author: ARMSTRONG, P. J. FURMAN, J.

text:
    OCE JONES v. STATE.
    No. A-1717.
    Opinion Filed November 1, 1913.
    Rehearing Opinion December 20, 1913.
    (136 Pac. 182.)
    (137 Pac. 121.)
    1. APPEAL — Review — Verdict — -Conflicting Evidence. Under the law in this state issues of fact arising in the trial of a criminal action are for the jury, and when there is a clear conflict in the testimony their finding thereon will not be disturbed by this court.
    2. STATUTES — Repeal of Penal Statute — Effect — Continuance of Prosecution. Under the common law the repeal of a penal statute operated as a remission of all penalties for violations thereof committed before its repeal, unless the repealing statute contained a provision expressly reserving the right to the state to continue suet prosecution, but under the Constitution and laws of our state this rule is abrogated; there being a constitutional provision and a general statute reserving this right to the state.
    3. WORDS AND PHRASES — “Penalty”—“Liability”—“Forfeit-' ure” — “Punishment.” The words “penalty,” “liability,” and “forfeiture” are frequently treated as synonymous with the word “punishment,” in connection with crimes of the highest grade.
    On REHEARING.
    1. APPEAL — Harmless Error — “Technicality”—Record — Presumption of Regularity, (a) It amounts to a miscarriage of justice for an appellate court to reverse a conviction upon purely technical objections.
    (b) A technicality, within the meaning of section “a” of this syllabus, is a proposition of law which in the abstract is correct, but which does not involve the jurisdiction of the court or the substantial rights of the defendant.
    (e) If a principal of law has been violated during a trial, which involves the jurisdiction of the court, or which affeets the substantial rights of the defendant, it will not constitute a technicality under section “a” of this syllabus, but will be reversible error.
    (d) The burden is on an appellant to show that the law was violated upon his trial in such a manner as to involve the jurisdiction of the court or to deprive him of a substantial right; unless this affirmatively appears from the record, where the evidence shows that a defendant is guilty, the appellate court has not the legal right or power to reverse a conviction.
    (e) There must be an end to litigation; every presumption must be indulged in favor of the regularity of proceedings in courts of record and in support of the verdicts of juries; and they will not be disturbed unless it affirmatively appears from, the record that they are erroneous and that the defendant was injured thereby.
    2. SAME — Petition for Rehearing — Essentials. In a petition for rehearing the grounds upon which it is sought must be distinctly and particularly set forth.
    3. EVIDENCE — Rebuttal. Where a defendant places a witness upon the stand who testified in his behalf that a certain man was at a given place upon a given day, and the presence of said man at said place is material, the state on cross-examination or by direct evidence may show why said man was there.
    4. LARCENY — Harmless Error — Evidence—Ownership of Premises— Statements of Coconspirators. (a) Where a defendant is charged with larceny, and the ownership or control of a certain pasture, in which the stolen property was found, is in question, it is competent for the state to show that a year before the larceny was committed the defendant had used the said pasture or exercised control over it. The length of time which had elapsed would go to the weight of the evidence and would not affect its admissibility.

      (b) Where the evidence tends to establish a conspiracy to steal cattle and horses, conversations with, or statements to or by, persons who are connected with this conspiracy, and during its continuance, are admissible in evidence against any of the co-conspirators upon trial for larceny.
    (e) If upon a trial for larceny a witness is erroneously permitted to testify to a statement made by him to a third party and further testifies that such statement was true, and it appears from the record that this statement was material to the issue of guilt or innocence, such positive and direct testimony given in court would cause the error, in allowing the witness to tell what he had said to the third'party, to become harmless.
    5. WITNESSES — Defense — Evidence — Self-Serving Declaration — Cross-Examination — Wife of Accused, (a) AVhere the wife of a defendant takes the stand for the purpose of proving an alibi in his behalf and testifies that he was at home with his family at the time of the commission of the crime but left home early on the following morning, it is competent for the state on cross-examination to ask said witness how long it was after the commission of said crime before defendant returned home.
    (b) Where a defendant is charged with the commission of a crime and leaves the country and is gone for seven months, or any length of time, it is not competent for him to prove when he returned home or use in evidence any statements which he may have made as to where he had been, and what he had been doing in such absence, as such statements would clearly be self-serving declarations.
    6. EVIDENCE — Accomplices — Corroboration — Instructions. Eor a correct instruction as to the testimony of an accomplice, see opinion.
    (b) The law does not require the jury to find, beyond a reasonable doubt, that the testimony of an accomplice has been corroborated. All that is necessary is that there must be some other evidence tending to connect the defendant with the commission of the crime charged against him.
    (c) Jurors are presumed to be men of ordinary intelligence and to understand the English language. It is therefore not necessary for the court in its instructions to define the meaning of the words, “connect the defendant with the crime charged against him. ’ ’
    7. APPEAL — Reduction of Sentence — Sufficiency of Evidence, (a) While this court has the power to modify a judgment and reduce a sentence inflicted by the jury or trial court, this power cannot be arbitrarily used, but can only be exercised where it appears from the record that an injustice has been done in assessing the punishment upon him.
    (b) Eor circumstances which justified and required the infliction of the maximum punishment in a case of larceny, see opinion.

      ■Appeal from District Court, Carter County; S. H. Russell, Judge.

      Oce Jones was convicted of larceny of animals, and appeals.
    Affirmed.

      Johnson & McGill and Cruce & Potter, for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   ARMSTRONG, P. J.

The plaintiff in error, Oce Jones, was convicted at the November, 1911, term of the district court of Carter county on a charge of larceny of domestic animals, and his punishment fixed at imprisonment in the state penitentiary for a period of ten years. To review the judgment of conviction he has brought this appeal. The prosecuting witness, W. R. Cypert, and the accused were near neighbors, living in Carter county, Okla. On the night of January 18, 1911, four horses and one mule were stolen from Cypert, and were later found in the Arbuclde Mountains, in a pasture used by the accused. Warren Yell and Bryant Ballew were jointly charged with the offense. They testified against the accused that on the evening of the larceny he gave them $10 each to help him move the horses up into the Arbuckle Mountains to his pasture; that he told them he would see that they did not get into trouble. The accused bought some carbolic acid at Heflin’s drug store just before the trip. This fact is testified to 'by witness Coffee and by the druggist Heflin. The three left Jones’ house on horseback, the accused riding a large, brown bay horse, the property of Yell, the other two' riding smaller horses; each horse being shod all round. They rode north to the pasture of prosecuting witness, and there found the horses and mule. The accused cut the wire fence with clippers, and they took four horses and one mule. They had some trouble catching the horses, and left one they could not get hold of. They left the field and traveled south along what the accused told his associates was the Ardmore road, for the purpose of turning people off their track and leaving the impression that the horses had gone south. After going 'some distance they doubled back on an old road, and went back north to the Arbuckle Mountains, to a pasture commonly known as “No Mans” pasture, in which the accused had been keeping stock. It appears that this pasture is on top of the Arbuckles, and is made by adjoining landowners fencing their lands on all sides of it. No one seems to have any legitimate claim to the tract of land constituting this pasture. This is apparently a place scarcely ever visited, and practically impossible of being found except by those being very familiar with the surrounding country and its particular location. This place was reached early in the morning of January 19th, and is apparently about fifteen miles from where the horses were taken. After reaching the pasture the stock were rebranded with the carbolic acid purchased the day before at Heflin’s drug store in Lone Grove. Three or four days later, when the horses were found, there were fresh brands on them which had the appearance of having been made by acid and bore the odor of carbolic acid. There was a leather halter on the mule, which was taken off and hidden under a rock. One of the accomplices told the officers where this halter could be found, and later took the officers to this place and the halter was so found. After branding the stock the parties separated; Jones going one directiqn, Yell and Ballew in another. It appears that the horse the accused rode on the night of the larceny belonged to accomplice Yell; that he recovered the same about a month later from a brother-in-law of the accused. Yell and Ballew were arrested a short time after the larceny. The accused was not located for six or seven months, and not until he came into Ardmore and surrendered to the officers. His family, however, continued to live at Lone Grove and near the town of Dixie.

The accused entered a plea of not guilty and undertook to establish an alibi. The principal witnesses testifying thereto were two brothers, and from a reading of the record it is not surprising that the jury found against him, as the testimony of these witnesses is thoroughly impeached by the state, and their stories are most unlikely. In fact there is very little straightforward, reasonable, convincing testimony on behalf of the accused. There are many other corroborating circumstances supporting the stories told by the accomplices, entirely sufficient in our judgment to warrant the finding of the jury. With this in view this court will not reverse this judgment, in the absence of substantial errors of law.

The only material law point raised by counsel for plaintiff in error is based on the contention that the crime was committed on the 18th of January, 1911, and that the prosecution was not begun until August 31, 1911; that during this interim the Legislature repealed the statute under which the crime was prosecuted.

The statute on which the prosecution was based reads as follows:

“Any person in this state who shall steal any horse, cow or hog shall be guilty of a felony and upon conviction shall be punished by confinement in the state penitentiary for a term of not less than one year nor more than ten years; provided that where the horse or horses stolen are proven to be work stock the punishment shall be not less than three years nor more than ten years. The word ‘horse’ as used in this act shall include all animals of the equine species, and the word ‘cow’ shall include all animals of the bovine species.” (Sess. Laws 1910, c. 98.)

The amendment which counsel contend repealed that statute is as follows:

“Section 1. That section 1, chapter 98, 1910, Session Laws of Oklahoma, be and the same is hereby amended to read as follows:

. “Section 1. Any person in this state who shall steal any horse, shall be guilty of a felony and upon conviction shall be punished by confinement in the state penitentiary for a term of not less than five years nor more than ten years; and any person in this state who shall steal any cow, or hog shall be guilty of a felony and upon conviction shall be punished by confinement in the state penitentiary for a term of not less than two ’(2) years, nor more than ten years. The word ‘horse’ as used in this act, shall include all animals of the equine species, and the word ‘cow’ shall include all animals of the bovine species.” (Sess. Laws 1911, c. 92.)

There are two reasons why this contention is not well founded, only one of which we will discuss.

Section 54 of article 5 of our Constitution is as follows:

“The repeal of a statute shall not revive a statute previously repealed by such statute, nor shall such repeal affect any accrued right, or penalty incurred, or proceedings begun by virtue of such repealed statute.”

Section 2972, Comp. Raws 1909, provides:

“The repeal of any statute by the Legislative Assembly shall not have the effect to release or extinguish any penalty, forfeiture or liability incurred under such statute, unless the repealing act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability.”

The construction of an identical statute was before the United States Supreme Court in the case of U. S. v. Reisinger, 128 U. S. 401, 9 Sup. Ct. 100, 32 L. Ed. 480, in which the court said:

“It is conceded that, under the general principles of the common law, the repeal of the jjenal statute operates as a remission of all penalties for violations of it committed before its repeal, and a release from prosecution therefor after said repeal, unless there be either a clause in the repealing statute, or a provision of some other statute, expressly authorizing such prosecution. In this case the court is of the opinion that section 13, Rev. Stat., contains such provision. It reads as follows: ‘The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing act shall so expressly provide; and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.’ This section, we think, clearly excepts offenses committed before the passage of the repealing act of 1884. To show this, it is only necessary to read the act of 1884 in connection with section 13, Rev. Stat., as one act. It would then be read substantially as follows: ‘Be it enacted,’ etc., ‘that the act entitled “An act relating to claim agents and attorneys in pension cases,” approved June 20th, 1878, is hereby repealed: Provided, that said repeal shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred thereunder, and that the same shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty or liability.’ The only ground upon which the correctness of this interpretation may be doubted is that the words ‘penalty,’ ‘liability,’ and ‘forfeiture’ do not apply to crimes and the punishment therefor, such as we are now considering. We cannot assent to this. These words have been used by the great masters of crown law and the elementary writers as synonymous with the word ‘punishment/ in connection with crimes of the highest grade. Thus, Blackstone speaks of criminal law as that ‘branch of jurisprudence which teaches of the nature, extent, and degrees of every crime, and adjusts to it its adequate and necessary penalty.’ Alluding to the importance of this department of legal science, he says: ‘The enacting of penalties to which a whole nation shall be subject should be calmly and maturely considered.’ Referring to the unwise policy of inflicting capital punishment for certain comparatively slight offenses, he speaks of them as ‘these outrageous penalties/ and repeatedly refers to laws that inflict the ‘penalty of death.’ He refers to the other acts prescribing certain punishments for treason as ‘acts of pains and penalties.’ That the Legislature intended that this thirteenth section should apply to all offenses is shown by section 5598,- Rev. Stat., under the title of ‘Repeal Provisions/ which is as follows: ‘All offenses committed and all penalties .or forfeitures incurred under any statute embraced in said Revision prior to said repeal, may be prosecuted and punished in the same manner and with the same effect as if said repeal had not been made.’ ”

Even though this view of the law had not been enunciated by the highest court of our land, we would feel inclined to announce the doctrine ourselves, in view of the fact that in this state our criminal laws, by legislative enactment, are entitled to a liberal construction, and without doubt the legislative enactment and provision of the article of the Constitution, supra, were intended for this very purpose. It follows that the court committed no error in overruling the demurrer.

A careful examination of the entire record discloses no error prejudicial to the substantial rights of the plaintiff in error. The judgment of the trial court is therefore in all things affirmed.

DOYLE, J., concurs. FURMAN, J., absent, and not participating.

Opinion on Rehearing.

FURMAN, J.

First. Owing to sickness, the writer did not participate in the consideration and decision of this cause when it was first submitted. As counsel for appellant are attorneys of the highest ability and integrity, and as they earnestly insist that the court in its original opinion overlooked material questions presented in their original brief, and as the punishment assessed against the appellant is the maximum of the law, the writer has carefully read and considered the entire record and the brief filed by counsel for appellant and will treat the questions presented as though the case was originally submitted for decision. Before discussing the matters relied upon, it may be well to state some general principles which control the action of the court in the determination of all cases submitted to it.

In the case of George v. U. S., 1 Okla. Cr. 307, 97 Pac. 1052, 100 Pac. 46, this court said:

“We desire to' reaffirm the announcement, heretofore made, that, when a defendant is clearly guilty, this court will not reverse a conviction upon a technicality or exception which does not affect the substantial rights of the defendant. This is the settled policy of this court.”

This doctrine we have uniformly adhered to in all cases. We have at all times announced that every presumption must be Indulged in favor of the regularity of the proceedings in courts of record and in support of the verdict of juries; and that error and injury must affirmatively appear from the record before a mnviction will be reversed. These views have been stated in so many cases that it would be a useless consumption of time for us to cite the cases in which they were announced. We know ¿hat these positions of the court have been vigorously assailed by attorneys representing defendants ever since; but if we have ever varied from them we do not know it. Whatever may have been thought as to the right and power of the court to act upon these views at the time they were announced, there can be no question on that subject now.

Section 6005, Rev. Laws 1910, is as follows:

“No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal,, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.”

Here is a legislative recognition and. indorsement of all that we have ever said upon this subject; in fact, it is simply a restatement of the position assumed and maintained by this court from the day of its organization. In our opinion it would be a miscarriage of justice to reverse convictions upon any purely technical objections. We have been frequently asked, “What is a technicality ?” Many different answers can be given ■ to this question, which would not be applicable to the matter now before us; but, that the bar may more fully understand what our position is, we will say that a téchnicality, as applicable to the statute above quoted, is an abstract proposition of law, which is correct, but which does not involve the jurisdiction of the court or the substantial rights of the parties in the case under consideration. If a principle of law has been violated during a trial which involves the jurisdiction of the court or which affects the substantial rights of a defendant, it would not constitute a technicality, but, under the statute above quoted, such violation would amount to reversible error; but the burden is on the party who seeks a reversal to show that the law was violated in such a manner as to involve the jurisdiction of the court or to deprive the defendant of a substantial right; unless this is done, where the evidence shows that the defendant is guilty, this court has neither the legal right nor power to set aside a conviction. From this it appears that, although the trial court may have violated some abstract principle of law, yet, if such principle did not go to the jurisdiction of the court or affect the substantial rights of the defendant, an objection based upon such violation would be a mere technicality and not a ground for reversal. In this connection we deem it proper to restate our position as to whether or not an error committed should be ground for reversal.

We are frequently asked the question, “How do you know that a given error did not deprive a defendant of a substantial right?” Our answer is that it is not necessary for us to know anything of the kind. For a full discussion of this question, see Coleman v. State, 6 Okla. Cr. 252, 118 Pac. 594; Brown v. State, 9 Okla. Cr. 382, 132 Pac. 359. If only those cases were to be affirmed which this court knew to be right, all convictions would be reversed, for it is always possible in any given case that the conviction may be wrong. Brutes act upon knowledge and instinct. Human beings act upon knowledge and belief. The sacred things of life are matters of belief. The dog knows his master, whom he has seen. The human being believes in and worships God, whom he has not seen. In all ages men have died for matters of belief. Such a thing as mathematical certainty cannot exist in the enforcement of law. All that courts and juries can act upon is belief to a moral certainty. A moral certainty always admits the possibility of error. Our statute was substantially taken from the decisions of this court and indorses them, for it says that no conviction shall be reversed “unless, in the opinion of the court to which application is made, after an examination of the entire record, that the error complained of has probably resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right.” This is not only our opinion, but it is the statute law of Oklahoma. This is the yard stick of the law by which the rights of a convicted defendant must be measured. It will be well for counsel who appeal cases to this court to bear the decisions of this court and this statute in mind.,

It is impossible for human wisdom to foresee and anticipate every contingency which may arise in the affairs of men; therefore the law cannot provide fixed rules applicable alike to all cases. The best that can be done is to provide general rules, which may or may not be applicable to a given case, according to its individual facts and circumstances. Of course this system is not perfect, and there is a possibility of mistakes; but it is the best that poor, weak, erring mortals can do. It would take perfect men to make perfect laws and to perfectly enforce them. It is admitted that the wisest and best men sometimes make mistakes; therefore the best that we can do is to approximate justice as near as possible. It must always be remembered that the law is not and cannot be an exact science.

Second. The first proposition contained in the motion for rehearing is as follows:

“The plaintiff in error had fourteen assignments of error to which he had directed the attention of the court in his brief, and which were properly preserved on the trial, and in the opinion there is but one assignment of error discussed.”

This proposition is entirely too general to receive consideration, in that it does not point out any specific error complained of and relied upon.

• Third. The second proposition contained in the motion for rehearing is as follows:

“Because the court overlooked the principal assignment of error, where witnesses were asked about other horses which it was alleged the defendant, Oce Jones, had stolen, for which he had never been tried or convicted and was altogether a different transaction, which assignment is known as No. 8.”

In their brief touching this matter counsel say:

“Eighth. The county attorney asked the witness Priest: ‘Now you say Oce (meaning defendant) had some horses there in a stalk field about that time? Yes, sir. Did you know who-owned the stalk field? Indians by the name of Sams own 'the land. Isn’t it a fact that Mr. Meadows and others went up there and out of the stalk field, where Oce Jones had his horses there,, that they got some other horses that had been stolen? (Objected to. The Court: It is admissible only as to why Meadows was up there. Exception.) Not that I know of. Don’t you know that Meadows went up there looking for the Cook horses-, and Gibson horses that had been stolen, and that they got them out of the stalk field where Oce Jones’ horses were there? (Objected to, and court said: Admitted for the purpose of showing why Meadows was up there. Exception.) Meadows-was up there looking for the horses? Yes, sir. And he got the horses, didn’t he? Yes, sir. (Objected to. The court let him answer. Exception.)’ ”

In this connection it should be stated that the evidence above objected to was brought out by the county attorney on the cross-examination of the witness Priest when he had been placed upon the stand by appellant, and when his testimony was evidently intended to throw suspicion upon Meadows as the real thief. He testified that he had seen Meadows near the place where the stolen horses were found. Under these conditions it was proper for the state to show why Meadows was there. The ruling of the trial court is therefore approved.

Fourth. The next ground contended for in the motion for rehearing is as follows :

“Because the court overlooked the fifth and sixth assignments of error, where the trial court permitted witnesses to be asked about -what other witnesses had told them, and that the witness had assisted the defendant in driving stock to a pasture a year previous, as a circumstance to show that the defendant was then in possession of the pasture which he had abandoned long prior to the offense charged against him.”

In their brief counsel for appellant say:

“Fifth. Because the court permitted the witness Meadows, in testifying for the state, to testify that he had assisted 'the plaintiff in error in driving stock a year before to the pasture where'the alleged stolen horses were found.

“Sixth, The court erred in permitting the witness Bidden to testify he told a man named Simmons that the brand on a mare ridden by plaintiff in error looked like an acid brand.”

The record shows that the stolen property was found in a certain pasture on the top • of Arbuckle Mountains, in Carter county, which was known as “No Man’s Pasture.” It was proven by one witness residing near this pasture, and who was evidently a friend of appellant, that he had heard appellant claiming the pasture in which the stock was found. No one else was shown to have ever made any claim to it. The testimony of the witness Meadows that about a year before the larceny he had assisted appellant in driving stock into this pasture tended to prove that appellant was asserting an interest in it. The length of time that had elapsed merely went to the weight of the testimony and did not in any manner affect its admissibility. The admission of the testimony of the witness Holden as to what he had said to Simmons cannot be regarded as reversible error. Simmons came to the home of Holden with appellant, and the circumstances strongly indicate that Simmons was connected with appellant in a general conspiracy to steal stock. In fact, the evidence in the case is strongly suggestive of the idea that a general conspiracy existed between appellant and many of those with whom he was associated to steal horses and cattle, and that No Man’s Pasture was the common place for concealing said stock; but even if Simmons was not acting in the common conspiracy with appellant, and such evidence was not admissible upon this ground, its admission was harmless error, because Holden, while on the witness stand, testified positively that the brand on the mare ridden by appellant looked like an acid brand. This was material to the case, because it was proven that, on the evening before the larceny was committed, appellant had purchased carbolic acid from Dr. Heflin in the town of Lone Grove, and that the stolen horses when found in No Man’s Pasture had had their brands altered by an application of carbolic acid. All of these circumstances tended to prove the guilt of appellant, and the trial court did not err in the admission of the testimony complained of.

Fifth. The next ground set up in the motion for rehearing is as follows:

“Because the court overlooked the fifth, sixth, eighth, ninth, and tenth assignments of error, because according to a previous decision rendered by this court the evidence was inadmissible and was sufficient to reverse the cause for a new trial.”

We have already disposed of the fifth, sixth, and eighth assignments of error. We will now consider the ninth and tenth assignments.

When Mrs. Jones, the wife of appellant, was on the stand, she was asked by the county attorney:

“You say Mr. Jones left home on the morning of the 19th (January) ? Yes, sir. How long after that until Mr. Jones was back? (Objected to. Overruled. ' Exception reserved.) I reckon it was in August. You know when he surrendered to Buck Garrett down here.”

Mrs. Jones had taken the witness stand to testify to an alibi in behalf of her husband. She swore that he was at home on the night of tile 18th of January, the night on which the hoi'ses were stolen, and that he left early on the morning of the 19th. It was competent for the county attorney to show when appellant left home and how long he remained away. This went to prove, in connection with other evidence, that immediately after the larceny of the horses in question appellant became a fugitive from justice and was gone from home about seven months. This evidence was competent and admissible. Counsel for appellant then asked Mrs. Jones the following question:

“I will ask you whether or not Mr. Jones, when he came back, told you where he had been? If he didn’t tell you that he had been in Arizona?”

To this question the county attorney objected, and the objection was sustained by the court, to which counsel for appellant excepted. There was no error in the ruling of the court. Any statements which appellant may have made to his wife, .under the circumstances, would have been self-serving declarations. Defendants cannot commit crimes, flee the country, and take seven months to think about the matter, and then come home and manufacture evidence in their own behalf. We therefore find that the rulings of the trial court were in all respects correct.

Sixth. The -next ground set up in the motion for rehearing is as follows:

“Because the court overlooked exception No. 14 to the instructions of the trial court, the same being in paragraph No. 5, an instruction on the weight of the evidence, which this court has frequently held was reversible error.”

The instruction of the court complained of is as follows:

“You are instructed that two of the state’s witnesses, Warren Yell and Bryant Ballew, have admitted to the jury that they were principals in the crime alleged in the information; hence you are told that they, being parties to the larceny in this case (that is, parties principal to said crime, if the crime was committed), have been introduced as witnesses in behalf of the state and by their admissions are what is known as principals or accomplices to whatever crime was committed, and you are instructed that it is the law that no person can be convicted upon the testimony of an accomplice or accomplices, unless there is other evidence in the case tending to connect the defendant with the commission of the offense, and you are told that the corroboration by other evidence, if there be such, is insufficient if it merely shows the commission of the crime and the circumstances thereof, but such other evidence, to be sufficient to corroborate an accomplice or accomplices, must tend to connect the defendant with the commission of the crime charged against him.”

In their brief counsel for appellant complain of this instruction in the following language:

“Paragraph No. 5, where it uses the language, ‘But such evidence, to be sufficient to corroborate an accomplice or accomplices, must tend to connect the defendant with a crime charged against him,’ without stating that, if they have reasonable doubt as to the fact, they would acquit the defendant, and without defining what was meant by the words ‘connect the defendant with the crime charged against him.’ ”

If this court has ever rendered an opinion sustaining the above contention of counsel for appellant, we are not aware of it, and, if such opinion is in existence, it is- hereby expressly overruled. There is no' law requiring a jury to find beyond -a reasonable doubt that an accomplice’s testimony has been corroborated by other evidence tending to connect the defendant with the commission of the crime charged against him. Under the common law a conviction could be sustained upon the uncorroborated testimony of an ■ accomplice, but our statute has mitigated this hardship of the common law and now requires that there must be some evidence other than that of an accomplice tending to connect a defendant with the commission of the crime charged. See Alderman v. Territory, 1 Okla. Cr. 562, 98 Pac. 1026. This is all the law requires. Neither is it necessary for the court to define the meaning of the words “connect the defendant with the crime charged against him.” These are words used in the common everyday affairs of life, and have no technical meaning and are well understood by all persons of ordinary intelligence. This court presumes that jurors are men of common intelligence, and understand the English language. If this be not true, it was the duty of counsel for appellant to object to their serving on the jury. We think that the law was clearly and admirably stated by the trial judge, and the instruction is in all things approved and indorsed; but even if there was error in the instruction given, in the light of the overwhelming and conclusive evidence as to the guilt of appellant, this court would hesitate long before granting him a rehearing.

Seventh. The last ground relied upon in the motion for rehearing is as follows:

“Because the court overlooked that portion of the brief directing the attention of the court to the excessive punishment inflicted in this case, and if, upon a hearing, it is concluded that the cause should be affirmed, we respectfully suggest that the punishment should be reduced to be in harmony with the gravity of the offense.”

It is true that this court has the power to modify a judgment and reduce a sentence, when from the record it appears that an injustice has been done by inflicting an excessive punishment, but this power cannot be arbitrarily used. See Newton Henry v. State, ante, 136 Pac. 982.

In the light of the tesitmony in this case, we think the jury were fully justified in assessing the penalty of ten years’ confinement in the penitentiary. We believe that the appellant is not only guilty of the crime of which he’ was convicted, but that the evidence justified the jury in believing that he was an -old and experienced criminal and was a corruptor of the youth of the country. In fact, from the evidence in the record, he might be called an instructor in the aid of larceny. He induced two young boys, about nineteen years of age, to join with him in the commission of this crime, and after it was committed he fled the country and was gone for seven months, during which time he was evidently manufacturing an alibi. Two of the witnesses who testified in his behalf were directly impeached by the state’s evidence. The others testified to the most improbable stories, and the jury doubtless came to the conclusion that their testimony was manufactured from beginning to end. Without disrespect to the counsel for appellant, we cannot see how any impartial, fair-minded, or intelligent man can read the record and come to any other conclusion. Upon the trial appellant did not'take the stand in his own behalf and deny or explain a single word of testimony against him. It is true that this could not be considered by the jury in determining his guilt; but after his guilt has been established and he comes to this court and seeks to have the verdict of the jury set aside, or the judgment modified, this court cannot overlook the fact that appellant did not dare •to go upon the witness stand in his own behalf. Men who steal the property of others in the dead hours of night, and who induce boys to do so, and then come into court with evidently manufactured evidence, should receive the extreme penalty of the law; in fact, the longer such men are locked up in the penitentiary the better it is for society. Honest people must have protection against such characters, or the courts are a farce, and law is a mockery, a snare, and a delusion.

We find no error in the trial in the lower court. We do not see how the jury could have come to any other conclusion than that appellant was guilty, and we think that his punishment was less than he deserves. The judgment of the lower court is in all things affirmed. The mandate will issue at once. Justice has too long been delayed in this case.

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


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    OLIE SAYERS et al. v. STATE.
    No. A-1803.
    Opinion Filed November 1, 1913.
    (135 Pac. 1073.)
    1. . PRELIMINARY COMPLAINT — Sufficiency of Verification. Where a preliminary complaint charging a felony is sworn to positively by some person, it is sufficient of itself to authorize the magistrate to issue a warrant for the arrest of the defendant, and it is sufficient to authorize the magistrate to hold a preliminary examination.
    2. INDICTMENT AND INFORMATION — Jurisdiction — Preliminary Examination. The fact that there was a preliminary examination and a judicial determination thereon by the magistrate, that a felony had been committed, and that there is probable cause to believe the defendants guilty thereof confers jurisdiction on the district court and authorizes the county attorney to file an information in said court charging the crime committed according to the facts in evidence on such examination.
    3. APPEAL — Discretionary Ruling — Change of Venue. An application for change of venue is addressed to the sound discretion of the court, and this court will not reverse the ruling of the trial court denying such application unless it is made to appear that there has been such an abuse. of discretion as to constitute a denial of a substantial right.
    A APPEAL — Discretionary Ruling — Continuance. An application for continuance in a criminal ease is addressed to the sound discretion of the trial court, and its action thereon will not be disturbed, unless there appears to have been a clear abuse of discretion.
    5. CRIMINAL LAW — Election of Defenses. When a defendant, who has a right of election as to several defenses, takes the stand as a witness and makes such admissions as to render every theory of defense unavailable save one, he will be deemed to have elected that one.
    6. APPEAL — Verdict. It is the province of the jury to determine questions of fact and decide between conflicting inferences, and the duty of this court to interfere arises only when it can see that the verdict is contrary to the evidence or appears to have been influenced by passion or prejudice.
    7. INDICTMENT AND INFORMATION — Preliminary Complaint-Sufficiency. A preliminary complaint in 'a rape ease is sufficient where it charges the crime substantially in the language of Rev. Laws 1910, sec. 2414, defining rape.
    8. RAPE — “Previous Chaste and Virtuous Character.’’ The phrase “previous chaste and virtuous character” means in law, as in morals, a female who has never voluntarily indulged, out of wedlock, in sexual intercourse.

      Appeal from- District Court, Lincoln County; Chas. B. Wilson, Jr., Judge.

    Olie Sayers and another were convicted of rape, and bring error.
    Affirmed.
    On the 22d day of July, 1911, a complaint was filed before the judge of the county court, charging that the defendants on the 20th d'ay of July, 1911, “did feloniously have and accomplish sexual intercourse with Mary Mehringer, a female over the age of sixteen and under the age of eighteen, of previous chaste character, and not then and there the wife of the defendants,” etc. Which compláint was verified by Mary Mehringer and warrant issued thereon, and the defendants were apprehended.

      On the 6th day of September, 1911, another complaint was filed which charged:
    “That on the 20th day of July, A. D. 1911, in the county of Lincoln and state of Oklahoma, one Olie Sayers and Rolla Sol-lers and Charles Endicott, then and there being, did then and there willfully, unlawfully, and feloniously in and upon Mary Mehringer, a female then and there being, did then and there unlawfully, violently, forcibly, and feloniously make an assault, and her (the said' Mary Mehringer) then and there resisting, and said resistance being overcome by force and violence then and there, unlawfully, forcibly, and violently and against her will, feloniously did have and accomplish, sexual intercourse with the said Mary Mehringer, she not being then and there the wife of the said Olie Sayers, Rolla Sobers, and Charles Endicott, contrary to,” etc.
    This complaint was sworn to positively by Fred A. Wagoner.
    On the 8th day of November, the defendant filed a motion to quash the warrant and complaint for the reason that the same was not issued upon a duly verified complaint as required-by the Constitution. Which motion was overruled. Thereupon the defendants filed a general demurrer to the complaint, which was overruled. A preliminary examination was had upon the second complaint.
    Mary Mehringer testified that she was sixteen years of age on the 20th of March, 1911; that on the night of the 20th of July,' 1911, the defendants accomplished acts of sexual intercourse with her by force and violence, overcoming her resistance. The details of her relation need not be repeated here. ,
    Roy Scott, as a witness for the state, testified in substance that he was with Mary Mehringer and the defendants took her by force from the highway through the fence into a wood pasture, overcoming her resistance, and threw her down, and that she called for him to come and protect her.
    At the close of this testimony the state rested. The defendants did not offer any testimony.
    The judge of the county court made the following order:
    “The court finds that the offense charged in the complaint herein has been committed, and that there is sufficient cause to believe that the defendants, Olie Sayers, Rolla Sobers, and Charles Endicott, to be guilty of said crime and are therefore ordered held to the district court in said county and state.”
    On the 21st day of'November, 1911, there was filed in the district court an information.
    On the 5th day of December, 1911, leave of court having first been obtained, there was filed by the county attorney an amended information charging:
    “That Olie Sayers, Rolla Sollers, and Charles Endicott, late of the county aforesaid, on the 20th day of July, in the year of our Lord one thousand nine hundred and eleven, in the county of Lincoln and state of Oklahoma, aforesaid, then and there being, did then and there willfully, unlawfully, and feloniously, violently and forcibly have and accomplish sexual intercourse with Mary Mehringer, a female, against her will; she (the said Mary Mehringer) then and there resisting and her said resistance being overcome by force and violence, and she (the said Mary Mehringer) not being then and there the wife of the said Olie Sayers, Rolla Sollers, and Charles Endicott. This contrary to,” etc.
    Upon arraignment defendants filed a motion to quash the information, which was overruled. Thereupon they filed a general demurrer to the information, which was overruled, and the case was set for trial December 19th. At that time the case was continued to December 27, 1911, and the county attorney asked leave to dismiss as to the defendant Charles Endicott that he might be used as a witness on the part of the state, and it was by the court so ordered.
    On the 27th day of December the defendants filed an application for a change of venue, which was overruled. Thereupon they filed an application for continuance, which was granted, and the case was set for trial on the 13th day of February, 1912.
    On the 15th day of February the jury rendered their verdict finding the defendants “guilty as charged in the information of rape in the first degree” and assessing their punishment at imprisonment in the state penitentiary for ten years.
    Motions for new trial and in arrest of judgment were duly filed. On the 13th day of March,' 1912, these motions were overruled, and the court pronounced judgment and sentenced the defendants in accordance with the verdict of the jury.

      To reverse the judgment the defendants appealed by filing in this court on August 6, 1913, a petition in error with case-made. ■

      Geo. B. Rittenhouse, P. A. Rittenhouse, Roy Hoffman, and Emery A. Poster, for plaintiffs in error.

      Charles West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

(after stating the facts as above). The plaintiffs in error, whom we shall hereinafter denominate the defendants, claim a reversal of the judgment upon numerous assignments of error, but we shall consider only those which we deem of sufficient moment to warrant specific mention.

The first is that the court erred in overruling the defendants’ motion to quash the information. In support of the motion the transcript of the record and proceedings had before the examining magistrate was offered in evidence. Counsel in their brief say:

“Our contention is that to authorize the issuance of a warrant of arrest there must be filed with the magistrate a complaint verified by the affidavit of one who knows the facts of his own knowledge.”

—and that for this reason the defendants’ motion to- quash the original complaint should have been sustained, and the district court was therefore without jurisdiction to try said defendants upon an information based upon said complaint.

The original complaint upon which warrants issued for the defendants was verified by the prosecutrix. The second complaint was sworn to positively by Fred A. Wagoner. Where a complaint charging a felony is verified as true in positive terms, such verification constitutes a sufficient showing of probable cause to authorize the issuance of a warrant of arrest and to hold a preliminary examination before an examining and committing magistrate. It is a sufficient compliance with that provision of the Bill of Rights (section 30) which provides:

“And no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized.”

The evidence offered on the part of the state upon the preliminary examination was sufficient to show that the crime of rape had been committed, and that there was sufficient cause to believe the defendants guilty thereof. The fact that there was a preliminary examination and a judicial determination thereon by the examining and committing magistrate, that a felony had been committed, and that there is probable cause to believe the defendants guilty thereof confers jurisdiction on the district court and authorizes the county attorney to file an information in said court charging the crime committed, according to the facts in evidence on such examination. Williams v. State, (5 Okla. Cr. 373, 118 Pac. 1006.

It is also urged that the order of the committing magistrate was insufficient in that the preliminary complaint is insufficient to •charge the crime of rape. The objection is not well taken. The complaint charges the acts constituting the crime substantially in the language of the statute, which defines rape as follows (section 2414, Rev. Raws 1910) :

“Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances: * * * 4th. Where she resists but her resistance is overcome by force and violence.”

The record clearly shows that the district court had jurisdiction to try the case. The motion to quash was therefore properly overruled.

When the case was first called for trial in December, the defendants filed their affidavit for change of venue on the ground: “That the minds of the inhabitants are prejudiced against the defendants, and that a fair and impartial trial cannot be had in Lincoln county.” The application was also supported by the affidavits of I. N. Oliver, A. L. Faulkenstein, and S. Vanderbilt. The state filed more than a dozen counter affidavits. On the issue thus joined, the state called the defendants’ supporting af-fiants and others as witnesses. The court, after hearing the testimony, overruled the application.

The application for change of venue in a criminal case is .addressed to the sound discretion of the court, and this court will not reverse the ruling of the trial court denying an application for a change of venue unless it is made to appear that there has been such an abuse of discretion as to constitute a denial of a substantial right. Turner v. State, 4 Okla. Cr. 164, 111 Pac. 988. A careful examination of the record convinces us that the court very properly overruled the application for a change of venue.

When the case was called for trial on February 13th, - the defendants filed an application for continuance. It appears from the record that a continuance on the application of defendants had been granted in December, when the case was first called for trial. Four of the absent witnesses named in both applications were never found by the sheriff, although subpoenaes had been issued for them.

The order of the court overruling the motion for continuance is in part as follows:

“The court further finds that the nature of the testimony the said witnesses would give if present and testifying in the trial of this case is fully set out in this motion for a continuance, and the general nature of said testimony is that said witnesses would testify that the prosecuting witness in this case, Mary Mehringer, was, at and previous to the time of the alleged crime charged in this case, a person whose general reputation for chastity in the community in which she lived was bad, and that said witnesses had, prior to the alleged date of the said alleged crime, had sexual intercourse with the said prosecuting witness, Mary Mehringer. The court finds that the continuance heretofore granted in said case was granted upon a similar showing by said defendants. Wherefore, for the above reasons and for other reasons apparent to the court, the'court finds that the said motion for continuance should be and the same is hereby overruled.”

No rule is more firmly esatblished than that this court will not reverse a conviction upon the ground that the trial court erred in refusing to grant a continuance, unless it appears that such court has manifestly abused its discretion in refusing it. The application for a continuance does not in our opinion disclose such diligence on the part of the defendants as the law requires or such as made it the duty of the court to grant a further continuance.

Several errors are assigned upon rulings of the court in admitting and excluding evidence. No useful purpose would be served in discussing these in detail. Suffice to say that we have carefully examined them and are satisfied that no errors were committed prejudicial to the substantial rights of the defendants. The remaining errors assigned which we deem necessary to discuss require a brief statement of the facts disclosed by the evidence, also extracts from the testimony of certain witnesses.

The parents of the prosecutrix and the defendant Olie Sayers lived a few miles northeast of Agra; at the time in question ■she was working as a house maid at the home of Mr. Newman, in Agra. Roy Scott, who was staying across the street from Newman’s, came over to spend the evening. Shortly after his arrival Orley Sayers, a brother of the defendant Olie Sayers, called at Newman’s and invited Mr. Newman’s daughter, a fifteen year old girl, and the prosecutrix to go buggy riding. The girls, together with Roy Scott, went with Orley Sayers and he drove out northeast of Agra about a mile and told Roy Scott and the prosecutrix to get out of the buggy and they did so; he stated that he would be back in a short time and drove on. The prosecutrix and Roy Scott walked a short distance and sat -down by the side of the road. Another buggy came along, containing three boys, and passed them and stopped. One of the boys got out and walked back. The prosecutrix and Roy Scott got up and walked down the road, arm in arm. These defendants left their buggy and walked after this couple, overtaking them; Olie Sayers grabbed the prosecutrix around her waist and Rolla Sollers took hold of her arm and they dragged her off the road into a pasture. Charles Endicott followed them. Olie Sayers threw her down and ravished her while the other two held her. He was followed by Rolla Sobers, and he by Charles Endicott. Olie Sayers then repeated his performance, and was again followed by Rolla Sobers. Endicott then left and walked to town.

Prosecutrix testified that she was sixteen years of age the 20th day of March, 1911. That she had been working away from home since she was twelve years old. That when Olie Sayers threw her-down she hallowed for Roy Scott and called, “Roy-! Roy! Come here and help me.” That Rolla Sollers put his hand over her mouth and he and Charles Endicott held her hands and feet while Olie Sayers had intercourse with her. That these defendants had intercourse with her three times each and Charles Endicott once before she was allowed to get up. That she never did consent and was all the time trying to get away from them. That she had bruises on her arm. That she was wearing a new calico dress and it was torn under the sleeves and up the back and her underwear was torn. That Olie Sayers then took her to his buggy and drove until they met Ivy Newman and Orley Sayers. That Ivy Newman and Roy Scott returned to- town with her in Olie Sayers buggy. On cross-examination she stated that she had gone with Olie Sayers for several months, and during that time he had sexual intercourse with her six or seven times forcibly and against her will, and she had quit going with him in April; that she was afraid to tell her father because he mistreated her.

Roy Scott testified that Olie Sayers grabbed the prosecutrix around the waist and Rolla Sollers took hold of her arm, and, while she was pulling back and asking them not to take her, they took her from the road into the pasture and threw her down and he walked away. That when he was leaving the prosecutrix called him by name and asked him to„come back and protect her. That later Sollers met him and asked him where Orley and Ivey were, and they walked up the road and found them.

Charles Endicott testified that Olie Sayers asked him to take a ride. That he drove out northeast from Agra and they passed a boy and girl sitting by the road, and Olie asked him to go back and see who it was and talk to them, saying that the reason he did not want to go back was that the girl was mad at him, and he walked back, meeting Earl Edgecombe and EmmefcJ{[8Ílfí3¿n in the road, and then passed Roy ,ScptttiaaQ^ Ijli.fyj^lqferinger. That the couple got up,^4 That they walked by the buggy; Sollers was in the buggy, and Olie Sayers on the ground. That the couple soon came back and they followed them. That Sayers and Sobers took hold of the girl and while she was trying to get away took her over in the pasture. That Sayers threw her down, and she hollowed for Roy Scott to come and help her, and Sayers told her she had to come across. “That he accomplished his purpose and Sobers got his intercourse and I got mine.” That Sayers took his again, and then Sobers. That he and Sobers held the prosecutrix while the first act was accomplished and they all held her turn about. That she hollowed and Sayers put his hand over her mouth. That she kept struggling and telling them that they were hurting her. That Orley Sayers, Olie Sayers, and Rolla -Sobers and witness went to Hominy Saturday, July 23d, taking the midnight train out of Cushing. That on Monday they went to Bartlesville and were there arrested. That while he was in jail he sent for the county attorney and told him he would be a witness for the state. That he did not know prosecutrix and had not talked with her since the crime was committed.

The defendants took the witness stand. Olie Sayers testified that after they drove by the couple they stopped and'watched them and they went into the pasture, and he told Sobers and Endicott to come on and watch what they were going to do, and they saw Scott on the prosecutrix and pretty soon Scott got up off of her and he walked up and Scott walked off and he then had sexual intercourse with her, and when he got through Sobers had intercourse with her, and then Endicott; that she was willing and consented; that he had intercourse with her once or twice afterwards that night; and that before that night he had sexual intercourse with the prosecutrix several times.

Rolla Sobers testified to substantially the same facts, and that he had intercourse with the prosecutrix with her consent, and that there was no force or violence used by any of the defendants.

In rebuttal the state. recalled Roy Scott, who testified that he never had intercourse with the prosecutrix.

The prosecutrix, recalled, testified that Roy Scott never at any time had sexual intercourse with her.

As applicable to the isáue thus made by the evidence, the court’s instructions related wholly to the crime of rape in the first degree, as defined in subdivision 4, sec. 2414, Rev. Laws 1910, already quoted.

The court instructed the jury as to the information, the pleas entered, and the statutory definition of rape in the first degree, and the presumption of innocence, and that:

“The state has elected to rely for a conviction on the first act of the defendant Olie Sayers; therefore, if you find from the evidence in this case, beyond a reasonable doubt, that on July 20, 1911, in Lincoln county, Okla., Olie Sayers violently and forcibly had and accomplished an act of sexual intercourse with Mary Mehringer, a female person, not the wife of the said Olie Sayers, that such act of intercourse was against the will of the said Mary Mehringer, and that she resisted such act, and that her resistance was overcome by said Olie Sayers by force and violence or by the force and violence of the said Olie Sayers, aided and assisted in such force and violence, if any, by Rolla Sollers and Charles Endicott, or either of them, your verdict should be guilty as to the said Olie Sayers, but if you find that said Olie Sayers did not use force and violence in accomplishing such act of sexual intercourse, or that such act was with the consent of the said Mar}' Mehringer, or that any resistance to such act that said Mary Aiehringer may have made to such act was not overcome by the force and violence of the said Olie Sayers or Rolla Sol-lers, or either or both of them, or if you have a reasonable doubt whether such act was accomplished by force or violence, or whether anj' resistance that said Mary Mehringer may have made was overcome by force and violence of defendants or either of them, or of Charles Endicott, aiding or abetting him, or was against the will of said Mary Mehringer, your verdict should be not guilty.

“No. 6. You are instructed that the mere fact that the defendant Olie Sayers and said Mary Mehringer engaged in sexual intercourse at the time alleged is not sufficient to constitute the crime of rape in the first degree as charged in the information in this case. Before such an act of sexual intercourse could constitute the crime of rape in the first degree, the said defendant must have accomplished such act against the will of said Mary Mehringer and by means'of force and violence sufficient to overcome the resistance of said Mary Mehringer. Such forcible penetration of the private parts of the prosecutrix, however slight, must have been violently effected by defendant Olie Sayers and the force and violence used by said defendant must have been such as to overcome any reasonable resistance to such act by the prosecutrix. A passive or half-hearted resistance on part of the prosecutrix is not sufficient, but she must have offered the utmost resistance to' such act on the part of the defendant, either by forcibly repelling him or by summoning assistance to her aid as was possible under all the circumstances of the situation.

“No. 7. All persons concerned in the commission of a crime, whether they directly commit the act constituting the offense or aid and abet in its commission, are principals, and if you find from the evidence in this case, beyond a reasonable doubt, aided by these instructions, that the defendant Olie Sayers is guilty of rape in the first degree as charged by the information, and if you further find, beyond a reasonable doubt, that the defendant Rolla Sollers was present at the time and aided and abetted the defendant Olie Sayers in the commission of such crime, the defendant Rolla Sobers would be equally guilty with the defendant Olie Sayers and your verdict should be guilty as to the said Rolla Sobers. But if you find from the evidence that the said Rolla Sobers did not aid or abet the said Olie Sayers in the .commission of such crime, if you find the said Olie Sayers to 'have committed the crime, or if you entertain a reasonable doubt that he did in fact aid and abet him in the commission of such crime, if anjq your verdict should be not guilty as to the said Rolla Sobers.”

“No. 9. It is admitted in this case that the defendant Olie Sayers and Mary Mehringer had indulged in other acts of sexual .intercourse before the time alleged in the information, and in this connection you are instructed that the fact can only be considered by you as a circumstance in determining whether or not the said Mary Mehringer consented or voluntarily yielded to the act of sexual intercourse complained of in this action as constituting the crime of rape in the first degree and for no other purpose.

“No. 10. A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.”

“No. 14. The defendants are charged with the crime of rape in the first degree, and you cannot find them or either of them guilty of any other offense. Rape in the first degree is punishable by imprisonment in the state penitentiary- for a period of not less than ten years, and, if you should find the defendants or either of them guilty, you may by your verdict fix their punishment at imprisonment in the state penitentiary for any period of time not less than ten years.”

A general exception was taken to these instructions, but no request was made on behalf of the defendants to- instruct the jury in reference to rape in the second degree.

The defendants’ counsel now contend that the court erred in instructing the jury that, if they found the defendants guilty, it must be of rape in the first degree, for the reason that the prosecutrix testified that she was sixteen years of age when the rape was committed, and the further reason that there was evi-deWee tending to show that she submitted and consented through fear, which under the statute then in force would be rape in the shebfitf degree.

binder the evidence in this case we do not think the con-tentipn is well founded. The defendants, as witnesses in their owrr §Sial'f, testified that the prosecutrix was indulging in sexual intercourse with Roy Scott when they came upon them, and ujjon’tipir'defense she was not within the protection of the statute in^a^tíémg over the age of sixteen years and under the -<v'j Jipqn lAmnrnvjb . , . , , . . age .of eighteen, .she was not of previous chaste and virtuous -fit to^sumq-GV v\ vJin character..

udJ jpjiq -phrase, “previous chaste and virtuous character,” means tjljp £§me in law as in morals. It describes a condition of sexual PjUjpity. It means a female who has never voluntarily indulged, out of wedlock, in sexual intercourse.

In Marshall v. Territory, 2 Okla. Cr. 136, 101 Pac. 139, it is said:

“A chaste female is one that has never Mail1 s§iuálJínTtercc>ir^e —who yet retains her-vñr¿infty.n':AP*-V!ir'íi?(ííus,'/ieriihll^ íipáne -wiH has nob had sexual 'iflteiiíoaiiSeíülilaíwSul'lyífiottt fofcjwe'dlohkfdtátsw-inglyiiaia4-!VO]urit<a.i?il,y'.K^ f-.hh ni ibnui ojoik uii;!'// .-nu\ wls

Upon their trial the defendants had the right to elect upon what ground they would base their defense. Having, however, elected to take the 6tand as witnesses in their own behalf, and having admitted the act of sexual intercourse charged and relied upon for a conviction, and only denying that the act was accomplished feloniously by force and violence, overcoming her resistance, they thereby committed themselves to the single theory of defense 'that said act of intercourse was with the consent of the prosecutrix.

The prosecutrix testified that she resisted to the utmost of her physical ability, and that she never did consent through fear or otherwise; the defendants by their testimony rendered any •and every other line of defense unavailable; therefore there could ‘be no question of second degree rape in the case. For the rea•sons stated, the rule announced in the case of Wines v. State, 7 Okla. Cr. 450, 124 Pac. 466, relied upon by the defendants’ counsel to support their contention, is not applicable.

It is also insisted that the verdict is not sustained by the 'evidence. While this court has the power to grant a new trial 'when satisfied that the evidence is .insufficient to support the verdict, yet it must observe rules and principles which apply to all courts exercising appellate jurisdiction. Where there is a conflict in the evidence, it is the province of the jury to determine questions of fact and to declare by their verdict what the truth is; and when the' issue of fact is so determined upon evidence which is sufficient, even though it may be capable of diverse and opposing inferences, this court has no more right than the trial court to substitute its own judgment for that of the jury. Neither can lawfully usurp the appropriate functions of the jury. We think there is no serious ground for the claim that this is a case which would justify this court in interfering with the facts as determined by the jury.

After a careful consideration of the record, we find that no right of the defendants was prejudiced by any ruling during the trial. Nor have we any reason to doubt that the verdict was reached only upon a fair and full consideration of the case by ■the jury. While there is much in this somewhat extraordinary case which might appeal to the executive department of the government, which alone.is clothed, in cases of this character, with the attribute of mercy, but with whose prerogative this court has no power or inclination to interfere, we find nothing in the record that would warrant this court in granting a new trial.

The judgment is therefore affirmed.

ARMSTRONG, P. J., and FURMAN, J., concur.


text:
    O. M. NICHOLS v. STATE.
    No. A-1639.
    Opinion Filed November 6, 1913.
    (135 Pac. 1071.)
    1. HOMICIDE — Assault with Intent to Kill — Information. An information charging that defendant, at a time and place named therein, "did willfully and feloniously, with a certain dangerous weapon, to wit, ■ a pistol, called a revolver, loaded with powder and ball, feloniously make an assault with the felonious intent to then and there kill" is insufficient to eharge the crime of attempt to kill as defined by section 2336, Eev. Laws 1910, but is sufficient to charge an assault with a dangerous weapon as defined by section 2344, Eev. Laws 1910.
    2.- TEIAL — Instructions—Burden of Proof. Instructions couched in language which implies the expectation of the court that a verdict of guilty will be returned, or an intimation that it is the duty of the jury to conviet, or which tend to shift the burden of proof, are improper.
    ’. HOMICIDE — Sufficiency of Evidence. Evidence examined, and , held insufficient to support the verdict and judgment.

      Appeal from District Court, Stephens, County; J. T. Johnson, Judge.

    O. M. Nichols was convicted of assault with intent to do bodily harm, and brings error.
    Reversed.

      Wilkinson & Morris,, for plaintiff in error.

      Chas. West, Atty. Gen., and C. J. Davenport, Asst. Atty. Gen., for the State.
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iiáiNupSÍPfíiMiíííifSfSíiátio&a^íibiMi ¿Mígé'd Asíi#» MidNidiols did nea-'t alitt femíiiáyofbltw^sptO.Witbwilíihe'tsáfiai^ttiMtí Nictels, late of S tejhfeits '//(ástiatj^,fi'áfíd'flíviíBhifinfíief ijtírisiiíietós'fi Mi'othilK court, did willfully, unlawfully,b^glglf^KKSteíií^^íafSlítejn^nger-°"s wefgt&r„tS,T'b’.?:i:¥lSir5c-tIIfiflr.a.5*X^vS5-d?al*it?fi1/pc'^" cier and Dali, feloniously make an assault on one J. E. Lox, with the willful, unlawful, and felonious intent to then and there kill the said J. E. Cox, contrary to,” etc. The verdict, omitting formal parts, was as follows: “Find the defendant guilty of assault with intent to do bodily harm, and leave his punishment to be assessed by the cwrffij..., Motipii^J^jiipw^riaJ }and in arrest of judgment were duly hied and overruled, and on November 26, 1911, judgnfáfM y}'á§,‘'4tbfidéíleíl',lllSnd<>itfliS0coá!hf-I:séntáíced the defendant to imprisonment (ffc)í'ta.DÉéí:i$Cidf two years in the peni-±#ílti$ry..noiífiífaoliiI — -ÍXtJí oí tosírtl rfíxw tíirjsaaA — 3CCOCOXMOH .£

Iwinfiq'iw^jAgflcgnQA {h&jpdiT1'üfM’e Mte^SgflfetaiíMSim'ks fol-«uoiogiisB lUfmao i: rtihw ,vKrfonrol9f l)rn¡ yfumliw fun1, ..morodí wWtóq díiw fiofusol .revlown t:- lolfoo ,[otai<j .n ,Jiw oí ,aocf.BOW 'U&t m talking Sll^odoups^fiíwii-itrvtaaT SSnftfSr WjSSNftrf&Porilrin3*ddJf!ÍiV'iqX9*§'ffit''g3tr(i[Ki.T'llSl thraft k# laáditted’enedíBtltóatitle to d'afiamtJantóbSferetífoegdeift, and a‘ef?fcft &5!bl£&wp# MM JfífeMtfen sold the land to Joe Kinder; that.he told defendant that he Was in flues .Borfunszi oyiroTiivlf. .oairoiSiva io yqiisioiSf/H — HCIIOXMOIi , a hurry, andioiá^, MíP.-ttoiG«m,gta|}©$ljgir ^iH&hfefcíifeWent to his real estate office with. Toe Kinder, and defendant came to the , ym»QJ ?.nniwn/; .fcumo inMtia.uHvJlm-Wüf . door, and witness and .Mr. Kinder unvoted him in; mat Kinder , . ,, v. A, , ...... started to leave, and defendant closed the door, and said, JNIo, <yfe>uohifeqáQt ¿ifisgiifjittert fwitbetesi’/gotJ u5£'/outí<xD!£iKis.lGÍhai4 and asked defendant if h.é>owaisrüh:lintrngrttronjsleí,dahdf:hefrsa&l,yR,0Kr'Or, I am not;” after some-words .witness -jerked off his-coat, and ’ , .Í0T19, tic .fftiurcnj ;tol ,?irmTC v; uov.hjíuTI put it on a chair, and told defendant that he had neither knife .fíétAguta£/and'(§fert'ed(l;oWafds fdefendaúl.-tdKngVdnM t0»%et out of his office; that he brushed his hand over d'éféíidaét, "add.-á'aád, “You have got a gifism righihíhairap’ o^dildefjMdtotjiBajdM'IKeep your hands off of m$,\t> amti pulkdi-tke ¡giip -tom* llifolpof^nanol witness grabbed it, aiftdi-Jeíikediáh'TWtTLf .hfe-hasd, ¡abtí ,hitl htó over the head two or'jfhraQrAieh$:uw-itli;rjt|;) thafti* rtbBfcSSuffl&jid&i fendant fell, and he hitodfeífiüdahtj-iwi'ítf/thel gUnntjwoy&r Utóífd more licks; that witndsfinw&ig'hgd flbot¥|-¡jM0.0 opojm><feSfn8 8r nor)

Joe Kinder testifiedMtli!a4i)(^j£esdas)ihienjiarid^d-! his improvements on the lañd,tatid feadokLMnvJitóTihatRWBs.'¿''mat-ter for him and Mr. Cokurtliatlitht^htgifedr ábbítf ffrálffifMftliTaMif? Mr. Cox asked defendant ikihá^^áSf-fh^ |l®^t ^fetf^Síiíd .iíflísf^ him, and he said he woul¿f1not"',tíkecleMÍ,than>Sfe(lmlrpnS Mf-T^ox . ’ tnr , , ulT ism Miiáüiya arlj nrcrtr‘>v‘sBd xittt said, You come back tomqyrgflj, jÍ^yírÍQ;¿55Wi^bg^áfeíq that he started to leavej andndfltadantrjshutbtfe deaft 4*& §&idi “No, you won’t go nowth'át ^Siktigíiílí©d''u®il!íís edátji&fld.'W&ikEré towards defendant, and said^ ^kel£dPfi^n$p<íKfefí>a5t -^WfP^WaM1 „ „ . i j~. juiannsm ¡loan m liiabnídob boílus*. to; my pants don t fit me with a .gun on; you may nave,, a, gun on you for all I know — an4c.p.^^s],lWn..^B9ibjd%f^idaBtbn^b fendant stepped back against tfr© i5fBÍ3í;ífasdÍt®ldírMrd CítSc» tog back, and pulled a gun out of fjliyoJpsfcMetyt alirtiffiMatJ Cttfc 'JiiuagMtf the gun, and struck defendant,iná'tíh\ibtHt^.'-)an

Leo Cox testified to-

lhe assignments of error relied upon for a reversal of j^jg judgment are in effect as follow^ n^pJí?Yl4ffi 9MPI5Í1W pendant’s demurrer to the information, J^gt instructions given. That the ver^c^jqf/the.J^gjjjs, gfjijitfgr^jg law and to the evidence, and is mgk.^u^gin^fl Mir ^ence-

The information is insufficíentj'jp tempt to kill, defined by the Pená^flf MsñBSít Laws 1910) as follows: ¿«onfiy/ gninhdqmoo arif yd

“Any person who intentionally andrjy/i'OfgfidlMrBjiQigite/líhQOÍh at, or attempts to shoot at another, wi1;l})$.pyJjl)di]ifl(i<?ufy'rWiURnfftk gun or other means whatever, with intent to kill* aOT'.persóm or who commits any assault and battery upon another by Inelans^o?’ any deadly weapon, or by such other rriea&SsloiSíáyftíéí'aís 'igTIikely to produce death or in resisting the execujáop-^f^ftyjJpgjjfyproc-ess, is punishable by imprisonment in Ijiaejp^pjjt^jarjyjjng^fie^j ceeding ten years.” nm<hni orb ni bwmib

The court in its charge erroneously submitted the issue of attempt to kill under this section. See Clark v. State, 6 Okla. Cr. 100, 116 Pac. 200. However, the court also submitted the issue of assault with a dangerous weapon as defined by the Penal Code. Section 2344. We are inclined to think that the information is sufficient to charge an offense under this section.

One of the instructions excepted to is as follows:

“You are further instructed that, for the acts charged in the information to be justifiable, they must have been performed in this case in the lawful defense of the defendant against an unlawful assault upon him by the complaining witness. If the jury believe from the evidence that the defendant and the complaining witness met at the time and place stated in the information, and there held a conversation in a peaceable and lawful manner, and the said complaining witness, without just reason or excuse, became enraged at the defendant, and' thereupon assaulted defendant in such manner as to induce in the mind of the defendant a reasonable and well-grounded belief that he, the defendant, was actually in danger of losing his life or of suffering great bodily harm at the hands of the said complaining witness, then he was justified in defending himself,- and in so doing might use such force as was reasonably necessary under the circumstances to protect himself against such threatened danger, even to the extent of performing the acts complained' of in the information.”

We think this instruction tends to shift the burden of proof by requiring defendant to establish his defense by a preponderance of the evidence. All that is necessary in a criminal case is that the evidence, or the want of evidence, as a whole raises a reasonable doubt as to the guilt of the person charged. If the jury had airy reasonable doubt as to whether defendant was justified in defending himself against the assault made upon him by the complaining witness, it was their duty to return a verdict of not guilty. It was not incumbent upon the jury to find affirmatively that defendant acted in self-defense before they could acquit him.

The following language of the court is also complained of:

“Instruction No. 9: If in your deliberation you are unable to find the defendant guilty of the crime of attempt to kill, as charged in the information, you should then consider the evidence as applied to the next lower degree of said crime, to wit, assault with a dangerous weapon.”

‘‘Instruction No. 11: You are further instructed that, if in consideration of the evidence in this case under the instructions of the court you are unable to find the defendant. guilty of an attempt to kill, and you are also unable to find him guilty of an assault with intent to do bodily harm, you should then consider the evidence under the instructions of the court to determine whether or not the defendant is guilty of assault and battery upon the said complaining witness.”

It will be observed that the language of the court is, “if you are unable to find the defendant guilty of the crime of attempt to kill, as charged in the information, and you are also unable to find him guilty of an assault with intent to do bodily harm.” In the case of Bauer v. State, 3 Okla. Cr. 529, 107 Pac. 525, similar language is condemned. The court said:

“This might have been understood by the jury that the court expected a verdict of guilty, or construed as an intimation that it was the duty of the jury under the evidence to find the defendant guilty. The jury should have been told if, after a fair and impartial consideration of all of the evidence in the case, they were not convinced beyond a reasonable doubt of the defendant’s guilt, as charged in the indictment, then it would be their duty to consider as to whether he was guilty of the next lower offense embraced in the charge. It is never the duty of the jury to convict the defendant until, after a fair and impartial consideration of all the. evidence and circumstances, they are convinced beyond a reasonable doubt of his guilt.”

As to the sufficiency of the evidence, we do not believe we would be warranted in sanctioning the verdict and judgment.

For the reasons stated, the judgment is reversed.

ARMSTRONG, P. J, and FURMAN, J., concur.


author: '¿BkDYLE, J.

text:
    A. A. MOULDER v. STATE.
    No. A-1829.
    Opinion Filed November 8, 1913.
    1. INTOXICATING- LIQUORS — Illegal Possession — Evidence—Revenue-License. A certified copy of the record of the collector of internal revenue, showing that a defendant has paid the special tax required of liquor dealers by the laws of the United States, is admissible as evidence in a prosecution'for having liquor in possession with intent to sell same, and constitutes prima facie J proof of the intent to sell.
    9. SAME. Evidence examined and held sufficient to sustain a con-f viction for having possession of intoxicating liquors with the intention of violating provisions of the prohibition law.

      Appeal from County Court, Pawnee County; Fred S. Liscum, Judge.

    A. A. Moulder was convicted of a violation of the prohibi-tftifi law and appeals.
    Affirmed.

      We^sa G- Fairchild, for plaintiff in error.
    teía.r. West, Atty. Gen., and Smith C. Matson and C. J. Savenbort, Asst. Attys. Gen., for the State.
   '¿BkDYLE, J.

This appeal is prosecuted from a conviction hUH italer an information which charged that the defendant did ífave jfbssession of intoxicating liquors, with the intention of vio-latin^ ^^pvisions- of the prohibition law. On July 22, 1912, in accordance with the verdict of the jury the defendant was sen-jfiorip'r teheed to "be confined in the county jail for thirty days and pay a fine of $400. The evidence shows that the defendant received a shipment of seven barrels of beer and a barrel of whisky from the station agent at Keystone; that in order to receive such shipment he made the following affidavit:

“Keystone, Okla., May 6, 1912. To all concerned: In order to obtain a shipment of seven barrels of beer and one barrel of whisky by freight from the agent at Keystone, Okla., I hereby make affidavit and take oath that I am a resident of Keystone, and do not live in that part of the state formerly the old Indian Territory.”

—and that he also received several shipments of liquor by express.

It is further shown that the defendant paid a month’s rent to one G. W. Hickman. It is further shown by a witness who had lived at Keystone for about twenty years that he never knew defendant being there until Mr. Hickman said that defendant had a room at his house. The state also introduced in evidence a certified copy of the record of the collector of internal revenue showing the payment of the special tax required of retail liquor dealers. It shows that the tax was paid by “Order of Owls. A. A. Moulder, Place, Sapulpa, Okla.” The defendant offered no evidence.

Numerous errors are assigned, but in our judgment the only material question not substantially covered by former decisions of this court, is the question arising on the sufficiency of the evidence to sustain the conviction.

This court takes judicial notice of the location of the towns and cities of Oklahoma, and judicially knows that the town of Keystone is in the southeast corner of Pawnee county, and that the city of Sapulpa is in the northeast corner of Creek county; Keystone being in what was formerly Oklahoma Territory and Sapulpa in what was formerly Indian Territory. We think that the fair inference from the facts proved is that the shipment was received at Keystone for transportation to Sapulpa, and we cannot say that the verdict is contrary to the evidence and the law, or that justice requires a new trial. The judgment of conviction is therefore affirmed.

ARMSTRONG, P. J., and FURMAN, J., concur.