text:
    E. F. EDGE v. STATE.
    No. A-7692.
    Opinion Filed Oct. 4, 1930.
    (291 Pac. 985.)
    Rainey, Flynn, Green & Anderson, John J. Hildreth, and Fred W. Green, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted in the county court of Logan county, of cutting and injuring growing timber, and was fined $1,000 and to pay the costs. Judgment was rendered on the 26th day of October, 1929, and the case-made filed in this court on the 18th day of December, 1929.

The record in this case discloses that notice of appeal was served on the county attorney, but no notice was served on the court clerk of the county in which the defendant was tried; that no summons in error has been issued and served as provided by law, nor has the issuing and serving of the summons been waived by the state. Section 2809, C. O. S. 1921, provides that notice shall be served upon the clerk of the court and upon the prosecuting attorney, and the service of this notice on the county attorney and the court clerk are prerequisite steps necessary to confer upon this court jurisdiction to hear and determine the appeal. The statute requires that written notice of appeal be served on both the clerk of the court and the prosecuting attorney, and service on one of these parties does not satisfy the statute, and where the case-made fails to show that the notice of appeal was served upon both the court clerk and the county attorney, or that summons in error had been issued and served, or that service had been waived by the state, this court is without jurisdiction to consider the case. Dobbs v. State, 5 Okla. Cr. 481, 114 Pac. 358, 115 Pac. 370; Gordon v. State, 40 Okla. Cr. 85, 267 Pac. 285; Sharer v. State, 40 Okla. Cr. 420, 269 Pac. 511.

For the reasons assigned, the attempted appeal is dismissed.

EDWARDS, P. J., and CHAPPELL, J., concur.


source: Caselaw Access Project

author: CHAPPELL, J.

license: Public Domain

text:
    WALT McKEE v. STATE.
    No. A-7659.
    Opinion Filed Sept. 20, 1930.
    Rehearing Denied Oct. 4, 1930.
    (291 Pac. 1119.)

      Chester H. Lowry, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The evidence of the state was that on the 17th day of August, 1926, the defendant was convicted in the county court of Noble county upon a charge of unlawful possession of intoxicating liquor and sentenced to serve a term of 30 days in the county jail and to pay a fine of $150; that upon appeal to the Criminal Court of Appeals said cause was affirmed, and on the 14th day of June, 1928, defendant was committed to the county jail of Noble county and served said sentence and fine in said county jail; that on the 18th day of January, 1926, defendant was convicted in the county court of Noble county upon a charge of unlawful manufacture of intoxicating liquor, and on the 26th day of January, 1926, was sentenced to' serve a term of four months in the county jail and pay a fine of $400, and that upon appeal said cause was affirmed by the Criminal Court of Appeals, and that on the 16th day of June, 1927, defendant was committed to the county jail of Noble county to serve said sentence of imprisonment and fine; that thereafter, and on the 12th day of February, 1929, defendant was found in possession of nine gallons of whisky. The defendant did not take the witness stand, and offered no evidence in his behalf.

The appeal in this case was filed in this court on the 20th day of November, 1929. On June 14, 1930, the cause was duly submitted on the- record, and defendant given 15 days to brief. On July 2, 1930, defendant was given 30 days additional time in which to file brief. No briefs have been filed on behalf of defendant, and no appearance was made for oral argument.

Upon a careful examination of the record, we find no errors depriving defendant of any substantial rights.

The evidence being sufficient to support the verdict, the cause is affirmed.


author: DAYENPORT, J.

text:
    GENERAL KIZZAR v. STATE.
    No. A-7453.
    Opinion Filed Oct. 4, 1930.
    (291 Pac. 992.)
    Mathers & Mathers, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAYENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Marshall county, of manslaughter in the first degree, and his punishment fixed at 15 years in the state penitentiary. Judgment was rendered on the 10th day of December, 1928, and the record was lodged in this court on June 29, 1929. The record discloses that no notice of appeal was served upon the county attorney or court clerk of the county in which the defendant was tried; that no summons in error has been issued and served, as provided by law, and the issuing and serving of the summons has not been waived by the state. Section 2809, C. O. S. 1921, provides:

“An appeal is taken by the service of a notice upon the clerk of the court where the judgment was entered, stating that the appellant appeals from the judgment. If taken by the defendant, a similar notice must be served upon the prosecuting attorney. If taken by the state, a similar notice must be served upon the defendant, if he can be found in the county; if not there, by posting up a notice three weeks in the office of the clerk of the' district court.”

These notices are prerequisite steps to conferring upon the appellate court jurisdiction to hear and determine an- appeal, and where the case-made fails to show that notice of appeal was served upon the court clerk and county attorney, or that summons in error had been issued and served, this court is without jurisdiction to consider the case. Dobbs v. State, 5 Okla. Cr. 481, 114 Pac. 858, 115 Pac. 370; Gordon v. State, 40 Okla. Cr. 85, 267 Pac. 285.

For the reasons assigned, the attempted appeal is dismissed.

EDWARDS, P. J., and CHAPPELL, J., concur.


author: DAVENPORT, J.

text:
    MAYFIELD FANNIN v. STATE.
    No. A-7130.
    Opinion Filed Oct. 4, 1930.
    (291 Pac. 989.)

      Phillips, Boner & Phillips and MacDonald & MacDonald, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter for convenience referred to as the defendant, was by information charged jointly with Roy Tillett and H. Frank Moore with the crime of murder.' The defendant, May-field Fannin, was convicted of manslaughter in the first degree and his punishment fixed at five years in the state penitentiary. Motion for a new trial was filed, considered, overruled, and defendant duly excepted.

The testimony in this case shows the killing occurred • at an abandoned house in the northeast part of Bryan county, near the town of Matoy. The parties, who were intimate acquaintances and friends, had been together for more than a day prior to the killing. On the day of the killing, Fannin, Tillett, Moore, and McBride left the defendant’s home on foot. The testimony of the defendants Tillett and Moore tends to' show they left the home of the defendant for the purpose of seeing a span of mules that the deceased, Frank McBride, wanted to buy from Fannin; when they left the house they took a 22-caliber rifle belonging to Fannin with them; it is claimed they took the gun for the purpose of killing squirrels; when the deceased was found he had in his possession two butcher knives. The testimony shows the only persons present at the scene of the difficulty were the defendant Mayfield Fannin, Roy Tillett, and Frank Moore; that on the way to the abandoned house where the difficulty occurred they met Dock Plant, a neighbor, driving his team; Plant asked the parties to go with him to this abandoned house to assist him in loading a stove into the wagon; the stove was loaded in the wagon and Plant drove away; a shower of rain came up, and the defendant McBride, Moore, and Tillett remained at the house and engaged in shooting dice; one of the dice was lost, and they looked under the house, but could not find it, and the testimony on behalf of the parties present shows the deceased became angered at the defendant and accused him of losing the dice in order to break up the crap game; that the dice could not be found, and when the question of the mules came up they had some controversy about that; and finally it is contended the deceased tried to cut the defendant with one of the butcher knives, and did succeed in cutting him on the hand. The testimony of the defendant shows that deceased made an assault on him with the butcher knife, and in order to protect himself he fired the 22-caliber rifle, inflicting the wound upon the deceased from which he died. The defendant in his testimony insists that up to the time of the difficulty he and the deceased had been good friends, and that he only fired the shot when he believed he was in danger of losing his life or receiving great bodily harm at the hands of the deceased.

It is the contention of the state that the defendant suggested to the deceased, when the mule trade was being discussed, that be would buy tbe mules and give the deceased a uote for them provided tbe deceased would give him credit for $17.50 tbe defendant claims be bad paid for McBride to an attorney in Atoka; that tbe deceased resented this statement, and tbe trouble arose from tbe conversation that grew out of tbe contemplated trade between tbe deceased and tbe defendant. The defendant contends that he only acted in tbe necessary self-defense, and would not have fired tbe shot bad be not believed at tbe time of the firing that the deceased was going to do him great bodily barm with tbe knife tbe deceased was assaulting him with.

This is, in substance, tbe testimony of the defendant, and Tillett and Moore, tbe two witnesses who were jointly charged with tbe defendant.

Tbe defendant has argued eleven errors alleged to have been committed by tbe court in tbe trial of bis case. Tbe record discloses that tbe defendant demurred to tbe information on tbe ground: First, that tbe information filed in this cause does not follow tbe requirements of tbe laws of Oklahoma as provided in matters of this kind. Second, that tbe facts set out in tbe information do' not state a cause of action against these defendants or either of them.

There is nothing in tbe record to show that this demurrer was passed on by tbe court. After this demurrer was filed, tbe record shows that tbe case was called for trial.

After a careful examination of the information, we bold that it stated sufficient facts to advise tbe defendants of the charge they were expected to meet. Tbe defendants in this case were charged with tbe crime of assault on tbe said Frank McBride with a rifle, and tbe use of tbe pleader in tbe information, after alleging tbe assault on Frank McBride with a rifle, of tbe words, “and other instruments,” did not affect tbe sufficiency of tbe charge in tbe information of shooting tbe deceased Frank McBride with a rifle.

It is further argued that the court erred in refusing to permit tbe defendant to cross-examine Nellie McBride, a daughter of the deceased, with reference to tbe defendant having- at one time assisted her father in tbe burial of one of the children. ' Tbe record discloses that tbe trial court permitted tbe defendant to cross-examine Nellie McBride and show that the defendant and her father, prior to this trouble, were good friends. This we .think was sufficient, and tbe question with reference to tbe defendant assisting in tbe burial of tbe child was immaterial and properly excluded from tbe jury; when the court permitted tbe defendant to show that prior to tbe difficulty tbe defendant and tbe deceased were friendly, it permitted the defendant to show everything that was competent in this connection, and it would add nothing to the friendship of the parties to show the various details of their friendship.

It is further urged by the defendant that the court permitted counsel for the state to ask certain improper questions of the codefendant Moore, who took the witness stand in his own behalf, and in behalf of this defendant.

The record discloses that the testimony complained of by the defendant is where Moore, who was one of the defendants, on cross-examination was asked:

“Didn’t you see the defendant Mayfield Fannin take his right hand and grab the wrist of McBride with his right hand, and put his hand against his breast and shove McBride back?”

The defendant contends that in asking this question of the witness Moore there was no proof upon which to base the question as to the defendant Fannin shoving the deceased back with his right hand. With this contention we cannot agree, as the record discloses that in the examination of the defendant Fannin the following appears :

“Q. Tell what happened on the porch? A. After we got back on the porch, we was all talking and I told the boys ‘let’s go home’ and my target was setting close to this water shelf and I reached down and got it and started home and McBride — I made I guess two' steps — he said, ‘What are you going to do about the mules?’ and I said, ‘Frank, I will let you have them for $ 125, if you will put that $17.15 in that I paid for you at Atoka and I will let you have them and make a note for next fall.’
“Q. What did he say? A. He said, T don’t owe you a damn cent and I am going to have that dice, you son of a bitch, or cut your God damn head off’ — I—he was standing like that and pulled his breeches up and he had a butcher knife and was coming at me like this and I throwed my hand up like this and pushed him back again and asked him not to do it—
“Q. Show the jury what position he was in? A. Like this (indicating).
“Q. Was he as tall a man as I am? A. No, sir.
“Q. Was he over— A. Like this.
“What did you do? A. I grabbed the gun and caught hold of it like this and fired.”

It is further urged by the defendant that his conviction is not sustained by sufficient evidence, and the defendant invites the attention of the court to the fact that there were no eyewitnesses to the difficulty except the three defendants who were on trial charged with the murder of McBride, and tbeir stories all agree as to bow tbe trouble arose.

There is no conflict in tbe testimony as to wbat brought on tbe trouble, and it is true tbe only witnesses to tbe shooting were tbe three defendants. Tbe jury beard tbeir testimony and reached its verdict from tbe statements made by tbe defendants. This court has repeatedly held that tbe jury is tbe sole and exclusive judge of tbe weight of tbe evidence and the credibility of tbe witnesses, and if tbe evidence is such that different inferences may properly be drawn from it, tbe determination of tbe jury will not be interfered with unless there is no competent evidence to sustain tbe conviction, or that tbe verdict appears to have been influenced by passion or prejudice. There is nothing in tbe record which indicates that the jury was influenced by prejudice or passion. Tbe testimony is sufficient to sustain tbe verdict.

Other errors are assigned which do not possess sufficient merit to warrant a reversal of this case. Tbe defendant was accorded a fair and impartial trial. Tbe court substantially instructed the jury on tbe law applicable to tbe facts in tbe case. There being no errors in tbe record of sufficient merit to require a reversal, tbe judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    MACK HALFORD v. STATE.
    No. A-7646.
    Opinion Filed Oct. 4, 1930.
    (291 Pac. 987.)

      Clay Snodgrass and W. M. Williams, for plaintiff in error.
    Tbe Attorney General, for tbe State.
   CHAPPELL, J.

Plaintiff in error was convicted in tbe county court of Greer county on a charge of tbe unlawful sale of a gallon of wbisky, and bis punishment fixed by tbe jury at a fine of |200 and imprisonment in tbe county jail for 90 days.

Tbe state called as witnesses J. W. Penley and Earl Fennel, who testified that Earl Fennel purchased a gallon of wbisky from tbe defendant, paying him $5 therefor. Tbe defendant, testifying for himself, denied this sale.

Counsel in bis brief says:

“Tbe defendant makes only one assignment of error, which includes tbe error of the trial court in overruling bis motion for new trial, to-wit: That tbe verdict is not supported by and is contrary to tbe law and tbe evidence.
“Tbe defendant, likewise, makes only one proposition: That tbe evidence introduced in this cause is insufficient to support the verdict of tbe jury.”

From an examination of tbe record we find there is sufficient competent evidence to support tbe verdict of tbe jury.

No error being apparent, tbe cause is affirmed.

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


text:
    L. L. MORRIS v. STATE.
    No. A-7209.
    Opinion Filed Oct. 4, 1930.
    (292 Pac. 79.)
    Warren B. Phillips and J. R. Huggins, for plaintiff in error.
    J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The information upon which the defendant was tried reads as follows:

"Comes now Homer H. Bishop, the duly qualified and acting county attorney in and for Seminole county, state of Oklahoma, and gives the district court of said county and state to know and be informed: That at and in the county of Seminole and the state of Oklahoma, on the 4th day of September, 1927, L. L. Morris, did then and there wilfully, unlawfully, intentionally and feloniously and by means of a firearm, to wit: a pistol, held in the hands of him the said L. L. Morris, hold up, high jack and rob Jake Myers of the sum of two hundred dollars in good and lawful money of the United States of America, and against the peace and dignity of the state.
“Homer H. Bishop,
“County Attorney.”

Defendant demurred to this information on tbe ground that it does not state facts sufficient to constitute a cause of action against tbe defendant, wbicb demurrer was by tbe court overruled.

On appeal tbe defendant assigns tbe overruling of bis demurrer to sucb information as bis third ground of error committed by the trial court.

Section 1784, C. O. S. 1921, defines “robbery” as follows :

“Robbery is a wrongful taking of personal property in tbe possession of another from his person or immediate presence and against his will, accomplished by means of force or fear.”

Section 1785, Id., provides:

“To constitute robbery, tbe force or fear must be employed either to obtain or retain possession of tbe property, or to prevent or overcome resistance to tbe taking. If employed merely as a means of escape, it does not constitute robbery.”

Tbe information in tbe case at bar does not contain tbe essential allegations that tbe alleged stolen property was taken from tbe possession of another, or from his person or immediate presence and against his will, and that sucb taking was accomplished by means of force or fear.

This court has frequently bad under consideration tbe sufficiency of informations in cases of this kind, and has uniformly held informations similar to tbe one in the case at bar to be insufficient. Ex parte Grant, 32 Okla. Cr. 217, 240 Pac. 759; Ward v. State, 34 Okla. Cr. 296, 246 Pac. 664.

There are numerous cases decided by this court setting forth forms of information wbicb have been held sufficient to charge the crime of robbery with firearms. Wilson v. State, 28 Okla. Cr. 102, 228 Pac. 1108; Dickson v. State, 26 Okla. Cr. 403, 224 Pac. 723; Hill v. State, 19 Okla. Cr. 406, 200 Pac. 253.

County attorneys should prepare their informations with extreme care. There is no excuse for an experienced county attorney filing: an information like the one filed in the case at bar. Here he attempts to' charge the defendant with a capital offense, without charging either in the language of the statute or in any language of similar import the essential elements to constitute such a crime.

This court has been liberal in its construction of in-formations and will continue to do so, but it cannot stretch the law to sustain informations such as this one is. If the trial court had examined the; information in this case, we are sure he would have sustained the demurrer and thus saved the state the added expense of another trial and hastened the administration of justice.

The defendant contends further that the court erred in forcing him to trial. The record discloses that the defendant was informed against on the 19th day of April, and was arraigned on the 24th of April and entered his plea of not guilty. On the 25th of April the court permitted him to withdraw his plea of not guilty and file a demurrer to the information. On the 30th day of April, when the case was called for trial, the county attorney asked leave to amend the information by charging that the offense was committed on the 4th day of September, 1927, instead of 1928. Permission was granted and the information thus amended. Thereupon the defendant was arraigned and entered his plea of not guilty to the amended information and asked time to prepare for trial. This the court refused to grant. Defendant then asked for time until 1 o’clock to make his announcement on the call for trial. The court denied this application and forced defendant to trial immediately.

While we have no statute fixing the time defendant should he allowed in which to prepare for trial, yet this court has said that no defendant ought to be brought to' trial over his objection within ten days of the date of arraignment. Westbrook v. State, 14 Okla. Cr. 423, 172 Pac. 464; Jacobs v. State, 29 Okla. Cr. 140, 232 Pac. 861.

The requirement that the defendant should be given ten days is not an arbitrary one. The trial court is vested with discretion in such matters, and no case will be reversed for failure to give the ten days, unless it affirmatively appears from the record that the defendant has been arbitrarily brought to trial without sufficient time to make preparation.

Trial courts are to be commended for their zeal in bringing about speedy trials in criminal cases, but in a case like the one at bar, involving a possible death penalty, the defendant should not be rushed into trial, but should be given as much as ten days after his plea has been entered in which to prepare for trial.

For the reasons stated, the cause is reversed and remanded, with directions to the county attorney to file a proper information in said cause, and to the trial court to proceed thereafter with the trial of said cause as set forth in this opinion.

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


text:
    ELLIOTT BAKER v. STATE.
    No. A-7316.
    Opinion Filed Oct. 4, 1930.
    (292 Pac. 82.)
    Claud Briggs and C. R. Hunt, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter for convenience referred to as the defendant, was tried for murder and convicted of manslaughter in the first degree, and was sentenced to serve a term of five years in the state penitentiary. Motion for new trial, and motion in arrest of judgment was filed, considered, and overruled, exceptions saved, and the defendant by petition in error with case-made attached has appealed to this court.

The substance of the testimony of the state is as follows :

Mrs. Mary Sherfield stated that on the 18th of January, 1927, she was living on the Wayne Boone place in Latimer county, Oída.—

“J. W. Sherfield was my husband at that time; 1 knew Elliott Baker; he married my daughter, who was a stepdaughter of J. W. Sherfield; Elliott Baker, his wife and baby came to our house about 7:30 p. m., and holloed; we had gone to bed; Mr. Sherfield got up and went to the door and asked who was there, and no one answered, and he opened the door and Annie and Elliott were at the door, and they rushed in, and Mr. Sherfield said, ‘Hello children, come in’; Elliott was carrying two suitcases in his left hand and had his right hand in his pocket; Annie was carrying the baby; Annie sat down and Elliott kindly walked around; Mr. Sherfield went back to the bed and put his clothes on and came back to the fire; the parties were talking back and forth, and after they got warm I asked them if they had had any snpper and they said they had not, and my daughter Florence and I stepped in to' fix some snpper; Mr. Sherfield was standing in front of the fire place and Elliott was walking around; when we got supper ready, Annie came in, but Elliott refused to come in; Mr. Sherfield tried to get him to come in, and Elliott said he did not want any of the God damned old stuff; Annie ate her snpper, and Elliott said he wanted to know why we had not answered the letters he had written, and we said we did not get his letters; he said he had written three letters and sent a phone message; my hnsband, Wellington, spoke up and said we did not get any of them; Elliott kept quarreling around about it, and kept asking us about not answering his letters and abont having sent a phone message to the Blalock place; I went in the north room and waked Boy Sherfield and told him to go and get Walter Norman; I believed we were going to have some trouble; in a few minutes Walter Norman and Boy came in; when they came in Elliott jumped up and said, ‘Looks like you have sent for more kelp, I am ready for them, I am a mean Indian and have plenty of money to> pay my way, and if I have to go to jail I don’t care, jail is my home;’ my husband told him there was no one mad at him, and he replied, ‘I know a damn sight better;’ the defendant then told Annie to get her wraps, and Wellington said it was too far and cold for them to start out again, but ‘if nothing will do you but go home, there is the door,’ and Elliott said, ‘Make me,’ and went toward Mr. Sherfield, and Mr. Sherfield pushed him back; Elliott come up again and cut my husband with a knife in the left side; Walter Norman took the knife away from Elliott and kindly pushed and scuffled with the defendant and got him out of the house and bolted the door; my husband staggered to the bed and said he was cut; he laid down on the bed and began groaning and said he was sick and began to vomit; Walter Norman went for Sherman Walden and brought him to the house; Elliott Baker called and wanted me to come out of the house, and I went out on the porch, and he said he would come to see me more often but he did not like Mr. Sherfield; I went back in the house and he called me again; Sherman Walden went for the doctor; Mr. Sherfield did not attack the defendant in any way; he did not have a pistol or a knife; there was a six-shooter in the house, but it was between two mattresses on the bed; Mr. Wayne Boone had left a gun hanging up on a rack; after the trouble began I raised up the mattress and took out the pistol; Elliott was still in the yard, and I took it out thinking if Elliott started in the door I would have some protection; when he did not start in the door I put it back; Mr. Sherfield did not come in the room while Annie was eating her supper. This occurred on the 18th day of January, 1927, and on the 23d day of January, 1927, Mr. Sherfield died; he got up a few minutes on the third day and also on the fourth day; he was only up a short while each time; he was in his usual good health when he was cut by the defendant; the doctor was called and treated him and saw him three or four times before his death; the doctor left some tablets to give him and he took several of them to ease Mm down when he was suffering; we gave him some the day he died; I do not know how many, I gave them as the doctor prescribed them to ease him; he was conscious until he died; there was no discoloration of the skin, it was normal; Mr. Sherfield was 50 years of age and his weight was 245 pounds; he was in good health.”

Her testimony was, in substance, the same on cross-examination as in her direct examination.

John Foster was called as a witness and testified with reference to a conversation he had heard the defendant have with Wayne Boone, the day of the trouble at night, and stated the defendant seemed to be in a bad humor; “I could tell from the way he talked; he is an Indian and does not talk very plain.”

Wayne Boone also testified to seeing the defendant in Wilburton on the day prior to the trouble at night, and stated the defendant seemed to be in a bad frame of mind; “the defendant told me that Mr. Sherfield was to meet them but did not; it was raining and the defendant was sore about it; Mr. Sherfield lived on my place.”

Walter Mitchell testified he saw the defendant on the streets at Wilburton; “he asked me to take him out to Mr. Sherfield’s home; I told him I could not go but would probably see some one in town who would take him out; he said Mr. Sherfield was supposed to meet them there but the son of a bitch did not come, that he would find out when he got out there why he did not come for them.”

Walter Norman testified that on January 18, 1927, he was living on the Wayne Boone place in Latimer county—

“I knew Elliott Baker, and also J. W. Sherfield in his lifetime; I am J. W. Sherfield’s son-in-law; on January 18, 1927, I was living about two hundred yards from Sher-field, on the opposite side of Gaines creek; about 7 or 7:30 that night Elliott Baker and his wife and baby came to my house, he was carrying two suit cases; they remained a few minutes and I took a lantern and helped them across the foot log; about 30 or 35 minutes later I saw him at the Sherfield home; shortly thereafter I went with Roy Sherfield to the Sherfield home; I went in the house at the east room and set down in a corner on some pine; the defendant Baker was there, when I went in he was sitting down; he got up and said, ‘You have help now, I am ready for you’; Mr. Sherfield and I said about the same time, that I had come to see the baby; the defendant then told his wife to get her wraps, they were going home, ‘they are mad at us’; Mr. Sherfield said there was nobody mad; the defendant again told his wife to get ready, they were going, and Mr. Sherfield said, ‘if there is nothing else will do you, there is the door, hit it’; Mr. Sherfield was standing up at the time; Elliott said, ‘Make me,’ and started toward him; Mr. Sherfield shoved him back and when Elliott came back to him he cut him on the left side; I don’t know whether Mr. Sher-field hit him or not, or what you would call it, he sorty hit him that way (indicating with his hand) ; Elliott Baker came toward Mr. Sherfield before Mr. Sherfield hit him or shoved him back; I did not see just what he did at the time they made that play, I got back behind Elliott and grabbed his arm; we scrambled around in the house and I took the knife away from him, they got the door open and I shoved him out in the yard; his wife told him no one was mad at him; after we shoved him out we closed the door and Mr. Sherfield laid down on the bed; I went after Sherman Walden; I asked Mr. Sherfield if he wanted Mr. Walden to go- for a doctor, and I went for Mr. Walden who lived about a quarter of a mile away; the defendant Baiter was there when I got back; he asked me if we were going after the law and I told him ‘No’; Sherman told him he was going to see how Mr. Sherfield was; I gave the knife back to Elliott; he told me to get his hat and Ms knife and he would go home; he went away in a few minutes; Florence Sherfield and I went to help him across the foot log and then went back to the house; I did not see Mr. Sherfield have a pistol, nor did I see him reach in his bib overall pocket; I did not see him have a knife; I did not see him offer to hurt Elliott Baker in any way.”

On cross-examination, witness stated that defendant and his wife came by his house before they came to the Sherfield home—

“I helped them across the foot log; it was drizzling rain; I went back home and sat by the fire awhile before going to bed; my house is right on the bank of the creek; it was about 100 or 150 yards from the creek to the Sherfield house.”

Witness, in substance, stated the same facts on cross-examination as he did on his direct examination as to what took place in the house and what was said by each of the parties before the difficulty started when the defendant cut the deceased with a knife.

Dr. E. B. Walker was called on behalf of the state, and testified to being called to see J. W. Sherfield on the 18th day of January, 1927—

“The deceased had a cut about three inches long I believe it was; I dressed his wound and sewed it up; I took, I think, three stitches; I saw him two or three times after that; I was to see him the morning before he died that night; I don’t know what hour he died; blood poison was the cause of his death; he got an infection from the wound; the wound was the cause of his death.”

On cross-examination witness stated he was at the Huskins Drug Store in Wilburton when he received the call to go see the deceased, Sherfield—

“I cleaned the wound and saw the shape it was in; I saw he was not bleeding through the wound and did not think it was necessary to probe the wound; the wound was on the left side about two inches below the heart; it had been so long I had to study to think which side the man was lying on before I could tell which side it was on; it was about two years ago; I attended the deceased three or four times before his death; if the deceased had any chills or high fever I never heard of it; if there was any pimples or blisters inside his arm I never saw them; there was none on his chest so far as I know; I don’t know whether his spleen was enlarged or not; I did not think where the cut was in his side it was necessary to examine his spleen; I did not have any blood culture made; I had seen the symptoms; there is different kinds of blood poison, some have chills and high fever, and some do not have any fever ;I don’t remember making a statement at Mr. Pate’s place, in the presence of Mr. and Mrs. Pate, that the deceased did not die from the effect of the wound: that he must have died from peritonitis; I don’t remember that I made such a statement, I would not say I did; I prescribed and left a lot of five grain acetanilide tablets to give Mr. Sherfield, it was a sort of a compound, I think their denomination was five grains, I had them in my case; five grains of acetanilide and sodium bromide; he was to take them every four hours; I also left him some zinc sulpho carbonite; they were white tablets; the acetani-lide tablets were also white.”

Sherman Walden testified that on the 18th day of January, 1927, he was over to J. W. Sherfield’s home—

“The defendant was there; it was 9, 9:30, or maybe 10 o’clock in the night; the defendant was standing out in the yard; when I went up he asked me if I was going after the law and I told him ‘No,7 that I was going to see how bad the old man was cut; he made me feel of his head; he acted like he was mad; he said he come there to kill the old son of a bitch, and I asked him what was the trouble and the defendant said, T had to walk and carry the baby across the mountain in the rain’; the defendant then said, ‘I want you to get the law, jail is my home anyhow.’ ”

On cross-examination the witness, in substance, stated the same as he had stated on direct examination as to the statements made by the defendant when he went to the home of the deceased.

John Sherfield, called as a witness, in substance, stated:

“J. W. Sherfield was my brother; I was at his home on the 22d day of January, 1927, and remained there until J. W. Sherfield died; he was groaning and taking on and complained of the cut the boy made with the knife; there was no discoloration of the skin that I could see.”

On cross-examination, witness stated he saw no blue spots or pimples around the chest or abdomen—

“I did not see the wound, it had a plaster over it; it was not discolored around where the plaster was; I could not say his fever was high; he was not delirious; I did not give him any medicine; I did not pay very close attention as to what the examination of the doctor was.”

Mrs. Mary Sherfield was recalled and asked if she had a daughter named Florence, and answered that she did, that Florence was a sister of Mrs. Elliott Baker.

On behalf of the defendant, Mrs. Annie Baker testified he was her husband; that on the 18th day of January, 1927, they went to the home of her mother, Mrs. Sher-field, who was the wife of J. W. Sherfield; she had been married to the defendant five years—

“I was living with my mother at Spiro when I married; at the time my mother was married to J. W. Sher-field I was about ten years old; it had been some time since I had visited them; the last time I visited them they were living at Mr. Cathey’s place. It had been just about a year previous to the time I made the visit in January, 1927, that I had visited them; the day my husband and I came over to Wilburton we sent a phone message to my mother; we left Wilburton about 4 o’clock and walked out to where my mother and stepfather was living on the Wayne Boone place; it was about ten miles across the mountain; we arrived at the Sherfield home about 9 o’clock; my husband holloed and they finally came and opened the door; we went in and my husband asked why they did not meet us, and my mother said they did not get the message until about 4 o’clock, they had been hauling wood; my husband asked if they got the letters and cards; they kindly quarreled; my sister and mother went in and set supper and I went in to eat; they asked Elliott to eat but he said he did not want any thing to eat; my stepfather came in and tried to put his arms around me, and tried to love me, and said, ‘What about it?’ and when I went in I stooped down and told my husband, and he said for me to get my wraps and let’s go, and Mr. Sherfield said, ‘You have got to settle this trouble before you go’; I was putting on my wraps; Walter Norman came in after I came out of the dining room and told my husband what the deceased said to me in the dining room; Norman sat down on some wood by the fireplace; at the time Elliott was sitting kindly in the corner; Mr. Sherfield was next to the kitchen door; when Mr. Sherfield said, ‘You have got to settle this,’ Elliott started to get up and Mr. Sherfield hit him over the left eye with his fist; then they commenced scrambling around and my stepfather drew a gun on Elliott; he got his gun from the bib of his breeches or pocket, I could not tell; when Mr. Sherfield drew the gun I ran in between them; I had on my wraps and my baby was in my arms; the suitcases were standing by the front door; when Mr. Sherfield hit Elliott he and Elliott got into a fight; after Mr. Sherfield drew the gun and I ran in between them, Walter Norman put Elliott out of the door; when I ran in between them Elliott made some kind of a round, I don’t know just what he did; when Elliott made this play around, Walter Norman grabbed him by the arms and put him out of the door.”

A number of questions were asked and answered with reference to the deceased carrying- a gun and when persons came to the house and holloed at night he would take a gun to the door with him.

The defendant then offered to prove the deceased had on various occasions prior to the trouble made improper proposals to his wife, some before her marriage and some after, which offer was denied, and the defendant excepted.

The cross-examination of the witness as to- what took place in the room from the time she and her husband arrived at the home of the deceased was practically the same as her testimony on direct examination.

A. B. Kollins testified his profession was embalmer, and that he prepared for burial the body of the deceased, Sherfield. Witness then stated he paid no particular attention to the wound in the side of the deceased; that he took about two gallons of fluid from the body, which was a greyish green color. Witness further stated, when a person died from blood poisoning or septic poisoning, sometimes there will be discoloration around the wound and on the body, but you cannot be certain; you cannot always tell whether a person died with peritonitis, as there is always gas on the stomach, no matter from what cause a person dies.

Dr. J. N. Harris testified for the defendant, and was asked a hypothetical question showing the condition of the deceased’s body, and in answer stated:

“The case presenting such a state of facts as indicated, I could in no way diagnose it as blood poisoning or streptococcus septicemia.”

The doctor, after having been asked several questions as to what kind of medicine had been administered to the deceased, was then asked the following question:

“Under these conditions named, the deceased having gone to bed after receiving the wound, and remaining there five days, and then dying, being in his usual health, was the wound the proximate cause of his death, the contributing cause of his death, not a question of whether or not he had blood poisoning?”

And the doctor answered:

“It would seem under conditions of that kind, the man being healthy, normal up to that time, it would seem that the wound in a material way was responsible for his death.”

On further cross-examination, the doctor was asked, “If the symptoms that have been outlined tO' you, can these symptoms satisfy your mind that he died from blood poisoning from the effect of the wound?” and he answered, “I can’t think so.” The doctor was then asked: - “If he died from acetanilide poisoning wouldn’t there have been discernible a very marked discoloration of his lips and face? A. There would have been discernible a cynosis blueness which would have been easily discernible. Q. Could that have been easily seen? A. Yes, sir.”

J. M. Pate testified that the night Mr. Sherfield died Dr. Walker stayed all night at his place; that Dr. Walker made a statement at the breakfast table that Mr. Sher-field died with acute peritonitis—

“I do not remember all the conversation, did not think much about it; the day before this statement was made he got a thermometer from me and returned it the same day about 4 o’clock in the afternoon.”

On cross-examination, witness was asked with reference to his feeling toward Dr. Walker, and stated that he and Dr. Walker had had some little trouble, and he paid a fine for having a fight with the doctor. Other witnesses were called to show that Dr. Walker made the statement that Mr. Sherfield died of peritonitis. J. A. Blalock was asked as to whether or not Mr. Sherfield was addicted to the use of liquor, and stated he had seen him when he was drinking, and that the deceased has discussed with him his custom of carrying a gun. This conversation took place while the deceased lived a neighbor to him.

Duke Stallaby stated, in substance, that he saw the defendant on the 19th day of January, 1927, at the Commercial Hotel, in Wilburton; that the defendant had black spots on his face and on his right eye; that the defendant went home with him to Bed Oak that day. On cross-examination, he stated the spots did not amount to much, but that one could easily see them.

Emeline Stallaby, Charley Baseden, and John Bram-lett, in substance, testified to having seen the defendant the day after the trouble and as to the discoloration on his face and eye. This is, in substance, the testimony of the state and the defense.

The defendant has assigned and argued 11 errors alleged to have been committed by the court in the trial of his case. There is no conflict in the evidence, which tends to show that prior to the night of the difficulty the defendant was in good health, and was at home with his family when the defendant and his wife arrived at the home of the deceased; that, after they arrived at the deceased’s home, a controversy arose between them, and the defendant contends the deceased struck him and started to draw a pistol on him when he cut the deceased with a knife.

An examination of the information in this case shows that it stated facts sufficient to charge the defendant with the crime of murder. The defendant urges that the proof of the state failed to show that the defendant used a deadly weapon, that a knife is not, per se, a deadly weapon, and cites Collins v. State, 22 Okla. Cr. 203, 201 Pac. 285, 30 A. L. R. 811, to sustain his contention.

Volume 8 R. C. L. 289, § 310, defines a dangerous or deadly weapon, and among other things it says, under a statute against carrying concealed weapons, a knife was held to be a deadly weapon. The evidence shows conclusively that the defendant cut the deceased with a knife. The testimony of the eyewitnesses tends to show what took place at the time of the difficulty.

It is further urged by the defendant that the wound inflicted on the deceased was only a flesh wound, and that the testimony fails to show that the wound was the proximate cause of the death of the deceased. Dr. J. N. Harris, who testified on behalf of the defendant, admitted that, under certain facts detailed in a hypothetical question to him, by the county attorney, the wound inflicted upon the deceased undoubtedly contributed to and hastened the death of the deceased. The evidence tends to show the condition of the deceased’s health was good prior to the time the wound was inflicted, and that he went to bed that night and remained in bed, except he was up for a f(ew minutes a couple of times prior to his death, and tended to show that the wound was the proximate cause of the death of the deceased. When considered in connection with the evidence of his good health at the time the wound was inflicted, and the testimony of what took place at the time of the difficulty, while conflicting, the evidence is sufficient to sustain the verdict.

The defendant contends that the trial court erred in giving instruction No. 11, which is as follows:

“You are instructed that there is ño evidence in this case showing or tending to show that the homicide in this case was excusable homicide, and this degree of homicide will not be defined to you further than to say that it is a certain kind of accidental killing.”

This instruction is one that is usually given by the trial judge when it is apparent from the testimony that the alleged killing is not an accidental one, and where there is no testimony to warrant the court in submitting an instruction on accidental killing. This court has repeatedly held that it is not necessary for the trial court to define or instruct the jury on any degree of homicide not in the case. Newby v. State, 17 Okla. Cr. 291, 188 Pac. 124.

Section 2722, O. O. S. 1921, provides:

“In charging the jury, the court must state to them all matters of law which it thinks necessary for their information in giving their verdict.”

It is apparent that instruction No. 11 did not in any way mislead the jury as to its duty in this case.

It is next contended by the defendant that the court erred in refusing to give requested instructions 5 and 6; instruction 5 being as follows:

“Before the defendant can be convicted in this case, the state must prove beyond a reasonable doubt that the wound inflicted was in itself a mortal wound, for where the wound or injury is not in its nature mortal and not in itself such a wound as would likely produce death, the state must prove, beyond a reasonable doubt, that the deceased died as a result of septic poisoning, occasioned by the wound and in this connection, you are instructed that if, from the evidence, you believe, or have a reasonable doubt thereof, that death resulted of the improper treatment of the wound by an attending physician or surgeon or that death was caused by medical mistreatment of the wound and not the wound itself was the sole cause of his death, then the defendant should be acquitted.”

Instruction No. 5 was properly refused, as it is apparent from the instruction that it does not properly state the law. In Harrison v. State, 18 Okla. Cr. 403, 195 Pac. 511, the court, in stating the rule, cited with approval, 21 Cyc. 700, which is as follows :

“If a wound or other injury cause a disease, such as gangrene, empyema, erysipelas, pneumonia, or the like, from which deceased dies, he who inflicted the wound or other injury is responsible for the death. * * * He who inflicted the injury is liable even though the medical or surgical treatment which was the direct cause of the death was erroneous or unskillful, or although the death was due to negligence or failure by the deceased to procure treatment or take proper care of the wound.”

It is sufficient if the wound inflicted on the deceased was the proximate and contributing cause of his death.

Instruction No. 6 is as follows:

“You are instructed that unless you believe from the evidence beyond a reasonable doubt that the deceased came to his death as a result of the wound and that death was not caused by independent or intervening causes occasioned by gross mistreatment by a physician or from other causes not superinduced by the wound, then you should acquit the defendant.”

The general instructions of the court sufficiently covered the law requested by the defendant in his fifth and sixth instructions, and substantially advised the jury as to the law applicable to the facts in the case.

It is urged by the defendant that this case should be reversed on the ground of variance between the proof and the allegations in the information, relying on Elliott v. State, 4 Okla. Cr. 224, 111 Pac. 820, 140 Am. St. Rep. 683, to sustain Ms contention. An examination of Elliott v. State, supra, relied on by the defendant, clearly shows it is not in point. In this case the allegations in the information allege an assault on the deceased with a knife, and then state that the defendant cut the deceased with the knife, inflicting a wound upon the body of the deceased which caused his death. There is no fatal variance between the allegations in the information and the evidence offered in support of the allegations.

After a careful reading and study of the evidence contained in the record, we hold that the corpus delicti is sufficiently established, that the defendant was accorded a fair and impartial trial, and that the evidence is amply sufficient to support the verdict and judgment.

No errors appearing in the record of sufficient merit to warrant a reversal, the judgment is affirmed.

EDWABDS, P. J., and CHAPPELL, J., concur.


author: PER CURIAM.

text:
    W. T. McELHINNEY v. STATE.
    No. A-7530.
    Opinion Filed June 5, 1930.
    Rehearing Denied Oct. 4, 1930.
    (292 Pac. 81.)

      H. A. Johnson, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted of selling whisky, and sentenced to- pay a fine of f 50 and costs and be confined in the county jail for a period of 30 days, from which judgment and sentence the plaintiff in error has appealed to this court. The appeal in this case was filed in this court August 30, 1929. No briefs have been filed on behalf of plaintiff in error, and no appearance made for oral argument.

Where no briefs are filed and no appearance made, the court will presume that the appeal has been abandoned or is without merit. A careful examination of the record disclosesi that the evidence is sufficient to support the verdict of the jury.

No fundamental or prejudicial errors appearing in the record, the judgment of the trial court is affirmed.


text:
    W. E. BRADLEY v. STATE.
    No. A-7532.
    Opinion Filed June 5, 1930.
    Rehearing Denied Oct. 4, 1930.
    (292 Pac. 81.)

      H. A. Johnson, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter for convenience called the defendant, was convicted of selling one pint of whisky, and sentenced to pay a fine of $50 and he imprisoned in the county jail for 30 days, from which judgment and sentence the defendant has appealed.

Petition in error and case-made was filed in this court on August 30, 1929. Time has been extended for plaintiff in error to file brief in this case from time to time; the last extension given plaintiff in error to file brief expired on the 31st day of May, 1930. No further personal appearance has been made by the defendant, nor any further extension of time asked to file brief in support of his assignments of error.

Where no brief is filed and no personal appearance is made, the court presumes that the appeal is without merit or has been abandoned.

We have carefully examined the record, and find the information properly charged an offense; that the defendant was accorded a fair and impartial trial.

No fundamental or prejudicial errors appearing in the record, the judgment of the trial court is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    JOHN DOUGLAS v. STATE.
    No. A-7280.
    Opinion Filed Oct. 7, 1930.
    (291 Pac. 988.)

      J. W. Osmond and R. H. Morgan, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

When the case was called for trial, the defendant objected to the introduction of any evidence for the reason that the information charged that the offense was committed on July 29, 1928, and the only evidence to be offered by the state was obtained by the service of a search warrant on the 30th day of July, 1928. In the hearing upon this objection before the court it appeared that the information was filed in said court on the 29th day of July,, 1928, and charged that the defendant on July 29, 1928, was in unlawful possession of intoxicating liquor. The search warrant produced by the state showed that it was not issued until the 30th day of July, 1928, and the sheriff testified that he served the warrant on the 30th day of July, 1928. The only evidence offered against the defendant was that obtained by the service of the search warrant, and was inadmissible to support the charge of unlawful possession on the 29th day of July.

The state, having alleged possession on July 29, 1928, and the information having been filed on said date, the state might have proved thereunder possession on any date within three years prior thereto. Possession on July 30th would constitute another offense committed after the one stated by the information filed, and evidence obtained on such search would not be admissible to prove a violation of the law upon a date prior to the filing of the information.

For the reason stated, the cause is reversed.

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


text:
    HARVEY WHITE v. STATE.
    No. A-7345.
    Opinion Filed Oct. 11, 1930.
    (292 Pac. 371.)

      J. Hugh Nolen and S. A. Horton, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to' as the defendant, was convicted of larceny of a cow, and sentenced to a term of two' years in the state penitentiary. Motion for new trial was filed, considered, overruled, and the defendant excepted, and the case is appealed to this court.

The testimony, in substance, on behalf of the state, is that Hessie Pollard was the owner of a red mulley cow that he purchased from Clifford. Dean, in March, 1926; Pollard was using the cow as a milch cow and milked her the morning, of March 26,1926, and the night of March 26th she was taken from the Pollard place; on Saturday morning Pollard made a thorough search for the cow, and on Monday learned the cow had been seen in Paden, Okla., on Saturday.

Clifford Dean, who saw the cow in Paden, testified that on March 26, 1926, he saw the cow he sold Pollard the previous December being driven on the streets of Pa-den by a son of Claud Littrell; he was positive the cow that Littrell was driving was the cow he had sold Pollard.

Claud. Littrell testified that the red mulley cow was left in his lot Friday night, March 26, 1926, and the testimony shows that the cow was left in the lot by Harvey White. Littrell also testified he told White he could not use the cow, but that M. C. Howard, who was a trader in cattle, might use her.

M. C. Howard stated he bought the cow from Harvey White and paid him f22.50 for it; that on the following Monday morning he shipped the cow with a carload of other stock to the Oklahoma City market.

Jerry Littrell, son of Claud Littrell, stated he drove the cow from his father’s lot and placed her in Howard’s lot late Saturday afternoon, March 27, 1926.

Hessie Pollard testified he did not sell the cow or give any one permission to take her from his premises; that she was taken without his knowledge or consent.

The defendant in his testimony admitted putting a cow in the lot of Claud Littrell about the time the Pollard cow was lost, but says he purchased the cow from John Mills, who at the date of the trial was dead. The defendant also admitted in his testimony he drove the cow six miles from Boley to Paden after dark; that he did not go the road nearest to the Pollard home, which is between Boley and Paden. There was some testimony tending to show that immediately after the cow was missed the defendant left and was gone for some time. The defendant explained his absence by saying he was having trouble with his wife and left to' get away from the trouble. There was also testimony on behalf of the state tending to show that the defendant had talked with the prosecuting, witness trying to settle for the cow and stop the prosecution. This was denied by the defendant.

The defendant has assigned several errors alleged to have been committed by the court in the trial of his case. In his brief the defendant contends, first, that there was no reasonable identification of the cow which was alleged to have been taken from the prosecuting witness Pollard, and that the evidence is not sufficient to warrant a conviction on a charge of the larceny of a cow. The testimony of the state as to the identification of the cow that was seen on the streets of Paden on Saturday after the Pollard cow is alleged to have been taken on Friday night is positive. The witness Dean, who testified to selling the cow to Pollard, stated he saw the Littrell boy driving the cow he sold to Pollard on the streets of Paden; this cow was finally sold to M. C. Howard, who says he shipped this cow, together with others, the following Monday to the market in Oklahoma City.

It is true the defendant denies any knowledge of the taking of the Pollard cow. There is a conflict in the testimony which was a question for the jury to decide, and the jury decided that question in favor of the state. The jury saw the witnesses and heard the testimony. They were in a position to determine who was telling the truth. Where there is a conflict in the evidence, this court will not disturb the verdict of the jury if there is any competent evidence to support it. The evidence is sufficient to sustain the verdict.

The defendant next contends that the court failed to properly instruct the jury on the question of the possession of recently stolen property, and claims that he should have gone further than he did and advised the jury that the finding of recently stolen property in the possession of the accused is not alone sufficient to sustain the conviction of larceny, but amounts merely to an inference, and must be supported by other independent evidence of guilt. From an examination of the record, we fail to find any objection or exception to the instructions of the court as given, and the record fails to disclose any special instructions requested by the defendant. Where no exceptions are taken to the instructions of the trial court, there is nothing: for this court to consider. If the defendant desired special instructions upon any issue involved in the case, he should have submitted the same to the court and requested the court to give them; failing to submit the special instructions, and failing to except to the instructions as given by the court, the defendant cannot be heard for the first time to complain of the instructions given by the court, or the failure of the court to give instructions upon the issue involved in the trial.

It is next contended by the defendant that the trial court erred in overruling his motion for a new trial on the ground of newly discovered evidence. This assignment of error relates to the alleged error of the court in not permitting the defendant to have a new trial in order to procure the testmony of Mrs. John Mills, the widow of the man from whom the defendant contends he purchased the cow he sold to M. C. Howard in March, 1926. Motions for a new trial on the ground of newly discovered evidence rest largely in the discretion of the trial court, and its ruling thereon will not be disturbed except for an abuse of this discretion; the presumption being that the discretion was properly exercised. Stilwell v. State, 18 Okla. Cr. 10, 192 Pac. 253; McKinney v. State, 18 Okla. Cr. 562, 196 Pac. 974.

It is not error for the court to' overrule a motion for a new trial where it is apparent to the court that no proper diligence was shown to secure the attendance of the witness at the trial. In this case the defendant must have known that his defense would be that he bought this cow from John Mills, deceased, and if, as stated in his affidavit for continuance, the wife of John Mills was present at the time he purchased the cow, he must have known that fact, and could have with due diligence located the family and found where the widow of the deceased, John Mills, was living and had a subpoena issued and brought her into court. The record does not disclose the exercise of proper diligence to secure the evidence alleged to be newly discovered evidence, and it was not an abuse of discretion on the part of the trial court to overrule the motion. Johnson v. State, 21 Okla. Cr. 17, 204 Pac. 311; Carr v. State, 22 Okla. Cr. 371, 211 Pac. 423.

There are other errors assigned, but they do not possess sufficient merit to warrant a reversal of the case. After an examination of the entire record in this case, we hold that the defendant was accorded a fair and impartial trial; that the court substantially and correctly instructed the jury as to the law applicable to the facts in this case. There are no' errors in the record prejudicing the rights of the defendant.

The judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


author: DAYENPOKT, J.

text:
    JOE BEAR v. STATE.
    No. A-7346.
    Opinion Filed Oct. 11, 1930.
    (292 Pac. 373.)

      J. Hugh Nolen and S. A. Horton, for plaintiff in error.
    J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the state.
   DAYENPOKT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of assault with intent to kill, and sentenced to serve a term of one year and one day in the state penitentiary, from which judgment and sentence the defendant has appealed.

An abstract of the testimony, in substance, is that Thomas Cain, Martha Cain, Toots Douglass, Billy Hill, and Henehah Chupco went to the home of Mrs. Wesley, near the town of Castle, to a dance on the night of the alleged shooting; the Wesley children threw something at Mrs. Cain; Mrs. Cain and Mrs. Wesley got into a fight; Tom Cain and Billy Hill took up the cause of Mrs. Cain, Hallie Cheek coming to the rescue of Mrs. Wesley; when the fight was over, the Cains started to leave in their car, and the defendant, Joe Bear, appeared on the scene with a pistol and shot three times into the car where they were seated.

The testimony tends to show the parties were drinking. The testimony of the defendant is that he did not desire to injure the Cains, but shot his pistol into the ground to scare them and make them leave the place. The testimony of the state further tends to show that the bullets went through the windshield and hit the car; one of the bullets passing near the body of Tom Cain. The testimony shows conclusively that the defendant fired his pistol after the prosecuting witness and her husband had gotten into their car preparatory to leaving the home of Mrs. Wesley. Whether the defendant fired the pistol at the prosecuting witness and her husband, or whether he fired the shots into the ground to scare them away from the place, was a controverted question for the jury to determine.

The defendant has assigned several errors alleged to have been committed by the court in the trial of his case. The first assignment of error argued by the defendant is “that the evidence in this case clearly fails to show that there has been a crime committed as alleged in the information.”

In his argument the defendant insists that the testimony of Martha and Tom Cain is insufficient to show any offense has been committed. A careful reading of the testimony shows that the defendant in this case had taken no part in the fight that Mrs. Wesley and Mrs. Cain had indulged in, and that about the time the fight was over he went into the house and got his pistol and came out where the prosecuting witness and her husband were in their car preparatory to leaving, and fired three shots into the car, breaking the glass in the car. There is no conflict in the evidence as to what occurred at the Wesley home prior to the time the defendant appeared with his pistol and began shooting.

The testimony in this case is conflicting on the point of what the defendant intended to do when he fired the shots. The court properly instructed the jury as to the law applicable to the facts in this case. The jury heard the testimony, and found from the testimony and the instructions of the court that the defendant was guilty as charged in the information.

The other errors assigned are without merit. The defendant was accorded a fair and impartial trial. The court properly instructed tbe jury as to the law, and there are no errors appearing in the record of sufficient merit to warrant a reversal.

The judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


author: EDWARDS, P. J.

text:
    Ex parte CLYDE CLICK.
    No. A-7996.
    Opinion Filed Oct. 11, 1930.
    (292 Pac. 371.)
    Thompson & Kice, King & Crawford, J. Wm. Crawford, Claude V. Thompson, John P. Crawford, and C. O. Barton, for petitioner.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

This is an original proceeding in habeas corpus to be let to bail. Petitioner alleges that he is unlawfully restrained by the sheriff of Pontotoc county. That he is charged with murder for the killing of one J. D. Sloan, and upon a preliminary hearing before a magistrate was held without bail for the district court of Pontotoc county. That the proof is not evident nor the presumption great.

An examination of the transcript of the testimony taken at the preliminary hearing discloses that on the date charged petitioner made an unprovoked assault on the deceased Sloan. Eyewitnesses testified that just prior to the homicide deceased, who was a taxi driver, was looking at a passenger train as it arrived. Petitioner approached him from the rear, and, without any words being spoken, knocked him to the sidewalk, then kicked him several times on the head, got on the body and struck him with his fists, and made an expression of malice, when some one present asked that his further assault be prevented. There was a fracture on the left side of the head of deceased one and one-half inches long, a fracture on the right side about one inch long, and there were other wounds about the head and face. Death resulted from concussion of the brain.' The defendant did not take the stand, and offered no testimony.

It is well settled that, where the defendant in a capital case, held by an examining magistrate, makes application by habeas corpus to be let to bail, the burden is upon him to show facts sufficient to entitle him to bail unless such facts appear from the evidence adduced on the part of the prosecution. Ex parte Pope, 37 Okla. Cr. 366, 259 Pac. 149; Ex parte Whitenack, 38 Okla. Cr. 102, 259 Pac. 165; In re Jones, 41 Okla. Cr. 224, 271 Pac. 426; Ex parte Ditmore, 42 Okla. Cr. 111, 274 Pac. 697.

Here the evidence discloses an unprovoked and vicious assault without excuse or provocation. This court does not presume either justification or mitigation. In re Fraley, 3 Okla. Cr. 719, 109 Pac. 295, 139 Am. St. Rep. 988.

The writ is denied.

CHAPPELL, J., concurs.

DAVENPORT, J., dissents.


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    J. E. WHITE v. STATE.
    No. A-7257.
    Opinion Filed Oct. 11, 1930.
    (292 Pac. 369.)
    Amil H. Japp, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The evidence of the state was that in the trial of the case of C. B. Gammill, Plaintiff, v. J. E. White, Defendant, then on trial in the district court of Cotton county, this defendant, being the same person as the defendant J. E. White aforesaid, being sworn as a witness on his own behalf, testified in the trial of said cause that he purchased and obtained possession of the cow in controversy from one I. M. Gross at the sale of I. M. Gross, for the purchase price of $7.50 which defendant paid to one F. M. Ray, who was then and there the clerk of the I. M. Gross sale, when in truth and in fact the defendant was not the owner of the cow in controversy and had not purchased the same at the I. M. Gross sale, nor from any other person, and that defendant was not the owner of the cow in controversy at the time of the replevin trial in the district court and had not purchased said cow from I. M. Gross nor any other person, and knew that suck testimony was false at the time he gave it. And that defendant, with full knowledge that such testimony was false, willfully and corruptly gave the same. The evidence of the defendant and his witnesses was that he had purchased the cow in controversy from I. M. Gross, as he had testified, and that such testimony was true and given in good faith.

The defendant first contends that the information does not state facts sufficient to constitute any crime under the laws of the state. The information charges first that the case of Gammill v. White (this defendant) was pending in the district court of the Sixteenth judicial district, and being tried at the town of Walters, in Cotton county and that the court had jurisdiction to try the case and defendant was duly sworn to' testify in the case and that an oath was duly administered to J. E. White (this defendant) to testify the truth, the whole truth and nothing but the truth and the information further charges :

“That then and there it became a material question in said case as to who was the owner of said cow and as to where the said J. E. White purchased and obtained possession of said red mottled face cow above mentioned, said cow being the animal in question in said replevin suit; and that then and there the said J. E. White, being a witness duly sworn and testifying as aforesaid, did then and there knowingly, willfully, unlawfully, falsely, corruptly, feloniously and contrary to said oath testify, depose and say in substance and effect that he, J. E. White did purchase and obtain possession of said cow in controversy in said replevin suit as aforesaid, about the middle or a little later in October, 1922, from one I. M. Gross, at the sale of said I. M. Gross, for about $7.50' which he, the said J. E. White paid in currency to one M. F. Ray, who was then and there clerk of the said I. M. Gross sale, whereas in truth and in fact the said J. E. White did not purchase and did not obtain possession of said cow from said I. M. Gross at the sale of said I. M. Gross for about $7.50 paid in currency to the said M. F. Ray about the middle or a little later in October, 1922, and did not obtain possession of and did not buy nor purchase said cow from the said I. M. Gross at any time whatsoever, and the said I. M. Gross did never own nor claim to own the said animal in question in said replevin suit and the said J, E. White did not buy nor purchase said animal at said 1. M. Gross sale from the clerk of said sale at any time whatsoever nor from any agent of the said I. M. Gross, all of which the said J. E. White then and there, when he so testified as aforesaid well knew, and in all particulars the testimony, statement and declaration so testified and deposed unto by the said J. E. White, were then and there material matter in and to said case of C. B. Gammill, Plaintiff, v. J. E. White, Defendant, No. 2471 a replevin suit as aforesaid, there instituted, begun and heard as aforesaid, and were then and there not true but were false and corrupt, and were then and there believed and known by the said J. E. White to be false and untrue, contrary to the form of the statute in such case made and provided and against the peace and dignity of the state.”

Defendant did not demur to this information, but sought to raise the question of its sufficiency after the jury was impaneled by objection to the introduction of any evidence under the information.

This court has repeatedly held that, where the defendant goes to trial and for the first time objects to the information or indictment when the state attempts to introduce testimony thereunder, or upon appeal, or by ha-beas corpus, the objection should be overruled, if, by any intendment or presumption, the information or indictment can be sustained. Wilsford v. State, 8 Okla. Cr. 535, 129 Pac 80; Harrison v. State, 12 Okla. Cr. 398, 157 Pac. 707; Anderson v. State, 21 Okla. Cr. 193, 207 Pac. 977; Chamberlain v. State, 42 Okla. Cr. 410, 276 Pac. 507.

The information alleges sufficient facts to constitute the crime of perjury, and the court did not err in overruling defendant’s objection to the introduction of testimony.

Defendant next contends that the court erred in overruling his demurrer to the evidence, for the reason that the same was insufficient to support the verdict of the jury. The fact that the defendant gave the testimony alleged in the information was not disputed. The information charges that the defendant, knowing the evidence to be false, willfully and corruptly gave the same. The evidence of the state tended to support that allegation. The evidence of the defendant tended to show that the defendant’s testimony, which was alleged to be false and perjured, was true. The jury found this issue of the falsity of defendant’s testimony and his knowledge of its untruthfulness at the time he gave it, in favor of the state. Defendant cited numerous authorities to support Ms contention that the evidence must not only be false, but that the defendant must know it is false and must have willfully and corruptly given it. If the state had failed to allege and prove, not only that the evidence was false, but that defendant knew that it was false, and willfully and corruptly gave it, then his contention would be good, but that is not the condition of this record, and therefore the defendant’s authorities are not in point.

The case of Campbell v. State, 23 Okla. Cr. 251, 214 Pac. 738, 739, stated the rule to be:

“The material inquiries were: Was the proceeding one in which an oath may by law be administered? Did the party take an oath to testify, declare, depose, or certify truly before any competent tribunal, officer, or person? Did such person willfully and contrary to such oath state a material matter which he knew to be false?”

The case at bar falls squarely within this rule. The court therefore did not err in overruling the defendant’s demurrer to the evidence.

Defendant in his brief argues matters outside of the record and unsupported by any evidence, which cannot be considered by this court.

The errors complained of being without merit and the evidence being sufficient to support the verdict of the jury, the cause is affirmed.

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


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    CARL WHITSON v. STATE.
    No. A-7537.
    Opinion Filed Oct. 11, 1930.
    (292 Pac. 573.)
    Blanton, Osborn & Curtis and Rice & Mitchell, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of McClain county on a charge 'of selling cigarettes without a license, and his punishment fixed at a fine of $100.

The defendant in his brief says:

“We think all the questions necessary to be discussed can be argued under the second and third assignments of error, as follows:
“ ‘Second: Because the court erred in overruling the motion of plaintiff in error to arrest said judgment and sentence.
“ ‘Third: Because the court erred in overruling the demurrer of plaintiff in error to the information in said cause.’ ”

The defendant was prosecuted under section 1975, C. O. S. 1921, which provides as follows:

“It shall be unlawful for any individual or corpo ration to sell, offer for sale, give away, barter or otherwise dispose of upon any pretext or advertisement or to bring into the state for purpose of selling, offering for sale, giving away, bartering or otherwise disposing of any cigarettes, cigarette papers or substitutes therefor, or to' solicit the purchase or sale of any such cigarettes, or cigarette papers or substitute therefor, either in person or by sign, circular, letter, card, price list, advertisement, sign or notice, wherein such cigarette papers or substitutes therefor may be manufactured, sold, given away, bartered, found or otherwise disposed of without having first procured a license therefor, and the execution of a bond as hereinafter provided; a violation of any provision of this section shall constitute a misdemeanor and shall be punished by a fine of not less than one hundred dollars nor more than one thousand dollars, and by incarceration in the county jail for a period not exceeding one year; provided, that the provisions of this section shall not apply to jobbers and wholesalers of cigarettes and cigarette papers.”

The charging part of the information reads as follows:

“That the said Carl Whitson, in McClain county, state of Oklahoma on or about the 26th day of January, 1929, and prior thereto, did then and there knowingly, willfully and unlawfully, sell, offer for sale and give away cigarettes and cigarette papers from and out of the building now occupied by the Blanchard Athletic Association in the town of Blanchard, Okla., without having first procured a license therefor from the county clerk of McClain county, and having executed a good and sufficient bond as provided for in such cases,” etc.

A demurrer was filed t.o this information and overruled. Defendant contends that the information is defective, first, because it is duplicitous. The charge is in the language of the statute and under numerous decisions of this court is sufficient.

Second, the defendant contends that the information is insufficient because it fails to allege the name of the person to whom the sale was made.

In 33 Corpus Juris, p. 599, § 225, the rule is stated:

“Where a system of granting licenses is provided for by statutes and all persons prohibited from selling intoxicating liquor without procuring a license, under penalty of prosecution and punishment, the obtaining of a license is an absolute prerequisite to the right to sell. No substitute for it will avail, and no excuse for a failure to obtain it will be heard, unless the offender can bring himself within an accepted or privileged class. And if the person prosecuted has no license at all, and therefore no authority to sell under any circumstances, it makes no difference that the sales made were also in violation of the Sunday law, and the quantity of liquor included in the sale is immaterial as is also the fact that the sale was made to a minor or other prohibited person.”

In the case of State v. Haney, 151 Mo. App. 251, 132 S. W. 55, in the first paragraph of the syllabus that court said :

“An indictment against one other than a druggist for wrongfully selling liquor without a license need not state the name of the person to whom the sale was made, or that the sale was made to a person or persons to the grand jury unknown.”

In the case of State v. Williams, 11 S. D. 64, 75 N. W. 815, in paragraph 2 of the syllabus that court said:

“An indictment for illegally selling liquors, under Laws 1897, c. 72, need not state to whom the liquors were sold.”

In the body of the opinion the court says:

“It is further contended that the information should have stated to whom the liquors were sold. But such a statement is not required in this class of cases. As before stated, it is the engaging in the business of selling that constitutes the offense.* * * In the case at bar, it is not material to whom particular sales were made. It is sufficient to allege and prove that the accused was engaged in the business of selling intoxicating liquors at retail without having procured a license therefor as provided by law, and proof that he was so engaged in the business of making sales at retail would sustain the charge.”

In the case of City of Lincoln Center v. Linker, 5 Kan. App. 242, 47 Pac. 174, that court said in paragraph 1 of the syllabus:

“In a complaint charging the violation of a city ordinance by an unlawful sale of intoxicating or other liquors, it is not necessary to allege the name of the person or persons to whom such sale was made.”

In the body of the opinion that court says:

“The special contention of counsel for the appellant is that the complaint is insufficient, because it fails to state .to whom the unlawful sale was made. This, we think, was unnecessary. * * * ‘The offense complained of worked no injury upon the individual rights of the person to whom the sale was made, and none was supposed to have been violated; and hence the designation of snch person by name is in no way material to- constitute the offense,” citing numerous authorities.

See, also; Langan v. People, 32 Colo. 414, 76 Pac. 1048; Trometer v. District of Columbia, 24 App. D. C. 242; Shuler v. State, 125 Ga. 778, 54 S. E. 689; State v. Schweiter, 27 Kan. 499; State v. Back, 99 Mo. App. 34, 72 S. W. 466; State v. Heibel, 116 Mo. App. 43, 90 S. W. 758; State v. McAnally, 105 Mo. App. 333, 79 S. W. 990; Id. (Mo. App.) 97 S. W. 1197; State v. Considine, 16 Wash. 358, 47 Pac. 755; State v. Schmidt, 92 Kan. 457, 140 Pac. 843; State v. King, 92 Kan. 669, 141 Pac. 247; State v. Burkhalter, 118 La. 657, 43 So. 268; State v. Joseph, 137 La. 52, 68 So. 211.

The rule is that where the sale is absolutely prohibited under any circumstances, the name of the person to whom the sale was made must be alleged in the information, if known, and if unknown that fact must be stated in the information. Fletcher v. State, 2 Okla. Cr. 300, 101 Pac. 599, 23 L. R. A. (N. S.) 581; Moss v. State, 4 Okla Cr. 248, 111 Pac. 950; Kelley v. State, 31 Okla. Cr. 51, 236 Pac. 915.

The rule above stated has no application where sales may be legally made upon the obtaining of a license.

In the case at bar the defendant was charged with selling cigarettes without first having obtained a license. One of the provisions of section 1975, supra, is that before sales can be made a license must be procured and a bond given.

The allegation and proof of the state was that the defendant had not obtained a license entitling him to sell cigarettes and cigarette papers as required by section 1975, supra, and that he made sales of cigarettes in Me-Clain county without such license. This allegation in the information and proof supporting the same is sufficient to support the verdict of the jury.

The other errors complained of being without merit, the cause is affirmed.

DAVENPORT, J., concurs.

EDWARDS, P. J., absent and not participating.


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    TOM LIGGINS v. STATE.
    No. A-7498.
    Opinion Filed Oct. 11, 1930.
    (292 Pac. 394.)
    Hussey & Chaney, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of perjury and sentenced to serve a term of ten years in the state penitentiary, from which judgment the defendant has appealed.

A petition in error, with case-made attached, was filed in this court on August 7, 1929. Under the rules of this court, where the appeal is not supported by brief, and no appearance made by the defendant, it is assumed that the appeal has been abandoned or is without merit.

The record has been carefully examined, and we find the information sufficiently charges an offense of perjury; that the evidence supported the charge. The instructions of the court were reasonably fair to the defendant. There are some minor errors appearing in the record committed by the trial court, but, in view of the fact that the appeal has not been followed up by the defendant, they are not deemed sufficient to justify the court in reversing the case.

Finding no fundamental or prejudicial errors in the record sufficient to warrant a. reversal, the judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    Ex parte W. A. McWHORTER.
    No. A-7995.
    Opinion Filed Oct. 11, 1930.
    (292 Pac. 393.)
    F. H. Reily, for petitioner.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

This is an original proceeding in habeas corpus for the purpose of reducing the bond of petitioner. Petitioner is charged in the district court of Murray county with obtaining property by false pretenses, it being alleged in the information that petitioner by false representations obtained from one Cora Pratt 41 shares of Cities Service stock of the value of $4,920, giving in exchange 77 German government bonds of a face value of $84,000, and a draft in the sum of $672, which were without value. The bail was fixed by the district court upon arraignment of defendant in the sum of $5,000.

It is well settled in this jurisdiction that, where an application is made to reduce bail, this court will assume the defendant is guilty and will not reduce bail unless it clearly appears that the amount fixed by the trial court is excessive and clearly disproportionate to the offense charged. Ex parte McClellan, 1 Okla. Cr. 299, 97 Pac. 1019; Ex parte Ruble, 18 Okla. Cr. 134, 193 Pac. 1009. Under the charge this is not made to appear.

The writ is denied.

DAVENPORT and CHAPPELL, JJ., concur.


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    AMBROSE WOODS v. STATE.
    No. A-7295.
    Opinion Filed Oct. 11, 1930.
    (292 Pac. 393.)

      Wm. B. Thompson, for plaintiff in error.
    J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The evidence of the state was that Mary Crawford, the prosecuting witness, was a 15 year old girl who lived on a farm between Tulsa and Sand Springs with her parents; that she had been away at school and had recently returned home; that on the evening the crime was alleged to have been committed she was wearing her father’s coveralls, and went for a ride upon an old horse belonging to a neighbor; that she left her home about 8 o’clock in the evening, and had gone several miles and become confused as to roads and directions; that, among other places where she stopped to inquire the way home, was a schoolhouse where a supper was being held by colored people; that, shortly after she left this schoolhouse the defendant overtook her and walked in the same direction in which she was going, carrying on a conversation with her; that defendant made indecent proposals to her and finally stopped the horse, pulled her off of the same, and with a knife in his hand, threw her to the ground and raped her; that defendant then picked her up and seated her back on the horse and started her for home.

The prosecutrix is corroborated in her evidence as to every material fact in the case except the actual act of rape. The defendant was in the neighborhood where the crime was committed, and a medical examination of the prose-cutrix revealed the fact that she had been assaulted. She identified the defendant among a small group of negroes in the sheriff’s office as the one who had committed the crime, and positively identified the defendant in the courtroom. The defense was an alibi. Defendant in his brief says:

“Without waiving any of the other assignments of error, for logical reasons, we shall first discuss the first and second assignments of error, to wit:
“First: That the verdict is not sustained by the evidence.”

It is sufficient answer to this objection to say that there is an abundance of evidence in the record to support the verdict of the jury. This court has many times held that it will not reverse a case on the ground of insufficiency of the evidence where there is competent evidence in the record to support the verdict of the jury.

“Second: The length of the sentence, appearing to have been given under the influence of passion and prejudice.”

The crime the defendant was found guilty of by the jury is a most heinous one. The Legislature has seen fit to fix the punishment at not less than 15 years in the penitentiary as the minimum, and death as the maximum. When all of the facts and circumstances in the case are considered, it is evident to the court that the jury gave the defendant the benefit of every possible mitigating circumstance, and that this is evidenced by the fact that the jury only assessed defendant’s punishment at 20 years in the penitentiary.

The other errors complained of are without substantial merit. The defendant was given a fair trial; he was ably represented by Ms counsel, not only in the trial of the case, but in the presentation of the same to this court; the trial judge was liberal in his rulings to the defendant, and he was given every opportunity to make his defense.

It appearing that the defendant had a fair trial and that the evidence supports the verdict of the jury, the cause is affirmed.

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


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    R. L. BAIRD v. STATE.
    No. A-7352.
    Opinion Filed Oct. 11, 1930.
    (292 Pac. 395.)
    H. P. Hosey and Tom Finney, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of McCur-tain county upon a charge of outraging public decency and public morals, and his punishment fixed by the jury at a fine of $100 and imprisonment in the county jail for 80 days.

The only evidence introduced was by the state and was that the defendant was a widower living in a house upon his farm with his three daughters, the oldest one being about 15 years of age and the youngest about five; that one Wofford was a tenant on the farm of defendant and lived in a house on the farm and had farmed said place for about two years, and during the time the offense was alleged to have been committed; that Wofford had a daughter Susie, the charge being that the defendant was guilty of lascivious and immoral conduct that tended to outrage public decency and public morals, and that by keeping the said Susie Wofford as a housekeeper in his home such acts tended to the injury of his children and the moral outrage of the community.

The state called numerous witnesses who testified to the fact that Susie Wofford was seen about the defendant’s home, washing, cooking, and keeping house; that they were frequently seen together in a truck on the public highway, in stores, and at church and other public gatherings, but no witness testified to a single act of the defendant and Susie Wofford in public or private that tended in any manner to outrage public decency or morals or that tended to corrupt the morals of his children.

The mere fact that Susie Wofford acted as his housekeeper and that they were seen in public together frequently might create an occasion for public gossip in the community and be an occasion for suspicion, but would be at most the weakest and most flimsy kind of evidence to establish a charge of immoral conduct or conduct that outraged public morals or decency.

Where there is no competent evidence in the record tending to support the verdict of the jury, it is the duty of this court to reverse the case. Jefferson v. State, 31 Okla. Cr. 44, 236 Pac. 914.

There being no competent evidence in the record to support the verdict of the jury, the cause is reversed.

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


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    TOMMIE BRASEL v. STATE.
    No. A-6618.
    Opinion Filed May 25, 1929.
    Rehearing Denied Oct. 15, 1930.
    (291 Pac. 807.)

      J. M. Springer, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county of rape in the second degree, and his punishment fixed at imprisonment in the state penitentiary for a term of 3 years.

The information alleges the rape to have been committed upon the person of Mary Queen, a female of the age of 14 years. The proof is that she was 13 years of age. The principal contention argued is that, since the evidence discloses the female to have been of the age of 13 years, the rape, if any proven, was rape in the first degree, and the evidence does not sustain a conviction of rape in the second degree. Rape is defined by section 1834, Comp. Stat. 1921, as follows:

“Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances:
“First. Where the female is under the age of sixteen years.
“Second. Where the female is over the age of 16 years and under the age of eighteen, and of previous chaste and virtuous character.
“Third. Where she is incapable through lunacy or any other unsoundness of mind, whether temporary or permanent, of giving legal consent.
“Fourth. Where she resists but her resistance is overcome by force and violence.
“Fifth. Where she is prevented from resistance by threats of immediate and great bodily harm, accompanied by apparent power of execution.
“Sixth. Where she is prevented from resisting by any. intoxicating narcotic, or anesthetic agent, administered by or with the privity of the accused.
“Seventh. Where she is at the time unconscious of the nature of the act and this is known to the accused.
“Eighth. Where she submits under the belief that the person committing the act is her husband, and this belief is induced by artifice, pretence or concealment practiced by the accused, or by the accused in collusion with her husband with intent to induce such belief. And in all cases of collusion between the accused and the husband of the female, to accomplish such act, both the husband and the accused shall be deemed guilty of rape.”

Sections 1835,1837,1838, and 1839, Comp. Stat. 1921, which classify the crime of rape into degrees' and fix the punishment, are:

Sec. 1835. No conviction for rape can be had against one who was under the age of fourteen years at the time of the act alleged unless his physical ability to accomplish penetration is proved as an independent fact and beyond a reasonable doubt. Nor can any person be convictéd of rape on account of an act of sexual intercourse with a female over the age of fourteen years, with her consent, unless such person was over the age of eighteen years at the time of such act.”

“Sec. 1837. Bape committed by a male over eighteen years of age upon a female under the age of fourteen years, or incapable through lunacy or unsoundness of mind of giving legal consent; or accomplished with any female by means of force overcoming her resistance, or by means of threats of immediate and great bodily harm, accompanied by apparent power of execution, preventing such resistance, is rape in the first degree. In all other cases rape is of the second degree.”
“Sec. 1838. Rape in the first degree is punishable by death or imprisonment in the penitentiary, not less than fifteen years, in the discretion of the jury, or in case the jury fail or refuse to fix the punishment then the same shall be pronounced by the court.”
“Sec. 1839. Rape in the second degree is punishable by imprisonment in the penitentiary not less than one year nor more than fifteen years.”

Section 1834, first subdivision, defines rape upon a female under the age of 16 years. Under this subdivision unlawful intercourse with a female under the age of 16 years with her consent is rape. If the male is under the age of 18 years and the female is above the age of 14, and the act is with her consent, no offense is committed. Section 1835, Comp. Stat. 1921. If the male is above the age of 18 years and the female above the age 14 and gives her consent, the act is rape in the second degree. If the male is above the age of 18 years and the female is under the age of 14 years, without regard to the matter of her consent, the act is rape in the first degree. Section 1837, Comp. Stat. 1921.

The evidence in this case discloses that the male was of the age of 31 years and the act of intercourse was with the consent of the female. The information, contains no allegation as to the age of the defendant. If a defendant should rely upon nonage as provided in section 1835, Comp. Stat. 1921, or upon a reduction of the degree of the offense charged by reason of his age as provided by section 1837, Comp. Stat. 1921, he must make proof of his age, bringing himself within the provisions of those sections of the statute. These provisions are matters purely of defense and need not be pleaded. Penn v. State, 13 Okla. Cr. 367, 164 Pac. 992, L. R. A. 1917E, 668.

In tbe matter of proof, however, the evidence here is that the female was of the age of 13 years and not 14 as alleged in the information. The proof is sufficient on this point to have sustained a charge of rape in the first degree. Evidently the county attorney was not certain that the state would be able to establish the age of the female as being under 14 years of age, and therefore did not so allege. In order to establish the offense charged, that is, rape in the second degree, it was only necessary that the state prove that the female was below the age of 16 years. This is conclusively proven. The defendant will not be heard to complain that the state proved her to be under the age of 14 years. No claim appears to have been made at any time that there is a variance between the allegation and the proof.

Some argument is made that the evidence is not sufficient to sustain the verdict and judgment. There is ample evidence of intercourse, and, under the view of the law herein expressed, no reason to disturb the verdict and judgment appears.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.