text:
    EMERY GRIFFIN v. STATE.
    No. A-8390.
    Sept. 2, 1932.
    Withdrawn, Corrected, Refiled and Rehearing Denied Nov. 18, 1932.
    (15 Pac. [2d] 1092.)
    J. Hugh Nolen and John T. Blaney, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of a second violation of the prohibition laws, and sentenced to pay a fine of $250, and to' be imprisoned in the county jail for ninety days, and appeals.

The testimony on behalf of the state in substance is that the officers went to the town of Davenport, and saw a car in front of the home of Z. T. Adams, a negro ; they drove up close to this car; two parties got out of the car with two one-half gallon jars of whisky. About the time they discovered these parties had whisky, the defendant came up to the car and wanted to know what they were doing there, and asked if the officers had a search warrant. The car the parties got out of was the defendant’s car, and the officers claim the defendant stated that the whisky was his and the other parties had nothing to do with it.

The defendant testified in his own behalf and denied the whisky was his or that he had possession of it. Under proper instructions of the court, the jury found the defendant guilty.

Several errors have been assigned by the defendant, hut we do not think they possess sufficient merit to warrant a reversal. The evidence is sufficient to sustain the verdict and judgment. No- fundamental or prejudicial errors appear in the record.

The case is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


source: Caselaw Access Project

author: EDWARDS, J.

license: Public Domain

text:
    PROCTOR McDONALD v. STATE.
    No. A-8426.
    Oct. 27, 1932.
    Rehearing Denied Nov. 18, 1932.
    (15 Pac. [2d] 1092.)

      Marshall & Cobb, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Creek county of murder and his punishment fixed at death.

There is little dispute as to the essential facts. At the time charged, defendant and one Elmer Higgins planned to hi-jack and rob M. D. Butler, a druggist at Oil-ton. They drove in an automobile from Red Pork, about 60 miles, to near Oilton, where defendant stated they picked up a third person, one Walter, whose last name he does not know. They then inspected the surroundings and fortified themselves by drinking whisky; then defendant armed with a .45 pistol, and Higgins with a sawed-off shotgun, stationed themselves in the Butler garage and “Walter,” according to defendant’s testimony was in wait about three miles away with a car to' assist in their escape after the robbery. The plan was that, if Mrs. Butler should be with her husband, defendant was to take care of her while Higgins robbed Butler. About 11 p. m., Butler drove into the garage; his wife was in the right-hand seat, and their adopted son, Raymond Butler, about 8 years old, was between them. Mrs. Butler got out of the car and defendant immediately seized her by the head, took her purse, and forced her to the rear of the car. She resisted and was thrown to the floor and defendant fired one shot which struck the concrete and slightly wounded her. Higgins fired the sawed-off shotgun at Butler, but in the darkness missed him and struck the steering wheel of the car. He fired again, and the second shot killed the boy, Baymond Butler. Butler then fired a pistol and killed Higgins. Defendant fled and about a half block from the garage was fired at by some third person and wounded. He was a fugitive for some time, but on account of his wound went to a hospital at Tulsa, where he was apprehended. After his arrest, he made a signed confession and as a witness in this trial stated the facts substantially as set out. While a plea of not guilty was entered and the case fully tried, his testimony clearly established his guilt of an atrocious murder while engaged in the commission of a felony.

The first contention argued is that the trial court permitted the county attorney on voir dire examination to pledge the jurors to a verdict imposing the death penalty. In examining the jurors on voir dire, they were asked, in substance, if they entertained conscientious scruples against the death penalty and if they could without violence to their conscience assess such penalty if convinced beyond a reasonable doubt of defendant’s guilt and should believe from the evidence that such penalty should be imposed. In two instances prospective jurors were asked if they “could and would” under such circumstances vote for the death penalty without violence to their conscience. These questions were objected to, and the objection was overruled. The question in those two instances should not have been asked. It was highly improper. We condemn the asking as to what a juror would do under any particular state of facts. The trial court should not permit it, and should have sustained the objection to the questions propounded to these two jurors. Manning v. State, 7 Okla. Cr. 367, 123 Pac. 1029; Jones v. State, 20 Okla. Cr. 154, 201 Pac. 664; State v. Huffman, 86 Ohio St. 229, 99 N. E. 295, Ann. Cas. 1913D, 677; Com. v. Van Horn, 188 Pa. 143, 41 A. 469. The objection made is that the question is improper and incorporating an improper hypothesis. One juror, in substance, stated to defendant’s counsel that he felt committed by his answer to the county attorney. Thereupon the court instructed the juror that he was under no obligation to agree with the prosecution, but was free to act on the law and the evidence upon his conscience and oath. At one time during the deliberations the jury came in and a juror asked to have the voir dire examination read; the court then instructed the jury the questions were asked merely to determine the qualifications and competency of the jurors and after the jury had been sworn the questions were immaterial.

In a capital case, in ascertaining whether a juror entertains conscientious scruples against the death penalty, he may be asked if in a case where the law and the evidence warrants he could, without doing violence to his conscience, agree to a verdict for the death penalty. When the prosecution goes beyond that, the court should limit the question and particularly so when objection is made. But counsel for a defendant may not rest on a mere objection and exception; if he is of the opinion that by such question and answer a juror is biased, or prejudiced or not fair and he is not satisfied with him, he must challenge for cause if of the opinion ground for such challenge exists, and, if not, he must exercise the right given him by statute to exclude the juror by peremptory challenge. If counsel believes any juror was pledged to return a verdict imposing the death penalty, under the circumstances named, lie should have purged the jury by challenge. He cannot speculate on the result of the jury’s verdict by consenting that the juror sit on the panel, and, if the verdict is adverse, then assert he is disqualified. Of the nine peremptory challenges allowed defendant, he exercised only one and waived as to the other eight. There is no difference, in principle, in agreeing that a juror who is disqualified by reason of bias or prejudice on this ground may serve on the panel than in agreeing where he is disqualified on any other ground. He cannot be heard now to say that known disqualified jurors sat on the panel. Cooper v. State, 27 Okla. Cr. 278, 226 Pac. 1066; Wheatcraft v. State, 32 Okla. Cr. 379, 240 Pac. 753.

Next it is argued that the court erred in not permitting defendant to testify he had no intention of killing or harming any one and in instructing the jury that a premeditated design to kill was immaterial. It is conceded that a premeditated design to' effect death is not an element of a murder committed by one engaged in the commission of a felony. Ray v. State, 10 Okla. Cr. 403, 406, 136 Pac. 980; Carle v. State, 34 Okla. Cr. 24, 244 Pac. 833; Lovett v. State, 51 Okla. Cr. 324, 1 Pac. (2d) 800. The refusal to permit defendant to testify to his state of mind is based on the following, excerpts from the record:

“Q. Was there ever discussed between you and Higgins, between you and Walt, or the three of you together, any plan to shoot or to kill or wound anybody there? Mr. Cunningham: We object — • A. (Interrupting) No, sir. Mr. Cunningham: — to that, as incompetent, irrelevant, and immaterial. The Court: Objection sustained. Mr. Cobb: Exception. Mr. Marshall: In behalf of the defendant, at this time we offer to show that at no' time during the entire course of the transaction, nor before, had anything ever been said or any discussion had or any plan reached between the defendant and the said Higgins by which anyone was to be hurt, or anyone was to be killed, or any violence involving the usage of firearms perpetrated. Mr. Cunningham: To' which we object as being incompetent, irrelevant and immaterial. The Court: Objection sustained and the offer is denied. By Mr. Cobb: Q. Were you scared at the time? A. Yes, sir. Mr. Cunningham: We object to that, as incompetent, irrelevant and immaterial. The Court: Objection sustained. Mr. Marshall: Exception. Mr. Cobb: Q. Were you excited at the time? Mr. Cunningham: We object to that. It doesn’t make any difference whether he was scared or excited or not. The Court: Objection sustained. Mr. Cobb: Touching his ability to answer who fired the first shot. The Court: Objection sustained. Mr. Marshall: Exception. Mr. Marshall: The defendant offers to prove at this time, by himself as a witness, that on the occasion described in the last few preceding, questions and answers, that the defendant was excited and was frightened, and that he did not know then and does not know now whether or not he ever fired the gun which he had; that to the best of his recollection and memory, he did not. The Court: The offer is denied. * *

The first part of these questions and answers might well have been excluded as a repetition since the witness had just testified to the forming of the plan to rob Butler and to the circumstances of the robbery, thus:

“Q. You stated you went to Butler’s garage. What did you do there? A. Well, we got in the garage and stayed behind the car until they came in. When they came in, we walked out from behind the car. When she got out of the car, I taken hold of her. Higgins went around by the side of me and there was shots fired. I don’t know how many, and when I seen Higgins fall, I turned and ran. Q. What was the plan, if you had any, between you, Higgins and Walt, that you discussed and talked over before you went in there, as to how you would conduct or pull off the robbery, what each of you was to do? A. I was told — I didn’t know whether Mrs. Butler would be along or not — if sbe was, I was to take her and Walter was to get — Mr. Higgins was to get' Mr. Butler. Q. Was there anything said about shooting anybody or killing anybody? A. No, sir. Q. What kind of gun did you have? A. .45. Q. What kind of gun did Higgins have? A. A shot-gun.”

And he further testified he could not say if he fired the first shot, that he was scared at the time, and, if he fired the revolver, he did not know anything about it and did not examine later to see if there was an empty cartridge in the gun.

Murder is defined by the third subdivision of section 2216, St. 1931, as follows:

“Third. When perpetrated without any design to effect death by a person engaged in the commission of any felony.”

It is not disputed defendant and Higgins were acting together in the commission of a felony, and that in law the act and deed of Higgins was the act and deed of defendant. Counsel states the evidence and offer of proof excluded was admissible only in mitigation and did not affect the question of defendant’s guilt or innocence of murder. By the very terms of the statute, the killing of a human being by another while engaged in a felony is murder although done without any design to effect death. The courts construing similar statutes hold that a homicide under such.circumstances although accidental is none the less murder. Com. v. Lessner, 274 Pa. 108, 118 A. 24; Com. v. McManus, 282 Pa. 25, 127 A. 316; People v. Milton, 145 Cal. 169, 78 Pac. 549; People v. Raber, 168 Cal. 316, 143 Pac. 317.

It may be well to inquire what mitigates a murder by one engaged in the commission of a robbery. If Higgins were on trial, what would be the mitigation for him to say that “I fired this shotgun into the car at short range and killed this boy but I did not intend to kill him” in the face of a statute which defines such homicide to be murder although without design to effect death. It is quite likely defendant and his companions would have preferred to perpetrate the robbery without killing any one, but the testimony even of the defendant clearly shows they were prepared to kill on the slightest apprehension of resistance. Such a crime could be perpetrated only by one with an abandoned and malignant heart, and the evidence offered does not in any degree mitigate the crime.'

The second part of this assignment complains of instruction 10. This instruction does not attempt to limit the application of the evidence for any purpose, but is a definition and explanation to the jury of murder as defined in subdivision 3 of section 2216, St. 1931. In substance it tells the jury that, when a homicide is perpetrated by a person engaged in the commission of a felony, although without a premeditated design to effect the death of any particular individual, on the trial the question as to whether or not defendant had a premeditated design to kill the deceased is immaterial, that under such circumstances the design is presumed as a matter of law from the fact of the killing, and, if they find from the evidence beyond a reasonable doubt that, defendant acting with one Elmer Higgins, and while so acting said Higgins shot and killed Raymond Butler, defendant in that event would be guilty of murder. The court was simply attempting to tell the jury that, where two persons acted together in the commission of a robbery, and one of them, although without a premeditated design to kill, did shoot and kill any person, the other would be guilty of murder, and that intent to kill was not an ingredient of the offense. Possibly the law might have been better stated, but we perceive no material error in it. Counsel, however, contend the instruction does not go> far enough. That it is correct SO' far as it goes, but is incomplete, and the court should have added that a premeditated design was immaterial and not to be considered by the jury, adding the words as “affecting the guilt or innocence of the defendant.” The exception to the instruction is general. Counsel did not ask for any additional or a more specific instruction covering the matter which it is here complained should have been embodied in it. It was not suggested to the court that this instruction might be construed as limiting the application of the evidence as mitigation. We think the instruction does not have the effect here argued and was not misleading. If counsel thought so, they should have made a request for a more specific instruction. Fitzsimmons v. State, 14 Okla. Cr. 80, 166 Pac. 453; Merriott v. State, 18 Okla. Cr. 247, 194 Pac. 263. Upon a careful consideration of the whole case, we see no reason why this court should interfere with the judgment.

The case is affirmed.

The original time for the execution having passed, owing to the pendency of this appeal, it is considered, ordered, and adjudged by this court that the judgment and sentence of the district court of Creek county be carried out by the electrocution of the defendant on Friday, January 6, 1933.

DAYENPOET, P. J., and CHAPPELL, J., concur.


author: DAVENPORT, P. J.

text:
    GROVER WELLS v. STATE.
    No. A-8299.
    Nov. 18, 1932.
    (21 Pac. [2d] 511.)
    Joe S. Eaton, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was by information charged with the crime of murder, tried, convicted of manslaughter in the first degree, and sentenced to serve a term of 15 years in the penitentiary and appeals.

The testimony on behalf of the state in substance is that a dance was being given at the home of Bud Tuggle, in the Seminole oil field, in Seminole county, near the little town of Webber, or Snomac; the defendant and many others attended the dance; while the dance was going on a plank in the floor gave way and Alf Robertson got hold of the piece of broken plank and was making an effort to place the plank back in place when the owner of the house came up and told him not to tear up his floor, that he did not have the money to repair it, and Robertson replied he had; an argument took place, and defendant was nearby and claims that Robertson used some vulgar language and he called to him and told him there were ladies present and not to use the language; Bobertson struck at him and they engaged in a fight; the wife of the defendant and the wife of Bobertson got hold of Bobertson, and about that time the deceased, E. M. (Shorty) Mensay, came up to where Bobertson and the defendant were fighting and said something, to the boys; Mensay and defendant then engaged in a fight, and the state’s witnesses say that Mensay hit the defendant with his fist. When the fight was over, the defendant had inflicted fatal knife wounds on the body of the deceased, the result of which caused the death of the deceased.

The testimony on behalf of the defendant is substantially the same as that of the state up to the time the fight started between Bobertson and the defendant; when the defendant and deceased began to fight, defendant contends that the deceased struck him once or twice with his fists and was given a pair of knucks by one of the parties in the room, and that the deceased struck him with the knucks; defendant urges he cut the deceased to save himself from receiving great bodily harm at the hands of the deceased.

One or two witnesses testifying for the defendant claim they saw something that looked like knucks. There is a direct conflict in the testimony as to whether or not the deceased struck the defendant with knucks. It is admitted that the defendant cut the deceased with his knife, and that the deceased died from the effects of the knife wounds.

Several errors have been assigned by the defendant, but the only ones argued by him are that the verdict is not supported by sufficient evidence and is contrary to .law; that the said verdict is contrary to both the law and the evidence; and that the punishment inflicted by the jury is unreasonable and excessive.

The question of the sufficiency of the evidence is a question for the jury. In this case there is a direct conflict in the evidence as to whether or not the defendant was struck by the deceased with knucks before the defendant began cutting the deceased. The record is clear as to the fact that the defendant was willing' and engaged in a fight with Alf Robertson, and when the deceased came up and said something, turned to- the deceased and made a statement indicating his willingness to engage in a fight with him. The deceased then struck the defendant, and when the fight was over between the deceased and defendant, defendant had inflicted fatal wounds upon the deceased. There is no evidence in the record that in any way whatever tends to support the question of the defendant’s plea of self-defense. The question of the sufficiency of the evidence is a question for the jury, and the jury decided that adversely to the defendant.

After a careful study of the record we feel that the facts in this case are such that this court would not be justified in modifying the sentence imposed. The defendant was accorded a fair and impartial trial. The court properly instructed the jury as to the law applicable to the facts. Finding no' errors in the record, the case is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


author: PER CURIAM.

text:
    JOHN BIRD v. STATE.
    No. A-8404.
    Nov. 18, 1932.
    (18 Pac. [2d] 1118.)

      Eaton & Eaton, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith O. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called the defendant, was convicted of the crime of passing a bogus check, and sentenced to- serve a term of three years and six months in the state penitentiary, and to pay the cost of the execution, and appeals.

The record in this case was filed in this court on May 7, 1932; no brief has been filed in support of the defendant’s assignment of errors. A careful examination of the record discloses no fundamental errors, and the evidence is sufficient to support the verdict of the jury.

The case is therefore affirmed.


author: CHAPPELL, J.

text:
    OTTIS BYRUM et al. v. STATE.
    No. A-8399.
    Oct. 27, 1932.
    Rehearing Denied Nov. 18, 1932.
    (15 Pac. [2d] 1096.)
    C. T. Lane, Jim Hatcher, Ben P. Williams, Homer Cowan, and T. R. Benedum, for plaintiffs in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiffs in error, hereinafter called defendants, were convicted in the district court of Grady county of the crime of assault with a dangerous weapon, and their punishment fixed by the jury at imprisonment in the state penitentiary for a period of three years.

The évidence of the state was that the defendants resided at Maud, Okla.; that on the evening of the shooting a long-distance call was placed from Maud to Tuttle asking for Homer Cherry; that, as soon as the parties were told that he was in Tuttle, they hung up the receiver; that a telephone call was put in by defendant, Byrum, from the home of one Sparkman, in Maud; that Byrum admitted that he put in this call, but claimed it was for another party; that defendants the same night, with masks over their faces, went to the home of Cherry; that, when Cherry opened the door in answer to a call of one of the defendants, they covered him with guns, ordered him to “stick ’em up,” and pushed their way into the room, and commanded him to turn his back and walk toward the light; that, as he did so, they called Mrs. Cherry and ordered her to come out; that she went into another room, obtained a pistol, came back to the door into this room, and said, “.Stick ’em up yourselves”; that one of the defendants fired a shot which struck Mrs. Cherry in the right breast, the bullet lodging near the back; that immediately the lights went out and several other shots were fired.

Mrs. Cherry testified positively that she knew the defendants, and that they were the ones who came into the house and shot her. Cherry said he thought the defendants were the parties; that, as the parties fled from the house, they made some tracks. After they were arrested, the sheriff took one of Byrum’s shoes and testified that it exactly fitted the tracks made by one of the parties as they fled from the house.

The defense was an alibi. Defendants contend that this evidence is insufficient to support the verdict of the jury.

The evidence of the state and that of the defendants is in direct conflict. This conflict was for the jury, and their verdict will not be disturbed where there is any competent evidence supporting the same. There is sufficient evidence in the record to support the verdict of the jury.

It is also contended that the trial court erred in admitting certain irrelevant, incompetent, and immaterial evidence. These particular assignments of error relate to questions asked and answers given by the defendant, Byrum, on his cross-examination. The first questions complained of are those in which counsel for the state asked Byrum how many times he had pleaded guilty to vagrancy in the courts of his county. It appears from the record that defendant attempted to evade making a direct answer to this question, but counsel pressed him by repetition thereof.

It is contended that the state could only ask Byrum, to affect his credibility, whether or not he had been convicted of a felony or of some crime involving moral turpitude. In Strickland v. State, 46 Okla. Cr. 190, 284 Pac. 651, 653, this court said:

“The question presented is the right of the state to show that the defendant had been convicted of a crime under the terms of a city ordinance, where the same was an offense under the state law. This court has repeatedly held that where the defendant has been convicted of a crime that fact may be shown. Davis v. State, 15 Okla. Cr. 386, 177 Pac. 621; Whitlow v. State, 24 Okla. Cr. 307, 218 Pac. 162; Smith v. State, 34 Okla. Cr. 396, 246 Pac. 1104.
“Under the sections of the statutes above quoted, it is only necessary to show that the defendant has been convicted of a crime. It would not be proper to introduce proof of petty offenses defined by city ordinance, such as running stop lines, overparking, and the like, which are not made crimes by state law, to discredit the witness. It is the taint of conviction for crime which discredits the witness, and not the tribunal in which the conviction was had. Keeping a disorderly house is a crime under the state law, and a conviction for such crime may be shown irrespective of what tribunal the same was had in, for the purpose of discrediting the witness.”

Vagrancy being a crime under our state law, it was proper for the state to inquire of the defendant, for the purpose of affecting his credibility as a witness, whether he had been convicted or pleaded guilty in any of the courts of his county to such crime.

Complaint is also made because counsel for the state asked defendant, Byrum, “Did you plead guilty and pay a fine for whipping your wife?” to which Byrum answered, “No, sir; I did not.”

No objection was made to this question. Counsel evidently preferred to have the benefit of defendant’s answer rather than object to the question. The answer was favorable to the defendant and of course he was not prejudiced thereby, and if he was not prejudiced by the answer, he could not be prejudiced by the question itself.

Counsel for the state also asked defendant how many times he had pleaded guilty to a drunk charge in the city court, at Maud, to which he answered he had never pleaded guilty and had never paid a fine, to which counsel for defendant said, “We object now.” The record discloses no ruling of the court and no further questions on this subject.

Counsel for the state also asked defendant if he did not come in one morning about daylight, in a car, and if young Hembree had not found a mask in this car and “asked you where you had been and what you had been doing, and you told him you had been out hijacking all night,” to which defendant answered, “I certainly did not.” No objection was made to this question; counsel for defendant evidently preferring to get the answer rather than object to' the question.

Counsel for the state also asked defendant if he had not taken a doctor’s car from Ada to Kilgore, Tex., and if he had not been brought back to1 Ada by the sheriff of Pontotoc county, to which the defendant answered he had not. No objection was made to these questions by counsel for defendant, but the court ruled this evidence out, and told counsel for the state he might ask if the defendant had been convicted.

It appears from the record that, when defendants’ counsel objected to any questions along these lines, the court promptly sustained it, and counsel for the state did not pursue it any further.

Much of this examination was improper, but, before this court can consider it, counsel must object and get a ruling of the court thereon. If counsel malee no objections in the lower court, they cannot object in this court. Gritts v. State, 6 Okla. Cr. 534, 118 Pac. 673, 120 Pac. 669; Hunter v. State, 10 Okla. Cr. 119, 134 Pac. 1134, L. R. A. 1915A, 564, Ann. Cas. 1916A, 612; Meiggs v. State, 16 Okla. Cr. 557, 185 Pac. 450.

It is next contended that the court erred in admitting certain incompetent evidence in connection with the examination of the manager of the Southwestern Bell Telephone Company at Chickasha.

In this connection the record discloses that Hildebrand was used as a witness for the state to identify certain exhibits in the office of the Southwestern Bell Telephone Company at Tuttle as a part of their permanent record made in the course of the business of that office. This evidence was admissible under the holding of this court in Boone v. State, 15 Okla. Cr. 29, 175 Pac. 61.

It is also' contended by defendants that the court erred in excluding from the consideration of the jury the petition of the defendant, Byrnm, in his damage suit he had pending in the district court of Grady county against Cherry.

The purpose of this offer was to get before the jury the grounds upon which defendant, Byrum, based his damage suit. The introduction of this petition did not tend to' prove the truthfulness of the allegations thereof, and was purely hearsay. The petition itself could not have been introduced in evidence even in the damage suit to prove the truthfulness of its allegations, and certainly could not be introduced as a part of the defense in a criminal case involving the same parties. Spear v. State, 7 Okla. Cr. 379, 123 Pac. 852.

No fundamental error appearing, and the evidence being sufficient to support the verdict of the jury, the cause is affirmed.

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


text:
    EARL QUINN v. STATE.
    No. A-8338.
    Nov. 29, 1932.
    (16 Pac. [2d] 591.)

      James H. Mathers and James C. Mathers, for plaintiff in error.
    J. Berry King, Atty. Gen., F. M. Dudley, Asst. Atty. Gen., Bruce Potter, Co. Atty., and Ralph G. Harder, Asst. Co. Atty., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Kay county of murder in the killing of Jessie Griffith, and his punishment fixed by the jury at death.

The record consists of four volumes, containing about 2,500 pages. In addition to1 oral argument, the state and defendant filed voluminous briefs.

The evidence of the state was that the Griffith sisters, Jessie and Zexia, left their home in Blackwell at about 5 o’clock on the morning of December 28, 1930, in an automobile, driving to Norman; that their dead bodies were found at about 9 o’clock, a. m. of that day, a mile and a half southeast of Tonkawa; that Jessie had been shot twice in the head and raped; that Zexia had been shot three times in the head, but her person not violated; that their automobile was found about fifteen miles southeast of Tonkawa, near Ceres; that there was blood upon a rear fender and the running board, but no blood in the car; that they had apparently been robbed of whatever money they possessed, except a small amount of change; that defendant, under the assumed name of Earl Howard, with his wife, was living in a rooming house in Tonkawa; that on the night before the murder he was in Tonkawa and out in the country to a dance and back in Tonkawa and out on the road around Tonkawa in his car until about 5 o’clock in the morning, armed with a small pistol, and in an intoxicated condition; that about a week previous, defendant’s wife had purchased six .32 caliber shells for a pistol, and that five similar shells were found near the bodies of deceased; that on the 28th day of November, 1930, which was Thanksgiving Day, and about 30 days prior to' the commission of the offense for which defendant was on trial, he stopped the car of Myrtle Patton, compelled her to go with him, and committed rape upon her at or near the place where the bodies of the Griffith sisters were found; that at about 3:30 or á o’clock on the morning of the killing, defendant stopped a young couple on the road south of Tonkawa and compelled them to go some distance with him; thereupon, learning, who they were, he apologized and permitted them to leave; that,' after the commission of the crime, he disappeared and was not apprehended until several months thereafter.

The evidence of the state tending in any wise to connect the defendant with the commission of the offense was wholly circumstantial.

The defendant did not take the witness stand. The defense was an alibi.

He complains of ninety-five specific errors, many of which are without any merit, and others are not supported by the record.

Defendant contends that the court erred in overruling his application for a change of venue.

He filed a verified application for a change of venue, and alleged: “That the minds of the inhabitants of Kay county, in which, the case was then pending, were so biased and prejudiced against him that neither a fair and impartial jury could be secured nor a fair and impartial trial had in the county,” because:

(1) All the newspapers of Kay county, including those of Blackwell, Ponca City, Tonkawa, Newkirk, and the daily papers of the state had published inflammatory, prejudicial, and untruthful statements against him, giving the details of the horrible crime, pictures of the deceased ladies and of defendant, with accounts of his fleeing and hiding; that there was no doubt of his gnilt, and that the death penalty would be demanded; that all of the newspapers had a wide circulation in said county, and were generally read by the people who would compose the jury in the trial of said cause, and that by reason thereof the guilt of defendant was firmly fixed in the minds of the people constituting the jury who would try him, and would render the securing of a fair and impartial trial impossible.

(2) That the people of Kay county were so maddened and incensed over the commission of the crime that talk generally throughout the county was that defendant ought to be lynched, and that had he been apprehended at the time of the killing or soon thereafter he would have been mobbed, as was threatened, and that feeling against him still continued throughout the county to such an extent that during the preliminary trial held June 23 and 24, 1931, the above-mentioned newspapers printed and circulated the story that a mob was likely to' take defendant and lynch him; that the courthouse was guarded to prevent mob violence; and that it was necessary to guard him heavily to keep him from being killed by the mob.

(3) That at the time of the preliminary trial the crowds were so great and the curiosity of probable jurors was SO' much aroused that it was necessary to lock the courtroom doors against the crowd; that more than a thousand people attempted to attend the preliminary trial and hear the testimony, and that for hours before the courtroom doors were opened they jammed the corridors, stairways, and yard of the courthouse, awaiting an opportunity to get into the courtroom, and that the court was compelled to and did keep armed guards in the courtroom during the preliminary trial to prevent any attempt at mob violence.

(á) That immediately after the commission of the offense and during the time of defendant’s absence, and following his arrest and up to the time of the making of the application for a change of venue, the county attorney, with other officers, had talked to many persons in said county about his guilt, and had given out to the newspapers untrue, inflammatory, and prejudicial statements against him, alleging his guilt and promising the infliction of the death penalty, and that all of such untrue, inflammatory, and prejudicial statements were published by word of mouth and in the newspapers aforesaid, and were widely read, commented on, and believed by the people of Kay county, who usually compose juries in such cases.

(5) That the deceased had lived in Kay county for a number of years and had a large circle of friends, who had circulated throughout the county reports that defendant was guilty; that he was practically a stranger in the county, without friends or influence, and that by reason of all of the aforesaid, the minds of the people of Kay county, who would usually compose a jury for his trial, were so inflamed, biased, and prejudiced against him that it was impossible for Mm to secure a fair and impartial trial.

Attached to the application is a large number of newspaper articles showing the truth of the allegations of wide publication of matters prejudicial to him. The application was supported by affidavits of 29 citizens of Kay county, to the effect that a fair and impartial jury could not be secured and a fair and impartial trial could not be had in Kay county; some of the affidavits going into particular detail as to the discussion of defendant’s guilt by the citizens of the county, the publication of the newspaper articles referred to, and the general expression of opinion of defendant’s guilt.

The state resisted the application, supporting the same by the affidavits of 143 citizens of the county, all to the effect that they had read newspaper articles relative to the crime, had heard the matter of the untimely death of the Griffith sisters and defendant’s connection with the same discussed generally by the citizens of the county, who formed or might form juries of the county, and that they did not believe any bias or prejudice existed against defendant in the county that would prevent him from having a fair and impartial trial.

The granting of a change of venue is by statute made discretionary with the court. This court will not reverse the ruling of the trial court denying an application for change of venue unless it is made clearly to appear that there has been such an abuse of discretion as to amount practically to a denial of justice. Starr v. State, 5 Okla. Cr. 440, 115 Pac. 356; Edwards v. State, 9 Okla. Cr. 306, 131 Pac. 956, 44 L. R. A. (N. S.) 701; Sayers v. State, 10 Okla. Cr. 233, 135 Pac. 1073; Maddox v. State, 12 Okla. Cr. 462, 158 Pac. 883; Emert v. State, 17 Okla. Cr. 406, 189 Pac. 195; Williams v. State, 19 Okla. Cr. 307, 199 Pac. 400; Johnson v. State, 20 Okla. Cr. 196, 201 Pac. 1006; Warren v. State, 24 Okla. Cr. 6, 215 Pac. 635; Kirby v. State, 25 Okla. Cr. 330, 220 Pac. 74, 33 A. L. R. 1212; Doublehead v. State, 27 Okla. Cr. 375, 228 Pac. 170; Davis v. State, 53 Okla. Cr. 411, 12 Pac. (2d) 555.

The question is: Does defendant’s case fall within the exception to the general rule?

In Bishop’s New Criminal Procedure, Yol. 1, page 52, it is said:

“The discretion is judicial, not personal in the individual judge. The course of the courts in our states differs as to reviewing, in a higher court, a judicial discretion exercised in a lower. There are states in which the higher tribunal will rarely or never interfere in this matter of changing the venue; but the better and more common doctrine is, that the decision of the lower court will be corrected in extreme cases of abuse, and in no other.”

In Starr v. State, 5 Okla. Cr. 440, 115 Pac. 356, 363, this court said:

“By ‘abuse of discretion’ is meant a clearly erroneous conclusion and judgment' — one that is clearly against the logic and effect of such facts as are presented in support of the application, or against the reasonable and probable deductions to be drawn' from the facts disclosed upon the hearing.”

This court in'numerous cases has said that:

“It is not an abuse of discretion to deny a change of venue where the subsequent proceedings show that there was no difficulty in securing a fair and impartial trial.” Warren v. State, 24 Okla. Cr. 6, 215 Pac. 635; Huffman v. State, 28 Okla. Cr. 296, 230 Pac. 272; Dodson v. State, 38 Okla. Cr. 85, 242 Pac. 578.

In People v. Kromphold, 172 Cal. 512, 157 Pac. 599, that court said:

“Under the terms of Pen. Code §§ 1033, 1035, on application for change of venue because a fair trial cannot be had in the county, the proceedings in the impanelment of the jury, in so far as they throw light upon that question, may be taken into consideration.”

The record in the case at bar discloses that 25 prospective jurors were excused by the court for cause; that six jurors were peremptorily challenged by the state, and nine by the defendant; that after all the peremptory challenges had been exhausted, additional jurors were called into the box; one in particular in examination on his voir dire said, “I just formed an opinion that if it was such as they published defendant would have a hard time proving himself innocent”; that he still had the opinion and that it would require at least some evidence to be introduced to remove that opinion.

Defendant challenged this juror for cause, and the same was denied by the court. Defendant challenged for cause another juror whose answers were such that the challenge should have been sustained. Thereupon defendant requested the court to grant him additional peremptory challenges, which the court refused.

In addition to all of this, certain questions asked by jurors during the trial and the question asked the trial-judge, after the cause had been submitted to them, as to which would be the most severe punishment, life imprisonment or death, all tend to- support defendant’s contention that he could not and did not have a fair and impartial trial.

Under section 2628, C. O. S. 1921, the county attorney in resisting an application for change of venue may examine the witnesses orally, in open court, for the purpose of showing that those making the affidavits in support of the change are not credible persons, and that a fair and impartial trial can be had in the county.

No oral testimony was offered; the county attorney electing to stand upon the prima facie showing made by the defendant and the counter affidavits filed by him on behalf of the state. This court will not only look to the showing made by the defendant and the counter showing by the state and to the proceedings in the impaneling of the jury, hut will also, when necessary, look behind the mere record and take notice of that which is generally known by the people of the community where the trial is had, in determining the issue of abuse of discretion in the granting or refusing of a change of venue.

The counter showing made by the state not being sufficient to overcome the prima facie case made by the defendant, it was an abuse of discretion for the trial court to refuse to grant a change.

Defendant next contends that the court erred in refusing to permit the witness Reber to make ballistic and other tests in the presence of the jury.

Reber had testified that he did not fire the pistol the state claimed defendant used in the killing, but that his testimony was based solely upon the statements of the assistant county attorney and others that one of the bullets presented to him caused the death of Jessie Griffith, and that the other had been fired from the pistol then in evidence. At the conclusion of his testimony, the witness requested the court for the privilege of making the experiment himself, and this request was agreed to by the state and defendant, but refused by the court.

It is always competent to make tests in the presence of the jury. 17 Cyc. 294; 16 Corpus Juris, 810; 10 R. C. L. 1000; 16 R. C. L. 299.

Evidence of experiments made out of court and not in the presence of the jury is admissible upon the same principle that the experiments themselves may be conducted in the jury’s presence. Irby v. State, 18 Okla. Cr. 671, 197 Pac. 526.

When evidence of experiments is sought to be introduced, it must be shown that the experiments were made under like conditions, on like material, with similar apparatus and under similar circumstances, fairly and honestly made, and they must be testified to by competent persons having expert knowledge thereof. Gibbons v. Territory, 5 Okla. Cr. 213, 115 Pac. 129, 130, 10 R. C. L. 1002.

While the matter of permitting experiments to be made in the presence of the jury, or evidence introduced of experiments made out of the presence of the jury, is largely discretionary with the trial court, yet such discretion may be abused.

The only possible reason for refusing this request by the court would be the saving of time and expense. Trial courts are to be commended for speeding up trials, but human life is too precious and the scales of justice swing sometimes upon too' close a balance to warrant such refusal.

The witness, the state, and the defendant having requested permission of the court for the witness to conduct the experiments in or out of the presence of the jury, and no good cause appearing in the record why such request was not granted, it was error for the court to refuse it.

Defendant next contends that the court erred in refusing to direct the exhumation of the bodies, that the bullets which caused the deaths might be brought into court and ballistic tests, made by competent persons to determine if the gun claimed to be owned and used by defendant was the one which fired the bullets that killed deceased.

If the ballistic experts with bullets taken from the bodies of the deceased and with the gun claimed to have been owned and used by defendant in the killing conducted experiments in or out of the presence of the jury which shoAved that the fatal and test bullets were fired from the same gun, and that the gun belonged to the defendant, it would furnish extremely important evidence tending, to establish the guilt of defendant. On the other hand, if such test disclosed that the bullets causing the death of deceased were not fired from the pistol claimed by the state to be owned and used by defendant, then the case would be greatly weakened. The state made no objection to this request, and it should have been granted in the interest of truth and justice.

Defendant makes some complaint about certain newspapers found in the jury room during the progress of the trial.

Upon his motion for a mistrial, the court conducted a hearing where it was admitted that some of the newspapers found in the jury room had been purchased by defendant’s counsel and upon their direction delivered to the jurors, while others had been furnished to the jury by the officers of the court. Since defendant was responsible for part of the newspapers reaching the jury room, he Avill not be heard to complain thereat, although newspapers carrying accounts of the trial have no place in the jury room. At another trial of this case the judge should take extreme precautions to see that no newspaper containing any account of the trial reaches the jury.

An examination of the record, containing copies of the newspapers complained of, discloses that the county attorney and counsel for defendant tried their case in the newspapers and by word of mouth to the public, before a jury was empaneled.

The reporters, eager for sensational news, plied counsel with numerous questions and quoted them as giving interviews about what they expected to prove, all of which poisoned the minds of prospective jurors and helped prevent the securing of an impartial trial.

It is not the business either of the state or defendant to convince the public of the guilt or innocence of a person charged with crime. The duty of the state is to present its evidence to a duly constituted jury, and that of defendant to present his evidence to the jury, leaving the issue to1 be settled by them and not by public opinion.

Finally, defendant contends that the court erred in admitting the testimony of the witness, Myrtle Patton, as to the rape claimed to have been committed upon her by him about 30 days prior to the date of the crime in the case at bar.

Over defendant’s objection, the court permitted Mrs. Patton to testify that on the 28th day of November, 1930, the same being Thanksgiving Day, early in the morning she was driving from Blackwell to Muskogee; that a short distance south of Tonkawa, her car was crowded into a ditch by a man driving a Buick coupe; that he forced her to get into his car and took her off on a side road some distance away, where, under threat of killing her, she submitted, and he had sexual intercourse with her; that he brought her back to her car and she proceeded on her way to Muskogee; that she made no complaint to any public officer, and never told her father or husband of the occurrence, nor said anything about it to any person until she read of the killing of the Griffith sisters and saw defendant’s picture in the newspapers. The county attorney told the witness to look about the courtroom and see if that man was present; she answered, “Yes, sir.” Without giving her an opportunity to pick the man out of the crowd, the county attorney asked her if defendant was the man who committed the rape, and she answered, “Yes, sir.”

16 Corpus Juris, at page 586, states the rule:

“The general rule is that, on a prosecution for a particular crime, evidence which in any manner shows or tends to show that accused has committed another crime wholly independent of that for which he is on trial, even though it is a crime of the same sort, is irrelevant and inadmissible. The rule extends to the accusation of another crime, as well as to the evidence of its actual commission.”

The general rule has been followed by this court in numerous cases. Smith v. State, 5 Okla. Cr. 67, 113 Pac. 204; Proctor v. State, 8 Okla. Cr. 537, 129 Pac. 77; Wisdom v. State, 18 Okla. Cr. 118, 193 Pac. 1003; Alexander v. State, 24 Okla. Cr. 436, 218 Pac. 543.

To the general rule that evidence of separate and independent crimes is inadmissible to prove the guilt of a person on trial for a criminal offense, there are several well-recognized exceptions. The general rule does not apply when the other offense (1) is a part of the res gestae, Tempy v. State, 9 Okla. Cr. 446, 132 Pac. 383; Littrell v. State, 22 Okla. Cr. 1, 209 Pac. 184; Austin v. State, 28 Okla. Cr. 73, 228 Pac. 1113; Carmichael v. State, 44 Okla. Cr. 160, 279 Pac. 515; (2) or shows a scheme of criminal action, Carter v. State, 6 Okla. Cr. 232, 118 Pac. 264; State v. Rule, 11 Okla. Cr. 237, 144 Pac. 807; Glaze v. State, 13 Okla. Cr. 431, 165 Pac. 211; Hollingshead v. State, 21 Okla. Cr. 315, 207 Pac. 108; Wilson v. State, 28 Okla. Cr. 102, 228 Pac. 1108; O’Quin v. State, 30 Okla. Cr. 87, 235 Pac. 247, 248; Jackson v. State, 42 Okla. Cr. 86, 274 Pac. 696; (3) or shows intent, Dunscombe v. State, 19 Okla. Cr. 54, 197 Pac. 1073; Littrell v. State, 21 Okla. Cr. 467, 208 Pac. 1048; Rambo v. State, 32 Okla. Cr. 229, 240 Pac. 751; Jeffries v. State, 37 Okla. Cr. 110, 257 Pac. 333; (4) or proves identity of accused, Miller v. State, 13 Okla. Cr. 176, 163 Pac. 131, L. R. A. 1917D, 383; Davis v. State, 30 Okla. Cr. 61, 234 Pac. 787; (5) or shows motive, Carter v. State, 35 Okla. Cr. 421, 250 Pac. 807; Fray v. State, 46 Okla. Cr. 260, 285 Pac. 142; Ditmore v. State, 49 Okla. Cr. 228, 293 Pac. 581; Cole v. State, 50 Okla. Cr. 399, 298 Pac. 892.

Upon the general subject of inadmissibility of this character of evidence, see Boyd v. U. S., 142 U. S. 450, 12 S. Ct. 292, 35 L. Ed. 1077; Hall v. U. S., 150 U. S. 76, 14 S. Ct. 22, 37 L. Ed. 1003; Smith v. U. S. (C. C. A. 9) 10 F. (2d) 787.

While the federal authorities are not conclusive on this court, they are persuasive.

The state in its brief recognizes the general rule and the exceptions set forth above, but argues that this evidence was admissible for the purpose of showing identity and motive.

Even if defendant had committed rape upon Mrs. Patton 30 days prior to the murder of Jessie Griffith, that would not tend to show a plan or scheme; nor would it serve to identify the defendant in the commission of the murder 30 days thereafter. We have been unable to find any cases where evidence of such widely separated and dissimilar crimes has been held to be competent in the trial of a case of this character.

It is earnestly urged that the instruction of the court, that they could not convict because of the rape, but must find the defendant guilty of the crime charged beyond a reasonable doubt, safeguards the rights of the defendant. With this contention we cannot agree. Mrs. Patton was called as a last witness for the state in its case in chief. All other evidence against the defendant was climaxed with the details of this horrible crime. The last impression on the jury as the state closed its case in chief was of a fiend committing the brutal crime of rape under the harrowing circumstances as detailed by the witness. Not content with climaxing their case Avith this story, the county attorney pointed the defendant out to the witness and asked her if he was the man who committed the rape. This of itself was unfair and improper examination. The Avitness should have been permitted to select the man she claimed raped her, instead of having the county attorney aid her in pointing him out.

The evidence of Mrs. Patton was improper and highly prejudicial. No instruction of the court could take this last impression from the minds of the jury. The admission of this evidence would have required a reversal of the case, even though there were no other errors in the record.

A dastardly crime has been committed. It is the duty of the officers of the law and the court to see that the party guilty of this offense is brought to trial and justly punished. But this will not justify the obtaining of a verdict of guilty through an unfair trial, or incompetent evidence.

A careful examination of the whole record discloses that the defendant did not have that fair and impartial trial guaranteed to him by the Constitution and laws of the state.

For the reasons stated, the cause is reversed and remanded, with directions to the court to grant a change of venue, and that the court to which the case is transferred proceed with a trial of the case in accordance with the opinion.

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


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    In re OPINION OF THE JUDGES. In re IGNACIO GOMEZ.
    No. A-8498.
    Dec. 3, 1932.
    (16 Pac. [2d] 890.)
   DAVENPORT, P. J.

From an examination of the record we find no appeal has been taken in said case, and that the time for appeal has expired. The proposition then presented is, Has there been an observance of all formality of law essential to the taking of life; that is, has the trial, conviction, and sentence been in accordance with the law of the land?

A careful examination of the record discloses that a complaint was filed before R. M. Parkhurst, county judge of Kay county, Okla., charging the defendant with robbery with firearms; that a preliminary examination was had, and Ignacio Gomez was held to answer said charge in the district court of Kay county; that an information based on said proceedings was filed in the district court of Kay county, sufficiently and correctly charging the crime of robbery with firearms; the defendant was arraigned on said information in the district court and counsel appointed for him, and that he had the benefit of counsel. The defendant, on the 29th day of December, 1931, entered his plea of guilty to the charge of robbery with firearms, and the court, on the 29th day of December, 1931, sentenced defendant, and entered judgment assessing the death penalty.

The defendant detailed the circumstances under which he robbed J. A. Armstrong, and shot him. From the wounds inflicted by the shooting by the defendant Armstrong died. The defendant stated the reason he shot Armstrong was- he thought Armstrong was going to hit him with something. After the robbery and shooting, he took the car belonging to Armstrong, and drove to Tulsa, where he was arrested.

This court has held that a conviction of crime may be had in three ways, either by the verdict of a jury; by finding of facts by the judge where a jury is waived (section 20, art. 7, Const.), or by a plea of guilty (Opinion of Judges, 6 Okla. Cr. 18, 115 Pac. 1028).

And, where the defendant who is informed against for robbery with firearms pleads guilty, the court has authority to pronounce judgment and sentence according to law, as fixed by section 2216, St. 1931.

The record discloses Ignacio- Gomez is guilty of robbery with firearms; that defendant robbed J. A. Armstrong with firearms, and in so doing shot Armstrong, death resulting from the effects of the wounds; that the court observed all the formality of the law essential to the taking of human life.

EDWARDS and CHAPPELL, JJ., concur.


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    TOM CARROLL v. STATE.
    No. A-8358.
    Dec. 3, 1932.
    (16 Pac. [2d] 891.)

      A. C. Brewster, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Mayes county of stealing domestic fowls, and was sentenced to serve a term of 18 months in the penitentiary.

The principle contention is that the court erred in refusing a requested instruction on circumstantial evidence. The requested instruction was in proper form. If the evidence for the state were fully circumstantial, the refusal of the request would be error. This rule is well settled. Bock v. State, 31 Okla. Cr. 313, 216 Pac. 612; Moore v. State, 31 Okla. Cr. 277, 216 Pac. 618. It is equally well settled that the instruction on circumstantial evidence should not be given unless the testimony for the state is wholly circumstantial. Star v. State, 9 Okla. Cr. 210, 131 Pac. 542.

The state in a large measure relied on circumstantial evidence, as is the usual case where a theft is committed in the nighttime. The subject of the larceny were stolen at the place of one Hill and were taken to the residence of one Bean, at which place the witness Mayfield resided. The testimony of this witness is not circumstantial, but is direct testimony of the asportation of the stolen property by defendant; thus:

“Q. Do you know Tom Carroll? A. Yes, sir. * * * Q. Were you waked up that night any time after you got home? A. Yes, sir. Q. Who waked you up? A. Tommy Carroll and one of the Brock Twins. * * * Q. What did they say? A. They said — they waked me up, I asked them who it was. They said Tommy Carroll and one of the Brock Twins. * * * Q. Did you go out? A. Yes, sir. Q. What else if anything did Tommy Carroll say to you? A. I asked him what did he want, he said he had some chickens. * * * A. Said he wanted to leave them there for James Manley, I asked him were they stolen he said no. * * * Q. What were they in? A. Two gunny sacks. Q. What did you do with the chickens? A. Put them in the smokehouse. * * * Q. Did you know the boys? A. I knowed Tommy Carroll and one of the Brock Twins, but I did not know which one it was. * * *”

On cross-examination this witness testified that when the chickens were discovered at his place he was arrested and he made a false explanation to the officers. Also< on cross-examination he reiterated and strengthened his testimony just quoted, but stated in substance that at the time the defendant brought the chickens to the place he did not recognize Carroll or the others by sight, but by the voice, as it was dark. This statement, however, does not render the testimony any less direct. The court did not err in refusing to instruct on circumstantial evidence.

Next it is argued the court erred in admitting incompetent evidence. This assignment is directed at various items of the testimony; one of the items, in substance, was that a wheel on defendant’s car made a track the same as one made by a car near the scene of the theft; another item that tracks of persons leading from the chicken house to the place where a ear had stopped were the same as the tracks made by shoes of one of the party. It is insisted this testimony is an opinion of the witnesses and incompetent. It is sometimes said evidence of this kind is a statement of fact as it appeared to the witness and not an opinion. As a general rule the witnesses should testify to facts and let the jury draw their conclusion from the facts as stated. This rule, however, should not be pushed to the extreme limit; it is modified by the further rule that opinions or conclusions of ordinary witnesses derived from common experience and observation of things which persons generally are capable of comprehending and understanding are admissible when the nature of the subject-matter is such that it cannot be reproduced or detailed to the jury precisely as it appeared to the witness at the time. Whether this testimony be classed as a statement of fact or an opinion, it was admissible. In re Miller’s Estate, 36 Utah, 228, 102 Pac. 996. See, also, State v. Burke, 124 Wash. 632, 215 Pac. 31; Cunningham v. State, 14 Ala. App. 1, 69 So. 982; Wilson v. State, 70 Tex. Cr. It. 340, 156 S. W. 204; Williams v. State, 78 Tex. Cr. R. 647, 182 S. W. 335.

Some other matters are discussed in the briefs, but none are of sufficient importance to require special discussion. No material error is apparent.

The case is affirmed.

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


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    In re OPINION OF THE JUDGES. In re IVORY COVINGTON.
    No. A-8497.
    Dec. 3, 1932.
    (16 Pac. [2d] 891.)
   DAVENPORT, P. J.

From an examination of the records of this court we find that no appeal has been taken in said cause, and that the time for appeal has expired. The proposition then presented is, Has there been an observance of all the formalities of law essential to the taking of human life; that is, has the trial, conviction, and sentence of death been in accordance with the law of the land? Opinion of the Judges, 3 Okla. Cr. 315, 105 Pac. 684; Id., 6 Okla. Cr. 18, 115 Pac. 1028.

Upon a careful examination of the record, we find that a preliminary complaint was filed before a justice of the peace of Choctaw county, charging defendant with murder in the killing of one Luther Williams; that defendant was arraigned on said charge and waived a preliminary examination; that an information based on such proceeding was filed in the district court of Choctaw county sufficiently and correctly charging the crime of murder; that defendant was arraigned on said information in the district court and counsel appointed for him; and that he had the benefit of counsel. The defendant, on May 9, 1932, entered a plea of guilty to the charge, and the court set May 12, 1932, as the time for passing sentence, on which date the court sentenced the defendant and entered judgment assessing the death penalty.

This court has held that a conviction of crime may be had in three ways, either by the verdict of the jury, by findings of fact by the judge where a jury is waived (section 20, art. 7, Const.), or by a plea of guilty (Opinion of Judges, 6 Okla. Cr. 18, 115 Pac. 1028), and that, where a defendant who is informed against for murder and pleads guilty, the court is authorized to pronounce judgment and sentence according to law, and as fixed by section 2216, Statute 1931.

The record discloses that Ivory Covington is guilty of murder in the killing of Luther Williams, that the killing of the said Luther Williams warrants the extreme penalty of the law, and that the formalities of law essential to the taking of human life have been observed.

EDWAEDS and CHAPPELL, JJ., concur.


text:
    MILLER TIGER v. STATE.
    No. A-8417.
    Dec. 9, 1932.
    (16 Pac. [2d] 889.)
    Clark & Jack Nichols, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of McIntosh county of manslaughter in the first degree, and was sentenced to serve a term of 10 years in the state penitentiary.

At the time charged, defendant and John Kelly, the deceased, full-blood Creek Indians, were at the home of defendant, both intoxicated and engaged in a fight. It is admitted defendant struck Kelly with his hands and feet and that Kelly’s death was caused by two fractures in the back part of the skull. His face and other parts of the body also were bruised. The information in substance charges that defendant assaulted Kelly with a certain •heavy, dangerous, blunt instrument, the kind and nature being unknown to the county attorney. No weapon was found at the scene of the homicide; defendant was wearing shoes with rubber heels.

The only contention made is that the testimony does not sustain the charge; that, while there is testimony that defendant struck Kelly with his fists and knocked him down against the stove and that some time in the fight kicked him, there is no proof of the allegation of an assault with a heavy, dangerous, blunt instrument. Defendant relies for a reversal on the case of Elliott v. State, 4 Okla. Or, 224, 111 Pac. 820, 140 Am. St. Rep. 683. It is not contested that Kelly met his death in a fight with defendant; that death was caused either by defendant striking deceased with his fist, causing him to fall and sustain the wounds from which he died, or by kicking him and causing the wounds, or by striking him with some weapon not disclosed. As to the cause of death, the physician who performed the autopsy testified deceased had been struck with some blunt instrument; that in his opinion the injuries on the face could not have been caused by a rubber-heeled shoe.

The only question then is, Is there a fatal variance between the charge and the evidence? The courts of several of the states have gone to an extreme length in holding, a variance fatal. .Some of these opinions have reversed cases on a variance on some point or some purely technical matter which by the later and better reasoned cases and the more modern rule would be brushed aside as immaterial. This court has followed the later sensible rule as stated in Woods v. State, 22 Okla. Cr. 365, 211 Pac. 519, and again asserted in Brashears et al. v. State, 38 Okla. Cr. 175, 259 Pac. 665. These later cases define a variance as an essential difference between the accusation and the proof and that a material variance arises only when there is such a difference between the proof and the charge that an acquittal of the defendant would be no bar to a further prosecution for the same offense. The charge that deceased met Ms death by wounds inflicted by a blunt instrument is sustained by the proof. It is evident that the county attorney did not at the time of filing the charge or at any subsequent time know what instrument was used. The proof very strongly indicates that deceased was knocked down and kicked in the head by defendant, which kicks caused the fractures of the skull testified to. If defendant has been acquitted under this charge, he certainly could not have been again prosecuted for causing the death of deceased in some other manner.

This being the only question argued, the case is affirmed.

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


text:
    JAMES SEALS v. STATE.
    No. A-8439.
    Dec. 9, 1932.
    (16 Pac. [2d] 885.)
    I. M. Bond, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was by information charged with mnrder, was tried and convicted of manslaughter in the first degree, and sentenced to imprisonment in the state penitentiary for eight years, and appeals.

The offense is alleged to have taken place in the town of Lindsay, November 11, 1931. Defendant is charged with killing H. F. Garten. The defendant and deceased had been friends for many years; defendant frequently visited the home of the deceased. The only direct testimony regarding the trouble is the testimony of the defendant, who in substance stated he went to the home of the deceased, late in the afternoon of November 11th, and found the deceased in the yard; he assisted him to the house, and he and the deceased drank some whisky; deceased inquired of the defendant if he had a gun, and the defendant replied he had a Winchester rifle; the deceased then gave the defendant $2 to get some whisky and asked him to bring the whisky to him and the rifle. Later in the evening the defendant returned to' the home of deceased and delivered to him two pints of whisky, and had the rifle in his hand.

The defendant further stated that after he returned to the home of deceased and set the whisky down near the bed of deceased, the deceased accused him of taking his pocketbook; defendant denied he had anything to do with the pocketbook, and deceased raised up on his bed with a pistol in his hand and indicated he was going to shoot? the defendant, and also grabbed the rifle of the defendant with his right hand; the defendant says in the scuffle the Winchester was discharged and struck the deceased, killing him. Defendant did not advise any one of the trouble, and denied to everybody but Ms wife that he knew anything about the killing. Defendant insists he had to do what he did in order to keep the deceased from shooting him, and that he believed the deceased was going to kill him at the time the gun was fired. All the facts and circumstances indicate that the trouble was an outgrowth of bad whisky.

The errors assigned by the defendant relate to the insufficiency of the evidence to sustain the judgment. The court correctly declared the law as applicable to the facts in the case, instructing the jury on murder, manslaughter in the first degree, manslaughter in the second degree, accidental homicide, and justifiable homicide. No objections are urged to the court’s instructions. The jury are the exclusive judges of the weight of the evidence and the credibility of the witnesses. The jury heard the evidence of the defendant, and by its verdict found there was sufficient testimony tO' sustain a conviction. There is no testimony in the record showing a premeditated design to do the deceased an injury.

In view of the facts disclosed by the record, we think the punishment imposed excessive, and that substantial justice requires a modification.

The judgment of the trial court is modified to five years, and as modified the judgment is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    CHARLEY DUMAS v. STATE.
    No. A-8474.
    Dec. 9, 1932.
    (16 Pac. [2d] 886.)
    Redwine & Hill, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was, upon his plea of guilty in the district court of Coal county, sentenced to death by electrocution in the state penitentiary of McAlester.

It appears from the record that on the 10th day of September, 1932, in Coal county, the offense of rape by force was committed upon the person of Edna Boardman; that defendant was a negro convict serving time in the penitentiary at McAlester, assigned to one of the road camps near Coalgate; that on the evening of the 10th of September defendant obtained a walking pass from the superintendent in charge, and violated same by going to the town of Coalgate; that immediately after the offense was committed defendant and some ten or more negroes in the road camp were arrested and taken to1 McAlester for safekeeping; that some time during the night the officers obtained from defendant a signed statement admitting his guilt; that a complaint was filed in the county court of Coal county on the 13th day of September, 1932, and a warrant issued thereon; that defendant was arrested upon such warrant and taken from the penitentiary to Coal county in the custody of the warden, assistant warden, and a number of armed guards; that there were present in the courtroom W. B. Thornsbrough, county judge, P. L. Gassaway, district judge, Wylie Snow, county attorney, R. Kay Matthews, court clerk, and Judge E. Moore; that defendant was arraigned immediately before Judge Thornsbrough sitting as examining magistrate, and, without counsel and under these surroundings, waived preliminary hearing; that the magistrate immediately filed a transcript of the proceedings with the court clerk; that the county attorney then filed an information, and thereupon defendant was arraigned in the district court; that, upon being asked by the court if he had an attorney, he said, “No,” and that he did not desire an attorney; that thereupon the court made the following order: “Let the record show that the district judge appointed Judge Moore to1 represent the defendant for the purpose of examining the record and purpose of pleading;” that immediately thereafter the following proceedings were had:

“Mr. Snow (county attorney) : At this time, I want to serve the defendant with a copy of the information and a list of the witnesses in open court;” and immediately thereafter the following appears: “At this time, Judge E. Moore and the defendant have.a private conference at the table in the bar of the court, after which the following proceedings were had; * * *” that following this brief conference, defendant entered his plea of guilty and was by the court sentenced to death by electrocution.

Defendant through affidavit filed by his counsel claims that he was taken into the sheriff’s office on the ground floor, in the rear of the courthouse, and up a private stairway or passageway leading from the sheriff’s office to the district courtroom; that C. L. Cardwell, a newspaper man, two attorneys, and some other persons were present in the courtroom at the time defendant was arraigned; that, upon the order of Judge Gassaway, the doors of the courtroom were locked and none of the persons present permitted to leave nor persons on the outside to come in; that the magistrate had his transcript already prepared ready for his signature before defendant was arraigned, and, after signing it, immediately filed it with the clerk of the district court; that less than 40 minutes elapsed between the time when defendant was brought before the examining magistrate and arraignment had, plea taken, judgment and sentence pronounced, and defendant started on his return to the penitentiary.

Section 20, article 2, of the Constitution, provides:

“In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed: Provided, that the venue may be changed to some other county of the state, on the application of the accused, in such manner as may be prescribed by law. He shall be informed of the nature and cause of the accusation against him and have a copy thereof, and be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his behalf. He shall have the right to be heard by himself and counsel; and in capital cases, at least two days before the case is called for trial, he shall be furnished with a list of the witnesses that will be called in chief, to prove the allegations of the indictment or information, together with their postoffice addresses.”

In capital cases, where defendant is without counsel and unable to employ same, the court must appoint counsel for him and must give such counsel time to investigate the facts, examine the law applicable to the case, and prepare for trial. Goben v. State, 20 Okla. Cr. 220, 201 Pac. 812; Ex parte Hollins, 54 Okla. Cr. 70, 14 Pac. (2d) 243.

In Sutton v. State, 35 Okla. Cr. 263, 250 Pac. 930, this court said :

“The constitutional right to be heard by counsel is not limited to the right to be heard by counsel at the time of the trial. Every person accused of felony is entitled to the benefit of counsel at every stage of the proceeding, whether imprisoned or admitted to bail.”

In Powell et al. v. State of Alabama, 53 S. Ct. 55, 58, 77 L. Ed. — , that court said:

“It is hardly necessary to say that the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice. Not only was that not done here, but such designation of counsel as was attempted was either so indefinite or so close upon the trial as to amount to a denial of effective and substantial aid in that regard. * * *
“The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect.”

In the case at bar, the court made no unqualified order appointing counsel for defendant to represent him at all stages of the proceedings. After judgment and sentence was pronounced, counsel appointed by the court saved no exceptions and took no further action in the case, not even filing a motion for a new trial, evidently treating the appointment as a limited one and without authority to proceed beyond the plea of defendant. The attempted appointment was a nullity, leaving defendant in effect without counsel.

When appellant has been sentenced to death, the record will be carefully investigated and errors considered whether excepted to or not. Turner v. State, 8 Okla. Cr. 11, 126 Pac. 452; Anderson v. State, 8 Okla. Cr. 90, 126 Pac. 840, Ann. Cas. 1914C, 314.

Trial courts of this state must learn that the Constitution means exactly what it says; that something more than haste is required in pronouncing judgment in cases of this character. The orderly proceeding of the court would require service of a copy of the information on defendant before he was arraigned> and, in capital cases, a list of the witnesses should be served upon him at least two days before the case is called for trial; that, when defendant is without counsel, the court should appoint counsel for him and adjourn the hearing for a sufficient time to permit counsel to' consult his client and prepare for his plea and trial; that, when a plea of guilty is entered or a verdict of jury returned, the court should fix the statutory time for pronouncing sentence, thus preserving all the constitutional and statutory rights of defendant.

Defendant was an ignorant negro, surrounded by armed guards, and, being brought into court under the circumstances detailed in this opinion, with limited opportunity to confer with counsel and consider his plea, naturally would not be sufficiently advised to intelligently or voluntarily enter his plea or take part in any hearing.

This court has held that a defendant may waive many of his constitutional rights. Upon the whole record, we cannot say that defendant was represented by counsel or knowingly or voluntarily waived any of his constitutional rights.

A heinous crime has undoubtedly been committed. The guilty party should be given a speedy trial and punished according to law, but these conditions will not justify judicial murder. Every defendant, no matter what his color, nationality, or political or social standing may be, is entitled to the equal protection of the law. Where it appears upon the face of the record that a defendant has not waived his constitutional rights and has been denied such rights, this court will not permit the judgment and sentence to stand.

For the reasons stated, the cause is reversed and remanded, with directions that defendant be arraigned in the district court of said county, at a convenient time, and there proceeded against according to law.

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


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    WILLIAM KOSEPEAH v. STATE.
    No. A-8342.
    Dec. 9, 1932.
    (16 Pac. [2d] 888.)
    J. F. Thomas and Lawton Burton, for plaintiff in error.
    J. Berry King, Atty. Gen., and Sam H. Lattimore, for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Comanche county of manslaughter in the first degree and was sentenced to serve a term of six years in the state penitentiary.

Defendant is a full-blood Comanche Indian, a married man. Mildred Speck, the deceased, was an unmarried white woman who had been associating with defendant for some eighteen months prior to the crime charged. On the date of her death, she with another white woman was out automobile riding with defendant and two other young Indian men. The party drank intoxicants. She was in the rumble seat with defendant. As they were returning from this ride to Lawton they let her female companion out of the car at a hospital where she was employed near Fort Sill. As they drove in from there deceased jumped, fell, or was thrown out of the car. Defendant and his companions at once took her to' a hospital where she died without making any statement. An autopsy revealed bruises on the right side and on the left wrist and a wound above and to the rear of the left ear which fractured the skull and was the cause of death. After leaving her at the hospital, defendant and his companions reported to the officers at Lawton. They made an investigation and found blood spots on the highway where the injury occurred and a heel from one of the shoes worn by deceased. One circumstance strongly relied on by the state is that, after the defendant and his companions reported to' the officers and had been questioned and released, his companions returned to the scene of the injury, picked up the shoes of deceased, carried them about a half mile, and threw them into1 some weeds where they were afterwards discovered. Defendant’s companions who were, in the front seat testified they did. not know anything of the manner or cause of deceased’s leaving the car. Defendant testified he leaned forward to get a match from one of the parties in the front seat and just at that time the deceased disappeared from the car; that he had the car stopped. There was some testimony by a sister of deceased of an assault or attempted assault by defendant to do personal violence to deceased about 18 months prior. At a former trial, this sister, although a witness, did not testify to this circumstance.

The circumstances upon which the state relies are very meager, and, without entering into an analysis of the facts or discussion of the law applicable, we are satisfied there is not proof of sufficient circumstances consistent with the hypothesis of the guilt of the accused and inconsistent with that of his innocence to sustain the judgment. De Bose v. State, 1 Okla. Cr. 549, 197 Pac. 176; Bridwell v. State, 52 Okla. Cr. 353, 5 Pac. (2d) 403; 16 C. J. 673.

The case is reversed.

DAVENPORT, P. J., concurs. CHAPPELL, J., dissents.


text:
    JOHN KARR v. STATE.
    No. A-8450.
    Dec. 16, 1932.
    (16 Pac. [2d] 1119.)
    Jesse A. Harp, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called the defendant, was by information jointly charged with Dick McGhee and Glen Carrigan, of conjoint robbery, was tried separately and convicted, and his punishment fixed at imprisonment in the state penitentiary for a period of eight years.

The record in this case was filed in this court August 15, 1932; no brief has been filed in support of the defendant’s assignment of errors.

A careful examination of the record discloses no fundamental errors, and the evidence is sufficient to support the verdict of the jury.

The case is therefore affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    M. B. BURRUS v. STATE.
    No. A-8416.
    Dec. 16, 1932.
    (17 Pac. [2d] 518.)
    J. F. Thomas, and Allen & Jarman, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted on a charge of violating section 6526, C. O. S. 1921, by polluting Little Washita creek with crude oil, salt water, and other deleterious substance, and was sentenced to pay a fine of $100, and appeals.

The defendant urges that the trial court was without jurisdiction to hear and determine the charge against him. The information alleges that the offense, if any was committed, was committed in Comanche county. The proof shows conclusively that if the offense was committed it was committed in Caddo county. Article 2, § 20, of the Constitution, provides as follows:

“In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed.”

The facts in the record clearly show that the court was without jurisdiction, and the defendant’s objection to the same should have been sustained and the case dismissed.

The view we take of the record, it is not necessary to consider the other errors complained of.

The case is reversed, with directions to dismiss.

EDWARD.S and CHAPPELL, JJ., concur.


text:
    ROBERT SALLEE v. STATE.
    No. A-8419.
    Dec. 16, 1932.
    (17 Pac. [2d] 520.)

      Eaton & Eaton and E. M. Carter, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the superior court of Okmulgee county of the offense of receiving stolen property, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of three years.

Defendant contends first that the court erred in overruling his motion to suppress the evidence, because the same was secured by an illegal search and seizure.

This court had this question under consideration in Sallee v. State, heretofore decided on June 12, 1931, and reported in 51 Okla. Cr. 414, 1 Pac. (2d) 794, wherein defendant was charged with the crime of burglary, and there held that, defendant having been legally arrested, the officers had a right to search his premises.

In the case at bar, as a result of such search, a large amount of goods stolen from other people (not taken in the burglary case) was found on defendant’s premises, which resulted in the charge of receiving stolen property and his conviction in the case at bar.

Defendant’s contention that the evidence was inadmissible is not well taken.

Defendant next contends that the court erred in overruling his demurrer to the evidence and his request for an instructed verdict.

There is no merit to this contention.

Finally, defendant contends that the court erred in denying his plea of former conviction and jeopardy.

This plea is based on the proposition that the conviction in the case at bar is covered by the conviction of defendant in Sallee v. State, 51 Okla. Cr. 414, 1 Pac. (2d) 794.

This court will take judicial knowledge of its decisions. An examination of the record in the case above mentioned in connection with an examination of this record discloses that the convictions are for entirely different offenses both in law and in fact. Under the holdings of this court, the former conviction could not be a bar to this conviction, although the evidence properly admitted in one case to show guilty knowledge and intent was equally admissible in the other case. Orcutt v. State, 52 Okla. Cr. 217, 3 Pac. (2d) 912; Brant v. State, 53 Okla. Cr. 221, 9 Pac. (2d) 965.

The questions raised being without any substantial merit in law or in fact, the cause is affirmed.

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


text:
    J. C. BRALEY v. STATE.
    No. A-8443.
    Dec. 16, 1932.
    (18 Pac. [2d] 281.)

      Bridges & Ivy, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gén., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Jefferson county of the crime of robbery with firearms, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of 30 years.

It appears from the record that Mr. and Mrs. Wood-worth, who lived in the town of Ringling, had returned from prayer meeting to their home; that, after putting the car in the garage and locking the same, they were confronted by some men with drawn pistols, and compelled to give up the keys to the house and garage and to the bank of which Mr. Woodworth was an officer; that, after placing the Woodworths in the house, the defendant was left to guard them with a pistol, and they were told that they would not be harmed if they complied with the wishes of their captors; that they must not make any noise and must obey commands; that the other parties, after taking some firearms and other property from the Woodworths, left the house and were gone several hours; that on the return of these parties the Woodworths heard their Nash sedan automobile being driven from the garage, within the curtilage of the premises where they lived; that the parties then called to the man inside, guarding the Woodworths, who was still covering and menacing them with his pistol; and that thereupon he backed out of the house and joined the other parties, who drove away in the Woodworth’s automobile.

The charge was robbery with firearms in the taking of this automobile.

Defendant contends that there is a fatal variance between the information and the proof, in that the proof shows that the automobile was not taken from the immediate presence and possession of the Woodworths, but from a garage some distance from the house.

The meaning of the words “possession and immediate presence” has been defined and construed by the courts of other states in the following cases: State v. Kennedy, 154 Mo. 268, 55 S. W. 293; Clements v. State, 84 Ga. 660, 11 S. E. 505, 20 Am. ,St. Bep. 385; State v. Calhoun, 72 Iowa, 432, 34 N. W. 194, 2 Am. St. Rep. 252; Commonwealth v. Homer, 235 Mass. 526, 127 N. E. 517; O’Donnell v. People, 224 Ill. 218, 79 N. E. 639, 8 Ann. Cas. 123; State v. Williams (Mo. Sup.) 183 S. W. 308, wherein the circumstances were similar to those in the case at bar, and it was there held that the taking of the property under such circumstances was a taking from the possession and immediate presence of the owner.

Under our conspiracy statute, where several persons act together, the act of one is the act of all. Thus, if several persons set out in concert, whether together or apart, upon a common design, which is unlawful, each taking the part assigned to him — some to commit the act and others to guard or watch at a proper distance to prevent a surprise, or to favor the escape of the immediate actors— >here, if the act be committed, all are, in the eye of the law, present and principals, and, the act of one being the act of all, the taking under the circumstances detailed in the case at.bar would be by those outside of the house, as well as in, in the immediate presence of the owner. This would not he so if the property taken was so far from the presence of the owner that he would not detect by sound or other acts the taking of the property.

We therefore hold that, under the facts in the case at bar, there was a taking of this automobile from the immediate presence of the Woodworths, while they were under fear of personal injury to themselves produced by the pointing of the pistol at them in the hands of this defendant, who was guarding them at the time the automobile was taken.

It is next contended that the court erred in admitting evidence of the taking of other property by defendant and these other parties shortly before the taking of the automobile.

To this it is sufficient answer to say that it was one continuous act from the time the Woodworths were first menaced by the pistol until defendant and his pals left the premises in the automobile.

It is next contended that the court erred in permitting the witness Carson, as a fingerprint expert, to make certain experiments in the presence of the jury, and in permitting him to state positively that the fingerprints found on the cap at the scene of the robbery were made by defendant.

The experiments were not made with the fingerprints of defendant, but with those of other persons for the purpose of testing the ability-of the witness to identify fingerprints made by different or particular persons.

The rule that the test must be made on similar material and under like conditions would apply if the test was being made of the fingerprints of defendant, but it has no application where the tests are made of the fingerprints of other persons, and merely for the purpose of testing the knowledge and ability of the witness. Stacy v. State, 49 Okla. Cr. 154, 292 Pac. 885.

The other contention under this assignment that the witness was permitted to state positively that the fingerprints found on the cap were those of defendant, rather than to merely express his opinion thereon, presents a •more difficult question. The proper procedure is to limit the expert witness to expressing an opinion.

In the light of this record and the undoubted guilt of the defendant, the admission of this evidence was not reversible error.

The record disclosing no substantial error, and the evidence supporting the verdict of the jury, the cause is affirmed.

DAVENPOET, P. J., and EDWAEDS, J., concur.


text:
    ARTHUR VINCE GOODIN v. STATE.
    No. A-8456.
    Dec. 16, 1932.
    (17 Pac. [2d] 521.)
    J. J. Smith, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Ottawa county of the crime of burglary in the second degree, and his punishment fixed by the court at imprisonment in the state penitentiary for a period of one year and six months.

Defendant first contends that the information is insufficient to' state an offense. This contention is without merit.

It is next contended that the court erred in overruling defendant’s motion to advise the jury to find defendant not guilty because of the insufficiency of the evidence.

Section 2063, C. O. S. 1921, provides':

“Any person who breaks and enters in the daytime or in the nighttime, either:
“First. Any building within the curtilage of a dwelling house, but not forming a part thereof; or
“Second. Any building or any part of any building, booth, tent, railroad car, vessel or other structure or erection in which any property is kept, with intent to steal therein or to commit any felony, is guilty of burglary in the second degree.”

Under the second subdivision of this section, one of the ingredients of the offense is that property is kept in the building. There is an utter failure of proof upon this point. The county attorney asked the owner of the laundry :

“Q. During the month of January, 1931, did you have any property in this laundry?”

Objection was made by defendant’s counsel to- this question and overruled by the court, but the question was never answered, and there is no evidence in the record to show that any property was kept in the building.

Upon failure to make this proof, there was insufficient evidence to support the verdict. The court therefore erred in overruling defendant’s motion to direct the jury to return a verdict of not guilty. For this reason, the cause is reversed and remanded.

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


text:
    A. W. CURRY v. STATE.
    No. A-8442.
    Dec. 16, 1932.
    (17 Pac. [2d] 521.)
    Morton Perry, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of the crime of driving an automobile while intoxicated and under the influence of intoxicating liquor, and was sentenced to serve a term of six months in the state penitentiary.

The testimony on behalf of the state tends to show that defendant was driving north on Hudson street, in the city of Oklahoma City, and at the intersection of Ninth and Hudson collided with a car driven by Jewell Ship-man. Officer J. M. Mabe testified that when he, in company with Webb Campbell, arrived where the collision had taken place, some one was assisting the defendant to stand; Mabe says he pnt the defendant in the police car and took him to the police station, and that defendant was intoxicated and under the influence of whisky. The other officer did not pay any attention to defendant’s condition as to being drunk or sober.

The defendant denies he was intoxicated, and stated he had not taken a drink since early morning. In the defendant’s car was an empty bottle which seems to have contained whisky. Two ladies that had driven in defendant’s car to the Ritz Dance Hall testified that defendant ate dinner at their home and was there from about 8 o’clock in the evening until the time they left home for the Ritz Dance Hall, and that the defendant did not drink anything from the time he came to their house until they left him at the dance hall.

The testimony is conflicting. The defendant urges that the evidence is insufficient to support the verdict of the jury. It is the province of the jury to determine the credibility of the witnesses, the weight and value of the evidence, and to settle all conflicts in the testimony. When by its verdict the jury has done this, and the trial court has approved it, this court will not set aside the judgment for the insufficiency of the evidence unless there is no competent evidence from which the jury could reasonably arrive at defendant’s guilt, or unless it affirmatively appears that the jury was influenced by improper motive in arriving at the verdict. The evidence is sufficient to sustain the judgment.

The case is affirmed.

EDWARDS and CHAPPELL, JJ., concur.