text:
    JOHN NEELD v. STATE.
    No. A-8612.
    Feb. 16, 1934.
    (30 Pac. [2d] 193.)
    Paul D. Sullivan, 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 for convenience referred to as defendant, was by information charged with murder, was. tried and convicted of manslaughter in the first degree and sentenced to imprisonment in the state penitentiary for four years, and appeals.

The testimony in substance is that Buster Neeld, a brother of the defendant, and Cecil Davidson met in the town of Comanche on the 7th day of November, 1931, and became involved in a quarrel, and after some argument and discussion agreed to go outside of the corporate limits and fight; they went about a mile east of Comanche and began fighting before they got out of the car, Cecil using a knife on Buster Neeld. A number of parties followed them out, including Ed and John Neeld, John being sometimes called Shi; the father of the Neeld boys also went out to where the fight was going on. Several parties engaged in the fight. Several of the witnesses testify to seeing Cecil Davidson have a knife, and also to seeing the defendant, John Neeld, have a knife. The difficulty was what would be considered a family row, the Neeld boys and their father being on one side, and the Davidson boys and their relatives on the other.

The following questions were propounded to Blaine Lowery and he gave the following answers:

“Q. About how far west of Ben Davidson and Buster Neeld was George Abshire and Ed Neeld fighting? A. I figure around eight or ten feet. Q. Eight or ten feet? A. Yes, sir. Q. All right, then what occurred? A. George and Buster got in a fight there, then this Bill Lawson ran up. There was about four in a fight there at the same time. Q. Did you see any weapon being used by them? A. Car crank. Q. Who had the car crank? A. Ed Neeld had the car crank to start with. Q. Ed Neeld, the brother of the defendant, John Neeld? A. Yes, sir. Q. That is what I am getting at. You say you saw the Lawson boy come in there about that time. Who was the Lawson boy having a fight with? A. Shi Neeld over there. Q. Shi Neeld is the same person as John Neeld? A. Yes, sir. Q. Did you see John Neeld and Lawson in a difficulty there? A. Yes, sir. Q. Where was that with reference to' where Ben Davidson and Buster Neeld was? A. That was on west. I figure that was about two or three feet below George and Ed Neeld. Q. They were engaged in a difficulty on the extreme west of all the fighting? A. Yes, sir. Q. Did you hear the Lawson boy say anything? A. I seen him duck out of there and run to his car in a few minutes. I did not learn he was cut until I got back to town.”

George Abshire, a (witness, testified on behalf of the state that'—

“Another one of the Neeld boys jumped on to me. 1 suppose he was a Neeld boy. While they were after me, Bud Lawson run up and took one oft my hands. Bud Lawson and Bill Lawson are one and the same party. He run up and took the one I could not identify off my hands. I turned to see what the other was doing and he was standing up on a high embankment when I turned. While I was standing there Bill Lawson ran up and touched me and says: ‘Take me to town, I am cut.’ When I had seen him the last time he had taken one off my hands.”

Other witnesses testify to' seeing the defendant there engaged in the difficulty. No one testified positively that they saw the defendant strike the deceased, Bud, or Bill Lawson, with his knife, but they do testify seeing him with a knife, and seeing him engaged in the fight, and immediately thereafter Lawson called to his friend to take him to town, telling him he had been cut.

The defendant denies he cut deceased, but admits he was in the difficulty and pulled some one off of his father, and that in the difficulty he was cut on the finger or hand. This is in substance the testimony.

The defendant filed twenty-two assignments of error, but in his brief has argued only ¡three of them. The insufficiency of the evidence to warrant a conviction; that the court erred in instructing the jury on manslaughter in the first degree; that the court erred in refusing to admit proper, competent, material, and relevant evidence in said cause.

The evidence that the defendant urges should have been admitted is evidence of Mrs. S. S. Bradshaw a nurse in the hospital where the deceased was treated up to his death, that during the time he was in the hospital he told Mrs. Bradshaw he did not know who' cut him. The defendant on cross-examination showed by Dr. R. W. Richardson that in a conversation he had with the deceased he told him he did not know who had cut him, but did not say that the defendant did not cut him. The court did not err in refusing to admit the testimony of Mrs. Bradshaw.

The only question argued by the defendant that is necessary to consider is the question of the insufficiency of the evidence. The record discloses there had been a former trial in this case, and at that time the court had refused to instruct upon the question of manslaughter in the first degree. At this trial the court instructed upon manslaughter in the first degree, with the result the jury found a verdict of guilty and sentenced the defendant to imprisonment in the state penitentiary for a; term of four years.

This court from its organization up to the present time has held that it is the duty of the court to instruct oh all theories of the case, that in a murder prosecution it is the duty of the court to submit the law on each degree which the evidence tends to. prove. In this case the testimony of the state is clear and positive that the defendant was engaged in a part of the difficulty; that he was seen with a knife in his hand during the difficulty, and later with blood on his hand. The defendant denies he cut the deceased, but admitted he went to the rescue of his father and pulled’ one of the men off of him. This raises a conflict in the testimony, and this, court, in a long line of cases, has repeatedly held that, where there is any competent testimony, though conflicting, to sustain a verdict of guilty, it would not disturb the verdict. There is sufficient evidence in this case to sustain the verdict of the jury and judgment of the court.

After considering the record in this case, we hold that the defendant was very fortunate in securing as light' a sentence as was imposed upon him by the jury. In Lawson v. Territory, 8 Okla. 1, 56 Pac. 698, the Territorial Supreme Court held:

“All questions of fact, in a criminal prosecution, are to be determined by the jury, and the court cannot express an opinion as to the weight of evidence, except to direct a verdict of not guilty, and even then it must advise the jury that they may disregard such instruction and return a verdict of guilty; and it is error for a trial court, in a prosecution for murder, when the homicide was committed while the parties were having a personal difficulty, and there was some evidence tending to show that the deceased was the aggressor, to instruct the jury that ‘in this case there is no evidence to. support or justify a verdict of manslaughter in the first degree, manslaughter in the second degree, or justifiable homicide/ and to further instruct them, as. a matter of law, that their verdict should be guilty of murder, as charged in the indictment, or that such killing amounted in law to justifiable homicide, and that the defendant is not guilty. It is for the jury to say as to whether or not the defendant committed the homicide, and then it becomes their further duty to determine from the evidence, under the instructions of the court, of what particular crime, included in the indictment for murder, he is guilty.”

Under the Oklahoma statute (O. S. 1931, § 3062), in a trial on an indictment, questions of law are to be decided by the court, and the questions of fact are to be decided by the jury, and, although the jury have the power to find a general verdict which includes the question of law as well as the facts, they are bound nevertheless to receive the law as laid down by the court.

In Williams v. State, 12 Okla. Cr. 39, 151 Pac. 900, this court confirmed prior rulings that in a prosecution for murder it is the duty of the trial court to determine whether or not there is any evidence which tends to prove the different degrees, and, when the court has so determined there is some evidence tending to prove different degrees, then the law of each degree which the evidence tehds to prove should be submitted to the jury, and this ruling has been followed by this court, in the following cases: Steeley v. State, 17 Okla. Cr. 252, 187 Pac. 821; Lytton v. State, 12 Okla. Cr. 204, 153 Pac. 620; Irby v. State, 18 Okla. Cr. 671, 197 Pac. 526; Inman v. State, 22 Okla. Cr. 161, 210 Pac. 742; Willis v. State, 25 Okla. Cr. 259, 220 Pac. 72; Stanley v. State, 28 Okla. Cr. 135, 229 Pac. 657.

In Keltner v. State, 52 Okla. Cr. 150, 3 Pac. (2d) 451, this court held:

“In a prosecution for murder, when the court submits that issue, and the jury finds the defendant guilty of manslaughter in the first degree, in a case where the law and the facts make the crime murder, it is an error in the defendant’s favor, of which he has no cause to complain.”

After a careful study of the record, we hold that the defendant was accorded a fair and impartial trial; that no fair-minded jury could have arrived at any other verdict than one of guilty. The punishment imposed upon the defendant is reasonable. There are no errors in the record to warrant a reversal. The judgment is affirmed.

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


source: Caselaw Access Project

author: CHAPPELL, J.

license: Public Domain

text:
    GEORGE LITTLE STAR v. STATE.
    No. A-8593.
    Jan. 18, 1934.
    Rehearing Denied Feb. 16, 1934.
    (29 Pac. [2d] 995.)
    L. R. Stith (F. E. Chappell, on the brief), for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Rogers county of the offense of driving an automobile while intoxicated, and his punishment fixed by the jury at a fine of $700 and imprisonment in the state penitentiary for a period of nine months.

The evidence of the state is conclusive that defendant was driving his automobile on highway No. 66, near the town of Claremore, while intoxicated, and that while so driving he collided with a car driven by R. A. Crawford, seriously injuring Crawford and members of his family.

It is first contended the trial court erred in denying defendant a continuance because of an amendment to the information after the case had been called for trial but before the jury was impaneled.

The amendment complained of was a change of date on which it was alleged the offense was committed from the 7th day of January, 1932, to the 16th day of December, 1931.

The trial court offered defendant a continuance of four days, which he refused to accept, demanding a continuance for two weeks.

It was not incumbent upon the court to allow a continuance. Under the original information there would have been no variance between the allegation as to time alleged in the information and the date charged therein, as time was not a material element of the offense. When sections 2830 and 2887, Oklahoma Statutes 1931, are considered with French v. State, 17 Okla. Cr. 542, 190 Pac. 207; Johnson v. State, 21 Okla. Cr. 17, 204 Pac. 311; Elkins v. State, 29 Okla. Cr. 175, 233 Pac. 491; Ealum v. State, 32 Okla. Cr. 197, 239 Pac. 933; Lewis v. State, 39 Okla. Cr. 119, 263 Pac. 473; and Paul v. State, 41 Okla. Cr. 164, 272 Pac. 485, it is apparent there is m> merit in this contention.

It is also contended the court erred in permitting the state to indorse the names of additional witnesses on the information on the eve of the trial, without granting defendant a continuance.

It appears from the record that counsel objected to the indorsement of additional names of witnesses on the information, without asking any further continuance than that demanded under his objection to the amendment of the information. No affidavit was filed showing surprise or necessity for a continuance; counsel evidently preferring to stand on the record already made. There was no abuse of discretion in permitting the indorsement of the additional names and refusing a continuance because of such indorsement.

It is next contended the court erred in refusing to permit defendant’s counsel to interrogate the prosecuting witness upon the question of a civil suit for damages pending against defendant, growing out of this collision.

It appears from the record that, when defendant’s counsel asked the prosecuting witness if he had not filed a civil suit for damages arising out of this collision, the county attorney objected, and the court sustained the objection, saying: “It would make no difference.” Counsel for defendant then suggested to the court they desired to interrogate the witness upon that matter to show his interest, to which the court said: “I don’t think the fact that he filed a suit would have any bearing on the guilt or the innocence of the defendant.” Thereupon the state withdrew its objection to the questions asked, and offered to permit defendant to' introduce the petition in the damage case and show by the witness that he had brought such a suit. Thereupon the court offered to permit defendant to cross-examine the witness Crawford, but he declined to do SO'. Such action on the part of counsel for defendant amounted to a waiver of objections and estopped defendant from raising the question in this court.

In this connection counsel for defendant also complain of certain remarks of the trial judge which relate to the materiality of this evidence, 'but, inasmuch as there appears to be no objection made to the remarks of the court nor any request to have the judge instruct the jury not to consider such remarks, the question is not properly raised in this court.

Finally, it is contended the trial court erred in permitting the jury to consider evidence of other offenses committed by defendant by driving a car while intoxicated on the same day this collision occurred, but three or four hours previous to the collision.

A witness may express his opinion as to the drunken condition of a person in cases of this character. Collins v. State, 15 Okla. Cr. 96, 175 Pac. 124.

The state has a right to prove the drunken condition of the driver of an automobile five or six hours after the injury occurs. Nail v. State, 33 Okla. Cr. 100, 242 Pac. 270.

Where evidence of intoxication is material to the charge, the same may be proved to have existed both before and after the alleged offense. 1 Wigmore on Evidence (2d) Ed.) § 235; People v. Salladay, 22 Cal. App. 552, 135 Pac. 508; People v. Nakis, 184 Cal. 105, 193 Pac. 92; People v. Collins, 195 Cal. 325, 233 Pac. 97.

There being abundant evidence to support the verdict of the jury, and no reversible error appearing upon the record, the cause is affirmed.

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


author: DAVENPORT, J.

text:
    R. L. DANIELS v. STATE.
    No. A-8571.
    Aug-, 4, 1933.
    Rehearing Denied Feb. 27, 1934.
    See, also, 54 Oída. Cr. 125, 15 Pac. (2d) 148.
    T. J. Hinshaw and Jack W. Page, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was tried and convicted of robbery with firearms and was sentenced to- serve five years in the state penitentiary at hard labor, and appeals.

The transcript discloses that on the 13th day of April, 1933, the case was called for trial and jurors were called into the box, sworn and examined on their voir dire; and, when there were twelve jurors in the box who' answered the preliminary questions, the court advised the county attorney that it was the state’s first challenge. The county attorney announced that the state waived its first peremptory challenge; the court then advised the defendant that it was his first challenge, and the defendant also waived his first peremptory challenge. The court ordered the jury sworn to try the case. When the jury was sworn, the county attorney stated to the court that he did not intend to waive all of the state’s peremptory challenges and asked that the state be permitted to exercise a challenge to certain jurors then in the box. The court granted the state permission, and without objections on behalf of the defendant, the state challenged one juror and the defendant withdrew his waiver of challenge of juror No. 1 and challenged one juror. The state then exercised its second challenge, and the defendant exercised his second challenge; no objections being made by the defendant to the proceedings had by the court. The defendant, after the state and the defendant had exercised two challenges each, filed a motion to discharge the jury on the ground that the defendant had been in jeopardy from the time the‘twelve men were originally sworn as jurors to try the case, which motion was overruled by the court, and the defendant reserved an exception. The court, in overruling the motion, said:

“Frankly, gentlemen, I was of the opinion that the jury was acceptable to the parties at the conclusion of the waiver, but, under the showing made by the county attorney, in the furtherance of justice and that the state should not suffer, I permitted a withdrawal of the waiver of the state and the defendant. Upon doing so, offered the state and the defendant each their right to exercise their statutory challenges.”

The only question in this case is the question, Had the defendant been in former jeopardy, and, if so, did he by his failing to object when the court permitted the state to exercise peremptory challenges and. the defendant when he exercised peremptory challenges waive former jeopardy? Under the statutes of Oklahoma, a defendant is not in legal jeopardy until put upon trial by a court of competent jurisdiction under an information or indictment sufficient in form and substance to sustain a conviction and a jury has been impaneled and sworn. It is not disputed by the state that, when a jury has been regularly impaneled and sworn in a court of competent jurisdiction upon an information sufficient to sustain a conviction, the defendant is in jeopardy. In this case the jury had been impaneled and sworn; both the defendant and the state had waived the first peremptory challenge, and the court ordered the jury sworn, there being nothing further for the court to do but to order the jury sworn, as it would readily be seen, where twelve men had been examined and none of them excused by the state or the defense, no other jurors could be called and questioned. It is therefore the opinion of this court that the jury was regularly impaneled and sworn, and that, when the jury was sworn, the defendant was in jeopardy.

The transcript further discloses that after the jury was sworn the county attorney advised the court that it was not his intention to waive all of his peremptory challenges, and the court, upon that statement, permitted the state to exercise a peremptory challenge. When the statement was made by the county attorney that he did not desire to waive his peremptory challenges and the court permitted him to exercise a challenge, the defendant did not object to the court granting the request of the county attorney and made no protest and did not urge that he was then in jeopardy and object to any further proceedings as to the challenging of jurors or the calling of additional jurors to try him. The defendant went further without objecting and exercised the right of peremptory challenges of jurors and did not raise the objection that he had been in jeopardy until both the state and the defendant had exercised two' challenges, each. The court holds that, when the county attorney asked permission of the court, after the jury was sworn, to exercise peremptory challenges, and the defendant made no objections and then exercised peremptory challenges himself, he waived his right to claim former jeopardy, if any he had. Allen v. State, 13 Okla. Cr. 533, 165 Pac. 745, L. R. A. 1917E, 1085; Loyd v. State, 6 Okla. Cr. 76, 116 Pac. 959; White v. State, 23 Okla. Cr. 198, 214 Pac. 202.

We hold that the defendant’s objection came too' late. From all intents and purposes, the proceeding from the time the court granted the state permission to exercise peremptory challenges after the jury was impaneled was a new trial. If the accused sits idly by or announces ready for trial with the full knowledge that he has not been accorded some constitutional privilege, the right to claim it will be deemed to have been waived. He cannot later shift his position and reclaim that right. Where a constitutional right is for the sole benefit of the accused in the nature of a privilege, that right may be waived by express consent or by conduct indicative of consent, or by a failure to claim or assert the right in seasonable time. State v. Frisbee, 8 Okla. Cr. 406, 127 Pac. 1091.

Applying this test, the defendant’s right to claim former jeopardy was waived.

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


author: EDWARDS, P. J. CHAPPELL, J.

text:
    S. A. BERRIE v. STATE.
    No. A-8567.
    Feb. 2, 1934.
    Rehearing Denied Feb. 27, 1934.
    (29 Pac. [2d] 979.)
    M. D. Hartsell and Grover P. Watkins, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith O. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Muskogee county of murder and his punishment fixed at imprisonment for life.

Defendant contends the evidence is insufficient to sustain the judgment;/ that neither the proof of death by poison or that defendant administered any poison to deceased is shown. The case rests on circumstantial evidence. Briefly stated, the facts are about as follows: Defendant was a minister of many years’ standing; he was charged with the murder of his wife by administering •poison. He was about 51 years of age, and had been married to deceased about 29 years, and the couple had a grown and married son. The deceased was about the same age as defendant, and was undergoing a change of life. She was subject to headaches, and had complained of kidney trouble. She was in the habit of taking aspirin compound in capsules and sometimes spirits of niter. On the day preceding her death she went to Sunday school, although complaining of headache. On returning, she drank a cup of coffee but ate no dinner. Soon after she took a capsule from the aspirin compound box, and about 1:30, with a lady friend, went to attend a lecture at a church. During this lecture she became ill and was taken to- her home. She began to have convulsions, which continued at intervals for about 30 hours, until her death. Dr. Bafter was called, made a simple examination, and gave her a hypodermic. Dr. McAlister was next called, gave her a hypodermic, and ordered her sent to the hospital. Dr. Osgood, a homeopathic physician, was then called and also gave a hypodermic, and later prescribed passi-kola to be given every two hours. She, died the next afternoon. Some time prior to his wife’s death defendant had a young Avoman, Ida Bess Bright, then 17 years of age, 18 at the time of the trial, then attending high school, doing work as his secretary and spending a considerable portion of her time in his home. He became infatuated with her, had written her a number of amorous poems, some of them extremely suggestive. At one time deceased had objected to: her presence in the home.

This young Avoman Avas agreeable to his advances, he had met her at different places in Muskogee, and for some months before the death they had been having sexual intercourse, meeting at cafes, hotels, and at “Mary’s Place”; defendant in some instances renting rooms for this purpose under an assumed name. Also defendant and the young woman had discussed his procuring a divorce and their getting married. Immediately after the funeral he was with the Bright woman, playful, laughing, and happy. Fifty-seven days after the death they were married. Suspicion having been aroused at the circumstances under which the wife died, her body was exhumed and a post mortem made and strychnine found. Soon defendant was called in and was interviewed by the county attorney and the chief of police and made contradictory statements. He later admitted he had made false statements. After a preliminary examination, he was confined in the county jail, and while there sent to his residence for a Bible; this was brought to him and received by the head jailor, who testified he examined it carefully, shook the leaves to see that nothing was concealed in it, but that there was a blank sheet of yellow paper in it. A day or two later defendant produced an identical appearing sheet of yellow paper on which purported to be a suicide note written by deceased, stating in substance she was tired of life, that it was not worth the effort. “Good Bye Forever.” This was produced by defendant at a habeas corpus hearing as a showing the wife had committed suicide. It was conclusively proven that this note was not in the handwriting of deceased. As refuting the idea of suicide several times, just prior to her death, deceased said in substance she could not understand what was the matter with her; she had never been so- affected before.

The theory of the state was that defendant had become tired of his wife and had conceived the plan of poisoning her that he might marry the young woman; that a capsule with some form of strychnine was substituted for the aspirin compound capsule which deceased was in the habit of taking, and. that she did in fact take such poison capsule, which caused her death. The theory of defendant is that death was due to natural causes, probably uraemic poisoning. The state, in support of its theory, as is above stated, offered testimony of the relations between defendant and Ida Bess Bright, his poems and statements to show a wish to be rid of his wife, his conduct in relation to the purported suicide, note as evidence of a sense of guilt, his willingness to' present false testimony to explain the death of his wife. Further evidence of the wife, symptoms just' before her death as proof that she died from strychnine poisoning; that she was apprehensive, thrown into convulsions by the least noise, the least touch, as by attempting to take off her underclothing; the creak of a stair, the whistling of a train, the touch of her grandchild; that she was conscious during and between these convulsions and relaxed and with pupils dilated.

On this point Dr. Rafter testified:

“* * * Q. Did you then, Doctor, at a later time, form an opinion as to what caused her illness and death? A. Yes, sir, I did. Q. What was that opinion? A. I thought it was strychnine. Q. Doctor, did you have occasion to and did you talk to' me before the post mortem or before the body of Mrs. Fannie Berrie was taken up? A. You asked me in ease we held an autopsy wha,t we would find if we found anything and I said if we found poison it would be strychnine. * * *”

Dr. McAlister, when deceased was not taken to the hospital as he had directed, withdrew. His testimony is not very definite. He described the symptoms much as the other physicians and stated deceased had symptoms of strychnine poisoning; that from the symptoms he observed, and in the light of the autopsy findings, the chances were she died of strychnine poisoning. On cross-examination a hypothetical question was propounded covering the symptoms and actions of the deceased between the time she was taken to her home and the time of her death, and he answered:

“I think the description you have read would be typical of either tetanus or strychnine.”

He was then asked:

“Q. Eliminating the question of tetanus, what would you say would be the cause of death? A. It is a text book picture of strychnine poison.”

Taylor Rogers, a state chemist, testified he made the chemical test for poison and discovered strychnine in the vital organs.

Dr. Bailey, connected with the Wesley Hospital, Oklahoma City, testified he made a microscopic examination of the vital organs, thus:

“Q. State whether or not, Doctor, your findings were in conformity with' the findings you Avould expect to malte or the symptoms you would expect to find upon the examination of the organs of a body that had been administered strychnine? A. Yes sir, they were. The findings are of the nature and kind and degree that could be found in strychnine poisoning cases. Q. Were your findings in conformity with uraemic poisoning? A. No, sir.”

Being further questioned, he testified in substance the symptoms following strychnine poisoning coincided with all the symptoms manifested by deceased just before death, and that the time of death after strychnine poisoning varied from a few minutes to as long as thirty or forty hours; he then stated he found no indications of uraemic poisoning, and that the administering of hypodermics would delay the action of strychnine.

Wolsey, police chief, testified that before filing of charges defendant was brought to his office with the Bright woman, his then wife, and informed the body of his former wife had been taken up and strychnine found in the body; that her death was under investigation; that defendant did not have to make any statement whatever. He was then questioned apart from his wife, and said his relationship with Ida Bess Bright before the death of his wife was merely with regard to' church matters. He denied having been with her at any time at De Luxe Cafe or other places mentioned and any improper conduct. After the wife had been questioned, witness again talked with defendant, Avho then admitted meeting the Bright woman at De Luxe Cafe and at various other places, as the Pan American Cafe and at “Mary’s Place,” and that he had intercourse with her a number of times from about Christmas to' the death of his former wife, loved her better than any woman he had ever seen; that he had discussed with her his getting a divorce. He also admitted having written the verses and other writings in possession of police. Said they had been written and delivered prior to' the death of his wife. Defendant at first said parts had been cut from some of them, but denied he did this, but later said he had and had burned these parts and had destroyed other writings altogether. The frend of these is shown by the following excerpts from different items:

“* * * My arms are hungry to hold you to my heart in love’s
embrace.
I love you so much, my darling,
For giving your love to me;
You satisfy every longing
What more to me could you be? * * *”
“* * * Your head laid upon my breast
Content in love to rest.* * *”
“* * * a. thousand timesi each nite
I see you in my dreams. * * *”
“* * * For I don’t care what the world may say I'll forget the gain, the loss and the pain That tortures my pulsing breast.
Sweetheart, I love you best.”
“You live in this heart of mine,
A¿ long as the world is standing * * *
Without you I’d care not to live. * * *”
“* * * x never knew until your dear arms entwining * * *
And I never want to be free
I know I’ve found the only girlie for me—
So you will be mine some day forever.
Sweetheart I’m love bound
All my heart I've given thee
Just longing and waiting till I am set free,
Then out of lifes ocean together we’ll ride,
Basking in loves sunshine happy and free
Through life we’ll journey whatever betide,

In one be asks “Ob, why can’t we be free.” In another, “Some day sweetheart twill not be long, that we shall be as one.” And so on, and so ad nauseam.

There is evidence of other circumstances tending to sustain the state’s, theory. Thus it is shown that some time after the death defendant and the Bright woman were in the yard; she took from a trash container what purported to' be a small box or bottle, which he instantly took from her hand. Just before death a ring was removed from the finger of deceased and later given by defendant to the Bright woman. In a habeas corpus hearing defendant produced the false suicide note above referred to, and in addition testified his deceased wife had threatened to take strychnine as showing a knowledge that death was due to strychnine poisoning; that he told witness Wolsey that, between the time of the death of his wife and his marriage to the Bright woman, she mentioned to him it was rumored his wife had died of poison, and he immediately thereafter destroyed some of the notes and poems.

Neither the Bright woman nor defendant testified in this trial, although several defense witnesses were called, among them Dr. Osgood, who attended deceased until her death. He signed a death certificate reporting the death due to nephritis and endocarditis. He prescribed passi-kola, which is composed of ignatia, 1/10 drop of ignatia to a teaspoonful of passi-kola; that ignatia contains strychnine, 1/330 of a grain to the teaspoonful of passikola; and that a fatal dose of strychnine is % grain. On cross-examination he said that there was 9/1000 of a grain of strychnine to an ounce of passi-kola.

B. M. Isham, a chemist, testified for defendant that the usual dose of strychnine is 1% grains, a minimum dose % grain, and in substance said he had discussed with Dr. Osgood the medicine prescribed, and that passi-kola contained 14/100 milligrams per ounce, and that such quantity was sufficient to satisfy the test to show the presence of strychnine; that he examined the urine analysis of deceased, and that it showed death due to uraemic poisoning; that he was not able to tell how much strychnine had been absorbed or assimilated in the body; that in a large dose 9/10 would be so used — less in a small dose.

Upon the whole case, the state contends the evidence, fully sustains the judgment; that the state has shown a desire on the part of defendant to be rid of his wife, a guilty love as a motive for the crime, has shown a knowledge by defendant of the habit of his wife to take harmless capsules and opportunity to substitute poison; that death was not due to natural causes nor to- suicide, but to- strychnine poisoning; that defendant knew this to be the cause of death, and attempted to concoct false testimony to explain death from strychnine poisoning; that, since an unlawful homicide by poison must in practically all cases be proven by circumstantial evidence, the circumstances proven are sufficient to require the submission of the case to the jury; that they exclude every reasonable hypothesis other than the guilt of defendant.

Cases on criminal law recognize that illicit love furnishes a motive for a great many murders and other crimes. Some cases state it is more fruitful than any other single cause. Miller v. State, 9 Okla. Cr. 255, 131 Pac. 717, 723, L. R. A. 1915A, 1088; Brown v. State, 9 Okla. Cr. 382, 132 Pac. 359, 372.

In the instant case the circumstances proven form an almost complete setting for a crime of this kind. The testimony that deceased died from strychnine appears conclusive. Suicide as a cause of death is eliminated. Then, with proof of this powerful motive of defendant to be rid of his wife and to have the Bright woman without hindrance or disturbing his church affiliations, must have led the jury to the irresistible conclusion of defendant’s guilt.

The only other assignment requiring discussion is that the county attorney was guilty of misconduct in the trial and that the trial court likewise committed error in the conduct of the trial. The county attorney conducted a vigorous prosecution, and in his zeal overstepped the proper functions of his office. In the opening statement tO' the jury he began the reading of certain writings of the defendant as a part of his statement. Any prosecuting officer should know better than that. Upon objection being made, the court promptly sustained it. At other times his questions were leading and suggestive, but objections were generally sustained. The court was hardly peremptory enough in his rulings and control of the county attorney. Counsel for defendant made a spirited and able defense, interposed many objections and took many exceptions. In some instances these were argumentative, and the court in one instance threatened to fine him. This was improper, and is to be condemned. While in the heat of a closely contested trial rather difficult questions which severely tax the patience of the court sometimes arise, yet a trial court should exercise more judicial poise and temperament.

Several other assignments are presented and discussed to some extent in the briefs. We have examined all of these, none have been overlooked, but we think it unnecessary to analyze or refer to them further. They present no material error prejudicial to defendant.

From a careful and earnest consideration of the entire case, we are satisfied the errors mentioned did not in any wise affect the verdict, and that a reversal on account of these errors would be ivholly unjustified.

The case is affirmed.

DAVENPOBT, J., concurs.

CHAPPELL, J.

(dissenting). I cannot agree with the majority opinion in this case, because to sustain a conviction the state must prove: First, that Mrs. Berrie,died of strychnine poisoning; second, that defendant administered the poison himself or procured it to be done by another.

To sustain the state’s contention that Mrs. Berrie died of strychnine poisoning, it called Dr. W. W. Bailey, who testified on direct examination that he found a small amount of strychnine in the liver, spleen, stomach, and contents, but not sufficient to measure the quantity, and detailed the symptoms of strychnine poisoning. As to the cause of Mrs. Berrie’s death the doctor was asked on cross-examination:

“Q. Doctor, from your experience as a physician, you do not attempt to) state to the jury or give the jury any opinion as to what- was the cause of the death of deceased, based upon your examination of the portion of the body that you examined and upon what your examination disclosed? A. No, sir.”

The state also; called Taylor Rogers, state chemist, employed by the state health department, wlm testified to the symptoms of strychnine poisoning, and that he made tests of the liver, spleen, stomach, and contents of Mrs. Berrie and found traces of strychnine in those organs; that he made an attempt to determine the quantity, but the material he was using was too small and he could not. Later, on cross-examination, he was asked this question:

“Q. Now, you don’t pretend to know, as a chemist, the cause of the death of Fannie L. Berrie, do you? A. No, sir.”

The state also called Dr. L. S. McAlister, who- testified he was called to treat Mrs. Berrie shortly after she was taken sick, and that, after examining, her, he remained there a short time, but formed no definite diagnosis of the cause of her sickness; that he recommended her to be taken to a hospital, where he might have better opportunity to make a diagnosis; that, when this was not done, he withdrew from the case. He was asked this question by the county attorney:

“Q. Doctor, from the observation that you had and the history you have of the case, have you formed any opinion as to the cause of the death of Fannie Berrie? A. The history I have now? Q. Yes. A. Well, I formed that in the light of the autopsy findings and the symptoms I gave you, the chances are she died of strychnine poisoning.”

Later the witness said:

“A. Without the autopsy, I wouldn’t feel justified in making a diagnosis of strychnine poisoning.”

On cross-examination, the witness said:

“A. Yes, I think I told them she might have toxin infection, which is, when interpreted in plain English, a type of hysteria. Q. You would not, without these reports, say, as an expert, or as a physician, that she died of strychnine poisoning, in your opinion, would you? A. Taking into consideration my limited experience, no, sir.”

The state next called Dr. James G. Rafter, who testified he was called to see Mrs. Berrie shortly after she was taken sick, and detailed the symptoms of strychnine poisoning. He was asked the following question:

“Q. Did you then, doctor, or at a later time, form an opinion as to what caused her illness and death? A. I thought it was strychnine.”

This doctor also' testified that 4% per cent, of albumen in the urine was generally indicative of a very bad condition of the kidneys, and would probably indicate uraemic poisoning.

Several witnesses detailed the symptoms exhibited by Mrs. Berrie from the time she was taken sick until she died. Upon these symptoms the state predicated its hypothetical question to its experts, and from which doctors testified as above set out.

This is the essence of all the evidence of the stajte tending to prove that Mrs. Berrie died of strychnine poisoning.

To rebut this evidence, the defendant called Dr. W. W. Osgood, who testified he treated Mrs. Berrie about 8 o’clock on the evening of March 20th; that he took a sample of her urine and had it tested at a laboratory in Muskogee; that this test showed 4% per cent, albumen and indicated inflammation of the kidneys; that he prescribed passi-kola; that passi-kola contains strychnine; that he directed this medicine to be given to' Mrs. Berrie every two hours; that the patient had several convulsions which, taken with the urine analysis, indicated uraemic poisoning ; that he saw her four or five times; that she responded to his treatment, and he thought she would recover; that he issued a death certificate showing the cause of her death to be nephritis and endocarditis.

On cross-examination, Dr. Osgood stated that on more study of the case he arrived at the conclusion the cause of her death ivas uraemic poisoning.

Defendant also called Robert M. Isham, a chemist, who' testified the minimum lethal dose of strychnine is one-half grain; that under the fading' purple test for strychnine the amount required is 1/27027 of a grain; that 13,513 positive tests could be obtained for the fading purple test with the amount of strychnine necessary to cause death; that in applying the taste test the amount necessary to give the test is 1/13513 per cent.; that the test could ■be applied 67,000 times for one-half grain of strychnine; that one ounce of passi-kola, the medicine claimed to' have been given Mrs. Berrie, contained 14/100 milligram of strychnine; that you could obtain the fading purple test 56 times from one ounce; that you could apply the taste test to the amount of strychnine contained in one ounce of passi-kola 28 times; 'that a chemist looks for two outstanding things: First, whether strychnine is present; second, the quantity, and that this examination would be fruitless unless you could obtain a quantity test; that the Taylor Laboratory reports indicated no quantity test was made for strychnine; that the Terrell laboratory test of Mrs. Berrie’s urine showed she had nephritis; that the condition shown by the urine analysis would produce convulsions.

In rebuttal the case offered no other evidence to sustain the charge that Mrs. Berrie died of strychnine poisoning.

To sustain the charge that defendant administered the strychnine to deceased, the state offered evidence that he was infatuated with Ida Bess Bright, who was secretary of the church and very often in his home; that at one time his wife asked him not to have the girl about the church because of what the neighbors might say; that defendant wrote her a number of gushing poems, expressing his sentiment for her and that he could not be happy without her and they would be together before long; that defendant told certain officers he loved the Bright woman better than his life; that he met her frequently at restaurants and other places, and they also visited a rooming house and had sexual intercourse; that on the day of the funeral defendant handed an envelope with some papers in it to the Bright woman, which the witness thought contained insurance papers, but later the couty attorney admitted there was no insurance in the case; that the Bright woman was at the home during the sickness and death of Mrs. Berrie, accompanied defendant and the family to the funeral, and was frequently with him after the funeral ; that he married the Bright woman 59 days after the death of his wife; that a feAV days after their marriagé' defendant and his wife were seen in the back yard burning trash; that she picked up what looked like a small box or bottle, and that he took it out of her hand and tossed it into the trash burner; that after his arrest he at first denied any illicit relations Avith the Bright woman, but later admitted the relations between himself and her as above set forth; that no tombstone had been erected over the body of Mrs. Berrie; that defendant purchased a new automobile shortly after his wife’s death; that at the trial the Bright woman was wearing a ring taken from Mrs. Berrie’s finger while she was sick; that defendant took the witness stand in habeas corpus proceedings for bail, but made no mention of any threat of suicide or any belief that his wife might have committed suicide; that later defendant again applied for a writ of habeas corpus, and at that time produced a suicide note which he claimed to have found in his wife’s Bible. The state showed by J. C. Sherman, a handwriting expert, and other witnesses that this note was not in the handwriting of Mrs. Berrie, but made no effort to' show that defendant ivas the author of the note.

The state offered no evidence that defendant ever purchased or possessed any strychnine, or that any strych nine was found about the house or any container or evidence of strychnine being about the house, nor that he had anything to do with the possession or taking of the capsule which Mrs. Berrie took after dinner and before she was stricken at church.

Toi rebut this evidence that defendant had administered the poison, he produced Iliff Berrie, a son, Ruth Berrie, the son’s wife, and others, whn testified the suicide note was in the handwriting of Mrs. Berrie. Inmates of the jail testified that, shortly after the Bible was taken to defendant’s cell in the county jail, certain papers fell out of the book on to the floor, and that later defendant produced this note as being among those papers.

Ruth Berrie, the daughter-in-law, testified she removed the rings from her mother’s hands so she could rub them and restore circulation, and dropped the rings in defendant’s pocket; that the ring worn by the Bright woman at the trial was a gold band ring which her mother did not wear because it was too small for her; that deceased complained of headache and kidney trouble; that she would purchase aspirin compound capsules and keep them in her handbag purse; that she had her purse with her at Sunday school that morning, took a capsule after drinking a cup of coffee at noon, and took the purse with her tO' the meeting at the First Christian Church; that the passi-kola left by Dr. Osgood was given to deceased according to directions; that charges had been preferred against defendant before the presbytery that he preached a doctrine contrary to the church, and a hearing set on these charges at Wagoner, before the presbytery; that deceased had been greatly worried over these charges, and said that she could not bear them — that it would kill her; that deceased was highly nervous and despondent; that she was going through the change of life, and had been having headaches and kidney trouble for a considerable time; that during her last illness she heard her say to defendant :

“Sweetheart, you are so good to me,” and he said, “Am I not always,” or something like that, and she said, “Yes, especially when I am sick”; that defendant seemed to be terribly worried and hurt over deceased’s sickness; that later deceased said “They persecuted my husband and he is innocent and it is killing me, and I am ready to go if you promise you will help take care of little Dot”; that Dr. Baiter made no examination; that he seemed to be drinking, and she could smell liquor on his breath; that he made noi diagnosis or statement as to* what was the matter with deceased.

Iliff Berrie testified to the most cordial and affectionate relations between his father and mother, and corroborated his wife as to who removed the rings from their mother’s hands and what was done with them.

The minister who conducted deceased’s funeral testified the papers handed by defendant to the Bright woman were the obituary and funeral notices for the newspapers.

Neither defendant nor the Bright woman took the witness stand.

When the state had rested its case, defendant demurred to: the evidence and requested the court for an instructed verdict of not guilty, which request was denied.

In his motion for a new trial in the lower court and his petition in error in this court, defendant renews his complaint that the verdict of the jury and the judgment of the trial court thereon are contrary both to the law and the evidence.

The question for this court to determine from the evidence in this case is: Did the state, as it was required to do under the allegations of the information, prove beyond a reasonable doubt that Mrs. Berrie died of strychnine poisoning?

The evidence of the state as to the cause of Mrs. Berrie’s death is so contradictory and unsatisfactory that it cannot reasonably be said she died of strychnine poisoning. In fact, the evidence of all the doctors who waited on her during her illness is either guesses or entirely contradictor^.

On the second proposition, there is no competent evidence tending in any wise to show either that defendant administered the strychnine to deceased or procured it to be done.

The state proved defendant guilty of reprehensible conduct in his relations with Ida Bess Bright, and thus established a motive for the crime. While proof of illicit intercourse with another woman, failure to erect a tombstone over thje grave of his dead wife, the purchase of a new automobile shortly after her death, and marriage to the Avoonan in the case 59 days after his Avife’s death are suspicious circumstances, they are not proof beyond a reasonable doubt that he killed his wife by the administration of strychnine.

This court in numerous cases has said:

“The facts and circumstances proved must not only be consistent with and point to the guilt of the defendant, but they must be inconsistent Avith his innocence.” Sies v. State, 6 Okla. Cr. 142, 117 Pac. 504; Nash v. State, 8 Okla. Cr. 1, 126 Pac. 260; Davis v. State, 18 Okla. Cr. 112, 193 Pac. 745; De Bose v. State, 18 Okla. Cr. 549, 197 Pac. 176; Key v. State, 22 Okla. Cr. 284, 210 Pac. 1044; Hamilton v. State, 25 Okla. Cr. 233, 219 Pac. 951; Tomlinson v. State, 27 Okla. Cr. 429, 228 Pac. 608; England v. State, 29 Okla. Cr. 38, 231 Pac. 1087.
“Where the evidence is wholly circumstantial, and the facts and circumstances in evidence are of such a character as to fairly permit an inference consistent with innocence, it cannot be regarded as evidence sufficient to support a conviction.” Brown v. State, 12 Okla. Cr. 343, 156 Pac. 1150; Robbins v. State, 12 Okla. Cr. 412, 157 Pac. 1027.
“Where the state relies Avholly on circumstantial evidence to prove guilty knowledge, the circumstances relied upon, Avhen considered together, must point clearly and conclusively to¡ the guilt of defendant and exclude every reasonable hypothesis other than that of guilt.” Davis v. State, 18 Okla. Cr. 112, 193 Pac. 745; Adams v. State, 38 Okla. Cr. 173, 259 Pac. 665.

As was said in Davis v. State, supra:

“The appellate court cannot safely permit a judgment of conviction to stand unreversed, where one material element of the offense rests alone upon evidence which amounts merely to suppositions or suspicions of guilt.”

In Freeman v. State, 52 Okla. Cr. 209, 4 Pac. (2d) 120, this court said:

“As a general rule, verdicts which have received the approval of the trial judge will not be disturbed when supported by evidence sufficient to make out the offense. However, when the evidence is all carefully considered and it appears that it is wholly wanting in respect to some essential element of the offense charged, the judgment will be reversed as insufficient to sustain the conviction.”

In Richards v. State, 52 Okla. Cr. 436, 6 Pac. (2d) 449, this court said:

“Where the evidence tending to connect defendant with the crime charged is wanting in some necessary element and at best shows only a probability of guilt, this court will reverse the judgment.”

In State v. Blydenburg, 135 Iowa, 264, 112 N. W. 634, 14 Ann. Cas. 443, that court said:

“Where one is charged with murder by the administration of a designated poison, the possession by accused of such poison at the time of the alleged offense is a necessary condition to support a conviction.”

In the body of the opinion the court said:

“As appellant was charged with the commission of murder by the administration of arsenic, the possession by him of arsenic at the tme of the alleged offense was a necessary condition of his guilt. It was very important, therefore, for the state to trace, if possible, that particular poison to his hands. The only proof offered for which such effect is claimed was, * * * that appellant had on one or more occasions bought ‘Rough on Rats’; last occasion being two months prior to the alleged murder. No part of this article so sold was produced or identified on the trial.” But experts testified that Rough on Rats contained probably 50 per cent, of arsenic.

While this court has never gone that far, it has uniformly followed the rule in the cases heretofore cited where in effect it has held that to warrant a conviction on circumstantial evidence, each fact in the chain of circumstances necessary to prove guilt must be proven by competent evidence beyond a reasonable doubt, and all the facts necessary to prove guilt must be connected with each other and with the main fact, and all the circumstances, taken together, must be of a conclusive nature, producing a moral certainty that the crime charged was committed and that the accused committed it.

Measured by this standard, the evidence in this case is wholly insufficient to prove that defendant either administered the poison or procured it to be done.

Defendant also complains that the county attorney was guilty of prejudicial misconduct in his opening statement to the jury.

Examination of the record discloses that counsel attempted in his opening statement to justify the filing of murder charges against defendant. A few quotations will be sufficient to show the nature of these statements. To begin with he said: “One reason why I felt so much interest in this case is the fact that I know way back yonder at Sentinel, Oklahoma, there is an old woman 84 years of age that felt in her heart that this defendant was guilty of the crime of murder.”

The court sustained defendant’s objection to this statement, but this court in Green v. State, 39 Okla. Cr. 430, 266 Pac. 512, held that an argument calculated to sway the jury, and which is appealing to prejudice and passion and not based on the evidence, where properly excepted to, constitutes reversible error.

It also appears from the record that the county attorney sought to> justify the prosecution by calling as witnesses at the opening of the trial the sisters and brother of defendant’s deceased wife. None of these witnesses could testify to any fact material or competent in the case, and were called only for the purpose of testifying that their suspicions were aroused and they had demanded an investigation. The court permitted this kind of evidence to be introduced, over defendant’s objection. It was not only unnecessary but highly improper for the county attorney to seek to justify the filing of the charge against defendant. It was absolutely immaterial and highly improper that an 84 year old woman believed in her heart that defendant was guilty of the murder of her daughter, and it was also highly improper and prejudicial that his deceased wife’s sisters and brother had suspicions in connection with the case and had requested the county attorney tó investigate it.

Defendant also complains, that the county attorney was guilty of prejudicial misconduct in his argument to the jury. The county attorney said:

“Could this relationship continue, the relationship that was going on between them? Could that continue? Let me say that there, is not a denial of it by a single witness in this case, and yonder sits his present wife wlm could have taken the witness stand and told us that it didn’t exist if it didn’t, but she didn’t doi it.”

He also said:

“I see that in the original conversation with John Wolsey and John Wolsey’s testimony in this case, that John Wolsey testified in detail as to' the original statement of Dr. Berrie at the jail; that that testimony of John Wolsey does not show that- the doctor there at the jail house in those original conversations ever denied to John Wolsey'at the time the original conversations were had, that he, the doctor, poisoned his wife.”

Defendant’s counsel objected to this statement, which was by the court overruled.

This line of argument was entirely improper. It was not incumbent upon defendant to deny at any time any statement made by him to' any officer or other person in connection with the crime with which he was charged. The burden of proof was on the state to show that Mrs. Berrie died from strychnine poisoning, and that defendant administered it. This line of argument could have been intended for no other purpose than to prejudice the minds of the jury against the defendant upon a matter not properly in issue.

Defendant next contends it was prejudicial error for the county attorney to ask the following questions:

When one of the state’s witnesses testified to seeing the defendant and his wife in the back yard burning trash and to seeing the wife pick up a small brown box or bottle and defendant take it out of her hand, he asked thfi witness: “When he grabbed that out of her hand?” thereby implying something which the witness had not said.

He asked the state’s witness, Ruth Berrie, this question :

“Q. I will ask you to state if at the time Mi*. Wolsey and I talked to you at your home, before Dr. Berrie was arrested, if you did not state then that it was your opinion that Dr. Berrie poisoned Mrs. Berrie?”

Later in the trial, the county attorney asked her this question:

“Q. I will ask you to state whether or not before the grand jury, on the 8th day of August, you made this statement, or this in substance, Tn my opinion, Dr. Berrie poisoned his wife?’ ”

An objection was made to the question, and the county attorney said:

“We are simply laying the ground for impeachment of the witness, Your Honor, that is all I am seeking to do. The Court: Proceed.”

Thereupon the county attorney asked the following question:

“Q. Mrs. Berrie, I will ask you if that is not true, that on the 8th day of August, before the Muskogee county grand jury, in the presence of the twelve grand jurors and Mr. Babb and myself, didn’t you say this, or this in substance, that Dr. Berrie poisoned his wife?”

This was objected to by defendant’s counsel, and the court said: “I believe I will let her answer that.”

These questions were also' asked Iliff Berrie, defendant’s son, who was permitted to answer over defendant’s objections.

It nowhere appears in the record that the county attorney made any effort by any witness to show that this daughter-in-law of defendant had ever made any such statement, although the county attorney, Mr. Babb, and members of the grand jury could have been called for that purpose.

These questions were highly improper and prejudicial, and could have been asked for no other purpose than to destroy the effect of the testimony of the witnesses and prejudice the jury against them.

This court has held in a number of cases that the mere asking of incompetent questions by the county attorney, even where the court sustained an objection thereto', where such questions tended to degrade and belittle the defendant, is ground for reversal. Watson v. State, 7 Okla. Cr. 590, 124 Pac. 1101; Freeman v. State, 20 Okla. Cr. 443, 203 Pac. 1052.

Complaint is also made that the county attorney was guilty of misconduct in asking Dr. Isham, a defense witness, this question:

“Q. And the estimate you gave would depend upon whether you were called as a witness for the state or the defense, wouldn’t it, doctor?”

Dr. Isham had testified that Mrs. Berrie died of uraemic poisoning. He further testified that from one ounce of the passi-kola taken by Mrs. Berrie there was enough strychnine to have produced the positive reaction in the qualitative test made by the state’s chemist, known as the blue-purple test. This question was asked by the county attorney to discredit the witness, without any cause whatever, and to prejudice him and defendant’s cause before the jury.

Under section 2699, C. O. S. 1921, defendant’s wife could not be used as a witness against him. If she could not be used as a witness against him, the fact of her absence from the witness stand could not be used as a circumstance against him, for that would still be using defendant’s wife as a witness against him. Nor could the officer properly testify to anything defendant’s wife said that tended to connect defendant with the crime.

In Stutsman v. Territory, 7 Okla. 490, 54 Pac. 707, 710, the Territorial Supreme Court said:

“The statute does not contemplate, nor will it permit, that a husband or wife shall, directly or indirectly, be coerced by others upon the witness stand to testify one against the other. * * * If the failure of the husband to call his wife as a witness in his behalf is to be construed as evidence against him, or even as a circumstance against him, his privilege and option which the statute expressly accords to him, would be absolutely annulled, and he would be compelled in all cases to produce her, or ran the hazard of being convicted on an implied confession or admission, or to make explanations for not offering her as a witness, which may result in breaking down or impairing the great principles which protect and involve the sacred privacy of domestic life.”

Under this authority and others which might be cited, it was not necessary for defendant’s wife to take the wit-' ness stand and deny statements which Wolsey testified she made, as the same was entirely prejudicial and wholly inadmissible.

The effect of these statements and argument was to get before the jury the idea that, since neither defendant nor his wife had taken the witness stand to deny statements Wolsey claimed were made to him by them, there-, fore they amounted to admissions of the facts. This also amounted to a comment upon the fact that defendant had not testified.

This court has repeatedly reversed cases where the misconduct and prejudicial statements of the county attorney were not so grave, uncalled for, and prejudicial as in the case at bar.

The county attorney is an able lawyer and a vigorous prosecutor, and, evidently believing the defendant to be guilty, he left nothing undone or said that could in any wise influence the jury in finding defendant guilty.

Assignments of error 7 to' 13, inclusive, are all directed to the alleged misconduct of the trial judge, which prevented defendant from obtaining a fair trial.

The first instance has to do with the threat of the trial judge to send the defendant’s counsel to jail. It appears from the record that defendant’s counsel was examining one of his witnesses; objection was made by the county attorney to certain questions, which objections were sustained by the court. Thereupon defendant’s counsel dictated into the record what he expected to prove by the witness, to which the court said:

“Now, Mr. Hartsell, you asked a question and I sustained it and you come up here and dictate into the record an entirely different state of facts than what the question called for, and I ask you not to do that any more. Mr. Hartsell: We except to the remarks of the court. The Court: What you dictated into the record is not anything like your question just asked. Mr. Hartsell: That is what I am trying to do if I had half a chance. The Court: Mr. Hartsell, if you say anything like that again I will send you to jail. Mr. Hartsell: We except. The Court: I don’t know what your purpose is in assuming that attitude, but it seems like you have some purpose. Mr. Hart-sell : We except to the remarks of the court.”

And a little further on, and during the examination of the same witness, the court said:

“I have known you, Mr. Hartsell, for 25 years, and you are as good a friend as I have, but if you don’t conform to the rules of this court I am going to have you trade chairs with Mr. Watkins and have him conduct the case. Mr. Hartsell: We except to the remarks of the court. The Court: I know one thing, and I think any man or woman in the world that ever saw me on the bench would say that I try to do the right thing and try to be fair, and you haven’t been fair with the court- since the beginning of this trial. Mr. Hartsell: We except to the remarks of the court.”

All of these threats to jail defendant’s counsel and to take him out of the ease were made in the presence and hearing of the jury.

This court has reversed several cases because the trial court threatened, in the presence of the jury, to jail defendant’s counsel. McSpadden v. State, 8 Okla. Cr. 489, 129 Pac. 72; Kelley v. State, 31 Okla. Cr. 51, 236 Pac. 915; Boyer v. State, 16 Okla. Cr. 388, 183 Pac. 620.

To properly present the questions involved in this case has required an unusually long dissenting opinion, but the writer has felt that it was justified because of the gravity of the case.

Under the majority opinion, the defendant must spend the remainder of his life in the penitentiary, unless he receives relief from the executive department of the state, notwithstanding the evidence is wholly insufficient to support the verdict of the jury and the case should have been reversed and dismissed for that reason; and, being convinced from an examination of the record that the jury undoubtedly returned their verdict of guilty because of the prejudicial misconduct of the county attorney and the trial judge, I have been compelled to disagree with my colleagues on the court and dissent from the majority opinion.


text:
    GEORGE FLANNIGAN et al. v. STATE.
    No. A-6617.
    Feb. 16, 1934.
    Rehearing Denied. Feb. 27, 1934.
    (29 Pac. [2d] 989.)

      Hulsey & Hulsey, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atfcy. Gen., for the State.
   CHAPPELL, J.

Plaintiffs in error, hereinafter referred to as defendants, were jointly charged, tried, and convicted of the crime of larceny of domestic fowls. The jury having failed to agree upon the punishment, the court sentenced each of the defendants to serve a term of six months’ imprisonment in the state penitentiary.

The evidence of the state was that on the night of April 27, 1932, one Owen McDow had fourteen chickens stolen from his farm; that the loss of the chickens was discovered the next morning, and an examination revealed the tracks of three men that led from the chicken house to the road, and to the chicken house of a neighbor and back to the road, where automobile tracks were found, and these were followed for a distance to the place where the car turned around in the road and went off into a ditch; that at this point there was evidence that the oil pan had scraped up some of the dirt when it backed into the road; that these tracks were followed to the camp where defendants were located, and there an automobile having a casing that made tracks like the one found in the road, and having dirt in the oil pan, was discovered; that there were loose chicken feathers in this car; that the only defendant present at the camp was Joe.Brice; that Flannigan and Berry had taken another automobile and gone tO‘ Fort Smith; that they returned from Fort Smith that evening; that officers followed them and passed the automobile where it had stopped near a culvert; that defendant Flannigan went down under the culvert; that the officers had passed the defendants, but returning also went under the culvert and found a gunny sack with a dead hen in it and a couple of other gunny sacks; that this dead hen was identified as one stolen from a neighbor of McDo w on the night that McDow lost his chickens; that defendants had in their possession at the camp eighteen or twenty chickens, which they sold at Fort Smith.

Defendants testifying for themselves, admitted possession of the chickens, but claimed they had traded for some of them and purchased others.

When all of the evidence is considered, it is sufficient to support the verdict of the jury.

It is first contended the case should be reversed because the state failed to prove venue.

This court has held that the venue of a criminal action does, not have to .be proved beyond a reasonable doubt. Gritts v. State, 6 Okla. Cr. 534, 118 Pac. 673, 120 Pac. 669; Jentho v. State, 19 Okla. Cr. 434, 200 Pac. 251; Edwards v. State, 25 Okla. Cr. 167, 219 Pac. 427.

The testimony of Homer Jones, a deputy sheriff, shows conclusively that the point where the automobile camp was located was between the town of Whitefield and the city of Stigler, in Haskell county.

This court will take judicial notice that a point east of Whitefield and west of Stigler, along the highway, is in Haskell county. Fletcher v. State, 34 Okla. Cr. 305, 246 Pac. 485.

Defendants in their testimony located the camp in Haskell county, and the prosecuting witness, McDow, located Ms place as being near the town of Havana, in Haskell county, and about three miles from this camp. This evidence is sufficient to establish the venue.

It is next contended the court erred in permitting the state to show the contemporaneous theft of other chickens stolen in the same neighborhood, on the same night the state alleges McDow’s chickens were stolen.

In Cheeves v. State, 18 Okla. Cr. 480, 196 Pac. 726, and in Gourley v. State, 49 Okla. Cr. 24, 292 Pac. 873, this character of evidence was held to be properly admitted.

Finally, it is contended the court erred in permitting the state to read the transcript of the evidence of Rev. J. W. Oole, who died after the preliminary and before the trial of the case.

The state served upon the. defendants a copy of the information on November 4,1932, which showed among other things, that the witness Oole was deceased. The case was not called for trial until February 16, 1933. There is no contention that the witness Oole did not die between the time of the preliminary and the time of the filing of the information in the district court, but it is objected that the mere statement of the county attorney that the witness was deceased and that the document he proposed to read was a transcript of deceased’s testimony at the preliminary does not lay a sufficient predicate to entitle the state to introduce the testimony. The county attorney should have offered proof of the death of deceased and that the transcript was a true and correct one of the evidence of the witness.

The mere announcement of the death of a witness and the presentation of the transcript, without proper proof of death and the taking and contents of the transcript, is insufficient; but since there is no contention but that the witness was actually deceased, nor that he testified in the preliminary, and considering the further fact that the evidence of this witness was cumulative — merely furnishing proof that one more person had had chickens stolen that night — the error is not considered of sufficient importance to require a reversal of the case.

It appearing defendants had a fair and impartial trial and that no reversible error was committed, the cause is affirmed.

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


author: DAVENPOET, J. PER CURIAM. CHAPPELL, J.

text:
    HOLDEN D. ROANE v. STATE.
    No. A-8541.
    Dec. 8, 1933.
    Rehearing Denied Feb. 27, 1934.
    (29 Pac. [2d] 990.)

      Hughes & Dickson and Eizley & Sweet, for plaintiff in error.
    J. Berry King, Atty. Gen., and S. H. Lattimore, Asst. Atty. Gen., for the State
   DAVENPOET, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of giving a bribe, and sentenced to a term of two years in the state reformatory, at Granite, and to pay the cost of the prosecution.

The testimony shows that on or about the 3d day of May, 1932, A. E. Pittman and C. F. Arnot were two of the duly elected, qualified, and acting members of the board of county commissioners of Beaver county; that the defendant in this case was salesman for the Wylie-Stewart Machinery Company, Inc.; that the defendant gave to A. E'. Pittman, for the use of himself and C. F. Arnot, $100' to induce them to sign a contract for the purchase of a road maintainer.

The testimony further shows that defendant came to the courthouse where Commissioners A. E.. Pittman and C. F. Arnot were, and took Pittman out and gave him $100, divided into two' packages of $50 each; Pittman returned, and the county commissioners went into the commissioners’ room and passed a resolution agreeing to buy a maintainer from the defendant, and then Mr. Pittman advised Commissioner Davis he had been left out of the deal, that he had received $50 and Mr. Arnot had received $50; put the money down on the table, and defendant was arrested by the sheriff. Witness Pittman stated to’ defendant, “I am going to crook yon instead of the taxpayers.” Pittman also denied suggesting at any time to the defendant prior to the day he received the money and signed up for the maintainer that he had a hard campaign to make and would like to- have $100, and that the defendant had agreed to give him $100.

The testimony of Commissioner Arnot is substantially the same as the testimony of Commissioner Pittman, Avith reference to getting the money and buying the maintainer. The sale order by Avhich the county commissioners purchased the maintainer Avas introduced in evidence. On cross-examination Commissioner Pittman testified he had been having trouble Avith machinery salesmen trying to sell him machinery and offering inducements before he met the defendant.

The defendant, testifying in his own behalf, admitted he was a salesman for the Wylie-Stewart Machinery Company, Inc.; that some time in March, 1932, he met Mr. Pittman at his home; he called on him soliciting business.

“I advised him the kind of machinery my company was handling and sought to sell him some of the machinery handled by my company; I Avas at Mr. Pittman’s house between the 1st and 15th of April, 1932; I talked with him about selling him a maintainer and he seemed interested; I made him a price and he said it was too high; I told him I Avould take it up with the company and get a better price; on the 2d day of May, 1932, I Avas in Grant county and was going on to Texas and Cimarron counties: I stopped at Knowles to see Mr. Davis, one of the county commissioners of Beaver county, and was informed the commissioners were still in session; I went down to the county seat; when I got there it was the noon hour; I saw Mr. Pittman in a car Avith one of my competitors; I did not tell Mr. Pittman I was splitting my commission with the commissioners in different counties.
“When I came to the county seat I told Mr. Pittman I would like to get his order and he said, ■ ‘ How much is there in it’; I told him I could save him $135 or thereabouts; Pittman said he and Mr. Arnot would buy a maintainer together; when Mr. Pittman asked how much there was in it, I thought he wanted to know how much I could save him on the machinery. On one previous occasion I was at Pittman’s house, he talked about his campaign, said he had a hard man to run against and asked if I could help him on his campaign. I asked him if he wanted a donation, and he said, yes, he would like to have $100. I went to Porgan and cashed travelers’ checks at the Porgan bank, and when I came back Mr. Pittman and Mr. Arnot was sitting on the steps of the courthouse; Mr. Arnot got up immediately and went into the courthouse and Mr. Pittman came out and got into the car with me, and as we drove to the filling station I gave him the $100; we drove back to the courthouse; Mr. Pittman got out of the car, and Mr. Davis was standing by the side of the building; Mr. Pittman said, ‘All the commissioners are here, if you want us to sign an order on that maintainer we will sign it up for you’; we went in a room where there were a number of people, and the order for the maintainer was signed; Mr. Pittman then laid the money I had given him on the table and said, ‘I want to charge this man with bribery.’ The $100 I had given to Mr. Pittman was given him to assist in his campaign, and had nothing to do with the purchasing or influencing of the commissioners to buy the maintainer.”

A number of witnesses testify to the former good character and reputation of the defendant.

The defendant has assigned eleven errors upon which he relies for a reversal. The first and second assignments of error go to the question of the alleged error of the court in overruling the demurrer of defendant to state’s evidence and the court’s refusal to instruct the jury to return a verdict of not guilty at the close of the state’s case. After*, reading the testimony, we hold that the demurrer was properly overruled, as the testimony conclusively shows that the defendant gave Mr. Pittman $100 a few minutes before the order was signed.

The court cannot agree with the argument presented by the defendant that the state’s evidence shows that the crime committed, if committed at all, was induced or brought about by solicitations or inducements of the county commissioners. It is clear from the testimony that the defendant desired to sell the county, through its commissioners, a maintainer, and in his zeal and desire to make the trade handed over to Commissioner Pittman $100.

The only controversy in the testimony is the question as to whether or not the money was given by the defendant for the purpose of assisting Pittman in his campaign, or for the purpose of securing a contract of sale with the commissioners for a maintainer. On this point the testimony is conflicting, the commissioner testifying it was given for the purpose of securing a contract, and the defendant testifying he gave it to Commissioner Pittman at Pittman’s solicitation to' assist him in his campaign; that the giving of the $100 to Pittman had nothing to do with securing the contract to sell the maintainer.

The jury is the exclusive judge of the weight of the evidence and the credibility of the witnesses, and before this court will reverse a conviction upon the ground that the verdict of the jury is contrary to the evidence, it must be found that there is no testimony in the record from which the jury could rationally conclude that the defendant was guilty, unless it appears from the record that the jury were influenced by improper motives in arriving at its verdict. This has always been the rule of this court. Sayers et al. v. State, 19 Okla. Cr. 233, 135 Pac. 1973; Piazzi v. State, 13 Okla. Cr. 60,161 Pac. 1176; Murnand v. State, 18 Okla. Cr. 426, 195 Pac. 787; Cole v. State, 18 Okla. Cr. 430, 195 Pac. 901; Richards v. State, 22 Okla. Cr. 329, 211 Pac. 515.

It is urged by the defendant that County Commissioner Pittman was responsible for the defendant giving the money to him to assist him in his campaign, and that Pittman, by his action, entrapped him into giving, the money. This argument would be reasonable and forceful if you could strike from the record the testimony showing that defendant appeared at the courthouse while the commissioners were in session and had a conversation with Commissioner Pittman, then went and got the money, came back, and took Pittman off by himself and delivered the money. There is not sufficient testimony in the record to show that the commissioner suggested to the defendant that he pay him any money.

It is urged by the defendant that the commissioner by his own acts entrapped and induced him to pay the commissioner $100. Webster defines “entrap” as follows:

“To catch, to' entrap, to ensnare; hence, to catch by artifice; to involve in difficulties or distresses; to' catch or involve in contradictions.”

The turning point in this case to entrap is that a decoy may be used to detect or entrap a criminal, and as such may afford an opportunity for the crime to be committed, and may be present apparently assisting in the commission of the crime, and such action on the part of the decoy.will not constitute a defense. Warren et al. v. State. 35 Okla. Cr. 430. 251 Pac. 101.

The evidence in this case fails to show that Commissioner Pittman solicited the defendant to commit the crime. On the contrary, it shows that the only part the commissioner took in the commission of the crime was to afford an opportunity for the defendant to commit the crime, and was present at the courthouse when the defendant returned from Porgan and received the money from the defendant for the sole purpose, as shown by the record, of having him arrested for giving a bribe.

The cases cited by defendant in his brief upon the question of. defendant being entrapped are not in point; the facts in these cases being entirely different to- the facts in this case.

The special instructions requested by the defendant were properly refused by the court, as the court’s general instructions correctly stated the law applicable to the facts in the case.

There are many questions discussed by the defendant in his brief, but, after a careful consideration of the record, we hold they do not possess sufficient merit to warrant a reversal., The evidence is sufficient to sustain a conviction. After considering all the facts and circumstances in the case, the judgment is modified to one year, and, as modified, the judgment is affirmed.

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

PER CURIAM.

Petition for rehearing, denied.

CHAPPELL, J.

(dissenting). On the 8th day of December, 1933, this court handed down an opinion modifying and affirming this case.

- At the time the original opinion was handed down, I reluctantly approved the same on account of the reduction of the punishment.

Upon the filing of petition for rehearing and reargument, I have again carefully examined the record and the evidence and am of the opinion that the petition for rehearing should be granted and the case reversed and remanded for a new trial.

The witness Pittman testified that he and Commissioner Arnot decided they would stop road machinery men from attempting to bribe them, and that they would entrap defendant and make an example of him. The witness Arnett testified to practically the same state of facts.

The defendant testified that, on his second visit to the home of the witness Pittman, Pittman advised him he was a candidate for re-election, had a hard campaign ahead of him, and needed a campaign contribution, and requested that defendant advance him $100.

The evidence of Pittman, Arnot, and defendant is that defendant was invited to meet with the commissioners on a certain Monday, when the question of the purchase of the machinery would be considered and defendant would be given an opportunity to quote prices; that defendant was not present on that day, but appeared the next day; that Pittman was sitting in another road machine man’s car, talking to him; that later Pittman approached defendant and inquired if he was prepared to do what he had agreed to, and that, if he was, they would purchase a certain road maintainer from him; that Pittman told him the $100 would have to be cash on the barrel head; that defendant had no money with him, and was obliged to drive about twenty-five miles to another town to obtain the money; that on defendant’s return Pittman got in the car with him and they drove some distance, where defendant passed to Pittman the $100 in cash; that Pittman told defendant he would have to divide the money with Arnot; that during this conversation nothing was said about a bribe or the payment of this money to in-i fluence a sale of the road maintainer; that, when Pittman and defendant returned to the courthouse, they went in and the commissioners proceeded to hold a meeting; that they prepared the necessary order for the maintainer and officially purchased the same; that, when this transaction was completed, Pittman tossed fifty dollars to Arnot and took fifty for himself, telling the other commissioner he was not in on the deal; and that by previous arrangements the sheriff stepped in, arrested defendant, and took possession of the money.

This court in a number of cases has held that it is contrary to public policy to' sustain a conviction where defendant isf induced to commit the crime by the acts of public officers. Rider v. State, 53 Okla. Cr. 393, 12 Pac. (2d) 552; Warren v. State, 35 Okla. Cr. 430, 251 Pac. 101; Shouquette v. State, 25 Okla. Cr. 169, 219 Pac. 727.

To the same effect are: Scott v. State, 70 Tex. Cr. R. 57, 153 S. W. 871; U. S. v. Healy (D. C.) 202 F. 349; Smith v. State, 61 Tex. Cr. R. 328, 135 S. W. 154; U. S. v. Wray (D. C.) 8 F. (2d) 429.

In the case at bar, there are some significant circumstances: Pittman and Arnot were candidates for reelection. Pittman did have a hard campaign, and was defeated. A.t Pittman’s solicitation, defendant visited him in his home to talk about this matter, rather than at the courthouse where the commissioners had their office. At the time fixed to make the deal defendant did not appear. The next day, when he did appear, he had no money with him, and evidently did not come prepared to make any payment. Both Pittman, and Arnot say they decided to entrap defendant. According to Pittman’s own evidence, he asked defendant if he had come prepared to do what he agreed to. .When advised by defendant that he was not prepared, Pittman told him it would have to be cash on the barrel head. Pittman waited around and postponed the meeting of the commissioners until defendant could go and procure the cash, all of which was done at the suggestion of Pittman.

It is fairly inferred from the record that Pittman expected to accept the $100 as a campaign contribution, but later concluded that it would be better for him and more likely to result in his re-election if he could convince the people of his district that he was an honest man who could not be bribed, and that having come to that conclusion, he decided to go another route wihout telling defendant that the payment was not to be a campaign contribution but a bribe to secure the sale of the road maintainer.

The record disclosing that the commission of the offense was suggested by Pittman and participated in by him — not only in receiving the money for himself, but also in receiving money for Arnot — and. their statements that they decided to entrap defendant, brings the case clearly within the authorities above cited.

For the reasons stated, the petition for rehearing should have been granted and the case reversed and sent back for another trial, and the trial court required to instruct on entrapment.


author: EDWARDS, P. J.

text:
    JESSIE SHIEVER v. STATE.
    No. A-8650.
    Feb. 27, 1934.
    (30 Pac. [2d] 192.)
    Ernest F. Jenkins, for plaintiff in error.
    J. Berry King, Atty. Gen., and .Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Payne county on her plea of guilty of maintaining a place where intoxicating liquors were kept for sale, and was sentenced to pay a fine of $50 and to serve 30 days in jail.

The complaint made is that the trial, court abused its discretion in denying defendant’s application to withdraw plea of guilty and to enter a plea of not guilty. Defendant was arraigned June 24th, at which time the court advised her of her right to have counsel and of her right to 24 hours to plead. Defendant said in substance she was guilty and might as well plead guilty. The court passed the imposing sentence until July 3d; on that date he extended the time until September 5th. On August 9th defendant filed an application to withdraw plea of guilty; on September 5th hearing on application was passed until September 15th, at which time a hearing was had and the application overruled. Defendant was then sentenced to the minimum punishment.

In her application to withdraw plea of guilty, defendant does not state she is not guilty, but states in substance she entered her plea by reason of ignorance and inexperience and because the jailer informed her it would be the best way out of the matter, and that her failure to have an attorney was due to negligence of other parties. In support of the application to withdraw plea defendant testified, in substance, that when arraigned the information was read to her and the court asked if she wanted to consult with an attorney and told her she had a right to 24 hours to plead; that there was some conversation between her and the judge as to when she would have to begin serving sentence, and that she then said, “I’m guilty and might as well plead guilty”; that no one told her they would turn her to the federal authorities, but that she understood such from the conversation. The court made a finding or statement, in substance, that at the time defendant was arraigned the information was read; that he informed her of her right to counsel, the right to time for plea, and of time to prepare for trial; that defendant said, “Well, there is no use of that, I’m guilty, I might as well plead guilty”; that he declined to accept her statement as a plea and informed her the plea must be “guilty” or “not guilty”; that the matter of punishment was discussed, and he further informed her the minimum punishment was a; fine of f 50 and 30 days in jail; that defendant stated her reason for not being prepared to serve sentence at that time, and he agreed that it be passed until the future date.

It is settled by numerous decisions of this court that the granting or denying permission to withdraw plea of guilty and substitute plea of not guilty is a matter within the sound discretion of the trial court, and its action must be upheld unless an abuse of such discretion clearly appears. Jenkins v. State, 6 Okla. Cr. 516, 120 Pac. 298; McAtee v. State, 39 Okla. Cr. 10, 262 Pac. 703; Rudolph v. State, 32 Okla. Cr. 265, 240 Pac. 761; Noblin v. State, 44 Okla. Cr. 389, 281 Pac. 165; Turner v. State, 33 Okla. Cr. 97, 242 Pac. 1053. Upon an examination of the entire record, we are convinced that the trial court under the circumstances shown did not err in denying defendant’s application to withdraw her plea of guilty and to enter a plea of not guilty.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    Ex parte ALTON WILLIAMS.
    No. A-8681.
    March 2, 1934.
    (30 Pac. [2d] 11X8.)
    Thad L. Klutts, for petitioner.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Alton Williams filed his petition in this court for a writ of habeas corpus, alleging that he was illegally restrained of his liberty by the sheriff of Oklahoma county, that no charge had been filed against him and no warrant issued, and that he had been in custody more than six days.

Stanley Rogers, sheriff of Oklahoma county, filed his response stating that he was holding petitioner as a fugitive from justice, upon a telegraphic warrant from the' state of Kansas, in which state he is charged with obtaining money by false pretenses alleged to have been committed in Pratt county, in said state.

It was made to appear to the court at the hearing that the Governor of the state of Oklahoma had honored a requisition from the Governor of the state of Kansas and had duly issued his requisition warrant therefor.

Defendant introduced evidence in support of his charge that the requisition was not in good faith but for the purpose of collecting a debt. The state offered evidence to the contrary.

The court, being duly advised in the premises, finds that the proceedings to obtain the requisition were in all things legal and proper and that there is no merit in petitioner’s contention that the prosecution is not in good faith.

The writ is therefore denied.

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


author: PER CURIAM.

text:
    OSCAR DOUGHTY v. STATE.
    No. A-8634.
    March 9, 1934.
    (30 Pac. [2d] 1118.)
    Champion, Champion & Fischl, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called the defendant, was convicted of having possession of intoxicating liquor, and was sentenced to pay a fine of $50 and to be confined in the county jail for a term of 30 days, and appeals.

The record in this case was filed in this court September 25, 1933; no brief has been filed in support of the defendant’s assignment of errors. A careful examination discloses no fundamental error, and the evidence is sufficient to support the verdict of the jury.

The case is therefore affirmed.


text:
    LEISTER CALVERT v. STATE.
    No. A-8616.
    March 9, 1934.
    (30 Pac. [2d] 717.)
    Karl D. Cunningham, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Lester Calvert, hereinafter referred to as defendant, was convicted in the district court of Kingfisher county of the crime of stealing a calf and, after the jury had failed to agree upon the punishment, was sentenced by the court to imprisonment in the state penitentiary for a term of two years.

There is practically no controversy as to the facts, so far as the stealing of the calf is concerned. It is undisputed that on or about the 23d day of February, 1932, one Charley Ray, a farmer living in Columbia township, Kingfisher county, had a calf stolen from a pasture; that a day or two- later the hide of this calf was found buried on the farm of defendant, which is located about three and a half miles from where the calf was stolen; that at the same time there was also found in defendant’s smokehouse two quarters of this same calf; and that some of the meat was found being cooked in defendant’s house. It is undisputed that this calf was taken by defendant and one Jack Dodd to the premises of defendant, where the same was butchered.

The defense is that defendant was so intoxicated at the time of the taking of the calf as to be unable to form an intent to steal the same. Dodd was jointly charged with defendant, but up to the time of the trial had not been apprehended.

Defendant claimed it was Dodd who performed the manual act of taking the calf from the pasture, loading it into defendant’s wagon, taking it to defendant’s home, and there butchering it; that defendant during all of said time was so drunk he did not know anything about it. He introduced some evidence that on that day he had been drinking heavily of whisky; that the calf was brought to his house about 10 o’clock at night; that at that time defendant was dead, drunk and Dodd and others helped carry him into his house and put him to bed; that the calf was butchered by Dodd and others at a time when defendant was in bed and knew nothing about it.

To secure a reversal of this case, defendant relies on the recent case of Jamison v. State, 53 Okla. Cr. 59, 7 Pac. (2d) 171, where this court said:

“Larceny involves a felonious intent, and if one takes property while so much under the influence of intoxicating liquor as. not to know what he is doing he will not be deemed to have taken the property with felonious intent.”

There appears to be a marked difference between the facts of the case at bar and those in the Jamison Case. In that case defendant was apprehended in the very act of asporting a stolen automobile. He was in a very drunken condition, and there was really no dispute in the evidence as to the fact of - intoxication to such a degree as to deprive defendant of knowledge of what he was doing.

In the case at bar, however, there is an appropriation by this defendant of this calf to his own use and benefit. He had practically half of it stored in his smokehouse. He had /some) of the meat cooking on his stove and the hide buried on his .premises at the time the officers made the arrest, two days after the calf was stolen. At that time, while sober, he denied to the officers any knowledge of the hide, or having any of the meat on his premises.

Charley Ray also testified that after defendant was arrested and brought to Ray’s place, he said they would not have taken it if he had.known it was Ray’s calf. Ray’s testimony discloses that this calf was about five months old and weighed between four and five hundred pounds. The inference would therefore be that it would require more than one person to load this calf in defendant’s spring wagon. The evidence further is that defendant and Dodd went toward Ray’s pasture in defendant’s spring wagon and a couple of hours afterward returned to defendant’s home with the dead calf in the wagon. After defendant bad been enlarged on 'bail, be attempted to settle with Bay for tbe calf and also, in tbe presence of A. W. Duggan, undersberiff of Kingfisher county, said be “got it” and that be “wanted to' settle for it.” At no time prior to his trial did defendant make any claim that be was intoxicated at tbe time be assisted in tbe commission of the offense.

Tbe state relies upon Derrisaw v. State, 29 Okla. Cr. 377, 234 Pac. 230, where tbe court entered into a fuller discussion of tbe question of intoxication.

In Huffman v. State, 24 Okla. Cr. 292, 217 Pac. 1070, this court said:

“On tbe trial of an information for grand larceny, tbe mental condition of tbe defendant, from tbe effect of intoxicants, is for tbe jury upon tbe question of felonious intent.”

Where there is a conflict in tbe evidence on this question, this court will not substitute its judgment .for that of tbe jury where it finds against defendant on that issue.

Upon tbe whole record, there appears to be no merit in defendant’s contention.

Tbe case is therefore affirmed.

DAVENPORT, J., concurs. EDWARDS, P. J., absent, not participating.