text:
    GREGORY LORDI v. STATE.
    No. A-7210.
    Opinion Filed April 19, 1930.
    (287 Pac. 1083.)

      Joe A. Brown and Monk & McSherry, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Pittsburg county of the crime of receiving stolen property and sentenced to serve a term of six months in the state penitentiary, and to pay a fine of $250.

The record discloses that the Choctaw Portland Cement Company had gone into bankruptcy, and that one Blanton Woodward was the custodian of the physical properties of the company located in Pittsburg county. During the month of March, 1928, considerable property was stolen from the premises of the cement company and sold to this defendant, who was a junk dealer in the town of Hartshorne. In this case the defendant is charged with receiving copper wire of a value in excess of $20 from Esau Wolf and Joe Galoski. The facts and circumstances in evidence show that Wolf and Galoski stole this copper wire from the plant of the cement company above referred to and took it to Hartshorne, where it was bought by this defendant for |16, he knowing that the property had been stolen by these parties at the time he received it. It further appears that the defendant had recently bought other stolen property from Wolf and Galoski and one Fred Hender-shot, and that he knew each time he bought the property that it had been stolen by these parties.

The defendant assigns several grounds for the reversal of this judgment, the first of which is that the court erred in permitting the state to introduce evidence of prior purchases of babbitt, brass, and valves, bought by this defendant from Fred Hendershot. Defendant claimed that there was no proof that these articles were stolen goods or had any connection with the wire alleged to have been received by this defendant from Wolf and Galoski, as charged in the information. At the time he was' arrested defendant was taken to the office of the county attorney and there signed a statement which amounts to an admission of his guilt of this offense. In this signed statement the defendant admitted that he had bought a large amount of junk from Hendershot, including babbitt, brass valves, and property of that character, that finally he gave these parties a key to his place of business and they brought the stuff in the night-time, and defendant said he was suspicious because they brought it there in the night, said that it was getting too strong for him because he knew it was coming from the cement plant. This statement, when properly identified, was introduced in evidence by the state.

The general rule of evidence in instances of this kind is that proof may be made of the buying and receiving of other stolen property by the defendant both prior and subsequent to the time alleged that he received the stolen property charged against him, if the reception of the other stolen property is not too remote in point of time, in order to show guilty knowledge and intent in the reception of stolen property for which he is being tried. Wharton’s Criminal Law, 11 Ed. 1448-49 (V. 2) ; 16 C. J. Page 610; Ruling Case Law, vol. 17, p. 88.

This evidence may also be received to show a plan or scheme or system by which defendant was generally receiving stolen property in the conduct of his business, for the purpose of establishing probable guilty knowledge that the property in question had been stolen. State v. Rule, 11 Okla. Cr. 237, 144 Pac. 807; Jackson v. State, 42 Okla. Cr. 86, 274 Pac. 696; Zeligson v. State, 43 Okla. Cr. 24, 276 Pac. 791.

The record discloses a system or scheme on the part of this defendant to purchase stolen property in a wholesale way; the character of the property and the conditon of the same at the time defendant purchased it should have led any person who was sufficiently on guard against buying stolen property to believe that property of this character, in the condition in which defendant purchased it, would not be for sale, except by some person who had stolen it. The admissions of the defendant and the facts and circumstances proved by the state laid a sufficient predicate to permit the state to introduce in evidence instances of receiving stolen property by this defendant from persons other than those charged in the information about the time that he received this stolen property.

The defendant next contends that the trial court erred in giving instruction No. 5. When this instruction was prepared, the learned trial court no doubt had in mind the cases of Webb v. State, 19 Okla. Cr. 450, 200 Pac. 719, and Weaver v. State, 30 Okla. Cr. 309, 235 Pac. 635, and in the preparation of the instruction sought to correctly advise the jury of the quantum of proof required in cases of this kind. This instruction fairly states the law as applied to the facts in the case.

It is next contended that the trial court erred in. overruling the demurrer to the evidence. In this connection it is contended that the failure of the state to introduce Exhibits A and B in evidence was a confession that the state was unable to show that the wire, upon which it pitched its whole case, had ever been bought, received, had, or possessed by the defendant. Exhibits A and B were two gunny sacks of wire that were delivered to the sheriff by one Gladstein, a junk dealer in McAlester, who had purchased the same from the defendant.

When the state offered these exhibits in evidence, the court, out of the abundance of its precaution, sustained the objection of the defendant and refused to permit the state to introduce these exhibits in evidence. The exhibits were sufficiently identified, and a proper predicate had been laid for their introduction, and the error committed by the court was in favor of and not against the defendant.. These exhibits were not necessary to the conviction, for the oral testimony of witnesses independent of and without the introduction of the exhibits showed conclusively that the defendant bought and received certain stolen cop-pér wire from Wolf and Galoski as charged in the information, knowing the same to have been stolen at the time he received it. Whether exhibits marked A and B were this particular property or not was not essential to the defendant’s conviction, provided there was other proof of the material elements of the offense. The corpus delicti having been properly established, it was not necessary that the state should introduce these exhibits to make its case.

The defendant next contends that the trial court erred in refusing to give certain requested instructions. An examination of these instructions discloses that they did not fairly state the law as applicable to the facts in the case, and were therefore properly refused. Instruction No. 2 was to the effect that the actual title of the property must be vested in the person named in the information. Under the holdings of this court the actual condition of the legal title is immaterial to the thief. Little v. State, 21 Okla. Cr. 1, 204 Pac. 305; Dickson v. State, 28 Okla. Cr. 378, 231 Pac. 315; Carson v. State, 30 Okla. Cr. 438, 236 Pac. 627; Zeligson v. State, 42 Okla. Cr. 24, 276 Pac. 791. An examination of the instructions given by the court on its own motion fairly state the law of the case and were sufficient.

The defendant previous to the trial had voluntarily made admissions sufficient to establish his guilt, and these admissions were in evidence. Apparently he was using his place of business as a fence for known thieves who were stealing property in that community. The nature of the property received from Wolf and Galoski and the manner in which defendant received it are circumstances sufficient of themselves to show that he must have had guilty knowledge of the fact that the goods he was receiving from them were stolen goods. His entire conduct indicates a guilty knowledge and a perfect willingness to aid and abet these thieves in the disposition of this property.

The punishment given the defendant was extremely light, considering the magnitude and extent of his criminal operations. The state having established the guilt of the defendant beyond a reasonable doubt, and the errors of law complained of not being fundamental, the cause is affirmed.

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


source: Caselaw Access Project

author: DAVENPORT, J.

license: Public Domain

text:
    FRANK YOUNG v. STATE.
    No. A-7232.
    Opinion Filed April 19, 1930.
    (287 Pac. 1088.)
    W. R. Withington, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was by information charged jointly with A1 Edwards of the crime of burglary in the second degree, was tried separately, convicted, and sentenced to imprisonment in the state penitentiary for a period of five years, and the case is here on appeal.

The testimony on behalf of the state, in substance, is • that A1 Edwards and the defendant were charged with going to the home of a negro woman, Verna Stewart, living in a servants’ house at 205 West Seventeenth street in Oklahoma City, on Saturday night, March 10, 1928, between the hours of 8 and 11 o’clock, and taking away certain property consisting of ladies’ dresses and other wearing apparel. A1 Edwards, who was jointly charged with the defendants, took the police officer to various places in the east part of Oklahoma City, known as the negro section, and located several dresses that had been taken from tlie Verna Stewart home. Mary Smith, a negro woman who was running, a rooming house at 701 East First street, Oklahoma City, stated the defendant Frank Young and A1 Edwards came to her rooming house carrying a woman’s large hat box; the defendant■ and A1 Edwards occupied the same room Friday night and came back Saturday night; on Sunday some of the clothes taken from the Stewart woman were sold to various negro women by A1 Edwards. Edwards in his testimony claims the defendant Young gave him the clothes and told him to sell them; that they belonged to his wife. The defendant Young testified that he knew nothing about the property, and that he at no time had possession of the hat box that was taken from the colored woman by the name of Ar thedia Fisher.

The testimony on behalf of the state tends to show that when Young was arrested he had in his possession a pair of tortoise shell eyeglasses that belonged to the Fisher woman, whose house had been broken into on Friday night. Mary Smith, the woman at whose home the defendants spent the night Friday night, testified that the defendant Young had the hat box; that the defendants did not pay for their room the next morning, but left the hat box with her for her pay; that the defendant Young left the house that morning and did not come back until night; that Young worked for her during Saturday night.

The testimony of the Stewart woman shoAvs that her house was robbed between 8 and 11 o’clock on Saturday night, March 10, 1928, and the testimony of Mary Smith shows that the defendant Edwards returned to her house about 11 o’clock Saturday night; that Edwards came in with a bundle and put it in the hat box. Edwards says he did not see Young during the day or evening of March 10th, until about 11 o’clock, when he returned to Mary Smith’s home. Young denies having the hat box when he came to her home on Friday night to rent a room.

The testimony further shows that the defendants did not know each other until the evening of March 9, 1928, when they met in some shop or restaurant near Mary Smith’s and decided to go down to Mary Smith’s and get a room together. The defendant Edwards claims to have known Mary Smith in Shawnee. There is no dispute in the record that the defendants went to Mary Smith’s home together, and that they had the hat box shown to have been stolen from a colored woman by the name of Arthedia Fisher. When the defendant Young was arrested, the eyeglasses of the Fisher woman were found in his possession. His testimony is that he bought the eyeglasses from a man while the defendant was in Mr. Gilstrap’s office in the Legion headquarters.

Mary Smith testified that the defendant Young did not come back for the hat box'or say anything about it, that he did not offer to sell her the clothes, and that she did not try any of them on. The defendant Edwards testified that she did try oh one of the dresses. The circumstances surrounding these defendants, and the fact that they were at Mary Smith’s home Friday night and back again Saturday night, tends to show they were operating-together.

The defendant in this case alleges several errors as grounds for reversal of this case. He insists that the court erred in overruling his motion for a new trial, that the verdict of the jury is contrary to the law and not supported by the evidence, and that the court erred in refusing to sustain the defendant’s motion to advise the jury to acquit him. In his brief in arguing these questions the defendant insists that A1 Edwards, who testified in the case that the defendant gave him the clothing, to sell, was an accomplice and therefore he was not sufficiently corroborated by the testimony in the record.

The contention of the defendant would be true if the facts sustained his contention, but here we find the condition unusual; we find on Friday evening both Edwards and Young at a rooming house, getting a room and spending the night together; that when they came in they brought a woman’s hat box and left it with Mary Smith as security for their room rent. They both go away the next morning. Edwards claims that he did not see the defendant until he returned to the Smith rooming house on March 10, 1928; that the bundle he brought and put in the hat box had been given him by the defendant Young. Young returns to the Smith house, and he and the defendant get together again late in the evening of March 10th, and remain during the night. They again separate, and, when the defendant was arrested, he was in possession of recently stolen property of the colored woman Arthedia Fisher. We do not think the testimony in this case comes within the authorities cited by the defendant. Every circumstance in the case tends to connect the defendant Young with the burglary of the Stewart woman’s home.

The defendant in this case had a fair and impartial trial. The court in its instructions fairly stated the law to the jury. It is unusual, for strangers to get together and go to a rooming house together. The testimony in this case clearly shows that these two defendants were operating together and that the jury had before it sufficient evidence to sustain a verdict of guilty.

Other errors are urged by the defendant which do not possess sufficient merit to reverse this case.

The judgment and sentence is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


author: CHAPPELL, J.

text:
    JOHNNIE JAMERSON v. STATE.
    No. A-7544.
    Opinion Filed April 19, 1930.
    (287 Pac. 775.)
    Kienzle & Hickok, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, ivas convicted in the superior court of Pottawatomie county of the crime of burglary in the sec, ond degree, and ivas sentenced to serve a term of five years-imprisonment in the state penitentiary.

The information charged that the defendant on or about the 17th of February, 1929, burglarized the store building of Hillerman & Co. at Sacred Heart, in Po-tta-Avatomie county, and stole from said store certain quantities of groceries, dry goods, cigarettes, and other merchandise. A search warrant was procured the next day for the premises of Roy Booth who operated a roadhouse near the toAvn of Maud in said county. A large quantity of this property taken in the burglary was discovered at Booth’s place of business, and Booth, this defendant, and several other people found at Booth’s house and around his premises were arrested and placed in jail. Booth gave bond for his appearance, and about a week or ten days thereafter came to Tecumseh and wanted to talk to the defendant. Defendant was brought out of the jail to the county attorney’s office, and there Booth told him that there were several people in jail that defendant could help out if he would tell the truth about this' burglary. Defendant was warned by the county attorney that anything he might say to Booth could be used in evidence against him on his trial. Thereupon defendant confessed his guilt and stated that he had burglarized the store of Hillerman & Co. and had brought the stolen goods to Booth’s place.

■ It is only necessary to decide one question in this case, and that is: “Did the trial court err to the prejudice of this defendant in refusing to excuse the jury to determine whether or not the confession testified to by the sheriff as above set out was voluntarily made?” Counsel for defendant contend that the failure of the trial court to excuse the jury and hear evidence as to the voluntary nature of this confession was reversible error, and entitles the defendant to have the judgment set aside and the cause remanded for another trial.

The record discloses that, when. Mr. Stewart, the sheriff of Pottawatomie county, was called as a witness for the state, he was asked if he was present in the county attorney’s office when the defendant made certain statement to Booth, and he testified that he was present. The attorney for the défendant then objected on the ground that such testimony was incompetent, irrelevant, and immaterial, but at that time made no request that the court excuse the jury on the ground that the witness was about to testify to an alleged confession of the defendant, and that the evidence surrounding such transaction would show that such alleged confession was involuntarily made. The trial court ruled that the evidence might be competent, and that he would hear the witness’ testimony, and the witness then testified that, before the defendant said anything to Booth, the assistant county attorney w'arned him that anything he might say could be used in evidence against him, that then Booth told the defendant that there were certain people in jail that he might help out if he would tell the truth about this burglary, and that the defendant thereupon, and after having been warmed, confessed that he burglarized the store of Hillerman & Co., as charged in the information, and took the stolen property to Booth’s place where it was found. It was not until after this testimony had been given under the circumstances above disclosed that counsel for the defendant requested that the trial court excuse the jury, and that evidence be heard in the absence of the jury to determine the alleged involuntary nature of this confession, but the trial court then ruled that he was satisfied from what he had already heard that the confession was voluntary and would so hold, and that, if counsel for the defendant desired to cross-examine the witness to determine whether or not he was telling the truth about it, he might do so.

■ The purpose of having the jury excused is to enable the trial court to determine in the first instance whether or not as a matter of law an alleged confession was voluntarily made. This court has uniformly held that prima facie any confession is admissible in evidence; and, where its admissibility is challenged by the defendant, the burden is on him to show that it was procured by such means or under such circumstances as to render it inadmissible, unless the evidence on the part of the state tends to show that fact. Kirk v. Territory, 10 Okla. Cr. 46, 60 Pac. 797; Berry v. State, 4 Okla. Cr. 202, 111 Pac. 676, 31 L. R. A. (N. S.) 849; Mays v. State, 19 Okla. Cr. 102, 197 Pac. 1064; Guthery v. State, 24 Okla. Cr. 183, 216 Pac. 948.

In the case at bar the evidence on the part of the state did not tend to show that the confession was involuntary. The court had heard the state’s evidence and was satisfied therefrom that the confession was voluntary. Counsel for defendant did not make his request that the evidence be heard in the absence of the jury until after the evidence had been received, and did not indicate that he had any evidence to- show that the confession was not voluntary, but merely asked the court to excuse the jury for the purpose of hearing this question in the absence of the jury. Where timely and proper objections are made to the admission of a confession on the ground that the same was not voluntary or was obtained by promise of immunity or reward, the court should excuse the jury and hear evidence for the purpose of determining as a matter of law whether the confession was obtained in such a manner as to render it inadmissible. The evidence showing the voluntary nature of the confession and the confession itself having been introduced in evidence before the request to excuse the jury was made, it was not reversible error for the court to refuse to excuse the jury. If the trial judge had excused the jury and heard the testimony as to the alleged involuntary nature of the defendant’s confession of guilt, he no doubt would have reached the same conclusion that he did reach, on the evidence before him, because this evidence was amply sufficient to entitle the confession to be admitted in evidence as a matter of sound discretion on the part of the trial court.

The defendant did not take the stand and made no denial of the truthfulness of the confession, nor of its voluntary nature, and seeks no>w to reverse this case upon the mere technical irregularity, if any, of the trial court in refusing to excuse the jury after the evidence of the confession had been admitted without such request.

It is apparent from' the entire record that the defendant’s substantial rights were in no wise prejudiced by the error complained of. The evidence of the defendant’s guilt is overwhelming, and, since the error complained of is nothing more than an irregularity, the cause is affirmed.

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


text:
    GREEN BRUCE v. STATE.
    No. A-7237.
    Opinion Filed April 19, 1930.
    (287 Pac. 770.)
    B. B. Wheeler and Calvin Stewart, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was by information jointly charged with C. W. Wise, with the crime of uttering and publishing a forged instrument, with the unlawful, fraudulent, and-felonious intent then and there to cheat and defraud Herbert House. The defendant was convicted and sentenced to serve a term in the state penitentiary for two years, from which sentence the defendant has appealed to this court.

H. G-. House, in substance, testified he was running the Nash Clothing Store in Muskogee, on the 7th day of January, 1928; that C. W. Wise came into his store and wanted to purchase some clothing and presented a check purporting to be signed by P. E. Heckman; that he called Mr. Heckman over the phone and learned that the check was a forgery. The county attorney then asked Mr. House the following questions and he gave the following answers:

“Q. I hand you an instrument. Did you ever see that before? A. Yes, sir.
“Q. When was the first time you ever saw it? A. When he presented it to me that evening.
“Q. Wise presented it to you? A. Yes, sir.
“Q. Did you determine whether or not the check was good? A. I telephoned Mr. Heckman; he said the check was a forgery and for me to hold the fellow until he called the officer.”

Walter Pitts testified, in substance, that on the night of January 7, 1928, he was called to the clothing store and arrested 0. W. Wise; as he went to the store he saw two colored men outside a short distance away; they were not together and he did not know who they were; he could not say one of them was the defendant; he had seen the defendant around there four or five years.

T. J. Elliott testified on behalf of the state, in substance, that on the night of January 7, 1928, some boy whose name he did not know came to his place of business. C. W. Wise was then brought into the courtroom, and the witness identified him as being the boy that came to his place of business and wanted to buy some clothing and shoes; he presented a check for $200 purported to be-signed by P. E. Heckman, drawn on some oil company by P. E. Heckman, secretary-treasurer. Witness was then asked the following questions:

“Q. Is that the same form of the check that was presented to you? A. Yes, sir; but that is not the check.
“The check that was presented to me was drawn for $200.00; I called Mr. Heckman and he said he had not given the check. I think the clerk still had the check in his hand at the time I called Mr. Heckman. The clerk handed the boy the check and he said Mr. Heckman did give me the check, and he said ‘he is right here, and I will go get him;’ he went out but he did not come back; I do not know if he met anyone on the outside.”

On cross-examination witness stated he had not seen Green Bruce, the defendant, that night; that he did not know Green Bruce in connection with the boy presenting the check to 'him.

Frankie Lewis, called as a witness, testified that on the 6th of January, 1928, he saw Green Bruce in front of Mense’s grocery store; there was another colored boy "with him. On cross-examination Frankie Lewis stated:

“I can’t place the date but it was on Friday night, I started to a show and met him; I don’t remember what month it was. Green Bruce was standing, in front of the store with two checks in his hands; I asked him if he was looking for my cousin and he said he was; my cousin is C. W. Wise; this was about seven-thirty or a quarter of eight in the evening; when I left home I left O. W. Wise there; I did not see Green Bruce and 0. W. Wise together at all the night of January 6th, 1928; when I saw Green Bruce in front of the store I have mentioned it was dark; I was standing up close to him; the papers he had in his hands looked like checks to me.”

On redirect examination witness stated that the papers he saw in Green Bruce’s hands “I believe were pink; I ami kind-a. color-blind.” 'On cross-examination he stated:

“Sometimes I can tell one color from another. I believe they were pink but I am not sure.”

P. E. Heckman testified that he had lived in Muskogee since 1902; he had known the defendant ten or fifteen years; “the defendant has had occasion to be in my office;” that “on January 6th, 1928, I ‘had in my office Princess Helen Oil Company blank checks; I found out on the morning of the 7th of January, 1928, that some of these checks had been taken out.” He was then asked anil answered the following questions:

“Q. I hand you a check, an instrument, and ask you to state to' the court and the jury, whether you know what it is? A. Commercial National Bank, a Princess Helen Oil Company check for $á0. It purports to bear my signature but it is not my signature. I did not write or authorize anyone to write it.
“Mr. Oldman: Now, Mr. Heckman, I will ask you, I offer this in evidence as State Exhibit One.
“The Court: Admitted.
“I was out home on the night of the 7th, and some one from the Elliott Clothing Store called me with reference to the check; in about fifteen minutes I was called by the Nash Clothing Store.” On cross-examination witness stated he had done business with the defendant and had known him for about ten years, but that he had not seen the defendant either on the 6th or 7th of January, 1928. “The Princess Helen Oil Company had been out of business nine or ten years; these were old checks that were left after the company went out of business; they were in an old desk, yes, sir.”

Angelo Mense testified he was the owner of a grocery store in Muskogee; on the night of the 6th of January, 1928, he saw Green Bruce, the defendant, in his store; “there was a colored boy with him; the boy that worked for me called me and asked me about the check and I came into the store and he handed me the check and wanted to know if I would cash it; I asked Green where it came from and he said the boy had been working for this company, I believe it Avas an oil company, and they Avanted to buy some groceries; it Avas supposed to be written by P. E. Heckman; the amount Avas for $25.; it Avas a Princess Helen Oil Company check.”

“Q. Was it the same kind of a blank (exhibits check)? A. Yes, that is the one. That is the very one looks like, this is for $40. instead of $25.; if this is not the check that was presented to me it looks like it.”

The defendant stated that “if I cashed the check he would buy as much as ten dollars of groceries.” On cross-examination the witness stated this took place about the first Aveelc in January; it was between 5:30 and 6 o’clock in the evening.

“Q. You state at least this check was for $25, that is your memory of it? A. I suppose it was that, I think it was that.
“Q. Your best memory is that the check presented on the 6th day of January was for $25? A. Yes, sir; I think it was $25.
“By the Court: That is the one he is showing the jury, the check for $40.
“A. Yes, sir.”

C. W. Wise was then called as a witness on behalf of the state and testified as to where he was living, and stated on the 7th day of January he was at home; “a fellow by the name of Green Bruce came to my house; I did not hardly know him; I had been with him; a friend of mine with me knew him well; I had been in Muskogee something like a week; I was with the defendant Green Bruce on the night of the 7th of January; he came to my house and said he had a job for me; we started and he kept eying my clothes and said, ‘I think you are most too dirty for the job I have for you to do;’ I returned home and changed my clothes; as we were going down town he pulled out the cheek, and as we were going along he said, ‘I have two checks, I want you to get some clothes;’ he first asked me if I wanted some clothes; he said to get some and bring him the rest of the money; Green Bruce said he had a lady fix the check; before going to the Elliott store he said, ‘You take this check and go in there and get you a suit of clothes, just tell them you sold some land or made a deal;’ he said ‘if we get into trouble we have some pretty smart lawyers here in town to get us out of trouble’; I went in and told them I had the check I wanted cashed, and he looked at the check and said he knew Mr. Heckman, and he called Mr. Heckman and got an answer that he did not knoAV anything about the check; a fellow in the store asked me where I got the check and I told him a man out there gave it to me, I did not know his name, and I started out to- find him; I knew the defendánt at the time; I went out and the defendant was about forty steps north toward Kress’ store; I told him they turned the check down, it was no good, and he said, ‘I have another one;’ I told him I did not want to have anything to do with it; he said, ‘Yes, come on and I will show you what to do;’ he told me if they asked anything about the check to tell them I had some dealings with some oil company.”

“Q. I hand you this check and ask you when was the first time you saw it? A. The first time I ever saw that check was the same Saturday night.”

On cross-examination witness stated:

“I was never brought to court on this charge. No, sir, I have never been tried upon a charge of passing this, never been arrested or even in jail; I was arrested because of this check deal, that case has been disposed of, I plead guilty. I never knew anything, about the checks, never saw any before then; I thought the check was all right; the check I took to the Elliott Clothing Store was not as small as that, I don’t remember how much; I had seen the defendant three or four times before that night; I had gone around town with him; they told me if I would plead guilty and be sentenced to five years in the penitentiary they would recommend to the court that I be paroled, that is the reason I plead guilty. I was paroled by the court.
“The Court: Paroled by the court during good behavior.”

The defendant testified in his own behalf as follows:

“I live at 704 Freemont; have lived in Muskogee twenty years; I got acquainted with C. W. Wise just before Christmas; two boys from Eufaula told me a couple of weeks before Christmas that if I would get them a job they would come;” that “there was a boy from Eufaula had some land he wanted to' sell; I got them a job; about two weeks later Wise came up here and represented he had 160 acres in Creek county, and I went with him to several offices to' try to' find a buyer; I went to the Department and the Clerk checked up the land, and when the lady checked it thoroughly, she told me I had better leave that boy alone, he didn’t have any land; and he said ‘I have some land and I can go home and get the deed;’ on the night of January 6th, 1928, I was at Mr. Watson’s home; he lived at 9th and Market; I went there about five o’clock in the afternoon; Mr. D. called me from Tulsa and said Ada L-had some land out in Muskogee, and I got in touch with Mr. Watson that day; while I was there George Bryer came over; he is a white man; I stayed there until about eight-thirty and then went to 704 Free-mont where I live; my family consists' of my wife, and two children; on Saturday evening I went to see Hattie Smith at 11th and Floyd Sandford went with me; I came home and ate lunch and went to the shoe shop to get a pair of shoes my wife had at the shop; I then went to Moore’s public market at Second street and stayed there until about eight-thirty or a quarter till nine; I never saw O. W. Wise from the 4th day of January, 1928, until the day of the preliminary hearing; I was not with Wise that night at any time; was not with him at the Elliott Store or the Nash Store; the first time I ever heard of these checks was the day of the preliminary hearing; I was not up to the store on Altamont Street on January 6, 1928; I have known Mr. P. E. Heckman about fifteen years; I had not been in his office for about a month; I never did get any blank checks out of his office.”

On cross-examination the county attorney went into the question as to how long it had been since the defendant had a permanent job; the defendant answered he had been making a living trading around in land deals. “C. W. Wise told me he was 21 years old; I went with him several times to try to sell a tract of 160 acres of land he claimed to own; I did not tell him to claim to own the land to land agents; I guess the description on the check is a land description; I don’t know anything about who put the description on there; I know P. E. Heckman; I have been to his office; I tried to sell my land to Mr. Kenny; trading in land is all I have been doing recently; this boy told me he had the land and I did not know any better; I was arrested on the following morning, after this boy tried to pass the check; my wife has land that now has three oil 'wells on it.”

“The Court: Bruce, you can go to a map and locate land? A. No, sir, I ain’t got that far, I read and write. In these land deals I always let the buyer find out about that. I went with Wise to the Indian Agency and they told me he did not have any land.”
“I was not out on Altamont Street on Friday night, no, sir, I was out talking to Walter Watson on 9th and Market, Wise said he was only a half blood and he could not sell it all; when I was trying to help him sell the land I would get a commission; I never found he had any land; I did not see the other two parties that night; I had seen these two friends of Wise about a week before the 7th day of January, 1928.”

Thomas Kenny, called by the defendant, testified, in substance, as to living in Muskogee; his occupation was locomotive engineer of the Midland Valley; that he knew Green Bruce; on January 7th, he saw the defendant at 219 South Second street; “I fix the time as I had just come in off my run; I stayed there with the defendant about an hour, then went to 231 South Second street to Moore’s Grocery, public market, it was run by a white man; Green Bruce left me about nine o’clock that night, he said he had to go to the shoe shop and ask what time it was, and I looked at my watch and it was about nine; I did not see any more of him until he got out of jail.”

On cross-examination witness stated he was on a -deal with Green Bruce; he had made deals with him; “some time after Green Bruce got out of jail he came and talked with me about the case, and about me seeing him on the night of the alleged .offense.”

“Juror: How far is that cafe, how far is that cafe located? A. 219 South Second Street.
“Q. How far is that from Elliotts store? A. I judge that it is about two blocks.
“Q. His store is on South Second? Yes, sir.”

Witness Kenny further stated “he was not trying to sell me any land; it was a royalty deal on a piece of land.”

S. L. Berry testified on behalf of the defendant and stated he lived at 304 South Second street; that he was running the Tennessee Shoe Shop; the defendant Green Bruce came into- his shop to get a pair of shoes that was left thére-for repair; “he came in about six-thirty or seven the first time, the last time about eight-thirty or nine o’clock.” On cross-examination he was asked:

“Q. When did the defendant first come to you and talk to you about the affair, and tell about being in the shop. A. He did not tell me what night he was in there because I knew what night it was; I knew it was Saturday night.”

Walter Watson testified he lived at 404 North Ninth street; that Green Bruce came to his house the night of January 6th, about 5 o’clock or a little before; “he was trying to see the parties to- sell the royalty of Betty London, southeast of Beggs. George Fryer Avas there or come there.”

“The Court: Uncle George Fryer? A. That’s the gentleman, Judge.”
“Bruce stayed there until about eight-thirty, or about nine.” J. E. Moore testified he ran a grocery at 207 South Second street; that he knew the defendant; the defendant traded with him; he saw Mr. Kenny and Green Bruce in his store not long ago; “it Avas on Saturday night, after dark, I don’t kno-AV what time; the defendant bought some groceries and left them on the counter and went out some place; he and Mr..Kenny stayed there and talked for some time; I could not say Avhat time it was.”

J. B. Wright testified that the boy came to his office AA-ith Green Bruce and wanted to sell a piece of land he claimed to own; “the defendant Green Bruce has been there several times.”

Tlie foregoing is, in substance, the testimony introduced in the case.

Defendant has assigned eleven errors alleged to have been committed by the trial, court. We will consider the 6, 7, 8, 9, and 11 together, as they each relate to the sufficiency of the evidence to sustain the verdict. The information charges the defendant Green Bruce and C. W. Wise with “the crime of forgery in manner and form as follows, to wit: That the said C. W. Wise and Green Bruce did then and there knowingly, willfully, wrongfully and fraudulently and feloniously utter and publish as true to one Herbert House a certain forged fictitious and counterfeited check in ivords and figures as follows, to wit:

“Commercial National Bank in Muskogee, Oklahoma.
“Muskogee, Oklahoma, Jan. 7, 1928.
“Pay to the order of Willie Wilson $40.00 Forty and no/100 Dollars
“[Signed] Princess Helen Oil Company of Muskogee
“By P. E. Heckman.”

The defendant contends that the state failed to prove the material allegations in the information, and that there is a total failure of proof that the defendant was ever in possession of or had any knowledge that a check of the description set out in the information was written. An amendment to the record has been filed which is agreed to by the county attorney and the attorney for the defendant, that when reference was' made in the record to Exhibit “One” it should have been Exhibit “A” that was introduced in the trial of the case, as there was no Exhibit “One” introduced or considered in the trial. Exhibit “A” is as follows:

“Princess Helen Oil Company. No.............
“Muskogee, Okla., Jan. 7, 1928.
“Pay to the order of Willie Wilson $40.00 Exactly Forty dollars and no cents, exactly. Forty Dollars and No/100 Dollars. To the Commercial National Bank, Muskogee, Oklahoma 49 — 2 Princess Helen Oil Co. By: P. E. Heckman, Secretary-Treasurer. SW NW 34 — 15—10. 40 sale.”

A comparison of the check described in the information and the check described as state’s Exhibit “A” clearly shows they are not one and the same, the language in them are not the same and the signatures are not the same, and from the language of the checks set forth in the information and state’s Exhibit “A” they do not appear to be drawn on the same bank.

After a careful consideration of the .entire record we hold that the evidence of the state is wholly insufficient to sustain the allegations in the information on account of the variance in the proof and allegations in the information. Other errors are assigned, but in the view we take of this record it is not necessary to consider them.

The case is reversed and remanded.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    MABEL LASSITER v. STATE.
    No. A-7240.
    Opinion Filed April 19, 1930.
    (287 Pac. 756.)

      H. E. Chandler, A. C. Sinclair, and Pat Leone, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was hy information charged jointly with John Doe, Robert Doe, and Bill Doe, whose names were unknown to the pleader, was tried separately and convicted, and sentenced to serve a term of five years in the state penitentiary at McAlester. From which sentence the defendant has appealed to this court.

The testimony on behalf of the state is in substance that the defendant Mabel Lassiter and Gordon Lassiter, her former husband, and two other men left the city of Tulsa on the 25th day of February, 1928, in a car, and drove through, to Kansas City; that on the 26th they left Kansas City and started back to' Tulsa. Shortly before reaching the town of Miami, in Ottawa county, Okla., they had some car trouble and came upon a Mr. Stoddard, and compelled him to take them in his car and drive on to Miami. When they got to Miami, they compelled him to drive on until they came to a filling station on highway 66, south and west of the city of Miami, where they stopped ostensibly to get a casing fixed. While Mr. Fletcher, who was running the filling station, was helping, to fix the casing, two of the men threw their guns on him and robbed him of about f 60 in money, and then robbed other parties who were visiting the family of Mr. Fletcher. As the casing was not fixed on the Stoddard car, they took a car of Floyd Dushane and started on west on highway 66. After they had driven about two miles, the car went dead, they got out of the car and took their suitcases out of the car and put them in a draw a short distance from the road, and walked to Mr. Harper’s place, where they got him up and told him the defendant in this case was sick, and they wanted him to drive her to a doctor at Afton. Mr. Harper suggested it was a shorter distance to Miami, where there was a hospital, but the defendant and the other parties insisted they wanted to go to Afton. After they had started in Mr. Harper’s car, they told him to keep on driving, and held their guns on Mr. Harper and compelled him to drive. Later they made him get in the rear seat and let one of the men with the defendant drive the car. They drove through the different towns, and, when they got to Claremore, the defendant suggested they leave highway 66 and go a different road into Tulsa, which they did.

It is the defendant’s contention that, when they left Tulsa the night before the robbery of the filling station the following night in Ottawa county, the men compelled the defendant to get ready and go with them, and, when she got out of the car they were driving and got in the Stoddard car, she had nothing to do with anything the men that were with her did, and that, when they reached the filling station where Mr. Fletcher and other parties' were robbed, she took no part in the robbery. No explanation is given by the defendant as to why she continued to travel with Gordon Lassiter and the two> men, nor is there any explanation given why she did not leave them. She was with them all the time at the filling station while Mr. Flutcher was being robbed, and also with them when they went to the Harper home, and then rode with them in the Harper car into Tulsa, and is the one who suggested they leave highway 66 at Olaremore and go into Tulsa from another road. This is in substance the testimony.

Twelve errors are assigned by the defendant alleged to have been committed by the trial court. The tenth assignment is that the court erred in overruling defendant’s motion for a new trial. This assignment substantially covers all the questions discussed, by the defendant in her brief. The defendant contends that the evidence is insufficient to malee out a case against her; that the court erred in not directing the jury to return a verdict in favor of the defendant. With this contention we cannot agree. The testimony conclusively shows that the defendant was with Gordon Lassiter and the other men all the way from Tulsa up to and including the time they returned to Tulsa; that, when they changed from the car they were driving to the Stoddard car, she got out voluntarily and got into the Stoddard car; that, when they reached the Fletcher filling station, the Stoddard car ivas left there, and the Dushane car taken; that she got into the Dushane car and rode 'With these parties until the car went dead, and took the grips, including the one containing the wearing apparel of the defendant, a short distance from the road, and left them and walked on to the home of Harper, and from the Harper home went on with the other parties to' Tulsa, and on the wray suggested a road by which they should return instead of remaining on highway 66. We think the testimony is amply sufficient to sustain the verdict of the jury.

Finding no errors in the record sufficient to warrant a reversal, the judgment of the trial court is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    JOE McNUE v. STATE.
    No. A-7183.
    Opinion Filed April 5, 1930.
    Rehearing Denied April 19, 1930.
    (286 Pac. 1119.)

      Bond & Bond, for plaintiff in error.
    The Attorney General and Smith 0. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error was convicted in the district court of Stephens county on a charge of burglary in the second degree and his punishment fixed at a term of two years’ imprisonment in the state penitentiary.

But one question is presented by this appeal and that is the sufficiency of the evidence to support the verdict. Prom a careful examination of the record we find there is sufficient competent evidence to support the verdict of the jury. No error being apparent, the cause is affirmed.

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


author: PER CURIAM.

text:
    DICK NEWTON v. STATE.
    No. A-6890.
    Opinion Filed March 29, 1930.
    Rehearing Denied April 19, 1930.
    (286 Pac. 1118.)
    Lewis Hunter, for plaintiff in. error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Comanche county on a charge of having possession of intoxicating liquors, to wit, 'beer, and his punishment fixed by the court at a fine of $150 and confinement in the county jail for a period of' 60 days.

The. appéal in this case was filed in this court on the 31st day of January, 1928. No briefs have been filed on behalf of plaintiff in error, and no appearance was made for oral argument..

Upon a careful examination of the record, we find no errors-depriving the appellant of any substantial rights.

The evidence being sufficient to support the verdict, the cause is affirmed.


author: EDWARDS, P. J.

text:
    CLAUDE (BLACKIE) HAGER v. STATE.
    No. A-7354.
    Opinion Filed April 5, 1930.
    Rehearing Denied April 19, 1930.
    (286 Pac. 815.)

      Frank Nesbitt, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Ottawa county on a charge of murder and his punishment fixed at death.

The record discloses a state of facts about as follows: Walter Harp, the deceased, and Mrs. Ethel Harp, his sister-in-law, some time prior to the homicide returned from Colorado to Oklahoma, and defendant rode with them in the car which belonged to deceased. On the day of the homicide, Harp, Mrs. Harp, defendant, and Elmer Moore went ón a fishing trip. They arrived at the stream where they were to fish about 6 o’clock in the afternoon, and between 8 and 9 they started to return to Picher where they were staying] Defendant and Moore were riding in the back seat, and Harp was' driving and Mrs. Harp in the front seat with him. When they had passed a place referred to as the Buffalo schoolhouse, Mrs. Harp was struck on the head and became unconscious and knew nothing further until she regained consciousness the next day in a hospital at Miami. The evidence further discloses that at the time Mx*s. Harp was struck on the head Walter Harp was also struck on the head, and the bodies of the two were dragged into a cornfield adjoining the highway. The body of Harp was found there early the next morning, the skull fractured, and other wounds about the head, with considerable blood on the ground and marks showing where the bodies had been dragged over a ditch along the side of the road into- a cornfield, a distance of about one hundred and twenty feet. Mrs. Harp testified that on this trip she had |200 in bills, a sapphire and a diamond ring in her purse. Defendant was arrested some time later at the home of his brother near Paris, Tex. He had at the time the automobile which had belonged to deceased and the two rings of Mrs. Harp. He stated at the time that the rings were delivered to him by Moore, who had taken them out of Mrs. Harp’s pocketbook, and that he and Moore had driven the car there. Both defendant and Moore made written statements soon after their arrest. Elmer Moore, the accomplice, testified for the state. His testimony, in substance, is that defendant proposed to him that they kill Harp and Mrs. Harp and get the car. That defendant put a hammer in his pocket and Moore had a wrench at his feet in the back seat, and that at a certain point defendant gave him a signal and immediately struck Harp with the hammer, and Harp immediately attempted to* get out of the car, and defendant again struck him with the hammer and he fell in the ditch, and that witness struck Harp one lick with the wrench and also struck Mrs. Harp, and the bodies were then dragged into' the cornfield. That her pocketbook was in the car, and they went through it and got the money and the rings. That they changed the license on the car and attempted to sell the rings. Moore pleaded guilty to the murder and was sentenced toi life imprisonment.

The assignments of error challenge the sufficiency of the evidence and the sufficiency of the corroboration of the accomplice. There is no merit Avhatever in the claim that the evidence is insufficient or that the accomplice is not corroborated. The evidence is practically undisputed, aad there is an abundance of corroboration of the accomplice, including the admissions and statements of the defendant himself.

The further claim is made that the county attorney and the special prosecutor assisting the county attorney were guilty of prejudicial misconduct. This assignment is directed at two questions, one propounded by Mr. Thomas, special counsel, and one by the county attorney in which Moore, the accomplice, was asked if defendant at any previous time had' made a proposition or tried to get him to commit any other offense. In both instances objections were made and sustained, the court in one instance stating that the question was highly objectionable. These questions were improper, and we do not understand how either the county attorney or special counsel could have thought them competent unless they had some connection or threw some light on the offense charged. The form of the questions does not indicate any connection. When these questions were asked and the objection to them sustained, the point was not pursued further and no motion to withdraw the questions nor request to the court to instruct the jury not to consider them was made. The mere questions as they appear, it seems to us, could not have been prejudicial, particularly in the light of the evidence in the case.

Defendant further earnestly insists that the penalty is excessive and should be modified by this court to life imprisonment, since it is shown that the accomplice on his plea of guilty was sentenced to life imprisonment. The undisputed evidence discloses the most vicious murder of Harp under circumstances of extreme brutality, and incidentally a murderous attack on Mrs. Harp for the pur-. pose of obtaining the small amount of property they possessed.

Capital punishment should be inflicted only in extreme cases, where an accused commits a crime for which the death penalty may be assessed and where there are no circumstances of mitigation or extenuation. This case falls in that class of cases. Where justice requires, this court may modify the judgment by reducing from death to life imprisonment. We see nothing in this case requiring the exercise of that power. The fact that the accomplice Moore was upon- his plea of guilty sentenced to life imprisonment does not affect the case as to this defendant. The record discloses that Moore was a youth of twenty years, the defendant a, mature man of forty-one, and that the accomplice entered his plea of guilty and testified for the state. The court, no doubt considering his age and all the circumstances and the comparative responsibility of the parties, exercised his discretion and assessed the punishment at life imprisonment. This presents no legal reason why this court should interfere with the judgment and sentence imposed.

The judgment is affirmed.

It is further ordered by this court that the warden of the penitentiary proceed to carry into' execution the judgment of the district court of Ottawa county in this case, and the 6th day of June, 1930, is fixed as the date for executing the sentence pronounced.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    PEARL BLACK v. STATE.
    No. A-7009.
    Opinion Filed March 22, 1930.
    Rehearing Denied April 19, 1930.
    (286 Pac. 813.)

      Orban C. Patterson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

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

The information charges in substance that defendant, by putting in fear one Mrs. Clyde Tucker in charge of the Farmers’ Bank of Jet, Okla., robbed the bank of $900. The evidence is that on December 16, 1926, one Dave Brown and one Paul Martin went into the bank and committed the actual robbery. That Brown and Martin when they had obtained the money left the town of Jet in a Studebaker automobile, to where defendant waited in a Buick, and the three then made their escape. Dave Brown was the principal witness for the state. He testified in substance that defendant went with him and Martin to the salt plains. They left the Buick automobile in charge of defendant about a mile and a half from where he and Martin the night before had put a Studebaker automobile. That they then got the Studebaker, went into the town of Jet and robbed the bank, then went back to the salt plains where they had some trouble with the Studebaker and went to the Buick in which defendant was and they then made their escape by a circuitous route to Enid. On the way to Enid they had trouble with the gas tank of the automobile, and bought some gas from a track. That they got about $1,000 from the bank, and this was divided into four parts, one of which went to' defendant. This witness had pleaded guilty to the charge against him. Brown v. State, 40 Okla. Cr. 1, 266 Pac. 491. As we read the evidence, Brown was reluctant to connect defendant with any knowledge that they were going to' Jet to commit a robbery. Upon this point, his testimony in substance is that defendant did not know where they were going when they went from Enid to the salt plains in Alfalfa county, and that she was left with the car to prevent it being stripped. In part he testified:

“Q. She didn’t know that she was going to the salt plains for to rob the Jet bank or where she was? A. She didn’t know where we were going, no, sir, not that time.
“Q. And the first Pearl knew about any bank robbery was after the bank was robbed and you boys came back to the Buick, is that correct? A. Well, sir, there had been bank robberies mentioned before but she didn’t know where any bank was going to be robbed.
“Q. After you boys were through and came back to the Buick, did she know then that you had robbed the bank? A. I spilled a sack full of dollars down on the floor of the board of the car.
“Q. It was necessary for her to draw a conclusion then that a bank had been robbed, wasn’t it? A. We told her then.
“Q. That was the first time she knew about it? A. The first time she knew about what?
“Q. That you had robbed a bank or where she was going or what she was going to do? A. That was the first she knew we had robbed the bank, yes, sir.
“Q. When you took her out there, she didn’t know you were going to rob a bank? A. I don’t know. I think she had an idea where Ave was going but there was nothing said.
“Q. When she went with you, all she knew Avas that she was going Avith you boys and stay in a car somewhere? A. Yes, sir. * * *”

It developed further in his testimony that defendant approached Brown at Enid some time before the robbery and directed him to go and see Martin at Shawnee, and that she sent a letter of- introduction by him to Martin, and before they went on the robbery he asked her- if she would go out and sit in the car for them as they Avere going out on a job, but he did not know that he told her where the job Avas to be. There had been talk between them about robbing some bank, and he told her they were figuring on a robbery. That there had been more or less talk betAveen defendant, Martin, and Brown about robbing some bank.

The contention is made that there is not sufficient-corroboration of the accomplice Brown. Some of the corroborating circumstances are that some time prior to the robbery Brown and defendant had been associating together, and the car in which Brown and Martin were at the time of the robbery was found abandoned, as he testified, some distance from where the Buick car Avas in which defendant was waiting; that the tracks of two- men led from the Studebaker to the place where the Buick was and no tracks led from it. A truck driver testified that he met Brown and a man and woman on the highway the day of the robbery and let them have some gas, fully corroborating Brown on this point. There was also evidence that the night following the robbery Brown appeared at the place where he had been employed formerly with defendant and a man, evidently Martin. That Brown and the man came in the house with a package rolled in a lap robe and defendant left in tbe Buick and after a little time returned in a different car, that Brown and the man then left with defendant taking with them the package.

Defendant testified that she went with Brown and Martin to the salt plains in a Buick car. That they left the car and she remained. After a while they returned and Brown spilled some money in the car. That they then drove to the Hilley place near Enid reaching there at night. That she did not remember of telling Brown that her husband was in a $2,000,000 robbery, nor of calling Martin at Shawnee and telling him that Brown would be down to see him, nor of sending a note to Martin by Brown, nor of introducing Brown and Martin. That she received $200 or better of the stolen money. That she turned the Buick to- meet and pick up Brown and Martin on the salt plains after the robbery; that they carried a bundle. That she left the Hilley place in the Buick and after a while returned there in a Hupmobile and picked up Brown and Martin. That she did not know where they were going when they went to the salt plains.

It is obvious to us that defendant was the instigator of this robbery, that Brown, who is of low mentality, was her dupe and tool. That the verdict and sentence is just. No error of consequence appears in the record.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    W. R. PARAMORE v. STATE.
    No. A-6989.
    Opinion Filed March 29, 1930.
    Rehearing Denied April 19, 1930.
    (286 Pac. 811.)

      Womack, Brown & Cund, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error' hereinafter called defendant, was convicted in the district court of Stephens county on a charge of receiving stolen property and his punishment fixed at imprisonment for six months in the state penitentiary at McAlester.

The defendant was accused of receiving ten. joints of four-inch casing which had been stolen and was the property of the Magnolia Petroleum Company. The manager of this company testified that the ten joints in question had been taken out to the company’s line near Duncan preparatory to placing them in the line then under construction and that on the 12th or 13th of May, these ten joints of pipe were missing and were found in the junk yard of the defendant. The evidence of the state shows that the pipe in question was the property of the Magnolia Petroleum Company and that said pipe had been stolen and that the pipe taken from the defendant herein was such stolen pipe of said company. That the ten joints of pipe so stolen were new pipe and that the same was found in defendant’s junk yard covered with other pipe. The evidence further discloses that when the defendant was questioned concerning this stolen pipe he denied having it. After the pipe was found in defendant’s yard he claimed he thought they Avere asking him about tAVo-inch pipe and then said that he had purchased the stolen pipe from one Clyde Smith and paid for the same Avith $20 in cash and gave a check for $20. The evidence of the state further shoAved that other stolen pipe had been found in defendant’s possession at so near a date and under such circumstances as to indicate that the defendant was engaged in the business of receiving stolen property.

The defendant offered in evidence a check payable to Clyde Smith for the sum of $20 which defendant claimed he gave Smith in part payment for the pipe in question. The check was dated May 9th and paid on the same day, while the pipe in question was not stolen until May 12th or 13th. Defendant testified on cross-examination that Smith brought the pipe to his place about five o’clock in the afternoon and that the bank was closed; that he paid him $20 and gave him the check for $20 additional. Defendant further testified that Clyde Smith was a stranger to him; that he had a subpoena issued for Smith as a witness but the return of the sheriff was that he could not be found in Stephens county. The testimony of the Avitnesses for the state, together with the contradictory statements of the defendant made at or near the time of the discovery of the pipe in question, together with the other facts and circumstances in the case, shows that the defendant received the property in question Avith guilty knowledge that it had been stolen and was sufficient to justify the jury in returning a verdict of guilty.

The defendant next complains that the court erred in permitting- the state to introduce evidence to show that other pipe than that in question, which had been stolen at a time near the commission of the offense charged in the case at bar, had been found in the possession of the defendant. This court has held that the possession of recently stolen property -by the defendant, supported by other incriminating circumstances, is sufficient to warrant a judgment of conviction. McDaniel v. State, 35 Okla. Cr. 425, 250 Pac. 804.

This court has also held that evidence of other offenses is competent to prove the specific offense charged when it tends to establish a systematic scheme or plan, embracing the commission of two or more offenses so related to> each other that proof of one tends to establish the other, or to connect the defendant with the commission of the offense charged. Jackson v. State, 42 Okla. Cr. 86, 274 Pac. 696; Oldham v. State, 42 Okla. Cr. 209, 275 Pac. 383,

The defendant next contends that the court erred in overruling the defendant’s motion for neAV trial on the ground of the misconduct of the county attorney. The defendant complains first in his brief, of the opening argument of assistant county attorney, Sullivan. No objections were made to these remarks and no request made to the court to instruct the jury not to consider the same. Defendant’s counsel in arguing the case went outside the record and the court admonished both counsel for defendant and the state to stay Avithin the record in their argument. In, the closing argument for the state the county attorney also became vitriolic and finally counsel for defendant objected to some remarks made and the county attorney Avas admonished by the court to confine his argument to the evidence before the jury. The objections of the defendant were sustained to the remarks made which might have been construed to be improper. The county attorney then modified his remarks and the defendant again objected. The court overruled this objection but the defendant made no> motion that they be excluded from consideration by the jury. In order to have alleged improper remarks reviewed by this court, where the same are not fundamentally erroneous, it is necessary for counsel not only to object to such remarks, but also to move that they be excluded from consideration by the jury. Carr et al. v. State, 43 Okla. Cr. 271, 277 Pac. 1038.

The arguments made by the state and by the defendant are not free from objection, but a careful examination of the record leads this court to believe that the rights of the defendant were not prejudiced by such argument.

The defendant next contends that the court erred in overruling his application for a continuance on account of the absence of a material witness, Clyde Smith. The subpoena was issued on the 1st day of October, 1927, and returned in due time by the sheriff, “not found.” The case was called for trial on the 7th day of November, 1927. The defendants’ application for a continuance was presented on the 7th day of November, 1927, which says that the witness has departed and his whereabouts is unknown to defendant but that he expects to have the evidence of the said Clyde Smith by the next term of court. The application shows on its face that the defendant had not used due diligence to procure the attendance of the witness and does not show any probability of being able to- obtain the witness if a continuance were granted. The defendant must have known that the sheriff had made his return upon the subpoena showing the witness could not be found. The defendant had then twenty-four days in which to locate the witness and take additional steps to procure his attendance. The granting of a continuance is in the discretion of the trial court and from this record it is apparent that the court did not abuse its discretion.

The defendant filed a second motion for new trial based on the ground of newly discovered evidence. There is nothing in the application to* show that any effort had at any time been made by the defendant to secure the presence of the witness prior to or during the progress of the trial. The court did not err in overruling this second motion for new trial.

It appears from the record that the defendant had a fair and impartial trial, the evidence supports the verdict of the jury and there is nothing in the record requiring this court to reverse the case. For the reasons stated the cause is affirmed.

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


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    RUTH BALL v. STATE.
    No. A-6965.
    Opinion Filed March 29, 1930.
    Rehearing Denied April 19, 1930.
    (286 Pac. 808.)

      A. F. Moss, H. R. Young, and C. A. Warren, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county of the crime of manslaughter in the first degree, and sentenced by the jury to twenty years imprisonment in the state penitentiary at McAlester, Okla.

The evidence of the state was: That the defendant shot and killed her husband, J. Wade Ball, in the office of deceased’s drug store in the city of Tulsa on the 15th day of June, 1927. That defendant went to her and deceased’s home near the drug store, got a pistol kept there in the home, and told Mrs. Duffield, a nurse staying in the home, who testified for the state: “Go out there and stay with him. I want to do some talking over the telephone.” The nurse testified: That defendant went back into the front room and rang the telephone several times trying to get some one. That she came back out, jerked the door open, slammed the screen, and said, “The battle is on.” That the witness asked, “What do’ you mean by that, Ruth?” to which she answered: “I mean the battle is on. You and bis mother has broke my home up, you can’t please him it don’t make no difference what you do, I will die and go to the penitentiary before I give my baby up. I have done my last, I am through taking care of the drug store and working.” That she went off the porch, went back ’twixt a fast walk and a run towards the drug store. Shortly after this a shot was heard in the back room of the drug store. The defendant ran out, got into a car, and drove off. W. B. Skelton, who worked in the drug store, testified, in substance, that Mr. and Mrs. Ball were arguing in the back part of the store, and almost immediately after reaching the wrapping counter he heard the report of a gun, .and rushed back and found the deceased lying on the floor, and that he did not see the defendant; that he called a doctor and the ambulance. Defendant admitted that she shot the deceased, but claimed that deceased was threatening her, and she thought he was going to kill her or do her great bodily injury, and she shot him in her own self-defense.

The defendant first complains that the evidence is insufficient to support the verdict of the jury. While the evidence is conflicting, there is sufficient competent evidence in the record to support the verdict and this contention of the defendant is without merit.

It is next contended that the trial court erred in refusing to give requested instruction No. 1, which reads as follows: “You are instructed that if you believe from the evidence that the deceased Wade Ball, prior to the firing of the shot reached for a glass pestle for the purpose of assaulting the defendant with same and if you further believe that said glass pestle in the manner in which same was being used or about to be used, if same was being used or about to be used, was capable of inflicting death or serious bodily injury upon the defendant, then the defendant had a right to presume that the said Wade Ball, in reaching for said glass pestle, if he did so- reach for same, intended then and there to inflict upon the defendant death or serious bodily injury and you will so presume.”

This instruction was the only one requested, and is based on the; theory of the defendant’s right to defend herself against an unlawful attack made upon her by the deceased. In instructing, on the law of self-defense, the trial court gave instructions numbered 12, 13, 14, 15, 16, and 17. These instructions are too' lengthy to be set out in' full in this opinion. It is sufficient to> say that the instructions given by the trial court fully covered the law of self-defense as applied to the evidence in this case, and that the refusal to give requested instruction No. 1 was therefore not error. Hawkins v. State, 24 Okla. Cr. 82, 216 Pac. 166; Hamilton v. State, 38 Okla. Cr. 62, 259 Pac. 168; Wheat v. State, 38 Okla. Cr. 119, 259 Pac. 279.

The trial court was justified in refusing to give the requested instruction for the further reason that the same amounted to an indirect comment upon the weight of the evidence and was an invasion of the province of the jury. West v. State, 19 Okla. Cr. 355, 198 Pac. 99.

It is next contended that the trial court erred in overruling the motion for new trial based upon the ground of newly discovered evidence. The alleged newly discovered evidence consisted of the evidence of a witness named Gibbs. The evidence of this witness would have been merely cumulative, and for that reason the motion was properly denied as to' his evidence. As to the other witness, Shaffer, there is no showing of diligence, such as is required by the previous holdings of this court, by the defendant in making any effort to procure the attendance of this witness or to secure his testimony prior to the beginning of the trial. This also applies to the witness Gibbs. The defendant in her affidavit, in substance, says that she was confined in the county jail from the time of the homicide until the time of the trial, and had to depend on her relatives, attorneys, and friends to make diligent search to secure Avitnesses to prove the facts material to her defense; that she had no knowledge of these witnesses or wha.t they would testify to until after her conviction. A. F. Moss and Harold Moles made affidavits, in substance, that they were attorneys for the defendant and had used every effort possible to secure witnesses to prove any facts material to the defendant and her defense in the case, and that they first learned of F. A. Gibbs and Frank Shaffer and the facts to which they would testify about October 12th and after the verdict of guilty had been returned by the jury. In order to entitle the defendant to a new trial on the ground of neAvly discovered evidence, section 2754, C. O. S. 1921, must be complied Avith. The defendant did not make a sufficient showing to justify this court, in 'holding that the trial court abused its discretion in overruling the motion for new trial. The presumption obtains in this court that the trial court properly exercised his discretion in overruling the motion for new trial. Peters v. State, 35 Okla. 367, 250 Pac. 1032.

This court has repeatedly held that motions of this kind are addressed to the discretion of the trial court, and that its action will not be disturbed unless a manifest abuse of this discretion appears. Waller v. State, 19 Okla. Cr. 329, 199 Pac. 224; Hill v. State, 19 Okla. Cr. 406, 200 Pac. 253; Ray v. State, 35 Okla. Cr. 322, 250 Pac. 438; Newman v. State, 35 Okla. Cr. 296, 250 Pac. 554; Carter v. State, 35 Okla. Cr. 421, 250 Pac. 807; McColloch v. State, 45 Okla. Cr. 442, 283 Pac. 1026.

The motion for the new trial was fatally defective because it did not state fully the circumstances which made it appear that such evidence, as a matter of fact, was newly discovered and could not have been discovered earlier by the exercise of proper diligence. The defendant must set out in the motion facts showing that she used due diligence to procure the testimony. Ryan v. State, 8 Okla. Cr. 624, 129 Pac. 685; Johnson v. State, 21 Okla. Cr. 17, 204 Pac. 311; Carr v. State, 22 Okla. Cr. 371, 211 Pac. 423; Devore v. State, 33 Okla. Cr. 403, 243 Pac. 999; Donahue v. State, 38 Okla. Cr. 87, 259 Pac. 179.

In the case of Johnson v. State, 5 Okla. Cr. 1, 112 Pac. 760, 761, this court had under consideration a showing made for a new trial upon the ground of newly, discovered evidence similar to the showing made in this case. Discussing the question of the confinement of the defendant in the county jail pending trial, this court said:

“Defendant alleges that since his arrest on the charge of this case he has been confined in jail and been unable to make any inquiries with reference to the testimony in the case; that he has used all reasonable diligence in procuring evidence in his behalf; and that he did not discover the testimony of the said Lou Johnson and Mollie Ingram until after his conviction. Defendant stated that he had exercised due diligence in procuring testimony in his behalf before the trial began. This is merely the statement of a conclusion. Such an affidavit should state the facts, so as to enable the court to see that due diligence had been exercised. The record shows that the father of the defendant resided at Woodville. With the least effort on the part of the defendant or his counsel he could have been in possession of the alleged facts set up in his motion for new trial long before the trial of this case took place.”

The motion for new trial in the case at bar not stating facts showing due diligence on the part of the defendant, the motion was properly overruled.

The defendant next contends that the court erred in overruling her motion for new trial on the ground of the disqualification of the juror Minton. This juror on his voir dire examination said he was not acquainted with the defendant, had not discussed the case with any person, had no bias or prejudice, and had formed no opinion of the guilt or innocence of the defendant. It appears from the evidence in the hearing on the motion for new trial that this juror worked with a brother of the defendant for the Sand Springs Light & Power Company. Some fellow employees of the juror testified that they had read the newspapers and discussed with the juror the facts in the case. The juror took the stand and testified that at the time he qualified as a juror he did not remember that defendant’s brother worked for the light company and did not remember that he had discussed the case with any person, that he had no bias or prejudice against the defendant, and voted finally for her conviction because he became convinced of her guilt. The record discloses that Minton was the only juror who at any time voted to return a verdict of “not guilty.”

In the case of Stouse v. State, 6 Okla. Cr. 416, 119 Pac. 271, in paragraph 6 of the syllabus, this court said:

“As a general rule, a verdict will not be set aside for reasons that would be sufficient to disqualify a juror on a challenge for cause, which existed before the juror was sworn, but which was unknown to the accused until after the verdict, unless it appears from the whole case that the accused suffered injustice from the fact that the juror served in the case.”

This rule was followed in the late case of Suggs v. State, 46 Okla. Cr. 340, 285 Pac. 985. Where the defendant offers evidence to show bias and prejudice and disqualification of a juror, and where the state calls the juror in question and he testifies that he was not biased or prejudiced, that be did not remember having any of the conversations or making any of the statements sworn to by the defendant’s witnesses and had no opinion of the guilt or innocence of the defendant at the time he entered the jury box, this presents a question of fact as to whether the juror was or was not disqualified, which fact was to be determined by the trial court, and, in the absence of a showing of an abuse of discretion, the judge’s determination of this question of fact will not be disturbed by this court on appeal. Smith v. State, 5 Okla. Cr. 282, 114 Pac. 350; Horton v. State, 10 Okla. Cr. 294, 136 Pac. 177; Smith v. State, 19 Okla. Cr. 14, 197 Pac. 514.

Where a new trial is asked for upon the ground that a juror who served upon the jury was prejudiced against the defendant and testified falsely upon his voir dire, which prejudice and false evidence was unknown to the defendant prior to the rendition of the verdict, to entitle the defendant to a new trial it must not only be shown that said juror was prejudiced, but it must also appear that the defendant suffered an injustice by reason of the said juror having served on said jury. It not appearing from the record that the defendant suffered any prejudice because the juror Minton served in the trial of the case, the motion for new trial was properly overruled on that ground.

The evidence in the case is conflicting. The defendant relied upon self-defense, and, if her story was to be believed, the jury could have found her “not guilty.” On the other hand, the evidence on the part of the state is sufficient to support the verdict and judgment.

The jury having settled the issue of fact against the defendant and in favor of the. state, and the evidence being sufficient to support the verdict, the cause is affirmed.

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


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    JIM RICHARDS v. STATE.
    No. A-7104.
    Opinion Filed March 29, 1930.
    Rehearing Denied April 19, 1930.
    (286 Pac. 806.)
    John L. Hodge and G. V. Pardue, for plaintiff in error.

      The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Carter county on a charge of having unlawful possession of intoxicating liquor, and his punishment fixed by the jury at a fine of $250 and confinement in the county jail for a period of 90 days.

The evidence of the state shows that a search warrant was issued to search the premises of the defendant, and that Cecil Crosby and Hale Dunn, deputy sheriffs of Carter county, searched the premises of the defendant and in a box table in the kitchen they found five one-half pints and three full pints of whisky. The defendant testifying in his own behalf said that he was present when the deputy sheriffs made the search and that what they found was alcohol. He could not remember whom he bought the alcohol from, but said he used it for a rug; that the alcohol was grain alcohol ; that the man he bought it from delivered it, Avas a stranger to him, and said he lived in Ohio; that he was mixing ice water that one of them said he wanted, apparently referring to persons in the room when the officers came to make the search.

Defendant contends, first, that the affidavit was insufficient to authorize the issuance of the search Avarrant for the reason that the matters alleged in the Avarrant were untrue. Where the affidavit and search warrant are sufficient on their face, the evidence obtained by the search is admissible, and the court will not permit the accused, after the warrant has been executed, to show that the statements in the affidavit are not true, or to raise any question as to the competency or source of the affiant’s information or the means by which it was obtained. Phillips v. State, 34 Okla. Cr. 52, 244 Pac. 451; Ray v. State, 43 Okla, Cr. 1, 276 Pac. 785.

The affidavit and search warrant were sufficient to authorize the search of the premises of the defendant, and the evidence obtained thereby was properly admitted in the trial of the case.

The defendant next contends that the evidence is insufficient to support the verdict of the jury. The quantity of liquor found made a' prima facie case against the defendant. The jury was not bound to believe the evidence of the defendant, and since there was sufficient evidence in the record, if believed by the jury, to support their verdict, the- trial court did not err in overruling defendant’s demurrer to the evidence.

The defendant next complains that instructions 4, 5, and 6 were erroneous and prejudicial to the rights of the defendant. The instructions are not models, yet when considered together they fairly state the law as applicable to the case.

Finally, the defendant complains of the argument of the assistant county attorney. The argument was not taken in full by the court reporter. Counsel for defendant and the county attorney disagreed on what had been said, and since the court made no finding as to what actually was said, there is nothing in the record to raise the question complained of by defendant. Moody v. State, 13 Okla. Cr. 327, 164 Pac. 676; Whitenack v. State, 46 Okla. Cr. 315, 285 Pac. 990.

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

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


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    Ex parte ODELL PERRY.
    No. A-7244.
    Opinion Filed April 19, 1930.
    (287 Pac. 755.)
    C. R. Reeves, for petitioner.
    J, Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

This is an original proceeding in habeas corpus. Petitioner alleges that he is a convict in the state penitentiary at McAlester, Okla., under sentence for a term of seven years on a conviction for burglary from the district court of Oklahoma county; that he is being subjected to cruel and unusual punishment in being held in solitary confinement.

Since there is no showing, that petitioner has pursued the legal remedies provided for those confined in the penitentiary, relief will not be granted by habeas corpus. Sections 9205 and 9216, Comp. St. 1921. It has been held by this court in the case of Ex parte Terrill, 47 Okla. Cr. 92, 287 Pac. 753, that until the legal remedies have been denied or exhausted this court will not entertain the collateral remedy of habeas corpus.

The writ' is denied.

DAVENPORT and CHAPPELL, JJ., concur.


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    C. G. LESTER v. STATE.
    No. A-7254.
    Opinion Filed April 19, 1930.
    (287 Pac. 758.)

      Chapman & Chapman, for plaintiff in error.
    The Attorney General and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Pottawatomie county on a charge of robbery with firearms and his punishment fixed at imprisonment for twenty years in the state penitentiary.

The defendant argues but two questions in his brief: First, that the court erred in refusing to give the defendant sufficient time to prepare his defense. The record discloses that the defendant was arraigned on the 18th day of June, 1928, at which time he waived time to plead and entered a plea of not guilty, and the state served upon him a copy of the information and a list of the state’s witnesses, and thereupon the court set the case for trial on the 25th day of June, 1928. The defendant was personally present and represented by his counsel, Frank Crouch and Hugh Bland, and made no objection to the setting of the case for trial and apparently agreed to the same.

The defendant contends that seven days was insufficient time to prepare, and that he was thus deprived of a substantial right by the arbitrary rule of the court fixing the time of trial. To support this contention defendant cites Westbrook v. State, 14 Okla. Cr. 423, 172 Pac. 464, 469, in Avhich this court says in the body of the opinion:

“It is the right of every person accused of crime to have a fair trial and compulsory process to compel the attendance of his witnesses, and this involves as a matter of course the time reasonably necessary to prepare for trial. The statute prescribes that civil cases in the district court shall not stand for trial until ten days after the issues are made up and no felony case should be set over the objection of the defendant within ten days after his plea is entered.”

To the same effect is Noel v. State, 17 Okla. Cr. 309, 188 Pac. 688. In civil cases the statute provides that the case shall stand for trial ten days after the issues are joined, but there is no time fixed by statute which must intervene before trial in a criminal case can be had; such time being left largely to the discretion of the trial court, subject only to the control of this court where such discretion is abused. Ordinarily no felony case should be set for trial less than ten days after the plea, but in cases like the one at bar, where the' case is set for trial less than ten days after the plea without objection on the part of the defendant, the cause will not be reversed for such reason unless from the whole record it affirmatively appears that the defendant was deprived of a substantial right to his detriment. Under the facts disclosed by this record, the court did not err in setting the case for trial seven days after arraignment and plea.

The defendant next contends that the court erred in overruling his application for a continuance on account of the absence of material witnesses. When the case was called for trial on the 25th day of June, a severance was demanded and granted by the court. Thereupon the state elected to try this defendant first. In the meantime and on the 22d day of June, 1928, the defendant had had subpoenas issued for certain witnesses. When the case was ' called for trial the defendant filed his motion for a continuance and supported the same by his affidavit. This affidavit was insufficient for the reason that affiant failed to state that he believed the evidence to be true as provided in section 584, C. O. S. 1921. It was insufficient for the further reason that the application does not show any probability for securing the attendance of said witnesses at any future time to which the case might be continued. Hill v. State, 19 Okla. Cr. 406, 200 Pac. 253; Vineyard v. State, 22 Okla. Cr. 76, 209 Pac. 783; Hunter v. State, 23 Okla. Cr. 125, 212 Pac. 1014.

To reverse the judgment of conviction in this case on the facts which are so clearly established as to be beyond controversy would be not only to delay justice but give no force to the statute which prescribes that such judgments may be reversed only when upon the whole record the court is satisfied that the substantial rights of the defendant have been prejudiced. If the guilt of the defendant was in any way left in doubt, or if it appeared from the record that the defendant was prejudiced by the setting of his case for trial seven days after his plea, or by the overruling of his application for a continuance, it would be our duty to give him a new trial; but since the evidence in the case clearly establishes the guilt of defendant, and since it does not affirmatively appear that the defendant was deprived of a substantial right by the overruling of his application for a continuance, the cause is affirmed.

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


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    J. H. WIGGINS v. STATE.
    No. A-7236.
    Opinion Filed April 19, 1930.
    (287 Pac. 803.)
    See, also 40 Okla. Or. 189, 267 Pac. 868.
    O. T. Shinn, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county on a charge of incest, and was sentenced to serve a term of five years in the state, penitentiary.

The trial was on June 8, 1928. On June 16, the court ordered a transcript of the record and proceedings with: out cost to defendant. The appeal was filed in this court in December, 1928. The appeal is by transcript. The transcript is not certified as a full, true, and correct transcript of the record. Sections 783 and 2777, Comp. Stat. 1921; Jones v. State, 9 Okla. Cr. 189, 130 Pac. 1178.

The attempted appeal is dismissed.


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    D. W. HAYES v. STATE.
    No. A-7231.
    Opinion Filed April 19, 1930.
    (287 Pac. 746.)
    A. M. De Graffenried, for plaintiff in error.
    The Attorney General and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Muskogee county of the crime of receiving stolen property and his punishment fixed by the court at imprisonment in the state penitentiary for a term of three years.

Defendant alleges numerous - ’ait for the purpose of deciding this case it will only be necessary to pass upon one of them. The defendant complains that the court erred in giving instruction No. 11, which reads as follows:

“You are instructed that as to the defendant knowing that the property in question had been stolen, it is not necessary that somebody should have told him that it was stolen, but it is necessary that he must have actually known it was stolen, or that he knew such facts as made him believe that in all probability it was stolen. And in ascertaining whether or not he had such guilty knowledge, you will take into consideration all of the facts and circumstances which have been introduced in evidence, and you will consider the' time and manner of receiving the property, the persons from whom he received it, his conduct with it afterward, the price which he paid for the property and all other facts and circumstances, and if after such consideration you find, beyond a reasonable doubt, that he knew that the property was stolen at the time he received the same, or that he knew such facts as made him believe that in all probability it was stolen, and he received it under those circumstances, that is sufficient as to his knowledge of it being stolen. And, if you find these facts, beyond a reasonable doubt, and also- find the other facts necessary to constitute the crime charged, then it will be your duty to- convict the defendant.”

This instruction is almost identical with an instruction approved by this court in the case of Webb v. State, 19 Okla. Cr. 450, 200 Pac. 719. In the Jater case of Weaver v. State, 30 Okla. Cr. 309, 235 Pac. 635, this court expressly condemned the instruction given in Webb v. State, supra, and reversed the case because the quantum of proof required under such instruction was insufficient to support a verdict of guilty. In the case of Stapp v. State, 42 Okla. Cr. 389, 276, Pac. 697, 698, this court, having occasion to again pass upon the same question, used the following language:

“The words 'or that she knew such facts as would lead her to believe it was stolen’ in the first paragraph, and the words 'in all probability * * * that is sufficient as to her knowledge of it being stolen,’ just preceding the last paragraph, are erroneous.”

It is not sufficient that the defendant should know such facts as made him believe that in all probability it was stolen. Under the instruction in this case the jury was permitted to return a verdict against the accused on less proof than is warranted by law. It is essential that guilty knowledge be proven either by direct evidence or by proof of facts and circumstances connected with the transaction.

The defendant further complains that the court erred, in permitting the state to introduce the ex parte statement of the witness Wood, which statement was made in the absence of the defendant and after the conspiracy was completed. Under certain conditions this statement might have been introduced for the purpose of impeaching the witness Wood where the state was taken by surprise and where he did not testify as the state was led to believe he would. The record in this case does not disclose a condition that would authorize the introduction of the statement.

The defendant further complains that the court erred in permitting! the state to cross-examine the defendant as to a prior conviction which had been reversed by this court, and complains that the trial court erred in that his statements amounted to testimony on behalf of the state. It appears from the record that the defendant had been charged with the crime of receiving stolen property, had been convicted and judgment rendered on the verdict of the jury, and the cause appealed to the Criminal Court of Appeals, where the same was reversed and ordered dismissed, being Hays v. State, 38 Okla. Cr. 331, 261 Pac. 232. The method of examination by the county attorney was objectionable for the reason that it appeared that what he desired to do was to- get before the jury the fact that the defendant had been previously tried and convicted of the charge of receiving stolen property. This evidence could have but one effect as brought out on the cross-examination by the county attorney, and that was to prejudice the jury against the defendant. During this cross-examination the court asked the defendant:

“Was I one of your lawyers? A. Yes, sir.
“The Court: It was reversed on account of the search warrant.”

These questions and answers were improper because it amounted to the court testifying as to why the case was reversed and got before the jury the idea that the defendant had escaped on account of a technicality through an illegal search warrant and not because of insufficient evidence to support the verdict.

Although the last two errors complained of are objectionable, we predicate a reversal of this case on the ground that the giving of instruction No. 11 was fundamentally erroneous and deprived the defendant of a substantial right. For the reasons stated the cause is reversed and remanded to the trial court for further proceedings according to law.

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