text:
    MACE HERNDON v. STATE.
    No. A-3190.
    Opinion Filed December 15, 1919.
    (185 Pac. 701)
    1. GRAND JURY — Substantial Compliance with Statutes. The law •of this state in regard to selecting, summoning, and impaneling grand juries is directory, and a substantial compliance therewith is sufficient.
    2. APPEAL AND ERROR — Discretionary Rulings — Continuance. An assignment of error based upon the denial of a continuance will ■not be sustained unless it affirmatively appears that the court in denying such request abused its discretion.
    3. CONTINUANCE — Denial—Absent Witness. It is not error to overrule a motion for continuance on account of 'an absent witness, where 'the testimony stated in the motion to which such absent witness would testify is not admissible evidence or does not tend to establish the innocence of the accused.
    4. INDICTMENT AND INFORMATION — Demurrer to Indictment Containing a Good Count. When an indictment contains two counts, one of which is defective and the other is not, a demurrer directed to the entire indictment should be overruled.
    5. APPEAL AND ERROR — Harmless Error — Demurrer to Indictment. When an indictment containing two counts is demurred to, and'one of the said counts is sufficient and the other insufficient, and the court overrules a demurrer to the defective count, and thereafter the state elects to stand upon the sufficient count, the overruling of the demurrer to said defective count ¡becomes harmless error.
    6. EVIDENCE — Admissibility of Evidence of Similar Offenses. Evidence of offenses of similar nature committed by an accused, •other than the specific offense for which he is being tried, may be properly admitted in evidence to show -the intent of the accused, •notwithstanding .such evidence tends bo prove accused guilty of other and distinct offenses; the field of operation of such evidence to be confined by the instructions of the court to the jury alone to establish intent'or some element of 'the offense chárged.

      7. STATUTES — Revised Laws. — Law of State. The Revised Laws 1910, commonly known- as the “Harris-Day Code,” including new legislation suggested by the codifiers and adopted by the Legislature of this state by chapter 39, Sess. Laws 1910-11, as amended ■by chapter 75, Sess. Laws 1013, is the established law of this state regularly and constitutionally adopted.

      Appeal from District Court, Seminole County; J. W. Bolen, Judge.

    Mace Herndon was convicted of embezzlement of public school funds when County Treasurer of Seminole County, and he appeals.
    Affirmed.

      Foivler & Biggers and Pryor & Stokes, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Mace Hern-don, hereinafter called defendant, was indicted for the embezzlement of public school funds received from Hughes county for account of consolidated school districts 12 and, 50, while county treasurer of Seminole • county, found guilty, and his punishment fixed at imprisonment in the penitentiary for a term of three years and a fine of $1,248.18. To reverse the judgment rendered, he appeals.

The defendant has not set out in his brief an abridgment of the evidence as required by the rules of this court, and explanatory of his failure so to do says “that to do so would cause this brief to be as large .as the case-made.” The case-made contains 740 pages of typewritten matter. We set out only the material evidence.

The defendant was the duly elected, qualified, and acting county treasurer of Seminole county. There were consolidated school districts numbered, respectively, 12 and 50, composing a part of Hughes county and a part of Seminole county; the greater part of said school districts being in Seminole county. The taxes in support of said school districts in part were collected in Hughes county and warrants therefor in the aggregate sum of $642.09 were drawn by the proper officer, forwarded to and received by the defendant as such county treasurer of Seminole county. The defendant took one of said warrants to a bank in Wewoka, and received for it a check on the Farmers’ National Bank, and placed the other' of said warrants in a bank for collection; the defendant receiving for the two warrants the sum of $642.09, which said receipt by him was not entered on the records "of his office as treasurer. The proceeds of the two warrants were held by the defendant until about the 15th of August, 1914, at which time the proceeds were deposited by him with the Farmers’ National Bank to the credit of “Mace Herndon, Escrow,” where the deposit remained until about the 18th day of September, 1915. After the terms of the defendant as county treasurer of Seminole county had expired, he drew a check on the account in favor of himself and cashed it, and also a check for $116.56 in settlement of an alleged embezzlement committed by his deputy. Each of these checks was drawn on this deposit of $642.09. He dfew a check for the remainder of the deposit and deposited it and other moneys in the First State Bank of Seminole, the total sum deposited amounting to $995.74. In January, 1916, prior to the finding of the indictment in this case, the state examiner of public accounts was pushing the defendant on account of his actions as county treasurer, and on the 13th day of January, 1916, the defendant wrote a letter to the then county treasurer of Seminole county and inclosed to him a check for $995.74, and told him that he owed the money and how he wanted it applied, but did not direct any of the said $995.74 to be applied on account of consolidated school districts 12 and 50 for the warrants he had received from Hughes county.

. The defendant filed a motion to quash the indictment, and introduced voluminous evidence to show that the jury finding the indictment had not been selected, drawn, and impaneled as required by law and was an illegal grand jury. The court overruled the motion, and defendant excepted.

The defendant then demurred to the indictment, which contained two counts, upon the grounds: (1) That it fails to state facts constituting a public offense. (2) “That the statute under which the indictment- was found is unconstitutional upon the ground that section 7437, Harris-Day Code, is one that was added in its entirety by the Code Commission and not adopted by the Legislature in the manner required by the Constitution.” The court overruled the demurrer, and the defendant excepted.

The defendant filed a motion for continuance on account of the absence of E. L. Sebastian, setting up all the averments required to be contained in such motion, including a statement at length of what the absent witness would testify to. The court overruled the motion, and the defendant excepted.

'The defendant also objected to the introduction in evidence of the books of the county treasurer’s office, upon the ground that the entries made in said books were not made in the handwriting of the defendant, and because it is not shown that the entries were made with his knowledge or under his direction. The court overruled the objection and admitted numerous entries shown upon the books, to which the defendant excepted.

The defendant also objected to the admission of evidence of other embezzlements, committed by him while be was county treasurer, other than the specific embezzle-ments charged in the indictment. The court overruled the ■objection and admitted the evidence, to which defendant duly excepted.

Upon the conclusion of the evidence, the defendant asked the court to give the jury instruction numbered 1, which reads:

“'Gentlemen of the jury, in this case there has been testimony introduced regarding transactions other than the charge in the indictment, said’ transaction having been testified to by T. B. Terry and Count Dunaway, whom the court instructs you are in law termed accomplices under their own testimony, and you are instructed that the law forbids the conviction of one accused of crime upon the uncorroborated evidence of accomplices, and the ■corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. To warrant -a conviction upon the testimony of an accomplice, there must 'be corroborating evidence tending to incriminate the accused, aside from and without the aid of testimony of the accomplice; and in this connection you are further instructed that these transactions testified to' by T. B. Terry and Count Dunaway were admitted solely and only for your consideration in arriving at the motive or intent actuating him in committing the act for which he stands charged. You are further instructed that, before you can consider the testimony of Count Dunaway or T. B. Terry, you must find and believe beyond a reasonable •doubt that said transactions were criminal, and that the defendant participated in said transactions, and then the same can only be considered by you, and you are only at ■liberty to use it in the act for which he is now on trial, if you find beyond a reasonable doubt that he committed •such act.”

The court refused to give said requested instruction, and the defendant excepted. :

Together with other instructions, the court gave the jury instructions numbered 5 and 9, respectively, which said instructions read as follows:

“No. 5. You are instructed that other transactions have 'been introduced in this case which, as claimed by the state, tend to show the commission of other, crimes, by the defendant, and in this connection you are instructed that such evidence has been submitted for your consideration for the purpose of showing the intent and purpose of the defendant regarding his act or acts, if any, in connection with the 'crime charged; and for the further purpose of ascertaining whether or not the defendant, together with other parties, was engaged in a plan or system to defraud thé state of Oklahoma, county of Seminole, and each political subdivision thereof, including joint school districts 12 and 50, and that the crime charged was a part of that system and for no other purpose. You are instructed that if you believe that the defendant had committed other crimes besides the crime charged in the indictment, but do not believe beyond a reasonable doubt that he committed the crime charged in the indictment, then it would be your duty to acquit the defendant.”

“No. 9. Gentlemen of the jury, you occupy in this case one of the most important positions that could be occupied by a citizen of this county and state, and obligated by your solemn oath which calls for the exercise of your best integrity and highest manhood. You do not represent the state, neither do you represent the defendant; but you represent the law, which demands exact justice, sacred honor, and elevated manhood in the exercise of your solemn duty, and' which cherishes and upholds as sacred the right of a fair and impartial trial to the defendant and to the state. And in this case if you allow sympathy, avoidance of duty, or any other outside influence, except the law and the evidence that you bare-listened to frota the witness stand, to enter into your deliberations and have any effect whatever in the formulation of your conclusions which will be written into your verdict, you have not reached that high plane of official duty and unswerving manhood that the law demands.

“In the discharge of your duty it requires courage, integrity, analysis, and good common sense, and when you have fully exercised these and reached an honest conclusion that your judgment and your conscience approve, then without fear or favor write your verdict, and you will have nobly discharged your duty as a representative ■of a just and inflexible law that is higher and bigger than all of us, and to which all must bow in humble submission.

“Do not allow fear or favor, prejudice or passion, to divert you from the path of sacred duty and exalted obligation, both to the defendant and to the state; but let your verdict be a reflection of your soundness of reasoning and good conscience, and then the law will be satisfied.”

Within the time provided by law, the defendant made a motion for a new trial, which the court overruled, and the defendant excepted.

It is contended by the defendant that irregularities committed by the jury commission in selecting, and the action of the trial court in impaneling, the grand jury which preferred the indictment in this case, rendered the indictment an illegal one, and he insists that the court committed reversible error in overruling the motion to quash the indictment. We have carefully considered the entire evidence offered on the motion to quash the indictr ment and are impressed that it does not disclose any act or failure to act on the part of the jury commission in selecting the jurors, or on the part of the trial judge in impaneling the grand jury, which should vitiate the indictment, or that in selecting or impaneling the grand jury any substantial right of the defendant .was violated.

“The law of this state in regard to selecting, summoning, and impaneling a grand jury is directory, and a substantial compliance therewith is sufficient.” Middleton v. State, 16 Okla. Cr. 320, 183 Pac. 626.

The holding in Middleton v. State, supra, finds direct support in Hopkins v. State, 4 Okla. Cr. 194, 108 Pac. 420, 111 Pac. 947; Wells v. State, 5 Okla. Cr. 22, 113 Pac. 210; State v. Pollock, 5 Okla. Cr. 26, 113 Pac. 207; Tegeler v. State, 9 Okla. Cr. 139, 130 Pac. 1164; and1 in many of the decisions of the courts of last resort of other states of this Union. The reason for the rule is correctly expressed in 12 R. C. L. pp. 1016, 1017, as follows:

“The reason of this rule is that as the grand jurors do not try the case, but merely charge the accused, the manner of their selection is of no consequence to him, he being entitled to claim only fair and impartial grand jurors who possess the necessary qualifications, whereas it is of great consequence that the administration of justice shall not be delayed by mere technical objections. Such statutes need not be followed with technical or literal strictness. A substantial compliance is all that is required, and mere irregularities in the drawing and selecting do not invalidate the grand jury’s action.”

The defendant further insists that the' court committed reversible error in overruling his motion for a continuance on account of the absence of the witness E. L. Sebastian.- We have carefully read and considered what it is alleged in the motion for continuance the witness, if present, would testify to, and are unable to see how such testimony could have aided in the defense of the defendant of the charge of which he was convicted. It was entirely immaterial how the management of the warrants in question perplexed the defendant and his deputy and the details of how the same was handled, the important question being the conversion of the proceeds of said school warrants to the personal use of the defendant. The court did not abuse its discretion in overruling this motion.

It is next urged by the defendant that the court committed reversible error in overruling the demurrer to the indictment. The indictment contains two counts, and the state having elected to stand upon the second count, and the jury having found the defendant guilty as charged in the second count, it is entirely immaterial whether or not the first count was sufficient, and we will not discuss the same. The second count of the indictment charges every element of an embezzlement of public funds and fully informs the defendant of the offense he is called upon to answer and was entirely sufficient.

“Again, where an indictment contains two counts, even though one of them be demurrable, a demurrer directed to the entire indictment should be overruled.” 14 R. C. L. sec. 45, p. 202.

“A general demurrer to an indictment containing several counts, one of which is good, may be overruled entirely.” Ingram v. State, 39 Ala. 247, 84 Am. Dec. 782.

The attack of the defendant upon the indictment, on the ground that the section of the Revised Laws upon which the prosecution is based is unconstitutional and void because inserted in the 'Code by the Code Commission and not' previously enacted, by the Legislature, we think not well grounded. Revised Laws 1910, commonly known as the “Harris-'Day Code,” was adopted as a whole by chapter 75, p. 116, Session Laws 1913, which amended chapter 39, p. 70, Session Laws 1910-11, and this the Legislature could do under virtue of section 57, art. 5, of the Constitution, without violating the Constitution, and it was only necessary to read the act adopting the Code and not the Code, to legally comply with section 34, art. 5, of the Constitution. The fact that the section of the Code attacked was inserted by the Code- Commission was not material. It was the adoption of the Code by the Legislature after such section was inserted therein that made said section law.

In Central of Georgia Railroad Co. v. State of Georgia,, 104 Ga. 831, 31 S. E. 531, 42 L. R. A. 518, it is held:

“(2) The intention of the act of December 16, 1895, adopting the present Code, and making the same of force, as the Code of Georgia, is to enact into one statute all provisions embraced in that Code:

“(3) This act is not unconstitutional because it did not incorporate in its body the various sections of the Code, nor because these sectionb were not read three times and on three separate days in each house of the General Assembly before the passage of the act.

“(4) The act in question does not, within the meaning of * * * the Constitution of Georgia, refer to more than one subject-matter, nor does it contain matter different from what is expressed in the title thereof.

“(5) The effect of' this act is to make a part of the law of the state all new matter embodied in the Code of 1895 which could be constitutionally enacted by the Legislature. It follows therefore that an act,-though unconstitutional as originally passed,' on account of containing matter different from what was expressed in its title, if otherwise constitutional, became valid law by its incorporation in the present Code, upon the passage of the act first above mentioned.”

In the body of this most thoroughly considered and ably discussed case, Justice Lewis, speaking for the court, says:

“Whenever the Legislature, therefore, employs such words as ‘adopting a Code,’ no other legitimate or reasonable construction can be given the language itself than an intention to enact and make of force as a statute every provision in the entire work; * *■ * the legislative purpose being to. enact into law every provision contained in the Code, including such new matter as was introduced, as well as such changes and modifications as were clearly made in existing laws. * * *

“There is quite a difference between a Code of Laws, for a state and a compilation in a revised form of its statutes. The Code is broader in its scope and (more comprehensive in its purpose. Its general object is to embody as clearly as practicable all the laws of a state from whatever source derived. When properly adopted by the lawmaking power of a state, it has the same effect as one general act of the Legislature containing all the provisions embraced in the volume.”

The defendant further complains that the court committed reversible error in admitting in evidence entries and want of entries as shown by the books of the county treasurer at the time the defendant was the incumbent of said office, for the reason “that the entries were not made in the handwriting of the defendant, or with his knowledge.” This complaint we think without merit. Section 5115, Revised Laws, fixes the admissibility of this evidence. If the entries admitted in evidence were not correct or were susceptible of an innocent explanation, the defendant could have offered evidence pointing out that the entries were not correct, or explaining away the same in so far as they tended to criminate him.

It is also insisted that the court committed reversible error in admitting evidence tending to show the commission of embezzlements by the defendant while county treasurer other than the specific embezzlement charged in the indictment. This contention is not well founded.

When, as in the instant case, the jury are properly instructed as to the field of operation to which such evidence is confined, .evidence of other offenses similar to the offense charged in the indictment is admissible, where it shows guilty knowledge or intent in the commission of the offense charged, or a system or plan embracing more than one act so closely connected that proof of one tends to establish the other or the connection of the accused therewith.

In the well-considered opinion of Judge Doyle in State v. Rule, 11 Okla. Cr. 237, 144 Pac. 807, it is held:

“(1) As a general rule, evidence of other offenses, though of the same nature, is not admissible for the purpose of showing that the defendant is guilty of the particular offense charged. To this rule, however, there are well-settled exceptions. Those applicable to the question presented on the record in this case are as follows:

“(b) Evidence that tends directly to prove the defendant’s guilt is not rendered inadmissible because it proves or tends to prove him guilty of another and distinct offense.

“(c) Evidence of a different offense from the one charged is admissible when both offenses are so closely linked or connected as to form a part of the res gestae.

“(d) Evidence of other offenses is competent to prove the specific offense charged when it tends to establish a systematic scheme or plan embracing the commission, of two or more offenses so related to each other that proof of one tends to establish the other, or to connect the defendant with the commission of the offense charged.”

Again, the defendant complains that the evidence is sufficient to sustain the verdict rendered. With this complaint we are not in accord. We have carefully read the evidence and think it sufficient to support the verdict rendered. This court in many cases has announced and reaffirmed the rule that, where there. is any competent evidence tending to reasonably support a verdict, this court will not reverse a judgment for want of evidence.

The defendant further complains that the court committed reversible error in refusing to give requested instruction numbered 1. This complaint is without merit. There was no evidence given tending to show that there was an accomplice in the commission of the embezzlement charged.

“An instruction should never be given upon any question of law which is not applicable to the evidence.” Inklebarger v. State, 8 Okla. Cr. 316, 127 Pac. 710.

We are of the opinion that instruction numbered 5 given the jury, when considered in connection with the entire instructions given, as it must be., correctly states the law.

While instruction numbered 9 given the jury may not have “been necessary for their information in giving their verdict” (section 5905, Revised Laws), we do not think that the giving of said instruction was a reversible error.

The defendant had a fair and impartial trial, was ably defended in the trial court by learned attorneys, and on this appeal was represented with great zeal and ability. There is no error disclosed by the record sufficient to warrant a reversal of the judgment of the trial court. It is therefore affirmed.

DOYLE, P. J., and MATSON, J., concur.


source: Caselaw Access Project

author: MATSON, J.

license: Public Domain

text:
    H. W. JACKSON v. STATE.
    No. A-3301.
    Opinion Filed December 15, 1919.
    (185 Pac. 533.)
    1. GAMING- — Evidence as to Reputation of Place. In a prosecution for opening and conducting a particular gambling game, tbe general reputation of defendant’s place of business is inadmissible.
    2. SAME — Insufficiency of Evidence. In -such, a prosecution, where there is no evidence to show that -the defendant either opened or conducted the game, or aided and abetted therein, the evidence is insufficient to support the conviction.

      Appeal from District Court, Okmulgee County; Mark Bozarth, Judge.

    H. W. Jackson was convicted of the crime of “opening and causing to be opened, and conducting a certain game,” and sentenced to pay a fine of $500, and to- serve a term of imprisonment in the state penitentiary for five years, and he appeals.
    Reversed and remanded, with directions.

      E. M. Carter, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   MATSON, J.

This is an appeal from -¡the district court of Okmulgee county, wherein the defendant was convicted of the crime of opening and conducting a game of craps, and his punishment fixed as above stated.

Two alleged errors are relied upon for a reversal of the judgment: (1)' That the court permitted incompetent and irrelevant evidence to be introduced against the defendant, over objection and ■ exception properly saved; (2) that there is an entire lack of competent evidence to sustain the conviction.

An examination of the record convinces the court that both of these grounds are well taken, and that the judgment should be reversed. The Attorney General has filed a brief in which he confesses that the admission of evidence of the general reputation of defendant’s house or place of business in a prosecution for opening a gambling game is error, citing the following authorities: Underhill on Criminal Evidence, sec. 475; Wharton on Criminal Evi-deftce, sec. 260.

In this connection, the Attorney General says:

“Our courts permit the proof of reputation of places by general reputation of such, under charges for unlawfully keeping and having in possession intoxicating liquors. By analogy the same medium of proof and character of testimony would apply in a prosecution for maintaining a gambling house under section 2511n, Bunn’s Annotated Supplement to the Revised Laws of Oklahoma, 1910. But until the higher courts or the Legislature) extend this .rule as to reputation evidence, we are not at liberty to adopt it as the law when there is no authority either in the adjudicated cases or in the various treatises on the law of evidence justifying an extension of this rule. This is especially true by reason of this court’s holding in the case of Mitchell v. State, 9 Okla. Cr. 172, 130 Pac. 1175. In this case, the court expressly decided that one’s reputation is inadmissible to prove one to be a comlmon gambler, which decision and ruling renders reputation evidence at least equally as inadmissible in a case of conducting a specific game. * * *

“If the general reputation of defendant Jackson could not be proved in the first instance by the state wherein he was charged with the crime of 'opening and conducting a crap game,’ we concede that proof of the general reputation of his house and place of business was at least one degree less relevant and was clearly inadmissible.”

While the evidence in this case shows that a white man and a negro were engaged in shooting craps in defendant’s place of business, there is no evidence from any witness to the effect that the defendant opened or conducted said game, although defendant was in another part of the building at the time the game was in progress.

In the absence of any evidence to the effect that the defendant either opened or conducted the game of craps, for which he was tried and convicted and sentenced to a term of five years in the penitentiary, and also in view of the fact that incompetent and irrelevant evidence, which was prejudicial to his substantial rights, was permitted to be introduced against him over his objection and exception, the judgment of the trial court is reversed, and the cause remanded, with instructions that the same be dismissed unless -the state is now in possession of further evidence which tends to connect the defendant with the commission of the crime.

DOYLE, P. J., and ARMSTRONG, J., concur.


author: ARMSTRONG, J.

text:
    JOE BURTON v. STATE.
    No. A-2880.
    Opinion Filed November 29, 1919.
    Rehearing Denied January 7, 1920.
    (185 Pac. 842.)
    1. HOMICIDE — Evidence that Deceased Left Wife and Children. In the trial of a homicide ease, the fact that the deceased left surviving him a wife and two children is not germane to any issue in the case, and evidence thereof should not be admitted against the objection of the defendant.
    2. APPEAL AND ERROR — Harmless Error — Overruling Challenge to Juror. Where juror is challenged for cause, and such challenge is erroneously overruled, and such juror is peremptorily challenged and does not serve as a juror in the case, the overruling of such challenge is harmless error, unless the record affirmatively shows that the overruling of the challenge reduced the number of peremptory challenges of the defendant to his prejudice, and that the defendant did not waive, but raised the question on the trial of the caso.

      Appeal from District Court, Greer County; R. W. Biggins, Assigned Judge.

    Joe Burton was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.
    See, also, 58 Okla. 754, 161 Pac. 532.
    S'. B. Garrett, H. H.. Edwards, W. B. Garrett, and Riddle & Hammerly, for plaintiff in error.

      S. P. Freeling, A-tty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   ARMSTRONG, J.

The plaintiff in error, Joe Burton, hereinafter called defendant, was indicted for the murder of Virgil Heatley, found guilty of manslaughter in the first degree, and his punishment fixed at imprisonment in the penitentiary at hard labor for the term of 15 years. To reverse the judgment rendered, he prosecutes this appeal.

The defendant relies entirely on questions of law to work a reversal of the judgment rendered in this case. We find it unnecessary, therefore, to recite at length the voluminous evidence in the record, deeming it sufficient to say that the undenied facts are: Prior to the homicide bad blood had been engendered between the deceased and the defendant. On the morning of the homicide, the defendant had been informed that the deceased had threatened to kill him. An hour or so before the homicide the defendant armed himself with a pistol, and shortly thereafter the deceased, who was riding a horse, and the defendant met. The defendant said something to the deceased, to which the deceased replied, when the defendant, who was at the time only a few feet from the deceased, drew a pistol and shot the deceased' three times, from the effects of which shots the deceased died almost immediately. The evidence was in conflict as to what was said and done by the deceased and by the defendant immediately before the fatal shots were fired. The evidence on the part of the state tended to show that the defendant in shooting the deceased committed murder, while the evidence on behalf of the defendant tended to show that he acted in necessary self-defense.

The defendant made an exhaustive examination of the jurors J. W. Minn and A. J. Falkner as to their competency to sit as jurors. Upon the conclusion of the examination the defendant challenged each of the jurors'for cause.- The court overruled the challenges, and exceptions were duly reserved. Thereupon the defendant peremptorily challenged each of the said jurors. In completing the jury the defendant exhausted all of his peremptory challenges, but no question was raised that by a wrongful failure to sustain said challenge for cause the defendant had been prejudicially denied the number of peremptory challenges to which he was entitled.

It is most earnestly contended by the learned attorneys of defendant that the court committed reversible error in overruling the challenges for cause of the jurors J. W. Minn and A. J. Falkner, neither of whom served upon said jury. The contention we think without merit. It is certainly true, as urged by counsel for defendant, that the defendant was entitled to be tried by fair and impartial jurors. Upon an examination of,the jurors upon their voir dire the trial court should resolve all doubts arising on the evidence in favor of the defendant as to the competency of the juror, and if, upon so doing, it appears that the juror challenged for cause would not be an impartial juror, as required by the Constitution, and as defined by decisions of this court, such, challenges should be sustained, and to overrule such challenge, when the defendant had exhausted his peremptory challenges, would be reversible error. Middleton v. State, 16 Okla. Cr. 320, 183 Pac. 626, and the authorities there cited.

But where, as in the instant case, the defendant had not exhausted his peremptory challenges, and by the use of two thereof excluded the said J. W. Minn and A. J. Falkner from service as jurors, and when the record does not affirmatively show, as it does not show in this case, that he was thus wrongfully deprived of a part of the peremptory challenges to which he was entitled by law, to his prejudice, and there is nothing in the record to show that he was not tried by an impartial j ury, notwithstanding the record shows that, including the two peremptory challenges used to eliminate the two jurors challenged for -cause, the defendant exhausted all of his peremptory challenges, but did not complain that the action of the court in overruling the challenges for cause had preju-dicially denied him a fair and impartial jury, the overruling of the challenges for cause, if error, was harmless error.

The state offered in evidence the clothing worn by the deceased at the time of the homicide, to which the defendant objected. The court overruled the objection, and the defendant excepted. The clothing worn by the deceased at the time he was killed was properly admitted in evidence.

“On a trial for murder, where the plea is self-defense, a coat worn by deceased at the time of the homicide, and which shows the point of entrance of the fatal bullet, is admissible in evidence.” Saunders v. State, 4 Okla. Cr. 264, 111 Pac. 965, Ann. Cas; 1912B, 766; Morris v. State, 6 Okla. Cr. 29, 115 Pac. 1030.

The state, over the objections and exception of the defendant, was permitted to show that the deceased left surviving him a wife and two children. The fact that the deceased left surviving him a wife and two children was not germane to any issue in this case, and evidence thereof should not have been admitted; but after an examination of the entire record we are unable to say that it appears that the admission of said evidence has probably resulted in a miscarriage of justice. Therefore we are prohibited by statute from setting aside the judgment rendered on account of the admission of the evidence complained of. Section 6005, Rev. Laws 1910.

Watts, a witness for the defendant, testified that, immediately after the deceased was shot, he arrested the defendant at the scene of the homicide and started with him' to-the courthouse; that at the time of his arrest the defendant -had a pistol in his hand, which witness demanded he give up to him; that defendant declined to do so, and said “that he was the man who shot deceased, and that, by God, he would not give up the gun; that he didn’t want to be shot in the back; that he did not want toi be mobbed.”'

The defendant then offered to prove fey said witness, that when going from the scene of the shooting to the courthouse, shortly after the homicide, he said to witness “that the Heatleys and the Oarlocks and others were dovm on him and trying to move him, but that they could not do it”; that witness replied, “that is all right; don’t hesitate; let’s get away from here”; that Mr. Counts, the jailer, and Mr. Meacham came up behind witness, and he-turned to see them; that Counts and Meacham got the. gun, but witness did not know whether they took it from defendant; anyway, they got the gun. The state objected to the introduction of said offered evidence. The court sustained the objection, and the defendant excepted.

We are unable to see that the court committed reversible error in excluding said offered evidence. How-said evidence could in any manner tend to show that in the killing of the deceased the defendant acted in. self-defense we cannot imagine. On the contrary, we are impressed that the excluded evidence tended to show that the defendant, in committing the homicide, was actuated by a spirit of revenge, and the exclusion of it was beneficial to him. ¡Whether or not the defendant, after the-homicide, surrendered his pistol, or the same was taken from him, was entirely immaterial, and might properly have been excluded; but the admission of said evidence could not work a reversal of the judgment under the record in this case.

We have carefully considered instructions respectively numbered 17 and 18, given the jury, the only paragraphs of the instructions argued in brief of defendant as being-erroneous. When these instructions are, as they must be, considered in connection with the entire instructions given, we are of the opinion that each of them is free from prejudicial error.

The defendant further complains that the court committed reversible error in refusing to give the following requested instruction:

“You are further instructed, after taking and considering all the facts and circumstances in evidence before you, if you have a reasonable doubt as to whether the defendant acted in self-defense as viewed by him from his standpoint, then you will acquit the defendant, and say so by your verdict.” '

The general instructions given by the court properly covered this requested paragraph. Byers v. Territory, 1 Okla. Cr. 677, 100 Pac. 261, 103 Pac. 532.

The contention of the defendant that the court, in instruction numbered 10, instructed the jury that there was no evidence authorizing them to consider justifiable homicide, is not supported by the record. The court did not so instruct, but did instruct by said instruction “that there was no evidence showing or tending to show that the homicide was excusable homicide.” Justifiable homicide and excusable homicide are not synonymous. Certainly there is no evidence tending to show that the killing of the deceased was excusable, as excusable homicide is defined by section 2332, Rev. Laws 1910. The court did not err in refusing to sub nit that proposition to the jury. Upon consideration of the entire record, we are convinced that the evidence fully warrants the verdict returned, that the defendant was tried by a legal jury, and that no reversible error intervened in his trial.

The judgment of the trial court is affirmed.

DOYLE, P. ,T., and MATSON, J„ concur.


author: DOYLE, P. J.

text:
    MORRIS BROWN v. STATE.
    No. A-3017
    Opinion Filed June 9, 1919.
    Rehearing Denied January 12, 1920.
    (185 Pac. 841.)
    INTOXICATING LIQUORS — Possession With Intent to Sell — Sufficiency of Evidence. In a prosecution for the possession of intoxicating liquors with intent to sell the same, the evidence considered, and held sufficient to sustain the conviction, and that no-material error was committed upon the trial.

      Appeal from, Superior Court, Muskogee County; H. C. Thurman, Judge.

    Morris Brown, Jim Carithers, and Alice Farrel were-tried upon an information charging the unlawful possession of intoxicating liquor with intent to sell it. . Defendants Carithers and Farrel were acquitted, and defendant Brown was convicted, and the latter appeals.
    Affirmed.

      P. A. Gavin, McAdams & Haskell, and J. Fentress Wisdom, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. A tty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Morris Brown, together with Jim Carithers and^ Alice Farrel, were jointly informed against and tried upon an information charging that in Muskogee county, on or about the 10th day of January, 1917, they did unlawfully have possession of 117 quarts of whisky, wine, and gin with the intention then and there on the part of said defendants to sell the same. The jury rendered verdicts acquitting defendants Carithers and Farrel, and finding the defendant Brown guilty and assessing his punishment at confinement in the county jail for six months and a fine of $500. From the judgment rendered on the verdict, he appeals.

The only testimony is that introduced by the state. It is in substance this:

B. C. Hughes, testified that the defendant Brown lived at 217 East Okmulgee avenue in Muskogee, and that on the 10th day of January, 1917, he was there with several other officers and they found the intoxicating liquors as alleged in the information, in the defendant’s home, concealed under a stairway.

C. E. Carpenter testified that he was special officer in the Indian Service and assisted the officers making the search at the home of the defendant Brown, and they found about 100 quarts of whisky and a little wine and beer there.

Harry Blake, deputy United States marshal, testified that he was present with the officers when they found the liquors alleged in the information concealed under the stairway at the home of the defendant Brown; that the defendant Alice Farrel, a colored woman, was employed as a domestic, and was there at the time the search was made.

Several errors have been assigned for a reversal of the judgment and it is insisted that the evidence does not support the conviction.

We have carefully examined the record, and nothing that would in any way tend to prejudice the substantial rights of the plaintiff in error is presented for our consideration. It is the opinion of the court that the evidence is amply sufficient to sustain the verdict and the judgment rendered thereon. The instructions of the court, when considered as a whole, are as favorable to the defendant as the evidence warrants.

Finding no prejudicial error, the judgment is affirmed.

ARMSTRONG and MATSON, JJ., concur.


text:
    FRED BOTKIN v. STATE.
    No. A-2855
    Opinion Filed July 19, 1919.
    Rehearing Denied January 12, 1920.
    (185 Pac. 835.)
    1. APPEAL AND ERROR — Indictment and Information — Overruling Demurrer to Information — Review. Where it is alleged that the trial court erred in overruling a demurrer to the information, in order to save the question for review on appeal, such alleged error- should have been incorporated as a ground for new trial, and presented as' error in the petition. Where this is not done, . and the information is substantially in the language of the ' statute, no ground for reversal of the judgment is presented.
    2. SALES — “Conditional Sale” — “Bailment with Power of Sale.” A contract under which the owner delivers property to another to sell, and which provides that the title to the property shall remain in the owner until sold to an actual purchaser, with the understanding that a certain amount of the proceeds of all sales and all property not sold shall be returned to such owner, imposing no obligation upon the other party to pay the purchase price for any of the property, constitutes a bailment with power of sale, and not a conditional sale.
    8. APPEAL AND ERROR — Technical Error — Reversal. A judgment of conviction will not be reversed on account of the admission of irrelevant evidence, unless, after a full consideration of the entire record, it clearly appears to this court that the trial has probably resulted in a miscarriage of justice, or that the defendant has been deprived of some constitutional or statutory right.
    4. EMBEZZLEMENT — Conviction — Sufficiency of Evidence. In prosecution under Rev. Laws 1910, sec. 2674, making any one intrusted with any property as bailee, or with power of attorney for its sale, etc., who fraudulently converts it or its proceeds’ .to his own use, etc., guilty of embezzlement, evidence, based on defendant’s appropriation of an automobile to his own use and his disposal of it, held to sustain a conviction.

      Appeal from District- Court, Garfield County; James B. Cullison, Judge.

    Fred Botkin was convicted of the crime of embezzlement, and he appeals.
    Judgment affirmed.

      H. J. Sturgis and H. G. McKeever, for plaintiff in error.

      S. P. Freéling; Atty. 'Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   MATSON, J.

This is an appeal from the district court of Garfield county, wherein the defendant, Fred Botkin, was convicted of the crime of embezzlement, and sentenced to serve a term of 18 months’ imprisonment in, the state penitentiary.

The prosecution was founded on section 2674, Rev. Laws 1910, which provides:

“If any person being intrusted with any property as bailee, or with any power of attorney for the sale of transfer thereof, fraudulently converts the same or the proceeds thereof to his own use, or secretes it or them with a fraudulent intent to convert to his own use, he is guilty of embezzlement, whether he has broken the package or otherwise determined the 'bailments or not.”

The charging part of the information substantially follows the language of the statute, and although demurred to in the lower court, the overruling of the demurrer, while urged as error here, cannot be considered seriously as a ground for reversal of this judgment, for the reason that defendant’s counsel did not properly save the ground by presentation of the same either in the motion for a new trial in the lower court or in the petition in error in this court. Suffice it to say that we are of the opinion that the information, while somewhat prolix, sufficiently charges the offense of embezzlement by'a ¡bailee under the requirements of our statutes and the previous decisions of this court.

There is but one alleged ground of reversal urged in the brief of counsel for defendant and assigned in the petition in error ¡of sufficient merit to be seriously considered in this opinion. The defendant requested the court to direct a verdict of not guilty, which the court refused to do, and to which an exception was saved, and which is here urged as ground for reversal. This presents a mixed question of law and fact. It is contended on behalf of the defendant that the relation of bailor and bailee never existed between him and the Carhart Motor Company, whose property he is alleged in the information to have embezzled, but that the relation between them was that of"debtor and creditor, and that, if there is any liability on his part to the Carhart Motor Company, it is a civil liability, for which no criminal prosecution would lie.

On the other hand, the contention is urged on behalf of the state that the relation of bailor and bailee did exist between the Carhart Motor Company and this defendant embezzled the property of the Carhart Motor Company as alleged in the information. The evidence in support of each contention is in substance as follows:

T. F. Debruler testified relative to the contract with defendant substantially as follows:

“I told him that I wanted to come into Enid with the Overland line, and it was necessary for us to have a representative here, and that I would, make him an agreement on this matter this way: That I would make him a price of $785 on our Model 81, touring, and $950 on our Model 80, touring. I would make a contract with him whereby he was to pay us the net cost of these cars at that amount, and all over that amount that he received was his, and that he was to remit to us for the cars as he sold them, and they were our property and the property of the Oar-hart Motor Company. He was to bear all expenses of selling the cars, and we would help him sell the cars here. In fact, I agreed personally to help him sell them.”

In a conversation with Botkin in the presence of Mr, Worthington at the Oxford Hotel on the same day, the following took place between Botkin and Debruler:

“I merely repeated the same proposal as I have just stated in the presence of Mr. Worthington, but stipulated that this would only be binding until I returned — well, until the return of Mr. Carhart, who was in the East at the time, and upon his return, that I would want him to come to Oklahoma City and meet Mr. Carhart, and have Mr. Carhart ratify this deal of mine.”

Botkin told Debruler that he would take the difference between what “we charged him foir these cars and what he sold them for as compensation.”

“I told him that immediately upon the sale of an automobile, or where he had a prospect .sold, that he' should remit the $785 for Model 81, or $950 on the Model 80, and he agreed to do it; he said he would. The title was to remain ours. The cars were our cars. I told him that these cars were to remain the property of the Carhart Motor Company until we received settlement, $785 on one model and $950 on the other, and then we would pass title. He agreed to it.”

About two or three weeks. later, witness Debruler heard a conversation between Mr. Carhart and Mr. Bot-kin in Oklahoma City, in the office of the Carhart Motor Company, as follows:

“Mr. Carhart asked Mr. Botkin what arrangements I had made with him in Enid. Mr. Botkin told him that I had quoted a price of $785 on Model 81 and $950 on Model 80, and that we were to receive that amount of money for every car that Mr. Botkin placed in the Enid territory, and all over that price was his compensation for selling cars for us. Mr. Carhart told him that he thought it was good territory and had not been handled properly, and that with hard work and the line-up it .ought to be a good selling proposition, and talked to him along those lines. I can’t remember the exact conversation. * *■ * Mr. Carhart asked him if he understood that these cars were our nroperty and that the cars were to be placed up there under my supervision, and that we were to receive the amount of money as mentioned immediately upon the sale of any car; that they were our property and we were to carry the insurance on them at Oklahoma City, we bearing that expense ourselves — they stood on our books insured — and Botkin agreed to that.”

E. S. Worthington testified as to the contract between Tom Debruler and Botkin as follows:

'Well, Tom told him that he would make an arrangement which was later to be ratified or turned down by Mr. Carhart, for the sale of Overland cars in this territory, whereby Fred was to sell the cars. Model 81, which retailed at $925 delivered in Oklahoma, was to be handled by him on the basis of $785. Ail above that was to be his profit or commission for selling the cars. The Model 80, the larger car, which retailed at $1,150 in this territory, was to be based on the price of $950. All above $950 Fred was to get for his pay for selling it. That the ownership of the cars was to rest with the Carhart Motor Company. The cars were to be the property of the Car-hart Motor Company, and were to be placed up here for sale, and Fred was to sell them.”

E. R. Carhart states in substance the contract with Botkin to be about as follows:

“Mr. Debruler stated to me, after introducing Mr. Botkin, that he had been unable to secure a satisfactory dealer in Enid and who would meet with our requirements, and that as Mr. Botkin had had some experience in selling cars and seemed to be well acquainted with the people in the territory, he thought that he would be able to do some business, especially as he needed to do some business at that ti^e as he wasn’t very well fixed for money, and that he had made him a tentative proposition, as Mr. Debruler has stated. Those terms were what he told me; $950 on the $1,150 car, when sold. It was to be remitted to us; $785 of the $925 car was to be remitted to us, and we would allow him to sell these cars in this territory up here, that was not covered by a regular dealer, until such time as we could get a good dealer. It was a temporary proposition entirely. My recollection of the whole transaction was that as Botkin had had experience in selling cars, and with Mr. Debruler in direct charge of this territory, as I had pointed — I had appointed him to spend more time here on account of not having a dealer, than in the other parts of the state where we had a dealer, that I thought that temporarily we would be able to keep up the Overland business in this territory until we could select or come in contact with a man who would meet our requirements as an Overland dealer in this territory. That was the sum and substance of the proposition, that I was to send cars up here with the understanding — ■ Q. Now, Mr. Carhart, when these cars were sent by you to Enid, who owned them?

“By. Mr. Sturgis: To which the defendant objects, for the reason that it is calling for a conclusion and an opinion of the witness. Let him state the facts.

“By the Court: Your objections are overruled.

“By Mr. Sturgis: To which the defendant excepts.

“A. I owned them. Q. From whom did you purchase them? A. I purchased them from the Willys-Overland Company. Q. Did any person, other than you, have any interest, in the cars at the time that they were sent to Enid by you? A. No, sir; no one else had. Q. Did anybody have interest in car Model 80, No. 14376, besides yourself, when you sent the car to Enid? A. No, sir; not a cent’s worth. Q. Nowr, Mr. Carhart, you stated a moment ago that until — that under your arrangement, the cars were to remain your property when sent to Enid. When, if at any time, was the title to pass to somebody else? A. The title was to pass when they were paid for. Q. And up until that time, under your arrangement that you had about these cars, where was the title to be?

“By Mr. Sturgis: To which question the defendant objects, for the reason that it is calling for a conclusion and an opinion of the witness, and for the further reason that the sainé is wholly incompetent, irrelevant, and immaterial.

“The Court: Your objections are overruled.

“By Mr. Sturgis: To which ruling defendant excepts.

“A. They were to be in my possession at all times until paid for as I stated, and furthermore I was very explicit regarding that by asking him to be very careful regarding the use of them and in demonstrating, as they were not his property. It would make a secondhand car out of a new car very quickly, if it wasn’t handled carefully. Q. What did he say when you made that statement? A. He thought that he could do and would do some business. I don’t remelmber his exact words. I told him to go to it. * * * Q. When he sold a car, he became indebted to you for the amount of the car, your price $785 or $950, is that correct? A. He was to turn me over that much money for the car whenever he sold it. ■Q. When it was turned over to him, you issued him a bill of sale for it, did you not? A. I did. Q. What you call a bill of sale, which was a receipted' bill ? Is that correct? A. When the car was sold; yes, sir. Q. When he reported that a car was sold, and remitted you the proceeds that were derived from the sale of the car you made out what you have termed a ‘bill of sale,’ which says, ‘Sold to Fred Botkin one Overland automobile, and a certain number and the price, and credited it as paid ?’ Isn’t that the way it was doné? A. Either to Mr. Botkin, if we did not know the owner’s name, or to the owner direct, yes, sir, on payment. Q. How many cars did Botkin sell in this territory? A. He sold 20 cars., I believe. Q. Something like 20 cars? A. Yes, sir; he sold something like 20 cars. Q. How many of them had bills of sale? On how many of them was one of these so-called bills of sale issued to the purchaser? A. I don’t know that. Q. Don’t your books show, and don’t you know that your books show, that in nearly every instance, these cars were sold and your books showr that they were sold to Fred Botkin? A. Nearly all of them showT that the cars were sold — that the bill of sale was made out upon payment to Botkin; yes. Q. In particular, for instance, the price of the car; that is, your net price of $785 or $950 was paid to you by Mr. Botkin? A. I think so; yes, sir. In some cases, the customer came down .and settled for it direct.”

The defendant, Botkin, testified in part*

' “A. Debruler said: ‘Botkin, something- special has got to be done. This is a good, territory, and you say that .'you are not able to finance it, and as we can’t get any dealer here, I will make some kind of a special deal with you.’ This was at the Enid Auto Company that we telephoned- Mr. Killoren. I think it was, and Mr. Worthington was also there. We returned to the Oxford Hotel and. in the lobby, Mr. Worthington said: ‘Boys, I have got to do some writing, and you and Tom (meaning Mr, Deb-ruler) can go up to my room and talk the proposition over.’ So Mr. Debruler and I went to -his room, and he told me just how it was. He said: ‘Now, Botkin, Car-hart is in New York City (I believe he -said) ; but he always leaves everything up to me, and I am going to make you a proposition that is absolutely against our motto of doing business.’ He said also: ‘Now, if this proposition that I make you, on Mr. Carhart’s return, if Mr. Carhart does not approve it, or approve of it, we will have to make other arrangements.’ I said: ‘All well and good. That will be all right with me.’ So he went on to tell me. At that time, there was nobody in the room but Debruler and I,’and at that time my wife was very poorly, and I told Debruler — well, in fact, we had talked a little about whether I should come to Oklahoma City, or whether the cars would be delivered to me here; and so he made the proposition to deliver the cars to me here at Enid. Q. What was the proposition he made to you? He said: ‘Being you say you can’t get away, and working single-handed would be rather inconvenient.’ As it was rather inconvenient for me to go to Oklahoma City to get cars and extra expense, I would rather have had them delivered to me here at Enid. He said: ‘Botkin, I will make you Model No. 81 at $775. I will make you Model No. 80 at $950.’ Q. Was there ever any change made in that price of $775 that he made you there? A. Yes, sir. Q. It was afterwards raised to what? A. I will come to that. He says: ‘We will deliver them here to you at Enid.’ So I accepted the proposition. He says: T will stay here and help you out and get you started, because you know two beads are better than one any time.’ So about that time Mr. Worthington came into Debruler’s roota. He says: ‘Ed, I took a shot at Botkin in this way.’ Then he told him what I have previously said. Worthington says: T believe you’re all right. That is a good proposition for both you. I am satisfied that Botkin can isell the stuff, and as we have never had this territory before, we need somebody that is well acquainted with it.’ Mr. Debruler says: ‘Worthington, Botkin, under the situation, can’t very well go to Oklahoma City with us; but we will beat it for Oklahoma City and bring him up two cars.’ They did do that. Q. How soon did they bring the cars up? A.’ They left the next afternoon; they returned with two cars. Mr. Worthington says: ‘I am not much of an automobile driver, but I will take a shot at it.’ The fact of the matter was that it made Mr. Worthington sick. It shook him up. He is a little frail fellow, and he was not used fo it, and it made him sick. When they came back to Enid with these cars — I can’t just recollect whether I" met them at the — I believe they was at the Enid Auto Company, and I wasn’t there, and when I come to the Enid Auto Company, they told me that the boys had got in with my cars. So I telephoned over to the Oxford Hotel and they came over there with the cars. The model No. 81 I had never seen. Of course, naturally, selling them, I was anxious to see the car. They went back to the hotel, and said that after supper they would see me. They turned the Model No. 81 over to me. I took Model 81 right there. They went back' to the hotel, and in the evening Mr.. Debruler brought the Model No. 80 over to where I was, going to keep the cars. Q. Where was that? A. It was at the Enid Auto Company. Q. How soon was that, after the time you made the arrangement at the Oxford Hotel, that they delivered these cars? A. Well, the next day: the next afternoon or evening. Q. At the time when you had this conversation with Mr. Debruler at Oxford — at the Oxford Hotel — where he made this proposition, what was said, if anything, about the manner in which you should pay for these cars? A. Yes, sir. He told me that, after I sold the cars, I could pay $775 for one model and $950 for the other. Q. Was there anything said there about the title remaining in Mr. Carhart or the Car-hart Motor Company? A. No, sir; there was not. Q. Now, did you immediately enter upon the business of selling these cars after they delivered these two cars to you here? A. I did.”

Briefly stated, the contract between the Carhart Motor Company and the defendant, Botkin, according to the witnesses for the state, was to -the effect that the Carhart Motor Company, located at Oklahoma City, was. to deliver to Botkin certain models of the Overland make of automobiles, which the said Botkin was to retain, in his possession until sold, and immediately upon sale to remit to the Carhart Motor Company, for one type or model of car the sum of $785 of the purchase price, and for the other-type or model of car the sum of $950 of the purchase price, the balance above said sums to be retained by the said Botkin as compensation for his services in selling said cars. The state’s witnesses testified that the retail price of one model was $925, and the other model $1,150. The property rights in said cars were to remain at all times in the Carhart Motor Company until a sale was perfected by said Botkin to private purchasers, at which time the Carhart Motor Company was to issue a bill of sale upon payment of the purchase price either to Botkin or to the party purchasing' the car from Botkin as desired. In the event no sale was made, the Carhart Motor Company was to be returned the unsold cars.

There was no obligation on the part of Botkin to pay for these cars, but only to account for the proceeds received upon sales to others according to the stipulated price for each model. The Carhart Motor Company had no power to compel Botkin to take any of these automobiles, or to pay for any of them, and either party had the right to terminate the arrangement at any time. Clearly it was not the intention of the Carhart Motor Company that Botkin should ever own any of the automobiles or pay the purchase price for them individually. It was the intention of the parties, from the terms of the contract as testified to by the state’s witnesses, that the automobiles should remain the property of the Carhart Motor Company until sold to an actual purchaser by Botkin, and, urn less sold, the automobiles were to be returned to the Car-hart Motor Company.

The testimony of the defendant shows an entirely different contract, to wit: A sale by the Carhart Motor Company to Botkin of the particular models, one for ¡5775 and the other for $950, trusting the said Botkin to-pay for said cars whenever he had sold the same to a third party; the Carhart Motor Company retaining no property rights whatever in said cars. In other words,, the defendant contended that the Carhart Motor Company, without any security whatever from him, sold him from time to time automobiles of a very considerable-value, on his promise to pay for the same at a future time.

The issues thus joined between the state and the defendant were clearly and fully presented to the jury by-court’s instructions and the conflict between the evidence, on the part of the state’s witnesses and that of the defendant was settled by the verdict of the jury finding the-defendant guilty, so that the only question presented is whether or not the evidence on the part of the state’s witnesses is sufficient to support a conviction of the crime charged.

We believe that the state’s evidence clearly establishes the relationship of bailor and bailee between the said Car-hart Motor Company and the defendant, Fred Botkin; that there was an express agreement that the automobile which he is charged to have embezzled in this case was delivered to him with the understanding between him and the Carhart Motor Company that he was to sell the said car and. remit or return so much of the proceeds of the sale to the Carhart Motor Company. At no time did the defendant have any property rights in the thing sold; he merely had possession of the same under his agreement to sell, and if the thing was not sold, it was to be returned to its rightful owner, the Carhart Motor Company. These facts constituted a bailment, and the evidence is undisputed that the defendant fraudulently converted the property to his own use in violation of his agreement for the sale of the same. Cases in point are: Norris et al. v. Boston Music Co., 129 Minn. 198, 151 N. W. 971, L. R. A. 1917B, 615; In re Columbus Buggy Co., 143 Fed. 859, 74 C. C. A. 611; In re Flanders, 134 Fed. 560, 67 C. C. A. 484; In re Galt, 120 Fed. 64, 56 C. C. A. 470; Ellers Music House v. Fairbanks, 80 Wash. 369, 141 Pac. 885; Com. v. Harris, 168 Pa. 619, 32 Atl. 92.

In the case of Norris et al. v. Boston Music Co., supra, it is held:

“A contract under which the owner delivers property to. another to sell, and whichl provides that the title to the property shall remain in the owner until sold to an actual purchaser, and that all property not so sold, and the proceeds of all sales, shall be returned to such owner, and which imposes no obligation upon the other party to pay the purchase price for any of the property, constitutes a bailment with power of sale, and not a conditional sale.”

The other decisions cited are substantially to. the same effect, and sustain the state’s! contention that the relationship existing between the Carhart Motor Company and the defendant, Botkin, was that of bailor and bailee, and as the evidence on the part of the state is sufficient to support the conviction, the court did not err in overruling the defendant’s motion to direct a verdict in his favor. While, under the defendant’s testimony, he wiould have been entitled to an acquittal, it was for the jury to say whom they would believe and whom disbelieve.

The contention that the court' admitted certain incompetent and irrelevant evidence concerning the condition-of the car after the defendant had appropriated it to his own use and driven it to Miles City, Mont., where he afterwards disposed of the same, is without merit. The contention here urged is that such evidence had a tendency to inflame the minds of the jury against the defendant; but as the punishment imposed was only 18 months’ imprisonment; and the evidence discloses, if the state’s witnesses are to be believed, a clear case of guilt, supported by the actions and conduct of the defendant himself, it cannot be said that there was a miscarriage of justice by the conviction of the defendant under the facts of this case, and while the ■ evidence complained of sheds no light on the material facts of the case, its admission cannot be said to be prejudicial to the substantial rights of the defendant, in view of the light punishment imposed.

For the reasons stated, the judgment is affirmed.

DOYLE, P. J., and ARMSTRONG, J., concur.


text:
    JAMES BRADSHAW v. STATE.
    No. A-2874
    Opinion Filed July 26, 1919.
    Rehearing Denied January 12, 1920.
    (185 Pac. 1102.)
    1. PRELIMINARY EXAMINATION — Transcript — Correction. Where several persons are jointly -charged in a preliminary complaint with the crime of robbery and waive examination thereon, and the justice of the peace fails to show 'by proper transcript that all of said defendants had waived a preliminary examination in that case and had been bound over to answer the charge in the district court, the said justice of the peace may, upon motion to set aside the information in the district court because no preliminary examination had been given the defendant, by leave of said court, correct his transcript to speak the truth by showing that the defendant had waived a preliminary examination o-f the charge contained in the information filed in the district court.

      %. INDICTMENT AND INFORMATION — Motion to Set Aside-Waiver of Preliminary Examination. Where, upon hearing of a motion to set aside the information because no- preliminary examination has -been had, the trial court, after amendment of the transcript by the justice of the peace, finds as a matter of fact that the defendant had waived a preliminary examination, and the transcript o-f the justice of the peace as amended clearly supports such finding, there is no error in overruling the motion ■to set aside the information on such ground.
    3. APPEAL AND ERROR — Discretion of Trial Court — Indorsement of Witnesses. After one C., a codefendant, had pleaded guilty to the charge, and after the trial had commenced, the state asked permission to indorse his name upon the information and to use him as a witness against the defendant. Held discretionary with the trial court. Where no manifest abuse of such discretion appears, a judgment of conviction will not be reversed.
    4. APPEAL AND ERROR — Briefs —- Evidence — Review. Where counsel for defendant have wholly failed to comply -with rule 7 of this court by incorporating in the brief “the full substance of the evidence admitted or rejected, stating specifically the objection thereto when the error alleged relates to the admission or rejection of evidence,” and the brief of the Attorney General sets forth certain facts and circumstances detailed in evidence by tbe state’s witnesses which tend to show that the evidence complained of was properly admitted, and there is no claim by ■defendant’s counsel that the Attorney General has misstated the record, this court will not closely scrutinize the record for the purpose of substantiating the defendant’s claim; an apparent unchallenged refutation thereof appearing from the state’s brief.

      Appeal from. District Court, Sequoyah County; John H. Pitchford, Judge.

    James Bradshaw was convicted of the crime of conjoint robbery, and he appeals.
    Judgment affirmed.

      McCombs <6 McCombs, L. C. McNabb, and W. A. Carlile, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   MATSON, J.

This is an appeal from the district court of Sequoyah county, wherein the defendant was convicted of the crime of conjoint robbery, and sentenced to serve a term of five years’ imprisonment in the state penitentiary. From this judgment he has appealed and urges in this court three separate grounds for reversal of the judgment, which will be considered in the order presented in the brief.

First, it is contended that the trial court erred in overruling the defendant’s motion to set aside the information on the ground that no preliminary examination had been held.

The contention of counsel for defendant is rather unusual. The record discloses, after the justice of the peace had amended his transcript in the district court, that after the bank at Vian had been robbed, this defendant and others were charged before a justice of the peace at Vian by a complaint with an offense which was stated in the complaint and warrant to be “conspiracy to rob.” None of the facts constituting the offense were pleaded in the complaint, and all these proceedings were had without the knowledge of the county attorney, who resided and had his office in the county seat at Sallisaw.

After the county attorney appeared in the justice of the peace court, a complaint under oath was filed as a substitute in one of the cases, charging all the defendants jointly with the crime of conjoint robbery in robbing the First National Bank of Vian, the same crime set forth in the information upon which this trial resulted in the conviction of this defendant. Some days after the filing of this later complaint, the defendant appeared in the justice of the peace court at Vian and waived a preliminary examination, and the justice of the peace, in making his transcript, only showed that one of the defendants jointly charged, to wit, the defendant Compton, was bound over to answer to the charge of robbery as lodged in the substituted complaint filed by the county attorney. But other of the defendants, including Bradshaw, gave bond to appear and answer to the charge of robbery in the district court of said county, as preferred in said preliminary complaint. The county attorney subsequently filed the information in the district court jointly charging these defendants with the crime of conjoint robbery, as alleged in the preliminary complaint filed with the justice of the peace at Vian.

It also appears that the justice of the peace made out a separate transcript in all the other cases filed before him charging a conspiracy to rob, believing, no doubt, that conspiracy to rob charged a felony, and that the defendants, having waived a preliminary examination, did so as to all the offenses then pending before him. This apparent misunderstanding of the law on the part of the justice of the peace was attempted to be taken advantage of in the district court. Counsel for defendant contended that they had only waived a preliminary examination as to the charge of conspiracy to rob.

This presented the anomalous condition of the defendant claiming to have waived a preliminary examination only in -a misdemeanor case, in which no preliminary examination could have been held, and led to the investigation of the justice of the peace records, and to the amendment of his transcript in the robbery case to speak the truth, by showing that each of the defendants had waived a preliminary examination in that case, and had been bound over to answer the charge in the district court of Sequoyah county. The justice of the peace had a right to amend his record to speak the truth in this particular and it was the duty of the trial court to see that such record was amended to speak the truth. Williams v. State, 6 Okla. Cr. 373, 118 Pac. 1006; Norwood v. State, 14 Okla. Cr. 637, 169 Pac. 656.

The trial court made a finding to the effect that the defendant had waived a preliminary examination' of the charge of conjoint robbery preferred against him, and the amended transcript filed by the justice of the peace clearly supports the finding of the court in that respect. We find, therefore, from the record before us, that the first assignment of error is without merit.

It is next contended that the court erred in permitting the state to use Emlmett Compton as a witness against the defendant, and in permitting the state to indorse the name of said witness upon the back of the information after the trial had begun, over the objection and exception of the defendant.

The record discloses that the said Emmett Compton was jointly charged with the defendant with the commission of this robbery; that before the defendant’s trial had commenced the said Emmett Compton had entered a plea of guilty of the charge, but that the court had not at the time he testified pronounced sentence upon said plea.

That the said Compton was a competent witness against the defendant and on behalf of the state is the holding of this court in the following cases: Brown v. State,. 9 Okla. Cr. 382, 132 Pac. 359; Montgomery v. State, 13 Okla. Cr. 662, 166 Pac. 449.

That it was discretionary with the trial court to permit the state to indorse the name of this witness upon the back of the information during the progress of the trial, and that a reversal of the conviction on account of such action will not result unless the court has clearly abused its discretion, is the holding of this court in the following cases. Stockton et al. v. State, 5 Okla. Cr. 310, 114 Pac. 626; Hawkins v. State, 7 Okla. Cr. 385, 123 Pac. 1024; Bigfeather v. State, 7 Okla. Cr. 364, 123 Pac. 1026; Grayson v. State, 12 Okla. Cr. 226, 154 Pac. 334.

An examination of the record fails to disclose any manifest abuse of discretion upon the part of the trial court in permitting the name of this witness to be indorsed upon the information. It cannot he said that the defendant was at all surprised by this denouement on the part of the state; rather, it appears that the defendant was advised that his codefendant Compton would testify in behalf of the state. No ground of error is presented in the second, assignment such as would authorize this court to reverse the judgment.

Lastly, it is contended that the court erred in permitting the state to prove acts and declarations of the co-defendants not on trial as against this defendant, both before and after the commission of the offense, without having first established a conspiracy between such code-fendants and this defendant, or without evidence of any concert of action on their part toward the commission of the offense.

Riile 7 of this court, relative to briefs and the contents thereof, among other things, provides:

“When the error alleged relates to the admission or rejection of evidence, the specification shall quote the full substance of the evidence admitted or rejected, stating specifically the objection thereto.” i

Counsel have wholly failed to comply with this rule of the court. Nowhere in the brief is the substance of the evidence set out in full which it is claimed was erroneously admitted, nor is there any discussion of evidence claimed to be erroneously admitted, calling attention of the court to its relation to the other evidence in the case. Counsel merely call the court’s attention to the evidence of certain witnesses, and leave it to the court to search the record for the evidence complained of and to discover by our own investigation the alleged error, if any.

The Attorney General, in his brief, has called the attention of the court to certain facts and circumstances detailed in evidence by the state’s witnesses which tended to show a concert of action between this defendant and the other defendants jointly charged with him toward the commission of this crime. Under the previous opinions of this court, such facts and circumstances were sufficient to permit the jury to conclude that a conspiracy existed between these defendants to> commit this bank robbery, and therefore the evidence complained of was admissible. Ex parte Hayes et al., 6 Okla. Cr. 231, 328, 118 Pac. 609; Starr v. State, 5 Okla. Cr. 440, 460, 115 Pac. 356; Holmes v. State, 6 Okla. Cr. 541, 555, 119 Pac. 430, 120 Pac. 300; Burns v. State, 8 Okla. Cr. 554, 569, 129 Pac. 657; Irvin v. State, 11 Okla. Cr. 301, 146 Pac. 453.

The failure of counsel for the defendant to comply with the rules of this court warrants the court, in the face of the fact that .reply has been made to the brief of the Attorney General setting out the detailed facts and circumstances which he claims authorized the admission of this evidence, to conclude that there is little merit in this assignment, in view of all the evidence in this case which clearly points to the defendant’s guilt.

There is no error in this record which deprived the defendant of any substantial right or resulted in a miscarriage of justice.

The judgment is affirmed.

DOYLE, P. J., and ARMSTRONG, J., concur.


author: PER CURIAM.

text:
    GUS FELAS v. STATE.
    No. A-3118
    Opinion Filed July 19, 1919.
    Rehearing Denied January 12, 1920.
    (185 Pac. 839.)
    1. APPEAL AND ERROR — Convictions on Conflicting Evidence— Review. A verdict of conviction on conflicting evidence will not be disturbed by this court where there is any competent evidence in the record from which the jury could reasonably conclude that the defendant was guilty of the crime charged.
    2. INTOXICATING LIQUORS — Possession With Intent to Sell-Evidence — General Reputation of Place. The general reputation of the place where intoxicating liquors are kept for sale, on a charge of unlawful possession of intoxicating liquors with intent to sell same in such place, held admissible under the facts of this case.
    8. APPEAL AND ERROR — Culpable Defense — Instructions—Reversal. Where the defense interposed is culpable within itself, instructions of the court given over the objection and exception of the defendant, and inartifieially drawn, constitute no ground for reversal.

      Appeal from County Court, Pittsburg County; S. F. Broion, Judge.

    Gus Felas was convicted of the offense of unlawful possession of intoxicating liquors, and he appeals.
    Judgment affirmed.

      Andrews & Anderson, for plaintiff in error.

      S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   PER CURIAM.

No new questions are raised in this appeal. Gus Felas was convicted in the county court of Pittsburg county of the crime of having unlawful possession of intoxicating liquors with -intent to sell the same, and his punishment fixed at a fine of $250 and imprisonment in the county jail for a period of 60 days.

The evidence on the part of the state showed that the defendant had in his possession a large amount of Choctaw beer, which was contained in two 5-gallon begs, one 10-gallon keg, and 29 or 30 quart bottles, on the premises of the defendant in the city of McAlester, on the 27th day of August, 1916. These premises were located on Stonewall avenue near the state penitentiary, and at the time the officers made the raid and found the liquor, five or six men were sitting around a table on the premises of the defendant drinking Choctaw beer from quart bottles. Some of the bottled beer was hidden in a stove on the premises, and one of the kegs was found in a cave or storm cellar. The evidence on the part of the state’s witnesses was to the effect that this was an intoxicating beverage.

The defendant admitted having possession of the liquor, but denied that it was intoxicating, although his wife, who was a witness in his behalf, testified that it “wouldn’t make you drunk for two or three days after it was made”; also, that it was not fit to drink for two or three days.

The only controverted questions of fact were as to the intoxicating qualities of the beverage, and also as to the intent of the defendant to dispose of the same in violation of law. The evidence is conflicting as to the intoxicating properties of this beverage, but there is evidence in the record which, if believed, would authorize the jury to reasonably conclude that the beverage was intoxicating. Under circumstances such as this, the verdict and judgment will not be disturbed because of the insufficiency of the evidence. Vaughan v. State, 14 Okla. Cr. 475, 172 Pac. 975; Hall v. State, 14 Okla. Cr. 379, 171 Pac. 347; Tittle v. State, 14 Okla. Cr. 562, 174 Pac. 295; Newton v. State, 14 Okla. Cr. 569, 174 Pac. 89.

As to the unlawful intent, the defendant and his witnesses admitted that it had been his custom to dispense Choctaw 'beer to all persons who were customers of his in the grocery store conducted on the premises whenever they paid their bills, but he said he did not charge them anything for the beer, merely making a gift to those who were kind enough to promptly pay their grocery bills if they liked the beer.

This defense was culpable within itself. It is evident that if this court would condone such a practice a' state-, wide system of manufacturing and dispensing intoxicating beverages under the guise of gifts or social drinks would arise in this state, which would lead to results as disastrous as the open saloon. The defense interposed, therefore, in the opinion of the court, did not entitle the defendant to an acquittal. He had no right under the laws of this state to dispense intoxicating liquors in any such manner, for the evident purpose of inducing trade' in the grocery business and prompt payment of such accounts.

The state was permitted, over the objection and exception of the defendant, to introduce, evidence to show that the general reputation of the premises of the defendant was that it was a place where Choctaw beer could be bought. Witnesses for the state testified, preliminary to this evidence, that the defendant’s premises was a place of public resort where people congregated for the purpose of drinking Choctaw beer, and that peop'/b under the influence of intoxicants had frequently been seen on such premises. This evidence was 'admissible under the proof in this case. Ward v. State, 15 Okla. Cr. 150, 175 Pac. 557; Dunbar v. State, 15 Okla. Cr. 513, 178 Pac. 699.

Certain instructions given by the court are complained of, and while the same are inartificially drawn, in view of the defense interposed, it cannot be said that the defendant was prejudiced by the court’s instructions, or that the jury was misled thereby.

The judgment is affirmed.


text:
    WILL RALSTON et al. v. STATE.
    No. A-3070
    Opinion Filed October 7, 1919.
    Rehearing Denied January 12, 1920.
    (185 Pac. 831.)
    1. INDICTMENT AND INFORMATION — Objection to Absence of Preliminary Examination — Time. Objections to an information, based upon the absence of any essential preliminary proceeding, should be made by proper motion or plea, before -pleading to the merits.
    2. INDICTMENT AND INFORMATION — Objection to Sufficiency —Demurrer. Objections to the sufficiency of an information should be taken by a demurrer thereto, as provided by Code of Criminal Procedure (section 5791, Rev. Laws 1910).
    Our Code further provides: “When the objections mentioned in section 5791 appear upon the face of the indictment or information, they can only be taken by demurrer, except that the objection to the jurisdiction of the court over the subject of the indictment or information, or that the facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty and in arrest of judgment.” Section 5799.
    3. SAME — Objection to Sufficiency After Impaneling Jury. Where the defendant enters his plea of not guilty and waits until after the jury has been impaneled and sworn, and then for the first time questions the sufficiency of the information by objecting to the introduction of .evidence on the ground of such insuffijiency, the objection should be overruled, if by any reasonable construction or intendment the information can be sustained.
    4. APPEAL AND ERROR — Necessity for Exceptions — Instructions. Errors assigned on the instructions given, where no objection was made or exception taken to the samé, will not be reviewed.
    5. LARCENY — Evidence—Sufficiency. The evidence upon the trial of an information for larceny of domestic animals considered, and conviction affirmed.

      Appeal from District Court, Creek County; Ernest B. Hughes, Judge.

    Will Ralston and John Ralston were convicted of hog theft, and they appeal.
    Affirmed.

      R. B. Thompson and Asp, Snyder, Owen & Lybrand, for plaintiffs in error.

      S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiffs in error, Will and John Ralston, were tried and convicted on an information charging that—

In Creek county, on the 31st day of December, 1916, they “did unlawfully and feloniously by stealth and fraud, steal, take and carry away from and out of the possession of Margaret Fout, the owner of the following domestic animals, to wit, one sow and six pigs without the consent or knowledge of her, the said Margaret Font, with the felonious intent of them the said Will Ralston and John Ralston to deprive the true owner thereof and with the intent to convert the same to the use of them the said Will Ralston and John Ralston, contrary to,” etc.

The jury failed to agree on their punishment. The court sentenced Will Ralston to serve a term of four years and John Ralston to serve a term of three years in the penitentiary. From the judgments they appeal.

First, it is contended that the district court was without jurisdiction of the case owing to the insufficiency of the transcript of the committing magistrate. The record shows that upon arraignment the defendants entered pleas of not guilty, and made no objection until the second witness for the state was testifying, when their counsel made the following statement:

“At this time the defendants and each of them object to the testimony of this witness or any other witness on the ground that the purported transcript of the justice of the peace in this case is not sufficient to give the court jurisdiction.”

The objection was overruled and exception allowed.

Objections to an information based upon the absence of any essential preliminary proceeding or irregularity in such proceeding should be onade by a proper motion or plea before pleading; otherwise, it is waived. The proper practice is to raise the question before pleading by motion to set aside or to quash the information or by plea in abatement. The state can then take issue on the motion or plea, and the burden of proof is on the • defendant. Even if well founded and properly stated, the objection made came too late and was properly overruled.

The next assignment is, “The information does not allege the stealing of any animals, and is therefore insufficient.”

The record shows that the first and only objection made to the information was, when the first witness was testifying,, counsel for the defendants stated:

“I desire at this time to object to the testimony of this witness or any other witness on account of the insufficiency of the information; that is, lack of proper description of the property alleged to have been stolen.

“The Court: Overruled.”

Objections to the sufficiency of an information should be taken by a demurrer thereto as provided by our Code of Criminal Procedure (section 5791, Rev. Laws 1910).

Our Code further provides:

“When the objections mentioned in section 5791 appear upon the face of the indictment or¡ information, they can only be taken by a demurrer, except that the objection to the jurisdiction of ithe court over the subject of the indictment or information, or that the facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty, and in arrest of judgment.” Section 5799.

Under this provision, if it appears that the facts stated do not constitute a public offense, an objection to the introduction of evidence on that ground is sufficient to raise the question. However, when the objection to. an information for a defect of form, apparent on the face thereof, is raised for the first time by objection to the introduction of evidence, it comes too late, and the objection should be overruled, if the facts stated constitute a public offense.

It is apparent that, in writing the information in this case, the word “of,” following the words “Margaret Fout, the owner,” was inadvertently used instead of the word “thereof,” or the inserting of a comma after the words “owner of” would have cured this defect.

This court has uniformly held that, when the defendant enters a plea of not guilty and waits until after the jury has been impaneled and sworn and for the first time questions the sufficiency of an information by objecting to the introduction of testimony on the ground of such insufficiency, the objection should be overruled, if by any reasonable construction or .intendment the information can be sustained. Under this rule the information was sufficient and the objection properly overruled.

The next assignment of error is that the evidence was insufficient to justify the verdict of the jury.

The evidence shows that the owner of -the hogs, a sow weighing about 250 pounds and five shoats weighing about 60 pounds each, missed them from her place on New Year’s eve.

F. C. Nelson and his wife testified that they were well acquainted with the defendants and saw them that evening about three miles north of where the owner lived, driving the hogs; that the hogs belonged to Mrs. Fout, and they informed the owner, and the next morning Mr. Nelson and Mr. Fout tracked the hogs to a camp near where Mr. Nelson saw the defendants driving the hogs; that the tracks around the camp showed that the hogs had there been caught and loaded into a wagon. A horseshoe was found at the camp, and the team and wagon were tracked to the defendant John Ralston’s house, about twelve miles from where the owner of the hogs lived.

The defense was an alibi, although the defendants admitted they were in that neighborhood a few days before.

It is obvious the case was one for the consideration of the jury, and the evidence of the defendants’ guilt was ample to justify the verdict.

'Several assignments are based on the instructions given by the court, but no exceptions appear to have been taken to the instructions of the court, and no instructions were requested. Hence the record in this regard presents no question for review. However, we find that the charge of the court fully and fairly covered the law of the case. The record shows that the defendants had a fair and impartial trial.

The judgments appealed from are therefore affirmed.

ARMSTRONG and MATSON, JJ., concur.