text:
    E. E. ABERNATHY v. STATE.
    No. A-9513.
    March 21, 1940.
    (101 P. 2d 634.)

      Dudley, Hyde, Duvall & Dudley and Jack Fariss, all of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis R. Morris, Oo. Atty., and John F. Eberle, Asst. Co. Atty., both of Oklahoma City, for the State.
   BAREFOOT, J.

Defendant, E. E. Abernathy, was charged by information filed in the district court of Oklahoma county, with the crime of embezzlement; was tried, convicted, and sentenced to pay a fine of $1, and serve a term of three years in the penitentiary, and has appealed.

For reversal of this case it is contended:

“First: The evidence as a whole fails to show the defendant guilty beyond a reasonable doubt, and the verdict of the jury, and the judgment and sentence entered thereon, is not supported by the evidence but is contrary thereto.”
“Second: The trial court erred in giving instruction No. 6, and in refusing to give the defendant’s requested instruction No. 1.”

On the 7th day of January, 1929, Stanley Rogers became sheriff of Oklahoma county. On January 20, 1930, the defendant, E. E. Abernathy, was commissioned as deputy, and continued to act as such until February 1, 1935, a little more than five years. Defendant had formerly had three years and ten months’ experience in the tax department of the county treasurer’s office of Oklahoma county. At the time he was appointed deputy sheriff he was placed in charge of the collection of delinquent personal taxes and sales taxes. While he performed other duties as a deputy this was his principal business and took the greater part of his time.

During the year of 1935 it was claimed that there was a shortage in the accounts handled by the defendant, and during the year 1935 and a part of 1936, an audit of the sheriffs office of Oklahoma county, including the delinquent personal tax department, which was in charge of defendant, was audited by an auditor from the office of the State Examiner and Inspector, and on August 26, 1936, a duplicate of said audit was filed in the office of the county clerk of Oklahoma county.

This audit covered four separate periods. The first period from January 7,1929, to1 January 3,1931; the second period from January 3, 1931, to January 2, 1933; the third from January 2, 1933, to' January 6, 1935; and the fourth from January 6, 1935, to January 12, 1936.

This audit, which was introduced in evidence, revealed a shortage in the delinquent personal tax department during the time that defendant had charge thereof of $1,983.-76. On December 10, 1936, an information was filed against defendant charging him with the embezzlement of this amount.

The record in this case contains over 700 pages. Elaborate briefs have been filed by both the state and counsel for defendant. We have carefully read the record and the briefs and the cases therein cited. It would unduly lengthen this opinion to give a detailed statement of all the evidence.

It is the contention of the state that the evidence justified the jury in finding that defendant embezzled the amount above set forth, and appropriated it to his own use. The defendant contends that even though there was a shortage, as revealed by the report of the auditor, he did not take or embezzle the same, and did not, at any time, appropriate any of said funds to his own personal use and benefit; that others besides himself had access to the funds and that he did not appropriate any of said funds to' his own use and benefit.

The undisputed evidence leaves no doubt that defendant had complete charge of the collection of delinquent personal tax warrants sent to the sheriff’s office by the county treasurer, and also the collection of delinquent sales taxes sent to the office by the Oklahoma Tax Commission. The evidence also reveals that other deputies at times assisted him and especially when he was not in the office at the time parties came to pay their delinquent taxes, but he was the one who had charge of the books and the money collected, and made the reports and deposits, as his duty required.

The method adopted for the collection of these delinquent tax warrants was simple, and if carried out in a lawful manner there was no chance or reason for a mistake or mishandling of the funds to be made. If any error was committed the defendant, under the system adopted, should have known it at once, and could have corrected it forthwith and made the error known to his superior officer, the sheriff of Oklahoma county.

The method adopted for the collection of these taxes was as follows: When a taxpayer failed to pay his personal taxes a tax warrant was issued by the county treasurer. These warrants were then sent to the sheriff, in book form, and it was the duty of the defendant, who' was in charge of this department, to correctly enter these warrants on a warrant register. He then sent notice through the mail to the taxpayer notifying him that his taxes were delinquent. If the taxpayer came into the office and paid his taxes, he was given a receipt. If he mailed in his payment the receipt was mailed to- him. When the personal tax receipt was returned a duplicate was made, which was retained in the sheriff’s office. At the end of each day the total of the money and checks on hand should equal the total of the personal tax receipts written. At the end of the day it was the duty of the party in charge, the defendant in this case, to take the total of the money and checks on hand and list them on a deposit ticket. When the deposit ticket was totaled it should be equal to the total of all the receipts written for that day and would check with the total amount of money being deposited.

As a further check the number of the tax warrant paid was put on the receipt and when the deposit was made up the tax warrant number was also shown on the deposit slip. After this deposit slip was made up, it was then the duty of the defendant to1 take it, together with a pass book, and the checks and money, to the office of the county treasurer, where it was then deposited to' the credit of the sheriffs depository fund, the county treasurer being the sheriffs banker. At the end of each month the sheriff’s office wrote a voucher (check) on the depository fund paying to the county treasurer the total amount received for that month for delinquent personal taxes. At the time of the issuance of the voucher the original personal tax warrants were pulled from the books and placed with the voucher. The voucher was then taken to the county treasurer, the taxes of the taxpayer were paid, and the county treasurer issued his official receipt for each of the tax Avarrants paid.

The defendant testified that this was the system to be followed. That he had had three years and ten months of experience in the handling of taxes in the county treasurer’s office. If the system as above outlined had been followed by the defendant, there would have been no chance of a shortage in his account. If any of the other persons had collected money and failed to put it in the box or desk where he put the funds, he would have known it at the end of the day. Not only the witnesses for the state testified that he at no time made complaint to them of any shortage in his account, but the defendant also' testified that he never at any time made complaint to any of his companions or to' his superior officer, the sheriff of Oklahoma county. Defendant and others testified that at times personal checks were cashed from the funds which he had. If the checks were there, this would not have caused a shortage even though this was a bad practice. The defendant was the one in charge of the funds. It was his duty, under his oath as an officer of the state, to protect the funds entrusted to his care and keeping. If others were permitted to have access to the money which was entrusted to him, it was his duty to be just that much more careful, to the end that the proper amount was on hand when he made his daily report and checked his accounts for the day.

The reading of this record reveals that it abounds with instances where defendant failed to properly handle the funds which came into his care and keeping. Instances where he collected delinquent taxes, some in cash, and some by check, and no receipt was given to the taxpayer.

One of those instances was when the Oklahoma Tax Commission sent a. sales tax warrant to the sheriff of Oklahoma county against the Black Hotel Pharmacy, Inc., and the same was received September 11, 1934. There was due upon this warrant $84.72, and $3.85 penalty; total $88.57. The defendant, on the following day, September 12, 1934, collected the following, amount of this warrant in cash with an additional sheriff’s fee of $1, total $89.57. He made no record in the sheriff’s office of the receipt of this money. It was not entered on any book. He took the original and duplicate sales tax warrant and left the duplicate stamped paid with the party who paid him the cash. This was first brought to light when the state attempted to collect the taxes the second time from the Black Hotel Pharmacy, Inc., about a year after the payment had been made to the defendant. The original tax receipt was never found, and the money was never accounted for in the sheriff’s office. The first deposit made to the county treasurer after September 11, 1934, was on .September 18, 1934. It does not list a deposit of $89.57, but the total deposit is $88.20, made up of $51 in currency, and three checks in the amounts of $6.38, $3.86, and $26.61; total $88.20. Each of these last three items had different numbers.

Another instance was. when a tax warrant No. 6080, for $74.14, was received by the sheriff’s office against Kanaly’s Pood Market on March 14, 1934. This warrant was paid by check by the company to' the defendant. The defendant made no record of the receipt of this check; no entry was made in the cash book. No' receipt was issued to the taxpayer. Defendant endorsed the check and listed it on the deposit slip. He did not list it as Kanaly’s check nor did he list Kanaly’s tax warrant on the deposit slip. When the voucher was made at the end of the month the Kanaly tax warrant No. 6080 was not listed on the voucher, and was not pulled and put with the voucher as it should have been. While this check went to the sheriff’s depository account it did not show that the Kanaly taxes were paid. It will be seen how by this act the amount of money reported by the check could have been appropriated by the defendant to his own use and benefit, although the check of Kanaly’s went into' the sheriff’s depository fund. Merely the keeping of that amount of cash by defendant would have shown the books to have been in proper shape. The Kanaly taxes were never paid as shown by the books of the county treasurer, although he had issued his check for them and it had been deposited and collected. The same procedure was followed by defendant in a tax warrant No. 8368, held by the sheriffs office for the Certified Retail Grocer’s Association, which was paid by check on January 21, 1935. Another instance were tax warrants of John Bailey, Jr., and Mrs. Edna Bailey, Nos. 1406, 1407, and 1408, for $86.64.

The evidence reveals other acts upon the part of the defendant, where he failed to issue receipts when money was paid him upon tax warrants which he held for collection. Other instances reveal that he issued receipts and the warrants which it was his duty to pull could not be located. The auditor from the office of the State Examiner and Inspector testified that three vouchers, one being No. 12355, issued to the county treasurer for taxes for March, 1932, in the sum of $2,371.57; also voucher No. 12945, dated June 30, 1932, for payment of taxes received by the sheriff for the month of June, and also voucher No. 12510, for the month of April, 1932, in the amount of $310, are still outstanding, and cannot be found. These vouchers should have been presented to the county treasurer’s office by the defendant. The auditor further testified if the three missing vouchers had been presented for payment that the sheriff’s depository account would have been overdrawn. It is contended by the state that the holding of those vouchers was a part of the system of defendant to cover up his embezzlement of funds, and that by these vouchers not showing up, sheriff’s depository account would not show overdrawn, when in truth and in fact not enough money had been deposited therein to cover the receipts which he had written. If the account had been overdrawn at that time, it would have shown a shortage in the account, and would have given an opportunity for an investigation which would have revealed the shortage at that time. The failure of these warrants to appear delayed the time for the shortage to he discovered.

The statute under which defendant was charged was: Section 2495, Okla. Stats. 1931, 21 Okla. St. Ann. § 341, which is as follows:

“Every public officer of the state or any county, city, town, or member or officer of the Legislature, and every deputy or clerk of any such officer and every other person receiving any money or other thing of value on behalf of or for account of this state or any department of the government of this state or any bureau or fund created by law and in which this state or the people thereof, are directly or indirectly interested, who either:
“First: Appropriates to his own use, or to. the use of any person not entitled thereto, without authority of law, any money or anything of value received by him as such officer, clerk, or deputy, or otherwise, on behalf of this state, or any subdivision of this state, or the people thereof, or in which they are interested; or,
“Second: Receives, directly or indirectly, any interest, profit or perquisites, arising from the use or loan of public funds in his hands or money to be raised through his agency for state, city, town, district or county purposes; or,
“Third: Knowingly keeps any false account, or makes any false entry or erasure in any account of or relating to any moneys so. received by him, on behalf of the state, city, town, district or county, or the people thereof, or in which they are interested; or
“Fourth: Fraudulently alters, falsifies, cancels, destroys or obliterates any such account; or
“Fifth: Willfully omits or refuses to. pay over to the state, city, town, district or county, or their officers or agents authorized by law to receive the same, any money or interest, profit or perquisites arising therefrom, received by him under any duty imposed by law so as to pay over the same, shall upon conviction thereof, be deemed guilty of a felony and shall be punished by a fine of not to exceed $500, and by imprisonment in the penitentiary for a term of not less than one nor more than 20 years, and in addition thereto shall be disqualified to hold office in this state, and the court shall issue an order of such forfeiture1, and should appeal be taken from the judgment of the court, the defendant may, in the discretion of the court, stand suspended from such office until such cause is finally determined.”

It is contended by defendant that, “the evidence as a whole shows that this shortage is a bookkeeping one arising on account of errors, oversights, mistakes, omissions and carelessness, and not an embezzled one.” A careful reading of the record, and taking into' consideration that the questions of fact have been decided by the jury, and upheld by the trial court in overruling the motion for new trial, does not justify this court in coming to that conclusion.

The defendant had had three years and ten months’ experience in the tax department of the county treasurer’s office of Oklahoma county prior to his appointment as deputy sheriff. It was by reason of this experience and qualification that he was appointed to this position. The method of collecting the delinquent personal taxes was so simple, as above outlined, and it was so easy for him to have detected an error immediately upon its occurrence, that the jury had the right to conclude that it was not an error in bookkeeping, and was not due to mistakes, omissions, and carelessness. The failure of defendant on occasion after occasion to give receipts, when he received money or checks from taxpayers to' pay their taxes; his failure to pull the original tax warrants, and return them to the office of the county treasurer, and his failure to give a full receipt for the money received from the Cromwell Franklin Oil Company and the Capitol Drilling Company; his action with reference to the money paid him by the Black Hotel Pharmacy, Kanaly’s Food Market, the Certified Retail Grocer’s Association, and John Bailey, Jr., and Mrs. Edna Bailey, were all for the proper consideration of the jury as to the plan and scheme used by defendant to cover his shortage as shown by the report of the auditor from the office of the State Examiner and Inspector.

Upon cross-examination with reference to his failure to do these things in the proper manner, his reply was that he had no' independent recollection of them. He identified his own handwriting in many instances, and acknowledged the receipt of the money in question. His only explanation was that he had placed it in the cigar box or the safe.

The evidence revealed that other officers at times assisted the defendant in the collection of taxes, and the mailing out of the deposit slips, when he was not present, but the evidence of these officers is that the proceeds were immediately turned to the defendant, so that he had the opportunity to' examine the receipts and the cash, and see whether they balanced. The defendant’s own testimony was that he never at any time found anything wrong, and that he never at any time made complaint to any one.

In the brief of defendant only one case is cited upon this proposition, and that is the case of Sentell v. State, 61 Okla. Cr. 229, 67 P. 2d 466, 469, which announces the rule.

“It is well-settled law in this state that if there is evidence to support the conviction this court will not Aveigh the sufficiency of the same to support the verdict. It is, however, equally well settled law in this state that this court Avill consider all the eAddence to ascertain whether a verdict is in fact founded upon sufficient evidence to warrant a conviction.
“If the evidence introduced by the state fails to incriminate the defendant, or as a matter of law is insufficient to show that the defendant is guilty of the offense charged, it is not only the right but the duty of the trial court to advise the jury to return a verdict of acquittal.”

There is no question as to the correctness of the rule above announced, but the facts in the instant case do not justify its application here. The case of Lyons v. State, 68 Okla. Cr. 396, 100 P. 2d 287, is identical in many ways.' with the case a,t bar. In that case the money collected by the defendant was deposited in a cigar box, as was done in this case, and placed in a desk where others had an opportunity to have access thereto. In that case it was held that the evidence was sufficient to show that defendant appropriated the funds which came into his possession to his own use and benefit. State v. Duerksen, 8 Okla. Cr. 601, 129 P. 881, 52 L. R. A, N. S., 1013; Liddell v. State, 61 Okla. Cr. 306, 68 P. 2d 432.

It is next contended that the court erred in giving instruction No. 6, and in refusing to give defendant’s requested instruction No. 1. Instruction No. 6 was as follows :

“You are instructed that if you find and believe from the evidence in this case, beyond a reasonable doubt, that the defendant, E. E. Abernathy, on or about the 14th day of February, 1935, was a duly appointed, qualified and acting deputy sheriff acting under Stanley Rogers, sheriff of Oklahoma county, Oklahoma, with authority to collect and receive money and things of value for and on behalf of Oklahoma county and the state of Oklahoma, and with the authority and the duty to deposit same with the county treasurer of Oklahoma county, Oklahoma, and while acting as such deputy sheriff he did collect and receive from time to time certain money and things of value on behalf of and for and on account of Oklahoma county and the state of Oklahoma, under his official capacity and by virtue of his office of deputy sheriff, and thereafter did unlawfully, willfully, intentionally, fraudulently and feloniously embezzle and convert to his own use and benefit and not in the due and lawful execution of his trust as such deputy sheriff, and without the assent of Oklahoma county and the state of Oklahoma, and without authority of law, the sum of $1,984.76, or any part thereof, the property of Oklahoma county and the state of Oklahoma, and that defendant’s appointment and employment as deputy sheriff was terminated on or about said day and he did then and there willfully omit and refuse to pay over to Oklahoma county and the state of Oklahoma, and their officers and agents the said sum of $1,-984.76, or any part thereof, as charged in the information in this case, then he would be guilty of the charge against him. However, if you do not so> find, or entertain a reasonable doubt thereof, then it will be your duty to find the defendant not guilty and acquit him. If you find the defendant guilty, you will so state in your verdict and it will be your duty to fix and assess the punishment therefor within the limits heretofore set forth in these instructions.”

Defendant’s requested instruction No1. 1 was as follows :

“You are instructed that if a shortage in the delinquent personal tax warrant collection account occurred during the term of office of the defendant, and if you find from the evidence that such shortage was due to loose bookkeeping, errors, and oversight, then such shortage would not be an embezzled shortage; but if you find that the defendant fraudulently appropriated the amount of such shortage, or any portion thereof, then he would be guilty of embezzlement; otherwise, he would not.”

We do' not see how any objection can be had to- instruction No. 6. In very simple and concise language it presented the issue to the jury, giving them an opportunity to pass upon the question of fact as to them seemed proper under the evidence in the case. Certainly there was no misstatement of the law in any way.

The requested instruction offered by defendant is confusing and misleading, and is not justified by the evidence offered in this case. It could have only tended to confuse the issue involved. While there may have been evidence before the jury that there was loose bookkeeping by defendant and errors and oversights, yet this would not justify an instruction that if they existed it would not be an “embezzled shortage”, and that he should be discharged. This is not the law. In almost every case of embezzlement there exist loose bookkeeping, errors and oversights. Ryan v. State, 8 Okla. Cr. 623, 129 P. 685; Newby v. State, 17 Okla. Cr. 291, 188 P. 124.

Defendant, in his brief to support his contention, cites the following cases: Hays v. State, 22 Okla. Cr. 99, 210 P. 728; Blake v. State, 12 Okla. Cr. 549, 160 P. 30, L. R. A. 1917B, 1261; Smith v. State, 61 Okla. Cr. 427, 69 P. 2d 394; State v. West, 14 Okla. Cr. 405, 171 P. 1127; Murray v. State, 55 Okla. Cr. 241, 28 P. 2d 718. In the Hays Case the information was based upon a different statute, sec. 7437, Laws 1910, sec. 7761, O. S. 1931, 19 Okla.. St. Ann. § 641, and not upon the statute here involved, which was section 2495, O. S. 1931, 21 Okla. St. Ann. § 341. The statute construed in the Hays Case was a special embezzlement statute, and its terms were not the same as the one here involved. In the opinion the court said [22 Okla. Cr. 99, 210 P. 731] :

“Under the provisions of sections 3213 and 3214 [Stats. 1910, 28 Okla. St. Ann. §§ 3, 37] the illegal retention and failure to pay over the public funds would amount to an appropriation of the fund, not in keeping with defendant’s trust, amounting to embezzlement as therein defined. The language used, ‘When any such officer (court clerk) shall fail or refuse to account for or to pay over any money in his official capacity he shall be deemed guilty of embezzlement,’ indicates that the willful failure or refusal alone to pay over or account for public funds as provided by law constitutes the offense. This statute was designed to prevent a county officer, on one pretext or another, from retaining for an indefinite period, for his own advantage, portions of the perquisites of his office, pending adjustments, audits, offsets, and claims in litigation.”

Sections 3213 and 3214, Rev. L. 1910, 28 Okla. St. Ann. §§ 3, 37, are special embezzlement statutes, but are worded different from the statutes involved in the Hays Case. The Blake Case construed section 2243, Rev. L. 1910; Oklahoma ¡Statutes 1931, sec. 2479, 21 Okla. St. Ann. § 531, which was a special embezzlement statute, but whose terms were different from the ones under which the information was filed in the instant case. In that case the court said [12 Okla. Cr. 549,160 P. 31, L. R. A. 1917B, 1261] :

“The accused, after obtaining lawful possession of the funds, failed to account for or to pay the same over on proper or lawful demand,” would be liable for the embezzlement thereof. The Smith Case is one somewhat similar to the case at bar. In that opinion it was said [61 Okla. Cr. 427, 69 P. 2d 396] :
“The contention of defendant that someone else could have misappropriated the funds is merely a conjecture. The evidence showed that he was the one who had charge of them, and he was the one who failed to account for them, according to the verdict of the jury.
“It is first contended by the defendant that he was prosecuted for embezzlement of public funds under section 7761, O: S. 1931 (19 Okla. St. Ann. § 61), and that under said section it was necessary for the state to show a personal appropriation of said funds by the defendant before he could be convicted under this statute.
“We think that under the decisions of this court it is necessary under this statute to show there was a personal conversion, but we think that the proof as revealed by the record shows a personal conversion by the defendant. State v. Harris et al., 47 Okla. Cr. 344, 288 P. 385; Griswold v. State, 23 Okla. Cr. 136, 212 P. 1018.
“The record shows the items with which the defendant was charged with embezzling were traced into his hands. Receipts were issued by the defendant in his own handwriting, charges were made on the cash book and on the appearance docket all in his own handwriting. Some of these items were for marriage licenses and other public money that came into his hands as deputy court clerk. The record shows that these funds were not deposited in the manner provided by law. That this duty was intrusted to him is not denied. In order to appropriate the public funds to one’s private use it is not necessary for the state to show by direct evidence the actual securing of the funds and the spending of the same. Often this would be impossible. When the funds were shown to have come into the actual possession of the defendant and they were not deposited in the office of the county treasurer, or turned over to' the county in the manner provided by law, the jury has a right to infer that they have been misappropriated under the statute above indicated. The cases draw a close distinction as to the duty devolving upon public officials and those devolving upon individuals and especially when they are acting under a special statute, adopted for the purpose of protecting public funds which have come into the possession of public officers.”

There is nothing in this case to sustain the contention of defendant. The same is true in the West and Murray Oases. The Lyons and Smith Cases are very similar to the case at bar. Garter v. State, 6 Okla. Cr. 232, 118 P. 264; Casselman v. State, 58 Okla Cr. 371, 54 P. 2d 678. We do not see how a reversal of this case could benefit the defendant or change the result. He has been ably defended.

Finding no error, it is ordered that the judgment of the district court of Oklahoma county be affirmed.

DOYLE, P. J., and JONEiS, J., concur.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    JAMES S. NICHOLSON v. STATE.
    No. A-9547.
    March 21, 1940.
    (100 P. 2d 896.)
    W. E. Rice, of Ponca City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error was tried upon an information charging that in Kay county on the 1st day of August, 1937, he did unlawfully, willfully and feloni-ously drive an automobile on the public streets of Ponca City. The trial resulted in a verdict of guilty, but the jury were unable to agree upon the punishment. On January 28, 1938, the court rendered judgment on the verdict and he was sentenced to confinement in the state penitentiary at McAlester for the term of four months, and it was further ordered that his driver’s license be re-voted for a period of one year. From the judgment an. appeal to this court was duly perfected.

While his appeal was pending and awaiting decision before this court, his attorney of record filed a motion to dismiss the appeal for the reason that on the application of plaintiff in error, a parole was granted plaintiff in error by Hon. E. W. Marland, Governor, December 29, 1938, and the same duly attested by F. O. Carter, Secretary of State, was accepted by plaintiff in error.

The uniform holding of this court is that when the pardon power extends clemency, and the same is accepted pending the determination of the appeal, the appeal will be dismissed. Stout v. State, 38 Okla. Cr. 30, 258 P. 1054.

Where plaintiff in error accepts parole pending the determination of his appeal, he thereby waives the right to have his appeal determined; and, when notice of this fact is brought to the attention of the court, the appeal will be dismissed. Hicks v. State, 24 Okla. Cr. 43, 215 P. 794.

It follows that the motion to dismiss the appeal will be sustained. It is therefore considered, adjudged and ordered that the appeal herein be and the same is hereby dismissed, and the cause remanded to the district court of Kay county.

BABEFOOT and JONES, JJ., concur.


author: JONES, J.

text:
    GLENN BEAMAN v. STATE.
    No. A-9636.
    March 28, 1940.
    (101 P. 2d 281.)

      E. W. Snoddy and L. Z. Lasley, both of Alva, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Bill Gruber, Co. Atty., of Alva, for defendant in error.
   JONES, J.

The defendant Glenn Beaman was charged in the county court of Woods county with the offense of unlawful possession of intoxicating liquor, was tried, convicted and sentenced to serve a term of 30 days in the county jail and to pay a fine of flOO and costs, and has appealed to this court.

The defendant assigns as error:

(1) The purported arrest of the defendant was in violation of his constitutional rights; that all the evidence obtained by the officers subsequent to such arrest was not admissible against him.

(2) Error of the court in permitting the county attorney to file a substitute information.

(3) Error of the court in permitting, the state to introduce in evidence the liquor obtained at the time of the arrest without first having the same properly identified.

The evidence herein shows that an affidavit for search warrant was filed before the county judge of Woods county on January 25, 1938, at which time a search warrant was issued for a DeSoto sedan automobile, series 1937, Oklahoma Tag No. 195-100, motor No. S-3-39289.

That the sheriff and two deputies of Woods county immediately after receiving the search warrant went to where the automobile in question was parked, in front of a house just south of the town of Waynoka. That the officers stopped at the above-described automobile and saw the defendant coming from the house carrying, a basket. That the sheriff testified he said to the defendant:

“Jimmie, this is Ken and his deputies. I have a search warrant for your car. He said he didn’t have any car, and Neis Nelson spoke up and said, ‘This tag number here is the tag number,’ and Jimmie says, ‘What I meant is that I don’t have any liquor in the car. This is all the liquor I have.’ And then he handed me a basket he had been carrying.”
“Q. Did you examine the contents of the basket at that time? A. Yes, sir. Q. What did the basket contain? A. Ten pints of whisky; one pint of gin; eight and one-half pints of alcohol.”

The officers then related that they searched the car and did not find anything, and then they placed the defendant under arrest and- brought him to Alva. One of the officers testified that he broke the seal on certain of the bottles in order to taste, smell or otherwise determine the contents of the bottles; and he identified the three bottles whose seals had been broken by him as containing whisky, alcohol and gin, and that the other bottles whose seals were not broken were identical in size and shape as those whose seals were broken. That they had like stamps and labels as those whose seals were broken. With this showing, the bottles of liquor were admitted in evidence.

The defendant rested his case without offering any evidence in his behalf.

There is no' merit to the contention of the defendant that this was an unlawful search. The officers did not know the contents of the basket which the defendant was carrying, and he was not arrested until after he had voluntarily handed the officers the basket of liquor and they had finished searching his automobile. No arrest had been made of the defendant, and it is apparent from the record that no arrest would have been made if the defendant himself had not voluntarily delivered to the officers the 'basket of liquor.

This was committing a misdemeanor in the presence of an officer, and the officer had a legal right to arrest the defendant. Section 2780, O. S. 1931, 22 Okla. St. Ann. § 196; Brumley v. State, 69 Okla. Cr. 122, 100 P. 2d 465.

The defendant in support of his second assignment of error cites section 2831, O. S. 1931, 22 Okla. St. Ann. § 1275, and section 810, O. S. 1931, 67 Okla. St. Ann. § 1.

Section 2831, O. S. 1931, 22 Okla. St. Ann. § 1275, provides:

“The clerk of the district court shall keep a record in which all indictments, informations and bonds shall' be entered and certified as true and correct copies of all original indictments, informations and bonds filed in his office, and whenever any such original indictment, information or bond filed with the clerk becomes either lost, destroyed or stolen, or for any other reason cannot be produced at the trial, a. certified copy of the aforesaid record of such original indictment, information or bond shall be competent evidence and shall have the same validity and effect as the original thereof.”

Section 810, O. S. 1931, 67 Okla. ¡St. Ann. § 1, provides :

“Whenever the record of any judgment or decree, or other proceeding, of any court of this state, or any part, of the record of any judicial proceeding or any other public records, shall have been lost or destroyed, any person interested therein may, on application by petition in, writing, under oath, to the proper court of the county Avherein the records were kept, on showing, to. the satisfaction of such court, that the same has been lost or destroyed without fault or neglect of the person making such application, obtain [an] order from such court, authorizing such defect to- be supplied by a duly certified copy of such original record, where the same can be obtained; which certified copy shall, thereafter, have the same effect as such original record would have had, in all respects.”

We have heretofore held in the case of Reutlinger v. State, 43 Okla. Cr. 261, 277 P. 950, that the power of courts of record to supply on proper proof their own lost or destroyed records exists independent of any statute by virtue of their inherent power, and such statutes as are enacted upon the subject are merely cumulative and do not impair the power otherwise residing in the courts. See, also, in this connection, the case of Lowrance v. Richardson, 23 Okla. 343, 100 P. 529.

There is no contention made by the defendant that the substitute information charges a different offense from the original information or that the defendant has been prejudiced in any manner. Error must affirmatively appear from tbe record. The contention of the defendant is highly technical and wholly without merit.

The third contention of the defendant, that the court erred in admitting as evidence the bottles of liquor obtained by the officers, is likewise without merit. The officers testified positively as to the contents of the bottles which they had tasted. The bottles of liquor which had been tasted by the officers, together with the other bottles, were all admitted in evidence. Their size, shape, contents, the government stamps, and the labels were all the same. They were all circumstances which the jury might consider in determining the question as to whether or not the other bottles contained intoxicating liquor.

A prima facie case was made against the defendant, the instructions of the court properly presented the issues, and we find no error of sufficient merit to warrant the reversal of this case.

The judgment is accordingly affirmed.

DOYLE, P. J., and BAREFOOT, J., concur.


author: BAREFOOT, J.

text:
    ERNIE FREEMAN v. STATE.
    No. A-9631.
    March 28, 1940.
    (101 P. 2d 653.)

      Utterback & Utterback and R. T. Stinson, all of Durant, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Bill Steger, Co. Atty., and Ben Carter, Former Co. Atty., both of Durant, for the State.
   BAREFOOT, J.

The defendant, Ernie Freeman, was charged in Bryan county with the crime of murder; was tried, convicted of manslaughter in the second degree, and sentenced to serve a term of two’ years in the penitentiary, and has appealed.

The charge against this defendant was by reason of the killing of R. F. Choate, upon the streets of the town of Caddo, Bryan county, on the 8th day of October, 1937, and while defendant was driving an automobile upon said streets.

Among the assignments of error presented is that the verdict of the jury is contrary to the law and the evidence. As to when this court will set aside the verdict of the jury in a case involving the sufficiency of the evidence to sustain the same has often been passed upon by this court. In one of the most recent cases, that of Sentell v. State, 61 Okla. Cr. 229, 67 P. 2d 466, 469, that rule has again been announced, as follows:

“It is well-settled law in this state that if there is evidence to support the conviction this court will not weigh the sufficiency of the same to support the verdict. It is, however, equally well settled law in this state that this court will consider all the evidence to ascertain whether a verdict is in fact founded upon sufficient evidence to' warrant a conviction.
“If the evidence introduced by the state fails to> incriminate the defendant, or as a matter of law is insufficient to show that the defendant is guilty of the offense charged, it is not only the right but the duty of the trial court to advise the jury to return a verdict of acquittal. Procedure Criminal, section 8090' (22 Okla. ¡St. Ann. § 850).”

With this well-established rule in mind, a review of the evidence in this case is necessary.

As a matter of convenience a part of the evidence of the defendant will he considered first.

The defendant, Ernie Freeman, was 31 years of age; married, and the father of three children. With the exception of three years that he resided in Texas he had lived in the vicinity of Caddo, Bryan county. He was engaged in farming on a small scale. In his early years he had been sick, and as a result thereof had had trouble with his lungs and heart. He had been under the treatment of a doctor upon numerous occasions.

The first witness for defendant was his wife, Mrs. Ernie Freeman. She testified that she and defendant had been married 11 years; that they lived three miles west of Tuska, in Bryan county, on a farm; that on Friday, October 8, 1937, her husband had been sick and had been lying down a part of the day; that he told her he was going to Caddo' to see the doctor and to get some medicine; that she tried to get him not to start until she could get her work done and get the children ready so she could go with him; that about 5:15 p. m., he left to gO' to Caddo by himself. She thought he had a chill during the day. He was nervous and high-strung. She testified he was subject to these attacks, and had had them for many years. She testified to several occasions when he became delirious, and especially at one time when they were in a car going to Turner Falls about 30 days prior to October 8, 1937. He had to get out of the car and rest. She did not know the defendant had injured anyone until her mother came to her home on the following Saturday and told her.

Mrs. Bruce G. McGraw testified that she had known defendant and his wife for about five years. She recalled she and her husband being at the home of defendant and defendant becoming sick while they were eating supper, and that Ms face was flushed, “and be was jerking all over and didn’t seem to know muck about wbat be was doing, and we taken him to the doctor.”

Wiley A. Cariker testified that be lived at Armstrong and bad known the defendant all of bis life. He was in business at Armstrong. He recalled an instance when the defendant came to bis place of business about dark. He went out to the car and saw defendant, who told him be was sick, “and thought be would rest a little while”. He laid down on a bench for a short while, and finally said, “I think I feel well enough to go on to Caddo”. He further testified:

“Q. Did you notice anything out of the ordinary in his appearance? A. No, sir, I did not. My first impression was that he was drunk, but he wasn’t. He did not act like it. Q. He acted like a sick man? A. Yes, sir; he did. He said he was sick and acted like it.”

Dr. B. P. Dickey, who- had practiced medicine for 34 years, and who lived in Caddo, Bryan county, testified he had known the defendant for a number of years, and during that time had treated him on numerous occasions. He had treated him for “hemorrhage of the lung”, and “nervous heart trouble.” These treatments were two or three years prior to the 8th of October, 1937, but he had had occasion to see him after that time. He further testified:

“Q. Doctor, had you learned how he was affected mentally by either or all of these troubles? A. When he had fever he was very delirious. Q. Was that habitual? A. It was when he had hemorrhages of the lung, and he was delirious when he would have fever at all. Q. Will you state to the jury just how two or three degrees of temperature or what we ordinarily call moderate fever or high degrees of fever, how it would affect him? A. He was delirious when he had fever from 101 to 102, and was very nervous aud would see things about over the house and in fact, when he had much fever he was a nervous wreck.”

The doctor was asked hypothetical questions describing the conduct of the defendant prior to the accident involved in this case, and stated that in his opinion it would make him very nervous and he would not know what he was doing and that “he would be about like a drunk man was or a man incapable of taking care of himself.”

He further testified:

“Q. And when he was mentally in what you call a nervous wreck, how would that affect him as to his being easily excited? A. He has always been easily excited, that has been my experience with him. If he is excited very much he would not have much sense. He would be almost mentally incapable of doing anything. Q. Doctor, if on the day, October 8, 1987, Ernie Freeman had a chill followed by fever and while he was in that condition he would back his car and hang, the bumper of his car on the other car and make considerable noise, what affect in your opinion, would that have upon his mental capacity, if at that time he was suffering with this fever? A. My opinion would be that it would make him very nervous and he would not know what he would do.”

He further testified as follows:

“Q. With any of these troubles that you have indicated, would there be any evidence of a flushed face? A. Yes, his face was usually flushed. His face was usually flushed when he had fever and was nervous and his heart troubled him.”

He further testified as follows:

“Q. When a man is rational or irrational from the effects of fever, tell whether or not the patient when he is irrational, will make statements that you know are not from a rational mind, and maybe the next minute or two he is perfectly rational, could there be a continued condition? A. Ordinarily it is not a continued condition. He might be rational for a little while and talk about some things foolish the next. He could talk or think about some things and be rational and after that was over with, he would be irrational.”

He further testified that he was out of the town of Caddo on the evening of October 8, 1937. That the defendant came to his home on the morning of the 9th of October, and he took him to Armstrong and turned him over to the officers from Durant. , He did not make an examination of him, but he was “nervous, sick and crying”, and told him he did not want the officers to* come after him, and asked him to- take him in.

Alfred Jackson testified he was the father-in-law of defendant. That defendant and his brother, Pearly Freeman, came to his home about five and a half miles northwest of Caddo some time between 9 and 10 o’clock, on the night of October 8, 1937. That his brother came in and asked if Dr. Dickey was there; that he lived on Dr. Dickey’s place; that he asked who was sick, and Pearly Freeman told him Ernie Freeman, the defendant, was sick; that he wanted to see the doctor. The defendant told him that he had hurt someone down at Caddo, and wanted to gu to Durant and give up, and was anxious to get word to his wife of his whereabouts so she would not be worried about him. That a cloud was coming up and it was sprinkling rain, and the roads were bad to Durant and they were likely to get stuck. He persuaded defendant to get out and stay all night at his home, which he did. He testified defendant was excited and he heard him up during the night, but could not tell whether anything was the matter with him. This witness testified he did not think defendant was rational, but that he was not out of his head. He was very fair in his testimony.

Pearly Freeman testified lie was the brother of defendant. That he lived three miles south of Caddo-. That on the night of October 8, 1937, about 8 or 8:30 o’clock his brother came to his father’s home; that his face was flushed and he seemed to be sick; that defendant told him that he had been sick all day, and thought that he had run over somebody at Caddo. He advised him to go to Durant and give up, and they started to- Durant. The defendant wanted to- see a doctor and wanted to get word to his wife SO' she would not worry. When they got to the highway the defendant told him Dr. Dickey was out at his farm and they went to the home of his father-in-law, Mr. Jackson. It was dark and cloudy and sprinkling rain, and his brother, the defendant, stayed there and he went home. He testified that the defendant had had spells for many years; that they seemed to be caused from his head and his heart.

The evidence of the state to sustain the allegations of the information was as follows :’

Frank Powell was an undertaker at Durant and he went to Caddo- to get the body of R. F. Choate.

Dr. W. K. Hanie- testified to the death of R. F. Choate on the 10th day of October, 1937, as a result of injuries received on October 8, 1937.

Joe Turner was a barber at Caddo. He saw defendant about the time he closed his shop. He drove past his shop and parked in front of Mr. Meadow’s store. He got out and went in the store and stayed a few minutes and came out and got in his car and backed out. In doing so his car struck another car that was parked beside it. He saw him back out again and go east to the intersection and turn and come back west to the place where he struck the car in backing out. Someone holloed at him. and he stopped and said: “If he had done any damage he had the money to pay for it.” He heard somebody say, “No-, you didn’t do any damage to speak of.” He then went on west on the public street which was known as Buffalo street. He did not know how fast he was going but imagined 80 miles an hour. This was about 6:15 p. m.

Hugh Huddleston testified he had a garage and filling station at Caddo. He saw defendant when he came out of the Meadows Grocery Store. He was about 30 or 40 feet from him. He saw him back out and strike the bumper of Joe Brown’s car. He drove east to the intersection and came back going west and stopped and talked to Joe Brown. He said to him, “What you say?”, and Mr. Brown replied, “You did not do any damage, you bent the bumper a little”, and he said, “If I done any damage I got the God-damn money to pay for it.” He then drove west up Buffalo street, which has a little incline. When asked how fast he was driving, he said, “I couldn’t tell exactly, 40 or 45 miles an hour.”

Mr. H. I. Meadows testified he was in the grocery business in Caddo-. That the defendant came to his place of business on the evening of October 8, 1937, “just after sundown, about dusk.” That he walked to the back of the store and asked him if he had some flour, and he asked him if he wanted a sack, and defendant said, “Not just now, I may be back after while.” That he talked to him for a few minutes, and defendant walked out and got in his car, and “sat in the car for a half or three quarters of a minute.” That he did not see him back out, “but he rubbed another car there.” That when he did this he came back in and parked at the same place for a minute and then backed out. He heard him ask Mr. Brown if he had done any damage to his car. On cross-examination he stated, “The only thing I noticed unusual about him was his face was a little flushed.”

Charley Harmon lived in Caddo and was standing in the front door of the City Hall, which is across the street north from Hugh Huddleston’s garage. He saw defendant back out and strike the rear fender or bumper of Joe Brown’s car. He saw him drive up to the intersection and then turn and come back and ask if he had done any damage, and if so he would pay for it. He had plenty of money. He observed him as he drove on west, and saw him pass another car, and he thought he was going to run into' it, “but he turned and run nearly across the street and straightened it and went on.” ' He testified he was going fast.

Joe Brown heard the noise when defendant backed into his car. He saw him go back to' where he was parked, and then back out and go down the street east to the intersection and as he came back west, he holloed at him and he stopped and said: “What damage have I done, I got plenty of dam money to pay for it,” and that he told him there wasn’t any damage, and he drove on. He further testified:

“Q. Did you observe him as far as you could see him down wrest? A. I quit looking after he got about a block. Q. How fast was he going? A. Something like 40 miles an hour.”

On cross-examination he said, “How fast he was going is just a guess.”

The next witness for the state was J. N. Choate. He was the brother of deceased, and was 65 years of age. His brother was 69. He lived in Arkansas, and on the 8th day of October, 1937, was visiting his brother at his home in Caddo. Just about dark they had been down to the shop where his brother worked and were returning home. They were going' west on the south side of the street, and in front of Mr. Brauderick’s house they started to turn north and go across the street. They had passed the street intersection about- ten feet. He saw a car coming from the east. He testified:

“Q. How far away was that car when you first saw it? A. I couldn’t say how far, it was a right smart little ways. Q. In feet, could you estimate it? A. It was 100 feet or more. Q. Could you tell whether the car was coming fast or slow? A. It was- coming fast. Q. Did you say anything to your brother, or he to- you? A. Yes, sir, I stopped when I saw the car coming and said to him, ‘I don’t believe we can malee it’ and I stepped back and he said to me, ‘We are going to have to hurry.’ Q. You went to the back toward the south side of the street? A. Yes, sir. Q. Was there a street light there? A. Yes, sir. Q. Was it burning at the time? A. Yes, sir. Q. How near to the north side of the street did your brother get when he was struck? A. You might say he was ready to go off of the pavement. Q. You mean the gravel? A. Yes, sir. Q. Where were you when he was struck? A. I was back there close to the south side of the street. Q. What effect did the car striking, your brother have — did it thro w him any distance? A. Yes, sir. Q. Tell what happened? A. It carried him a right smart little piece. Of course, I couldn’t see anything. I reckon he threw his brakes on about the time he hit him. It made such a, dust I couldn’t see my brother after he crossed the street. Q. What did the car do them? A. It went out a little ways and turned around and backed into- another car. Q. What did the car do after it struck your brother? A. It went and turned around and backed into this other car, then the lights were towards me and my brother. I had got to my brother and he whipped around us. Q. Which side did he go around? A. North side and he turned back angling across the street. Q. Which direction? A. South and hit that street running south. Q. Did you ever see the person in the car? A. I saw him, but that was all. I didn’t know him.”

On cross-examination be stated:

“Q. Tell the court and jury if it isn’t a fact that you and your brother had progressed west across this north and south street — half on across the west of the culvert and on the side of it and turned angling across bringing you out over there about the door of the Brauderick house, or near this entrance that went in — the driveway? A. We wasn’t angling much. Q. You were going across west of the street and west of the culvert? A. Yes, sir.”

He further testified:

“Q. You are sure the light was burning? A. (No answer). Q. Don’t you remember immediately after that, someone commented near the body of vour brother, that the light wasn’t burning? A. No, sir. Q. Was your brother deaf, Mr. Choate? A. No, sir. Q,. His hearing was alright? A. Yes, sir. Q. He had lived in that block for a long time? A. Yes, sir, he had been living there.”

He further testified:

“Q. When you crossed over this north and south street, did you get to the Avest side of the north and south street before you started north? A. Yes, sir. Q. Did you go past this north and south street before you started north? A. Yes, sir. Q. How far past the north and south street did you get before you started going north? A. Just a little ways. Q. How far — ten feet, five feet, or ten feet or what? A. Ten feet. We crossed a little bridge there. Q. Which way did that bridge run east or west? A. North and south. Q. When you had crossed over this north and south street and had gone about ten feet, you then started north to the north side of the Brauderick house? A. Yes, sir.”

The next witness for the state was Madrey Barker. He testified he was 22 years of age. That on the evening of October 8, 1937, he was at the home of Bill Smith, who1 lived on the southeast corner from the John Brauder-ick home, and on Buffalo street. He was sitting in the front room of the Smith home, and the first thing that attracted his attention, “I heard a dull thnmp when it hit Mr. Choate.” He saw the car of defendant on the south side of the street in the bar ditch and saw defendant back up and then turn around and head back toward Mr. Choate and stop. He heard Mr. Oscar Nail holloa that he had killed a man. The defendant immediately backed his car out, and in doing so struck an automobile that was headed east. He then turned at the corner and went south. He recognized the defendant, Ernie Freeman, as being the driver of the car. The defendant did not say anything and did not get out of the car. He did not remember whether the street light was burning or not.

John Brauderick testified that he was at his home on the evening of the 8th of October, 1937. He was standing on the porch and Mr. Oscar Nail was with him. When asked what first attracted his attention he replied:

“A. I happened to be looking that way and seen these two- men coming across the street and didn’t know who it was at the time and I saw the car and about that time the fellow ran into them. Q. How long before the man was hit, had you observed the car? A. You mean I saw it? Q. Yes, sir. A. It couldn’t have been very long. Not over a few minutes. He was coming pretty fast. Q. How fast? A. Thirty-five or forty mlies an hour, the best I could tell. Q. Was any noise made when he struck this man? A. Yes, sir, there was quite a bit of noise. The brakes squeaked. Q. Did you hear the brakes squeak before the lick? A. Right shortly before he hit him. Q. How far did it knock the man that was hit? A. That is hard to tell. I stepped it the best I noticed. It was twenty steps from where he hit him to where we found him. Q. After the man was hit, what did the car do then? A. It zig-zagged around off of the road and tried to turn over and he finally brought it to a stop on the south side of the street. The left hand side of the street. Q. Did he stop at the street edge or the property line of the south side? A. The rear casing was settling on the edge of the gravel, the best I could remember. Q. You stepped the distance from where the man was hit to' where the car stopped? A. Yes, sir, between ninety and ninety-five, the best I could tell. Q. Where was Mr. Choate, with respect to the street, at the time he was hit? A. Well, it looked to me like he was trying to get across the street. Just one more step would have got him across. Q. What do you mean, ‘The street?’ A. Where you go across to get on the other side. Q. What do you mean by step — three feet? A. Yes, sir, something like that. Q. Where was the body when you found it? A. It was laying on the right hand side of the street. Q. You mean the north side? A. Yes, sir. Q. In the street? A. The best I could tell it was right at the edge of the gravel.”

His evidence with reference to the actions and conduct of the defendant after the accident was substantially the same as the other witnesses.

On cross-examination he stated:

“Q. John, watch this. (Indicating) This car coming west that night, tell if it didn’t cross that culvert as near as it could without getting in the ditch? A. It absolutely did. Q. Tell the court and jury if it isn’t a fact that as these two men came along, if it isn’t a fact one stopped and one stepped out in front of the car? A. It seems that one stepped back and the other started across. Q. And jumped out in front of that, car? A. I don’t know about jumping in front, but he made an attempt to go across. Q. Didn’t the man driving the car put on the brakes before he hit the man? A. Just as he hit him. Q. You realize that the brakes were put on before he hit him? A. Just about the time it hit. That is the best I could tell you. Q. After he had hit him there from the top of the culvert, where he was hit, the ear traveled about 90 feet? A. Yes, sir.”’

Mrs. H. I. Meadows lived in Caddo, and on the evening of the 8th of October, 1937, she was on the south side of Buffalo' street, and had crossed from the north to the south side. She saw the car just as it struck Mr. Choate. Her evidence as to the acts of the defendant after the accident corroborated that of the other witnesses before stated. On cross-examination she testified that the car struck him “west of the culvert and south of the Brauder-ick house. She did not remember whether the streetlight was burning or not.

Oscar Nail was at John Brauderick’s home. His evidence was just about the same as that of the witness John Brauderick. He was asked:

“Q. What attracted your attention to it? A. I heard the noise and it sounded like the brakes were setting.”

The defendant’s lights were burning. The defendant stopped and when he told him, “My God, you have killed a man,” he went on. He testified that the street light was not burning at the time. ,

O. E. Staggs testified that on the evening of October 8, 1937, he was driving on the streets of Caddo1. That he started to drive past where there had been an accident and started to stop and a car backed out and hit his car The car went on south. This was the car of defendant

Cleve Dameron testified that he lived three miles southeast of Caddo ; that on the evening of the 8th of October, 1937, he was going to Caddo. He was driving a team and wagon. He met a car coming down the road; the defendant was in the car and it struck the wagon of the witness. He stopped and he asked him, “How come you to run into me?” Defendant did not answer him, and he asked him three or four times. Defendant then asked him, “Where am I?”, and he told him where he was, and told Mm be had broken bis neck-yoke, and defendant banded bim a dollar and told him that was all be bad, and defendant then left. On cross-examination be stated be bad known defendant three or four years, and be was asked:

“Q. Was that usually the ordinary way that Ernie Freeman talked to you? A. No, sir.”

Lee Smith testified be was a deputy sheriff, and that be and the sheriff of Bryan county, Mr. John Williams, went to the home of B. O. Freeman in October, 1937, but did not find the defendant. He saw bis car and the left light was broken entirely off, and the right lens was out and bent up.

On rebuttal Tom Tabor, for the state, testified be was the night jailor, and that be did not have any recollection of defendant calling bim on either the night of October 10th or 11th, and telling bim that be wanted a doctor.

The defendant, testifying in bis own behalf, corroborated the testimony of other witnesses in many respects, and it is unnecessary to repeat that part of bis testimony. He stated that be had been sick and had spells with bis bead and heart, and bad chills and fever, and at times became delirious, and gave specific instances that while driving bis car it became necessary for bim to stop and rest. He also1 testified that be bad lived three years in Texas, and that while there be bad been charged with the crime of embezzlement, and bad pleaded guilty to the charge and was given a two-year suspended sentence by the jury. He was sick on October 8, 1937, and late in the evening of that day went to Caddo for the purpose of seeing Hr. Dickey and getting some medicine. He was told that Dr. Dickey was not in Caddo, but had gone out to his ranch. His testimony with reference to going, to the Meadows Grocery, was about the same as that given by the disinterested witnesses, as heretofore related. With reference to the occurrence of the collision, he stated that he did not know the rate of speed he was traveling at the time. He thought it was 20 or 25 miles an hour. It could have been greater. He said when he came to near the corner he saw a man on the south side of the street. He put on his brakes and the party went back to the south side. About that time his car struck something. He did not know what it was, and did not see the deceased, R. F. Choate. That he stopped his car as soon as he could and turned around and came back. His evidence was:

“A. I judge I was driving 20 miles an hour. Maybe 25. I could have been driving faster, I don’t know. I was driving along there and it was between dusk and dark and at that time of the night it seems like it is hard to see anything or anyone, but I noticed a man on the left hand side- and he started out and he backed up and I kept pulling to the right and about that time I hit something and stepped on my brakes and when I got stopped I was over to1 the left. Q. Tell where you were on the street when you first noticed this man on the left. A. I was probably, I will say 15 feet from him. Q. You were about which direction? A. He was west of me and south. Q. And you were back east? A. Yes, sir. Q. Before you reached that part of the highway, you saw this man on the left? A. The first thing I thought of was to stop and I put on my brakes and he stepped back and I probably got off of my brakes and heard something that I had hit and I put on my brakes again. Q. Did you stop your car as quickly as you could after you knew that you had hit something? A. Yes, sir. Q. Didn’t you know that you had hit a man? A. No, sir. Q. How far did the car travel after you realized you were stopped? A. I figured it was about 25 or 30 yards. Q. Prom 75 to 90 feet? A. Yes, sir. Q. When you stopped what did you do? A. I backed up and drove back to where the men were standing. Q. Explain when you backed up how you backed your car, — just how you backed up? A. The best I can remember, I cut to the right and backed up west. Q. From there when you backed up a piece, where did you drive it? A. I drove back to the scene where two> men were standing. Q. Were your lights burning? A. They should have been. Q. Were they burning? A. Yes, sir. Q. Did you see these men out there in the road? A. I saw two men standing there. Q. And you drove up there? A. Yes, sir. Q. Tell the court and jury what was said by them, or you? A. As I came back some man hollered, 'Hey’, he had a very coarse voice and a shrill voice and I drove up there and one of these men said, 'My God man did you know that you have killed a man.’ Q. Did you know that man? A. No, sir. Q. What did you do then? A. I don’t know what I did. Q. Why don’t you know? A. I don’t know. I guess I was shocked so hy being sick, I didn’t know what was wrong or where it was or anything. Q. What were you doing the next time that you know what you did? A. I was out there, I guess about a mile and a half south of Caddo. Q. What happened there? A. I hit Cleve Dameron’s wagon. Q. Do you know wbat happened there when you hit his wagon? A. Nothing more, he came running around there — I guess it was him— Q. Tell what happened? A. He asked me what was wrong with me and I don’t know what I said, and in a minute I kinda. come to my senses and he asked me two or three times and I said, “What happened Cleve, where am I at?’, and he said, 'You run into my wagon’, and I said, 'Did I hurt anything?’, and he said, 'No, didn’t hurt anything but I believe you did break the neck-yoke’, and I asked him what it cost and he said a dollar or something like that and I paid him. Q. Where did you go from there? A. To my father, a mile and a half down the road. Q. This was on the road to your father’s? A. Yes, sir.”

The defendant walked from his father-in-law’s, Mr. Jackson’s, to Caddo on Saturday morning and got Dr. Dickey to telephone the officers at Durant to meet them at Armstrong and take charge of defendant. He was placed in jail and the charge of mnrder was filed against him.

While we have not given the evidence in full, we have given the substance thereof, in order that it may be discussed as we see the law in this case as applied thereto. In the first place, there is not a line of evidence that defendant was under the influence of liquor at the time this accident occurred, or that he at any time had touched the same in any way, or that he was under the influence of any drug or narcotic.

The evidence at the time the accident occurred is not sufficient, as we view the same, to' sustain the verdict rendered in this case. Three instructions given by the court, directing the jury to return a verdict of not guilty if they found the facts to be as stated by the court, were completely ignored by the jury, because had they followed the law given in these instructions and as applied to the facts, they would have been bound to return a verdict of not guilty. What were the facts as shown by the witnesses for the state? J. N. Choate, the brother of deceased, was attempting to cross the street in the residential section of the town of Caddo, between dusk and dark, with his brother who was killed. He saw a car approaching from the east which he estimated was 100 feet distance. He warned his brother that they could not make it, and his brother said that “We will have to hurry.” He did not attempt to go across, but stayed where he was. His brother attempted to go^ across. He was at least ten feet below the street intersection. At the time he was struck he had completed the distance across the street of at least 25 or 30 feet. If the automobile driven by defendant was only going 25 to 30 miles per hour it would have had time to travel the distance of 100 feet before it struck tbe defendant. This witness could not testify how fast tbe car was going when be first saw it, nor when it struck tbe deceased. Tbe other witnesses for tbe state wbo saw tbe accident could not testify bow fast tbe automobile of defendant was traveling at tbe time it struck deceased. Any statement they made would, as they stated, be only a guess. 'Some of tbe witnesses for tbe state testified tbe street light- was burning, others testified that it was not. No witness could testify to any act of negligence on tbe part of tbe defendant, and certainly there was no evidence of “culpable negligence.” And no evidence that warranted a jury in finding beyond a reasonable doubt that defendant was guilty, even of manslaughter in tbe second degree. It is doubtful if it was sufficient to have found a verdict against tbe defendant in a civil case for damages, which only requires tbe finding by a preponderance of tbe evidence.

This court, in defining tbe term “culpable negligence,” in construing tbe statute upon manslaughter in tbe second degree, has been much more reasonable than have tbe courts of many other states. Oklahoma Statutes 1931, § 2228, 21 Okla. St. Ann. § 716. In the case of Philby v. State, 64 Okla. Cr. 1, 76 P. 2d 412, this court, in an opinion by Judge Doyle, says:

“Culpable negligence is tbe omission to- do something which a reasonable and prudent person would do, or tbe want of tbe usual and ordinary care and caution in tbe performance of an act usually and ordinarily exercised by a person under similar circumstances and conditions.”

Similar definitions of tbe term have been given in tbe cases of Kent v. State, 8 Okla. Cr. 188, 126 P. 1040 ; Nail v. State, 33 Okla. Cr. 100, 242 P. 270. See, also, tbe following cases: Clark v. State, 27 Okla. Cr. 11, 224 P. 738; Williams v. State, 63 Okla. Cr. 234, 74 P. 2d 632; Clark v. State, 63 Okla. Cr. 138, 73 P. 2d 481. In tbe Nail Case Judge Edwards discussed this question very fully, and although that case was affirmed, the court said [33 Okla. Cr. 100, 242 P. 272]:

“By no means every instance where one person is injured or killed by a vehicle driven by another do the circumstances constitute a crime. There must be negligence rising tO' the degree of criminal or culpable negligence. The culpability of a defendant is a question of fact for the jury, and the test is: Do the acts charged as criminal show a degree of carelessness amounting to a culpable disregard of the rights and safety of others, and did said acts cause the death of deceased? If so, it establishes a case of criminal negligence. * * *
“The highways of the state are common property of all, and by whatever method or conveyance they are used for travel, persons upon the highways have equal rights. In exercising these rights, each must have regard for the rights of others. The law gives the right tO' use the highways for travel by automobile, but this right is limited to doing so in a legal and prudent manner, and when a person drives upon the highway in the exercise of such right in a negligent manner, so that his negligence affects others likewise lawfully upon the highway to' their injury, he becomes liable to the injured party, and, if the degree of negligence with which the act is done is culpable within the meaning of the law, he becomes liable to the state for criminal negligence.”

It will be noted that in most all of the cases above cited, there was evidence of the defendant either being under the influence of intoxicating liquor at the time of the accident or having had the use or possession of the same. It will be further noted that the facts in those eases are much stronger than in the instant case. Applying the rule or definition given to the facts in the case at bar, what can it be said that defendant did that an ordinary, reasonable, or prudent person would not have done under the circumstances, or what did he fail to do that an ordinary, reasonable, or prudent person would have done under the circumstances? No witness for the state testified that he saw the deceased. He stated that he did not do so; that the first he knew deceased was there was when his car struck him. He saw his brother on the south side of the street and saw that he did not attempt to cross the street. The deceased was not crossing the street at the intersection, but from the state’s own evidence, was from 10 to 25 feet west of the intersection. There was no evidence that he was violating any speed law, or that he was driving at an unreasonable rate of speed. There was a conflict in the testimony as to whether or not the street light was burning. It just does not occur to us that, under the facts as presented in this case, the court should have permitted the same to go to' the jury, and especially the court should not have submitted the issue of murder, giving the jury an opportunity to compromise by finding defendant guilty of a lower crime when there was absolutely no evidence to sustain the murder charge.

Many cases from other states have defined the term “culpable negligence” in stronger terms than have the Oklahoma cases above cited. Turner v. State, 183 Miss. 658, 183 So. 522; People v. Hoffman, 162 Misc. 677, 294 N.Y.S. 444; Cain v. State, 55 Ga. App. 376, 190 S.E. 371; Shows v. State, 175 Miss. 604, 168 So. 862; State v. Cope, 204 N.C. 28, 167 S.E. 456; State v. Carter, 342 Mo. 439, 116 S.W.2d 21; State v. Bates, 65 S.D. 105, 271 N.W. 765; Franklin v. State, 120 Fla. 686, 163 So. 55; State v. Lancaster, 208 N.O. 349, 180 S.E. 577.

In the case of People v. Hoffman, the court said [162 Misc. 677, 294 N.Y.S. 446]:

“The leading case in this state is People v. Angelo, 246 N.Y. 451, 159 N.E. 394, because it clarified the meaning of the words ‘culpable negligence.’ That case traced their history from the common law to the present time. The defendant in that case had been convicted of manslaughter in the second degree for negligently operating, an automobile which was in a collision with another automobile and the passenger in one being killed. The Appellate Division (219 App. Div. 646, 221 N.Y.S. 47) reversed the conviction because of erroneous instructions given to the jury as to the meaning of ‘culpable negligence.’ The Court of Appeals affirmed the order of reversal. After tracing the history of legislation and judicial interpretation, Judge Andrews stated, 246 N.Y. 451, at page 457, 159 N.E. 394, 396:
“ ‘ “Culpable” negligence is therefore something more than the slight negligence necessary to' support a civil action for damages. It means, disregard of the consequences which may ensue from the act, and indifference to the rights of others. No1 clearer definition, applicable to the hundreds of varying circumstances that may arise, can be given. Under a given state of facts, whether negligence is culpable is a question of judgment. Ordinarily for the judgment of the jury, as is the question whether negligence exists at all. But in the one case as in the other it may become a question of law. If the negligence is so1 slight as not to' reach the required standard the court should advise an acquittal of the accused. Under such circumstances the jury may not be allowed to find a verdict of guilty.’ ”

The defendant himself testified that he did not see the defendant; that he saw a man on the south side of the street start across, and that he applied his brakes; that the man he saw stayed at the south side, and the first he knew was when he heard his car strike something and he applied his brakes. This testimony rings true. What else could he have done under the circumstances? The fact that he did not remain at the scene of the accident can be justified by the other evidence in this case. His physical condition could have easily caused him to do as he did, and especially his being frightened at the thought he had killed someone. Under the circumstances it was not unusual for him to have left.

The evidence of the state as to the actions of the defendant just before and after the accident is, we think, a strong circumstance to corroborate his evidence as to his physical condition at the time of the accident. If the state had shown that the defendant was under the influence of intoxicating liquor, or of some drug, or had been using the same, the facts and circumstances would have been corroboration of the state’s case, but, as the facts existed, they were more favorable to the defendant. If the facts in this case justified a person in being held and tried for murder, and convicted of manslaughter, it would indeed be a peril for any person to' accidentally strike and kill a person while driving, an automobile. Certainly, stronger evidence than this should be presented by the state before a defendant should be permitted to have the issue presented to the jury charging him with murder.

At the close of the evidence defendant, among other requested instructions, asked that the jury be instructed that the evidence did not justify the court in submitting the issue of murder to the jury. This request was refused. Under the evidence as we view it, this request should have been granted. No- element of murder was justified under the facts. We can easily see how the submission of this issue gave the jury an opportunity to compromise by finding defendant guilty of manslaughter in the second degree. However, we will say that, aside from refusing this one requested instruction, the instructions as a whole, as given by the court, were very fair to the defendant. The trouble here is that the jury refused to follow the instructions as applied to the facts in this case, and notwithstanding the instructions, found the defendant guilty.

The fact that defendant testified that he has pleaded guilty to embezzlement in the courts of the state of Texas was no doubt of great force with the jury in finding defendant guilty.

From what we have stated, it will be seen that we are of the opinion the evidence in this case reveals: that the killing, of deceased by defendant was a pure accident, and while we recognize it is the well-settled law of this state that if there is evidence to support a conviction, the court will not weigh the sufficiency of the same to support it, yet it is, however, equally well-settled law in this state that this court will consider all the evidence to ascertain whether a verdict is in fact founded upon sufficient evidence to warrant a conviction.

If the evidence introduced by the state fails to' incriminate the defendant, or as a matter of law is insufficient to show that the defendant is guilty of the offense charged, it is not only the right but the duty of the trial court to advise the jury to return a verdict of acquittal.

For the reasons above stated, we are of the opinion that the verdict of the jury in this case was contrary to the law and the evidence, and that the judgment of the district court of Bryan county is reversed, with directions to discharge the defendant.

DOYLE, P. J., and JONES, J., concur.


text:
    LOGAN THOMAS v. STATE.
    No. A-9699.
    April 4, 1940.
    (101 P. 2d 283.)

      H. A. Stanley, of Ardmore, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The information in this case, in substance, charged that in Carter county on or about the 15th day of December, 1938, the defendant, Logan Thomas, against the will and without the consent of Dorothy Thomas, a female person, and not the wife of said defendant, by means of force overcoming her resistance, did rape, ravish and carnally know her, the said Dorothy Thomas.

Upon the trial the jury returned a verdict of rape in the first degree as charged in the information and left the punishment to be assessed by the court.

Motions for new trial and in arrest of judgment were overruled June 12, 1939, and rendering judgment on the verdict the court sentenced the defendant to confinement at hard labor in the state penitentiary for a term of 45 years.

Under several assignments of error it is contended that the evidence is insufficient to sustain the verdict, in that it does not show force overcoming, resistance, and is insufficient in law to constitute rape in the first degree.

It appearing that upon arraignment the defendant without counsel stated that he was unable to employ counsel, the court appointed Henry A. Stanley to represent him.

The prosecutrix testified as follows:

“Q. How long have you lived in Ardmore? A. Four years in November. Q. How old are you? A. Sixteen now. Q. When was your birthday? A. February 3rd, this past February. Q. You were 16 this past February? A. Yes, sir. Q. (By Mr. Bruce:) Were you living in Ardmore last December, on the 15th day? A. Yes, sir. Q. Where were you living on the 15th day of December of last year? A. 818 Second Avenue Northeast. Q. Are you still living there? A. No, sir. Q. You live on what street now? A. Fifth Avenue. Q. On the night of December 15th, did anything happen? A. Yes, sir. Q. Tell the jury what happened? A. My father forced me to have intercourse with him. Q. Did you occupy the same hed with him? A. Yes, sir. Q. Tell the jury why you did that? Q. (By Mr. Bruce:) Tell the jury why your father slept in the same bed with you? A. Because my little brother four years old was sick and it was crowded, and he didn’t want to sleep with him and he said he would sleep with me. Q. What time that night did your father force you to have intercourse with him? A. I don’t know what time, it was in the forenight. By the Court: You mean the early part of the night? A. Yes, sir. By the Court: ¡Speak so all the jurors can hear you. Q. (By Mr. Bruce:) Did you resist him any? A. Yes, sir. By the Court: Tell the Court. Avhat you did and what he did. Q. (By Mr. Bruce:) What did you do? A. I tried to keep him from it, but he forced me, he made threats. Q. Did you make any outcry? A. No, sir. Q. Why? A. Because I was afraid to.. Q. Just you and your father was in that bed? A. Yes, sir. Q. How many brothers and sisters do you have? A. Five brothers and one sister. Q. When was the first time that he had intercourse with you? A. When we were at his sister’s house, at Seminole. Q. Why were you up there? A. His sister was sick. Q. Did your mother go up there? A. No, sir. Q. Who went up there? A. Me and him. Q. Hoav did you go? A. Hitch-hiked. Q. Where did that happen up at Seminole? A. In the bedroom. Q. At whose house? A. My aunt’s, his sister. Q. Did you ever have intercourse Avith him from the time you moved over to where you live now? A. Yes, sir. Q. When was that? A. I don’t know, about February or March. Q. Did you resist him at that time? A. Yes, sir. Q. Did you ever have any conversation with your father after that? A. Yes, sir. Q. What did he talk to you about? A. He would ask me if I Avas pregnant. Q. What would you tell him? A. I would tell him no. Q. Are you pregnant now? A. Yes, sir. Q. How far along are you? A. Six months. Q. Why do you know? A. Because I have felt movement and I went to a doctor. Q. You say you have felt movement? A. Yes, sir. Q. What doctor did you go to? A. Dr. Hardy. Q. Did you ever have intercourse with any other man or hoy besides your father? A. No, sir. Q. He was the first one? A. Yes, sir. Q. Did you tell your mother what condition you were in? A. No-, sir. Q. Why didn’t you tell your mother? A. She was out in the garden with him and he just told her hisself, out in the garden I guess — (Interrupted). By the Court: Don’t tell what you guess. Q. (By Mr. Bruce:) This happened in Carter county, Oklahoma? A. Yes, sir.”
Cross-Examination
“By Mr. Stanley: Q. You said that your father had had intercourse with you previous to that? A. Yes-, sir. Q. When was that? A. At Seminole, Okla. Q. When was that? A. In June or July while school was going on. Q. That was some seven or eight months before December? A. Yes, sir. Q. Then you say he had intercourse with you after that? A. Yes, sir. Q. Before December? A. Yes, sir. Q. How many times? A. Just once. Q. Just once? A. Yes, sir. Q. You went to school all of last year, Miss Dorothy? A. Yes, sir,' all but the la.st two weeks. Q. You graduated from the Junior High School? A. Yes, sir. Q. You and your father were sleeping together? A. Yes, sir. Q. You slept together the night before? A. Yes, sir. Q. And you had been sleeping together for a long time? A. Yes, about a month, for quite awhile. Q. You slept together nearly all the last year? A. Sometimes, not continuously. Q. Your father and mother neker slept together? A. Sometimes. Q. Now you and your father had been sleeping together in December, you had slept together in November of last year, did you or not, most of the time? A. Yes, sir. Q. In-October most of the time? A. Yes, sir. Q. In September most of the time? A. Sometimes. Q. And you tell the jury he never had intercourse with you but one time from the time you were over at ¡Seminole up until the 15th? A. He tried to. Q. Who was at home the night this occurred? A. All of us, the family. Q. Your mother and sister and two big brothers? A. Yes, sir. Q. They were all at home? A. Yes, sir. Q. How many rooms were in the house? A. Four. Q. You and your father were sleeping in one room? A. Yes, sir. Q. The boys were sleeping in the other room? A. Yes, sir. Q. The boy and. the little girl and your mother were in the other room? A. Yes, sir. Q. The door was open between the room you were in and the room in which your mother was in? A. Yes, sir. Q. You don’t claim he got on top of you? A. He forced me tO'. Q. You don’t answer my question, the question is you don’t claim he got on top of you? A. No. Q. Isn’t it a fact that after you woke up you laid there and you fondled each other, and finally you just turned over side by side? A. No. Q. How did it happen? A. He got hold of my underskirt and kept wrestling around. Q. Didn’t you take your hand and put his part in your part? A. No’. Q. You didn’t do that? A. No. Q. Your mother was in the next room? A. Ah-huh. Q. You didn’t say anything? A. No. Q. You didn’t make any outcry? A. No. Q. Your brothers were in the next room? A. Yes. Q. You didn’t call for them?' A. No. Q. They are grown, aren’t they practically? A. Yes, sir. Q. I will ask you this, if you didn’t lay there side by side and you were gratified and he was not. You enjoyed it, didn’t you? A. No, I never did. Q. I will ask you this, if after this happened you were satisfied and you got up and went to the toilet? A. Yes, he told me to. Q. You went through your mother’s room? A. No. Q. How did you go? A. Through my brothers’ room. Q. You came back to your bed? A. Yes. Q. You stayed there that night? A. Yes. Q. The next night? A. Yes, sir. Q. The next five or six months, now there wasn’t anything to keep you from speaking to your brothers as you went through the room, was there? A. I was afraid of him. By the Court: You said awhile ago something about some threats, what about that? A. He threatened me and told me I had better not tell Mama, that if I did his word was as good as mine, he said his life wouldn’t be worth anything if I told. By Mr. Stanley: Counsel for defendant: Q. And you were there when he told your mother about it? A. Yes, sir. By the Court: Did he ever strike you or anything like that? A. No1, sir, he tore the petticoat off though. By the Court: A juror wishes to ask a question. By a member of the jury panel: Q. Why didn’t she tell her mother? A. Because I was afraid.
“Redirect.
“Q. That episode at Seminole, that was the first time yonr father had had intercourse with you? A. Yes, sir.”

Floyd Randolph, sheriff, testified that he was at the county jail when deputy sheriff Ross brought in the defendant and heard the defendant say that he had been sleeping with his daughter and temptation got the better of him, and he had intercourse with her.

To the same effect was the testimony of Officers Ross and Bartlett.

Called as a witness on behalf of the state, Mrs. Logan Thomas testified as follows:

“Q. You live in Ardmore, and Dorothy Thomas is your daughter? A. Yes, sir. By Mr. Stanley: Just a moment — you are the wife of this defendant? A. Yes, sir. Defendant objects on the ground of incompetency to witness testifying. By Mr. Bruce: County Attorney. Not for proving age. By the Court. Yes, she is incompetent to testify to anything against her husband in this case. Witness will stand aside.”

When the state rested, counsel for the defendant interposed a demurrer to the evidence, as insufficient to prove the crime charged in the information and moved the court that the defendant be discharged, which was overruled.

No testimony was given by the defendant or by any witness in his behalf, and both parties rested at the close of the evidence for the state.

It is contended on the part of the defendant that, in any view which may reasonably be taken of the testimony of the prosecutrix, it was insufficient to justify or sustain the verdict.

In support of this contention it is urged that the testimony of the prosecutrix clearly showed that she did not resist to- her ability.

The rule contended for by the defendant was condemned by this court in the case of Bulls v. State, 33 Okla. Cr. 64, 241 P. 605, wherein this court held:

“To support charge of rape, female’s resistance need only be such as to make nonconsent and actual resistance reasonably manifest, having regard for her age, strength, and surrounding circumstances.”

In the opinion it is said:

“The old rule of ‘resistance to. the uttermost’ is obsolete, and is repudiated by the more modem authorities. The law does not require that the woman shall do more than her age, strength, the surrounding facts, and all attending circumstances make it reasonable for her to do in order to manifest her opposition. In reference to the degree of resistance required, the jury should be instructed that it is necessary, not that the prosecutrix should have made the uttermost resistance, but that she has made such resistance as she was capable of making at the time. See 33 Cyc. 1506, and cases cited.”

In the case of Burtt v. State, 64 Okla. Cr. 68, 77 P. 2d 580, this question was discussed and authorities reviewed at some length. The conclusion arrived at being adverse to the rule contended for by defendant’s counsel in this case.

Upon the undisputed facts and circumstances in evidence the defendant’s contention that the crime charged, rape accomplished by force, overcoming resistance, was not proved by the evidence is without substantial merit.

Another contention made is that, since the evidence discloses the prosecutrix to have been of the age of 15 years, the offense was rape in the second degree, and that for this reason the evidence does not sustain a conviction of rape in the first degree.

The section of our Penal Code defining rape is in part as follows:

“Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances:
“1st. Where the female is under the age of sixteen years. * * *
“4th. Where she resists but her resistance is overcome by force and violence.” 'Section 2515, Sts. 1931, 21 Okla. St. Ann. § 1111.

The following sections classify the crime of rape into degrees and fix the punishment:

“Rape committed by a male over 18 years of age upon a female under the age of 14 years, or incapable through lunacy or unsoundness of mind of giving legal consent; or accomplished with any female by means of force overcoming her resistance, or by means of threats of immediate and great bodily harm, accompanied by apparent power of execution, preventing such resistance, is rape in the first degree. In all other cases rape is of the second degree.” Section 2518, 21 Okla. St. Ann. § 1114.
“Rape in the first degree is punishable by death or imprisonment in the penitentiary, not less than 15 years, in the discretion of the jury, or in case the jury fail or refuse to fix the punishment then the same shall be pronounced by the court.” Section 2519, 21 Okla. St. Ann. § 1115.
“Rape in the second degree is punishable by imprisonment in the penitentiary not less than one year nor more than fifteen years.” Section 2520, 21 Okla. ¡St. Ann. § 1116.

'Section 2515, 1st subdi., defines rape upon a. female under the age of 16 years. Under this subdivision unlawful intercourse with a female under the age of 16 years

is rape. If the male is under the ag,e of 18, and the female is above the age of 14 years, and the act is with her consent, no offense is committed. If the male is above the age of 18 years and the female over the age of 14 years, not the wife of the perpetrator, gives her consent, the act is rape in the second degree. Brasel v. State, 48 Okla. Cr. 403, 291 P. 807.

In so far as the case of Short v. State, 42 Okla. Cr. 437, 276 P. 703, conflicts with this opinion, it is overruled.

The instructions of the court submitted the issue of rape committed by means of force overcoming resistance as defined by section 2515, 4th subdi., and classified as rape in the first degree, section 2518, and submitted the issue of statutory rape, classified as rape in the second degree, as defined by section 2515, 1st subd., where the female, under the age of 16 years, gives her consent.

An act of sexual intercourse is rape in the first degree without regard to the age of the female, when accomplished with a female not the wife of the perpetrator, accomplished by means of force, overcoming her resistance, or by means of threats of immediate or great bodily harm, accompanied by apparent power of execution.

In the case of Davis v. State, 17 Okla. Cr. 604, 191 P. 1044, this court held:

“Rape in the first degree may be committed upon a female of any age, when accomplished by force and violence overcoming her resistance, or by means of threats of immediate and great bodily harm, accompanied by apparent power of execution.”

The exceptions taken to certain instructions given by the court are not argued in the brief, and we find that the instructions given fully covered the law of the case, and were as favorable to the defendant as he could have demanded.

Several other alleged errors are argued, but we find them so lacking in substantial merit that we would not feel justified to extend this opinion by their discussion.

The record shows that the defendant was accorded a fair trial and had the benefit of able counsel, and no error requiring a reversal is shown.

The only other proposition presented in this appeal is the insistence that the punishment imposed by the trial court is excessive.

Under the Code of Criminal Procedure, sec. 3204, 22 Okla. St. Ann. § 1066, this court is authorized to modify the judgment and sentence of the trial court, when such a course would be in furtherance of the ends of justice, and conduce to the human administration of the law, and the remedy in cases like this is found, not in a new trial, but by reducing the punishment. Upon the record before us we are convinced that the punishment imposed is excessive:

It is both the spirit and intention of our laws that sentences shall be imposed in criminal cases for the protection of society and the reformation of the criminal, and sentences should be imposed in keeping with the spirit of the law.

It appears from the record that at the time of the trial the defendant was 45 years of age, and while the crime is heinous, taking into consideration the age of the defendant and all of the surrounding circumstances, we are of the opinion that the ends of justice will be satisfied by reducing the punishment imposed, and that the judgment should be modified by reducing the sentence of 45 years’ imprisonment in the penitentiary to a term of 20 years’ imprisonment. The judgment of the district •court of Carter county herein is so- modified; as thus modified the judgment is affirmed.

BAREFOOT and JONES, JJ., concur.