text:
    EARL SIMONSON v. STATE.
    No. A-4944.
    Opinion Filed Oct. 9, 1925.
    Rehearing Denied Jan. 23, 1926.
    (242 Pac. 279.)

      A. M. Stewart and Wm. M. Williams, for plaintiff in error.
    The Attorney General and Fred Hansen, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

Earl Simonson, plaintiff in error, herein referred to as the defendant, was convicted in the district court of Harmon county of conjoint robbery, and his punishment fixed by the jury at confinement for a term of five years in the state reformatory at Granite. From the judgment on the verdict, he appeals.

The defendant was charged jointly with Joe Allison for the commission of the crime, but a severance was had and the defendant tried alone. The facts, as disclosed by the record, show that shortly after a Christmas entertainment in the town of Hollis three boys or young men, Sid Crabb, Earl Dennis, and Oscar Leakey, were some distance from the place of the entertainment and were just about to get into a conveyance to go home when two men approached, one a large, tall man, and the other a smaller, short man, and commanded the three boys to “stick ’em up.” This the boys did, and while one of the highwaymen pointed a pistol at them the other one went through their pockets and took their money, amounting in the aggregate to $37. None of the persons robbed could identify either of the men who did the robbing.

E. R. Jones, a witness for the state, testified that he had known and been friendly with the defendant for several years; that a short time before the robbery he sold the defendant a 32, automatic pistol, receiving $7 in cash, the balance to be paid later; that on the morning after the robbery the defendant came to his store or cold drink stand at Gould, in Harmon county, and mentioned the fact that Oscar Leakey and the other two boys had been robbed the night before, and asked the witness if he had heard about it; defendant then stated to witness that he and Joe (Allison) were the ones who had committed the robbery. Part of the testimony of this witness is as follows:

“Q. Go ahead and tell what was said; that is what I want you to do. A. He said him and Joe got the money off of these fellows. I don’t remember the names, and he told me it was 30 some dollars. Something over 30 — 37, or something — and he told me how scared Joe got.
“Q. How was that? A. He said something about, ‘You ought to have seen Joe shake,’ or something to that effect.
“Q. That is Joe Allison? A. Yes, sir. Well, of course, he didn’t say Joe Allison, I don’t think. He just said ‘Joe.’
“Q. What else did he say? A. He said that he got the money while Joe held the gun, and said after they got the money that Joe told these boys to stand still until they got away, and he told them then to get in the buggy and drive south.”

This witness further testified that later on, after the defendant had made bond, the defendant came to see him at the store and asked him to swear that the gun the defendant had obtained from him was so obtained after the date of the robbery, and asked the witness to give other false testimony.

After the sheriff had placed the defendant under arrest, and while he was taking him to Hollis, the sheriff asked the defendant if he was guilty, and the defendant stated that he did not wish to make any statement with reference to the matter until he had discussed it with his father or mother. The sheriff then took him to his home and permitted him to have a private interview with his mother, and then conveyed him to Hollis, where he placed him in jail. On the following day, the sheriff took the defendant’s father and two neighbors, Mr. Yoakum and Mr. Carmack, to the county jail in order that they might confer with the defendant. From the testimony of these neighbors it appears that the defendant admitted that he was guilty of the offense, but that he stated at that time that Joe Allison, charged jointly with him, was not guilty. Upon this feature of the case, Yoakum testified as follows:

“Well, we went to the courthouse, and they brought Earl out, and Mr. Carmack, Mr. Simonson, and myself were there in the sheriff’s office with the sheriff over there, us four was in there, and Mr. Simonson said, ‘Earl, we have come down to get you out. We want to know the truth, whether you are guilty or not.’ He said, T think you are due it to me as your father to tell me whether you are guilty or not guilty. We will get you out, but I want to know whether you are guilty or not.’ Earl 'says, T am guilty; but not as charged.’ I said, ‘What do you mean, Earl? Do you mean that you are not guilty?’ He says, ‘No,, they have Joe and I both charged. I am guilty, and Joe is not.’ I said, ‘Do you mean to say you held up the boys by yourself?’ And he said, ‘Joe wasn’t with me.’ ”

An excerpt from the testimony of Carmack is as follows:

“I talked to Earl over there and asked him if he had an opportunity to talk with his father, and he said he hadn’t, and I asked him again if he wanted to talk to his father, and I told him if I was him I would talk to my father before I made a statement in regard to the matter. However, I told him I would help in any way I could, if he was guilty or not guilty. * * * Earl was brought into the room (the jailor’s office) and Mr. Simonson, myself, and Mr. Yoakum were there, andi Mr. Simonson did the talking. He said, ‘Earl, we have come after you. The men have all been very nice to you and come to get you out, right or wrong, and have made your bond, but we would be in better position to help you if we knew the truth, and want you to tell us the facts about it.’ And he says, T am guilty, but not of what I am charged.’ Mr. Yoakum spoke up and asked him what he meant by that. He said that he was guilty, but that Joe wasn’t. His father then went on and told him he was glad he told it, and the best thing in the world he could do would be to plead guilty, and I told Earl if he would promise me and his father and Sam Yoakum to take our advice in the matter we would keep what he had told us until the proper time, and we would try and make arrangements to get him out the lightest we possibly could.”

At the trial, the defendant, through his counsel, repeatedly objected to the testimony of Yoakum and Carmack, upon the ground that the statements made by the defendant to them were not voluntary or free from undue influence; that they were induced by promises from the father and these neighbors that they could probably procure a parole or suspended sentence if he made a confession. The court overruled these objections, and permitted these statements to go to the jury, with appropriate instructions as to whether or not the statements so made were free and voluntary.

We are constrained to hold that the court committed no error in permitting this testimony to go to the jury. The sheriif, who made the arrest, told the defendant that he need not make any statement if he preferred not to; the father and the two neighbors who visited him in jail were not persons in authority, and although they admonished him that they thought it would be better for him to tell the truth, regardless of whether he was innocent or guilty, it appears that whatever statements were made were to a large extent responsive to questions asked by the father of the defendant, and that no threats were made or undue influence exerted by any of the persons there present.

In Lucas v. State, 26 Okla. Cr. 23, 221 P. 798, this court reiterated the doctrine that confessions induced by promises of benefit or threats o'f harm made to a defendant by a prosecuting attorney or an officer having him in custody will be deemed involuntary and will be inadmissible in evidence.' It is further held in that case that where the competency of a confession is challenged on the ground that it was not voluntary, its admissibility as evidence is primarily a question for the court. After the court decides that the confession is admissible, the defendant is then entitled to have the evidence in regard to the facts and circumstances under which the confession was made given anew to the jury, not for the purpose of permitting the jury to pass upon its competency, but for the purpose of enabling the jury to judge what weight and value should be given to such confession as evidence. If the jury are satisfied that the confession was not freely made, they may disregard it. Practically the same conclusions are stated in Mays v. State, 19 Okla. Cr. 102, 197 P. 1064.

In the cases cited, as well as in many other of our reported cases, the alleged confessions were made to the prosecuting attorney or to some other officer having or exercising authority over the accused. In this case, the alleged confession was made to the father and two neighbors and friends of the defendant.

In Beggarly v. State, 8 Baxt. (Tenn.) 520, the rule, relating to confessions made to persons not in áuthority, is stated thus:

“In regard to the person by whom the inducements were offered, there has been conflict in the authorities, some holding that the inducements held out by private persons, not being prosecutor, officer, or having any authority over the prisoner, are not sufficient to exclude confessions thus obtained; but the sounder rule manifestly is, that this is a mixed question of law and fact for the judge, and while it is proper to note the difference between confessions obtained by prosecutor, officer, or person in authority and those obtained by private persons, yet, if, in fact, the confessions were forced from the prisoner through hope or fear presented to his mind by a third person, it should be rejected. In determining this the judge should look not only to the position and character of the person offering the inducements, as well as of the prisoner, and all the attending circumstances.”

In the case of State v. Kirby, 1 Strob. (S. C.) 155, the following appears:

“But where the confessions are made on inducements held out by private persons having no authority over the prisoner or the prosecution, there seems to be no satisfactory conclusion to be drawn from the authority of decided cases, so as to lay down any definite rule which can be applied to the almost infinite variety of cases which occur. The same difficulty does not exist where the confessions are made to one in authority. There, it is true, the rule may sometimes fail of meeting' the truth on account of the difference in age, experience and self-possession, in the midst of the most trying and difficult position in which man can be placed; yet, in general, it has been found to be a wise rule which excludes confessions made to such persons; and as it is always wise to narrow the bounds of discretion, whenever it is practicable, it has been adopted as a rule. But in the case of confessions made on suggestions of benefits, by private persons having no authority, the difficulty of laying down a more specific rule than the general one, that the confession must be voluntary, has suggested, the idea that the question is a mixed one of law and fact, and that it must be left in a great degree to the judge to decide, under all the circumstances, whether the threats or inducements were such as to overcome the mind of the prisoner.” Annotations, 7 A. L. R. 419.

The reasons for excluding confessions made under any circumstances is that the statements made by the accused may be untrustworthy, due to the influence exerted by the person to whom they were made. Applying that test to this case, we can see no reason why this defendant, under the circumstances as shown by the record, would make admissions of guilt, if he were in fact not guilty. The presumption is that a confession is voluntarily made. The burden is on the defendant to show that it was made under duress or undue influence. No sufficient showing- of that kind appears here.

It is next contended that the corpus delicti was not shown by evidence independent of the confessions. In a robbery case, the corpus delicti is separate and distinct from the question of who committed the robbery. That a robbery was committed by some one was conclusively shown by evidence independent of the confessions. The robbery was shown by direct evidence, and the identity of both perpetrators was sufficiently shown by the several confessions and by significant circumstantial evidence. 7 R. C. L. 773 et seq.

The instructions given were fair to the defendant, and there was no error in the court’s refusal to give the instructions proffered by the defendant relating to the corpus delicti, or on the question of reasonable doubt.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


source: Caselaw Access Project

author: BESSEY, P. J.

license: Public Domain

text:
    E. B. BAUM v. STATE.
    No. A-4370.
    Opinion Filed May 29, 1925.

    Rehearing Denied Jan. 26. 1926.
    (242 Pac. 576.)

      Rummons & Hughes, for plaintiff in error.
    The Attorney General and John Barry, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

E. B. Baum, plaintiff in error, here referred to as the defendant, was by verdict of a jury found guilty of embezzlement, with his punishment fixed at imprisonment in the penitentiary for a term of' one year and to pay a fine of $500. From the judgment on this verdict he appeals.

On the 30th day of July, 1920, and prior thereto, the defendant was the cashier of the Bank of Gotebo, at Gote-bo, Okla. At this time the defendant negotiated a loan in the principal sum of $6,000, as evidenced by a promissory note in which five makers, representing the Farmers’ Cooperative Association of Gotebo, promised to pay to E. B. Baum at the Bank of Gotebo, six months after date, the sum of $6,000. The defendant required the makers of this note to pay the interest, amounting to $240, in advance; the check for this interest being made payable to the “order of interest on $6,000, Bank of Gotebo.” This check was deposited to the individual checking account of the defendant, which was carried in the name of Baum and West, and the proceeds checked out and used by the defendant personally. The $6,000 note was rediscounted and sold to the Southwest National Bank of Oklahoma City, indorsed on the back, “E. B. Baum.” The records of the Bank of Gotebo showed that the makers of the note were credited with $6,000 and the Southwest National Bank of Oklahoma City charged with that amount.

There was evidence introduced tending to show that the defendant, while cashier of this bank, made several other loans of this character, collecting the interest on each in advance and placing the interest so collected in his own personal account at the bank and using it personally.

The facts as stated were admitted by the defendant. His defense was that the Bank of Gotebo was capitalized for only $25,000, and that the bank at this time had negotiated loans to the limit prescribed by law, and that this loan was a personal one, negotiated by him individually through the -Southwest National Bank, upon his personal financial standing as a banker.

The defendant assigns as error the admission of testimony relating to other like transactions, and the court’s 'instructions relative thereto. This assignment of error is without merit for two reasons. In the first place, the defendant sought to justify by showing that it was the custom of the officers of this bank to negotiate personal loans in this manner when the aggregate amount of the bank’s outstanding loans reached or exceeded the limit prescribed by law. This was his sole and only defense, as shown by his own testimony. ■ The evidence touching upon this feature of the case was for his own advantage, or relied upon by him for that purpose, and he will not now be heard to complain thereof.

Further, the purpose of the state’s introduction of the testimony upon this feature of the case was properly limited by the court in instruction No. 5, as follows:

“You are instructed that evidence has been introduced in this case which tends to show the commission by the defendant of other offenses than the offense for which he is now on trial. And in this connection you are instructed that such evidence has been admitted for your consideration for the sole purpose of throwing light upon and showing the intent and purpose of the defendant in connection with his acts in the offense charged, if any, and as to whether or not the offense charged was a part of a system to defraud said bank, if you find it does have such effect, and for no other purpose, and you are instructed that such evidence is to be considered by you for no other purpose.”

The defendant claimed justification and immunity from prosecution on the ground that, since the bank of which he 'was cashier could not make loans beyond a fixed limitation, under the provisions of the statutes, when such limitations had been reached, in order to accommodate the customers of the bank, he used the bank as a vehicle through which to negotiate loans from other banks for his own personal profit. It may be conceded that within proper bounds the cashier of a bank may personally engage in business transactions for personal profit, so long as the interests of the bank he serves are not jeopardized or inter-Terred with. But this privilege could not be construed as extending to cases in which the cashier, or other officers of a bank, engaged in a rival loan business involving legal obligations on the part of the bank.

Tins double method of making loans by officers of banks, some for the benefit of the bank and some for private profit, amounts to a fraud against the interests of the stockholders and depositors of the bank. Under such circumstances the gravy inevitably runs to the private end of the platter. When bankers so forget the duties of their trust, it usually follows that, when financial troubles come to the, bank, the bad loans are found to be the property of 'the bank, while the profits of the good loans have been appropriated privately by its officers. Bank officers who so carry on a banking business are actually, or potentially, robbers from the inside.

Whether the particular loan here involved was an individual loan made in good faith was an issue of fact for the jury. There is ample evidence appearing in the record to support the state’s contention that it was not such an individual loan made in good faith, and that the private appropriation of the interest by the defendant constituted embezzlement, as alleged in the accusation.

The defendant was permitted to testify that after the prosecution was instituted he made efforts and an offer to restore the money alleged to have been embezzled. This testimony was afterwards withdrawn from the jury. In Fulkerson v. State, 17 Okla. Cr. 103, 189 P. 1092, the court said:

“A proffer of evidence that the defendant was anxious and willing to restore the funds alleged to have been embezzled .was properly excluded. Such evidence would not constitute a defense to the charge, nor be proper to be considered in mitigation of the punishment.”

The rule is different where restitution is offered, in whole or in part, before the commencement of the prosecution. In such case the offer may be shown and considered in mitigation of punishment.

Finally, it is claimed that the evidence is insufficient to support the verdict. The evidence shows that this defendant had been operating a clever scheme to use the bank he represented to enable him to rediscount with other bank notes for large sums, retaining the interest for himself, and so depriving the bank on whose credit he was operating from realizing any profit whatever from many of these transactions. This scheme was a plain evasion of the banking laws of this state. In our opinion the fact that he indorsed this note, and possibly other notes, individually, makes no difference. The rediscounting bank knew he was cashier of the Gotebo bank, and undoubtedly regarded the obligation as an obligation of the bank, and not of the cashier as an individual.

The judgment of the trial court is affirmed.

DOYLE, J., concurs.

EDWARDS, J., certifies his disqualification and does not participate.


author: EDWARDS, J.

text:
    J. ALAN APPELGET et al. v. STATE.
    No. A-4693.
    Opinion Filed Jan. 23, 1926.
    (243 Pac. 251.)

      A. L. Squire and Titus & Talbot, for plaintiffs in error.
    Geo. F. Short, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for the State.
   EDWARDS, J.

For convenience and brevity, the plaintiffs in error will be referred to as defendants. They were prosecuted in the district court of Alfalfa county under an indictment for receiving a deposit in an insolvent bank. The defendants J. Allen Appelget, G. L. Berry, and Harry E. Appelget were respectively president, vice president, and cashier of the Bank of Goltry, and were directors in said bank. On the 16th day of November, 1921, the bank, through one Reuben Sparks, its receiving teller, received a deposit from C. C. Clark of four checks aggregating $129.78. On the following day the bank close'd. The case went to trial on November 16, 1922. The assignments Of error presented may be summarized as follows: Error of the court in admitting incompetent, irrelevant and immaterial evidence on the part of the state; error of the court in excluding competent and material evidence offered by the defendants; error of the court in his instructions to the jury.

The statute under which the prosecution was had is section 4128, Comp. St. 1921, the pertinent part of which is as follows:

“* * * No bank shall accept or receive on deposit * * * any money * * * checks or drafts, when such bank is insolvent; and any officer, director, cashier, manager, member, party or managing party of any bank who shall knowingly violate the provisions of this section, or be accessory to or permit or connive at the receiving or accepting of any such deposit, shall be guilty of a felony, and upon conviction thereof shall be punished,” etc.

Section 4135, Comp. ¡St. 1921, defines “insolvent” as follows:

“A bank shall be deemed to be insolvent, first, when the actual cash market value of its assets is insufficient to pay its liabilities; seeond, when it is unable to meet the demands of its creditors in the usual and customary manner; third, when it shall fail to make good its reserve as required by law.”

And section 4124, Comp. St. 1921, defines the reserve required by banks to be kept, and provides that any bank which shall fail for a period of 30 days after notice from the bank commissioner to restore its lawful reserve may be deemed insolvent, and possession of it may be taken by the bank commissioner.

In order to find the defendants guilty in this case, it was necessary that the state prove by competent evidence that at the time the deposit was received the bank was insolvent, and that defendants had knowledge. This could be established only by an examination into the affairs of the bank generally and the method and manner of the conduct of the bank by defendants as going to their knowledge of its condition, since knowledge must be proven by the surrounding facts and circumstances.

Under the first assignment, it is contended by the defendants that section 4135, supra, defines “insolvent” for civil purposes only; that the test of solvency under the criminal law is to be determined by ascertaining if the value of the assets of a bank when handled by the rightful owners in the usual course of business is equal to the liabilities of the bank. If they are, the bank is solvent in so far as fixing the acts of its officers as criminal. If they are not, it is insolvent. In other words, that the term “insolvent,” as used in section 4128, supra, means insolvent in the broad general sense.

It is necessary that we determine the meaning of the word “insolvent” as used in the criminal statute defining the offense charged. Section 4128. Does it mean insolvent in the broad, general sense as applied to an individual or institution whose entire property and assets, when converted into money without unreasonable haste, is' insufficient to pay liabilities; that is, when the actual cash market value of its assets is insufficient to pay liabilities, and where it is not able in a reasonable time by pledging its assets and credit to obtain means to meet its debts and obligations in the ordinary course of business, or does it mean insolvent as the term is defined by section 4135, above quoted. The word is differently defined by different courts. 32 Corpus Juris, 806, 14 R. C. L. 628 (2). Our statute defining the word “insolvent” is a part of the general banking law in which all the provisions for organizing banks, creating a banking board and the office of bank commissioner, and providing for a state guaranty fund, and for thé management and control of banks generally is embodied. The duties of members of the banking board and the banking commissioner are fixed. The power of the bank commissioner to close, take over, and liquidate banks under conditions stated is given. Among these powers it is provided that, when the reserve of any bank shall be below the required amount, the bank commissioner shall notify such bank, and, if the bank shall fail for a period of 30 days after notice to restore its reserve, it may be deemed insolvent, and the bank commissioner may take possession. Section 4124, Comp. St. 1921.

Upon a consideration of the entire statute, we are of ihe opinion that the word “insolvent,” as used in section 4128, wherein it is made a crime to accept or receive deposits by an insolvent bank, is that state of being insolvent which arises when the cash market value of the assets of the bank are insufficient to pay its liabilities; or where the bank is unable to meet its obligations, liabilities, and debts, and to pay its depositors in the ordinary course of business, when given a reasonable time to procure the money for such purpose by pledging its collateral and credit to meet any temporary inability or emergency, and not the state of being insolvent set out in sections 4124 and 4135. It certainly was not the legislative intent to make criminal the accepting or receiving of deposits in a bank insolvent in that technical sense in which the word is used in section ‘4124, where a bank may be deemed insolvent when it shall fail for a period of 30 days after notice to restore its reserve. Nor was it the legislative intent to make criminal the act of the officers of a bank to accept or receive deposits, where, by reason of some unexpected demand or the failure to receive expected remittance, the bank had failed to pay some liability in the usual and customary manner, as defined in the second subdivision of section 4135. To conclude otherwise would lead to absurd results. For instance, a bank might have assets worth much more than its liabilities, and yet by inadvertence or negligence have 'failed to make good its reserve or have failed to procure means to meet some unexpected demand in the usual and customary manner. This view is supported by the case of Ellis v. State, 138 Wis. 513, 119 N. W. 1110, 20 L. R. A. (N. S.) 444, 131 Am. St. Rep. 1022, where it is held that—

“The term ‘unsafe or insolvent’ as used in section 4541, St. 1898, does not mean insolvent in the limited sense of inability to pay indebtedness in the ordinary course of business.
“The term mentioned means insolvent in the broad general sense of a deficiency of one’s assets in realizable cash available within a reasonable time, treated as an ordinarily prudent person would generally conduct his business under the same or similar circumstances, to pay his liabilities.”

The court in that case, however, gives some weight to the fact that the Wisconsin statute used the words “unsafe and insolvent,” and said that the word “insolvent” was used as the legal equivalent of “unsafe,” and intimated that this use of terms might distinguish it from the word “insolvent” as used in the statute of some of the other states.

The case of Skarda v. State, 118 Ark. 176, 175 S. W. 1190, Ann. Cas. 1916E, 586, was a prosecution under the banking laws of the state of Arkansas for receiving deposits in an insolvent bank under a statute in language very similar to ours. The law there defined a bank as “insolvent” under five different contingencies, and in the instructions of the court the jury were informed the meaning of “insolvent” in a criminal sense as follows:

“Now, upon the question of insolvency, you are instructed that the bank was insolvent in the sense used in the indictment. First, if the bank at the time of the deposit referred to in the indictment by Joe Janet did not have assets sufficient to pay its debts; second, if the bank was financially unable to pay its debts or obligations when they became due. Now, this inability to pay its debts does not mean a temporary inability to pay its debts such as might occur when there is a ‘run on the bank’ or failure of the officers of the bank to have enough available cash on any particular day to run the bank that day, or because of any other emergency, but it means an inability to meet the bank’s obligations or debts and pay depositors in the ordinary course of business when given such a reasonable time to get the money as might be expected or required by a bank in carrying on its banking business. In other words, if the bank, under ordinary and usual circumstances, was unable to get the money by putting up its collateral and credit to pay its debts or depositors as same became due and presented for payment in the ordinary course of its business, it was insolvent in the sense used in the indictment.”

The language of this instruction differs widely from the statutory definition of insolvent, but that court holds the instruction was not erroneous.

It is contended that the proof shows that defendants did not personally receive the deposit upon which the charge is predicated, nor does it show that defendants had anything to do with receiving it. Where the statute, as here, prohibits the officer or managers of an insolvent bank from permitting, conniving at, assenting to, or being accessory to, receiving or accepting deposits, they may be convicted as principals, although they did not manually receive the deposit, or were not present when the deposit is received. 3 R. C. L. 498, § 124; State v. Mitchell, 96 Miss. 259, 51 So. 4, 20 L. R. A. (N. S.) 1072, Ann. Cas. 1912B, 309; State v. Cramer, 20 Idaho, 639, 119 P. 30; State v. Eifert, 102 Iowa, 188, 65 N. W. 309, 71 N. W. 248, 38 L. R. A. 485, 65 Am. St. Rep. 433; State v. Shove, 96 Wis. 1, 70 N. W. 312, 37 L. R. A. 142, 65 Am. St. Rep. 17.

Various items of evidence were objected to which were admitted by the court and are assigned as error. ¡Special reference will be made to only a few of these items. It is argued that the admission of the criticism made by the bank examiner of the Bank of Goltry on July 13th preceding was incompetent. This contention, we think, is not tenable. By section 4176, Comp. St. 1921, it is made the duty of the examiner to report on the condition of a bank examined, and in Hays v. State, 22 Okla. Cr. 199, 210 P. 729, the reports and records of the state examiner and inspector are held competent as primary evidence. In Mathews v. State, 19 Okla. Cr. 153, 198 P. 113, it is in effect held that such instrument was admissible in evidence under the terms of section 654, Comp. St. 1921, designating what records may be received as primary evidence. See, also, State v. Welty, 65 Wash. 244, 118 P. 10. The books and records of the Goltry Bank, so far as they were pertinent to the charge, were admissible when properly identified as the books of the bank. They are quasi public records required by law to be kept, with severe penalties provided for the making of false entries therein. They are kept under the general supervision of the officers of the bank, and are evidence of the condition of the bank and of the knowledge of the officers of the bank as to its condition. State v. Easton, 113 Iowa, 516, 85 N. W. 795, 86 Am. St. Rep. 389.

The statute referring to books of account as evidence (section 653, Comp. St. 1921) does not apply.

Complaint is made of the admission of the testimony of the witness Wonderlich that certain items sent from the Federal Reserve Bank at Oklahoma City to the Bank of Goltry were not returned in due course, but were delayed for a number of days longer than necessary in the usual and customary manner. Some of this evidence went beyond the scope permissible, as when the witness was permitted to testify to the rules and regulations established by the Federal Reserve Bank for the forwarding of items to other banks, and the fact that his bank had the Bank of Goltry on a three-day schedule.

Complaint is also made of the evidence of the witness King, agent for the state banking department, as to the affairs of the Bank of Goltry, and a statement of liabilities and assets prepared by him, and of his testifying to the statutory requirements for maintaining the bank’s legal reserve. Where records are voluminous, and of such a character that the average juror would not be able to analyze them and arrive at what they disclose, a competent witness may properly testify and explain the books and records in question. 2 Ency. Ev. 690 (c). There was no error in admitting the statement of assets and liabilities prepared by the witness King, and, while the cash reserve required is a matter of law, it is not prejudicial that the witness stated the fact for the information of the jury.

It is further complained that the witness Enlow was permitted to testify as to the reputation for solvency on or after January 1, 1922, of different persons who had notes in the bank. This was not erroneous, because the matter of solvency at the time the deposit charged as the basis of the offense was received was material, and it was proper to show the condition of the bank at a subsequent time not too remote. State v. Welty, supra. Insolvency may be proven by general reputation when properly restricted. Ellis v. State, supra; Mathews v. State, supra, and authorities there cited.

Another witness was handed certain papers referred to as cash letters, purporting to have been sent from the Federal Reserve Bank to the Bank of Goltry, and purporting to accompany cash items sent which the witness testified were not handled in the usual and ordinary manner, and not within the limit of time promulgated by the Reserve Bank in dealing with the Bank of Goltry. This tended to prove that the Bank of Goltry at the time was insolvent. These cash letters were not shown to have been a part of the records of the Bank of Goltry. They were not shown to have been made by the witness or that he had any knowledge that they were correct or were in fact sent to the Bank of Goltry. There was sufficient preliminary or foundation evidence on which to predicate their admission. They were improperly admitted.

Other items of evidence are assigned as erroneous, but none of them are of sufficient importance to notice specially. In a case of this kind, where the evidencé depends largely upon books, papers, and documents and the value of paper assets, the rules of evidence should be liberally construed so as not to hinder the development of the true state of affairs. We find no substantial error in the admission of the other items of evidence complained of.

Upon the second assignment, that the court erred in excluding evidence offered by the defendants, various rulings are cited, some of which will be noticed. In one instance, on cross-examination, the bank examiner was asked 'whether in his judgment the Bank of Goltry was insolvent at the time of his last examination in July, 1921. This was excluded. The defendants then made an offer to prove that at the time the bank closed it was in the same condition as it was at the time of the examination in July, 1921. Inasmuch as solvency was to be determined from a general consideration of the value of the bank’s assets and its liabilities, it was a matter largely to be proven by opinion, and the evidence excluded was competent. This was further competent, for the reason that the criticism of the bank commissioner at the time of his examination had been admitted, and it might reasonably be taken by the jury as the opinion of the bank examiner that the bank at the time was in an insolvent condition, and it was, therefore, pertinent to ask on cross-examination if at that time in his opinion it was insolvent. It was further competent as touching the knowledge of the defendant as to the condition of the bank. His opinion of the condition of the bank at the time of the examination would have some probative force that the defendants did not know of the insolvency and might in good faith have believed that it was solvent. This exclusion of evidence was a severe restriction on the right of cross-examination.

It is also contended the court erred in excluding questions asked the witness Hulsey, who was a customer of the bank. He testified for the state, in substance, that the defendant Berry had talked to him about the condition of the bank, and had told Berry he did not want to check his money out unless something was going to happen or that there was a likelihood of the bank failing; that some time thereafter, and shortly before the bank closed, Berry had said to him: “Well, it is just about to happen.” He was asked on cross-examination if in that conversation Berry did not further inform him that the Bank of Goltry had a promise of $15,000 from the Fourth National Bank of Wichita which would put it in good running order, which question was excluded. This was also a too severe restriction on the right to cross-examination, since it might tend to show the belief of the defendant Berry that the bank was solvent.

Other rulings excluding evidence are complained of, but none of them are of sufficient importance to require special notice. The statute defining “solvency” and the statute making the receiving of deposits by the officers of an insolvent bank a felony, are drastic, and a defendant charged under such statute should be given a liberal right to cross-examine, and to introduce evidence which would tend to disprove insolvency, knowledge, or bad faith.

The instructions complained of define insolvent in the language of section 4135, supra. Since this section does not define the word “insolvent” as used in the statute making it a felony to receive deposits by an insolvent bank as charged in the information in this case, it follows that they are erroneous.

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

BESSEY, P. J., and DOYLE, J., concur.


text:
    HAROLD A. APPELGET et al. v. STATE.
    No. A-4694.
    Opinion Filed Jan. 30, 1926.
    (243 Pac. 255.)

      A. L. Squire and Titus & Talbot, for plaintiffs in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

For convenience and brevity, the plaintiffs in error will be referred to as defendants.

The defendants were stockholders and officers of the Bank of Goltry. In connection with one H. 0. Brown they entered into negotiations with J. B. Vosburg for the purchase of the stock of the Farmers’ State Bank of Lahoma. After some negotiations, the two defendants, with Brown at Lahoma, concluded a purchase of 85 shares of the stock of that bank for an agreed consideration of $22,100. This transaction was concluded on March 5th. H. 0. Brown had a little personal property of inconsequential value, and had $50 or $75 on deposit in the Goltry Bank. Prior to the purchase, it was agreed that the stock would be purchased in the name of H. 0. Brown, and that the defendants would with Brown each own one-third of the stock. Brown gave his note to the Goltry Bank for $22,100, and in payment for the stock gave Vosburg his check on the Goltry Bank for $22,100. After the purchase the stock was divided; 28 shares being carried as property of Brown, 28 shares for one of the defendants, and 29 for the other. The $22,-100 note was placed in the Goltry Bank, and the defendants gave checks and put up securities held by them in the Bank of Goltry sufficient to take care of their part of the $22,100 note, and Brown gave a new note for his part of the $22-100. The defendant Harold A. Appelget, about the time the purchase was concluded, resigned as director and officer of the Goltry Bank, and became president of the La-homa Bank when it was taken over. H. 0. Brown became its cashier. The records of the Bank of Goltry do not show the complete transaction. Two pages of the day book are missing, and the entry of the $22,100 note is shown by number only; the amount and other data relating thereto not being entered. The defendants were indicted under the provisions of section 4127, Comp. St. 1921, charging them with larceny; the allegation being:

“That said Harold A. Appelget was then and there an active managing officer of the said bank of Goltry, to wit: A director of said bank, and that they, the said Harold A. Appelget and J. Alan Appelget, * * * did unlawfully, willfully, fraudulently, and feloniously borrow from said banking corporation of which they were active managing officers as aforesaid the sum * * * in the manner and form as follows, to wit: That said Harold A. Appelget and J. Alan Appelget and H. 0. Brown * * * did enter into an agreement whereby said H. 0. Brown was to act as an intermediary for said Harold A. Appelget and J. Alan Ap-pelget for the purpose of borrowing $22,100 from said bank; that, pursuant to said agreement and understanding, said H. 0. Brown did then and there make and execute a certain note as principal maker and said Harold A. Appel-get as surety, * * * and the said H. 0. Brown did then and there sell and deliver said note to said bank, and the said Harold A. Appelget and J. Alan Appelget, as said active managing officer of said bank, did then and there * * * purchase said note, using in payment of said note the moneys and funds of said Bank of Goltry; that the proceeds of said note * * * were then and there used by the said Harold A. Appelget, J. Alan Appelget, and H. 0. Brown in purchase of 85 shares of the capital stock of * * * the Farmers’ State Bank of Lahoma, which said capital stock assigned to said Harold A. Appelget and J. Alan Ap-pelget and H. 0. Brown * * * that said note for $22,100 executed by the said II. 0. Brown * * * was in truth and fact an accommodation note made and executed and delivered by the said H. 0. Brown for the use and benefit of the said Harold A. Appelget and J. Alan Appelget. * * * That In truth and fact the proceeds of the note of $22,100 of the moneys and funds of said bank were used by said! Harold A. Appelget and J. Alan Appelget for their- own use and benefit. * * *”

Upon the trial the defendants were convicted and sentenced to serve a term of one year in the state penitentiary.

Assignments of error are argued as follows: First, the insufficiency of the indictment, particularly as to the defendant J. Alan Appelget; second, the admission of incompetent evidence on the part of the state.

Upon the first assignment it is argued that the indictment confuses the general larceny statute (section 2101), and the special form of larceny set out in the banking law (section 4127) ; that the indictment is so indefinite and contradictory that a person of ordinary understanding' cannot tell what was intended to be charged. And, as to the defendant J. Alan Appelget, it does not charge that he was an active manager of the bank, as required in section 4127, and it therefore does not charge an offense as against him.

The indictment in its concluding part charges the elements of general larceny under section 2101 in alleging that the defendants did by fraud and stealth take, steal, and carry away the sum of $22,100 of the money and personal property of the bank, with the fraudulent and felonious intent to permanently deprive the true and lawful owner, the Bank of Goltry, thereof. This was mere sur-plusage, as the indictment is for the special larceny defined by section 4127.

The indictment is far from being a model pleading, and is to some extent contradictory in its allegations. It does, however, contain all the essential averments against each of the defendants to charge the crime created by section 4127, supra. Certainly the indictment was sufficiently definite 'that any person of ordinary understanding could understand that the defendants were charged as active managers of the Bank of Goltry with making an indirect loan to themselves through H. 0. Brown. The charge is made with sufficient particularity to enable them to prepare for trial, and, if convicted or acquitted, to defend themselves, if again indicted for the same offense. Star v. State, 9 Okla. Cr. 210, 131 P. 542; Price v. State, 9 Okla. Cr. 359, 131 P. 1102; Arnold v. State (Okla. Cr. App.) 132 P. 1123; Bynum v. State, 32 Okla. Cr. 103, 240 P. 150; Jackson et al. v. State, 31 Okla. Cr. 30, 237 P. 129.

Upon the second assignment, i. e., the admission of incompetent evidence on the part of the state, the complaint is directed to the admission in evidence of certain books and records of the Bank of Goltry, explanatory of the connection of the defendants with the bank and the transaction in reference to the $22,100 note. The identification of the books and records may not have been as complete in some particulars as they should have been, but both the state and the defendant apparently were satisfied and read excerpts from the records without objection. The state, before concluding its evidence, offered the original records in evidence, and objection on the ground of competency was made and overruled. It would have made no particular difference whether or not the entire record had been offered in evidence since the witnesses had testified to what was shown by the records and extracts had been submitted and read to the jury. There was no prejudicial error in admitting the bank’s records. The bank’s books and records, kept In due course of business under the general supervision of the defendants, when properly identified as such, were admissible against them. Appelget v. State, 33 Okla. Cr. 141, 242 Pac. 1056.

Upon examination of the entire record this court is led to the irresistible conclusion that under the record it was clearly proven that the defendants as active managing officers of the Bank of Goltry made an indirect loan to themselves. We fail to see how the jury could have found otherwise. There is ample evidence to sustain the verdict. The case was fairly tried, and the issues fairly submitted.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    J. ALAN APPELGET v. STATE.
    No. A-4695.
    Opinion Filed Jan. 30, 1926.
    (242 Pac. 1056.)
    Titus & Talbot, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was indicted by a grand jury upon a charge of diverting the funds of the Bank of Goltry, of which he was the president and managing officer, and thereby reducing the value of the assets of said bank, with the intent to accomplish! or to aid in accomplishing its insolvency as the offense is created and defined by section 4182, Comp. St. 1921.

' The record discloses a state of facts about as follows: That the defendant was the president and managing officer of the Bank of Goltry. That on the 16th day of November, 1921, the bank was insolvent and closed by the state bank commissioner. That two days before the bank was closed by the commissioner, the defendant, knowing the condition of the bank, procured and assisted in bringing about a 'trade between one W. H. Sparks, who had a small stock of merchandise in the town of Goltry and who was a brother-in-law of defendant, and one J. J. Johnson, an employee in the store of Sparks, whereby Sparks sold the stock to Johnson for an agreed price of $4,150. That Johnson had no property except a small residence house worth about $500, in which he and his wife and children lived, and was ’working for a salary of $15 per week, gave his note to the bank for the sum of $4,500 and took credit for said sum in the bank, and Johnson then gave his check to Sparks for $4,150. Sparks was at the time indebted to the bank in the sum of about $5,600 or $5,700, a part of which notes had been rediscounted at an Enid bank. The Johnson check was then deposited in the bank by Sparks and $3,573 of his notes to the bank canceled and delivered to him, and he was given a credit for $577 on the books of the bank. Johnson was given a credit on his account of $350. The stock of merchandise transferred from Sparks to Johnson was of the value of about $1,500. Johnson operated it a few days and it was closed, and he soon thereafter went into bankruptcy. The evidence of Johnson is that he was called to the bank by the defendant in the afternoon of November 14th and was induced to make the trade for the merchandise; that he knew nothing about the value of the stock except what was told him by the defendant or Sparks; that no invoice was taken; that he did not examine the books and did not know what indebtedness was against the stock; that he ran it four or five days, made sales aggregating $38, and it was then closed by creditors and the merchandise then invoiced $910. His evidence indicated that he was practically Without business judgment and unfit to conduct even a small business.

It is the theory of the state that the defendant, knowing the bank would fail, sought to release Sparks from his liability on his notes to the bank by substituting therefor the notes of Johnson and thereby reducing the value of the assets of the bank.

It is not argued that the indictment is insufficient, nor that the evidence is insufficient to support the verdict, but error is predicated on the admission of incompetent evidence on the part and on the exclusion of competent evidence offered by the defendant. We do not consider it necessary to take up in detail the different items of evidence to which objections were made, nor the items admitted over the objections of defendant. We have examined all the contentions and find no error that would warrant a reversal. It appears plain to the court that the defendant, expecting the bank of which he was president soon to be closed, sought to exonerate Sparks from his liability to the bank by substituting the practically worthless notes of Johnson, and if, as he now contends, the notes of Johnson placed in the bank were worth as much dollar for dollar as the Sparks note, still the evidence conclusively shows that Sparks was given an additional credit of $626, all of which was drawn out by him except the sum of $87.90, and that Johnson was given an additional credit of $350 by which the value of the bank’s assets was decreased $976. The transaction bears plain evidence of fraud upon its face, and we see no reason to disturb the verdict and the judgment of the court.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    HENCE WOFFORD v. STATE.
    No. A-5284.
    Opinion Filed Jan. 30, 1926.
    (242 Pac. 1055.)
    T. H. Davidson, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, P. J.

Hence Wofford, plaintiff in error, for convenience referred to as the defendant, was by verdict of a jury found guilty of manufacturing whisky. The jury failed to agree upon the punishment, which by the judgment of the court was fixed at a fine of $150 and confinement in jail for a period of 60 days.

The petition in error contains 30 assignments of error. Of these but 3 need be noticed.

It is claimed that the information is vague, uncertain, and duplicitous, in that it charges that the defendant manufactured “certain spirituous, vinous, fermented, malt, and intoxicating liquor, to wit, one quart of whisky.” This was a slovenly method of pleading, hut, when the pleader stated specifically that the particular liquor manufactured was whisky, the defendant was sufficiently apprised of the nature of the accusation. Star v. State, 9 Okla. Cr. 210, 131 P. 542; Price v. State, 9 Okla. Cr. 359, 131 P. 1102.

It is next contended that the evidence introduced on behalf of the state was procured by means of an illegal search and seizure, and was therefore inadmissible, and that the court erred in permitting the evidence so procured to go to the jury.

There is evidence tending to show that, as the officers approached the place where they found the still and whisky being made, the defendant invited them in, and that by words and conduct he waived his right to immunity from an unauthorized search and seizure, and waived his right to the exclusion of the evidence procured incident thereto.

If he did indeed so waive his rights, the evidence was admissible. Upon that point the testimony was conflicting, and the defendant upon request would have been entitled to an instruction advising the jury that, if they found from the evidence that the defendant had not waived his constitutional right to immunity from an unauthorized search and seizure, the evidence so procured should not be considered by them. The defendant, however, made no request for such an instruction, and upon the prima facie showing made the evidence was admissible, and the weight of the evidence was for the jury.

The defendant complains that instruction No. 6 was erroneous and misleading. This instruction was as follows :

“You are further instructed that, if you believe from the evidence, beyond a reasonable doubt, that the defendant in this case did, on the 11th day of August, 1923, manufacture one quart of whisky, or any amount, or was then and there in the possession of one whisky still, said whisky still and apparatus being then and there capable of manufacturing liquor on the date set out in the information, or within 3 years prior to the filing of the information herein, then you should find the defendant guilty of the crime of manufacturing liquor, and so say by your verdict.
“On the other hand, if after a consideration of all the evidence in this case you entertain a reasonable doubt as to whether the defendant, in this county and state, on or about the date mentioned, and within 3 years prior thereto, did manufacture any quantity whatever of whisky, as chargedjn the information, you should resolve that doubt in favor of the defendant and acquit him.”

The first paragraph of this instruction was erroneous. The clause “or was then and there in the possession of one whisky still, said whisky still and apparatus being then and there capable of manufacturing liquor,” should have been omitted. However, the defendant was charged with making whisky, not with being in possession of a still, and the information, the second paragraph of the above instruction, and the other instructions of the court sufficiently advised the jury that he was charged with manufacturing whisky, and must be found guilty, if at all, of manufacturing whisky, so that the jury were probably not misled by this erroneous instruction.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


author: DOYLE, J.

text:
    CHARLES LOUDERMILK v. STATE.
    No. A-5353.
    Opinion Filed Jan. 30, 1926.
    (242 Pac. 1060.)

      Crouch & Crouch, for plaintiff in error.
    George F. Short, Atty. Gen., and Smith C. Matson, 'Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Charles Loudermilk, 'was charged with statutory rape, alleged to have been com’mitted on the 4th day of July, 1923, by having sexual intercourse with ¡Sybil Taylor, a female under the age of 16 years, to wit, 14 years, and not his wife. On the trial the jury returned a verdict finding him guilty as charged in the information and fixing his punishment at imprisonment in the penitentiary for a term of one year. He has appealed from the judgment rendered on the verdict.

The only errors assigned are that the evidence is insufficient to support the verdict and judgment, and that the court erred in not granting a new trial.

The material and undisputed facts in the case, as disclosed by the record, are substantially as follows: The defendant was 30 years old and the prosecutrix 14. Their ’families were neighbors, having lived across the street from •each other in the city of Muskogee for about 3 years previous to the date alleged. The time of the alleged rape was 'between 10 and 11 p. m., and the place was in Hyde Park, 'near Muskogee, back of the house in which the monkeys "were kept and near the bank of the Arkansas river. On the 2d day of April, 1924, the prosecutrix gave birth to a child.

The prosecutrix testified that defendant by threats and intimidation frightened her in accompanying him to the scene of the assault from the place where each had been a spectator at the open air picture show that night in the park; that she went to the park with her three little brothers and her niece, Lela Loudermilk; that at the request of the defendant’s mother she stayed with her that evening at the open air show; that when she went to the river bank with the defendant, he told her they would have to do like a man and wife does, and laid her on her back and told her if she moved he would kill her; that he made her lie in that position about an hour; that he had intercourse with her and left her lying there; that she went back and again met his mother and went home with her and stayed there that night so that her mother would not see her, returning to her own home about 5 o’clock the next morning; that she never before or after had intercourse with any person.

As a witness in his own behalf, the defendant admitted that he was present at Hyde Park that afternoon and evening; that he saw the prosecutrix in the park about 5:30 in the afternoon, but did not speak to her; that he was around the dance hall and took the last car home that night a quarter until 12 o’clock'; that his mother left the park about 11 o’clock. He denied that he had intercourse with her on that occasion or at any other time. ,

It would serve no useful purpose to give a synopsis of each witness’ testimony. All these witnesses were before the jury and the trial court. The jury after due consideration and deliberation decided the issues of fact adversely to the defendant. Where the evidence is conflicting and apparently irreconcilable, it was the exclusive province of the jury to determine whom of the witnesses to believe and whom to disbelieve or whose testimony to disregard, and it was a question for the jury and not for this court to say whether the testimony of the prosecutrix was worthy of belief. Where there is evidence, apparently credible, which if believed is sufficient to sustain the judgment, this court will not reverse a conviction on the sole ground of the insufficiency of the evidence.

No prejudicial error being urged, and none appearing to the court, the judgment of the lower court is affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    GEORGE McKNIGHT v. STATE.
    No. A-5210.
    Opinion Filed Jan. 30, 1926.
    (243 Pac. 257.)
    J. W. Barry, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, with one C. A. Clark, was jointly informed against for the crime of selling intoxicating liquor. When the case was ready to go to trial the defendant Clark pleaded guilty and offered no defense, though his plea was not entered, and his case was submitted to the jury, which returned a separate verdict as to him. The trial proceeded as to the defendant McKnight. The evidence of the state was, in effect, that the state’s witness Brazer negotiated the purchase of a gallon of whisky and a gallon of alcohol from Clark. Clark borrowed a car and McKnight went with him. The alcohol and whisky were procured and delivered to the witness Brazer, Clark and McKnight being together, and he paid Clark for it. In a short time the defendant and Clark were arrested, and the money which had been paid for the whisky was found in the possession of the defendant McKnight. McKnight testified that the money had been paid to him by Clark upon a debt owed him by Clark, and that he did not have possession of the whisky at any time; that he was called by Clark to go with him, and that Clark borrowed the car in which they traveled from another person; that he did not know what Clark’s business was in going after the whisky' and had no interest in it.

The assignments of error argued are: First, that the court permitted statements made by Clark to Brazer out of the presence of the defendant to be received in evidence over the objection of the defendant; second, that the court erred in his instructions to the jury.

If the defendant and Clark were acting together in making the sale of whisky to Brazer, statements made by Clark to Brazer out of the presence of the defendant were admissible, and slight evidence of conspiracy or collusion between them would be sufficient to carry the evidence to the jury. Blanck v. State, 14 Okla. Cr. 339, 169 P. 1130; Hadley v. State, 14 Okla. Cr. 644, 175 P. 71; Grayson v. State, 12 Okla. Cr. 226, 154 P. 334; Walker et al. v. State, 11 Okla. Cr. 339, 127 P. 895.

There was sufficient evidence of an acting together between the parties to render the statements made by Clark to Brazer, although out of the presence of the defendant McKnight, competent to be received in evidence)

The court, in instruction No. 5, informed the jury that if they were convinced beyond a reasonable doubt that the defendants Clark and McKnight, “acting individually or acting conjointly, did sell and deliver to one J. L. Brazer, * * * then it will be your duty to find the defendants or either of them guilty. If, however, you entertain a reasonable doubt as to the guilt of the defendants, or either of them, it will be your duty to give them or him the benefit of such doubt and acquit them or him.” This instruction is somewhat involved, but we think it could have had but one meaning for the jury, and that was if they found beyond a reasonable doubt that the defendants, acting jointly, sold and delivered the liquor in question to Brazer they should find them guilty, or if they believed beyond a reasonable doubt that one of them, acting individually, sold the liquor in question to Brazer, and had reasonable doubt of the guilt of the other, they should give him the benefit of the doubt and acquit. The error in the instruction under the evidence and circumstances, we think, is harmless.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


author: PER CURIAM.

text:
    L. W. CARTER v. STATE.
    No. A-5298.
    Opinion Filed Jan. 30, 1926.
    (242 Pac. 1119.)
    Morris & Tant, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error was convicted of maintaining a public nuisance, by keeping a place where intoxicating liquor was kept and sold, with his punishment fixed at a fine of $50 and confinement in jail for 30 days. No briefs have been filed in support of this appeal. An examination of the record shows that the information is sufficient; that the instructions of the court fairly stated the law of the case. The evidence was conflicting, and not of a conclusive nature; but the testimony on the part of the state, if believed by the jury, was sufficient to support the verdict. The judgment of the trial court is affirmed.


text:
    JOE H. ZOLL v. STATE.
    No. A-4883.
    Opinion Filed Jan. 9, 1926.
    (242 Pac. 286.)

      C. H. Parriek, for plaintiff in error.
    The Attorney General and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

J. H. Zoll, plaintiff in error, defendant in the trial court, was the owner1 of an apartment house, located at 219 East Second street in Oklahoma City. The several apartments were arranged and designed for light housekeeping, and one of these was occupied by the defendant. Three or four, others were occupied by tenants, and several were vacant.

The premises were searched by peace officers, and in one of the apartments on the second floor they found 10 gallons of whisky, and a suit case and suit of clothes which belonged to the defendant. The whisky was found in a secret vault built in the floor and extending down into the closet of the apartment directly below. Except for the articles so found, the upper apartment seemed to be vacant.

The defendant testified that he was not in actual possession of this particular apartment; that he knew nothing about the whisky found there, or about the secret vault in which it was found; that this apartment had been rented that week to a man named Edwards, who since the raid had never been seen; that the suit of clothes found there must have been stolen from the defendant by this man Edwards. No explanations were made concerning the presence of the defendant’s suit case in the room.

In this appeal the defendant claims that the evidence is insufficient to establish illegal possession as against the defendant personally, and that, the court erred in permitting four jurors to serve who had sat in judgment in another case just concluded against the defendant, wherein the defendant was acquitted.

Without reciting further details, we hold that the evidence on the part of the state was sufficient. The explanation made by the defendant about renting the apartment to Edwards was far from convincing, and the jury were justified in rejecting his explanation. The instructions of the court might have been more explicit, but, considered as a whole, they were sufficient.

The record does not show that objections and exceptions were saved to the qualifications of individual jurors, or the panel. A defendant will not be permitted to speculate on the chance of a favorable verdict at the hands of jurors who have exonerated the defendant in another like case, and, after an adverse verdict, for the first time interpose objections to the jurors in a motion for a new trial.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    D. H. MITCHELL v. STATE.
    No. A-5349.
    Opinion Filed Jan. 9, 1926.
    (242 Pac. 288.)
   BESSEY, P. J.

By verdict of a jury the plaintiff in error, here referred to as the defendant, was found guilty of the illegal possession of whisky, with his punishment fixed at a fine of $300 and confinement in the county jail for a period of 60 days.

The testimony on the part of the state shows that the defendant was the owner of a place designated as a drug store, in the town of Three Sands, and that he and a woman, said to he his wife, operated this store both before and after the seizure of the whisky upon the possession of which this prosecution was based.

The defendant admitted that he was not a pharmacist, and that his stock consisted of patent medicines, cigars, tablets, ink, shoe blacking, and other sundries, of the total value of about $200. The defendant claimed that a few days prior to the seizure he sold or leased this stock of goods to Ruth Williams, who had before that time occupied a portion of the building with the defendant; that Ruth Williams was not his wife; and that they had never held themselves out as being husband and wife. Some days after the seizure the defendant sold the building, fixtures, and stock to a third person.

The liquor seized, according to the testimony of the state, consisted of a half-gallon container and two pint bottles of corn whisky, besides a quantity of Jamaica ginger, of unknown alcoholic content.

No briefs have been filed, in this case, but this court has examined the record, and finds no prejudicial error. The information was sufficient. The proof on the part of the state, if believed by the jury, was sufficient to sustain the verdict, and the instructions of the court correctly stated the law of the case, with but one exception. That exception arose in this wise: The state was permitted to show by two witnesses that this alleged drug store bore a bad reputation as being a place where intoxicating liquor was kept for sale. The instructions of the court should have apprised the jury that such evidence was admissible only for the purpose of showing intent on the part of the defendant, and not as substantive evidence of the offense itself. Zupon v. State, 32 Okla. Cr. 255, 240 P. 755; Frazier v. State, 31 Okla. Cr. 322, 239 P. 186.

The omission, however, was cured by the declaration of the court during the progress of the trial to the effect that this evidence was admitted for that purpose only. At any rate, from an examination of the whole record, we are convinced that the jury were not misled in this regard.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    HATTIE DRAKE v. STATE.
    No. A-5235.
    Opinion Filed Jan. 9, 1926.
    (242 Pac. 284.)

      M. D. Hartsell, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted of a violation of the prohibitory liquor law. Various errors are assigned in the brief as a ground for reversal. The record discloses that certain officers, without a search warrant, went to the residence of the defendant, and found a keg of choctaw beer buried in the henhouse, which upon analysis, was found to contain 3 per cent, of alcohol measured by volume. The defendant throughout the trial objected to the introduction of this evidence, for the reason it was obtained by an unlawful search. The only justification for this search without a warrant is in the evidence of one witness who testified that he “thinks” the defendants said to one of the party: “Go ahead and look.” The other witnesses who were present do not corroborate him on this point. Other witnesses, including the defendant, testify positively that no permission or assent to search was made. The statute points out the method by which a legal search may be made. This court has had occasion frequently to pass upon this statute, holding that a search of the person, premises, or residence of any person is unreasonable, unless the officers searching shall have obtained a search warrant in conformity to law, or unless such shall be expressly waived. A search without a warrant, unless waived, is a violation both of the Bill of Rights and the statute. There is no difficulty in corn-plying with these requirements of the law. There was no attempt to comply in this case, and the search was illegal, and the objection to the introduction of evidence obtained by such search should have been sustained.

The case is reversed, with instructions to dismiss.

BESSEY, P. J., and DOYLE, J., concur.


text:
    RAYMOND DAVIS v. STATE.
    No. A-4873.
    Opinion Filed Jan. 9, 1926.
    (242 Pac. 283.)
    Homer S. Hurst and Wm. Pfeiffer, for plaintiff in error.

      Geo. F. Short, Atty. Gen., and Charles H. Johns, Asst. Atty. Gen., for the State.
   EDWARDS, J.

From a conviction in the county court of Oklahoma county on a charge of having possession of whisky with intent to sell, the plaintiff in error, hereinafter called defendant, has appealed.

The evidence shows a state of facts about as follows: Certain officers went to an automobile on California street belonging to defendant, which was near his place of business, and while examining it the defendant came up, told the officers it was his, informed them that they would not find anything, but upon examination they found a hat pin in the back of the car near the top, and, upon inserting it in a secret lock in the front seat, discovered that there was a plant in the back of the front seat in which were twenty half-pint bottles filled with whisky and wrapped in paper. The defendant testified that he had owned the car for two months, had bought it secondhand, and did not know it contained the whisky plant nor whisky.

The first assignment of error argued is that the information is insufficient. No demurrer was filed, but objection to the introduction of evidence was made. Where no demurrer is filed, all reasonable intendments and inferences will be indulged in to support the information. The information charges that Raymond Davis did in Oklahoma county, state of Oklahoma, on the 1st day of February, 1923, commit the crime of illegal possession of intoxicating liquors “* * * in that he did then and there * * * unlawfully, willfully, and wrongfully have the possession of a certain quantity of intoxicating liquor, to wit, twenty-one half pints of whisky, the said having the possession of said intoxicating liquors * * * with the unlawful, willful, and wrongful intent,” etc.

The only objection pointed out to the information is that the name of the defendant is not repeated after the word “said” as set out above. This appears to be a defect in form, a mere clerical error or omission, which does not destroy the sense of the information, and certainly was not prejudicial. Smith v. Territory, 14 Okla. 162, 77 P. 187; Dix v. State, 15 Okla. Cr. 559, 179 P. 624.

It is then argued that there is no evidence that the defendant had possession of the whisky with the intent to sell. Mere possession of the quantity is prima facie evidence of intent. But without such presumption the quantity and the manner in which the whisky was concealed would be circumstantial evidence sufficient to carry the case to the jury.

Some argument is advanced that there is prejudicial error in the rebuttal evidence of the state as to the reputation of the defendant. The defendant put his reputation in issue, and the state had a right in rebuttal to attack his general reputation, and, while one witness answered the question as to the defendant’s general reputation that he was a bootlegger, the court promptly struck out the answer and rebuked the witness, and, since the defendant did not assign this as error even in the motion for a new trial or in the petition in error, it would appear that the ruling of the court was satisfactory. In any event the error, if not cured by the action of the court, was waived.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


author: EDWAKDS, J.

text:
    A. L. LACY v. STATE.
    No. A-5124.
    Opinion Filed Jan. 9, 1926.
    (242 Pac. 296.)
    Pryor, Stokes & Carver, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Leon S. Hirsh, Asst. Atty. Gen., for the State.
   EDWAKDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Hughes county upon a charge of forgery in the first degree, and has appealed. Briefly' summarized, the evidence is that the defendant was living on a tract of land in Seminole county belonging to a negro named Mark Ingram. Ingram had been in litigation over the title to this real estate with another, one Turman, who had leased the land to the defendant. The litigation was finally determined in favor of Ingram, and some time thereafter the defendant, with some negro posing as Ingram, went to Holdenville, and there had executed a deed. The negro posing as Ingram signed by mark. It seems to have been conceded that the deed was not executed by Mark Ingram, the real owner. The defendant claimed that he did not know Mark Ingram; that he bought the land from the negro who represented himself as Ingram, and paid him $2,000 in cash in the courthouse yard.

Only twa assignments of error are argued in the defendant’s brief: First, error of the trial court in cross-examining witnesses and in making statements in the presence of the jury; second, the insufficiency of the information. The first assignment is based on certain questions asked the defendant-by the trial court as follows:

“* * * By Mr. Pryor: That is all. I believe that is all.
“By the Court: Why didn’t you deed the land back to him? Everybody in Wewoka knows Mark Ingram, don’t they? A. I don’t know about that.
“Q. Prominent character up there; has been there for years.
“By Mr. Pryor: I object to the remarks of the court, because I have been here for 16 years myself and never heard of him.
“By the Court: Well, you knew Mark Ingram had been in litigation up there, didn’t you? A. I never heard of it.
“Q. Wewoka is a little town at that time? A. I never saw him.
“Q. Why didn’t you take that old negro and go to some real estate man in Wewoka?
“By Mr. Pryor: We object to the remarks of the court, being unfair and prejudicial to the rights of the defendant. The witness Mark Ingram already testified that he never lived in Seminole or Hughes county or Pottawatomie county in his life, and was never up here more than one time in a year in his life.
“By the Court: Q. why didn’t you take that old negro you bought that — bought this land from to some real estate man in Wewoka? A. Here is where he said he would meet me. Had relatives here.
“Q. But he stated he lived on Red River? A. Yes, sir; he said he made the train straight into Holdenville, one train. I didn’t know he could do it, and he had relatives here and would be here on the 16th day of October.
“By the Court: Go ahead. Cross-examine. * * *”

Upon the conclusion of the questions by the court above set out, counsel for defendant took the defendant over somewhat the same ground at considerable length. This court has had occasion on numerous occasions to consider assignments of error based on examination of witnesses and statements by the trial court, and it has been the uniform holding that, where it appears that the examination or statements of the trial court were of such character as to indicate to the jury the opinion of the court as to the guilt of the defendant or the credibility of the witnesses, such examination is prejudicial and reversible error. Harrison v. State, 11 Okla. Cr. 14, 141 P. 236; Reed v. State, 5 Okla. Cr. 365, 114 P. 1114; Koontz v. State, 10 Okla. Cr. 553, 139 P. 842, Ann. Cas. 1916A, 689; Hicks v. U. S., 2 Okla. Cr. 626, 103 P. 873; Stricker v. State, 26 Okla. Cr. 141, 222 P. 704; Westfall v. State, 30 Okla. Cr. 115, 235 P. 270; Talliaferro v. State, 20 Okla. Cr. 57, 200 P. 1068.

It has been held, however, that the trial court is more than a mere umpire, and in the interest of justice and for a full development of facts he has a right to interrogate witnesses and to see that both sides have a fair and impartial hearing. Jones v. State, 20 Okla. Cr. 154, 201 P. 664; Nix v. State, 20 Okla. 373, 202 P. 1042, 26 A. L. R. 1053. After a careful consideration of the questions propounded by the court here complained of, we think it cannot reasonably be said that there was any prejudicial error shown.

Upon the second assignment of error, it is contended that the information is insufficient in failing to allege that Mark Ingram was the owner of the property described in the forged deed. The information was drawn under section 2070, Comp. Stat. 1921, the pertinent part of which is as follows:

‘Any person who, with intent to defraud, forges, counterfeits, or falsely alters, * * * any deed or other instrument being or purporting to be the act of another, by which any right or interest in real property is, or purports to be, transferred, conveyed or in any way changed or affected, * * * is guilty of forgery in the first degree.”

The information charges that the defendant “did * * * willfully, unlawfully, falsely, fraudulently, and feloniously make, forge, and counterfeit, and cause to be made, forged, and counterfeited, a certain deed, being and purporting to be the act of another person, to wit, Mark Ingram, which said deed is as follows: [Here the deed is set out in full.]” The information concludes:

“* * * With the unlawful, willful, fraudulent, and felonious intent of him, the said A. L. Lacy, to wrong, cheat, and defraud the said Mark Ingram, contrary,” etc.

The statute doqs not require that, in order to constitute the crime of forgery of a deed, the pretended grantor in the forged deed shall have title to the property which the deed described. It requires only that the deed in a ease of this kind purport to be the act of another by which any right or interest purports to be transferred. The word “purport” or “purporting” as used in the above statute defining forgery as applied to a written instrument means the substance as it appears on the face of the instrument — the apparent and not the legal import of the instrument. Black’s Law Dictionary; 4 Words and .Phrases, Second Series, 69; 32 Cyc. 1270.

Here the deed including the acknowledgment is set out in full in the information. It purports to be the act of Mark Ingram. It purports to convey the title of the real estate described in said deed from Mark Ingram to A. L. Lacy. When the deed is set out and alleged in full, it is not necessary to allege the legal effect of such instrument. Its purport is to be found on the face of the instrument which is alleged.

In the case of Wishard v. State, 5 Okla. Cr. 610, 115 P. 796, a case involving the forgery of a deed, this court held that an information charging the forgery of a deed in substantially the same language as the information in the instant case was sufficient.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    JOHN PITMAN et al. v. STATE.
    No. A-5180.
    Opinion Filed Jan. 9, 1926.
    (242 Pac. 288.)

      M. D. Hartsell, for plaintiffs in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

From a conviction in the county court of Muskogee county, the plaintiffs in error, hereinafter called defendants, have appealed.

Briefly stated the evidence shows the following state of facts: That on the date charged certain officers, after waiting throughout the night, about daylight, discovered the defendants in the woods about 9 miles from Haskell. Upon being approached the defendant Pitman ran and made his escape. The defendant Osborne was apprehended. H,e had at the time a 5-gallon jug of whisky, which he had just set down. At the request of the officers, he conducted them to a still about 150 yards away, which was in operation with whisky dripping from the worm into a half gallon fruit jar. They were informed against for having possession of whisky with intent to violate the prohibitory law.

Various assignments of error are presented, which will be considered in the order presented:

It is first argued that the court erred in permitting certain jurors to sit in the trial for the reason they had served longer than two weeks in violation of the provisions of section 3517, Comp. St. 1921, citing Stuard v. State, 6 Okla. Cr. 94, 116 P. 204. But, since the record affirmatively shows that the defendants did not exhaust their peremptory challenges, the contention is untenable.

It is next argued that the court erred in permitting a witness for the state to testify that the defendant Osborne was a bootlegger, citing Wilkerson v. State, 9 Okla. Cr. 662, 132 P. 1120; Whitlow v. State, 24 Okla. Cr. 307, 218 P. 162; Kirk v. State, 11 Okla. Cr. 203, 145 P. 307.

The instant case, however, differs from the cases cited in the following particular: In those cases the defendant had not put his character in issue here before the evidence complained of was introduced. The defendant Osborne had put in issue his character and this evidence was in rebuttal. The questions propounded were proper and directed to the general reputation of the defendant. To the question, “What is that reputation?” the answer was, “He is a bootlegger.” Technically the answer was not responsive, but it amounts to no more than testimony of the witness that the defendant had the reputation of being a bootlegger and is not such prejudicial error as would require a reversal.

It is next argued that the court committed error in permitting the state’s attorney to ask one of the officers if he had information with reference to a still before going to the place where the arrest was made. The question did not call for the statements made, but merely if they had such information. On objection, the court admonished the jury to disregard the question. The question called for an immaterial matter. The fact' that the officers were there and that defendant had possession of the whisky at the time was material. We do not see, however, how the mere questioning of the witness if they were there because of information received would be in any wise prejudicial to the defendants. The questions asked did not bring the case within the rule that, where a prosecuting officer persists in intimating to the jury by his questions prejudicial matters, which are incompetent and such as might influence the jury, this constitutes reversible error. Pickrell v. State, 5 Okla. Cr. 391, 116 P. 957; Selfridge v. State, 27 Okla. Cr. 22, 224 Pac. 742.

It is argued further that the court erred in refusing defendants’ requested instruction No. 1. This request is a definition of “reasonable doubt,” following substantially the language of Abbott v. Territory, 20 Okla. 119, 94 P. 179, 16 L. R. A. (N. S.) 260, 119 Am. St. Rep. 818. This court has several times held that it is hot erroneous to fail to define the term “reasonable doubt” in the absence of a request so to do. Nelson v. State, 5 Okla. Cr. 868, 114 P. 1124; Thompson v. State, 26 Okla. Cr. 121, 222 P. 568.

No case has been called to our attention where it is held to be erroneous to fail to define the term “reasonable doubt” when the defendant requested such definition. The term “reasonable doubt” has become firmly embodied in legal phraseology. Its use has become so common in criminal procedure that it is fairly well understood by the layman; and, while it has been defined, it is to be doubted if the definition adds anything to the understanding of the term itself. The term “reasonable doubt” requires no definition and it is not erroneous to fail to define it, either with or without a request to do so.

The next assignment is directed to the refusal of the court to give defendants’ requested instruction . No. 3. This instruction informs the jury, in substance, that it is necessary that they find from the evidence beyond a reasonable doubt both the possession of the whisky as charged and the intent to sell, and, in the event they have a reasonable doubt of the existence of either of such elements, they should resolve such doubt in favor of the defendants and acquit. The substance of this request is fully covered by the general charge of the court and to have given the requested instruction would have been a mere repetition.

It is then urged that the county attorney made improper remarks in his argument to the jury. We have examined with care the statements set out as erroneous. None of them appear to be necessarily prejudicial. The court sustained objections in some two or three instances and admonished the jury not to regard them and cautioned the attorney to keep within the record. They present nothing requiring a reversal.

Lastly, it is argued that the evidence as to the defendant Pitman is insufficient. We do not so read the record. The witness Whittaker testified that he knew both defendants; that they were together at the time he arrested defendant Osborne with the five-gallon jug of whisky, and that defendant Pitman ran; that he then took Pitman’s horse and buggy, went to his house; that Pitman was not there, but came in in a few minutes with his shoes and pants legs muddy, and was warm like he had been running.

The witness Blanchard testified that, at the time defendant Olsborne was arrested with the whisky, Pit-man was about 30 feet back of him; each had a horse and buggy, and Pitman ran and made his escape; that witness went later to Pitman’s house; Pitman came in, and his clothes had mud and water on them; that he acted like he had been running, and was out of wind, and admitted the horse and buggy taken was his. Witness Brown testifies to substantially the same thing. The jury were fully warranted in finding the defendant Pitman guilty.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


author: BESSEY,' P. J.

text:
    H. W. COLEMAN et al. v. STATE.
    No. A-5252.
    Opinion Filed Jan. 9, 1926.
    (242 Pac. 279.)
    Seymour Foose and R. C. Brown, for plaintiffs in error.
    The Attorney General, for the State. !

   BESSEY,' P. J.

The plaintiffs in error, for convenience referred to as the defendants, were by a verdict of a jury in the county court of Blaine county found guilty of manufacturing whisky, with the punishment of each fixed at a fine of $50 and imprisonment in the county jail for 30 days. This record comprises 360 pages, an unusually long record in a liquor case. Of the numerous assignments of error, a number of which have more or less merit, but one need be noticed:

The evidence is insufficient to support the verdict. No whisky was found in the possession of the defendants, or in the possession of any other person thereabouts; there was no evidence of any sale of liquor; no bottles or containers were found which appeared to be used for that purpose. All that was produced were certain metal tubes, a keg, a wash boiler, and gas stove found at different places on and about the premises of the defendants, which if assembled could have been used to make whisky. There was no indication that these things had been recently assembled or used for that or any other purpose. Some unfermented grain mixture which might have been mash was found on the ground in a hog pen on the place. Under the evidence, if any offense at all was committed, it was at most only an attempt to manufacture liquor; even so the evidence adduced would have been insufficient to support a verdict for that offense.

The rules of evidence in whisky cases are the same as in other cases. The corpus delicti must be proved, and a conviction for manufacturing whisky, based on suspicion — a mere showing that there .were found oh the defendants’ premises implements and materials which could have been assembled and used for making whisky, 'without any evidence whatever indicating that any was made — is insufficient.

The judgment of the trial court is reversed.

DOYLE and EDWARDS, JJ., ooncür.


text:
    J. B. (BOY) PRUITT v. STATE.
    No. A-5140.
    Opinion Filed Dec. 12, 1925.
    Rehearing Denied Jan. 13, 1926.
    (242 Pac. 282.)
    Mathers & Coakley, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   EDWARDS, J.

For brevity and convenience, the plaintiff in error will be referred to as defendant. The facts as disclosed by the record are about as follows: The defendant, Boy Pruitt, and John Lyles were at a dance at Pike City on the night of May 23, 1923. When they were ready to leave, they had with them in a Ford car two girls whom they were preparing to take home. All the parties had been drinking. Just as they were ready to start away, Odessa Johnson, the girl in the back seat with the defen,dant, called to one Murphy, a man standing near by, which angered the defendant, who thereupon slapped the Johnson girl. Lyles, who was in the front seat, preparing to drive the ear, told the defendant not to slap the girl any more, whereupon the defendant slapped Lyles. Lyles then got out of the car on the right-hand side, and as he stepped on the running board, the defendant drew a pistol and shot him in the left shoulder. Defendant then left the car, fled, and was a fugitive for some two weeks. At the trial, the witness Lyles, who had recovered from the effect of the shot, and who, we gather, had condoned the act of the defendant in shooting him, testified that he was friendly with the defendant, and his entire testimony tended favorably toward him.

While several assignments of error are set out, the only assignment argued goes to the sufficiency and correctness of the - instructions given, particularly to instructions of the court numbered 5 and 9.' The defendant requested no instructions in his own behalf. Instruction No 5 is, in substance, that the witness Lyles testified he was on friendly terms with the defendant, notwithstanding his affidavit that defendant had made an assault with intent to kill him, and, if the jury should find beyond a reasonable doubt that a crime had been committed by defendant, it was a crime against the state and not against Lyles, and, if they should find from all the evidence that the defendant did shoot John Lyles, as alleged in the information, with intent to kill, they should find him guilty and assess the punishment. This instruction standing alone is subject to criticism. But when the record is examined it is obvious that Lyles was an unwilling witness for the state, and, since he was the injured party, and testified that he had been and still was a friend of defendant and bore him no ill will, that the purpose of the instruction was simply to caution the jury that the offense with which the defendant stood charged, if they found' an offense had been committed, was an offense against the state and not an offense against the witness Lyles, thereby informing them that it was not within his power to condone or pardon the offense. The instruction does not present reversible error.

Instruction No. 9 is challenged as seeking or attempting to eliminate the doctrine of reasonable doubt. This instruction in some parts is more favorable to the defendant than the law required. It is in part as follows:

“* * * The law is too humane to demand conviction while a rational doubt remains in the minds of the jury. You will be justified, and are required, to consider a reasonable doubt as existing if the material facts may be fairly reconciled with the defendant’s innocence. * * *”

This part of the instruction tells the jury that, if the material facts may be fairly explained on the view that defendant is innocent, they are required to find a reasonable doubt exists. This is not necessarily true. The material facts may be fairly reconciled with the defendant’s innocence, and yet the jury may be convinced beyond a reasonable doubt of the defendant’s guilt. It may be said that, in any case where the defendant offers evidence contradicting the material facts testified to by the state’s witnesses, the evidence may be fairly reconciled with the defendant’s innocence. Yet the jury may disbelieve the evidence offered by a ¡defendant. In which case, even though the material facts may be reconciled with defendant’s innocence, the jury may still be convinced beyond a reasonable doubt of the defendant’s guilt. The concluding part of the instruction is somewhat involved, but it amounts to a statement that mere conjecture or captious or artificial doubt is not what is meant by reasonable doubt, and that, while absolute certainty is not required, the jury should be satisfied beyond a reasonable certainty before finding a defendant guilty. We reiterate here what this court has several times said, that an attempt to define or explain “reasonable doubt” is dangerous, and that the term “reasonable doubt” is as well or better understood by the jury than any definition the courts may make of it.

It has been frequently held by this court that, where the instructions as a whole sufficiently cover the law of the case and are not prejudicial to the defendant, the judgment will not be reversed because of error in certain paragraphs of the court’s charge. Dunbar v. State, 15 Okla. Cr. 513, 178 P. 699; Mathews v. State, 16 Okla. Cr. 466, 184 P. 468.

We have examined the record carefully, and while the instructions are subject to criticism, yet when considered as a whole we believe there is no prejudicial error requiring a reversal.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.