    3. BAPS — Question of Marriage — Evidence—Jury. In a prosecution for statutory rape, it is not necessary to prove by direct and positive evidence that the defendant and the prosecutrix were not husband and wife at the time of the alleged offense, but it is sufficient if there are facts and circumstances in evidence that will justify the jury in reaching that conclusion.
    4. TBIAL — Instructions. Instructions, both given and refused, are examined, though not sot out in the opinion, and no reversible error is found in them.
    (Syllabus by the Court.)

      Appeal from District Court, Okmulgee County; Wade S. Stanfield, Judge.

    Arthur Powell, convicted of rape, appeals.
    Affirmed.

      Baton & Cowley, for plaintiff in error.

      Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error was tried and convicted in the district court of Okmulgee county on an information charging the crime of rape upon the person of Katie Hendry, a female under the age of fourteen years, to wit, of the age of ten years. The jury by their verdict assessed the term of his imprisonment in the penitentiary at 30 years. On the 8th day of July, 1913, judgment was rendered and sentence imposed in pursuance of the verdict. From this judgment an appeal was taken by filing in this court on December 23, 1913, a petition in error with case-made.

The evidence shows that on Sunday morning, July 14, 1912, Katie Hendry, a child ten years old, the daughter of James Hendry, a coal miner living in the town of Henryetta, was the victim of an assault accompanied by rape. On that day between the hours of 8 and 9 o’clock a. m. she was sent by her mother to get meat at a meat market on Main street in Henry-etta, and was returning home when a man, afterwards identified by her as the plaintiff in error, approached her near the Bryant livery barn. Katie Plendrv testified that he told her there was a picnic on the hill for all the school girls and that he would give her two little white rabbits if she would go with him. That she went with him and they crossed the Frisco and M. O. & G. railroad tracks and a fence and then went through two corn fields near a little creek and crossed another fence and went to the top of the hill and there they stopped under a shady tree. She further testified that this man then told her to lie down and she refused to; that he then took out of his pocket a little knife with an ivory handle and opened it and told her if she didn’t lay down he would cut her throat; that she laid down and he tore her person with his fingers and he then got down on top of her and while he was thus on her she felt his person in her person. After that they went down to the creek; there he told her to take off her underskirt and wash it in the creek; and he would wait in' the shade; that after she had washed her skirt she looked for him but could not find him and she went home and told her father about what the man had done. The evidence further shows that her father took her to her grandmother’s where her mother was; from there her parents took her in a buggy to the office of Dr. Breese. At Dr. Breese’s office she told those present that the man wore a light white shirt, blue pants, black button shoes and a little turned up hat and a reddish tie. It was then about 11 a. m. After she was examined in the doctor’s office her father took her down on the street and put her in a buggy and told her to look into every man’s face and see if she could find that man. In a few minutes Arthur Powell appeared and she pointed him out as the man who had assaulted her.

James Hendry testified that his daughter returned home about 10:30 a. m. After the doctor had treated her they carried her down the stairs and lifted her into the buggy; and after sitting there about five minutes she pointed out the plaintiff in error and said, “Papa, that is the man,” that he grabbed Powell and told him to show his knife. That Powell produced a small pen knife with an ivory handle.

Mr. and Mrs. Hendry both testified that their daughter Katie was eleven years old on the 23rd day of September, 1912. Dr. Breese, Dr. Robinson, and Dr. Piolines testified that their examination of the child disclosed a downward laceration at the entrance of the vagina of about one and a half inches, and a laceration extending into the vagina about two and one-half inches; that Powell was brought into Dr. Breese’s office immediately after his identification by the little girl and an examination of his person and clothing was made; that the examination of the private parts disclosed no indication of his having committed the crime, and an examination of his finger nails with a microscope failed to disclose any blood, but they did find two or three spots of blood on the front and lower part of his shirt, which did not appear to be fresh.

Mollie Pinkston, Will Prayer, and Jim Reed testified to seeing a man coming out of a corn field west and south of the place of the assault, dressed in clothes ■ corresponding to the clothes worn by the plaintiff in error on that day. The last two witnesses identified the plaintiff in error as the man they saw coming out of the corn field.

Ben Sheppard testified that he saw a man dressed in clothes corresponding to those worn by the plaintiff in error that day in company with a little girl in a field through which the little girl claimed to have traveled; that afterwards in company with the officers he followed the tracks made by the man and a little girl about one-half a mile.

S. P. Roach, John Montgomery, and A. Y. Pattj^ testified to having examined the tracks along the route over which it was claimed that these parties traveled in going to the place of the assault and taking the shoes of plaintiff in error and fitting them in a number of said tracks.

The foregoing comprises in substance the testimony introduced by the state.

The plaintiff in error became a witness in his own behalf, and testified that he was about 30 years of age, that he arrived in Henryetta the night of July 13th, stayed all night at the King Hotel; that he arose about 5 o’clock in the morning and went from there to a restaurant on Main street where he ate breakfast and from there he went across the street to the Red Cross drug store .where he bought some cold drinks and then returned to this restaurant, and from there he went east to a quick lunch stand and from there over to Dr. Mooney’s residence and talked with Mrs. Mooney. From there he returned back to the lunch stand and from there he went to the. King Hotel and paid for his lodging, and from there he went to Mrs. Six’s restaurant, and from there he returned back to Main street and went to the hotel just across the street from the Bryant livery barn; that at this hotel he awoke the cook, a man with whom he had some acquaintance; that from this hotel he crossed the street over to the Bryant livery barn and talked with witness Moncreith about securing employment; that he then started to cross Main street to the Hooper hide house and on the way he met A. W. Hooper, and returned with Hooper back to the hotel; that from there he went to the hide house and talked with A. W. Hooper’s brother, and then went second time to the residence of Dr. Mooney and talked with Dr. Mooney’s wife; that he then went to the Red Cross drug store and purchased some cold drinks; from there he was not certain as to whether he went to the plumber’s shop or to the residence of Rube Beal; that he was at each of these places after he left the Red Cross drug store the second time; at the residence of Rube Beal he talked with Mrs. Beal a short time and then returned back to Main street; he met the witness Pharr is near the post office and had a conversation with him, lasting, some fiftéén or twenty minutes; after leaving the witness Phar-ris he proceeded to the Henryetta Hotel and there met the cook whom he had seen in the early part of the morning. From this point he went back on Main street and up Main street to where he saw a crowd gathering in front of the Red Cross drug store; that his attention was attracted to the crowd and because of the fact that he held certain coupons given to him at the Red Cross drug store, on account of certain purchases which he had made there, as he understood certain prizes were to be distributed to parties holding certain coupons on that day, he mingled with the crowd and met Rube Beal and was in the act of shaking hands with him when Jim Hendry, the father of the girl, took him by the arm and he was immediately arrested and taken to the office of Dr. Breese where he was examined by several doctors with a view of ascertaining whether or not there was any evidence pointing to his guilt.

On corroboration of his testimony he called as a witness Pete Balboa who testified he saw the plaintiff in error on that day behind the King I-Iotel about 7 o’clock a. m.;. that he saw him the second time between 9 and 9 :30 a. m., going to the hotel immediately across the street from the Bryant livery barn.

A. W. Hooper testified that he saw the plaintiff in error near the hide house and went with him to the hotel just across Main street from the Bryant livery barn; that it was then between 9 and 10 o’clock a. m.

D. C. (Jack) Moncreith testified that he saw the plaintiff in error on the morning of the 14th of July between 9 and 9 :30 o’clock and had a conversation with him at the Bryant livery barn.

Mrs. Dr. Mooney testified that on the morning of July 14th, the plaintiff in error came to her house and inquired for her husband, Dr. Mooney, twice. The first time he came there it was about the hour of 8 o'clock, and that the second time he came back he inquired of witness as to the time of day and that she looked at the clock and that it was 10:20 by the clock.

Walter Broom testified that he was in the Red Cross drug store that morning and that the plaintiff in error, in company with a man by the name of Davidson, came into said drug store about 10 o’clock.

George Steinhouse testified that he was in the Red Cross drug store that morning about 10 o’clock, that a few minutes after he entered the store the plaintiff in error came in, that Davey Davidson from Dewar was with him.

Mrs. M. I. Kusselman testified that she lived just across the street from Rube Beal’s, and was at the home of Rube Beal between 10 and 11 o’clock on the morning of July 14th and that the plaintiff in error came while she was there and talked to Mrs. Beal in regard to the whereabouts of Mr. Beal.

Pleasant A. Pharris testified that about the hour of 11 o’clock a. m. or a little after he saw the plaintiff in error in front of the postoffice and had a conversation with him.

Dr. W. C. Sanderson testified that in his opinion as a physician and surgeon, the blood upon the shirt of plaintiff in error had been on there from twelve to twenty-four hours; that the person of the plaintiff in error was at the time of these examinations, in a perfect normal condition; that there were no abrasions about the organ to show that he had committed the crime that he was accused of.

The foregoing comprises in substance the testimony introduced on behalf of the defendant.

The principal assignments of error question the sufficiency of the evidence to support the verdict of the jury. It is strenuously insisted, in the very able brief of counsel, that the evidence of the identity of the defendant is at once improbable, and insufficient in that the testimony of the defendant. and the witnesses testifying in his behalf in support of the alibi is un-contradicted and unimpeached. • The defense of an alibi depends so much upon the attending circumstances, which can be under the view of the trial judge only, that this court will not reverse the findings of the jury or the order of the trial judge,, even in a case where the conviction rests upon circumstantial evidence, except the error be plain. In rape cases the defense of an alibi and mistaken identity has often been urged and apparently been complete so far as the evidence is concerned, and yet been disbelieved by jurors.

Ingram v. State, 3 Okla. Cr. 634, 108 Pac. 552. In this case it was said:

“Under our system of jurisprudence, it is the exclusive province of the jury to determine whether the evidence tending to prove the guilt of the defendant is so lacking in convincing force as to leave an intelligent and discriminating mind to doubt as to the truth of the charge contained in the indictment, and in reviewing questions of fact upon appeal to the Criminal Court of Appeals, if there is a fair conflict in the evidence, or it is such that different inferences can be properly drawn from it, the determination of the jury will not be interfered with, unless it is clearly against the weight of evidence, or appears to have been influenced by passion or prejudice.”

It is also contended that the evidence is insufficient in that there was no evidence to show “that the said Katie Hen-dry was not the wife of said defendant Arthur Powell.” Counsel admit that the contention is technical, and in their brief say: “It is true there is testimony in the record tending to show circumstances frorn, which it might be inferred that Katie Plendry was not at the time of the commission of this crime, the wife of the plaintiff in error, her alleged assailant.

The circumstances from which this inference might be drawn were to the' effect that Katie Hendry, the injured party, was at this time living with her parents in Henryetta; that she was 11 years of age and had never seen the plaintiff in error prior to the day upon which this crime was committed; that her name was different from that of the plaintiff in error. The plaintiff in error also testified that he had never seen Katie Hendry, the injured party, as he remembered of, prior to the time he was identified by her in the crowd on Main street in the city of Henryetta, immediately preceding his arrest. This in substance comprises all the testimony, in our opinion necessary to refer to, to establish facts upon which a conclusion might be drawn that Katie Hendry was not at the time of the commission of this offense, the wife of the plaintiff in error, her alleged assailant.

It is true there is no direct and positive evidence that the child was not the wife of the defendant, but the testimony shows that she was under the age of eleven years at the time of the assault and that she was a mere school girl living with her parents. This court knows judicially that a girl of that age could not marry under the laws of this state and all the facts and circumstances in evidence show beyond any question that she was not the wife of the defendant.

In Brenton v. Territory, 15 Okla. 6, 78 Pac. 83, 6 Ann. Cas. 769, it was held that in a prosecution for statutory rape, it is not necessary to prove by direct and positive evidence that the defendant and the prosecutrix were not husband and wife at the time of the alleged offense, but it is sufficient if there are facts and circumstances in evidence that would justify the jury in reaching that conclusion.

See, also, State v. May, 59 Wash. 414, 109 Pac. 1026, 23 Ann. Cases, 113.

It is also argued that the evidence is insufficient to show that there was any sexual penetration.

Our penal code (section 2416, Rev. Taws 1910) prescribes that:

“The essential guilt of rape, except with the consent of a female over fourteen years of age, consists in the outrage to the person and feelings of the female. Any sexual penetration, however slight, is sufficient to complete the crime.”

Counsel in their brief quote certain parts of the testimony of Katie Hendry and argue therefrom that sexual penetration was not shown. We think her testimony alone sufficient to show sexual penetration. She stated that after he compelled her to lie down he got on top of her. The county attorney then asked this question:

“Q. When he got on top of you did you feel his person in your .person anywhere? A. Yes, sir.”

The county attorney did not pursue the inquiry further, nor do we find that the defendant’s counsel interrogated her in any manner as to this matter. From her answer to such question coupled with her testimony as to the other acts of the plaintiff in error, and his declarations as to his purpose, the evidence was such as to satisfy the minds of the jurors that the crime of rape had been committed. There ought to be, as usually there is, some delicacy in examining a child of tender years as to such a henious offense.

In State v. Hodges, 61 N. C. 236, the court said:

“The law did not require that she should use any particular form of words in stating that the prisoner had penetrated her body. Words are but the signs of ideas, and it is well known that the same idea may be communicated to a hearer in a variety of forms of expression.”

In State v. Depoister, 21 Nev. 107, the court said:

“Section 4244, Gen. Stat. reads: ‘Proof of actual penetration into the body is sufficient to sustain an indictment for rape.’ Under this statute we shall hold the' slightest proof of the commission of the offense will justify the judge in submitting the question of fact to the jury, and no form of words are necessary to prove the commisison of the crime. The proof, therefore, can be inferred from circumstances, apart from the statements of the party injured. The prosecuting witness testified as to the position occupied by the defendant at the time of the commission of the offense, and it was such as to satisfy the minds of the jurors that the crime of rape had been committed, and the physician by whom she was examined found injuries upon her person which such an act might have occasioned. (Brauer v. State, 25 Wis. 415; People v. Crowley, 102 N. Y. 237; Taylor v. State, 111 Ind. 280; State v. Tarr, 28 Iowa, 397; Bishop Stat. Crimes, sec. 488.)
“If the doctrines contended for by counsel for appellant should prevail, then the scoundrel who attempted the chastity of a child or a young girl would escape punishment merely because of her youth, preventing his fully consummating the crime, which appears to us, as undesirable as it would be unjust.”

Several assignments are based on the action of the court in refusing to give instructions requested by counsel for the defendant, and on exceptions taken to instructions given by the court.

With a full appreciation of the importance of this case to the defendant we have examined all the instructions, including those given and refused, and we find no error. The instructions refused were sufficiently included in those given by the court. A case seldom' appears in the annals of criminal law where a lecherous degenerate has been guilty of such bestial conduct in an attempt to gratify his lust as is shown by the record in this case. It is almost beyond belief that in a civilized country such a crime could be committed. That the crime was committed by some one is not questioned. The question of the identity of the defendant as the perpetrator was the only disputed question before the jury. Upon a careful review of the testimony, we see no sufficient reason to distrust the conclusion which the jury reached, and finding no reversible error in the the record, it follows that the judgment of the court below must be affirmed.

FURMAN and ARMSTRONG, JJ., concur.


author: PER CURIAM.

text:
    WILLIAM BROKHAUS v. STATE.
    No. A-2070.
    Opinion Filed July 21, 1915.
    1. INTOXICATING LIQUORS — Possession—Evidence of Reputation. Upon a trial on an information charging that the defendant did have the possession of intoxicating liquors with the intent to sell the same, evidence of the general reputation of his home was incompetent to prove the charge.
    2. APPEAL — Evidence—Hearsay Testimony. Where hearsay testimony has been received which contributed to a verdict of guilty, the reception of such evidence does not constitute harmless error, but will be ground for reversal.
    (Syllabus by the Court.)

      Appeal from County Court, Kingfisher County; R. F. Shutter, Judge.

    William Brokhaus, convicted of violating the prohibitory law, appeals.
    Reversed.

      D. IC. Cunningham and B. G. Spilman, for plaintiff in error.

      Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted on a charge of unlawfully having in his possession intoxicating liquor with intent to sell the same, arid his punishment fixed at a fine, of fifty dollars and confinement in the county jail for 30 days. This appeal is from the judgment rendered in pursuance of the verdict. An examination of the record discloses that the defendant was prosecuted with unusual severity and that nearly every objection to incompetent evidence made by counsel for the defendant was overruled. Upon arraignment, in addition to his plea of not guilty, he entered a special plea of former jeopardy, and to support the special plea, introduced in evidence the information and record proper, including the judgment of conviction in a case tried at the January, 1913, term of said county court, which judgment of conviction on appeal was affirmed by this court.

The court of its own motion overruled the special plea and allowed an exception. The defendant also demanded that the issue of former jeopardy be submitted to the jury, and in the trial of the case offered the record and other evidence to show that the offense charged was necessarily included in the offense of which he was first convicted. Which offer of proof was rejected by the court. This was error. The plea was sufficient to require a reply and trial by jury of the issues raised. It appears from the record that S. E. Slickmyer, a witness in behalf of the state, was asked if he ever obtained any liquor at Mr. Brokhaus’ residence in the town of Kiel and answered:

“A. I don’t know whether I did at his house or not. I can’t say.”

We was then asked by the county attorney:

“Q. Mr. Slickmyer, didn’t you tell me a moment ago that you obtained some liquor at Mr. Brokhaus’ residence in the town of Kiel. (The defendant’s objection overruled. Exception noted.) A. ‘Well, I told you I got it at a place they said it was his place, I would not swear it was for I don’t know.’ The defendant moves to strike out- the answer of the witness as incompetent, irrelevant and immaterial and purely hearsay. By the Court: Overruled.”

This was error.

“By the County Attorney: ‘Did you not state to me a moment ago that you went into the place occupied by Mr. Brokhaus and found siLting on the table a bottle o'f whisky and a glass? Did you not further state to me that the defendant Mr. Brokhaus was in an adjoining room? Did you not further state to me you poured out a drink of whisky from this bottle into this glass, drank it and laid down some money and walked out, did 3rou not make those statements?’ (Objected to by counsel for the defendant for the further reason that it is prejudicial to the rights of this defendant to have such statements made by the county attorney in the hearing of the jury.) By the Court: I will sustain the objection at this time and ask the witness to just state the facts in his own words. A. I think I have answered every question asked me, haven’t I, your honor, in this case? By tíre Court: I will ask you again to state those facts, or I will fine you for contempt of court. A. I did, yes sir, I got it. Q. State what you got. A. I suppose it was whisky. Q. Was this whisky or was it not? By the Court: Answer the question yes or no. A. Yes. Q. Did you leave any money when you left the room? A. I did. Q. How much? A. Ten cents. Q. Did any one pick this money up while you were there? A. No, sir. (Counsel for the defendant moves to strike out the evidence of this witness as being incompetent, irrelevant and immaterial. Overruled. Exception.)”

This was clearly error.

G. I. Mathews, a witness for the state, testified that he knew the general reputation of the residence of the defendant Brokhaus in the vicinity of Kiel. - He was then asked:

“Q. What was that reputation? A. Well it was supposed a man could get liquor there. By the Court: What do you mean by supposed? A. It was the reputation that liquors could be gotten there.”

The defendant’s motion to strike out the answer's was overruled. Exceptions reserved. This was error. Thompson v. State, 9 Okla. Cr. 525.

A. A. Christ, a witness for the state, was allowed to testify as to what was the general reputation of the residence of the defendant with reference to being a place where intoxicating liquors were sold. Against the objection of the defendant’s counsel he answered: “It was supposed it has.” Also that he gave a fellow a dollar and he went-to Brokhaus’ place and got some whisky. This was error. On cross-examination he was asked:

“Q. Do you know he got it there from your own personal knowledge? A. No, sir.”

W. E. Dimmick. was allowed to testify against the objection of the defendant’s counsel that his hired man came home with a bottle of whisky and had told him that he got the whisky at Brokhaus’ and that he heard his hired man say that he had drank whisky at Brokhaus’ place. This also was error. It seemed to have been forgotten that the defendant was presumed to be innocent until the contrary was proved.

The court gave the following instruction:

“If after considering all the evidence introduced herein you can reasonably draw the conclusion that the defendant did not keep the whisky for the purpose of selling it, or giving it away, it is your duty to so find. (Exception allowed.)”

For the errors pointed out the judgment is reversed.


author: ARMSTRONG, J.

text:
    GEORGE C. WILLIAMS v. STATE.
    No. A-2288.
    Opinion Filed July 17, 1915.
    1. INDICTMENT AND INFORMATION — Sufficiency of Charge-Conformity to Statute. An information which fails to conform to the statute by setting forth sufficient facts to charge the commission of an offense, is fatally defective and cannot be made the basis of a judgment of conviction.
    2. IiARt^ — ríY—Proper Indictment. An information which intends 'to charge larceny should conform to section 2652, Revised Laws, 1910, or section 1, chapter 92, Session Laws of 1911, as construed by this court in Crowell v. State, 6 Otla. Or., 154; Hughes ■ v. State, 8 Oída. Or. 28, and Bryan v. State, ante; 144 Pae., 693.
    (Syllabus by the Court.)

      Appeal from District Court, Sequoyah County; John H. Pitchford, Judge.

    George C. Williams was convicted of larceny, and appeals.
    Reversed.

      T. P. Shackelford and W. J. Crump, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

George C. Williams, the plaintiff in error, was convicted at the December, 1913, term of the district court of Sequoyah county on a charge of larceny, and his punishment fixed at imprisonment in the state penitentiary for a term of one year.

The appeal was filed in this court on the 8th day of June, 1914. On the 19th day of May, 1915, the Attorney General filed a confession in error in this action, conceding that the judgment of the trial court should be reversed for the reason that the information fails to plead facts sufficient to charge a crime -under the law of this state, in that “it fails to comply with either the general statute, section 2652, or the special statute, chapter 92, section 1, Session Laws 1911, as these statutes have been construed in Hughes v. State, 8 Okla. Cr. 28; Crowell v. State, 6 Okla. Cr. 154, and Bryan v. State, ante, 144 Pac. 693.” The information is as follows:

“Now comes the duly qualified and acting county attorney in and for Sequoyah county, state of Oklahoma, and gives the district court of Sequoyah county, state of Oklahoma, to know and be informed that G. W. Williams and Frank Wimberly did, in Sequoyah county, in the state of Oklahoma, on or about the 17th day of November, in the year of our Lord one thousand nine hundred and thirteen, and anterior to the presentment hereof, commit the crime of a felony, to wit, cow larceny, in the manner and form as follows, to wit, that is to say, the said G. W. Williams and Frank Wimberly in the county and state aforesaid and on or about the 17th day of November, 1913, did by stealth and fraud take, steal and carry away six head of certain cows described as follows, to wit: Three red muley cows branded 66 on right side and on right hip, one red cow with horns, one roan muley cow and one roan cow with horns, all branded with 66 on right side and on left hip, that said cows so taken by stealth and fraud was the property of W. M. Rogers and not the property of them the said G. W. Williams and Frank Wim-berly, that the said property was taken on the part of the said G. W. Williams and Frank Wimberly for the purpose of cheating and defrauding the said W. M. Rogers out of the value thereof, * * * contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”

Testing this information by the authorities supra, there is no doubt that it is insufficient. The confession in error is therefore sustained.

The judgment of the trial court is reversed and the cause remanded.

DOYLE, P. J., concurs; FURMAN, J., absent.


text:
    HARVE MORRIS v. STATE.
    No. A-2226.
    Opinion Filed July 17, 1915.
    1. TBIAL — Comment of Court — Prejudice. Under the law in this state, trial courts are not warranted in commenting upon the credibility of any witness or class of witnesses, who may testify on behalf of either party to a criminal prosecution.
    2. SAME — Instructions—Prejudice. When an instruction is given by the trial court which has the cfieet of bolstering up the credibility of any material witness who may have testified on behalf of the state, a now trial should be awarded.
    (Syllabus by the Court.)

      Appeal from County Court, Comanche County; H. N. Whalin, Judge.

    Harve Morris was convicted of -violating the prohibitory law, and appeals.
    Reversed.

      Fain & Young, for plaintiff in error.

      R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Harve Morris, was convicted at the February, 1914-, sitting of the January term of the county court of Comanche county on a charge of selling intoxicating liquor, and his punishment fixed at a fine of $300 and imprisonment in the county jail for a period of 60 days. There are many assignments urged; among others, the giving of the following instruction by the court:

“The jury are instructed, that, under the laws of this state, it is permissible for any person to act as detective or enforcement officer for the purpose of apprehending and prosecuting those engaged in the violation of the prohibitory laws of the state of Oklahoma, and under the law there is no criticism to expend upon any public officer, league or individual who may find it necessary or convenient to adopt this means of discovering infractions of the law. And in some instances habitual and flagrant violations of the liquor laws can be detected by no other means.
“Such person acting as such officer or detective may furnish the defendant, in such cases, the opportunity to sell, but he does not furnish the defendant the liquor or the intent to sell; and the sale to such person is no more meritorious, or less criminal', than if tirade to some other person. In this connection, you are instructed, that if you find from the evidence in this case, that some witness who has testified, was acting under such enforcement officer, or some law and order league, in the detection of violations of the prohibitory laws of this state, that alone and of itself should not subject such'witness to any criticism, or discredit his evidence in his case, in your minds.”

Objections were made and exceptions duly saved to this instruction at the time it was given. This instruction has heretofore been condemned by this court as being wholly unwarranted under the law in this state. See Brumbaugh v. State, ante, decided at the present term. For the reasons given in that opinion, the judgment of the trial court in this case is reversed, and the cause remanded for a new trial.

DOYLE, P. J., concurs; FURMAN, J., absent.


author: ARMSTRONG, P. J.

text:
    STATE v. C. J. GILLASPIE.
    No. A-1408.
    Opinion Filed July 17, 1915.
    1. PBIIiCIPAXi AMD AG-BETT — Loan Companies — Debt Against Borrower — Bmbezzlement. A trial court should not sustain a demurrer and discharge a defendant from prosecution unless there is absolutely no evidence tending to establish the commission of the crime, or unless the evidence discloses a lack of jurisdiction.
    (a) An agent for a loan company who has closed a loan under instructions of his principal and drawn a draft for the amount due on the loan for the purpose of paying the same to the borrower, and -who applies the proceeds to his own use instead of to the account of the borrower, is guilty of embezzlement.
    (b) An agent for a loan company who advances his own money to a borrower has no interest in the proceeds of a draft drawn to pay the loan.
    2. SAEiE — Appropriation by Agent — Payment to Borrower. An agent for a loan company who draws a draft to pay out a loan, cannot be heard to say that the money was not to be paid the borrower, for the reason that a portion of the same was to be applied to pay oft' liens on the borrower's land, in order to perfect liis title. The money is applied as much for his benefit in liquidation of the lien, as if paid to him in cash and by him applied to the liquidation of the lien.
    (a) "When money is procured by one as the agent of another upon the representation and based upon the understanding that such money is to be applied for a specific purpose, for the benefit of the principal, but instead, the agent diverts the money to his own use, he is subject to punishment under the embezzlement act.
    (b) It is as much embezzlement for one to procure funds for a specific purpose, through the ordinary course of business, by drawing a draft through a bank and securing credit for the amount or face of the draft, and then fraudulently appropriating same to his own use, to the injury of the person upon whom the draft was drawn, as in any other manner.
    (Syllabus by the Court.)
    Appeal. from District Court, Greer County; G. A. Brown, Judge.

    Appeal by the state from a legal question reserved at the trial in the case of State of Oklahoma v. C. J. Gillaspie, charged with embezzlement.
    Reversed.

      H. D. Henry, Co. Atty. of Greer county, (Warren K. Snyder, of counsel), for plaintiff in error.

      S. B. Garrett, for defendant in error.
   ARMSTRONG, P. J.

This is an appeal by the state of Oklahoma from a judgment rendered by the district court of Greer county in favor of C. J. Gillaspie, defendant in error, in a cause pending in that court wherein said Gillaspie was prosecuted by the state on a charge of embezzlement, it having been ordered by said district court of Greer county that said Gillaspie be discharged from prosecution on the ground that the testimony introduced on behalf of the state at the trial was not sufficient to show a violation of law under the information filed against him.

The information upon which the prosecution was based is as follows:

“In the name and by the authority of the state of Oklahoma comes now H. D. Henry, the duly elected, qualified, and acting county attorney of Greer county, state of Oklahoma, and in behalf of, and in the name of, the state of Oklahoma, presents in and to the district court of said Greer county, at the July, 1910, term of said court, that theretofore, to wit, on or about March 9, A. D. 1910, in the county of Greer and state of Oklahoma, the said defendant, C. J. Gillaspie, being then and there the trustee and agent of Thorne Brothers, a co-partnership composed of W. F. Thorne and E. C. Thorne, the said defendant, C. J. Gil-laspie, not being then and there an apprentice or person under the age of eighteen years, did then and there, by virtue of his said agency and employment, receive and take into his possession, as such agent and trustee of said Thorne Brothers, from said Thorne Brothers, certain money and bank notes, the same then and there being good and lawful money of the United States, the exact size and denomination of which is unknown, of the amount and value of five hundred fifty ($550.00) dollars, same being the money and property of the said W. F. Thorne and E. C. Thorne, as such co-partnership, doing business as Thorne Brothers, the said employers of the said C. J. Gillas-pie, the said money being so entrusted by the said Thorne Brothers to the said defendant, C. J. Gillaspie, for the purpose of being paid to one Holly, whose given or full name is unknown, for and on account of certain notes and evidence of indebtedness secured upon real estate which the said defendant, C. J. Gillas-pie, represented that he would procure, payable to said Thorne Brothers, and the said money was so furnished by said Thorne Brothers, to the said defendant, C. J. Gillaspie, for the purpose of being applied in payment to said Holly for and on account of said loan in said sum of five hundred fifty dollars.
“That the said C. J. Gillaspie, then and there, on or about the 9th day of March, A. D. 1910, in said county of Greer and state of Oklahoma, the said money amounting to and of the value of $550, good and lawful money of the United States, consisting of various sizes and denominations unknown, the same then and there being the property of said Thorne Brothers, a co-partnership composed of W. F. Thorne and E. C. Thorne, the said money so by him, the defendant, had, received and possessed, he, the said defendant, C. J. Gillaspie, did then and there, willfully, unlawfully, felonious and fraudulently, embezzle and appropriate to his own use the said $550 with felonious and fraudulent intent to then and there deprive the true owners, W. F. Thorne and E. C. Thorne, doing business as Thorne Borthers, of the use thereof, and that the said appropriation was without the consent of the said employers, W. F. Thorne and E. C. Thorne, or either of them.
“Whereby, and by force of the statute in such cases made and provided, the said defendant, C. J. Gillaspie, did feloniously and fraudulently appropriate said money to a use and purpose not in the due and lawful execution of his said trust, and thereby did deprive the owners, W. F. Thorne and E. C. Thorne, doing business as Thorne Brothers, of the use thereof, with fraudulent and felonious intent aforesaid, and did thereby commit the crime of embezzlement, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Oklahoma.”

It appeárs from the evidence in the record that C. J. Gil-laspie was the agent at Mangum for Thorne Brothers, a partnership composed of E. C. Thorne and W. F. Thorne, which partnership was doing a general farm loan business in Oklahoma. That the general offices of said Thorne Brothers were in Oklahoma City. That Gillaspie negotiated a loan on a farm belonging to Richard II. Holly for $800. That there were certain liens on said farm which had to be satisfied out of the proceeds of this loan. That on the 7th day of March, 1910, Gil-laspie drew a draft on Thorne Brothers, Oklahoma City, for $550. On the 8th day of March, Gillaspie wrote a letter to Thorne Brothers, advising them that he had made the draft. The language of this letter is as follows: “I made draft on you yesterday to pay out on the Holly loan, $550. Yours truly, C. J. Gillaspie.1” The draft was duly presented to Thorne Brothers, and by them paid. It appears that Gillaspie had paid $116.50 to Holly and had agreed to pay the mortgage against the land for $100 held by one Powers. That instead of paying Powers, he kept the $100 himself, and appropriated it to his own use. Some months later, Thorne Brothers paid the Powers mortgage off. This mortgage was probably payable to one Armbruster, but held by Powers for collection or by assignment.

At the close of the testimony on behalf of the state, counsel for the accused demurred to the evidence, which demurrer is as follows:

“Comes now the defendant and moves the court to instruct the jury to return a verdict for the defendant and find him not guilty of the charge, because the proof is insufficient to establish that he has embezzled-any money of Thorne Brothers in the county of Greer, in the state of Oklahoma.
And for the further reason that the proof shows that the draft that was drawn for $550 upon Thorne Brothers by the defendant was not for money to be paid by him to Holly, as alleged in the information, but was for money that went to Arm-bruster or Judge J. A. Powers to apply on the Armbruster paper, and $146.50 of said $550 draft belonged to the defendant, who had advanced the same on the PTolly loan to said Holly, and that he can not be prosecuted for embezzlement of his own money or of money that he was interested in.
“And for the further reason that he never received any money on said draft, but only a credit in the bank, being the First National Bank of Mangum,-as shown by the proof, and that lie never drew any drafts or checks against said credits or did any act that showed that he appropriated said money, but said money was afterwards charged to his account with said bank by the officers of said bank without any instructions of the defendant so to do.”

The court sustained this demurrer and discharged the defendant from custody on this charge. ' In this we think the trial court was in error. The draft that was drawn by defendant in error was the usual and customary form of sight draft commonly used in the ordinary course of business. It was paid by the money of Thorne Brothers without doubt. The proceeds, a.amount thereof, was applied to the use and benefit of defendant in error and no one else. The fact that defendant in error had advanced to Holly $146.50 did not give him an interest in the proceeds of the draft. He simply had an account against Holly for the advancement and not against Thorne Brothers. It could not be reasonably maintained that the advancement made b' defendant in error to Holly, made as it was, without the know., edge and consent of Thorne Brothers, could' have been collected by defendant in error from Thorne Brothers, if for any reason the loan had not been finally closed by them.

The fact that $400 of the money was to be applied on a mortgage held by Powers makes no difference. The debt held by Powers was a debt of Holly’s, which had to be paid out of the loan in order to relieve the land from incumbrance. The facts disclosed by the record indicate clearly that the defendant in error received these funds in trust, to be paid to Holly, or on Holly’s debts, at his direction, and by agreement with him.

The relationship between defendant in error and Holly, and between defendant in error and Powers, is not material; neither were the advancements made by defendant in error to Holly, or promises he had made to Powers, material. When he made a draft upon Thorne Brothers and received the proceeds therefor, which proceeds were applied to his use and benefit, and were not applied to the purpose for which they were transmitted, he became an embezzler: The fact that he never drew any checks on the Mangurn National Bank after he made the draft on. Thorne Brothers makes no difference. He had an ac-county with that bank, and at the time of the drawing of the draft, according to the proof in the record, was indebted to the said bank, and the proceeds of this draft were applied on said indebtedness or absorbed on an overdraft he then had against his account with it. It is as much embezzlement to fraudulently procure funds in this manner as any other.

We are of opinion that the testimony was not only sufficient to warrant the court in submitting the cause to the jury by proper instructions, but clearly establishes absolute guilt of this charge. The judgment is therefore reversed.

DOYLE and FURMAN, JJ., concur.


text:
    STATE v. W. H. COYLE, et al.

    No. A-2152.
    Opinion Filed July 7, 1915.
    1. APPEAL — Service of Case-made — Extension of Time — Record. A purported order of a trial judge extending the time in which to make and serve a case-made, is .-without force, where the ease-made fails to show affirmatively that such order was made, and where it does not appear that such order was ever filed in the case in the lower court or entered of record in the journal of the court, as required by section 5317. Rev. Laws 1910.
    2. SAME Limitations of Time. An order granting an extension of time to make and serve a ease-made beyond six months from the date of the judgment, limited for the prosecution of proceedings in error, is a nullity.
    3. SAJVCE — Time for Amendments. It was error for the trial judge to settle the case-made without allowing the defendant in error the statutory three days from the expiration of the period limited, from the service of the ease-made, to suggest amendments, though such allowance would have extended settlement beyond the time limited for filing the case in the appellate court.
    4. SAME — Settlement of Case-made — Presence of Defendant. A proceeding in error, brought to this court on a ease-made, wherein it does not appear from the record or otherwise that the defendant was present, either personally or by counsel, at the settlement, or that he suggested amendments thereto, or had the opportunity to do so, or that notice of the time thereof was served or waived, will be dismissed on motion of defendant in error.
    5. SAME — Notice to Defendant. Where it appears from the record that the court in a proceeding had under the provisions of the statute, (section 5246, Rev. Laws 1910), made an order fixing the time but failed to designate the place for settling and signing the case-made, the certificate of the trial judge must show a compliance with such order by showing that it was settled and signed at the time when the defendant was directed to be present.
    6. SAME — Settlement Out of Time — Nullity. An original ease-made settled and signed after the time limited by the statute for filing it in this court, is a nullity, and could not be legally filed here as this court would have no jurisdiction to review it.
    (Syllabus by the Court.)

      Appeal from District Court, Logan County; A. H. Huston, Judge.

    Indictment for conspiracy in restraint of trade. The jury rendered their verdict finding the defendant W. H. Coyle not guilty, and the state appeals on questions reserved.
    Appeal dismissed.

      Chas. West, A tty. Gen., for the State.

      C. G. Horner, Dale & Bierer, and Ames, Chambers, Lowe & Richardson, for the defendant in error.
   DOYLE, P. J.

W. II. Coyle, jointly indicted with several other persons for an alleged conspiracy in restraint of trade, was separately tried and acquitted. The jury rendered their verdict on June 21, 1913. The state appeals on questions reserved, and filed in this court on December 22, 1913, a petition in error with case-made.

This is the second appeal by the state in this case.

See State v. Coyle, et al., 7 Okla. Cr. 50, on re-hearing, 8 Okla. Cr. 686.

The following motion to dismiss has been filed:

“The defendant in error, W. H. Coyle, appearing specially for the purpose of this motion and not otherwise, moves the court to dismiss the appeal herein upon jurisdictional grounds as follows: 1. Because under the law no appeal lies in this case for the reason that the defendant in error on the trial below was acquitted by the verdict of the jury. 2. Because even if any appeal would lie under the statute, the appeal herein was not taken within the time allowed by law. 3. Because in the proceedings in connection with the attempted perfecting of the appeal, substantial rights of the defendant were disregarded. 4. Because the record was not filed in the Criminal Court of Appeals within six months.”

It appears from the record that on June 21, 1913, the day the verdict was rendered, the trial court made an order allowing the state GO days from said date to make and serve a case-made upon the defendant and allowing the defendant ten days thereafter in which to suggest amendments thereto, and providing that the said case-made should be settled and signed upon five days notice by either party. On August 14, 1913, the said district court made an order extending the time in which to make and serve a case-made on the defendant GO daj's in addition to the time already given, and giving the defendant ten days in addition to the time heretofore given to suggest amendments thereto, and requiring said case-made to be settled and signed upon five days notice by either party. Under this order the last day upon which said case-made could have been served was October 19, 1913, the same being the sixtieth day from August 20, 1913, and under the orders as made the defendant had twenty days from said October 19th in which to suggest amendments. On October 22, 1913, there was filed an order purporting to have been made on the 18th day of October, upon the application of the state by Arthur R. Swank, assistant county attorney of Logan county, for an extension of time in which to make and serve a case-made, wherein the state is given 30 days in addition to the time heretofore granted to make and serve a case-made upon the defendant, and the defendant is given ten days in addition to the time heretofore granted to suggest amendments thereto, the said case-made to be settled and signed upon five days notice to either party, and thereafter on November 20, 1913, two days after the expiration of the time heretofore given in which to make and serve a case-made, the court so far as this record shows, without any application in writing therefor, and without any notice to the defendant or his attorney, made an order giving the state 30 days in addition to the time heretofore granted in which to make and serve a case-made and giving the defendant ten days in addition to the time heretofore granted to suggest amendments thereto and requiring that said case be settled and signed on five days notice to either party.

Thereafter on the 37th day of December said district court made the following order:

“It is ordered, adjudged and decreed that the order heretofore made on November 20, 1913, in this cause be and the same is hereby modified in this, the defendant given until December 19, 1913, to suggest amendments, case to be settled and signed at 9 o’clock a. m., December 22, 1913, without notice.”

The first ground of the motion to dismiss the appeal is without merit. Our procedure criminal provides that:

“Appeals to the Criminal Court of Appeals may be taken by the state in the following cases and no other: First. Upon judgment for the defendant on quashing or setting aside an indictment or information. Second. Upon an order of the court arresting the judgment. Third. Upon a question reserved by the state.” (Section 5990, Rev. Laws 1910).

In State v. Frisbee, 8 Okla. Cr. 406, 127 Pac. 1091, it is held:

“The state has the right to prosecute an appeal to this court upon any question of law reserved by the state during the trial of a criminal case. The fact that the defendant may have been acquitted and could not again be tried for the same offense will not in any way interfere with the right of the state to appeal and have the question so reserved settled."

See, also, State v. Rule, ante, 144 Pac. 807; State v. Pollock, 5 Okla. Cr. 26, 113 Pac. 207.

It is next contended:

“That the order purporting to have been made on the 18th day of October which said order was not filed or entered until October 22nd, did not become effective until it was filed or entered of record, which said time October 22nd was three days after the expiration of the time theretofore granted in which to make and serve a case-made and that this order was therefore nugatory and the case-made not having been served on or before October 19, 1913, the same fails and should therefore be stricken from the files. Assuming, however, that the order filed on October 22nd, extending the time 30 days was not nugatory, but was valid, then the time within which the case-made could be made and signed expired on November 18, 1913, and the case-made was not served on or before that date, nor was there any order extending the time for serving the case-made until two days later, to wit, November 20th, at which time an order was entered allowing the state 30 -days in addition to the time already given to make and serve a case-made; that this order was made without any notice to the defendant or his attorneys. That the court was therefore without jurisdiction to make the order.”

The statute relating to extension of time in which to make and serve a case-made (section 5246, Rev. Laws 1910) provides that. '

“The court in which any case has been tried and finally determined may, from time to time make orders extending the time for the making and serving of a case, or the filing of the proceedings in error, for good cause shown, but not beyond the period in which the proceedings in error may be filed in the appellate court; and in case of accident or misfortune which could not reasonably have been avoided by the party appealing, the said court or judge, upon notice to the adverse party, may make such orders after the expiration of the time fixed in the previous order, or time allowed by statute, but this section shall in no manner be construed as affecting the statutes fixing the limit of time within which an appeal or proceeding in error may be begun in the appellate court.”

In the brief for the state the Attorney General states that:

“If the order of November 20, 1913, was made after the time previously allowed to make and serve the case had expired, and without notice to the adverse party, we submit that the error was cured by the order of the court made on December 17, 1913, before the time for taking the appeal had expired, and made upon notice to the adverse party and hearing had in open court, which said order modified the previous order and fixed the time for suggesting amendments to the case and filing of same in this court. Under section 5246, supra, the trial court then had jurisdiction to make such orders and the proceedings fully complied with such statute.”

Assuming that said district court had under section 5246, supra, jurisdiction to make the last order, the case-made nowhere shows that the court’s order, dated December 17th, was ever filed or entered of record in said district court. The aforesaid order therefore, even if it was otherwise regular, had no validity.

See Nelson v. Pittsburg Mortgage Investment Co., 43 Okla. 208.

It will be observed that the said district court gave the defendant until December 19, 1913, to suggest amendments; that is, the court gave the defendant only two days within which to suggest amendments. Defendants in error are allowed by the statute three days (if no further time is granted by the court) after the case-made has been served within which to suggest amendments to it. (Section 5242, Rev. Laws 1910.) Irrespective of the order of the court previously made allowing ten days within which to suggest amendments and irrespective of the question whether the trial court could cut down the time after it had once been given, we think that the trial court was without power to limit the time to suggest amendments to less than the statutory time of three days.

In the case of Reed et al. v. Wolcott, ante, 139 Pac. 318, it was held by the Supreme Court that:

“It was error for the trial judge to settle a case-made without allowing defendants in error the statutory three days from the expiration of the period limited from the service of the case-made to suggest amendments, though such allowance would have extended settlement beyond the time limited for filing the case in the appellate court.”

In our opinion the defendant in error was entitled to the statutory time. It follows that the purported order of December 17th was a nullity.'

We are also of opinion that said purported order of December 17th violated the statute in providing that said case-made could be settled and signed without notice.

In the case of Foral v. Bogle, 146 Pac. 706, it is said:

“The proceeding in error in this case is prosecuted by petition in error and case-made. May 23, 1912, counsel for defendant in error filed a motion to dismiss the same for the reason, among others, that the case-made fails to show that any notice was either served or waived of the time and place of settling the case-made, and that it did not show that the defendant was present at the time same was settled, or that he suggested amendments thereto, or had the opportunity to do so. An inspection of the record shows that it supports the claims made, and under the law there is no alternative but to sustain the motion.
“Under this condition of the record, the case-made must be treated as a nullity, and the cause dismissed. First Nat. Bank of Collinsville v. Daniels, 26 Okla. 383, 108 Pac. 748; School Dist. No. 18 Creek County, v. Griffith et al., 33 Okla. 625, 127 Pac. 258; Flathers v. Flathers, 35 Okla. 342, 130 Pac. 134; Phillips v. Koogler, 35 Okla. 438, 130 Pac. 137; Jones v. Jones, 35 Okla. 453, 130 Pac. 139; Pain et al. v. Wylie et al., 35 Okla. 467, 131 Pac. 172; Moore v. Howard Merc. Co., 40 Okla. 491, 139 Pac. 524.”

Said order provided that: “Case to be settled and signed at 9 o'clock a. m., December 22, 1913, without notice.” No place for the settling and signing was provided in the order. It appears from the certificate of the trial judge to have been done in chambers at Guthrie, Oklahoma, on the 22nd day of December, 1913, but it does not show the hour. In other words, no notice was required or no notice given of the time and place of the settlement, but the purported order of December 17th provided that it should be done at 9 o’clock, and inasmuch as no notice was provided before the settling and signing could be valid, if it could be valid at all without notice, the certificate must show a compliance with the purported previous order by showing that it was settled and signed at 9 o’clock a. m., that being the time designated in the order. The certificate does not show the appearance of the attorney for the defendant. There was no waiver. The certificate shows that no' amendments were suggested, thalj the alleged case-made was submitted to the-court only by the state, and it does not show that it was signed at the time when the defendant was directed to be present. Under this condition of the record the third ground of the motion to dismiss is well taken.

The judgment was rendered on June 21, 1913, the six months time limit for proceedings in error to be commenced in this court expired on December 21, 1913. It will be observed that the order of the trial court provides that the case-made should be settled and signed at 9 o’clock a. m., December 22, 1913, one day beyond the six months allowed by the statute for filing the petition in error and case-made in this court.

In Reed v. Wolcott, supra, it was held by the Supreme Court of Oklahoma:

“An order granting an extension of time to make and serve a case-made beyond six months from the date of the judgment, limited for the prosecution of writs of appeal, is a nullity.”

And see First Nat. Bank v. Valley State Bank, 59 Pac. 335.

We are of the opinion that an , original case-made settled and signed after the time limited by the statute for filing it in this court, is a nullity and could not be legally filed here, as this court would have no jurisdiction to review it. It follows that for the reasons stated the motion to dismiss must be sustained.

FURMAN and ARMSTRONG, JJ., concur.


text:
      Ex parte D. H. CULLENS.
    No. A-1485.
    Opinion Filed July 17, 1915.
    1. PARDONS — Powers of Governor — Lieutenant Governor Acting. Under the constitution, article 6, section 16 (165 William’s) in the absence of the Governor from the state for any purpose or for any period of time, the constitutional functions of his office devolve pro tempore upon the Lieutenant Governor, and a conditional pardon or parole granted by the Lieutenant Governor as acting governor, in the absence of the Governor from the state, which has been duly accepted under the conditions therein prescribed, is valid.
    (Syllabus by the Court.)
    Petition of D. H. Cullens for writ of habeas corpus.

    Writ allowed and petitioner discharged.
    S'. B. Garrett and John Evans, Jr., for petitioner.

      Thacker & Thacker and H. D. Henry, Co. Atty., for respondent.
   PER CURIAM.

Petition for writ of habeas corpus filed on behalf of D. H. Cullens, alleges in substance that he is illegally restrained of his liberty and is unlawfully imprisoned in the county jail of Greer county by the sheriff of said county. It further appears from said petition that petitioner was convicted of a violation of the prohibitory law in the county court of said county upon a trial before the court without a jury, and by said court was sentenced to be confined in the county jail for 4-5 days and to pay a fine of $250. That he attempted to appeal from said judgment and his appeal was dismissed. (Cullens v. State, 6 Okla. Cr. 620.)

That during the absence of the Governor from the state a parole was granted by the Lieutenant Governor as acting Governor. Said parole is in part as follows:

“Whereas, it is recommended to the Governor that a parole be granted the said D. PI. Cullens, by the following persons, who are citizens, county officers and business men of Mangum, Greer county, Oklahoma, where the said D. Ii. Cullens has resided for the past nine years: B. L. Tisinger, mayor of Mangum; J. M. Berryman, police judge; Percy Powers, city attorney of Man-gum; R. A. Smith, city clerk; B. W. Waters, T. E. Slaton, E. B. Auld, city councilmen; J. L. Lyons, city marshall; D. L. Bennett, assistant postmaster; C. W. Winburne, district clerk; M. H. Mills, deputy district clerk; E. W. Reeves, ex-jailor; N. L. Cox, ex-deputy sheriff; H. Matherson, president of Mangum First National Bank; P. A. Jainway, president of the Mangum National Bank; W. P. Ponder, president of the First State Bank; other business men to the number of about fifty; and,
“Whereas, it is made to appear to me that these persons are among the leaders of the prohibition element in Greer county.
“Now, therefore, I, J. J. McAlester, acting Governor of the state of Oklahoma, by virtue of the authority vested in me by law, do hereby grant unto the said D. H. Cullens a parole, upon the following express terms and conditions, to wit.”

Which express terms and conditions petitioner duly accepted by signing the same. The Governor of the state issued an executive order revoking said parole in part as follows:

“Whereas, a revocation of the said parole upon the ground that the said J. J. McAlester was without authority has been requested by the Hon. H. D. Henry, county attorney of Greer county, and,
“Now, therefore, I, Lee Cruce, Governor of the state of Oklahoma, by virtue of the authority vested in me by law, in order that the legal question involved in this case may be determined by the courts of the state, do hereby issue this order of revocation of the parole of the said D. H. Cullins to stand in place of the revocation issued on the 18th day of October, 1911; same to take effect 30 days from the date of this instrument; and I hereby revoke, cancel and annul the parole of the said D. H. Cullens, and hereby order and direct all sheriffs and other police officers of the state of Oklahoma to apprehend the said D. H. Cullens after 30 days from this date, and to then take him into safe custody and conduct him to the sheriff of Greer county; and the said sheriff is hereby directed to receive the said D. H. Cullens and confine him for that portion of his said sentence which was unexpired at the date of the said parole issued him by J. J. McAlester, in accordance with the original judgment and sentence of the said court, a certified copy of which is hereto attached.”

Upon the authority of Ex parte Crump, 10 Okla. Cr. 133, 135 Pac. 428, wherein the precise .question presented was determined, we are of opinion that petitioner is entitled to a discharge from the imprisonment from which he complains, and he is therefore by the judgment of this court discharged therefrom.


author: DOYLE, P. J-

text:
    CHAS. E. PETTY v. STATE.
    No. A-2340.
    Opinion Filed July 17, 1915.
    1. EAPE — Several Acts — -Election by Prosecution. In a prosecution for statutory rape, where evidence is introduced of acts of sexual intercourse between the prosecutrix and the defendant other than the one charged in the information, for the purpose of proving the act charged, it is the duty of the court upon motion of the defendant, made when the state rests its case, to require the state to elect upon which one of the several acts it intends to rely for a conviction.
    (Syllabus by the Court.)

      Appeal from District Court, Tillman County; Frank Mathews, Judge.

    Chas. E. Petty, convicted of statutory rape, appeals.
    Reversed.

      Mounts & Davis, for plaintiff in error.
    E. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J-

The plaintiff in error was convicted upon an information duly filed in the district court of Tillman county, charging in substance that in said county on or about the 10th day of July, 1913, Chas. E. Petty, a male person over the age of eighteen years, did then and there commit the crime of rape by having sexual intercourse with and carnally knowing one Josie May Downs, a female under the age of sixteen years, to wit, the age of fifteen years, and not then and there the wife of the said Chas. E. Petty.

The judgment was rendered on the 28th day of March, 1914, and the term of his imprisonment in the penitentiary was fixed by the court at three years.

To reverse the judgment an appeal was taken by filing in this court on September 24, 1914, a petition in error with case-made.

The prosecutrix testified that the first act of sexual intercourse had with the defendant was on the 5th day of May, 1913, and that the second act was on the 12th day of May, 1913, and the third act was on the 10th day of July, and that on the 7th day of August, 1913, the defendant again had sexual intercourse with her. There was evidence which was undisputed that she was under the age of sixteen years. When the state rested the defendant moved the court to require the state to elect which one of the acts of sexual intercourse testified to by the prosecutrix it relies upon for a conviction. The court overruled the motion and the defendant reserved an exception.

As a witness in his own behalf, the defendant testified that he never at any time had sexual relations with the prosecutrix..

The first assignment of error is “Error of the court in refusing’to require the county attorney to elect on which alleged act of rape the state desired a conviction.”

The Attorney General filed a confession of error wherein he concedes that this ruling of the court constitutes reversible error, citing numerous authorities in support of his position, including the case of Montour v. State, ante, 145 Pac. 811. The pertinent part of the opinion in that case is as follows:

“Of the various errors assigned for a reversal of the judgment, we deem it necessary to consider only the last. It has been held by this court that, in a prosecution for statutory rape, evidence is admissible of sexual acts between the prosecutrix and the defendant prior to and subsequent to the one charged and relied upon for a conviction, to show the relation and familiarity of the parties, and as tending to corroborate the testimony of the prosecutrix as to the particular act relied on for conviction. Morris v. State, 9 Okla. Cr. 241, 131 Pac. 731. However, where evidence of acts of intercourse between the prosecutrix and the defendant other than that relied on for a conviction has beexi. admitted it is the duty of the court upon xnotion of the defendant to require the state to elect upon’ which particular act the state will rely for a conviction, and, in the charge of the court, the jury should be restricted to the consideration of the act the, state 'elects and relies on for a conviction, and the purpose of evidence of acts other than the one relied on should be properly explained therein.
“Here the prosecutrix testified to three separate and distinct offenses, either one of which would support the charge in the information, and the defendant could be tried for either, and separately for each of them. Under the ruling of the court refusing to require the state to elect, and under the charge of the court in this case, a verdict of guilty could have been rendered, although no two jurors were convinced beyond a reasonable doubt, or at all, of the truth of the charge as to any one of these separate offenses. In this class of cases, as well as in any other, the state must rely on a specific offense; and the conviction, if one is had, must depend upon the evidence of that offense alone. Other incidents are important only as tending to prove the one specific offense, for the alleged commission of which the defendant is on trial.
“It follows that the trial court committed prejudicial error in overruling the defendant’s motion to require the state to elect.”

Our code of criminal procedure provides that “The indictment or information must charge but one offense.” (Section 5740, Rev. Laws 1910.)

Where the law permits but one transaction or offense to be set out in the accusation, whether in one count or in more than one, the prosecuting officer will be compelled to choose the transaction on which he will ask for a verdict. 1 Bishop New Crim. Proc. par. 459.

Upon the authority of the Montour case and in the light both of authority and reason, our opinion is that the trial court committed reversible error in overruling the defendant’s motion to require the state to elect. The judgment is therefore reversed, and a new trial ordered.

FURMAN and ARMSTRONG, JJ., concur.