text:
    BLANE KENT et al. v. STATE.
    No. A-8310.
    April 16, 1932.
    (10 Pac. [2d] 733.)
    Wilcox & Swank, for plaintiffs in error.
    J. Berry King, Atty. Gen., and Gus Rinehart. Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiffs in error, hereinafter called defendants, were convicted in the district court of Payne county of the crime of assault with intent to do bodily harm, and their punishment fixed by the jury at imprisonment, for each of them, in the penitentiary for one year and one day.

Defendants complain that they were prevented from having a fair trial by reason of the unreasonable and prejudicial attitude and remarks of the trial judge, in the presence of the jury, during the progress of the trial.

It was the contention of the defendant Blane Kent that T. H. Dillard, who had been commissioned as a special peace officer for the Old Settlers’ picnic near Perkins, had made an unprovoked and vicious assault upon Kent’s son, and had rendered him unconscious; that when information of this assault was brought to Kent, he hunted the officer to find out the cause of the trouble; that the officer assaulted him; and that all that he did was in his own self-defense.

During the cross-examination of W. H. Wilson, a witness for the defendant, when he was asked if he was present at the athletic tent, the court said, in the presence of the jury:

“Now, you are still in that tent. We have had enough about that tent, under the present condition of things in this case. We are not trying that thing up there, and I have told you that three or four times. Get down to the matter of this accident, and the scene of the thing under investigation. There has been plenty gone in as to what happened at the tent and I don’t care to investigate that any further, it is not a matter for inquiry, in the tent, that is a side issue. By Mr. Simcoe: We Would like to put on one witness to' show what happened in the tent. By the Court: Well, I don’t think it is material in this case what happened at the tent. If this man beat Bennie all to pieces that wouldn’t justify these defendants hunting him up and assaulting him, so what is the use of going over the testimony of that transaction up there? We admitted it in here as a beginning. It is hardly a part of the res gestae, but we let it in to explain that situation. I will permit you to use this witness oh that.”

At this stage of the case, Solomon Kent and Wilson had testified for the defendant and at which time the court said:

“Well, go ahead and put on your evidence if you have got any, about this affair under investigation. By Mr. Swank: We have got plenty of evidence. By the Court: I haven’t heard any yet. By Mr. Swank: We except. By the Court: Well, you have it and I will give you a thousand in the event yon want them. The court has admonished counsel several times to proceed with the evidence concerning the real transaction under investigation here, and thus far counsel has failed to do that, or has refused to do it, and the court is insisting, that counsel proceed with his defense in this case at this time. By Mr. Swank: Exception.”

During the cross-examination of defendant’s witness A. D. Collins, he was trying to explain his conclusion as to the good reputation of defendant Blane Kent, when the trial judge broke into the middle of a question and ordered the witness off the stand. The record is as follows:

“Q. What is not quite right. General reputation— By the Court: Well, we have had enough from this witness; that is all.”

Emma Kent was called as a witness by defendant. She does not speak English, and accordingly it was necessary to use an interpreter. Solomon Kent, her son, was sworn as interpreter, and the state objected to his act-. ing as interpreter on the ground that he was an interested person. The record is as follows:

“By Mr. Horton: I want to object to Solomon Kent he being an interested person acting as interpreter in the case. By the Court:- Well, the jury knows that. Go ahead.”

In Smith v. State ex rel. Gallaher, 12 Okla. Cr. 513, 159 Pac. 941; Simmons v. State, 31 Okla. Cr. 317, 238 Pac. 871; Brooks v. State, 33 Okla. Cr. 296, 243 Pac. 998; Thomas v. State, 36 Okla. Cr. 209, 253 Pac. 514, and Bramble v. State, 37 Okla. Cr. 35, 255 Pac. 1104, 1105, this court reversed convictions where the remarks of the court were not as uncalled for or prejudicial as they are in the case at bar.

The trial judge was mistaken when he said that what occurred in the tent had nothing to do with the case on trial. This evidence was admissible for the purpose of showing who was the probable aggressor, and in mitigation of the punishment.

The other remarks set out in the record were entirely uncalled for and' highly prejudicial, and undoubtedly prevented the defendants from having that fair and impartial trial guaranteed to them by the Constitution. Trial courts should proceed with dignity, rule with impartiality, and say as little as possible in the trial of criminal cases.

The contention of defendants that they were prevented from having a fair trial because of the prejudicial remarks of the trial judge is well taken. The cause is therefore reversed as to* each of them.

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


source: Caselaw Access Project

author: DAVENPORT, P. J.

license: Public Domain

text:
    C. T. HOLLINGSWORTH et al. v. STATE.
    No. A-8257.
    Feb. 19, 1932.
    Rehearing Denied April 23, 1932.
    (10 Pac. [2d] 458.)
    C. T. Lane and Glaseo & Ballard, for plaintiffs in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiffs in error, C. T. Hollingsworth, Ed Hollingsworth, and J. B. Hollings-worth, hereinafter referred to as the defendants, were convicted of maintaining* a public nuisance, and each sentenced to- pay a fine of $250 and to be imprisoned in the county jail for 60 days, and appeal.

After a careful examination of the record, it is not deemed necessary to- set out the evidence in full. It is sufficient in this case to refer to some of the testimony that was admitted by the court, over the objections of the defendants.

Several errors have been assigned, but the only assignment necessary to be considered is, that tbe court erred in admitting, over the objection of the defendants, irrelevant, incompetent, and immaterial testimony. This assignment relates to the action of the court in admitting the state’s Exhibit A, which is the affidavit for the search warrant, and Exhibit B, which is the search warrant. The recitals in the affidavit for the search warrant and the search warrant are substantially the same. The allegations in the affidavit tend to establish facts very material against the defendants and put in issue the character of the defendants. Williams v. State, 34 Okla. Cr. 359, 246 Pac. 895; Weeks v. State, 41 Okla. Cr. 95, 270 Pac. 858; Ford v. State, 45 Okla. Cr. 161, 282 Pac. 370.

We hold that in admitting the affidavit for the search warrant and the search warrant, over the objections of the defendants, the court erred, and the defendants ivere denied their constitutional right of confrontation by the witnesses. (Const, art. 1, § 20.)

The cause is reversed.

EDWARDS and CHAPPELL, JJ., concur.


author: EDWARDS, J.

text:
    MACK HAMILTON v. STATE.
    No. A-8298.
    April 23, 1932.
    (10 Pac. [2d] 734.)

      W. J. Hulsey, Lena Hulsey, Basil S. Null, and Bishop & Banta, for plaintiff in error.
    J. Berry King, Atty Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Seminole county of forgery in the second degree, and his punishment fixed at a term of one year in the state penitentiary.

The information charges defendant jointly with two others, Sams and Hendricks. Each of these codefendants testified for the state, in substance, that defendant assisted them in the commission of the forgery charged. Defendant did not take the stand, and offered no testimony.

The record discloses that at about the time charged certain numbered draft blanks were taken from a Harts-horne bank, and that a protectograph was procured from another place by one of the codefendants, which was used on the blank drafts which were later filled out and signed in the name of the cashier of the Hartshorne bank. Several of them were passed. The charge is based upon one in the sum of $32.50 which was negotiated to the Broadway Service Station at Seminole in the purchase of two automobile casings and $11 in money. It is argued the court erred in overruling defendant’s demurrer to the information on the ground of duplicity. This argument is directed to the allegation that:

“* * * Defendants * * * did then and there, willfully, unlawfully and feloniously forge, counterfeit and falsely make a check or draft purporting to be made by O. O. Dollins, cashier of Hartshorne National Bank, * * * which said forged false and counterfeited check or draft is in words and figures, as follows:
“ ‘Hartshorne National Bank, Hartshorne, Okla. Feb. 21, 1931.
“ ‘Pay to the Order of O. W. Carter $32.50, Exactly Thirty Two Dollars Fifty Cents. . . . Dollars. To the First National Bank & Trust Co. Oklahoma City, Oklahoma “ ‘O. O. Dollins,’

—and which said check or draft the said Vernon E. Sams, Clarence Hendricks and Max Hamilton did willfully, unlawfully and feloniously forge, counterfeit, pass and utter,” etc.

The argument is that the defendant cannot determine if he is prosecuted for the forging, counterfeiting, passing, and uttering a check of the bank, or a check of the cashier, Dollins; citing Wishard v. State, 5 Okla. Cr. 610, 115 Pac. 796. This argument is without merit. Defendant is apprised the exact words of the particular instrument he is charged with having forged, and he knows as well as the state whether it is the check of the hanking corporation or of O. 0. Dollins. Under this assignment defendant also argues that the information is duplicitous in charging the making, passing, counterfeiting, and uttering of the check; citing Wells v. Territory, 1 Okla. Cr. 469, 98 Pac. 483. The statute has not defined any crime in the mere making of an instrument such as is pleaded in the information. The possession of such instrument is a crime (section 2079, Comp. St. 1921), as is also the selling, exchanging, or delivering of such instrument with intent to have the same uttered or passed (section 2078, Comp. St. 1921), under which section the information here is drawn. The pleader evidently intended to charge defendant and his codefendants with one continuous crime of forgery in selling the draft alleged with the felonious intent to defraud. 12 R. C. L. 159, § 22 f; 22 C. J. 956, § 112. The allegation of making is merely a part of the entire transaction. The instructions of the court in No. 3 defines to the jury verbatim the offense defined by section 2079, and not the offense defined by section 2078. No exception was talien to the charge, and no* request made for any additional charge.

The contention is made that there is no sufficient corroboration of the testimony of the accomplices Sams and Hendricks, as required by section 2701, Comp. St. 1921. The witness Sams admitted his guilt; he testified he procured the check protectograph with which the amounts were stamped on the check or draft, and that he wrote out the check, and that defendant was not present. He further admitted he had pleaded guilty of embezzlement upon another charge not connected with these checks, and was under sentence to serve a term in the penitentiary. The witness Hendricks-testified he was 53 years old; that he had served five terms in the penitentiary, two at Leavenworth and three in the state penitentiary; that he had been a narcotic addict for 15 or 16 years; and that it had been 20 years since he had followed any honest occupation. The corroboration consists of testimony that defendant was in the customers’ vault of the Hartshorne bank a few days prior to the time these draft blanks were missing; that blank drafts such as were used in the forgery were in the vault where defendant could have procured them. It was shown that other patrons of the bank with lock boxes had access to this vault. Other testimony claimed as corroboration is that, about three days after Hendricks had negotiated this draft by buying, certain tires and receiving the difference in cash, defendant in a car came to this filling station. Hendricks was there and asked to ride with him; defendant consented, and Hendricks put the tires in defendant’s car and left with him. This is the only testimony tending to corroborate Sams and Hendricks. This testimony creates a strong suspicion, because it shows opportunity for defendant to have aided or abetted or to have profited from the proceeds of the crime. The circumstances proven are too remote. This testimony is insufficient corroboration under the requirement of the statute and many decisions of this court. Kirk v. State, 10 Okla. Cr. 281, 135 Pac. 1156; Wever v. State, 22 Okla. Cr. 414, 211 Pac. 1062; Livingston v. State, 29 Okla. Cr. 247, 233 Pac. 235; Underhill, Crim. Ev. (3d Ed.) p. 161, § 130.

Several other matters are argued in the briefs, but, since the case must be reversed for insufficient corroboration, it is not necessary to discuss them.

The case is reversed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    L. E. WILLIAMS v. STATE.
    No. A-8287.
    April 23, 1932.
    (10 Pac. [2d] 731.)

      Gill & Caldwell, for plaintiff in error.
    The Attorney General, for the State.
   DAVENPORT, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county of the crime of maintaining a public nuisance, and his punishment fixed by the jury at a fine of $500 and imprisonment in the county jail for a period of six months.

Defendant complains that the court erred in giving the following instruction to the jury:

“You are further instructed that evidence of a former raid and arrest of the defendant is admissible solely for impeachment purposes and if you find that such evidence impeaches or tends to impeach the defendant, then, and in that event, you may consider it for that purpose only. In this connection, however, you are instructed that you cannot convict the defendant upon the testimony of a former raid and arrest.”

In Mitchell v. State, 2 Okla. Cr. 442, 101 Pac. 1100, this court said:

“It is error for the trial court to single out the accused, and instruct the jury upon the credibility of his evidence. The accused, in respect to his evidence, should be treated in the court’s charge in the same manner as other witnesses in the case.”

This rule was followed in Clark et al. v. State, 4 Okla. Cr. 368, 111 Pac. 659; Heacock v. State, 4 Okla. Cr. 606, 112 Pac. 949; Peck v. State, 5 Okla. Cr. 104, 113 Pac. 200; and Smith v. State, 5 Okla. Cr. 67, 113 Pac. 204.

The state, upon leave of court, withdrew the case-made for correction, claiming that the record in the same was incorrect. It appears from the record that the instruction complained of was one of a number of stock instructions and was actually given by the court. In the light of the authorities above cited, trial courts should not give this instruction. Because the giving of the same was erroneous, the cause is reversed.

CHAPPELL and EDWARDS, JJ., concur.


author: CHAPPELL, J.

text:
    S. B. McFADDEN v. STATE.
    No. A-8291.
    April 9, 1932.
    Rehearing Denied May 7, 1932.
    (10 Pac. [2d] 731.)
    E. W. Snoddy and Guy D. Talbot, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the:district court of Alfalfa county of the crime of manslaughter in the second degree, and his punishment fixed by the court at a fine of $1,000.

The information charged defendant with driving a motor vehicle upon the public highway in Alfalfa county while under the influence of intoxicating liquor, and without lights. The evidence of the state was: That J. W. Constant, who was a member of the Fish and Game Commission of Oklahoma, and H. ,S. Perry had been out to the fish hatchery not far from Cherokee; that they were returning to Cherokee at about 8:30 o’clock in the evening; that they had a flat tire on the right hind wheel of the car and pulled off of the pavement and out to the side of the road to fix the same; that Constant was taking the spare tire off of the back, while Perry was jacking up the wheel; that defendant, driving a Dodge sedan without lights, ran into the back of Constant’s car, striking Perry and injuring him so that he died in a short time; that defendant’s car struck Constant’s car two or three times, and each time struck Constant; that both cars went into a ditch at the side of the road about 60 feet from where defendant’s car first struck Perry; that defendant later got out of his car and told a bystander he was sorry —-he guessed he had killed a good friend; that defendant was intoxicated; that after an ambulance was called, and Perry and Constant taken to Cherokee, defendant got into his car, and, notwithstanding the fact that the steering wheel was broken and the radius rods bent, backed his car out of the ditch and across the road and attempted to drive off in it; that a bystander took the keys away from him and stopped the car; that defendant was taken to Cherokee by another party and there turned over to the officers; that he pounded on his cell and created a tremendous disturbance in the jail; and that he was still intoxicated when taken to jail; that to other parties defendant denied that he had had any accident or had anything to do with the injury to Constant and Perry.

The defense was a denial that defendant was intoxi-eated, and a claim that he was blinded by the lights of another car and ran into Constant’s car by accident.

The only question argued in the brief is that the evidence is insufficient to support the verdict of the jury.

This conflict in the evidence was for the jury. They found the issues in favor of the state, and their verdict is supported by sufficient evidence.

The cause is therefore affirmed.

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


text:
    F. O. SMITH v. STATE.
    No. A-8296.
    April 9, 1932.
    Rehearing Denied May 7, 1932.
    (10 Pac. [2d] 1101.)
    L. Z. Lasley, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Alfalfa county of the crime of a second, and subsequent violation of the prohibitory liquor laws, and his punishment fixed by the jury at a fine of f500 and imprisonment in the state penitentiary for a period of two years.

The evidence of the state was that defendant had been found guilty prior to the year 1926 of violation of the prohibitory liquor laws of Alfalfa county; that on the 20th day of February, 1926, defendant pleaded guilty in the county court of Alfalfa county of selling intoxicating liquor, and was confined in the county jail for a period of six months and paid a fine of $500; that defendant had been convicted in the county court of Grant county of violation of the prohibitory liquor laws; that on the 26th day of January, 1931, he sold a quart of whisky to one Jess Hempsmeyer; the testimony of Hempsmeyer was corroborated by Elmer Thorp and Ben Beadman, who accompanied him at the time the whisky was purchased from defendant.

Defendant, testifying for himself, admitted that Hempsmeyer, Thorp, Beadman, and Otto Beard were at his place at the time the whisky was claimed to have been sold, but denied that he sold any whisky to' Hempsmeyer.

Defendant makes only two contentions:

First, that, if any sale of whisky was made, it was to Thorp and Beadman, and not to Hempsmeyer.

Hempsmeyer testified that the four parties went to defendant’s home in his car; that he had some money of his own and Thorp and Beadman gave him $2 more; that he bought the whisky from defendant and paid for it out of the money in his pocket.

Second, defendant contends that Hempsmeyer was an accomplice, and that his evidence was not sufficiently corroborated to connect the defendant with the sale of the liquor.

Under the evidence of the state, the witness Hemps-meyer was not an accomplice. His testimony is also corroborated by two other witnesses as to the purchase of the whisky from defendant.

These contentions being without any merit, the cause is affirmed.

EDWARDS, J., concurs. DAVENPORT, P. J., dissents.


text:
    CHARLES HUCKABE v. STATE.
    No. A-8252.
    May 7, 1932.
    (11 Pac. [2d] 212.)
    See, also, 52 Okla. Cr. 342, 5 Pac. (2d) 408.
    Williams & Sasseen, for plaintiff in error.
    The Attorney General, for the .State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Greer county of the unlawful possession of intoxicating liquor, and his punishment, fixed by the jury at a fine of $150 and imprisonment in the county jail for a period óf 30 days.

The appeal to this court was originally by transcript, with application for an order requiring Greer county to furnish a transcript of the evidence at the expense of the county. This application was granted, and the case is now here upon the whole record.

Defendant contends, first, that the court erred in giving to the jury the following instruction:

“All persons concerned in the commission of a misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals and may be prosecuted and convicted as such.”

This instruction is an exact copy of section 1521, C. O. S. 1921. Defendant’s principal contention is that it was error for the court to refuse to give defendant’s additional requested instruction, defining the words “aid and abet.” There are several reasons why this contention is without merit: First, the words “aid and abet” are commonly used and understood by persons of ordinary understanding; any attempt to explain them could only lead to confusion. Again, the issue of principal and accessory was not properly in the case, and no instruction was necessary thereon.

Defendant next contends that the evidence is insufficient to support the verdict of the jury.

The assistant county attorney testified that he, with other officers, had gone to' raid the home and place of business of K. W. Butler; that defendant went out of Butler’s store with a half gallon of whisky; that he walked some distance from the store with another man and handed the other man the container to take a drink; that, after they both drank, defendant put the lid back on the container, set the liquor down in a concealed place, and said, “If you want more it will be here”; that, after defendant was arrested, he said he did not believe the stuff was whisky, and asked the officer to let him see it; that, when the container was handed to him, he threw it on the floor and attempted to destroy the evidence. He is corroborated by other officers testifying for the state. Defendant did not testify.

This evidence was sufficient to support the verdict of the jury.

For the reasons stated, the cause is affirmed.

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


text:
    Ex parte FORREST BENIGHT.
    No. A-8379.
    May 7, 1932.
    (11 Pac. [2d] 208.)

      P. E. Gumm, for petitioner.
    J. Berry King, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for respondent.
   EDWARDS, J.

This is an original proceeding in habeas corpus. Petitioner alleges he is unlawfully restrained by the sheriff of Tulsa county. That he was charged and convicted in the court of common pleas for an alleged violation of article 2, chap. 24, Session Laws 1931, commonly known as the Barber’s bill. That the alleged offense was a failure of petitioner to obtain .a barber’s certificate from the board of examiners provided for in said act. That the restraint is illegal and the court without jurisdiction, because said Barbers’ bill never became a law. That said bill passed the House and Senate on or about March 11, 1931, and was presented to the Governor for his approval or disapproval. That within five days thereafter said bill was vetoed by the Governor, and was returned to the House with his objections thereto; that it was never passed over the veto as required by section 11, art. 6. Respondent admitted the restraint of petitioner, denied that said act did not become a law, and pleaded the enrolled hill filed in the office of the secretary of state, together with letter of transmittal from the Governor dated April 10, 1931, stating the Governor had said bill in his possession more than five days, and it became a law without his signature. The case has been well briefed and ably presented by both counsel for petitioner and the Assistant Attorney General.

Respondent’s contention is that an enrolled bill cannot be impeached by the House or the Senate Journal or by other evidence, but, if the court should hold a bill can be so> impeached by showing that after it had passed both houses and had been sent to* the Governor, it had been vetoed, then the message of the Governor is not a veto, but an unauthorized communication of no effect. From the pleadings, admissions, and the proof tentatively admitted, we gather that this is what really took place: House Bill No. 23 passed the House and the Senate and was duly signed by the Acting Speaker on March 10, 1931, and was signed by the President on March 11, 1931. It was then on March 13, 1931, transmitted to the Governor. On March 16 the Governor sent the bill with a lengthy communication to’ the House suggesting various changes and requesting that the amendments suggested be inserted, but, among other things, stating: “I wish to call attention to my message on this bill to show you I am in entire accord with its purposes.” He nowhere in this communication stated that he had or would veto or disapprove the bill. The House upon receipt of this communication discussed the bill and made the amendments suggested, and sent it to the Senate. The Senate then did not act. A joint conference committee of the House and Senate met and made a conference report recommending that the bill be returned to the Governor, and that all records pertaining to the communication of the Gov-emor and the subsequent action of tbe House and the Senate thereon be expunged, which report was adopted by both houses on April 8, 1931. Thereafter, on April 10, the Governor transmitted the enrolled bill to the secretary of state; the letter of transmittal saying, he had kept said bill in his office for more than five days while the Legislature was in session, and that it became a law without his signature.

Section 11, art. 6, of the Constitution, lays down the duty of the Governor in the enactment of legislation. Under this section, a bill passed by both branches of the Legislature becomes a law: (1) By being signed by the Governor within five days (Sunday excepted) after presentation to him; (2) by the Governor failing or refusing to sign the bill within said five-day period, and keeping possession and control of said bill during said time; (3) in the instance where the Legislature prevents the return of said bill within said five-day period by adjournment, and in this event the Governor must sign said bill within 15 days after such adjournment in order for it to become a law; and (4) when the Governor returns the bill to the house in which it originated, with his objection, within five-day period, and each house repasses said bill by a vote of two-thirds of the members elected to each house.

Since the Governor did not sign this bill, and it was not, after being sent to the Governor and his suggestions made to the House, again passed by a two-thirds vote of each house, the conditions enumerated above as 1, 3, and 4 have no application. If the bill is law, it became such under condition No. 2. At the outset we are met with the contention that this enrolled bill signed by the officers of the House and Senate and not by the Governor and filed in the office of the secretary of state, imports absolute verity, and that proof by the journals or otherwise that the bill did not become a law is incompetent. The offer of proof was tentatively admitted subject to a determination as to its competency. The courts of many states have held that the journal of the two branches of the Legislature may be looked to for the purpose of impeaching a bill. On the other hand, many of the states have held that an enrolled bill is conclusive and may not be impeached by resorting to the legislative journal. On this point, the states appear to be about evenly divided. The question on a like state of facts has not been before this court, though a somewhat similar, but not the precise, question, has been considered by the Supreme Court in the cases of Atchison, T. & S. F. Ry. Co. v. State, 28 Okla. 94, 113 Pac. 921, 925, 40 L. R. A. (N. S.) 1; Coyle v. Smith et al., 28 Okla. 121, 113 Pac. 944; McNeal v. Ritterbusch et al., 29 Okla. 223, 116 Pac. 778, 779; Johnson v. Grady County, 50 Okla. 188, 150 Pac. 497, 506; Western Union Tel. Co. v. Hankins, 104 Okla. 111, 230 Pac. 857. The decisions are thoroughly annotated in 40 L. R. A. (N. S.) 1.

The case of Atchison, T. & S. F. Ry. Co. v. State, supra, cites with approval Sherman v. Story, 30 Cal. 253, 89 Am. Dec. 93, as follows:

“Better, far better, that a provision should oecasionly find its way into the statute through mistake, or even fraud, than that every act, state and national, should at any and all times be liable to be put in issue and impeached by the journals, loose papers of the Legislature, and parol evidence. Such a state of uncertainty in the statute laws of the land would lead to mischiefs absolutely intolerable.”

In syllabus 1, it is beld:

“When an enrolled bill has been signed by the Speaker of the House and by the President of the Senate, respectively, in the presence of those bodies immediately after the bill has been read publicly at length, and the same has been approved by the Governor and deposited in the office of the Secretary of State, it is not competent to show from the journals of the House that the act so authenticated, approved, and deposited did not pass in the form in which it was signed by the presiding officers and approved by the Governor.”

In McNeal v. Ritterbusch, supra, the court said:

“As we have recently held in Atchison, T. & S. F. Ry. Co. v. State [28 Okla. 94], 113 Pac. 921 [40 L. R. A. (N. ,S.) 1], in effect, that an enrolled bill, duly signed by the Speaker of the House and by the President of the Senate, in the presence of those bodies, immediately after the bill has been read publicly at length, and later approved by the Governor and deposited in the office of the Secretary of State, as here, is presumed to have been duly passed by the Legislature, and that it is incompetent to' prove by the journals of the Legislature that it did not pass in that form, there is nothing in the contention that the enrolled Senate Bill No. 245, is found in the office of the Secretary, of .State (act approved May 29, 1908), materially differed from the bill actually passed by the Legislature.”

It is suggested that some little doubt was cast on the soundness of this rule by the case of Johnson v. Grady County, supra, where the court said:

“When we propose to look into the journals of the two' Houses of that session, we encounter some difficulty, because this court, in a very strong opinion by Justice Hayes in the case of Atchison, T. & S. F. Ry. Co. v. State, 28 Okla. 94, 113 Pac. 921, 40 L. R. A. (N. S.) 1, holds that the rule obtains in this state that an enrolled bill, duly filed in the office of the Secretary of State as the law provides, imports absolute verity, and that the same cannot be impeached by the legislative journals, and that it is not competent to show by the journals that the act was not regularly passed, and that, when such an act was called into question, the courts could look to the enrolled bill only. This case follows the unanswerable case of Field v. Clark, 143 U. S. 649, 12 S. Ct. 495, 36 L. Ed. 294, by Justice Harlan. To the same effect is McNeal v. Ritterbusch, 29 Okla. 223, 116 Pac. 778.”

Similar language is used in the fourth syllabus. In the latter case, however, the enrolled bill could not be found and did not appear in the printed statutes certified by the secretary of state, as is made clear by the opinion of the court in that case. The enrolled bill here being in existence and on a file in the office of the secretary of state, and it also appearing in the printed statutes certified by the secretary of state (the Oklahoma Session Laws 1931), the implied exception to the rule in that case does not apply. The rule is reiterated in Western Union Tel. Co. v. Hankins, supra. Petitioner insists that in each of the Oklahoma cases cited the journal was examined on some phase. We are in agreement with the rule of conclusiveness announced by. our Supreme Court, upon the state of facts shown in the various cases cited. That is, that the enrolled bill is conclusive as to all matters not required by the Constitution to be shown on the journal, and as to all matters required to be shown where the journals are silent as to compliance with constitutional requirements. We are not prepared to say, however, that under any and every state of facts the journal may not be examined to impeach an enrolled bill. If a bill shall pass both branches and be signed by the proper officer of each branch and be transmitted to the Governor, and he shall veto and return it to the House in which it originated, and it is not passed over the veto, but shall later appear in tbe office of tbe secretary of state, then surely tbe fact of yeto and failure to pass over tbe veto may be shown in a proceeding to determine tbe existence or validity of the bill as law.

When a bill has been vetoed by tbe Governor, it cannot become a law unless and until it shall have been passed over said veto in tbe manner required by section 11, art. 6, Constitution. Such mandatory constitutional requirements cannot be ignored nor dispensed with. This view is strengthened by tbe very recent decision of tbe Obla-boma .Supreme Court in Nation et al. v. Chism et al., 154 Okla. 50, 6 Pac. (2d) 767. In that case the plaintiffs in error brought an action in tbe district court to- enjoin defendants in error from enforcing tbe Barbers’ bill (tbe act in question in tbe instant case). Tbe petition, among other things, alleged that tbe purported act was never enacted by tbe Legislature, and never became a law. Tbe district court sustained a demurrer to this petition. Tbe plaintiff appealed, and the Supreme Court reversed the case and remanded it to tbe lower court, with directions to. overrule tbe demurrer, and for further proceedings not inconsistent with tbe opinion. Since tbe enrolled bill was pleaded, tbe meaning of tbe opinion in that case must be that tbe plaintiff could go behind tbe enrolled bill and show that it bad not been enacted; otherwise tbe lower court would not have been directed to overrule tbe demurrer and proceed' further. If tbe enrolled bill imported absolute verity, it would be useless to overrule the demurrer and proceed further with tbe case.

The communication of tbe Governor to tbe House, hereinbefore referred to, suggesting certain amendments in House Bill No. 23, is not and does not purport to be a veto. In Peebly v. Childers, 95 Okla. 40, 217 Pac. 1049, it is held by the court in syllabus 3 and 4:

“While engaged in considering bills which have passed both houses of the Legislature, and which are presented to- him for approval or disapproval, the Governor is acting in a legislative capacity and not as an executive. While exercising this function, the Governor is a special agent, with po wers limited by the Constitution, and he can only act in the specified mode, and can exercise only the granted powers. If he attempts to- exercise them in a different mode, or to exercise powers not given, his act will be wholly ineffectual for any and every purpose.” City of Lowell v. Dadman, 191 Mass. 370, 77 N. E. 717.

The communication states that the Governor is in sympathy with the bill; it was evidently made on the assumption that he had the right on his own initiative to return the bill to the House for amendment. The Governor had authority either to- approve and sign the bill or to return it with his objections to the House in which it originated. Section 11, art. 6, Const. As he did not do this, the bill as a matter of law remained in his possession, and, at the expiration of five days, it became a law without his signature.

The writ is therefore denied.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    MANUEL GUESS v. STATE.
    No. A-8266.
    April 9, 1932.
    Rehearing Denied May 14, 1932.
    (11 Pac. [2d] 199.)

      Lydick & Brett, for plaintiff in error. .
    J. Berry King, Atty. Gen., and Robert D. Crowe, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county of the crime of forgery in the second degree, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of six years.

The evidence of the state was that on the 24th day of February, 1931, defendant, under the name of E. O. Reed, opened a deposit and checking account with the Capitol State Bank of Oklahoma City, depositing at said time $100 in currency; that a regular deposit slip was made out and defendant given a passbook with an entry therein showing a deposit of $100; that on February 26, 1931, defendant deposited $235, and was given credit for same in the passbook; that said deposit consisted of $50 in currency and a check for $185; that on the 27th day of February, 1931, defendant deposited $260 and was given credit for the same in the passbook; that said deposit consisted of a check for $165, which is the forged item, and a check for $145, making a total of $310, less $50 cash paid defendant at the time the deposit was made, leaving a net total of $260; that the check for $185, the check for $165, and the check for $145 were each returned by the banks upon which they were drawn, unpaid and marked “no funds”; that E. O. Need is a fictitious person, and that defendant forged the name of W. D. Eagsdale; that on the 28th day of February, 1931, defendant executed a check for $135, payable to the order of J. H. Jackson; that payment was not made to Jackson on this check because he was unable to identify himself at the bank; that when defendant was first arrested he said the checks had been given to him by a man out in the oil field, but that he was unable to produce the man'; that later, in the same conversation, defendant said: “Well, you know how it is when a man has got his back against the wall — he will do most anything for money.” Defendant did not take the witness stand and offered no evidence in his defense.

The errors complained of by defendant in their final analysis amount to but one question; that the evidence is insufficient to support the verdict of the jury.

The particular complaint which defendant makes is that he could not be guilty of forgery under the information and the evidence, because he received no money consideration for the forged check.

The charging part of the information is:

“That the defendant then and there being, did then and there, willfully, unlawfully, wrongfully, knowingly and feloniously deliver for a valuable consideration, to the Capitol .State Bank of Oklahoma City, a certain forged check,” etc.

Section 2078, C. O. S. 1921, provides:

“Any person who sells, exchanges or delivers for any consideration any forged or counterfeited promissory note, check, bill, draft, or other evidence of debt, or engagement for the payment of money absolutely, or upon any contingency, knowing, the same to be forged or counterfeited, with intent to have the same uttered or passed, or who offers any such note or other instrument for sale, exchange or delivery for any consideration, with the like knowledge and intent, or who -receives any such note or other instrument upon a sale, exchange or delivery for any consideration with the like knowledge and intent, is guilty of forgery in the second degree.”

Under this statute, if a person delivers, for any consideration, a forged check, knowing it to be forged, and with intent to have the same uttered or passed, he is guilty of second-degree forgery.

It appears from the record that defendant forged the name of W. D. Ragsdale to the check and then deposited it with the Capitol State Bank, by delivering the same to one of the tellers, with intent to defraud the bank. This check was accepted by the bank for collection and deposit made by deposit slip and entry in the passbook in the amount of the check. The check was drawn on the Farmers’ Bank of Quitman, Mo., and was sent to said bank for collection and returned in the usual course marked “No account.”

Section 5019, C. Q. S. 1921, defines “consideration” as follows:

“Any benefit conferred, or agreed to be conferred upon the promisor, by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered or agreed to be suffered by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor, is a good consideration for a promise.”

Under this section, “consideration” is any benefit conferred. It appears from the record that defendant was paid $50 in cash at the time the $165 forged check and the $145 check, which was later returned not paid, were deposited; that he did not finally receive in cash the full amount represented by the check because of the diligence of the bank in promptly presenting same for collection to the bank upon which it was drawn.

This court has had under consideration the question of the consideration necessary to be received at the time the forged instrument is presented, in Wilborn v. State, 26 Okla. Cr. 437, 224 Pac. 214, and in Ausmus v. State, 43 Okla. Cr. 66, 277 Pac. 259, and there determined this issue adversely to defendant’s contention.

It reasonably appears from the record that defendant, by opening the account in a fictitious name and within three days depositing checks totaling $495, one at least of which was forged, and the other two unpaid for want of funds, and by the drawing of the check to Jackson and receiving a portion of the cash himself, was planning to defraud the bank of a part or all of the money purporting to- be represented by the checks.

Defendant had a fair trial, and the evidence sustains the verdict of the jury. The cause is therefore affirmed.

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


text:
    LEE LUNSFORD v. STATE.
    No. A-8336.
    May 14, 1932.
    (11 Pac. [2d] 539.)

      W. M. Wallace and Fred Wallace, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Canadian county of having the possession of a still and was sentenced to pay a fine of $500 and to serve six months in the county jail.

Certain officers discovered a still on the premises of one Warren. They laid in wait for a day or more until defendant came to the place, and, according to the state’s testimony, put his hand on a part of the still, picked up a sack from a barrel of mash, shook it and placed it over the barrel, and, when the officers made their presence known, he started to run. Defendant testified he had been told by Warren that a still had been placed on his place, and that he went with Warren to search for the still; that they had separated; that he discovered the still and while looking at it the officers came up; that he was not nearer to it than five or ten steps and knew nothing of it until he discovered it.

Several assignments of error are argued; among others, that the evidence is insufficient. ■ There is ample competent evidence, and, if the record disclosed that the case was fairly tried, the judgment would be sustained.

The court erred in Ms instruction on circumstantial evidence. The instruction appears to leave the question of whether the case rests on circumstantial evidence to the jury, the court, in part, saying:

“You are instructed that if you find beyond a reasonable doubt from the evidence that the defendant exercised some actual physical control over the still, that is, that he arranged the sack on the mash barrel or otherwise worked with the still so as. to evidence control over same, then the state’s case is based upon direct evidence and if you find the defendant had such possession as charged, beyond a reasonable doubt you should convict him. However, in this regard, if you find the defendant was merely at the location of the still and exercised no actual control over it, then the state’s ease rests on what is known as circumstantial evidence, and in this connection you are instructed, * * *” etc.
Whether the case rests upon circumstantial evidence or not is not a question for the jury and does not depend on whether the jury finds the evidence to be true or false. Leaving to the jury the question of whether it is circumstantial or direct is confusing.

The court’s instruction on flight is also erroneous. It is as follows:

“You are instructed that evidence has been introduced to show that defendant attempted to run away or escape from the locality of the still, when interrupted by the officers. In this regard you are instructed that for a person to attempt to escape from the scene of the crime is evidence tending toward his guilt. And should he so construed in this case, provided that said defendant realized at such time that the persons interrupting him were officers. If you find that the defendant was not apprised of this fact or had reasonable belief that said persons were not officers then the attempt to leave the premises is not to be considered additional evidence of the defendant’s guilt. (Italics ours.)

The vice of the instruction is that, considered as a whole, it assumes that defendant attempted to flee. This is a question of fact that should have been left to the jury, under proper instructions. Bruner v. State, 31 Okla. Cr. 351, 238 Pac. 1000; Sprouse v. State, 52 Okla. Cr. 184, 3 Pac. (2d) 918.

Also the court erred in giving the jury an additional instruction, orally. The record discloses that during the course of the argument counsel for defendant was evidently arguing to' the jury the court’s instruction No. 5, the instruction on circumstantial evidence in part above quoted. The court thereupon stopped the argument and proceeded to' tell the jury the meaning of the court in this instruction. The oral explanation does not help the situation. The law requires instructions to be in writing, including any material changes or modifications. Section 2687, Comp. Stat. 1921; Bird v. State, 22 Okla. Cr. 263, 210 Pac. 925; Walters v. State, 45 Okla. Cr. 429, 283 Pac. 1033 ; Elms v. State, 53 Okla. Cr. 268, 10 Pac. (2d) 728.

Por the reasons assigned, the case is reversed and remanded.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    CARL MONCRIEF v. STATE.
    No. A-8324.
    May 14, 1932.

      (11 Pac. [2d] 538.)

      Wilkinson & Wilkinson, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Stephens county of the unlawful possession of intoxicating liquor, and his punishment fixed by the jury at a fine of $150 and imprisonment in the county jail for a period of 30 days.

The evidence of the state was that the officers had a search warrant, and on searching the premises of the defendant found 11 gallons of whisky, a 75-gallon still, a lot of barrels, some mash, and a one-arm Johnny pump; that the still and everything was connected up and ready for use; that a dim road led from the defendant’s house to a plum thicket about a quarter of a mile away and ended at the still; that no trail led from any other house in the vicinity to the still; that defendant had a truck; that a search of defendant’s house led to the finding of a five-gallon jug with a small amount of whisky in it and some jars.

Defendant, testifying for himself, claimed to have leased part of the premises to other parties, but produced no witness to support this claim. His story of his whereabouts prior to-, and at the time of, the raid and afterward is vague and unsatisfactory.

Defendant first contends .that the evidence is insufficient to support the verdict of the jury. There is no merit in this contention.

Defendant next contends that the county attorney was guilty of misconduct in the cross-examination of defendant. The following questions and answers appear in the record:

“Q. Have you ever been convicted of stealing cattle in this county? A. No, I had a case here. * * * Q. Charged with stealing cattle and convicted? A. No. Mr. Wilkinson: Defendant moves that the question and answer be stricken from the record and that the jury be instructed not to consider the question of the county attorney and the answer. By the Court: Overruled. By Mr. Wilkinson: Exceptions. Q. You said you had a case here for cow stealing, didn’t you? Mr. Wilkinson: Object to that as incompetent, irrelevant and immaterial. (No ruling.) A. Yes. Q. Where did you deliver them? By Mr. Wilkinson: That is the third repetition of that question.”

In his direct examination, defendant had testified that he was absent from home on the day the raid was made, delivering some cattle in Oklahoma City. He was uncertain as to whether this was the 30th day of June, or the 1st, 2nd, 3rd or 4th of July. Defendant produced no witness to corroborate his statement that he was delivering cattle for Bud Farris. Defendant testified that he arrived in Oklahoma City at about 3 o’clock a. m. with the cattle, but was vague and uncertain as to where he took the cattle, who bought them, or the circumstances surrounding the same.

This cross-examination was directed to trying to ascertain how defendant came to be in possession of the cattle, and if they were not the same cattle he was charged with stealing. While the cross-examination went too far and was improper as to some of the questions, yet, in the light of the whole record, we cannot say that it is such an error as requires a reversal of the case.

Defendant next contends that the court erred in commenting on the weight of the evidence in the presence of the jury.

Defendant was contending that he was not in possession of the premises where the still was found, having subrented them on a crop share basis. The record is as follows:

“Q. If they were making a share crop for you, who had charge of the premises? A. They did over their part. Q. You had possession of your part? A. Yes, sir. Q. That was half of it, wasn’t it? By Mr. Wilkinson: If the Court please, that is a question of law. He has said he had no control over this part where the still was. By the Court: A man who is making a share crop has no control over the land. By Mr. Wilkinson: We object to the statement of the Court in the presence of the jury.”

The defendant, by contending the question was one of law, opened the way for the court to dispose of the same by ruling thereon, and is not now in a position to contend that this was a comment on the weight of the evidence. Rather, it appears from the record that the court was trying to pass on the question of law raised by defendant’s counsel.

The cause is affirmed.

EDWARDS, J., concurs.


text:
    J. H. MUNSELL v. STATE.
    No. A-8344.
    May 14, 1932.
    (11 Pac. [2d] 537.)
    Jack W. Page, for plaintiff in error.

      J. Berry King, Attj. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was by information charged with the possession of intoxicating liquor, and entered a plea of guilty, and was by the court on the 20th day of October, 1931, sentenced to pay a fine of $50 and be imprisoned in the county jail for 60 days; sentence to run concurrent with a sentence imposed upon the defendant at the same term of court, in the case of the State of Oklahoma v. J. H. Munsel, No. 9008.

Defendant filed his motion to withdraw his plea of guilty, which motion was overruled by the court. The question raised by the defendant in this case is the same question raised in the case of J. H. Munsell v. State (No. A-8343), 53 Okla. Cr. 312, 11 Pac. (2d) 537, which was this day decided adversely to the defendant.

Following the holding of the court in No. A-8343, the judgment is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    J. H. MUNSELL v. STATE.
    No. A-8343.
    May 14, 1932.
    (11 Pac. [2d] 537.)

      Jack W. Page, for plaintiff in error.
    J. Berry King, Atty. G-en., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was by information charged with the possession of intoxicating liquor, and on the 20th day of October, 1931, appeared in court and entered his plea of guilty and was sentenced to serve a term of 60 days in jail and pay a fine of $50 and costs. On the 24th day of October, 1931, the defendant filed his motion to withdraw his plea of guilty, and on the 26th day of October, 1931, the motion to withdraw the plea of guilty was overruled.

The only error complained of by the defendant is: “That said court erred in overruling the motion of plaintiff in error to withdraw his plea of guilty and enter a plea of not guilty.”

This court has uniformly held that the granting or denying the motion to withdraw a plea of guilty is within the sound discretion of the trial court, and that its action will not be disturbed unless an abuse of discretion appears from the record. Fields v. State, 50 Okla. Cr. 331, 297 Pac. 822, and cases therein cited.

An examination of the record discloses no abuse of discretion in overruling the application to withdraw the plea of guilty. The case is therefore affirmed.

EDWARDS and CHAPPELL, JJ., concur.


author: PER CURIAM.

text:
    J. HANEY v. STATE.
    No. A-8330.
    May 14, 1932.
    (11 Pac. [2d] 536.)
    Wieck & Armstrong, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Kay county of having the unlawful possession of intoxicating liquor and his punishment fixed at a fine of f 50 and imprisonment in the county jail for a term of 30 days.

At the time charged, officers with a search warrant searched the filling station and premises of defendant. Near the station they found about seven half pints and two pints of whisky. The evidence is not clear whether this was on the lots occupied by the filling station or on the adjoining lot. Defendant denied any knowledge of the whisky, and offered evidence of previous good character. The evidence of possession was circumstantial.

The only assignment argued in which there is any merit is that the court erred in refusing, a requested instruction on circumstantial evidence. This court has re-reatedly held that, where the evidence is entirely circumstantial, it is error for the court to refuse to give a requested instruction on the law applicable thereto.

The case is reversed and remanded.


text:
    W. C. CAMPBELL v. STATE.
    No. A-8328.
    May 14, 1932.
    (11 Pac. [2d] 536.)
    W. B. Grigsby, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Cleveland county of having the unlawful possession of whisky, and was sentenced to‘pay a fine of $50 and to serve 30 days in the county jail.

It is argued that the court erred in admitting the whisky found as evidence for the reason that it was not sufficiently identified. Section 7016, Comp. Stat. 1921, provides that liquors seized under search warrant shall he preserved for use as evidence, and officers seizing liquor are required to mark the bottles or containers for identification. This provision was not complied with by marking the bottles or containers. This provision is directory, and the failure to mark the containers did not render the search invalid nor the evidence obtained inadmissible if otherwise properly identified. Youngblood v. State, 32 Okla. Cr. 336, 240 Pac. 1100; Howard v. State, 39 Okla. Cr. 336, 265 Pac. 149.

It is next urged that the court erred in his instructions defining the term “prima facie evidence.” That part of the instructions complained of is identical with the instruction held erroneous in Walton v. State, 52 Okla. Cr. 24, 3 Pac. (2d) 212. No exception was reserved to this instruction. It is settled by many decisions of this court that, where no objection or exception is made to an instruction, such instruction will not be examined by this court for the purpose of discovering other than fundamental error. The error here is not fundamental.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    ROBERT HUBBARD v. STATE.
    No. A-8352.
    May 14, 1932.
    (11 Pac. [2d] 771.)
    Bailey E. Bell, W. C. Klein, and Gerald B. Klein, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error was convicted in the common pleas court of Tulsa county of assault and battery, and bis punishment fixed by the jury at a fine of $50.

Judgment was rendered in said cause on the 26th day of September, 1931. The appeal was filed in this court on the 3d day of March, 1932. The Attorney General has filed a motion to dismiss the appeal, for the reason that the same was not filed in this court within the time provided by law.

An examination of the record discloses that the appeal was not filed within the time provided by law. The appeal is therefore dismissed.

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


text:
    A. A. FERGUSON v. STATE.
    No. A-8283.
    May 7, 1932.
    Rehearing Denied May 21, 1932.
    (11 Pac. [2d] 211.)

      Williams, Co-wan & Benedum and Justin Hinshaw, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Cleveland county of the crime of manslaughter in the first degree, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of two years.

The evidence of the state was that defendant, on the 12th day of February, 1931, accompanied by one Dan Bentley, was driving a 1929 model Chevrolet coupe on highway No. 77, between the towns of Noble and Lexington; that defendant, in attempting to pass the car of one White, which was being driven by one Sullivan, struck the left side of White’s car with the right side of his car; that defendant was driving at approximately 50 miles an hour; that White’s car was being driven at about 25 miles an hour; that defendant’s car scraped the side of White’s car, and, striking the left front wheel, turned White’s car completely over and around, causing it to be headed north instead of south; that as a result of such accident White was killed; that defendant did not stop, but hastened on, and, when he got to the town of Lexington, the next stop on highway No. 77, he turned off of said highway; that, instead of crossing the toll bridge, where he would be stopped and required to pay toll, he turned east on a dirt road; that later in the afternoon, between !5 and 6 o’clock, he was arrested on highway No. 18, about a mile south of Asher; that, at the time of defendant’s arrest, his car was badly scratched all along the right side, and had several fresh indentations therein; that the hub cap on the right rear wheel was missing, and the hub cap on the right front wheel had a fresh scar on it; that, when defendant was arrested and interviewed by the officers, he denied having any accident, and denied that any of the hub caps were missing off of his ear.

Sullivan and Mrs. White, who were riding in deceased’s car, testified that the car that struck them was a Chevrolet coupe; that two men were riding in it; that the driver looked back after the accident, but did not stop, but drove away at an increased rate of speed; that there were certain things dangling in the rear window of the ear (at the time of defendant’s arrest, his car had a couple of paper owls dangling in the rear window); that a rear hub cap off a Chevrolet was picked up at the scene of the wreck; that this hub cap fitted defendant’s car, and fitted into the disc left on the rim of defendant’s axel; that a flange off a wheel was picked up near the wreck; and that a flange was missing off defendant’s car.

Defendant, testifying, admitted that he was on the highway that day, and reached Lexington about the time the accident occurred, but claimed his car was battered up that way when he bought it, and denied that he had had any accident.

Other witnesses called by defendant created a clear conflict in the evidence. This was for the jury. There is ample evidence in tbe record to support the verdict of guilty.

Defendant contends that the court erred in permitting the witness Person E. Woodall to testify, over the objection of defendant, since his name was not indorsed on the information as required by section 20, article 2, Constitution of Oklahoma.

Mr. Woodall was the county attorney, and was called to testify merely for the purpose of showing that the hub cap in controversy was in the same condition at the time of the trial that it was when delivered to him, a day or two after the wreck. The state had called a witness, I. W. Williams, who- testified to finding a hub cap and to having compared it with defendant’s car and to having delivered it to the county attorney. Later in the trial, the court sustained defendant’s objection, and withdrew the testimony of Woodall from the jury.

There are several reasons why defendant’s objection is not well taken:

First. The evidence having been withdrawn by the court, the error, if any, was cured.

Second^ This evidence was cumulative, and the error, if any, in admitting the same, would not require a reversal of the case.

In Havill v. United States, 5 Okla. Cr. 334, 115 Pac. 119, this court said:

“The right of a defendant indicted for a capital offense alleged to have been committed in the Indian Territory prior to' statehood to have delivered to him under section 1033, Sts. Ann. vol. 2, p. 344 (U. S. Comp. St. 1901, p. 722 [18 USCA § 562]), at least two days before the trial a list of the witnesses to' be produced, is not violated to tbe extent of constituting reversible error where tbe testimony of the witness was cumulative, and offered for tbe sole purpose of fixing tbe time and place of tbe victim’s death.”

In tbe later case of McKee v. State, 38 Okla. Cr. 132, 259 Pac. 607, this court states tbe rule too broadly as a general proposition of law, but proper under tbe facts of that case.

Third. Defendant himself introduced tbe same bub cap in evidence, along with tbe other three claimed to have been taken from bis car, for tbe purpose of establishing that tbe hub cap in controversy could not have come from bis ear.

Defendant will not be allowed to present bis case upon one theory in tbe lower court, and then contend upon another one in this court.

An examination of tbe record discloses that defendant bad a fair trial, and that tbe evidence supports tbe verdict of tbe jury. Tbe cause is therefore affirmed.

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


text:
    H. LEE BENEFIELD v. STATE.
    No. A-8285.
    May 21, 1932.
    (11 Pac. [2d] 767.)

      Clayton Carder, for plaintiff in error.
    J. Berry King, Atty. -Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Kiowa county, of the crime of sale of a forged evidence of debt, and his punishment fixed by the court at imprisonment in the state penitentiary for a period of four years.

Defendant complains of numerous errors, but to dispose of the case it will only be necessary to consider one of them; that is, that the court erred in overruling his motion to dismiss because the case was not brought to trial at the next term of court and no good cause to the contrary shown for the delay.

It appears from the record that the preliminary complaint was filed against defendant on the 18th day of April, 1930; that on the 28th day of April, 1930, defendant was held for trial in the district court; that on the 1st day of May, 1930, a transcript of the proceedings of the preliminary hearing was filed by the justice of the peace with the clerk of the district court; that the information was not filed in the district court until the 4th day of May, 1931, and more than one year after the preliminary hearing and after the transcript of the proceedings had been filed in the district court; that on the 4th day of May, 1931, defendant filed his motion to dismiss the case because the information had not been filed in the district court within one year after defendant was held to appear for trial. The state called the former county attorney and the present county attorney in an attempt to show good cause for failure to file the information and bring defendant to trial at the next term of court. They both testified that there was no agreement with defendant or his counsel for the delay; that the docket was crowded and the case probably could not have been reached for trial. On this showing, the trial court overruled the motion to dismiss.

Section 2912, C. O. S. 1921, provides:

“When a person has been held to answer for a public offense, if an indictment or information is not filed against him at the next term of court at which he is held to answer, the court must order the prosecution -to be dismissed, unless good cause to the contrary be shown.”

This court first had this question under consideration in Petitti v. State, 11 Okla. Cr. 234, 145 Pac. 305, and there laid down the rule that the case must be dismissed for failure to file the information, unless good cause was shown, and that the failure of the magistrate to file the transcript, and the want of time and press of business on the part of the county attorney were not “good cause to the contrary,” within the meaning of section 2912, supra.

This court had the same question under consideration in Day v. State, 50 Okla. Cr. 178, 296 Pac. 987, 988, and there said:

“When a person has been held to answer for a public offense by a committing, magistrate, and no indictment or information is filed against him for more than one year, the court must order the prosecution to be dismissed, unless good cause to the contrary is shown.”

The state in its brief inferentially admits that the case must be dismissed unless the court is prepared to overrule its former holdings in Petitti v. State, and Day v. State, supra.

We have read the authorities cited by the state and carefully considered the rule there stated, and see no good reason for changing the rule in Petitti v. State, and Day v. State, supra.

Where no attempt to show good cause is made, or where the showing is insufficient, as in this case, such delay in filing the information as appears in the record before us is inexcusable.

The cause is therefore reversed and remanded, with instructions to the lower court to dismiss the same.

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


text:
    O. L. SHACKLEFORD v. STATE.
    No. A-8353.
    May 21, 1932.
    (11 Pac. [2d] 768.)
    Tom W. Cheatwood, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error was convicted in the county court of Oklahoma county of the unlawful possession of intoxicating liquor, to wit, 260 pints of beer, and his punishment fixed by the jury at a fine of $50 and imprisonment in the county jail for 30 days.

Judgment was rendered in said cause on the 4th day of November, 1931, at which time defendant was granted 40 days in which to make and serve case-made. On the 11th day of December, 1931, defendant was grantéd 40 days additional time in which to make and serve case-made, which time expired on the 20th day of January, 1932. On the 23d day of January, 1932, the court made an order attempting to extend the time in which to make and serve case-made for thirty days additional, but at no time made any order extending the time in which to file the appeal in this court. The appeal was not filed in this court until the 3d day of March, 1932.

In Mann v. State, 51 Okla. Cr. 6, 299 Pac. 237, this court said:

“An order extending time to make and serve a case-made does not automatically extend time within which to file appeal, and, unless order of extension of time to file appeal is made, it must be filed within the 60 days provided by section 2808, Oomp. Stat. 1921.”

There is another reason why this appeal must be dismissed. It appears from the record that the time to make and serve case-made expired on the 20th day of January, 1932. It further appears that on the 23d day of January, 1932, the court attempted to extend the time within which to make and serve case-made. In Lyons v. State, 6 Okla. Cr. 581, 120 Pac. 665, this court said:

“Where the time for preparing a case-made fixed by the trial court has expired, no court has power to extend such time.” Files v. State, 3 Okla. Cr. 418, 106 Pac. 555; Ledgerwood v. State, 4 Okla. Cr. 18, 109 Pac. 735; Williamson v. State, 5 Okla. Cr. 43, 113 Pac. 232; Drake v. State, 7 Okla. Cr. 313, 123 Pac. 568; Lundy v. State, 8 Okla. Cr. 291, 127 Pac. 707.

The trial court being without authority to further extend the time to make and serve case-made, and the appeal not having been filed in this court within the 60 days provided by law, this court obtained no jurisdiction.

The attempted appeal is therefore dismissed.

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


text:
    JOHN ROSELL v. STATE.
    No. A-8280.
    May 21, 1932.
    (11 Pac. [2d] 766.)
    E. B. Hunt, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Delaware county of the crime of larceny of live stock, and his punishment fixed by the court at imprisonment in the state penitentiary for a period of three years.

Judgment was rendered on April 10, 1931. The time to file an appeal in the case expired on the 10th day of October, 1931, at midnight. The appeal was not filed in this court until the 16th day of October, 1931. Section 2808, C. O. S. 1921, provides:

“* * * In felony cases the appeal must be taken within six months after the judgment is rendered. * * *”

Where the appeal is not filed within the time required by such section, this court obtains no jurisdiction and the attempted appeal will be dismissed. Kanamaya v. State, 6 Okla. Cr. 208, 118 Pac. 151; Gorman v. State, 9 Okla. Cr. 351, 131 Pac. 939; Rogers v. State, 53 Okla. Cr. 173, 8 Pac. (2d) 1111.

The petition in error not having been filed in this court within the six months required by law, this court obtained no jurisdiction.

The attempted appeal is therefore dismissed.

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


text:
    T. D. WALLACE v. STATE.
    No. A-8350.
    May 21, 1932.
    (11 Pac. [2d] 768.)
    Waldrep, Akin & High, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error was convicted in the county court of Pottawatomie county of the unlaivful possession of intoxicating liquor, and his punishment fixed by the jury at a fine of f 50 and imprisonment in the county jail for a period of 30 days.

Judgment was rendered in said cause on the 30th day. of October, 1931. The appeal was filed in this court on the 29th day of February, 1932, 122 days after judgment was rendered. The trial court gave the defendant 60 days from the date of judgment to make and serve case-made, and on the 29th day of December, 1931, the court gave defendant 40 days additional time to make and serve case-made and file his appeal in this court, which time expired on the 9th day of February, 1932.

The appeal not having been filed in this court within the time provided by law, this court obtained no jurisdiction, and the appeal is therefore dismissed.

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


text:
    DEWEY COSTNER v. STATE.
    No. A-8316.
    May 21, 1932.
    (11 Pac. [2d] 769.)
    Hughes & Dickson, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error was convicted in the county court of Texas county of selling intoxicating liquor, and his punishment fixed by the jury at a fine of $250 and imprisonment in the county jail for a period of 90 days.

Defendant complains that the court erred in giving the following instruction:

“You are further instructed that the court has permitted certain testimony to go- before you introduced by the state for the purpose of impeaching the evidence of the defendant, and in this connection you are instructed that such evidence may be considered by you for the purpose of determining the credibility of the defendant as a witness, but such testmony is no evidence whatever of the defendant’s guilt.”

This court has uniformly held that it is reversible error for the trial court to single out the accused and instruct upon the credibility of his evidence. Mitchell v. State, 2 Okla. Cr. 442, 101 Pac. 1100; Clark v. State, 4 Okla. Cr. 368, 111 Pac. 659; Heacock v. State, 4 Okla. Cr. 606, 112 Pac. 949; Peck v. State, 5 Okla. Cr. 104, 113 Pac. 200; Smith v. State, 5 Okla. Cr. 67, 113 Pac. 204; Williams v. State, 53 Okla. Cr. 285, 10 Pac. (2d) 731.

Because of the error of the court in giving the instruction complained of, the cause is reversed and remanded.

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


text:
    SIDNEY STIGALL v. STATE.
    No. A-8323.
    May 21, 1932.
    (11 Pac. [2d] 770.)

      P. A. Chappelle, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county of the crime of manslaughter in the first degree in the killing of Dee Freeman, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of 99 years.

Complaint is first made that the court erred in overruling defendant’s motion for a new trial on the ground of newly discovered evidence. Particular complaint is made on account of the evidence it is claimed the wife of defendant would have given if a new trial had been granted.

An examination of the record discloses lack of diligence on the part of defendant, and the further fact that the proposed testimony of the wife is of such nature as would not have affected the verdict of the jury if offered at the trial.

The granting of a new trial on the ground of newly discovered evidence is always within the sound discretion of the trial court. Peters et al. v. State, 35 Okla. Cr. 367, 250 Pac. 1032; McColloch v. State, 45 Okla. Cr. 442, 283 Pac. 1026. Especially would it be so in the case at bar, on account of the weakness of the showing.

The further contention made by defendant is that the punishment is excessive.

Shortly after the crime was committed and defendant was arrested, he was taken to the county attorney’s office, where, after being fully advised of his constitutional rights, he made a voluntary statement, in which he said:

“Q. What was the first word brought it about? A. He was with my wife, I told him not to be going with my wife, he got my wife to quit and I have got two children. Q. You said that to him to-night? A. No not to-night, but I told him that. Q. When did you tell him that? A. About a week ago. Q. Was he with her tonight? A. Yes, sir. Q. Of course that made you mad? A. Yes, sir. Q. Where did you get the knife? A. At home. Q. Take it with you? A. I just went home and got it. Q. When did you get it? A. I went and got it to-night. Q. Was that after you saw them together? A. Yes, sir. Q. Now go ahead and tell us about it. A. I went right up to him and said, ‘I told you not to be with her and not to bother her any more,’ and then he reached his hand in his pocket for his knife and then I got him. Q. How many licks did you hit? A. One. Q. Then what did you do? A. I went back and sat down in the show and stayed there until I got ready to come out. Q. You made up your mind when you saw him with your wife you would get him, is that right? A. Well, I thought it was right. Q. And you took the knife to be prepared? A. Well, I seen him with her and then I went and got it. Q. What kind of a knife was it? A. Butcher knife.”

It thus appears from defendant’s own statement that he was jealous of deceased, and mad about deceased and his wife being together; that he left them at the theater, went home and got the butcher knife, and came back and cut deceased in the heart. The crime being premeditated and carried out in cold blood, the record presents no reason for reducing the punishment.

For the reasons stated, the cause is affirmed.

EDWARDS, J., concurs. DAVENPORT, P. J., absent.


text:
    AUG WILLIAMS v. STATE.
    No. A-8356.
    May 21, 1932.
    (11 Pac. [2d] 773.)
    W. B. Grigsby, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was by information charged with the sale of intoxicating liquor and, being represented by counsel and personally present in court, entered his plea of guilty on the 5th day of October, 1931, and was on the 2d day of January, 1932, by the court adjudged to be guilty of said offense and sentenced to pay a fine of $50 and be imprisoned in the county jail for a period of 30 days.

On the 2d day of January, 1932, defendant filed his motion to vacate the judgment which, after hearing, was by the court on the same day overruled.

The only error complained of is that the court erred in overruling defendant’s motion to vacate the judgment.

This court has uniformly held that the granting or denying of a motion to withdraw a plea of guilty is within the sound discretion of the trial court, and that its action will not he disturbed unless an abuse of discretion appears from the record. Kemp v. State, 35 Okla. Cr. 128, 248 Pac. 1116; Looper v. State, 42 Okla. Cr. 341, 276 Pac. 503; Fields v. State, 50 Okla. Cr. 331, 297 Pac. 822; Munsell v. State, 53 Okla. Cr. 311, 11 Pac. (2d) 537.

The record in the case at bar shows defendant to have been personally present and represented by counsel, which makes out a stronger case than the authorities above cited.

An examination of the record discloses no abuse of discretion in overruling the motion to vacate the judgment.

The cause is therefore affirmed.

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


text:
    WADE ANDERSON v. STATE.
    No. A-8292.
    May 28, 1932.
    (11 Pac. [2d] 1081.)

      Gny D. Talbot and John P. Evans, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Alfalfa county of the crime of larceny of cattle, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of two years.

The evidence of the state was that five calves of the value of $125 were stolen by Ralph Smith, Roy Clary, and defendant from one W. O. Steward; that Smith and Clary pleaded guilty prior to this trial, and were each sentenced to serve a term of two' years imprisonment in the state penitentiary; that they testified against defendant that, beginning in the spring and continuing through and to the 6th day of September, 1930, defendant at various times suggested that,-if they would get some calves out of pastures near their home, he would buy them so they could all make some money; that on the 6th day of September, 1930, they went to a pasture near the home of Smith, and there stole five calves, delivering them to defendant at his home, some twelve miles distant, at about 3 o’clock in the morning; that defendant knew these cattle were stolen at the time they were delivered to him.

Defendant admitted receiving the cattle, but claimed to have bought them in good faith.

Defendant contends that the evidence is insufficient, because Smith and Clary being accomplices, there was not sufficient corroboration of their testimony.

The court instructed the jury that Smith and Clary were accomplices, and that defendant could not be convicted upon their testimony alone, but that they must be corroborated by evidence, facts, and circumstances tending to connect the defendant with the commission of the crime.

Smith and Clary are corroborated by the fact that defendant only paid $50 for the five head of cattle stolen, while the evidence was that they were worth at least $125, which payment was made by check that was later burned by defendant when the cattle were traced to his place. They are further corroborated by the fact that Smith did take cattle to Anderson’s place late at night, a distance of over twelve miles from where Smith lived. This is a strong circumstance tending to show that Smith had some previous understanding with Anderson as to these particular cattle. They are further corroborated by the fact that, when Anderson was first approached, he claimed he only bought three head of cattle from Smith, and later, in the presence of Smith, admitted that he got five head from Smith, that he had butchered one (Smith says because it was peculiarly marked and would be easy to identify), and that the other one died. These admissions of defendant that he had not told the truth on previous occasions about how many cattle he had received from Smith was another strong circumstance tending to show participation in the larceny. They are further corroborated by the fact that, after the cattle had been located by the owner and the officers, defendant went with Smith to see Steward to try to compromise the case and prevent the filing of any criminal charges.

In Underwood v. State, 36 Okla. Cr. 21, 251 Pac. 507, 509, this court said:

“The court instructed the jury that the witness Durie was an accomplice of the defendant, and submitted the question of the sufficiency of the corroborating evidence to the jury under proper instructions, and we think there was ample evidence to justify the submission thereof. Whether there was any corroborating evidence was a ques-of law for the court, but the sufficiency thereof was a question of fact for the jury. * * *
“The law prescribes no standard for the strength of the corroborating evidence, and there is a failure to corroborate only if there be no evidence legitimately having that effect.”

It has been often held by this court that the testimony of an accomplice need not be corroborated in every particular. The corroboration is sufficient if it covers the material portions of his testimony. McCurdy v. State, 39 Okla. Cr. 310, 264 Pac. 925; Cloud v. State, 41 Okla. Cr. 395, 273 Pac. 1012; Varner v. State, 42 Okla. Cr. 42, 274 Pac. 43; Patterson v. State, 42 Okla. Cr. 255, 275 Pac. 387; Fortman v. State, 45 Okla. Cr. 23, 280 Pac. 1109; Morton v. State, 46 Okla. Cr. 361, 287 Pac. 1087.

In the case at bar, as a matter of law, there is corroborating evidence the weight of which was for the jury. Under this rule there is no merit in defendant’s contention.

Defendant next contends that the court erred in refusing to' give the following instruction:

“You are instructed that the information in this case charges larceny of cows, and in this connection you are instructed that if you find the defendant guilty, you must find him guilty of the precise offense charged in the information and that you would not be justified in finding him guilty because you believe from the evidence beyond a reasonable doubt that he received possession of stolen property with knowledge that it was stolen.”

An examination of the record discloses that the instructions given by the court on its own motion covered all the issues in the case, and expressly limited the jury to a conviction for the offense charged in the information.

The errors of law complained of being without merit, the cause is affirmed.

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


text:
    ED OWENS et al. v. STATE.
    No. A-8326.
    May 28, 1932.
    (11 Pac. [2d] 1080.)
    L. A. Pelley, for plaintiffs in error.
    J. Berry King, Atty. Gen., and Gus Rinehart, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the district court of Jackson county of preventing and dissuading witnesses who had been duly subpoenaed from attending court. Defendant Pope was sentenced to serve a term of one year and one day in the penitentiary, and defendant Owens was sentenced to' pay a fine of $200.

Defendants were prosecuted under section 1647, Comp. St. 1921. The record discloses that D. C. Pope, Jones Eakin, and Lee Blair were charged in the district court of Jackson county with rape; that Carrie Turner and Zeke Turner were material witnesses and were subpoenaed to attend the trial. Before the day the case was set, defendants took the Turners in an automobile to Wichita Falls, Tex., and thereby prevented them from attending as witnesses.

It is argued that the information is insufficient in failing to allege defendants had knowledge at the time they conveyed the Turners to Texas that they had been subpoenaed as witnesses. The information follows closely the language of the statute in part charging:

“* * * That on the 8th day of April, 1931, the 20th day of April, 1931, was duly set for the day of trial of said action, to which day the said Zeke Turner and Carrie Turner and each of them, were on the 13th day of April, 1931, duly subpoenaed in due course of law to appear and give evidence for the state in said action; that the said Ed Owens and Tom Pope on or about the 14th day of April, 1931, and subsequent to the service of said subpoena upon the said Zeke Turner and Carrie Turner, well knowing the premises and knowing that the said Zeke Turner and Carrie Turner were material witnesses for the state in said action as aforesaid, and devising to obstruct justice and maliciously intending to prevent and dissuade the said Zeke Turner and Carrie Turner from attending as witnesses as aforesaid, did, then and there, at and within said county and state, willfully, unlawfully, designedly, fraudulently and feloniously use means, to wit: hired, employed, induced and dissuaded the said Zeke Turner and Carrie Turner to leave the jurisdiction of the said court, etc. * * *”

Knowledge is not made an ingredient of the offense defined by the statute. The general rule is that unless knowledge is part of a statutory definition of an offense, it is not necesssary to aver knowledge. State v. Cornish, 66 N. H. 329, 21 A. 180, 11 L. R. A. 191 note; 14 R. C. L. pages 196, 197 note 16; 31 C. J. 695, § 241. See, also, Bowes v. State, 8 Okla. Cr. 277, 127 Pac. 883; Bennett v. State, 21 Okla. Cr. 27, 204 Pac. 462.

Next it is urged there is no proof that the Turners were legally subpoenaed, the claim being that it is not shown there was any praecipe for subpoena. Sections 590, 871, 2826, 2827, 2828, 2829, 2830, Comp. St. 1921, have reference to the issuance and service of subpoenas and other process. A subpoena for a witness issued by the clerk of a court of record upon the application of the state or the defendant is valid process whether any praecipe for subpoena is filed or not.

We are pressed with the contention that the evidence is insufficient for the reason that there is no competent proof that such a case as alleged was pending in the court and that it was assigned for trial. As a matter of course, the proper way to have proved the case pending would have been to introduce the court records. Instead of doing this, the county attorney testified, stating in substance that the Turners were witnesses in the case of State v. Pope and others; that he issued or had the subpoenas issued; that the witnesses were material witnesses in the case; that at the time the case was called for trial, or shortly before, he learned that the witnesses were beyond the jurisdiction of the court, further testifying to inerimi-nating statements made by defendants. This testimony is supplemented somewhat by the testimony of the deputy court clerk and a deputy sheriff who served the subpoenas and by the subpoenas introduced in evidence and the return. While the record is not in good shape, yet it is proven that the Turners were subpoenaed as witnesses in the case of State v. Pope and others. That the day following the service of subpoena they were taken outside the state by defendants for the purpose of preventing their attendance as witnesses in that case and they were thereby prevented from attending as witnesses. This is an obstruction of justice deserving severe condemnation.

Some complaint is made of error in the instructions, but considered all together they fully and fairly cover the law of the case. There is no error requiring a reversal.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    Ex parte M. W. NEWMAN et al.
    No. A-8418.
    May 28, 1932.
    (11 Pac. [2d] 1119.)
    David Tant and H. M. Shirley, for petitioners.
    J. Berry King, Atty. Gen., and Kenneth Clark, Co. Atty., for respondent.
   PER CURIAM.

This is an original proceeding, in habeas corpus to discharge petitioners on the ground that the evidence is insufficient to warrant the magistrate to find probable cause, and petitioners further praying that, in the event the court should deny the application to be discharged, they he let to hail. Petitioners are charged in Johnston county with murder.

Without discussing the evidence, the application for discharge is denied, and the court is of the opinion that the proof is not evident nor the presumption great. Petitioners are therefore entitled to bail, and are allowed bail in the sum of $20,000 each, to be approved by the court clerk of Johnston county. ’ Upon the giving and approving of such bail, petitioners will be discharged.


text:
    TOM WRIGHT v. STATE.
    No. A-8318.
    May 28, 1932.
    (11 Pac. [2d] 1119.)
    J. W. Osmond and Bryan Phillips, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error was convicted in the county court of Caddo county of the unlawful possession of intoxicating liquor, and his punishment fixed by the jury at a fine of $500 and imprisonment in the county jail for a period of 30 days.

The officers with a search warrant found less than one quart of whisky. This quantity not making a prima facie case under the statutes and there being no other competent evidence to support the verdict of the jury, the cause is reversed.

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


text:
    A. A. THOMPSON v. STATE.
    No. A-8264.
    Jan. 15, 1932.
    Rehearing Denied May 28, 1932.
    (11 Pac. [2d] 772.)
    Speakman & Speakman, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Sebe Christian, Co. Atty., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Creek county of manslaughter in the first degree, and his punishment fixed at 12 years in the state penitentiary.

The homicide occurred November 27, 1930, in a cafe in the village of Mannford. Defendant at that time was a special deputy sheriff in his fifty-ninth year. Charles Russell, deceased, was a young man about six feet tall and strong physically. The circumstances of the homicide are that soon after dark defendant went into- the cafe in which were some twelve or fifteen young men. Deceased was drinking, and there is some testimony that defendant also had been drinking. Some raillery had begun between them, in which deceased was asked in a jesting manner about his having been arrested by another officer some 30 days before; this led to some words between deceased and defendant, in which defendant applied the term “sons-of-a-bitches” to the deceased and his companions. Deceased then arose and walked toward defendant and insisted on an apology. Defendant backed some three or four steps down the counter. Deceased came near, made some taunting remark, defendant drew a pistol, fired one shot into the left breast of deceased, from which death resulted almost instantly. At the time the shot was fired, deceased was standing still, unarmed, with his hands by his side. Defendant testified he drew his pistol and with it in his hand backed against a water cooler and it was accidentally discharged. ITe admitted on cross-examination that at the preliminary trial he testified the shot was fired to prevent defendant getting hold of him. Except for the testimony of defendant, there is no sharp conflict in the testimony. The court submitted murder, manslaughter in the first and the second degree, excusable homicide, and self-defense in 46 instructions. These instructions are much too voluminous. Counsel for defendant -admit the evidence is sufficient to support the judgment. The argument is directed entirely to the contention that the instructions are erroneous.

The particular instruction complained of is No. 22, in which the court attempts to amplify the definition of manslaughter in the first degree, and to apply the law to the facts in the particular case. In No. 18, the court gave the statutory definition of manslaughter in the first degree. Section 1740, Comp. .St. 1821. In No. 21, the definition is restated and the law in the abstract applied to abstract facts. With a slight modification to make this instruction concrete, No-. 22 would have been entirely unnecessary. It is but a rehashing' of No. 21, and a concrete application of the law to the facts. No. 21 is:

“To constitute manslaughter in the first degree, as herein defined to you, it is essential that the homicide be committed by the accused; that the killing be unlawful, that is, that it was not justifiable or excusable under the law; if the killing be purposely done, but without a design to' effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon, or while the person doing, the killing was engaged in the commission of a misdemeanor, then under such circumstances the homicide would be manslaughter in the first degree.”

In No; 22 the court further elaborates, and in part says:

“* * * jy from a]j the evidence and circumstances in the case you believe, beyond a' reasonable doubt, * * * that the killing was unlawful, and purposely done, * * * by the defendant, but without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon, or while the defendant was engaged in the commission of a misdemeanor or under such circumstances as not to be excusable or justifiable homicide under the law, as herein given you, then the defendant would be guilty of manslaughter in the first degree. * * * But if you do not so find or have a reasonable doubt of the existence of any of the material elements necessary to constitute said crime of manslaughter in the first degree, you cannot convict him thereof. * * *”

Counsel argue that this creates a new and distinct ground of manslaughter in the first degree in addition to those defined by section 1740, Comp. St. 1921, and permits the jury to convict “upon any ground, just so the homicide is not justifiable or excusable.” That is, if the jury believe defendant killed the deceased under such circumstances as not to be justifiable or excusable homicide, then he would he guilty of manslaughter in the first degree.

No. 22 is clumsily stated, and, if it were considered separate and apart from the other instructions, defendant’s objection would seem to be insurmountable. It is well settled by many decisions of this court that the instructions must be considered all together. A defendant is not permitted to pick out a certain instruction and have it construed separate and apart from the others. The instructions constitute a single charge, and each is to be construed in connection with all the others. Spencer v. State, 5 Okla. Cr. 7, 113 Pac. 224; Updike v. State, 9 Okla. Cr. 124, 130 Pac. 1107; Moore v. State, 25 Okla. Cr. 118, 218 Pac. 1102. It is "true, of course, that where instructions are conflicting or ambiguous, that is, where there is a correct instruction upon the law of the case and an incorrect instruction upon the same point, the correct instruction will not cure error in an incorrect instruction, as no one could tell whether the jury acted upon the erroneous instruction or upon the correct instruction. Hooper v. State, 26 Okla. Cr. 227, 223 Pac. 209. But does that situation prevail here in the charge on manslaughter in the first degree? Instruction No. 19, No. 21, and No. 22, all tell the jury the law of manslaughter in the first degree, and are, so far as the subject-matter is concerned, a single instruction. No. 18 is verbatim the language of section 1740, Comp. St. 1921. Subdivision 2 of that section defines certain killings as manslaughter in the first degree * * unless it is committed under such circumstances as constitute excusable or justifiable homicide. * * *” No. 21 follows the same definition, and tells the jury in substance that a killing as defined by instruction No. 18, * * * that was not justifiable or excusable under the law, * * *” is manslaughter in the first degree. No. 22 tells the jury that if they find beyond a reasonable doubt the killing in the case on trial is such a killing as defined by instructions 18 and 21, and was committed under such circumstances as not to be excusable or justifiable under the law, then defendant would be guilty of manslaughter in the first degree. Inaptly worded as the instruction is, this is the clear meaning of these three instructions, construed together.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.