text:
    RAYMOND SCHOOLCRAFT v. STATE.
    No. A-10644.
    March 19, 1947.
    (178 P. 2d 641.)

      Meacham, Meacham & Meacham and Arney & Barker, all of Clinton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Raymond Schoolcraft, was jointly charged by an information filed in the district court of Custer county, with. Edward Duggins, Ephie Humphrey and Robert Strong, with the crime of riot; a severance was granted, the defendant Schoolcraft was tried, convicted and sentenced to serve a life term in the State Penitentiary, and has appealed.

The principal assignment of error presented by counsel for defendant is that the amended information filed against the defendant was duplicitous as charging a number of distinct offenses, and for that reason the court erred in overruling the demurrer of the defendant to the amended information.

Omitting the formal parts, the amended information filed against the defendants, reads as follows:

“That on or about the date aforesaid, in the County and State aforesaid, the said Raymond Schoolcraft, Edward Duggins, Ephie Humphrey and Robert Strong did unlawfully, willfully, wrongfully, feloniously and riotously assemble in said County with the common design and intent, and acting together, to use force and violence against numerous and sundry persons in said County and State; and in pursuance of said design and intent, the said Raymond Schoolcraft, Edward Duggins, Ephie Humphrey and Robert Strong, acting together and with a common design and intent, did unlawfully, willfully, wrongfully, feloniously and riotously go to a place in Clinton, Custer County, Oklahoma, known as Joe’s Bar, the same being located on 4th Street, and did then and there commit an assault and battery up one Joe Redmond, and did strike, beat • and hit the said Joe Redmond with their fists; and the said Raymond Schoolcraft, Edward Duggins, Ephie Humphrey and Robert Strong did leave said Joe’s Bar when they had accomplished their said purpose, and did unlawfully, willfully, wrongfully, feloniously and riotously, proceed to a place near the intersection of 5th Street and Frisco Avenue, and did then and there, acting together and with a common design and intent, commit an assault and battery upon three (3) sailors, whose names to this informant are unknown and did strike, beat and hit said sailors with their fists and did knock one of said sailors down on the ground; and as a part and parcel of the same transaction, and with a common design and intent, and acting together, the said Raymond Schoolcraft, Edward Duggins, Ephie Humphrey and Robert Strong did unlawfully, willfully, wrongfully, feloniously and riotously proceed to a night spot, a place known as the Rainbo Night Club, located about a mile or a mile and a half southwest of the City of Clinton on Highway 66 in said County and State, travel-ling in an automobile with a loaded shotgun and a pistol therein, and did then and there, acting together as aforesaid, and with the common design and intent as aforesaid, proceed to commit an assault and battery upon one, Harold Frans, and did then and there knock the said Harold Frans down on the ground; and the said Raymond Schoolcraft, Edward Duggins, Ephie Humphrey and Robert Strong did then and there hold in their hands a weed cutter with an iron handle about two and a half (2y2) ft. long, with a blade about four (4) ins. long; and an iron pipe one (1) in. in diameter and about eighteen (18) ins. long, wrapped with heavy copper wire; and a club about two (2) ins. in diameter and about two (2) ft. long, and they did then and there, with said weapons held in their hands as aforesaid, strike, beat, kick and stomp the said Harold Frans, and did cause severe bruises and wounds upon the face, head, and body of the said Harold Frans; and at the same place and as a part and parcel of the same transaction, they did unlawfully, willfully, wrongfully, feloniously and riotously make an assault and battery upon one, Jo Frans, the wife of Harold Frans, and did hit her on the head with said iron pipe and did strike her with said weed cutter and did knock her on the ground, and did inflict a serious and dangerous wound upon the head of her, the said Jo Frans, and other wounds upon the face and body of her, the said Jo Frans, and did stomp her with their feet; and at the same place, and as a part and parcel of the same transaction, and acting together, and with a common design and intent, the said Raymond Schoolcraft, Edward Duggins, Ephie Humphrey and Robert Strong did then and there unlawfully, willfully, wrongfully, feloniously and riotously, and without authority of law, and with the premeditated design to effect the death of one Guy Pollett, make an assault and battery in and upon the said Guy Pollett, and did hit him on the head with a club then and there held in the hands of them, the said Raymond Schoolcraft, Edwards Duggins, Ephie Humphrey and Robert Strong, and did knock him down on the ground and did kick him on the head with their feet and did stomp the said Guy Pollett on the head and in the face with the feet of them the said Raymond Schoolcraft, Edward Duggins, Ephie Humphrey and Robert Strong, and did hit the said Guy Pollett with an iron pipe and weed cutter then and there held in the hands of the said Raymond Schoolcraft, Edward Duggins, Ephie Humphrey and Robert Strong, and did fracture the skull of the said Guy Pollett thereby inflicting mortal wounds upon the face, neck, head and body of the said Guy Pollett, and the said Guy Pollett did from said wounds linger, and lingering did die on or about the 6th day of November, 1944, as was intended by them, the said Raymond Schoolcraft, Edward Duggins, Ephie Humphrey and Robert Strong, and in the course of said riot, the said- Raymond Schoolcraft, Edward Duggins, Ephie Humphrey and Robert Strong, did kill and murder the said Guy Pollett in the manner and form as aforesaid; and at the same place, and as a part and parcel of the same transaction, and acting together with the common design and intent, the said Raymond Schoolcraft, Edward Duggins, Ephie Humphrey and Robert Strong did unlawfully, willfully, wrongfully, feloniously and riotously make an assault and battery upon one, Frank Stur-gis, and did kick the said Frank Sturgis in the back and did knock him down on the ground, and did stomp him with their feet; and at the same place, and as a part and parcel of the same transaction, and acting together with a common design and intent, the said Raymond Schoolcraft, unlawfully, willfully, wrongfully, feloniously and riotously make an assault and battery in and upon the person of Edward Duggins, Ephie Humphrey and Robert Strong did one, Pat Bradford, and did hit him on the head with some blunt instrument to this informant unknown; and at the same place, and as a part and parcel of the same transaction, and acting together with the common design and intent, they did unlawfully, willfully, wrongfully, feloniously and riotously make an assault and battery upon one, L. O. Magee, and did strike him in the face with some instrument to this informant unknown; that during the commission of said acts of force and violence, and after the said Harold Frans, Jo Frans, Frank Sturgis, L. O. Magee and Pat Bradford had escaped from the said defendants, and had gone inside of the Night Club, and the doors to said night club had been securely closed and fastened, the said Raymond Schoolcraft, Edward Duggins, Ephie Humphrey and Robert Strong approached the front door, the same having a large glass panel, of the building of said Rainbo Night Club, and stood at the said door on the outside and demanded their entrance therein, they being then and there armed with, and carrying a weedcutter, a loaded shotgun, and other weapons, including a club, the exact description of said club to this informant unknown, and threated to smash and break down said door unless said door was unfastened and opened, and they were permitted to enter therein for the purpose of continuing their felonious assaults upon the said Harold Frans, Jo Frans, Frank Stur-gis, L. O. Magee and Pat Bradford, which said threats were accompanied by the immediate power of execution, to wit, said weed cutter, said loaded shotgun and said other weapons, including a club, they being then and there prevented from carrying out and using said threats by the said W. O. Thompson drawing a loaded pistol on the said Raymond Schoolcraft, Edward Duggins, Ephie Humphrey and Robert Strong and warning them he would shoot them if they attempted to break said door down and continue their assaults upon the persons therein; whereupon they departed from said building and premises, and they, the said Raymond Schoolcraft, Edward Duggins, Ephrie Humphrey and Robert Strong, did in the manner and foi*m as aforesaid, commit Riot, contrary to form of the statute in such case made and provided and against the peace and dignity of the State.”

Riot is defined by our statutes as follows:

“Any use of force or violence, or any threat to use force or violence if accompanied by immediate power of execution, by three or more persons acting together and without authority of law, is riot.” 21 O. S. 1941 § 1311.

The Oklahoma statutes fix the punishment for riot according to the circumstances under which the participants committed the crime as follows:

“Every person guilty of participating in any riot is punishable as follows :
“1st. If any murder, maiming, robbery, rape or arson was committed in the course of such riot, such person is punishable in the same manner as a principal in such crime.
“2nd. If the purpose of the riotous assembly was to resist the execution of any statute of this State or of the United States, or to obstruct any public officer of this State or of the United States, in the performance of any legal duty, or in serving or executing any legal process, such person is punishable by imprisonment in the penitentiary not exceeding ten years and not less than two.
“3rd. If such person carried at the time of such riot any species of firearms, or other deadly or dangerous weapon, or was disguised, he is punishable by imprisonment in the penitentiary not exceeding ten years and not less than two.
“4th. If such person directed, advised, encouraged or solicited other persons, who participated in the riot to acts of force' or violence, he is punishable by imprisonment in the penitentiary for not exceeding twenty and not less than two years.
“5th. In all other cases such person is punishable as for a misdemeanor.” 21 O. S. 1941 § 1312.

There have been several Oklahoma cases in which certain sections of the above-quoted statutes have been construed: Symonds v. State, 66 Okla. Cr. 49, 89 P. 2d 970; Perkins v. State, 35 Okla. Cr. 279, 250 P. 544, 49 A. L. R. 1129; Johnson v. State, 16 Okla. Cr. 428, 183 P. 926; Swartzfeger v. State, 57 Okla. Cr. 92, 45 P. 2d 550; Casteel v. State, 13 Okla. Cr. 19, 161 P. 330; Proctor v. State, 5 Okla. Cr. 553, 115 P. 630; Darneal v. State, 14 Okla. Cr. 540, 174 P. 290, 1. A. L. R. 638.

The language of this court in disposing of the above cases reveals that the only one of them which had under consideration an information in any way similar to the one herein involved is Symonds v. State supra. The information is not set forth in the Symonds case so that we could determine just exactly the various allegations made in that information, but in determining the sufficiency of the information herein we must apply certain established principles of law.

By statute it is provided:

“The indictment or information must be direct and certain as it regards:
“1. The party charged.
“2. The offense charged.
“3. The particular circumstances of the offense charged, when they are necessary to constitute a complete offense.” 22 O. S. 1941 § 402.
“The indictment or information must charge but one offense, but where the same acts may constitute different offenses or the proof may be uncertain as to which of two or more offenses the accused may be guilty of, the different offenses may be set forth in separate counts in the same indictment or information and the accused may be convicted of either offense, and the court or jury trying the cause may find all or either of the persons guilty of either of the offenses charged, and the same offense may be set forth in different forms or degrees under different counts; and where the offense may be committed by the use of different means, the means may be alleged in the alternative in the same count.” 22 O. S. 1941 § 404.

Fickle v. State, 38 Okla. Cr. 289, 260 P. 513, it is held:

“An information which charges two separate and distinct offenses, not based upon the same transaction, is bad for duplicity, and the demurrer thereto should have been sustained.”

In the body of the opinion it is stated:

“It has been repeatedly held by this court that a defendant may be called upon to defend against only one offense at a time and that the information must be definite and certain as to the offense charged and must charge but one offense.”

In Campbell v. State, 31 Okla. Cr. 39, 237 P. 133, it is held:

“The indictment or information must charge but one offense; where the offense may be committed by the use of different means, the means may be alleged in the alternative in the same count. * * *
“The 'means’ of committing a single offense may be stated in the alternative; in other words, in the disjunctive. But the different ways or methods of committing a single offense should be stated conjunctively; using the word 'and’ or some equivalent expression. Where separate acts constitute separate offenses, though of the same name or character, they cannot be consolidated into a single charge.”

In the opinion- it is further stated:

“The Legislature may simplify and prescribe modes of procedure, so long as the forms authorized are not such as will deprive the accused of his right to be confronted with a single accusation apprising him of the nature and character of the offense charged.”

In Berg v. State, 29 Okla. Cr. 112, 233 P. 497, 501, this court stated:

“It is well settled that separate offenses — that is, offenses committed by separate acts — may not be joined in the single information, and when so attempted to be joined, the information is duplicitous.”

In Boultinghouse v. State, 24 Okla. Cr. 369, 218 P. 173, an information was held duplicitous which charged in ten separate counts that money was fraudulently obtained through payment of ten separate checks.

In Orcutt v. State, 52 Okla. Cr. 217, 3 P. 2d 912, this court held:

“Bobbing different individuals riding in the same automobile in rapid succession constitutes a distinct offense for each individual, and a conviction or acquittal for robbing one is no bar to a prosecution for robbing others. * * *
“On a plea of former acquittal, in determining whether the two informations charged the same offense, the test is whether the evidence necessary to support the second information would have been sufficient to procure a conviction upon the first information.”

The proof of the state showed in that case the defendant, Orcutt, had robbed one Sturdevant and one Cottrell at the same time while they were riding in Cottrell’s automobile. Two informations were filed against defendant, one charged him with robbery of Cottrell and the other charged him with the robbery of Sturdevant. The defendant was tried on the information charging the robbery of Cottrell and was acquitted; later when the state attempted to try the defendant on the information charging the robbery of Sturdevant, counsel for tbe accused presented a plea of former jeopardy and insisted since tbe robbery occurred at the same time and same place and as part of the same transaction, they were not separate robberies, but one act of robbery. In denying defendant’s contention, this court stated:

“Wharton’s Criminal Law. vol. 1 (11th Ed.) p. 508, states the rule:
“ ‘On a plea of former acquittal or conviction the accused must show that he was acquitted or convicted of the same accusation against him in the former trial; not of an entirely different offense growing out of the same state of facts or transaction.
“ ‘The same act may constitute two or more offenses which are distinct from each other. In such cases the accused may be separately prosecuted and punished for each, and a conviction or acquittal or prosecution for one will not constitute an acquittal and a bar for the other. Thus where two or more are assaulted, robbed or their goods stolen, or are shot or murdered by one and the same act at the same time, conviction or acquittal on an indictment for offense against the one will be no bar to a trial on an indictment charging the offense against the other.”
“8 Ruling Case Law, p. 143, § 128, states the rule thus:
“ ‘The prohibition of the ancient principle of the common law and the constitutional provisions declaratory thereof, against a second jeopardy, apply only to second prosecution for the identical act and crime both in law and fact for which the first prosecution was instituted.
“ ‘When a single transaction constitutes two or more offenses, wherein the lesser offense is not necessarily involved in the greater, and when the facts necessary to convict on the second prosecution would not necessarily have convicted on the first, then the first prosecution will not be a bar to the second.
“ ‘A putting in jeopardy for one act is no bar to a prosecution for a separate and distinct act, merely because they are so closely connected in point of time that it is impossible to separate the evidence relating to them on the trial for the oné of them first had. Consequently a plea of former jeopardy will not be sustained where it appears that in one transaction two distinct crimes were committed.”
“In 16 Corpus Juris, p. 263, § 443, the rule is stated: ‘The prohibition of the common law and of the Constitution is against a second jeopardy for the same ‘offense’, that is, for the identical act and crime; or, as expressed in a number of cases, to entitle a defendant to plead successfully former jeopardy, the offenses charged in the two prosecutions must be the same in law and in fact. The plea will be vicious if the offenses charged in the two indictments are perfectly distinct in point of law, however nearly they may be connected in point of fact. It is not necessarily decisive that the two offenses may have some material fact or element in common, or that they are similar, • where they are not in fact the same. The test is not whether defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense. The term ‘same offense,’ however, does not signify the same offense eo nomine, but the same criminal act, transaction or omission.” See, also, 22 C. J. S. Criminal Law § 278.

In Keeton v. Commonwealth, 92 Ky. 522, 18 S. W. 359, that court said:

“Presenting a pistol at two persons at the same time, coupled with a demand of their property, and compelling a surrender thereof by both at the same time, constitutes distinct offenses against them, — an assault on and robbery of each.”

In re Allison, 13 Colo. 525, 22 P. 820, 10 L. R. A. 790, 16 Am. S. Rep. 224, the Supreme Court of Colorado said:

“Robbing different individual passengers on a stage at the same time and in rapid succession constitutes a distinct offense for each individual, and a conviction for robbing one is no bar to a prosecution for robbing others.”

In Estep v. State, 11 Okla. Cr. 103, 143 P. 64, 65, this court said:

“Under the constitutional guaranty not to be twice put in jeopardy, the decisive test on a plea of former jeopardy is whether the same testimony will support both charges. Otherwise stated, the offenses are the same whenever evidence adequate to one information will equally sustain the other.”

In our construction of the statutes hereinabove quoted, a county attorney would be authorized to file an information setting forth different offenses in two or more counts where they are based on the same transaction, as for example the county attorney might be uncertain as to whether acts performed by three persons directed at another person constituted riot or robbery. He would be authorized under the statute to file an information setting forth in one count the alleged acts constituting the crime of riot, and in a separate count, allege acts constituting the offense of robbery and the accused could be convicted of either offense; but he would not be authorized to set up in one count an alleged act of riot committed against A and in another count an act of riot allegedly committed against B, as they would be separate offenses not based on the same transaction even though committed at about the same time.

In the case of Perkins v. State, 35 Okla. 279, 250 P. 544, the defendant, Perkins, was convicted of the crime of riot allegedly committed by the accused and other hooded members of the Xu Klux Xian administering a whipping to the prosecuting witness. The information in that case alleged the completed crime of riot committed against the person of one Ximbell in much the same language as is used by the information in this case concerning each of the various acts set forth in the information herein. If the hooded members of the Ku Klux Klan, of which Perkins was a member, while acting in concert had robbed Kimbell, the county attorney could have charged the accused in an information with the crime of riot in one count and with the crime of robbery in another count. However, if the mob had whipped Kimbell and robbed his companion, there would have been two separate offenses committed and the charges would have had to have been set forth in separate informations filed against Perkins. We think the same reasoning would apply if the mob had whipped Kimbell’s companion, the same as Kimbell. Under the decisions above cited the act of using force against Kimbell by the mob acting together constituted one offense, and when the mob acting together used force and violence against his companion, it would have been an entirely separate and distinct offense although proof of both offenses would have been admissible upon the trial for either because the facts, were so closely related in point of time as to have been admissible as part of the res gestae.

Applying the above conclusions to the information in question, we find that the information alleges nine distinct offenses of riot, each alleged to have been committed upon a different individual except in the last instance when it is alleged that riot was committed by the defendants attempting to break down the door of the Rainbo Inn; to wit:

(1) It is charged that murder was committed upon Guy Pollett, under subsection 1 of the statute, under which the punishment is life imprisonment.

(2) It is charged that the defendants committed an assault and battery upon Harold Frans, and that they carried at the time “a species of firearms or other deadly weapon * * * ”, “a loaded shotgun and pistol * * * a weed cutter with an iron handle about two and a half feet long, with a blade about four inches long; and a wire pipe one inch in diameter and about eighteen inches long, wrapped with heavy copper wire; and a club about two inches in diameter and about two feet long”, under subsection 3 of the statute, which is punishable by imprisonment from two to ten years.

(3) It is charged that said defendants committed an assault and battery upon Jo Frans, and that they carried the same instruments, which is punishable under subsection 3 of the statute by two to ten years imprisonment.

(4) It is charged that defendants committed riot at Joe’s Bar, by an assault and battery upon Joe Redmond, with their fists, under subsection 5 of the statute, which provided a punishment as in the case of a misdemeanor.

(5) It is charged that riot was committed by an assault and battery at 5th and Frisco Avenue, upon three sailors whose names were alleged to be unknown, under subsection 5 of the statute, which provides a punishment as in the ease of a misdemeanor.

(6) It is charged that defendants committed riot by an assault and battery upon Frank Sturgis, in that they “did kick him in the back and did knock him down on the ground, and did stomp him with their feet”, under subsection 5 of the statute by which punishment is assessed as in the case of a misdemeanor.

(7) It is charged that defendants committed riot by an assault and battery upon one Pat Bradford, in that they “did hit him on the head with some blunt instrument”, which might be a charge under subsection 3 of the statute, provided the instrument were a dangerous weapon, and punishable by imprisonment from two to ten years, or it might come under subsection 5 and be punishable as a misdemeanor.

(8) It is charged that defendants committed riot by making an “assault and battery upon one L. O. Magee, and did strike him in the face with some instrument to this informant unknown”; under which the penalty might be two to ten years imprisonment, or it might be punishable as a misdemeanor, depending upon whether said “instrument” was “a deadly or dangerous weapon”.

(9) It is charged that defendants committed riot in that they “approached the front door, * * * and stood at said door on the outside and demanded their entrance therein, they being then and there armed with, and carrying a weed cutter, a loaded shotgun and other weapons, * * *”, under subsection 3 of the statute, providing for punishment by imprisonment from two to ten years.

One of the offenses is alleged to have been committed at Joe’s Bar in the city of Clinton, another offense is alleged to have been committed on one of the streets in the city of Clinton and the remainder of the alleged offenses were charged to have been committed at or near the Rainbo Night Club, located about a mile and one-half southwest from the city of Clinton.

Under the ruling of Orcutt v. State, supra, if the evidence necessary to convict the accused of one of the alleged offenses would not have been sufficient to convict him of another alleged offense, then the acts are separate offenses and should be set forth in separate informations.

In the instant case, the evidence necessary to convict defendant for riot at Joe’s Bar or at Fifth street and Frisco avenue would not be necessary to convict him for riot at the Rainbo Night Club.

In addition the evidence disclosed that the altercation at Joe’s Bar occurred about 9:30 p.m.; the altercation with the three sailors on the streets of Clinton happened about midnight, while the acts at the Rainbo Night Club occurred about 1:30 a. m. There was no continuity of action. After the fight at Joe’s Bar, the four defendants went to a pool hall and played pool for about two hours, apparently without molesting anyone. Immediately after leaving the pool hall, the fight was started with the sailors on the streets of Clinton. After the altercation with the sailors was finished, the four defendants drove to the Rainbo Night Club, they there danced and drank beer for 30 or 40 minutes before the riot started.

The evidence is not exactly clear as to just how the fighting commenced. Jo Frans testified that the first she knew of any fighting was when someone yelled at her that the defendant, Schoolcraft and the codefendants, Duggins and Humphrey, had her husband down outside the building and were beating on him. She ran outside and tried to stop the fight, but was herself struck by the defendant. She picked up a rod and struck the defendant who took it away from her and hit her with it. She picked up a rock and struck Ephie Humphrey on the nose and Humphrey knocked her off the porch. About that time Guy Pollett, the deceased, came out of the night club; she saw the defendant knock Pollett down and Duggins commenced to “stomp” him with his feet. She described how various other parties came from within the night club and were struck or beaten by Schoolcraft, Humphrey and Duggins. Mrs. Frans was confined to the hospital for eight days because of the injury she received and her husband was confined to the hospital for five days. She said:

“Well he was cut in the top of the head, under both eyes and over the right eye, and the hide was all tromped off of his face and all over his body.”

Harold Frans testified that he started to walk out the door at the night club and as he stepped on the porch the defendant Schoolcraft struck him and knocked him' to the ground and Duggins and Humphrey commenced kicking him. He said that he got up two or three times and the} knocked him down again.

Frank Sturgis testified that he was getting ready to leave the night club and walked out on the porch; that just as he stepped on the porch he saw the defendant Schoolcraft and Harold Frans clinch and fall on the porch. About that time someone struck the witness and knocked him off the porch. The witness testified:

“I lit kinda on my shoulder and side and it kinda knocked the wind out of me and addled me for a little bit. Just about the time I was getting up Harold’s wife hit the ground right out there right by me, and when I got up on my feet I saw Guy Pollett on the porch and he had his hands up like this — he was either striking at somebody or like he was trying to ward off a lick. Then I seen Guy go off of the porch. I didn’t go back on the porch. I walked around and when I got around there I saw him on the ground. He was lying kinda on his knees and had his elbows on the ground and his hands up side of his head. I saw Eddie Duggins kick him. in the face. He kicked him twice and I run in and pushed him back, and I told Eddie, I says, ‘Boys, there’s no use kicking him. Guy’s already down and he’s hurt’, so they quit. Eddie didn’t do no more and I started to pick Guy up, and I reached down and got hold of him and when I did somebody either hit me ox kicked me over the kidneys and it knocked the wind out of me.”

L. O. Magee, Pat Bradford, and others testified for the state that they heard the noise of the fighting inside the night club and ran out and were struck by the defendants. Magee testified that when he ran out of the house, Schoolcraft was “stomping” Frans and he ran up and asked Schoolcraft to quit, Schoolcraft hit him and knocked him out. One of the witnesses testified that when the deceased, Guy Pollett, came out of the house, Schoolcraft hit him and knocked him down and then yelled to Duggins and Humphrey “kill the son-of-a-bitch, he is not worth a damn anyway”.

In Symonds v. State, supra, a riot is defined as a tumultuous meeting of three or more persons upon some common purpose, to do an unlawful act, which they actually execute with violence thereby making the character of the act an essential element of the crime.

The common law definition of riot is as follows:

“A riot is a tumultuous disturbance of the peace by three persons, or more, assembling together of their own authority, with an intent mutually to assist one another against any who shall oppose them in the execution of some enterprise of a private nature, and afterwards actually executing the same in a violent and turbulent manner, to the terror of the people, whether the act intended were of itself lawful or unlawful.” Burdick, Law of Crime, Vol. 3, S. 756a.

The common law rule is further stated as follows:

“An essential element of riot is an unlawful assembly, and the offenses of unlawful assembly, rout, and riot are distinguished by the facts that a mere unlawful assembly takes no step to carry out its common purpose; that its attempt to do so is a rout; and that the actual execution or inception of its purpose in a manner likely to cause terror to the people is a riot. Rex v. Birt, 5 C. & P. 154; Follis v. State, 37 Tex. Cr. R. 535, 40 S. W. 277.

Under the statutory definition of riot hereinbefore given, it is apparent the intention of the Legislature was to modify the common law and make it possible to charge the crime of riot and secure a conviction therefor without either alleging or proving an antecedent unlawful assembly out of which the riot grew. Under the statutory definition, a riot may grow out of a lawful assembly. In order for the proof of the state to sustain a conviction for riot, it was only necessary to show that three or more persons acted together and used force or violence towards someone without authority of law or to show any threat to use force or violence accompanied by immediate power of execution.

We are, therefore, of the opinion:

1. That the information is duplicitous as charging more than one offense.

2. That the proof of the state showed that the crime of riot was committed and during such riot Guy Pollett was killed by reason of force and violence used on him by Schoolcraft, Huggins, and Humphrey.

3. That the evidence of the beating of Harold Frans, Jo Frans and others at the Rainbo Night Club was so closely connected with the killing of Guy Pollett that testimony concerning these other acts was admissible as a part of the res gestae.and to show a concerted action on the part of the three defendants.

4. That by reason of the fact that all the evidence of the different fights at the Rainbo Night Club was admissible against the defendants, that the action of the court in overruling the demurrer to the information because of its duplicity was harmless error under the provision of the statute, 22 O. S. 1941 § 1068.

In this connection attention is directed to the fact that the evidence of the fight at Joe’s Bar and with the sailors was admitted without objection from counsel for defendant.

Lastly it is contended that the verdict of the jury was excessive and that the judgment should be modified. In considering this assignment of error, we take into consideration the error of the court in overruling the demurrer of the defendant to the amended information and all other matters set forth in the record and brief of the parties. The codefendant Duggins who kicked the deceased Pollett after he had been knocked down by Schoolcraft was given a term of ten years imprisonment in the State Penitentiary. Duggins v. State, 82 Okla. Cr. 357, 170 P. 2d 266.

The defendant Schoolcraft seems to have been the ringleader of the gang. The evidence showed that he tried to start a fight when he first arrived at the night club and struck two or more parties inside the night club. It was he who started the altercation with the sailors and he was the person who started the fracas at the night club by hitting Harold Frans when he stepped out on the porch which led to the general melee which followed and which resulted in the death of Guy Pollett. The record further discloses that the defendant Schoolcraft has heretofore served a term of one year in the Georgia State Penitentiary and a term of two years in the Oklahoma State Penitentiary. Schoolcraft and his codefendants did not escape altogether unscathed during the fracas at the night club. Schoolcraft was scratched in many places, his head severely cut, and one of his teeth was knocked out, while Ephie Humphrey sustained a broken nose. Guy Pollett was injured on October 22nd., he was taken to the hospital on October 25th and t died November 6th. A post mortem examination disclosed that his death was caused by a ruptured blood vessel in the brain. There was no fracture. If the defendant had been charged with murder instead of riot, the evidence would not have been sufficient to sustain a conviction for murder, but it was sufficient to sustain a conviction for manslaughter.

It is our conclusion, after an examination of the record, that the error of the court in overruling the demurrer to the information and the demands of justice are sufficient to require that the sentence pronounced against the defendants be reduced to a term of 20 years imprisonment in the State Penitentiary.

It is, therefore, ordered that the judgment and sentence of the district court of Custer county be modified by reducing the judgment from a term of life imprisonment in the State Penitentiary to a term of 20 years imprisonment in the State Penitentiary, and the judgment and sentence as thus modified is affirmed.

BAREFOOT, P. J., and BRETT, J. concur.


source: Caselaw Access Project

author: BEETT, J.

license: Public Domain

text:
    HELEN CHAPMAN v. STATE.
    No. A-10675.
    March 19, 1947.
    (178 P. 2d 638.)

      O. H. Whitt, of McAlester, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen. and Owen J. Watts, Asst. Atty. Gen., for defendant in error.
   BEETT, J.

The defendant, Helen Chapman, and Eoss Eiley were jointly charged with making as assault on one Paul Kirks with a dangerous weapon, to wit: a fishing knife with a blade four (4) inches long with intent on the part of said defendants to do bodily harm to said Paul Kirks. The jury heard the evidence and found the defendant Chapman guilty and fixed her punishment at a year and a day in the State Penitentiary. The jury found the defendant Eoss Eiley not guilty. The facts are that Helen Chapman did assault Paul Kirks with the knife and inflicted wounds on his left breast and his upper left arm. Helen Chapman did not deny the assault. She testified she was after a girl named Annie Sanders; when Kirks interfered to stop her, she then made him the object of her assault. The evidence, though substantial, is conflicting in other incidental particulars.

The contention is made that the evidence is insufficient to support the verdict of the jury. This contention is without merit. In a long line of decisions, this court has held:

“Where the evidence is conflicting and different inferences may be drawn therefrom, it is the province of the jury to weigh the same and determine the facts.” Landon v. State, 82 Okla. Cr. 336, 166 P. 2d 781.

In considering the sufficiency of the evidence, the function of the Criminal Court of Appeals is limited to ascertaining whether there is a basis, in the evidence, on which the jury can reasonably conclude that the accused is guilty as charged. Roberts v. State, 82 Okla. 75, 166 P. 2d 111. Moreover, the Criminal Court of Appeals will not weigh conflicting and contradictory evidence which has been passed on by the jury; see, Boulding v. State, 83 Okla. Cr. 352, 177 P. 2d 152; and in another recent decision this question as follows, Brown v. State, 81 Okla. Cr. 314, 164 P. 2d 401, wherein the court said in substance:

“Where the evidence is substantial though conflicting, this court will not reverse the same on the grounds of insufficiency”.

In the case at bar, the evidence was certainly substantial, particularly when buttressed by the admissions of the defendant.

The final contention of the defendant is that the court committed error in not properly instructing the jury. This proposition is grounded upon the claim of a common law relationship of husband and wife between Helen Chapman and Ross Riley. It is further based upon the principle that the defendant had a right to defend herself when attacked and a right to defend her husband if he were attacked and he had the right to defend himself, McBroom v. State, 26 Okla. Cr. 352, 224 P. 210; Clemmons v. State, 8 Okla. Cr. 159, 125 P. 704. These principles of law are well recognized if applicable. If the facts support the contention of the common law relationship of husband and wife between Helen Chapman and Ross Riley, then the court erred in not instructing the jury on her right to come to the defense of her husband if he himself were acting in self-defense. The evidence tending to support the claim of the relationship of husband and wife between Helen Chapman and Ross Riley is to be found in the testimony of Albert Keith, as follows:

“Q. Did you see Helen Chapman or Ross Riley there? A. They was around there but I didn’t see them. Q. Where do they live? A.- There at Alderson. Q. Do they live in the same house? A. What do you mean? Q. Are they married folks? A. I don’t know, sir, whether they is or not — I guess might be.. Q. Do they live- in the, same house? A. Yes, I think they does. Q. She goes by the name of Helen Chapman and he goes by the name of Boss Riley? A. I don’t know just how they go.”

And the testimony of the defendant herself, as follows:

“Q. How long had you been down to Lorene’s? A. I guess along about noon. Q. Did you leave home the same time Boss did? A. Yes. sir. Q. You and Boss live there in the same building? A. Yes, sir. Q. You went over to Lorene’s and Boss went off to where he — went probably down to the school house? A. Yes, sir.”

The inadequacy of the evidence above quoted to establish a common law relationship of husband and' wife between the defendant and Ross Biley is apparent. The record affords none other. A common law relationship is contractual, just as is a ceremonial marriage. It must be founded upon a mutual agreement to enter into a matrimonial relation, permanent and exclusive of all others, between parties capable of entering into such a contract; consummated by their cohabitation as man and wife as well as their open assumption of other marital duties. When such a claim is made, it must be supported by proof of these elements, Bothwell v. Way, 44 Okla. 555, 145 P. 350. The mere fact of living together, even if accompanied by cohabitation, does not constitute marriage, but only evidence thereof tending to raise a presumption thereof, (Justin v. Carshall, 156 Okla. 173, 10 P. 2d 250. Such a relationship, to be valid, must be supported by the recognition of the marriage relation by the parties themselves, by holding out each other as the husband and wife, respectively, Davis v. Reeder, 102 Okla. 106, 226 P. 880. In the absence of children, the evidence to establish such relationship must be clear and convincing. Moreover, the proof of the reputation of the relationship must be general and not special, or divided, Richard v. Richard, 172 Okla. 397, 45 P. 2d 101. The evidence hereinbefore quoted wholly fails to meet the requirements necessary to establish that Helen Chapman and Ross Riley were common law husband and wife. It further fails to establish the fact that Ross Riley was in immediate peril at the time the assault was made upon Paul Kirks by the defendant. In fact, it discloses, at the time of the assault upon Kirks by the defendant, Riley was not then being attacked by anyone and that he did not participate in this particular phase of the altercation. Hence, the jury’s exoneration of him. Because of the failure to establish the relationship of husband and wife, as required by law if one existed, and the fact that Ross Riley was not in peril at the time the assault was made upon Paul Kirks, therefore, the contention that the court erred in not instructing the jury on the defendant’s second contention that the defendant had a right to come to the aid of her husband, if he himself was acting in self-defense, is without foundation. If it was the defendant’s intention to rely on the latter propositions, she should have supported them by adequate proof and then by requested instruction covering that special issue. The defendant may have believed the evidence sufficient to support her theory. If so, as was said in Carpenter v. State, 56 Okla. Cr. 76, 33 P. 2d 637, 639:

“If, when the court instructed the jury, the defendant desired an additional instruction upon his theory of the case it was his duty to have prepared the same and requested the court to give it. In Ford v. State, 52 Okla. Cr. 321, 325, 5 P. 2d 170, 171, this court held:
“ ‘If the defendant desires special instructions in the trial of a criminal case, he is required by the provisions of our criminal procedure to present in writing to the court the instructions desired, and it is not error for the trial court to omit to instruct upon every possible question under the defendant’s theory of the case, when he has not requested such instructions’ See, also, Green v. State, 70 Okla. Cr. 228, 105 P. 2d 795.

Moreover, we find the defendant made no objections and saved no exceptions to the instructions of the court. This court has held in this connection in numerous cases and in Green v. State, supra:

“Where no objection is taken to the instructions of the trial court, such instructions will not be examined by this court for the purpose of discovering other than fundamental error.”

It is clear from the record that this defendant failed to bring herself within the principles of law, hereinbefore announced, and finding no error in the record, the judgment and sentence of the trial court is accordingly affirmed.

BAREFOOT, P. J., and JONES, J., concur.


author: BAREFOOT, P. J.

text:
    Ex parte HARLEN BROYLES.
    No. A-10820.
    March 19, 1947.
    (178 P. 2d 652.)

      Hulsey & Hulsey and George L. Hill, all of McAles-ter, for petitioner.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Bill Biggers, of Wewoka, for respondent.
   BAREFOOT, P. J.

The petitioner herein, Harlen Broyles, was charged in the superior court of Seminole county with the crime of murdering Eric Nicholson, a deputy sheriff of Seminole county, in the city of Seminole, on January 10, 1945. He was tried, convicted, and sentenced to be executed. He appealed his case to this court, and the judgment and sentence was affirmed on October 3, 1946, and the date of his execution was set for December 31, 1946. A full and complete statement of the facts are set out in that case and will not be here repeated. Broyles v. State, 83 Okla. Cr. 83, 173 P. 2d 235.

After the case was decided by this court, and on December 14, 1946, the petitioner, Harlen Broyles, filed with the Pardon and Parole Board of the State an application for commutation of sentence and stay of execution, on the ground, among others, that one Leo Barnett of Goal-gate, Okla., had voluntarily confessed that he, and not Harlen Broyles, had killed Eric Nicholson in Seminole, on January 10, 1945. Thereafter the Pardon and Parole Board requested the Governor to stay the execution for' a period of 30 days, and on December 23,1946, the Governor made an order, staying the judgment of death until January 31, 1947.

Pending this time, a full and complete hearing was had before the State Pardon and Parole Board. The entire record in the case was reviewed, and witnesses on behalf of the petitioner and the state were heard. After the hearing was completed, and on January 20, 1946, the Pardon and Parole Board reported to the Governor as follows:

January 20,1947.
“His Excellency
“Boy J. Turner
“Governor of the State of Oklahoma.
“In re: Harlen Broyles,
No. A-10,595.
“Dear Governor:
“We have carefully considered the application of Hárlen Broyles for clemency, and after a thorough review of the evidence, and after hearing all additional evidence of all parties, we find no facts or circumstances justifying: the recommendation of any clemency in this case.
“Respectfully, submitted,
(Signed) Jim Hatcher, Chairman
“A. B. Rivers
“Pardon & Parole
“Officer
A. B. Alcord
J. B. Hollis
John Helm
“Logan Stephenson
“Pardon & Parole Board.”

After this recommendation to the Governor by the Pardon and Parole Board, and on January 20, 1947, Har-len Broyles filed in this court a petition for writ of habeas corpus, seeking his release from the State Penitentiary.

By reason of the facts and circumstances, as will be hereinafter stated, and the fact that petitioner was to be executed, we set the petition for hearing on January 24, 1947, and ordered that counsel for petitioner, the county attorney of Seminole county who prosecuted the case, and the Attorney General of the state be present on said date, and that a full and complete hearing be had before this court. Our reason for this hearing was that on November 26, 1946, Leo Barnett called the warden of the State Penitentiary at McAlester, and informed him that an innocent man was about to be executed, and that he (Barnett) was the man who killed Eric Nicholson. Wide publicity was given this statement by the public press, and although the Pardon and Parole Board of the State had heard all of the evidence in connection with this statement, and the same had been transcribed and a record made thereof, we were of the opinion that this court should again review the case, to the end that this petitioner and those interested in his behalf might know and be informed that the life of a citizen of this state had not been taken until he had been given every right to which he was entitled under the laws and Constitution of this state, and the United States, and to the end that a permanent record of the evidence which had been by the petitioner denominated as “newly discovered” could be made in the criminal reports of this state.

An examination of the petition presented no question of law which in any way justified this court in granting the writ of habeas corpus.

The newly discovered evidence as presented to the Pardon and Parole Board and to this court was as follows:

On November 26, 1946, Leo Barnett, who was an ex-convict, entered the drugstore of Bob McGinnis, in Coal-gate, and asked him to listen to a telephone call he was going to make. He then entered a telephone booth in the drugstore and called the Hon. R. B. Conner, warden of the State Penitentiary at McAlester, and told him:

“I killed this man at Seminole, and you are going to electrocute an innocent man.”

Mr. McGinnis testified before the Board, and stated that he immediately asked Barnett if he realized what he had done, and Barnett answered: “Bob, I did not kill that man, but I know who did kill him.” Mr. McGinnis testified that Barnett had been drinking at the time of the conversation.

The sheriff of Coal county, John Phillips, arrived at the drugstore immediately and took charge of Barnett, and he was taken to the county jail of Atoka county.

Mr. Roscoe Brown was called as a witness by counsel for petitioner. He stated that he was in the cleaning and pressing business at Coalgate; that he had a conversation with Leo Barnett after the telephone call above referred to, and after Barnett was released from the Atoka county jail and had returned to Coalgate. He testified:

“Q. He informed you he had called the warden? A. Yes, sir. Q. What did he tell you about it — how did it happen? A. He came in often, and he was standing there and my daughter was taking care of the front, and he said he made the call, and I asked him, I said, ‘Whatever induced you to make such a call as that for,’ and he said, ‘I know that boy is not guilty; I know he is not guilty;’ and I said, ‘Well, who is guilty?’ and he said, T am not going to tell that.’ Well, my daughter overheard the conversation. He said, ‘I am going to tell you — I am going to tell you,’ and started to tell me, and a gentleman walked in, and he said, ‘I will see you later.’ ”

Mr. Brown had known Leo Barnett for many years, and testified that he. did not think he was drinking at the time he had the conversation with him, but that he had a bad reputation in that community. He knew him as “a whisky man and a law violator.” This conversation was just before Leo was killed.

Paul Hardis was called as a witness before the Pardon and Parole Board. He testified that he lived at Coalgate, and was engaged in the business of selling butane tanks; that he had a conversation with Leo Barnett about 9 o’clock in the morning, prior to his conversation with the warden of the Penitentiary. He testified as follows:

“A. * * * when he first approached me that morning, he said he hated to see a man die for what he did not do. Q. Tell the Board what he did tell you. A. He just told me about the case and said the boy was innocent. He said, ‘I know he did not do it.’ * * * Q. Was he drunk or sober? A. At first he was not drunk. Q. Later you think he was? A. Well, he would go off and see somebody else and try to get a little money and come back, and later on seems like he was getting drunk or something, by 2 p.m. he was beginning to get pretty drunk.”

It may be stated here that Leo Barnett was killed upon the streets of Coalgate in December, 1946, by an officer of Coal county, and while he was resisting arrest.

On behalf of the state, Mr. Bill Biggers, former county attorney of Seminole county and who tried the original case against petitioner, made a detailed statement of his actions, and the actions of the other officers concerning the investigation made of the telephone call to the warden.

He stated that on the night before Thanksgiving he was told about the statement Barnett had made to the warden, and that he, in company with Oad Lewis, one of the witnesses who identified Harlen Broyles at the time of the original trial, and Bob Short, a peace officer of Seminole county, went to Atoka and talked with Leo Barnett “in the presence of McBride, Johnnie Phillips, sheriff of Coal county and another deputy and a couple of patrolmen.” He stated that Barnett told them that he made the call to the warden, but that he did not make the statement he was said to have made, and what he did say was: “I think you are going to electrocute an innocent man.” Mr. Biggers said: “He (Barnett) made a statement to us that during the time he was in Oklahoma City, when one of the hearings was had in the Criminal Court of Appeals on the Broyles case, that he was in a poker game with Chick Bogers and some other parties he did not know, and Chick Bogers is now in the Federal Penitentiary for bank robbery, and when he was talking with these individuals playing poker up there, and another said, ‘there goes another man on circumstantial evidence.’ Pie said he did not know who it was that made the statement.”

Mr. Biggers stated that they took Leo Barnett back to Seminole and various officers talked to him concerning the telephone call he had made to the warden; and Barnett made and signed the following statement:

“Statement of Leo Barnett.
“Made in the office of the Chief of Police, Seminole, Oklahoma, in the presence of Charley Beynolds, H. C. Carmichael, O. L. Nickerson and Jake Sims.
“Leo Barnett, thirty-four years of age, born and raised at Coalgate, Oklahoma. On November 26, 1946 while very drunk I called Warden Dick Conner of McAlester Penitentiary and advised him that I knew Harlan .Broyles was innocent of murdering Eric Nicholson. The only reason for making this call that I can give is that some six months ago in Oklahoma City I met Chick Rogers who I had known all my life. He was accompanied by another man that I didn’t know. We had a few drinks and the Nicholson case came up. The man who I was not acquainted with made the statement that he didn’t believe Broyles killed Nicholson. I have never seen this man since nor discussed this case with anyone. Rogers at this time is in the Federal Penitentiary for robbing a bank at Morton, Texas. I have no reason to believe Broyles is either guilty or innocent.
“I can assign only one reason for making this call, I was very drunk. I have read the above statement and it is true and correct.
“Witnesses: (Signed) Leo D. Barnett
“Charles Reynolds
“H. C. Carmichael
“O. L. Nickerson
*‘Jake Sims.”

The next day the officers took Barnett to the offices of the Bureau of Investigation in Oklahoma City, where an investigator from the Pardon and Parole Board was present. He made practically the same statement there. The Seminole county officers left him in that office.

Mr. Biggers further stated that while investigating the murder of Erie Nicholson, and before the arrest of Harlen Broyles, Leo Barnett was arrested in Houston, Tex., in connection with a disturbance at the Cotton Club, in that city. Mr. Biggers, in company with others, including a number of peace officers, went to Houston for the purpose of investigating the said Leo Barnett, and his whereabouts at the time of the killing of Eric Nicholson at Seminole. Leo Barnett told them that he was in New Orleans at that time, but upon investigation they found that he was living in a rooming house in Houston, Tex., from January 7, 1945, to January 19, 1945, when he was arrested at the Cotton Club, and that he had spent every night there during that time. They also found that he was working at Walgreen’s Drug Store, in Houston. In the record there appears the following affidavits:

“State of Texas, Harris County, ss.
“R. W. Case, of lawful age, being first duly sworn, deposes and says:
“That I am advertising manager of Walgreen Stores, Houston, Texas, and that I do hereby certify that our records show that Leo Duard Barnett was in our employment-from January 9, 1945 to January 19, 1945, in the position of counter man at 1023 Main Street, Houston, Texas.
'/s/ R. W. Case.
“Subscribed and sworn to before me this 10 day of January, 1947.
/s/ Mrs. Olive Huston,
Seal Notary Public
My commission expires June, 1947.”
Harris County Texas,
“State of Texas, Harris County, ss.
“C. J. Heninger of lawful age, being first duly sworn, deposes and says:
“My residence is at 611% San Jacinto and prior to August 7, 1945 I operated a rooming house located at 202% Preston Ave., in the city of Houston, Texas, and that my records show that Leo Barnett moved to my rooming house on January 7,1945, having just arrived from New Orleans, La., and that on or about the 9th day of January, 1945, he went to work for the Walgreen Drug Store and that he worked there until January 19, 1945, and on that date he and his brother Leon Barnett were arrested for being involved in an affray at the Cotton Club, in Houston, Texas, and a few days later Leo Barnett was picked up and was arrested and held for questioning for some Oklahoma authorities, but I personally knew that Leo Barnett was in Houston, Texas, from January 7, 1945 until after the 24th day of January, 1945.
/s/ C. J. Heninger
“Subscribed and sworn to before me this 10th day of January, 1947.
/s'/ Mrs. Olive Huston
Seal Notary Public Harris County, Texas.
My commission expires June, 1947.”

Also introduced in evidence were receipts showing the withholding tax taken out of his pay from January 9 to January 19, 1945.

Mr. Ivan Kennedy, the Director of the Division of Investigation for the State, testified before the Board as follows:

“A. I believe it was Friday following Thanksgiving that I talked to him (Leo Barnett). He was brought up by Jake Sims and some officers who had talked to him. I did not talk to him that day but my assistant, Mr. Crabb was there, and Mr. Crabb talked to him, and because of his reputation and his having called the FBI and confessed to the Walters Bank robbery, we did not put him in jail, but just released him and told him to come back, which he did.
“Q. Tell the court about his confession? A. He said he was just drunk and did not know a thing about this case, and the call he had made was, as I remember, due to some conversation he had. He heard somebody say this was an innocent man and when he gets drunk he does not know what he is doing, and that’s why he does these things. He is the same man who called the FBI and told them he robbed the Walters Bank, and at that time told them he had $20,000 in his hip pocket.” (It may be said that Leo Barnett was in no way connected with the Walters Bank robbery. ) ”

Mrs. Broyles, tlie mother of Harlen Broyles, was present at the hearing before the Pardon and Parole Board, and was permitted to testify. She stated that her home was in McCamey, Tex., bnt she had been at McAles-ter almost three months prior to the hearing before the Board. She gave the history of her son’s life. He was, indeed, the “black sheep” of the family. He did not like to attend school. He left home and spent the winter of 1935 in Arkansas with his aunt and cousin. He returned home, then “hoboed” his way up into Missouri. He was there convicted of the crime of robbery, and sentenced to eight years in prison. He made application for parole, which was refused, and he was sent to the prison farm. He escaped from this farm, and finally went to Shawnee, Okla., where he secured a room at 230 North Bell street, and registered under the name of George McDaniels. He was residing at this address at the time Eric Nicholson was killed in Seminole. He arrived at the home of his mother in McCamey, Tex., on or about January 17th, which was about seven days after the killing of Eric Nicholson, in Seminole county. He was arrested in Waco, Tex., on February 1, 1945, at which time he shot and attempted to kill an officer who was taking him to the police station, in a manner very similar to the killing of Eric Nicholson in Seminole.

Mrs. Broyles also testified that her son brought certain clothes with him when he return home and she put them in a trunk in the garage. They were found there by the officers after his arrest in Waco. Among the clothes was a mackinaw that was positively identified at the original trial as being the property of a Mr. Gilley, and which was stolen on the night of January 10,1945, the date Eric Nicholson was killed. This mackinaw was stolen by Harlen Broyles while Mr. Bill Adams, whom he had kidnapped a few minutes after killing Eric Nicholson, was in the car with him. The mackinaw was positively identified by Mr. Gilley, his wife and his son, by reason of one of the buttons which had been taken from the son’s coat and sewed on this coat, and by certain torn places which had been repaired by Mrs. Gilley with a thread of a different color.

Mrs.-Broyles testified that when her son came home from Shawnee on January 17, 1945, he brought with him two guns, one a .32 and one á .38. She also testified that he told her he had never been in Seminole.

Rev. W. H. Alexander, a minister of Oklahoma City, appeared before the Board and testified of visiting Harlen Broyles in the State Penitentiary at McAlester. He had no individual knowledge of the case, and his testimony was not material to the issue involved.

We have stated the evidence as revealed by the record, so that the same may become a permanent record in the reports of this court. At the time of the hearing before this court, an order was entered denying the writ of habeas corpus, with the statement that an opinion would follow. In compliance with the judgment and sentence of the superior court of Seminole county, petitioner was executed at the State Penitentiary at McAlester on January 31, 1947.

Harlen Broyles was given every right guaranteed him under the Constitution and laws of this state. He had a fair and impartial trial. His claim of newly discovered evidence was heard by the Pardon and Parole Board of this state, and his petition for writ of habeas corpus was carefully reviewed by this court; and, as stated by Judge Jones in the original appeal:

“The evidence of his guilt as presented by the state was so overwhelming that no reasonable person with any regard for his oath as a juror could have come to any con-elusion other than that the defendant was guilty of murder, as charged in the information.”

Ten witnesses identified him as the party who killed Eric Nicholson. One witness, Minnie Cruse, did not identify him. There was a conflict in the evidence as to her being in a position to see the assailant at the time Eric Nicholson was killed. The statement made by Leo Barnett was that of an irresponsible person who evidently was seeking notoriety, and he admitted that his statement was prompted by a conversation had in a poker game with a person whom he did not know, and who stated that he thought an innocent man was going to be executed on circumstantial evidence. There was no basis for this statement, and it was only a loose statement or remark, if made, by one who knew nothing of the facts in this case. There can be no question under the evidence here presented that Leo Barnett was in Houston, Tex., and working for the Walgreen Drug Store from January 9 to January 19,1945. Eric Nicholson was killed on the streets of Seminole on January 10, 1945, and Leo Barnett was not in Seminole county at that time, and did not know anything about the killing of Eric Nicholson.

For the reasons above stated, the petition for writ of habeas corpus was denied.

BRETT, J., concurs. JONES, J., not participating.


author: BRETT, J.

text:
    Ex parte ORVILLE LINDSAY CHAMBLESS.
    No. A-10824.
    March 26, 1947.
    (179 P. 2d 167.)

      David Tant, of Oklahoma City, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Warren H. Edwards, Co. Atty., and George Lipe, Asst. Co. Atty., both of Oklahoma City, for the State.
   BRETT, J.

The petitioner, Orville Lindsay Cham-bless, was charged by information in Oklahoma county court with the crime of murder. At a preliminary examination he was held to the district court without bond. An information was filed against the defendant in the district court of Oklahoma county on January 8, 1947, and he is now confined in the county jail of Oklahoma county.

Application was made to the district court of Oklahoma county on January 16, 1947, for bail and the writ was denied. The above-named defendant filed his application in this court for writ of habeas corpus on January 23, 1947, in which he claims that he is not guilty of said charge of murder; that the proof thereof is not evident, nor the presumption thereof great; that the same is supported by a certified transcript of the testimony taken before the district judge of Oklahoma county, Okla., in which said hearing he appeared as the only witness.

This petition was heard by agreement of the parties in this court January 24, 1947, at which time the certified copy of the transcript taken in the lower court was offered in evidence and the testimony of two additional witnesses was offered.

It is unnecessary to give a detailed statement of the testimony presented in this court, or to set forth any of the testimony as the same appears in the transcript offered in evidence and as taken in the court below.

The evidence revealed, in substance, that while there was slight evidence from which a charge of murder might be inferred and that the killing was with premeditated design, the positive proof on behalf of the defendant is to the effect that he had no intention to kill Eltzroth and that the shooting was accidental. The state offered no evidence to controvert this positive proof offered by the defendant. Under these circumstances, we must conclude that the proof of murder is not evident nor the presumption thereof great. By reason of the foregoing facts, this court on January 24, 1947, granted the writ and ordered the defendant released from the county jail of Oklahoma county upon giving of bail in the sum of $20,000, to be approved by the court clerk of Oklahoma county, Okla.

In keeping with this order, the writ is hereby granted, in compliance with the order as above stated.

BAREFOOT, P. J., concurs. JONES, J., absent and not participating.


author: PER CURIAM.

text:
    Ex parte HAROLD SMITH.
    No. A-10829.
    March 26, 1947.
    (179 P. 2d 168.)
    ■ Frank Leslie, of Tulsa, for petitioner.

      Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and George P. Pitcher, Co. Atty., of Vin-ita, for respondent.
   PER CURIAM.

Petitioner, Harold Smith, filed in this court his petition for habeas corpus on February 5, 1947, wherein he alleged that he was illegally restrained of his liberty by being imprisoned in the county jail of Craig county, Okla., by the sheriff of said county. That the cause of his restraint was that Justice of the Peace R. M. Green had fixed his appearance bond in the sum of $15,000 upon a charge of second degree burglary pending in said court.

Upon reading the above petition, the writ of habeas corpus was denied, but an order to show cause was issued, and a hearing set upon said petition for February 10,1947. On that date a response was filed by Wm. M. Thomas, sheriff of Craig county, in which it was alleged that petitioner was being held by reason of a warrant and commitment issued out of the justice of the peace court charging-petitioner with the crime of burglary, and alleging that the property stolen at the time of the burglary was of the value of more than $5,500.

It was further alleged in said response:

“That at the time of the commission of the said crime, defendant was at large on bail pending appeal from a conviction in the district court of Tulsa county; that beside lessor offenses petitioner has served time in the State Reformatory, Colorado, for robbery with firearms, the State Penitentiary, Missouri, for burglary and larceny, and in the U. S. Penitentiary, Leavenworth, Kansas, for violation of the narcotics act, and also for escape from said penitentiary.”

A hearing was had before this court on February 10, 1947, and after hearing evidence to the effect that defendant had been convicted of the crime of burglary in the second degree, and that the case was pending on appeal to this court at the time of the alleged burglary in this case, an order was entered refusing to grant the writ or to lower the amount of the bond. After this hearing, the court was correctly advised that the alleged crime had not been committed during the time that the appeal was pending in this court, but that petitioner had been convicted at a previous date. After further hearing on February 14, 1947, this court entered an order reducing the bail of petitioner from $15,000 to $7,500, said bond to be filed and approved by the court clerk of Craig county.

It is so ordered.


text:
    AUBREY SHAW v. STATE.
    No. A-10723.
    March 26, 1947.
    (179 P. 2d 169.)

      Bill Logan, of Lawton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The defendant Aubrey Shaw, was charged on January 1, 1946 in the county court of Comanche county, Olda., of being in the unlawful possession of intoxicating liquor. Op January 2, 1946, he was arraigned and sentenced to serve a term of 30 days in the county jail, and adjudged to pay a fine of $75.

The conviction was based upon a plea of guilty made and entered without the aid of counsel at the time of arraignment.

There is a sharp conflict in the testimony as to what occurred during the arraignment, and as to whether the defendant intended to enter a plea of guilty.

The record discloses that within five minutes after the plea had been entered and sentence pronounced, and its effect comprehended by the defendant, and he discovered what he had said had been interpreted as a plea of guilty, he objected and stated that he had not entered a plea of guilty. He immediately asked leave to withdraw the plea of guilty in order that he might enter a plea of not guilty.

The court permitted defendant to employ counsel and. set up his contentions in a formal written motion for leave to withdraw his plea of guilty and to substitute a plea of not guilty. That motion was heard in the afternoon of the day the purported plea of guilty was entered.

At the hearing on the formal motion, the defendant testified that he thought he was being arraigned to make bond. That it was not his desire to enter a plea of guilty to the charge made against him, and that he did not consider himself guilty of the offense as charged, and that the' plea of guilty was entered through ignorance and misapprehension. He admitted that the court advised him of all his rights, and that he was asked the following questions: and gave the following answers on cross-examination:

“Q. He advised you that you had the right of trial by jury, right of counsel and the right of 24 hours in which to plead, he explained those to you, and he went further to state that you could enter a plea of guilty or not guilty if you desired? A. I didn’t understand it that way. Q. He did make the statement to that effect, if you recall, and at the conclusion of which did you not state that you were guilty, you guessed? A. I said, T guess’. Q. Thereupon the county judge pronounced sentence upon you, did he not? A. Yes. Q. Then you left with the jailer and myself to go to the court clerk’s office? A. That is right. Q. And then some few moments later you returned to the county judge’s office and asked to withdraw your plea of guilty. A. Yes.”

Whereupon, the defendant admitted that he had been convicted of cattle theft in 1936, and then he was asked the following questions, to which he gave the following answers:

“Q. The procedure of the arraignment this morning was not entirely new to you, you have been arraigned in court previous to today? A. That is the only time that I was ever arraigned, they just arraigned me for bond. By the Court: When they arraigned you, did they ask if you were guilty or not? A. No, sir, not when they arraigned me for bond, they could have but it has been so long I couldn’t recall. By the Court: There was several witnesses there this morning when you were arraigned and I explained your rights to you thoroughly and told you that you had a right to a lawyer, time in which to talk to a lawyer before you entered your plea? A. Yes. By the Court: I told you all of your rights and I said, ‘Now, you can have a right to enter your plea at this time, whether guilty or not guilty,’ didn’t I ? A. I understood you to say, ‘Are you guilty’, and I said, ‘I guess so’. ”

On re-direct examination the defendant testified that prior to the arraignment he had made arrangements for a bondsman, and that the bondsman had actually appeared. He further testified that he was not aware of the fact that if he pleaded guilty he could not make a bond. He also testified that it was his intention to plead not guilty, and to make bond.

Mrs. Florence Greer testified that shortly after 9:30 a.m., she appeared at the courthouse on the morning of January 2, 1946, the same day all of these proceedings transpired, in response to a call from the defendant, to make his bond, and that she went to the courthouse for that purpose.

Other witnesses testified to the effect that the defendant actually entered a plea of guilty. Thereafter, the court overruled the defendant’s motion to withdraw the purported plea of guilty but vacated the judgment and sentence pronounced on the morning of January 2, 1946, and directed the defendant to appear on the morning of January 10, 1946, for formal judgment and sentence on the purported plea of guilty, at which time defendant was again sentenced to 30 days in jail and to pay a fine of $75. From the latter judgment, this appeal was perfected.

It is contended by the defendant that the court abused its discretion and erred in its refusal to permit the defendant to withdraw his plea of guilty when he first entered his oral objections, and likewise committed error in overruling his formal written motion to withdraw his plea, which was prepared and filed by him, with the aid of counsel. • '

The provision of Title 22 O. S. 1941 § 517 is the only pertinent section of the statute dealing with the questions herein involved:

“The court may, at any time, before judgment, upon a plea of guilty, permit it be withdrawn, and a plea of not guilty substituted.”

This section does not appear altogether applicable, but by construction, this court has extended its meaning to the end that a defendant may be tried by a jury of his peers and that the granting of a motion to withdraw a plea of guilty in a misdémeanor case, either before or after judgment, is within the sound discretion of the trial court. On appeal the action of the trial court in such á case will not beset aside unless there appears an abuse of discretion. House v. State, 75 Okla. Cr. 291, 131 P. 2d 124; Turner v. State, 33 Okla. Cr. 97, 242 P. 1053; McAtee v. State, 39 Okla. Cr. 10, 262 P. 703; Rudolph v. State, 32 Okla. Cr. 265, 240 P. 761; Cook v. State, 45 Okla. Cr. 69, 281 P. 819; Factor v. State, 49 Okla. Cr. 308, 294 P. 206; Hart v. State, 29 Okla. Cr. 414, 233 P. 1095; Jenkins v. State, 6 Okla. Cr. 516, 120 P. 298; Bennett v. State, 75 Okla. Cr. 42, 128 P. 2d 253; Shiever v. State, 55 Okla. Cr. 342, 30 P. 2d 192; Fromcke v. State, 37 Okla. Cr. 421, 258 P. 927. In the light of the statute and as applied in the cases, the sole question in this case is, did the court abuse its discretion in not granting the motion for leave to withdraw the plea of guilty?

Each case of this character must be decided upon its own facts and circumstances. Where a plea of guilty is entered without the aid of counsel, as disclosed by this record, the court will closely scrutinize the same to the end that the defendant may not be deprived of any of his substantial rights. The facts as to what took place in the courtroom are conflicting and contradictory, but, notwithstanding the state of the record, there are some things as clear as crystal. The defendant was charged by information on January 1, 1946, arrested, arraigned, convicted and sentenced on January 2, 1946. All this transpired without the aid of counsel.

The court tried to advise the defendant of his right to counsel, 24 hours to plead, trial by jury, and to plead guilty or not guilty. Notwithstanding the court’s efforts, it is apparent that things were moving so fast the defendant was in a state of frustration and confusion. While there is substantial evidence that defendant entered a plea of guilty, it must be weighed in the light of the whole record, the pleadings, minutes, and the evidence at the hearing on the motion. House v. State, supra; In re Bradley, 72 Okla. Cr. 107, 113 P. 2d 611; Ex parte Wooldridge, 72 Okla. Cr. 292, 115 P. 2d 284; In re Nye, 75 Okla. Cr. 155, 129 P. 2d 614.

The foregoing quotations from the evidence disclose that the defendant understood the court to ask him if he was guilty and his reply was, “I guess”. There must be some basis in fact for this contention, or the county attorney would not have formed his question at the hearing on the motion to vacate as he did: “Q. He did make the statement to that effect, if you recall, and at the conclusion of which did you not state that you were guilty, you guessed?” To which the defendant’s answer was, “I said, ‘I guess’ ”. In any event, this court does not look with favor upon pleas entered by guess or under misapprehension. Where the defendant says he is “guilty”, “I guess”, such plea should be treated as a plea of “not guilty” and defendant should be held for trial. Even though the court advised the defendant of his rights, it is apparent that the defendant had not had ample time, for deliberation, and was laboring under a misapprehension of those rights, and did not fully appreciate the consequences of his act. Furthermore, he was apparently influenced by a faulty recollection of what had happened in an old felony case that arose in 1936. This conclusion is buttressed by the fact that the defendant had made arrangements for a bondsman, a Mrs. Greer, who appeared at the court-house shortly after 9:30 a. m. for the purpose and with the intent of making the defendant’s bond, and securing his release from jail. We' are, therefore, forced to conclude that whatever plea the defendant entered, he intended it to be such as would entitle him to his freedom pending his trial on the merits. This fact is unescapable. If it were not so,' why would the defendant have gone to the trouble to procure bond?

Moreover, within five minutes after the defendant had been sentenced, he informed the county attorney and the court that he did not intend to enter a plea of guilty. One could hardly act more promptly, when he fully com-' pretended what had happened. We cannot overlook this fact, and the fact the state would have sustained no injury in a reasonable delay incident to determining the issue on its merits. A case paralleling the procedure in the case at bar is that of Neville v. State, 72 Okla. Cr. 240, 114 P. 2d 961, 962, wherein Judge Barefoot, speaking for the court, said:

“* * * It is made to appear that the plea of guilty in the instant case was entered hastily without proper safeguards, without deliberation, and ignorantly by defendant, and that the court erred in not permitting the same to be withdrawn upon the application made, even after judgment and sentence.” Heath v. State, 23 Okla. Cr. 382, 214 P. 1091, which is cited with approval in the case of Neville v. State, supra, is a case in point.

In view of the foregoing facts, and cases interpreting the statute, and in keeping with the principles, therein announced, we are of the opinion that the court abused its discretion, in not granting the defendant’s motion to withdraw his plea of guilty and in keeping with the rule announced by Judge Jones, in Ex parte Meadows, 71 Okla. Cr. 353, 112 P. 2d 419, 428, as follows: “It is an established principle of law that an accused in a criminal case who procures a verdict and judgment against him to be set aside or arrested by the court may be tried anew upon the same or another indictment for the same offense of which he was convicted”, this cause is therefore reversed and remanded for a new trial upon its merits,

BAREFOOT, P. J., and JONES, J., concur.


author: BABEFOOT, P. J.

text:
    SID YOUNG v. STATE.
    No. A-10633.
    March 26, 1947.
    (179 P. 2d 173.)
    W. C. Henneberry, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Dixie Gilmer, County Atty. of Tulsa, for defendant in error.
   BABEFOOT, P. J.

The defendant, Sid Young, was charged in the district court of Tulsa county with the crime of murder, was tried, convicted of manslaughter in the first degree and sentenced to serve a term of 10 years in the State Penitentiary, and has appealed.

The charge herein was the outgrowth of the killing of Vernon Lee Campbell at the OK Barbeque Stand and Beer Tavern, in the city of Tulsa in the early morning of July 2,1944. Defendant was working at the barbeque stand and beer tavern and was on duty on the night of the difficulty. Pie testified that he first saw Vernon Lee Campbell in the tavern about 11 o’clock on the night of July 1, 1944. There was a bar in the tavern, and also booths where customers sat while drinking beer. During the evening Vernon Lee Campbell and another boy, Vernon Horn, had a fight while sitting in one of the booths. The defendant, who was behind the bar at the time, went to the booth and first put Vernon Horn out of the place, then ejected Vernon Lee Campbell. Both of these parties afterwards went back inside the tavern, and there is some conflict in thp testimony as to the number of times the deceased was put out of the building by defendant, but when he returned the last time, some words were exchanged between them, and as Campbell started toward the door, the defendant immediately came from behind the bar, picking up a .45 automatic from under the counter as he did so, and placed the gun in his pocket. Pie at once attempted to and did shove Campbell out of the door and onto the sidewalk.

A number of eyewitnesses testified for the state, and their testimony was that defendant was striking Campbell about the head with the pistol, and that Campbell had his hands up trying to ward off the blows. They testified that Campbell was knocked down but that he got up and was backing to the east, followed by defendant. Most of the witnesses testified that he backed from 25 to 40 feet, and was being followed by defendant. Each of these witnesses testified that they heard the pistol fire and that Campbell immediately fell to the ground. That there was a distance of at least five feet between defendant and the deceased at the time the shot was fired. All of the state’s witnesses testified that they at no time saw a knife in the hands of deceased, and that they did not at any time see any demonstration by him toward defendant, testifying that he continued to back, until the shot was fired.

Defendant testified that he was cut on the finger with a knife in Campbell’s hand at the time of the scuffle between them. One of the witnesses for defendant testified that he found a knife the morning following the difficulty near where the body of the deceased had fallen; and several other witnesses testified to seeing the cut or the blood on defendant’s hand soon after the trouble. Defendant testified that he struck deceased with the pistol and that it was accidently discharged, striking the deceased in the head and killing him. He also testified that deceased was attempting to hit him when he struck him with the gun.

For a reversal, it is first contended that the court erred in refusing to grant defendant a continuance. This contention is based upon the absence of a witness, Chester Diamond, who, defendant states, saw a knife in the hand of the deceased at the time the gun was discharged. As shown by the record, this witness had made a statement to this effect at the police station the morning following the difficulty. The defendant, as above stated, testified to the deceased having a knife in his hand; two witnesses and a policeman testified to seeing the cut or blood on defendant’s hand, and the knife found near where deceased had fallen was introduced in evidence. In view of all the testimony, it seems to us that the testimony of this witness, if present, would not have changed the results of the trial; and the defendant in his brief admits that the testimony of this witness would have been cumulative.

In our opinion, the application for continuance failed to show due diligence on the part of the defendant to secure the presence of this witness, and sufficient grounds for the belief that a continuance would result in securing his presence or deposition at a later date. It is alleged that a subpoena had been issued for the witness Chester Diamond, but the date of the issuance of the subpoena was not shown, and the subpoena was not offered in evidence.

We are of the opinion that under the circumstances, the trial court did not err in overruling the motion for a continuance. Bryan v. State, 5 Okla. Cr. 542, 115 P. 619; Seigler v. State, 11 Okla. Cr. 131, 145 P. 308; Hunt v. State, 38 Okla. Cr. 294, 260 P. 512; Hayes v. State, 61 Okla. Cr. 105, 65 P. 2d 1242; Lane v. State, 65 Okla. Cr. 192, 84 P. 2d 807; Scott v. State, 72 Okla. Cr. 305, 115 P. 2d 763.

It is next contended that the court erred in instructing the jury, and in refusing to give the defendant’s requested instructions.

We have carefully examined the general instructions given by the court, and the refused instructions requested by the defendant.

Defendant requested in writing four instructions. Some of these were given by the court. Defendant’s requested instruction No. 1 was given in exact terms as requested, in the court’s instruction No. 15. Instruction No. 16, given by the court, is in almost identical language as requested instruction No. 3, and expresses the same thought. Requested instructions Nos. 2 and 4 were fully covered by the general instructions given by the court. These general instructions were fair to the defendant, and he was in no way prejudiced by the giving of any instruction. Counsel questions instructions Nos. 17 and 18, but cites no authority to sustain his contention. Instruction No. 17 was approved by this court in the case of Alcorn v. State, 56 Okla. Cr. 156, 35 P. 2d 735. Instruction No. 18 defines the word “aggressor”. Defendant offered no requested instruction with reference thereto. An examination of this instruction does not reveal to us that defendant could have been in any way prejudicied by the giving thereof. In Bashara v. State, 13 Okla. Cr. 304, 164 P. 324, 326, this court said:

“The court is only required to instruct upon the law as applicable to the facts. In this case there was not a syllable of evidence falling from the lips of any witness on either side that there was any withdrawal from this conflict on the part of this appellant.”

In the case before us, we find no evidence in the record of the defendant attempting to withdraw from the difficulty.

Instruction No. 13, which is questioned, only defines homicide when committed by accident and misfortune as it is defined by the statutes (Tit. 21 O. S. 1941 § 731). No objection or exception was taken to the giving of this instruction.

It is contended by defendant that the court erred in refusing to give an instruction on second degree manslaughter.

An examination of the record does not sustain this contention. The defendant was at all times armed with a pistol, a deadly weapon. His defense was that of self-defense, and also excusable homicide. The elements of second 'degree manslaughter do not here appear and the court did not err in refusing to submit the issue of manslaughter in the second degree, under the facts in this case.

It is finally contended that the court erred in refusing to sustain the demurrer to the evidence, and that the sentence is excessive.

The defendant was charged with murder. It is unnecessary to make' a further detailed statement of the evidence. From what has been said, it will be noted that there was a direct conflict in the testimony. This case was tried before a jury, and they had an opportunity to see and hear the witnesses. They returned a verdict of guilty of manslaughter in the first degree, and assessed the punishment of the defendant at 10 years in the penitentiary. There was some conflict in the testimony, as above stated, but as an appellate court, we will not reverse a case where there is a conflict in the testimony and the evidence is sufficient to sustain the judgment and sentence. Sanders v. State, 46 Okla. Cr. 293, 287 P. 846; Grooms v. State, 77 Okla. Cr. 448, 142 P. 2d 862; Wehr v. State. 79 Okla. Cr. 426, 155 P. 2d 731.

From what has been stated, we do not find that the judgment and sentence were rendered by reason of undue passion or prejudice, or that the same is excessive.

For the reasons above stated, the judgment of the district court of Tulsa county is affirmed.

JONES and BRETT, JJ., concur.


author: JONES, J.

text:
    KENNETH ISAAC COLE v. STATE.
    No. A-10693.
    March 26, 1947.
    (179 P. 2d 176.)

      T. C. Knoop and E. Blumhagen, both of Watonga, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Haskell A. Hollo-man, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Kenneth Isaac Cole, was charged in the district court of Major county with the crime of sodomy, was tried and convicted with the punishment left to the court. The district court thereupon sentenced the defendant to serve a term of two and one-half years imprisonment in the State Penitentiary, and he .has appealed.

The single proposition presented in the brief of the defendant is that the evidence is insufficient to support the judgment of conviction.

The facts in this case are in many ways similar to the facts presented to this court in another appeal by this defendant from a conviction which he sustained for the crime of sodomy, alleged to have been committed upon another 14 year old youth in Major county. That conviction was reversed because of the failure of the court to give a requested instruction and because of the improper argument of the special prosecutor. Cole v. State, 83 Okla. Cr. 254, 175 P. 2d 376.

The defendant, a minister of the Gospel, was accused of committing the crime of sodomy on the person of William O. Wright, a 14 year old boy, on June 19, 1943, while the youth was spending the night with the defendant at the defendant’s home. The evidence showed that the defendant, an unmarried man, had been helping conduct a revival meeting at the church which was attended by the prosecuting witness, his mother, brothers and sisters.

William O. Wright testified that on the evening of June 19, 1943, the defendant came to his house for supper; that after supper, he and his brothers, sisters and mother accompanied by the defendant went to the church services which lasted until about 11:00 o’clock; that the witness’s father at that time was working in Alaska; that after the services ended about 11:00 p.m., the parties returned to the Wright farm where they had a light lunch. The defendant then asked William if he could go home with him and cut some weeds for him the next day and witness agreed to go if it was agreeable with his mother. The defendant asked Mrs. Wright if William could spend the night with him and cut some weeds for him next day and she gave her consent. After the witness and defendant returned to defendant’s home, they went to bed in the same bed and it was shortly after they retired that the witness testified the defendant committed the acts which constitute sodomy. The acts are too vulgar to be described in this opinion, but they are almost identical with the acts which are set forth in the opinion of this court in Cole v. State, supra. The witness testified that defendant held him tight and threatened him in order to accomplish his purpose. Witness was taken home early the next morning but said that he was too embarrassed .to tell his mother what had occurred and he did not relate what had occurred until several months later when the defendant evidently became involved in allegedly committing certain similar crimes. : '

Mrs. Wright, the mother of the prosecuting witness, corroborated the testimony of the defendant to the extent that she related the association with the defendant and the fact that defendant asked her to give her consent to her son spending the night with him so that he could cut some weeds for him the next morning. The defendant resided in the town of Ringwood in Major county, while Mrs. Wright and her family lived on a farm near Longdale. She further testified that the defendant brought her son home the next morning and she was surprised at him bringing him so soon because William had gone to defendant’s place presumably for the purpose of cutting weeds. That defendant said when he brought William home that he had to go to Enid and that he would not be able to attend the services that night and excused himself and left immediately to go to Enid.

There was no testimony at all presented on behalf of defendant.

Counsel for defendant cited the case of Borden v. State, 36 Okla. Cr. 69, 252 P. 446, in which this court in affirming a conviction for sodomy recognized the analogy between the crime of sodomy and that of rape. Counsel then quoted the law of this state as set forth in the case of Gullatt v. State, 80 Okla. Cr. 208, 158 P. 2d 353, 354, in which it is stated:

“While it is the law that a conviction for rape may be sustained upon the uncorroborated evidence of the outraged female, yet, it is equally well settled that the appellate court will closely scrutinize the testimony upon which the conviction was obtained, and, if it appears incredible and too unsubstantial to make it the basis of a judgment, will reverse the judgment.
“It is the natural impulse of every honest and virtuous female to flee from threatened outrage, and, if assaulted, to make complaint at the first opportunity, and, where this is not done and no reasonable explanation is made, it is a strong, but not a conclusive, presumption against the truth of the accusation.”

We recognize that the rule above quoted in Gullatt v. State, supra, as to the quantum of proof necessary to sustain a conviction for rape should likewise apply to a case of sodomy.

However, we have carefully read the testimony of the prosecuting witness. He detailed very minutely all of the acts done by the defendant and his testimony appears to be clear and convincing. Although there is no corroboration of the prosecuting witness as to the acts committed by the defendant which constitute the abominable crime of sodomy, if this court follows the rule applied in rape cases, the conviction may be sustained upon the uncorroborated evidence of the prosecuting witness, unless such testimony appears incredible and so unsubstantial as to make it unworthy of belief. Gordon v. State, 75 Okla. Cr. 356, 131 P. 2d 503. Malone v. State, 40 Okla. Cr. 102, 267 P. 486. Work v. State, 63 Okla. Cr. 433, 75 P. 2d 1161.

The testimony of William Wright was positive and credible. No evidence was offered on behalf of the defendant to show that any malice existed on behalf of the prosecuting witness or any member of the family, or to show that there was any motive on the part of the prosecuting witness to testify falsely against the accused.

It is our opinion that the testimony of the prosecuting witness was so substantial in its nature as to raise an issue of fact for the determination of the jury. The jurors heard the witnesses, saw their demeanor on the witness stand, heard the argument of counsel, and rendered their verdict of guilty. There is no showing nor contention that, the jury acted from partiality, passion or prejudice. It is; apparent that the judgment and sentence of the district court of Major county should be affirmed. It is so ordered.

BAREFOOT, P. J., and BRETT, J., concur.