author: DOYLE, P. J.

text:
    HENRY BRUNER v. STATE.
    No. A-9615.
    May 23, 1940.)
    (102 P. 2d 945.)
    James M. Hays, Jr., of Okmulgee, for plaintiff in error.

      Mac. Q. Williamson, Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Henry Bruner, was convicted in the district court of Okmulgee county on a charge of assault with a sharp and dang,erous weapon, with intent to do bodily harm, and his punishment fixed at five years imprisonment in the state penitentiary. From the judgment rendered on September 28, 1938, in pursuance of the verdict, he appealed by filing petition in error and case-made in this court on March 28, 1939; the date of filing stamped thereon was March 29,1939. On January 10, 1940, the appeal was dismissed, because the time for filing the appeal expired the day before the petition in error with case-made was filed with the clerk of the court. Petition for rehearing was filed February 2nd, on the ground “that the clerk of this court had committed a mistake in marking the petition in error and case-made as filed March 29, when the true fact of said filing was March 28”, which fact was undisputed. The petition for rehearing was granted and the opinion dismissing the appeal was recalled.

The information jointly charged Henry Bruner and Hattie Hoover with the crime of felonious assault, in that in said county, acting together on the 18th day of July, 1938, they did feloniously, without justifiable or excusable cause, make an assault upon the person of one Weltha Henderson with a sharp and dangerous weapon, to wit, a knife, which the said Henry Bruner had and held in his hands, and a beer bottle which the said Hattie Hoover had and held in her hands, and they, the said defendants, did then and there unlawfully, willfully and feloniously strike, hit, cut and stab and wound her, the said Weltha Henderson, with a felonious intent to do bodily harm to the said Weltha Henderson.

The errors assigned are that the court erred in overruling the defendant’s demurrer to' the information, and that the court erred in admitting incompetent, irrelevant and immaterial evidence over the objections of the defendant.

The undisputed facts are that on the night of the day alleged, there was a colored people’s dance at Douglas Park, in Okmulgee; between 1 and 2 o’clock in the morning, Hattie Hoover assaulted and kicked the complaining Avitness. They left the dance and met at Henry’s Bar, across the street from the Frisco Depot.

The complaining witness testified:

“I Avalked up to the bar and got a bottle of pop, Henry Avalked up, Hattie Hoover put her arms around him, and he said, ‘Anything you Avant to start babe, I am with you.’ Hattie Hoover said, “I kicked her out at the dance, and that is not all I am going to do,’ and she struck me Avith a beer bottle. Henry had a pocket knife and he stabbed me three times with it, the main one in my back. They were both fighting me at the same time.”

Dr. Guess testified that he dressed the wounds of the complaining witness; the worst wound was three-fourths of an inch long, near the middle of the back, and there were one or two other small cuts.

Seven or eight witnesses called by the state testified that they witnessed the altercation and saw the plaintiff in error strike the girl, Weltha, with a pocket knife.

Peoria Sneed testified that Weltha was drinking a bottle of pop and Hattie walked up and started arguing and Henry walked over and cut at her three times, and the last time he stabbed her in the back, and she screamed and said “Henry stabbed me.”

The defendant, as a witness in his own behalf, testified:

“I was down in the Blue Boom and decided to get a sandwich, as I go out Hattie and Weltha were also on their way out, so we all walked up to the counter and I ordered a sandwich and asked if they wanted one. Hattie accepted. They were conversing and Weltha attempted to renew the argument they had at Douglas Park. While we were waiting for the sandwich Weltha again starts checking at Hattie; she said she did not like it because Hattie kicked her at the dance. Hattie held a bottle and also had a knife in one hand, I didn’t take part in the fight, I did not have a knife. Hattie was between me and Weltha all the time, I heard Weltha scream that she was cut, but I don’t know who cut her.”

On cross-examination he admitted that he was convicted of burglary in this court and had served a term in the Granite penitentiary.

No briefs have been filed in support of the errors assigned, and there was no appearance made for oral argument when the case was assigned for hearing and final submission.

In cases of this kind, where no briefs are filed, or oral argument made, we do not consider it the duty of this court to go into a careful examination of the evidence to determine whether or not the trial court erred in the admission or rejection of testimony. The defendant’s demurrer to the information was properly overruled. An examination of the record discloses no jurisdictional or fundamental errors. The instructions given by the court, to which no objection was made or exception taken, fully and correctly present the law of the case, and the evidence overwhelmingly sustains the conviction.

It appearing that the defendant was accorded a fair and impartial trial and was properly convicted, the judgment appealed from should be affirmed. It is so ordered.

BABEFOOT and JONES, JJ., concur.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    FRANK HANDLEY v. STATE.
    No. A-9548.
    May 23, 1940.
    (102 P. 2d 947.)

      J. Q. A. Harrod and Laynie W. Harrod, both of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant Frank Handley was convicted in the district court of Woodward county of the offense of attempted bribery of a public officer; was tried, convicted, and sentenced to serve a term of five years imprisonment in the state penitentiary, and has appealed to this court.

The information filed against the defendant reads as follows (omitting the caption) :

“Now comes James G. Young, county attorney, in and for' the state and county aforesaid; and gives the court to know and be informed that one Elmer A. Nelson, late of the county of Woodward and state of Oklahoma, on or about the 27th day of December, in the year of our Lord, one thousand nine hundred and thirty-seven, at and within the said county and state was then and there and during all the times mentioned herein has been the duly elected, qualified and acting sheriff, of Woodward county, Oklahoma, and that it was then and there the official duty of the said sheriff, to enforce, the laws of the state of Oklahoma, prohibiting the manufacture, sale, and transportation of intoxicating liquor; that on the day and year aforesaid in the county and state aforesaid one Frank Handley, then and there knowing that the said Elmer A. Nelson was then and there the duly elected, qualified and acting sheriff of Woodward county, Oklahoma, did then and there knowingly, willfully, wrongfully, ■unlawfully, corruptfully and feloniously offer and promise a gift and gratuity to the said Elmer A. Nelson, sheriff of Woodward county, state of Oklahoma, in words as follows, to wit: ‘If you will let me operate a wholesale liquor business in Woodward county, I’ll pay you the first of every month enough money to satisfy you, the more I make the more I can pay you;’ with the wrongful, unlawful, corrupt and felonious intent then and there on the part of him, the said Frank Handley, to influence the action of the said Elmer A. Nelson, in his official capacity, in the performance of his official duty as sheriff of Woodward county, Oklahoma; contrary to the form of the statute in such cases made and provided and against the peace and dignity of the state of Oklahoma.”

The state in support of its information introduced the evidence of Elmer A. Nelson, who testified that he was the sheriff of Woodward county; that the defendant called him over the telephone just before 7 p. m. on December 27, 1937, and asked if he could come out to see him. The defendant shortly thereafter drove up in front of the sheriff’s house, honked his horn, and the sheriff went out to the automobile which the defendant was driving; got into the car at the suggestion of the defendant; that the defendant started driving down a street in the town of Woodward; that the defendant said he was a law violator; that he was in the wholesale liquor business and Avanted to start up a. place of business in Woodward; that he Avanted to get acquainted with the sheriff and make arrangements so that things would be all right for him to do that; that he told the sheriff he was living in another town in the state and Avas paying the officers there where he lived, and introduced himself to the sheriff under the name of Wilson; that the sheriff refused to have anything to do Avith the scheme of the defendant and asked him to take him home and leave; that the defendant said that Woodward was prosperous; the liquor business would be good there; and that he would pay the sheriff enough money the first of each month to satisfy him, if he would allow him to- operate a wholesale liquor house there without interference from the sheriff; that the defendant parked his car there on one of the streets of Woodward and talked with the sheriff for several minutes, trying to convince the sheriff that he could easily make enough money by following the defendant’s suggestion so that when he went out of office he would have enough money to go into business for himself. The defendant kept insisting that the sheriff make a deal with him so as to allow him to indulge in his liquor operations in Woodward county; and finally the sheriff arrested him, and took him to the jail; that the jailer and sheriff searched the defendant at the jail and found two wholesale liquor tickets from a liquor house in Arkansas, which tickets were introduced in evidence and showed a sale of two shipments of liquor to Frank Handley of El Reno, Okla., one shipment of assorted liquors (listing them by name) totaling $730.75 and the other shipment totaling $856.10. One of said invoices was dated December 22, 1937, and the other December 13, 1937. These invoices corroborated the statement made by the defendant to the sheriff as to- the business in which he was engaged.

T. C. Hayes testified for the state that he was the jailor of Woodward county; that the defendant was brought to his jail the night of December 27, 1937, by the sheriff; that he helped search the defendant and found the liquor invoices on him; that the defendant at that time said his name was Wilson.

No evidence was offered by the defendant.

The defendant assigns as error the following:

(1) Error of the court in overruling defendant’s motion to quash the information.

(2) Error of tbe court in oyerruling' defendant’s demurrer to tbe information.

(3) Tbe evidence is insufficient to' support the verdict of conviction upon tbe uncorroborated testimony of tbe sheriff.

The prosecution herein alleged an offense under tbe provisions of section 1906, O. S. 1931, 21 Okla. St. Ann. § 381 which reads as follows:

“Whoever corruptly gives, offers or promises to any executive, legislative, county, municipal, judicial or other public officer, or any person assuming to act as such officer, after his election or appointment, either before or after he has qualified or has taken his seat, any gift or gratuity whatever, with intent to influence his act, vote, opinion, decision or judgment on any matter, question, cause or proceeding which then may be pending, or may by law come or be brought before him in his official capacity, or as a, consideration for any speech, work or service in connection therewith, shall be punished by imprisonment in the state penitentiary not exceeding five years, or by a fine not exceeding three thousand dollars and imprisonment in jail not exceeding one year.”

In support of his motion to quash the information, the defendant attaches a transcript of the evidence offered by the state at the preliminary hearing. This evidence was the testimony of the sheriff, which was in substance as hereinabove outlined. Counsel for the defendant cites no authorities in support of their contention that the motion to quash should have been sustained. We find that the same is wholly without merit-, and that the court did not err in overruling said motion.

The information hereinabove quoted sets forth the offense alleged to have been committed in the language of the statute.

We have heretofore held in a great number of cases where the information charges the offense alleged to' have been committed in ordinary and concise language, in the language of the statute, so as to enable a man of ordinary understanding to know the offense which he is alleged to have committed, that the information is sufficient. As in the question raised on the motion to quash, counsel for the defendant in their brief do not cite any authorities to sustain their position.

The information herein fully acquaints the defendant with the nature of the charge against him, and is such as to enable him to prepare his defense thereto; and under the rules of this court, no error was committed in overruling the demurrer filed thereto. Armstrong v. State, 48 Okla. Cr. 146, 289 P. 1115; McHugh v. Territory, 17 Okla. 1, 86 P. 433; McGhee v. State, 49 Okla. Cr. 387, 294 P. 649; Keasler v. State, 38 Okla. Cr. 255, 259 P. 1059.

The defendant alleges that the conviction rests solely on the testimony of the sheriff, and that this case should he governed in its disposition by the provisions of section 1916, O. S. 1931, 21 Okla. St. Ann. § 391, which reads as follows:

“In all cases wherein the offering, giving or receiving bribes is made criminal by the provisions of the penal code, the party to such crime Avho shall first furnish information in relation thereto, as against the other parties, and in any prosecution therefor, shall testify to the same truthfully and fully, shall not thereafter be criminally liable therefor, but in such case no conviction shall be had on the uncorroborated testimony of one such witness.”

A reading of that section, however, discloses that the Legislature was only dealing, with those cases where a party to the crime confesses participation therein, and then in order to gain immunity from prosecution testifies fully for the state. In those cases the statute clearly provides that the person charged cannot be convicted upon the uncorroborated testimony of one such witness. The witness referred to in said statute must be one who is part-iceps criminis and does not apply to- one who is innocent of any wrongdoing.

In this case Sheriff Nelson is not a party to a crime. He has committed no offense; therefore, has nothing to confess and has no desire for immunity. The above statute clearly has no application to the instant case.

Here the defendant is not charged with the offense of bribery, but only with the offense of attempted bribery.

The defendant insists that no' definite sum of money was offered to the sheriff, and, therefore, no attempted bribery committed.

Section 1777, O. S. 1931, 21 Okla. St. Ann. § 97, defines a bribery as follows:

“The term ‘bribe’ signifies any money, goods, right in action, property, thing of value or advantage, present or prospective, or any promise or undertaking, asked, given or accepted, with a corrupt intent to influence unlawfully the person to whom it is given, in his action, vote or opinion, in any public or official capacity.”

In 8 Am. Jur. 889, the general rule is stated as follows:

“Almost anything may serve as a bribe so long as it is of sufficient value in the eyes of the person bribed to influence his official conduct; it is not even necessary that the thing have a value at the time when it is offered or promised. * * * The acceptance by a public officer of a promise to1 take money in the future for influencing his present official act constitutes bribery.”

See Scott v. State, 107 Ohio St. 475, 141 N. E. 19; also, the note to Rudolph v. State, 116 Am. St. Rep. 38.

California, has a statute similar to ours. In the case of People v. Vincilione, 17 Cal. App. 513, 120 P. 438, the California court stated:

“Under Pen. Code, § 92, which makes it a felony to offer to give a bribe to any judicial officer, an indictment, charging that accused offered to give a justice of the peace a ‘portion’ of a fee which accused ‘would’ receive as attorney in a certain case if the justice would dismiss the case, is not insufficient as failing to charge an offer to give anything of present or prospective value.”

In the case of Lee v. State, 47 Tex. Cr. R. 620, 85 S. W. 804, the defendant was indicted for the offense of attempting, to bribe the chief of police, and the court there held:

“The actual tender of a bribe is not necessary to' perfect the offense of attempting to bribe a peace officer, but any expression of an ability to- produce a bribe as a gift to the officer to induce him to release a prisoner is sufficient to complete the offense.”

The Supreme Court of Missouri has likewise expressed this same rule in the cases of State v. Woodward, 182 Mo. 391, 81 S. W. 857, 103 Am. St. Rep. 646, and State v. Miller, 182 Mo. 370, 81 S. W. 867.

The defendant’s contention that there is no evidence to show an attempted bribery is wholly without merit. The gist of the offense seems to< be the tendency of the bribe to pervert justice in any of the governmental departments : Executive, legislative or judicial. The reason and necessity for such a law is plain. The offer of a bribe is a sore temptation to the weak and depraved. It tends to corrupt; and as the law abhors the least tendency to corruption, it punishes the act which is calculated to' debase and which may affect the morals of the community. Bribery is a crime which directly affects the community at large through its officers and representatives. In ancient times, and later among the Romans, the giving of rewards and gifts to public officers was tolerated and even encouraged, and without such gifts no audience could, be had with the officers. As civilization advanced the people quickly saw the danger of any such custom; hence, the decree of the common law against it. And in modern times the heinousness of the offense became more intolerable as the power of wealth increased so that the crime has in most jurisdictions been made punishable as a felony. The reason of the rule of the common laAV, and of the greater stringency of modern statutory law, is clear. The spirit of any democratic government is utterly abhorrent to anything which tends to debasement in the representatives of the people or threatens the purity of the administration of government. The influence of money has become a powerful force in this dangerous direction; the protection of the rights of the people demands that a severe penalty be imposed upon any person who gives or offers to give anything of value to any public officer as an inducement to official action. The gist of the crime is the danger and injury to the community at large. The right of the citizens of this state cannot thus be corruptly tampered with and bargained away.

The instructions fairly present the issues to the jury. The guilt of the defendant was thoroughly proven by the evidence in the case. The defendant did not testify, and no evidence to refute the state’s case was offered. The defendant has been a familiar figure before this court in connection with his liquor violations. See Handley v. State, 68 Okla. Cr. 183, 96 P. 2d 546, and Handley v. State, 61 Okla. Cr. 90, 65 P. 2d 1026. He was in truth a law violator, as he stated to the sheriff. We see no good reason why the verdict of the jury should be disturbed. The judgment is accordingly affirmed.

DOYLE, P. J., and BAREFOOT, J., concur.


author: BAREFOOT, J.

text:
    MARY MARKS et al. v. STATE.
    No. A-9716.
    May 23, 1940.
    (102 P. 2d 955.)

      Hughes & Dickson, of Guymon, and Robert Burns, of Oklahoma City, for plaintiffs in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty Gen., and B. F. Willett, Co. Atty., of Buffalo, for the State.
   BAREFOOT, J.

The defendants, Mary Marks, Rosa Marks', and Grover Marks, were charged in the district court of Harper county with the crime of conjoint robbery; were tried, convicted, and Mary Marks and Rosa were sentenced to be confined for five years in the State Industrial School for White Girls, at Tecumseh, and the defend-ent Grover Marks was sentenced to serve a term of ten years in the state penitentiary. From the above judgment and sentence, each of the defendants has appealed.

The defendants Mary Marks and Rosa Marks are minors of the age of 13 and 14 years, respectively.

The brief of the Attorney General admits the invalidity of the judgment of the district court attempting to sentence the defendants Mary Marks and Rosa Marks to five years’ imprisonment in the State Industrial School for White Girls, at Tecumseh. It being admitted that this school not being a penal institution, and that no' district court is authorized by the laws of this state to commit any children thereto. It is further admitted that there had been no effort on the part of the state to comply with Oklahoma Statutes 1931, sections 1733 and 1734, O. S. A. title 10, §§ 105 and 106, which provide for the procedure before juvenile offenders under the age of 16 years may be tried before a district court. Wilson v. State, 65 Okla. Cr. 10, 82 P. 2d 308; Ex parte Hightower, 13 Okla. Cr. 472, 165 P. 624; State v. Alexander, 18 Okla. Cr. 546, 196 P. 969; Ex parte Parnell, 19 Okla. Cr. 273, 200 P. 456; Ex parte Feagins, 68 Okla. Cr. 95, 99 P. 2d 526; Ex parte Midkiff, 68 Okla. Cr. 59, 99 P. 2d 525.

For the reasons above stated, the judgment of the district court of Harper county, as to the defendants Mary Marks and Rosa Marks, is reversed and remanded.

As to the defendant Grover Marks, it is contended:

First, The information upon which the plaintiffs in error were tried did not state facts sufficient to- constitute the crime of conjoint robbery, and the demurrer thereto should have been sustained.

Second. The judgment and sentence of conviction of plaintiffs in error is void for the reason that there is no evidence in the record of any force being employed by plaintiffs in error, or either of them.

Third. There isi no legal or competent evidence to sustain the judgment and sentences of conviction in this case.

The information upon which defendants were tried charged:

“That the said Mary Marks, Rosa Marks and Grover Marks in said county and state aforesaid, on the day and year aforesaid, did knowingly, willfully, unlawfully, wrongfully and feloniously; against the will of one E. E. Zimmerman, take, steal, and carry away Seven Hundred Fifty-seven and no/100 ($757.00) Dollars, in good and lawful money of the United States of America, the personal property of the said E. E. Zimmerman, which said personal property the said E. E. Zimmerman did then and there against his will suffer and permit to be taken by the said Mary Marks, Rosa Marks and Grover Marks, through fear produced by force and violence and by the threats of the said Mary Marks, Rosa Marks and Grover Marks; that the said acts were done by Mary Marks, and Rosa Marks and Grover Marks, acting conjointly and together, against the will and without the consent of E. E. Zimmerman, contrary to the form of the statutes, in such cases made and provided, and against the peace and dignity of the State.”

After the evidence had been presented by both the state and the defendant, and both had closed their case, the county attorney asked permission of the court to be permitted to amend the information by adding thereto these words, “that the taking of $757.00 was from the person and possession of E. E. Zimmerman.” To this request the defendant objected for the reason that all the evidence had been submitted, and the case was closed both by the state and the defendant. The objection was by the court overruled, and the state was permitted to amend the information as above stated, to which defendant excepted.

The procedure with reference to the amending of informations is governed by Oklahoma Statutes 1931, section 2830, O. S. A. title 22, § 304, which is as follows:

“An information may be amended in matter of substance or form at any time before the defendant pleads without leave, and may be amended after plea on order of the court where the same can be done without material prejudice to the right of the defendant; no amendment shall cause any delay of the trial, unless for good cause shown by affidavit.”

The defendant was tried, and the court instructed the jury under Oklahoma Statutes 1931, section 2552, O. S. A. title 21, § 800, which provides:

“Whenever two or more persons conjointly commit a robbery or where the whole number of persons conjointly •commits a robbery and persons present and aiding such robbery amount to two or more, each and either of such persons is punishable by imprisonment in the penitentiary for not less than five years nor more than fifty years.”

As the information stood before the amendment was permitted, there is no question that it was insufficient, under the section of the statute above quoted.

This is conceded in the brief filed by the Attorney General, when he states:

“We conceded that the information, as filed in district court and as. it remained until amended at the close of the introduction of evidence was defective in that it did not allege that the money was taken from the person or immediate presence of the prosecuting witness.”

It is contended, however, by the defendant that the information in the first place, at its most, only charged defendants with larceny from the person, and did not charge the crime of robbery, and that this not being an included offense, the court erred in permitting the amendment, and especially in view of the fact that both the state and the defendants had closed their case. The state, although admitting that the information was insufficient in the first place, contends that the defendant by the amendment was “not in any way injured or prevented from presenting his defense to the crime of robbery.”

We think that the crime of larceny from the person is not an included offense where one is charged with the crime of robbery. This question has been settled by this court in the case of Monaghan v. State, 10 Okla. Cr. 89, 134 P. 77, 79, 46 L. R. A., N. S., 1149, where the court held:

“The principal question presented is the sufficiency of the evidence to sustain the verdict and judgment. It is not pretended that the prosecuting witness was put in any fear of injury to his person, and there was no evidence conducing to- show that the defendant obtained or retained possession of the pocketbook by force and violence.
“.Section 2364 (Rev. Laws [1910]) of our Penal Code, 21 Okla. St. Ann. § 791, defines robbery as follows1: ‘Robbery is a wrongful taking of personal property in the possession of another from his person or immediate presence against his will, accomplished by means’ of force or fear.’
“Section 2365 [Id.] 21 Okla. St. Ann. § 792, provides: ‘To constitute robbery, the force or fear must be employed either to obtain or retain possession of the property, or to prevent or overcome resistance to the taking. If employed merely as a means of escape, it does not constitute robbery.’
“Section 2366 [Id.] 21 Okla. St. Ann. § 793, provides: ‘When force is employed in either of the ways specified in the last section, the degree of force employed is immaterial.’
“Section 2655 [Id.] 21 Okla. St. Ann. § 1704, defines grand larceny as follows: ‘Grand larceny is larceny committed in either of the following cases': First. When the property taken is of value exceeding twenty dollars. Second. When such property, although not of value exceeding twenty dollars in value is taken from the person of another.’
“The larcenous taking of property from the person of another constitutes grand larceny, except when the taking is accomplished by either force or by putting in fear; it is then robbery. Says Bishop: ‘Every robbery requires either actual violence inflicted on the person robbed, or such demonstrations or threats as under the circumstances create in him reasonable apprehension of bodily injury.’ 2 Bish. New Cr. Law, par. 116. Says Wharton: ‘The snatching a thing is not considered a taking by force, but if there be a, struggle to' keep it, or any violence, or disruption, the taking is robbery, the reason of the distinction being, that, in the former case, we can. infer neither fear nor the intention violently to take in face of resisting force. If putting in fear be proved, the offense is robbery. And so where the thing is torn from the person, as an earring from the ear.’ 1 Wharton, Or. Law, par. 854. 'The violence or intimidation in robbery must precede or be contemporaneous with the taking of the property. The violence which constitutes an essential element of the crime of robbery must be actual, personal violence, but the degree of force used is immaterial, except under statutes which provide for a punishment varying with the violence which accompanies the taking. All the force that is required to make the offense a robbery is such force as is actually sufficient to overcome the victim’s resistance. The mere snatching of an article from the person of another; without violence or putting in fear, is not robbery, except where there is some injury or violence to the person of the owner, or where the property snatched is so attached to' the person or clothes of the owner as to afford resistance.’ 34 Cyc. p. 1799, and cases cited.
"The prosecuting witness was the only person to testify to the circumstances attending the taking of the pocketbook. He admitted that he was helplessly drunk at the time, and his examination discloses the fact that he only knew that his pocketbook was taken against his will. His testimony also shows that he was not only violating the prohibition law of the state, but also the federal law, prohibiting the introduction of whiskey into the Indian country. The subsequent struggle of the defendant with other persons in attempting to escape cannot be considered to determine whether the taking was forceful, or furtive. It would seem, and we would suggest, that always in a case of this character, where the line of demarcation between offenses, as in this case, has a very narrow margin, the safe practice, where the proof may be uncertain, is to charge the lesser offense. Upon a careful review it is our opinion that the evidence did not show either force or fear in the taking of the property in question, and that the crime charged was not proved.”

In the case of Ward v. State, 34 Okla. Cr. 296, 246 P. 664, 685, after announcing the rule that this court, in construing the statute, Oklahoma Statutes, 1931, sections 2891, 2892, and 2893, O. S. A. title 22, §§ 409, 410, and 411, has adopted a liberal rule, and that where an indictment or information charges the crime in ordinary and concise language, and in such a manner that a person of common understanding is enabled to know what is intended, and which defines and identifies the offense so that the accused will be enabled to' defend himself if charged again with the same offense, it will not be set aside. This for the purpose of getting away from a technical construction of criminal pleadings. And a case will not be reversed unless the allegations are such that it appears to be prejudicial to the defendant. The court, in the body of the opinion, says:

“It does not allege that the taking was from the 'person or immediate presence.’ It is to' be doubted if this essential allegation is covered by the allegation that it was then and there taken from the possession of another by the use of and by means of firearms. Property not at the time on the person or in the immediate presence may be taken from the possession of another, in which case the offense would be larceny and not robbery.”

In the case of Lowe v. State, 7 Okla. Cr. 32, 121 P. 793, 794, Judge Furman, in delivering the opinion of the court, says:

“Counsel argue at length in their brief that the court erred in permitting the information to be amended after the jury had been impaneled and sworn, and after testimony had been introduced on the part of the state. This was error, and if the rights of the accused had been in any manner prejudiced thereby the judgment of conviction would have to be reversed. * * *
“We do not think that an information should be amended after the jury has been sworn and the testimony introduced; but, in order for such an objection to avail, it must clearly appear from the record that such proceeding was had, and that injury resulted, or could have reasonably resulted from such action.”

The amendment in that case was not material and did not change the offense. It simply permitted the county attorney to strike one of the names from the information. In the instant case the amendment permitted, not only a material change in the information, but changed the crime charged from one of larceny from the person to one of conjoint robbery. This amendment would certainly be prejudicial to the defendants. The court did not instruct the jury with reference to larceny from the person, but only submitted the issue of conjoint robbery.

In the case of Cochran v. State, 4 Okla. Cr. 379, 111 P. 974, 975, the court says:

“It will be found upon an analysis of this section that the jury have no power to convict a defendant of any offense unless it is necessarily included in the offense with Avhich he is charged in the information or indictment, or an attempt to commit such offense. If, therefore, the offense of riot is not necessarily included in that of robbery, a defendant charged only with robbery cannot lawfully be convicted of riot.”

See, also, Thoreson v. State, 69 Okla. Cr. 128, 100 P. 2d 896; Kelly v. State, 12 Okla. Cr. 208, 153 P. 1094; Pozzini v. State, 7 Okla. Cr. 692, 126 P. 1040; Bohannan v. State, 11 Okla. Cr. 69, 142 P. 1092; 46 L. R. A., N. S., 1149, note.

As to the second proposition, that there was no force or fear used in this case, and, therefore, the defendant was not guilty of robbery, but at the most could only have been guilty of larceny from the person, has heretofore been discussed in the case of Monaghan v. State, supra. The distinction between larceny from the person and robbery is sometimes very close, and the facts in this case bring it within that class. The two little girls who used whatever force was used were only 13 and 14 years of age. They only used their hands to punch the prosecuting witness, according to his own testimony, and while one was punching him from the front the other put her hand in his pocket and took the money from the billfold or pocketbook. Evidently he did not know the money was gone until they departed. We have read many authorities which will hereafter be cited, and from such reading one can but come to the conclusion that the force used in this case was not such force as was intended to be used when the statute on conjoint robbery was enacted. Kernell v. State, 53 Okla. Cr. 259, 10 P. 2d 287, and cases cited therein; Ellis v. State, 38 Okla. Cr. 243, 260 P. 93; 54 Corpus Juris § 13, p. 1019; 23 R. C. L. §g 10 and 11, p. 1144.

But under the statute it is not necessary to use force alone, but if one is put in “fear,” and by reason thereof is robbed, the terms of the statute would be complied with. The prosecuting witness testified that he was afraid to do anything to the little girls who punched him for the reason he was afraid the defendant Grover •Marks, who sat in the car, had a gun, and would kill him or do him bodily harm. The evidence reveals that the defendant Grover Marks at no- time spoke to the prosecuting witness. That he never had any weapon of any kind. That he made no hostile demonstration, nor threat toward him.

As stated in the case of State v. Parker, 262 Mo. 169, 170 S. W. 1121, 1123, L. R. A. 19150, 121:

The fright of him who is robbed must be under the law an objective fright, as contradistinguished from subjective fright; it must have been due, in short, to some .act on the part of accused, and. not arise from the mere temperamental timidity of the person whose property happens to be stolen from his person or presence. State v. Weinhardt, 253 Mo. 629, 161 S. W. 1151. Here defendant merely put his hand into the pocket of Buckhold while Ms accomplice Settle engaged him in conversation. The act of theft was wholly accomplished before Buckhold got frightened. No blow was struck or threatened; no weapon was used or shown; nor was any threat of injury, either immediate or remote, uttered by defendant. Robbery by putting in fear, then, clear];/ falls out of the case. In fact, learned counsel for the state do not urge this phase of robbery.

“The state does contend, however, that the force used by defendant in inserting his hand into' the pocket of Buckhold and in drawing from such pocket the stolen silver coins was and constituted such violence, under our statute , to malee- out robbery in the first degree. In this contention we cannot agree. Here the coins stolen were lying loose in Buckhold’s pocket. No force or violence was necessary to separate them from Buckhold.”

These facts are very different from one where bank robbers enter into a conspiracy to rob a bank, and one sits in the car while the others participate in the robbery. The one who sits in the car is bound not only by the force, but by the fear which is caused by his associates in consummating the robbery. 54 Corpus Juris, §§ 34 and 35, p. 1020; 23 R. C. L. § 12, p. 1146; 46 L. R. A., N. S., 1149, note.

And while the distinction is a close one we think under the facts in this case that it would have been much safer for the county attorney to have charged the defendants in this case with larceny from the person, and not with the crime of conjoint robbery. It is true that the amount taken was a large sum of money, but the same principles of law apply.

This thought was expressed in the case of Monaghan v. State, supra, when the court stated:

“It would seem, and we would suggest, that always in a case of this character, where the line of demarcation between offenses, as in this case, has a very narrow margin, the safe practice, where the proof may be uncertain, is to charge the lesser offense.”

The third proposition urged by defendant is, that there is no legal and competent evidence sufficient to sustain the judgment and sentence in this case.

The material evidence in chief on the part of the state was based upon the testimony of the prosecuting witness, E. E. Zimmerman. He was an old man, but the record does not reveal his exact age, and resided on his farm about eight miles north of Buffalo', in Harper county. On Sunday morning, June 11, 1939, about 10 to 11:15 a. m., he came out of his home for the purpose of turning off his windmill. The windmill was only a few hundred feet from his residence. Just as he had finished, and as he started toward his house, he saw a black automobile drive up and he started toward the same when two small girls jumped out of the car, and ran toward him and began punching him with their hands and saying to him that they were bringing him luck. A man remained in the car, and other children were in the back seat. While one of the little girls was punching him with her hands from the front, the other ran her hand in his right pants pocket and took from a billfold or pocketbook $757 in bills. The pocketbook, according to his testimony, was not taken from his pocket, and it was introduced in evidence at the trial. When the money had been taken from his pocket the man in the car hollowed to her, and said, “If you have got it, come on,” and both of the girls ran to the car and the car speeded away. He did not miss the money until the parties had left, but he knew when the little girl felt in his pocket and got the money. He did not speak to the man in the car nor did he speak to prosecuting: witness. His explanation of having the money, and especially that amount, was that some years prior thereto there had been a bank failure, and he and his son had lost some money in the bank and were not able to draw their money out when they needed it, and he had decided to carry it on his person so he could have it if he needed it. That he had been to' Buffalo on Saturday, the day before the robbery, and had cashed a check for some wheat he had sold and secured $11 in cash, and when he returned home Saturday evening he had placed it with the $746 which he had, and counted all of it, and had on Sunday morning looked at it, and knew that he had it. He had two deposit slips wrapped around it. It is unfortunate that on his direct or cross-examination it was not developed from what source he obtained this amount of money. Prosecuting' witness further testified that he did not have any conversation in any way with the man in the car, whom he afterwards identified as defendant Grover Marks, but that he watched him and was afraid that if he did anything to the little girls who were poking him with their hands, that he had a gun and would kill him or do him bodily harm. The man in the car made no threats of any character, and he saw no firearm of any kind in his possession. Immediately after the parties left he went to the telephone and called the sheriff’s office. In a little while Guy Sawyer came to his house. He had been sent by the undersheriff, who had gone to a “gypsy camp” that was out about a mile from Buffalo, and who remained there while Mr. Sawyer went to the home of the prosecuting witness. They made some examination of the car tracks, and then went to the “gypsy camp” where the undersheriff was. There were some 45 persons in the camp, and they were fixing to eat the noonday meal. The prosecuting witness, Mr. Zimmerman, there identified the defendants, Mary Marks, Eosa Marks, and Grover Marks, as being the parties Avho had come to his home and robbed him of the $757. The parties had five automobiles, and he identified one of the cars as being the one in which they were riding at the time. Twenty of the party were arrested and placed in jail and the three defendants Avere charged Avith robbery as above stated.

The undersheriff testified that he Avent to the “camp” just after he returned to the office and received word of the call from Zimmerman. He arrived there about an hour and 45 minutes after the telephone call was made. He made no attempt to search the camp, and did not search any of the parties. No part of the $757 was ever found.

The prosecuting witness, Mr. Zimmerman, testified that he asked the undersheriff to search the camp and all of the parties who had been placed under arrest, but that he said it would be no use, and did not do so. The under-sheriff denied that he had any conversation with the prosecuting witness with reference to the searching of the defendants, the camp, or any of the parties.

The defendants, being unable to make bond, were tried on June 21, 1939, nine days after the alleged offense, and were all convicted with the results as above stated.

The three defendants testified that they were not present, and did not take the money from the prosecuting witness as he stated. That they had never known or seen the prosecuting witness, Zimmerman, and that no one had ever told them he had money on his person or at his home. Six other members of the camp corroborated them, and the other testimony given by them. They stated that they were not gypsies, but were of Brazilian descent. The defendant was born and reared at Oklahoma City, and the other two1 defendants, one of whom was his daughter, and the other his cousin, were born in Wichita, Kans. They were all living at Chicago at this time. That some of them were coppersmiths and silversmiths, and they did other kinds of work. That for several years they had gone to California where they worked, and picked fruit in season. That they at no time begged or told fortunes, or attempted to bless any one, or give them good luck. That they had come direct from Chicago to- Ponca City where they understood they could get work. Having failed to get work, they had left Ponca City on Saturday, June 10, 1939, and had arrived at Buffalo about 6 p. m., and had secured permission to camp about a mile from there, where they were located by the undersheriff on Sunday, June 11, 1939. That after arriving there only one car of their party left on Saturday, and that was for the purpose of going to1 Buffalo' to- buy food. Two' adult members went and one of them was the defendant Grover Marks. That they immediately returned to the camp and only two cars left camp on Sunday morning, one car going into Buffalo to' secure groceries. This car had an old man and two boys in it. The other left there for the purpose of going to a place where a slaughter pen was located, and in close proximity to the camp. This car had three men or boys in it, and the purpose was to get some milk for the children. This they secured and returned to the camp.

This evidence was corroborated by Daniel Painter, a party who had lived at Buffalo for five years, and who worked for Mr. Fossey, at whose place they secured the milk. He testified that they came to the place and asked for Avater, and also to get some milk. That he told them that they secured their water from town and they would have to go there, but if they would return in 15 minutes he would have some milk for them. That they returned in that time and he gave them some milk. He testified that one of the three who came to his place was the defendant Grover Marks, and positively identified him. He said it was about 10 o’clock, or a few minutes thereafter. This was the identical time that the prosecuting witness testified that the defendant and two little girls took from his pocket the $757. According to the evidence it was about eight miles distance between the two places.

All of the parties in the camp testified that they had religious services conducted by one of their members called; “Aunt Lizzie Marks.” That no one left camp except as above stated.

Mary and Rosa Marks testified they played at camp and attended the religious services, and did not leave the camp during the day until they were taken to jail by the officers.

O. H. Root testified as a witness for the defendants. He had lived in Buffalo for 35 years, and was engaged in the filling station business. That on Sunday morning June 11, 1939, some time about 11 o’clock, it could have been 10:30 or 11:30 a. m. a black V-8 Ford car came up to his filling station in which there was a man and three women, and two or three babies, and they were of foreign extraction. The women were from 25 to 40 years of age, to his judgment. They bought ten gallons of gasoline and a quart of cheap oil. The man got out of the car, but it was not the defendant Grover Marks. He told him to put in the gas and he would put in the oil, that he was in a hurry. One of the women in the back seat paid him $1.80 for the gas and oil and handed him $2 and told him to keep the change. The car came from the west and turned south at his station. This was not the direction to the camp where defendants and their parties were located.

The state, on rebuttal, placed P. L. Wheeler on the witness stand, who testified he was a farmer living 12 miles southwest of Buffalo. That on Sunday, June 11, 1939, he was at the slaughter house of W. H. Fossey, about 10 o’clock a.m. That he had taken his children to' Sunday school before going out there. That he saw Mr. Painter there and also Mr. Fossey. That he was out there about an hour and did not see the defendant Grover Marks, or any persons of like description while he was there. During, the time he was there he saw a Ford V-8 car he took to be a 1939 model drive by at a high rate of speed.

W. C. Iron, in rebuttal, testified that he was a farmer living 2 miles north and 8 miles west of Buffalo. That on Thursday, June 8, 1939, one of the witnesses for the defendants, Lizzie Marks, in the middle of the afternoon had come to his house, and said, “she would like to1 bless him.” That she was an Indian woman from Tulsa, and that the man with her was a government man. That she said it would be necessary to' have a piece of money in his palm. That he did not have it and they left without further ceremony.

S. P. Lucy, in rebuttal, testified that he lived ten and a half miles northwest of Buffalo, with W. C. Iron. He saw two women who came to his place, but he could not identify any of the defendant’s party as being the parties whom he saw.

Herb Edmunds testified that he lived 14 miles northeast of Buffalo. That on Wednesday, June 7, 1939, a bunch of foreign people came to his place. He identified Lizzie Marks (Aunt Lizzie), who had testified for defendants, as being one of the party. They had stopped to get a drink of water, and Lizzie Marks had gotten out of the car. There was only one car.

Lizzie Marks, on surrebuttal, denied having ever been northwest or northeast of Buffalo, but testified that she and her party had come direct from Ponca City to Buffalo, on Saturday, June 10, 1939.

This was all the evidence introduced in the case. It will be noted that there is a direct conflict in the evidence. Under the well-known rule of this court a case will not be reversed where there is a conflict in the evidence, and the jury has passed upon the issue. And while the evidence in this case is very close, and there are many points upon which there may be doubt, if this was the only question involved the case would not be reversed, but from what has been heretofore stated with reference to- the permitting of the amendment to the information in a material manner, affecting the prejudicial rights of the defendants, by changing its terms so- as to charge a different crime from that charged in the original information, and also the question as to whether or not the force or fear used was such as under the law would constitute robbery, we are of the opinion that the case should be reversed and remanded for a new trial.

The defendants had been placed in jail and could not make bond. They were tried nine days after the crime had been committed. It was true they made no objection to this. Possibly for the reason they could not make bond, and they were anxious to- be tried, thinking the evidence was insufficient, and they would be acquitted. There is no doubt in our mind that the evidence of the witnesses, W. C. Iron, S. P. Lucy, and Herb Edmunds, who were farmers residing in Harper county, and who- testified to seeing some of the parties in their communities on Wednesday and Thursday, June 7 and 8, 1939, and just prior to Sunday, June 11, 1939, had a strong bearing upon the verdict of the jury, and especially in view of the testimony of defendants and their party that they had not been in that community prior to Saturday, June 10, 1939, when they came from Ponca City. This evidence could not be rebutted by defendants in the short time, and not knowing what this testimony would be. If a new trial is granted in this case it will be possible for defendants and the state to establish by positive testimony which of these parties were correct with reference to' this matter. This would be in the interest of justice to the defendants and to the state.

For the reasons above stated, the judgment of the district court of Harper county is reversed and remanded.

DOYLE, P. J., and JONES, J., concur.


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    N. C. DRENNAN v. STATE.
    No. A-9644.
    May 23, 1940.
    (102 P. 2d 952.)

      Hatcher & Bond, of Chickasha, for plaintiff in error.
    Mac Q. Williamson, Att-y. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The information in this case in substance charged that in Grady county, on or about the 9th day of January, 1938, N. C. Drennan did burglariously and feloniously break and enter by opening the front screen door and unlocking the front door with a key a certain store building, located in the town of Alex, and in the possession of B. Q. Prim, in which certain personal property was kept, with the unlawful and felonious intent on the part of him, the said N. C. Drennan, to take, steal and carry away, without the knowledge or consent of the owner, certain personal property therein, to-wit, money and merchandise, and to convert the same to the use and benefit of him, the said N. C. Drennan.

The trial resulted in a verdict of guilty of burglary in the second degree as charged in the information, and fixing his punishment at confinement in the penitentiary for two years.

Motion for new trail was duly filed, and on November 7, 1938, was overruled; thereupon the court rendered judgment in accordance with the verdict.

An appeal was perfected -by filing in this court on May 4, 1939, a petition in error with case-made.

The only assignments of error argued in the brief are that the verdict is contrary to law and to the evidence, and that the court erred in refusing to instruct the jury to acquit the defendant.

It is contended by the defendant’s counsel in an elaborate argument that the court erred in overruling the demurrer to the evidence at the close of the 'State’s case.

It appears from the evidence that the defendant, Drennan, ivas appointed town marshal of the town of Alex, about the 1st of March, 1934, and that he continued as such officer until January 12, 1938; that it was customary for the town marshal to also be night watchman, and he was selected by the merchants as night watchman. The complaining witness, R. Q. Prim, was a merchant, in the grocery business at Alex, and had been in such business about ten years. His store was on Main street.

Prim testified that for some weeks prior to the 9th day of January, 1938, he had been missing change in his store, and had been checking up short; that he kept his cash in a drawer of a National Cash Register; that he checked his cash every night and kept a record of it. That from December 13, 1937, he found almost daily a shortage; the days the shortage was above a dollar were December 13th, $1.35; 14th, $2.20; 16th $3.62; 21st, $1.54; 23rd, $2.20; 29th $2.07; 30th, $2.95; and December 31st, $4.52, short. January 3, $1.46; January 4th, $1.21; January 5th, $2.90; and January 7th, $3.83. Six or seven days between the above dates, the amount ranged from 5 to 50 cents short.

On Saturday morning, January 8th, he found a nickel can of sardines lying on the floor a long ways from where it belonged on the shelf. That he concluded that some one was entering his store at night and taking this money, and he decided to arm himself and come back to1 the store and hide in the back of the building and wait and watch. He asked his clerk, Willie Buchanan, to come with him; both being armed, he with a shotgun and his clerk with a pistol. He closed the store that night at 8 o'clock and locked the front- door, and they came back to the store between 9 and 10 o’clock. There was a light burning in the store; that about 2 o’clock he heard some one open the screen door, insert a key, turn the lock, press down on the latch and push the door open; some one came in and made some steps in the direction of the counter where the cash register was; that he recognized the defendant and hollered: “Stop N. C.” That Drennan took several steps forward, and he then reached for his gun and he said: “N. C., don’t pull that gun.” Drennan said “Who is that?” And he said “It is Prim.”

On cross-examination he stated that Drennan said that he had seen some one around the front door and had come over to investigate and- found the key in the lock and came in to check up and suggested that they go and catch him; that he declined to go and told Drennan to go if he wanted to; that Drennan went out and directly came back and took the key out of the front door and gave it to him. He produced the key and it was offered in evidence; that he did not know what happened to the door from the time he left the store until he returned that night.

Willie Buchanan testified that he had worked about 5 years as a clerk in Mr. Prim’s store in Alex, was with Mr. Prim in the store that night, armed with a 38 Colts pistol, Mr. Prim had an automatic shotgun, and they were in the back end of the store; that along about 2 o’clock in the morning some one came to the front dor, he heard the screen door open, heard him unlock the door, masli down the latch and walk in. He started down the aisle and was moving fast in the direction of the cash register, and was about eight feet from it when Mr. Prim rose up and hollered, “Stop, N. 0.” He asked, “Who is that?” Mr. Prim said, “If is Prim.” Drennan dropped his hand and said, “There is something wrong.”

On cross-examination he stated that he recognized Drennan when he stepped in. Mr. Prim had his automatic shotgun on him when he spoke to him.

The state rested, and counsel for the defendant moved the court to direct the jury to return a verdict of not guilty, for the reason that the proof was not sufficient to show that the offense charged in the information has been committed. Motion overruled and exception allowed.

The defendant, Drennan, as a witness in his own behalf testified that he was town marshal of the town of Alex from March 1934, until January 12, 1938; that he held two positions, town marshal and night watchman; the town paid his salary as town marshal and the merchants paid him as night watchman; that his duties as night watchman were to go around and shake the store doors after the merchants had closed up to see if any were left open; that he tried to make the rounds every hour or two, but when the store was lighted he did not shake the doors so often, maybe once or twice a night. On the night of January 8th, he was at Lester Shaw’s barber shop, located in the middle of the block on the same side as Prim’s store, and he walked across the street and shook Mr. Robinson’s front door, and walked around through a gap and shook the back door, and walked around, shook other doors, and came to Sander’s filling station on the comer, then walked straight across to Mr. Prim’s store; a light was burning in the store; that he pulled the screen door open, reached down and started to shake the door and it opened and he stepped in; that he had shaken the door one time before, early in the night, at that time it was locked; that he started down the runway in the store; someone said, “Stop there,” and he said, “Who is that?” He said “It is Prim.” That he walked from behind the counter at the end opening. Mr. Prim held a shotgun on him, and said, “N. C., what are you doing in here?” He said “Your front door was open.” Prim said, “Don’t reach for your gun, let’s don’t have any shooting scrape,” and he said, “Mr. Prim, what is going on here?” Prim said, “Go on out.” He said, “Well, let’s get out here and see what is going on, there was a fellow just passed down the street here.” Mr. Prim said: “No, that was all right, or something to that effect,” and said “Go on out.” He had a shotgun on him and he walked out of the store; that he walked around the corner and decided he would go back and see what was wrong, so he walked back and pulled the screen open and swung the door open, and noticed a key in the door; it was the first time he noticed the key. He opened the door and said, “Mr. Prim, is this your key in the door?” Prim said, “No.” He pulled the key out and walked back to where Mr. Prim and his clerk were standing and handed him the key. Mr. Prim said, “That is not my key.” He said: “If this is not your key, we had better call the sheriff’s force and have them send five or six cars down here and get out on each of the roads and maybe, we can pick up somebody.” Mr. Prim said, “No, there was no use to call the sheriff’s office,” and they all walked out of the store.

He also testified that he had no intention of stealing anything out of Prim’s store.

On cross-examination he was asked:

“Q. Why were you. going in and going behind that counter, what business did you have in there? A. I was investigating. Q. Did you take your gun out as you went in the door? A. Not at that time.”

The main contention on the part of the defendant is that the evidence is insufficient to show that he broke and entered the store with intent to steal therein.

In the instant case the information charges the burg-larious entry of a certain store building with intent to commit larceny, and the intent to steal was an essential element of the crime charged.

There was no denial that the defendant opened both the screen door and the front door and entered the store. The testimony of the two> witnesses for the state was that he opened the screen door and unlocked the front door, lifted the latch, pushed the door open and entered and walked towards the counter where the cash register was when the owner called upon him to stop. The defendant’s explanation was that in performing his duties as night watchman he found the store door unlocked and entered the store to make an investigation. The only issue in the case was: With what intent did the defendant enter the store?

Whether or not the defendant unlocked the door and entered the store, or found the door open and entered the store, was a question of fact for the jury to determine. When it is shown that a defendant broke and entered a store in the nighttime, it may ordinarily be presumed that he did so with intent to commit larceny, though at the ■time he was detected he had not appropriated any property, and the question of intent is for the jury, to be gathered from the circumstances attending the entry, and prior and subsequent thereto. 9 Am. Jur., Burglary, § 61; State v. Woodruff, 208 Iowa, 236, 225 N. W. 254; Annotation, Ann. Cas. 1913C, 519.

There are facts and circumstances established by undisputed testimony in the case. It was shown that for about three weeks prior to the date alleged the owner had been missing change taken from the cash register when he checked his cash in the morning, which caused him to lay in wait with his clerk in the store in order that he might detect the offender.

It is only where there is a total failure of substantial evidence of the elements, or some one element, of an offense that this court on appeal is permitted to reverse a conviction on the ground that the evidence is insufficient to sustain it. The jury is the exclusive judge of the weight of the evidence and credit to be given to the witnesses. Where there is a direct conflict in the evidence, or it is such that different inferences may be properly drawn from it, the jury’s determination will not be interfered with upon the ground that the evidence is insufficient to sustain a conviction to prove each element of the offense charged.

It follows from the foregoing review that there is evidence in the record sufficient to authorize the jury to find the defendant guilty as charged. The jury evidently did not believe the explanation of the defendant as to why he entered the store.

The instructions of the court, to which no objection was made or exception taken, fairly covered the law of the case, and were as favorable to the defendant as he could have demanded.

No other reason for a reversal of the judgment being urged, and no material error appearing in the record, the judgment appealed from is affirmed.

BAKEFOOT and JONES, JJ., concur.


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    EARL JONES et al. v. STATE.
    No. A-9830.
    May 23, 1940.
    (103 P. 2d 951.)
    Durward F. Mathis, of Frederick, for plaintiffs in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiffs in error were jointly charged, tried and convicted upon information charging that on or about the 15th day of April, 1939, they did commit the crime of obstructing an officer, one W. A. Mc-Afee, sheriff of Tillman county, and in accordance with the verdict of the jury Earl Jones was sentenced to pay a fine of $50 and confinement in the county jail for thirty days; Mrs. Earl Jones was sentenced to pay a fine of $10.

From the judgments an appeal was duly perfected by filing in this court on March 30, 1940, a petition in error with ease-made attached.

On May 3, 1940, the following motion to dismiss their appeal was filed:

“Comes now said Earl Jones and Mrs. Earl Jones, the plaintiffs in error named above, and dismiss the above entitled cause pending upon appeal fi*om the county court of Tillman county.”

On May 16th, the motion to dismiss was submitted.

The Constitution and laws of this state give to every citizen convicted of crime in the courts of this state the right of appeal from any judgment rendered against him in a court of record. It is a privilege granted by the law to persons convicted of crime which they may exercise at their option.

When an appeal has been taken, unless good cause is shown to the contrary, this court has uniformly permitted the plaintiff in error to dismiss his appeal at his election. Huber v. State, 13 Okla. Cr. 209, 163 P. 329; Hancock v. State, 57 Okla. Cr. 329, 48 P. 2d 348;; McDessey v. State, 61 Okla. Cr. 345, 68 P. 2d 113.

In the instant case there is no reason made to appear why the dismissal should not be ordered in compliance with the motion of the plaintiffs in error.

It is therefore adjudged and ordered that the appeal herein be dismissed and the cause remanded to the county court of Tillman county. The clerk of said court is directed to spread the mandate and to issue forthwith to the sheriff of said county commitments in accordance with the judgments of said court pronounced and entered on the verdict of the jury.

BAREFOOT and JONES. JJ.. concur.


text:
    LORRAINE PETREE v. STATE.
    No. A-9683.
    May 29, 1940.
    (103 P. 2d 107.)
    Baker H. Melon©, of El Reno, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and >S. T. Roberson, Co. Atty., of El Reno, for the State.
   BAREFOOT, J.

Defendant, Lorraine Petree, was charged in the county court of Canadian county with the crime of the unlawful possession of intoxicating liquor; was tried, convicted and sentenced by the court to pay a fine of $100 and to serve a term of 30 days in the county jail, and has appealed.

These charges resulted from the execution of a search warrant by certain officers in Canadian county, on the 7th day of October, 1938, upon the premises and home of the defendant, Lorraine Petree, who lived in the town of Calumet, Canadian county. The result of the search was that 109 pints of bonded, tax-paid whisky and. gin were found by the officers in a partition in one of the closets, and the whole side section of the wall came out. Defendant and his wife were present at the time of the search. He was arrested and the whisky and gin were taken by the officers to the office of the sheriff of Canadian county, John Harrison, and turned over to the county jailer, Dan Hahn, who in a short while turned it over to- Sheriff Harrison, and he and other deputies placed the same in the vault prepared and used for the purpose of storing confiscated liquors. The sheriff was the only party holding a key to this vault. All of this liquor was labeled and kept in the vault until just prior to Sheriff Harrison going out of office in January, 1939; at which time he, under order of the court, destroyed the greater portion of the same. Part of the whisky was retained in the vault for the purpose of evidence, and this amount consisted of one package, which was turned over to Sheriff Jack Smith, his successor in office. Certain written marks, the nature, of which was not revealed by the record, were placed upon the package or bottles by Sheriff Harrison before it was turned over to Sheriff Smith.

The whisky was introduced in evidence before the jury, and a bottle of it opened so that they could examine the same, and while it had not been tasted by the officers, they described it, and testified that it was in bottles, and that it was labeled whisky and gin.

Defendant, in his brief, says:

“The action of the trial court in overruling the motion to suppress evidence and the objection to the introduction of evidence was assigned as error, but by reason of recent decisions of this court the defendant hereby abandons assignments of error No. I and II. * * *”

It is the contention of the defendant that the evidence was insufficient to identify the whisky, and for this reason the court erred in failing to sustain a demurrer to the evidence. In view of the above statement of the evidence it is unnecessary to ans'wer this contention. To our mind the evidence fully warranted the court in submitting the case to the jury.

The defendant did not take the witness stand, and did not offer any evidence.

We have carefully examined the record and do not find that any evidence was offered which was' incompetent, irrelevant, and immaterial.

We have also examined the instructions, and they fully and fairly presented the law as applied to the facts.

It is our opinion that the judgment of the county court of Canadian county should be affirmed, and it is so ordered.

DOYLE, P. J., and JONES, J., concur.


text:
    OSCAR FOGLESONG v. STATE.
    No. A-9634.
    May 29, 1940.
    (103 P. 2d 106.)

      S. M. Smith, of Woodward, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant was charged in the district court of Woodward county with the offense of driving an automobile while under the influence of intoxicating liquor; was tried, convicted, and sentenced to- pay a fine of $100 and costs amounting to $15.10, and has appealed.

The defendant contends that he had only been drinking 3.2 per cent, beer, and that under the laws of Oklahoma the sale of said beverage had been legalized, and that it was not an offense for one to drive an automobile while under the influence of said beverage.

The defendant contends the court erred in refusing to give the following requested instruction:

“You are further instructed that before you find the defendant guilty of the crime alleged in the information the state must prove beyond a reasonable doubt that the defendant’s alleged condition was brought about and induced by intoxicating liquor as defined in these instructions, and in this connection you are instructed that any condition induced or brought about by the use of beer containing no more than 3.2 per cent, alcohol by weight is lawful and the operation of a motor vehicle upon the highway of this state, while under the influence of any beverage containing no more than 3.2 per cent, alcohol by weight is not a crime, and is not punishable as such; and therefore, in this case, if you entertain a reasonable doubt that the defendant’s alleged condition was induced by his having consumed beer or any other beverage containing no more than 3.2 per cent, alcohol by weight, it is your duty to return a verdict of not guilty.”

Since the appeal was filed in this case, this court in three cases (Ashcraft v. State, 68 Okla. Cr. 308, 98 P. 2d 60; Odom v. State, 68 Okla. Cr. 117, 95 P. 2d 916; Curtis v. State, 69 Okla. Cr. 278, 101 P. 2d 1062) has decided this contention adversely to the claim of the defendant. Reference is hereby made to> these cases for an extended discussion of the intention of the Legislature as viewed by this court in the passage of the act in question, which is known as the Non-Intoxicating Beverage Act.

In the case of Ashcraft v. State, supra, the rule of law applicable to this character of cases is set forth in the syllabus which reads as follows:

“1. Section 1, chapter 153, Session Laws of 1933, 37 Okla. St. Ann. § 151, defines what is ‘intoxicating’ and ‘non-intoxicating’ liquors. The definition under this act was for the purpose of thus classifying beverages, as a foundation for the subsequent licensing and taxing provision. It was not intended to regulate the provisions of the law with reference to the enforcement of the criminal statutes.
“2. Section 10321, O. S. 1931, 17 Okla. St. Ann. § 93, makes it an offense for one who is under the influence of intoxicating liquor, or who is a habitual user of narcotic drugs, to operate or drive a motor vehicle on any highway within this state.
“3. Under this statute it was the intention of the Legislature to punish those who were in fact ‘under the influence of intoxicating liquor,’ whether it be caused from drinking beer with an alcoholic content of 3.2 per cent or liquor in excess thereof.”

The proof in this case shows that the defendant was in fact intoxicated and no error appears in the instructions which were given.

The judgment is accordingly affirmed.

DOYLE, P. J., and BAREFOOT, J., concur.


author: J ONES, J.

text:
    ASA PITZER v. STATE.
    No. A-9625.
    May 29, 1940.
    (103 P. 2d 109.)

      O. S. ,Shaw and M. E. Becker, both of Boise City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L.' Pullen, Asst. Atty. Gen., for defendant in error.
   J ONES, J.

The defendant Asa Pitzer was charged in the district court of Cimarron county with the offense of unlawful possession of intoxicating liquor, and charged that the same was the “second offense;” was tried, convicted, and sentenced to serve a term of 30 days in the county jail and pay a fine of $50, and has appealed.

The Attorney General has filed herein a motion to dismiss for the reason that m> notice of appeal was served upon either the county attorney or the court clerk as required by section 3193, O. S. 1931, 22 Okla. St. Ann. § 1055. The defendant filed a verified response to this motion, in which he admits that no notice of appeal was served on the court clerk or the county attorney of Cimar-ron county, but alleges that the Attorney General did execute and file a waiver of summons in error on the 22nd day of July, 1939.

An examination of the record sustains the allegations of the response of the defendant, and shows that the Attorney General executed and filed a waiver of the issuance and service of a summons in error on July 22, 1939, and that the same was filed on that date.

As was stated in the second syllabus in Lutke v. State, 37 Okla. Cr. 18, 255 P. 719 :

“Where the notices of appeal required by statute have not been served, this defect may be cured by the service of a summons in error upon the Attorney General or by securing a waiver thereof.”

The motion to dismiss being without merit, the same is hereby overruled.

The defendant contends that the affidavit for search warrant was insufficient both by reason of failure to allege sufficient evidentiary facts in the body of the affidavit and because the description of the premises set forth in the affidavit did not sufficiently describe the premises to be searched. Secondly, the defendant contends that the district court was without jurisdiction to' try said case for the reason that the state failed to prove “second offense.”

Before the commencement of the trial of this case, the defendant filed his motion to suppress the evidence; a hearing was had thereon; the affidavit and search warrant upon which this information was predicated were introduced in evidence. The affidavit for search warrant recites certain positive evidentiary facts from which the justice of peace could find that probable cause existed for the issuance of a warrant. The defendant contends that since the affidavit used was from an old form, which recites that the whisky and other liquors named in the affidavit contained more than one-half of one per cent, instead of more than 3.2 per cent, alcohol, the same is insufficient upon which to base the issuance of a search warrant. This court will take judicial notice of the fact that whisky is intoxicating and contains more than 3.2 per cent, alcohol by weight. The statement that the liquors contained more than one-half of one per cent, of alcohol is mere surplusage.

While we shall not hold that the affidavit in this case is a model in form and substance, we do hold that there are facts stated therein which were sufficient to warrant the magistrate in making a finding of probable cause. While a search warrant must be based upon evi-dentiary facts, the quantum of evidence necessary to show probable cause may be quite insufficient to support a verdict of guilty. Smith v. State, 30 Okla. Cr. 144, 235 P. 273; Heath v. State, 54 Okla. Cr. 240, 17 P. 2d 527.

An affidavit almost identical in wording as the one herein was sustained in the recent case of Key v. State, 69 Okla. Cr. 71, 100 P. 2d 291.

The description set forth in the search warrant reads as follows, to wit:

“A one story two room frame building about 12 feet wide and 20 feet long.
“Located on Lot 6, Block 10, Boise City, Cimarron County, State of Oklahoma.
“Said described property is in the possession and under the control of Asa Pitzer and Alice. Pitzer.”

The defendant introduced the evidence of an abstracter who testified that there were six pieces of property that could be described as lot 6 in block 10 in Boise City. On cross-examination, however, it was brought out that all of these lots except one are in certain additions to Boise City, so that with correct descriptions of those premises it would be “Lot 6, Block 10, Highland Addition;” “Lot 6, Block 10, Hixon Addition,” etc. The proof further showed that the additions to Boise City were made in about 1926 or 1927; prior to that time there was only one lot 6 of block 10, and that was in the original townsite of Boise City; that prior to the annexation of the additions to Boise City the description, “Lot 6, Block 10, Boise City,” as set forth in the search warrant covered the only lot 6, block 10, in existence. That after the additions were made, the description, “Lot 6, Block 10,” was taken to mean “Lot 6, Block 10 of the Original Townsite of Boise City.”

The search herein was made of the defendant’s premises in lot 6, block 10 of the original townsite of Boise City. The descriptions in the search warrant must be construed together, and the same is sufficient if it enables the officer executing the search warrant to locate the premises to be searched without the aid. of any other information save that contained in the search warrant. Mitchell v. State, 43 Okla. Cr. 63, 277 P. 260; Bohannon v. State, 66 Okla. Cr. 190, 90 P. 2d 675.

The name of the occupant as well as the description of the house is a part of the description in the search warrant, the same as the legal description of the premises; and Avhen these items are construed together with the fact that “Lot 6, Block 10, Boise City,” is regarded by those in the abstracting business and people generally at Boise City as meaning lot 6, block 10 of the original town-site, we hold that there is no error of the court in holding that the description was sufficient so as to enable the sheriff to serve the Avarrant without obtaining additional information from outside sources.

The evidence on behalf of the state showed that the sheriff, together with two deputies, made a search of the premises described in the warrant and found seven pints of whisky, 14 pints of alcohol, seven pints of wine, and one pint of gin, sitting on the floor in the kitchen in plain sight. This was sufficient to make a prima facie case.

No proof Avas offered by the defendant.

As a part of the evidence of the state, an information carrying the style: “The State of Oklahoma, vs. Asa Pitzer, Defendant. In the County Court of Cimarron County, Oklahoma,” charging Asa. Pitzer with the possession of a still worm on or about the 27th day of June, 1929; the journal entry of judgment showing, a plea of guilty entered to said charge and the appearance docket showing the payment of the fine were identified by the court- clerk and: introduced as evidence. The defendant contends that since no witness identified the Asa Pitzer who was charged in 1929 as being the identical Asa Pitzer on trial herein, the evidence is insufficient to prove a “second offense” and, therefore, the district court is without jurisdiction to try the charge.

This court has heretofore decided this matter contrary to the contention of the defendant.

In Files v. State, 16 Okla. Cr. 363, 182 P. 911, we held:

“Where, in a prosecution for a second violation of the prohibitory liquor laws, record evidence of a former conviction is offered in evidence of one of the same name as that of the defendant on trial, it is not necessary for the state to prove that the person named in said former conviction and the defendant on trial is one and the same person.”

In Bassett v. State, 42 Okla. Cr. 126, 274 P. 893, we held the following:

“In a prosecution under the statute here involved (section 6991 [now section 2632 O. S. 1931, 37 Okla. St. Ann. 12]), it is necessary that the prior conviction be alleged with sufficient certainty to enable the court to determine whether or not the statute applies; and the proof must establish this fact beyond a reasonable doubt, as any other material allegation in the information. There is some difference in the authorities under similar statutes as to the manner in which the former conviction may be proven, but it seems to be settled that it may be proven by the record or a certified copy of the record of the prior conviction (State v. Howard, 30 Mont. 518, 77 P. 50), or by journal entries (People v. Campbell, 173 Mich. 381, 139 N. W. 24).”

In Smiley v. State, 51 Okla. Cr. 364, 1 P. 2d 829, it is stated that where a prior conviction is alleged to enlarge the grade or degree of the crime or the punishment under this section, it is not necessary that the entire record be introduced in order to prove the conviction.

The fact of a “second offense” must be proved by competent evidence beyond a reasonable doubt, the same as all other material allegations of the information; and the same may be proved by circumstantial evidence. The circumstances shown by the record herein are sufficient, if they are believed by the jury, to sustain the charge.

The guilt of the defendant is thoroughly established. .The punishment meted out to the defendant is the minimum authorized by the law. No legal reason existing, showing that the defendant has been deprived of any of his constitutional rights, the judgment is accordingly affirmed.

DOYLE, P. J., and BAREFOOT, J., concur.


text:
    HARRY SPANN v. STATE.
    No. A-9626.
    June 6, 1940.
    (103 P. 2d 389.)

      Brunson & Brunson, of Ada, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

An information was filed in the district court of Pontotoc county on April 10, 1937, charging Frank Campbell, J. C. Campbell, and Harry Spann with the crime of burglary in the second degree, and of the crime of the second and subsequent offense as to 'Harry Spann; a severance was granted; the defendant, Harry Spann, was tried, convicted of the offense of burglary in the second degree, but the punishment was left to the court. Thereupon the district court sentenced the defendant to five years in the state penitentiary, and he has appealed to this court.

The principal considerations relied upon by the defendant for reversal of this case are:

(1) The evidence is wholly insufficient to support a verdict of guilty.

(2) Error of the court in admitting evidence pertaining to' the prior conviction of the defendant on a felony charge and submitting said issue of second and subsequent offense to the jury for the reason it places the defendant in jeopardy twice for the same offense.

In considering the first question it will be necessary to give a summary of the evidence introduced by the state.

J. J. Shields testified he was superintendent of a quarry owned and operated by the Oklahoma Portland Cement Company at Lawrence, Okla.; that he had known the defendant for about 16 years; that on the 13th day of October, 1936, the cement company had about 16,000 pounds of powder and explosives stored in a magazine, which was a brick building without windows but which had one steel door with a lock; and the building was surrounded by a fence which had a double lock on the gate; that on October 15 th he was informed that the magazine had been entered; and he drove over to that place, found the gate was cut, the door was cut, and the lock was broken. There were several cases of explosives missing. These explosives Avere in the magazine on the 13th; and Avhen he went there on the 15th they Avere gone. Some of the explosives were shipped from McAlester and some came from the factory at Joplin. After the powder was put in the magazine on the 13th and before it was taken on the 15th, the witness saw the defendant come into the shop. The defendant stood around a minute and walked on up the railroad track in a northwesterly direction. The containers the powder was in had serial numbers on them, and a record was made of it; and later they got 53 cases back from the sheriff’s office. The magazine from which the powder was taken was in Pontotoc county, Okla.

Sam Robinson testified that he lived in Lawrence and worked for the cement company. His testimony as to the location of the magazine, the quarry, and the company’s property in general is the same as Shields’. He went with [Shields to the magazine after the magazine was reported broken into. The powder was missing and the locks were gone. A lot of the dynamite that was taken were sticks five inches by ten inches which were a special order for this particular company.

R. L. Clotz testified that he was the sales manager for the Hercules Powder Company for all the state of Oklahoma except Ottawa county, and had been for three years; that they sold powder of the dimensions of five inches by ten inches to the cement company, who were the only users of this powder in the Southwest. That they only manufactured that powder on special orders. He knew the serial numbers of the powder sold to the company, and identified the box before him as the box of his company in which a part- of the explosives was shipped to the cement company at Ada.

Sterling Price testified he was employed by the cement company as timekeeper. Much of his testimony is the same as that of Robinson and Shields. He described and identified the 53 cases which had been recovered by the company from a truck in the custody of Roy Keller, chief of police.

Wayne Vickers testified that in 1937 he was working for the Ada police department; that on January 14th, he, Eoy Keller, and Quinton Blake drove south of Fitts Town to the top of a mountain. Acting upon a tip which they had received that the stolen explosives would be brought along that road on a truck, they waited at that spot until the truck came by. They stopped the truck; and Frank Campbell, J. C. Campbell, and the defendant, Harry Spann, were in the truck. The dynamite which was identified as that stolen from the cement company was on the truck. Frank Campbell was driving the truck; the defendant was sitting in the middle next to the driver. They brought the truck and the dynamite back to Ada, and put the defendant and Frank Campbell in jail.

The testimony of two witnesses which was taken in the preliminary hearing was introduced in evidence by the state.

Carl Spann, son of the defendant, was absent at the time of the trial in the district court, and a transcript of his testimony given at the preliminary hearing was read at the trial. He testified that he remembered receiving information about his father being arrested, and that was “last Tuesday night.” He saw his father in town Tuesday; the witness owned the car and took his father out to Frank Campbell’s; did not find Frank at home; then they drove to Mr. Campbell’s father’s place, and “he came out to the car and on to town with us.” He took his father out to Ed Barnes’ place; they came back to town, and later took his father and Frank Campbell to Barnes’ place about dark.

“When we got there, Dad got out of the car and went to see Ed. When Ave left there, I drove a truck; and Frank was in my car. We drove back around to where Mr. Campbell lives. I sat in my car for over an hour; Frank and Dad left with the truck; I don’t know what they were going after. I brought Ed Barnes back to town. When I left, there were three in the truck and they were coming on towards town.”

Jim Carney testified at the preliminary hearing that along about Tuesday evening he was looking for a cow near the home of W. W. Campbell, and that right on the road by the bridge a truck was stopped. The motor was running. He saw three individuals there and recognized J. C. Campbell’s voice.

This witness’ testimony and that of Carl Spann connects the defendant and Campbell with being together in Ed Barnes’ truck. This was the truck in which Campbell and the defendant were riding with the explosives at the time of their arrest.

Della Bedford testified that she Avas the court clerk of Pontotoc county. She testified as to the previous conviction of the defendant and identified the information, the verdict of the jury, the judgment and sentence of the court, and the mandate of the Criminal Court of Appeals wherein the judgment was affirmed on appeal. These instruments Avere all introduced in evidence.

The defendant took the witness stand and denied breaking into the magazine. He admitted getting the truck from Ed Barnes, but stated that he did so because Prank Campbell had asked him if he knew where he could sell some powder; and that he had found a purchaser for the powder and rented the truck from Ed Barnes to haul the powder, which Prank Campbell said he had, to' the purchaser. That he Avas not at the cement company’s property at Lawrence on October 13th as testified to by the state’s witnesses; but that he, on October 12th, had gone to' the home of Bert Poindexter, southeast of String-town in Atoka county, and had stayed there until Saturday evening, October 17th. In support of his alibi, the defendant introduced the testimony of two' witnesses who corroborated the defendant’s testimony that he was at the home of Bert Poindexter from Monday, October 12th, to Saturday, October 17 th.

In rebuttal the state introduced the evidence of three witnesses who testified that they saw Harry iSpann at the shop building of the cement company on October 13th or 11th, which was about the time the powder magazine was burglarized.

After considering this record, we find the following undisputed facts proven by the state:

(1) The locks on the powder magazine were broken, the magazine entered, and a large quantity of explosives taken.

(2) These explosives were later recovered in the possession of the defendant Spann, J. C. Campbell, and Frank Campbell.

(3) The truck in which the explosives were being hauled had been rented by the defendant from Ed Barnes.

When you consider these undisputed facts which have been proven, together with the state’s proof that the defendant was there on the ground near the quarry on the day before the night, or at the most two days before the night, this crime was committed, it is inconceivable that a jury of fair-minded citizens could have failed to find the defendant guilty under the circumstances'.

This court has many times had to consider appeals in cases where the conviction was obtained on circumstantial evidence. We have consistently followed the rule that where the evidence, together with reasonable and logical inferences and deductions to be draAvn therefrom, is sufficient to convince the jury beyond a reasonable doubt of the guilt, of the defendant, and the facts and circumstances upon which the conviction rests are consistent with and point to' the guilt of the defendant and are inconsistent with any other reasonable hypothesis except the guilt of the defendant, this court will not disturb the verdict on account of the insufficiency of the evidence. Halbert v. State, 35 Okla. Cr. 329, 250 P. 436; Ex parte Jefferies, 7 Okla. Cr. 544, 124 P. 924, 41 L. R. A., N. S., 749; Pickett v. State, 35 Okla. Cr. 60, 248 P. 352; Hensley v. State, 69 Okla. Cr. 199, 101 P. 2d 279; Goodnight v. State, 62 Okla. Cr. 382, 71 P. 2d 789.

In Ramey v. State, 69 Okla. Cr. 257, 101 P. 2d 856, 859, the court stated:

“If there is a conflict in the evidence, or different inference may be drawn therefrom, it is the province of the jury to weigh the evidence and determine the facts; and their determination should not be interfered with unless it appears that such determination was not sustained by sufficient evidence, or was influenced in some way by passion or prejudice.
“It is no more the province of an appellate court than of the court of original jurisdiction to determine controverted questions of fact arising upon conflicting evidence. Neither can lawfully usurp the appropriate function of the other, and neither can substitute its o wn judgment for that of the jury, Avhere the facts are reasonably capable of diverse or opposing inferences.
“The truthfulness of an explanation of the possession of stolen property, although not contradicted, must be determined by the jury. Chesser v. State, 63 Okla. Cr. 84, 73 P. 2d 191.”

There is no merit, to the contention of the defendant that the court erred in allowing the introduction of proof pertaining to the prior conviction of the defendant.

The Legislature, by the provisions of section 1817, O. S. 1931, 21 Okla.. ¡St. Ann. § 51, did not create or define a new or independent crime, but said statute describes circumstances wherein one found guilty of a specific crime may be more severely penalized because of his previous conviction. “Habitual criminality” is a state and not a crime. Various attacks have been made on this statute; the defendants insisting that it conflicted with various sections of the state and federal Constitutions. See Tucker v. State, 14 Okla. Cr. 54, 167 P. 637; Fowler v. State, 14 Okla. Cr. 316, 170 P. 917; Wright v. State, 16 Okla. Cr. 458, 184 P. 158; Rogers v. State, 34 Okla. Cr. 15, 244 P. 461; Martin v. State, 30 Okla. Cr. 49, 234 P. 795; Ex parte Weaver, 60 Okla. Cr. 290, 64 P. 2d 925; Ex parte Wray, 61 Okla. Cr. 162, 66 P. 2d 965.

Laws of this character are not of recent origin. Statutes of similar import have been uniformly upheld by the courts wherever enacted. As was said by the Supreme Court of the United ¡States in Moore v. State of Missouri, 159 U. S. 673, 16 S. Ct. 179, 181, 40 L. Ed. 301:

“Similar provisions have been contained in state statutes for many years, and they have been uniformly sustained by the courts.”

The law complained of is a valid, existing, penal provision and does not conflict in any way with any of the constitutional guaranties possessed by the accused.

The procedure followed by the state in this case to prove the prior conviction has been approved many times by this court. Files v. State, 16 Okla. Cr. 363, 182 P. 911; Bassett v. State, 42 Okla. Cr. 126, 274 P. 893; Smiley v. State, 51 Okla. Cr. 364, 1 P. 2d 829; Pitzer v. State, 69 Okla. Cr. 363, 103 P. 2d 109.

However, the defendant has no cause to complain here because, in spite of the fact that the proof of the prior conviction was thoroughly established and even admitted by the defendant on his cross-examination, still the jury sought to ignore his prior conviction and only rendered a verdict of guilty of the offense of burglary in the second degree and left the punishment to the court. The court thereupon sentenced the defendant to- serve a term of five years in the state penitentiary. If the defendant had been found guilty of burglary in the second degree and they had found that the same was a “second offense” as defined to them in the court’s instructions, the minimum punishment which could have been imposed would have been ten years in the state penitentiary. The defendant is very fortunate that he received only five years instead of ten years, as the evidence in this case would have warranted a verdict of guilty of burglary in the second degree, the same being a “second offense.”

The defendant urges several secondary propositions concerning the admission of testimony and attacks on the information, but all of these contentions are directed to the two propositions hereinabove discussed, to- wit, insufficiency of the evidence and error of the court in submitting proof as to a prior conviction.

The information herein charged an offense under the habitual criminal statute, and the demurrer thereto- was properly overruled. The instructions fairly presented all the issues to- the jury, including an instruction on circumstantial evidence, alibi, and the second offense statute.

We find that no material error has been committed, and the judgment is accordingly affirmed.

DOYLE, P. J., and BAREFOOT, J., concur.