text:
    INCORPORATED TOWN OF IDABEL v. DOOLEY
    No. A-3337.
    Opinion Filed April 28, 1923.
    (214 Pac. 735.)
    Appeal from County Court, McCurtain County; J. D. Parks, Judge.
    J. B. Dooley was tried for a violation of a town ordinance of the Incorporated Town of Idabel, and from an order of the county court sustaining a demurrer to the complaint, the town appeals upon a reserved question of law.
    Appeal dismissed.
    J. A. Andrews, for plaintiff in error.

      H. P. Hosey and C. P. Spriggs, for defendant in error.
   BESSEY, J.

This was a prosecution for a violation of a town ordinance. A trial was had before a justice of the peace, acting as a municipal magistrate for the town of Idabel. Prom the judgment rendered in that court the cause was appealed to the county court of McCurtain county. In the county court the accused filed a demurrer to the complaint upon which he was being tried, and, upon hearing of the demurrer, the court made the following findings:

"The demurrer is well taken for the following reasons: That the. ordinance upon Avhich the complaint herein is drawn is invalid' and unconstitutional for the reason that it is in contravention of the statutes and Constitution of the state of Oklahoma, as its regulations follow a different mode than that prescribed b!y the state laws, and that the demurrer should be sustained and the defendant discharged from custody; to which ruling the plaintiff excepts and reserves the question for review by the Criminal Court of Appeals of the state of Oklahoma, and the plaintiff gives notice of appeal in open court to the Criminal Court of Appeals of the state of Oklahoma, and said appeal is by the court allowed.”

It appears therefore that this is an attempted appeal by the incorporated town of Idabel upon a reserved question of law.

In the case of Oklahoma City v. Tucker, 11 Okla. Cr. 266, 145 Pac. 757, Ann. Cas. 1917D, 984, it was held that the right to appeal upon a reserved question of law is a statutory right, and that the statute does not authorize an appeal by a municipality. The reasons for this holding are discussed in the Tucker Case, and are adopted and followed in this case.

The appeal is therefore dismissed.

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


source: Caselaw Access Project

author: BESSEY, J.

license: Public Domain

text:
    CHARLES ROACH et al. v. STATE.
    No. A-3783.
    Opinion Filed April 28, 1923.
    (214 Pac. 563.)
    (Syllabus.)
    1. Larceny — “Steal” and to “Take by Stealth” Defined. The word “steal” and the expression to “take by stealth” have a uniform signification in com,mon as well as in legal parlance; they mean the felonious taking and carrying away of the personal goods of another; they mean to take without right, secretly, and without leave or consent of the owner.
    2. Larceny — Larceny of Automobile — Sufficiency of Information. Held, in this case, that the information was sufficient, 'and that the court committed no error in overruling the demurrer.
    Appeal from District'Court, Craig County; A. C. Brewster, Judge.
    Charles Roach and another were convicted of the larceny of an automobile, and they appeal.
    Affirmed.
    See, also, 17 Okla. Cr. 731, 189 Pac. 746.
    W. P. Thompson and Clyde McGary, for plaintiffs in error.
    The Attorney General, and C. W. King, Asst. Atty. Gen., for the State.
   BESSEY, J.

Charles Roach and 'F. H. Anthony, plaintiffs in error, together with! James J. Kelly, were by information filed in the district court of Craig county on November 3, 1919, jointly charged with the theft of an automobile. At the trial, November 25, 1919, by a verdict of the jury, each of the persons named was found guilty as charged. On November 29,1919, the court rendered judgment upon the verdict, assessing the punishment of Charles Roach at imprisonment in the penitentiary for a term of 10 years, and the punishment of F. H. Anthony at imprisonment in the penitentiary for 5 years. From this judgment plaintiffs in error appeal to this court.

There is but one assignment of error urged in the brief filed by plaintiffs in error. The other alleged errors set out in the petition in error may be considered as waived.

The charging part of the first count of the information upon which the accused men were tried! and convicted is as follows:

“That the said Charles Roach, James J. Kelly, and F. H. Anthony in the city, county, and state aforesaid, on the 28th day of July, 1919, did knowingly, willfully, unlawfully, feloniously, wrongfully, fraudulently, and stealthily take, steal, and carry away one 1919 model, 5-passenger Ford automobile, the personal property of a person or persons unknown, and not the personal property of Charles Roach, James J. Kelly, and F. H. Anthony, and of the value of $500 with the unlawful, fraudulent, and felonious intent then and there on the part of them, the said Charles Roach, James J. Kelly, and F. H. Anthony, to deprive said person or persons, unknown of said property, and to convert the ¡Same to the use and benefit of them, the said Charles Roach, James J. Kelly, and F. H. Anthony, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”

A demurrer to this count was interposed, stating that the allegations as set out were insufficient to constitute a public offense. The demurrer was by the court overruled. The question of whether or not the overruling of this demurrer was error is the only question remaining for the consideration of this court.

The accused claimed that the information was, insufficient because it failed to state in specific language that the property alleged to have been stolen was taken “without the consent of the owner.”

The rules of pleading relating to the larceny of automobiles and the larceny of live stock are the same under our practice. In the ease of Underwood v. State, 23 Okla. Cr. 119, 212 Pac. 1010, it was held that, where an. information charging the larceny of live stock recited that the property was taken "by fraud and stealth, with the felonious intent to- permanently deprive the owner thereof, ’ ’ there was a sufficient averment as to the taking being without the consent of the owner. It will be observed that in the information here at issue the words "stealthily” and "steal” are both used. These words have a common signification, as well as a settled legal signification, to the effect that to steal and to- take stealthily clearly indicate that the taking was done without the consent of the owner. In the case of Clifton Cope v. State, 23 Okla. Cr. 161, 213 Pac. 753, it was said:

"The word ‘steal’ in an information has a uniform signification in common as well as in legal parlance; it means the felonious taking and carrying away of the personal goods of another; it means to take without right, secretly, and without leave or consent of the owner. ’ ’

Applying the! law as declared in these two cases to the case here, we hold that the information was sufficient, and that the court committed no error in overruling the demurrer. As stated in the Underwood Case, the cases of Beck v. State, 14 Okla. Cr. 3, 166 Pac. 753, and Yates v. State, 14 Okla. Cr. 10, 166 Pac. 904, in so far as they are in' conflict with the principles here announced, are expressly overruled.

The judgment of the trial court is affirmed.

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


author: BESSEY, J. MATSON, P. J.

text:
    L. J. FILLER v. STATE.
    No. A-3813.
    Opinion Filed April 30, 1923.
    (214 Pac. 568.)
    (Syllabus.)
    1. Appeal and Error — Preliminary Examination — Indictment and Information — Information Charging Larceny Need not be Ident¡cal with Preliminary Complaint — Presumed Evidence at Preliminary Warranted Charge in Information Although Variance in Ownership of Property Stolen — Examining Magistrate May Hold Accused for Offense Originally Charged or any Otheir as Facts Warrant. An infoirmation charging larceny need, not be identical in wording with the preliminary complaint. Where the preliminary complaint charged that the property stolen belonged to one, and the informa\tion in district court stated it belonged to another, it will be» presumed the evidence taken at the preliminary hearing warranted the charge as it appeared in the information.
    (a) An examining magistrate may hold the accused for trial for (the offense originally charged, or for any other offense, as the facts may warrant. Section 2197, Comp. Stat. 1921.
    2. Evidence — Res Gestae — Evidence of What Was Said and Done During Period Directly Connected with Larceny. In a case involving the larcqny of a large quantity of oil well casing, where the preparations made to steal it and the incidents connected with thei actual taking and asportation of the casing continued over an extended period of time, what was said and done during all this period directly connected with and explanatory of such taking and asportation by any of the persons implicated is admissible as a part of the res gestae.
    3. Evidence — Evidence of Statements by Witne.ss as to Consummation of Crime to Determine Whether Accomplice Requiring Corjroboratiojn. Where there is evidence indicating that a witness is, or may have been, an accomplice, and other evidence indicates that he was not criminally implicated, but acted as an informer, evidence by third persons of what was said by the witness in relation to the different steps taken to take and haul away the property may be admissible to determine whether or not the witness was in faqt an accomplice' requiring corrobor-atioji.
    Appeal from District Court, Payne County; Arthur E. Swank, Judge.
    L. J. Filler was convicted of grand larceny, and he appeals.
    Affirmed.
    J. M. Springer and E. G. Wilson, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

L. J. Filler, plaintiff in error, was by information filed in the district court of Payne county on January 2, 1920, charged jointly with Joe Golden, J. J. Marcus, and Aaron Berry with the stealing and carrying away of 48 joints of 20-pound, 6 5-8-inch oil well pipe, the property of the Pennhoma Oil Company, of the value of $1,680. The plaintiff in error, hereinafter referred to as the defendant, asked for a severance, which was granted, and he was put upon trial January 21, 1920, resulting in a verdict of the jury finding the defendant guilty as charged, without fixing the punishment. On January 29th the court rendered judgment upon the verdict and fixed the defendant’s punishment at confinement in the state penitentiary for a period of one year. From this judgment he appeals.

In order to make clear a discussion of the assignment of error urged in this case, a statement of the testimony in narrative form is deemed advisable.

J. T. Turner was ai pumper on an oil lease near Quay, Okla., for the Pennhoma Oil Company. His duties were to pump the oil on the lease and look after and take care of the personal property belonging to the corporation, including the casing or oil pipe charged to have been stolen. Turner testified that some months prior to the taking of this easing Aaron Berry came to him to buy some rope and other junk there .oh the premises. A little later Berry came back to the lease in company with the defendant Filler, and Filler asked Turner if he would sell him this pipe. Turner replied that he had no authority to sell it, whereupon Berry urged him to make the sale without authority of the owner, stating, in effect, that it could be done in such a way that Turner could profit by the sale and run no risk. Berry told Turner that he would give him $1,000 if he would give Berry and the defendant a chance to get away with it. It was suggested that Turner might leavd the lease for a sufficient length of time to enable them to do this, and Berry offered to buy Turner a ticket to any point to which he might desire to go. To this proposition Turner refused to give his assent. The defendant, in company with Berry and Joe Golden, returned a third time to the lease and again insisted upon buying the pipe, suggesting that Turner give them a bill of sale for it and leave the country. Again Turner refused. On the day before the pipe was carried away the defendant again went to the lease, in company with Golden and Marcus. The defendant left his companions standing some distance away and went to Turner in the engine room and again talked to- him about the pipe. In the course of this conversation Turner said that he was about to quit his job and leave the lease, and later Turner heard the men discussing the situation and heard them state that when the new man came on they would frame up an order purporting to come from the owner, and in that manner get the pipe. After the men left Turner went in to the county seat and informed the sheriff and others there with him what had taken place. The sheriff instructed Turner to go back to the lease, and, if the parties came to take the pipe, not to interfere with them, but call up the sheriff’s office and apprise him of what was being done. The sheriff also suggested that if they again offered him! money he should take it and pretend to fall in with their scheme. On the day following this conversation with the sheriff the defendant again came to the lease, and Turner told the defendant that he had decided to let him have the pipe. Later, following the suggestion of the sheriff, Turner accepted a $1,000 check from the defendant.

It would extend this narrative to too great length to recite in detail all the circumstances connected with the theft. Briefly stated, the defendant and his coconspirators made arrange-mente for a car and for teamsters to haul this pipe, and they loaded part of it and transported it to Yale, and were in the act of loading the pipe into a ear for shipment when the officers came and apprehended them, the sheriff: acting on information furnished him by) Turner, according to previous instructions. Before the arrest one of the party had wired for money, $1,000, to pay Turner. The local bank at Yale re-fued to honor the wire. Then one of them gave Turner a cheek for $1,000, payable to the defendant and indorsed by him. The bank likewise refused payment on this check.

Turner’s testimony in regard to these transactions was in many respects corroborated by a number of other witnesses. There was also evidence: to support the theory of the defendant to the effect, that Golden and Berry had been engaged in the buying and selling of pipe, junk, and oil supply materials, and that they had had some dealings with the Oklahoma Pipe & Supply Company; that Turner represented to them that he was in full charge of the property and had authority to sell this particular pipe; that they made some inquiry and found that he had been on this lease for some months and appeared to be in full charge there; that they believed Turner had authority to sell the pipe, and that they made the purchase: in good faith, and that their attempt to procure the $1,000 was1 for the purpose of making their payment to Turner, in accordance with their agreement with him.

There are but two assignments of error seriously urged in defendant’s brief:

First. That the preliminary complaint charged that the pipe in question was the property of the Jennings Bros. Oil Company, and that the information filed in the district court charged that the pipe belonged to the Pennhoma Oil Company, and that there was therefore a fatal variance between the preliminary complaint and the information upon which the defendant was tried; that for this reason the information was not supported by a preliminary examination, as contemplated by the provisions of section 17, art. 2, of the Constitution of Oklahoma. This section provides:

“No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate,, or having waived such preliminary examination.”

The offense charged in the original preliminary complaint need not be charged as set out in the information. Section 2497, Comp. Stat. 1921, provides as follows:

“If, however, it appear from the examination that any public offense has been committed, and that there is sufficient cause to believe the defendant guilty 'thereof, the magistrate must in like manner indorse on the complaintl an order signed by him to the following effect:
“It appearing to me that the offense named in the within complaint mentioned (or any other offense, according to the fact, stating generally the nature thereof), has been, committed, andj that there is sufficient cause to believe the within named A. B. guilty thereof, I order that he be held to answer the same,”

In the case of Ponosky v. State, 8 Okla. Cr. 116, 126 Pac. 451, there was a complaint filed before the magistrate charging the accused with stealing one pale red heifer, branded NN on the right hip, the property of H. L. Smaland. The examining magistrate held the accused to answer in the district court. In that court the information charged the accused with stealing one cow and one calf, the property of S. L. No-land. The accused, as in this case, contended that the information was not supported by a preliminary hearing, as contemplated by the Constitution and statutes, but the court held to the contrary. A discussion of this question need not be extended further than to say that the same question was fully and carefully considered in an opinion written by Judge Matson in the case of Agent v. State, 18 Okla. Cr. 281, 194 Pac. 237, wherein he cited the case of Ponosky v. State, supra, and further stated:

! "Under the provisions of section 5680, Revised Laws 1910, the examining magistrate was authorized to bind the defendant to answer either the offense named in the preliminary complaint or ‘any other offense according to the fact’; and this court will presume, in the absence of a contrary showing, that the amended information in this ease was supported by the facts disclosed by the evidence of the state at the preliminary hearing.”

The authorities cited in the last-named case fully support the conclusions announced above. The identity of the pipe was definitely established, so as to preclude the possibility of another prosecution for the same' offense.

It is next urged that the court erred in permitting the state to show by the sheriff and others the explanations made by the witness Turner to the sheriff with reference to the incidents leading up to the actual taking of the pipe. This conversation was had in the sheriff’^ office, while the preparations to remove and/ ship the pipe were in progress, and was ini the absence of the defendant or any of his coconspirators, unless if may be saicTthat Turner himself was a coconspirator and implicated in the theft. It is earnestly contended that this testimony was inadmissible and prejudicial for the reason that it was hearsay, and not any part of the res gestae. The testimony of which complaint is made is as follows:

“Q. You may state your name. A. O. R. Lilley.
“Q. What official position, if any, do you hold in Payne county? ■ A. Sheriff of Payne county.
“Q. Mr. Lilley, are you acquainted with J. B. Turner? A. I never met him until the evening of the 13th.
“Q. What was the occasion of your meeting him then? A. He came to my office.
“Q. For what purpose? A. He came to my office in regard to the pipe on that lease.
“Q. What did he say to you at that time? A. He said they was going to steal it, he couldn’t stop it, and wanted to know what to, what was the best thing to do.
“Q. What, if anything,, did you tell him? A. I told him to just let them start with it, and then phone me; I would get them.
“Q. Anything said about the $1,000 there? A. He said they had offered him $1,000; yes, sir.
“Q. Anything else he said there? A. He said they offered him $1,000'to leave the lease.”

Cross-examination of Sheriff Lilley:

“Q. What did you tell Mr. Turner to do when he came over ? A. Told him to let them take it.
“Q. Told him to take the $1,000? A. I just told him to let them take it, to phone me as soon as they did.
“Q. Tell him' to take the $1,000? A. I believe I did; I’m not sure in regard to that. I told him' to let them take the pipe; I says, ‘Now phone me just as soon as they take it.’
“Q. Did Mr. Turner tell you he had charge of that lease out there? A. Yes, sir.
“Q. You didn’t tell Mr. Turner at that time to forbid them to take the pipe off the lease, did you? A. No, sir.”

It will be noted that there were no objections interposed to this testimony of the sheriff.

Examination of Warren Cooper:

“Q. You may state your name. A. Warren Cooper.
“Q. What official position, if any, do you hold in Payne county? A. Undersheriff.
“Q. Were you such undersheriff on the 15th day of November, 1919? A. Yes, sir. * * *
“Q. Now, what was the occasion of Mr. Turner being there [in the sheriff’s office], if you know?
“By Mr. Berton: Objected to as calling for a conclusion of the witness, incompetent, irrelevant, and immaterial.
“By the Court: Overruled. Exception allowed.
“A. I was down to Judge Jones’ house that night, and they called me up and had me come to the office. I came up there, and! these men were all in there. When I came in Mr. Lilley says, ‘I want you to hear this.’
• “By Mr. Berton: We are objecting to any conversation they had there as hearsay and incompetent, irrelevant, and immaterial.
“By the Court: Overruled. Exception allowed.
“A. ‘I want you to hear this statement these men are going to make.’
“By the Court: Who was it that was present? A. Mr. Lilley, Mr. Turner, I believe his name was, Mr. Swin, and this other gentleman, X can’t call his name.
“Q. All right, go ahead. What statement was made by Mr. Turner?
“A. Turner says—
“By Mr. Berton: We object, incompetent, irrelevant, and .immaterial, and hearsay.
“By the Court: Overruled. Exceptions allowed.
“A. Turner says: ‘There’s a bunch of men over there that’s going to steal some pipe, and I want to know what to do about it. They’re going to take this pipe; they have offered me money to leave that lease so they can get that pipe. ’ * * *
“Q. Now what, if anything, did you hear Mr. Lilley tell Mr. Turner? A. He told him to go back over there, and if they went to removing the pipe to let him know and we could come over there! and take care of them.”

Examination of C. L. Swin:

“Q. You may state your name. A. C. L. Swin.
“Q. Where do you live, Mr. Swin? A. Stillwater, Okla,
“Q. What official position, if any, do you hold with Payne county? A. County treasurer.
“Q. Mr. Swin, do you know the defendant, L. J. Filler? A. No, sir.
“Q. Did you see him — do you know J. B. Turner, one J. B. Turner? A. Yes, sir.
“Q. Did you see one J. B. Turner in the sheriff’s office on or about the 13th day of November, 1919? A. Yes, sir.
“Q. Now, can you tell the jury what the occasion was of your seeing him there? A. I was-working in November and December — we were very busy in the office — I was working nights in my office down here. I went to the sheriff’s office to get a key, and he was there, so they said to me—
“By Mr. Berton: Wait a minute; we want to object to that, being incompetent, irrelevant, and immaterial and hearsay, not in the presence of the defendant.
“By the Court: Yes; all explanatory matters. Overruled. Exception allowed.
“A. The sheriff says: ‘Sit down here a minute, I want to talk to you. ’ Then it was I met Turner to find out who he was.
“Q. Now, did you hear Mr. Turner say anything about— state what, if anything, you heard Turner state there.
“By Mr. Berton: Same objection.
“By the Court: Overruled. Exception allowed.
“A. Well, there was quite a conversation there, probably lasted about half or three-quarters of an hour, maybe.
“Q. What was that conversation about? A. Well, it was about the pipe situation, you might say, on an oil lease over by Quay. It seems there had been some parties there that had made a proposal to Mr. Turner that if he would absent himself from the lease they would take the pipe, and he told them — he told us there that evening they had agreed to give him $1,000 for doing that. He was over there talking with the officers, telling the officers about the matter. Sheriff stopped me and asked me if he could take the money and then turn them over to the officers. I told him I didn’t know; he better call you.
“Q. What did Turner say further about the pipe going to be stolen, give me some — A. He said they were going to get it anyway; best thing we could do was to catch them. He said they had been up there a dozen times or so.
“By Mr. Berton. We move all this evidence be stricken for the reason it is incompetent, irrelevant, and immaterial, and not in the presence of the defendant.
“By the Court. Overruled. Exception allowed.”

The witness Turner at the time he went to the sheriff’s office was acting as an informer. If Turner had ever been implicated with the accused and his confederates in the plan to steal this pipe, he ’had abandoned such purpose before going to the sheriff’s office.

It. may be that the acts and declarations of Turner in informing the sheriff that preparations to consummate the crime were then in progress were a part of the res gestae. Upon that point we are not clear. Even if these acts and declarations of Turner were a part of the principal facts, could the sheriff and others testify to the narration of conditions made by Turner in the absence of the accused?

It appears to be a close question whether third persons may testify to such declarations as in this case, as coming within the rules laid down by the text-writers and the decisions of the courts. Turner’s disclosures to the sheriff and others present were made while the defendant and his confederates were in active preparation to move and ship the pipe out of the state. The fact that Turner informed the sheriff was admissible, but whether Turner should have been permitted to relate in detail the disclosures made, the conversations had with the defendant, and the preparations made to steal the pipe, as being? part of the res gestae, is not so clear. These disclosures had no probative force with reference to the taking and asportation of the property, because the defendant admits the taking, claiming that the property was his by right of purchase in good faith. These disclosures to the sheriff were, however, explanatory of the motives indicating that the pipe was not taken in good' faith, but with a deliberate purpose to steal it. They were also explanatory of why the sheriff made the subsequent arrests at the time and in the manner in which they were made. The sheriff confirmed what Turner testified to having told him without objection on the part of the defendant. Could he later object to further testimony of such disclosures, given by the deputy sheriff and the county treasurer? And, if their testimony was inj fact incompetent, was it prejudicial?

It is claimed by the state that all this testimony was necessarily explanatory of the taking as it afterwards occurred, that it was explanatory of the conduct of Turner before and during the asportation of the pipe, as well as explanatory of the conduct of the parties alleged to have been implicated in the taking, and that it was therefore a part of the res gestae, coming within what is’sometimes called the “verbal act” rule.

Appellate courts and law text-writers have often attempted to give an all-comprehensive definition of the term “res gestae. ’ ’ So far as wet know, no satisfactory, lucid definition has ever been given, embodying all of the applications and limitations of the principle' sought to be defined. Recognizing the difficulty or futility of framing such a definition, this court will make no attempt to do so; but in this and many other cases where the attending facts are such that, in keeping with common sense and sound reasoning, the court and jury should know all the attending facts in order to properly comprehend and analyze the motives and acts of the interested parties, and where such facts and circumstances and declarations are so closely connected with the main issue as to be an integral part of the offense, and such issue cannot be intelligently determined without considering such attending facts and declarations, it would seem that such attending incidents would be a part of the res gestae.

Assuming that the witness Turner was not a confederate, he was one of the main agencies, one of the chief actors, in the taking and asportation of the property stolen. Although an informer, he assisted the perpetrators to carry out and consummate the offense throughout its various stages. It would seem then that his acts and declarations, as well as the acts and declarations of the others with whom he was working, covering the period of the taking and asportation, might properly be considered a part of the res gestae.

It has been held that it is not essential to the admissibility of a statement or act as a part of the res gestae that it should have b'een made or done at the place where the principal fact occurred. 3 Wigmore on Evidence, 1725, 1730, 1731, and citations and annotations there found; 22 Corpus Juris 458, and cases cited.

Facts), circumstances, and declarations, elucidating the main issue must be well calculated to unfold the nature and quality of the main fact, in such a manner as to harmonize with it and to obviously constitute a part of the whole transaction, in order to be admissible. Whether the testimony is of such a nature must to some extent rest in the sound discretion of the trial court. Chapter on "Verbal Acts,” 3 Wigmore, § 1768, et seq.; 22 Corpus Juris, 459, 460, and cases there cited; State v. McKenzie, 228 Mo. 385, 128 S. W. 948.

The declaration and the extent of the transaction so shown is not necessarily confined to a particular point of time, but may extend over a longer or shorter period, according to the nature and character of the transaction. So. Ry. Co. v. Lewis, 165 Ala. 555, 51 South. 746, 138 Am. St. Rep. 77; The Theodore Roosevelt (D. C.) 154 Fed. 155; 1 Wharton on Evidence, § 259; Underhill on Crim. Evid. § 97; 22 Corpus Juris, 450.

The case of State v. Gabriel, 88 Mo. 631, involved, the larceny of sheep; the transaction being made up of a variety of incidents extending over a period of several days, and not at an end until the sheep were branded. All acts which occurred or words which were uttered during that period of time, tending to elucidate the principal fact in dispute, namely, the motive with which the sheep were branded, were admitted as part of the res gestae. In the opinion the court said: ,

"If the act of Gabriel in driving the sheep towards the residence of Glasgow before the time of the commission of the alleged larceny possessed any probative force, then his, declarations which accompanied that act constitute a part of the res gestae giving, as they did, quality to the' act and clothing the mere nude act with the garb of legal intelligibility. The doctrine is well settled that whatever words depict the character of the principal fact, shed upon it the proper light when it is brought before the camera of judicial investigation, are ' verbal acts, indicating a present purpose and intention, and are therefore admitted in proof like any other material facts. ’ 1 Grlf. Evid. § 108, and eases cited; * * * Whart. Crim. Evid. §§ 262, 691; * * * 1 Starkie’s Evid. (6 Ed.) 65.”

In the case of Roddie v. State, 19 Okla. Cr. 63, 198 Pac. 342, Presiding Justice Doyle, quoting from Underhill on Criminal Evidence, §§99 and 100, said:

“If the declaration meets the requirements of the rule now under consideration — that is, if it explains or illustrates a relevant fact — it is not incompetent merely because its utterance precedes the actual commission of the crime. Evidence is always relevant which shows that the accused made preparations to commit a crime, and from such preparative actions a criminal intention may, with justice, be 'inferred'.
“Declarations accompanying these acts of preparation are received to explain and unfold their significance, and indirectly to illuminate the subsequent language, conduct, and state of mind of the accused. ’ ’

To the same effect was the holding in Sunday v. State, 14 Okla. Cr. 620, 174 Pac. 1095.

In modern times the scope of the admissibility of evidence as a part of the res gestae has been enlarged, in an effort to afford the triers of fact all reasonable means of ascertaining the truth, instead of withholding from them all information possible by the rigid application of rules of exclusion. The question now is not how little, but how much, logical, competent proof is admissible. Prickett v. Sulzberger Bros., 57 Okla. 567, 157 Pac. 356. In the last-mentioned case the court quoted from Wiggin v. Plumer, 31 N. H. 251, as follows:

“When a fact is offered in evidence, the whole transaction, if it consists of many parts, may and ought to be proved. Every additional circumstance proved may vary the effect of the evidence, may neutralize it, or give it point. What is then said by the parties, and what is said by others to them, relative to the subject of the transaction, is a part.of the transaction itself.”

In the Wiggin Case the facts, however, were held not to come within the rule stated.

We recognize that in applying the res gestae rule to the relating of the disclosures made by Turner, the informer, as told by the sheriff, deputy sheriff, and county treasurer, we have probably approached the limit of the rule. We do so because the disclosures so, made of the plans to take this pipe were so( closely connected with its subsequent taking,- and because the disclosures so made were necessary to fully explain the subsequent taking and the motives and actions of the parties. This is apparent because the inquiries made by both the defendant and the state concerning these disclosures make it manifest that this showing was essential to a proper determination of the motives and intent of both Turner and the accused parties at the time of the asportation. To exclude these disclosures made to the sheriff and others would be contrary to common sense and sound reason, and calculated to defeat the ends of justice. All rules of evidence are designed to facilitate! the reception of such proof as will safely and correctly inform the court and jury of the true facts and circumstances at issue, and ordinarily where technical rules ‘interfere with a lucid, safe, and reasonable explanation of the main facts at issue a strict construction of such technical rules should yield to a more rational construction.

Prof. Wigmore, in his admirable treatise on Evidence, vol. 3, pp. 2247-2257, aptly stated the difficulties inherent in this case, relating to admissibility of hearsay statements as a part of the res gestae:

“The exposition of this exception [the admission of hearsay evidence] is to be approached with a feeling akin to despair. There has been such a confounding of ideas and such a perverse and indiscriminate use of the shibboleth ‘res gestae’ that it is perhaps impossible to disentangle the real basis of the principle involved. * * * There are few problems in the law of evidence more unsolved than what things are to be embraced in those occurrences that are designated in the law of the res gestae. * * * There is a lamentable waste of time by Supreme Courts in here attempting either to create or. to respect precedents. Instead of struggling weakly for the impossible, they should insist that every case should be treated upon its own circumstances. They should, if they are able, lift them’selves to the even greater height of leaving the application of the principle absolutely to the determination of the trial court. Until such a beneficent result is reached their lucubrations of the details of each case will continue to multiply the tedious reading of the profession.”

There is another theory upon which, the disclosures made by the witness Turner to the sheriff and others in the office concerning thd offer made to Turner by the defendant and his confederates to induce Turner to aid in the theft and asportation of the pipe would be admissible. Turner may have been a coconspirator with the defendant and his confederates. It may be that he abandoned his purpose to aid and assist them, and, in order to protect himself, decided to inform the sheriff before the purpose of the conspiracy was accomplished and the theft consummated. This would raise an issue of whether or not Turner was an accomplice, and the disclosures made by Turner to the sheriff and others would be explanatory of that issue, irrespective of whether they were a part of the res gestae or not. If Turner was an accomplice, it would be necessary that his testimony be corroborated, and these disclosures made to the sheriff and others, as testified to by them, would to some extent corroborate or explain the evidence given by Turner, the accomplice, if such he was. Upon this theory this evidence would be admissible.

In the light of what has been said, under the circumstances here we conclude that the disclosures made to the sheriff andi others by Turner, in the manner and at the time indicated, were an integral part of the offense, susceptible of proof by those'who heard them.

The judgment of the trial court is affirmed.

DOYLE, J., concurs in the opinion.

MATSON, P. J.

(concurring). In my opinion the witness Turner should have been permitted to testify that after he learned of the conspiracy of Filler and his confederates to steal the pipe in controversy he (Turner) went to- Stillwater and saw the sheriff of Payne county. The details of the conversation with the sheriff in the absence of Filler, Turner not being a coeonspirator, were hearsay evidence, in my opinion, and for that reason incompetent, and should have been rejected, as further I believe they did not form part of the res gestae. The testimony of the sheriff as to what Turner told him on that occasion was admitted without objection or exception. Further, the testimony of Turner that after visiting and conversing with the sheriff he afterwards acted on the instructions given him by the sheriff was also competent, because in my opinion it then became material to the issues as to whether or not Turner afterward joined the conspiracy with or without criminal intent. Did or did not Turner accept the, $1,000 check for the purpose of aiding the defendant with others' to accomplish the taking and asportation of the pipe or for the purpose of assisting the officers to detect, apprehend, and punish the real offenders ? The intent with which Turner acted therefore became material, and the fact that he acted under instructions from the sheriff (without detailing what those instructions were) was in my opinion competent for the jury to consider in order to determine whether or not Turner was or was not acting as an accomplice in absenting himself from the premises and in accepting the $1,000 check.

A large portion of this objectionable evidence (the record shows) was admitted without objection made or exception taken. I cannot see that under the proof in this case ai different result would ensue were a new trial granted and the objectionable evidence rejected.

Suppose Turner’s testimony was limited to detailing the matters and things that occurred between him and Filler prior to his visit to the* sheriff, then the fact of such visit (without detailing the conversation between him and the sheriff), then the further fact that he afterward acted upon the instructions of the sheriff (without detailing what those instructions were), and then his subsequent meetings and conversations with Filler and his coconspiratórs; would not the inferences that would naturally follow such competent evidence be inevitably equivalent to the details of his conversation with the sheriff? In other words, were Turner’s testimony limited to the scope above indicated, could the jury have arrived at any other conr elusion than that Turner was not an accomplice of Filler and those jointly informed against with him? That Turner was not an accomplice was the logical result in either instance, and the declarations of Turner to the sheriff had probative force only to show that he was not an accomplice. Can it then be said that, because of the improper admission of this evidence, the error complained of has probably resulted in a miscarriage of justice as required by section 2822, Compiled Statutes 1921 ? I cannot see that it has. For such reason I concur in the conclusion that the judgment should be affirmed.


author: PER CURIAM.

text:
    P. M. WYNN v. STATE.
    No. A-4038.
    Opinion Filed April 30, 1923.
    (214 Pac. 563.)
    Appeal from District Court, Woods County; Arthur G-. Sutton, Judge.
    P. M-. Wynn was convicted of manslaughter, and he appeals.
    Affirmed.
    The Attorney General, for the State.
   PER CURIAM.

P. M. Wynn, alias Port M. Wynn, was convicted in tbe district court of Woods county of the crime of manslaughter in the first degree for the killing of one D. Pollock, alleged to have been committed in said county on or about the 8th day of October, 1920, on a trial to a jury in March, 1921. A verdict of guilty was returned with punishment fixed at four years’ imprisonment in the state penitentiary. Judgment was rendered in conformity with the verdict on the 5th day of March, 1921.

Case-made and petition in error were filed in this court on the 4th day of August, 1921. The cause was submitted on the 5th day of December, 1922, at which time no appearance was made by counsel representing the plaintiff in error to orally argue the cause. No brief has been filed in behalf of the plaintiff in error.

Rule 9 of this court (12 Okla. Cr. viii, 165 Pac. x) provides :

“When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court and the exceptions taken thereto, and the judgment and sentence, and, if no prejudicial error appears, will affirm the judgment.”

An examination of the pleadings, instructions, and judgment and sentence discloses no prejudicial error, and the judgment is accordingly affirmed.


author: DOYLE, J.

text:
    ALBERT PETTY v. STATE.
    No. A-4119.
    Opinion Filed April 30, 1923.
    (214 Pac. 562.)
    (Syllabus.)
    Intoxicating Liquors — Unlawful Possession — Sufficiency of Evidence. In a prosecution for unlawful possession of intoxicating liquor, evidence held sufficient to sustain a conviction, and that no material error was committed on the trial.

      Appeal from County Court, Stephens County; G. T. Burrows, Judge.
    ' Albert' Petty was- convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.
    It. C. Drake, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

Plaintiff in error, Albert Petty, and Pat Pa-tiest, were jointly charged with the possession of one gallon and one quart of whisky with the intent to violate the prohibitory liquor laws. Defendant Patiest pleaded guilty. Upon his separate trial the jury returned a Verdict finding the defendant Albert Petty guilty, and fixed his punishment at confinement for 30 days in the county jail and a fine of $50. From the judgment rendered on the verdict an appeal was perfected by filing in this court on November 4, 1921, a petition in error with case-made. No brief has been filed and no appearance made for oral argument. We have examined the record and find no material error. In our opinion the evidence sustains the .verdict.

The judgment of the lower court is therefore affirmed.

MATSON, P. J., and BESSEY, J., concur.


text:
    CHARLEY DAVIDSON v. STATE.
    No. A-4559.
    Opinion Filed April 30, 1923.
    (214 Pac. 1119.)
    Appeal from County Court, Nowata County; W. H. Thompson, Judge.
    Charley Davidson was convicted of manufacturing intoxicating liquors, and he appeals.
    Dismissed on motion of appellant.

      C. F. Goudy, for plaintiff in error.
   PER CURIAM.

Plaintiff in error, Charley, Davidson, convicted in the county court of Nowata county on an information charging the unlawful possession of intoxicating liquor, was by the court sentenced to be confined in the county jail for 90 days and to pay a fine of $250 and the costs. From the judgment rendered on the 27th day of April, A. D. 1923, an appeal was perfected by filing in this court on February 1, 1923, a¡ petition in error with ease-made. The plaintiff in error, by his counsel of record, has filed a motion to dismiss his said appeal. The motion to dismiss is sustained, and the cause dismissed, and remanded to the county court of Nowata county. Mandate forthwith.


text:
    S. M. TABOR et al. v. STATE.
    No. A-4120.
    Opinion Filed April 30, 1923.
    (214 Pac. 564.)
    (Syllabus.)
    Evidence — Instructions Placing on Accused Burden of Proving Any Issue by Preponderance Erroneous. Instructions which place upon the accused the burden of proving any issue in a criminal case by a preponderance of the testimony are fundamentally erroneous.
    Appeal from County Court, Texas County; Geo. M. Frittz, Judge.
    S. M. Tabor and another were convicted of a violation of the prohibitory liquor law, and they appeal.
    Reversed.
    Earl Martin and Hunt & Eagleton, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

S. M. Tabor and J. E. Gilmore were convicted in the county court of Texas county under an information charging that in said county, on or about the 1st day of March, 1921, they did unlawfully manufacture intoxicating liquors, to wit, malt beer, by the means of malt, hops, and yeast, said intoxicating liquor containing more than one-half of 1 per cent. of alcohol, measured by volume, and their punishment each fixed at confinement in the county jail for 30 days and a fine of $50. From the judgment rendered on the verdict, they appeal.

Of the various errors assigned it is only necessary to consider the one, that the court misdirected the jury to the prejudice of the substantial rights of the defendants by giving instruction No. 5, which reads as follows:

“You are further instructed that, if you believe from the evidence beyond a reasonable doubt that these said defendants, S. M. Tabor and J. E. Gilmore, did not make, manufacture, or were in any way concerned' in the making or manufacture of intoxicating liquors, then you should find the defendants not guilty and acquit them.”

To the giving of this instruction defendant excepted. The Attorney General has filed a confession of error, because said’ instruction places the burden upon these defendants to prove their innocence, rather- than placing the burden upon the state to prove their guilt.

It is our opinion that the giving of this instruction constitutes prejudicial error. It in effect deprives defendants of the benefit of the presumption of innocence guaranteed to them by the law of this state, and shifts the burden of proof by requiring them to establish their innocence by a preponderance of the evidence. It is the law that a defendant in a criminal action is presumed' to be innocent until the contrary isi proved by competent evidence, and, in case of a reasonable -doubt as to whether his guilt is satisfactorily shown, he is entitled to be acquitted. Similar instructions have been condemned by numerous decisions of this court. Slate v. State, 15 Okla. Cr. 201, 175 Pac. 843; Findley v. State, 13 Okla. Cr. 128, 162 Pac. 680; Courtney v. State, 12 Okla. Cr. 169, 152 Pac. 1134; Smith v. State, 12 Okla. Cr. 489, 159 Pac. 668; Wood v. State, 11 Okla. Cr. 176, 144 Pac. 391; Remillard v. State, 10 Okla. Cr. 438, 133 Pac. 1132, 137 Pac. 370; Vaughn v. State, 9 Okla. Cr. 121, 130 Pac. 1100; Clendenning v. State, 3 Okla. Cr. 379, 106 Pac. 540; Weber v. State, 2 Okla. Cr. 329, 101 Pac. 355.

It follows that the confession of error is well founded, and for the giving of said instruction the judgment is reversed, and a new trial awarded.

MATSON, P. J., and BESSEY, J., concur.


text:
    Ex parte JOHN LITTLE et al.
    No. A-4637.
    Opinion Filed May 1, 1923.
    (214 Pac. 932.)
    (Syllabus.)
    1. Habeas Corpus — Accused in Felony Case not Entitled t<? Discharge Before Preliminary Trial for Unconstitutionality of Statute. A defendant in a felony prosecution, pending before an examining magistrate, is not entitled to a discharge on habeas corpus before the preliminary trial, on the ground that the complaint is based upon an unconstitutional statute.
    2. Habeas .Corpus — Writ Denied Where Facts in Petition Do not Warrant Discharge. Where the facts stated in the petition for writ of habeas corpus, if established, will not warrant a discharge of the petitioner, the writ will be denied.
    Habeas corpus by John Little and another for release Trom custody.
    Writ denied and cause dismissed.
    Bert Van Leuven, for petitioners.
    George F. Short, Atty. Gen., and M. W.' McKenzie, Asst. Atty. Gen., for respondent.
   DOYLE, J.

TMs is an application to this court for a writ of habeas corpus, alleging that petitioners are now being unlawfully imprisoned in the county jail of Nowata county, by the sheriff of said county; that said imprisonment, detention, and confinement are illegal, in that on the 28th day of March, 1923, they were by complaint filed by the county attorney of said county, before W. H. Thompson, county judge of said county, charged with the crime of “unlawful possession of mash and a still worm with the intention to manufacture intoxicating liquors,” said alleged crime being based on the act of February 5, 1923, entitled “An act relating to stills, distillers mash, wort, wash fit for distillation or for the manufacture of beer, wine, distilled spirits or other alcoholic liquor and fixing the penalty for the violation thereof”; that said act is unconstitutional and void; and setting forth a copy of said complaint.

The Attorney General has filed a demurrer to the petition on the ground that the same fails to state facts sufficient to entitle petitioners to the relief prayed for, in that said petition shows upon its face that the petitioners have been duly charged with a felony before the county judge of Nowata county, as examining magistrate, and the certificate of the attorney for applicants shows that the examination of this alleged offense has been continued until the 12th day of May, 1923.

“The Attorney General therefore suggests to the court -that from the petition presented to this court it is not possible to determine whether these petitioners have been held for an offense, in that no examination has been made into the merits .of the complaint filed with the county judge.
“In view of the fact that an examination may prove that these defendants committed some other crime, or did not commit the crime alleged to have been committed, the Attorney General moves the court to dismiss the petition for the reason that the same fails to state facts sufficient to entitle petitioners to any relief at this time. ’ ’

In our opinion the motion to dismiss is well taken and should be sustained. The uniform holding of this court is that where a preliminary examination is not waived, and evidence is taken, the county attorney is authorized to file an information in the trial court charging the crime according to the facts in evidence at the preliminary examination. Williams v. State, 6 Okla. Cr. 373, 118 Pac. 1006; Little v. State, 21 Okla. Cr. 1, 204 Pac. 305; Powell v. State, 21 Okla. Cr. 332, 207 Pac. 570.

In Muldrow v. State, 16 Okla. Cr. 549, 185. Pac. 332, it is said :

“Under the constitutional provision, the precedent fact that a preliminary examination has been had or waived constitutes the jurisdictional basis for a prosecution for a felony by information. It is the fact that there was a preliminary examination, or a waiver thereof, and a judicial determination thereon by an examining magistrate that the particular offense charged has been committed, or that a felony other than that charged, as shown by the testimony upon the examination has been committed, and stating generally the nature thereof, and that there is sufficient cause to believe the defendant guilty thereof, that authorizes! the county attorney to file an information in the district court charging the offense named in the preliminary complaint, when examination has been waived, or charging the offense according to the facts in evidence on the examination for which the defendant was held to answer.”

It follows that a defendant in a felony case pending before an examining magistrate is not entitled to a discharge on habeas corpus before the preliminary trial upon the ground that the complaint is based upon an unconstitutional statute.

Where the facts stated in the petition for writ of habeas corpus, if established, will not warrant a discharge of the petitioner, the writ will be denied.

For the reasons stated, the demurrer to the petition and motion to dismiss should be sustained. The cause is therefore dismissed.

MATSON, P. J., and BESSEY, J., concur.


text:
    CHARLES BAKER v. STATE.
    No. A-4320.
    Opinion Filed May 2, 1923.
    (214 Pac. 735.)
    (Syllabus.)
    Appeal and Error — Dismissal and Remand on Motion of Appellant. Where one perfecting an appeal from a judgment of conviction moves that it be dismissed, it will be so ordered and, the cause remanded.
    Appeal from District Court, Hughes County; John L. Coffman, Judge.
    Charles Baker was convicted of manslaughter in the first degree, and he appeals.
    Appeal dismissed.
    See, also, 20(Okla. Cr. 65, 201 Pac. 397.
    Anglin & Stevenson, for plaintiff in error.
   DOYLE, J.

Plaintiff in error, Charles Baker, was informed against for the murder of one Thurman Hines, alleged to have been committed in 'Hughes county on or about the 28th day of July, 1921, by shooting with a pistol. The trial jury found him guilty of manslaughter in the first degree and fixed his punishment at imprisonment in the penitentiary for the term of 22 years. From the judgment rendered in accordance with the verdict on the 9th day of December, 1921, an appeal was duly perfected' by filing in this court on April 26, 1922, a petition in error with case-made.

Counsel of record for plaintiff in error have filed a motion to dismiss the appeal.

Where an appeal is perfected from a judgment of conviction and plaintiff in error before final submission moves that the appeal be dismissed, its dismissal will be ordered.

It is therefore adjudged and ordered that the appeal in the above entitled and numbered cause be dismissed, and the cause remanded to the trial court, with direction to cause its judgment and sentence to be carried into execution. Mandate forthwith.

MATSON, P. J., and BESSEY, J., concur.


text:
    BARBER BARD v. STATE.
    No. A-3736.
    Opinion Filed May 3, 1923.
    (214 Pac. 939.)
    (Syllabus.)
    1. Homicide — Evidence to Sustain Conviction for Assault with Intent to Kill. Evidence reviewed, and held sufficient to sustain a conviction of shooting another with intent to kill.
    2. Indictment and Information — Sufficiency of Information. An information is sufficient which states the offense clearly and distinctly in ordinary and concise language without repetition, in such manner as to enable a person of common understanding to know what is intended.
    3. Homicide — Information for Shooting with Intent to Kill — Sufficiency. For information held sufficient to charge the offense of assault with intent to kill by shooting another, see opinion.
    4. Same — Plea of Self-Defense not Invocable by Aggressor. One who seeks and brings on an affray cannot shield himself under a plea of self-defense.
    5. Same — Error in Instructions on Self-Defense not Prejudicial. Error, if any, in instructions defining the law of self-defense could not be prejudicial to the defendant, where the evidence did not warrant instructions on self-defense.

      6. Same — Charge on Included Offense — Sufficiency of Verdict. On an information under Penal Code, first clause (section 1756, Comp. St. 1921), for shooting another with a shotgun with intent to kill, where the instructions of the court submitted the included offense of 'shooting another with intent to do bodily harm, but without intent to kill, as defined by second clause of section ■ 1764, Comp. SL 1921, the verdict was: “We the jury, * * * find the defendant guilty of assault with intent to kill as charged in the information herein, and assess his punishment at imprisonment in the state penitentiary for six years.” Held, that the verdict is sufficiently definite and certain as to the offense of which defendant was convicted, and is in effect a verdict of guilty of shooting another with intent to kill.
    Appeal from. District Court, Rogers County; C. W. Mason, Judge.
    Barber Bard was convicted of an assault with intent to kill, and he brings error.
    Affirmed.
    Jennings & Hall and James S. Davenport, for plaintiff in error.
    S. P. Freoling, Atty. Gen., and E. L. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error was tried and convicted upon an information which, omitting formal parts, charges:

“That on the 17th day of February, A. D. 1919, in the county of Rogers, state of Oklahoma, one Barber Bard, then and there being, did then and there willfully, unlawfully, and feloniously commit the crime of an assault and battery with intent to kill in the following manner and form, to wit, that is to say: The said Barber Bard, on said date and in said county and state then and there being, did then and there willfully, unlawfully, feloniously, and without authority of law, and with intent to kill one Zilmon D. Adams, make an assault with a certain double-barrel shotgun then and there loaded with gunpowder and leaden balls, and then and there had and held in the hands of him, the said Barber Bard, and did then and there with the said double-barrel shotgun so had and held as aforesaid, willfully, unlawfully, wrongfully, intentionally, feloniously, and with intent to kill him, the said Zilmon D. Adams, fire, shoot off, and discharge said leaden balls out of said shotgun at, against, and into the body, person and right side of the face and left arm and side of him, the said Zilmon D. Adams, with the felonious intent then and there on the part of him, the said Barbar Bard, to kill the said Zilmon D. Adams, contrary to,” etc.

The verdict reads:

“We, the jury drawn, impaneled, and sworn in the above-entitled cause, do upon our oaths find the defendant, Barber Bard, guilty of assault with intent to kill as charged in the information herein, and assess his punishment at imprisonment in the state penitentiary for six years. ’ ’

He has appealed from the judgment rendered upon such conviction.

The evidence for the state, briefly stated, was as follows:

The complaining witness, Adams, testified:

“I live 10 miles southwest of Chelsea. On the 17th day of February, 1919, I was harrowing for Mr. Strange. I saw the defendant coming west on the section line. I was going east in the field. He was horseback, and followed me around to' the north end of the field. My brother, Homer, was harrowing behind me, and Frank Strange was harrowing near me. He rode up and said, ‘Howdy do.’ I asked him when, he got back from camp. He told me. Then said I had herd-lawed a bunch of cattle and he had come over to see about it. I told him the cattle were running on the wheat every day. Then he wanted to know what right I had to slap his father. I told him, and he said, ‘I will just take it up right now.’ I told him I did not want to have any trouble. He got down off his horse and said, ‘We will settle it right here.’ He made a pass at me, and we had a scrap with our fists. Then he caught his horse and rode home, which was about half a mile away. It was evening, and I had started to go to the house, when he came back carrying a gun. He rode into the field, checked his horse, and said, ‘Have you got anything to say?’ and shot me. The load struck me in the left elbow and side, and I fell. Then he fired a second shot, which took effect in my right shoulder and face, and one shot penetrated my right eye; I don’t remember anything after the second' shot was fired.”

Frank Strange testified:

‘‘I was in the field where Zilmon and Homer Adams were harrowing. The defendant rode in from the section line and had a fist fight with Zilmon Adams. Then he caught his horse and rode home. I saw him riding back as fast as the horse could run. He rode into the field. I was standing within 5 feet of Zilmon Adams when he rode up. He stopped about 12 steps from Zilmon Adams and asked him if he had anything to say. Then he shot him. Adams fell, and he shot Adams again. Then he reloaded his gun and said, ‘Take the cowardly son of a bitch to the house,’ and rode off.”

Major Taylor testified:

‘‘Between 5 and 6 o’clock that evening I saw the defendant coming into the field where Zilmon and Homer Adams were working. I saw there was a fight, so I started down. About the time I got there they were through. The defendant caught his horse and rode as fast as he could go toi his father’s house. Pretty soon I saw him coming back, riding as hard as he could, and he had a shotgun. He rode into the field, stopped, and asked Zilmon if he had anything to say. Zilmon said, ‘No.’ Then he shot him. After Zilmon fell, he shot him again. He reloaded his gun and said, ‘Take the cowardly son of a bitch to the house,’ and rode off.”

Dr. W. A. Howard testified:

“I was called to attend Zilmon Adams. I found gunshot wounds in the right side of his head and face and the upper shoulder and in his left arm and left side of the body. One shot penetrated the right eye, destroying the vision.”

Barber Bard, as a witness in Ms own behalf, testified:

“My age is 28. Zilmon Adams worked for me seven years. I got home from the training camp February 13th, and on February 17th I went into the field where Zilmon Adams was harrowing to see him in reference to the house he was living in on our place. His mother and I had staked this boy to a wheat crop, and he had rented some ground from another party, and I was to furnish the seed. He brought the seed back and said that Mr. Strange had put up the wheat to seed this ground. I asked him for the possession of theh house. He told me he would not give it unless he was put out according to law. One word brought on another. I told him that it looked like he had been trying to run over my father, and he said, ‘Well maybe you want to take it up,’ and asked me to get off my horse. I said, ‘All right.’He jumped on me, and we had a fight. I got up, and he asked ine if I had enough. I told him I never had said so, and he made a pass to hit me. I said, ‘I will see you later; I am coming back.’ So I went home. Then I came back and asked' him if he had anything to say. He threw his hand back like that, and I shot him. I judge I was 30 yards from him when I fired the shots. His brother, Homer, Frank Strange, and Major Taylor were there at the time.”

The assignments of error are as follows: Erro rin overruling the demurrer to the information; error in instructing the jury on the law of self-defense; and that the conviction is not sustained by sufficient evidence.

The objections stated by counsel for plaintiff in error in their brief is that it is difficult to tell under which provision of the statute the information was drawn, and that it partly charges two separate and distinct offenses.

The information was based on section 1756, Comp. Stats. 1921, which reads:

“Any person who intentionally and wrongfully shoots, shoots at, or attempts to shoot at another, with any kind of firearm, air gun or other means whatever, with intent to kill any person, or who commits any assault and battery upon another by means of any deadly weapon, or by such other means or force as is likely to produce death or in resisting the execution of any legal process, is punishable by imprisonment in the penitentiary not exceeding ten years.”

By numerous decisions of this court it is held that an information is sufficient to charge the offense of shooting another with intent to kill when the character of the firearm is designated, the manner of using it, the intent with which the act is done, and the person against whom the act is directed are alleged in ordinary and concise language. Deen v. State, 7 Okla. Cr. 150, 122 Pac. 941; Simmons v. State, 15 Okla. Cr. 442, 177 Pac. 626.

The information in this case charges but one offense, that is, shooting another with intent to kill; it is not duplicitous, and does not tend to mislead the defendant as to the offense charged; therefore the trial court very properly overruled the demurrer thereto.

It is also contended that the court erred in the instructions defining the law of self-defense. The error, if any, was harmless, for the reason that the evidence in the case did not justify an instruction upon self-defense. There was no evidence tending in the remotest degree to prove that the defendant was at the time of the shooting in any apparent imminent danger. When we consider the rule as what defendant testifies to against his interest is to be taken as true, there is no evidence to- show that the defendant acted in self-defense when he made the assault. One who seeks and brings on an affray cannot shield himself under the plea of self-defense. The facts as testified to by the defendant as a witness on his own behalf afford no justification for his assault.

It is contended that the evidence is insufficient to sustain the verdict in that there is no proof of a felonious intent to kill. In our opinion, the manner of the attack, the weapon used, and wounds inflicted were such that the jury were fully authorized to infer that the shooting was with intent to kill.

Finally, it is insisted that the verdict of the jury is insufficient to sustain the judgment. The court instructed the jury that they might upon the information find, the defendant guilty of the offense charged, or of the included offense of assault by shooting another without intent to kill, but with intent to do bodily harm, and that, if hey found the defendant guilty of the offense charged, it would be their duty to assess the punishment by imprisonment in the penitentiary for a definite period of time not exceeding 10 years, and, if they should find him guilty of shooting another without intent to kill, but with intent to do bodily harm, then it would be their duty to assess the punishment by imprisonment in the penitentiary for a definite peiod of time not exceeding 5 years, or by imprisonment in the county jail not exceeding one year.

While the verdict is technically informal, yet, when considered in connection with the offense charged in the informa-ttion, the instructions given by the court, and the punishment assessed, it is sufficiently definite and certain as to the offense of which the defendant was convicted and is in effect a verdict of guilty of assault with intent to kill by shooting another with a shotgun. It is well settled that a verdict will not be held void for uncertainty if its meaning can be determined by reference to the record proper. Bowlegs v. State, 9 Okla. Cr. 69, 130 Pac. 824; Walker v. State, 11 Okla. Cr. 339, 127 Pac. 896; Simmons v. State, 15 Okla. Cr. 442, 177 Pac. 626; Coleman v. State, 16 Okla. Cr. 579, 194 Pac. 282; Pruitt v. State, 17 Okla. Cr. 434, 190 Pac. 894.

Says Mr. Bishop:

“The language of the verdict, being that of ‘lay people,’ need not follow the strict rules of pleading, or be otherwise technical. Whatever conveys the idea to the common understanding will suffice, and all fair intendments will be made to support it.” I Bish. New Or. Proc. (4th Ed.) § 1005.

A careful examination of the record fails to disclose any error affecting a substantial right, and we have no dnubt that the verdict of the jury is, upon the testimony, a just one.

The judgment of the trial court is therefore affirmed.

MATSON, P. J., and BESSEY, J., concur.


text:
    ED LOGAN v. STATE.
    No. A-3817.
    Opinion Filed May 5, 1923.
    (214 Pac. 944.)
    (Syllabus.)
    1. Evidence — Accomplice of Thief — Corroboration,. One charged with the receiving of stolen property may or may not be an accomplice of the thief who stole it. Held in this case, if the testimony of the person who committed the larceny is true, he was an accomplice of the person who received the stolen property, and should be corroborated by other testimony.
    2.. Trial — Instruction on Accomplice Testimony — Necessity. Where a conviction rests largely upon the testimony of an accomplice, it is error for the court to refuse to define the term “accomplice,” and error to refuse to instruct the jury that such a witness must be corroborated by other evidence.
    Appeal from District Court, Kay County; J. W. Bird, Judge.
    Ed Logan was convicted of receiving stolen property, and ■ he appeals.
    Reversed and remanded, with directions.
    Wm. S. Cline and Wm. H. Cline, for plaintiff in error.

      The Attorney General and E. L. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

Ed Logan, plaintiff in error, here referred to as the defendant, was on January 19, 1920, by a verdict of a jury found guilty of the crime of receiving stolen property. Judgment was pronounced by the court on January 28th, assessing his punishment at confinement in the state penitentiary for a term of two years. From this judgment defendant appeals.

The defendant for many years had been a farmer in Kay county, but had recently moved to Newkirk, where he was engaged in the automobile livery business. A part of this business, as conducted by him, consisted in carrying men who handled oil well rigs or derricks. He was in the habit of taking a load of men at midnight to the oil fields and returning with another load whose shift ended at midnight. These men worked more or less intermittently, and when they were not at work in the oil fields defendant sometimes employed some of them to drive one or more of his taxies, among whom was Frank Warriner, one of the witnesses for the state in this case-

According to the defendant’s testimony, Warriner returned from Arkansas City at about 10 o’clock one morning and reported that he had taken some passengers to Arkansas City and had had a blow-out, and that he bought a tire in Arkansas City, at the Cribbs garage, to replace the ruined tire, paying therefor the sum of $17.50. The defendant asked Warriner how much he had received as passenger hire, and Warriner told him $5.00. The defendant then went into the Newport Cafe, which was also his taxi headquarters, and paid Warriner $12.50, the difference between the fares received and the cost of the tire. A few days later, while the automobile on which this tire had been placed was standing in front of the Newport Cafe, a deputy sheriff said to the defendant that he believed that defendant had a stolen tire on his car. After some conversation the defendant offered to show by Warriner how he had acquired the tire.

It was the theory of the state, and there was some evidence to support it, that the defendant, Warriner, and a man by the name of Elroy had agreed among themselves that, if Elroy and Warriner would steal automobile tires, the defendant would find a place for the sale and disposal thereof, and that they would all share in the proceeds; that, pursuant to this arrangement, Warriner and Elroy stole eight tires from C. A. Howland, out of his garage at Newkirk, and that the defendant found sale for these tires at the Cribbs garage in Arkansas City, where they were delivered by Warriner according to an agreement with defendant; that defendant was guilty of receiving the particular tire found on his automobile from Warriner, who had obtained it from the Cribbs garage.

But three witnesses testified for the state. C. A. Howland, the owner of the particular tire here in issue, identified the tire as belonging to him and said that it had been stolen some time prior to its discovery, by persons unknown to blm. War-riner had been arrested for the theft of these tires, but the case against him for this offense and another felony charge that had been pending against him had been dismissed before the trial of this defendant. Warriner testified that he, Elroy, and the defendant had agreed to and participated in the theft of the eight tires stolen from Howland and. in their disposal at the Cribbs garage. This self-confessed thief further testified that his sole mission in going to Arkansas City in defendant’s car on the morning in question was to dispose of the tires, and that he carried no passengers on that trip, that one of the tires on the car he was driving blew out a short distance from Arkansas City, and that he returned to that city and replaced it without paying Cribbs anything for the tire. Other details concerning the discovery of the tire and the division of the money need not be related. The third, witness for the state, Deputy Sheriff Bain, testified that, when he accused the defendant of having a stolen tire on his car and asked him where he got it, the defendant became angry at being accused, as he thought, of stealing the tire, and at first refused to make any explanation to Bain, but presently cooled off and told the deputy sheriff that Warriner bought' the tire at Arkansas City; that Warriner had reported to him that he had taken some passengers to Arkansas City and had hadi to get a new tire. Defendant offered to go with Bain to see Warriner, and together they did go to Blackwell for that purpose. After interviewing Warriner, defendant offered to take Bain to Arkansas City to see Cribbs, but Bain declined to go.

From this outline of the evidence it appears that War-riner, according to the state’s theory and evidence, was'an accomplice with the defendant both in the theft of the tire in question and in the receiving of the stolen property by the defendant, knowing it to have been stolen. It has been held by this and other courts that an accessory to the theft of stolen property is not necessarily an accessory to the receiving of the stolen property, but this is not always true. In this ease it is clear, if the evidence of Warriner is to be believed, that War-riner was an accessory with the defendant in both the theft and the unlawful receiving of this stolen tire. He was an accessory before the fact. The rule might be different if he were merely an accessory after the fact. If the state elects to stand upon the unsupported testimony of a self-confessed thief, it will be bound by his testimony as a whole. The state will not be permitted to adopt such parts as are favorable and expunge such parts as are unfavorable, so as to make it appear that the witness was not an accomplice.

At the close of the state’s testimony the defendant made a motion that the court instruct the jury to return a verdict of not guilty because of the insufficiency of the evidence. The motion was overruled, and an exception allowed. We think the overruling of this motion was error, for the reason that all of the testimony pointing to the guilt of the accused was the testimony of Warriner, an accomplice, and his testimony was in no way corroborated by the testimony of the state’s other two witnesses tending to connect the defendant with the crime charged.

After the testimony of the defendant and Ms witnesses had been heard by the jury and the cause submitted to them for their consideration, the defendant requested the following instructions:

“You are further instructed that a conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense charged or the circumstances thereof.” *
“You are instructed that an accomplice is a person who is connected' with the crime by unlawful act or commission on his part transpiring either before or at the time of the commission of the offense.”
“You are further instructed that, if from the evidence you believe that the witness Frank Warriner was an accomplice of the defendant, Ed Logan, in the crime of receiving stolen property, then this evidence alone, unless it be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, is not sufficient to convict, and your verdict should be for the defendant.”

These instructions were by the court refused, and no instructions were given covering the law relating to the testimony of an accomplice. The instructions' requested, or some instructions relating to this issue, should have been, given.

In view of these two errors other assignments of error need not be discussed.

For the reasons given, the cause is reversed and remanded, wtih directions to grant accused a new trial.

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


author: BBSSEY, J.

text:
    ROBERT L. DUNCAN v. STATE.
    No. A-3848.
    Opinion Filed May 5, 1923.
    (214 Pac. 937.)
    (Syllabus.)
    1. Jury — Clerk Drawing Jury and Later Being Called as Witness for State not Ground for Quashing Panel. Where a court clerk, with the sheriff, performs the ministerial acts provided by statute for the selection of prospective jurors from the jury list furnished by the jury commissioners, and the clerk at the trial in open court' draws the names from the receptacle provided, the mere fact that' the same clerk is called as a witness for the state to identify court records will not be good cause for challenging or quashing the panel.
    2. Bigamy — Proof of Marriages by Facts, Circumstances, and Declarations not of Record. In a prosecution for bigamy, both marriages may be proved by facts, circumstances, and! declarations, not of record, documentary evidence is not essential to establish a marriage.
    3. Marriage — Marriage Records Admissible Without Original Documents. A marriage record is a public record and may be introduced in any court where the original documents are not in possession or under the control of the person desiring to use them. Section 654, Comp. St. 1921.
    4. Bigamy — No Defense that Accused Believed First Wife Had Obtained Divorce. An instruction to the jury that the accused would be entitled to an acquittal if the evidence showed that the accused, at the time he married the second time, honestly and in good faith believed that his first wife before that time had divorced him, was more favorable to the accused than the law and the facts warranted.
    Appeal from District Court, Jefferson. County; Cham Jones, Judge.
    Robert L. Duncan was convicted of bigamy, and he appeals.
    Affirmed.
    J. S. Garrison, for plaintiff in error.
    The Attorney General and B. L. Fulton, Asst. Atty. Gen., for the State.
   BBSSEY, J.

Robert L. Duncan, plaintiff in error, here referred, to as the defendant, was convicted of the crime of bigamy in the district court of Jefferson county on March 8, 1920. By the verdict of the jury his punishment was fixed at confinement in the state penitentiary for a term of five years. To reverse or modify the judgment of conviction he appeals to this court.

There are four assignments of error urged in the brief.

It is first contended that G. W. English, court clerk, assisted the sheriff in drawing the jury panel to try this case, and that the same G. W. English was a witness in this case, called by the state to identify the records showing that there had' been a marriage between the defendant and Miss Eva Rogers on July 25, 1919, and that for this reason the jury panel was illegally drawn, and that the motion of the defendant to quash the panel should have been sustained.

Section 3517, Comp. Stat. 1921, provides for the manner of selecting a jury panel from the names supplied to the clerk by the jury commissioners. This duty of the court clerk is purely clerical in its nature and is surrounded with ample safeguards to insure the selection of an impartial jury. Section 3526, Id., provides that a substantial compliance with the provisions of this chapter (relating to the selection of jurors) shall be sufficient to prevent the setting aside of a verdict of any jury called thereunder, unless the irregularity in the summoning or impaneling of the same resulted in depriving a party litigant of some substantial right. And to take advantage of any such irregularity the party aggrieved must specifically show to the court (at the time or before the jury is sworn) that the matter complained of is prejudicial. In this ease it does not appear that the matter here complained of is prejudicial, and the record disclosed that on objection was made to the jury panel until after the jury was qualified and opening statements had been made by counsel representing the parties. For these two reasons this assignment of error is without merit.

The defendant next complains that the state was permitted to prove the first marriage by parol testimony; that the marriage should have been established by documentary evidence. Section 2720, Comp. Stat. 1921, provides that upon a trial for bigamy it is not necessary to prove either of the marriages by the register, certificate, or other record evidence, but that the marriages may be proved by such evidence as is admissible to prove a marriage in other cases. A ceremonial marriage may be proved by the testimony of eyewitnesses or by the admission of parties, without the producing of the marriage certificate or other record, and without explanation of their absence. 18 R. C. L. 423, 424. In this case the defendant himself admitted the first marriage, making further proof unnecessary.

The defendant complains next that the second marriage was permitted to be shown by the records of the court clerk without any identification of the signature of the minister who performed the ceremony or of the witnesses who subscribed to the original document. This assignment of error is also without merit. Sections 7495 and 7496, Comp. Stat. 1921, provide for the issuing of marriage licenses and for the recording of the same after return made thereon by the minister or officer -who performed the ceremony, thus constituting a public record. Section 654, Comp. Stat. 1921, provides that the records of public officers may be received in evidence in any court, and that when any such record is of a paper, document, or record authorized to be recorded, and the original thereof is not in the possession or under the control of the party desiring to use the same, such record shall have the same effect as the original. Furthermore, the defendant admitted this marriage also.

Lastly, it is contended that the evidence tends to show that the defendant believed at the time he married his second wife that his first wife had obtained a divorce from him. A letter in evidence from the accused to his first wife does not support this contention. Upon this point the court instructed the jury that if they entertained a reasonable doubt as to whether or not the defendant honestly believed and had reasonable grounds for believing, and had used proper care and made due investigation and was in possession of sufficient facts to honestly entertain a belief, that his first wife was divorced from him, in that event he would not be guilty, and should be acquitted. We think this instruction was more favorable to the defendant than was warranted by the law or the facts. No one can read this record without being impressed that the defendant knew that his first wife had not procured a divorce. The evidence shows that within a week from the time the defendant claims to have received information that his first wife had procured a divorce he married his second wife, without making any effort to verify the rumor.

According to the weight of authority, the fact that one charged with bigamy believes in good faith that he had been divorced from his first wife constitutes no defense. 3 R. C. L. 802; People v. Priestley, 17 Cal. App. 171, 118 Pac. 965; State v. Trainer, 232 Mo. 240, 134 S. W. 528; Rice v. Commonwealth (Ky.) 105 S. W. 123.

The judgment of the trial court is therefore affirmed.

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


text:
    ROBERT CROUCH v. STATE.
    No. A-3834.
    Opinion Filed May 5, 1923.
    (214 Pac. 747.)
    (Syllabus.)
    1. Trial — Duty of Court to Direct Jury to Declare Punishment in Verdict. It is the duty of the court upon request of the defendant to instruct thei jury to declare the punishment in their verdict. Section 2750, Comp. Stat. 1921.
    2. Same — Sufficiency of Instruction. A general instruction advising the jury that, if they should return a verdict of guilty, “then you will indicate therein the penalty to be inflicted,’’ is a sufficient compliance with the statute oni that subject.
    Appeal from District Court, Woods County; Arthur G. Sutton, Judge.
    Robert Crouch was convicted of rape, and he appeals.
    Affirmed.
    W. A. Briggs and A. J. Stevens, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

Robert Crouch was by information charged with the crime of rape, and on the 11th day of February, 1920, he was by the verdict of a jury found guilty as charged. His punishment was by the court fixed at confinement for 12 years in the state penitentiary. From the judgment he appeals to this court.

There are 16 assignments of error set out in the petition in error, but only one of them is urged in the brief. The others may therefore be considered as waived. The assignment of error argued in the brief is assignment No. 8 of the petition in error, as follows:

“Said court erred in failing and refusing, after the argument in the said case, and before the final submission of same to the jury, at the request and demand of the plaintiff in error, to instruct the jury that the plaintiff in error had requested that the jury fix the penalty in the event they found a verdict of guilty, and that it was the duty of the jury to fix the penalty.”

Instruction No. 5 given by the court is as follows:

“Should! you return a verdict of guilty, then you will indicate therein the penalty to be inflicted. But if you find the defendant guilty and are unable to agree upon the penalty to be inflicted, then you may return your verdict of guilty without fixing the penalty, and the court will perform that duty. ”

After this and the other instructions were read to the jury, defendant’s counsel stated:

“The defendant at this time requests that in case the jury convicts the defendant they fix the penalty.
“By the Court: I have already done so (so instructed).
“By Defendant’s Counsel: Under the law of this state, where the defendant requests it, I believe we are entitled to an instruction that they must fix the penalty. * * *
“By the Court: The application is refused. (Exception allowed.) ”

The verdict returned by the jury is as follows:

“We the jury duly impaneled and sworn to try the issues in the above-entitled cause, do upon our oaths find the defendant guilty and fix tbe amount of the penalty at-years in the penitentiary.”

After this verdict was returned into court, and read by the clerk, the court said:

“Gentlemen of the jury, is this your verdict?
“By the Foreman: Yes, sir.
“By the Court: So say you all?
“Jurors: Yes, sir.
“By the Court: You didn’t fix the penalty; did you purposely omit that, gentlemen?
“By the Foreman: How’s that?
“By the Court: I say you have the privilege of fixing the penalty to be inflicted on the defendant. You omitted to do that in your verdict.
“By the Foreman: Yes, sir; we couldn’t agree.
“By the Court: You omitted that then purposely?
“By the Foreman: Yes, sir.
“By Counsel for Defendant: The defendant excepts to the verdict as not being in accordance with the law as per the request of the defendant made at the time the jury was instructed and requests again made before the matter was finally submitted to the jury.”

No specific objection was made to the form of the verdict as to being general or specific.

The sections of our statutes relating to the fixing of the penalty by the jury, and the form of the verdict are as follows:

Section 2750, Comp. Stat. 1921:

“In all eases of a verdict of conviction for any offense against any of the laws of the state of Oklahoma, the jury may, and shall upon the request of the defendant, assess and declare' the punishment in their verdict within the limitations fixed by law, and the court shall render a judgment according to such verdict, except as hereinafter provided.”

Section 2751, Id.:

“Where the jury find a verdict of guilty, and fail to agree on the punishment to be inflicted, or do not declare such punishment by their verdict, the court shall assess and declare the punishment and render the judgment accordingly.”

Section 2743, Id.:

“If the jury render a verdict not in form, the court may, with proper instructions as to the law, direct them to reconsider it, and it cannot be recorded until it be rendered' in some form which it can be clearly understood what is the intent of the jury. ’ ’

We think the court’s instruction to the jury with regard to fixing the penalty substantially complies with the statute, that the word “will,” construed with the context, means “shall,” and! that the jury so understood it, and acted accordingly. This deduction is not in conflict with the declaration made in Oelke v. State, 10 Okla. Cr. 49, 133 Pac. 1140, the fourth syllabus of which is as follows:

“Where upon the request of the defendant the court instructs the jury that, in the event they find a verdict of guilty, they may assess and declare the punishment' in their verdict, it is the duty of the court to require the jury, if they find a verdict of guilty and fail to agree upon the punishment, so to say by their verdict; and, if the jury render a verdict not in form, the court should with proper instructions direct them to reconsider it.”

While in this case the court did not require the jury to reform the verdict to the effect that they were unable to agree upon the punishment, the court did ascertain from the jurors in open court what was their finding in the matter. By that means we think the purpose of the statute was met, and that the accused suffered no injury because of that omission from the formal verdict. The verdict was otherwise regular.

The circumstances connected with the commission of this crime were of art unusually aggravated character, and would have justified the jury in assessing the punishment much in excess of that imposed by the court. We see no reason why the judgment should be disturbed.

The judgment of the court below is therefore affirmed;

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


author: MATSON, P. J.

text:
    MRS. M. A. FERGUSON v. STATE.
    No. A-4023.
    Opinion Filed May 5, 1923.
    (214 Pac. 746.)
    (Syllabus.)
    Intoxicating Liquors — Evidence to Support Conviction for Maintaining Liquor Nuisance. Evidence examined, and held sufficient to support the verdict and judgment, and further held that no reversible error is presented.
    Appeal from County Court, Oklahoma County; W. R. Taylor, Judge.
    Mrs. M. A. Ferguson was convicted of maintaining a liquor nuisance, and she appeals.
    Affirmed.
    Charles H. Garnett and Ben F. Williams, for plaintiff in . error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

This is an appeal from the county court of Oklahoma county wherein the plaintiff in error, Mrs. M. A. Ferguson, hereinafter referred to as defendant, was jointly-informed against with one J. D. Johnson, charged with maintaining, on the 27th day of January, 1921, and for a long time prior thereto, a liquor nuisance on the premises located at 218 West Avenue A, in Capitol Hill, Oklahoma county, Okla. The case was tried to a jury in March, 1921, and both defendants found guilty, and each sentenced to pay a fine of $250, and to be imprisoned in the county jail for a period of 60 days. Mrs. M. A. Ferguson alone prosecutes this appeal.

Succinctly stated, the evidence on behalf of the state was substantially as follows: On the 27th day of January, 1921, officers from the sheriff’s office of Oklahoma county made a raid on the premises of this defendant located at 218 West Avenue A. Capitol Hill, and, under authority of a search warrant, searched said premises. The defendant and also her codeféndant, J. D. Johnson, were present at the time the search was made. The search resulted in the finding of a copper still hidden under the floor of the house beneath a trapdoor which had been cut through the floor of a closet in one of the bedrooms of the house. This still had the appearance of having been recently operated, as some corn whisky was found remaining in the worm thereof. The defendant Johnson was discovered carrying a gallon jug full of corn whisky out of the back door of the premises at the time the raid was made; also a fruit jar containing a quantity of corn whisky was discovered hidden under some kaffir corn in a shed located at the back end of the premises. Numerous witnesses who were residents of the vicinity of the premises testified that Mrs. Ferguson had been living there for about one year prior to the time of the search; that men and women in automobiles made frequent visits to the premises at all hours of the day and night; that the premises had the general reputation of being a place where intoxicating liquors were manufactured, bartered, sold, and given away in violation of law and where people congregated to drink the same; that numerous empty whisky bottles and whisky glasses were found on the premises at the time of the raid.

Both defendants denied any knowledge of the presence of the illicit still under the floor of the house or any knowledge of the trapdoor having been built in the floor of the closet or any knowledge of the presence of whisky on the premises. Johnson admitted that he was a carpenter by trade, and that he had been rooming on the premises for several months prior to the raid, and Mrs. Ferguson testified that she was keeping a rooming house there, and had during the year previous to the raid kept numerous roomers in the house for periods of time ranging from one day to several months, and that she could only account for the presence of the still by the fact that it must have been put there during her absence on a visit to the state of Texas, which visit occurred about a month prior to the date of the raid.

Among other assignments of error, it is contended that the evidence as to this defendant is insufficient to sustain the verdict and judgment. With this contention we cannot agree. There is ample evidence in the record to support a conviction under the liquor nuisance statute.

It is also; contended that the trial court erred in overruling the application of this defendant for a continuance of the trial of the cause on account of the absence of certain witnesses. The trial judge permitted the defendant to read what was stated would be the testimony of one such absent witness as a deposition. Under the showing made this action upon the part of the trial court was very favorable to the defendant, as no proper diligence was shown to procure the attendance of the witnesses prior to the trial. A careful consideration of the motion and application for a continuance discloses that there was no abuse of discretion in overruling the same as to other witnesses.

Further it is contended that the evidence as to the general reputation of the place for being a place where intoxicating liquors were manufactured, sold, and kept, etc., in violation of law, was improperly admitted because such general reputation did not relate to the time of the raid or to the time the place was kept by this defendant. Upon examination of the record, however, this court is convinced that such assignment of error is not supported by the record, as the transcript of the evidence, discloses that the defendant, Ferguson, sold the premises immediately after the raid, and that the witnesses testified to such reputation during the time she was living on the premises and maintaining the same.

The conclusion is reached that the defendant had a fair and impartial trial, and that the verdict and judgment is supported by sufficient evidence, and that no error of law occurred during the progress of the trial sufficient to authorize a reversal of the judgment.

For reasons stated, the judgment is affirmed.

DOYLE and BESSEY, JJ., concur. '