text:
    LEONARD WOOD v. STATE.
    No. A-9915.
    Sept. 3, 1941.
    (116 P. 2d 734.)

      Leon J. York, of Stillwater, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen and: Owen Watts, Asst. Attys. Gen., and David P. Hervey, Co. Atty., of Stillwater, for the State.
   BAREFOOT, P. J.

Defendant, Leonard Wood, was charged in the district court of Payne county with the crime of incest; was tried, convicted and sentenced by the court to serve a term of seven and one-half years in the penitentiary, and has appealed.

Defendant was also charged in 72 Okla. Cr. 364, 116 P. 2d 728, with the crime of rape in the first degree, was tried, convicted and sentenced to serve a term of five yearsl in the penitentiary, and has appealed. These cases, by agreement of counsel and order of the court, have been consolidated and considered together. Defendant was unable to' give bond pending appeal and is now confined in the penitentiary at McAlester, and for this reason the cases have been advanced and decision rendered at this time. The facts are very similar in each of the cases, only based; upon different acts and at different times. Opinions will be prepared in both cases, but a discussion of the evidence will be had only in this case.

Defendant was charged with the crime of incest. The date relied upon in the information was Saturday, Decern-ber 30, 1939. It involved defendant’s daughter, Leona Wood, who' was 17 years of age at the time of the trial on the 18th of March, 1940. Her testimony was that her father, the defendant, had been intimate with her over a period of three and one-half years, or since she was past 13 years of age. She testified that on numerous occasions defendant had intercourse with her. In most of these instances she testified that force was used and that he slapped her, pulled her hair, and upon one occasion struck her and knocked her unconscious. She exhibited a large lump on her breast which she stated was caused by a blow by defendant upon one of these occasions. While the evidence is shocking and revolting, it is clear and was heard by a jury who no doubt gave every consideration to the same and every consideration to the defendant, andl rendered a verdict of guilty, which, after stating that they were unable to agree upon the punishment, added to their verdict the notation, “We recommend leniency.” This notation was, as has been often held by this court, not binding upon the court, but in no way should prejudice the lights of the defendant. Estes v. State, 35 Okla. Cr. 335, 250 P. 809; Presnell v. State, 71 Okla. Cr. 162, 109 P. 2d 831; Severn v. State, 72 Okla. Cr. 141, 114 P. 2d 181; Albrecht v. State, 72 Okla. Cr. 270, 115 P. 2d 274.

The court sentenced the defendant to seven and one-half years in the penitentiary. The maximum punishment under the law was ten years in the penitentiary.

The first and main contention of defendant for reversal of this case is that the conviction is not sustained by the evidence, and that the court erred in refusing to sustain a demurrer to the evidence and advising the jury to return a verdict of not guilty, it being his contention that the charges were framed by his wife and daughter and were untrue. This requires a brief examination of the evidence.

Prosecuting witness Leona Wood testified that about the time she entered junior high school and when she was past 13 years of age her father began a course of conduct, first by coming to her bed and being familiar with her, and he explained to her that this conduct was right and that it was her duty to submit to' this. That at this time she did not know it was wrong and that she did not know how children were born, but thought they were brought by the stork. She did not tell her mother, who was at home during all of this time. She afterwards went to church and Sunday school and learned it was very wrong. This was about two years later, but that her father explained to her that her mother was sick and it was her duty to consent. That she did not tell her mother for the reason that he had many times threatened to kill her and her mother and the whole family if she ever told. She kept company with a young man and she told him about it two years ■prior to the time she told it to the county attorney and these charges were filed. She also told a neighboring lady a short time before the charges were filed, but did not tell her mother until just before the filing of the charges for the reasons above stated. She had also testified to threats by defendant to kill her boy friend if she ever told him, and this young man testified that it was for fear that he would kill Leona that caused him not to' tell it. The evidence of the prosecutrix dealt especially with four different occasions when she claimed the acts of sexual intercourse occurred. First, on Saturday, December 30, 1939, this being the act relied upon in the charge in this case; second, on Saturday, December 23, 1939; third, on Mother’s Day, in May, 1939; fourth, on Sunday following July 4, 1939. There were other occasions, but these are the dates of the main acts about which evidence was given.

The assault on the 30th of December, 1939, occurred on Saturday afternoon at home when she and her father were there alone. Her mother had gone to the doctor’s office and her little sister had been given money by the father to go to a show. They left about 2:30 and did not return until about 5 p. m. She also recalled an assault after that time and on January 13, 1940. The assault on December 23, 1939, also took place at home and was consummated after pulling her hair and slapping her and forcing her to have intercourse with him. The assault on July 23, 1939, occurred after he had taken her mother to Shawnee to attend the funeral of her mother. It was after his return from Shawnee and when no one was there but her. She testified two acts of intercourse occurred that day. Her younger sister was visiting a girl friend and was not home when he returned, but was there at night, but he sent her into another room, and closed the door.

The assault on the Sunday following July 4, 1939, occurred at her home when she and her father returned from the Cushing Country Club about 6:30 p. m. He had been playing golf and they returned to the home with the father and mother of her boy friend. She had a date with him for 6:30, and he made her call him over the phone and postpone the date until later in the evening.

The assault on Mother’s Day in May, 1939, occurred while her mother was visiting, her sister at Hugo. Her father had been planning to make the trip, but made an excuse that he was sick and stayed at home. He went to Hugo the following day.

After testifying to these specific dates and occurrences she stated:

“Q. How long has this course of conduct been carried on? A. Ever since in May when I was 13. Q. What year was that? A. 1935, I believe. Q. Has he acted about the same way as you. have described? A. Yes, sir, all the time, it is the same manner. Q. Have you ever discussed this matter with your father? A. Yes, sir, he threatened me SO' many times and I tried to have talks with him. Q. Did he give you any explanation as to why he was doing it? A. Yes, sir, he said all daughters had to do it, that this was part of growing up, and I was so young I didn’t know. Q. When did he tell you that? A. When he first started, he said that was part of growing up. After I had my first menstrual period, that he said that was part of it. I wasn’t supposed to talk to anyone, and all daughters had to do it, and I Avould find out some day that they was all doing it, but not to say anything about it now. Q. Did you discuss it with him after that? A. Yes, sir, after I begun to see it wasn’t right. Q. When was that? A. About a year ago, and he says, ‘Your mother was operated on, and you have to take her place,’ and not to mention it to' her because if she knew she was in that state of condition she would lose her mind, and I didn’t know what to do. Q. Has he ever struck you when you refused to submit to him? A. Yes, sir, Q. When was that? A. About the summer of 1938, he struck me and gave me a large lump on that breast. Q. Where was that?- A. On this left breast down low, there. Q. Is it still there? A. Yes, sir. Q. Did he ever strike yoii any other time? A. He gave me a black eye,, and several times he completely knocked me out. Q. When did he do that? A. Sometimes he would choke me until I would get faint and then hit me. Q. Would he violate you when he would knock you out? A. Yes, sir. Q. Has anybody else ever seen these attacks take place? A. Not the real attacks, but my sister has seen him get in bed with me. By Mr. York: Object to that. By the Court: Overruled. By Mr. York: Exception. A. And she knows I have struggled to get out and he usually sent her out.”

It is contended by defendant that the court erred in refusing to sustain the demurrer to the information. The information contained this allegation:

* * on the 30th day of December, 1939, Leonard Wood, then and there being did then and there willfully, unlawfully and feloniously have sexual intercourse with, and carnally know one Leona Wood, a female child, she, the said Leona Wood, being then and there the daughter of the said Leonard Wood, contrary to the form of the statute”, etc.

It is stated in defendant’s brief:

“The information is fatally defective in that it fails to set out the manner and allege the facts in which said section was violated. It is not framed in the language of the statutes and does not designate whether the acts of sexual intercourse transpired as a result of an incestuous marriage between the parties, whether it was an act of adultery, or an act of fornication. The defendant could not have been prepared for trial unless these facts were clearly set forth in the information, in order that he might know what proof he must meet at the trial of the case.”

The statute upon which this information is based is Okla. Stats. 1931, sec. 2238, O. S. A. title 21, sec. 885, which is as follows:

“Persons who, being within the degrees of consanguinity within which marriages are by the laws of the state declared incestuous and void, intermarry with each other, to' commit adultery or fornication with each other, are punishable by imprisonment in the penitentiary not exceeding ten years.”

This statute may be violated by one of three ways. First, where parties within the prohibited degree of kinship intermarry; second, where parties within the prohibited degrees of kinship commit adultery with each other; and third, where parties within the prohibited degrees of kinship commit fornication with each other. Signs v. State, 35 Okla. Cr. 340, 250 P. 938.

Under the information here considered the charge was under the second section. Under our practice an indictment or information is sufficient as against a general demurrer if it substantially follows the language of the statute and clearly states the facts so that the party charged may know the crime with which he stands charged. The information in this case does that. It might have been more elaborately drawn, but it sets out (a) that defendant had intercourse with Leona Wood,, (b) that she was a female, (c) that she was the daughter of defendant, and (d) the date when the act was committed. These facts certainly inform defendant of the charge which he was called upon to meet. We do not think that defendant could be successfully put on trial for another crime growing out of the same offense and on the same date, as argued ■by defendant. We do not think it was necessary to allege that defendant was a married man and that prosecutrix was an unmarried person. While the authorities are not harmonious upon this proposition, the Supreme Court of Arkansas holds that it is necessary. Martin v. State, 58 Ark. 3, 22 S. W. 840; State v. Fritts, 48 Ark. 66, 2 S. W. 256. The great weight of authority is that the allegations of similar import to that used in the information in this case are sufficient. 31 Corpus Juris 379, section 20; 27 Am. Jur. 294, section 12; People v. Cease, 80 Mich. 576, 45 N. W. 585; State v. Nakashima, 62 Wash. 686, 114 P. 894, Ann. Cas. 1912D, 220; State v. Brown, 47 Ohio St. 102, 23 N. E. 747, 21 Am. St. Rep. 790; Baker v. State, 30 Ala. 521; People v. Kaiser, 119 Cal. 456, 51 P. 702; Mercer v. State, 83 Fla. 555, 92 So. 535; State v. Learned, 73 Kan. 328, 85 P. 293; Rodriguez v. State, 90 Tex. Cr. R. 566, 236 S. W. 726; State v. James, 32 Utah, 152, 89 P. 460; Hintz v. State, 58 Wis. 493, 17 N. W. 639; People v. Munoz, 25 Porto Rico 192; State v. Hurd, 101 Iowa, 391, 70 N. W. 613; State v. Kimble, 104 Iowa, 19, 73 N. W. 348; Bergen v. People, 17 Ill. 426, 65 Am. Dec. 672; Annotation, 111 Am. St. Rep. 27.

In the case of State v. Nakashima, 62 Wash. 686, 114 P. 894, Ann. Cas. 1912D, 220, the Supreme Court of Washington refers to the case of State v. Fritts, 48 Ark. 66, 2 S. W. 256, and refuses to- follow the rule announced therein, hut adopts the contrary rule as announced in State v. Brown, 47 Ohio St. 102, 23 N. E. 747, 21 Am. St. Rep. 790. This is the rule adopted in almost all of the states.

In the case of People v. Cease, supra, the court announces the correct rule when it states :

“The respondent was convicted of incest, and sentenced to the state prison for 15 years. The information charged him with having committed the crime of fornication with one Elizabeth Ann Cease, she, the said Elizabeth Ann Cease, being then and there the daughter of the said Sylvester Cease. It appeared upon the trial that the respondent was a married man at the time of the commission of the offense. The statute reads as follows: ‘All persons being within the degree of consanguinity within which marriages are prohibited, or declared by law to be incestuous and void, who' shall intermarry with each other, or who shall commit adultery or fornication with each other, shall he punished by imprisonment in the state prison not more than 15 years, or in the county jail not more than one year.’ How. St. § 9291.
“It is now contended in his behalf that the information is fatally defective because it did not allege that he committed adultery, instead of fornication. The' gist of the offense was the act of sexual intercourse with his own daughter. He could not have been prejudiced by the averment that the act which constituted the crime was fornication instead of adultery. We are not inclined to set aside convictions on such a naked technicality. The case to which we are cited by respondent’s counsel, Territory v. Whitcomb, 2 Am. Crim. Rep. 159, has no application whatever to the case at bar. The offense charged in that case was fornication; and it would, of course, be necessary to allege and prove that both parties were unmarried. It was unnecessary to allege that the respondent committed adultery or fornication, inasmuch as the information distinctly charged him with the act which constituted the crime of incest. The case falls within the rule laid down in Hicks v. People, 10 Mich. 395.”

The defendant in the instant case was charged with the crime of incest. Under the statutes he was guilty either (a) by adultery or (b) by fornication. The gist of the offense was the act of sexual intercourse with his own daughter, not whether it was fornication or adultery. He was guilty if it be either. We fail to see the force of the argument that it was necessary to allege that the defendant was a married man under these facts, and especially in view of the allegations that the prosecutrix was the daughter and defendant was the father. We therefore hold that it is not necessary where one is charged with incest under the statutes of this state to allege that he was married or unmarried. As stated in the case of People v. Cease, supra: “We are not inclined to set aside convictions on such a naked technicality.”

It is next contended that the court erred in permitting to be introduced certain incompetent, irrelevant and prejudicial evidence over defendant’s objection. This is based upon the fact that a witness, Mrs. C. C. Johnson, testified that she heard a conversation over the telephone! between the defendant and his wife before his conviction and while he was in jail awaiting trial. The conversation was as follows:

“Mr. Wood said they were going to send him to Mc-Alester, and Mrs. Wood asked him what he did such an awful thing for, and he says, Well, you know I haven’t been well for the last two or three years’, and she says, 'That is no excuse, there is doctors’, and he said he didn’t want to take time off to go to the doctors. * * * He asked her when he got to McAlester, if she would send him some pictures, and she told him she didn’t know, that she didn’t have a picture of herself, and he said he would pay for it if she would have it taken, and he wanted to know if she would write to him, and she said she didn’t know, that she would try.”

It is contended that the case of Hildebrandt v. State, 22 Okla. Cr. 58, 209 P. 785, sustains this contention. We have carefully examined this case and find that the facto are different from the facts in the instant case. There the conversation was between the husband and wife. The party testifying to’ the conversation heard only what the wife said and he did not hear what the husband, who was the defendant, said. In this case the party testifying was on a party line and heard the conversation of both parties. There the conversation related Avas the conversation of the wife and not the defendant. Here it was the conversation of the defendant. It is also true that this evidence was merely cumulative to the testimony given by the sheriff of Payne county, and even though it was inadmissible, under the circumstances it would not be reversible error. Carr v. State, 22 Okla. Cr. 371, 211 P. 423.

It is next contended that the court erred in permitting Dr. Clifford Bassett to testify that he examined Mrs. Florence Wood, the mother of prosecutrix, and that he did not find a lump of any kind on her breast, and that he examined the prosecutrix, Leona Wood, and found a lump upon her breast. This evidence was not given in chief by the state but was upon rebuttal. The defendant had testified Avhile upon the witness stand that the mother had a lump upon her breast the same as the prosecutrix had, the prosecutrix having testified that she had a lump upon her breast caused by a blow from the defendant when he made an assault upon her. Under these circumstances, the court did not err in permitting this evidence to be offered in rebuttal. The contention that it was inadmissible for the reason that it permitted prosecution on another and distinct crime is untenable. Dr. Bassett also' testified that the defendant asked at one time if Leona was pregnant, and it is contended that this was incompetent. The doctor’s answer was that he did not know and. had no' reason to believe she was. This statement was made at the time Dr. Bassett operated on Leona Wood, the prosecutrix, for appendicitis. We do not believe that this evidence was such as was prejudicial to the defendant sufficient to reverse this case. It was not a privileged communication, as contended.

It is next contended that this case should be reversed because of certain remarks made by the trial court in the presence of the jury after the case had been submitted. The jury, after they had deliberated for some time, were brought into court, the defendant and his attorney being present. The foreman announced to the court that they had been unable to reach a verdict, and was asked by the court a few questions as to how they stood numerically, and was informed six to six. He then asked each individual juror, as to what he thought the chances were to arrive at a verdict. Some of them replied that they did not think there was any chance. Others replied that they thought they could, and expressed a desire to try again. The court then said to the jury:

“Well, if there is. any help I can give you, any further instructions, any explanation of any instructions I can give you, anything I can do to help you, I will do it. I won’t try to' force you to agree on a verdict but I want to help you if I can. It would be too- bad to have to' try this case again, and it will have to be tried over again. What do you think about deliberating a while, and try again. Lots of things you think are hopeless, and then you get together on them. Let’s try it ag'ain. But when you think it is hopeless, I won’t punish you about it by keeping you together any longer. But as long as there is hope, I don’t want to discharge you. People would say if I bad kept you together a little longer, you would have gotten a verdict. Now go out and discuss this a little longer. If I could help you in any way I would be glad to do SO'.”

It does not occur to us. that these remarks, were such as would cause prejudicial error. They were not unfavorable to> the defendant. It was of importance to the state and to the defendant that the jury should return a verdict. While the court should be careful in talking to the jury after the submission of the case, we do not find that anything said by the court was such as to prejudice the rights of the defendant. Montgomery v. State, 19 Okla. Cr. 224, 199 P. 222; Highfill v. State, 26 Okla. Cr. 420, 224 P. 729.

The last contention of the defendant is that the court-erred in giving to the jury instruction No. 7, which'is as follows :

“You are further instructed that the testimony of Leona Mae Wood shows that she was an accomplice in the commission of the offense it is charged the defendant committed, and that you cannot find the defendant, Leonard C. Wood, guilty by reason of the testimony of the said Leona Mae Wood, alone, until you are satisfied beyond a reasonable doubt that the same has been corroborated by other evidence tending to. establish the fact that the defendant, did in fact, commit the offense charged in the information; and in this connection, you are instructed that the corroboration herein mentioned need not be by eye witnesses, to the commission of the offense, but such corroboration may be by circumstances, and you may take into consideration all of the facts and circumstances proven in the case in determining whether or not the defendant is guilty of the crime charged. You are instructed that such corroboration is not sufficient if it merely shows the commission of the offense, but must be by other evidence, facts and circumstances, tending to connect the defendant with the commission of the offense. It need not be sufficient to show the defendant guilty of the crime charged independent of the testimony of the accomplice, but is sufficient if it tends to connect the defendant with the commission of the offense by independent testimony or evidence corroborating as to some material fact or facts, the testimony of the accomplice.”

That part of the instruction complained of is the first sentence, which is as follows :

“You are further instructed that the testimony of Leona Mae Wood shows that she was an accomplice in the commission of the offense it is charged the defendant committed.”

In the first place, the law of accomplice in cases of this character has been stated, by this court in the early case of Carr v. State, 22 Okla. Cr. 371, 211 P. 423, 424. It is there said:

“While a woman who consents to the crime of incest knowingly, voluntarily, and with the same intent which actuates the man is his accomplice, so that her testimony is governed by the law of accomplice testimony and requires corroboration in order to sustain a conviction, such rule is not applicable where the prosecutrix was at the time of the commission of the offense under the age of consent.” Matherly v. State, 62 Okla. Cr. 418, 71 P. 2d 1094.

In the Matherly Case, supra, the law with reference to when one is an accomplice and when it is the duty of the court as a matter of law to so find in cases of this character is fully discussed. It is unnecessary to hero quote therefrom. In that case the same was reversed because of the lack of corroboration and the unsatisfactory and contradictory evidence of the prosecutrix and error in the instructions of the court. While there is some similarity in the facts of the two cases, they are materially different. Here the evidence of the prosecutrix is not so unreasonable and unsatisfactory, but she is corroborated by her sister, Gladys Ruth Wood, who' testified to her father’s coming to the bed and being familiar with the prosecutrix upon several occasions and other acts on his part. She is corroborated by the evidence of Dr. H. L. Puckett, who testified to an examination of the prosecu-trix and toi her condition, and his opinion that she had had intercourse over a number of years, also by the testimony of Dr. Clifford Bassett. She was corroborated by Mr. and Mrs. C. C. Johnson and Jud Johnson, and especially with reference to her returning’ home with them, on the evening’ of the Sunday following the 4th of July, 1939, being one of the' occasions she claims she was assaulted by the defendant and which was directly contrary to' the evidence of the defendant. She is further corroborated by the statement of the defendant himself to the sheriff of Payne county and in the presence of the assistant county attorney, as hereafter stated, and also other evidence of corroboration and circumstances which it is unnecessary to mention and which justified the jury in finding- the defendant guilty.

We have carefully read and examined the record in this case. The prosecutrix was 17 years of age at the time she testified. She had graduated from the Gushing highschool and her education was much better than those generally involved in cases of this character. It is true that the story which she told was revolting, yet under a gruelling cross-examination she at no time changed or varied the story which she told, and as heretofore shown, it was corroborated in many particulars. The defendant was a man far above the average in intellect. He had held a responsible position with a good company for many years. His position in the social world was such that it is hard to realize his committing a, crime such as here charged, but there is nothing in the record that justifies? an interference with the verdict rendered by the jury. The defendant himself, after his arrest and after being advised by the county attorney of his constitutional rights and that any statement, he made could be used against him at his trial, made the voluntary statement in the presence of the sheriff of Payne county that he had intercourse with his daughter “a lot of times.” Defendant, when ashed what he thought ought to be done to him, said, “I want to plead guilty and g,o on down.” Defendant, testifying in his own behalf, said that this statement was made after the sheriff had told him that if he would plead guilty there would be nothing put in the papers about it; that he did not understand the nature of the charge of incest at that time, and that he did not mean by this statement that he was guilty of having intercourse with his daughter, and that it was made for the purpose of protecting his family and avoiding publicity. These were all questions for the jury to pass upon, and the evidence being such that, if the jury believed that he was guilty, they had a right to so find, which they did, and the verdict will not. be set aside where the evidence is sufficient to sustain it.

The record reveals, and much stress is placed thereon in the brief of defendant, that just prior to the trial in the district court, the sheriff of Payne county and other representative citizens came to the State Capitol at Oklahoma City to see the Governor and ask that he direct the Attorney General to. send an assistant to Payne county to assist in the prosecution of this case and to file other charges against this defendant. This was done, as was the right under the law. The record does not reveal that the defendant was prejudiced or deprived of any of his substantial rights, by reason of this action. The sheriff was cross-examined by the attorney for the defendant with reference to .this matter, and positively denied that he had taken any steps against the defendant other than such as to do his duty as a public officer. No evidence was offered by the defendant to show that he had in any way been prejudiced or denied any right which he had under the law. We have carefully examined the evidence of defendant and those who testified in his behalf. There is some conflict in the evidence, but as stated, this was for the jury to decide and not an appellate court. It is only when there is not sufficient evidence to sustain the verdict that the same will be set aside.

The judgment and sentence of the district court of Payne county is. therefore affirmed.

JONES, J., concurs. DOYLE, J., absent.


source: Caselaw Access Project

author: BAREFOOT, P. J.

license: Public Domain

text:
    LEONARD WOOD v. STATE.
    No. A-9966.
    Sept. 3, 1941.

      (116 P. 2d 728.)

      Mac Q. Williamson, Attv. Gen., Jess L. Pullen and Owen Watts, Asst. Attys. Gen., and David P. Hervey, Co. Atty., of Stillwater, for tbe State.
    Leon J. York, of Stillwater, for defendant.
   BAREFOOT, P. J.

Defendant was charged in tbe district court of Payne county with tbe crime of rape upon Leona Mae Wood; was tried, convicted of rape in tbe second degree and sentenced to serve a term of five years in tbe penitentiary, and bas appealed.

This case, by agreement of counsel and order of the court, has been consolidated with 72 Okla. Or. 347, 116 P. 2d 734, against this same defendant, and in which an opinion has this day been rendered by this court. The defendant has been unable to give bond pending appeal, and for this reason the cases have been advanced and are decided at this time. By reason of the similarity of the facts in each of the cases, it Avill be unnecessary to' here again recite them, as they appear in the former case.

In the instant case the defendant, Leonard Wood, Avas charged by an information which contained two counts'. The first count charged the defendant with rape by force, and the second count charged the defendant with having intercourse with Leona Mae Wood, a female under the age of 18 years and over the age of 16 years, to wit, 17 years, and being of previous chaste and virtuous character.

In this case it Avas alleged that the defendant committed the crime of rape upon his daughter on the 8th.’ day of October, 1938. She testified that on that date they lived about one and one-half miles in the country from Cushing, Payne county, and that her mother and younger sister went to town about 1:30 p. m. for the purpose of getting some shoes for her sister. She testified as follows:

“Q. After they had gone, did anything unusual take place there at the home? A. Yes, sir. Q. What happened? Where were you — (Here witness cries.) Q. What bedroom in the home were you when this unusual occurrence happened? A. In the dining room typing. Q. Just tell us Avhat happened there while you were in the dining roomi engaged in your typing? A. My father came in, and— (here witness cries again) — he walked over to me and told me to come on with him and then he — I said I wouldn’t go because I had to do my typing and he — he pulled me over to the bed and took off my clothes and part of his and got on top of me. Qj. Did he have an act of intercourse) with you? A. Yes, he did. Q. Were his private parts placed in your private parts? A. Yes, sir. Q. Did he at any time strike you? A. Yes, he did. Q. During the time in which he was molesting you? A. Yes, sir, when I tried to get up off of the bed he struck me. Q. Did you usei any force to resist the attack? A. Yes, sir, I did all I could, but I wasn’t as strong as he was. Q. Was your resistance overcome by the force he used on you? A. Yes, sir. By Mr. York: Object to this as leading and suggestive. By the Court: Overruled. By Mr. York: Exception. Q. You say he struck you. How many times? A. Twice. Q. Twice? A. Yes, sir. Q. Did you lose your consciousness? A. I did the last time he struck me. Q. Prior to the time he struck you the last time, had he performed an act of intercourse? A. Yes, sir. Q. Prior to the time you became unconscious? A. Yes, sir. Q. About what time did that take place? A. Sometime after 1:30, I don’t know exactly. Q. Do' you know how long you were unconscious? A. No, sir, I don’t have any idea. Q. About what time did you regain your consciousness? A. I don’t know what time it was. Q. Did your mother and sister come home? A. Yes, sir, they came home about 4:30. Q. Where were you when they came home? A. Laying on the back bedroom bed. Q. Was your father there? A. Yes, sir, he was there. Q. What, if anything, did he say to your mother and sister when they came home? A. He told them I had fainted and when they wanted to call the doctor, he told them no, I would be all right, not to call the doctor. Q. At that time, did you tell anybody about this act of intercourse your father had had with you? A. No, sir. Q. Had your father had other acts of intercourse with you prior to that time? A. Yes, sir. Q. Did he have acts of intercourse later on, after the 8th? A. Yes, sir. Q. When did he first start to' have intercourse with you? A. About — I was in the eighth grade, about four or five years ago. Q. What did he say to you relative to those acts? A. He told me that it Avas a part of growing up, and I was supposed to take it and not say anything about it, and it Avas what I was supposed to do. Q. Did you afterwards learn as you grew older that was not tbe proper moral code for daughters and fathers to have? A. Yes, sir. Q. What did he tell yon then? A. He told me my mother had been operated on and it was my duty to take her place, and if I wanted to have peace in the family I was supposed to do it and not say anything about it. Then he threatened to kill us all, and my mother— By Mr. York: Objected to as immaterial, and not responsive. By the Court: Fix the time and place. Otherwise it will be overruled. By Mr. York: Exception. Q. Relative to October 8th, 1938, did he at any time, right there on that particular day, make any threats to kill you and your mother? A. Yes, he did. Q. Had you ever had intercourse with anyone prior to the time your father first had intercourse with you? A. No, sir, I had not. Q. Have you had intercourse with anybody else at any time other than your father? A. I have not.”

Under the law one may be guilty of rape upon his own daughter. Signs v. State, 35 Okla. Cr. 340, 250 P. 938. He may also- be guilty of incest. Each act is a separate offense. 31 C. J. 382, section 30; Williams v. State, 40 Okla. Cr. 303, 268 P. 329; Moorehead v. State, 38 Okla. Cr. 328, 261 P. 231. The act complained of and charged in the incest case was on the 30th day of December, 1939. The act here charged was on the 8th day of October, 1938.

For reversal of this case it is contended:

(1) The defendant was not given a fair and impartial trial.

(2) The court committed error in permitting the state to introduce the alleged confession that was made by the defendant to the sheriff while he was in jail.

(3) The evidence was insufficient to convict the defendant.

Many of the objections urged have been referred to in the incest case heretofore cited.

The statute defining rape is Oklahoma Statutes 1931, section 2515, Oklahoma Statutes Annotated, Title 21, section 1111, and is as follows:

“Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances:
“1st. Where the female is under the age of sixteen years .
“2nd. Where the female is over the age of 16 years and under the age of 18, and of previous chaste and virtuous character.
“3rd. Where she is incapable through lunacy or any other unsoundness of mind, whether temporary or permanent, of giving legal consent.
“4th. Where she resists but her resistance is overcome by force and violence.
“5th. Where she is prevented from resistance by threats of immediate and great bodily harm, accompanied by apparent power of execution.
“6th. Where she is prevented from resisting by any intoxicating narcotic, or anesthetic agent, administered by or with the privity of the accused.
“7th. Where she is at the time unconscious of the nature of the act and this is known to the accused.
“8th. Where she submits under the belief that the person committing the act is her husband, and this belief is induced by artifice, pretence or concealment practiced by the accused, or by the accused in collusion with her husband with intent to induce such belief. And in all cases of collusion between the accused and the husband of the female, to accomplish such act, both the husband and the accused shall be deemed guilty of rape.”

Under the contention that the defendant did not have a fair and impartial trial, it is insisted that, by reason of the fact that the sheriff of Payne county and other parties came to Oklahoma City just prior to the trial in the incest case for the purpose of seeing the governor and asking that he request the attorney general to send an assistant to assist in the prosecution of defendant and, if necessary, file additional charges against him, that he was prejudiced by this action. The county attorney and sheriff, under the law, had the right to make this request, and the governor had the right, under the law, to request the attorney general to appear. Oklahoma Statutes 1931, section 3532, O. S. A. title 74, section 11. Ex parte Kelly, 45 Okla. 577, 146 P. 444; Viers v. State, 10 Okla. Cr. 28, 134 P. 80. No showing has been made in the record that this action was to the prejudice of the defendant. This burden was upon the defendant. The evidence revealed that the act complained of was committed on the 8th day of October, 1938. Prosecutrix testified that she was born on the 20th day of March, 1922. This would have made her a little over 16% years of age at the time of the act charged. After the evidence had been presented to the jury, attorneys for defendant made a motion that the county attorney be required to elect upon which count of the information he stood, and in compliance with the order1 of the court, the first count in the information was dismissed and the state relied upon the second count for a conviction. This they had a right to do. It is a rule of practice well settled that the same offense may be alleged in different language in separate counts in the same indictment or information, and in many instances it is necessary to follow such practice. 31 C. J. 382, sec. 31: Wines v. State, 7 Okla. Cr. 450, 124 P. 466; Davis v. State, 17 Okla. Cr. 604, 191 P. 1044; Brock v. State, 39 Okla. Cr. 162, 263 P. 1115; Moorehead v. State, 38 Okla. Cr. 328, 261 P. 231.

In the case of Dodson v. State, 30 Okla. Cr. 135, 235 P. 268, 269, this court said:

“The proof that the prosecutrix was a female of previous chaste character need not be made by evidence directly upon the point other than the testimony of the prosecutrix, but may be shown prima facie by presumptions from other facts.
. “The prosecutrix testified that she had not had sexual intercourse with any other man, and the evidence shows that she had always resided with her parents and went in such society as the neighborhood afforded. This was competent evidence that she was of previous chaste character.”

The jury returned a verdict of guilty under the second' count of the information, and the defendant was sentenced to five years in the penitentiary. We find no irregularity in these proceedings or nothing that deprived the defendant of a fair and impartial trial or that deprived him of any substantial right which he had under the law.

The second contention that the court erred in permitting the sheriff of Payne county to testify to the statement made by the defendant after he was placed in jail and to the introduction in evidence of the statement signed by defendant will be considered. The evidence of the sheriff, L. L. Fisher, is that, after defendant had been placed in jail, he and the assistant county attorney of Payne county talked with him the morning following his arrest; that the assistant county attorney did most of the talking and that he heard the conversation; that the defendant was warned that any statement he made could be used against him and that the statement that was made was a voluntary statement made by defendant after he had been so advised; that defendant signed the written statement, which was in the form of questions and answers by the assistant county attorney, and that this was done in the district courtroom, and that the court reporter took the questions and answers. This statement was as follows:

“Statement of Leonard C. Wood, taken on the 24th day of January, 1940. Q. Yon have been charged with incest or having sexual relationship with someone in yonr family other than yonr wife, and I particularly refer to Leona Mae. I want to ask yon, since 1936, how many times have you attacked or assaulted Leona Mae sexually? A. I don’t have any idea. Q. As many as ten? A. I guess it would be that many. Q. Probably more than that? A. No', I don’t believe SO'. Q. When is the last time, the last assault you made on her? A. I don’t know. Q. Was it sometime in December, last year? A. No, I didn’t have one then. Q. About how long ago was it? A. Well, it was before I moved to town. In November, I guess. Q. November, 1939? A. Yes, sir. That was an assault I made. 1 never had intercourse. Q. You did attempt to? A. Tried. Q. What would you do? A. I tried to> love her up and try to get my hands on her and wrestle her all over the bed, or in the bathroom, or any place we might be. Q. You don’t know whether or not you ever penetrated her? A. Well, no, to my knowledge I don’t know. I don’t think I did. Q. You stated to us a while ago you might have done so during one of those periods? A. It is possible that I could have. But I do not say that I did. Q. The first time you ever had this relation with •the little girl, do you remember about what time that was? A. No, sir, I wouldn’t attempt to give you the date. Q. Have you during the first few times that you assaulted her, do you remember whether or not there was any penetration? A. No, sir, nothing only my finger. Q. Then later on, after you had been playing with her with your finger, had you ever penetrated her with your private parts? A. Not to my knowledge. I don’t think I ever have. I just can’t believe that I did. Q. Did you ever try tO' play with her? A. No, sir, never did. Q. The only girl you have ever bothered is your own daughter. A. Yes, sir, that is right to my knowledge, I know that is right. Q. Did you ever play with the little girl, Gladys Ruth? A. I try to get her on my lap and love her, but never tried to do anything else. They won’t any of them let me get near them. I am crazy to love them and never have been able to in ray life. They are afraid of me, and I can’t blame them. I try to love one of them and try to do what is right and I cry for them, and nothing will bring them up to me.”

A part of sheriff Fisher’s evidence was as follows:

“Q. What did he tell him? A. Well, he told him what he might say could be used against him in the trial of the case. Q. What did the defendant say as to being advised of those rights? A. I believe he said he knew it, or something to that effect. I wouldn’t be sure just what he said. Q. Do you know whether Mr. Williams asked him if he had had sexual intercourse with his daughter, Leona Mae? A. Yes, sir. Q. What did he say in response to that question? A. He said he had. Q. Did you hear Mr. Williams say to him, about how many times he had had sexual intercourse with his daughter, Leona Mae? A. Mr. Williams asked him how many times would he say, and he said a lot of times. I believe Mr. Williams then asked him would he say a thousand times, and he/ says Wes, — No’, he says, ‘I wouldn’t say that many, but a lot of times.’ ”

In the case of Pressley v. State, 71 Okla. Cr. 436, 112 P. 2d 809, 813, we have recently reviewed the earlier decisions of this court upon the question of the admissibility in evidence of confessions or statements made by a defendant while in the custody of officers prior to his trial. The court, after reviewing these decisions, comes to the conclusion :

“As a general rule, all confessions are prima facie admissible in evidence. Unless an objection is interposed, the practice has been to receive confessions without question. If an objection to' the admissibility of a confession is interposed by the defendant, a question of law is presented to the court and should be determined in the absence of the jury, preliminary to allowing the confession to go to the jury. The burden is on the defendant 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.
“The trial court, in ruling upon the question of law. which was presented to' him, stated: ‘There is a conflict in the testimony here, and it will be for the jury to determine under proper instructions.’
“There may be a conflict in the testimony, and yet the trial court could find that the confessions were improperly obtained and inadmissible. Where a direct conflict appears in the evidence as to> whether the confessions were voluntary, trial courts generally have adopted the practice of submitting the facts and circumstances surrounding the giving of a confession to' the jury; not that the jury may pass upon its admissibility, but for the purpose of enabling them to' judge what weight and value should be given to the confessions as evidence, and the jury may disregard it if they are not satisfied that it is voluntary.”

See Howington v. State, 35 Okla. Cr. 352, 250 P. 941; Lucas v. State, 26 Okla. Cr. 23, 221 P. 798; Mays v. State, 19 Okla. Cr. 102, 197 P. 1064; Miller v. State, 13 Okla. Cr. 176, 163 P. 131, L. R. A. 1917D, 383. Also, Williams v. State, 65 Okla. Cr. 336, 86 P. 2d 1015.

In the instant case the trial court followed the rule here announced. The jury ivas excused and the court heard the evidence and came to the conclusion that the statement made by defendant ivas admissible. This evidence was submitted to> the jury by proper instruction, as follows:

“You are instructed that if you believe from the evidence that free and voluntary statements were made to the officers by the defendant in reference to the offense charged herein, then you may take them into consideration with all the other facts and circumstances proven in the case and they should be given such weight and credit as you may think them entitled to receive, but if you find there was any inducement held out or threats or violence offered to the defendant to secure from him such a statement and be acting under such inducement or threats did make such a statement, then you should not consider such statement, if you find one was made, in arriving at your verdict. For statements or confessions to be competent for your consideration, they must he freely and voluntarily made and if not so made, then you should disregard them, but the fact that they may have been elicited by questions propounded to the defendant does not make them incompetent for your consideration. It is not necessary that such statements be spontaneous, that is, to proceed wholly from the suggestion of the defendant.”

In the Pressley Case, supra,, the court did not submit an instruction similar to the above. The case was reversed for this and other reasons.

From the above it occurs to us that the statements made by the defendant in this case were voluntary and that therefore the evidence of the sheriff and the written statement were admissible in evidence. But I desire at this time to call the attention of the county attorneys of this state to the practice of taking statements from defendants who have been arrested and placed in jail prior to the time that they have had an opportunity to procure counsel. This practice should be carefully guarded, and no statement should be taken until the defendant has been warned that any statement he may make could be used against him at the trial, and that if he made the statement it would be a voluntary statement, and that it was not necessary for him to make a statement unless he voluntarily desired to do so-. The Constitution and statutes of this state provide that a defendant cannot be a witness against himself. Oklahoma Constitution, art. 2, sec. 21; Okla. Stats. 1931, sec. 3068, O.S.A. title 22, sec. 701. He is also> entitled to counsel. Okla. Stats. 1931, sec. 2929, O. S. A. title 22, sec. 464. Officers should be as zealous in the enforcement of these rights as in the conviction of the defendant. Often it is easy to procure evidence to convict one and it is unnecessary to' procure a statement. Good judgment should be exercised by the officers to see that the constitutional and statutory rights of defendants are safeguarded prior to their trial and while in the custody of the officers of the law. We are now having many appeals to this court and writs of habeas corpus calling attention to these cases and contesting the fact that statements made by defendants while in the custody of the officers were made without warning and contrary to the rights afforded the defendant by the constitution and statutes of this state.

From what has heretofore been stated, it will be noted; that we find nothing in this record to justify the setting aside of this judgment and sentence for the reason that the evidence was insufficient to justify the same. The evidence was somewhat conflicting, but there was sufficient corroboration of the evidence of the prosecutrix, as has 'been pointed out. The jury has passed upon the same and under the law this court will not interfere merely because there is some conflict. The fact that the prosecu-trix did not tell of her experience for a long period of time may be a circumstance in defendant’s favor for the consideration of the jury, but she gave as an explanation that she feared for her life and the life of her family. There was no conflict or contradictory statements made/ by her as a witness. The jury heard the evidence and all the facts and circumstances. It was for them to decide where the truth lay. We are of the opinion that the judgment and sentence of the district court of Payne county should be affirmed, and it is so ordered.

JONES, J., concurs. DOYLE, J., absent.


author: JONES, J.

text:
    EDGAR MORGAN v. STATE.
    No. A-10000.
    Sept. 3, 1941.
    (116 P. 2d 742.)
    Chester Bender, of Thomas, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Edgar Morgan, was by information charged on September 16, 1940, in the district court of Washita county with the offense of forgery in the second degree, tried, convicted and sentenced to serve a term of two years in the State Penitentiary, from which judgment and sentence he appeals to this court.

The only question presented by counsel for defendant is whether the evidence was sufficient to sustain the conviction.

The prosecuting witness, Junior Carson, was employed at the garage of William Linder in Cordell. A day or two prior to December 13, 1939, Carson became acquainted with the defendant, Edgar Morgan, who came into the garage to- try to- sell some insurance, and stated that lie was wanting to buy a car. On December 13, 1939, Carson and the defendant consummated a trade whereby Carson sold to defendant a 1933 De Soto automobile for a consideration of $100. Defendant did not have the cash, but stated that he would have the cash by the following Saturday; and in order to make the prosecuting witness, Carson, secure, the defendant gave Carson a note purportedly executed by one Lee White in the sum of $156, secured by a mortgage on a 1934 Ford automobile, which note was to be paid in twelve monthly installments of $13 each, starting on December 28, 1939. Under the agreement between the parties, defendant told Carson that if he was not able to pay the $100 by the Saturday following- that he could keep the Lee White note and collect the monthly installments from White; that defendant assured him that the Lee White note was good and that the monthly payments would be made. The defendant took the De Soto automobile, but did not make the $100 cash payment the following Saturday or at any time.

Morgan represented to Carson that Lee White was a mechanic at Bums Flat.

The mortgage at the time Junior Carson accepted it was not witnessed. Some two weeks after the transaction, Morgan brought Robert Strong, who he said was a witness to the mortgage, to- the place where Carson was working. Strong witnessed the mortgage there. In the trial of the case it was brought out that Strong was a minor; that he had not witnessed the signing of the mortgage alleged by Morgan to have been executed by Lee White; that he did not know Lee White, but was under the impression that he was witnessing a car trade being made at the time he placed his signature on the mortgage.

Prosecuting witness was unable to find Lee White at Burns Flat. Defendant told him that White had mowed from Burns Flat to Butler, and ga,ve directions as to where his house was located. Carson could not find him at Butler, and the people from whom he inquired had never heard of him.

The state introduced testimony that no mechanic by the name of Lee White worked at Burns Flat in 1939.

Bill Armstrong, a constable of Custer county, stated that in 1939 he had been given a check for collection signed by Lee White and endorsed by Morgan. Defendant told him that Lee White was at Bums Flat; that he started to that town with defendant, but that defendant said his car would not make the trip. Armstrong offered to use his own car; Morgan wanted to wait until the day following. The next day Armstrong found Morgan after a search. He refused to- go- to Burns Flat, but paid the check himself.

Defendant offered no- testimony.

In the case of Taylor v. State, 65 Okla. Cr. 432, 88 P. 2d 665, 668, it is stated:

“The question of guilty knowledge, and whether there was an intent to defraud, are questions for the jury to decide under the circumstances. And the proof of this fact may be made by circumstantial, as well as direct, testimony.”

The evidence introduced by the state was • sufficient to warrant the jury in concluding that defendant sold the note with intent to' defraud.

This, court has many times held that where there is evidence from which the jury would reasonably and logically find the defendant guilty of the crime charged, in the absence of unusual circumstances, this court will not set aside the jury’s verdict on account of insufficiency of the evidence. Browning v. State, 31 Okla. Cr. 373, 239 P. 272; Hardin v. State, 65 Okla. Cr. 260, 85 P. 2d 332.

For tbe reasons stated above, this, case is affirmed.

BAREFOOT, P. J., concurs. DOYLE, J., absent.


text:
    Ex parte J. D. MARCHBANKS.
    No. A-10094.
    Sept. 3, 1941.
    (116 P. 2d 725.)

      W. N. Eedwine and W. J. Hulsey, both of McAlester, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   JONES, J.

This is an original proceeding in habeas corpus wherein the petitioner, J. D. Marchbanks, seeks his release from imprisonment in the State Penitentiary at McAlester.

This proceeding is similar in many respects to the case of Ex parte Wooldridge, 72 Okla. Cr. 292, 115 P. 2d 284, 286. The same attorneys appear in this case as appeared for the petitioner in Ex parte Wooldridge, supra, and substantially the same issues are presented.

The verified petition filed herein alleges in substance that an information was filed against the petitioner in the district court of Garvin county on July 17,1937, charging the defendant with the rape of his 15 year old daughter, Eveline Marchbanks.

That said petitioner was ignorant of the law and did not have a lawyer to represent him when he was called upon to plead to said charge; that the court did not ask him if he wanted a lawyer; that the information was not read to him; and that he was not served with a copy of the information at that time.

It is further alleged that the petitioner was not served with a list of the witnesses that would appear against him in chief, and was not advised by the court that he was entitled to a postponement of the case for 24 hour$ before being required to plead to the said charge. The said petitioner, being illiterate and inexperienced in court and not being, advised of his constitutional and statutory rights as above said, pleaded guilty to said charge and! was immediately sentenced by the judge of the district court of Garvin county to 15 years’ imprisonment in the State Penitentiary at McAlester.

The petition further alleges that the judgment and sentence is void for the reason that the same was pronounced against the petitioner without due process of law, and that petitioner is entitled to his discharge.

The affidavit of the petitioner, which recites substantially the same facts as alleged in the petition, has been filed with this court in support of said petition.

The warden of the State Penitentiary, acting through the Attorney General, has filed a response to the petition in which he admits that the petitioner was committed to the Oklahoma State Penitentiary to serve a sentence of 15 years for the charge of rape from Garvin county, Oklahoma.

The respondent further specifically denies the allegations contained in the petition, but alleges the facts to be as follows:

That on July 7, 1937, a complaint was filed before the county judge of Garvin county, acting as examining magistrate, charging said petitioner with the crime of rape •committed upon the 15 year old daughter of said petitioner; that on that day said petitioner appeared before said county judge; the complaint was read at length to him, and he was at that time advised of his right to counsel and of time in which to plead to said complaint; that petitioner entered his plea of not guilty; that six days later, on July 13, 1937, the petitioner again appeared before said county judge and advised said county judge that he wished to withdraw his plea of not guilty; that petitioner was again advised by the county judge of his right to consult with counsel before making any statement; but that petitioner at his own request changed his plea of not guilty to a plea of guilty, and asked to b.e bound over to the district court for sentence, which was accordingly done. That four days thereafter, on July 17, 1937, the petitioner was taken before the judge of the district court of Garvin county for arraignment upon the information charging rape as aforesaid. That at that time the information was read at length to the petitioner by the county attorney, and the court advised petitioner of his right to have further time in which to plead to said information and the employment of counsel or for the court to appoint counsel to defend him in case he was financially unable to employ counsel and wished the services of counsel; that he Avas further advised of his right to be tried by a jury and of his other legal and constitutional rights; but that petitioner, after being fully advised of all of these matters and fully acquainted with the nature of the charge and of the possible penalties that might be inflicted against him, chose to waive his rights and enter his plea of guilty, and was accordingly sentenced to serve said term of 15 years in the State Penitentiary.

The Attorney General, in support of his response, introduced the minutes of the county court of Garvin county, the minutes of the district court of Garvin county, and sworn affidavit of Sam J. Goodwin, who was the duly elected and acting county attorney of Garvin county at the time of the proceedings against the petitioner involved’ herein, the affidavit of Ben T. Williams, Avho was the county judge before whom petitioner’s preliminary complaint was filed, and the affidavit of W. G. Long, district judge of Garvin county at the time petitioner was sentenced upon his plea of guilty to said charge.

Said affidavits of said county officials are lengthy, and it is not necessary to set the same out in detail. It is sufficient to say that they fully support the allegation^ of the response and are sufficient to convince this court that the petition filed herein is wholly without merit and should be denied.

As has been repeatedly held by this court:

“A person prosecuted for a crime may waive the rights guaranteed to him by bill of rights, relating to trial by jury, right to be heard by counsel, etc. * * *
“Whether one accused of crime has waived his right to the assistance of counsel for his defense must depend in each case upon the particular facts and circumstances surrounding that case, including the background, experience, and. conduct of the accused.”

See Ex parte Wooldridge, supra; Ex parte Meadows, 70 Okla. Cr. 304, 106 P. 2d 139; Ex parte Bradley, 72 Okla. Cr. 107, 113 P. 2d 611.

It is our opinion, after a full consideration of this record, that the petitioner was accorded every right guaranteed to him under the statutes and Constitution of the State of Oklahoma in the proceedings in the county court and in the district court upon his arraignment in connection with the charge upon which he now stands incarcerated in the State Penitentiary, and for that reason his petition for a writ of habeas corpus should be denied.

It is so ordered.

BAREFOOT, P. J., concurs. DOYLE, J., absent.


text:
    HERSCHEL ROBERTS v. STATE.
    No. A-9800.
    July 2, 1941.
    (115 P. 2d 270.)

      Marion Henderson, of Pauls Valley, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in .error.
   JONES, J.

The defendant, Herschel Roberts, was charged in the county court of Garvin county with the crime of unlawful possession of intoxicating liquor. A plea of guilty was entered by the defendant, and he was sentenced by the court to serve 45 days in the county jail and to' pay a fine of $250 and costs, from which judgment and sentence he has appealed to this court.

On the date sentence was pronounced against the defendant, he filed a motion for permission to withdraw his plea of guilty, which motion was denied by the court and sentence pronounced. Subsequently, and within the time provided by law, the defendant filed a motion for a new trial, which was overruled and exception allowed to defendant; and it is from the overruling of this motion for a new trial that an appeal has been taken to this court. Four propositions are raised in defendant’s brief, and they shall be discussed in order of presentation.

It is contended that the conviction of a person under an information not signed by the county attorney is void for the want of jurisdiction of the trial court. In connection with this contention, it is stipulated by the parties that the county attorney’s name, which appeared on the information filed against the defendant, was signed by his stenographer.

Several cases are cited in the brief of defendant in support of this proposition. A study of those cases discloses that in each instance the question of the insufficiency of the information Avas properly raised by a motion to quash or a demurrer prior to the time the defendant entered his plea to the merits of the case. While a reading of the syllabus of some of the cases cited by counsel for defendant would indicate that a judgment rendered on an information charging a misdemeanor is void, where the information is not signed by the county attorney, it is significant that this court has never made such a ruling except where the question is raised by proper objection before pleading to the merits.

This matter Avas first presented to the Criminal Court of Appeals in the case of Brown v. State, 9 Okla. Cr. 382, 132 P. 359. Judge Furman discussed this question at length in that case, and his opinion is sound. Under the reasoning of that case, there would be no distinction so far as the signing of the information is concerned between a felony and a misdemeanor. It was therein held:

“(a) A departure from the form or mode prescribed in the Code of Criminal Procedure in respect to any pleadings or proceedings or any mistake therein will not render a judgment of conviction invalid unless it has actually prejudiced the defendant or tended to prejudice him in respect to his substantial rights.
“(b) When an information is not signed by the county attorney, it fails to comply with the requirements of the Code, but under section 6754, Comp. Laws 1909 [Rev. Laws, 5799, sec. 2956, O. S. 1931, 22 Okla. St. Ann. § 512] this defect can only be taken advantage of by demurrer and cannot be raised in the first instance in arrest of judgment.
“(c) Jurisdiction of the subject-matter cannot be conferred by consent, and the want of such jurisdiction cannot be waived, but jurisdiction of the person can be conferred by consent and the want of such jurisdiction is waived unless objected to in apt time.
“(d) The Code of Criminal Procedure directs that all informations shall be signed by the county attorney. This is required as a guaranty of good faith and to> protect a defendant against prosecution by private parties without authority of law; but where a defendant pleads to an information which is not signed by the county attorney, and without objection goes to. trial thereon, he waives all right to afterwards, object to the information upon this ground, and cannot be heard upon appeal to complain that the information was not signed by the county attorney as directed by law.”

We are impressed with the logic of Judge Furman’s opinion in disposing of this question and feel that said decision is applicable and should control in the instant case.

It is next contended that the county attorney, who prior to his election and qualification as such was counsel for defendant in this criminal action, is disqualified to appear and prosecute said defendant on behalf of the state.

Tlie record herein discloses many queer and, to this court, strange things happening concerning the offense. The defendant was first charged with this crime by Clarence Bowie, county attorney; and upon his arraignment in February, 1936, he appeared with his attorney, Sam Goodwin, who was later elected county attorney. Later, and on April 12, 1937, one Harold Freeman filed an affidavit for a continuance of the case, which was then set for trial, for the reason the said Harold Freeman was defendant’s sole counsel, and that he was a member of the Legislature which was then in session. Upon the filing of this affidavit, and in conformity to the statute covering such cases, the county court struck the case from that trial assignment. Mr. Freeman has never appeared further in the case. When the case was reset for trial in 1939, the defendant appeared in person and by his attorney, C. J. Moody. The original information charged the defendant jointly with his brother, Lewis Roberts. According to the minutes of the county court, the charge was dismissed as to Lewis Roberts on motion of the county attorney; and the defendant at that time withdrew his plea of not guilty and entered a plea of guilty. Sentence was deferred to October 2, 1939. On October 2, 1939, the defendant appeared in person and by his attorney, O. J. Moody; and upon their application sentence was further deferred to October 9, 1939: The record next shows that sentence was deferred to October 26, 1939; and on that date sentence was further deferred to October 28, 1939, upon which date sentence was further deferred to November 10, 1939, at 9 o’clock.

On November 10, 1939, the defendant filed a motion to withdraw his plea of guilty, in which he alleged that he was ignorant of the law, and through mistake, inadvertence, and without due deliberation, had entered his plea of guilty, mainly from the hope that he was not to have to serve any punishment; and he was under the impression that he would receive a suspended sentence; and that he had now learned that the information was void for the reason that it had not been signed by the county attorney, and the search warrant issued in said case was illegal and unauthorized, and that the now acting county attorney of Garvin county Avas employed at the time the information was filed to* represent him, the said defendant.

It is significant that at the hearing upon this motion, the defendant appeared with another attorney, Clarence Bowie, who was the county attorney who> first filed the information against the defendant. Here we have the strange coincidence of the man who> first appeared as attorney for the defendant later being elected county attorney, and, therefore, disqualified to prosecute the defendant, and the county attorney who first filed the information against defendant now appearing as defendant’s counsel. The record does not disclose that Mr. Goodwin, the present county attorney, ever appeared for the state in connection with this hearing, but that his assistant, Mr. Farmer, appeared and examined the witnesses when the defendant presented his motion to withdraw his plea of guilty. Mr. Bowie, the former county attorney, did appear for the defendant, examined witnesses in his behalf, and made the stipulation that he had not signed the information in the case, but that it was signed by Joy Mays, the stenographer. While his conduct as such attorney is not noAv before this court, it is so reprehensible that we feel it our duty to state that his action is a matter which probably should be investigated by the State Bar and by the county attorney of Garvin county. See section 181, O. S. 1931, 21 Okla. St. Ann. § 556.

After the motion to withdraw the plea of guilty was overruled by the court and the appeal taken to this court, still another attorney appeared in the case in the person of Mr. Henderson, who has filed a very able brief in support of the contentions of the defendant.

In addition to the two grounds above set forth, it is further contended that the court abused its discretion in not allowing the defendant to withdraw his plea of guilty, and that the judgment and sentence is excessive.

We have examined the record thoroughly and do not feel that it is necessary to' give an extended discussion of the evidence in connection with the application to' withdraw the plea of guilty. It is sufficient to say that the defendant had the aid and ássistance of able counsel when his plea of guilty was entered. It is apparent from the record that the defendant has exhausted every means at his command to avoid paying the penalty of this offense. His efforts to delay have met with a great deal of success as the final judgment in this matter has been postponed several years. Justice has been long delayed, but the day has finally arrived when the penalty of the law must be fulfilled.

The defendant has attempted to make a farce of thisi prosecution by switching from one attorney to another, but the courts of Oklahoma are not to be trifled with. The defendant was charged with the unlawful possession of 132 pints of whisky. There is nothing in the record to show his prior conduct as a citizen, but it is the rule of this court not to' interfere with the sentence pronounced by the trial court upon a plea of guilty unless it is manifest from the record that the sentence pronounced is excessive and not justified by any reasonable view that might be taken of the record.

We d.0' not feel that the trial court abused its discretion in refusing to- allow the defendant to' withdraw his plea of guilty.

For the reasons hereinabove stated, the judgment of the county court of Garvin county is hereby affirmed.

BAREFOOT, P. J., concurs. DOYLE, J., absent.


author: PER CURIAM.

text:
    HERSCHEL ROBERTS v. STATE.
    No. A-9800.
    Sept. 17, 1941.
    (117 P. 2d 174.)
    Marion Henderson, of Pauls Valley, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   PER CURIAM.

After receiving permission from the court, a second petition for rehearing has been filed and) this matter further presented and argued to the court.

We have again carefully reviewed the record in this case and are unable to find any evidence which is sufficient in our opinion to- show that the trial court abused its discretion in refusing the request of the defendant to withdraw his plea of guilty.

It is, therefore, ordered that the judgment of the county court of Garvin county be affirmed.

After the denial of the petition for rehearing and pursuant to the rales of this court, the mandate was issued. The Clerk of the Criminal Court of Appeals is hereby directed to recall the mandate and substitute this per curiam opinion for the opinion heretofore rendered in said case. 72 Okla. Cr. 384, 115 P. 2d 270.

It is SO' ordered.